judgment of the Court or to be used in any later consideration of the Court's judgment. ... McLaren made her last will (
Judgment Summary Supreme Court New South Wales Court of Appeal Nobarani v Mariconte (No 2) [2017] NSWCA 124 Ward JA, Simpson JA, Emmett AJA The Court of Appeal has dismissed an appeal against a decision of the Supreme Court to grant probate of a will in solemn form. Mr Homayoun Nobarani was a friend of the late Iris McLaren. In December 2013, Ms McLaren made her last will (the 2013 will), which named her friend Ms Teresa Mariconte as executrix. The whole of Ms McLaren’s estate was left to Ms Mariconte. Ms McLaren passed away shortly after making the 2013 will. Ms Mariconte subsequently applied to the Supreme Court for the grant of probate. Mr Nobarani filed two caveats against the grant of probate, claiming that Ms McLaren did not have capacity to make the 2013 will and that the 2013 will was therefore invalid. The purpose of filing the caveats was to require Ms Mariconte to notify Mr Nobarani of the application for probate and join him as a defendant so that he could participate in the proceedings and put his contentions to the Court. Mr Nobarani had been named as a beneficiary under some of Ms McLaren’s previous wills. He claimed that Ms McLaren’s ‘true’ will was one that she had made a few months earlier in September, but he was unable to produce a copy of it. The hearing in the Supreme Court was adjourned so that he could search for it. The matter came back to the Supreme Court and it was subsequently referred to the primary judge. Significantly, the hearing before the primary judge was to be limited to the determination of the question whether the caveats lodged by Mr Nobarani should cease to be in force. In the meantime, Mr Noborani’s caveats expired. When the matter came before the primary judge, his Honour noted that the caveats had lapsed, and informed the parties that the hearing, which had already been scheduled in a few days’ time for the purpose of determining the caveat issue, would instead be a final hearing to determine the substantive issues in the proceedings. Mr Nobarani said he wanted more time so that he could get legal advice and obtain evidence and witnesses. That request was refused. At the hearing, the primary judge determined that the 2013 will was valid. His Honour granted probate in solemn form of the 2013 will and ordered that Mr Nobarani pay Ms Mariconte’s costs. The main issue on appeal was whether Mr Nobarani had been denied procedural fairness, specifically, whether he had been given enough time to prepare for the hearing, and whether he had been denied the opportunity to issue subpoenas, call and cross-examine witnesses and provide affidavit evidence. The Court of Appeal (the Court) unanimously found that Mr Nobarani had been denied procedural fairness. At the insistence of Ms Mariconte, the Supreme Court had set down a This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
hearing for the limited purpose of deciding the caveat issue. By resolving to determine the substantive issues in the proceedings, and failing to give Mr Nobarani sufficient time to prepare, the Court found that the primary judge had fallen into error. However, Ward JA and Emmett AJA found that it would be futile to send the matter back to the Supreme Court for a re-trial. Although Mr Nobarani had been denied procedural fairness arising from the change of the nature of the hearing, he had been given ample opportunity throughout the proceedings to contest the validity of the 2013 will. As such, the miscarriage or wrong was not so substantial as to warrant a re-trial. Mr Nobarani had claimed that the 2013 will was invalid for a number of reasons, including allegations that Ms McLaren’s signature was forged, that at the time of making the will her eyesight was impaired, that she was under the influence of medication, that she was suffering psychological problems, and that she had been hypnotised. Justice Ward and Acting Justice Emmett found that Mr Nobarani’s contentions did not raise a genuine doubt as to the validity of the 2013 will, particularly in light of the evidence of Ms McLaren’s solicitor, who was found to be a credible witness and had attested to Ms McLaren’s capacity to make the 2013 will. On that basis, their Honours took the view that, even if there was a re-trial, the outcome would not be any different. Justice Simpson found that the denial of procedural fairness was such that there was a possibility that a re-trial would result in a different outcome. Her Honour found that, even though Mr Nobarani’s interest under the grant of probate was limited, it was sufficient to establish an entitlement to procedural fairness. As Mr Nobarani had been denied procedural fairness, in her Honour’s view, there had been a substantial miscarriage of justice. Justice Simpson also observed that there is a public interest element in a grant of probate. The grant of probate had proceeded in solemn form, as opposed to common form. The consequence was that the grant of probate would ‘bind the world’, or at least those who were affected by the proceedings, which included Mr Nobarani. Her Honour found that the evidence that Mr Nobarani wanted to put before the Court, but was denied the opportunity to do so, was capable of raising doubts about the validity of the 2013 will. In light of the denial of procedural fairness and the binding consequences of the grant of probate in solemn form, her Honour would have allowed Mr Nobarani’s appeal and would have ordered a re-trial.
This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
