Background
Scruby J heard two proceedings concerning the estate of Bryan Robert Hanger, who died on 2 May 2025 aged 84. Proceedings 2025/00429374 sought probate in solemn form of his will dated 30 November 2021, alternatively his will dated 10 April 2008. Proceedings 2026/00036999 were Lisa Maree Wright’s application for family provision. Brett Robert Hanger, executor under both wills, was plaintiff in the probate proceedings; Ms Wright was defendant there and plaintiff in the family provision proceedings. She represented herself.
The 2021 will gave Ms Wright 10% of the estate conditional on her supplying DNA results confirming the deceased was her biological father, with the balance to the plaintiff, Karen Kent and Kelly Dimmock. The estate comprised a Moorebank house valued at $925,000, a car valued at $10,000, cash of $25,762 and personal effects worth about $1,000. The plaintiff commenced solemn-form proceedings because Ms Wright had lodged a general caveat disputing validity; that caveat later lapsed.
By motion filed 3 July 2026, the plaintiff sought to strike out Ms Wright’s Defence and Cross-Claim, refer the probate claim to the Registrar as undefended, and obtain parentage testing under s 26 of the Status of Children Act 1996 (NSW). Alternative relief permitting sale of the Moorebank property before a grant was sought only if the pleadings were not struck out.
The Court’s Holding
The Court struck out the Defence filed 18 May 2026 and the Cross-Claim and Amended Cross-Claim filed 3 and 10 June 2026 under UCPR r 14.28(1)(a) and (b). The Defence merely non-admitted validity and sought strict proof without pleading facts capable of impugning the will; the Cross-Claim sought 27 interlocutory orders and propounded no alternative testamentary instrument. Considering Ms Wright’s extensive written and oral submissions as well as her pleadings, the Court found no reasonably arguable defence or cause of action. It did not understand her to dispute capacity or due execution, and found no evidence of either defect.
Applying Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [18], [46], the Court held that due execution of a rational will by a capable testator raised a presumption of knowledge and approval, casting on Ms Wright the onus of showing suspicious circumstances. The solicitor Mr Smith’s affidavit and file notes described conferences on 23 November 2021 and execution on 30 November, including discussion of the DNA condition. The Court assessed Ms Wright’s contentions about earlier DNA results, the plaintiff’s email suggesting the condition, the death certificate and alleged discrepancies in Mr Smith’s account. It concluded that none, alone or together, could establish suspicious circumstances or lack of knowledge and approval. The will’s changes from 2008 had clear, rational explanations.
After considering a further opportunity to replead and prior documentary production, the Court decided that the overriding purpose of just, quick and cheap resolution would not be advanced by that course in these circumstances, including the modest estate, existing amendment and extensive submissions. It also found that lodgement of the caveat had no proper basis. With the caveat lapsed and no proper basis for another caveat or opposition, the Statement of Claim was referred to the Registrar for an undefended common-form grant under Part 78 r 9 of the Supreme Court Rules 1970 (NSW), using s 14 of the Civil Procedure Act 2005 (NSW) without amendment. The alternative interim-administration relief therefore did not require consideration.
On testing, the Court did not consider parentage would remain an issue in the probate proceedings after strike-out, although it might arise in executing the 2021 will after a grant, when no proceedings would be on foot for s 26(1). The threshold was instead satisfied because parentage was in issue in the family provision proceedings, where Ms Wright needed to establish eligibility under s 57 of the Succession Act 2006 (NSW). Her objection that Kelly Dimmock also had to be tested was unsupported by evidence and did not justify refusing an order; Ms Dimmock had consented voluntarily but was not a party, so no order against her was pressed. Testing of Ms Wright and the plaintiff was ordered, with estate-funded costs, following the form in Kohari v NSW Trustee and Guardian [2016] NSWSC 1372 at [54].
Key Takeaways
- The strike-out rested on these pleadings and submissions, not a universal rule that non-admission or a self-represented litigant’s probate defence must always be struck out.
- The referral permits an undefended common-form application; it is not itself a solemn-form determination or a declaration construing “children” in the 2008 will.
- The DNA order rests on the live family provision eligibility issue, with prescribed sampling, affidavits, laboratory compliance and reporting requirements.
Why It Matters
The decision shows a probate court examining unpleaded assertions before strike-out, while weighing delay and estate depletion in this case. It also confines the statutory testing rationale to the proceedings in which parentage remained in issue.
The plaintiff was entitled to estate indemnity for motion costs to the extent of any shortfall, with costs submissions scheduled and determination on the papers if appropriate. The motion was otherwise dismissed. Testing and reasonable attendance costs, including Ms Dimmock’s to the extent necessary, are payable from the estate.