Wilcox v Wilcox [2019] NSWSC 306

Wilcox v Wilcox [2019] NSWSC 306

The Registrar did not err in refusing access to the original Will since no reasons were provided by Mr Wilcox; however, on review, access to the executor's affidavit and the Original Will may be permitted, conditional on payment or security for costs, due to unnecessary joinder and indulgence granted, subject to written submissions on costs.

Parties
Applicant: Robert William Wilcox; First Respondent: The late Patricia Anne Wilcox (executrix and trustee); Second Respondent: Paul Brian Duffy
Jurisdiction
Australia
Judgment Date
25 March 2019
Procedural Posture
Application for Review of Registrar's Decision / Interlocutory Determination; Orders Deferred Pending Submissions
Outcome
Orders deferred pending applicant's written submissions; application for review of Registrar's decision dismissed; access potentially conditional on costs
Legal Topics
Non Party Access to Court Files, Probate and Administration of Estate, Costs Orders, Application for Access to Probate File, Allegations of Fraud, Court Administration
Equity Civil Procedure Non Party Access to Court Files Probate and Administration of Estate Costs Orders Application for Access to Probate File Allegations of Fraud Court Administration

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Parties

Robert William Wilcox

Applicant

The late Patricia Anne Wilcox (executrix and trustee)

First Respondent

Paul Brian Duffy

Second Respondent

Procedural Posture

Application for Review of Registrar's Decision / Interlocutory Determination; Orders Deferred Pending Submissions

Legal Issues

  1. 1 Whether a non-party applicant should be permitted access to a probate file and affidavit(s) in support of probate application
  2. 2 Whether proper reasons and 'exceptional circumstances' exist to justify access under Practice Note SC Gen 2
  3. 3 Whether the application improperly joined the second respondent

Ratio Decidendi

The Registrar did not err in refusing access to the original Will since no reasons were provided by Mr Wilcox; however, on review, access to the executor's affidavit and the Original Will may be permitted, conditional on payment or security for costs, due to unnecessary joinder and indulgence granted, subject to written submissions on costs.

Court Disposition

Orders deferred pending applicant's written submissions; application for review of Registrar's decision dismissed; access potentially conditional on costs

Orders

  • Applicant to file written submissions within 14 days as to why costs should not be ordered on indemnity basis and access should not be conditional on payment or securing of costs.
  • Final orders will be made after receipt of any submissions.