heirs & successes

Forfeiture Revisited: South Australia’s Statutory Framework

Practitioners in succession and estate litigation have missed a quiet but significant reform. The Forfeiture Act 2024 (SA) started on 15 January 2025. The Act was enacted after the recommendations of the South Australian Law Reform Institute (SALRI). It places the forfeiture rule on a clear statutory footing. The Act introduces judicial discretion that is carefully confined to temper its operation in exceptional circumstances. This includes, notably, cases of murder.

This reform invites a timely reassessment of the rationale, scope, and operation of the forfeiture rule. It also calls for a reassessment. This involves evaluating how South Australia has chosen to recalibrate a doctrine long described as “strict and unbending.”

The Common Law Forfeiture Rule

The forfeiture rule is entirely a product of the common law. Its modern formulation is usually traced to Cleaver v Mutual Reserve Fund Life Association (1892), where a wife who murdered her husband was barred from claiming the proceeds of a life insurance policy taken out in her favour. Fry LJ articulated the enduring public policy principle:

No system of jurisprudence can with reason include amongst the rights it enforces. It can’t enforce rights directly resulting to the person asserting them from that person’s crime.

From this foundation, a strict rule of public policy emerged: an unlawful killer must not profit from their wrongdoing. The rule applies to murder and all forms of manslaughter, and its consequences are far-reaching. An unlawful killer is excluded from taking under a will or on intestacy. They are barred from insurance proceeds and pensions. They are prevented from making family provision claims. Such a person is also excluded from estate administration and disentitled to survivorship interests in property. This occurs through severance of joint tenancies or the imposition of constructive trusts.

Despite its breadth, the technical operation of the forfeiture rule across succession, property, and trust contexts has often been uncertain. This aspect has been under-examined. It is a key driver of reform.

The “Absolute and Inflexible” Rule

At common law, the forfeiture rule has been repeatedly characterised as rigid. It is not a doctrine concerned with moral nuance or individual justice. Motive, mental impairment, provocation and family violence have traditionally been irrelevant.

This inflexibility was starkly illustrated in Troja v Troja, where a wife who killed her abusive husband was convicted of manslaughter based on diminished responsibility. The NSW Court of Appeal held that no discretion existed to mitigate the forfeiture rule. Meagher JA emphasised that the rule reflects:

an abhorrence of the notion that one may profit from killing another… It is absolute and inflexible.

The rule has extended beyond murder. It now includes assisting suicide, surviving a suicide pact, and causing death by dangerous driving. Its boundaries have never been entirely clear. It may be applied in civil proceedings even after a criminal acquittal.

Statutory Responses Elsewhere

Other jurisdictions have long grappled with the harshness of the common law rule. England, NSW, and the ACT have enacted legislation allowing courts a discretion to change the rule in non-murder cases. These reforms preserve the common law framework while permitting limited relief where justice demands.

New Zealand adopted a different path, comprehensively codifying the rule in the Succession (Homicide) Act 2007. While this approach provides clarity, it has been criticised as overly rigid.

Law reform bodies have consistently recognised the tension. Absolute rules promote certainty. Still, discretion is often necessary to avoid manifest injustice in cases of reduced culpability. As one commentator observed, no statute can predict the infinite variety of circumstances in which unlawful killings occur.

SALRI’s Approach

SALRI concluded that the policy foundation of the forfeiture rule remains sound. Generally, an unlawful killer should not benefit from their crime. However, it found the common law unsatisfactory due to uncertainty and the potential for unfair outcomes in cases involving lower moral blameworthiness.

Rejecting strict codification as too inflexible, SALRI recommended a statutory scheme incorporating limited judicial discretion. This model draws on Victorian law reform proposals. It recognises particular concern for cases involving mental impairment. It also addresses domestic or family violence.

While acknowledging that discretion may introduce some uncertainty, SALRI considered this preferable. This approach is better than enforcing a rigid rule incapable of responding to individual circumstances.

The Forfeiture Act 2024 (SA)

The Forfeiture Act 2024 (SA) was passed with bipartisan support. Its purpose is not to abandon the forfeiture rule, but to clarify, modernise and humanise its operation.

From 15 January 2025, South Australian law:

·       Codifies and extends the forfeiture rule. It applies to all forms of unlawful homicide recognised under the Criminal Law Consolidation Act 1935 (SA).

·       Empowers executors and administrators to seek Supreme Court guidance. They want to know whether, and to what extent, the rule applies to an estate.

·       Excludes persons found mentally incompetent to commit the offence. They are not capable to stand trial. This is contingent on an application by an interested person.

·       Introduces a central discretion. This allows the Supreme Court to change or remove the rule. Exceptional circumstances make this necessary in the interests of justice.

·       Provides remedial powers, including tracing and recovery of benefits improperly received.

·       Restores entitlements where a conviction for unlawful killing is overturned on appeal.

Notably, the Act confirms that deaths occurring under South Australia’s voluntary assisted dying regime are not considered “unlawful killing.” This holds for forfeiture purposes.

Exceptional Circumstances and Judicial Discretion

Section 9 of the Act is pivotal. It allows modification of the forfeiture rule, even in cases of murder. However, this is only possible where exceptional circumstances are shown. In determining this, the court must consider:

·       the circumstances of the offence,

·       the effect of the rule’s application, and

·       any other matter it considers material.

This is a deliberately high threshold. Courts are expected to exercise discretion sparingly, mindful of the firm public policy against profiting from crime. Yet, guidance from case law suggests circumstances where flexibility is justified. These include deaths caused by dangerous driving, suicide pacts, and assisted suicide. Other situations are mercy killings, significant cognitive impairment, and killings arising from prolonged domestic abuse.

Conclusion

The Forfeiture Act 2024 (SA) strikes a measured balance. It preserves the core public policy that one must not kill and then profit from that act. At the same time, it acknowledges that justice sometimes requires nuance. The Act resists rigid codification. It confines discretion to truly exceptional cases. This approach modernises an ancient rule without undermining its moral foundation.

Practitioners should note that the Act applies only to unlawful killings occurring on or after 15 January 2025 — but its implications for estate planning, administration and litigation in South Australia are to be significant

Mr Karl James Kirsten sought leave to appeal a costs order. The order requires him to pay 40% of Ms Cara Miller’s costs. This pertains to the costs at first instance. The costs order arose after proceedings concerning the historical ownership of shares in Ombrel Pty Ltd. These proceedings were resolved without a trial. This resolution followed Mr Kirsten’s late concessions.

The Full Court dismissed the appeal, finding no error in the primary judge’s exercise of discretion. The Court held that Mr Kirsten had belatedly capitulated on the central issue underlying the declaratory relief. Ms. Miller was entitled to recover part of her costs incurred in pursuing that relief.

Background

Ms Miller, as executor of the estate of the late Detlef John Kirsten, sought:

• Mr Kirsten had relied on an alternative register. It suggested the company held shares in itself as trustee. This is a legal impossibility under the Corporations Act.
• Mr. Kirsten eventually agreed to register the shares. Each party would bear their own costs for that aspect. He did not initially abandon his reliance on the alternative register.
• Ms Miller therefore pursued declaratory relief to resolve the issue of historical ownership.

Costs Decision at First Instance

The primary judge found that:

• The proceedings were unnecessary but for Mr Kirsten’s unreasonable persistence in relying on a legally untenable position.
• Mr Kirsten had capitulated at the last moment by abandoning the alternative register shortly before trial.
• Although the registration issue had settled on a no-costs basis, the declaratory relief retained utility until that capitulation.

The Court’s decision to uphold the 40% costs order emphasizes procedural fairness. It also highlights judicial discretion, which the audience should regard with respect.

Grounds of Appeal

Mr Kirsten argued that:

1. There was no capitulation, only a consensual settlement.
2. The declaratory claims were abandoned and lacked utility.
3. The costs order contradicted the parties’ settlement agreement.
4. The primary judge improperly assessed the reasonableness of his conduct without a trial.
5. The discretion should have been exercised by making no order as to costs.

Full Court’s Reasoning

The Court rejected all grounds, holding that:

• The Court clarified that the relevant capitulation was Mr Kirsten’s late and unequivocal abandonment of the alternative register. This abandonment emphasised its importance in engaging the Court’s reasoning. The Court noted that the declaratory relief was not futile. It was necessary until the abandonment to prevent future disputes concerning historical ownership. This demonstrated the Court’s focus on practical utility. The settlement covered only costs related to share registration, not the declaratory claims. The primary judge did not impermissibly rely on irrelevant matters. However, Mr Kirsten’s defence based on the alternative register affected the entire proceeding.
• Even if minor factual errors had been made, they would not justify disturbing the costs order. The Court would have reached the same result.

The Court also emphasised that appellate intervention in discretionary costs decisions requires demonstrating a House v King error. The audience should see this as a safeguard for consistent and fair judgments.

Outcome

• Leave to appeal granted
• Appeal dismissed
• Costs order requiring Mr Kirsten to pay 40% of Ms Miller’s costs upheld

Key Takeaway

The key takeaway is that a late concession, seen as capitulation, justifies an adverse costs order. This reinforces principles on conduct affecting costs. It highlights the importance of responsible litigation behaviour.

The judge refused both the stay application and the cross-vesting transfer application and dismissed the defendants’ application with costs.

Stay application: refused

• The defendants argued the plaintiff’s standing (title) to sue depended on her position as executor. They also contended that her title might later be undermined if probate were revoked.
• The judge said that the outcome was highly contingent and remote. For the plaintiff to lose standing, several events would need to occur. These events include a successful leave application. There would also be an appeal setting aside prior orders. Additionally, an adverse rehearing outcome is needed. The defendants must actually commence revocation proceedings. They must then succeed in revoking probate. This would likely lead to Mr Karl Kirsten stepping in as the replacement executor. That was “a long way” from the current position.
• Even if revocation proceedings could be brought without those contingencies, the defendants had had ample opportunity to seek revocation. They had not done so, despite earlier assertions.
• The defendants raised serious allegations of fraud concerning Ombrel’s register. However, their counsel accepted that those issues might be ancillary. The case might be decided without determining fraud.
• On the merits generally, the judge was not persuaded. The defendants did not present a substantial defence to most of the orders sought.
• The plaintiff, as executor, has a clear duty against speculative future scenarios. They must collect estate assets. These include at least one Ombrel share and shares in other companies. A replacement executor would have the same duty.
• The defendants did not identify a concrete detriment if the proceedings continued. Their asserted concern was the removal or dealing with shares while other proceedings were pending. This was treated as the wrong procedural response. If genuinely feared, they should seek an injunction, whether quia timet or otherwise. They also need to meet the usual requirements, including an undertaking as to damages, rather than seeking a stay.

Result: no stay.

Cross-vesting transfer: refused

• The defendants sought transfer to a State Supreme Court under s 5(4) of the Cross-Vesting Act. They relied on the “interests of justice” test. Authorities emphasized a balancing exercise, considering factors like commonality, overlap, risk of inconsistent findings, efficiency, skill, and costs.
• The judge rejected three specific transfer arguments:

1. Potential cross-claim to revoke probate/comity
   • The defendants said they “will need” to cross-claim for revocation. They argued that, as a matter of comity, the Federal Court should not revoke another court’s probate order.
   • The judge declined to decide jurisdictional or power issues on this interlocutory application. He stated they were not grounds for transfer. If a revocation cross-claim is later brought, those issues can be argued then.

Fitness of executors

1. Overlap with construction/rectification of the Will (clause 11)
   • The defendants contended that the main proceeding involves testamentary intention. Possible rectification under s 25AA Wills Act 1936 (SA) is also involved. They claim this would overlap with share-ownership issues in this case.
   • The asserted overlap was undeveloped and not obvious to the judge. Even if some overlap existed, it did not justify transfer.

Result: no transfer.

Final orders

Dismissal of the defendants’ application with costs.

Kirsten v Miller as executor of the estate of Detlef John Kirsten [2023] FCA 1667

• The leave to appeal application, filed 12 September 2023, will be heard by a Full Court. The court will also decide on the extension of time application. This decision will be made under s 25(2)(e) of the Federal Court of Australia Act 1976 (Cth).
• Unless ordered otherwise, the Full Court Will hear those applications at the same time as the appeal.
• No order as to costs of this referral decision.

What this was about

Karl James Kirsten sought leave to appeal a costs order made on 29 August 2023. This order required him to pay 40% of the respondent’s costs (party–party). These are to be assessed as a lump sum if not agreed.

In case management:

• Mr Kirsten also sought an extension of time. He applied for leave at 4:31 pm on the due date. Under the Rules, it is treated as filed the next day, requiring an extension to 13 September 2023.
• The respondent had filed a notice. She indicated that she would not oppose leave at that stage. But, if granted leave, she would on appeal.

Legal principles applied

• Typically, leave applications are determined by a single judge. This can change if a judge directs a Full Court hearing: s 25(2) FCA Act; r 35.11 Rules.
• Justification of a Full Court referral is required only if there is a “good reason.” This includes situations where the leave question is finely balanced, not purely procedural, and not obviously hopeless. A referral is also justified when efficiency, cost, and potential injustice support Full Court determination.

Why did Halley J send it to the Full Court?

Halley J did not consider the leave application straightforward and arguable, and that it went beyond a minor procedural dispute. Key reasons included:

• The Court made a costs order after the substantive dispute had been settled. There was no merits hearing. No substantive declarations/orders were ultimately made.
• The parties had agreed each would bear their own costs on the “registration issue”. But, the 40% order appeared to be a broad apportionment of total costs. There was no obvious discount reflecting that agreement.
• The financial impact could be significant (40% of all proceeding costs).
• The primary judge’s “unreasonable conduct” finding was said to rely on a “legal impossibility” proposition. The applicant argued that this was inconsistent with s 259A of the Corporations Act.
• The applicant alleged the primary judge made findings about credit/state of mind/motive without a hearing.
• There was no active contradictor on leave. This was because the respondent did not wish to be heard on leave. This situation created a risk of inefficiency. The risk would occur if the Full Court only heard the respondent’s substantive arguments later at an appeal.

Overall, the most efficient and fair approach was for the Full Court to handle leave and extension together. They should do this (subject to directions) alongside any appeal.

Extension of time

Although the delay was trivial, the extension application turned partly on the merits. To avoid inconsistent views on the merits, Halley J directed that both the single judge should consider them. The Full Court should also consider them. The Full Court was to decide the extension application alongside leave.

Bottom line

This judgment does not decide between a grant of leave or whether the costs order was wrong. It simply directs that the Full Court will decide:

1. Should there be an extension of time, and
2. The court must decide whether to grant leave to appeal. If granted, it will hear the appeal. No costs order is made for this procedural step.

Preliminary principles

• Costs orders are discretionary. An appeal can only succeed if the appellant demonstrates an error of the kind identified in House v King. These errors include acting on a wrong principle. They also include considering irrelevant matters and overlooking relevant issues. Mistaking facts or producing a plainly unjust result are also included.
• Mere disagreement with the primary judge’s outcome is insufficient.

Kirsten v Miller as executor of the estate of Detlef John Kirsten (No 2) [2024] FCAFC 106

Orders

• The respondent was permitted to withdraw the submitting notice filed on 29 September 2023.

• Leave to appeal was granted.

• The appeal was dismissed.

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Overview of the Appeal

Mr Karl James Kirsten sought leave to appeal against a costs order. It required him to pay 40% of Ms Cara Ellen Miller’s costs at first instance. The costs order arose from proceedings regarding the current and historical ownership of shares in Ombrel Pty Ltd. Nevertheless, it ultimately did not continue to trial. Mr Kirsten took steps that rendered substantive relief unnecessary.

Ms Miller, as executor of the deceased’s estate, had sought:

• Declaratory relief concerning the historical ownership of shares; and

• Non-declaratory relief compelling registration of a share transfer.

The Court made no substantive orders because Mr Kirsten ultimately registered the shares.

The primary judge held that Mr Kirsten had wholly capitulated and awarded Ms Miller 40% of her costs, reflecting that Ombrel was only one of five companies involved.

Mr Kirsten argued that:

• The costs order contradicted a settlement agreement under which each party bore their own costs regarding non-declaratory relief;

• The declaratory claims had no utility;

• He had not capitulated, and

• Any allegedly unreasonable conduct was irrelevant given the costs agreement.

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Leave to Appeal

Because the costs order was interlocutory, leave to appeal was required. Although such appeals are discouraged, leave was granted because:

• The decision went beyond mere procedural matters;

• Entertaining the appeal would not fragment the litigation; and

• The proposed grounds raised an arguable case that the costs discretion may have miscarried.

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Factual Background

• The deceased was the sole director of Ombrel before his death in November 2018.

• Ombrel had 100 shares. The original register recorded the deceased as the beneficial owner of one share. The deceased was the non-beneficial owner of the remaining 99 shares.

• A later amended register purported to record the transfer of the 99 shares to Ombrel itself as trustee. This arrangement is legally impossible under the Corporations Act.

• Ms Miller, as executor, sought registration of the shares in her name. Mr Kirsten refused, raising concerns under South Australian probate legislation and relying on the amended register.

• Ms Miller commenced proceedings seeking declarations as to the accurate register and orders compelling registration of the shares.

• Mr Kirsten later agreed to register the shares. He did so on the basis that each party bears their own costs. This agreement applies only regarding the Corporations Act relief.

• He did not expressly consent to declaratory relief, nor did the costs agreement extend to it.

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Conduct of the Proceedings

• Ms Miller maintained that the original register was the accurate register.

• Mr Kirsten defended the proceedings on multiple bases, including reliance on the legally impossible amended register.

• He did not abandon that position until shortly before the trial.

• Once he unequivocally accepted the original register as correct, Ms Miller did not press the declaratory relief.

• At the hearing, the sole remaining issue was costs.

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Primary Judge’s Findings on Costs

The primary judge concluded that:

• The amended register recorded a legally impossible transaction.

• Ms Miller was almost sure to succeed on her declaratory claims.

• Mr Kirsten had persisted with untenable defences and insisted on formal steps with no practical value.

• His conduct caused unnecessary expense and delayed resolution.

• His ultimate concession amounted to a last-minute capitulation.

• Although the parties resolved the Corporations Act claim on a “no costs” basis, the declaratory relief still had utility. It served to prevent future disputes.

• Given the broader scope of the proceedings, Mr Kirsten should pay 40% of Ms Miller’s total costs.

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Outcome

The Court upheld the primary judge’s reasoning and discretionary assessment. While leave to appeal was granted, the appellant established no error, and the Court dismissed the appeal.

Declaratory relief and its utility

• Although Ms Miller ultimately did not press the declaratory relief, that decision must be understood in context.
• The primary judge correctly found that the declarations had real utility. They clarified the historical ownership of the Ombrel shares. They also identified who was entitled to exercise trustee powers during the deceased’s lifetime.
• Mr Kirsten failed to show that the declarations were merely procedural or subordinate to the Corporations Act claim.
• His registration of the share transfer did not amount to a withdrawal of his entire defence.

Continuing dispute over historical ownership

• The dispute about historical ownership remained live for as long as Mr Kirsten relied on the Kirsten-Ombrel Register.
• The resolution of the issue was not merely because the shares were eventually registered in Ms Miller’s name.
• The earlier agreement that the parties bear their own costs did not cover the costs. This was for resolving which register was accurate. This register reflected historical ownership.

Timing and capitulation

• Mr Kirsten only unequivocally abandoned reliance on the Kirsten-Ombrel Register immediately before the hearing.
• Until that point, the declaratory claims continued to serve a legitimate purpose.
• The primary judge’s finding of “capitulation” was properly understood as a late and partial capitulation.
• The utility of the declaratory relief was connected to a specific period. This period was between the settlement of the Corporations Act claim and the final abandonment of the register defence.

Effect of the costs agreement

• The settlement of the Corporations Act claim included an agreement. Each party agreed to bear their own costs only concerning that claim.
• Ms Miller was therefore precluded from recovering costs associated with that aspect, regardless of whether Mr Kirsten had earlier capitulated.
• Arguments about the merits or reasonableness of Mr Kirsten’s reliance on the AP Act were irrelevant to the costs issue.

Grounds of Appeal

Ground [1(a)(i)] – Alleged failure to identify capitulation

• Rejected.
• The relevant capitulation was Mr Kirsten’s belated acknowledgment that the Ombrel Register—not the Kirsten-Ombrel Register—reflected historical membership.
• Reliance on the latter was a legal impossibility and provided no reasonable basis to resist declaratory relief.

Ground [1(a)(iii)] – Alleged abandonment of the claim

• Rejected.
• Ms Miller ceased pressing claims only because Mr Kirsten’s late capitulation made further relief unnecessary.
• Maintenance of the defence relying on the Kirsten-Ombrel Register until just before the hearing.
• Nothing in the settlement agreement prevented Ms Miller from seeking costs incurred in meeting that defence.
• Mr Kirsten failed to show that the costs agreement extended that far.

Grounds [1(a)(ii)] and [1(b)] – Alleged conflation of costs

• Rejected.
• The primary judge awarded 40% of Ms Miller’s total costs. This reflects the relative weight of the Ombrel register dispute among all issues.
• The judge expressly recognised the earlier costs agreement and confined the costs issue accordingly.
• The 40% figure did not demonstrate impermissible inclusion of costs relating to the Corporations Act claim.
• Mr Kirsten did not discharge his onus of proving that the settlement covered all declaratory-relief costs.

Ground [1(c)] – Alleged reliance on irrelevant matters

• Rejected.
• The primary judge’s comments addressed why the declaratory relief would almost certainly have succeeded.
• Although the discussion focused partly on the AP Act, it also intertwined those arguments with reliance on the invalid register.
• The register defence permeated the entire proceeding, including the declaratory claims.
• Even if some findings were erroneous, they would not justify appellate intervention, as the costs outcome would be the same.

Outcome

• The appellant showed no appealable error.
• The primary judge’s decision on discretionary costs was sound.
• Dismissing the appeal.

Adverse Possession under the Old System Title in NSW

Land granted or alienated from the Crown before 1 January 1863 in New South Wales is under Common Law. This is also known as Old System title ownership. An unbroken chain of deeds proves its ownership. Each transaction, like grants, conveyances, mortgages, and discharges, is separately documented. They are also registered by book and number in the General Register of Deeds.

Lost or defective deeds, or adverse possession, can make it difficult to establish a complete chain of title. Section 53 of the Conveyancing Act 1919 (NSW) provides a solution. For vendor and purchaser, a 30-year chain of title is generally sufficient. This is deemed enough to establish a good root of title.

NSW Land Registry Services (LRS) holds most early land records. These records include Crown grants from 1792 to 1863. They also include all registered Old System deeds. The Office of the Registrar General, established under the Registration of Deeds Act 1843, manages the deed register. They do this by filing sworn copies of registered deeds. This practice continues to this day.

A search customarily begins with an examination of the Parish Map. It also involves reviewing any other relevant plans to identify the land. This helps to determine the specific Crown grant from which it derives. If the grant predates the Registration of Deeds Act 1825, start in the Grants Register. This Act commenced on 16 November 1825. Start the search under the grantee’s name from the grant date. If not located, the search continues in the Vendors index until a conveyance is identified in the chain. If a conveyance in the chain is already known, begin the search from that point. Use the transferee’s name for the search.

The search then proceeds through the Purchasers Index. It continues in the same way until the title is traced to the current owner. After that, the search continues against that owner to the present time. The Purchasers Index commenced in 1896; before that, the Vendors Index recorded the purchaser’s details. If a mortgage appears in the chain of title, a further search is done. The search examines the mortgagee to find any discharge, re conveyance, or other dealings affecting the land.

In New South Wales property law,””documentary title”” describes the historical chain of legal documents—primarily deeds—that establish ownership of land. This concept is particularly important for Old System land. Ownership was proven by demonstrating an unbroken sequence of valid conveyances. Traditional paper titles no longer operate in NSW. Electronic records under the Torrens system have replaced them. However, the documentary title remains relevant for specific legal processes. A central modern record is the Certificate of Title (CT). It now exists only in electronic form. The CT records the registered proprietor and any interests affecting the land.

NSW currently operates under the Torrens system of title. This system registers title rather than proving ownership through deeds. Under this system, the State guarantees title. Ownership and interests are recorded electronically on the land register. The register is maintained by NSW Land Registry Services. Paper Certificates of Title were formally abolished in 2021, meaning that all title information is now accessed and managed digitally. This system is different from the Old System (common law) title. The Old System applied mainly to land first granted before 1863. It relied on documentary evidence of ownership instead of state-backed registration.

Within this framework, documentary title refers to the collection of historical deeds. These deeds and related instruments trace the ownership of Old System land. They trace ownership over time. While it no longer functions as proof of title for Torrens land, it is still required in particular contexts. For instance, when converting Old System land to Torrens title, applicants must apply through a Primary Application. They need to lodge a detailed schedule of deeds showing the chain of ownership. Similarly, in adverse possession claims, documentary title identifies who would be legally entitled to the land. It does so if the adverse possession claim were unsuccessful.

Documentary title is also used for historical investigations. It provides an understanding of ownership history of older properties. It is also used for resolving boundary and title issues. Records relevant to documentary title can be obtained from NSW Land Registry Services, which manages current and historical land records, and from the Historical Land Records Viewer (HLRV), accessible through the State Library of NSW, which contains digitised historical deeds, maps, and Old System title documents

Conversion of Old System land to Torrens Title happens in several ways:

1. Primary Application under s 14 of the Real Property Act 1900. It is lodged by a documentary owner or a person claiming by adverse possession. The application must be supported by at least 30 years of title and a current plan of survey.
2. Official Search is conducted by NSW LRS staff to establish a good root of title. It is commonly used to remove cautions. It also supports the issue of Torrens Title.
3. Registration of a deposited plan and supporting deeds, or
4. Registration of a deed referring to a public plan, or
5. Investigation by the Registrar General.

A person in possession can acquire ownership of Old System land through adverse possession. This can happen after 12 years (s 27 Limitation Act 1969). Yet, it does not extinguish interests such as easements or restrictive covenants.
When lodging deposited plans over Old System land, owners must provide a Statement of Title Particulars. They must also provide the relevant deeds evidencing ownership. This includes earlier deeds where the title has passed by devolution of law. The boundary definition for Old System land follows similar principles to those of Torrens Title surveys.

Finally, Conversion Actions of Old System land result in a Torrens Title. This occurs under Parts 4A and 4B of the Real Property Act 1900.

Under the Old System title in New South Wales, the statutory limitation period for adverse possession must expire first. Once it expires, the documentary title is automatically extinguished. This occurs by operation of law. The adverse possessor has occupied the land adversely for the required period. They then hold the strongest title to the land. They may apply to have that title converted to Torrens title through NSW Land Registry Services.

Extinguishment of Documentary Title

For privately owned land, the limitation period is generally 12 years of uninterrupted adverse possession. For Crown land, it is 30 years. When this period expires, the documentary title is extinguished. This reflects the policy of stabilising land ownership. It also prevents owners from delaying enforcement of their rights.

Converting Old System Title to Torrens Title in NSW

The conversion of Old System land to Torrens title in New South Wales begins with lodging a Primary Application. This application is with NSW Land Registry Services (NSWLRS). The process requires the applicant to establish a complete and reliable chain of title. Where necessary, the applicant must support that claim with a survey. Applications are now managed mainly through NSWLRS Online. However, accessing original deeds and historical records may still require consulting the State Archives.

Key Steps and Resources

Confirm Old System Status: Confirm that the land remains under Old System title. The existence of a prior Primary Application number may help identify the land’s status.

Title Research: Historical title research is essential. The Historical Land Records Viewer (HLRV) helps to locate old conveyances. It also finds survey plans and index entries by names, parcels, or book and number details.

The NSWLRS Online portal identifies current lot and DP references, along with associated documents.

Document Collection: Assemble all deeds, wills, probate records, and other instruments to form the chain of title. These documents underpin the Primary Application and demonstrate entitlement to the land.

Lodgement of the Application.

The applicant lodges a Primary Application, together with supporting title documents and, where required, a plan of survey. A formal conversion process requires a Statement of Title Particulars (Form 20-0310).

Access to Original Records: Museums of History NSW (State Archives) holds many original Old System deeds. It also holds historical Primary Application packets. These are not accessible through HLRV. These records may need to be viewed in person or formally requested.

Electronic Conveyancing Although the process is increasingly electronic, the fundamental requirement remains unchanged: the applicant must satisfy the Registrar-General of their entitlement by proving the title history

Nature of the Possessory Title

An adverse possessor acquires a possessory interest as soon as adverse possession begins. Once the limitation period expires, the documentary title is extinguished. Then that possessory interest matures into a title good against the world. It is only subject to rights not displaced by possession, such as certain easements.

Identifying the Documentary Owners Legal Representative: Where the documentary owner is deceased, identifying the correct legal representative is essential. This step is crucial for notice and evidentiary purposes. Requiring probate, death, and title searches conducted by a specialist searcher.

Under the “chain of representation” principle, if the last surviving executor in a sequence obtains probate of their immediate testator’s will, they represent all earlier estates. This executor thus represents all earlier estates. This principle holds true for all estates in the chain. It is valid provided there has been no break in succession.

Evidentiary Requirements: An applicant for possessory title must adduce evidence. Statutory declarations commonly do this. The evidence must identify the persons who would otherwise be entitled to the land but for the adverse possession.
Theapplicant’ss solicitor must also confirm that they have undertaken reasonable and diligent searches to identify all affected parties.

Purpose

The identification of legal representatives ensures procedural fairness. It also ensures completeness. Nonetheless, under the Limitation Act 1969 (NSW), the passage of time extinguishes the documentaryowner’ss title.

Molloy v Beehag [2025] NSWSC 1462

Allan Richard Molloy (the Plaintiff) seeks orders of registration as the proprietor. This is under the Real Property Act 1900 (NSW) for a 3.352-square-metre parcel of old system land. The Plaintiff purchased the land from his predecessor in title, who is said to have acquired ownership by adverse possession. Richard Beehag (the First Defendant) and the Registrar General of New South Wales (the Second Defendant) entered submitting appearances. Williams J
Was satisfied that declarations and orders should be made substantially in the terms sought.

Background

The Plaintiff is the registered proprietor of Lot 1 in DP3XXX5. This land is known as 64 Smith Street, Balmain. It shares boundaries with 66 Smith Street, which includes Lot 2 in DP3XXX5 and Lot A in DP9XXXX8. It also shares boundaries with 53 Reynolds Street, which is Lot 1 in DP7XXXX6.

Situated between those three Torrens title parcels is a small triangular parcel of land measuring 3.352 square metres. It is shaded yellow on the survey diagram. This parcel is the subject of these proceedings (the Subject Land) and has never come under the Real Property Act. The reasons issued by NSW Land Registry Services treated the Subject Land as old system land. It was recorded in Book 757 No 206 of the General Register of Deeds. They also accepted the accuracy of DPXXXXX95.

The Plaintiff contends that his predecessor in title, the late Mr Ronald McCarty, possessed the Subject Land adversely without interruption. This possession lasted for at least 20 years, from 1965. This occurred because he occupied the dwelling at 64 Smith Street. Part of this dwelling was constructed on the Subject Land. By 1985, the law extinguished the documentary owner’s title. This was pursuant to s 2 of the Real Property Limitation Act 1833 (Imp), as applied in New South Wales. As a result, Mr McCarty acquired title in fee simple.

The Plaintiff further contends that Mr McCarty’s executor, Ms Deborah McCarty, conveyed that title to him. This was done under a contract for sale dated 6 May 2023. Completion occurred in July 2023. During subsequent redevelopment works, a surveyor unexpectedly found that Lot 1 under DP3XXX5 included the Subject Land. On 19 January 2024, the Plaintiff lodged a primary application under Part 4 of the Real Property Act. The application sought registration as proprietor. It aimed to bring the Subject Land under the Act. The application included an unregistered plan of survey designated DPXXXXX95.

NSW Land Registry Services notified the registered proprietors of 53 Reynolds Street and 66 Smith Street.
The proprietors of 66 Smith Street objected. They asserted that the Subject Land formed part of their property. They argued that adverse possession does not apply to a partial parcel. They also stated that the Subject Land had been vacant for extended periods since 2020.

On 29 April 2025, NSW Land Registry Services issued a requisition. They disputed the exercise of exclusive possession for the requisite period. Nonetheless, an internal review found that evidence of adverse possession was insufficient. As a result, the application is held in abeyance pending court orders. This status is a temporary pause or suspension pending a court’s specific orders or decisions. It effectively puts the case on hold until a related legal issue is resolved or a prerequisite is met.

Molloy v Beehag [2025] NSWSC 1462 commenced on 7 August 2025. The Plaintiff seeks declarations concerning adverse possession. Additionally, the Plaintiff requests to extinguish the documentary owner’s title. They also seek orders directing the Registrar-General to create a folio under s 17(2) of the Real Property Act.Shelley’s

Shelley’s Case

Section 17 of the Conveyancing Act 1919 (NSW) abolishes the operation of the Rule in Shelley’s Case. This applies to instruments that take effect after the commencement of the Act. When an instrument grants a life estate to a person, that person receives only a life estate. If a remainder is given to that person’s heirs, they get it as purchasers. This includes heirs of the body. They do not inherit it. The remainder does not merge with the life estate to create a fee simple in the life tenant.

Historically, the Rule in Shelley’s Case applied to remainders created by deed. It held that a gift to a person for life vests fee simple in the life tenant instantly. This situation occurs when a gift to their heirs follows the gift. The rule defeated attempts to restrict alienation. It peserved future interests. This preservation allowed the life tenant to sell the land outright. The rule is a classic illustration of common law reasoning. It remains significant as a teaching concept. Yet, it is essential to distinguish it from rules of construction (like the doctrine of worthier title).

The Rule in Shelley’s Case was a rule of law. It applied regardless of the grantor’s intention. It was not displaced by evidence of contrary intent. Section 17 eliminates that effect for modern instruments. It gives effect to the expressed division between the life estate and the remainder.

The first defendant, as the legal representative of the documentary owner, filed a submitting appearance. The second defendant has done likewise. The neighbouring proprietors elected not to intervene.

Issues

The Court is not reviewing the administrative decision of NSW Land Registry Services. The issues for determination are:

1. Whether the Plaintiff has obtained, or is entitled to, title to the Subject Land; and
2. If so, should the second defendant be directed to create a folio recording the Plaintiff as proprietor?
   Resolution of the first issue requires identifying the documentary owner and determining whether adverse possession extinguished that owner’s title.

Title search

The Plaintiff relied on expert evidence from Mr Mark Groll, a specialist title searcher with over years experience. His evidence traced the Subject Land to a conveyance in 1872. It was conveyed to Mr Charles Dolby, who died in 1893. He left a will. When properly construed, it vested a fee simple estate in his widow. The rule in Shelley’s case applies to Ms Catherine Dolby. Upon the grant of administration, legal and equitable title united in Ms Dolby without the need for a further conveyance. The Registrar General did not include the Subject Land in later Torrens plans affecting the surrounding land. As a result, it remained old system land. Mr Groll’s evidence showed that the documentary title passed through successive executors of Dolby’s estate. Ultimately, it vested in the first defendant.
The proprietors of 66 Smith Street are not documentary owners of the Subject Land.

Adverse Possession

Ms Deborah McCarty gave evidence that her father occupied the dwelling at 64 Smith Street continuously from 1965 until 2020. A portion of the dwelling was constructed on the Subject Land. This portion included the kitchen. It was considered part of the family home throughout that period. That occupation was open, exclusive, peaceful, and without the consent of the documentary owner. Mr McCarty was unaware that part of the dwelling encroached beyond his registered title.

By operation of the transitional provisions of the Limitation Act 1969 (NSW), the applicable limitation period was 20 years. That period ended in 1985. At that time, section 34 of the Real Property Limitation Act 1833 (Imp) extinguished the documentary owner’s title. Mr McCarty thereby acquired title in fee simple to the Subject Land. That title was unaffected by later periods of non-occupation.

Ms McCarty and the Plaintiff both intended to transfer this interest. This was outlined in the 6 May 2023 contract. The Plaintiff, consequently, holds an equitable fee simple interest in the Subject Land.

Conclusion and Orders

Mr McCarty acquired title by adverse possession in 1985. This acquisition extinguished the documentary title at that time.
There is no opposition from any defendant. Hence, direct the Registrar-General to create a folio in the Register under s 17(2) of the Real Property Act. This will record the Plaintiff as the proprietor in fee simple.
No order as to costs is sought or made

The examination of the concept of documentary title in New South Wales reveals its historical importance. It was significant under the Old System of land ownership. It also reveals its current significance within the Torrens system. Although electronic registration now primarily governs property ownership in NSW, documentary title still plays a crucial role in legal processes. It is vital for converting Old System land to Torrens titles. It also helps in asserting adverse possession claims. Molloy v Beehag [2025] NSWSC 1462 shows the effectiveness of documentary title. It plays a part in resolving complex ownership issues. Expert evidence and statutory declarations support this process. This assists in transferring land to the Torrens register. Maintaining historical land records is essential. Thoroughly investigating these records is also key for protecting the integrity and clarity of property rights in New South Wales.

Order 54 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) allows an executor to seek judicial advice. This advice concerns estate administration. Executors can also seek advice on the interpretation of will provisions. This can be done without commencing an administration suit. To obtain advice, the executor must file a formal application with the court. The application must be accompanied by supporting documents. These include a copy of the will and any required affidavits. The court usually processes these applications within a few months. Nonetheless, the timeframes depend on the court’s workload. It also depends on the complexity of the matter.

Rule 54.02 provides a solution for trustees or executors. It allows them to obtain the Court’s guidance on administrative matters or the interpretation of wills and trusts. This process avoids the expense and delay of a full administration suit. The High Court analysed the UK laws in Macedonian Orthodox Community Church St Petka Incorporated v His Eminence Petar The Diocesan Bishop of the Macedonian Orthodox Diocese of Australia and New Zealand & Anor [2008] HCA 42. The Court examined the original UK legislation noting that the original law was intended to guide trustees efficiently. This decision by the High Court provided clarity. It affirmed the legislation’s purpose. The purpose is to give trustees a practical and affordable means. It allowed them to seek the Court of Chancery’s advice, thereby reducing the need for litigation.

This summary procedure allows for the efficient and affordable resolution of questions about estate or trust administration. Additionally, the High Court highlights that it serves as an exception to the Court’s usual role. Usually, the Court adjudicates disputes between opposing parties. Instead, it provides ‘private advice’ to protect trustees or executors concerning their intended actions.

The High Court in Macedonian Orthodox Community Church clarified that there are no inherent restrictions on the Court’s power. The Court can give such advice. Rule 54.02(1) permits applications for any relief available in an administration proceeding, and Rule 54.02(2) mentions purposes like approving an executor’s sale of property explicitly.

Both parties in the appeal agreed with Justice Crockett’s 1972 statement in Re Green. The Court’s role is not to judge whether executors’ proposed actions are wise. Instead, it is to determine if they have the authority to act as proposed. The Court also assesses whether exercising that power in the suggested manner would be improper. Trustees must always remember their duty to safeguard the trust’s interests when initiating or defending legal actions. If concerns arise about personal liability for costs, trustees should seek judicial advice or consider resigning.

The Court has the discretion to authorise or deny proposed actions. Because of this, appeals are not rehearings. Instead, they follow the principles set out in House v The King [1936] HCA 40. These principles highlight two key aspects. First, an appellate court can interfere with a discretionary decision only if it is satisfied that there is a mistake. The mistake must relate to law or fact by the decision-maker. This includes failing to consider a relevant factor or considering an irrelevant factor. Second, the decision made must be so unreasonable that no reasonable decision-maker can have come to it. The High Court highlighted the need for appellate restraint. It warned that overturning discretionary decisions unnecessarily lead to prolonged litigation. This would result in disproportionate legal expenses and delays in resolving disputes.

In this context, the Court of Appeal considered two grounds of appeal:

Ground 1: Late-filed Affidavit
Mrs Morris served on 4 December 2012, for the scheduled hearing on 11 December. Her solicitors communicated with the trial judge’s associate between 7 and 13 December. The affidavit in question was received after 6:00 pm on 13 December. The hearing was scheduled for 10:30 am the next day. Mrs Morris’ counsel conceded they did not serve the affidavit in accordance with Court procedures. However, they argued the Court should have admitted it since it caused no irreparable prejudice to the executors.

Appellate courts rarely interfere with procedural decisions of this nature. The trial judge properly objected to the late affidavit, as responding would have caused delays. Mrs Morris’ legal team could have sought an adjournment if the affidavit was critical, accepting any associated costs. As the respondent requested no adjournment, claims of procedural unfairness are unfounded.

Ground 2: Substantive Error of Law
This ground claimed that the judge erred by failing to consider the affidavit’s contents. However, due to the procedural ruling, the deponent’s testimony wasn’t admitted, and the judge wasn’t obligated to believe it.

Application for Judicial Advice

The plaintiff seeks guidance on interpreting clauses 4 and 5 of the deceased’s will. They want to know if the named beneficiary, Mr Kyle Stuart Jackson, exists. The plaintiff contends that Mr Jackson does not exist. She submits that the estate should be distributed without regard to his interest. The gift-over clause should apply to make her the beneficiary of the residuary estate.

The status of the gift to Kyle Stuart Jackson

Whether the gift in clause 4 of the Will takes effect depends on whether Kyle Stuart Jackson exists. It also depends on whether he cannot be found. It also depends on whether no such person exists as contemplated by the deceased. This distinction is significant, as the deceased never met Mr Jackson and their relationship was exclusively online. Despite extensive efforts, the plaintiff made but failed to verify Mr Jackson’s identity. The attempts used the contact details provided by the deceased and by those claiming to be him. Requests for video communication were ignored or refused, and communication was limited to email. Attempts to obtain identifying information were met with silence or false details. On one occasion, someone claiming to be Mr Jackson sent an email. It included an image of a United States passport. The passport was in the name Kyle Stuart Jackson. The email also provided a Pennsylvania address.

The email correspondence was irregular and inconsistent, at one point accusing the plaintiff’s solicitors of acting “behind my back.” Kyle Jackson did not execute draft renunciation documents. Although the plaintiff served the originating process by email. They also sent the documents by post to the Pennsylvania address provided. Kyle Jackson did not appear. He also did not participate in the proceedings.

Goulden AsJ found that the passport image provided to the plaintiff’s solicitors was fraudulent. The photograph did not meet United States Department of State requirements. Additionally, the validity period was shorter than that of genuine US passports. Additionally, the private investigator retained by the plaintiff did not find any birth record. There was no record for a person named Kyle Stuart Jackson. His date of birth did not match the one on the passport. Investigations also confirmed that no person named Kyle Jackson resides at, or has ever resided at, the Pennsylvania address provided. Furthermore, a cheque found among the deceased’s effects, made payable to Kyle Jackson, was not valid.

Goulden AsJ is satisfied based on the evidence. The person described in clause 4 of the Will as Kyle Stuart Jackson does not exist. This is not as understood by the deceased, if at all.

Proper construction of the Will in the absence of Mr Jackson.

Clause 4 of the Will shows that the deceased intended to leave the residuary estate. He wanted to leave it to the person he believed was Kyle Stuart Jackson. He made the Will in contemplation of marriage. The evidence establishes that no such person exists as the deceased understood. As no beneficiary meets the description in clause 4, the gift fails. Thus, distribution of the estate without regard to that gift occurs. Clause five applies. Clause 5 states that if Mr Jackson “fails to survive” the deceased, the residuary estate passes to Kaye Moseley. Ordinarily, a gift over clause takes effect only if the specified contingency occurs. The term “survive” presupposes the existence of a real person who remains alive after the testator’s death. Since Mr Jackson never existed, he cannot be said to have “failed to survive” the deceased. Therefore, the express contingency in clause five did not occur.

The Court may extend a gift over by applying orthodox principles of Will construction. This extension includes the rule in Jones v Westcomb. This applies where it is clear from the Will and admissible surrounding circumstances. It must be evident that the testator intended the gift over to operate if the contingency occurred. Here, the Will shows a clear intention to avoid intestacy and to deal comprehensively with the residuary estate. Clause 5 is the only gift over provision. It aligns with the deceased’s established pattern of favouring the plaintiff. The plaintiff was the principal beneficiary under prior wills.

The Court considered the language of the Will. It reviewed the deceased’s earlier testamentary dispositions. It noted the absence of any alternative gift over. The Court was satisfied that the deceased intended the plaintiff to get the residue if Mr Jackson did not. This applies whether Mr Jackson could not receive it due to death or non-existence. By necessary implication, the contingency of Mr Jackson’s never existing falls within the scope of clause 5. As a result, the gift over operates in favour of the plaintiff, avoiding intestacy.

The construction of a Will always depends on its specific facts. The rule application in Jones v Westcomb extends a gift-over clause in comparable circumstances. In The Trust Company Limited v Gibson, the Queensland Supreme Court examined a Will. The Will included a gift-over to take effect if the primary beneficiary “predeceased me or didn’t survive me”. In that case, the primary beneficiary did not die; instead, she disclaimed her entitlement. The Court held that the testator’s evident purpose was to avoid an intestacy. This was necessary if the primary gift did not take effect. A disclaimer produced the same practical outcome as the contingency the testator sought to guard against.

In this case, the issue is not the disclaimer but the beneficiary’s nonexistence. Nevertheless, both situations involve similar legal reasoning to prevent intestacy. In each case, the testator intended to guarantee that distribution of the residuary estate would follow their broader testamentary plan. This was preferred rather than letting it be left to intestacy due to an unforeseen event. The key similarity is the Court’s approach to honoring the testator’s intention. It focuses on benefiting a second-in-line beneficiary if the primary gift fails. This applies regardless of the reason for that failure.

As a result, the Court applied the rule in Jones v Westcomb. It construed the gift-over clause as implicitly covering the event of disclaimer. The language of the Will revealed a clear intention to prevent intestacy. This was to apply if the primary beneficiary did not take the gift. Thus, the Court treated the disclaimer as falling within the scope of the contingency. On the evidence in the current case, the same reasoning applies to the deceased’s Will. Given the failure of the gift in cl 4, Goulden AsJ did not need to consider the issue of disclaimer.

Conclusion

The Court advises the Plaintiff:

(a) is entitled to distribute the estate without further regard for Mr Jackson’s interest as the gift under cl 4 of the Will has failed;

(b) is entitled to distribute the residue of the estate to herself according to cl 5 of the Will.

(c) Costs of and incidental to this application be paid and retained out of the estate on a trustee basis.

An essential question in estate administration: can the Court authorise an interim distribution to beneficiaries before the whole administration of the estate? In The Estate of Shoushani; Shoushani v Tadros [2025] NSWSC 1335, the issue arises in the context of long-delayed entitlements under a March 2021 settlement, where beneficiaries have already waited years for the distribution of the deceased estate.

Sitting at the intersection of prudence and fairness, interim distributions are not routine and require courts and executors to balance the risk of future claims against the injustice of continued delay. The legal starting point is well-established authority on when a personal representative may — and sometimes must — distribute estate assets even though administration is incomplete.

Campbell J articulated those principles in Gonzales v Claridades [2003] NSWSC 508; 58 NSWLR 188, an appeal was dismissed (see Gonzales v Claridades (2003) 58 NSWLR 211; [2003] NSWCA 227). The plaintiff, the son of the deceased, faced charges of murdering his father, mother, and sister. As the sole beneficiary of his parents’ joint Will, he sought access to estate funds. The estate’s administration was still ongoing.
The key question was whether the son could access estate funds to defend himself in committal proceedings and if the Court had authority under Part 68 of the SCR (now Part 54 UCPR) to issue such orders in an emergency.

The Court found it had no power to direct the executrix to release estate funds to cover defence costs for a beneficiary accused of murdering his family members, explaining the times an executor can safely make partial payments despite unresolved matters such as costs, claims, or litigation. At its core, the analysis turns on three practical questions:
Can the distribution be made consistently with the governing instrument? Is there no real risk of claw-back later, and
Are the remaining tasks unlikely to be resolved anytime soon?

Against that backdrop, The Estate of Shoushani; Shoushani v Tadros [2025] NSWSC 1335, presents a compelling factual context. The beneficiaries have already received only limited funds, mainly due to misconduct by the former administrator, with the estate’s remaining administration prolonged by potential recovery litigation. Slattery J considers whether fairness now requires early access to funds — even before formally appointing a new administrator — and how to structure such a distribution to protect both beneficiaries and the estate.

This post explores the principles governing interim distributions, how courts apply them in practice, and why, in exceptional cases, delay itself can become the injustice the law seeks to prevent.

Souad Shoushani died in 2016. Between 2017 and 2018, three of her children—George, Robert and Tony—commenced proceedings relating to her estate. To avoid confusion, the Court adopted the parties’ own practice of referring to family members by their first names.

The Estate of Shoushani; Shoushani v Tadros [2025] NSWSC 1335 comprised three related matters.

First, George and Robert brought family provision claims against their sister, Camellia, the Court-appointed estate administrator. The estate then pursued proceedings. They sought declarations that Robert held specific real property registered in his name on trust for the estate. Additionally, Tony brought his own family provision claim.

George and Robert were under a legal disability. Thus, settlement of their proceedings required Court approval. This was necessary under s 76 of the Civil Procedure Act 2005 (NSW). The Court’s role in approving these settlements ensures procedural compliance and legal validity. This is critical for estate administration. It also boosts beneficiary confidence.

At that time, the expected value of the net estate was $1.6 million after the sale of estate properties. The Court noted that a contested eight-day hearing would have consumed a large share of the estate’s legal costs. This would leave significantly less available for distribution. The settlement, by contrast, provided certainty. It preserved value. This outcome emphasised the importance of legal principles guiding interim distributions for the audience’s confidence.

Under the settlement, significant distributions to George, Robert, Tony, two other siblings, and Camellia. Camellia was to continue as administrator, a role she had already performed as administrator pendente lite, assisted by solicitors. No party sought her removal. Her role was primarily administrative. She distributed funds, including payments to the NSW Trustee and Guardian (NSWTAG). These funds were to be held on trust for George and Robert.

The settlement orders were detailed and interconnected. They provided for the recovery and sale of real property held by Robert on trust for the estate. They appointed trustees for sale. They also directed how the sale proceeds were to be applied. After meeting liabilities, George and Robert’s settlements were held on statutory trusts. These trusts were established under ss 59 and 66 of the Succession Act 2006 (NSW). Other beneficiaries were authorised to get their shares directly from the administrator. The orders also granted all parties liberty to apply for information on the sale of properties. They allowed applications about the distribution of proceeds.

Trust arrangements were created in parallel for George and Robert. The NSWTAG was given broad discretionary powers to apply income or capital for their advantage. These arrangements include defined vesting events. Separate orders, including limits on the estate costs and authorisation of distributions to Camellia and another sibling, Maroun.

The settlement orders explicitly established trust arrangements for George and Robert. They conferred broad discretionary powers on the NSWTAG. The orders detailed vesting events, providing a clear legal foundation for estate management. They addressed questions about the validity and scope of these trusts.

After the Court approved the settlement, the executor sold the properties and paid the proceeds to the estate. Camellia continued, for a time, to get advice from the estate’s solicitors. Yet, the duration of that assistance later became unclear. By mid-2023, beneficiaries began seeking explanations when they had not received the anticipated distributions. Inquiries led by George’s solicitor revealed matters that caused significant concern. These matters distressed all beneficiaries. The inquiries highlighted unresolved legal issues and procedural steps taken thus far.

The Course of Estate Administration and Beneficiary Enquiries (2021–2024)

The estate comprised three adjoining residential properties at Greenacre. One property was sold before the settlement proceedings in July 2019 for $780,000. After the Court-approved settlement in March 2021, the administrator sold the remaining two properties after Robert vacated them, realising $2.48 million. After deducting trustees’ and legal expenses, total net proceeds paid to the estate amounted to $2,757,805.45. The administrator completed the sales process by February 2022. At that time, the trustees for sale transferred the final proceeds into the estate solicitors’ account.

Under the settlement, the estate’s solicitors’ fees were capped at $20,000, apparently to preserve certainty about beneficiary entitlements. Concerns were later raised on George’s behalf. He sought an inquiry into the solicitor’s conduct. Nevertheless, the Court deferred that step pending further information.

Shortly after settlement approval, the estate’s solicitors arranged for Camellia Tadros, as administrator, to open a separate estate bank account. To manage estate funds directly. She opened a Commonwealth Bank account. She received a first transfer of approximately $60,870 in April 2021. This was followed by a further transfer of nearly $2 million in February 2022, after she completed the property sales. From that point, the estate funds were under her sole control. The lack of clear communication about this transfer and the ensuing delays raised concerns. These concerns were about potential misconduct. It is a critical consideration for the audience.

Inquiries confirmed that the estate’s proceeds exceeded estimates, yet delays and unclear accounting caused significant distress among beneficiaries. Transparency and proper conduct in estate management are crucial. They help keep trust and confidence among legal practitioners and beneficiaries alike.

By late 2022, the accountants advised that they had completed and submitted the estate accounts and tax returns. They informed the administrator that they had paid the tax. A small refund was received in early 2023. At that point, George’s solicitor formally sought a breakdown of distribution calculations. The goal was to reconcile them with the 2021 orders and known sale proceeds. George received none despite ongoing correspondence over the following year.

Inquiries confirmed that the estate’s proceeds exceeded estimates. Delays and unclear accounting caused significant distress among beneficiaries. This underscores the importance of transparency and proper conduct. It includes adherence to legal standards for misconduct or misappropriation under applicable law.

By early 2024, inquiries intensified. The trustees for sale confirmed the transfer of all funds to the estate’s solicitors. In April 2021, the estate solicitors disclosed that they had transferred all trust funds to Ms Tadros. They were also awaiting information from her. Both the solicitors and the accountants stated they couldn’t obtain bank statements or financial records from Ms Tadros.

By April 2024, George’s solicitor suspected that Ms Tadros had misappropriated estate funds. Ms Tadros provided only limited and inconsistent information. She included outdated screenshots of the estate bank account. These screenshots showed a balance far below expectations. She did not offer bank statements or a current balance. Her explanations were contradictory and unsatisfactory. She refused to reveal further documents. She asserted—incorrectly—that such disclosure was a matter for the accountants.

Ms Tadros ignored repeated follow-ups, eventually instructing the estate’s accountants to cease acting and declining further engagement. There was no meaningful response. George’s solicitor invoked the liberty to apply under the 2021 settlement. The matter was re-listed in June 2024.

At the first return date, the Court instantly froze Ms Tadros’ accounts, including the estate bank account. When examined in July 2024, Ms Tadros admitted that only about $10,000 remained in the estate account. She admitted that she had transferred approximately $90,000 to her personal account. Under examination (with a certificate under s 128 of the Evidence Act 1995 (NSW)), she admitted misappropriating approximately $1.14 million of estate funds after payment of estate expenses. She admitted to using estate funds for personal purposes. She stated she believed she was entitled to them as administrator. Candidly, she admitted that she “wanted” the money, despite knowing her conduct was wrong.

The evidence showed that she used estate funds for personal living expenses. She also spent them on entertainment, gambling, legal costs, and gifts to family members. She transferred funds in small amounts. Often, these transfers were made via PayID. Sometimes, she used third-party accounts. This behaviour is consistent with an intention to conceal the movement and destination of funds. In some cases, other family members withdrew cash on her behalf or spent funds with her approval.

These disclosures led to the joinder of extra defendants who had received estate funds. The Court refrained from detailing those transactions at this stage, noting issues of representation, relevance, and proportionality.

Interim Distribution – Issue Raised

George’s submissions raise the question. Should the Court now authorise an interim distribution to him and the other plaintiffs? They are entitled under the March 2021 settlement. This is despite the estate administration not being finished.
Interim distribution raises particular difficulties in this case, requiring careful application of established principles.
Legal Principles Governing Interim Distributions
The legal principles come from Gonzales v Claridades (2003) 58 NSWLR 188. Campbell J explained that a legal personal representative make interim distributions before completing administration. In some cases, they must make these distributions.

The Court orders interim distribution under certain conditions.

First, a Will, intestacy, or settlement clearly establishes some entitlements.

Second, there is no realistic prospect of needing to reduce the distribution later.

Finally, the remaining administrative tasks are unlikely to be completed soon.

Unresolved matters, including family provision claims, creditor issues, or litigation, do not automatically justify withholding all distributions. Executors should take a cautious approach. It should also be practical; seeking consent from affected parties or directions from the Court. This can protect the executor from liability.
Courts have also approved partial distributions where the entitlement is clear and undisputed, and where unresolved aspects of administration persist.

Framework for Decision

The Court applied the framework from Gonzales v Claridades. It identified three key questions:

1. Can distributions be made under the governing instrument?
2. is there no realistic prospect that those distributions will be affected by unresolved administration issues?
3. Are the remaining administrative tasks unlikely to be completed soon?

• If answered affirmatively, an interim distribution is appropriate or required.
• Application to The Estate of Shoushani. It is Shoushani v Tadros [2025] NSWSC 1335
  

(a) Governing Instrument
The March 2021 settlement governs the beneficiaries’ entitlements. It clearly sets out the apportionment of the distributions.
The Court holds all estate funds. Any interim distribution must have a Court order. It should follow the proportions fixed by the settlement, unless otherwise agreed.

(b) Outstanding Administration Issues
Ms Tadros’ original duties were limited to accounting for and distributing the proceeds of sale. Nonetheless, her admitted misconduct has expanded the scope of administration.
Any replacement administrator pendente lite will need to consider whether to pursue further asset recovery litigation. That decision will depend on:

• legal advice;
• prospects of success; and
• the beneficiaries’ willingness to assume financial risk.

The timing and cost of any further litigation are uncertain. Given the limited funds remaining, any interim distribution reduce the estate’s capacity to fund future recovery proceedings.

(c) Creditors and Costs
George is the estate’s only clearly identified substantial future creditor. He has already conferred a significant benefit on the estate. This was done by authorising the Court’s investigations, resulting in a formal costs order in his favour.

Former estate solicitors also assert creditor claims beyond the $20,000 fee cap in the settlement. The estate will give notice and an opportunity to quantify and resolve any such claims. This will occur before finalising any interim distribution provided.

Role of Agreement

The Court emphasised the importance of that agreement among beneficiaries and creditors. It can significantly reduce uncertainty. An interim distribution then become possible.

There are a few options. One is agreeing that the parties will not pursue further litigation. Alternatively, the parties can agree that any future litigation will be funded externally (for example, by legal credit).

Beneficiaries have options to consider.

Gaining a larger interim distribution. This choice means they accept reduced litigation capacity. Alternatively, they can opt for a smaller interim distribution. This keeps funds preserved for future recovery. Provided this balancing exercise is transparent and broadly agreed, the Court is likely to accommodate an interim distribution.

Court Authorisation and Protection
The Court will expressly authorise a Court order to protect the administrator from personal liability. If an administrator pendente lite is appointed, they distribute funds under Court authority. This action protects them from creditor claims, consistent with established authority.

Special Considerations: Incapacitated Beneficiaries
George and Robert are legally incapacitated and have a more immediate need for funds.
The Court consider varying existing orders. Some funds are paid directly to them rather than through the NSW Trustee and Guardian. This is possible if there is a supply of limited evidence of need and assurance of responsible use of funds.
Nonetheless, the Court is cautious about departing from the existing protective structure.

Proposed Distributions and Next Steps

GDA Lawyers proposed specific interim distributions to the beneficiaries. They allocated a reduced amount to legal costs compared to the amount authorised by the Court.
Once final figures are agreed, the Court can make final interim distribution orders, in chambers or by short appearance.

Law Reform and Supervisory Jurisdiction

Law Reform Referral
The Court intends to refer the matter to the Law Society of NSW. If necessary, it will also refer to the Attorney-General. This is to consider law reform aimed at preventing estates from being administered by unsupervised sole administrators. This situation arises after the withdrawal of legal practitioners. A proposed reform needs outgoing estate solicitors to inform beneficiaries before terminating their retainer. This is required when no replacement lawyer is engaged.

Supervisory Jurisdiction over Solicitors
George’s counsel requested that the Court exercise its supervisory jurisdiction over the estate’s solicitors. The Court declined to resolve this issue now. The solicitors were not on notice. There was insufficient available evidence. Instead, the Court instructed the estate’s solicitors. They must file an affidavit. It should explain their involvement in the estate administration after the March 2021 settlement.

Other Matters

Potential Further Recoveries
It is too early to decide whether further recoveries should be pursued. This includes possible claims against third parties including a bank. Any such action needs independent legal advice and assessment of constructive notice and breach of trust principles.

Criminal Referrals
Although the Court made no criminal findings, it concluded that the evidence raised sufficient concern. This justified referral of the matter to the NSW Attorney-General for consideration of potential criminal offences. The referral does not imply guilt but recognises that the facts warrant further investigation.

Orders Made

The Court made several decisions. It referred the matter to the Attorney-General. It also referred law reform issues to the Law Society. The Court ordered Ms. Tadros to account and to show cause. It authorized payment of legal costs to GDA Lawyers. The matter was listed for further directions. Additionally, it granted liberty to apply.
The matter was referred to the Attorney-General. Law reform issues were referred to the Law Society. Ms. Tadros was ordered to account and to show cause. The payment of legal costs to GDA Lawyers was authorized; the matter was listed for further directions. Liberty to apply was granted.

Camelia Tadros, Alan Knock, Victor Tadros, Rita Shimon, Cassandra Tadros, and Toni-Lee McCaw referred the matter to the Attorney General. They requested further investigation. Funds were released out of Court to Ghania Dib, of GDA Lawyers. These funds cover disbursements and fees incurred. This is a partial compensation for legal work performed to recover the deceased’s outstanding estate assets.

Section 8 of the Succession Act 2006 (NSW) involves three key requirements. These are outlined in Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56]. Powell JA provides this outline.

A ‘document’ must first exist. It is defined by s 3(1) of the Succession Act. This refers to Schedule 4 of the Interpretation Act 1987 (NSW).

Second, the document must express the deceased’s testamentary intentions. These are what they want to happen to their property after death. This obligation is as per s 8 (1) (a) of the Succession Act.

Third, the deceased must have intended for the document to serve as their Will. This is required under s 8(2)(a) of the Succession Act.

The process for the Court’s determining this intention is as follows:

1. examines the document itself for clarity and finality. It evaluates whether the deceased expressed definitive testamentary intentions that show the document’s finality as a Will.
2. considers evidence of how the deceased executed the document. It also analyses any supporting declarations made by the deceased about their intentions.
3. reviews any relevant communications between the deceased and others. These communications might clarify the deceased’s intent for the document to serve as a Will.
4. Lastly, the court assesses the overall context in which the document was created. This includes the circumstances leading up to its creation. The court then determines whether it serves as the deceased’s Will.

This systematic approach helps guarantee that the document aligns with the deceased’s true testamentary intentions.

The key issue in Wheatley v Peek [2025] NSWCA 265 is whether an informal document found in the ‘Notes’ application on the iPhone of the late Colin Laurence Peek (the deceased) satisfies the requirements of section 8 of the Succession Act 2006 (NSW).

The Court (Payne JA, Bell CJ and Mitchelmore JA agreeing) allowing the appeal, held:

The evidence of the Note indicates that the deceased had the requisite testamentary intention that the Note should operate as his will, without more, per s 8(2)(a) of the Succession Act. Kemp v Findlay [2025] NSWCA 46; Hatsatouris v Hatsatouris [2001] NSWCA 408

In particular:

(i)   The Note was written with finality and formality and was not ambiguous:

(ii)   The Note was dated and signed:

(iii) The Note sufficiently dealt with the entirety of the deceased’s estate: [51]–[57].

BELL CJ: had the benefit of reading the reasons of Payne JA and agrees with those reasons and the orders his Honour proposes.

Context

The context of the creation of the Note was the deceased’s near-death experience immediately prior to its creation:

The extrinsic evidence supported a conclusion that the deceased intended that the Note operate as his will, without more. In particular: 

(i)   The deceased told his housekeeper Ms Jones he had finalised his will. That was an unequivocal representation that, in the deceased’s mind, the Note was in its final form: 

(ii) The deceased, in a conversation after the creation of the Note with the named executor in the Note essentially stated that that the executor would shortly receive a significant amount of money, consistent with a conclusion that the deceased intended the Note, without more on his part, to have operation as a will.

The deceased’s solicitor, Mr Peter Dawson (Mr Dawson), was accompanied by Brad Anthony Wheatley (the defendant/appellant), looking for any original wills. Mr Dawson found the Note on the ‘Notes’ application of the deceased’s iPhone on 19 August 2022. No Will executed according to the formal requirements of the Succession Act was located.

The Note divided the deceased’s estate, with the defendant/appellant receiving the majority of it, around $10.3 million. The deceased’s brother, Ronald William Peek (the plaintiff/respondent), is allocated a smaller sum of about $990,000. Additionally, friends of the deceased are granted various gifts, including a 5% share worth approximately $308,495.53, which is assigned to Mr Dawson.

On or around February 9, 2023, the defendant/appellant was named executor in the Note and applied for probate under s 8 of the Succession Act. The plaintiff/respondent, in a statement of claim dated May 19, 2023, contends that the deceased did not intend the Note to be his Will, as he had a different intention.

As no other testamentary documents exist, the deceased died intestate. With no surviving spouse, child, or parent, and being the only sibling, the plaintiff/respondent requests a grant of letters of administration, with a claim of entitlement to the entire estate pursuant to s 129 of the Succession Act.

On 25 September 2023, the defendant/appellant (denying that the deceased died intestate) filed a cross-claim seeking declarations that the Note was valid and forms the Will of the deceased and a grant of probate in similar terms to the 9 February application.

In Peek v Wheatley [2025] NSWSC 554, Richmond J ruled that the defendant/appellant did not sufficiently prove that the Note was intended by the deceased to function as a Will on its own. Identifying several reasons for this:

• The left a lacuna (significant gap) because it did list all of the deceased’s essential assets,
• Richmond J questioned the deceased’s intent to finalise it as a Will, especially noting the lack of communication with solicitor Mr Dawson.
• Additionally, Richmond J raised concerns about Mr Dawson’s potential conflict of interest, which cast doubt on the reliability of his statements.

In the end, Richmond J granted the plaintiff/respondent Letters of Administration for the deceased’s intestate estate.

In Wheatley v Peek [2025] NSWCA 265, the executor named in the Note appealed Richmond J’s decision. The critical question on appeal is whether the deceased intended the Note to form his Will within the meaning of s 8(2)(a) of the Succession Act, or whether, as Richmond J found, the Note was only a draft Will or set of instructions that the deceased intended to send to his solicitor but did not.

The Court of Appeal (Payne JA, Bell CJ and Mitchelmore JA agreeing), allowing the appeal, held:

• The evidence of the Note indicates that the deceased had the requisite testamentary intention and should operate as his Will, without more, per s 8(2)(a) of the Succession Act.
• Kemp v Findlay [2025] NSWCA 46, a similar case where an informal document where the Court of Appeal accepted a valid Will based on clear testamentary intention.
• Hatsatouris v Hatsatouris [2001] NSWCA 408 also supports this position by outlining the criteria for recognising informal Wills.

In Kemp v Findlay [2025] NSWCA 46, Andrew Findlay died suddenly in a boating accident in 2023. Two years before his death, he and his de facto partner, Elizabeth Kemp, separated. During that time, he drafted a new Will on his computer, leaving his estate to his three children and naming his cousin as executor. He emailed the draft to his cousin, indicating his intention for it to serve as his new Will once legally formalised, but he never signed the document.

After the deceased’s death, Ms Kemp argued that the 2019 document was not a valid Will. However, the NSW Court of Appeal ultimately upheld the decision to grant probate on the unsigned electronic document. The court based its ruling on section 8 of the Succession Act 2006 (NSW), which recognises informal wills if there is evidence showing the deceased intended the document to be their final testament.

In Hatsatouris v Hatsatouris [2001] NSWCA 408 [56], the NSW Court of Appeal noted that the questions arising on applications for letters of administration of an informal Will are essentially questions of fact. The parties concur in Peek v Wheatley [2025] NSWSC 554 that fulfilling s8 of the Succession Act requires meeting three main criteria, as described by Powell JA in Hatsatouris v Hatsatouris [2001] NSWCA 408 at [56].

First, a ‘document’ must exist as defined by s 3(1) of the Succession Act, referring to Schedule 4 of the Interpretation Act 1987 (NSW). Richmond J noted that there was no disagreement that the Note qualifies as a document under the Act and meets this initial requirement.

Second, the document must appear to express the deceased ‘s testamentary intentions- what they want to happen to their property following death- as per s 8 (1) (a) of the Succession Act. In accordance with the consensus, the Note claims to express the deceased’s testamentary intentions; thus, the second requirement is satisfied.

Third, the deceased must have intended for the document to function as their Will, according to s 8(2)(a) of the Succession Act. To determine this, the court may consider the document itself, evidence of how the testator executed it, and the deceased’s testamentary intentions, including statements made by the deceased and any other relevant factors, as set out in s 8(3) and (4).

Extrinsic Evidence

For example, relevant extrinsic evidence might include statements made by the deceased to family members or friends expressing their intentions, or actions such as verbally instructing their solicitor about their estate plans. In the deceased’s case, the evidence included a conversation with his housekeeper, where he stated, ‘I have finalised my Will,’ indicating the Note reflected the testamentary intentions as his final testament.

In Wheatley v Peek [2025] NSWCA 265, the defendant/appellant challenged the third requirement. Ward P, with Leeming and Ball JJA concurring, emphasised this point in Kemp v Findlay [2025] NSWCA 46:

” [3] The key question is whether the deceased intended the 2019 Will, by itself, to have immediate effect as a Will (see NSW Trustee and Guardian v Halsey; Estate of Von Skala [2012] NSWSC 872 at [15] by White J).

In particular:

(i)   The deceased wrote the Note with finality and formality and was not ambiguous:

The key issue in this appeal is whether the deceased intended the Note to serve as his Will under s 8(2)(a) of the Succession Act, or if, as Richmond J concluded, the Note was merely a draft Will or a set of instructions that was meant to be, but ultimately was not, sent to the deceased’s solicitor, Mr. Dawson.

Ultimately, in Peek v Wheatley [2025] NSWSC 554, Richmond J was not persuaded that the Note fulfilled the third requirement and scrutinised whether the deceased intended the Note alone to serve as an immediate Will, considering all witness evidence. Concerning the deceased’s nephew, His Honour determined that the evidence was not relevant to this specific issue.

Payne JA reached a different conclusion from Richmond J on this question. The deceased intended the Note, without more on his part, to have “present operation as a Will”. In reaching this conclusion, His Honour was influenced by the precise terms of the Note.

Richmond J raised serious concerns about Mr Dawson’s testimony, noting that he represented the defendant/appellant in the case while also serving as a witness with a financial interest in the outcome. This dual role presents a conflict of interest between his personal stakes and his obligations to the Court. Such a situation underscores a key ethical dilemma in legal practice: Mr Dawson’s involvement in both capacities compromises the impartiality that witnesses are expected to maintain.

Several cases address such conflicts, notably NSW Trustee & Guardian v Halsey; Estate of von Skala [2012] NSWSC 872, where the court highlighted the importance of impartiality in legal proceedings. Ethical conflicts like this can undermine the credibility of evidence, as personal interests may unintentionally bias testimony.

Additionally, the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 outline guidelines for avoiding such conflicts. Legal practitioners should remain vigilant regarding potential conflicts of interest and adhere to professional conduct rules to ensure fairness and justice. Practitioners must avoid situations where their interests conflict with their professional duties, maintaining impartiality and fairness at all times.

The deceased authored the Note with a sense of finality and formality. The prominent heading, “Last Will of Colin L Peek,” clearly indicates that the deceased intended the Note to serve as his Will without further clarification.

As conceded in oral submissions by Senior Counsel for the plaintiff, the heading and text of the Note are not ambiguous. :

BELL CJ: What’s ambiguous about the document?
CHAPPLE: The document itself is not ambiguous. 

(ii)   The Note was dated and signed;

The Note is dated. As Campbell J held in Re the Estate of Kiepas (dec’d), Twemlow v Kiepas [2004] NSWSC 452 at [31]

“D[d]ating is often an indication that the document is in its final form and intended to be operative”.

Dating the Note supports the conclusion that it was in its final form with the deceased intending the Note to act as his Will ‘without more’.

The abbreviated initials ‘CP’ were at the end of the Note. Richmond J found that they met the criteria for a signature under s 6 of the Succession Act. Payne JA disagreed, however, that the deceased’s affixing his signature to the Note was “equally consistent” with the document being a mere statement of testamentary intentions.

The deceased’s signature on the Note was plainly a mark of assent, making it more than simply a note to himself, and provides a further indication that the Note is in its final form and that it was intended by the deceased to operate as his Will ‘without more’.

Estate of Kiepas (dec’d); Twemlow v Kiepas [2004] NSWSC 452

(iii) The Note sufficiently dealt with the entirety of the deceased’s estate:

An essential factor in Richmond J’s determination that the Note was a draft Will or a set of instructions was his Honour’s finding that there was a lacuna (an unfilled space; a gap) concerning essential assets held by the deceased leading Richmond J to conclude that the Note was only a draft Will, to be finalised by Mr Dawson, by completing the missing details. Payne JA, however, came to a different conclusion.

Payne JA considered the Note sufficient to cover the entire deceased’s estate. The Note:

• appointed the defendant/appellant as executor;
• directed them to pay funeral expenses from the estate;
• made specific gifts of various motor vehicles;
• outlined the passing of the deceased’s house and its contents to the defendant/appellant, and;
• allocated the deceased’s accounts as specific gifts to others with residual adjustments.

Payne JA observed that, unlike Richmond J’s finding, the Note addressed critical assets, such as the deceased’s house, and included instructions for the forgiveness of a significant loan, among other matters.

Payne JA concluded that the deceased, an experienced businessman, comprehensively addressed all of his assets in the Note. The emphatic last sentence, “No one else gets a thing,” further supported the view that the Note was more than a mere draft.

Richmond J found that, according to the affidavit of the executor sworn 2 February 2023, the gross value of the deceased’s estate was approximately $13,643,074.14. It comprised roughly $6.2 million in cash in an ANZ bank account, $5.6 million in shares in Peek Property Pty Ltd, Peek Investment Trust, and CL Peek Pty Ltd, a $1.4 million loan to A and J Jones, and four luxury cars valued at $450,000 in total.

The liabilities of the estate, known to the executor at the time, included small amounts owed to contractors totalling around $18,500. After deducting liabilities, the estate’s net value was approximately $13,623,327.14.

Richmond J maintained that the Note did not account for the deceased’s interests in Peek Property Pty Ltd, Peek Investment Trust, and CL Peek Pty Ltd. The deceased’s apparent oversight of these assets, especially given his regular dealings with them, suggested to Richmond J an intention to forward the draft to Mr Dawson for preparation of the final document.

Richmond J asserted that several assets, including shares valued at $5.6 million, were omitted. However, Payne JA disagreed, noting that the Bella Vista Waters property, explicitly gifted in the Note, was at the core of the deceased’s assets, with its value aligning with the evaluations of the shares and the trust.

During a court exchange, Senior Counsel for the plaintiff/respondent acknowledged the house’s inclusion and conceded that references in the Note might implicitly cover other significant assets, albeit not specifically listed.

The deceased’s understanding that he had dealt with his assets in the Note was clear from its final emphatic sentence. Payne JA found this understanding supported the view that the deceased intended for the Note to operate as his Will without further steps.

Payne JA concluded that the terms of the Note weighed heavily in favour of recognising it as the deceased’s operative Will without requiring additional formalities.

The context of the creation of the Note was the deceased’s near-death experience immediately before its creation:

Richmond J found the context to be of no particular assistance one way or the other. Payne JA disagreed.

The deceased drafted the Note following a medical emergency, with failure to send the Note to others consistent with a demonstrated reluctance to engage in discussions about his Will. Mr Dawson often ‘badgered’ the deceased to make a Will, but the deceased “continued to avoid the topic”.

The deceased’s near-death experience in the early hours of 4 August 2022 was obviously the catalyst that prompted the making of the Note. In the early hours of 4 August, the defendant/appellant strongly urged the deceased to make a Will. The context of this conversation was far more immediate and dramatic than the conversation between the deceased and Mr Dawson on 21 July 2022. The central question, given this context, remains the deceased’s intentions about the Note.

The principal inference Payne JA drew is that whatever the deceased’s intentions on 21 July 2022 about giving instructions to Mr Dawson to make a Will, the near-death experience on 3-4 August 2022 profoundly affected the deceased. The evidence did not persuade Payne JA that on 21 July 2022, the deceased intended to see his solicitor, Mr Dawson, for the purpose of making his Will, was particularly significant.

Richmond J inferred that if the deceased had changed his mind after 21 July 2022 about giving Mr Dawson instructions, he would have told Mr Dawson, but did not. His Honour viewed, the deceased’s lack of communication with Mr Dawson about the creation of the Note is at least equally consistent with the deceased having determined that, following the trauma of 3-4 August 2022, he had written out his testamentary intentions and that he intended the Note, without more on his part, to have present operation as a will.

The extrinsic evidence supported the conclusion that the deceased intended the Note to operate as his Will, without more. In particular, the following pieces of evidence are noteworthy:

First, the deceased told his housekeeper, Ms Jones, “I have finalised my Will,” which was an unequivocal representation that the Note was in its final form: a clear and unambiguous, statement using the past tense to indicate finality, implying nothing more was needed to complete the Will. If the deceased only intended to finalise a draft to send to Mr Dawson, this definite statement would be puzzling. Instead, the candid nature of his conversations with Ms Jones suggests he truly believed the Note was his final Will.

Second, in conversation with the executor named in the Note, on 13 August 2022, the deceased indicated that the executor would soon receive a substantial amount of money, reflecting his intention for the Note to act as his Will. During this conversation, the deceased strongly suggested that the executor not purchase a smaller apartment, as he would soon have funds for a larger one. Phrases like “You won the lottery the day you met me” and “You can buy a three-bedroom” strongly imply the executor would benefit significantly from the deceased’s estate.

Richmond J contended that the deceased’s failure to inform Mr Dawson or the defendant/appellant about the Note’s existence was telling. However, Payne JA noted that a Will’s validity does not require publication. The deceased’s discomfort with discussing his mortality, even after a near-death experience, supports this conclusion. If he did not consider the Note his Will by 13 August 2022, there would have been some urgency for him to contact Mr Dawson. The deceased’s knowledge that a valid Will was necessary to ensure the defendant/appellant inherited the bulk of his estate further supports the conclusion that the deceased intended the Note to serve as his Will.

Payne JA concluded that the extrinsic evidence strongly supported the view that the deceased intended the Note on his iPhone to operate as his Will without any further action from him.

A key factor was Ms Jones’s evidence: the deceased told her he had “finalised” his Will. The Court considered this a plain, past-tense assertion that, in the deceased’s mind, the Note was his completed will—not a draft to be sent to his solicitor, Mr Dawson. Given the deceased’s candour with Ms Jones, the Court found this statement compelling.

The second significant piece of evidence came from the deceased’s conversation with the defendant/appellant on 13 August 2022. The deceased urged him not to buy a small apartment because he would shortly have the resources to purchase a much larger one, saying things like “You won the lottery the day you met me.” The Court inferred that the deceased was alluding to the defendant/appellant inheriting the bulk of his estate, which only made sense if the deceased believed he already had a valid Will in place.

While Richmond J found it surprising that the deceased did not tell Mr Dawson or the defendant/appellant about his Will, Payne JA disagreed. Publication isn’t necessary under s 8 of the Succession Act 2006 (NSW), and evidence indicated that the deceased struggled to talk about his mortality. Significantly, if he did not intend for the Note to serve as his Will, he needed to formalise a proper Will quickly to avoid intestacy, which could have diverted his estate fromthe defendant/appellant —something the deceased clearly wished to prevent.

A final supporting factor was the deceased’s instruction in the Note that “P Dawson [is] to get 5% for handling of CP will—no fuck ups”. Payne JA saw this not as a directive to draft a Will but as a reference to managing the estate according to the Will already outlined in the Note.

Conclusion

Payne JA determined that the deceased intended the Note on his iPhone to serve as his Will immediately and that it met the requirements for an informal Will under s 8. Orders were issued to grant probate of the Note as his final will and to appoint the defendant/appellant as executor, with his costs covered by the estate.

MITCHELMORE JA: I agree with Payne JA.

Russell Leslie Dunham (the deceased) died on 18 January 2022 without a Will. Divorced and without children at the time of his death. Narelle Gaye Lindsey ( the plaintiff) claimed to be the deceased’s unregistered domestic partner when he died and therefore seeks a grant of letters of administration over his estate.

Amanda Gaye Dean (the caveator) opposes the grant, submitting that:

(a) under r 8.06(2)(b) of the Supreme Court (Administration and Probate) Rules 2023 (Vic), the plaintiff does not have the status or relationship needed to apply for letters of administration; and

(b) under r 8.06(2)(c), the caveator herself has a superior claim.

In a summons filed on 24 June 2025, the plaintiff seeks, among other relief,

• summary judgment under s 63 of the Civil Procedure Act 2010 (Vic) and/or
• orders under the Court’s inherent jurisdiction to dismiss the caveat on the basis that:

(i) the caveator lacks standing; and

(ii) the caveator’s Grounds do not disclose a case warranting further inquiry.

Summary Judgment 

The plaintiff seeks summary judgment under s 63 of the Civil Procedure Act 2010 (Vic) (CPA), arguing that the caveator’s objection has no real prospect of success because she lacks standing and cannot demonstrate a prima facie basis for her caveat. The CPA and the Supreme Court (General Civil Procedure) Rules 2025 (Vic) (SC(GCP) Rules) unquestionably apply to probate disputes, including applications for summary judgment. 

The Civil Procedure Act 2010 (Vic) is designed to transform civil litigation by ensuring disputes are resolved fairly, efficiently, promptly, and at proportionate cost. It shifts the focus away from technical procedure and toward resolving the real issues in dispute, promoting cooperation and modern, outcomes-focused litigation practices.

Core Aims of the CPA

Fair, timely, and cost-effective justice: Avoiding unnecessary delay and expense. Proportionality: Ensuring that effort, cost, and process match the significance and complexity of the dispute. Cooperation and honesty: Parties and lawyers must work together constructively and act with integrity. Issue-focused litigation: Emphasis on resolving substantive disagreements rather than procedural gamesmanship. Appropriate dispute resolution: Encouraging mediation and other non-court processes where suitable.

How the CPA Operates

Overarching obligations: Parties must act honestly, have a proper factual and legal foundation for claims, disclose relevant documents, and move matters forward without delay.

Active case management: Courts adopt flexible procedures and play an interventionist role to keep cases on track and aligned with the Act’s objectives.

Enforcement through sanctions: Non-compliance can attract costs penalties, adverse orders, or even dismissal to ensure the overarching purpose is upheld.

Overall, the CPA fosters a cooperative, proportionate, and resolution-driven approach to civil proceedings in Victoria, ensuring the system facilitates justice rather than obstructing it.

s 63 test: “real” vs “fanciful” prospects

Section 63 asks whether the claim has a genuine—not merely fanciful—chance of succeeding. If satisfied with this, the Court may grant summary judgment, but authorities emphasise restraint. Because summary judgment cuts off a party’s opportunity to advance their case, courts must act consistently with the overarching purpose of the CPA and only intervene where it is clear there is no genuine issue requiring a trial.

The plaintiff’s affidavit, filed in support of the application for the grant of letters of administration, exhibits the deceased’s death certificate and an inventory of assets and liabilities showing a total estate valued at approximately $450,000. Additionally the plaintiff deposes to being the deceased’s ‘unregistered domestic partner’ from 9 November 2019 until his passing on 18 January 2022 including:

“I lived with the deceased continuously for a period of two years and two months before his death, on a genuine domestic basis.  The deceased and I lived in a happy and loving relationship that was in every way equivalent to that of a married husband and wife.”

The plaintiff submits that, despite searches, they cannot locate any Will for the deceased, and that, as the deceased’s domestic partner, they are entitled to administer the deceased’s estate. They are also the sole beneficiary of the deceased’s intestate estate.

The s 64 discretion: even where no real prospect exists. Even if a claim appears to have no real prospect of success, s 64 preserves the Court’s discretion to refuse summary judgment where:

(a) the interests of justice weigh against it, or

(b) the dispute is of a type that requires a full hearing on the merits.

Procedural framework under Order 22

O 22 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) (‘SC (GCP) Rules’ allows a respondent to resist summary judgment “by affidavit or otherwise”, leaving open the possibility—albeit exceptional—that a caveator’s filed grounds and particulars alone may be sufficient.

In Re Munro [2018] VSC 747 Derham AsJ suggested that a caveator support their particulars with evidence, but the procedural rules do not strictly require affidavits in every case. In the present matter, the caveator relied solely on the written Grounds of Objection and filed no affidavits. Although earlier directions recorded that the caveator had no leave to file further material, those orders did not preclude filing affidavits otherwise permitted under the SC(GCP) Rules.

Does the Caveator Have Standing?

Section 58 of the Administration and Probate Act 1958 (Vic) (APA) permits a person to lodge a caveat to prevent a grant of representation. To do so, the caveator must have standing and comply with the Probate Rules. As the deceased died intestate the caveator may frame her objections under r 8.06(2), providing particulars that both establish their standing and disclose a prima facie basis for the objection.

Standing requires the caveator to show a sufficient interest in the proceeding—namely, that their rights may be affected by the grant. In practical terms, the caveator demonstrates that they stand to benefit if the Court refuses the grant; typically, where the caveator claims a beneficial interest under an earlier Will or the intestacy provisions.

Under intestacy, a caveator whose relationship was not recognised by the deceased has no standing, as a defeated grant provides the caveator with no benefit. A caveator cannot claim standing merely because they want to act as a “whistleblower”. Or expose wrongdoing. As Windeyer J observed in Poulos v Pellicer In the Estate of Culina [2004] NSWSC 504,

“Probate litigation is an interesting litigation. It is not to be undertaken or interfered with by outside busybodies.”

The plaintiff argues that the court should grant summary judgment because the caveator has no real prospect of proving standing. The plaintiff submits that statements in the Caveator’s Grounds indicating that the caveator lived with the deceased only “until 2021” and references to herself as the deceased’s “domestic partner or former domestic partner” amount to concessions that the caveator cannot meet the APA definition of an unregistered domestic partner.

Whether someone is an unregistered domestic partner—and therefore potentially a partner for intestacy purposes—requires consideration of both the APA and the Relationships Act 2008 (Vic) (RA). Under the APA, if an intestate dies without issue but leaves a “partner”, that partner receives the whole residuary estate. A “partner” includes a “domestic partner”, which may be either registered or unregistered. 

An unregistered domestic partner must have been:

(a) living with the deceased as a couple on a genuine domestic basis at the time of death; and

(b) either continuously living with them for at least two years immediately before death, or sharing a child under 18.

Section 3(3) also requires the Court to consider all circumstances of the relationship, including the factors listed in s 35(2) of the Relationships Act 2008 (Vic) (RA).

As the party resisting summary judgment, the caveator must set out a factual basis supporting her alleged standing. The plaintiff argues that the caveator’s own statements show they were not living with the deceased for two years immediately before death, nor living as a couple at the time of death. Further, the caveator identifies no facts that could satisfy the criteria under the RA.

Caveator’s Standing

The caveator bears the burden of showing facts capable of proving that they remained the deceased’s domestic partner until their death. As the caveator did not meet that burden, the plaintiff submitted that the caveator has no interest in the estate and no real prospect of establishing standing.

The caveator’s submissions reiterate that they lived with the deceased for “over 30 years” from 1988, also asserting, without elaboration, that they are better suited to act as administrator. The caveators counsel clarified in oral argument that their client maintains they were the deceased’s domestic partner at the date of death.

However, the plaintiff’s evidence shows the caveator was not living with the deceased during the year before he died. The caveator does not identify any facts that suggest the domestic relationship continued beyond that point. Their Grounds rely on circumstances predating departure from the home. Much of the submissions focus instead on disputing the plaintiff’s relationship with the deceased, but this does not establish the caveator’s standing. Without demonstrating their interest, the caveator is little more than an “outside busybody”.

In oral argument, counsel suggested the caveator has standing because they could bring a Part IV family provision claim. However, citing no authority to support this as a basis for standing. The plaintiff accepts that a former de facto partner may have a Part IV claim, but notes that courts have rarely treated such a contingent interest as sufficient to justify a caveat.

McMillan J in Mataska v Browne [2019] VSC 62 observed that authorities differ, but a mere potential Part IV claim—without more—is generally insufficient; only in cases where there is a reasonable prospect of success may such an interest confer standing. Here, the caveator provides no particulars of any such claim. Even if she has a contingent Part IV interest, this alone is inadequate.

For these reasons, Goulden AsJ is satisfied that the caveator has no real prospect of establishing standing, and dismisses the caveat on that basis alone. However, if that conclusion were incorrect, the caveat would still be rejected for the separate reason that the caveator has failed to establish any prima facie case.

Caveator’s Prima Facie Case

The plaintiff seeks to have the caveat “struck out” under s 63 of the Civil Procedure Act 2010 (CPA)—in effect, asking the Court to dismiss it. She argues that the caveator’s Grounds do not disclose even a prima facie case. Put differently, the plaintiff contends that because the caveator cannot demonstrate a prima facie basis for her objection, her challenge to the grant has no real prospect of success. The caveator maintains that the Grounds disclose a case warranting investigation.

A caveator will have a prima facie case if there is “something to go on”—a case meriting inquiry. The threshold is not high. In assessing this question, the Court assumes the truth of the particulars pleaded. Speculation alone is insufficient, but the caveator need not prove their allegations or show that their version of events is the most persuasive—that task is reserved for trial. Further, the particulars must be considered collectively, not in isolation, with the Court examining the “overall narrative”.

The plaintiff argues that the Caveator’s Grounds fail to meet this standard. The affidavits’ particulars (provide the concrete details that give clarity and definition to the overarching assertions) amount to little more than bare assertions that the plaintiff “was not in a relationship with the deceased” or, if she was, the relationship lasted less than two years.

The particulars do not substantiate these core assertions. Even if accepted as accurate, the caveator’s statements of living with the deceased for 30 years do not lead to the necessary inference that the plaintiff could not also have been in a relationship with the deceased (whether overlapping or later), that the plaintiff did not live with him for the required two years, or that the caveator has a superior entitlement to administration.

The Grounds also contain confusing references to the caveator being both the deceased’s current and former domestic partner. Goulden AsJ concludes that the particulars do not establish a basis for investigating either:

(a) the allegation that the plaintiff does not hold the status in which she seeks administration (r 8.06(2)(b)); or

(b) the claim that the caveator has a better right (r 8.06(2)(c)).

The caveator bears the burden of showing cause against summary judgment. Filing evidence under r 22.05 of the SC(GCP) Rules to show cause “otherwise”, needing to file sufficiently particularised Grounds putting the plaintiff on notice of the case to meet. That required concrete factual detail about the alleged relationships—particularly any matters inconsistent with the plaintiff’s evidence filed in response to requisitions.

It is not for the plaintiff to prove the caveator’s assertions wrong. Nor can the caveator rely on an alleged text message from the plaintiff to the caveator’s daughter when it appears nowhere in the particulars and is not in evidence. The caveator had ample opportunity to provide more detailed particulars or supporting evidence, but elected not to do so.

For these reasons, Goulden AsJ dismissed the caveator’s objection as lacking any reasonable prospect of success. The plaintiff was unsuccessful in persuading the Court that this matter should nevertheless proceed to trial under s 64 of the CPA. Neither party submitted that it should.

Disposition

1. The caveat is dismissed.
2. The caveator must pay the plaintiff’s costs of and incidental to the summary judgment application, to be taxed if not agreed.

In New South Wales, when someone dies, and their original Will cannot be found, the law starts with a simple—but powerful—assumption: the testator must have destroyed the Will with the intention of revoking it. This “presumption of revocation” can dramatically alter the outcome of an estate, and whether the court accepts the presumption depends on the surrounding circumstances—where the Will was kept, how carefully it was stored, how detailed its terms were, and any evidence about the testator’s attitude toward the document.

Significantly, this presumption can be challenged. Executors may present evidence showing the Will was lost or accidentally destroyed and that the deceased would not have intended to revoke it. In such cases, the Supreme Court has, on occasion, accepted a copy of the Will and granted probate. But if the court is not satisfied that the presumption has been rebutted, the estate Will be distributed under the intestacy rules instead.

A Will is only revoked by deliberate destruction with intent. Accidental damage—even significant damage—does not automatically cancel a Will. Section 11 of the Succession Act 2006 (NSW) makes this clear, though a damaged Will (particularly one with torn or illegible signatures) may still trigger the presumption that the testator intended to revoke it. Executors seeking probate in this scenario must bring convincing evidence to the contrary.

The law also takes tampering seriously. Under s 135 of the Crimes Act 1900 (NSW), it is a criminal offence to steal, destroy, alter, or conceal a Will—whether before or after death—with penalties of up to seven years’ imprisonment

The New South Wales Court of Appeal has delivered a significant judgment on the presumption of revocation, the treatment of lost wills, and the operation of s 8 of the Succession Act 2006 (NSW) in relation to an unwitnessed codicil. Jaksic-Repac v Dundjerski [2025] NSWCA 256 provides a careful and practical roadmap for probate practitioners dealing with missing original Wills, complex solicitor histories, and allegations of intestacy.

Background

Mimi Milka Berger died in November 2022, leaving a substantial estate valued at approximately $24 million, primarily comprising real property, cash, and an art collection. Divorced and without children, the deceased’s closest relatives were nieces and nephews.

Under a 2015 Will, her grandnephew, Dusko Dundjerski (the Respondent), received her art collection and shared the residue with his mother, Bozica. Both were appointed executors.

In June 2022, whilst hospitalised, the deceased signed an unwitnessed document headed “Codicil” gifting her Surry Hills property to close neighbours, the Jankovics. 

“1.  I leave my real Estate located at 113A Commonwealth Street, Surry Hills, NSW, to Srdja and Gordana Jankovic of XX XXXX Road, Rockdale, NSW.

2.   I hereby confirm and republish my Last Will kept by Marc O’Brien, of Redmond Hale Simpson solicitors, in all respects other than those mentioned here.

IN WITNESS WHEREOF, I have signed my name on this 14th day of JUNE 2022.” 

The deceased expressly declined to have it witnessed by hospital staff.

Lost Will

When the Deceased died, her family could not find the original Will. Neither the Deceased nor any of her lawyers recalled seeing the Original after the execution of the Will. The Respondent applied for probate of a copy of the Will and the codicil. Branka Jaksic-Repac (the Appellant), another niece, opposed the grant, arguing that the deceased died intestate because the deceased had destroyed the original with the intent to revoke.

The Primary Decision

In The Estate of Mimi Milka Jaksic (Berger) [2025] NSWSC 253, Hammerschlag CJ in Eq admitted both the copy Will and the codicil to probate, holding that:

1. The presumption of revocation did not arise because there was no proof that the Will had ever been returned to, or held by, the deceased after execution.
2. Even if it had, the deceased’s repeated statements and conduct indicating she believed her Will remained current would have rebutted the presumption.
3. The codicil was valid under s 8 as an intended alteration to the Will despite the lack of witnesses.

On appeal, the Appellant sought to have both probate orders set aside, a declaration that the Deceased died intestate, and a grant of letters of administration of the intestate Estate.

Issues on Appeal

The Court of Appeal considered three central questions:

1. Was the presumption of revocation engaged?
2. If so, was it rebutted?
3. Was the codicil properly admitted under s 8 Succession Act?

1. Presumption of Revocation Not Engaged

The Court emphasised the fundamental requirement: the original must be “last traced” to the deceased. Here, the evidence showed the opposite.

Over several years, the deceased repeatedly:

• contacted former solicitors seeking copies,
• stated to solicitors and relatives that her lawyers held the original Will,
• and behaved entirely consistently with never having the original in her possession after execution.

Firm-practice evidence from the deceased’s former law firm was too uncertain to support the presumption. The Appellant bore the burden of showing the original was last with the deceased and failed to do so.

Result: No presumption. No intestacy.

2. The Deceased Would Have Rebutted the Presumption in Any Event

Even if the presumption did arise, the Court held it was “well and truly rebutted”. Key evidence included:

• The deceased mailed a copy of the Will to Bozica in 2017.
• Telling Dusko in 2018 to “make more copies and keep them safe”.
• Repeated references to having a “current Will” held by solicitor Marc O’Brien.
• A July 2022 exchange with a new solicitor, just months before death, in which the deceased confirmed:
  • She had a valid, current Will, and
  • her solicitor held it.

The codicil’s own language also treated the 2015 Will as existing and operative, which made no sense if the deceased had intentionally revoked it.

The Court rejected speculation that the deceased might have destroyed the original, finding it wholly inconsistent with the Deceased’s own statements and conduct.

3. The Codicil Under s 8

The Court agreed with the primary judge that the codicil:

• met the requirements of s 8(2) as an intended alteration to the Will, and
• would have revived the Will even if it had been revoked (which it had not).

Between beneficiaries, the codicil applied only to the Surry Hills property. It bore no relevance to the question of intestacy following admission of the Will to probate.

Significance

This decision is a strong reaffirmation of two key principles in NSW succession law:

1. The presumption of revocation is narrow and evidence-dependent.

Unless traced to the testator, mere absence of the original Will is insufficient.

2. Section 8 remains a flexible remedial provision.

An unwitnessed codicil Will be admitted where intention is clear, and can even revive a revoked Will.

The case is also a practical illustration of how testator–solicitor interactions—requests for copies, statements about custody of originals, and treatment of testamentary documents—can decisively shape probate outcomes.

Takeaways for Practitioners

• Always confirm custody of the original Will in retainer correspondence; absence of clear records invites litigation.
• Testator statements about the existence and location of a Will are robust rebuttal evidence.
• The loss of an original is not enough to trigger the presumption; tracing evidence is vital.
• Section 8 applications continue to play an essential role where informal testamentary acts exist.
• Codicils (even unwitnessed ones) can significantly alter outcomes when properly validated.

When parties navigate the Queensland litigation process, they have a practical tool at their disposal. This tool is Rule 366 of the Uniform Civil Procedure Rules (UCPR). This tool is often overlooked. Rule 366 is found in Chapter 10 (Court supervision), Part 3 (Directions). It empowers the Court to manage proceedings. This rule also helps actively keep cases moving toward efficient resolution.

Rule 366 is fundamental. It defines how the Court can issue directions about the conduct of a proceeding. This can be done on its own initiative or at a party’s. These applications can be made at any time. They can be a standalone or part of a broader relief application. The rule also extends to matters in the Court of Appeal, underscoring its broad procedural reach.

The philosophy behind Rule 366 is consistent with the overarching purpose of the UCPR: avoiding unnecessary delay, cost, and technicality. Court-ordered directions are a key mechanism for ensuring proceedings stay on track.

Rule 366 operates alongside several complementary provisions. Rule 367 gives the Court broad discretion to make any orders or directions it considers appropriate. This applies even if they cut across other procedural rules. Such discretion is exercised in the interests of justice. Chapter 11, Part 8 provides rules including rule 447 on applications to the Court. It governs situations where correspondence replace affidavit evidence for applications made under this part.

Together, these rules form a critical procedural framework that supports judicial efficiency and practicality in Queensland’s civil justice system.

The case highlights the risks of poorly drafted wills. It also shows the dangers of unethical use of court processes. This reminds professionals to act transparently and ethically.

A Family, Two Wills, and a Very Complicated Property Arrangement

Guy Austin Gibbons is the applicant. He is a solicitor and the executor of the estate of the deceased. He has applied to the Court for directions on the distribution of the estate.

The deceased was married to Margaret Ann Herbert. He had two children from an earlier relationship—Tania (now Moore) and Iain Herbert. Margaret also had five children from a prior relationship: Gale, Paula, Wendy, Peter, and Christopher. Both sons predeceased her.

The deceased died on 13 September 2012. They left a Will dated 29 January 2007. This Will appointed the Senior Partner of Bennett Carroll Solicitors as executor. At the time of Keith’s death, the applicant held that position. The applicant then obtained probate on 6 December 2012.

At the time the deceased made the Will, he owned a property at Jimboomba. Nonetheless, the exact nature of his ownership is uncertain. Counsel advising the applicant assumed the deceased was the sole registered proprietor. There was no evidence of any legal or fair interest held by Margaret.

Under his Will, the deceased made provision for Margaret, his two children, and—albeit indirectly—Margaret’s children.

The key problem? Keith’s Will contained ambiguous and inconsistent clauses dealing with

“the property I may own and normally reside in at the time of my death”.

The Will includes significant drafting problems. Clause 4 assumes the deceased owns a property he is living in at his death. Trustees will hold this property on trust. They will allow Margaret to live there under clause 5.

Clause 6 then assumes the trustees can sell that property and buy another for Margaret to occupy under clause 5. Yet, the Will gives no obvious power to sell, except under clause 7. It is unclear how clause six operates. Under clauses 4 and 5, it is not realistic that the deceased sell the property against Margaret’s wishes. This is true while she still lived there. If Margaret chooses not to stay, it would trigger Clause 7. The sale proceeds would be paid to Tania and Iain. There would be no funds left for a replacement property.

Clause 6 also refers to the

“proceeds of sale of this property.”

It additionally mentions

“any substituted property purchased as a result of this subclause.”

Nonetheless, there is no “subclause”. Clause six itself confers no power to sell or buy replacement property. Moreover, clause 7 refers to selling “my share”, even though Keith owned his Jimboomba property outright. The Will assumed Keith later acquire property jointly with Margaret. Nevertheless, the drafting does not align with that scenario.

Structure of the Will

Clause 3 gives a small charitable gift. It then divides the residue: 50% is given jointly to Tania and Iain. The other 50% is designated to Margaret. There is a substitution for Margaret’s children if she predeceased Keith.

After selling the Jimboomba property, Keith did not buy another freehold home. Instead, he and Margaret acquired a licence to live in a retirement village unit, funded by a $335,000 “incoming contribution”.

Estate Assets and Joint Property

On Keith’s death, the executor (Mr Gibbons) identified a small inheritance from Keith’s father’s estate. There were also QSuper funds, which were later the topic of a deed with Margaret and the children. Additionally, there was the residential licence held between Keith and Margaret as tenants in common. Other jointly held assets (vehicle, shares, and a joint bank account) passed to Margaret by survivorship. The MLC superannuation also passed to Margaret under a binding nomination.

Margaret later made her own Will. She appointed a new executor. She left her estate equally to her three daughters and to Peter’s children. She expressly noted she had not provided for Tania and Iain. She expected them to get Keith’s half-share of the retirement village exit entitlement on her death.

By the time the deceased died, he no longer owned the family home. Instead, he and Margaret had purchased a retirement village licence in their joint names—a structure they had never contemplated.Exit Entitlement and Margaret’s Assumptions

Exit Entitlement and Margaret’s Assumptions

On Margaret’s death, the exit entitlement under the licence was repayable, with half belonging to Keith’s estate. Clause 5 of Margaret’s Will shows she believed Keith’s half would pass to Tania and Iain. This would occur under clause 7 of Keith’s Will. That understanding was mistaken. The deceased and Margaret jointly held the licence. It passed in part to residue. Margaret’s children ultimately get 75% of the estate. 50% through Margaret’s direct ownership plus half of the deceased’s 50% via residue under his Will and then Margaret’s Will.

The deceased thought his “property” included the residential licence, and Margaret acted consistently with that view. With her children now benefiting from the drafting mistake.

Effect on Tania and Iain

Tania and Iain’s only entitlement is through residue. Much of that has been diminished by legal costs. This leaves each with roughly $24,000. The applicant, nevertheless, must follow the deceased’s Will strictly as written.

The applicant sought counsel’s advice. They wanted to know if the deceased’s interest in the exit entitlement was “property [he] may own.” They questioned whether he would live in it normally at the time of his death. This was to understand the meaning of clause 4. Counsel concluded that the deceased’s share of the exit entitlement was part of the residue under clause 8. It was not the specific gift to Tania and Iain under clause 7. Tania and Iain ultimately accepted that conclusion.

In Queensland, moving into a retirement village doesn’t usually involve buying the unit itself. Instead, residents enter into arrangements including a licence to occupy or a long-term lease. These give them the right to live in a particular unit. At the same time, ownership remains with the village operator. These arrangements are regulated by the Retirement Villages Act 1999 (Qld). That key disclosure documents are given to residents well before any contract is signed. Prospective residents are encouraged to obtain independent advice.

How a licence to occupy works

• Right to live in the unit – The licence gives a resident the legal right to occupy a specific unit. Yet, it does not offer ownership of the property.
• Operator keeps ownership – The village operator continues to own both the unit and the land.
• Contract-based arrangement – a resident’s rights, responsibilities, fees, and village rules are all set out in a formal residence contract.
• Entry and ongoing fees – Most agreements involve an upfront entry payment. They also include recurring charges for services, maintenance, and village facilities.
• Exit entitlement – When a resident leaves, they are typically refunded of part of the entry fee. This refund depends on the contract terms and any exit fees.

After the deceased’s death, the applicant served as the estate’s executor. Years later, after Margaret’s death, a dispute emerged about the distribution of the deceased’s exit entitlement from the retirement village.

When someone dies, their named executor carries out the Will. The executor administers the estate according to the Succession Act 1981(Qld). Executors hold significant authority managing an estate, but equal obligations. Beneficiaries have a right to be informed about the estate’s administration. They should know about anything affecting the timing or value of their inheritance.

At the heart of an executor’s role is a fiduciary duty to the estate. Executors must prioritise the interests of the estate over their own. They have to manage estate assets responsibly. Executors must keep those assets separate from their personal property. An executor must act honestly and transparently with all parties involved. Executors don’t need to respond to every query from a beneficiary. But need to give meaningful updates including any development altering the beneficiary’s entitlement.

Courts are cautious about interfering with a deceased person’s choice of executor. As confirmed in Budulica v Budulica [2017] QSC 60, removing an executor generally requires evidence of serious mismanagement. Even then, the Court weighs factors. These include whether the executor has remedied earlier mistakes. Another factor is how far the administration has progressed. In short, the role carries both power and accountability. The law expects executors to meet that responsibility with diligence and integrity.

Importantly, notifying the beneficiaries is necessary if the estate becomes involved in litigation. Through a Family Provision Claim or a challenge to the Will’s validity; actions ultimately changing the distribution of the estate.

Ultimately, all parties accepted that Keith’s half-share fell into the residue under clause 8 of the Will. It wasn’t a specific gift to Tania and Iain under clause 7. In other words, the parties resolved the substantive dispute before the court proceedings commenced.

What the Executor Did Next

There was no live controversy about the Will’s construction. Despite this, the applicant insisted. Tania and Iain had to sign an extensive Deed of Release and Indemnity before the distribution of the estate. The deed would have:

• released the applicant from all potential liability,
• protected his law firm (which drafted both Keith’s and Margaret’s wills), and
• protected the executor of Margaret’s estate.

The beneficiaries refused. As a result, the applicant commenced action under Rule 366 of the Uniform Civil Procedure Rules 1999. This rule empowers the Court to give directions in a proceeding. Ordinarily, under s 96(1) of the Trusts Act 1973 an applicant files a written statement of facts. Nevertheless, the applicant did not do this.

The application sought the next orders:

• Distribution Order — that the executor distribute the estate’s only remaining asset. This asset is the exit entitlement payable under a 2008 Residence Contract with Bethany Christian Care. It should be distributed under clause 8 of the deceased’s Will.
• Indemnity Order — indemnifies the executor out of the estate for any liability he incurs in implementing that distribution.
• Costs Order — Tania (Tania Nicole Herbert/Moore) and Iain Andrew Herbert must personally pay the costs of the application. This payment should be on an indemnity basis. This is not because he needed directions about distribution (he didn’t). It is because he wanted the Court to compel or justify the obtaining of indemnities.

Nonetheless, neither Tania nor Iain objected on procedural grounds. The Court plainly has jurisdiction to issue directions to the applicant.

The Court’s View: “This Was Misconceived and Unreasonable”

Davis J was blunt: there was no active dispute requiring judicial determination when the executor made the application. The applicant had attempted to gain a collateral advantage. They used a directions application to pressure the beneficiaries into signing an all-encompassing indemnity. This was not a proper step in administering the estate.

The applicant’s conduct was “unreasonable” and justified costs on an indemnity basis against him. His Honour dismissed the application and ordered the applicant:

• is to pay Tania and Iain’s costs on an indemnity basis.
• is not to be indemnified from the estate for his own legal costs. He must pay for the expenses to the beneficiaries.

In effect, the applicant was made personally financially responsible—an outcome courts reserve for serious missteps.

Why This Case Matters

1. Ambiguous wills cause real-world problems
   Keith’s solicitor Will drafting was particularly unclear around the property clause. Years later, this fueled confusion, conflict, and cost.

Lesson: Precise drafting of property dispositions is crucial. This includes life interests, substitution clauses, and jointly owned property. It builds trust and confidence in estate planning. Additionally, it reduces future conflicts.

2. Retirement village licences are not “property” in the usual sense. The deceased wanted his children to inherit his home. This intention included any replacement. But a joint licence can defeat testamentary intentions.
   Lesson: Retirement village contracts need explicit treatment in estate planning.
3. Executors can not use court processes to force beneficiaries’ hands.
   Executors only seek judicial directions when genuinely uncertain. They can not use it as leverage for sweeping indemnities.

Lesson: The Court expects trustees and executors to act reasonably. They should also act neutrally. This fosters confidence that estate management is fair. They should seek directions only when genuinely necessary.

4. Solicitors acting as executors face heightened scrutiny
   Here, the same firm had drafted both wills and administered both estates. The Court was sensitive to the appearance of conflict and the effort to obtain broad releases.

Lesson: Professional executors must be transparent and neutral. They should reassure clients and colleagues that their actions are ethical. It is important to stay unbiased and avoid self-protective manoeuvres.

Final Thoughts

This case is a stark reminder. Even apparently simple wills can unravel when intentions are unclear. This happens especially if property is held in structures the Will never anticipated. It also highlights that executor powers are fiduciary, not tactical. A fiduciary can’t use court processes to shield executors or law firms from potential claims.

For lawyers and executors alike, the message is clear:

Draft clearly.

Administer transparently.

Use the courts only when necessary.

In May 2024, the Victorian Supreme Court issued guidelines on the responsible use of artificial intelligence in litigation. These guidelines outline several key principles governing litigants and practitioners use of AI tools.

First, anyone using AI in litigation must understand how these tools work. They must also be aware of their limitations. This understanding helps legal practitioners feel competent and assured in their use.

Secondly, AI-generated material must not mislead other parties or the Court about its actual production. As a general rule, parties should disclose any AI assistance used in preparing their material.

Thirdly, any use of AI remains subject to ordinary professional duties. This includes the duty of candour and compliance with the Civil Procedure Act 2010.

The guidelines also explain how these principles apply in practice. Generative AI tools, like ChatGPT or Google Gemini, do not reason. They are not legal research platforms. Instead, they generate text by predicting probable word sequences. Their output depends heavily on the data provided. It is not inherently reliable. It is more likely to be inaccurate in the context of live litigation.

Signing a court document signifies it has been checked. It is accurate. This underscores the importance of strict adherence to formalities. Such adherence reassures legal professionals of procedural reliability.

The mere fact that the preparation of a document with generative AI assistance does not excuse errors or omissions. Elliott J emphasised a crucial point in Director of Public Prosecutions v GR [2025] VSC 490. Strict adherence to these guidelines is essential. Courts rely on the accuracy of submissions to administer justice effectively.

Unsupervised or careless use of AI risks undermining court processes. It can also delay justice. Thorough verification of AI-produced texts is essential to maintain trust in legal proceedings.

The law presumes that a testator knew the contents once they duly execute a Will with testamentary capacity. It also presumes the testator approved the contents. However, recent guidelines on AI use in litigation highlight the importance of verifying AI-assisted assessments of testamentary capacity. This is especially crucial when suspicious circumstances arise. If such circumstances exist, the burden shifts back to the propounder to affirmatively prove knowledge and approval.

A mere allegation of concern is not enough. The person challenging the Will must establish facts. These facts must give rise to a well-grounded judicial suspicion. They should show that the Will does not truly reflect the testator’s intentions. Only then does the propounder have to dispel that suspicion.

The classic principles from Bailey v Bailey 34 CLR 558 [1924] HCA 21 confirm that:

• The propounder bears the overall burden of proving that the document is the testator’s Will. That burden remains throughout the case and must be assessed based on all the evidence.

• The propounder discharges the initial burden by establishing a prima facie case of due execution and capacity. The onus intensifies only if suspicious circumstances arise.

• The level of proof required from the propounder to dispel suspicion depends on the nature of those circumstances.

Courts are particularly vigilant in situations where someone who benefits under the Will has played a role in preparing it. They are equally vigilant if someone has arranged its execution. Barry v Butlin(1838) 2 Moo PC 480 demonstrates the broad principle. Wintle v Nye[1959] 1 WLR 284 (HL) at 291 also illustrates it. Furthermore, Fulton v Andrew (1875) LR 7 HL 448, 472 showcases it. Any circumstance that reasonably arouses suspicion—whatever its form—requires the propounder to rebut it with convincing evidence.

Suspicion may arise from:

• a beneficiary’s involvement in drafting or organising the Will;
• significant and unexplained changes from longstanding testamentary intentions;
• influence or dependency, especially in cases involving carers or dominant personalities;
• the testator’s physical frailty or cognitive vulnerability;
• abrupt departures from previous Wills favouring someone exercising power over the deceased.

However, there is a connection of suspicion to the preparation, contents, or execution of the Will itself. Events occurring after the testator’s death will rarely provide insight. They seldom indicate whether the testator knew and approved the document during life.

As emphasised in McKinnon v Voigt[1998] 3 VR 543, the suspicion must be more than a bare assertion. It must be a rational, judicially sound concern. This concern should be grounded in the evidence.

Cheryl Green (the plaintiff) applies for probate of a Will dated 27 May 2020. The Will was made by her sister, Sharon Louise Walker (the deceased). Sharon died in April 2023 at the age of 57 from endometrial cancer. The value of the estate is about $952,000 (after a small mortgage). The only substantial asset is a residential unit in Vermont that the deceased developed some years earlier. The deceased lived there with her husband, Kyriacos Toumazou, from 2017, and they married later that year.

The 2020 Will

The Will granted the husband a rent-free right to live in the property for life. This right continues until he leaves or requires full-time care. After that, the executors are to sell the property. The proceeds are to be divided equally between the plaintiff and the deceased’s other two sisters. The husband opposes probate. He alleges the execution of the Will did not comply with s 7 of the Wills Act 1997 (Vic). The plaintiff accepts that formal execution is in issue. If needed, the Court should admit the document as an informal Will under s 9. The defendant withdrew an earlier attempt to have the plaintiff “passed over” as executor. However, the Court ultimately revisits this point.

The plaintiff and her sisters gave evidence. Three longstanding friends of the deceased also contributed. A solicitor from Rose Lawyers, who drafted the Will, provided testimony as well. The Court accepted them all as reliable witnesses. Their evidence provided a coherent picture of the deceased’s circumstances, illness, marriage, and testamentary intentions. The defendant called only a former law clerk and himself. The clerk was credible. However, the Court rejected the defendant’s evidence for reasons set out later in the judgment.

The Will comprises four typed pages from Rose Lawyers. It appears to bear the signatures of the deceased and two witnesses. The witnesses are Sebastian Hong and Madeleine Cook. Their signatures are beneath a standard attestation clause. However, Ms Cook’s signature is missing from the bottom of page 2.

Clause 8 governs the property. It grants the defendant the right to reside rent-free and requires the estate to maintain the property. Then, it directs the executors to sell the property upon termination of the husband’s occupation. The proceeds are to be distributed among the deceased’s three sisters, with a substitutional gift for their adult children.

Clause 9(b) distributes the residuary estate. It allocates 50% to the defendant and 10% to Benwerren. It gives 20% to the sisters. Additionally, 10% goes to the nieces and nephews, and 10% to the deceased’s father. At death, her three sisters and seven nieces and nephews survived the deceased.

The defendant relied on several matters said to raise such suspicions. Before assessing those arguments, the Court turned to the factual findings about how the deceased’s Will was prepared. The execution of the Will also came under scrutiny. These findings broadly aligned with the plaintiff’s submissions and were supported by the documentary record.

The Propounder’s Burden and Presumptions

Santamaria JA explained in Veall v Veall[2015] VSCA 60; 46 VR 123. The person seeking to prove a Will must prove two things.

Firstly, the testator had testamentary capacity.

Secondly, the testator knew and approved the contents of the Will.

Meeting the formal execution requirements in the Wills Act is central to satisfying this burden.

1. Where the document appears rational and properly executed, the presumption is that the testator had capacity.Extra proof of capacity and due execution supports the presumption that the testator knew and approved the Will.

2. Statutory Formalities

Section 7(1) of the Wills Act sets out four mandatory elements for a valid Will. It must be in writing. It must be signed by the testator or someone at the testator’s direction. There must be the testator’s intention that the signature executed the Will. It must be signed or acknowledged in the presence of two witnesses. Those witnesses must attest and sign in the testator’s presence.

3. Presumption of Regularity

If a Will appears on its face to comply with s 7(1), the Court presumes that it meets the formalities. This presumption holds unless clear evidence shows otherwise. The general presumption that official acts are properly performed (omnia praesumuntur rite esse acta). An attestation clause is prima facie evidence that the will maker executed the Will correctly.

4. Was there Due Execution of the Will

The Will here was in writing. It bore the signatures of the deceased and two witnesses under a standard attestation clause. It therefore attracted the presumption of due execution, despite the absence of a witness’s signature on an internal page.

The real issue arose from the defendant’s claim that one witness, Ms Cook, was not present when the deceased signed. Both witnesses recognised their signatures but had no memory of this specific will-signing. The Court emphasised longstanding authority requiring strong or compelling evidence to displace the presumption created by a complete attestation clause.

5. Assessment of the Defendant’s Evidence

The defendant’s oral evidence was the only basis for alleging Ms Cook was absent. The judge found him an extremely unreliable witness. He was evasive and argumentative. He was self-serving and unwilling to make apparent concessions. He was also prone to hostility toward other parties. His testimony was riddled with implausible assertions and contradicted by documentary evidence. The Court concluded his broader credibility problems fatally undermined his account. This was the case even though he was assisted by an interpreter.

The defendant’s evidence lacked reliability. It fell far short of the “compelling” standard needed to rebut the presumption of due execution. As a result, the challenge failed.

6. Independent Basis for Finding Due Execution

Even aside from the presumption, the Court was independently satisfied that Ms Cook was present. One witness, Mr Hong, had sworn an affidavit two years earlier. He stated that he and Ms Cook witnessed the testator sign each page. Although he no longer recalled the event at trial, his affidavit recorded a specific memory at the time. His credit was unchallenged. The Court accepted that evidence.

Was the Will Duly Executed?

The Will appeared to be formally valid. It was in writing and bore the signatures of the deceased and two witnesses. The standard attestation clause stated that they all signed in each other’s presence. This facial compliance engages the presumption of due execution. Although one witness, Ms Cook, had not signed one internal page, this did not affect the Will’s formal validity.

The plaintiff nonetheless accepted that there was a genuine factual issue. The issue was whether both witnesses were actually present when the deceased signed. This was due to the defendant’s claim that Ms Cook was not. Both witnesses identified their signatures and described their general practice, but had no specific recollection of this signing.

The authorities emphasise that courts require strong evidence. The evidence must be compelling. It must be so before accepting that the testator did not properly execute a Will with a regular attestation clause. A mere suggestion or uncertain proof is insufficient to rebut the presumption; only convincing evidence can do so.

Here, the defendant was the only person asserting Ms Cook’s absence. His credibility, however, was profoundly compromised. His evidence was evasive, argumentative, internally inconsistent, and frequently implausible. He made unfounded allegations, refused reasonable concessions even in the face of clear documents, and adopted self-serving interpretations of evidence.

The defendant’s behaviour in the witness box was remarkable. He turned to the public gallery to make provocative comments. This reinforced the judge’s conclusion. The judge decided that he was an unreliable and partisan witness. His evidence could not be safely accepted on any contested issue unless corroborated. Even allowing for the difficulties of giving evidence through an interpreter, the judge found the defendant’s credibility fundamentally defective. His testimony could not rebut the strong presumption of due execution.

As a result, there was no satisfactory—let alone compelling—evidence that Ms Cook was absent when the testator signed the Will. The presumption of due execution remained intact.

In any event, the Court was independently satisfied that the testator properly witnessed the Will. In July 2023, Mr Hong swore an affidavit. The other witness stated that he specifically recalled both himself and Ms Cook. They witnessed the deceased sign each page of the Will. His credit was unchallenged, and the plaintiff did not cross-examine Mr Hong on this point. The Court accepted this evidence as reliable.

Moore J concluded that the testator duly executed the Will in accordance with the statutory formalities.

In January 2020, the deceased and the defendant met with Rose Lawyers to prepare wills. The deceased instructed that:

• her sister (the plaintiff) would be the executor;
• her husband would receive a life interest in the Vermont property; and
• after the life interest ended, the executor would sell the property. The proceeds would be shared equally among her three sisters.
• finalisation of the deceased’s instructions for the rest of her estate was to occur later.

The deceased’s solicitor provided a draft Will in March 2020. It appointed the plaintiff as executor. It created a life interest in the property for the defendant, with the estate funding outgoings and care costs. The remainder was left to the sisters.

In April 2020, the deceased texted the plaintiff expressing concern about the draft’s complexity. She did not understand the powers included, especially those given to the substitute executor. She emailed the solicitor seeking clarification. The deceased noted she thought the property would go directly to the sisters. It was subject to the husband’s life interest. She provided clear instructions for distributing her non-property assets. These included specific percentages to the defendant, family members, and a charity.

Further messages in late May 2020 show the deceased continuing to refine her planning. She checked whether superannuation would fall into her estate. On the morning of 27 May 2020, the deceased’s solicitor advised that she had updated the Will. The deceased was informed to attend the office at 4 pm to sign it. The deceased told a friend earlier that day that she was going to sign the Will.

From these communications, the Court inferred that the deceased’s questions prompted amendments. These changes are reflected in the differences between the draft and final Will.

Assessment of Alleged Suspicious Circumstances

The defendant argued that various factors created suspicious circumstances, casting doubt on the deceased’s knowledge and approval of the Will. The Court rejected each of these arguments:

The suggestion that the deceased signed the Will without both witnesses present was dismissed. It was inconsistent with earlier factual findings.

Alleged missing “updated” draft.

An email suggested that the solicitor prepare another draft, which was not located, and this did not raise suspicion. If anything, it reflected further review and consideration.

Claim that the deceased was distressed or distracted before surgery.

The defendant argued the deceased was confused on 27 May 2020 due to a major operation scheduled the next day. The Court found no evidence that the surgery was life-threatening, and the supporting evidence was misconstrued. The defendant’s own testimony was vague and unreliable. Contemporaneous messages from the deceased showed no distress or confusion. Even if she was anxious about surgery, that did not indicate she did not understand her Will.

Differences between the draft and final Will.

The Court held that revisions from a draft to a final Will are normal. Without more, these revisions do not suggest suspicious circumstances.

There was no superannuation direction in the Will. The defendant argued this showed the deceased misunderstood how the estate would deal with the superannuation. The Court found the opposite.

Evidence from friends indicated the deceased intended her superannuation to fall into her residuary estate. This would have occurred but for the defendant’s actions in requesting that the funds be paid directly to him.

Lack of assets to fund the upkeep of the property. The Court found the deceased intended her superannuation to provide this fund. The shortfall happened because the defendant successfully claimed the superannuation. This was not due to any misunderstanding on the deceased’s part.

The defendant’s provision is allegedly inadequate or “strange.” The defendant said the Will was suspicious because as a spouse it gave him only a non-portable life interest. Moore J noted the marriage was relatively short and began later in life. There is nothing inherently suspicious in prioritising siblings while still making some provision for a spouse. A “portable” life interest was an estate-planning concept that the deceased’s solicitor may not have provided advice about.

Claims of significant financial contributions by the defendant. The defendant submitted that the deceased’s dispositions were inexplicable, given that he had made substantial financial contributions to her property.

Moore J rejected this. He found the defendants’ evidence inconsistent and unsupported. It was contradicted by loan-repayment records. The witness evidence provided no credible evidence of the claimed contributions.

Conclusion

The Court held that none of the defendant’s arguments, either individually or collectively, established any suspicious circumstances. There were no suspicious circumstances surrounding the making of the Will. The deceased’s testamentary arrangements were rational, consistent, and the product of several months of consultation and clarification with her solicitors. The deceased read the draft, sought explanations, requested changes, and ultimately signed a Will that she understood and approved. The Will reflected the deceased’s genuine testamentary intentions.

Use of artificial intelligence

During the hearing, it became clear that the defendant’s solicitor, Ms Seham Rizkallah, relied on an artificial intelligence tool. She used it to draft part of her client’s opening submissions. This use of AI breached the Court’s published guidance on responsible AI use in litigation. It ultimately led to the inclusion of fabricated—so-called “hallucinated”—citations.

The Court first issued its Guidelines for the Responsible Use of Artificial Intelligence in Litigation in May 2024. The document outlines several key principles governing how lawyers may use AI tools. Among them:

• Understanding and limitations — Lawyers who use AI must understand how the tool operates and appreciate its limitations.
  
• Avoiding indirect misleading conduct — a party must not use AI to mislead the Court.
• Misleading other parties about the nature of the work or the accuracy of the content is also prohibited. Generally, parties should disclose when using AI assistance.
  
• Professional responsibilities remain unchanged. Legal work aided by AI is still governed by core professional obligations. These include the duty of candour to the Court and the requirements of the Civil Procedure Act 2010.
  

The Guidelines also explain how these principles apply in practice. They emphasise that generative AI and large language models are not legal research tools and do not produce reasoning-based output. Instead, they generate text probabilistically. Meaning inaccurate, incomplete, or entirely incorrect results. Including the invention of cases or legal propositions.

Moore J stresses that any practitioner who signs, files, or otherwise relies on a document hold responsibility for it’s accuracy. Practitioners must take full responsibility. This applies regardless of any AI assistance used in preparation. Claiming that errors occurred because a party uses a generative AI tool does not excuse mistakes.

Elliott J’s comments in Director of Public Prosecutions v GR [2025] VSC 490 reinforce this point. Adherence to the Guidelines is essential. Courts depend on the accuracy of submissions to administer justice effectively. Any unverified use of AI risks compromising those processes.

“At the risk of understatement, the manner in which these events have unfolded is unsatisfactory

…

The ability of the court to rely upon the accuracy of submissions made by counsel is fundamental to the due administration of justice. Self-evidently, as was immediately and unequivocally acknowledged by counsel in this case, any use of artificial intelligence without careful and attentive oversight of counsel would seriously undermine the court’s processes and its ability to deliver justice in a timely and cost-effective manner.

Regrettable as it is to single out counsel and their instructing solicitors in this case for what has occurred, in light of the matters set out above it is important to record that counsel must take full and ultimate responsibility for any submissions made to the court. To this end, it is not acceptable for artificial intelligence to be used unless the product of that use is independently and thoroughly verified. The same may be said for solicitors responsible for producing or filing court documents.” Director of Public Prosecutions v GR [2025] VSC 490 at [78]-[80]

The message is clear. Lawyers may not use AI to prepare court documents. They must independently verify every aspect of the AI-generated material.

The Solicitor’s Explanation

In her affidavit, the solicitor explained that she:

1. had limited experience using the AI tool;
2. was unaware of the Court’s AI Guidelines at the time;
3. assumed that any missing cases were paywalled or unreported, rather than fabricated; and
4. accepted responsibility and apologised.

The Solicitor also proposed adopting an internal verification protocol that includes manually checking all authorities before filing.
The Court’s Response:

Professional Standards Still Apply

The Court held that the solicitor’s conduct amounted to unsatisfactory professional conduct. Several factors were significant:

1. Ignorance of the AI Guidelines was not an excuse; practitioners must keep abreast of court requirements.
2. Reliance on unverified AI output is incompatible with the duty of competence and diligence.
3. Signing submissions containing fictitious authorities undermines public confidence in the administration of justice.
4. The increasing prevalence of AI misuse in litigation creates a need for general deterrence.
5. The Court imposed a disciplinary penalty.
6. The Court declined to refer the matter to the Victorian Legal Services Commissioner. Noting that the facts were clear and the incorrectly supported argument was ultimately not pursued at trial.

Why This Matters for Lawyers Using AI
This decision is a wake-up call for the profession. AI is now unavoidable—but professional responsibility is not delegable to a machine.
Key lessons include:

1. AI is not a legal research tool.
   AI can explain principles or generate summaries. However, it cannot be trusted to create accurate case citations. It cannot provide statutory references. Always check primary sources.
2. Verification is non-negotiable
   If an AI tool provides an authority, practitioners must independently verify it.
3. Know the rules
   Courts are increasingly issuing AI practice notes and guidelines. These now form part of the professional competence environment.
4. Disclosure matters
   When AI significantly contributes to court submissions or affidavit material, practitioners should disclose this contribution. This helps avoid misleading the Court.
5. You sign it, you own it
   No matter how a practitioner creates a submission—dictated, cut-and-pasted, or machine-generated—it’s the practitioner’s responsibility.
   
7. Conclusion
   The Rizkallah incident is not about punishing the use of technology. It is about reinforcing that AI must be used responsibly and transparently. It must always have human supervision. As courts and regulators adapt to the realities of AI-assisted practice, the expectations on lawyers will only become clearer—and stricter.
   Used well, AI can enhance productivity and insight. Used uncritically, it can undermine the very foundations of competent legal practice.