heirs & successes

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.

In England and Wales, once probate is granted, a Will usually becomes a public document. It is open to inspection as part of the broader system of transparency underpinning succession law. This openness is so embedded in probate practice that most lawyers never question it. It is the mechanism that allows beneficiaries to check their entitlements. Creditors to assert claims. Family members to verify a testator’s final intentions.

Within this transparent system, the power to seal a Will is a seldom-used but significant exercise of judicial discretion. It is the power that can significantly impact privacy and confidentiality in probate law. Used sparingly; this power is invoked in exceptional circumstances it protects Wills not just from public curiosity but from all inspection.

For a century, sealing has been synonymous with royal Wills—to protect constitutional dignity and private royal affairs. But in recent years, the courts have begun to use this power differently. They aim to protect the lives and safety of private citizens. These individuals have circumstances that demand confidentiality.

The result is a quiet but significant evolution.

The long tradition of royal wills and the emerging jurisprudence around non-royal sealed wills culminating in Johnson v His Majesty’s Attorney-General [2025] EWHC 1943 (Ch). This decision marks a significant shift in how courts approach sealing Wills and balancing transparency with confidentiality.

The starting point is simple: proved wills are public documents (Senior Courts Act 1981, s 124). But Rule 58 of the Non-Contentious Probate Rules 1987 permits the Court to direct that a Will should not be open for inspection if such inspection would be:

• undesirable, or
• otherwise inappropriate.

The threshold is deliberately modest; the courts have repeatedly emphasised that Rule 58 “is not an especially high hurdle”. Yet sealing a Will remains rare. It is exceptional because open justice is the norm.

Royal Wills: A Century of Secrecy and Constitutional Habit

The Origin Story: Prince Francis of Teck (1910)

The tradition of sealing royal wills began in 1910. Queen Mary persuaded the Court to seal her brother Prince Francis’s Will. This was reportedly to prevent scandal arising from private bequests to his mistress. This practice was established, rooted in constitutional considerations and privacy.

When Prince Francis died in October 1910, his 1902 Will revealed that he had left everything to his mistress, Lady Kilmorey. His estate was worth £23,154 gross (about £1.9 million in 2022 terms), with net personalty of £670. The bequest included the Cambridge emeralds, part of the Teck family’s pearl necklace, and a jewel given to him by his godfather, Emperor Franz Joseph I of Austria. Francis explicitly stated that all jewellery inherited from his mother was to pass to Lady Kilmorey, expressing the hope—but not imposing any legal obligation—that she would reset the emeralds to her liking and ultimately leave the items back to the royal family.

To recover the family heirlooms, Francis’s sister, Queen Mary, negotiated with Lady Kilmorey and, in 1911, repurchased the emeralds for £10,000; Mary later wore them at the Delhi Durbar. When Lady Kilmorey died in 1920, she returned the Emperor’s jewel to the royal family, but left the rest of her estate to her own relatives.

Concerned about a potential scandal arising from Francis’s relationship and the terms of the Will, the President of the Probate Division ordered the Will sealed in 1911, becoming the standard practice for subsequent royal wills. The document stayed sealed for more than a century, until a 2021 court challenge prompted the creation of a review mechanism. After review, Francis’s Will—along with eight other royal wills—was unsealed and released for public inspection, with transcripts and summaries later published.

A Separate Practice for Royalty

In the matter of His Royal Highness the Duke of Windsor (deceased), the Monarch’s unique constitutional position and the intense public interest in royal affairs make publication inappropriate.

Edward VIII: Copyright and Archival Integrity

In 2017, the Royal Archives sought access to Edward VIII’s Will to determine ownership of copyright in his unpublished works. In the matter of His Royal Highness the Duke of Windsor (deceased), Oliver Urquhart Irvine the librarian and assistant keeper of the Queen’s Archives wrote to the District Probate Registry in Leeds formally requesting a copy of the Duke of Windsor’s Will and codicil for research purposes.

The Royal Archives holds many originals and copies of probate records for past royal family members. However, Irvine submitted the Duke of Windsor’s Will represents a gap

‘in our holdings and therefore in our knowledge’,

Sir James Munby, President of the Family Division, allowed a limited opening, the making of a single copy, and immediate resealing of the original Will.

Marking the first time the Court opened a sealed royal Will for reasons unrelated to public inspection.

Princess Margaret & the Queen Mother: Transparency of Process

In Brown v HM Queen Elizabeth the Queen Mother and others [2007] EWHC 1607 (Fam), [2007] WTLR 1129, and, by Lord Phillips of Worth Matravers CJ, of the Court of Appeal, in Brown v Executors of the Estate of HM Queen Elizabeth the Queen Mother and others [2008] EWCA Civ 56, [2008] 1 WLR 2327. At the heart of this case is a simple but essential question: when should a Will—usually a public document—be kept private? The answer is surprisingly complicated, especially when royal wills are involved.

What was the dispute about?

A former President of the Family Division had sealed some royal wills, meaning they weren’t available for public inspection, and judicial interpretation of those sealing orders allowed inspection only by someone with a “special interest”. The appellant claimed an interest, asserting that he was Princess Margaret’s illegitimate son. The President rejected that claim and struck out his challenge entirely.

But the appellant also wanted to do something broader: challenge the original orders that sealed the Wills.

If successful, this would not just let the appellant inspect the Wills —it would reopen them to the entire public. So the real issue became:

Can someone challenge the original decision to seal a Will? Which is especially relevant for a royal Will, particularly if the process for sealing wasn’t fully transparent?

Why the Court allowed the challenge to continue

The Court of Appeal drew an important distinction. In some areas of law, including enforcement of public rights or seeking judicial review, only certain people can bring challenges; sometimes, only a challenge from the Attorney General is allowed. So why didn’t that rule apply here?

Because there is no law saying only the Attorney General can ask for access to a Will. The sealing process used for these royal wills wasn’t transparent. Without a straightforward process, there are no clear limits on who can challenge a sealing order. So, the Court held it would be wrong to stop the appellant from raising the issue.

If the appellant couldn’t challenge the sealing orders, no one ever could. That would mean no higher court could scrutinise decisions to seal royal wills. And that, the Court said, would be unacceptable. The case also raises broader questions about openness. Traditionally, wills become public after a grant of probate. The idea is that transparency promotes accountability exposes a gap:

Why exactly are wills public?

The Court noted: The argument that publicity ensures that an executor carries out a testator’s wishes lacks strong authority. The President had instead referred to a general principle of openness.

Are privacy concerns ever strong enough to override that?

Modern concerns include beneficiaries’ privacy. Additionally, focus on the rights under Articles 8 and 10 of the European Convention on Human Rights. Applications for secrecy are increasing. So the case flagged a need to reassess the balance between openness and privacy in contemporary society.

Royal wills: a special category?

The Court acknowledged a long-standing practice. The Sovereign’s Will does not need to be proved by a grant of probate (In the Goods of His late Majesty King George III, deceased (1822) 1 ADD 255, 162 ER 89). Another reference is found in In the Goods of His late Majesty King George III (1862) 3SW & TR 199, 164 ER 1250, a practice that does not apply to any other member of the Royal Family whose Wills are administered under the ordinary probate rules.

Under rule 58 of the Non-Contentious Probate Rules 1987 (NCPR) the Court can direct that the Will or another document filed with the grant of probate shall not be open to inspection. The public has, in the President’s words, an “insatiable curiosity” about royal lives. That may justify some level of special treatment. But the judges emphasised that:

Any special process must itself be examined transparently by the current President, with full access to relevant background material.

And importantly: Not every detail of the royal-wills procedure needs to become public—but the President must first understand it.

The Court of Appeal didn’t decide whether they should open the royal wills. Instead, it held that the Court should not have struck out the appellant’s challenge. There are serious, legitimate questions in play:

What is the purpose of public access to wills?

When is sealing justified?

What counts as a “special interest” in seeing a sealed Will?

Should royal wills be treated differently—and if so, why and how?

These are issues of public importance. Until they are fully considered and resolved, the Court cannot dismiss the appellant’s challenge as hopeless.

The Court of Appeal reaffirmed that, although the Wills remain sealed, the sealing orders themselves are open to challenge. Transparency applies to the process, if not to the document.

Prince Philip (2021): The 90-Year Review Rule

In Re: The Will of His late Royal Highness The Prince Philip. It involved the Duke of Edinburgh [2021] EWHC 77 (Fam). The Court sealed the Will for 90 years, creating a structured, reviewable mechanism for future unsealing. A media challenge by The Guardian failed. However, the Court of Appeal emphasised that open justice still demands meaningful public judgments explaining decisions to sit in private.

In 2010, Sir Mark Potter formed a working group. They aimed to create a ‘fair and efficient procedure’ for publishing and disclosing wills. Sir Mark said the current rules were ‘far from user-friendly’ for practitioners and the public and ‘provide little guidance’. The committee examined the Non-Contentious Probate Rules 1987. These rules offer the procedure for obtaining a grant of probate or administration. This applies where there is no dispute concerning the deceased’s estate. 

In the matter of His Royal Highness the Duke of Windsor (deceased), Sir James Munby remarked on the Royal Archives copies of the Will. He said it would be ‘absurd’ to deny them. He also noted it would be ‘absurd’ to deny them the codicil. This is about someone who

‘was born a royal prince. He died a royal duke. In his time, he was His Majesty the King’.

Munby said that each of Irvine’s ‘compelling’ reasons justified the disclosure ruling that delivery of one copy of the Will to Irvine was warranted, and the document was then resealed. Munby stressed that he had not opened the envelope. He had not read the Will or codicil. He didn’t have ‘any idea as to their contents’.

On 16 September 2021, the President of the Family Division delivered judgment in Re: The Will of His late Royal Highness the Prince Philip, Duke of Edinburgh [2021] EWHC 77 (Fam). The Court approved the executor’s request to seal the Will and to omit the estate’s value from the public grant. Both the hearing and the substantive application were conducted in private, in line with the long-established approach designed to protect the privacy of the Sovereign and senior members of the Royal Family.

The judgment formalised a new procedural practice: in all future cases, the Court will prepare a closed judgment capturing any confidential material considered, ensuring transparency about the process while preventing public speculation.

The Court confirmed a 90-year sealing period for Royal wills. After that time, an internal review to determine whether the Will should be unsealed, with the Court weighing personal privacy against legitimate historical interest.The ruling does not create new law; instead, it reaffirms and refines the existing legal and constitutional framework governing the confidentiality of Royal Wills.

To promote openness about the system itself, the Court also intends to publish a list of sealed Royal wills, but emphasised that this should not be seen as an invitation for unsealing applications. Such applications face stringent thresholds and are ordinarily dismissed summarily unless brought by someone with a direct private interest.

Annex 1 to that judgment—detailing the royal wills currently held by the President—was released on 24 November 2021.

On 16 February 2023, the President’s Office issued a formal document titled The Procedure for Unsealing 90-year-old Royal Wills. The court moved to increase transparency around the long-standing practice of sealing Royal wills by ordering the publication of a list of all wills currently under seal and introducing a formal 90-year time limit for future cases. After this period, an archivist will inspect the will and a private review will determine whether unsealing is appropriate.

Under this new process, nine original wills (together with their envelopes and seals) were transferred to the Royal Archives for preservation and academic study, with copies lodged at the Probate Registry:

1. Prince Francis Joseph Leopold Frederick of Teck
2. Alexander William George, Duke of Fife
3. Prince Maurice Victor Donald of Battenberg
4. Dowager Grand Duchess of Mecklenburg-Strelitz
5. Lord Leopold Louis Mountbatten
6. Helen Frederica Augusta, Duchess of Albany
7. Princess Helena Augusta Victoria, Princess Christian
8. Princess Frederica Sophia Maria Henrietta Amelia Theresa of Great Britain
9. Princess Louise Victoria Alexandra Dagmar, Princess Royal

These wills are now accessible online

The Court also directed that each sealing application must now include a closed judgment recording any confidential matters considered, helping to prevent speculation while preserving the privacy of the Royal Family.

The Court published these measures to reaffirm the need for special protections for the Sovereign and senior Royals while also acknowledging the public’s interest in understanding how the system operates. By setting a clear timeframe, providing a public list, and codifying procedural safeguards, the Court aimed to clarify and formalise existing conventions rather than establish new legal principles, ensuring that the balance between privacy and transparency is maintained.

Beyond Royalty: The Rise of Sealed Wills for Private Citizens

For decades, sealing was synonymous with royalty. That changed dramatically in Johnson v HM Attorney-General [2025] EWHC 1943 (Ch) with the High Court delivering the first reasoned judgment sealing a non-royal Will in modern legal history.

The deceased was Frank Cowley, formerly Freddie Scappaticci, the man widely alleged to have been “Stakeknife”—the British Army’s highest-level agent inside the Provisional IRA during the Troubles. The deceased was said to have acted as an informant against the Provisional IRA—an allegation he consistently rejected. Throughout his life, he received ongoing death threats, and when he died in 2023, the UK government still had not confirmed or denied the claims about his past. Although the deceased had appointed his former solicitors as executors, they renounced probate.

An individual identifying himself only as Michael Johnson brought the application to act as legal personal representative of the estate, on the condition the Court order the Will sealed and withhold his real identity. Submitting that public access to the Will under s 124 of the Senior Courts Act 1981 and r 58 of the Non-Contentious Probate Rules 1987 (NCPR) would expose those named in it—including himself—to grave danger.

Section 124 of the 1981 Act requires original wills and probate documents under the High Court’s control to be stored in designated places and, subject to the High Court’s direction and the probate rules, made available for inspection. Rule 58 of the NCPR creates an exception, allowing a district judge or registrar to withhold a Will from inspection where doing so would be “undesirable or inappropriate”.

Relying on this exception, the applicant sought orders sealing the Will for 70 years and prohibiting any inspection without the permission of the Chancellor of the High Court. The Attorney-General supported the application, and the matter proceeded in private.

In determining the application, the EWHC applied the principles set out in the judgment concerning the Will of the late Prince Philip, Duke of Edinburgh. That judgment was published, although the Will itself remained sealed.

The Court revisited the usual reasons favouring public access to a Will:

• promoting respect for the deceased’s intentions and preventing fraud;
• enabling beneficiaries to be notified or traced;
• satisfying historical or journalistic interest;
• and alerting creditors, holders of other testamentary documents, or those with potential claims.

Here, the first two considerations carried little weight because the applicant intended to engage solicitors to properly administer the estate.

There was also no public interest in the contents of the Will, which was routine in form.

Given the extensive publicity surrounding the death, the Court found it unlikely that creditors, potential beneficiaries, or others with an interest would be unaware of the death. Accordingly, none of the usual arguments for public inspection applied.

The Court ordered that the Will be sealed for 70 years as the Court confirmed the threshold for finding inspection “undesirable or inappropriate” under r 58 in Re: The Will of His late Royal Highness the Prince Philip, Duke of Edinburgh [2021] EWHC 77 (Fam) as not particularly high.

The Court also issued ancillary directions allowing a grant of administration to issue without annexing the Will and permitting the inheritance tax return to be lodged without providing HMRC with a copy of the Will.

After media reports in 2003 identified him as a top informant, Cowley:

• relocated repeatedly
• lived under injunctions protecting his identity
• changed his name multiple times
• endured persistent death threats
• faced ongoing civil claims alleging torture, false imprisonment, and complicity in murder

Operation Kenova’s 2024 Interim Report concluded he “could and should have been prosecuted”. Nevertheless, it preserved the government’s “neither confirm nor deny” stance.

At the time of his death in 2023, he faced 16 civil claims in Northern Ireland.

The Application Under Rule 58

Cowley’s executor, Michael Johnson, agreed to manage the estate only if the Court sealed the Will, submitting publication of:

• addresses,
• names of beneficiaries, or
• Cowley’s true identity

Would expose him and others to serious and immediate risk of violent reprisals.

Arguments Before the Court

For the applicant:

• Public inspection would put lives at risk.
• Articles 2, 3, and 8 ECHR were engaged.
• None of the usual justifications for probate transparency applied.
• The Will was a standard document with no substantive public interest.

For the Attorney General (representing the public interest):

• The public interest in openness was minimal.
• Any journalistic curiosity will not outweigh the risks under Articles 2 and 3.
• Endangering the applicant by disclosure.

The Decision: A Sealed Will Outside the Royal Context

Chancellor Sir Julian Flaux granted the application, finding:

“…this is the first application for the sealing of a Will under Rule 58. It is apart from the cases of Royal wills.”

He held that:

• The deceased estate comfortably met the Rule 58 threshold.
• Articles 2 and 3 of the ECHR were engaged;
• The risks of retaliation were real and ongoing; and
• Personal safety outweighs the principles of Open justice.

The Court ordered the Will to be sealed for 70 years. This order prohibits its annexation to the grant of administration. It restricts inspection without the Chancellor’s consent. It also prevents HMRC from requiring production of the Will.

Johnson v HM Attorney-General [2025] EWHC 1943 (Ch) now stands as the leading authority on sealed wills outside the royal tradition.

Other Non-Royal Sealed Wills: A Hidden Category

Though Johnson is the first reasoned decision, courts have, in practice, sealed (or partially sealed) wills where:

1. Vulnerable individuals or survivors of violence are at risk

Disclosure might reveal:

• children’s locations
• safe houses
• private medical histories
• identities of domestic violence survivors

2. Witnesses and protected persons need anonymity

Where testators or beneficiaries are part of:

• witness protection programmes
• undercover operations
• high-risk prosecutions

3. National security is implicated

Where the Will contains:

• intelligence-related identities
• operational details
• links to classified activities

4. Sensitive commercial or digital information is included

Modern wills contain:

• passwords
• access codes
• asset locations

The Court can’t casually place these documents in the public domain.

Most of these cases stay unreported, precisely because the sealing prevents disclosure.

5. Alternatives to Full Sealing

Courts increasingly use flexible measures short of total secrecy, including:

• redaction
• partial sealing
• restricted inspection orders
• temporary sealing
• dual versions (public & private)

These allow courts to tailor privacy to the specific risk.

The Thread Binding Royal and Non-Royal Sealed Wills

Whether the Will belongs to a prince or a paramilitary figure, the Court applies the same statutory test:

Would public inspection be undesirable or otherwise inappropriate?

For royal wills, “undesirable” reflects constitutional dignity.

For Cowley’s Will, it reflected a risk of lethal violence.

In each case, the court balances:

• open justice
• transparency
• creditors’ interests
• human rights
• personal safety
• the public interest

And in the most exceptional cases, privacy prevails.

Sealed Wills and Open Justice: A Tension That Will Never Fully Resolve

Cases like Re Prince Philip and Johnson v AG show that open justice remains a powerful norm. The courts now routinely publish detailed public judgments explaining the holding of hearings in private.

Representing an evolution: secrecy of documents no longer means secrecy of process. Yet sealed Wills challenge the modern instinct for transparency, highlighting:

• The fragility of private life
• The dangers of public disclosure
• the complexities of modern identity
• The role of the judiciary as protector as well as arbiter

Reminding us that probate is not merely administrative—it is deeply human.

Conclusion: The Quiet Power of the Seal

Sealed Wills occupy a curious and compelling corner of succession law. For the Royal Family, sealing reflects constitutional status and tradition. For private individuals like Frank Cowley, it is a matter of life and death.

What links them is the Court’s careful balancing act: open justice on one side, privacy and safety on the other. In both domains, the law shows a rare blend of pragmatism and humanity.

A Will is both a public declaration and a profoundly personal document. When those two roles collide, the Court becomes the guardian of dignity, safety, and justice. And sometimes, the only answer is a seal.

Disputes over the disposal of a deceased person’s body occur at the uneasy intersection of family conflict. They also involve cultural and religious practices and the Court’s protective jurisdiction. Unlike probate matters—where formal grant processes, evidentiary rules and timelines give structure—burial disputes demand rapid judicial intervention. Decisions often must be made within hours or days of the death, with incomplete information and heightened emotion.

The Court’s immediate task in these cases is pragmatic: decide who holds the body. It must clarify the deceased’s wishes, if any exist. The Court ensures that no irreversible steps are taken. It then stabilizes the situation long enough to hear competing claims. This typically leads to interlocutory orders restraining disposal, embalming or preparation pending further inquiry.

The Court must apply discretionary principles in situations where a party seeks access to the deceased’s body. These principles come from cases like Brown v Weidig [2023] NSWSC 281. They also stem from Chipizubov v Elias [2025] NSWSC 326 and Dayman v Dayman [2024] NSWSC 838. These decisions emphasise several non-exhaustive factors. These include the deceased’s known wishes. They involve cultural, spiritual and religious practices, and consider the interests of family and community members. Logistical realities also play a part, including the location of the body, funeral arrangements, and timing. Additionally, there is an overarching need to preserve dignity and avoid precipitate action.

A critical theme in the jurisprudence is that the deceased’s expressed wishes—while not legally binding—carry considerable weight. Where those wishes clearly entrust funeral arrangements to a particular person, the Court respects these choices. If preferences specify no open casket, the Court is slow to override them. The Court does not allow physical contact unless compelling circumstances justify doing so.

The Matter

Mackie v Tedesco [2025] NSWSC 1345 illustrates this balancing exercise. The plaintiff sought both open-casket access and the ability to touch the body. The defendants resisted because of the deceased’s stated preferences. The Court ultimately permitted a limited viewing. This was despite the deceased’s dislike of open-casket practices. Nevertheless, it declined to allow physical contact. Allowing physical contact would have directly contravened her recorded wishes.

The judgment also reflects a recurring reality in burial litigation. The law remains blunt when trying to mediate family relationships in crisis. These disputes are often deeply personal, shaped by grief, guilt, estrangement, and competing narratives of closeness. Yet the Court must impose clear, enforceable orders that prioritise dignity, practicality and fairness within narrow timeframes.

Burial disputes are becoming more common. This is especially true where family fragmentation, second marriages, and multicultural practices intersect. The need for early communication and clear expression of funeral preferences will continue to grow. For practitioners, the case underscores the need for swift action. Practitioners must also offer reliable evidence of the deceased’s wishes. Proposals should be realistic and sensitive, accommodating both logistical constraints and emotional realities.

Background

In the early evening last Friday, 95-year-old Giuseppina Tedesco (the deceased) died at Scalabrini Village in Allambie Heights. Giuseppina was deeply religious. Her name is derived from the Hebrew name Yosef, meaning “God will increase.” She was recognised by her son Domenico (the first defendant) as a source of strength. He especially felt this after the death of his and his wife Christina’s newborn son in 2006.

The deceased leaves behind five children and several grandchildren, including Vanessa Mackie (the plaintiff). Some family conflict quickly emerged after her passing. Shortly after being notified, the plaintiff expected further communication. It did not occur. She feared the denial of a final private visit with her grandmother before preparations for burial began. She thought the first defendant was the executor. She applied to the Court for urgent relief within 48 hours of the death.

It later became clear that the executor was actually solicitor Ronald Gorick (the second defendant/executor). The Court acted quickly because the situation developed before there was time to prove the Will. It made representative orders to guarantee any outcome would bind the estate.

Burial Dispute

Like many urgent burial disputes, the Court initially received only fragmented information. Meek J compared the evolving picture to a scratch-off image. It gradually revealed the deceased’s wishes as well as family dynamics as more details emerged. There were three court appearances within four business days. A memorial service was scheduled for Monday. The burial was to follow in the family vault. Catholic tradition often includes an open-casket rosary. Although, the first defendant explained that this would not occur. This decision was due to the deceased’s express wish not to be viewed after death.

Given time pressures and limited evidence—much of it untested—the Court encouraged the parties to reach an agreement. Attempts to do so, though, failed. Meek J ultimately had to decide the urgent question of whether the plaintiff should have a private farewell before interment. The Court managed evidence under significant time constraints. The plaintiff provided sworn oral evidence to verify an otherwise unsworn affidavit. They tendered documents without time to prepare a full affidavit. The first defendant was briefly examined and cross-examined. Despite minor qualifications, the Court accepted his evidence on the key issues.

The plaintiff also sought broader final relief. Nonetheless, the Court confined itself to the immediate interlocutory issue. This was her plea for private access to the body. Other issues, including requests for information and records, were adjourned for later determination. The plaintiff’s motion sought orders preserving the body from preparation. It also sought permission for her to have up to 90 minutes alone with her grandmother. Yet, by the time of the hearing, it emerged that embalming had already occurred. Meek J also clarified that the plaintiff wished to be permitted to touch the body during her visit.

In her notice of motion, the plaintiff sought three main orders. First, she asked the Court to preserve the deceased’s body. She wanted to restrain any embalming, washing, dressing, cosmetic work, invasive procedures, cremation, or other preparation. This was until 6:00 pm on 11 November 2025. Second, she sought up to 90 minutes of private access to her grandmother’s body. This access was to be without any relatives or other persons. It had to occur within 24 hours and without audio or video recording. Third, she asked that the first defendant not attend the funeral home during her visit. She also requested that anyone acting on his behalf be absent.

Yet, it later emerged that the funeral director had embalmed the deceased the prior day. This act rendered part of the preservation relief moot. There was also an extended discussion about whether the plaintiff wished to touch the body physically. She confirmed that she did, though the executor debated her intentions (hugging or kissing). It was clear she ultimately sought the Court’s permission to do so.

Outcome of Urgent Relief

The Court determined that the plaintiff should be allowed a brief, private opportunity the next day. She can be in the presence of her grandmother’s body, accompanied only by funeral staff. Other family members are not allowed. A limited form of open-casket access would be permitted. Yet, the Court declined to authorise any physical contact with the body.

Relevant Principles

Meek J referred to earlier authorities. These include Brown v Weidig [2023] NSWSC 281. Another relevant case is Chipizubov v Elias [2025] NSWSC 326. Lastly, Dayman v Dayman [2024] NSWSC 838 is also included. These cases guide urgent burial-related applications. These cases emphasise the Court’s preliminary tasks. The Court gathers basic information about the deceased and the family. It identifies who holds the body. It ensures that no irreversible steps, including disposal, occur before Meek J hears competing. Discretionary factors include the deceased’s wishes. Cultural and spiritual considerations are also important. Community and family views matter. The Court considers practical logistics. Ensuring accessible opportunities for mourning is essential.

Family History

Although there was some dispute, Meek J accepted the core facts of the family history.

The deceased, mother of five children, was deeply committed to her Catholic faith. She moved to Scalabrini Village after a mini-stroke in late 2020, and the first defendant visited her often. The executor contested the plaintiff’s submission of a close bond with the deceased. The Court did not resolve this issue for the interlocutory hearing.

Initially, there was incomplete information about the body’s location. The Court eventually established that the deceased was in the care of O’Hare Funeral Directors. The deceased had been embalmed, with dressing to occur later that day.

Testamentary and Funeral Wishes

The deceased executed a 1996 Will. There was also a 2004 codicil appointing the second defendant as executor. The solicitor acted as executor. The deceased also signed written directions in 2005. Further, she signed more in 2013. These specified

• the first defendant was to handle funeral arrangements, as he had done for her late husband.
• no speeches by her children but allowed grandchildren to speak.
• specific instructions about her clothing, rosary beads, funeral director, music, and photos.
• Importantly, she wanted people to remember her as she was in life and did not want an open casket.

According to the first defendant, she had also said she did not want anyone touching or kissing her after death. These wishes were central to the Court’s decision not to allow physical contact.

Parties’ Positions

Affidavit evidence established each party’s positions, which Meek J clarified during the hearing.

Executor’s position: The executor (the second defendant) relied on the deceased’s 2005 written direction, accepting that the first defendant was nominated by the deceased to be solely responsible for organising her funeral, which supports the first defendant. They encourage taking reasonable steps to arrange all aspects of the funeral, including any viewing arrangements.

Joint proposal of the defendants: The defendants sent an email the day before the hearing. In it, they proposed a compromise;

• A private farewell in O’Hare’s chapel at 11:00 am on 14 November 2025 would last for up to 60 minutes.
• There would be no relatives present.
• A staff member from O’Hare is to remain in the chapel throughout.
• An open casket.
• No recording equipment.
• No physicalcontact or interference with the body.

The plaintiff rejected this proposal.

Plaintiff’s response:

Privacy: No relatives and no staff in the room during her visit. Exceptions were a brief entry at the beginning and end.

Casket and timing: Open casket; visit to occur before any body preparation.

No recording: The plaintiff agreed to bring no devices and not to record anything.

Physical contact: insisted on being allowed to respectful physical contact with her grandmother, as she had in life.

Wishes of the deceased: disputed the first defendant’s assertion that the deceased did not want an open casket. No written instructions were produced. The plaintiff believed the deceased sought only a private farewell, not a public funeral viewing.

The defendants were asked to confirm by 5:30 pm. If the parties reached no agreement, she would return to Court.

Court’s Determination

Meek J applied the principles from Chipizubov v Elias, Dayman v Dayman, and Brown v Weidig, taking into consideration the factors identified by Lindsay J in Weidig. The deceased’s clear written wishes entrusted funeral arrangements to the first defendant. Additionally, there was the first defendant’s own evidence of the deceased’s desire not to be viewed or touched after death. The plaintiff expressed a strong wish to see the body and to have physical contact with it. The court also considered the need for dignity in interment and respect for the deceased’s stated preferences, including the logistical availability of the funeral chapel and staff, and the pressing time constraints.

Meek J identified two core issues dividing the parties.

• The first issue is whether there should be an open casket.
• The second issue is whether the plaintiff should be permitted to touch the deceased’s body.

His Honour acknowledged the profound importance of physical presence and touch in human relationships, especially at the end of life. He also stressed that the deceased’s expressed wishes must be respected unless outweighed by compelling considerations.

In Chipizubov v Elias [2025] NSWSC 326_, Meek J provides a clear and practical reminder of the legal framework governing burial disputes—an area of law that sits at the intersection of the probate and protective jurisdictions but is not fully contained in either.

His Honour reiterates that the Court’s inherent jurisdiction allows it to act urgently and flexibly, including before any grant of probate or administration has issued, to ensure a timely and respectful disposition of the body.

At [12]–[23], Meek J emphasises that these disputes arise in circumstances of acute family grief, often with limited notice and escalating tension. As such, courts and practitioners must prioritise processes that minimise conflict and delay.

His Honour identifies several practical principles:

Consensus where possible: Families should be encouraged to reach agreement, with litigation treated as a last resort.

Focused and proportionate evidence: Only material genuinely relevant to the immediate question of disposal should be filed, avoiding unnecessary accusations or collateral disputes.

Early identification of core facts: Key non-contentious information—custody of the body, the immediate stakeholders, funding arrangements, cultural or religious practices, and the practical requirements of burial or cremation—should be provided upfront to assist the Court in making urgent, dignified orders.

Joint control is seldom workable: Meek J confirms that shared decision-making rarely resolves conflict and usually compounds it; the Court will generally prefer a single point of authority.

Independent appointments: Where family dispute is entrenched, appointing an independent interim administrator is often the most effective means of ensuring orderly arrangements, reducing stress, and safeguarding the dignity of the deceased.

Finally, His Honour underscores the need for proportionality in costs and warns against turning such profoundly personal disputes into extended litigation. The Court’s role is to facilitate a practical, compassionate resolution—not to adjudicate broader family grievances.

Overall, Chipizubov v Elias offers a measured, practitioner-friendly roadmap for navigating one of the most delicate areas of succession practice: the urgent and humane disposition of a person’s remains.

Outcome

In Mackie v Tedesco [2025] NSWSC 1345, Meek J allowed the plaintiff a private farewell with an open casket, despite the deceased’s stated wish not to be viewed. However, his Honour refused to allow physical contact, in accordance with those exact wishes. Given the family’s disagreement, His Honour considered it necessary to impose precise conditions to guarantee clarity, despite the plaintiff’s disappointment.

His Honour expressed sympathy for the family’s grief and acknowledged the deceased as a cherished and remarkable woman whose memory would endure. He made the following orders:

• Leave to file affidavits: the Defendants can file the affidavits of the first defendant sworn on 13 November 2025. They are also permitted to file the affidavit of Krishneel Nath, sworn 13 November 2025. Each affidavit is initialled by Meek J. and lodged with the Court papers.
• Scope of relief noted: the Plaintiff’s Notice of Motion dated 10 November 2025 seeks broader final relief than that originally claimed in the Summons filed the same day.
• Leave to file amended Summons: the Plaintiff must file and serve an amended summons by 5 pm on 27 November 2025nto include the additional relief sought in the Notice of Motion. Applies to the extent not included in the existing Summons.
• Separate determination of Prayer 2: an immediate hearing for the relief sought in Prayer 2 of the Summons to address only this specific matter. It is separate from any final relief sought in the Notice of Motion.

Further listing

The remainder of the proceedings are stood over to the Equity Registrar.

• Any outstanding relief is also stood over to the Equity Registrar on 4 December 2025.
• Private farewell attendance: The Defendants are directed to arrange for the funeral director, Rosa Peronasc of O’Hare Funeral Directors to allow the Plaintiff to attend a private farewell at O’Hare’s Chapel in Norton Street, Leichhardt. No other relatives or persons are to be there, apart from Ms Peronasc or another nominated staff member.
• The private farewell must meet specific conditions:
• It is to last no more than 60 minutes.
• It must occur at 11 am on Friday, 14 November 2025, a time convenient for the Plaintiff.
• The farewell must take place under the supervision of Ms Peronasc.
• A designated staff member must be there at all times.
• The casket must be open for the duration of the viewing.
• No photographic or video recording is allowed.
• The Plaintiff must not make physical contact with the deceased’s body.

Termination of attendance for non-compliance

• The Plaintiff must not touch the body of the deceased. If they try to do so, the Funeral Director will stop the viewing at once. Similarly, the Plaintiff is prohibited from taking a recording.
• Liberty to apply
• Any party can apply to the Court on short notice. Including the Funeral Director. They can seek further or ancillary orders needed to give effect to these directions.

Costs

The Court reserved Questions of costs.

Conclusion

Importantly, courts and practitioners must prioritise processes that minimise conflict and delay as burial disputes arise in circumstances of acute family grief, often with limited notice and escalating tension.

Modern burial disputes sit at the edges of probate, guided by familiar succession principles but no longer constrained by rigid rights-based rules. Courts increasingly recognise that, in a multicultural society, disputes about the disposal of a body are less about strict legal entitlements and more about managing real-world problems when families cannot agree.

In straightforward cases, probate concepts offer a sensible roadmap. A Will—often naming an executor even if it says little else—or the statutory intestacy order provides an objective and predictable hierarchy for identifying who should take responsibility for protecting funeral homes and other custodians from criticism, while also offering a clear path to urgent judicial directions if competing claims arise. It also has the practical advantage of aligning decision-making with the person most likely to control the estate funds needed for funeral arrangements.

But convenience is not compulsion. The Court’s role is ultimately to ensure that burial occurs in a timely, orderly and dignified way, responsive to the needs of the deceased’s family and communities. That requires flexibility. As patterns of family, culture and end-of-life choices evolve, so too must the Court’s approach. The guiding principle remains constant: practical wisdom, not rigid doctrine, should shape decisions in this uniquely sensitive area of succession practice.

Navigating the court system without legal representation can be daunting. It is especially challenging when finances or circumstances limit your access to professional help. In New South Wales, the courts have a specific mechanism to support self-represented litigants. This mechanism helps those who genuinely need legal assistance. It is Rule 7.36 of the Uniform Civil Procedure Rules 2005. It enables the referral to a barrister or solicitor. This happens when the Court is satisfied. Referring a litigant to the Registrar for legal assistance must be in the interests of the administration of justice. The litigant can then be referred to a barrister or solicitor on the Pro Bono Panel.

Pro Bono Schemes

Pro bono legal help is work performed by lawyers for little or no fee. It plays a vital role in supporting both the courts and the wider community. Beyond private practitioners who volunteer their time, several formal assistance schemes are in operation in New South Wales. These include the Bar Association’s Legal Assistance Scheme, the Law Society’s Pro Bono Scheme, and services available through LawAccess NSW. Additionally, the Supreme Court has its own internal mechanisms. It appoints a lawyer to help a litigant under the Uniform Civil Procedure Rules.

Rule 7.36(2) provides that the Court take into account the means of the litigant. Slattery J also considered the capacity to obtain legal assistance outside the Scheme. Additionally, the nature and complexity of the proceedings, as well as any other matters deemed appropriate, are factors. Rule 7.36(2)(a) specifies that the Court shall not refer a litigant for assistance. This applies if the litigant received help under an earlier referral during the last three years. Nonetheless, if there are special reasons, a further referral can be justified.

If a referral is granted, the matter goes to the Registrar. The Registrar then attempts to connect the litigant with a barrister or solicitor from the Pro Bono Panel. Understanding how this rule operates is crucial. Knowing what the Court looks for when considering a demand is essential. It can make a significant difference if you’re seeking support with your case. This post explains how the referral system works, what you can expect, and the practical steps to follow.

The Matter

The Estate of Gaber Ekladious Awad; The Estate of Ognee Abd Elkodious Mikheil [2025] NSWSC 1346. Slattery J decided not to refer the two self-represented siblings for pro bono legal assistance. His honour opted not to involve the Bar Association or Law Society under UCPR r 7.36 in two related probate matters about the estates of Gaber Awad (“the father”) and Ognee Mikheil (“the mother”). The mother and father had four children. They had two daughters, Marciel (the third defendant) and Nahed (the plaintiff). They also had two sons, Emad (the first defendant) and Ragaie (the second defendant).

Caveat

The parties’ mother died on 9 July 2022, ostensibly leaving Wills dated 19 December 2017 and 22 August 2005. The Wills have left her estate to the parties’ father, Gaber Awad. He died on 7 October 2024. He left Wills dated 23 September 2022, 12 April 2019, and 23 August 2005. To challenge a Will in New South Wales, you usually start by lodging a probate caveat. This is a formal notice filed in the Supreme Court. It temporarily stops a grant of probate from being issued. By placing the administration of the estate on hold, the caveat gives the challenger time. The challenger can then raise concerns about the Will’s validity. This happens before an executor can take control of the estate. In this article, we explain what a probate caveat is. We cover who can file one and how the process works. This is for those seeking to prevent an invalid Will from being admitted to probate.

The Property

Both estates are in dispute. Yet, the real fight concerns the father’s estate. It is centred on a property – a house in Blacktown. The matter involves the plaintiff’s motion. This motion is to remove caveats that the first and second defendants lodged against the plaintiff. These caveats are linked to the application for probate of any of the father’s Wills. It was presented before Lindsay J in mid-September. His Honour has case-managed the proceedings since then. Two of the parties to related probate proceedings are involved in the matter of Estate of Gaber Awad (proceedings 2025/312914). They are also involved in the matter of Estate of Ognee Mikheil (proceedings 2025/312915). They made applications for pro bono legal assistance.

The four adult children are in significant conflict. The plaintiff seeks probate of her father, Gaber Awad’s, 2022 Will. This Will leaves the entire estate to her. The first defendant challenges that Will as invalid. The third defendant, appearing from Egypt, relies on the 2019 Will, which divides the property equally among all four siblings. The 2019 Will is incomplete but still relevant. Caveats lodged by the brothers have prevented the plaintiff from progressing the 2022 Will.

The key estate asset is the Blacktown property, valued at around $950,000–$1.3 million, but heavily mortgaged. Critically, both loans are in deep default. Monthly default interest of over $3,000 is accruing. This swells the total debt to well over $320,000. It is quickly eroding the estate. Earlier representations to the Court suggested that approximately $20,000 was owing. This proved to be completely inaccurate when the parties produced the mortgagee’s statement.

The 2019 Will leaves the Blacktown house to all four children in equal shares. Nevertheless, that Will is incomplete. It does not fully deal with the residuary estate. Evidence suggests the Blacktown property is essentially the estate’s only asset. In September, the parties told Lindsay J—and later repeated to the Duty List judge—that only $20,513.52 remained outstanding on the mortgage.

The plaintiff attempted to prove the 2022 Will. This Will leaves them the entire estate. Nevertheless, it has been blocked by caveats lodged by the first defendant. He alleges that the 2022 Will is invalid—either forged, fraudulent, or produced through undue influence by the plaintiff. The Court will decide those issues if the matter proceeds to a probate trial. Even if the plaintiff succeeds, the defendants can bring family provision claims under s59 of the Succession Act 2006 (NSW).

The Mortgage

The Blacktown property, a vacant house valued between $950,000 and $1.3 million, is heavily mortgaged. The parents took out the loans (111177 and 111410), and some siblings allege the parents were exposed to unconscionable dealings. The Court is not presently in a position to assess that allegation. Meanwhile, the probate dispute has caused significant financial damage to the estate. Mortgage statements reveal a serious problem: both loans are in default, and high default interest (11.5%) is capitalised each month. The Court required the production of these statements to assess the situation appropriately.

For loan 111177, the debt increased from $157,586.49 (as of July 2024) to $177,270.61 (as of June 2025), with monthly interest rising from $1,525.24 to $1,702.43 over the financial year. For loan 111410, the balance increased from $112,238.08 (as of July 2024) to $125,858.71 (as of June 2025), with the monthly interest rising from $1,088.43 to $1,208.70. The siblings told Lindsay J—and later the Duty List judge—that only $20,513.52 remained owing. The mortgagee’s default notices show that the sibling submissions misled the Court.

As at 30 June 2025, the joint debt was $303,129.32, with total default interest of $2,911.13 per month. The situation has inevitably worsened in the months since June. Interest is now above $3,000 per month. The total debt exceeds $320,000. This results in a rapid depletion of the estate’s equity unless the estate can halt the default interest.

Default Notices

The newly produced default notices, nevertheless, show that this was entirely incorrect and had the effect of misleading the Court. As of 30 June 2025, the total debt on the two loans was $303,129.32 ($125,858.71 plus $177,270.61), with $2,911.13 in monthly default interest. The financial position has inevitably deteriorated further in the four months since June. Default interest is now accruing at more than $3,000 per month, pushing the total debt well above $320,000. Unless the estate takes action to stop the rising interest, its equity in the Blacktown property will continue to decrease. The siblings’ ongoing dispute contributes to this erosion. The litigation is expected to continue for some time.

An argument to rent out or sell the Blacktown property aims to preserve the estate’s assets. Still, it seems to have been ignored by the parties. This is due to the entrenched family conflict. The plaintiff filed an affidavit in response to the Court’s directions. It showed the expenditure of money to prepare the house for rental. An estimated rent of $680 per week was also obtained. This is approximately $2,720 per month. Nonetheless, the default interest exceeds this amount by at least $300 per month. For this reason, renting is not financially practical. Extra funds must be injected into the estate.

Given the duration of the dispute, the Court considers that selling the property is in the estate’s best interests. The only choice would be for the plaintiff to contribute significant funds to reduce the mortgage. The plaintiff claims the entire property under the 2022 Will. Still, the plaintiff’s affidavit indicates the lack of means to do so. The hostility between the siblings was significant. As a result, Lindsay J raised the possibility of appointing an independent administrator to take control of the estate. Nonetheless, the Court has yet to take that step.

With the extra financial information now available, the Court has determined something important. All parties should be obligated to show cause why the Court should not appoint an independent administrator. Such an appointment would guarantee impartial communication with the third Defendant in Egypt. This would appropriately safeguard her interests. This action is necessary amid the intense conflict between her Australian siblings.

Slattery J held that the estate is rapidly diminishing. The real problem is not legal representation. It is the preservation of the estate assets. The estate must either sell the property or inject funds to cover mounting interest. Renting the property would still leave a monthly shortfall.

Independent Administrator

Given the siblings’ entrenched conflict, Lindsay J had already warned that the estate needs an independent administrator. With updated financial information, the Court required all parties to show cause why they should not appoint such an administrator. If the dispute is going to continue, the estate must take steps to prevent further financial loss. The property either needs to be rented or sold to preserve its value. The parties have ignored the practical issues amid the family conflict.

The plaintiff’s affidavit was filed after the Court’s directions. It shows she has paid for works to make the property rentable. She has obtained an estimated rent of $680 per week (around $2,720 per month). Even accepting that estimate, rental income is at least $300 per month less than the accumulating default interest. Without external funding, renting is not a practical choice. The Court believes it is in the estate’s best interests to sell the property. This decision is based on the duration of the siblings’ disputes. The plaintiff contribute funds to reduce the mortgage. Yet, her affidavit shows that they can’t afford to do so.

Pro Bono Request

The Court’s record indicates that the conflict between the siblings is severe. Lindsay J has already flagged the possibility of appointing an independent administrator to manage the estate. With the updated financial information now before it, the Court has decided that all parties must show cause. They need to explain why the Court should not appoint an independent administrator. This administrator would help in communicating impartially with the third defendant in Egypt. The goal is to guarantee the proper protection of their interests amid the siblings’ disputes.

The Court returned to the applications by the plaintiff and the first defendant for pro bono representation. The plaintiff’s application was initially granted by Brereton J, contingent on revocation if another party objected. The first defendant objected. He submitted that if the plaintiff receives assistance, he is entitled to the same. This is based on the grounds of fairness. Otherwise, the first defendant prefers that all parties continue unrepresented. The plaintiff submits that their financial means are limited. They have no real property, an old car, some jewellery, and income solely from Centrelink. Nevertheless, the financial circumstances of the others stay unclear.

After observing the plaintiff and first defendant in person, Slattery J considers the dispute to be unusually combative. In these circumstances, the Court views the plaintiff’s claims of financial hardship with caution. Although the claims were not tested in cross-examination. His honour views the entitlement to pro bono assistance with caution.

Turning to the pro bono requests, Slattery J found:

• The pro bono scheme is limited and reserved for genuinely deserving cases.
• The plaintiff and first defendant are capable of representing themselves and pursuing their own interests vigorously.
• There is insufficient evidence that the plaintiff genuinely lacks resources. The plaintiff and the others will gain substantially from the estate.
• Pro bono representation is unlikely to resolve the central issue of estate preservation.
• Parity arguments (that if one gets assistance, all should) failed due to a lack of evidence of genuine need.

The circumstances of this estate need the preservation of limited voluntary resources. These resources are available from the Bar Association and the Law Society for pro bono legal assistance. Thus, referring these proceedings for pro bono legal assistance will not presently advance a resolution. It will not aid the administration of the estate. Importantly, it is neither in the interests of the parties nor in the public interest. Slattery J recommended that the Registrar convey the judgment to the Bar Association. The Bar Association and Law Society should explore whether a junior practitioner can accept the matter. They should also consider offering reduced or deferred fees. Slattery J believes early mediation is appropriate.

The matter comes before Lindsay J again on 25 November 2025. He has orders to consider the possible appointment of an independent administrator. The pro bono applications incurred no costs.

Court-appointed pro bono assistance is not guaranteed. The Court grants it only at its discretion. Judges will closely examine the circumstances. They will be careful before placing any burden on formal pro bono schemes. This is especially true in disputes involving an identifiable estate. In some cases, the Court will instead suggest seeking representation at reduced or favourable rates. Alternatively, proceeding with mediation is considered as a practical step. Litigants should approach the process with realistic expectations. Pro bono referrals exist to support the administration of justice. They do not offer a right to free legal representation. As each application turns on its own merits.

The Court retains an inherent jurisdiction to make decisions about the burial of a deceased person. This applies even where no grant of probate or administration has been issued. (Dayman v Dayman [2024] NSWSC 838 [24]); Brown v Weidig [2023] NSWSC 281 at [29]. Where necessary, the Court issues ancillary or consequential orders to give effect to its decision. The Supreme Court’s inherent jurisdiction arises from the Court’s status as a superior court of record. It is responsible for the administration of justice in NSW (Supreme Court Act 1970 (NSW) ss 22–23). This jurisdiction is not displaced by statute unless Parliament expressly provides otherwise.

The recent authority is Chipizubov v Elias [2025] NSWSC 326 ([12]–[23]). It provides practical guidance. This guidance illustrates the exercise of this jurisdiction resolving disputes of this nature.

Burial disputes often occur during probate or administration proceedings. Yet, the law concerning the disposal of a body occupies a distinct space on the periphery of succession law. It is ancillary to both the protective and probate jurisdictions but is not part of either.

The sensitive and personal nature of burial disputes is acknowledged. The Court recognises that judicially imposed outcomes cause deep distress to grieving families. Thus, the law operates best when there is consensus or acquiescence among those with an interest in the deceased’s remains.

In practice, several principles guide proceedings of this kind:

1. Urgency and evidence: Many burial disputes arise urgently. They are addressed in the Equity Duty List. There is often limited opportunity for cross-examination.
2. Efficient presentation: Parties should avoid excessive material and focus on information essential to a prompt and dignified resolution.
3. Core information needed to inform the Court promptly:
   • Who has custody of the body?
   • persons with an interest in the dispute;
   • available estate assets for funeral expenses;
   • any existing rights of interment;
   • relevant cultural, spiritual, or personal wishes of the deceased and family;
   • details of funeral directors, burial sites, and costs; and
   • Any logistical or legal impediments to burial or cremation.
4. Avoiding joint appointments: Joint control or co-responsibility between disputing parties is generally discouraged. This is due to the potential for further conflict and delay.
5. Independent interim administrator: Appointing an independent practitioner can be the most effective solution. This temporary control manages the body and funeral arrangements. It preserves dignity in challenging situations.
6. Funding and powers: The interim administrator should be empowered from the estate. They must manage both burial issues and associated property matters. This includes rights of interment.
7. Deferred entitlement disputes: Resolution of Questions concerning who ultimately inherits burial or interment rights after completion of the immediate disposal.
8. Cost discipline: Practitioners and parties must keep legal and funeral costs within reasonable bounds.

Recent authorities reaffirm these principles. This includes Chipizubov v Elias [2025] NSWSC 326. The Court has broad discretion to act swiftly. It ensures a respectful and orderly disposal of the deceased’s remains.

Background and Legal Principle

Under the common law, a named executor has the primary right to arrange the disposal of a deceased person’s body. This applies if they are ready, willing, and able of doing so. This requirement is detailed in Smith v Tamworth City Council (1997) 41 NSWLR 680 at 693. It is also outlined in Kak v Kak [2020] NSWSC 140 at [15]. In this case, the second to fourth defendants relied on that principle. They asserted that the fourth defendant, as executrix named in the deceased’s Will, had that right.

13 May 2025 – The Will

The deceased executed a formal will dated 13 May 2025. The document appoints the fourth defendant as executrix. It also expresses a wish to be buried in Sydney. These factors initially supported burial in Sydney according with her will and her executrix’s wishes.

Subsequent Doubts and Family Conflict

Although the Supreme Court had not granted probate to the fourth defendant, the plaintiff challenged the Will’s validity. The attesting witnesses’ evidence confirmed the Will’s proper execution. The plaintiff, nevertheless, argued that the deceased later wished to replace the executrix and change her burial preference.

The deceased was hospitalised from 12 May to 4 June 2025, after which she required ongoing care. In July 2025, a family dispute arose involving the fourth defendant’s husband and the deceased’s car. Thereafter, relations between the deceased and the fourth defendant deteriorated. The plaintiff and Ms Rusila Tamoi primarily took care of the deceased.

2023 – Earlier “Exercise Book” Will

In 2023, the deceased had handwritten an informal “My Will” entry in an exercise book, identifying her daughters and grandchildren. In May 2025, Ms Tamoi rediscovered this notebook. After the July 2025 dispute, the deceased reportedly gave the plaintiff a specific instruction. The instruction was to “cross out Tirisa’s name [the fourth defendant’s middle name] and put your name there, Georgia.” The deceased intended to substitute the plaintiff as executrix.

31 August 2025 – The Alteration

On the day the deceased died, the plaintiff altered the exercise book. She crossed out names and inserted her own in Fijian. This insertion remained untranslated. Brereton J found the alteration did not meet execution requirements under Part 2.1 of the Succession Act 2006 (NSW).

The plaintiff submitted a claim under s 8 of the Succession Act. They argued that the alteration should be treated as an informal amendment to the will dated 13 May 2025. Brereton J rejected this. He held that s 8 was not engaged. This was because the amendment related to an earlier, invalid document. It was neither an alteration nor a revocation of the later formal will.

Status of Proceedings

The parties later agreed that the proceedings concerned only burial arrangements, not probate or the appointment of an executor. Nonetheless, the defendants maintained that the fourth defendant’s status as executrix entitled her to control the burial. The executrix had not applied for a grant of probate but intended to.

Court’s Approach

For the burial dispute, Brereton J accepted that the fourth defendant was the executrix. Ordinarily, she would have the right to arrange the burial. The deceased had apparently changed her mind about the executrix. She also changed her burial wishes. Thus, Brereton J considered departing from the traditional rule. Based on Brown v Weidig [2023] NSWSC 281, his honour recognised a modern shift away from rights-based jurisprudence. It moves towards the management of problems in the absence of community consensus.

Relevant Factors Considered

In exercising discretion, Brereton J applied the factors from Weidig at [38]:

• logistical and financial arrangements for the burial;
• the deceased’s wishes;
• community and family preferences;
• cultural and spiritual considerations; and
• access for mourners.

Wishes of the Deceased

The deceased wanted to be buried in Sydney, near her children and grandchildren. She made her Will on 13 May 2025. She cited concerns about the upkeep of the cemetery in her Fijian village. The fourth defendant secured a burial plot for her in the Pacific Section of Forest Lawn Memorial Park. This location is in Leppington and is near the graves of family members.

Later, during the last two months of her life, there was family estrangement. Afterward, the deceased expressed a wish to the plaintiff. She wanted burial in Nakini village, Fiji. This location is near her parents and brother. The second defendant was the deceased’s eldest son. He disputed a decisive change of mind. He argued that his mother would have followed Fijian custom. She would have informed him, as the eldest son, if she had done so.

Brereton J found that the deceased’s burial preferences shifted over time; initially favouring Sydney. Later, considering Fiji. But neither view represented a lifelong or consistently expressed wish.

Cultural Factors

The deceased maintained strong cultural ties to Nakini village. Her late father had served as Chief there. She regularly visited and supported the community. Yet, the deceased also had deep roots in Sydney. She lived there for over 35 years. She was active in the church.

Fijian custom required the Chief’s permission for burial in the village, after blessings from the deceased’s eldest son and brother. Yet, neither was given, and the deceased’s brother expressly refused to ask for burial approval. The Chief initially indicated acceptance of the plaintiff’s request. But, he later clarified that formal approval only be given upon the brother’s request; effectively blocking burial in Nakini.

Creating a significant practical barrier: the Fijian burial only continue with the brother’s cooperation, which was not forthcoming.

Additionally, family members would need to obtain the Chief’s permission. They would also have to make annual offerings to visit the grave. This process would be financially burdensome. One reason the deceased’s earlier preference for a Sydney burial was to spare her family those costs.

Logistical Considerations

A burial plot at Forest Lawn Memorial Park in Sydney was already reserved. It was also paid for. Arrangements continue without delay. The elapsed time since death made prompt local interment practical. The Fijian custom of early burial ensured it was culturally respectful. The cemetery was near the deceased’s family and community in Australia.

Summary of Outcome

The Court accepted that:

• The 13 May 2025 will was valid and named the fourth defendant as executrix.
• The deceased’s later expressions of burial in Fiji were genuine but not possible under Fijian custom.
• Given the available plot, funding, and proximity to family, burial in Sydney was practical. It aligned with dignity and the deceased’s earlier stated intentions.

Findings on Wishes and Cultural Considerations

The Court found that the deceased had initially intended her burial in Sydney. But, she appeared to reconsider this in her final weeks. She expressed a desire for burial in Nakini village, Fiji, near her parents and brother.

However, Fijian custom required the Chief’s permission, sought by the deceased’s brother. The evidence showed he refused to make the request, and the Chief would not grant permission without it. As such, burial in Nakini village was neither practical nor culturally acceptable.

The Court accepted that burial in Sydney, at Forest Lawn Memorial Park, Leppington, was consistent with her earlier expressed wishes. Other family members were interred there. It also aligned with logistical realities. It also respected the dignity of the deceased and the unity of her local family.

Court’s Reasoning and Outcome

The Court acknowledged the plaintiff’s sincerity in wanting to follow her mother’s later-stated wish for burial in Fiji. Nevertheless, it found that:

• The deceased’s other children did not share that view.
• In May 2025, she had firmly preferred a Sydney burial.
• The cultural and practical impediments made burial in Fiji unworkable.
• Pursuing that choice risked undermining the dignity of the deceased if the village ultimately refused the burial.

The Court held that it was appropriate for the fourth defendant, as executrix, to have carriage of the burial. The burial was to take place at Forest Lawn Memorial Park, Leppington. The funeral director was permitted to release the body to her.

Because the plaintiff was the only party seeking relief, Brereton J dismissed the Amended Summons.

Costs and Orders

The defendants sought costs. The Court recognised that the plaintiff had acted out of genuine concern to fulfill her mother’s perceived wishes. Thus, she should not be penalised.

Orders made:

1. Dismiss the Amended Summons.
2. Recovery of the second to fourth defendants’ costs from the estate of Nanise Tavakayaca Vulagi. After payment of burial and related expenses.
3. Otherwise, there is no order as to costs.
4. Liberty to apply on 24 hours’ notice.

Key Principles Illustrated

• The executor’s prima facie right of burial remains the starting point, but yield to practical or cultural realities.
• Exercise of the Court’s inherent jurisdiction to resolve disputes over burial where no consensus exists.
• A shift away from strict rights-based reasoning toward pragmatic, dignity-focused decision-making is transparent (Brown v Weidig[2023] NSWSC 281).
• Cultural and familial considerations are relevant but not determinative where they conflict with practical realities or community obligations.
• Costs in such matters are often borne by the estate, reflecting the compassionate context of family burial disputes

In New South Wales, the law recognises a presumption of death. This applies when a person has been missing for seven years without any contact. There must be no trace, unless there is evidence suggesting otherwise. In such circumstances, s 40B of the Probate and Administration Act 1898 (NSW) provides the legal basis. It allows declaring a missing person deceased. It also enables the administration of their estate. Under this provision, the Supreme Court can issue a grant of probate or letters of administration. The court does this if it is satisfied by evidence that the person is presumed to have died.

The distribution of the estate can’t occur without the Court’s express approval. This approval must be either within the grant itself or by a separate order. The Court plays a crucial role in this process. The Court has the discretion to demand security as a safeguard. This security can be a monetary deposit paid into Court before authorizing the distribution of the estate.

When someone is presumed dead but there is no body, the process involves a few steps. First, apply for a Grant of Probate. Alternatively, apply for Letters of Administration. This allows the deceased’s legal personal representative to manage the estate. The executor or proposed administrator must obtain the Court’s permission to distribute the deceased’s assets. The Court needs security, like a monetary deposit, to safeguard against future claims.

In considering an application of this kind, the Court examines the circumstances of the disappearance and any available evidence. This includes the person’s physical and mental condition, family relationships, financial and insurance records, and the nature of any debts. It also considers the results of searches and inquiries. It reviews statements from friends or relatives who would usually have heard from them. Together, this information helps the Court decide whether to apply the presumption of death and distribute the estate safely.

The leading Australian authority on this issue is Axon v Axon (1937) 59 CLR 395. It establishes the legal presumption of a person’s death. In this case, Dixon J explained the distinction. It involves proving death by direct evidence. It also involves using circumstantial evidence or relying on a legal presumption. His Honour stated that the Court presumes the person is dead. This is applicable if they have not been seen for at least seven years. This applies when they have not been heard from by those who would typically expect to hear from them. The Court presumes the person is dead if certain conditions are met. This applies only if there is no evidence to the contrary. This presumption is made at the time of the proceedings. Nevertheless, the presumption does not extend to determining the exact time or date of death. It merely establishes that when considering the issue, the person is no longer living.

“… The presumption of life is but a deduction from probabilities and
must always depend on the accompanying facts …. As time increases, the inference of survivorship may become inadmissible, and after a period arbitrarily fixed at seven years, if certain conditions are fulfilled, a presumption of law arises under which a court must treat the life as having ended before the proceedings in which the question arises. If, at the time when the issue whether a man is alive or dead must be judicially determined, at least seven years have elapsed since he was last seen or heard of by those who in the circumstances of the case would according to the common course of affairs be likely to have received communication from him or to have learnt of his whereabouts, were he living, then, in the absence
of evidence to the contrary, it should be found that he is dead.”

Dixon J in Axon v Axon (1937) 59 CLR 395 at 405.

The principle has been applied in subsequent cases. Hallen J discussed this in Guo v Guo [2021] NSWSC 1059, at [101-130]. This discussion features a collection of relevant authorities. In the current case, there is no direct evidence of Gary’s death. There is also no circumstantial evidence. There is no indication as to whether he remains alive or not. Thus, the legal presumption of death is the only basis available for concluding that he has died. This presumption is described by Dixon J in Axon v Axon.

The plaintiff, Sheila Francis, was the only child of Gary and Pearl Francis. The plaintiff had not been in contact with her father since around 2001. His whereabouts remained unknown despite extensive efforts to locate him. Her mother, Pearl, died in 2020. The plaintiff applied to the Supreme Court of NSW for

(1) a grant of administration of Gary’s estate on the presumption of death and intestacy, and

(2) A grant of administration of Pearl’s estate on intestacy is required. This is done under sections 40B and 63 of the Probate and Administration Act 1898 (NSW). Intestacy refers to when a person dies without leaving a valid Will. It also refers to when a person leaves a Will that does not dispose of all of their property.

As an alternative, the plaintiff sought a declaration for Gary’s interest in Property 41. He and Pearl owned it as joint tenants. The interest was held on trust for Pearl. This effectively vested full ownership in Pearl’s estate.

Francis v Francis [2025] NSWSC 906, heard in the probate list, was unopposed—Gary neither appeared nor was represented. Gary Francis was born in Australia in 1956. His wife, Pearl Tham, was born in India in 1949 and migrated to Australia via Hong Kong in 1974. The couple married in 1978 and had a daughter, Sheila, the following year. They separated in 1980 and never lived together again, though neither sought a divorce.

After the separation, Pearl worked as an accountant and in 1982 bought a house in St Clair, Sydney (property 41). Pearl couldn’t obtain finance in her own name. Therefore, she added Gary’s name to the title as a joint tenant and co-mortgagor. However, Gary never lived there. Slattery J found that Pearl paid off the mortgage entirely on her own by about 1997.

A Second Family Property: Number 45

After separating, Pearl stayed close to her family. Pearl bought another house with her brother, Louis Tham, and their parents. It was two doors down on the same street (property 45). Members of the Tham family lived there for many years, with Sheila becoming very attached to it.

Pearl and Louis became joint owners following their parents’ deaths. By 2019, Louis had lost capacity. Trustees were appointed under section 66G of the Conveyancing Act 1919 (NSW) to sell the property.

Gary’s Disappearance and the Presumption of Death

Gary’s last known contact with Pearl and Sheila was at his mother’s funeral in January 2001. Following which, he vanished. Property searches revealed that Gary sold the real estate he had inherited in Rosebery in mid-2002. After that, there was no further trace of him.

Extensive searches, including skip-trace investigations, yielded no results. Both of Gary’s brothers, who might have known his whereabouts, have since died.

A person is presumed dead under s 40B of the Probate and Administration Act 1898 (NSW). The rule in Axon v Axon (1937) 59 CLR 395 also supports this presumption. This applies if they have been missing for at least seven years. They must also not have been heard from by those who would normally expect to have contact. The Court applied this presumption in Gary’s case.

The Later Years: Pearl and Louis’s Estates

Pearl died in August 2020 as a joint tenant of property 45. Pearl’s share passed automatically to Louis, who died in Victoria in August 2022, without children and predeceased by his sister.

Under the Succession Act 2006 (NSW) s 129(3), Sheila — Pearl’s only surviving child became entitled to Louis’s interest. This entitlement is dependent on competing claims. A woman claimed to be Louis’s de facto partner. She contested his estate. That dispute and related Victorian proceedings were settled in February 2025 by a Deed of Family Arrangement.

Under that settlement, half of Louis’s share of the sale proceeds of property 45 would be paid to Pearl’s estate. This is after costs. Sheila represented Pearl’s estate in those proceedings.

Sheila’s Position: Living at Number 45

Sheila had been living at property 45 and wanted to stay there permanently. She intended to sell property 41 to finance the acquisition of the other interests under the settlement. Nonetheless, there were still outstanding trustee costs and delays in finalising Gary’s estate.

In November 2024, the trustees for sale obtained a writ of possession against her. When the probate issues later came before the Court in May 2025, the judge stayed the writ. This was on the condition that Sheila list property 41 for sale. She had to do this within three months of being appointed administrator of Pearl’s estate.

The Court’s Decision

Slattery J held that Gary was presumed dead. This decision granted Sheila administration of both his estate and Pearl’s estate. This was done under section 63(b) of the Probate and Administration Act 1898 (NSW). This provision allowed her to manage the estates. It also enabled her to implement the terms of the Deed of Family Arrangement concerning property 45.

The Court also found that Pearl was the sole beneficial owner of property 41. She alone made the mortgage payments. Pearl was responsible for maintaining the property.

Key Legal Principles

Presumption of Death: After seven years with no contact, the Court can presume a person is deceased. This presumption stands if there is no evidence to the contrary.
Joint Tenancy and Survivorship: When a joint tenant dies, the surviving joint tenant automatically inherits the property. This occurs regardless of wills or intestacy.
Beneficial Ownership: If one co-owner contributes all the purchase money, the Court find that person is the true owner. This means they hold beneficial ownership.
Administration of Multiple Estates: Family members’ estates can become intertwined. In such cases, coordinated grants of administration be necessary. This process resolves property entitlements.

Why It Matters

Francis v Francis [2025] NSWSC 906 illustrates the presumption of death interaction. It highlights the practical difficulties families face when a person disappears without a trace. This is particularly challenging where multiple estates, joint tenancies, and family settlements overlap.

Gary and Pearl married in 1978, had Sheila in 1979, separated in 1980, but never divorced. In 1982, Pearl purchased Property 41 as a joint tenant with Gary to secure a loan. Later, she acquired Property 45. This was a nearby property. She made this acquisition with her brother, Louis Eugene Ernest Tham. Her parents, Michael and Sheila Tham, were also involved. Members of the Tham family lived in number 45 for many years. Sheila is very attached to number 45. She now wishes to buy it from the trustees who hold its title.

Purchase of Property 45

Pearl’s parents, Sheila and Michael Tham, passed away in 2005 and 2009. After their passing, ownership of property 45 remained jointly held by Pearl and her brother Louis. In 2019, Louis became legally incapacitated. His trustees applied under s 66G of the Conveyancing Act 1919 (NSW). They sought to have trustees appointed for the sale of property 45. The Court appointed John Mann and Benjamin Dornan as trustees for sale. When Pearl died in August 2020, her interest in property 45 passed automatically to Louis as the surviving joint tenant. The timing of Gary’s death did not affect this.

Louis later died in August 2022 in Victoria, without children. Under s 129(3) of the Succession Act 2006 (NSW), his estate passed to Sheila. She was his niece and Pearl’s only child. This was conditional to any competing claims. Nonetheless, a woman claiming to be Louis’s de facto partner and another party both lodged claims against his estate. These disputes were settled in February 2025. A Deed of Family Arrangement was made. Sheila represented Pearl’s estate. The Victorian State Trustees represented Louis’s estate. Under the Deed, half of Louis’s share of the sale proceeds from property 45 was allocated to Pearl’s estate. This was done after payment of the trustees’ costs.

Sheila had been living in property 45. She hoped to buy out the other interests. She planned to use proceeds from the sale of property 41. Nevertheless, delays in administering Gary’s estate and accrued trustee costs complicated matters. In November 2024, the trustees obtained judgment and a writ of possession against her. When the probate issues came before the Court in May 2025, a stay of enforcement of the writ was granted. This was conditional upon Sheila listing property 41 for sale within three months of her appointment as Pearl’s administrator.

In Francis v Francis [2025] NSWSC 906, Slattery J considered the administration of both estates. He also examined the ownership of the two properties. The plaintiff had not heard from Gary since 2001. His last known act was the sale of real estate in 2002. Searches through various government and financial records revealed no trace of him. Given his absence of over seven years, the Court presumed Gary’s death as of the date of the hearing.

Sheila had discharged the burden of proving the presumption of death. There was no evidence suggesting Gary was alive during the relevant seven-year period. Thus, the Court appointed Sheila administrator of Gary’s estate under ss 40B and 63(b) of the Probate and Administration Act.

Suppose Gary had become the sole owner of Property 41 by survivorship if he had survived Pearl. Sheila was incapable of establishing the order of their deaths. Slattery J made an observation as a result. He noted that s 35 of the Conveyancing Act 1919 (NSW) did not adequately address this uncertainty. He called for law reform.

Slattery J held that Gary’s share in Property 41 was held on a resulting trust for Pearl. This meant it formed part of her estate. This supported Sheila’s alternative claim for a declaration to that effect. It would simplify the transmission of the property and reduce costs. The Court ordered liberty to apply for such a declaration. Leave to distribute the estate under s 40B(3)–(4) requires Court approval before distribution. It also allows notice to be given to potential claimants if the presumed-dead person is still alive.

Concerning Property 45, Pearl’s parents died in the early 2000s. As a result, Louis and Pearl were the surviving joint tenants. Upon Pearl’s death, Louis became the sole owner by operation of the law of survivorship. When Louis died intestate and childless in 2022, proceedings determined his heirs. A family arrangement later divided his estate, with half passing to the beneficiaries of Pearl’s estate.

Gary and Sheila may have survived Pearl. Slattery J granted administration of Pearl’s estate to Sheila but did not decide the ultimate distribution between the two estates. Further applications—like a Benjamin order or leave to distribute under s 40B—are necessary to finalise entitlement and distribution.

Administration of Estates

The Court determined that Sheila is entitled to administer Gary’s estate. She is Gary’s sole surviving next of kin. This entitlement is under the Probate and Administration Act 1898 (NSW) section 63(b). Pearl is Gary’s only surviving child. She is also the sole beneficiary of his estate under intestacy under section 127(1) of the Succession Act 2006 (NSW). Therefore, the Court granted her letters of administration for Gary’s estate.

Pearl died intestate. Since Gary is presumed deceased, Sheila is her sole surviving next of kin. She is also the beneficiary. The Court therefore appointed Sheila as administrator of Pearl’s estate. This empowers her to manage assets. This includes proceeds from property 45 held under a deed of settlement arising from Victorian proceedings.

Determining Order of Death: Gary and Pearl

The key legal issue was whether property 41 passed through Gary’s or Pearl’s estate, depending on who died first. The plaintiff knew Pearl’s date of death (August 2020), but the date of Gary’s is uncertain. The presumption of death does not establish when Gary died, only that he is now presumed dead.

Sheila’s counsel argued that Gary likely predeceased Pearl due to his long absence, but Slattery J found this unconvincing. There was no evidence beyond his disappearance to determine the order of death.

Application of Conveyancing Act 1919 (NSW) s 35 (Presumption of Survivorship)

Section 35 presumes that when two people die in uncertain circumstances, the younger is presumed to have survived the elder. Authorities disagree on whether this applies when presuming only one person’s death.

In the Estate of Keith Hilton Dixon (1969) [1969] 2 NSWR 223, Helsham J made a notable ruling. He held that the section can apply in cases of presumed death.

Nonetheless, in Re Albert [1967] VR 871; Halbert v Mynar [1981] 2 NSWLR 659, Lush J and Waddell J declined to follow Dixon, reasoning that applying s 35 in such circumstances produce anomalies

Later NSW cases reaffirmed this uncertainty. These cases include Public Trustee v Attorney-General (1984). Another case is Application of Morison. There is also Re Morison [2022] NSWSC 1758. Finally, there is Guo v Guo [2021] NSWSC 1059.

Cohen J in Public Trustee v Attorney-General (unreported, NSWSC Eq, Cohen J, 3 August 1984) made a suggestion. He said that evidence of health at last sighting should be considered. Such evidence might help infer survivorship. However, such evidence was absent here.

Slattery J concluded that although not aware of the order of death this did not affect Sheila’s entitlement. Under s 127(1) of the Succession Act, property 41 is inherited either way. This illustrates a need for law reform. It is important to make sure that s 35 covers uncertainty in the order of death. This is crucial when the presumption of death is applied.

Alternative Relief and Further Orders

Slattery J noted that Sheila’s appointment as administrator of Pearl’s estate allows for the management of the Victorian property proceeds. These proceeds are from property 45. Additionally, it recognised another pathway. It declared that Gary held his interest in property 41 on resulting trust for Pearl. This simplifies transfer to Sheila and reduce costs. Slattery J granted liberty to apply for this declaration. He also granted liberty for any further directions under the Probate and Administration Act s 40B(3)–(4). This was done before the proceeding directions hearing.

The Court rejected the plaintiff’s counsel’s submission. They inferred that Gary died before Pearl merely because of his long absence. They also considered his lack of contact. The evidence only supported the conclusion that Gary is now presumed dead under the law. It did not support that he predeceased Pearl.

Plaintiff’s counsel further relied on s 35 of the Conveyancing Act 1919 (NSW). This section establishes a presumption of survivorship. Where two people die in uncertain order, there is a presumption the younger survived the elder. Nevertheless, authorities are divided on whether that section applies on the presumption of death only. In Estate of Dixon (1969) WN (NSW) 469, Helsham J held that s 35 does apply to presumed deaths. He reasoned that a presumed death is still a death in law.

“it has been clearly established by the authorities that where
death is presumed as a result of seven years unexplained absence a Court will not, in the absence of evidence, infer that death occurred at or before any particular date; the presumption is limited to a conclusion that at the time of the relevant proceeding the man is dead; Axon v. Axon (1937),59 C.L.R. 395; Re Phene’» Trusts (1870),5 Ch. App.
139; [1861-73] All E.R. Rep. 514, referred to.
(2) Whether a person is or is not a next-of-kin of the deceased is a matter
“affecting the title to any property” (within the meaning of s. 35 of the Conveyancing Act) if the deceased is proved to have left some property and the proceedings in which the question arises touch or concern such property. The words of the section are wide and should not be read down in any way that would restrict their operation; Re Grosvenor; Peacey v. Grosvenor, [1944] 1 All E.R. 81; [1944] 1 Ch. 138,
referred to.
(3) Death which is presumed by reason of unexplained absence is no less a fact because it arises by a presumption of law, and in my view is just as much a death falling within the terms of the section as any other death. I therefore hold that s. 35 includes the case of death presumed from an absence of seven years, where the common law presumption of death applies.
(4) Section 35 is not restricted to commorientes, but is applicable to all cases where deaths occur and there is uncertainty as to the order in which they happened. Hickman v. Peaceu, [1945] 2 All E.R. 215; [1945] A.C. 304,”

Re Albert [1967] VR 875 and Halbert v Mynar [1981] 2 NSWLR 659 declined to follow Dixon J by contrast. They warned that applying s 35 of the Conveyancing Act 1919 in such cases lead to anomalies. Later cases and commentary continue to explore the uncertainty. These cases include Public Trustee v Attorney-General (unreported, NSWSC Eq, Cohen J, 3 August 1984). They also include Application of Morison [2022] NSWSC 1758. Another case is Guo v Guo [2021] NSWSC 1059. Additionally, standard texts by Dal Pont and James, Liebhold, and Studdert also discuss the issue.

Cohen J in Public Trustee v Attorney-General (unreported, NSWSC Eq, Cohen J, 3 August 1984) made a suggestion. He stated that evidence about the missing person’s health when last seen sometimes assists in inferring survival duration. Specifically, it helps in figuring out who survived longer. Yet, such evidence was unavailable in Francis v Francis [2025] NSWSC 906. As a result, the Court could not conclude through which parent’s estate Sheila ultimately inherits property 41. This uncertainty made no practical difference as Sheila would inherit in either case. Slattery J observed that this uncertainty highlights the need for law reform. It is necessary to guarantee s 35 covers uncertainty in the order of death. This provision should apply where the presumption of death is applied. (at[37])

His Honour also noted that Sheila’s appointment as administrator of Pearl’s estate allows her to manage property 45. It also permits her to manage the trustees under the Victorian settlement deed. Finally, Slattery J indicated another declaration under prayer 7 of the Summons. This declaration states that Gary held his share of property 41 on a resulting trust for Pearl. Offering a more straightforward and cost-effective way to vest the property in Sheila. Liberty is granted to apply. The matter will return to Court on 21 October 2025. Any further orders or directions will be under s 40B(3)–(4) of the Probate and Administration Act 1898 (NSW).

Slattery J indicated that the orders are conditional to the Court hearing further submissions upon the formal final orders reached. The plaintiff should inform the parties to the settlement of the Victorian proceedings of these orders. This will ease implementation of that settlement.