Grant of administration; presumption of death

In New South Wales s40A(1) of the Probate and Administration Act 1898 (NSW) provides that if the Court is satisfied by direct evidence or on the presumption of death, that a person is dead it has jurisdiction to grant administration of the person’s estate, notwithstanding that subsequently the person was living at the date of the grant.

the circumstance underlying the presumption is that the absence of the missing person is without acceptable explanation…There are a number of circumstances to be taken into account and one of these is if there is in fact a valid explanation as to why a person has not been heard of for the period of seven years or more.

Estate of Rita Gamble (10 December 1973, unreported)

Where a grant is made on the presumption of death s40B provides:

  • (1) If a grant of probate or administration is made on the presumption of death only, the provisions of this section shall have effect.
  • (2) The grant shall be expressed to be made on the presumption of death only.
  • (3) The estate shall not be distributed without the leave of the Court.

There are four essential matters which must be found on the balance of probabilities.

  • there must be an absence for seven years.
  • the missing person has not been heard of in that time,
  • those who might be expected to have heard of the person have not done so, and
  • that due inquiries have been made.

Having referred to a presumption of life that occurs in certain circumstances, Axon v Axon (1937) 59 CLR 395 continued:

“… 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 Application of Jill May Morison; In the matter of Neil Walter Morison [2022] NSWSC 1758

Neil Walter Morison (”NWM”) went missing in about 1972 and has not been seen, or heard of, since. There are no reasons known to NWM’s sister Jill (”the Plaintiff”) for him not to have communicated with the members of his family since then. NWM joined the Australian Defence Force in April 1971 but was discharged on 13 October 1972 for being absent without leave.

At the time that NWM disappeared he was not married, or in a de facto relationship, and had no children. NWM had eleven siblings, some of whom died before the plaintiff made the application. Both his parents had died. Before he went missing, NWM appeared to be happy, about his life, had been in regular contact and had strong family relationships with his family. There is no direct evidence that NWM has died. However, because of the time that has elapsed, the Court held that it was not necessary to bring positive proof of his death.

The Court was satisfied that all reasonable investigations had been undertaken by the Plaintiff to determine whether NWM is still alive and any further searches would be unnecessarily expensive and time-consuming, with no reasonable prospect of eliciting any further information importantly the cost of further investigation is, proportionately, too great: s 56 of the Civil Procedure Act,

The Court held that there was no acceptable, affirmative, direct, or inferred evidence that NWM was dead, the Plaintiff relies upon proof of death by the presumption of law. Following examination of the evidence to determine whether it is consistent with the presumption and the plaintiff’s submissions; the Court was satisfied, on the balance of probabilities that

  • NWM has been missing for more than 7 years;
  • his disappearance is unexplained and his body has not been discovered or identified.
  • There was a sudden cessation of communication which has now persisted for a long time. The persons who would have been likely to have heard from NWM, have not heard of him, in circumstances that it would be expected that he would have been in contact with each if he were still alive.
  • All due inquiries have been made appropriate to the circumstances

Section 40B(3) of the Probate and Administration Act provides that the estate shall not be distributed without the leave of the Court either unconditionally or subject to such conditions as the Court deems reasonable, and in particular, if the Court thinks fit, subject to an undertaking being entered into or security being given by any person who takes under the distribution that the person will restore any money or property received by the person or the amount or value thereof in the event of the grant being revoked.

The Court was satisfied, taking into account the time elapsed since there has been any contact with, or communication from NWM, that leave to distribute should be given unconditionally with the Plaintiff’s costs, calculated on the indemnity basis, paid out of the estate of NWM.

Intestacy, estoppel & the unknown child

Where a party acts on “an assumption as to the future acquisition of ownership of property which had been induced by representations upon which there had been detrimental reliance by the plaintiff”, the Court may grant relief to vindicate the assumption in whole or in part: Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 at 112; [1999] HCA 10 at [6] (Gleeson CJ, McHugh, Gummow and Callinan JJ); in Trentelman v The Owners – Strata Plan No 76700 [2021] NSWCA 242; (2021) 106 NSWLR 227 at 257; [2021] NSWCA 242 at [116][117] Bathurst CJ set out the elements to be proved:

(1) An owner of property (the representor) has encouraged another (the representee) to alter his or her position in the expectation of obtaining a proprietary interest; and

(2) The representee has relied on the expectation created or encouraged by the representor; and

(3) The representee has changed his or her position to their detriment; and

(4) The detrimental reliance makes it unconscionable for the representor to depart from the promise or representation.

As soon as there has been a detrimental reliance the party who created the expectation is bound by an estoppel by encouragement. The Court judges this objectively and the detriment must be material.

Background

Richard John Janson (the deceased) aged 67 died on 23 April 2019 in a car accident after he suffered a brain aneurysm while driving. The deceased was survived by his mother, Valerie his brother, Kevin The deceased was also survived by two persons whom the Court has found to have played a significant role in the lives of the deceased and Valerie – Raymond and Francine Daniel.

The deceased died intestate. Letters of administration of the deceased’s estate were granted to Valerie on 18 September 2019. The effect of the intestacy provisions in the circumstances was to make Val the sole beneficiary of the whole of the deceased’s intestate estate.

The primary assets in the deceased’s estate are two real properties at Merrylands West and North Richmond. There are two adjacent parcels of real property at Merrylands West (No 36) and the adjoining property, owned and occupied by Valerie at the date of her death (No 34). Raymond has lived in the deceased’s property at No 36 since 2005.

Raymond, the plaintiff in Daniel v Athans [2022] NSWSC 1712 claims to have been a close friend and, a member of the deceased’s household and dependent on the deceased for his accommodation from 2005 until Richards’s death. Although still married, Raymond and Francine are separated but remain friends, and Francine says she was, for some time, Val’s carer.

Luke Athans, the defendant is Richard’s biological son. Luke’s existence was unknown to Val, Kevin, and Raymond until April 2020 when he first met with Val. The parties now agree, based on subsequent DNA testing, that Luke is Richard’s biological son and is entitled to the whole of the intestate estate.

Raymond and Val were put on notice of the results of two DNA tests of Luke in February 2021 and June 2021. Raymond first sought legal advice in respect of the consequences of Luke’s appearance in late June 2021.

Luke’s appearance dissolved the basis:

  • for the grant of letters of administration to Val, and to her entitlement to the whole of the deceased’s intestate estate and
  • which Raymond, who had been living in No 36 with Val’s consent, could continue to reside in that property.

The proceedings

Raymond commenced proceedings by statement of claim on 10 July 2021 based on equitable estoppel arising from a series of representations the deceased made in respect of his occupation and, later, ownership of No 36. seeking :

  • a declaration that Luke as the administrator of the deceased’s estate holds No 36 on trust for Raymond and
  • an order that No 36 be transferred to Raymond.

Alternatively, Raymond seeks an order that the administrator of the deceased’s estate pay equitable compensation to Raymond, and further an order for further provision from the deceased’s estate under Ch 3 of the Succession Act 2006 (NSW). The plaintiff acknowledged that the family provision application had been brought out of time; an order of the Court is required to commence that application.

Luke filed his defence on 29 July 2021.

Val made her last will on 30 October 2021 (Val’s 2021 Will) gifting Francine a 50 per cent share of her estate. Val died on 6 November 2021 with probate granted to Francine on 28 April 2022. Before her death, Val made three affidavits which although read in the proceedings could not be cross-examined.

Raymond pleaded his equitable estoppel claim in two tranches, each of which consists of a pleading as to representations made by the deceased to Raymond and a subsequent pleading as to Raymond’s response to these representations in the form of work and assistance rendered to the deceased and Vall.

The first tranche concerns what the pleadings refer to as the “2005 Representations”, in late 2004 the deceased told Raymond that he would be able to occupy [No 36] as long as he wished if he:

a. looked after Val when the deceased was not around;

b. helped the deceased to clean up [No 36]; and

c. assisted to pay the bills and rates;

Raymond submitted that, from early 2005 to 2016, Raymond rendered “Initial Work and Assistance” in respect of No 36 and of Valerie in reliance on the 2005 Representations. The deceased should have known Raymond undertook those tasks in reliance on those representations

The second tranche refers to the “2016 Representations”, in early 2016 the deceased told Raymond that:

a. he would give [No 36] to Raymond.

b. [No 36] belonged to Raymond.

Importantly Raymond submitted between 2016 and his death, the deceased explained to friends that [No 36] belonged to Raymond. Additionally the deceased had conversations with Val in Raymond’s presence concerning the arrangements to transfer ownership of [No 36] to Raymond.

Luke was unable to give any evidence that the Court felt was persuasive concerning the events that Raymond alleges gave rise to the equitable estoppel in respect of No 36.

The decision

The Court concluded that the deceased intended that Raymond would be the recipient of his property at No 36. Luke, as the administrator of the deceased’s estate, holds No 36 on constructive trust for Raymond. Although the Court found it unnecessary to determine the alternative family provision application, it held that it was appropriate for the sake of judicial efficacy and to provide further context to the equitable estoppel claim to set out the factual matters bearing on the family provision claim; at 183-195

Although Richard was survived by his mother, brother, and two close friends who were dependent on the deceased for accommodation he did not leave a will and hence died intestate. The effect of the intestacy provisions was to make Val and then Luke the sole beneficiary of the whole of the deceased’s intestate estate. If Richard had made a will his estate could be distributed as he wished.

Pre-operative change of will challenged

“Darkness and suspicion are common features in will cases: the truth too often is the secret of the dead or the dishonest. Because it is often difficult, and sometimes impossible, to discover the truth, the law insists on two types of safeguard in will cases. The first type of safeguard is … the requirements of proper form and due execution. Such requirements … are no mere technicalities. They are the first line of defence against fraud upon the dead.

The second type of safeguard is the second line of defence. It is invoked where there are circumstances which give rise to suspicion; it is the safeguard of strict proof. In cases where no suspicion reasonably arises the court will allow inferences … to be drawn from the regularity of a testamentary instrument upon its face, or the fact of due execution. But if there are circumstances, whatever be their nature, which reasonably give rise to suspicion, the court must be on its guard. It must ensure that the burden of proof rests upon the party propounding the will: and “[the propounder] must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator.’”

IN THE ESTATE OF FULD, DECD. (No. 3); HARTLEY AND ANOTHER v. FULD AND OTHERS(ATTORNEY-GENERAL INTERVENING) 2 WLR 717; [1965] 3 All ER 776; [1968] LRP 675; 1968 P 675

In Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw [2022] NSWSC 1279 Zina Dybac and Basil Czerwaniw contested the validity of the will document their mother Apolonia Czerwaniw signed in the operating theatre in early January 2020 three weeks before she died.

Background

In early January 2020 following years of medical problems Apolonia was admitted to hospital to relieve a vascular obstruction in her right leg. After undergoing two sets of unsuccessful procedures to restore blood flow to the leg Apolonia was scheduled for more serious vascular surgery at about 8 pm on January 9 2020.  At around 2 pm Apolonia was given anaesthetic agents and other drugs.

Immediately before her surgery, Apolonia refused to consent to the operation unless she could make a will. The attending doctors wrote out a document that left her house to her son, Basil and entitled the document ‘change of will’. The attending doctors witnessed the execution of the document in accordance with section 6 of the Succession Act 2006. 

The doctors did not raise any questions about Apolonia’s estate, her family or any other beneficiaries. Importantly when writing the document the doctors were unaware that Apolonia had two children.

The change of will document contrasted with Apolonia’s previous wills and codicils. Her will of 2005 and the codicil of 2009 had divided her property equally between Zina and Basil as had an informal testamentary document executed in 2018. Additionally, the Change of Will document did not effectively dispose of the entirety of Apolonia’s estate and would not fully replace Apolonia’s 2005 will and the 2009 codicil.

Moreover, the practical effect of the Change of Will document is to give virtually all of Apolonia’s estate to Basil. It would have made sense for Apolonia to revoke Zina’s appointment as her executor and appoint Basil in her place. But due to the fast pace of events in the operating theatre and lack of legal advice, this did not happen.

Appolonia survived the surgery however she died on 28 January 2020 of other complications related to her vascular obstruction.

The matter

Zina contends that Apolonia lacked testamentary capacity when she executed the 9 January 2020 Change of Will document or alternatively that she did not know and approve its contents. She seeks the admission to probate of the 2005 will, in which she is named as executrix, and the 2009 codicil.

Basil seeks a grant of letters of administration with the will annexed, of the Change of Will document, contending that Apolonia knew and approved its contents and that she had testamentary capacity at the time of its execution.

The parties accept that the 2005 will and the 2009 codicil are valid testamentary documents executed by Apolonia; if the Change of Will document is found not to be Apolonia’s last will, they agree to the admission to probate of the 2005 will and the 2009 codicil.

The decision

The Court held that the speed and force of Apolonia’s decision to change her will was remarkable. Basil denied that he had discussed changing the will with his mother before leaving her in the anaesthetic bay at about 7.00 pm. However, the Court believed the notion that the first time Apolonia wished to alter her will occurred after 7.00 pm and that she was prepared to veto life-saving surgery indicated a disturbance in her normal patterns of behaviour and thinking about important life decisions was affected by the

‘quantity of medications administered to Apolonia would be likely [to] have had a substantial effect upon her reasoning and judgment when she executed the Change of Will document, or at least that cannot be excluded on the balance of probabilities’

Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw [2022] NSWSC 1279 at 249

The Court considered the countervailing consideration that when Apolonia was presented with unexpected and potentially risky surgery following the failure of two other procedures in which she would be placed under a general anaesthetic at an advanced age may have prompted the idea that had been in existence for a long time.

However the evidence of the expert anaesthetists about two fundamental characteristics of the medications, their half-life and their pharmacokinetic and pharmacodynamic effects were relevant to the conclusion that the Court was

‘ unsatisfied that she was of sound mind, memory and understanding when she executed the Change of Will document’

Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw [2022] NSWSC 1279 at 249

as a result, the change of will document was not admitted to probate.

The floating obligation of mutual will contracts

Mutual wills refer to contracts not to revoke a will after the death or incapacity of the other contracting party. Usually, a couple agrees that the property of whoever is the last to die will go to a specified beneficiary. Importantly there must be some independent evidence of a contract between the persons making the corresponding wills: Gray v Perpetual Trustee Co Ltd (1928) 40 CLR 558; 34 ALR 238; [1928] AC 391.

However, where a surviving testator expresses ‘clear and satisfactory’ evidence that there was a contract with the other testator that they would leave mutual wills this has been considered to be admissible:

“…the admission by an owner of property that he is not entitled to a particular right or interest in that property is binding upon a person who succeeds merely to the interest of that predecessor in title.”

Nowell v Palmer (1993) 32 NSWLR 574 at 578

Typically, where there is a breach of a mutual will contract the aggrieved party can rely on the contract to obtain damages or specific performance. However, there is no privity of contract for beneficiaries who are not parties to the mutual wills contract. On the death of a party to a mutual wills contract, equity will recognise a constructive trust over the assets the subject of the mutual wills contract, with beneficiaries having an enforceable right against the constructive trustee.

“… A contract between persons to make corresponding wills gives rise to equitable obligations when one party acts on the faith of such an agreement and dies leaving his will unrevoked so that the other takes property under its dispositions. It operates to impose on the survivor an obligation regarded as specifically enforceable. It is true that he cannot be compelled to make and leave unrevoked a testamentary document and if he dies leaving a last will containing provisions inconsistent with his agreement it is nevertheless valid as a testamentary act. But the doctrines of equity attach the obligations to the property. The effect is that the survivor becomes a constructive trustee and the terms of the trust are those of the will which he undertook would be his last will.”

Dixon J in Birmingham v Renfrew at 683

Background

James Thynne (the deceased) a solicitor, died on 22 June 2011. The deceased married twice and the plaintiff, Harry Thyne (Harry), was born to the deceased’s first wife Catherine Reid. The deceased and Catherine Reid divorced in 1990.

In September 1996, the deceased married Victoria Sheringham the second defendant. Their son, Patrick Thynne (Patrick), was born in December 1996.

The deceased owned a property in Darling Point, Sydney and a farming business conducted on a property known as Elanora on the Pacific Highway at Valla, New South Wales.

The land at Elanora had originally been owned by the deceased’s parents but was transferred to the first defendant company (Jevny) on 9 December 1981.

Jevny has two shares on issue. One of them was transferred to Victoria on 2 November 2006, and the other on about 2 March 2012. She still holds those shares.

In his will dated 25 March 2011 the deceased appointed Victoria, and two others as executors and trustees of the Will which provides for several specific bequests to Harry, Patrick and Victoria. At the same time as making his Will the deceased signed a Memorandum of Wishes (the Memorandum), which was counter-signed by Victoria, who agreed to and acknowledged its terms.

Probate of the Will was granted on 25 March 2011. The Darling Point property was transferred to Victoria on 7 September 2012 under s 93 of the Real Property Act 1900 (NSW) (the Act).

Victoria has continued to operate the cattle and macadamia business on Elanora and has mortgaged the Darling point property to Westpac Banking Corporation as security for an overdraft facility.

The proceedings

On 27 July 2022, Harry commenced proceedings against Jevny and Victoria seeking a declaration that Victoria holds the Darling Point property on trust for Harry and Patrick on the terms expressed in the Memorandum.

On 27 October 2022, Harry lodged a caveat on the Darling point property, under s 74F of the Act. Under the Act, a person may lodge a caveat with the Registrar-General if they have a legal or equitable interest in land.

A caveat notifies other people that the caveator has a proprietary interest in the property and prevents others from dealing with the property without the caveator’s consent.

Victoria submitted that she is unable to refinance the mortgage whilst the caveat is registered on the Darling Point property. Elanora is experiencing financial difficulties and additional funds may be needed to ensure additional cash flow, pay for litigation and carry the farm through until the next harvest in 2023.

On 1 November 2022, Harry filed a Statement of Claim that Jevny holds Elanora on trust and has breached its fiduciary obligations. Similarly Victoria holds her title and interest in the Darling point property for him and Patrick in equal shares as tenants in common, and that in granting Westpac the mortgage she has breached that trust.

Harry seeks a declaration that Victoria is entitled to live at, or rent out, the Darling point property or such other property as is acquired with the proceeds of the sale.

Victoria instructed her solicitors to file and serve a lapsing notice for the caveat on Harry on 15 November 2022. Following the service of a lapsing notice unless a court order extending the caveat has been obtained and lodged with the Registrar General the caveat will lapse after 21 days.

On 17 November 2022, Harry was granted an order extending the operation of the caveat until further order, with the onus of persuading the Court that the caveat should continue in operation. Additionally Victoria could apply for the extension order to be discharged or varied.

Victoria submitted that the caveat had a detrimental effect on her and seeks an order under s 74MA that the caveat be removed, however, Harry has the onus of establishing that the caveat should be extended.

The Court referred Harrys motion for extension to the Equity Duty Judge on 13 December 2022 for further consideration. The Duty Judge referred the matter for hearing.

The Decision

Harry Bernard Thynne v Jevny Pty Limited and Anor [2022] NSWSC 1774 principally concerns whether a caveat lodged by the plaintiff is supported by a caveatable interest; if the caveat is supported, its removal should be ordered because its maintenance is against the balance of convenience.

The propositions are: (i) it is the disposition of the property by the first party under a will in the agreed form and upon the faith of the survivor carrying out the obligation of the contract which attracts the intervention of equity in favour of the survivor; (ii) that intervention is by the imposition of a trust of a particular character; (iii) the subject-matter is “the property passing [to the survivor] under the will of the party first dying”; (iv) that which passes to the survivor is identified after due administration by the legal personal representative whereupon “the dispositions of the will become operative”; (v) there is “a floating obligation” over that property which has passed to the survivor; it is suspended during the lifetime of the survivor and “crystallises” into a trust upon the assets of the survivor at death.

Barns v Barns (2003) 214 CLR 169 at [85] per Gummow and Hayne JJ.

A floating obligation exists on the Darling Point property that will crystallise into a trust on Victoria’s death. Therefore as Harry is not the beneficiary of a trust he does not have a caveatable interest on the Darling Point property.

 The Court rejected Harry’s submissions that the reference in the will to maintenance of the farm is to the land only, and that Victoria has no entitlement to mortgage the Darling Point property –  as opposed to selling or renting it – to support the Farm.

Under the will the deceased expressed that Victoria use reasonable endeavours to ensure that the farm operates on a financially stable and profitable basis from year to year, and not to sell it unless financially obliged to do so. Similarly, as Victoria can deal with the Darling Point property or its proceeds, and use them for her maintenance, the maintenance and education of Patrick, maintaining the Darling point property and the Farm, the value of the trust cannot be ascertained until Victoria dies. 

Importantly the Court rejected Harry’s submission that Victoria can sell the Darling point property to raise money to maintain the Farm but cannot mortgage it whether for her maintenance or that of Patrick or of the property itself. As mortgaging property involves a lesser disposition than selling it.

The Court held that even if Harry had established an equitable interest in the Darling point property, the terms of the caveat extend beyond any interest claimed.

Victoria argues that the Court should order withdrawal of the caveat in any event because the balance of convenience does not favour maintaining it.

In determining the balance of convenience the Court considers all the facts and circumstances of the case including:

  • the strength of the cavetor’s underlying interest;
  • whether the caveator’s interest would be destroyed or lose priority if the caveat was removed;
  • the owner refinancing or exercisising another valid right in respect of the land;
  • the prevention of a party with a superior registered interest applying to remove the caveat being prevented from exercising their legal rights; and
  • as a result of the value of the land being less than the mortgage debt no money would be available to the caveator.

However, the onus is always on the caveator to show that the balance of convenience is in the caveator’s favour

Although the Court held that Victoria’s evidence that the caveat should be withdrawn on the balance of inconvenience is somewhat thin, the onus was on Harry to submit evidence that favoured extending the caveat. The court stated that even if it had found a caveatable interest, it would have ordered the removal of the caveat.

Family provision “adequate provision for proper maintenance and support”

In Tasmania, a testators spouse is eligible to bring an application for further provision from an estate if at the testator’s death they have been

“left without adequate provision for (her) proper maintenance and support”: s 3(1)Testators Family Maintenance Act 1912

Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494

The Court assumes the testator is aware of all of the relevant circumstances of those eligible to claim, including reasonably foreseeable eventualities existing at the date of the testator’s death: Coates v National Trustees Executors and Agency Co Ltd (1956) 95 CLR 494 whether or not they are known to the testator: Litchfield v Smith [2010] VSC 466 at [26].

In making the appraisal the Court is to consider – from the perspective of a wise and just testator who is aware of all of the relevant circumstances of those eligible to claim: Bosch v Perpetual Trustee Co [1938] AC 463 at 478-479 including the

  • applicant’s financial position,
  • size and nature of the deceased’s estate,
  • totality of the relationship between the applicant the deceased and
  • relationship between the deceased and other persons who have legitimate claims: Singer v Berghouse (1994) 181 CLR 201 at 210.

If assets permit a spouse should be left secure in the matrimonial home with sufficient funds to continue to live in the style to which they are accustomed and with a buffer to meet contingencies: Gargano v Coves [2018] NSWSC 985 at [160].

Background

Efterpi Karimalis, (“EK”) widow of Theodoros Karimalis (”TK”) applied for further provision out of his estate. EK met TK in Greece in 2005 and moved to Tasmania in contemplation of marriage, in 2006 at TK’s urging. The couple immediately commenced cohabitation in the marital home in Shepherd Street, where EK has lived ever since.

The couple married in June 2009, after cohabiting for about four years. It was the second marriage for both. EK owned two houses in Greece. In the late 1990s, she gave the houses, to her two daughters, leaving her with no substantial assets.

The estate is comprised almost entirely of real estate valued at about $3.6m at the TK’s date of death including the marital home which had a value of about $1.2m.

TK purchased a house in EK’s name at Coolabah Road Sandy Bay in 2009. At the time of TK’s death, the property was valued at about $900,000 and was producing a net return, of about $26,000 per annum.

In his will, made 14 February 2012, TK appointed the respondents as his executors and trustees stating

I have not made any further provision for my wife …because she has adequately been provided for during my lifetime, including by way of the purchase of property at 14 Coolabah Road, Sandy Bay in Tasmania and because the provision of clause 2 will provide my wife … with a sufficient income stream to allow her to live in the standard of living which she has been accustomed. Further, I wish the majority of my estate to be used to provide support to my daughter”.

Karimalis v Kapodistrias [2022] TASFC 10 at 51

The bequest in the will was insufficient to accommodate EK’s wish to remain in the former marital home in Shepherd Street and to have a fund, independent of income derived from her Coolabah Road property, sufficient to maintain her reasonable living expenses and enable annual return trips to Greece to visit her family. Therefore EK has brought this application for further provision from the estate.

The decision

At first instance, the Court found that EK had been left without adequate provision for her proper maintenance and support. In addition to a life interest in the former matrimonial home in Shepherd Street, the Court ordered that EK should be given a capital amount out of the estate of $300,000, in substitution for the income stream from the flat as provided for in the will.

On appeal, EK submitted that in exercising the discretion to make further provision out of the estate the primary judge erred; with the Supreme Court of Tasmania (Full Court) holding that provision must be such that it achieves the objectives of the legislation, following the well-established approach to cases of this type.

The Full Court resolved to leave EK in a position to keep Coolabah Road, to provide her with a life interest in Shepherd Street and the sum of $650,000 from the estate. The proposed further provision will allow EK to live in the style to which she had become accustomed and free of stress and anxiety as to what the future may hold.

Baby W & New Zealand guardianship orders

The New Zealand Care of Children Act 2004 provides for the promotion of the welfare and best interests of children by regulating the duties and responsibilities of parents and the court’s power concerning the care of children.

The Act encourages agreement on care arrangements and the resolution of disputes. Additionally, it allows for the enforcement of international orders by implementing the Hague Convention on the Civil Aspects of International Child Abduction into New Zealand law.

Section 31 of the Care of Children Act 2004, provides that in the welfare and best interests of a child an eligible person can apply for an order placing a child under the guardianship of the Court, or appointing a person as the agent of the Court. A child’s guardian can consent to any medical, surgical or dental treatment or procedure (including a blood transfusion).

Background

Baby W was born with a congenital heart defect that had become more severe and urgently required surgery. Each day the operation was delayed increased the risk of postoperative complications. Dr Kirsten Finucane, the pediatric cardiac surgeon in chief at Auckland’s Starship Children’s Hospital where Baby W was being treated had considered and excluded the possibility of performing the surgery without blood or blood products. Dr Finucane and those other experts consulted, considered that Baby W would need various blood products throughout surgery and recovery.

Baby W’s parents (the respondents) consented to the surgery but not to a blood transfusion resulting in him receiving blood that might contain the COVID-19 mRNA vaccine with spike proteins that are not considered safe for Baby W.

The matter

In Te Whatu Ora, Health New Zealand, Te Toka Tumai v C and S [2022] NZHC 3283 an urgent application was sought under s 31(2)(g) of the Act to have Dr Kirsten Finucane and Dr Alan Magee appointed agents of the Court to consent to surgery and related medical issues including the administration of blood and blood products and the parents appointed as general agents of the Court.

The facts underpinning whether the proposed treatment is in Baby W’s best interests are:

  • (a) whether the clinicians’ proposed use of New Zealand Blood Services blood products is safe; and
  • (b) whether the parents’ proposed use of directed blood is a safe and viable alternative.

However, the Court stressed the necessity of addressing these issues within the constraints of this urgent proceeding at [23]

The respondents applied to join the New Zealand Blood Service as a third party so that the New Zealand Blood Service arrange a direct donation – usually provided where there is a clear medical need, such as for patients with rare blood types where there are no compatible anonymous donors.

The decision

The Court held that an order enabling the surgery was in Baby W’s best interest and placed the baby under the guardianship of the Court from the date of his surgery until the completion of his post-operative recovery.

Drs Finucane and Magee were appointed as agents of the Court to consent to the surgery and all medical issues related to the surgery and his parents were guardians for all other purposes.

Based on the evidence submitted the Court accepted that there were no known harmful vaccine-related effects of blood from a vaccinated individual to a recipient of any age.

Similarly owing to the lack of scientific evidence that it poses any risk the New Zealand Blood Service’s decision not to agree to provide directed donor blood was a clinical decision made in good faith, and following good medical practice, the Court rejected that the use of blood from donors not vaccinated with mRNA vaccine was a safe and viable alternative.

Costs and probate litigation

The Court awards a successful party in litigation the “usual order as to costs” which includes the costs incurred preparing for litigation with the unsuccessful party paying the costs of the unsuccessful litigation. However, unless otherwise provided for by an Act or the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’) costs are at the Court’s discretion

Importantly modern civil procedure mandates that the Court’s discretion be exercised with a focus on the quick, cheap and efficient resolution of the issues in dispute.

Probate litigation

Where the testator is not the cause of the litigation, but circumstances exist that reasonably call for an investigation, the Court has the discretion to order the unsuccessful party’s costs paid from the estate. If the unsuccessful party has not acted reasonably, then the costs will usually follow the event – the unsuccessful party will pay costs.

Where the litigation concerns probate as a result of how the testator made their testamentary intentions know costs are usually paid out of the estate. If the litigation is adversarial, it is common for the Court to order that the unsuccessful party pay the other party’s costs – costs follow the event.

The usual rules relating to probate litigation are founded on public interest ensuring that parties;

  • do not admit doubtful wills to prove lightly because of the cost of opposing them and,
  • won’t commence ‘fruitless litigation’  believing that their costs will be paid by others.

Background

Marlene Gyss (‘the deceased’) died on 14 February 2021, aged 82 years survived by her three children: Alan(‘the plaintiff’), Darren(‘the defendant’) and Lynda(‘Lynda’).

The deceased’s estate is valued at approximately $1,350,000, comprising an unredeemed nursing home bond of $600,000 and a term deposit of  $750,000.

The deceased executed two wills:

  • A last will dated 12 November 2018 (‘the 2018 Will’) appointed the plaintiff and the defendant as the executors of her estate. Left $100,000 to each of the defendant and Lynda, and the residuary estate to her children equally.
  • Her penultimate will dated 9 October 2017 (‘the 2017 Will’) appoints the defendant as sole executor of her estate and divides her estate equally between the plaintiff, the defendant and Lynda.

Under the 2018 Will the plaintiff would receive $100,000 less than his siblings.

A grant of probate has not been obtained for either the 2018 will or the 2017 will.

Following the death of the deceased, the plaintiff, the defendant and Lynda disagree with the administration of the estate, leading to Court proceedings.

The matter

In Re Gyss [2022] VSC 689 the plaintiff submitted that the 2018 Will was invalid as the deceased either

  • lacked testamentary capacity, or
  • was under duress or was unduly influenced.

The plaintiff also foreshadowed a family provision claim under Part IV of the Act.

On 13 April 2022, the plaintiff sought orders under s 15 of the Administration and Probate Act 1958;

  • that the defendant show cause as to why he should not either prove the 2018 Will or renounce his position as a co-executor.
  • Alternatively, the defendant be passed over as executor of the 2018 Will and either the plaintiff or an independent person be entitled to prove the 2018 will.

The proper course in circumstances where one of two executors dispute the validity of a Will is to allow one executor to make an application to prove said will, whereupon the other executor may then dispute the validity of the Will.

The decision

The Court held that from at least 4 July 2022, when the solicitors for the defendant indicated their client – in line with their previously advertised intention – would proceed to seek a grant of probate of the 2018 will there was no proper reason for the plaintiff to pursue the proceeding and it should have been discontinued.

In the circumstances the Court believed, it would have been consistent with the overarching obligations of the plaintiff and his solicitors to use reasonable endeavours to

  • resolve the dispute,
  • narrow the issues,
  • ensure that costs were reasonable and proportionate and
  • minimise delay

In pursuing the matter to a hearing, the plaintiff caused the defendant to incur unnecessary costs.

The Court determined that the plaintiff ought to renounce his right to prove the 2018 will and the defendant ought to be entitled to prove the 2018 will, subject to the plaintiff’s right to challenge its validity or make a family provision claim.

Additionally, the Court permitted the defendant to uplift the original copy of the 2018 will from the Registrar of Probates to make an application for probate and that the proceeding otherwise be dismissed.

Costs

The Court concluded the plaintiff’s application was misconceived and was ultimately unsuccessful; as the proceeding does not fall within a class of case where costs should be paid out of the estate the costs should follow the event.

Construing a will; the centennial of Fell v Fell

Sir Isaac Isaacs came from humble beginnings with few material advantages, he made a lasting contribution to Australia through application and hard work and seizing every opportunity made available to him. At 15 he became a pupil teacher and taught at Beechworth Grammar School.

Moving to Melbourne, in 1875, Isaacs studied law at the University of Melbourne while working full-time. Known for his photographic memory, accurate citation of cases, and the law reports in which they could be found, at 27 Isaacs was admitted to the Victorian Bar supplementing his professional income by reporting cases for the Melbourne newspapers.

Elected to the Victorian Legislative Assembly in 1892, Issacs served as Solicitor General and Attorney General before entering the new Federal parliament at the 1901 election. Isaacs was appointed Attorney General of Australia in 1905, leaving politics in 1906 when appointed to the High Court.

Isaacs is considered one of the greatest Australian judges and his legal talent and knowledge are reasons why he is still read today, with his opinions considered a century after he expressed them.

A Court, in my opinion, is not to place itself in the position of a person unaccustomed to the functions of a legal tribunal, and then make the double error of first assuming how he would construe the document, and next adopting as a curial interpretation the construction so assumed.

Fell v Fell [1922] HCA 55; (1922) 31 CLR 268 (15 December 1922)

Isaacs has been described as

“a master lawyer and one of the greatest judges in our federal history, and he brought to his work and to the whole of his public life an unflagging and almost inexhaustible energy and a mind of great strength, power and range. He was big in his qualities, and it is unfortunate that some have dwelt so strongly on the defects. For it is certain that he ranks as a major figure in the history of the Australian nation”

Hon. Justice Michael Kirby, ‘Isaac Isaacs – A Sesquicentenary Reflection’, Samuel Alexander Lecture, Wesley College Melbourne, 4 August 2005.

Background

William Jamieson died on 4th August 1920, leaving a Will stating:—

”This is the last will and testament of me William Jamieson at present residing at ‘ Ormiston ’ Kirribilli North Sydney New South Wales I give devise and bequeath unto John H. F. Jeffrey Marguerite, Jeffrey John D. Fell, Hugh Mackinley Fell, Robert A. Fell, Masie Fell, Helen Fell, Jessie Donald Smith, Struan Smith, M. M. Lovegrove, Joseph M. Berry, and hereby appoint David Fell Equitable Build­ings George Street Sydney & Donald Smith dentist 159 Macquarie Street Sydney executors of this my will”

Following a grant of probate the executors David Fell and Donald Smith applied to the Supreme Court of New South Wales for the determination of the following questions:

(1) Whether upon the true construction of the will the defendants and the other persons mentioned as beneficiaries in the will are entitled to partici­pate in the estate of the testator.

(2) Whether upon the true construction of the will there is an intestacy in the estate of the testator.

John Fell and Jessie Smith, two of the beneficiaries submitted that William had frequently said that so far as he knew he had no living relatives.

The Supreme Court held the beneficiaries were not entitled to the estate of the testator, therefore William was intestate; referring the matter to the Master in Equity to inquire as to William’s next-of-kin.

John Fell and Jessie Smith appealed with the High Court finding:

(1) The persons mentioned as beneficiaries are entitled to participate in the testator’s estate in equal shares;

(2) there was no intestacy.

Isaacs prefaced his judgement with the following preliminary observation.

In the judicial construction of instruments, whether wills or deeds or statutes, Courts are not to approach the matter from the standpoint of the hypothetical personage sometimes alluded to as “the man in the street.”

Fell v Fell [1922] HCA 55; (1922) 31 CLR 268 (15 December 1922)

Isaac held that a court should not make a double error of assuming how a person unaccustomed to the functions of a legal tribunal, would construe a document and then apply a legal interpretation to that assumed construction.

“We are bound to have regard to any rules of construction which have been established by the Courts, and subject to that we are bound to construe the will as trained legal minds would do.”

Fell v Fell [1922] HCA 55; (1922) 31 CLR 268 (15 December 1922)

In Fell v Fell [1922] HCA 55; (1922) 31 CLR 268 (15 December 1922) the question was whether, on the construction of the will, if the testator died testate then, since the intended objects of his bounty are clearly designated, no further difficulty exists. Isaacs J concluded that the question should be answered in the affirmative.

As I am differing on a matter of considerable importance from my brother the Chief Justice and also from Street J., the learned primary Judge, I propose to state very explicitly the line of reasoning that has led me to the opinion I have formed.

Fell v Fell [1922] HCA 55; (1922) 31 CLR 268 (15 December 1922)

Isaacs J set out 10 incontestable principles a court should follow when construing a will; noting that the bare nomination of an executor is sufficient to make a valid will, as it is presumed the nominated executor will be entitled to use the estate assets to pay the estate debts and testamentary expenses and will be entitled to the residue unless the words of the will clearly express the executor holds the residue for beneficiaries.

In 1930 Isaacs was appointed Chief Justice of Australia an office he held for the shortest period of any Chief Justice. In January 1931 Isaacs was appointed Governor-General.

Issacs was not only the first Australian to hold the office, but also the first Governor-General to be appointed on the recommendation of a dominion Prime Minister to the monarch. When the Scullin government announced its intention to recommend Isaacs it created considerable controversy. Opponents of the appointment believed Issacs was too radical, too centralist-minded, and was a member of a minority religion and culture.

In a judgment dated December 12 2022 the Victorian Supreme Court cited Fell v Fell

The court may, in construing a will, ‘insert missing words which are clearly necessary to give effect to the testator’s intention’.

Alexopoulos v Krasovec [2022] VSC 749 (12 December 2022)

The estate of Mark Rothko and the no further inquiry rule

The self-dealing rule prevents trustees and executors from “dealing” with trust or estate property; including purchasing property from the trust or estate. The self-dealing rule embodies the executor’s duty to administer the estate without profiting or abusing their position.

At its simplest, the self-dealing rule provides that the purchaser of a property cannot also be the person, or one of the people, who has the power to set the sale price. Equity intervenes to support the beneficiaries, for example, by orders for delivery of the purported conveyance and accounting.

Under the “self-dealing rule” the sale by the trustee of the trust property to themselves is voidable by any beneficiary ex debito justitiae, however honest and fair the transaction and

“even if [the sale] is at a price higher than that which could be obtained on the open market”

If executors dealt with estate property it could conflict with their duty to act in the best interest of the estate overall.

In some jurisdictions, the “no further inquiry” rule, prohibits a trustee from profiting from transactions with the trust without advance approval from a court or trust beneficiaries. The rule also imposes harsh consequences for unauthorised trustee self-dealing.

In the Matter of the Estate of Mark Rothko, Deceased the no further inquiry rule enabled the estate to rescind transactions resulting from the fiduciary’s self-dealing, regardless of whether the transaction was fair or reasonable.

Background

Mark Rothko was a member of The Irascible Eighteen, a group of abstract painters considered the ‘first generation of abstract expressionists’ who died on February 25, 1970, leaving an estate consisting of nearly 800 of his paintings.

Rothko’s will was admitted to probate on April 27, 1970, his named executors were Bernard J. Reis, Theodoros Stamos, and Morton Levine (the executors) (defendants). Rothko’s wife Mary Alice died of a stroke six months after her husband.

In 1956 Rothko entered a contract with the Marlborough Gallery (”the gallery”) where in exchange for a monthly fee the gallery would sell Rothko’s paintings. Although prolific throughout the 1960s, Rothko continued to believe that his work was not selling for high prices on the art market.

The gallery’s owner Frances Kenneth Lloyd under-reported the sale price of Rothko’s paintings by taking payments through Swiss and Liechtensteiner bank accounts. In February 1969 Rothko renewed his contract with the gallery agreeing

“not to sell any works of art for a period of eight years, except to Marlborough A.G. if a supplementary contract is made.”

re Will of Rothko, 351 N.Y.S.2d 940, 43 A.D.2d 819 (1974)

In 1968 Rothko and his financial advisor, Bernard Reis, created a the Rothko Foundation intended to fund “research and education”.

On September 16, 1968, Rothko executed a two-page will, drafted by Reis leaving the residual estate to the foundation and naming Reis, Theodore Stamos and Morton Levine, as executors. Rothko’s two children were not included in the will.

Believing that his works would fetch higher prices following his death Rothko gave his children Kate and Christopher, key paintings he owned to provide them with financial security. However, after Rothko died, the gallery informed his children that under the terms of the agreement made in 1956 and renewed in 1969, the gallery owned all of Rothko’s paintings.

Following Rothko’s death, the executors agreed to sell 100 works to the gallery for a total of $1,800,000 – which was less than a quarter of their fair market value – however, only $200,000 was paid upfront to the estate with the balance to be paid with no interest over 12 years.

A second contract consigned approximately 700 paintings to the gallery with a commission of 40 to 50 per cent for each painting. The paintings were estimated to be worth at least $32m.

The Case

In 1971, Rothko’s children filed a lawsuit against the executors of his estate, and the gallery over the sales claiming that the former had conspired with the latter to ‘waste the assets’ of Rothko’s estate and defraud them of their proper share. They contended that the three trustees had conspired to sell the paintings to the gallery at less than their true market value.

Importantly Reis had become a director of the gallery in August 1970 and Stamos a fellow member of the irascible eighteen was represented by the gallery from 1971.

Kate was joined by the guardian of her brother, Christopher (plaintiff), and the state attorney general (plaintiff), representing a foundation that benefited from the will.

The Court found that Reis and Stamos breached their fiduciary duties by entering the contracts with conflicts of interest. Additionally, Levine breached his fiduciary duties as he was aware Reis and Stamos conflicts of interest but did not act in the interests of the estate.

Additionally, the court found the executors had a conflict of interest; Reis and Stamos could not negotiate with the gallery as they were both on its payroll. Similarly, Levine was aware of the transactions. They were removed for

‘improvidence and waste verging on gross negligence’

re Will of Rothko, 351 N.Y.S.2d 940, 43 A.D.2d 819 (1974).

All contracts between the gallery and the Rothko estate were declared void, and the judge awarded damages of more than $9m against Frank Lloyd, the founder of the gallery who had laundered art through International holding companies, and the executors.

In the year after Rothko’s death, the value of his work more than doubled while early works were selling at auction for over $80,000.

On appeal, the executors, and the gallery objected to the damages and the court’s use of the no-further-inquiry rule, which allows the rescission of a self-dealing transaction regardless of the transaction’s fairness.

However the Court held that the damages were not punitive in a true sense, rather they are intended to make the estate whole.

Although the executors, were authorised to sell, they

did not merely err in the amount they accepted but sold to [a party] with whom Reis and Stamos had a self-interest…since the paintings cannot be returned, the estate is therefore entitled to their value at the time of the decree, i.e., appreciation damages.

Matter of Rothko, 43 NY 2d 305 – NY: Court of Appeals 1977

Revocation of a will by marriage; it’s not always the case.

The Marriage Act 1961 and Marriage Regulations 2017 provide the rules for getting married in Australia. Section 42 of the Marriage Act provides a person must:

  • not be married
  • not be marrying a parent, grandparent, child, grandchild, brother or sister
  • Not marry unless a court has approved a marriage where 1 person is 16-18 be at least 18 years old, 
  • understand what marriage means and freely agree to marry
  • use specific words during the ceremony
  • give a notice of intended marriage form to an authorised marriage celebrant at least 1 month and no more than 18 months before your wedding.
  • be married by an authorised marriage celebrant 

The couple don’t have to be:

  • Australian citizens, or
  • permanent residents of Australia
  • employment-related or travel commitments
  • wedding or celebration arrangements
  • medical reasons
  • legal proceedings

On the wedding day, marriage certificates must be signed by:

  • you and your spouse
  • your authorised marriage celebrant
  • two witnesses, over 18 years old

Within 14 days of the marriage the celebrant must submit the marriage paperwork to the registry of births deaths and marriages in the state or territory the couple were married.

A ceremonial certificate of the marriage is given to the married couple by the marriage celebrant on the day.

Early approval

If there is less than 1 month until the chosen wedding date s 42(5) of the Marriage Act a prescribed authority may approve the marriage reasons for getting married in less than one month include:

A marriage is considered valid where the following requirements are observed: 

  • It is performed by an authorised celebrant. An authorised celebrant includes religious ministers and registered marriage celebrants;
  • The parties provide notice to the celebrant of the intended marriage at least one month before the marriage takes place;
  • Both parties provide an official birth certificate or acceptable document if a birth certificate is not available;
  • Both parties must prove that there is no legal obstruction to the marriage (e.g, a divorce decree if previously married);
  • The marriage is solemnised at any time, date or place (e.g, a garden marriage is considered valid);
  • The marriage must be witnessed by at least 2 other people who are at least 18 years old;
  • The authorised celebrant must explain the legal nature of a marriage;
  • The parties, celebrant and witnesses must sign a marriage certificate that is then sent to the appropriate State/Territory Registry.

Section 13(1) of the Wills Act 1997 provides that

‘[a] will is revoked by the marriage of the testator’.

The central issue in Re Sambucco [2022] VSC 699 is whether, by participating in the ceremony, Marco Sambucco and Mara Batur were lawfully married. Marco, had had cancer for approximately four years, and died on 9 September 2019, leaving a will made in 2015 (the Will). The Will gives the entirety of his estate to a discretionary testamentary trust in which his issue and certain companies are the primary beneficiaries.

The background

On 8 June 2019, Marco and Mara participated in a ceremony described as a ‘religious commitment ceremony’ (the ceremony).  They had decided to marry in  On 5 May 2019, approached the Revd D. Rock  an authorised celebrant under the Marriage Act 1961 (Cth) (the Marriage Act) and asked him to officiate at their wedding ceremony.

The Revd D. Rock told Marco and Mara that they would need to fill in a notice of intention to marry under s 42 of the Marriage Act subsequently provided them with a notice of intention to marry which they completed and signed on 20 May 2019. The notice specified their marriage date as 13 July 2019, and that the Revd D. Rock would be the celebrant.

Marco and Mara had a genuine intention to marry. The Revd D. Rock conducted the ceremony on an earlier date than planned because of the decision to seek urgent medical treatment for Marco overseas.

The Revd D. Rock was properly authorised to solemnise marriages. Importantly the ceremony conformed with the marriage requirements prescribed by The Baptist Union of Australia, and was valid under Division 2 of Part IV of the Act.

Marco left no issue.  The secondary beneficiaries under the testamentary trust are his parents, siblings their spouses and their issue, and certain companies.  In December 2019, Mara estimated the net value of his estate to be about $5,300,000.

On 10 December 2019, Mara obtained a marriage certificate from the Registry of Births, Deaths and Marriages which certified that she and Marco had been married.

Mara then applied for a grant of letters of administration of Marco’s estate on the basis of intestacy as the Will had been revoked under s 13(1) of the Wills Act; which were granted on 31 January 2020.

The matter

On 17 February 2021, Marco’s parents, Pier and Odilla,  and his sister, Luisa Sambucco (the Applicants), sought the revocation of the grant of letters of administration on the basis that Marco and Mara’s marriage didn’t comply with the ‘formalities’ prescribed by the Marriage Act; therefore the Will wasn’t revoked.

The starting point in finding the legal validity of Marco and Mara’s marriage is under s 48(1) of the Marriage Act which states;

‘subject to this section, a marriage solemnised otherwise than in accordance with the preceding provisions of this Division is not a valid marriage’.

As submitted on behalf of Mara, and acknowledged by counsel for the Applicants, s 48(2) saves a marriage from invalidity by reason of non-compliance with the various formal requirements prescribed by the preceding provisions in Division 2 of Part IV of the Act.  

Because the ceremony conformed with the form and ceremonial requirements for marriage prescribed by The Baptist Union of Australia, the ceremony was consistent with ss 41 and 45(1) giving it validity at law by operation of Division 2 of Part IV of the Marriage Act.

The decision

The Court held that the applicant’s case, failed as far as non-compliance by Marco and Mara with the ‘formalities’ prescribed by the Act.

The Court accepted that a religious marriage ceremony prescribed by s 45(1) of the Act (or in the alternative, a civil marriage ceremony under s 45(2) of the Act), the only indispensable requirement expressly identified by the Act as necessary to solemnise a marriage between two people entitled to marry each other.

The Applicants’ submission that the ceremony was in the nature of a ‘registration of the marriage in the eyes of God’ and ‘fundamentally different from entry into a legal marriage’ fails for at least two reasons.

First, it proceeds from the false premise that the Marriage Act doesn’t give legal recognition to marriages which accord with recognised religious rites.

Secondly, it ignores the misapprehension under which the Rev D. Rock, Mara and Marco laboured in their understanding that

‘without a [notice of intention to marry] and statutory declaration, and compliance with the other formal documentary requirements under the Marriage Act, there could not be a marriage which was valid according to law’.

Re Sambucco [2022] VSC 699 at [117]

In dismissing the applicant’s summons for revocation the Court found that Marco’s Will was revoked by his marriage to Mara on 8 June 2019.