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 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.


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


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].


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).


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.


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.


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.


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.


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.



TASCAT, nil capacity & the statutory will

In Tasmania, a statutory will can be made by the Supreme Court of Tasmania or by the Tasmanian Civil and Administrative Tribunal, Guardianship stream (Tribunal ) where a person lacks capacity to make a valid will under division 3 Of part 3 of the Wills Act 2008

The person applying for a statutory will must satisfy the tribunal that:

  • (a) the proposed testator is incapable of making a will; and
  • (b) having made reasonable enquiries, that the proposed testator has not made a will or any purported will; and
  • (c) adequate steps have been taken to allow representation of all persons with a legitimate interest in the application, including persons who have reason to expect a benefit from the estate of the proposed testator; and
  • (d) it is appropriate to make an order for the execution of a will for a proposed testator; and
  • (e) the proposed will is or is reasonably likely to be one that would have been made by the proposed testator if he or she had had testamentary capacity

The grounds for making statutory wills differ in each Australian jurisdiction; in Tasmania the tribunal must be satisfied that the proposed will is, or is reasonably likely to be, one that would have been made by the person if they had testamentary capacity.


The common law test for testamentary capacity established in Banks v Goodfellow, was restated and endorsed in Timbury v Coffee, by Dixon J:

“Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realise the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner.”


EI is a 25 year old man diagnosed with severe cerebral palsy from injuries sustained at birth; EI is globally disabled, non-verbal, and is fed by means of a PEG tube. A report prepared in 2008 predicted a 95% probability that EI will survive to between 26 and 34.1 years of age.

In July 2021 EI’s general practitioner provided an opinion that EI does not have the capacity to understand the extent of his personal estate, nor the ability to make decisions about the appropriate distribution of that estate under a will.

Following the settlement of a claim brought against the State of Queensland to compensate for his injuries EI was the recipient of a significant settlement and is a beneficiary of a court-appointed Trust (the Trust).

EI lives in Tasmania with his mother, BI (the Applicant) in a house (the Property) which was purchased by the Trust in March 2020.

EI’s parents separated in 1998. His father OI moved to another state in 2003 while EI and his mother BI remained in Queensland. After OI’s departure, BI became the primary carer for EI, with OI providing care on an intermittent basis.

EI relies entirely on others for his daily needs and ongoing care. The majority of EI’s care needs are attended to by BI together with support providers funded by the National Disability Insurance Scheme (NDIS). OI also provides an estimated 60 days of care to EI annually to provide respite to BI.

The application

The applicant sought an order from the Tasmanian Civil and Administrative Tribunal,  under  s 32 of the Wills Act 2008  to authorise the making of a statutory will for EI. The following draft will before the tribunal proposed:

  • (i) BI and OI be appointed the joint Executors and Trustees;
  • (ii) in the event that BI survives EI, the Property (or any substitute property) is gifted to BI;
  • (iii) charitable gifts, each in the form of $10,000, are to be given to the Epilepsy Foundation, the Cerebral Palsy League and Variety Australia Ltd; and
  • (iv) the residual estate to be divided between BI and OI, with BI to receive a 2/3 share and OI to receive a 1/3 share

The Tribunal was satisfied the Applicant has standing to make the application under s 33(a)

EI never had testamentary capacity, and due to the nature of his disability, there is no prospect of him acquiring such capacity; ss 33(b) and s 33(c)

EI’s estate is valued approximately $6.7 million. The presumption favours the making of a statutory will unless the distribution of the estate upon intestacy would provide adequately for all claims upon the estate.

BI has been the primary carer of EI from 2003; has made contributions toward, (and intends to make further contributions) to the maintenance and upgrading of the Property.

The decision

The tribunal believed it was reasonably likely that a testator in EI’s position would have included provisions in their will to provide security of accommodation for their primary carer, provide a benefit to their father who continues to be in a close and continuing relationship with them, and provide gifts to charitable organisations that have historically provided assistance.

However, EI’s estate under intestacy would not reflect the contributions BI has made towards EI or sufficiently provide for her. Additionally the tribunal held that a person in EI’s position would provide for OI in his will. The Tribunal was satisfied that if EI died intestate his estate would not provide adequately for all reasonable claims.

Importantly the tribunal placed significant weight that OI supported BI’s application and consented to the proposed terms of the will.

The Tribunal must objectively assess whether there is a fairly good chance that a reasonable person in the circumstances of EI would have made a similar will.

the estate…being so large that his mother can comfortably be provided for, that a person of testamentary capacity…would likely have made some provision for his father, bearing in mind his father’s disabilities and his situation in life.

Elayoubi, application of Wosif [2010] NSWSC 1004 at [8]

Finding no dispute that BI’s contribution to EI’s care is significantly larger than OI the tribunal believed it was appropriate to make an order for the execution of a will for a proposed testator; and the proposed will, is or is reasonably likely to be one that would have been made by the proposed testator if he or she had had testamentary capacity; ss 33(e) and s 33(f) of the Wills Act .

In authorising a will for EI in the terms outlined above the Tribunal was satisfied that

  1. the application met the requirements of s 32 of the Wills Act;
  2. all of the mandatory threshold tests provided in s 33 of the Wills Act were met;
  3. following enquiry, EI has not made a will or any purported will s 30(4);and
  4. EI is alive as at the time the order is to be made s 30(6).

Intestate polygamists in the UK

John Hyde was ordained as a priest of the Mormon Church in 1847. He was married in Salt Lake City in April 1853, but later became disillusioned with and left the Church. He was excommunicated for writing and publishing anti – Mormon material.

John’s wife Lavinia left him, and subsequently remarried in what was then known as Utah Territory. John brought an action of divorce against his wife, for adultery.

English law could not recognise polygamy as marriage as it didn’t resemble the equivalent English institution. Notably, in dismissing the claim Lord Penzance pronounced:

“I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others”

which became the accepted definition of marriage in many common law countries, and was included in introduction to the civil marriage ceremony in England until the passage of the Marriage (Same Sex Couples) Act 2013.

Official Solicitor

The Official Solicitor is an individual, appointed by the Lord Chancellor who can act directly as solicitor for an individual in certain circumstances. The Official Solicitor has two principal functions;

  • represent children and adults who are incapable of representing themselves in various courts, as a last resort litigation friend; including as legal personal representative of last resort for the deceased estate, or trustee of a trust.

In most cases when acting as litigation friend the Official Solicitor instructs a firm of solicitors to act on the individual’s behalf. Notably, the Official Solicitor will only make decisions on behalf of that individual in relation to the specific issues before the court, and not in other decisions in that individual’s life.

A litigation friend ensures that those who do not have capacity to conduct their own court cases are heard before the court. The court can appoint anyone to be a litigation friend, however the court must confirm that a person is able to make fair and competent decisions about the case , and not have any adverse interests to the person on whose behalf they are acting as litigation friend.

The modern role of the Official Solicitor can be traced back to the 18th century when the Office of the Six Clerks assisted destitute litigants, lunatics and infants in Chancery suits. In 1981, the Official Solicitor became a statutory officer of the Supreme Court of England and Wales appointed by the Lord Chancellor as Official Solicitor to the Supreme Court under s.90 of the Senior Courts Act 1981.

Where an intestate leaves a surviving spouse and issue, under s 46(2) of the Administration of Estates Act 1925 the surviving spouse is entitled to a statutory legacy and a life interest in half the residue.

“(b) as to the other half, on the statutory trusts for the issue of the intestate.”

In Official Solicitor to the Senior Courts v Yemoh [2010] EWHC 3727 (Ch) the intestate was party to several polygamous marriages under Ghanaian customary law. The court was asked to consider intestacy rules concerning polygamous marriages given that the deceased had eight customary polygamous marriages, with associated numbers of children.

The court held that any spouse who had been lawfully married in accordance with the law of the place of an intestate’s domicile was entitled to be recognised in England as a surviving spouse for this purpose.

Benjamin Kodzo Yemoh died intestate on 20 September 1981 in Ghana. At the date of his death he owned real property in England (“the properties”) and personal property, primarily some cash in bank accounts.

Letters of administration were granted for the deceased’s English estate to Edmund Yemoh and Patience Frimpong on 17 May 1985. Several beneficiaries commenced proceedings against the administrator of the estate in 1996. The court appointed the Official Solicitor as Judicial Trustee of the deceased estate on 29 February 2000.

The properties have been sold and the value of the net residuary estate was £388,725.94, – subject to costs.

The Official Solicitor sought guidance from the court under s1(4) of the Judicial Trustee Act 1896 to assist conclusion of the administration of the estate.

The Official Solicitor obtained expert evidence that marriages in accordance with Ghanaian Customary Law are recognised in Ghana. Eight women, two through their estates, claimed they had such marriages with the deceased. The Official Solicitor has no reason to doubt seven of theses claimed Customary Law marriages.

The first defendant is a child of the deceased who has helped the Official Solicitor identify his full or half brothers and sisters. The Official Solicitor has created a schedule of those claiming to be widows and children of the deceased. The Court has doubts as to the veracity of the Ghanaian birth certificates and agrees the Official Solicitor can reasonably rely on the evidence he has already obtained about the scheduled children and treat and proceed on the basis that the schedule is accurate and reasonably identifies the many children of the deceased.

Section 1(1)(a) of the Inheritance (Provision for Family and Dependants) Act 1975 provides that a surviving spouse may bring a claim against a deceased’s estate if their will or intestacy failed to make reasonable financial provision for them.

In Re Sehota (Deceased) [1978] 3 All ER 385 the court considered historical public policy objections to polygamy in Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130 and held that the wife of a polygamous marriage was to be treated as the deceased’s wife under the Act.

 Section 47 of the Matrimonial Causes Act, 1973 effectively abolished the common law rule with all forms of matrimonial relief available in the case of polygamous marriages.