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.


Loans, limitations & the deceased estate

Limitation periods protect the rights of defendants by facilitating a resolution within a ‘reasonable’ amount of time. Importantly they prevent the Court from having to preside over cases that are unlikely to succeed.

The limitation periods after which legal action for civil causes of action cannot be brought are legislated by the Limitation Act 1969 (NSW).

For breaches of contract, claims must be brought within 6 years of the breach. However, applications to extend the limitation period may be made.


Ida Wolff loaned her nephew Ronald Binetter $1 million in September 2010. In May 2018, she commenced proceedings by her tutor, to recover the loan. Steven Binetter, as legal representative of her estate, continued the proceedings following Ida’s death in September 2018.

The six-year limitation period for the recovery of debts expired in September 2016 under ss 14 and 63 of the Limitation Act 1969 (NSW). However, her estate submitted that as Ida had been under a disability for some years before commencing proceedings the running of the limitation period had been suspended under s 52(1)(d) for the duration of her disability,

Three categories of evidence were relied on to prove that Ida had suffered disabling confusion and delusions:

•          contemporaneous evidence of Suzanne Binetter, a trusted member of the family, who spent significant time with Ida during the decade before her death.

•          medical and hospital reports available concerning Ida’s treatment for various ailments in the same period before her death; and

• a report by a rehabilitation physician, prepared for the proceedings.

The decision

At first instance the Court accepted that Ida had made a loan to Ronald which had not been repaid however the evidence did not establish that Ida was incapable of, or substantially impeded in, managing her affairs concerning the recovery of the loan.

On appeal, the Court held that Ida would have been under a disability as defined by s 11(3)(b) of the Limitation Act 1969 if

(i)         her physical or mental condition was impaired, 

(ii)        the impairment was for a continuous period of at least 28 days, and 

(iii)       the incapacity or substantial impediment related to the commencement of legal proceedings for recovery of the debt. 

The rehabilitation physician’s report did not specifically address Ida’s capacity to give instructions about commencing these legal proceedings. Finding that Ida would have had a hindered understanding of “complex legal issues” did not assist because the legal issues involved in recovering the loan were not complex.

Suzanne’s evidence also supported the findings at first instance that, between 2010 and 2016, Ida could give instructions to recover the loan as she had asked about its repayment and sought legal advice about the loan. 

The Court of Appeal held that the primary judge did not err in finding that the evidence, in its entirety, did not prove that Ida was under such a relevant and sufficient disability; the limitation period had expired.

Although the evidence showed that Ida had suffered bouts of confusion, forgetfulness and delirium and physical impairments, it did not establish that she was incapable of, or substantially impeded in, managing her affairs concerning the recovery of the loan.

Intestacy, polygamy & letters of administration in the U.K.

In the United Kingdom when a person dies intestate the Administration of Estates Act 1925, prioritises and creates a hierarchy of beneficiaries who will inherit the estate.

Similarly, the Non-Contentious Probate Rules 1987 (“the Rules”) provides a hierarchy list for those able to obtain Letters of Administration.

In Kelly-Lambo v Lambo [2022] EWHC 2672 (Ch), two applicants claiming to be the deceased’s spouse applied for letters of administration; in England and Wales, it is illegal under the Matrimonial Causes Act 1973 to be married to more than one person at a time, the Court cannot recognise a deceased individual having more than one spouse.

Rule 22 sets out the priority order in which letters of administration are to be granted on intestacy. Additionally, s 116 of the Senior Courts Act (”the Act”) enables the court to pass over prior claims to a grant.


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

Notably polygamous marriage while illegal in England and Wales are legal in some countries so a person can enter into polygamous marriage outside of England and Wales and then return, albeit the marriage will not be entirely recognised.

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 how the intestacy rules worked concerning polygamous marriages. The court held that any spouse who had been lawfully married under the law of the place of an intestate’s domicile was entitled to be recognised in England as a surviving spouse for this purpose.

The matter

In Kelly-Lambo v Lambo [2022] EWHC 2672 (Ch), the deceased died intestate in 2017. The claimant sought an order for a grant of letters of administration in the High Court in February 2021.

The claimant submitted that she married the deceased in Nigeria in 1993 before travelling to live with him in the UK in 2006 and continued to live with him until he died in 2017. The claimant became aware of the defendant in 2008/09 but had never met her. The deceased told her he had been married before but had divorced.

The defendant submitted that she married the deceased in a Muslim ceremony in Nigeria in 1962. While the defendant accepted that the claimant and the deceased had married it was her position they had divorced in 2000. The defendant also submitted that one of her children had served divorce papers upon the claimant.

The defendant produced a decree absolute of divorce to the court which she claimed to have obtained from papers the deceased produced to the Home Office for permission to remain in the United Kingdom. The claimant alleged that the document was a forgery and denied that she and the deceased had been divorced.

The decision

From the evidence submitted by the parties, the court held that the claimant was living with the deceased as his wife at the date of his death and can therefore be considered a surviving spouse who is entitled to a grant of letters of administration under r 22.

The court then turned to the defendants standing; was she too a surviving spouse? The court held it turned on a 60-year-old memory; with no evidence of an original marriage certificate, only a certified copy with no evidence of how it came to be certified and no evidence from a Nigerian lawyer confirming the validity of the marriage.

The issue to be resolved by the High Court was whether a grant of letters of administration should be made to the defendant alongside the claimant. Having regard to the evidence, the court considered it both just and expedient to appoint the claimant as administrator under s 116 of the Act, and pass over any claims that the defendant may have concerning the issue of a grant.

Presumptions of resulting trust and advancement – anomalous, anachronistic, and discriminatory?

In Bosanac v Commissioner of Taxation [2022] HCA 34 the High Court of Australia examined the equitable presumptions of resulting trust and advancement.

A declaration of trust may be presumed where two parties contribute to the purchase price of property, but legal title to the property is put only in the name of one of them. Equity presumes it was intended that the person holding legal title would do so for both contributors – or that the purchaser did not intend to gift their contribution to the other person.

Where it applies, the presumption of advancement operates to prevent a resulting trust from arising due to the relationship between the two parties. The benefit provided by one party to the other at the cost of the first was intended to be provided by way of “advancement”; absent evidence to the contrary, the relationship supplies a reason for why a gift was intended.

In a discussion of the presumption the Court expressed that

The presumption of advancement, understandably, is especially weak today

[2022] HCA 34 at [22]


In 2006, Ms Bosanac purchased a property (”the property”) for $4,500,000 with a $250000 deposit paid out of Mr and Ms Bosanac’s joint loan account. The balance of the purchase price was paid from joint borrowings and $4,500,000 of bank loans jointly in the names of Mr and Ms Bosanac.

Federal Court

In 2015, the Commissioner of Taxation issued Mr Bosanac notices of amended assessment for the financial years ending 30 June 2006 to 30 June 2013. Mr Bosanac was liable for a substantial tax debt. To satisfy Mr Bosanac’s outstanding tax liabilities the Commissioner of Taxation sought a declaration that Ms Bosanac held 50 per cent of her interest in the Property on trust for Mr Bosanac.

This declaration was sought to satisfy Mr Bosanac’s outstanding liabilities for the amended income tax assessments, shortfall charges, administrative penalties and interest charges.

At first instance, Justice McKerracher held that a presumption of advancement arose and that it had not been rebutted by the Commissioner: [2021] FCA 249.

Federal Court of Australia – Full Court

On appeal the Full Federal Court held that as the Bosanacs

  • bought the property for their joint use;
  • intended the property to be their matrimonial home;
  • paid the deposit from a joint loan account;
  • and balance of the purchase price was borrowed jointly

the property was held on resulting trust:

“the objective facts together with the inferences properly drawn from those facts, lead to the conclusion that Mr Bosanac did not intend that his contribution to the purchase of their matrimonial home at Dalkeith be by way of gift to Ms Bosanac for her ‘advancement’. Rather, it should be inferred from the facts as found that both he and Ms Bosanac intended that Mr Bosanac would have a 50% beneficial interest in the Dalkeith Property.”

[2021] FCAFC 158 at [22]

High Court of Australia

The High Court of Australia granted Ms Bosanac leave to appeal the decision of the Full Federal Court on 12 April 2022.

The Commissioner sought to take advantage of the presumption of resulting trust, where a person who advances purchase monies for property, held in the name of another person, intends to have a beneficial interest in the property: Calverley v Green [1984] HCA 81; (1984) 155 CLR 242 at 246.

The presumption of resulting trust is subject to an exception that, in the case of purchases by a husband in the name of a wife, or a parent (or in loco parentis), there is a presumption of advancement or, in other words, a presumption that the purchaser intended that the beneficial interest would pass with the legal interest: Nelson v Nelson(1995) 184 CLR 538 at 547-548.

The Commissioner contended that the presumption of advancement of a wife by her husband, which operates to preclude a resulting trust from arising, is no longer part of the law of Australia in relation to the matrimonial home following Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278 at 302-303.

The High Court distinguished Cummins:

“the objective facts in that case established that the intention of both parties was that they would hold the property jointly”

At [119]

despite the greater financial contributions to the purchase price made by Mrs Cummins. Mr Cummins was registered as a joint proprietor when the Hunters Hill property was purchased, whereas Mr Bosanac never had a legal interest in the property.

Further, in Cummins, the husband was not lodging tax returns when the transfer occurred and under s 121(1)(b) of the Bankruptcy Act 1966 transfers of property in an attempt to delay or defraud the creditors or the creditors trustee may be a voidable transaction.

Additionally Mrs Cummins was unsuccessful in establishing a resulting trust in her favour of a tenancy in common in unequal shares. Therefore, the joint tenancy established when the purchased the Hunters Hill property stood.

In Bosanac there was no question at the time of the purchase of the property that Mr Bosanac was in a solid financial position, which meant that it could not be inferred that the property was bought in the sole name of Ms Bosanac so that Mr Bosanac could avoid creditors.

The High Court considered that the primary judge’s findings support an inference on the balance of probabilities of an intention on the part of Mr Bosanac and Ms Bosanac that Ms Bosanac was to be the sole legal and beneficial owner of the property: at [71]-[77]

The Commissioner submitted that the Court abolish the presumption of advancement as having no acceptable rationale and being anomalous, anachronistic, and discriminatory. The Court refused, observing at 95

“the presumption is “too well entrenched as [a] ‘land-mark[]’ in the law of property to be simply discarded by judicial decision”

Will kit, rectification, intestate, removal of executor

In Queensland s 33(1) of the Succession Act 1981 provides that the court may make an order to rectify a will if it is satisfied that the document does not carry out the testator’s intentions due to a clerical error, or does not give effect to the testator’s instruction.


Trevor William McMahon ( the testator) died on 18 August 2021. The testator prepared his last will by filling in a will form dated 22 July 2021 (the will) There has been no grant of probate or letters of administration.

Clause 1 of the will revoked all previous wills and testamentary dispositions.

Clause 2 of the will appoints Michelle Ochea (”the applicant”) as executor of the will and trustee of the deceased estate. At the time the testator executed the will, he and the applicant had been in a domestic relationship for approximately 13 years. They were married on 16 August 2021.

Neither clause 4 nor 5 of the will names a beneficiary; these clauses are the subject of the rectification application. The applicant must establish the testator’s intention concerning the clauses to be rectified.

Extension of time

The applicant filed the originating application outside the period of six months from the testator’s death prescribed by s 33(2) of the Act.

The applicant submitted that it was appropriate to extend the time for making the application under s 33(3) of the Act as the second respondent has brought a family provision claim against the estate in the District Court. The outcome of the applicant’s rectification application is likely to impact the parties’ positions in `that family provision proceeding.

The court accepted that it was appropriate to extend the time for the applicant’s rectification application as the final distribution of the estate had not been made and the respondents did not oppose the extension of time.

The applicant

The applicant sought orders under s 33 of the Succession Act 1981 (Qld) (the Act) for rectification of the will and a grant of probate of the rectified will.

Alternatively, an order under s 18 of the Act that a statutory declaration sworn by the testator on 10 March 2016 is his last will.

The alternative claim for relief was abandoned as no party disputed the validity of the will made on 22 July 2021.

The respondents

The first and second respondents are adult children of the testator’s earlier marriage.

The first respondent – supported by the second respondent – sought a declaration that the estate be distributed under the rules of intestacy; that the applicant be passed over as executor of the will; that he be granted letters of administration with the will annexed.


Rectification under s 33(1) requires that the court be satisfied that the will does not carry out the testator’s intentions based on either

  • a clerical error was made or
  • the will does not give effect to the testator’s instructions

The effect of the rectification would be to bequeath the whole of the estate to the applicant. The applicant submits that this was the testator’s intention when executing the will and that the will as executed fails to give effect to that intention.

Clerical error

A clerical error may occur when someone writes something in the will that they did not intend to insert or omits something which they intended to insert. The introduction of a clause that is inconsistent with the testator’s intentions in circumstances in which the person drafting the will fails to apply his or her mind to its significance or effect may also be a clerical error.

What must be shown is the actual intention, not what the intention probably would have been had the testator thought about the matter.

Rose v Tomkins [2017] QCA 157 at [35]


As the testator prepared the will himself he gave no instructions as to the content of the will.

Instructions are, of their nature, communicated by one person to another with a view to compliance or obedience by that other person. It seems to follow that s 27(1)(b) cannot apply to a will composed and written by the testator personally.

Vescio v Bannister [2010] NSWSC 1274 at [12].

In dismissing the application to rectify the Will the court held that there was no evidence to support the intention that when the testator executed the will he intended to leave his entire estate to the applicant. Accordingly, the court has no power to make an order to rectify the will in the terms sought by the applicant.

The applicant accepted that if the will was not rectified then the rules on intestacy would apply and she will seek greater provision from the estate than she would receive under the intestacy formula. On that basis, the first respondent submits that the applicant is in a position of conflict.

Removal of executor

The court held that not every conflict of duty and interest should result in removal of an executor. However, removal may be warranted where the conflict will involve an executor having to decide whether to accept or reject his or her claim against the estate.

Similarly, the testator’s intention that the executor be a particular person should not lightly be set aside – whether before or after the grant [at 44]. However, the Court held that in the present case removal may be warranted as the conflict involves an executor having to decide whether to accept or reject her claim against the estate.

The court was satisfied in the circumstances to order that the grant of letters of administration be made to the first respondent` as administrator.

As one of the intestacy beneficiaries, the first respondent is next entitled in the descending order of priority of persons to whom the court may grant letters of administration with the will: r 603 of the Uniform Civil Procedure Rules 1999 (Qld),

Importantly the first respondent is willing to administer the estate and has no conflict that would lead to their removal as administrator. The second respondent, also an intestacy beneficiary, supports the first respondent’s appointment as administrator.


The Court ordered that the administrator’s costs be reimbursed from the estate on an indemnity basis and the administrator’s costs are to be paid by the applicant to the estate on the standard basis.

Although a will can be prepared using a Will Kit, it is important to exercise caution. A Will Kit may not be suitable for your affairs as it can be highly contestable in Court. It also may not distribute your estate in the way you wish.

Parents’ breach of fiduciary duty to adult children

In New Zealand the Family Protection Act 1955 allows children to make claims against their parent’s estate. If proper provision is not made the following people can claim provision out of the deceased estate. Section 3 of the Act provides an extensive list of who may apply.

Section 4(1) of the Act provides that if adequate provision is not available from the deceased’s estate for the proper maintenance and support of the persons who can claim under the Act, the Court may, at its discretion, order any provision it thinks fit to be made out of the deceased estate.

Maintenance and support

The Court interprets proper maintenance and support broadly to include emotional support – among other things. Proper maintenance tends to look at the financial provision, while support reflects the importance that the claimant played in the deceased’s life and connection to the family.

The court considers a wide range of factors when determining whether the deceased breached their moral duty to provide for an adult child including but not limited to:

  • whether the child has been left anything; 

  • what the deceased’s opinions and wishes were –   this is often expressed separately in a memorandum of wishes.
  • the size of the estate; 

  • the character and conduct of the child, including the relationship between the child and the deceased; and 

  • what moral duty the deceased had to provide for others. 

Adult children without any particular financial need who are left out of a parent’s will are typically awarded 10-15 per cent of the value of the estate as recognition of their place in the family.

Typically the Court reduces the significance of a deceased’s moral duty when they were estranged from their child.

Claims must be brought within twelve months from the date of the grant of probate or letters of administration. However, the court has broad discretion to extend the timeline depending on the circumstances.

Similarly, executors may distribute the estate six months after probate however if they distribute the estate to the beneficiaries within the six months, they may be personally liable should a subsequent claim occur.

The High Court

The claimants were the estranged children of the deceased and victims of sexual and physical abuse committed against them by him throughout their childhood.

The deceased moved his assets into a trust excluding his children from making a claim against his estate under the Act. He then left his children out of his will.

The deceased’s children filed a claim in the High Court following his death asserting that their father owed them a fiduciary duty which was breached when he transferred his assets into the trust. As assets held in trust are not part of the parent’s estate and may be protected against claims under the Act.

A fiduciary is someone placed in a position of trust to act in a person’s best interests with legal consequences if a fiduciary breaches their duties and obligations.

The decision

In the notable matter of A v D and E Limited as Trustees of the Z Trust [2021] NZHC 2997 the High Court ordered that the Trustees of the Z Trust held the trust property on constructive trust for the plaintiffs as the transfer of the assets to the trust

“was in breach of the fiduciary duties…owed to the plaintiffs”.

At [174]

the claimants could claim against the trust as

  • The deceased breached his fiduciary duty to his children to not physically and sexually assault them when they were children.
  • the long-term consequences of the abuse were that a fiduciary relationship and the accompanying duty continued into the children’s adulthood.
  • This fiduciary duty existed when the deceased transferred his assets into the trust. Robert breached this fiduciary duty.
  • As a result of the deceased’s breach of this fiduciary duty, the trustees of the trust knowingly received the assets and therefore held the assets on constructive trust for the estate.

The Appeal

The trustees appealed the High Court’s decision. The Court of Appeal held in D and E Limited v A, B and C [2022] NZCA 430 that there was no fiduciary relationship or duties owed by the deceased to any of his adult children when he transferred his assets into the trust.

The Court accepted that the deceased had a fiduciary relationship with his children when they were young and had breached that relationship and his duties to his children when he abused them.

However, when the deceased was dealing with his assets, he was not exercising the power to protect his children’s interests. The deceased could deal with his personal property as he wished, without the constraints of fiduciary obligations.

The deceased’s fiduciary obligations were defined narrowly by particular powers and did not extend to any actions the deceased chose to take concerning his assets. Further, the transfer of the deceased’s assets affected a future possible claim under the Family Protection Act 1955 and not the children’s interests.

Similarly, there was no obligation on the deceased to hold or deal with his assets for the benefit of his children. The assets were acquired by the deceased without the children’s contribution several years after they had entered adulthood.

The decision on appeal

There was no breach of fiduciary duty when the deceased transferred his assets into the trust as the deceased’s fiduciary duty to his children ended when he no longer lived with or cared for them as there was no longer a relationship of trust.

The Court of Appeal held that there could be no basis in this case to impose a constructive trust. The children would only be able to claim under the Family Protection Act 1955 against the small number of assets in the deceased’s estate.