Rectification & the Mutual Will

Dino Cudia died on 29 March 2019; he was predeceased by his wife Lorraine, who had died on 29 July 2008. Dino had two children with Lorraine – Santina (the executor) and Andreas and three children from a prior marriage, Dean Maynard, Simon Maynard, and Adam Maynard (‘defendants’).

Mutual Will

Dino made a will on 18 June 2004 (‘will’) under a mutual will agreement (‘mutual will agreement’) with Lorraine, executed on the same day and prepared by a solicitor.

The solicitor explained to Dino and Lorraine that, when the first of them died, the mutual will agreement created a trust that had to be honoured by the survivor, and that the entire estate would eventually go to Andreas and Santina.

The solicitor gave evidence that when drafting the wills he took it upon himself to refer to Dino and Lorraine’s children and not to Andreas and Santina specifically and the reference to “my children” in the will was made in ignorance of the existence of the defendants.

Section 31 of t the Wills Act 1997(Vic) (‘Act’), provides that if the Court is satisfied that the will does not carry out the testator’s intentions because (a) a clerical error was made, or (b) the will do not give effect to the testator’s instructions it may make an order to rectify a will to carry out the intentions of the testator.

The application

Santina submitted that, if the will was not rectified, the effect would be that Dino and Lorraine’s estate would pass to different beneficiaries depending upon who died first in direct conflict with the expressed intention of the mutual will agreement.

Sabrina made an application to the Court to :

(a)add the words “Santina Giuseppina Trigazis (formerly Cudia) and Andreas Cudia” after the words “my children” at clause 3(c) and

(b) delete the words “my children” and replacing them with the words “my said children Santina Giuseppina Trigazis (formerly Cudia) and Andreas Cudia” at clause 4,

Santina’s application for rectification was made within time. Similarly, the defendants consented to Santina’s application to rectify the will, subject to their costs being reserved.

The decision

In granting the application the Court accepted the solicitor’s evidence that Dino and Lorraine intended that, upon their deaths, their entire estates would pass to Santina and Andreas, and that the reference to “my children” in the will was made in ignorance of the existence of the defendants.

The Court held Dino had not discussed his testamentary intentions with the defendants, and they were not involved in the preparation of the wills. Additionally, following the end of Dino’s first marriage, he didn’t have a close relationship with the defendants, and their stepfather raised them as if he were their father.


Admission of a Copy of a Lost Will to Probate

Jennifer Hartung sought to have a copy of a document said to be the Will of Horst Paul Hartung (the deceased) admitted to probate under s 10(2) of the Wills Act 2000 (NT) (the Act). The document was found in the deceased’s belongings and is believed to be a copy of his Will. Additionally, Jennifer sought a grant of probate of the deceased estate.

Section 10(2) of the Act allows the Court to accept a document that expresses the testamentary intentions of it’s maker but does not meet the formal requirements of the Act as their will. The Court held that in this case s 10(2) is not relevant as the document appears to be a copy of the Will that was executed according to the Act.

Copy of the Will

The copy of the Will (the copy) appoints Jennifer as Executor and leaves the deceased’s “share of the house plus contents of furniture plus the land and garage” to her. As the property was held as tenants in common an application for probate of the deceased’s estate is necessary to transfer the deceased’s share to Jennifer.

The deceased’s signature was identified on the document dated 6 April 1990 which was signed by two witnesses in the presence of each other, one of whom is now deceased.

Jennifer’s solicitor confirmed that the whereabouts of the original Will are unknown and believed that the copy is a true copy of the original. Further, the Court requested the solicitor make enquiries with the Office of the Public Trustee of the Northern Territory; these confirmed the Public Trustee is not in the possession of a Will for the deceased and has no interest in the estate.

The Decision

The following matters must be established when seeking a grant of probate of a lost Will: it must be established that there was a Will and that that Will revoked all previous Wills; the applicant must overcome the presumption that when a will is not produced it has been destroyed; there must be evidence of the terms of the Will and evidence of the Wills due execution.

The Court found that in the circumstances it is most unlikely that the deceased destroyed the Will intending to revoke it; on the balance of probabilities, the original Will was lost. Similarly given the particular provisions and bequests in the Will and that the copy was found in the deceased’s belongings, on the balance of probabilities, it is a true copy of the deceased’s Will.

The Court was satisfied on the balance of probabilities that the presumption in favour of destruction and change of testamentary intent is rebutted. As it is unlikely that the deceased would destroy his Will, change his testamentary intent and keep a copy of the revoked Will with his possessions.

The Court admitted the copy of the Will to Probate; granted Probate of the estate to Jennifer and ordered that costs of the application be paid out of the estate.

Partial intestacy & the Homemade Will

Angela Thompson died on 1 September 2017 having made a Will dated 3 October 2015; naming her husband Trevor executor. Clause 3(b) the Will stated that

‘I wish my children to remain in abode as long as it is deemed reasonable’.

However a later clause, (cl 4)  provided the executor with the power

‘to sell, exchange or otherwise dispose of assets in my estate on such terms as he considers expedient as though he were the absolute beneficial owner’.

Trevor was granted probate of the will on 20 November 2017. The estate was valued at approximately $511,000. The major assets were properties at Boyup Brook valued $130,000 and Kelmscott valued at $370,000.

When Angela died , her daughters Sarah and Laura were living in the Kelmscott property; Trevor asked them to leave but they refused. Following a threat of eviction in June 2020 they vacated the Kelmscott property in November 2020; they have now consented to its sale.

In Trevor Alan Thompson as executor of the estate of Angela Helen Thompson v Upton [2021] WASC 158 Trevor sought the court’s direction under s 45 of the Administration Act 1903 (WA).

Notwithstanding the objections of Sarah and Laura the Court held the will was unclear and as executor Trevor was acting appropriately in seeking directions and expressed

‘Yet again, this matter illustrates the folly of persons making homemade wills…It is invariably the case that money spent on having a will professionally drafted is a sound investment’

In construing the words of a Will, a court will not guess at the testator’s intentions or make a choice as to that intention simply because it considers it a better interpretation. The Court prefers a construction that preserves rather than destroys gifts under a will and has been expressed as being a presumption against intestacy.

Additionally, if every attempt has been made to render the whole Will effective if two parts of a will are mutually inconsistent there is a general rule that the latter clause prevails.

Trevor submitted that cl 3(b) of the will is void for uncertainty on the following grounds;

First, the clause requires a majority of three beneficiaries being in favour of a sale. If such majority did not eventuate, the gift to Trevor of a one-third interest as tenant in common is postponed indefinitely.

Second, the provision impermissibly delegates testamentary direction to the three beneficiaries.

Third, provision as to the deceased wishing her children to remain in occupation of the property ‘as long as it is deemed reasonable’ is so vague as to be void for uncertainty. It expresses no more than a wish on the deceased’s part.

As it is a clear provision of cl 4 of the will that the executor has the power to sell estate assets. As it is inconsistent with the limitations sought to be effected pursuant to cl 3(b) and a later provision, it should prevail.

The Court held that even allowing for the presumption against intestacy, there is no alternative but to conclude that cl 3(b) is void for uncertainty. When cl 4 is added in it is not possible to make sense of the construction of the Will. The consequence of which is that there is an intestacy with respect to the Kelmscott property

Co-Executor & Mesne Profits

Jocelyn Richardson died in April 2016 survived by her three sons, Mark, Gregory and Wayne. Under Jocelyn’s  Will dated 12 December 2011 the residue of her estate was left in equal shares to her three sons. The primary asset of the estate is the family home at  Epping valued at  $1.3 million. Wayne was living in the home and following Jocelyn’s death continued to do so without paying rent.

In May 2019, Gregory and Mark sought a Court order to remove Wayne as an executor and appoint an independent administrator who obtained a writ for possession; executed by the Sheriff in July 2020. Gregory and Mark sought to claim mesne profits and damages for Wayne’s occupation of the home from the deceased’s death in Richardson v Richardson [2021] NSWSC 353.

Mesne profit

Where a landlord has obtained an order from a court to evict a tenant the mesne profit represents the value the ejected tenant received from the property between the time the court ordered the eviction and the time when the tenant actually left the property.

The Court held that a claim for mesne profits is a particular form of the action for trespass based upon an injury to the plaintiff’s possession it cannot succeed unless a plaintiff proves that they entered into actual possession or occupation of the premises before bringing such a claim. Gregory and Mark brought the claim for possession and the claim for mesne profits in the same proceeding therefore as they did not enter into actual possession of the Epping Property their claim for mesne profits fails because they hadn’t obtained actual possession before bringing the claim based on trespass.

However the loss of rent for the Epping Property over the period from Jocelyn’s death to the date Wayne was removed as executor represents the loss sustained by the estate as a result of the breach by Wayne of his duties as an executor. Similarly Wayne is liable for water rates and electricity for the period from the date of the deceased’s death to the date of appointment of the administrator. The Court agreed that had it not been for Wayne’s breach of his duties as executor the estate wouldn’t have had to pay the Administrators costs ordering they be paid out of Wayne’s share of the estate.

The Court accepted that although Wayne was in a vulnerable economic position due to physical and mental ill-health, he had been repeatedly put on notice of his responsibilities as an executor; chose not to accept assistance or to co-operate in the orderly administration of the estate. Additionally, he was on notice of the claim for rent or an occupation fee if he remained in occupation of and did not comply with requests to vacate the Epping Property making it necessary for the estate to incur the costs of obtaining vacant possession. The Court held that Wayne’s wilful disregard of his obligations amounted to conduct that warranted an indemnity costs order.

Court of Appeal rejects dubious applicants estoppel claim

Jason Gill challenged the dismissal of his action seeking a declaration that the executors of the late William Garrett held certain property on trust for him, and in the alternative, sought family provision under s 59 of the Succession Act 2006 (NSW) out of the estate. He also challenged the primary judge’s findings in favour of the executors under a cross-claim filed against the appellant.

Jason and William had met in 1996 and commenced a friendship that developed into one of greater mutual dependence. William loaned money to Jason and covered other expenses. In late 2003, Jason moved into William’s home where he continued to reside until after he died in 2015. William paid for the storage of Jason’s property and continued to loan him money and provide other financial benefits.

Jason looked after William by driving him to appointments, cooking meals and undertaking other household tasks. Contributing to William’s increased medical care needs. Under the Will, Jason was to receive $200,000 less unpaid loans of  $98,000.

Jason claimed that, in 2009, William said he would give him the Paddington property in exchange for living with him as a companion and carer. On that basis, Jason claimed the executors were estopped from denying his claim to the home.

Although William left Jason a significant legacy in his will dated 20 June 2008 (the Will), the residue of his estate, including the Paddington Property, was left to his three children, who are the executors of the Will (the Executors).

The primary hearing

At first instance, the court found that as William lacked capacity by 2009 no such representation occurred; additionally rejecting the family provision claim on the basis that Jason had consciously misused Williams position of special disadvantage.

The executors made a cross-claim, seeking equitable compensation for Jason’s unconscionable conduct in respect of cash withdrawals retained by Jason for his personal use since November 2008 in breach of fiduciary obligations, and for the storage fees incurred by William from the same time.

The Appeal

The NSW Court of Appeal held that:

as there were no direct witnesses, Jason’s credibility was dubious and William had failed to raise the matter with his family and advisors – the primary judge was correct in finding that no representation was made to give rise to a proprietary estoppel.

the medical evidence, coupled with Williams dependence on Jason, supported the primary judge finding that William was in a position of special disadvantage concerning Jason.

Jason had received financial benefits from William, therefore the primary judge was correct in finding no factors warranting his family provision application.

Jason derived a benefit from William making payments for keeping his possessions in storage; refusing to remove his possessions when he had the opportunity after November 2008 was unconscionable. There was no error ordering equitable compensation for storage fees of $43,155.64.

Similarly, as Jason had a fiduciary relationship in respect of the access to Williams bank accounts and PINs, orders for equitable compensation in respect of the unauthorised cash withdrawals made by the primary judge were appropriate. The appeal was dismissed with costs.


Eddie Mabo

June 3 is Mabo Day, marking the anniversary of the historic Mabo decision. On 3 June 1992, the High Court of Australia rejected the doctrine that Australia was terra nullius (land belonging to no-one) at the time of European settlement.

Eddie Koiki Mabo was the son of Robert and Poipe Sambo. Shortly after his birth, his mother died, and Eddie was adopted, by his maternal uncle, Benny Mabo, and his wife, Maiga under ‘Aislan Kustom’.

He was raised on Mer as a member of Benny Mabo’s family and, it was through his adopted parents he inherited traditional land.

Murray Islander’s, according to Eddie, inherited land as male descendants. Women inherited land only in cases where the family had no male children. A father makes it known during his lifetime his wish as to which one of his sons would be the heir to his land.

“… it was handed down from generation to generation, they knew by the boundary lines and markers. There was a certain tree, or stones, heaps of rocks, different trees. They knew exactly where the place was.”

In the extended land rights litigation that culminated in the High Court decision known as Mabo, these portions of land were claimed under customary law.

‘Whether Eddie Mabo was adopted by Benny and Maiga Mabo with the consequence that he became their heir is very much in issue in the proceedings.’

Benny Mabo died intestate; it is not uncommon for Aboriginal and Torres Strait Islander people to not make Wills, however the cultural construction of kinship including the fact that the pattern of family on which the common law and the intestacy rules are based does not fit with that of Indigenous peopleenabled the State of Queensland to argue Eddie Mabo was not, adopted by Benny.

Eddie had lived with his uncle informally for a number of reasons including to claim social security payments to which they were not entitled.

The court accepted that some Murray Islanders recognized the existence of Mabo land on the Islands, however, Eddie was not a credible witness; was not adopted as heir by Benny and Maiga, nor did Benny transfer land to him during his lifetime.

If Benny had made a Will formalising his intention to leave his land Eddie would have less trouble in establishing, his right to portions of Mabo family lands, fish traps, fringing reefs, and seas.

In the early stages of the case, the Queensland Parliament passed the Torres Strait Islands Coastal Islands Act that stated

‘Any rights that Torres Strait Islanders had to land after the claim of sovereignty in 1879 is hereby extinguished without compensation’.

this legislation was challenged in the High Court and the Act was found to be invalid under the Commonwealth Racial Discrimination Act 1975. In a second case, the High Court rejected the notion that Australia was terra nullius holding that the Mer people had owned their land prior to the establishment of the colony of Queensland

Family provision claim by a secret De facto partner

George Sclavos (the deceased) died suddenly on 13 August 2013 at the age of 65, leaving an estate of approximately $6 million. The deceased had never married, had no children and no surviving siblings or parents.

In December 2013 probate of an informal will dated 16 October 2012 was granted leaving the whole of his property to his closest living relatives, being his two nieces Cleopatra Calokerinos and Anna Sclavos-Lahana; appointing Cleopatra his executrix.

Okan Yesilhat ( the plaintiff ) brought proceedings against the estate, claiming that he and George were in a secret same-sex relationship for 14 years that is sufficient to qualify him as his de facto partner.

Additionally, the plaintiff claims that the executrix (or someone associated with her) destroyed a will made in his favour; fabricated the October 2012 informal will – which should now be revoked; and, as the deceased’s long-standing de facto partner, the plaintiff is entitled to a grant of administration, and to the benefit of the whole of, the deceased’s intestate estate.

Alternatively, if probate of the informal will were not revoked, the plaintiff claims that as an “eligible person” he is entitled to claim against the deceased’s estate: either as a de facto spouse, or as a dependent who lived with the deceased for a period, or as someone in a close personal relationship living with the deceased.

The payments

In November 2013 the executrix commenced proceedings seeking the return of $380,000 transferred from the deceased’s bank accounts to the plaintiff before and after the deceased’s death on the basis that they are held on constructive trust for, or in the alternative, are owed as a debt to the estate.

The executrix alleges the withdrawals made just before the deceased’s death were not authorised by the deceased. Similarly, the withdrawals after the deceased’s death were all fraudulent misappropriations of funds from the deceased’s estate.

The decision

At first instance, the Court upheld the validity of the informal will, dismissed the plaintiffs family provision claim and entered judgment against him on the executrix’s payment claims.

The appeal

Upholding the primary judgment the New South Wales Court of Appeal held that the plaintiff was not an actual or potential beneficiary in respect of the deceased’s estate nor eligible to claim a family provision order, and had no standing to challenge the informal will.

The court held that the three categories of eligibility claimed involves a requirement that the person be “living with” the other person; a concept which involves mutual living in a common residence, at least to some extent, though not necessarily exclusively or on a full-time basis: from the evidence, the secret relationship did not meet this requirement and therefore did not amount to common residence.

As a corollary, there was no de facto relationship; dependent household membership; or close personal relationship.

Additionally, the Court held there was no error in finding that the payments constituted loans that the plaintiff was obliged to repay.

Aboriginal Objects, Defect in title, Security for costs

In New South Wales Aboriginal objects are the property of the Crown, under s 5(1) of the National Parks and Wildlife Act 1974 (NSW), (”the Act”) an “Aboriginal object” includes Aboriginal remains which would also be the property of the Crown (s 83). The Act imposes offences on individuals who ‘harm’ (including moving) these objects. The penalties for harming an Aboriginal site are up to $275,000 and one year’s imprisonment for individuals and $1.1 million for corporations.

A review of potential Aboriginal heritage issues as part of a ‘due diligence’ process to ensure Aboriginal sites are not accidentally damaged and those completing the work are not liable for prosecution. Similarly, the purchaser finding that property contains an aboriginal object may give the purchasers certain rights against the vendor. A development on property containing aboriginal artifacts ( if permission to carry out development is approved) will require additional expense. However, a purchaser may have the right to rescind a contract for the sale of land for a ‘defect in title’.

In a recent case following the exchange of contracts, the purchaser became aware that the land included a memorial stone and plaque recording the burial site of two Aboriginal elders of the Bundjalung tribe, Harry and Clara Bray. The reputed existence of such remains gave rise to a broader dispute as to whether there were any Aboriginal objects in or on the land, and if so, whether their existence constituted a defect in title.

The purchaser refused to settle without evidence that the aboriginal object, had been removed from the property as it was a ‘defect in title’. The vendor did not accept that the presence of the objects constituted a ‘defect in title.’ The purchaser terminated the contract by notice on 25 September 2015. On 6 October 2015, the vendors responded, alleging that the purchasers’ notice repudiated the contract The property was subsequently resold by the vendor on 29 November 2015 for $2.525 million.

At first instance, the Court held that ownership of the objects was never vested in the vendor therefore the presence of aboriginal objects on the land did not amount to a ‘defects in title’ as they were never intended to be transferred to the purchaser. The vendor was able to transfer clean title of the land to the purchaser and the purchaser’s termination was invalid, with the deposit was forfeited to the vendor.

In allowing the appeal the Court found that there were “Aboriginal objects” on the land (in particular, the remains of two Aboriginal elders, Harry and Clara Bray, known as the King and Queen of the Bundjalung tribe; and a memorial stone and plaque recording their burial near the location); and that the presence of those objects was capable of constituting a defect in title. In those circumstances, the refusal of the vendors to address the purchasers’ objections. Alternatively, the vendor’s insistence on completion based on an invalid notice to complete, coupled with an invalid claim for default interest, would have also constituted repudiation.

This decision has been appealed. With the vendor ordered to provide security in the sum of $40,000 for the purchaser’s costs of the appeal either by payment of that amount into Court or in such other form as agreed by the parties within 14 days.

Constitutional protection of non-resident Aboriginal rights in Canada

Richard Desautel shot and killed an elk without a hunting license in the Arrow Lakes region in British Columbia in October 2010. He was charged with hunting without a license and hunting big game while not being a resident of British Columbia.

Richard admitted that he shot the elk, arguing he was exercising his Aboriginal right to hunt in the traditional territory of his Sinixt ancestors under s35 of the Constitution Act, 1982 (Canadian Constitution).

A U.S. citizen Richard is a member of the Lakes Tribe of the Colville Confederated Tribes and lives on reserve in Washington State; claiming that where he shot the elk was within the traditional territory of the Sinixt people – a predecessor to the Lakes Tribe.

The lower courts agreed that Richard was exercising his Aboriginal right to hunt for ceremonial purposes in the traditional territory -which happened to be in Canada – of his Sinixt ancestors.

The BC Court of Appeal held that members of a present-day Indigenous community situated in Washington State are entitled to exercise constitutionally protected Aboriginal rights within Canada.

The Supreme Court of Canada addressed whether the Canadian Constitution protects the Aboriginal rights of people who aren’t Canadian citizens, and do not reside in Canada; the Court interpreted “Aboriginal peoples of Canada” as expressed in s35 of the Canadian Constitution for the first time.

The majority of the Court held that a fundamental purpose of s35 was the recognition of the prior occupation of Canada by organised, autonomous Aboriginal societies. Therefore “Aboriginal peoples of Canada” includes the modern-day successors of Aboriginal societies that occupied Canadian territory at the time of European contact, even if such societies are now located outside Canada. To exclude Aboriginal peoples who moved or were forced to move, or whose territory was divided by a border, would add to the injustice of colonialism.

The Court concluded that s35 provides that groups whose members are neither citizens nor residents of Canada can be considered part of the “Aboriginal peoples of Canada” and may claim an Aboriginal right.

The majority of the Supreme Court accepted the trial judge’s finding that that the Lakes Tribe, is a successor group of the Sinixt people. At the time of contact between the Sinixt and Europeans, their territory extended north into what is now British Columbia and as far south into what is now Washington State.

In 1846 an international border was created, by 1872, members of the Sinixt were living for the most part in Washington State, but travelled to British Columbia for hunting purposes. A majority of the Supreme Court agreed that this did not prevent the Lakes Tribe from being a successor group to the Sinixt, and they could be considered part of the “Aboriginal peoples of Canada” under s35 of the Canadian Constitution.

After establishing the Lakes Tribe as part of the “Aboriginal peoples of Canada”, the Supreme Court had to determine if s35 provided the group with Aboriginal rights; holding that the test to determine rights must be applied equally to groups outside Canada as for groups in Canada.

The court agreed with the trial judge, that the right to hunt, continued a historical practice that existed prior to European contact with no significant difference between the pre-contact practice and the modern one.

As a result, the Supreme Court of Canada (SCC) upheld the Court of Appeal for British Columbia decision that Richard was exercising an Aboriginal right and had been properly acquitted of all charges by the trial judge.

A Musician & a Supermodel; is separation abandonment

Ric Ocasek died on September 15 2019 aged 75 while recovering from heart surgery. An American singer-songwriter-musician and record producer born Richard Otcasek in Baltimore, he is best known for being a lead vocalist, rhythm guitarist, songwriter, and frontman for the rock band the Cars.

Reportedly expelled from a catholic school in the fifth grade – Ric couldn’t remember why – his grandmother gave him his first guitar, following an obsession with the Crickets’ “That’ll Be the Day”. A rebellious teen, his family relocated to Cleveland where he decided to focus on school, after graduating, Ric enrolled in two Ohio colleges, Bowling Green and Antioch, but dropped out and started leading the peripatetic life of a musician before forming the Cars in 1976.

The Cars disbanded in 1988 with Ric releasing seven solo albums from 1982 through 2005, though none achieved the popularity of his Cars catalogue.

Ric’s first wife Constance divorced him in 1971, the same year he married his second wife Suzanne; they divorced in 1988. In 1984, Ric met the 18-year-old supermodel Paulina Porizkova on the set of a music video; they married in 1989 and separated in 2017 – although continued to share a house. Ric had two sons with each of his wives: Christopher (b.1964), Adam (b. 1970), Eron (b. 1973), Derek (b. 1981), Jonathan Raven (b. 1993), and Oliver (b. 1999).

It has been reported that Ric’s estranged third wife Paulina found him unconscious and unresponsive when she brought him his morning coffee. Ric had executed a new will a few weeks before he died, stating

“I have made no provision for my wife … as we are in the process of divorcing. Even if I should die before our divorce is final … Paulina is not entitled to any elective share … because she has abandoned me,”

New York law provides spouses with a right to elect to receive a share of the estate, even when they are disinherited. Porizkova would be entitled to one-third of all estate assets. However, where a spouse is found to have “abandoned” the person who died, they may not be entitled to any elective share.

A probate judge will decide if Paulina did “abandon” Ric. The New York Court of Appeals held that the spouse claiming abandonment must show in addition to “a mere departure from the marital abode and a consequent living separately” that the abandonment was unjustified and without the consent of the other spouse.

Ric’s estate reportedly consists of $5 million in copyrights and another $115,000 in personal property and cash. Paulina would be entitled to $1.7 million. However, there are likely to be assets held in trust, joint accounts with others, and insurance policies that are not considered to be part of the deceased estate.