heirs & successes

A grant of administration ad litem provides for the management of legal proceedings on behalf of an estate; enabling the estate to bring or defend legal proceedings. A grant ad litem is necessary where

• no personal representative willing or able to take out a grant of probate or administration and

• proceedings involving the deceased cannot be continued or finalised without a representative of the deceased’s estate.

The Court carefully considers the form and scope of the grant as for all purposes – within the limits of the grant- the administrator ad litem is the representative of the estate.

Usually, a proposed administrator ad litem must file an affidavit confirming their independence and understanding of their fiduciary duties when taking up the appointment to protect innocent third parties.

An administrator ad litem represents the estate within the limits of the grant and the administrator’s actions bind the estate, may affect the entitlements of all beneficiaries and will have cost consequences for the estate.

Re Ciantar [2022] VSC 116, [61]

The Court has discretion under s57 of the Administration and Probate Act 1958 and r 7.01 of the Administration and Probate Rules 2014, to require (unless good reason is shown otherwise) an appropriate bond or guarantee to secure the performance of the duties of an ad litem administrator.

Background

Ermioni Kordos (‘the deceased’) died on 22 October 2021, aged 87 years.  The deceased’s will dated 21 April 2016 has been deposited with the Office of the Registrar of Probates (‘the will’). She was predeceased by her husband Evangelos Kordos (‘Evangelos’)and her son Vasilios (Bill) Kordos (‘Vasilios’) who died on 15 June 2021. The deceased’s son Zafiri (Geoff) Kordos (‘the plaintiff’) survives her.

The deceased appointed Vasilios as executor of the will; as Vasilios predeceased her the estate was left to Vasilios and Eleanor’s son Evaan Kordos (‘Evaan’). No provision was made for the plaintiff under the deceased’s will.

Probate of Vasilios’ will was granted to his widow, Eleanor Kordos (‘Eleanor’) on 23 September 2021.

Vasilios and the deceased were registered as joint proprietors of the deceased’s home in Doncaster (”the Doncaster property”) that was sold in 2019 for $1.245 million.  While the deceased initially received her half share of the proceeds on 30 September 2019 two separate withdrawals were made from her bank account:

• $500,000 was withdrawn and deposited into Vasilios and Eleanor’s bank account; and

• $100,000 was withdrawn and deposited into Vasilios’ bank account.

In October 2019 a property in Rosebud, Victoria (‘the Rosebud property’) was purchased for $505,000 by Vasilios and Eleanor as joint proprietors. The plaintiff submits that including stamp duty and transaction costs, the total acquisition cost of the Rosebud property was approximately $530,360. The plaintiff suggests that the deceased’s half share of the proceeds of the sale of the Doncaster property were used for the purchase of the Rosebud property.

Matter

In Re Kordos [2023] VSC 14 the plaintiff submits there may be grounds for a careful investigation of what occurred with the proceeds of the sale of the Doncaster property, and that as he stands to benefit as an eligible applicant to make a family provision claim from the deceased’s estate, he is the appropriate person to investigate what occurred with the proceeds of the sale of the Doncaster property and then issue a proceeding to recover the $600,000 from Eleanor.

If the plaintiff is appointed as the administrator ad item of the deceased estate the recovery of the traceable proceeds of the sale of the Doncaster property, will form the basis of a family provision claim under Part IV of the Administration and Probate Act 1958 in which he will be the plaintiff. However, the plaintiff submits that he does not have a conflict of interest as his only interest is in seeing the $600,000 recovered for the estate.

The plaintiff relied upon Mataska v Browne [2013] VSC 62, [51] where the Court granted letters of administration ad litem to a plaintiff – whose only interest in the estate was a proposed family provision claim – to commence a proceeding against the defendant seeking to recover property for the estate.

Where a potential family provision claimant seeks to be appointed as administrator ad litem themselves, the Court will consider their application cautiously due to the potential for conflict of interest to arise given their lack of independence. Ultimately, however, whether a potential family provision claimant would be appointed as an administrator ad litem depends on the particular circumstances of each case.

In considering whether to appoint a person as an administrator ad litem the Court is mindful of the interests of third parties, as well as the beneficiaries of the estate. If litigation to recover funds is unsuccessful, there is the potential for costs orders to be made against the estate.

As Evaan is either unwilling or unsuitable to act as administrator, the Court held that it was not appropriate to grant letters of administration ad litem to the plaintiff as it is a relevant consideration as to whether the plaintiff would act impartially in the administration of the estate, or whether there may be a potential conflict between his duty and interest.

Administration guarantee

The plaintiff submits that although he is unable to provide an administration guarantee under s 57 of the Administration and Probate Act 1958 (Vic) and r 7.01 of the Supreme Court (Administration and Probate) Rules 2014 is not appropriate because the estate currently contains no assets. Additionally, if the claim to recover the $600,000 fails the estate would not suffer loss as any claim be funded by the plaintiff himself.

There was no information provided to the Court concerning the plaintiff’s capacity or willingness to indemnify the estate if the litigation were unsuccessful and an adverse costs order was made against it.

The court held that it was not appropriate to grant letters of administration ad litem to the plaintiff as if the plaintiff were appointed he would have control of any funds paid back into the estate making the risk or potential for maladministration much greater compared to the appointment of an independent administrator.

Where a Will is lost the executor has to consider whether the deceased intended to revoke the will by destroying it or to apply for a Grant of Probate of a copy of the will supported by an affidavit outlining the searches conducted and evidence the deceased intended the lost Will to be their last.

The authority to admit a copy of a will to probate derives from the common law, which predates the Succession Act 1981 (QLD). Courts in Australian jurisdictions have held that for a grant of probate to be made on a copy of the Will, the following matters must be established

(a) there is actually a Will or document purporting to embody the testamentary intentions of a deceased person;

(b) the document revoked all previous Wills;

(c) the presumption that when a Will is not produced it has been destroyed is overcome;

(d) there is evidence of the Will’s terms; and

(e) there is either evidence of due execution or that the deceased person intended the document to constitute his or her Will.

Frizzo & Anor v Frizzo & Ors [2011] QSC 107 at [161] quoting Cahill v Rhodes [2002] NSWSC 561 at [55].

The matter

In the Will of David Arthur Friend (deceased) [2023] QSC Sheldon Friend and Mirinda Voglino (the applicants ) applied for probate of a photocopy of the Will of the deceased dated 10 March 2020 limited until the original Will or more authenticated evidence is brought and left in the Registry.

The court expressed that the circumstances in which probate of the photocopy of the Will was sought are highly unusual: at [2]

The applicants had engaged Lockett McCullough Lawyers to prepare an application for probate for the deceased. Courtney Locket (CL) the solicitor with carriage of the matter, was the last person to have possession of the deceased’s original Will.

CL had the original Will in her car when travelling between her firm’s two offices. Her car was broken into and the original Will was stolen. While the car was recovered, the contents of the car including the original Will of the deceased were not.

The applicants held a photocopy of the Will which is “Exhibit A” to their joint affidavit.

The execution clause of the Will refers to 7 August 2018 while the Will cover refers to 10 March 2020. According to CL the Will was made on 10 March 2020.

The application was served on the Public Trustee and a copy of the application advertised in the Queensland Law Reporter.

The decision

In granting the application the Court held that (a), (b), (d) and (e) were established. Importantly as the original Will was held by CL following the deceased’s death and was lost subsequently overcoming the presumption that when a Will is not produced it has been destroyed does not apply in this case.

The NSW Supreme Court can make a family provision order under Ch 3, of the Succession Act, concerning the estate or notional estate of a deceased person, to provide from that estate for the maintenance, education or advancement in life of an eligible person.

An “eligible person” includes a person with whom the deceased was living in a de facto relationship or a close personal relationship, at the time of the deceased’s death: s 57(1)(b) and s 57(1)(f), the term.

Under s 21C of the Interpretation Act 1987 (NSW) (the Interpretation Act), a person is in a de facto relationship with another person if, relevantly, they have a relationship as a couple living together.

In Sun v Chapman [2021] NSWSC 955 the plaintiff, Ms Wei Sun, also known as Rose Sun (Rose), sought a family provision order from the estate of the late Robin Alan Richard Chapman, (the deceased) under s 59 of the Succession Act 2006 (NSW)

Background

Rose and the deceased met at a caravan park and after exchanging correspondence he invited her to come to Sydney to look after him.

The deceased’s son Michael Chapman (the Executor) submitted that the deceased told him that Rose had responded to a newspaper ad seeking someone to provide domestic services in exchange for free accommodation.

Between 1998 and the deceased’s death on 2 February 2019 Rose and the deceased lived together. Rose submitted that they had an intimate relationship for about four or five years from about 1999, and witnesses reported seeing them holding hands in public.

In 2003 the deceased declared in a statutory declaration that he and Rose were living together in a de facto relationship. However, there was evidence of considerable antagonism between Rose and the deceased during the last five years of the deceased’s life.

The deceased died on 2 February 2019, having made his last will on 22 October 1996 (the Will).

Probate of the Will was granted to the Executor on 29 November 2019.

The Will provided for the deceased’s principal property to be sold with one-third of the net proceeds of the sale to be distributed, to the Executor and, the remaining two-thirds, equally among the deceased’s other children. 18 beneficiaries are entitled to share in the deceased estate.

Unfortunately, the intended effect of the Will was unclear as it was handwritten on a printed form without the assistance of legal advice. However, the parties agreed on how the Will should be construed.

Rose claimed that she was either:

• a person with whom the deceased was living in a de facto relationship at the time of his death; or

• a person with whom the deceased was living in a close personal relationship at the time of his death.

Defacto couple

In determining whether two persons have a relationship as a couple, the court takes the following circumstances into account:

• the duration of the relationship;

• the nature and extent of their common residence;

• whether a sexual relationship exists;

• the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

• the ownership, use and acquisition of property;

• the degree of mutual commitment to a shared life;

• the care and support of children;

• the performance of household duties; and

• the reputation and public aspects of the relationship.

In determining whether there is a relationship as a couple there is an implication the parties have a general obligation to

‘marital intercourse, the dwelling under the same roof, society and protection, support, recognition in public and private, correspondence during separation.’

Tulk v Tulk [1907] VLR 64, p 65, per Cussens J

The decision

At first instance, the court found that at the date of the deceased’s death, it is more likely than not that the deceased and Rose were living in a close personal relationship.

However, in refusing Rose’s application for a family provision order the Court was not persuaded…

“that, at the date of Richard’s death, he and Rose were living together in a de facto relationship.”

Sun v Chapman [2021] NSWSC 95 at 121

Close personal relationship

Section 3 of the Succession Act, provides that a close personal relationship is a close personal relationship, other than a marriage or a de facto relationship, between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care.

After considering all the circumstances the court must be satisfied that there are factors warranting making the application for a family provision order.

However, where one member in a close personal relationship provides the other with domestic support and personal care for a fee or reward they are not eligible to make a family provision application.

The Court of Appeal

Rose appealed the decision in Sun v Chapman [2022] NSWCA 132;

‘Consortium vitae’ is accepted as the indicator of a marriage relationship, including the various elements which go to make up a marriage.

The Court of Appeal took the following matters into account in finding a de facto relationship existed:

• Rose lived rent-free in the deceased’s residence;

• any physical separations between the two was temporary;

• the couple had a romantic relationship including holidays that occurred as late as 2017;

• Rose consistently visited the hospital when the deceased was ill;

• and that arguments between the couple bore similarities to that of arguments between married couples.

Their relationship, at least in the later years, was evidently not a loving one. But that does not mean that they had ceased to live together as a couple.

Sun v Chapman [2022] NSWCA 132 at 98

The Court of Appeal held that the consortium vitae was never severed, and the de facto relationship continued until the deceased’s death. Further:

“…a de facto relationship (does not) cease to be such because it becomes fractious and the parties cease to love each other”

Sun v Chapman [2022] NSWCA 132 at 70

The Court of Appeal held that the primary judge erred by not finding that Rose and the deceased had been in a de facto relationship at the time of his death.

In a family provision claim the court has to weigh a testator’s freedom to leave their estate as they wish against their moral duty to

“his widow of a long marriage…to make provision for her to ensure that she is secure in her accommodation, has an adequate income and a fund for modest luxuries and contingencies” Steinmetz v Shannon [2019] NSWCA 114 at [98]-[109], [151]

Sun v Chapman [2022] NSWCA 132 at 172

In this case, the Court held that Rose’s financial need was a result of gifts to her son therefore the deceased’s moral duty did not go beyond providing Rose with sufficient funds to discharge her mortgage debt.

The Court assumed that the Department of Veterans Affairs would reinstate Rose’s war widow pension, if not Rose could bring a claim under s 59(3)(a) of the Act providing that where there has been a ‘…substantial detrimental change in the eligible person’s circumstances since a family provision order was last made in favour of the person’.

The Court awarded Rose $555,000 from the estate to discharge her mortgage, with the estate to pay her costs.

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

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

Estate of Rita Gamble (10 December 1973, unreported)

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

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

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

• there must be an absence for seven years.

• the missing person has not been heard of in that time,

• those who might be expected to have heard of the person have not done so, and

• that due inquiries have been made.

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

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

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

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

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

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

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

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

• NWM has been missing for more than 7 years;

• his disappearance is unexplained and his body has not been discovered or identified.

• There was a sudden cessation of communication which has now persisted for a long time. The persons who would have been likely to have heard from NWM, have not heard of him, in circumstances that it would be expected that he would have been in contact with each if he were still alive.

• All due inquiries have been made appropriate to the circumstances

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

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

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

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

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

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

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

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

Background

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

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

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

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

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

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

Luke’s appearance dissolved the basis:

• for the grant of letters of administration to Val, and to her entitlement to the whole of the deceased’s intestate estate and

• which Raymond, who had been living in No 36 with Val’s consent, could continue to reside in that property.

The proceedings

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

• a declaration that Luke as the administrator of the deceased’s estate holds No 36 on trust for Raymond and

• an order that No 36 be transferred to Raymond.

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

Luke filed his defence on 29 July 2021.

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

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

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

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

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

c. assisted to pay the bills and rates;

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

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

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

b. [No 36] belonged to Raymond.

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

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

The decision

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

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

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

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

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

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

Background

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

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

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

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

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

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

The matter

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

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

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

The decision

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

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

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

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

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

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

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

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

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

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

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

Nowell v Palmer (1993) 32 NSWLR 574 at 578

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

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

Dixon J in Birmingham v Renfrew at 683

Background

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

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

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

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

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

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

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

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

The proceedings

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

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

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

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

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

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

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

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

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

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

The Decision

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

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

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

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

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

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

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

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

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

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

• the strength of the cavetor’s underlying interest;

• whether the caveator’s interest would be destroyed or lose priority if the caveat was removed;

• the owner refinancing or exercisising another valid right in respect of the land;

• the prevention of a party with a superior registered interest applying to remove the caveat being prevented from exercising their legal rights; and

• as a result of the value of the land being less than the mortgage debt no money would be available to the caveator.

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

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

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

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

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

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

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

• applicant’s financial position,

• size and nature of the deceased’s estate,

• totality of the relationship between the applicant the deceased and

• relationship between the deceased and other persons who have legitimate claims: Singer v Berghouse (1994) 181 CLR 201 at 210.

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

Background

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

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

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

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

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

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

Karimalis v Kapodistrias [2022] TASFC 10 at 51

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

The decision

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

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

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

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

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

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

Background

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

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

The matter

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

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

• (a) whether the clinicians’ proposed use of New Zealand Blood Services blood products is safe; and

• (b) whether the parents’ proposed use of directed blood is a safe and viable alternative.

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

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

The decision

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

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

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

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

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

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

Probate litigation

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

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

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

• do not admit doubtful wills to prove lightly because of the cost of opposing them and,

• won’t commence ‘fruitless litigation’  believing that their costs will be paid by others.

Background

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

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

The deceased executed two wills:

• A last will dated 12 November 2018 (‘the 2018 Will’) appointed the plaintiff and the defendant as the executors of her estate. Left $100,000 to each of the defendant and Lynda, and the residuary estate to her children equally.

• Her penultimate will dated 9 October 2017 (‘the 2017 Will’) appoints the defendant as sole executor of her estate and divides her estate equally between the plaintiff, the defendant and Lynda.

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

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

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

The matter

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

• lacked testamentary capacity, or

• was under duress or was unduly influenced.

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

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

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

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

The decision

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

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

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

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

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

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

Costs

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