Revocation by Destruction – animo revocandi

Peter Demediuk died in February 2013 aged 93; his wife, Taisa pre-deceased him. Peter was survived by four adult children, Barbara, Peter, Nicholas and Sandra.

Peter made a number Wills during his lifetime: July 1956 in handwriting on proforma Will stationery; July 2010, November 2010, February 2012 (‘the February Will’), and June 2012 (‘the June Will’) consisting of three pages printed after being drafted using a word processing program on a home computer.

Following Peter’s death, the only version of the June Will available was a four-page document consisting of two original pages, numbered ‘one of three’ and ‘two of three’ respectively, and two further photocopied pages both numbered ‘three of three’. That third page contained the date and signature of the deceased and the two attesting witnesses.

Barbara made application for probate of the June Will. In her affidavit in support of that application, she submitted that Peter told her he had made a new Will and he wanted her to have it. Barbara did not open or read the Will before Peter’s death; when she noticed that the document comprised original pages 1 and 2, and two photocopies of page 3.

Nicholas in his affidavit opposing the grant of probate deposed that shortly after Peter’s death he found the original February Will in a filing cabinet in Peter’s home; the original page 3 of the June Will has not been found.

If the location of the original Will at the time of the death of the testator is unknown, it is assumed that the Will was last in the possession of the deceased and that he or she destroyed it with the intention of revoking it. This is called the presumption of destruction animo revocandi and the applicant needs to file affidavit evidence rebutting the presumption.

The affidavit evidence rebutting the presumption should depose to such things as the relationship between the deceased and those who benefit under the Will, any changes in the relationship, any statements made by the deceased and the extent to which the deceased’s conduct towards them remained consistent with them being beneficiaries.

The witnesses to the June Will were Peter’s carer Mafutaga Tomuli, and Kate Rogers a neighbour who agreed that in about June 2012, Peter visited Kate’s home with Mafutaga and the Will. Peter requested that Kate witness the document, by signing page 3, and initialling it at the foot of pages 1 and 2. Mafutaga signed the document while they were all seated at the same table; after signing and witnessing the Will was complete, Peter left Kate’s house taking the Will with him.

At common law, circumstances existing before or at the time of the execution of a missing Will may well bear on an assessment of the probabilities of the question whether, after executing that Will, it was intentionally revoked by the testator by its destruction. Importantly, what is to be taken into account are the circumstances ‘relevant to’ the intentions of the deceased between the time of the making of the Will and the time of the testator’s death.

Circumstances which pre-dated or were contemporaneous with the making of the Will may well reflect on, and be relevant to, the deceased’s testamentary intentions subsequent to the time of the making of the Will.

‘it might be permissible to take into account the fact that a Will was prepared and executed urgently before the testator underwent an important medical procedure’

As we have discussed in an earlier post, in determining whether the presumption of revocation has been rebutted in the case of a missing Will, the Courts have taken into account circumstances existing at and before the time of the execution of the missing Will; there are reasons why such an inquiry would be relevant to the question whether, after the Will was executed, it was subsequently destroyed or disposed of by the testator with the intention of revoking it.

The Court accepted that it was Peter’s practice to revoke earlier Wills by making a new Will. In taking into account all relevant circumstances, including circumstances that existed before and at the time of the making of the Will that is missing.

Application to Pass over an Executor

John Thornton died in April 2017, his Will made in March 2002 (“the Will”), appointed his son John as sole executor of his estate (“the Estate”). In the event that John predeceased or did not survive him for 28 days, his son Andrew was appointed substitute executor. The estate was given to both his children, equally. The estate consisted of at least six parcels of real estate. John and Andrew were specified beneficiaries of two discretionary trusts with John as the appointor. (The Appointor is the person or persons with the power to remove and appoint the Trustee.)

In 2018 Andrew made an application (“the probate action”) that John be passed over as the executor of the Estate and for him to be appointed administrator with will annexed. Andrew submitted that John purported to renounce his role as executor in December 2017. Andrew believes that John has failed to properly administer the Estate, wasted the Estate, and has engaged in misconduct in relation to the Estate prior to, and since, renunciation; that on 27 March 2018, John sent him the following text message

“Call me if you want executer of dad’s will”

Andrew submitted that John had a serious drug problem, often behaved erratically, threatened him, assaulted his mother, has failed to comply with, and has spent time in custody for breach of bail. Andrew believed that John had appropriated money belonging to the Estate; had obtained rent from properties forming part of the Estate and failed to account for this money.

Additionally John failed to insure or properly manage any of the properties, failed to pay rates or make arrangements with rating authorities, failed to liaise with mortgagees with respect to the properties,, due to the default position across the six properties with banks, there is a real risk that of foreclosure which needs to be addressed urgently.

The Court accepted that John’s conduct led to waste, loss, and unnecessarily burdened the Estate by failing to: collect the assets of the estate; determine whether the assets fell into the trusts or the estate; liaise with the creditors of the estate; satisfy the creditors of the estate; manage the estate properties; maintain the estate properties; pay rates or apply to have statutory debts put into abeyance; insure estate properties; and make efforts to call in, administer, or distribute the estate Additionally as he lived in one of the Estate properties this negated the ability for the Estate to benefit from rental income.

In March 2018 John’s former solicitors Genders and Partners, wrote to the Registrar of Probates outlining the difficulties encountered in the four months they had acted for John from May to September 2017; the reason that they ceased acting for John was that they lost confidence in their ability to instruct him in a timely manner in the administration of the Estate, that no funds were paid into trust and the solicitor was subsequently informed by John after ceasing to act for him that he had been in and out of prison during the time they were acting for him. Subsequently the solicitor was told that John had criminal charges pending and that he may serve additional time in prison.

The Court applied the two general principles governing passing over a person named as executor by a testator and entitled to a grant of probate; that the due and proper administration of the Estate has been put in jeopardy, or prevented, by the acts or omissions of the person named in his capacity as executor.

The Court accepted the evidence that John’s conduct led to waste, loss, and unnecessary burden to the Estate providing for the need to pass over John as he has wholly failed to administer the Estate and has caused loss to it. If he is not passed over, both the trust and estate properties are in danger of further loss; Pursuant to rule 33 of the Probate Rules 2015 (SA), if John is passed over, the Court is of the view that as John is passed over Andrew should be granted letters of administration with the Will annexed.

Reg Grundy & Paternity DNA

Reg Grundy died in Bermuda (his place of domicile) on 6 May 2016, aged 93 years, leaving a will dated 21 January 2011 and sufficient property in NSW to admit the Will to probate in that jurisdiction. In 2015, Reg’s wealth was estimated as being $809 million, a figure largely stemming from the $320 million sale of Grundy’s company to Pearson Television in 1995.

An earlier post discussed the April 2017 claim for family provision relief in respect of the estate, or notional estate, by Reg’s child from his first marriage; who changed her name by deed poll in 2000, from Robyn Grundy to her present name, Viola La Valette.

Reg and Viola were estranged for some time before his death; a lifetime annuity of $US250000 was provided to Viola (who is disputing the adequacy of that amount). Joy Chambers-Grundy, Reg’s widow, executor and, having survived him by 30 days, takes “the remainder” (the residue) of his estate.

Joy’s request for a suppression order over parts of Reg’s Will was dismissed by the Supreme Court in February last year. The Court believed that an “impediment” to making such an order was Joy’s

“active deployment of the media, in these proceedings, as part of her adversarial contest”

The Court was concerned that Joy’s courting of media attention renders her application to have her affairs shielded from public scrutiny that ordinarily attends proceeding in the court illustrating that an example of this behaviour was an “exclusive” interview Joy gave a Sydney Newspaper in October 2017 in which she was critical of Viola

“deliberately cultivated public fascination with the celebrity status of the deceased and herself, and with family drama attending [Viola’s] … application for family provision relief”

“Her courting of media attention renders more difficult her application to have her affairs shielded from public scrutiny that ordinarily attends proceedings in the court.”

Earlier this year a Melbourne man Simon Russell came forward claiming to be Reg’s son; seeking family provision from the estate. DNA samples from both Reg and Simon held at a lab were tested revealing the men are not related.

Simon sought and the Court granted leave to discontinue the proceedings.In a statement on Friday, a spokeswoman for Joy said:

“Mrs Joy Chambers-Grundy was always positive of the outcome, nevertheless wishes Mr Russell well in his search to find his real father.”

Family Provision is not a “Suplementary System of Social Welfare”

Robert Kohari brought a family provision claim against Paul Kohari’s estate (valued at 1,040,000) alleging he was Paul’s son despite Paul’s adamance that Robert was the product of his wife Julia Clark’s extra-marital affair. Similarly the executors of Paul’s estate disputed Robert’s claim and DNA testing was proposed. Against the wishes of Robert and Julia the Court ordered that DNA testing take place establishing that Robert was in fact Paul’s son.

At the time he brought the claim Robert was 38 years old, had no qualifications, had been unemployed for 17 years, was obese, reliant on social security, and supported a wife and four children in rented premises. He had no assets and debts of $25,000.

Paul had no contact with Robert since separating from his wife Julia when Robert was eighteen months old. Paul separated from Julia because he believed she had been unfaithful and that Robert was not his son. There was an older child of this marriage Joseph and a step child. Paul continued to have contact with Joseph who subsequently came to live with him.

Robert made two attempts to contact Paul and establish a relationship but Paul refused to respond to these written communications. Paul told his relatives that Robert was not his son; preventing Robert from having a close relationship with his grandparents or receiving a legacy from his grandmother’s estate – estimated to be around $90,000.

Paul started a relationship with Julia Santa some years after separating from Julia Clark; living in a de facto relationship until his death. Paul was extremely ill in the last nine years of his life and his de facto partner was his primary care giver.

Paul’s de facto partner Julia was the only named beneficiary in his will; she was 69, receiving a pension of $405 per week, had $12,500 in cash and anticipated she would receive $300 per week from the renting of her investment property which was worth $250,000. She had diabetes and other health issues. Julia wished to purchase a home in the Central Coast which was estimated to cost $630,000. The Court considered that Julia had a very strong competing claim on estate and that the relationship that she had with Paul “should be treated as a marriage”.

Robert’s elder brother Joseph was also excluded from the will. Ironically Paul had made a Family provision claim against his mother’s estate which left everything to the grandchildren for the following reason

“We want to give the grandchildren a start in life. Our children have had enough from us. They have their own houses. They are okay. They can look after themselves.”

The Court was highly critical of Paul believing that his selfishness toward his children compelled it to disregard his testamentary wishes and implement a distribution in line with community expectations. When considering the appropriate level of provision, although Paul’s rejection was condemned, the Court did not consider that it was reasonable for Robert to expect to receive a home but considered that it would be reasonable to give him a deposit to assist him to purchase a home.

Additionally the Court took Robert’s actions throughout his lifetime into account, declining to use the claim as a ‘supplementary system of social welfare’ as the Court was of the belief that Robert had failed to take responsibility for his own lifestyle subsequently awarding him $100,000 largely calculated on the basis of the wrongful exclusion from his grandparents’ wills.

Burial Rights & Indigenous Intestacy

Patrick Fisher died intestate in February 2018 aged 32; his father was Ross (Rossi), a Wakka Wakka man who came to Redfern from Cherbourg in about 1967. Patrick’s mother, Candice Williams, also grew up in Cherbourg although her family was from Woorabinda 500 kilometres from Cherbourg.

Patrick was raised in the Redfern/Waterloo area of Sydney, attended Redfern Public School and Cleveland Street High school; following his parents separation he was supported by members of the Redfern Aboriginal Community. When Patrick was about 14 Rossi died; according to his wishes, Rossi was buried in Cherbourg.

Patrick met Carly White, an Aboriginal woman from Sydney when they were both aged 16 and began a relationship shortly after. In February 2003, they moved into Carly’s mothers home in Waterloo. They had two children Ross and Tyrell.

Patrick suffered with addiction, spent periods of time in jail, and was involved with many women apart from Carly. Patrick fathered a child with another woman in 2010 and moved to Western Australia with another woman for about 18 months around 2011.

Candice as senior next of kin had the coroner release Patrick’s body to be buried on country at Cherbourg in Queensland. Carly sought urgent orders that she be appointed the administrator of Patrick’s estate and that the burial take place at the La Perouse/Botany Cemetery, Sydney. Candice opposed the application stating that she wished for Patrick to be buried on country in Cherbourg.

The Court made interim orders that the body be released to Carly for burial at La Perouse/Botany Cemetery. The subsequent proceedings concerned the question of what final orders should be made for the burial; as Patrick had already been buried Carly sought a declaration that she is entitled to bury the body in Sydney.

The Court was of the opinion that there is no inflexible rule that priority to apply for administration necessarily determines the question of the release of the remains and that the relevance of a de facto relationship was minimised to some extent by Part 4.4 of the Succession Act 2006 (dealing with indigenous intestacy); the fact that the deceased had no assets meant it was unlikely that an application for a grant of administration would be made.

The Court sought expert evidence with regard to the importance of the desire by many indigenous people to be buried ‘on country’ (that is on ancestral lands). However there are occasions where practical considerations have made this ‘ideal’ unattainable; further, there are particular cultural and spiritual practices raised in this case, including the importance of visiting and tending to the grave.

The Court must ultimately make an evaluative judgement, that includes the interests of the deceased’s children who should be accorded greater weight than the interests of the extended family due to the nature and closeness of the respective relationships (children as against extended family). After taking into account all the relevant factors, including any cultural and spiritual matters, and the specific factual circumstances of the case the Court concluded that Carly and her children were

‘the persons best able to deal with the Deceased’s remains consistent with his background..’

some of his wishes and the importance of the urban Aboriginal culture he was so deeply absorbed by.

Benjamin Orders & the Missing Daughter

Ian Roderick Douglas died in February 2013 aged 72. Ian was unmarried, with an estate valued at $ 1,250,000. In a Will (“the Will”) made in May 2010, he appointed David Cummins and Barry Miller as his executors (“the executors”) probate of the Will was granted to them in May 2013.

Following payment of debts and other pecuniary legacies the Will distributed one half of the residue to his daughter Darcel Wu; the other half of the residue was left to a daughter he had yet to find, whose name and whereabouts were unknown to Ian at the time he made the Will but who he believed lived in Victoria (“Victorian daughter’).

“If it can be established that the Victorian daughter died before me leaving children then her children shall take the share which their mother would otherwise have taken. If my Victorian daughter cannot be found or is proved not to have survived me and to have died without children then the share she would have taken shall pass to Darcel.

Darcel was born in 1964, and until she was 17 believed that her mother’s husband was her father, she met Ian about 1990, following which they met infrequently. In 2012 Ian told Darcel that he had been made aware that he had fathered a daughter who lived in Victoria who he wanted Darcel to meet once his Victorian Daughter had been located.

Neither the executors nor the persons who were given pecuniary legacies by the will had any knowledge of Ian having another daughter. Ian told Darcel that he did not know the name of his daughter or anything about her, only that she might exist.

Establishing the identity or whereabouts of the Victorian Daughter to whom part of Ian’s estate should be distributed and the inability, despite adducing all available evidence, of ruling out the possibility that she exists or had descendants who might still be alive adds considerable difficulty to the executors’ duties. Unless after considering the available evidence the Court orders that the executors may distribute the estate, administration of the estate cannot be finalised.

The executors were unable to identify or locate the “Victorian daughter” and applied to the Court seeking a “Benjamin order” allowing them to distribute the whole of the estate to Darcel without prejudice against the rights of the Victorian daughter (or her children) to claims to a half share of the residuary estate.

A “Benjamin order” is named after Re: Benjamin; Neville v Benjamin 1902] 1 Ch 723. Where a beneficiary was presumed dead having not been heard of for seven years. The Will maker died less than a year after the beneficiary was last heard of. A “Benjamin order” relieves the executor from liability if the estate or part of it was distributed to the wrong person.

An example of orders usually sought are:

1. a declaration that the beneficiary predeceased the deceased;

2. in the alternative, an order that the plaintiff be at liberty to distribute the estate;

3. in the alternative, the plaintiff seek the opinion and advice and direction of the Court in respect of the facts set out in the plaintiff’s affidavit; and

4. an order that the plaintiff’s costs be paid out of the estate on an indemnity basis.

The plaintiff is required to carry out all necessary and proper investigations to determine the persons who are or may be entitled on intestacy to the estate.

The Court was satisfied that all reasonable attempts had been made by the executors to locate the beneficiary, and ordered that they were free to distribute the estate to Darcel without personal risk. The Court further held that no conditions (such as a grant of security by Darcel ) should be placed on the order.

Mabo Day

Yesterday was 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 people enabled 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 for the purpose of claiming 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 and that the Mer people had owned their land prior to the establishment of the colony of Queensland


iPhone Video Accepted as Informal Will


In June 2011 Leslie Quinn made a video recording on his iPhone he called his Will. It recorded his wishes in relation to the disposition of his property after his death as follows:

“It’s Sunday, 26th of June, 2011.

This is the, my last will, I am making by video.

In the event of my death, I would like all my goods, my interests in property…. to go to my wife, Leanne Quinn.

Anything, any, any money, money that I have, cash, I’d like that to go to my wife Leanne, Leanne Quinn.

All of, any goods that I have or any money owing to me for any reason, I’d like, I’d like to leave that to my wife, Leanne Quinn. Also my superannuation, currently in Tasplan, I leave that to my wife. 

So in essence, I am leaving everything to my wife, Leanne Quinn. 

As far as my, what I request for my funeral, I would like a direct cremation… I would like my ashes to be disposed of by the funeral service. I do not want a memorial or funeral. I do not want, I especially do not want anybody to own my ashes after my death.”

Leslie took his own life aged 53 in June 2015; after suffering from depression for several years leading up to his death and although he sought medical help had ceased taking medication. Leanne was married to Leslie for twenty years and was the mother of two of his three sons; they had been separated for two years before his death but they had not divorced.

Leslie was survived by three sons: Jacob, Samuel and Callan aged 23, 19 and 18 at the time of his death.

Leanne sought a declaration that the video recording was the Will of Leslie and a Grant of Letters of Administration with a copy of the transcript of the recording attached.

Section 10 of the Succession Act 1981 (Qld) (the Act) sets out the formal requirements that a Will be in writing and signed in the presence of two witnesses. The video recording does not meet those requirements; Leanne submitted that the video recording as contained in a copy on the CD may be admitted to probate as an ‘informal Will’ if the court finds that it meets the requirements of s 18 of the Act.

If the Court determines that the video is an informal Will Leanne inherits the whole of Leslie’s estate. Alternatively, if the Court is not satisfied that the video meets the requirements, Leslie died intestate and the estate would be distributed to Leanne and Leslie’s three children.

Although the execution requirements of s 10 of the Act have not been fulfilled, the Court was satisfied the recording on the iPhone was a document within the meaning of the Act.

The Court applied the test for testamentary capacity as set out in Banks v Goodfellow and was satisfied that Leslie at the time of creating the video recording, understood the nature of the act of creating a Will and its effects and understood the extent of the property of which he was disposing. In the circumstances of this case the Court was satisfied that Leslie was mentally competent, knew and approved the contents of the will.

Although the video recording was made before Leslie and Leanne separated, and extensive searches were made, no other documents have been found. The Court found no evidence that Leslie intended to revoke or alter the terms of his Will in the period between the date of the recording and his death.

It is not uncommon that informal Wills are admitted to probate, but these can cause delay and increased legal costs for the estate.

Additional costs can be avoided by preparing a Will that clearly demonstrates the Will maker’s intention. This doesn’t necessarily require instructing a solicitor to prepare a document however the language of the document must be clear. Importantly it is better to have a document that clearly outlines your intentions to provide some comfort to your loved ones at a difficult time in their lives.





Aretha Franklin & the 3 Informal Wills

Following up a previous post regarding Aretha Franklin who died from advanced pancreatic cancer in August last year.  Described as The Queen of Soul, Aretha won 18 Grammy Awards and had more than 100 singles on the Billboard charts;  at the time of her death, it was reported that Aretha had not left a will or established a trust.

Aretha’s estate could be worth millions of dollars; as it contains not just her music catalogue but also clothing, memorabilia and rights to her likeness. The estate is currently in negotiations for a TV series and movie about Aretha’s life.

The Internal Revenue Service is currently auditing Aretha’s tax returns after claiming more than $6 million in taxes in December.

Detroit renamed of a city-owned outdoor music amphitheatre after Aretha. At the unveiling the Mayor claimed

“This daughter of Detroit has a permanent memorial,”

Under Michigan law, the assets of an unmarried person who dies without a will are divided equally among their children. Aretha had been married and divorced twice. Following her death, her four sons filed a document listing themselves as interested parties in her estate stating that Aretha

“…died intestate and after exercising reasonable diligence, I am unaware of any unrevoked testamentary instrument relating to property located in this state as defined.”

Aretha’s niece Sabrina Owens asked the court to appoint her, (and Aretha’s Sons agreed, that Sabrina should act) as personal representative of the estate.

Early this month, Sabrina discovered a key to a locked cabinet at Aretha’s home. The cabinet contained 2 handwritten wills from 2010; one states that a previous will from decades earlier is “no good.” , the other is 11 pages long and is signed by a notary.

Sabrina discovered a further will, dated March 2014, located in a notebook found under living room cushions; although difficult to read the document sets aside various assets for family members, including her sons and grandchildren, in this document, Aretha states she wants her son Kecalf Franklin, to serve as personal representative of the estate.

After filing the documents in Court David Bennett, who was Aretha’s lawyer for more than 40 years, sought clarification that the Wills were legal under Michigan law. The Court has scheduled a hearing for June 12. A statement from the estate said two sons object to the wills. Until then Sabrina will continue to serve as personal representative of the estate.

In a Separate dispute, Kecalf is objecting to Sabrina’s plan to sell a piece of land for $325,000.

Michigan law gives great weight to the wishes if they are a clear and convincing expression of the deceased’s wishes. Last year the State Supreme Court allowed a man’s final written words stored on a phone as a will.

However, the newly discovered wills appear disorganized and look more like rough drafts; words are crossed out and the documents contain notes in the margins and arrows.

It is not uncommon for people to die intestate, as I have posted Prince, Billie Holliday, and Kurt Cobain died intestate, however, given Aretha’s legacy, business acumen, and long illness it is surprising that she didn’t make better arrangements for the control of her legacy.






Invalid Gift of Family Crypt


Francesco Pacella died on 10 May 2015 having executed his Will (“the Will”) the day before. In August 2015, probate of the Will was granted to his partner, Patricia Fleming, and son, Emidio Pacella; the principal asset of the estate being Francesco’s property in Stephensons Road, Mount Waverley(“the Property”).

Patricia was Francesco’s domestic partner since 1970; is now aged 83 years, has limited means and ability to earn income.

The Will gives Patricia a right of residence in the property until her death or permanent vacation of the property, or if, by mutual agreement, the property is sold. The estate is then further subject to a number of specific bequests, which are only to be paid upon the sale of Stephensons Road, including the sum of $200,000.00

 ‘to my nephew … for the sole purpose of enabling him to construct a family crypt in my name in a cemetery in Italy chosen by my Executors and if my Executors fail to choose a cemetery within 90 days of the sale of such property then such cemetery is to be chosen by my son with such crypt to house 20 coffins”

In most Jurisdictions, applications regarding further provision must be made within 6 months of a grant of probate or letters of administration.  In June 2017, Patricia sought further provision, (out of time by 16 months) from the estate, pursuant to the Administration and Probate Act 1958; the Victorian Supreme Court agreed that the extension application and the provision claim would be heard at the same time. In October 2017, Emidio disputed Patricia’s claim and made a competing claim.

In October 2018, the parties agreed to the sale of the property and for $350,000 of the proceeds of sale to be paid to Emidio in full and final satisfaction of his entitlements pursuant to the Will, the terms of settlement reflects Francesco’s obligation and that the Court must be satisfied, amongst other matters, that the provision is sufficient for Patricia’s proper maintenance and support

The Court was asked to determine the validity of the gift to construct a crypt; where ‘the proposed monument or tomb is to form the fabric of a church, the disposition may be valid as a charitable trust’. However, ‘a trust that has no beneficiaries or does not have a charitable intent is void’ except where

  1. there are no interested beneficiaries to enforce the trust, the residuary beneficiaries or next of kin may be able to pursue the property on a resulting trust.
  2. the gift offends the rule against perpetuities where a gift is void if, by terms of the gift or of the trust to which it is given, it is required to be retained by the trustees (as a fund) for a period which might exceed the perpetuity period
  3. non-charitable purpose trusts fail on account of an identified purpose that is wasteful or otherwise against public policy’.
  4. ‘issues of impracticability may arise, analogous to those encountered in the context of charitable trusts’.

The Court was concerned that if the funds were transferred to the nephew for the purpose of construction of the crypt. Once the crypt is built, the funds are disposed of and the trust as intended by Francisco is complete.

Emidio queried ‘whether the trust should be upheld as falling into the anomalous category of non-charitable purpose trusts’. The Court was concerned that ‘family’ was not defined and this uncertainty raised issues as to whether it included the immediate family, extended family, predeceased family members, or future family members; similarly when applying the armchair principle it appears, ‘on the plain and ordinary language of the clause; Francesco specifically identified his nephew as being responsible for constructing the crypt’, something the Court couldn’t ensure would happen. In those circumstances, it appears that it creates on an imperfect obligation. The nephew can seek to give it effect if he chooses but is not otherwise bound.

The Court concluded that the trust was invalid. Accordingly, upon a resulting trust, the amount of $200,000 fell to the residuary estate of the deceased.