heirs & successes

Letters of administration durante absentia (during the absence from the jurisdiction of an executor or other person entitled to a grant) may be made under s 76 of the Probate and Administration Act 1898 (NSW). An absent executor gives a power of attorney to an agent, who will receive the grant of administration with the will annexed, as attorney of the executor: In the Goods of Barker [1891] P 251.)

If a deceased person’s administrator or executor to whom probate has been granted resides outside the jurisdiction of the estate, at the expiry of 12 months from the date of the deceased person’s death, the Court may appoint an administrator durante absentia (during the absence from the jurisdiction of an executor or other person entitled to a grant) under s 24(1) of the Administration and Probate Act 1958 which provides that an eligible applicant for letters of administration durante absentia must be either a creditor; or a person interested in the estate.

Background

Michael Galanis (the deceased) was born on 3 July 1927. He migrated to Australia in 1955 and died intestate in 2019, aged 92 years. The deceased had never been married and had no children. As the deceased’s parents predeceased him his brothers and sisters are entitled to the whole of the intestate estate under s 129 of the Succession Act 2006.

The deceased had three siblings, his brothers Antonios and Konstantinos predeceased him and his sister Eirini, died in January 2021. Only Antonios had children, Konstantinos, and Kyriakos.

In November 2022 the Court granted Letters of Administration durante absentia to James Jordan, (the plaintiff) a solicitor, as Attorney of and for the use and benefit of the deceased’s nephew Konstantinos limited until Konstantinos returns to the jurisdiction and obtains a grant.

In support of his application for the grant, the plaintiff filed an affidavit deposing that the persons entitled to the deceased’s estate were

• one quarter each to the deceased’s nephews Kyriakos and Konstantinos;

• one half to the estate of Eirini under s 129 of the Act.

The deceased’s estate has an estimated value of about $5.63 million with the result that the one-quarter share held is approximately $1.4 million.

However, Kyriakos disappeared in Crete in 1985 and has not been seen, or heard of since.

In response to a requisition of a Probate Registrar, concerning the requirement under the rules of intestacy for searches to determine the identity of those entitled to the deceased’s estate the plaintiff filed an affidavit that included an undertaking that he would not distribute Kyriakos one-quarter share of the deceased’s estate.

In October 2008, the municipal court in Chania, Crete, determined that Kyriakos should be declared

“dead in absentia for the reason that from 1985 till this day he is absent without any news so that his death is very probable”.

The matter

The plaintiff sought an order that he be discharged from his undertaking not to distribute the Kyriakos’ one-quarter share of the deceased’s estate and entitlement to distribute the estate to the exclusion of Kyriakos Galanakis.

Additionally, if Kyriakos is established to be alive, then Konstantinos shall repay to the administrator one-half of the amount distributed to him from the estate so that there will be an equal division between the brothers.

“Any undertaking given to the court is capable of being discharged by the court whenever it appears to the court that circumstances have arisen which make that course a proper one in the interests of justice.”

Russell v Russell [1956] P 283 at 297

The Plaintiff submitted that no other person would be affected if he were released from the undertaking; there is no public interest in its maintenance; and releasing the Plaintiff from it would be of practical utility since it would enable him to complete the administration of the deceased’s estate.

As the search for Kyriakos has now ended there is no longer any need to require the undertaking to remain in existence.

In the circumstances, the release of the plaintiff as administrator, from the given undertaking is both convenient and just. Importantly, without being released therefrom, contravention would involve the Plaintiff being in contempt of court if he distributed the estate.

The decision

The Court ordered that the Plaintiff,

• be released from his undertaking to not distribute Kyriakos share of the deceased’s estate

• may distribute the estate as if Kyriakos had predeceased the deceased without issue, and that the one-quarter share to which he would have been entitled may be distributed to Konstantinos.

Additionally, if Kyriakos, or any issue, is established to be alive, then Konstantinos shall repay half of the total amount distributed to him from the estate so there will be an equal division between those brothers and the Plaintiff’s costs, on an indemnity basis, be paid out of the estate of the deceased

Section 10A of the Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act), provides that the following factors must be met for two people to be in an interdependency relationship:

• they have a close personal relationship; and

• they live together; and

• one or each of them provides the other with financial support; and

• one or each of them provides the other with domestic support and personal care.

Regulation 1.04AAAA of the Superannuation Industry (Supervision) Regulations 1994 (Cth) (SIS Regulations) specify various factors to be taken into account in determining whether there is an interdependency relationship. These factors are very similar to the factors for a de facto relationship, with the addition of whether the relationship was intended to be permanent or whether the relationship was one of mere convenience. These factors are:

• the duration of the relationship; and

• whether or not a sexual relationship exists; and

• the ownership, use and acquisition of property; and

• the degree of mutual commitment to a shared life; and

• the care and support of children; and

• the reputation and public aspects of the relationship; and

• the degree of emotional support; and

• the extent to which the relationship is one of mere convenience; and

• any evidence suggesting that the parties intend the relationship to be permanent.

However, not all of these factors have to exist for an interdependency relationship to be found to exist.

The Australian Financial Complaints Authority (AFCA) is an impartial, independent body that assists consumers and small businesses to resolve complaints with superannuation trustees and other financial firms. If a complaint cannot be resolved, AFCA will decide an appropriate outcome.

Siblings

In Case 810873 (concerning N M Superannuation Pty Ltd), AFCA was satisfied that there was an interdependent relationship between the deceased and his sister.

The deceased arranged for his wages to be deposited into the sister’s account, she managed his finances including paying the rent and bills. They lived together for five months preceding his death. She also did the shopping.

The sister drove the deceased to his counsellor and assisted with his health and well-being. When the deceased was in prison the sister supported him and was the point of contact for his parole officer.

AFCA held that they supported each other mentally, emotionally and financially and the sister had a reasonable expectation that her interdependency relationship with the deceased would have continued indefinitely had he not died, and she would have continued to enjoy the deceased’s contributions to household expenses.

The deceased had two children, a son who was 16 and a daughter who was 13 when he died, Although child support arrangements were in place, the member only made a small number of child support payments which stopped due to his addiction and time spent in jail.

AFCA determined that the children were entitled to financial support from the deceased until they turned 18. The sister and the daughter received 35 per cent and the son 30 per cent of the member’s death benefit.

Friends & Housemates

In Case 802546 (concerning Retail Employees Superannuation Pty Ltd) the deceased and the complainant were friends and housemates who had met at school in 2013. The deceased moved in to live with the complainant in November 2016 and remained living there until he died in June 2017, at age 19.

AFCA accepted that the evidence demonstrated they had a special bond and were a source of support to one another. The member paid the complainant’s rent. The complainant drove the member to doctor’s appointments.

However, given the ages of the complainant and deceased and the relatively short duration of the living arrangement, AFCA was not convinced there was a

“close personal relationship of the relevant kind, nor an intention for the relationship to be permanent nor that there was a mutual commitment to a shared life in the relevant legislative sense.”

Case 802546 (concerning Retail Employees Superannuation Pty Ltd) at 4

AFCA noted that as there wasn’t an intention for the relationship to be permanent nor a mutual commitment to a shared life an interdependency relationship was not legislated to include flatmates or friends.

Kenneth Talbot (“the deceased”) left a Will dated 29 November 2002 (“the 2002 Will”) prepared by a solicitor, William Boyd (Boyd). The deceased, either individually, or through corporate and trust entities he controlled, had hundreds of millions of dollars worth of assets.

Background

The deceased’s circumstances had “materially changed” between the execution of the 2002 Will and mid-2008, with the sale of his business Macarthur Coal for $860million.

In September 2006, Boyd sent an email to the deceased’s assistant indicating that a review of his 2002 will was long overdue. Boyd sent similar emails in September 2005 and November 2007 with the deceased retaining Boyd to prepare a new will in November 2007.

Boyd had drafted instructions reflecting the deceased’s wishes and briefed counsel to provide advice concerning succession planning in October 2008. The deceased’s wife Amanda’s position as a beneficiary under the proposed new will was more beneficial to her than her position under the 2002 will.

In December 2008, although the deceased had indicated that he wanted to complete the new will Boyd informed him that it required more time due to the complexities of the matter. Counsel advised that an interim will be drafted in the meantime. On 1 June 2009, counsel sent Boyd an email attaching a draft of the new will.

On 19 June 2010, a plane crashed in a remote region of the Republic of Congo the deceased was listed on the passenger log; there were no survivors. The deceased was survived by his spouse (Amanda) and their two infant children (Alexandra and Claudia) and by two adult children from a former marriage (Liam and Courtney). Although Boyd and the deceased had continued to discuss updating the will neither a new will nor an interim will was executed before the deceased’s unexpected death.

At the time of his death, the deceased was resident in Queensland. He owned real property and other assets in Queensland. His overseas assets included real estate in Paris, Shanghai and Lake Como in Italy.

Removal of executor

The 2002 Will appointed Paul Bret, a Texas-based businessman as executor who had realised almost $300 million worth of estate assets, between commencing the executorship and when the executor agreed to retire, (in exchange for the payment of $10 million) in June 2012. The retirement had been actively sought by all the beneficiaries who were dissatisfied with his conduct. On 27 June 2012, Boyd was appointed administrator of the deceased’s estate.

Between 2010 and 2012, Amanda retained Melbourne-based law firm Arnold Bloch Leibler (ABL) to help manage the deceased’s estate.

The matter

Amanda became dissatisfied with Boyd’s conduct as administrator in about 2015 and commenced actions in negligence against Boyd concerning the deceased’s will and the administration of his estate, and ABL for failure to advise of possible claims against Boyd over the preparation of the 2002 will

Additionally, Amanda claimed that had Boyd created a new will in 2007 she would be in a better position financially. Submitting that if ABL had advised her to oppose Boyd as administrator and trustee in 2012 she wouldn’t

“have been exposed to the expenses and losses associated with the incompetence of Mr Boyd’s administration of the estate,”

The decision

In an extensive judgment, the Supreme Court of Queensland dismissed the claim finding that following execution of the 2002 Will, Boyd did not breach any duty and did not act contrary to the standards of a reasonably competent solicitor in failing to prepare a further Will. Similarly, ABL did not breach its duty of care in the provision of advice pursuant to its retainer with Amanda.

It is worth noting that the Court held that the deceased was

“An intensely private man in life, his express wish in death was that his Will remain confidential and that his estate be administered with the upmost privacy…This proceeding, which concerns his last testamentary wishes and the administration of his estate, leaves that express wish in tatters.”

Talbot & Ors v Boyd Legal (A Firm) & Ors [2023] QSC 8 at 2

 

Limited grants of administration are designed to accommodate specific circumstances arising in an estate where it is not possible to obtain a full grant of administration or probate. Unlike a full grant of which vests general powers in the executor or administrator to act on behalf of the deceased’s estate until the administration of the estate is complete, a limited grant typically vests a specific power or action and a time frame within which the grant is operable to accommodate the special needs of a particular estate.

In New South Wales s73 of the Probate and Administration Act 1898 provides that a grant of letters of administration pendente lite may be sought where litigation prevents the estate from being administered. The general jurisdiction of the court to make limited grants of administration should only occur in circumstances that require the interference of the Court to protect the assets of the estate

“it must be shown that the estate was in jeopardy—and that it was necessary to make the order for its protection.”

Greenway v McKay (1911) 12 CLR 310 at 315.

However, it is not necessary that the jeopardy arises from some misconduct on the part of a person dealing with or claiming to preserve the assets of the deceased estate; Gooley v Gooley [2020] NSWSC 798 at [125].

“The object of an appointment of administrator pendente lite is to ensure that the deceased estate is managed and preserved for the benefit of those persons who may ultimately be found in the suit to be entitled to it’

Gooley v Gooley [2020] NSWSC 798 at 126

A grant of administration pendente lite allows an administrator to recover, call in and preserve the assets of the estate for the duration of the proceeding until a judgment has been delivered by the Court. The administrator is required to treat potential beneficiaries with impartiality.

A grant of letters of administration pendente lite enables the Court to fashion the powers of the administrator to ensure that the deceased estate is managed and preserved for those beneficiaries the Court ultimately finds to be entitled to it. As a result, beneficiaries have no direct entitlement to the estate during the administration pendente lite.

The matter

Ivan Ritossa (the Applicant) and Anthony Ritossa (the First Respondent) are engaged in probate proceedings concerning the three competing wills of their late mother, Maria Ritossa (the Deceased).

Two adjoining parcels of land in Maroubra (the property) are the estate’s principal asset. The property has remained vacant and has been informally managed by the Applicant since the Deceased’s death on 30 April 2019.

The parties disagree as to whether the property should be sold or leased and whether a caretaker should have been appointed at a cost to the estate.

The First Respondent was granted orders under s 73 of the Probate and Administration Act 1898 (NSW) (the Act) and in the Court’s inherent jurisdiction for the appointment of an interim administrator pending the determination of the probate proceedings on 10 August 2022.

Tamara Goodwin (the Second Respondent), was appointed administrator with power until the determination of the probate proceedings, including any appeal;

• to lease or

• sell the property – with the prior written consent of the Appellant and the First Respondent or the leave of the Court.

The appeal

The applicant sought leave to appeal with the principal issue being whether the discretion to appoint an interim administrator could only be exercised protectively where it was established that the estate was “in jeopardy”.

In refusing leave to appeal, the Court of appeal held that the inability of the parties to agree on an interim arrangement and the management of the property meant it was open to the primary judge to appoint an interim administrator of the estate under s 73 of the Act

Additionally, the primary judge was correct in emphasising the broad nature of the power to appoint an interim administrator and resisting the Applicants urging to find some tangible evidence of “jeopardy” to the estate as a pre-condition to, or prerequisite of, appointment.

“[i]t is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words”

Owners of Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404 at 421; [1994] HCA 54

Similarly, as the power to appoint an interim administrator is constrained only by the requirement to advance the due and proper administration of the estate in the best interests of the ultimate beneficiaries judicial glosses should not otherwise be applied to the broad language of the Act as the

“Necessity for the power to be exercised judicially trends in favour of the most liberal construction”.

Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178 at 205

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.