EOFY

ESTATE LITIGATION

Re Ramos [2025] VSC 19

Revocation of grant in fraudulent circumstances of identity theft

An application by Deenisha Nadesan and Marcelle Jardim, the true executors of the estate of George Frank Ramos, to revoke a grant of probate that had been fraudulently obtained by persons impersonating them. The deceased died in South Africa in July 2021, leaving a Will dated 10 January 2018 naming Nadesan and Jardim as executors. A valid grant of executorship was issued to them in South Africa. However, in July 2023, McManus & Co Lawyers in Victoria were contacted by a caller claiming to be Jardim, who provided what appeared to be genuine certified copies of the Will, Letters of Executorship (under South African law), and identification documents. The firm subsequently applied for and obtained a grant of probate in Victoria on 13 September 2023 (“the 2023 grant”). Suspicion arose when the impersonators, who never agreed to a video call, became increasingly emotive in communications and pressured. These communications aroused suspicion in Gabrielle McManus, principal of the firm. Ms McManus investigated and discovered that the real Jardim and Nadesan had no knowledge of the application. With their authority, the firm applied for revocation of the 2023 grant. Gray J found that the Court’s express statutory powers did not directly address the situation but relied on the inherited ecclesiastical jurisdiction preserved by s 67 of the Administration and Probate Act 1958 (Vic). Citing long-standing authority, His Honour affirmed the Court’s discretion to revoke a grant in circumstances of fraud: “the real object which the Court must always keep in view is the due and proper administration of the estate and the interests of the parties beneficially entitled thereto” (In the Goods of Loveday [1900] P 154, 156). Further, “a grant obtained as a result of fraud may clearly be revoked” (Re Gillard [1949] VLR 378). Although the law practice had no knowledge of the fraud, His Honour held that “as a matter of objective fact ascertained after the event, the law practice was acting on instructions from persons unknown who had fraudulently assumed the identities of the true executors.” The Court accepted the applicants’ concern that failure to revoke the 2023 grant could leave it open to future misuse. The Court ordered the grant revoked and commended McManus & Co for their caution before distributing estate funds, noting that while better safeguards might have been implemented earlier, the firm has since adopted prudent new practices including mandatory video verification. His Honour also expressed concern about systemic vulnerabilities: “It is simply unexplained and unclear how the purported executors came into possession of apparent genuine copies of sensitive documents... There is also some reason to fear that correspondence... might have been intercepted.” No order for costs was sought.

Re Pellettieri [2025] VSC 20

Revocation of grant in fraudulent circumstances of identity theft – Gabrielle McManus being brilliant

This case considered whether a prima facie case existed to investigate the validity of a will made by the deceased, Francesco Pellettieri, in 2011 (“Frank”). Frank suffered lifelong intellectual disability and epilepsy. He died in 2020, aged 54, leaving a will that appointed his cousin Maria Trinchi and her husband as executors and major beneficiaries. Frank’s other cousin, Mario Bernardo, applied for revocation of the grant of probate in 2024. Frank’s capacity and knowledge of the will’s contents were in issue. The will was drafted and witnessed by solicitors from Comito Iacovino & Co (CIC). In 2011, Mario’s solicitor had raised concerns about Frank’s capacity and Maria’s alleged undue influence. Frank later executed a codicil removing Mario’s children as contingent beneficiaries and appointed Maria’s son as his attorney. Mario relied on a 2013 neuropsychological report by Dr Perre, which found Frank to have “borderline intellectual functioning” with “attentional, memory, and executive difficulties”, raising concerns about his ability to make “informed decisions about complex legal and financial matters.” The Court noted this evidence, though not contemporaneous with the will, described impairments likely to have existed in 2011. Maria applied for summary dismissal on the basis that Mario’s application lacked merit and was delayed by over four years. However, Daly AsJ accepted Mario’s evidence that Frank was illiterate and unable to read the will. The Court cited Nock v Austin (1918) 25 CLR 519, where Isaacs J held that “where any such suspicious circumstances exist, the assumption [of knowledge and approval] does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively… that the testator knew and approved of the contents of the document.” Daly AsJ found that the combination of Frank’s intellectual disability, illiteracy, and Maria’s involvement in the will’s preparation gave rise to a prima facie case for investigation. While noting that “mere delay is insufficient” to justify dismissal, the Court accepted that “the presence of an intellectual disability does not necessarily mean that Frank lacked testamentary capacity,” but in this case, it warranted further inquiry. There was “nothing on the will file or any other evidence to establish” that the will had been read to Frank. The application for summary dismissal was dismissed. The Court held that it was not unjust for the revocation application to proceed and that a “serious, but not overwhelming” case for investigation had been established, sufficient to justify trial. The issue of costs and further directions was reserved.

Thomson v Thomson (No 2) [2025] VSC 27

Costs – Passing over – setting aside of prior costs order

Various issues of costs arising in the administration of the estate of Raymond Thomson, who died in December 2020. The deceased’s Will dated 25 January 2017 appointed his brother, Graeme Thomson (the Plaintiff), as executor, or alternatively his niece, Julia Talbot. The Plaintiff applied for probate on 30 June 2021. The deceased’s daughters, Catherine and Kerryn Thomson (the Caveators), lodged caveats opposing the Plaintiff’s appointment and issued proceedings to have him passed over, alleging he was conflicted and unsuitable to administer the estate. The dispute arose in part due to the Plaintiff’s prior conduct as attorney for the deceased under an enduring power of attorney made in 2015. In 2020, VCAT suspended the Plaintiff’s appointment following complaints about his management of the deceased’s financial affairs. Further proceedings had also been commenced in VCAT concerning the Plaintiff’s conduct and transactions made during that time. In January 2022, the Judicial Registrar determined that the Caveators had not made out a prima facie case for the Plaintiff to be passed over as executor. The Court ordered that the caveats cease to have effect and directed the Caveators to pay the Plaintiff’s costs of the passing over application. The Caveators appealed that decision, but the matter was never ultimately determined as both the Plaintiff and the alternate executor later renounced probate. The Court was required to determine the costs of the probate application, the passing over application, the appeal, and the renunciation application. The Caveators sought to have the prior costs order set aside on the basis that the Plaintiff had failed to disclose a material conflict of interest—namely, that he intended to pursue personal claims totalling $368,272 against the estate and Auscut, a company controlled by the deceased and connected to his estate. They submitted that the Plaintiff’s conflict was “profound” and that he had acted without candour in not raising the claims earlier. However, the Court refused to revisit the costs order, noting it was a final, perfected order and that none of the recognised categories of exceptional circumstances—such as fraud or breach of natural justice—were engaged. The Court reiterated that “an order is interlocutory unless… it finally determines the rights of the parties in a principal cause,” and that the passing over order had that final effect. The Caveators also contended that the Plaintiff ought to bear his own costs of the probate application without indemnity from the estate, submitting he should have renounced at the outset. The Court rejected this, noting that the claims giving rise to the alleged conflict were not pressed by the Plaintiff until after the Judicial Registrar’s decision, and that prior to that point there were no circumstances requiring him to renounce. The Court held the Plaintiff was entitled to be paid his costs of the probate application on a standard basis out of the estate. In respect of the appeal, the Caveators sought their costs on the basis that the Plaintiff’s position was untenable in light of his conflict. The Court accepted that submission, observing that the Plaintiff’s personal claims would have required him, as executor, to adjudicate upon his own contested debts—a “manifest” conflict. The Court found that the Caveators were overwhelmingly likely to succeed on appeal and that it was therefore appropriate the Plaintiff pay their costs. However, as the appeal had not been heard, indemnity costs were not awarded. The Plaintiff was also required to bear his own costs of the appeal without recourse to the estate. Finally, the Court dealt with costs arising from the Plaintiff’s renunciation application. The Caveators argued that they should be awarded their costs, asserting the Plaintiff ought to have renounced much earlier. The Court disagreed. It found that once the Plaintiff decided to press the debt claims, it became necessary and appropriate for him to renounce, and that the application was brought in a timely manner. The Court ordered that the costs of both parties in relation to the renunciation application be paid from the estate on a standard basis.

Re Estate of Stagliano [2025] VSC 39

Consideration of “personal chattels” - summary of the Trust Question is under the Trust Header

The Supreme Court of Victoria was asked to determine whether five luxury cars owned by Nicola Stagliano at the date of his death were “personal chattels” within the meaning of s 5 of the Administration and Probate Act 1958 (Vic). The answer bore directly on the entitlement of the surviving partner under s 70L(1)(b)(i) of the Act. Section 5 relevantly defines “personal chattels” to include “motor cars… (not used for business purposes)” and expressly excludes “any chattels used at the death of the intestate for business purposes.” The statutory construction required the Court to examine whether the cars were used in the conduct of a business, either by their nature or in the broader context of the deceased’s activities. Her Honour accepted that while Nicola had been engaged in business through NP Roofing and a primary production partnership, there was no evidence the five cars were used for either. The vehicles — a Ferrari, Bentley, Rolls Royce, and two Mercedes Benz — were owned in Nicola’s personal name and predominantly garaged at his residence. The Administrator’s evidence was that no business-related deductions were made in tax returns, nor were the vehicles used as security for borrowings. There was limited toll usage, and that usage was charged to NP Roofing's Eastlink account, but such usage was not sufficient to displace their private character. John, Lisa and Susan contended that Nicola had historically bought and sold luxury cars, including running a business known as Cobra Motors in the 1970s. However, the Court held that while the deceased had shown a lifelong interest in cars — even “flipping” them in earlier decades — this did not establish that the five vehicles at issue were held for business purposes. As Harris J observed: “There was a significant period between then and the acquisition by Nicola of the relevant cars… which were held at the time of his death.” Her Honour considered the holding of a single Ferrari for four years, and the stable long-term ownership of the others, “more indicative of a collection than a business of buying and selling for profit.” The Court further found there was no evidence of any “systematic or businesslike activity” that could characterise Nicola’s car ownership as a business. The 2015 Mercedes was described as a “daily driver” and the other vehicles sat in the garage “on trickle chargers for months on end.” Registration at a business address and use of the company toll account did not, in themselves, amount to business use, particularly in the absence of records or any business plan. Her Honour ultimately concluded: “The evidence as a whole points quite strongly to the conclusion that the cars were purchased by Nicola Stagliano because of his love of luxury cars… [and] were not used for business purposes.” Accordingly, the Court held that each of the five vehicles was a “personal chattel” within the meaning of s 5 of the Act, and formed part of the entitlement passing to the deceased’s spouse under the intestacy regime.

Low v Hunt [2025] VSC 80

Removal of Executor by Trustee in bankruptcy of beneficiary – application dismissed

Application by a trustee in bankruptcy to remove a sole administrator-beneficiary of a deceased estate pursuant to s 34(1)(c) of the Administration and Probate Act 1958 (Vic) and s 48 of the Trustee Act 1958 (Vic). The Deceased died intestate in 2018. His widow, Jeannette Hunt, was granted letters of administration in 2019 and was the sole beneficiary of his estate, which included a property in Shepparton. In 2021, Hunt filed for bankruptcy owing $19,236. Ms Low was later appointed as trustee in bankruptcy. Low contended that Hunt had failed to administer the estate by not transferring the property to herself as beneficiary, thereby preventing it vesting in the trustee under s 132 of the Bankruptcy Act 1966 (Cth). Low sought Hunt’s removal as administrator, submitting that she had refused to act, was unfit, and had delayed distribution for over five years. It was argued that Hunt's failure to transfer the property served her personal interest in frustrating Low’s ability to realise the asset and recover outstanding bankruptcy costs, then estimated at $143,470.39. Hunt denied wrongdoing, asserted she had repaid all debts (save for administration costs), and argued that Low’s fees were excessive. Forbes J held that although the Court had jurisdiction to remove an administrator under s 34(1)(c), the test for removal — drawn from Miller v Cameron (1936) 54 CLR 572 — required a judgment “based upon considerations… which combine to show that the welfare of the beneficiaries is opposed to [their] continued occupation of the office” (at 580–581). Her Honour noted that “unfitness to act is a consideration broader than circumstances of misconduct” but emphasised the need for discretion, particularly where the administrator is also the sole beneficiary. Low had standing to bring the application as trustee in bankruptcy, standing in Hunt’s shoes as beneficiary: Official Receiver in Bankruptcy v Schulz (1990) 170 CLR 306. However, the Court was not persuaded that the interests of the estate or beneficiaries were prejudiced by Hunt’s continued role, nor that she lacked capacity or was unfit to act. Forbes J noted that delays, while significant, were partly explained by confusion about Hunt’s role during bankruptcy and the caveat lodged by the estate of Jean Flinn. The Court further observed that the dispute between Low and Hunt was fundamentally one over costs incurred in the bankruptcy and not properly the subject of probate jurisdiction. Her Honour concluded: “There can be little advanced by the appointment of an independent administrator, other than to embroil the estate in an irrelevant costs dispute.” The application for removal was dismissed. Costs orders were reserved pending submissions.

Re Norris; Lindsay v Howie [2025] VSC 85

Informal Will – instructions given, draft Will read out over the phone – client died before signing

Issue was whether to admit an unsigned will to probate under s 9 of the Wills Act 1997 (Vic). The applicant, Ms Lindsay (a niece of the deceased), relied on a document naming her and three other nieces as equal beneficiaries. Mr Howie, the deceased’s estranged husband, opposed the grant and contended Ms Norris died intestate. The Court was required to determine: Whether Ms Norris intended the informal will document to be her final will; and Whether she had testamentary capacity at the relevant times. The document was prepared by Ms Calvert-McCredie, a solicitor and long-time friend of Ms Norris. It was read aloud to Ms Norris on 10 July 2024 over the phone, with Ms Norris confirming she was “happy with that will” and had nothing to add. A meeting was arranged for her to sign the document, but this was postponed due to illness and never occurred prior to her death on 19 August 2024. Gray J found that Ms Norris had formed a settled intention that the informal will document would be her will. Her instructions were clear: her estate was to be divided equally between four nieces, with specific provision that Mr Howie was to receive nothing beyond any family law settlement. There was no evidence of any change of mind following her confirmation on 10 July 2024. The Court held: “I am positively satisfied that Ms Norris had that intention on 10 July 2024, and that she also had that intention on at least two occasions afterwards... There is no evidence that she changed her mind.” [at 221] Mr Howie submitted that the informal will was provisional and contingent on legal advice, and further, that Ms Norris’ apparent suicide suggested she knew she had no valid will in place. These arguments were rejected. His Honour noted that the relevant question was whether Ms Norris intended the document to be her will, not whether she complied with formalities or contemplated death. The Court refused to speculate as to her state of mind in the days before her death. On testamentary capacity, the Court accepted evidence from Ms Norris’ treating GP, Dr Mereddy, who stated that Ms Norris “would have had full testamentary capacity at the date of making her will”. This was supported by the solicitor’s evidence of coherent instructions and contemporaneous conduct. There was no suggestion of undue influence, and the Court accepted that Ms Norris knew and approved the contents of the document. In applying s 9, the Court reiterated the three requirements: a document; that records testamentary intentions; and that the deceased intended it to be their will. The burden lies on the balance of probabilities, with the evidence to be scrutinised according to the Briginshaw standard. These were all met in this case. Probate of the informal will document was granted in favour of Ms Lindsay.

Talia v Blaney [2025] VSC 131

Construction of life interest – question of whether life interest forfeited on failure to comply with condition

The Court considered an application for judicial advice by the administrator of the estate of Colin Edward West regarding the construction of clause 2 of the deceased’s will. The issue was whether the defendant, Siobhan Blaney (the deceased’s partner), had forfeited her entitlement to occupy the deceased’s home due to non-compliance with conditions in the will. The will, executed on 15 May 2018, gave Blaney the “use and occupation” of the deceased’s principal place of residence “for life”, subject to her paying all rates, taxes and outgoings, maintaining the property (excluding structural repairs), and keeping it insured. On her death, the property was to fall into the residuary estate. The property was held on trust for sale with power to postpone. The Court found that the gift was properly characterised as a life interest, noting that “on a plain reading of clause 2 of the will”, the deceased’s intention was for Blaney to occupy the property for life. The power of sale and trustee powers in clause 9 were consistent with this construction, particularly where the life interest was forfeited. The defendant had not lived in the property since at least December 2023 (and likely since 2021), had not insured it since 2020, and had failed to maintain it. The Court noted the property was in poor condition and “well-known” in the community to be vacant. It had been vandalised in July 2024. There was no evidence the defendant had paid any rates or outgoings. Her Honour concluded that the conditions in clause 2(b) were conditions precedent to the enjoyment of the life interest. Accordingly, the defendant has failed to comply with the conditions set out in clause 2(b) of the will and had forfeited the life interest. Although the defendant had (informally) alleged harassment by family members and claimed to have contributed $29,000 toward the purchase of the property, there was limited evidence to support these claims. A bank statement showed a $29,000 transfer labelled “house deposit”, but the Court declined to infer an equitable interest in the property. The Court directed that the proceeds of sale of the property be held in accordance with clause 7 of the will (the residuary clause), subject to the payment of estate expenses, liabilities, and claims in related proceedings under Part IV of the Administration and Probate Act 1958.

Re Troy [2025] VSC 123

Construction of Will – whether devise includes water rights?

The Supreme Court of Victoria considered whether water shares formed part of a devise of land in clause 4(a) of a will. The Plaintiff, Mr Troy sought judicial advice pursuant to Order 54 of the Court Rules in relation to the last Will of his mother, Florida Troy, executed in November 2006. The Defendant, his sister Deborah, was sued in her capacity as administrator of Florida’s estate. Florida’s Will left “my interest in any land situated in Matthews Road, Kerang and described in Certificate of Title Volume 8967 Folio 201” to Rodney. Deborah received the residue. At issue was whether water shares held by the Deceased at her death – valued at over $500,000 – formed part of the devise to Rodney or fell into the residue for Deborah. The Court held that the water shares passed to Rodney. Clause 4(a) was found to be a specific gift, indicating a contrary intention to the presumption in s 34(1) of the Wills Act 1997, which otherwise requires wills to be construed as if made immediately before death. Moore J observed that the reference to a particular certificate of title “must be understood as operating to delimit and identify with specificity particular land” and not any land owned at death. Florida made her Will shortly after transferring the remainder of the family farm (“the home block”) to Rodney in 2006, retaining only the smaller Matthews Road parcel. At the time, rights to water (riparian rights) were common law incidents of land ownership. Those rights were only unbundled into separate statutory entitlements from 1 July 2007 by amendment to the Water Act 1989. The Will was prepared by a solicitor. Applying the armchair principle, the Court considered it must be assumed that Florida and her solicitor were operating within the then-existing legal framework. “Given the nature of the riparian rights which attached to Florida’s land when the Will was made”, the Court held the gift of land in clause 4(a) extended to any water rights that were legally appurtenant to the land at that time. The Court rejected Deborah’s submission that the water shares were separate and should fall into residue. It found that clause 5 of the Will – which stated that no further provision was made for Rodney because he had already been provided for during life – was not dispositive and did not operate to limit clause 4(a). Moore J further rejected Deborah’s factual claims that Florida intended to withhold water rights from Rodney. Her evidence of conversations was vague, uncorroborated, and inconsistent with contemporaneous conduct. By contrast, Rodney had received water rights with the home block and continued to use water in an integrated farming enterprise. The water associated with the Matthews Road land had previously been used on that land and was not shown to be separately alienated before the Will was made. The Court declared that the water shares formed part of the gift to Rodney under clause 4(a).

Damnjanovic v Dumic [2025] VSC 168

Costs of judicial advice/directions

A costs application arising from a proceeding brought by the executor of the estate of Svetozar Stanojevic for directions concerning whether a property at 64 Jade Way, Hillside formed part of the estate. That issue had since been resolved in separate substantive proceedings. The deceased died in 2016. The plaintiff, Peter Damnjanovic, was granted probate in 2017. The second to fifth defendants (the claimants), relatives of the deceased, had lodged a caveat over the property in 2016 asserting equitable interests by way of implied, resulting or constructive trust. The plaintiff initiated these proceedings in 2019 to clarify whether the property formed part of the estate, prompted by the claimants’ threatened litigation and lack of engagement. In the subsequent substantive proceedings commenced by the claimants in 2020, Tsalamandris J declared that only 42.71% of the property formed part of the estate. The remainder was held on trust for various individuals. Her Honour also found that the plaintiff had not breached his duties as executor in allowing the first defendant to reside in the property rent-free. On costs, the first defendant was ordered to pay the claimants’ costs, while the claimants were ordered to pay the plaintiff’s costs of defending the rent claim. Following the conclusion of the substantive proceedings, the issue arose as to who should bear the costs of this initial directions proceeding. The plaintiff sought orders that his costs be paid from the estate and that the claimants bear their own costs and also pay his costs of the present application. He submitted that the claimants acted unreasonably by delaying the commencement of their claim for several years despite repeatedly foreshadowing it, thereby necessitating the present proceeding. D2-D5 opposed this, submitting that their claim related to a proprietary interest external to the will and that they were involuntarily drawn into the proceeding. They relied on Kempson v Haydon (Costs) [2022] VSC 366 and Rigby v Tiernan [2016] VSC 352 to submit that this was a non-adversarial application by a trustee seeking judicial advice. They argued that the proper characterisation of the proceeding attracted the general rule that costs be borne by the estate, particularly as their interest in the property was ultimately vindicated. Lorenz JR agreed with D2-D5. His Honour found that the proceeding fell into the first category of judicial advice applications identified in Kempson, involving a trustee seeking the Court’s guidance in administering the estate. Relying on Sons of Gwalia Ltd v Margaretic (2006) 232 ALR 119, Lorenz JR held that “the costs incurred in disputes of the first category… are to be borne by the estate”. His Honour rejected the plaintiff’s submission that D2-D5 had acted unreasonably, noting their attempts to resolve the matter through mediation. The Court ordered that the costs of both the plaintiff and D2-D5 be paid from the estate on an indemnity basis.

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