Estate Litigation 2025 First Half - Case Review with Suzanne Lyttleton Lawyers

‍‍‍Lachlan Einsiedel
Senior Associate
Accredited Specialist in Wills & Estates Chartered Tax Advisor
SMSF Specialist Advisor™ / SSA

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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.

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Re Pellettieri [2025] VSC 20

Application for revocation of grant of probate

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.

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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.

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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.

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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.

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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:
1. Whether Ms Norris intended the informal will document to be her final will; and
2. 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.

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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.

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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).

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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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Lennan v Chao [2025] VSC 220

TFM – application by domestic partner

The Supreme Court of Victoria dismissed an application by the plaintiff, Anthony Lennan, for further provision from the estate of his deceased domestic partner, Fay Ping Chao. Ping died in July 2022, aged 45. Her will, executed in March 2022, left the residue of her estate to her siblings Tat Woon Chao and Fay Lin Chao, who were also appointed executors. Anthony was left her superannuation death benefit of $378,164.89, which he received. Anthony sought provision of a property on Tooronga Road or an equivalent capital sum of approximately $850,000. The defendants conceded that Anthony qualified as an eligible person and that Ping had a moral duty to provide for his proper maintenance and support. The sole issue was whether her will failed to make adequate provision for him. The Court considered the importance of freedom of testation, and that interference requires a breach of moral duty: Grey v Harrison [1997] 2 VR 359. Whether provision is “adequate for proper maintenance” depends on the applicant’s financial circumstances, the estate, the nature of the relationship, and claims of others: Singer v Berghouse (1994) 181 CLR 201. The discretion must be exercised “carefully and conservatively according to prevailing community perceptions of the provision that would be made by a wise and just testator”: Davison v Kempson (2018) 17 ASTLR 244. Anthony and Ping met in 2013. While their relationship lasted nine years, the Court found it only matured into a domestic partnership from about March 2019, following a 10–12 month separation. They cohabited from that time until her death in 2022. The relationship was not marked by financial interdependence, joint ownership of property, or a shared understanding about children. Ping’s will was professionally prepared with a letter of wishes. She explained that Tooronga Road and Parslow Street had family significance and that she wished to leave them to her brother. She expressly stated she had considered her obligations to Anthony, and left him her superannuation “to recognise that he is my partner.” Moore J found this reasoning “should be given significant weight” given the circumstances in which it was made. The Court rejected the submission that sentimental reasons were “misconceived,” citing Nock v Austin (1918) 25 CLR 519: “[A] testator is not bound to expose to the world the delicate and perhaps indefinable relations that exist within his family circle.” Anthony’s financial position showed he had $550,000 in savings (including the superannuation), $425,000 in superannuation, and an annual income of about $200,000. He conceded he could “quite comfortably” purchase a property for around $600,000 and was capable of purchasing a property in the $800,000–$850,000 range. The Court held that he was not in “a situation of need,” which is a threshold requirement. Despite Anthony’s care for Ping during her illness and lack of real property ownership, the Court was not satisfied that further provision should be ordered. The Court considered “…in making those judgments, Ping was best placed to weigh the extent of her moral duty to Anthony; it is apparent that she considered that ensuring a disposition to him of the substantial sum of $378,164.89 was sufficient to discharge that duty”. The application was dismissed.

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Muir v Rosemary Laycock (by her litigation guardian Charles Laycock) [2025] VSC 287

Testamentary capacity – weight of evidence from solicitor drafting Will as opposed to expert evidence

The matter considered whether the will of Charmian Louise Watt, made on 18 October 2010, should be admitted to probate. The defendant, Rosemary Laycock, Charmian’s niece and attorney, challenged the will on the grounds that Charmian lacked testamentary capacity and did not know and approve its contents. If successful, Rosemary would be the sole beneficiary on intestacy. Charmian, who died in 2020 aged 95, had been diagnosed with dementia six weeks prior to executing the will and was later assessed in April 2011 as lacking testamentary capacity. However, the Court was satisfied that Charmian had capacity at the relevant time and admitted the will to probate. Charmian appointed Rosemary as her enduring attorney and guardian in July 2010. In September 2010, following a falling out with Rosemary—principally due to the suspension of her driver’s licence and proposed move to aged care—Charmian contacted solicitor Michael Muir to prepare a new will. The will divided her estate into 20 parts: nine to Denise Brookes, her second cousin; nine to Denise’s children; and the remaining two parts (10%) to Rosemary and her three sons. Rosemary personally received 2.5% of the estate. The limited bequest was attributed to the deteriorated relationship between them. Rosemary argued that Charmian lacked testamentary capacity when executing the will, noting her dementia diagnosis in September 2010 and a subsequent assessment in April 2011 by Dr Fonda that she lacked capacity. However, Mr Muir, who took instructions in person and attended the execution of the will, was satisfied as to Charmian’s capacity and understanding. He recorded that Charmian had “more than adequate testamentary capacity” and “seemed to fully understand the concept of Wills, the role of an executor and the need for the selection or nomination of beneficiaries of her estate.” The Court reiterated the test for testamentary capacity as set out in Banks v Goodfellow (1870) LR 5 QB 549. McDonald J accepted Mr Muir’s assessment and contemporaneous file notes, observing that Charmian gave clear instructions and rational reasons for her dispositions. His Honour accepted that while Charmian’s dementia diagnosis was relevant, the critical issue was her capacity at the time of execution. Dr Fonda’s retrospective opinion from 2024 that she lacked capacity in October 2010 was given limited weight, particularly given his own acknowledgment that capacity can fluctuate and his reliance on documents rather than direct observation. The Court found no suspicious circumstances surrounding the preparation or execution of the will. Mr Muir had no prior connection to the beneficiaries and was not influenced by anyone. Charmian had contacted him independently, provided clear instructions, and approved the draft before execution. His Honour noted that “the fact that Charmian gave a smaller gift to Rosemary is explicable by reference to their falling out in September 2010 and not by any lack of capacity or want of knowledge and approval.” The Court further noted that the presumption of knowledge and approval arises where a will is duly executed and read over to a capable testator. That presumption was not displaced. The will was drafted by an experienced solicitor who gave evidence and whose process met the professional standards expected. The Court concluded that Charmian had testamentary capacity, knew and approved the contents of the will, and that it should be admitted to probate.

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Re McKenzie: Watts v Cardell [2025] VSC 295

Striking out of grounds of objection

An application to strike out grounds for revocation of a grant of probate of the 2018 will of Kathleen McKenzie. The deceased died at 99, unmarried and childless, leaving a significant estate. Her 2018 will, drawn and witnessed by a solicitor, named her great-nephew Cory Watts as primary beneficiary, differing markedly from her 2014 will, which favoured other relatives. Probate was granted to Cory and a co-executor in August 2023. Lucinda Watts, a niece of the deceased and mother of Cory, initially challenged the will but lost standing when the 2014 will was located. She was replaced by Louise Cardell, daughter of Graham Fridey, a primary beneficiary under the 2014 will. Louise filed revised grounds for revocation alleging lack of testamentary capacity, undue influence by Cory, and lack of knowledge and approval of the 2018 will’s contents. Particulars included the deceased’s advanced age, diagnosis of Alzheimer’s dementia, her ACE-III score of 46/100 in late 2017, and Cory’s alleged history of threats and violence towards family members. The plaintiffs applied to strike out these grounds, arguing they lacked factual basis and only suggested the opportunity to influence, rather than actual exertion of influence. They contended the will’s execution by a solicitor gave rise to presumptions of testamentary capacity and knowledge and approval, citing Montalto v Sala (2016) 15 ASTLR 393. The applicant submitted that the “overall narrative” of the deceased’s vulnerability, the radical departure from prior wills, and Cory’s role in isolating the deceased, raised a prima facie case warranting investigation, relying on Gardiner v Hughes [No 2] [2019] VSCA 198. The Court struck out the grounds alleging undue influence, lack of knowledge and approval, and suspicious circumstances. Her Honour held that the particulars “go only to the question of the opportunity of Cory to exert undue influence... not the actual exertion of undue influence”. There was no allegation of conduct amounting to coercion of the deceased, nor any basis to rebut the presumption that she knew and approved of the will’s contents given it was professionally prepared. Her Honour observed that “a testator may yet know and approve the contents of his or her will, even though the will does not reflect his or her true intention because its preparation is tainted by coercion or fraud”, but that the allegations here did not support such an inference. The deceased’s history of materially altering her testamentary dispositions over time undermined the assertion that the 2018 will was anomalous or suspicious. While the applicant had “liberty to apply” to reinstate the struck-out grounds should further evidence arise, the current pleadings did not meet the required standard. The Court declined to grant summary judgment, preserving the possibility of amendment following discovery.

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Re Estate of Valerie Day [2025] VSC 303

Appointment of administrator pendente lite – only way of funding litigation costs is by sale of estate property – estate property subject to specific bequest – open to beneficiaries to loan fees for administrator to not defeat bequest

Application for an independent administrator pendente lite for the estate of the Deceased due to serious concerns about the conduct of her son Michael Day, who was the sole executor and principal beneficiary under the last three of five wills made by the deceased. The application was brought by another son, Peter Day, and supported by the deceased’s two daughters. Michael lived with the deceased for the final five years of her life, was appointed as her enduring attorney under EPA, and was closely involved in her financial affairs. During that period, substantial funds appear to have been transferred from the deceased’s name and superannuation into a family trust controlled by Michael. Peter alleged that Michael misused his position as attorney, dissipated estate assets, and since her death, has occupied the deceased’s Mornington property rent-free. These allegations are also the subject of a VCAT proceeding commenced by Peter. Michael applied for probate of a 2018 will under which he is sole executor, specific beneficiary of the Mornington property, and sole residuary beneficiary. Peter lodged a caveat and contended that the will was invalid, and that Michael was not a fit and proper person to act as executor, given “a conflict between his personal interests and his fiduciary duties” and alleged mismanagement of estate assets. The estate comprises the Mornington property (valued at $1.355 million), some chattels and negligible liquid assets. The Court found that “[t]here is a real risk of the estate assets not being preserved by Michael” and “it would be inappropriate to leave Michael in a position of de facto advantage compared with his siblings”. His Honour considered that Peter’s allegations were serious and merited independent investigation, though no final findings were made. Pursuant to s 22 of the Administration and Probate Act 1958, the Court exercised its discretion to appoint Ms Ines Kallweit as a limited administrator. His Honour accepted that “the limited administrator should be expressly empowered to sell the Mornington property… if she considers that there is a need to do so to fund the administration of the estate”. The Court recognised that this would defeat a specific bequest in the contested wills, but held that “ensuring that Ms Kallweit receives the ongoing remuneration she is entitled to as administrator” outweighed the concern. The Court considered a sale may be avoided with voluntary contributions from the beneficiaries, but otherwise, may seek further directions from the Court.

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Barukzai v Rizzo [2025] VSC 308

Undefended Part IV claim – adult daughter claim – daughter in poor circumstances

The Court considered an application by an adult daughter, Carmen Barukzai, for provision out of her late mother Sylvia Rizzo’s estate under Part IV of the Administration and Probate Act 1958 (Vic). The deceased’s 2019 Will left her entire estate to her son, Phillip Rizzo, granting him a life interest in her residence and the residuary estate absolutely. The Will expressly excluded Carmen, stating they were estranged and that she had obtained financial advantages during the deceased’s lifetime. The estate was valued between $1.4 and $1.55 million. Carmen, born in 1979, is a single mother of three children, living in rental accommodation with minimal savings, substantial health issues, and limited employment capacity. She relied on government benefits and WorkCover payments, supported by medical evidence that her condition was “permanent and irreversible”. The Court accepted the evidence of a longstanding close relationship between Carmen and the deceased, disrupted only in the final year of the deceased’s life. Estrangement followed a disagreement regarding the behaviour of the defendant and the sale of a property, but the Court found it was not severe, nor did it preclude a moral duty. “The estrangement is of little weight in determining adequate provision”, particularly given Carmen’s attempts at reconciliation. The Court also rejected the deceased’s claim that Carmen had received significant financial benefit. Any support was modest and, according to the Court, “in the scheme of things… was modest assistance”. Citing Walsh v Walsh [2013] NSWSC 1065, the Court confirmed the community expects that “where a child, even an adult child, falls on hard times, and where there are assets available, then the community may expect a parent to provide a buffer against contingencies”. On the facts, it held the deceased owed a moral duty to provide for Carmen, which had not been discharged by the Will. Phillip Rizzo, the executor and sole beneficiary under the Will, did not participate in the proceeding. The Court was therefore unable to assess his financial circumstances, but held that absence did not preclude an order in Carmen’s favour. The Court concluded the jurisdictional threshold under ss 91 and 91A of the Act was met. While Carmen sought 75% of the estate, the Court considered 50% appropriate. “It is a significant departure from the terms of the Will”, but was necessary to ensure “proper maintenance and support” having regard to her financial and health circumstances.

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Mace v Cavanagh & Anor [2025] VSC 311

Setting aside judgement in default of defence

Application to set aside a default judgment entered against the first defendant, Margaret Cavanagh, in a proceeding brought by her former mother-in-law, Beverley Mace. The claim alleged breach of a “Granny Flat Agreement” and conversion of goods following the sale of a farm in Bairnsdale jointly owned by the plaintiff, the deceased (Ms Cavanagh’s former partner), and Ms Cavanagh. Judgment in default of defence had been entered on 2 March 2023 following an affidavit by the plaintiff’s solicitor, Mr Gauld, sworn on 28 February 2023. However, the interlocutory judgment recorded that it was obtained in default of appearance, when in fact a notice of appearance had been filed by the first defendant on 30 January 2023. Goulden AsJ held this amounted to an irregularity justifying that the judgment be set aside: “a plaintiff entering judgment in default must comply strictly with the rules of court in every respect because of the drastic disadvantage to the defendant occasioned in the result.” Her Honour found the present case was squarely within the principle expressed in Jindra v Tech Rentals Pty Ltd [1999] VSC 206, and that “the error in the recital in this proceeding as to how the judgment in default was obtained qualifies as an irregularity that warrants its setting aside.” Even if the judgment had been regularly entered, the Court would have exercised its discretion under r 21.07 of the Rules to set it aside. Her Honour found the first defendant had an arguable defence on the merits, including in respect of alleged breaches of contract and claims in detinue and conversion. Although the plaintiff submitted that those issues had already been determined in earlier probate proceedings and thus gave rise to an issue estoppel, the Court declined to make a final determination on that question at this interlocutory stage. Her Honour held that the issue estoppel argument was premature and required a full hearing: “I am not convinced that... the issues relied upon by the plaintiff as having been determined in the Probate Proceeding were logically essential to the decision...” The Court accepted the first defendant’s explanation for her default, including that she had relied on incorrect legal advice about the filing deadline, had attempted to file a defence which was unknowingly rejected by the registry, and had not been served with the default judgment. The conduct of her former solicitors, who invoiced her for work said to have been done by counsel in preparing a defence that was never produced, contributed to the default. The Court observed: “The first defendant ought not suffer the penalty of being shut out from defending the claim where her solicitors were responsible for the default.” Although the plaintiff argued she would be prejudiced by delay, given her age and the abandonment of her claim against the second defendant, the Court was not persuaded that such prejudice could not be compensated by costs. Her Honour described the default judgment as having been “slapped on”, and noted that the plaintiff then took no steps in the proceeding for over 18 months. An oral application by the plaintiff for summary judgment was dismissed, again on the basis that the issue estoppel argument could not be resolved without a full hearing. Costs of the application were awarded against the plaintiff.

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Rimbas v Paganis [2025] VSC 323

TFM – Adult daughter claim – daughter entitled to 50% on intestacy – daughter lived in property – application dismissed

Application by Maria Rimbas under Part IV of the Administration and Probate Act 1958 (Vic) seeking the entirety of her late father’s estate. The deceased, Dimitrios Rimbas, died intestate, leaving a residuary estate valued at approximately $1.6 million, including a property in Hawthorn East. Maria and her sister Katina Paganis were entitled to the Estate on intestacy. Maria sought the whole estate on the basis that she had been abused by Katina and her husband and deserved the full benefit. The Court found that Maria’s claim was driven by animosity rather than genuine financial need or unmet moral duty: “Maria’s animosity towards Katina and particularly John, appears to be her primary motivation for bringing this application.” Maria’s evidence was found to be “vitriolic and unreliable,” riddled with inconsistencies and obfuscation regarding her financial position. Despite claiming she had no income, evidence revealed she had a share portfolio valued between $495,000 and $600,000, held several term deposits, and received Centrelink back payments. The Court held: “Maria’s evidence regarding her financial situation is not credible… She sought to hide the extent of her financial assets.” In contrast, Katina was found to be a credible witness. She lived independently, had financial constraints, and cared for her own family, including a son undergoing chemotherapy. The Court accepted evidence from Katina and other witnesses that Maria had not provided the level of care she claimed for their parents. Witnesses consistently described the deceased as independent and Maria as disengaged or self-serving. The Court applied the principles in Gash v Ruzicka [2023] VSCA 189, noting that a successful Part IV claim requires both a moral duty and a failure by the deceased to provide adequate provision. An adult child must establish need; proof of a moral duty alone is insufficient. As the Court stated, “An applicant is not required to show that his or her circumstances are destitute… but mere proof of a moral duty is not in itself adequate.” Maria failed to demonstrate that the equal distribution under intestacy did not provide for her proper maintenance and support. The Court also had regard to s 91A factors, including Maria’s financial resources, her character and conduct, and the effect of any order on Katina. The Court found Maria’s motivations ill-founded, her evidence lacking, and her claim unsupported by the statutory criteria. The application was dismissed. The estate is to be distributed equally between Maria and Katina under s 70ZG.

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Re Donat; Robert Donat v Philippe Donat [2025] VSC 383

Judicial advice application for diligent administrator – whether debts should be paid and proceedings commenced seeking payment of debts – whether limited administrator should terminate license and seek possession of trust property

Application by Mr Lyttleton, the limited administrator pendente lite of the estate of Davena Donat, for judicial advice and directions regarding payment of debts, recovery of possession of estate property, and potential proceedings against Philippe Donat, the deceased’s son and occupant of estate land. The deceased died in November 2021, survived by her sons Philippe and Robert. Robert applied for probate of a 2013 will naming him sole beneficiary and executor. Philippe filed a caveat alleging Davena lacked testamentary capacity and seeking to uphold a 2009 will which provided for equal division between the sons. Pending resolution of that dispute, Mr Lyttleton was appointed limited administrator in December 2023 but initially not empowered to recover possession of the estate’s key asset, a farming property at Tuerong valued at $4 million, which Philippe continued to occupy. In March 2017, Robert (as administrator of Davena) and Philippe executed a deed under which Philippe received the Deniliquin property and was granted a time-limited licence to farm at Tuerong, on conditions including payment of all outgoings. Philippe was also to indemnify Davena for debts relating to the Deniliquin property. That licence expired six months after Davena’s death—on 21 May 2022. Mr Lyttleton sought judicial advice on five matters. Gray J directed that he was justified in paying various debts from the estate, including $9,592.45 to Mornington Peninsula Shire Council and $681.35 to South East Water for the Tuerong property, and larger amounts to Murray Irrigation Ltd ($130,148.96) and Edward River Council ($4,327.22) in connection with the Deniliquin property. The Court declared that Philippe is liable to indemnify the estate for the Tuerong property debts, but not at this stage for the Deniliquin-related liabilities, noting factual uncertainties and the need to avoid premature determination of contested issues. As to recovery of possession, Gray J accepted that “any licence Philippe had to occupy the Tuerong property has long since ended” and that he had no arguable proprietary interest justifying continued possession. His assertion that the Tuerong property was “partnership property” was rejected as lacking evidentiary foundation. Gray J observed: “merely foreshadowing a claim is insufficient.” Nonetheless, he declined to summarily determine the application for possession under Order 53 at this stage, deferring that matter to allow Philippe a final opportunity to articulate and support any lawful basis for his continued occupation. Mr Lyttleton was given judicial advice that he is justified in pursuing such an order. Gray J confirmed the principles governing limited administrators: their duty is to preserve the estate for those ultimately found entitled, not to maintain an unlawful status quo. As stated in Henderson v Executor Trustee Australia Ltd, an administrator pendente lite must “act impartially as between the potential beneficiaries” and preserve the assets, but “cannot prefer the interests of one… over another.”

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Damou v Damou [2025] VSC 14

Order 53 – TFM on foot – claiming crisp order – whether appropriate to make Order 53 in circumstances where order would have effect of extinguishing relief

The Supreme Court of Victoria considered an application under Order 53 for possession of property by an executor where the property was occupied by the executor’s brothers, one of whom (John) is a person under a disability. The executor, Chris Damou, sought recovery of land forming part of the estate of the deceased, arguing the occupiers had no consent to remain. John opposed the application and had filed a claim for further provision under Part IV of the Administration and Probate Act 1958 (Vic), including a claim for a Crisp Order. The Court acknowledged that while “a beneficiary only has a chose in action, or personal right, to compel proper administration of the estate by the executor”, and that “the existence of a Part IV claim under the APA does not alter the legal position”, this was not a complete answer to the Order 53 relief sought. Her Honour held that Order 53 relief is “intended to enable a speedy resolution in favour of the proprietor of the land subject to a dispute whereby trespassers are keeping the proprietor out”, but that such summary procedure should only be applied “in clear cases where there is no question to try”. The application was distinguished from Baird and Lancaster on the basis that John is a vulnerable person under a disability who has lived in the property for most of his life, and who may be entitled to a life interest under a Crisp Order. The Court noted its parens patriae jurisdiction and stated: “Relief under Order 53 should not be made lightly and should certainly not be made on the basis of assumed entitlements or distributions... where there is a prospect that... the Court may subsequently make a decision which alters those entitlements.” Her Honour found that making an order for possession could restrict the Court’s power to do justice once the Part IV claim is determined and adjourned the application until after resolution of the further provision claim.

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Re the Estate of Whiteman (deceased) (costs judgment) [2025] VSC 370

Executors commission claim – costs of unsuccessful application for commission

The Court declined to order that the costs of the second plaintiff’s unsuccessful application for executor’s commission be paid from the estate, instead ordering that she pay the first plaintiff’s costs personally and bear her own costs without indemnity. The application had previously been dismissed for failure to comply with s 65D of the Administration and Probate Act 1958 (Vic) and for other disentitling conduct, including failure to notify beneficiaries as soon as reasonably practicable and failing to meet the content requirements of the notice. The Court reiterated that “an executor who contravenes s 65D is not entitled to payment of a commission or percentage of the assets of the estate or a fee,” and concluded that any resulting harshness “cannot fairly be described as a harsh outcome”. The second plaintiff, a solicitor, submitted that the breaches were technical, that she had acted honestly, and that she had not caused loss to the beneficiaries. She argued her costs, and those of the first plaintiff, should be paid from the estate. She contended that the offers made by the first plaintiff were not valid Calderbank offers, as they were contingent on the consent of other beneficiaries and therefore could not form binding agreements. The Court agreed on this point, declining to award indemnity costs but still ordering costs on a standard basis. The Court was not persuaded that rules 63.01 and 63.26 of the General Civil Procedure Rules entitled the second plaintiff to costs from the estate. It found those provisions did not apply to an executor’s application for commission, which was not made for the benefit of the estate. Similarly, r 10.10 of the Administration and Probate Rules did not create any presumption that costs would be paid from the estate. The Court found that the second plaintiff’s disentitling conduct was not merely technical and that she had “sought to recoup the costs of the preparation of administration accounts and the preparation of her application for commission,” notwithstanding her failure to comply with statutory requirements. The Court held: “In making an application for executor’s commission the second plaintiff was pursuing her own personal interests and was not representing the interests of the estate.” The Court rejected the argument that an adverse costs order would have a chilling effect on the appointment of solicitors as executors, noting that if anything, the effect would be to discourage non-compliance with clear statutory obligations. In light of these findings, the Court concluded: “There is no reason to depart from the usual practise that costs follow the event… it would not be appropriate to allow the second plaintiff’s costs of her application to be paid from the estate.” Accordingly, the second plaintiff was ordered to pay the first plaintiff’s costs on a standard basis and without recourse to estate assets.

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In the matter of the estate of Rajendran [2025] VSC 371

Executors commission claim

An application by the executors, Sujatta Natalia Rajendran (‘Natalia’) and Andrew Brand, for commission under s 65 of the Administration and Probate Act 1958 in respect of the administration of a large and contentious estate. The deceased’s estate was valued at approximately $17.9 million and included real estate, significant shareholdings in Australia and overseas, jewellery, and loans to the family trust. The executors sought commission at 1.5% of the corpus and income of the estate, amounting to $243,669.29, with four beneficiaries opposing the application on grounds of alleged misconduct, lack of transparency, excessive and coercive commission requests, and delays in administration. Daly AsJ accepted that the executors had undertaken significant work, particularly Natalia, who claimed over 680 hours across various tasks. The Court noted that while “the executors have not kept detailed records of the time they have spent… they are not necessarily required to do so” and accepted the general accuracy of the evidence, though time spent on certain tasks—such as assisting with VCAT proceedings unrelated to estate administration—was excluded. The estate was described as “moderately complex”, and while criticisms of the executors were in some respects “unwarranted or overstated”, the Court found “some are legitimate, such as their complaints about the delays in the administration of the estate.” The judge declined to follow Re Buckingham (2016) 51 VR 453, which had been relied on by the objectors as authority for refusing commission in cases of maladministration. In distinguishing that case, Her Honour noted that while there were delays, these did not justify total disentitlement, particularly given the size of the estate, the hostility from beneficiaries, and the breadth of issues requiring resolution. Her Honour was critical of Natalia’s handling of dividend funds from overseas shares, which were paid into her personal Singapore bank account between 2019 and 2022. Although this conduct was undesirable, the funds were later transferred to the estate’s Australian account and distributed. Daly AsJ accepted the explanation but said the matter warranted caution in assessing commission. Her Honour held that “part of the work done by Natalia concerned tasks which were outside the scope of the administration of the estate, and ought not to be taken into account”, and that while the estate was large, it did not involve “higher-end” complexity. Ultimately, the executors were awarded commission at the reduced rate of 0.8% of the corpus of the estate, less fees already paid to the executors’ firm, finding this to be “just and reasonable” in all the circumstances.

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Perton v Walters [2025] VSCA 133

Issue of whether provision made under further provision claim remained an asset of the Estate

The Court of Appeal refused the applicant’s applications for leave to appeal in related proceedings concerning provision under Part IV of the Administration and Probate Act 1958 and a declaration about the nature of real property in the estate. The deceased, Mr Warring, left the Bell St Property to his daughter, Ms Perton, under his will and $200,000 to his long-term partner, Ms Walters. Ms Walters brought a Part IV application for further provision and also sought a declaration that the Bell St Property formed part of the estate at its unencumbered value as at death. The trial judge found in her favour on both counts, finding that Ms Perton was liable to pay a pecuniary legacy of $1.54 million for Ms Walters’ proper maintenance and support. Ms Perton sought leave to appeal, contending that the Bell St Property was encumbered at death by a 2012 mortgage given by the deceased as security for MCS’s debt to NAB, such that it had no value to the estate. The trial judge rejected that contention, finding that no contingent liability under the guarantee existed at the date of death. NAB had not made a demand under the guarantee, and there was no evidence MCS had defaulted. The Court held: “absent any past demand for which Don might be liable, there is no contingent liability existing at the time of his death.” On appeal, Ms Perton sought to argue that the mortgage itself imposed a direct liability on Mr Warring independent of the guarantee. The Court rejected this as a new argument not raised at trial. Applying Bird v DP (2024) 98 ALJR 1349, it held that the trial judge was entitled not to address it. The Court found the trial had been conducted on the basis that the mortgage secured the guarantee, and the only question was whether that guarantee had crystallised. Further, the Court found the new argument lacked merit and evidentiary foundation. The mortgage could not be construed as giving rise to liability in the absence of a triggering event. Mr Warring’s role in MCS had ceased years prior and no evidence established that the NAB advances were made at his express or implied request. The Court concluded: “the trial judge could properly conclude Ms Perton had ‘abandoned what had been an afterthought not run during the trial’.” Leave to appeal was refused in both the TEP and Part IV proceedings.

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Cottrell v Miglic [2025] VSCA 145

Mutual Will Agreement (see my end of year summary on Linkedin for more detailed consideration of the facts)

An appeal against the finding that Marilyn and Kurt Miglic entered into a binding mutual wills agreement in 1993, and upheld the trial judge’s rejection of a tracing or compensation claim in respect of a trust under Gertrude Cottrell’s will. Kurt and Marilyn made substantially mirror wills in 1993 under which the survivor would take the other’s estate, and Kurt’s daughters (the respondents) would inherit on the second death. Kurt left his will unchanged and predeceased Marilyn. Marilyn later made five new wills favouring her own family. The respondents claimed that the 1993 wills reflected a mutual wills agreement not to revoke without consent. The appellants, Marilyn’s nieces and nephew, denied the existence of such an agreement and relied on Marilyn’s subsequent conduct. The trial judge accepted the respondents’ evidence, supported by family members and contemporaneous conduct, that Kurt and Marilyn had orally agreed to mutual wills. The judge held that “the 1993 wills represented a significant departure from the previous wills of both Marilyn and Kurt” and that the change could only be explained by a binding agreement. Although the agreement was not recorded in the wills or explained to their solicitor, the Court noted this was not determinative. The key evidence included Kurt telling others he could not change his will without Marilyn’s consent and Marilyn saying she “would never betray your father” by altering her own. The appellants argued the evidence was equivocal and pointed at most to a moral understanding. However, the Court concluded that “the evidence established that Marilyn and Kurt had made a mutual wills agreement”, relying in part on the consistency between Kurt’s conduct, the 1993 arrangements, and Marilyn’s assent at a family meeting. The Court emphasised that “the judge’s conclusion is expressed in terms of an agreement … that they could not change their wills”, and found no error. The appellants also sought equitable compensation or tracing of up to $4.25 million, based on Marilyn’s handling of a capital sum from her mother Gertrude’s estate. Gertrude’s will created a life interest for Marilyn, with capital to go to the appellants. The judge found Marilyn held $60,000 on trust at her death but declined to infer further value. The Court upheld that decision, noting there was “no evidence that proceeds of Gertrude’s estate were used to acquire these assets” and any further tracing would require “impermissible speculation”. The appellants’ claim for equitable compensation or constructive trust was also dismissed as it raised “new allegations well outside the scope of the appellants’ case at trial”, and would have required “evidence and submissions not made at trial”. On costs, the Court upheld the judge’s decision to order costs from the estate. It was not ordinary adversarial litigation and involved issues caused by the testator’s conduct. Leave to appeal was granted on all grounds but the appeal and cross-appeal were dismissed.

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Wallace v Wallace [2025] VCC 135

TFM - domestic partner

The deceased, Sherry Jean Danks, died in May 2021 aged 68, survived by her domestic partner of 34 years, Ian Wallace. By her will dated 31 January 2020, she appointed their son Rhett as executor and left him the entire estate, valued at approximately $840,000. Ian, now 77 and suffering from dementia and other illnesses, resides in permanent aged care and is under financial administration by State Trustees. He brought an application under Part IV of the Administration and Probate Act 1958 (Vic) for further provision. Rhett did not file an appearance, and the matter proceeded as a default judgment. The Court accepted Ian was an eligible person and found that the deceased had a moral duty to provide for his proper maintenance and support. As the will made no provision for him, the threshold under s 91(2) was satisfied. The Court confirmed that the discretion to make a family provision order must be exercised conservatively, guided by the principle of a “wise and just testator judged by current community standards”, citing Gash v Ruzicka [2023] VSCA 189. Adequate provision extends beyond subsistence to include the security of accommodation, income and a fund to meet contingencies (Re Papaioannou [2019] VSC 844). The Court was satisfied that Ian had made significant contributions to the estate and to the deceased’s welfare, including caring for her in her final years. He had sold his property and contributed his redundancy payment towards the mortgage on the Yallambie property, the principal estate asset. The omission of any provision for him was unexplained and inconsistent with the conduct of a wise and just testator. The Court accepted Ian’s financial need was severe and largely caused by Rhett’s alleged misuse of Ian’s funds while acting as his attorney, which amounted to a breach of fiduciary duty. The Court noted Ian’s desire that his son still benefit from the estate, and the order sought—$425,000—was described as conservative. However, the Court ultimately made provision in the amount of $500,000. Judge Fraatz stated this amount was no greater than necessary to meet Ian’s proper maintenance and support and would provide “stable, certain accommodation and treatment, and a minimal fund to meet unforeseen contingencies”. Indemnity costs were sought against Rhett personally, but the Court ordered that Rhett, as executor, pay Ian’s costs from the estate on a standard basis.

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VCAT Guardianship and Administration

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MLO (Guardianship) [2025] VCAT 247

Consideration of whether interstate parties invokes Federal Diversity Jurisdiction

The Victorian Civil and Administrative Tribunal dismissed an application by the son of a deceased woman (MLO) for rehearing of an earlier decision refusing to order his sister, the former attorney under MLO’s enduring power of attorney, to produce accounts concerning alleged renovations to their mother’s property. The Tribunal found that the son had not established any proper basis for exercising its discretion to make such an order. The application arose under s 116(1) of the Powers of Attorney Act 2014 (Vic), with the son seeking production of documents from the daughter, including accounts relating to renovations said to have been conducted at their mother’s Fairfield property. The son’s original application was dismissed in September 2024 by Senior Member Steele, and he subsequently sought a rehearing under s 125. Deputy President Wilson conducted a de novo rehearing and concluded that the original order should be affirmed. The Tribunal found that “the son has not established that any order for accounting from the former attorney is justified under s 116 of the POA Act.” The daughter had provided evidence and documents, including receipts and an occupational therapist’s report, showing that the bathroom renovations were recommended for the principal’s benefit due to her progressive Alzheimer’s disease. The Tribunal accepted that the renovations, including a bathroom upgrade costing approximately $22,582, were carried out based on professional advice, that the mother was living in the property at the time, and that the works were not for the daughter’s personal benefit. Regarding roofing works, the Tribunal accepted the daughter’s position that these were minor repairs authorised by MLO herself before the daughter began acting under the power of attorney in April 2021. The Tribunal found that “there is no evidence or even suggestion that the roofing work prejudices the value of the mother’s deceased estate on her death.” Although the son raised allegations of misuse of funds and failure to disclose works, the Tribunal found there was no evidentiary basis to support the allegations. It noted the son’s suspicion and hostility toward his sister, observing that “there is a high degree of suspicion and mistrust by the brother towards his sister.” His allegations were not supported by valuations, bank records, or medical reports. Documents he presented as “valuations” were in fact informal price guides and did not address the impact of any renovations. The Tribunal confirmed that the son had standing to bring the application both before and after his mother’s death under ss 122 and 130 of the POA Act. However, it emphasised that standing does not imply merit. The Tribunal warned that “the statutory regime of the POA Act acts as a shield for the principal’s interests … [and] cannot be used as a sword for a collateral purpose,” such as obtaining evidence for a Supreme Court challenge to MLO’s 2018 Will, under which the son received a $50,000 legacy and the residue passed to the daughter. The Tribunal also rejected an argument that it lacked jurisdiction due to the parties residing in different states, finding the application did not invoke federal jurisdiction. The Tribunal rejected an argument that it lacked jurisdiction to determine the application because the parties resided in different states. This submission was raised by solicitors for the daughter, referring to the High Court’s decision in Meringnage v Interstate Enterprises Pty Ltd [2020] VSCA 30, and suggested that VCAT was exercising “federal diversity jurisdiction” which it could not validly do. The Tribunal firmly rejected that proposition, applying established authority from the High Court. Deputy President Wilson noted that the application was made under s 116 of the Powers of Attorney Act 2014 (Vic) and did not involve a “matter” in federal jurisdiction. The Tribunal accepted that its power under s 116 was administrative in character, exercised in the Tribunal’s “original jurisdiction” under State law, and did not involve the determination of a controversy between residents of different states falling within s 75(iv) of the Commonwealth Constitution. The Tribunal applied the reasoning in Crouch v Commissioner for Railways (Qld) (1985) 159 CLR 22 and Rochford v Dayes (1989) 84 ALR 405, which establish that whether a federal matter exists is not determined by the formal parties to the proceeding, but by examining the “substance of the controversy.” As stated in Crouch, a “matter” must involve a contest about legal rights, duties or liabilities which are susceptible of judicial determination. The Tribunal concluded there was no such contest here. The son’s application for production of accounts did not seek to establish or enforce a personal legal right, but was an application to protect the interests of the principal (or her estate) under the protective regime of the Powers of Attorney Act. The Tribunal adopted the language used in Shuttleworth and Pearson [2018] WASAT 112; 96 SR (WA) 377, which dealt with a similar statutory scheme and found that an application for production of accounts from a former attorney is administrative and protective, not adversarial. The Tribunal here noted that standing to apply for production of accounts under s 116 is conferred for the limited purpose of safeguarding the principal’s interests, and that “standing exists solely for the protection of the principal’s interests and those of their estate.” Such standing does not confer a personal legal right on the applicant, and accordingly, the application did not give rise to a “matter” within the meaning of s 75(iv) of the Constitution. Deputy President Wilson concluded: “I am also satisfied that the application before the Tribunal for production of accounts to VCAT does not engage federal jurisdiction as had been contended by the solicitors for the daughter.” Finally, the Tribunal rejected the son’s argument that the daughter had breached Tribunal directions by failing to provide documentation for roofing works. The directions required the daughter to provide a statement and supporting documents, “if any,” concerning the renovations, which she had done. The Tribunal accepted that any works falling outside the period of the daughter’s authority under the power of attorney were not within the scope of the order. It concluded that “the daughter provided a detailed response of her expenditures while acting under the power of attorney … She went further than what she had been directed to do.” Accordingly, the Tribunal affirmed the earlier dismissal under s 127 of the POA Act and dismissed the rehearing application.

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Trust Litigation

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Naaman v Jaken Properties Australia Pty Limited [2025] HCA 1

Whether an outgoing trustee has entitlement to be indemnified for expenses and liabilities incurred, and whether there is a fiduciary obligation owed to the former trustee by the incoming trustee

Issue was whether a successor trustee owes a fiduciary obligation to a former trustee in respect of the former trustee’s right to be indemnified out of trust assets. JPG, the former trustee of the Sly Fox Family Trust, had incurred liabilities and was replaced by Jaken as trustee. The appellant, Mr Naaman, was a judgment creditor of JPG and subrogated to JPG’s right of indemnity. He alleged that Jaken, after becoming trustee, fraudulently transferred trust assets to related parties, rendering JPG’s indemnity worthless, and thereby breached a fiduciary duty owed to JPG. The trial judge accepted this and held Jaken and the related parties liable for breach of fiduciary duty and knowing assistance. The majority of the Court of Appeal disagreed, holding that no fiduciary duty existed between a successor and former trustee in respect of the latter’s indemnity rights. Bell CJ dissented, concluding that such a duty arises once the successor trustee becomes aware of the former trustee’s indemnity claim. The High Court (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ in the majority; Gordon, Edelman and Steward JJ dissenting) dismissed the appeal. The majority confirmed that while a trustee’s right of indemnity confers a proprietary interest in the trust assets, that right does not give rise to a fiduciary obligation owed by the successor trustee to the former trustee. They reasoned that equity already provides mechanisms—such as interlocutory injunctions and appointment of receivers—to protect a former trustee’s interest pending final relief, without needing to superimpose fiduciary duties. As the Court stated, “a fiduciary obligation cannot exist other than as an incident of a fiduciary relationship,” which requires a duty of “absolute and disinterested loyalty”. That level of loyalty did not exist between successor and former trustees, who may have conflicting interests. The Court rejected Naaman’s argument that a fiduciary relationship should arise due to the vulnerability of the former trustee’s position or the priority of their interest. It noted that “vulnerability is not the touchstone of a fiduciary relationship,” and that equitable proprietary rights, even when known to the property holder, do not automatically give rise to fiduciary duties. In dissent, Gordon, Edelman and Steward JJ would have allowed the appeal, reasoning that the successor trustee’s assumption of responsibility over property in which the former trustee retained a proprietary interest gave rise to a fiduciary duty. They held that the obligation not to intentionally defeat the former trustee’s indemnity rights “is an obligation not to allow the successor trustee’s personal interests to conflict with its objectively assumed duty of loyalty”. Ultimately, the majority found that Jaken owed no fiduciary duty to JPG, and therefore the equitable remedies of compensation and account against the related parties, based on knowing assistance, were unavailable. The appeal was dismissed with costs.

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Re Estate of Stagliano [2025] VSC 39

Whether an Estate is a valid income beneficiary of a Trust resolution – severability of failed income resolution

The second question for judicial advice was whether, for the year ending 30 June 2020, the estate of Nicola Stagliano was a “beneficiary” under the Stagliano Family Trust such that the trustee was empowered to distribute income to it. The trustee had, by resolution dated 28 June 2020, resolved to set aside 50% of the trust income for “the estate of Nicola Stagliano”, and 50% to Patricia Stagliano. The relevant provision of the trust deed defined beneficiaries to include, among others, “the trustee or trustees of any trust… of which a beneficiary or discretionary object thereunder is a beneficiary of the trust” (cl 3(1)(f)). Clause 4 empowered the trustee to distribute income to beneficiaries “who shall be living or… in existence” at the time of distribution. The central issue was whether Nicola’s estate, at the time of the resolution, was a trust “in existence”, and whether the estate, or any person in that capacity, could qualify as a beneficiary under the deed. Harris J held that the estate was not a “trust” for the purposes of clause 3(1)(f). At the time of the resolution, letters of administration had not yet been granted; accordingly, the administration of the estate had not commenced. Her Honour applied well-established principles from Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 and Re Constantinou [2013] Qd R 219, holding that prior to administration, there is “no specific property capable of constituting the subject property of any trust” and no separate trust arises. Her Honour further observed that the trustee had purported to distribute income to “the estate” rather than to “the trustee of the estate”, which was inconsistent with the express terms of clause 3(1)(f), which referred only to trustees of trusts — not trusts themselves, and certainly not estates pre-administration. Nicola’s estate had no legal personality capable of being a beneficiary; nor was there any trustee of a qualifying trust in existence to whom the income could validly be distributed. All parties, save for Lisa and Susan (who disagreed but made no substantive submissions), accepted the estate was not a beneficiary for the purposes of the resolution. Her Honour concluded: “Nicola’s estate was not a ‘trust’ within the meaning of cl 3(1)(f) of the Deed at the time of the Resolution… [and] was plainly not a trustee.” As to severability, Harris J considered whether the defective distribution to the estate rendered the entire resolution void. While the parties made limited submissions on the point, her Honour made some comments as to whether a Trustee could have given real and genuine consideration observing the rule in Re Hastings-Bass / Owies in circumstances where the Trustee considered a non-object. No findings were made on this point. Accordingly, the Trust Question was answered in the negative.

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Aun v Vitim Pty Ltd & Ors [2025] VSC 265

Lost Trust Deed / Certainty of object

A dispute concerning the distribution of assets under the will of Mrs Chan Wai King, who died in 2014. Her will, made in 2005, left assets to various family trusts. Two of those trust deeds —the Aun Family Trust Number 2 (AFT2) and the Aun Family Trust Number 3 (AFT3)—could not be located. Henry Aun, one of the deceased’s sons, sought a declaration that the trust deeds had been lost and that their terms could be reconstructed from secondary evidence. Julia Ma, another of the deceased’s children and executrix of the will, sought directions as to the construction of clauses in the will referencing uncertain trusts. Her Honour Tsalamandris J found that both AFT2 and AFT3 had indeed been established and that the trust deeds were lost. The Court was satisfied that sufficient secondary evidence existed to reconstruct their terms, relying heavily on a 1992 letter of advice from the family’s solicitor, Mr Axup, of Wisewoulds. The Court accepted that AFT2 and AFT3 were created in March and April 1983 respectively, and had terms materially similar to another located trust deed, the AFT. The Court confirmed that the essential elements of a valid express trust—certainty of intention, subject matter, and object—were present in relation to AFT2 and AFT3. The Wisewoulds letter recorded the beneficiaries of AFT2 as Henry and Edward Aun, their parents, and “family members.” The central dispute concerned the scope of “family members.” Henry argued that this term should be confined to his children and remoter issue, while the trustee defendants contended it included siblings. Her Honour found that “the general class of beneficiaries under the AFT2 and the AFT3 does not extend to the siblings of Henry and Edward.” This conclusion was supported by the wording of other trust deeds and the detail of the solicitor’s advice. Her Honour noted that if siblings had been intended beneficiaries, “Mr Axup would have expressly noted this in his detailed and considered letter of advice.” The Court also accepted that the AFT2 and AFT3 included an appointor clause in terms similar to clause 20 of the AFT deed, vesting the power of appointment initially in Mr Aun, then the deceased. Although the trustee parties contended that Henry had relinquished his appointor role in 1993 following financial difficulties, the Court found the evidence of this alleged variation inadequate. Henry’s vague recollection of signing documents was not sufficient. “As the ones alleging the variation, the trustee parties carry the burden of proof in respect of this. … I am not satisfied to the requisite standard that there was such a variation.” Turning to Julia’s summons, the Court considered whether two references in the will—to “Henry’s family trust” and to “Aun Family Trust 1” (AFT1)—could be identified. In relation to the gift at clause 2(c) to “Henry in his capacity as trustee of his family trust,” Henry submitted that this should be construed as a reference to the AFT2. Julia argued that the description was too vague and the gift failed for uncertainty. Applying the armchair principle and referring to extrinsic evidence including a 2002 asset list prepared by Henry which listed “Henry’s family trust to be established,” Her Honour concluded that the gift failed. “From the position of the deceased’s armchair at the time she made the Will, there remains irreconcilable uncertainty as to which trust the deceased was referring to in clause 2(c).” Henry’s alternative argument—that he could now create a trust which would meet the description—was rejected. Her Honour noted that there were “no prior decisions where a post-death creation of a trust had been permitted to overcome uncertainty as to identification of a beneficiary under a will.” The Court concluded that “such a trust did not exist at the time of the deceased’s death. It cannot be established now to circumvent my determination that the intended beneficiary of clause 2(c) is uncertain.” Accordingly, clause 2(c) failed for uncertainty and the property at 24-26 Hunter Street fell into the residuary estate. The Court was, however, able to identify the AFT1 mentioned in several other clauses of the will. Her Honour accepted Julia’s submission that AFT1 referred to the Aun Family Trust (AFT), the first of the Australian trusts created in 1983, and not the similarly named AFT 1984 or any other trust. The Court invited submissions on the form of final orders and costs.

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Re AM McClelland Estate [2025] VSC 343

Trust created by Will – creation of charitable trust for purpose – charitable trust not able to carry out purpose without further contributions – amendment of terms of trust – variation of trust by way of cy-près scheme

Application to approve a cy-près scheme to vary the terms of the charitable trust established under the Will of Annie May McClelland, which created the McClelland Sculpture Park and Art Gallery in Langwarrin. Ms McClelland’s 1961 Will bequeathed land and assets to establish a charitable trust for public educational purposes through an art gallery and cultural hall, with a stipulation that public admission be free of charge. The Trust has operated the Gallery since 1971, supported largely by private philanthropy and public funding. However, the Gallery's operations are no longer financially sustainable without reform. The Trustees sought orders to vary the Trust’s terms and restructure its governance, including allowing entry fees and expanding the trustees’ powers. These changes were sought under the cy-près doctrine pursuant to s 2 of the Charities Act 1978 and s 63 of the Trustee Act 1958. The Attorney-General, representing the public interest, did not oppose the application. Orders were made prior to reasons being published to facilitate immediate financial restructuring. The Court was satisfied that the original purposes of the Trust had ceased to provide a “suitable and effective method” of using the Trust property, within the meaning of s 2(1)(e)(iii) of the Charities Act, due to the impracticality of continuing to offer free admission without jeopardising the Trust’s ongoing operations. Harris J confirmed that under the legislative cy-près test, strict impossibility was no longer required: “The test is whether the original purposes of the trust have ceased to provide a suitable and effective method of using the property... having regard to the ‘spirit of the trust’”. Her Honour accepted the plaintiffs’ submission that “the spirit of the gift” reflected an intention to provide public access to both the gallery and surrounding natural environment for educational and artistic appreciation. She held that financial sustainability required removing the restriction on charging admission and broadening the trustees’ powers to acquire and dispose of artworks, raise funds, and administer the Trust. However, the Court limited the power to dispose of Trust assets by excluding the power to sell the Original Property on which the Gallery is situated, as it was integral to the bequest’s core intention. The Court also made vesting orders under s 51(2)(b) and s 71(4)(n) of the Trustee Act, transferring property to a newly appointed corporate trustee, and terminated the custodian trusteeship. The Trust was renamed the “McClelland Arts Trust” to better reflect its contemporary functions and enhance public engagement. Costs were ordered to be paid by the Trust.

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Property and Equitable Claims

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Saad v Saad & Anor [2025] VSC 15

Removal of Caveat – claim equitable grounds – estoppel – constructive trust

The Supreme Court of Victoria considered an application by the plaintiff, Khadigi Saad, to remove a caveat lodged by her son and daughter-in-law, Waleed and Hala Saad, over her residential property in Brunswick West. The defendants alleged they held an equitable interest in the land based on a purported 1987 agreement with Khadigi’s late husband, Abboud Saad, giving rise to proprietary estoppel, a constructive trust, or a common intention constructive trust. The plaintiff denied the existence of any such agreement, asserting that the relevant land was gifted to her and her husband to facilitate a family development. The Court applied the established two-stage test under Piroshenko v Grojsman and Carbon Black Lab Pty Ltd v Launer: whether the caveators could show a prima facie case of an equitable interest and, if so, whether the balance of convenience favoured maintaining the caveat. Her Honour Gobbo AsJ noted that “the caveator must show that they have a prima facie case with sufficient likelihood of success to justify the maintenance of the caveat, and the preservation of the status quo pending trial.” Waleed relied on oral representations made by Abboud, allegedly promising him a proprietary interest in exchange for contributing land from his adjoining property and financial support towards the development. Hala’s evidence partially corroborated Waleed’s account but differed materially on key terms. The plaintiff, Khadigi, denied any such promise was made, contending the parcel of land was gifted and that funding for the development came from the sale of another property and family loans. Her Honour found significant inconsistencies and contradictions in the defendants’ evidence. Notably, a solicitor’s letter and draft deed sent on behalf of Waleed and Hala in 2023 asserted only a trust over a portion of the land and made no mention of the broader equitable claims or the purported option to purchase, undermining the credibility of their later assertions. As Gobbo AsJ observed, “the version of events contended for by Waleed and Hala in respect of the existence of the alleged 1987 Agreement are further problematic.” The Court also found the evidence of alleged financial contributions lacked sufficient corroboration or detail. Waleed’s claim to have paid 60–70% of his earnings to Abboud from 1987 to 1996 was unsupported by records or corroborative witnesses, despite his assertion that the agreement was “well known” to the entire family. Her Honour remarked on the “inherent unlikeliness” of Waleed’s version of events and noted that none of his 11 other siblings were called to corroborate the agreement. Ultimately, the Court held that the defendants failed to establish a prima facie case and that the balance of convenience favoured removal of the caveat. Her Honour concluded that maintaining the caveat risked unjustly preventing Khadigi from settling a contract of sale, observing that “there was no evidence before me from which I can safely conclude that Waleed and Hala have demonstrated a prima facie case as to Waleed’s alleged financial contributions to the Development.” The caveat was ordered to be removed. Note – there was subsequently an application to the Court of Appeal. A stay of the orders was refused

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Matteo v Matteo [2025] VSC 196

Presumption of Advancement – Unconscionable Conduct

The Supreme Court of Victoria dismissed Emilia Matteo’s claim against her grandson Robert Matteo for a declaration that he held a property on resulting or constructive trust, or alternatively that he had engaged in unconscionable conduct. Emilia had advanced substantial funds toward the purchase of a property in Yea (‘the Melbourne Road property’) in 2018, following the sale of her farm. The property was registered in Robert’s name after Emilia nominated him as purchaser. Emilia alleged that this nomination was induced by misrepresentations from Robert that her pension would be jeopardised if the property were purchased in her own name. She further claimed to have advanced the full purchase price by a combination of bank transfers and $90,000 in cash. Emilia contended that a resulting trust arose because she had provided the entire purchase price and had intended to retain beneficial ownership. She alternatively pleaded unconscionable conduct, relying on her age, limited English proficiency, and emotional dependence on Robert as amounting to a special disadvantage. The Court found that while Emilia did contribute substantially to the purchase, the evidence did not support a finding that the contributions were anything other than gifts to Nicola, her son. Robert contributed approximately $92,000 through a loan secured against the property. Her Honour held that the presumption of resulting trust had been rebutted, noting that “[t]he presumption of advancement is engaged in respect of the funds Emilia transferred to Nicola, her son” and that “the evidence supports that these funds were advanced as a gift.” Her Honour was not satisfied that Emilia was under a special disability. The evidence showed Emilia was a capable, financially experienced woman who had previously managed property transactions and ran her own dressmaking business. “In my view, at all material times, Emilia knew exactly what she was doing.” Emilia’s claim to have given Robert $90,000 in cash was uncorroborated and inconsistent with the fact that a secured loan was obtained to fund the shortfall. Her explanations for the source of the alleged cash, including having $250,000 in $5 notes hidden at home, were not accepted. “There are significant inconsistencies and improbabilities in Emilia’s evidence regarding the alleged cash payments,” and her Honour concluded that “the more probable explanation is that the Secure Funding loan was used to complete the purchase.” A draft will prepared in 2020, naming only Emilia’s children (and not Robert) as beneficiaries and reducing Nicola’s share by $400,000, was also inconsistent with Emilia’s pleaded case. The Court observed that the draft will supported the defendant’s case that Emilia had made a substantial gift to Nicola around the time of the Melbourne Road acquisition. Emilia’s alternative claim of unconscionable conduct failed on similar evidentiary grounds. Her Honour referred to Stubbings v Jams 2 Pty Ltd and Kakavas v Crown Melbourne Ltd, and found that the evidentiary threshold for a special disability had not been met. Emilia had access to professional advisors, engaged solicitors for other transactions, and was familiar with property dealings. The central question was whether Emilia intended to retain beneficial ownership when the funds were advanced. That intention was not proved on the balance of probabilities. Accordingly, the Court dismissed Emilia’s claim in its entirety.

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461 Hampton Street Investments Pty Ltd (ACN 644 677 976) v Registrar of Titles [2025] VSC 204

Vesting order in respect of land never conveyed through three generation of estates

The Supreme Court of Victoria was asked to make vesting orders in respect of a thin strip of land (“Waley Land”) approximately 30 metres long and 36 cm wide that had been overlooked in the administration of three successive estates. The land remained in the name of Theodore Waley, who died in 1977. The plaintiffs were a property development company and the beneficiaries and executors under the relevant wills. The First Plaintiff had already constructed an apartment building over the land and sought urgent relief to enable registration of a plan of subdivision and settlement of off-the-plan sales. The evidence established an unbroken chain of representation: probate of Theodore’s will had passed to his wife Irene, then to her daughter Diana, then to Diana’s executors Barbara and Suzanne, the Third and Fourth Plaintiffs. Gwenneth, the Second Plaintiff, was a co-residuary beneficiary under Irene’s will and a surviving beneficiary under Diana’s will. The Waley Land was the only part of the estates that remained unadministered. The plaintiffs had entered into a deed under which the First Plaintiff agreed to pay the other plaintiffs in exchange for the transfer of the Waley Land. They sought vesting orders under s 48(2) of the Administration and Probate Act 1958 (Vic) and ss 51 and 58 of the Trustee Act 1958 (Vic), to enable the Second, Third and Fourth Plaintiffs to become registered proprietors and effect the transfer. Finanzio J accepted that although the matter could technically be resolved by ordinary conveyancing processes, the delay involved would cause significant prejudice to the First Plaintiff, which had completed construction, obtained finance, and begun selling apartments. His Honour considered whether the application was barred by the ‘last resort’ principle arising from cases like Re Purkiss and Dotter v Evans, which caution against vesting orders where ordinary conveyancing options remain. His Honour reviewed the authorities and accepted the reasoning in Haslam v Money For Living (No 2) and Marchesi v Registrar of Titles, which make clear that while the ‘last resort’ principle is a relevant consideration, it does not fetter the discretion under s 51 of the Trustee Act. As stated in Haslam, “it would be improper” for the last resort principle to operate as a rule of law. Similarly, Ferguson J in Marchesi observed: “Whilst caution must be taken in making such orders, I do not think that it is necessary to exhaust every other avenue if doing so would not serve any practical purpose.” Finanzio J held that this was an exceptional case. The land was of trivial dimension, the interests of all relevant parties were aligned and represented before the Court, and there was no risk of duplicate titles or fraud. The delay involved in using ordinary processes served no practical purpose. As his Honour observed, “there would be no practical purpose in this unusual case to decline to exercise the power expressly given to the Court to act expediently when the circumstances so require and where all necessary precautions have been taken.” Accordingly, the orders were made.

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Tax

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Australian Investment & Development Pty Ltd v Commissioner of State Revenue [2025] VSCA 47

Appeal re primary production exemption for land tax purposes

The Court of Appeal refused leave to appeal from Croft J’s decision dismissing the applicant’s challenge to land tax assessments for the 2014–2016 years on the basis that the land was not exempt under s 67 of the Land Tax Act 2005 (Vic). The applicant had claimed exemption on the basis the land was used primarily for the business of primary production (growing Cassinia shrubs for brush fencing), and that its principal business and the full-time engagement of its sole shareholder related to that use. The Court upheld the trial judge’s conclusion that none of the three requirements under s 67(1)(a)(iii), 67(3)(a), or 67(3)(b)(ii) were met. There was no error in the finding that Cassinia cultivation was not the primary use of the land, given the range of other activities including agistment, development planning, and commercial dealings unrelated to primary production. The judge was entitled to find that “despite Cassinia being widespread on the Land, it — or more particularly, its cultivation for the purpose of sale — did not give its character to the whole of the Land.” The applicant’s submission that the judge peremptorily dismissed significant evidence was rejected. The Court noted that while the judge adopted parts of the Commissioner’s submissions, there was no vitiating error. As the Court observed, “judicial adoption of submissions is not of itself indicative of error” and “no failure of process has been demonstrated”. On the challenge to the judge’s treatment of Mr Tran’s evidence, the Court acknowledged the judge’s misstatement attributing criticism of Mr Tran to the Commissioner, but held it did not affect the outcome. The judge’s credibility findings regarding Mr Apswoude, including his evidence about reconstructed business plans, were open on the evidence. Leave to appeal was refused.

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Legal Practice and procedure

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Wellington v Metcalf (No 2) [2025] VSC 243

Can a respondent in a Costs Court taxation seek to void a costs agreement as between the applicant and a law practice?

The Costs Court considered whether the applicant’s costs claim against the respondent breached the indemnity principle, given her costs agreement with her solicitors was void. The respondent argued that the applicant was not liable to pay her solicitors, and therefore could not claim costs in excess of what she was legally required to pay. The initial costs agreement between the applicant and Verduci Lawyers was entered into in writing in November 2020. The applicant made payments under that agreement. However, by September 2021, the original estimate had been exceeded, and no updated disclosure had been provided, contrary to s 174 of the Legal Profession Uniform Law (LPUL). As a result, the initial agreement became void under s 178. In early 2022, the applicant’s solicitors proposed a no-win/no-fee arrangement due to her financial concerns. An oral agreement was reached that legal costs for the preparation and conduct of trial would only be payable if the applicant was successful. She was ultimately successful at trial and awarded indemnity costs. The oral agreement, however, did not comply with the formal requirements of ss 180 and 181 of the LPUL and was therefore also void. The applicant did not challenge her liability to Verduci Lawyers, nor the quantum of costs. The respondent objected to taxation of costs on the ground that, due to the void agreement, the applicant had no legal obligation to pay her solicitors and could not recover costs under the indemnity principle. The Court rejected that submission. Ierodiaconou AsJ confirmed that “although the oral costs agreement is void, it does not follow that there is no legal obligation to pay legal costs.” The Court found the applicant continued to retain Verduci Lawyers, and a contractual or quantum meruit liability existed. The absence of invoices did not negate liability. Her Honour confirmed the principle that “the successful litigant’s liability to pay their solicitors is central to being able to recover costs” and referred to the presumption of a retainer, noting that an unsuccessful party must “prove that under no circumstances does the client have any liability to pay costs to his or her solicitors.” That burden had not been discharged. Citing Wills v Woolworths [2022] FCA 1545 and Royal v El Ali (No 3) [2016] FCA 1573, the Court held that even where a costs agreement is void, a liability to pay fair and reasonable costs remains under s 199(2) of the LPUL. The Court noted that the applicant’s bill of costs ($664,674.60) was substantially less than the total incurred ($878,689.78), undermining the respondent’s suggestion that taxation exceeded liability. The Court dismissed the respondent’s application to stay the taxation pending costs assessment, observing that the respondent lacked standing to apply for an assessment under s 198 of the LPUL and that neither the applicant nor her lawyers sought assessment. The objection based on the indemnity principle was disallowed. Taxation was ordered to proceed.

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Vrantsidis v Milekovic [2025] VSC 255

Application under Civil Procedure Act – breach of overarching obligations

An application by a beneficiary, Freda Vrantsidis, for the removal of her sister, Chrisoula Milekovic, as executor of their late father Stavros Vrantsidis’s estate. Freda alleged that Chrisoula failed to comply with the terms of a settlement deed and had not taken steps to finalise the estate, despite the main asset, a residential property, having been sold in 2022. Chrisoula responded with an application under s 29 of the Civil Procedure Act 2010 (Vic) alleging breaches of overarching obligations by Freda and her former solicitor, including misleading the Court and commencing proceedings without a proper basis. The Court found that Chrisoula had not complied with her executorial duties and had failed to administer the estate in a timely and responsible manner. More than five years after the deceased’s death, the estate remained unfinalised. Her Honour noted: “The defendant is disqualified from continuing to act as executor where she has failed to fulfil her executorial duties in a timely and responsible manner.” The Court rejected the s 29 application. Her Honour found that the evidence did not support a breach of overarching obligations. In particular, the failure to exhibit certain correspondence in the plaintiff’s affidavit was not misleading or deceptive, nor was the plaintiff under a duty to disclose that material given the proceeding was not brought ex parte. The Court held that “there is no substance to the defendant’s complaint that the plaintiff commenced this proceeding without a proper basis or that her solicitor failed to comply with her professional obligations.” The plaintiff had commenced proceedings in 2021 after negotiations concerning a buy-out of her share in the property broke down. The parties later entered into a settlement deed providing for the sale of the property, division of proceeds, and tax arrangements. While the property was sold and proceeds distributed, Chrisoula failed to obtain a private ruling regarding CGT, did not finalise the tax return, and withheld the plaintiff’s balance entitlement. Despite acknowledging various disputes between the defendant and former solicitors and tax advisers, Her Honour was not satisfied that these excused the defendant’s inaction. The defendant’s insistence that the plaintiff was to blame for delays and her allegations of manipulation were rejected. Her Honour observed that the defendant’s “entrenched position and unwillingness to comply with the terms of the settlement deed have frustrated the finalisation of the estate.” The Court ordered the removal of the defendant as executor and appointed a new administrator. It also made directions that the administrator was justified in not seeking a private ruling and in proceeding with the estate’s finalisation on the basis that CGT liability would be borne by each beneficiary equally. The s 29 application was dismissed.

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Re Safatli [2025] VSC 280

Non-party costs orders

An application for a non-party costs order against Mr Shaba, a conveyancer who provided erroneous legal advice that led to the appointment of an incapacitated person as administrator of a deceased estate. The deceased, Ali Safatli, died intestate in 2020. Letters of administration were granted in 2023 to his father, the plaintiff, who was later discharged as administrator due to incapacity. His son Yousef was appointed in his place and brought the costs application as litigation guardian. Yousef initially sought letters of administration in his own name but, after failed attempts, approached Mr Shaba for assistance. Yousef informed Mr Shaba that the plaintiff was elderly and had dementia. Nonetheless, Mr Shaba advised that Yousef could obtain a grant in the plaintiff’s name using an enduring power of attorney, and could also sign affidavits on his father’s behalf. This advice was plainly wrong. As Moore J observed, “Mr Shaba provided fundamentally wrong advice in at least two respects: that a grant of administration can be made to a person who lacks legal capacity and that a person can swear or affirm an affidavit on behalf of another.” Relying on this advice, Yousef executed and lodged affidavits in the plaintiff’s name. The grant was issued, but the Court later removed the plaintiff as administrator once the lack of capacity became apparent. The Court ordered that Mr Shaba be heard on the issue of costs, but he failed to attend the hearing despite stating in an affidavit that he would. That affidavit did not dispute Yousef’s account. The plaintiff sought a non-party costs order pursuant to s 24(1) of the Supreme Court Act 1986. Counsel submitted that the Court had discretion to order costs against a non-party where it was just to do so, citing Knight v FP Special Assets Ltd and Bakers Investment Group Pty Ltd v Caason Investments Pty Ltd. The plaintiff argued that Mr Shaba’s conduct was not merely a clerical error but the direct cause of the proceedings and that he was not a volunteer, having charged a fee. Moore J accepted that Mr Shaba’s advice caused the need for the proceeding, but held that the threshold for enlivening the discretion to award non-party costs had not been met. The Court of Appeal in Kyne v Gerard Brandrick & Associates Pty Ltd reaffirmed that the Knight discretion is only enlivened where the non-party is a “real party” to the litigation—one who actively participated in it and had an interest in its outcome. That was not the case here. His Honour found, “there is no suggestion that Mr Shaba was the ‘real party’ in the proceeding.” Similarly, reliance on NAGM was misplaced. Although that case permitted non-party costs orders against lay advocates, it required that the non-party had participated in the litigation, which Mr Shaba had not. The application was dismissed, but the judgment was referred to the Victorian Legal Services Commissioner to consider whether Mr Shaba had contravened s 10 of the Legal Profession Uniform Law Application Act 2014 by engaging in legal practice without a practising certificate.

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Schweitzer v Vallance [2025] VSC 302

Affidavit not sworn in accordance with statutory requirements – whether self-executing orders were not complied with

Issue was whether the plaintiff’s supplementary affidavit complied with the Oaths and Affirmations Act 2018 (Vic) and r 43.01(5) of the Rules, and whether her failure to properly swear the affidavit triggered a self-executing order dismissing the proceeding. The plaintiff was required to file an affidavit providing particular discovery by 14 November 2024. Her solicitor, Mr Dale, prepared a supplementary affidavit by electronically pasting her signature onto the document, which he then presented to her for swearing in his car. He believed this method complied with s 18A of the Oaths and Affirmations Act. The Court found otherwise, holding that “the plaintiff did not ‘sign’ the supplementary affidavit at all, let alone in his presence (physical or virtual)”, and that this “failure to sign the affidavit personally undermines [the] acknowledgment” of the oath’s truth. The affidavit did not comply with either the Act or the Rules. The Court rejected the first defendant’s submission that the explanation provided by Mr Dale was a recent invention, noting there was no evidence to justify a finding that he had lied. While the affidavit was defective, the Court held it had been filed in good faith and amounted to an attempt to comply with the October Orders. Her Honour held that “there was compliance with the October Orders by reason of the filing of the supplementary affidavit despite it not having been sworn in accordance with the requirements of the O&A Act or the Rules.” Even if this was wrong, she would have set aside the resulting judgment under r 24.06, noting that any non-compliance was due to the solicitor’s misunderstanding, not the plaintiff’s fault. The summons was dismissed, and the plaintiff was directed to re-swear or affirm the affidavit within 14 days.

Re the Estate of Castle [2025] VSC 331

Discovery in a Part IV proceeding –application was refused and notice to produce set aside

The plaintiff Melissa Castle sought discovery in her Part IV application under the Administration and Probate Act 1958 (Vic) in relation to her father’s estate. The deceased, John Castle, left an estate valued at over $15 million, though most of his wealth was tied up in trusts and complex property developments, particularly the “Crownlea” project. The plaintiff also sought production of the same documents by Notice to Produce. The plaintiff argued that discovery was necessary to determine the true value of the estate, the benefit she received under the Will, and any benefits provided to her during the deceased’s life. The estate included corporate and trust structures, notably the Castle Family Trust. The plaintiff submitted she lacked transparency as to the value and governance of the development entities and trusts and pointed to suspicions and unexplained discrepancies in the accounting of her purported benefits, including a $3,000 per month loan, excess salary, and entries totalling over $260,000 with little or no supporting documentation. Barrett AsJ dismissed the application, finding the threshold of “special circumstances” was not met. His Honour held that extensive discovery is generally inappropriate in TFM proceedings, citing Harris v Bennett (2004) 8 VR 425 and Re Borthwick (1948) 1 Ch 645, and warning against allowing the proceedings to descend into a “travesty of wasted time, money and other resources”. His Honour reiterated that discovery in this context must not be based on speculation or a mere “train of inquiry” (Dinakis & Zurcas v Zurcas [2013] VSC 79). The Court accepted the plaintiff's concern that valuation of the estate was complex and warranted scrutiny, but held that the appropriate vehicle was the appointment of an independent expert rather than discovery. “I consider the appropriate course to be the appointment of an independent expert to value the estate.” The Court directed the parties to confer on the expert’s identity, the questions to be asked, and the documents to be provided. The Court further observed that the plaintiff had issued separate proceedings to seek trust documents as a beneficiary of the Castle Family Trust, and held that such proceedings were the appropriate forum for those issues. His Honour distinguished the principles governing a beneficiary’s access to trust documents from those that govern discovery in a Part IV claim, noting that “a beneficiary’s right to access and inspect trust documents itself does not constitute ‘special circumstances’” justifying discovery. The plaintiff also sought documents under a Notice to Produce, but the Court found that it was being used impermissibly as a substitute for discovery and set it aside: “The plaintiff’s reliance on a Notice to Produce is contrary to the general principle that a Notice to Produce ought not be used as a substitute for discovery.”