Wills and Estates - Recent Estate Litigation Cases

The law in trusts, equity and probate is constantly developing, with new court decisions handed down every month. 

The principles arising from recent decisions in the second half of 2022 touch on issues ranging from the disposal of a body to the procedure for remotely making a Will. 

A snapshot of just some of these cases and their key principles is outlined below.

We appreciate that not all of these cases will be of interest to everyone - but this is what our estate litigation team thrives on! 

• Fahey v Bird [2022] VSC 533 (Mukhtar AsJ)
  

  A rare example of an application for the termination of a trust in which the Plaintiff (who was 20) was found to have received the sole, absolute and indefeasible vested entitlement but which was deferred under the Will until she turned 21. The Court found that the Plaintiff could give a valid discharge for the gift (under the Age of Majority Act 1977, s 71) and orders were made under the principles espoused in Saunders v Vautier [1841] EngR 629; (1841) 4 Beav 115; 49 ER 282 (CPT Custodian v Commissioner of State Revenue (2005) 224 CLR 98 being the modern formulation)) to allow the Plaintiff to access her gift in view of her dire financial circumstances.
  
  

• Re Leopold; application by Gasbarro v Roache [2022] VSC 579 (McMillan J)

  A decision dealing with the proper form of an application for a grant in relation to an informal Will and related issues about standing. The principal beneficiary was the deceased’s minor child. That child’s parent resides in Italy. The Court accepted that the Plaintiffs (acting as attorneys for the mother) had standing to make the application. The Court was satisfied that the appropriate grant was a limited grant durante minore aetate under r 5.01 of the Supreme Court (Administration and Probate) Rules 2014. The Court found that r 5.02 (grant in peculiar circumstances), which is used for attorney grants, and s 30 Trustee Act 1958 (permitting the delegation of a trust while the trustee is abroad) were not relevant.
  
  

• Re Curtis [2022] VSC 621 (McMillan J)

  The Court examined in detail the requirements of the remote execution procedure that now applies to Will making in Victoria and, in particular, the requirement that the testator and witness clearly see one another’s signatures being made. The Court was not satisfied that the Will was executed in accordance with the remote execution procedure but was satisfied that the Will ought to be admitted under s 9 of the Wills Act 1997. 
  
  

• State Trustees v Wu [2022] VSC 756 (Garde J)

  The deceased died intestate and was survived by a son and no other relatives. An application was made by State Trustees Limited (STL) and the Royal Melbourne Hospital to dispose of the deceased’s body. The son had the best right to administer the estate and would have the power to dispose of the body. However, he had not provided any instructions to the hospital for three months since the deceased died. STL were authorised to make arrangements to dispose of the body.
  
  

• Re Sambucco [2022] VSC 699 (Moore J)

  The Court considered an application to revoke a grant of letters of administration on intestacy. The deceased had an estate worth in excess of $5m. He made a Will in 2015 which gave his estate to his family (parents and siblings). In 2019 he participated in a ‘religious wedding ceremony’ with his (then) partner. The question for the Court was whether the marriage was valid and therefore revoked the Will under s 13 of the Wills Act 1997. The deceased and his partner had given notice of intention to marry but, due to health reasons, engaged in a ceremony prior to the usual minimum notice period expiring. They and their celebrant were mistaken in their belief that the ceremony would not lead to a binding marriage due to non-compliance with the formal requirement of the Act. For that reason, they referred to it as a ‘religious ceremony’ and a certificate of ‘commitment’ rather than ‘marriage’ was issued. It was alleged by family members that the marriage was invalid, and that the deceased did not consent to it. The Court found that the parties intended to be married and were not mistaken about the nature of the union they intended. Rather, they were only mistaken about the legal effect of the ceremony. Moore J stated that “a mistake as to the effect of a ceremony does not vitiate a party’s consent to a marriage”. The marriage was valid, and a declaration made that the Will had been revoked.

Our experienced wills and estates lawyers take the time to stay up to date to support their practice in complex estate litigation matters - and so that you don’t have to.

If you have any legal issue touching on wills, trusts, executorial duties and estate administration that might result in litigation, contact us on 03 9629 7411.

Disclaimer: The content provided in this publication is intended for general informational purposes only and should not be construed as tailored advice to address specific individual or organisational circumstances. While we strive to offer accurate and up-to-date information, we cannot guarantee its accuracy at the time of receipt or its continued accuracy in the future. Readers are encouraged to seek professional advice or consult relevant authorities regarding their unique situations.