Key decisions
- Estate of Tanner [2025] NSWSC 1078 (hotchpot)
- Estate of Bernadette Therese Campion [2025] NSWSC 1126 (probate requisitions)
- Estate Joyce Bull [2025] NSWSC 1232, Chie v Veale [2025] NSWSC 1143, Bushell v George [2025] NSWSC 1347 and Evans v Evans [2025] NSWSC 1263 (family provision)
- Goodman v Bryant [2025] NSWSC 1240 (construction)
- In the Estate of Giuseppe Pellegrino (deceased) [2025] ACTSC 421 and Irdi v Lang [2025] WASC 421 (disclaimer)
Application of hotchpot
Hilda Tanner made a will in 2021, leaving the residue of her estate to her three children, John, James and Susan, in equal shares. By clause 5, the will also directed the value of the parcel of land called ‘Eyton’ transferred to John by the testator and her late husband, be treated as an advance to John, and brought to account and taken in satisfaction of the gift of residue. ‘Eyton’ had been transferred from the testator and her husband to John and his wife in 2001. After the testator’s death in 2024, an issue arose as to the meaning of clause 5.
The Court, in Estate of Tanner [2025] NSWSC 1078 (Bennett J), discussed the origins, development, manner of application and manner of expression of the doctrine of hotchpot. The outcome was that, on the true construction of the will, John’s entitlement to a third of the residue of the estate was subject to the direction in clause 5 (at [13] and [72]-[79]). The Court found no reason to depart from ‘the usual rule as to costs’ and ordered John to pay the costs of the executor defending the application for a declaration as to the meaning of the will (at [90]).
Practice pointer: approach to probate requisitions
The Court, in Estate of Bernadette Therese Campion [2025] NSWSC 1126 (Kunc J), provided pointers to the profession about dealing with requisitions issued by probate registrars:
‘Where a practitioner (or self-represented applicant) is in genuine doubt about the meaning of a requisition or is of the view that there has been an obvious error or misunderstanding, a brief, courteous written inquiry to the Court for clarification is appropriate. However, once the Court has replied, if any doubt remains, counsel’s advice should be sought or my fourth observation should be engaged’ (at [12).
His Honour’s ‘fourth observation’ was that where:
‘ … an applicant disagrees with the requisition, the Court does not expect there to be further correspondence other than a request for reasons (if they have not already been given). The requisition is an act of a Registrar. This means that the proper course is for the dissatisfied applicant to file a motion for review of the requisition under UCPR r 49.19 to be dealt with by the Court in the ordinary course’ (at [13]).
Alternatively:
‘… if an applicant does not wish to challenge the requisition, but is of the view that in order to comply with the requisition directions are required, the matter should be listed in the usual way before the Registrar in Probate, who may make the necessary directions, or refer the matter back to the relevant Registrar or to the List Judge’ (at [14]).
The Court reminded practitioners of their duty of candour and courtesy in ‘communications with the Court in relation to requisitions. They are not casual administrative encounters’ (at [11]). In the course of the judgment, the Court provided figures on the workload of the probate registrars. They handled 30,801 uncontested applications last year whereas there were 465 contentious applications dealt with by the Court.
Recent decisions making family provision for adult children
In Estate Joyce Bull [2025] NSWSC 1232 (Lindsay J), the testator gave her household goods, jewellery and personal effects to her daughter. She gave the rest of her estate to her granddaughter. The testator’s 58-year-old son sought family provision to meet a substantial mortgage of $481,500. The Court made an order for $250,000 out of an estimated net estate of $783,965. The son obtained his costs up to 31 March 2025 on the ordinary basis and thereafter on an indemnity basis.
Chie v Veale [2025] NSWSC 1143 (Williams J) involved a 68-year-old son, David, seeking an order for provision from the estate of his mother. By her last will, made in 2008, the mother left the majority of her estate—worth about $1,999,000—to another son, John. John died intestate four months later. The bulk of John’s intestate estate, at least $1,272,000, was inherited by his estranged but not divorced wife, Vicky. The rest was inherited by John’s five children. Agreement was reached to pay $275,000 to one of those children but the basis for the agreement was not known.
In the course of the judgment, the Court provided figures on the workload of the Probate Registrars.
David worked as a truck driver. He and his wife owned a house worth between $600,000 and $830,000 unencumbered. They had combined savings of $1,800. He had an entitlement to superannuation worth $258,000 and had motor vehicles worth $22,000. He owed $100,000. His wife, with whom he cohabited, had savings of $94,000 and an interest in superannuation of $82,000. He sought provision to fund repairs to his house, purchase a caravan and provide a fund for contingencies.
The Court observed David had undertaken physically demanding work throughout his adult life, that work was taking a toll on his body and he would like to retire rather than continue working through debilitating hip and shoulder pain. It accepted David did not have sufficient funds to retire and adequately provide for himself and his wife. It opined that David had a genuine need for funds to afford him a less frugal retirement and for a contingency fund to provide him with some protection against insecurity arising from future ill health as he aged, and against unforeseen life events (at [81]).
The Court accepted evidence that the testator stated Vicky was to get nothing from her estate. Vicky had the benefit of rent-free accommodation provided by the testator for many years, had no dependents, had been supporting herself financially since 2017, and was working in a job that she expected to be able to continue in until retirement in approximately 12 years’ time (at [82]).
The Court considered the amount of provision that was proper for David’s maintenance, education and advancement in life was $450,000 to enable him to retire in the near future and spare him the need to continue working through painful injuries, afford him a more comfortable retirement, and provide him with a buffer against future medical expenses and the vicissitudes of life (at [83]).
In Bushell v George [2025] NSWSC 1347 (Hmelnitsky J), the Court ordered further family provision of $300,000 for an adult daughter (in addition to $600,000 left in the will).
Practice pointer on the family tree needed in family provision proceedings
The Court, in Evans v Evans [2025] NSWSC 1263 (Meek J), considered the case was ‘a convenient vehicle for highlighting, for the benefit of the profession, the utility of provision of family tree diagrams and importance of specification of proper names’ (at [9]). The Court reminded that, since 17 June 2024, the pro forma affidavit in Practice Note SC Eq 7 (‘Practice Note’) specifies that relationship detail be provided in the form of a family tree diagram (at [25]). This change came about because, previously:
‘upon reading the plaintiff’s affidavit and other material on the file, the Family Provision List judge or registrars are left wondering, “Who is Bob or Heidi?”, “Is Cameron a sister or a brother?”, “Is Jonah a sibling or a child?”, “Bruce seems to have had a few marriages and partners – was there a marriage or divorce?” and “Is Stephanie (a former spouse) still alive?”’ (at [31]).
There is no mandated content or form for the family tree. It ‘may be neatly hand drawn or generated through electronic aids or apps’ (at [43]). The Court counselled a common-sense approach to its details. It described this by using the ‘Swedish word lagom, meaning “just the right amount” or “not too much, not too little”’ (at [44]). However, ‘the crucial information in the diagram should include nomination of the following persons:
- the deceased;
- the person who at the time of the deceased’s death was the deceased’s spouse or living in a de facto relationship or close personal relationship with the deceased;
- all former spouses;
- children of the deceased (biological or adopted);
- grandchildren of the deceased; and
- persons who had been members of the household of which the deceased was a member’ (at [45]).
Otherwise, ‘[p]ractitioners are encouraged to use their ingenuity consistent with the above guides to prepare lagom family tree diagrams’ (at [59]).
Practitioners are encouraged to use their ingenuity consistent with the above guides to prepare lagom family tree diagrams.
The Court noted the Practice Note envisages plaintiffs providing the family tree diagram. However, it stated that, ‘[i]f the plaintiff has not provided such a family tree diagram, it is, nonetheless, of assistance to the Court for the defendant to provide such a diagram’ (at [60]). The Court also commented on the importance of the correct use and spelling of names, including alternatives.
Two practice pointers in case concerning construction of a will
By Diane Goodman’s last will made in 2009, she gave the whole of her estate on trust for her grandchildren as ‘survive me and attain the age of twenty-five (25) years’. If no grandchildren ‘survive [her] and attains a vested interest’, the estate was given to two charities. At the date of the will, the testator was 64 years of age, had only one child and one grandchild, Luke. That remained the position at her death.
A central issue for determination in Goodman v Bryant [2025] NSWSC 1240 (Meek J) was whether, on the true construction of the will, Luke had a vested interest in the deceased’s estate, albeit not vested in possession, or whether he had no such vested interest. However, in relation to this issue of construction, the Court lamented:
‘A penumbral lunar eclipse occurred on 6 August 2009, the same day Diane Goodman made her last Will. Unlike the eclipse which merely lasted for a few hours and caused only slight dimming of the moon, clarity of the surrounding circumstances which led the deceased to make the Will in the form that she did remain shrouded in darkness, with only the barest details known to the Court’ (at [1]).
First practice pointer
This lament led to the Court’s first practice pointer regarding the retention of the drafting solicitor’s will file, namely, because:
‘Will files may contain important contextual information … solicitors who have a system for destroying files after a certain period should consider creating and preserving digital archives of Will files. Such retention may prevent costly disputes concerning construction, context or rectification’ (at [12]-[13]).
Resolution of construction issue
In relation to the meaning of the survivorship clause, the Court observed:
‘“Vesting” terminology varies. However, for present purposes, there are distinctions between: (a) a gift that is said to be “vested” in interest and possession, such that the beneficiary has an immediate indefeasible right to the interest and enjoyment of it; (b) a gift that is said to be “vested” in interest but not in possession, such that the beneficiary has an immediate indefeasible right to the interest, but no immediate enjoyment of it, enjoyment being deferred for some period of time; and (c) a gift that is said to be “contingent” or “conditional” such that the beneficiary has no right to the interest but may, subject to the contingency or condition, become entitled to the interest and enjoyment of it’ (at [65]).
Courts favour early vesting. That is the result of the decision. The Court considered the gift was not deferred until one or more grandchild (which meant Luke) attained the age of 25 years but rather was vested upon the testator’s death. It observed that, when the will was made, there was only one potential member of the grandchild class and the testator was aged 64 (at [98]). There was no evidence she had any connection with the nominated charities (at [101]).
Further, if the testator had died shortly after making the will, when Luke was only three years of age, and the gift was not regarded as being vested in interest but rather construed as a contingency of any grandchild attaining the age of 25, Luke’s entitlement would remain uncertain for over two decades (at [102]). There was no obvious reason the testator would want that outcome. The Court found that ‘[o]n the other hand, if the gift were construed as having been vested in interest but not in possession, the lack of certainty conundrum is resolved’ (at [103]).
Solicitors are encouraged, in taking instructions and drafting wills, to clarify testators’ intentions regarding when a gifted interest vests in interest or possession.
Second practice pointer
The Court’s second comment about good practice was:
‘This case is a salient reminder of difficulties in construction engendered by lack of clear language. Solicitors are encouraged, in taking instructions and drafting Wills, to clarify testators’ intentions regarding when a gifted interest vests in interest or possession, including discussing timing with testators and using clear language such as “vested in interest” and “vested in possession”’ (at [107]).
Inheritance upon disclaimer
Giuseppe Pellegrino died leaving two children, Theresa and Angelo, who, by his last will, were appointed executors and inherited the deceased’s estate equally. The will further provided that, if either child did not survive the deceased, the respective children of the non-surviving child would receive their parent’s share of the deceased’s estate.
At the time of the deceased’s death, the relationship between the deceased and Angelo had completely broken down. After the deceased’s death, Angelo refused to speak to or communicate with his sister or her legal representatives. Theresa alone obtained probate. Angelo did not respond to letters sent to him and returned a cheque sent to him, marked with ‘refused to sign’ and ‘return to sender’.
Theresa sought judicial advice as to whether Angelo had disclaimed his share of the estate and, if so, who received the disclaimed gift. Angelo did not respond to Theresa’s application. The Court was satisfied it could give judicial advice that he had disclaimed the gift (In the Estate of Giuseppe Pellegrino (deceased) [2025] ACTSC 421 (Baker J) at [38]). The legal effect of the disclaimer was a question of the proper construction of the will: what did the testator intend to occur in the event of disclaimer (at [41])?
Whilst a number of different constructions were open to the Court, it considered the better construction of the deceased’s will was that, if the gift to either of the deceased’s children failed for any reason other than the death of that beneficiary, that child’s share of the estate should be conferred upon the other child (at [66]). The Court gave judicial advice accordingly but allowed Angelo to apply for other orders within six weeks of service of notice of the Court’s opinion.
Disclaimer in estate outside Australia
Irdi v Lang [2025] WASC 421 (Russell M) concerned the estate of Sandy Kovacic. He died in Sweden, where he lived, survived by his de facto spouse, Jenny, and their daughter, Angelika. His estate included real property located in Sweden (worth approximately 905,400 Swedish Krona (approximately $144,600)) and in Western Australia ($750,000), and personal property located in both jurisdictions ($81,241 and $600,000 respectively). There was a liability of $23,973 in Sweden.
By his will made in WA in 2005, he gave his right, title or interest in any real property to his sisters. He gave the residue of his net estate to Jenny. However, pursuant to Swedish law, regardless of the contents of the will, Angelika was entitled to half of the net estate (comprised of all assets in both Sweden and Australia). For Angelika to receive half of the net value of the estate, the Swedish real estate, or the proceeds of its sale, would have to pass to her.
Jenny and the sisters entered into a deed which recited the sisters’ disclaimer of any interest in real property outside Australia. In the proceedings, among other things, the executor of the deceased’s estate sought directions as to whether the sisters had effectively disclaimed their interest in any real property of the estate situated outside Australia and thereby released the executor in respect of any liability he had, or may have had, to them in respect of any such interest.
The Court accepted that, by reason of the grant of probate in WA, the executor had authority (and a duty) to administer the assets of the estate situated in Western Australia, but he had no authority (or duty) in respect of any of the assets of the estate situated in Sweden (at [53]). The Court was satisfied it was appropriate to give the directions and make the declaration substantially in the terms sought by the executor, as supported by Jenny.

