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Key decisions

  • In the Estate of Brown [2021] SASC 113
  • In the Will of Mary Elizabeth Patchett (deceased) [2021] QSC 269 (‘Patchett’)
  • Re Middleton [2021] QSC 264
  • Application of Browne as executor of the estate of Russell [2021] NSWSC 1340
  • Hans-Egon Bruno Bernhart Metzner v Jaqueline Rita Metzner [2021] NSWSC 1336
  • Ibrahim v Nasr [2021] NSWSC 1321


Seeking probate of non-existent, partly missing and unfound wills

Need convincing evidence of the existence of a will

Colin Brown’s last known will was made in July 2014. Thereafter, in April 2016, he signed a note written by his nephew, David. The note stated that David was to inherit Colin’s house and its contents. In February 2018, Colin wrote David a letter stating that David was still to inherit the house and all contents on Colin’s death. However, by the July 2014 will, David was left $50,000 and the contents of the house but the residue of the estate, including the house, was given to Scouts SA.

After Colin’s death in December 2018, David sought an order that a reconstructed will (based on the April 2016 note) be admitted to probate; alternatively that the April 2016 note be admitted to probate as an informal will; and further in the alternative that the April 2016 note be treated as an informal revocation of the July 2014 will so that Colin died intestate.

The Court in In the Estate of Brown [2021] SASC 113 (Stanley J) found there was no evidence that Colin, a person who had used a solicitor to make his wills, had made another will in circumstances where searches with solicitors had not disclosed one. Moreover, the evidence didn’t allow the presumption of revocation of a lost will to be rebutted (at [75]).

The Court considered that the April 2016 note did not truly record Colin’s testamentary intentions but was intended to deceive David. It therefore could not constitute an informal will or an informal revocation of Colin’s last known will. The July 2014 will was admitted to probate.

A copy of missing pages included

Mary Patchett executed a will on 2 October 2014. It comprised six pages which she joined by a paper clip. She gave the document to Neil Patchett for safe keeping. After her death, the six pages were found to comprise four original pages and two copy pages. A search failed to reveal or produce any awareness of the two missing original pages.

The Court agreed with Neil’s theory that Mary must have copied the will after execution and mistakenly included two copy pages when the will was reassembled (In the Will of Mary Elizabeth Patchett (deceased) [2021] QSC 269 (‘Patchett’) (Bradley J) at [11]). The Court doubted whether the presumption of revocation by destruction applied where only two pages of the will last traced to the testator were missing but considered the presumption was rebutted because the will was given to Neil for safekeeping (at [17(d)].

The Court therefore granted probate of the combined original and copy pages limited until the original missing pages or more authenticated evidence was produced.

Sufficient proof of contents of a missing will

Kevin Middleton’s long term de facto partner had four children, including Paul Conomos. After Kevin’s death, Paul alleged that Kevin had made a will, showed it to him, explained its contents, and gave him a copy (which he had later lost). The existence of a will with similar terms was supported by independent evidence. The Court in Re Middleton [2021] QSC 264 (Jackson J) considered this was enough to discharge the onus of establishing the contents of the will (at [33]).

The original will had been in Kevin’s possession and could not be found. Unlike the situation in Patchett, the presumption of revocation applied in that circumstance. It is based on the probability that if a will, traced to the possession of the deceased, is not found on death, it has been revoked by destruction by the deceased. There was evidence that the will was kept in a briefcase in the deceased’s unit. When seen by Paul after the deceased’s death, the unit showed signs of having been looted or vandalised. The Court found this evidence supported the possible inference that the original will went missing in circumstances other than intentional destruction by the deceased (at [37]). Accordingly, the Court ordered a grant of representation in relation to the lost will.

Appointing a trustee

Peter Russell’s will allowed the executor to choose the optimal method available at his death to provide for his disabled son when the estate was being administered. The executor chose a trust for which the testator appointed Perpetual Trustee Company Ltd as the initial trustee. The will allowed the initial trustee to nominate a replacement trustee. However, when the executor notified Perpetual Trustee Company Ltd, it declined to accept the appointment even for the purpose of appointing a replacement trustee. In Application of Browne as executor of the estate of Russell [2021] NSWSC 1340 (Henry J), the Court was asked to appoint a trustee for the trust. The Court considered that, from the time the executor decided to distribute the deceased’s estate to the chosen trust, a trust was created (at [19]). The disclaimer by the trustee didn’t negate the trust. The Court referred to s 70 of the Trustee Act as empowering the Court to appoint a trustee. The Court was satisfied that the appointment of a trustee was expedient as it was necessary to appoint a trustee to enable the chosen trust to be administered and it was in the interests of the sole beneficiary of that trust that a trustee be appointed (at [20]).

The Court decided that, if an appointment could not be made under s 70 of the Trustee Act, the Court had the power to appoint a trustee in its inherent jurisdiction. This was because it is a principle of equity that a trust will not be allowed to fail for want of a trustee (at [21]).

Resulting trust for life interest

Egon and Rita Metzner purchased real estate in Bowral which was registered in the sole name of one of their daughters, Jackie. Egon and Rita claimed that Jackie held the property on a resulting trust for them. The ‘catastrophe of family warfare played out in the Court room’ in Hans-Egon Bruno Bernhart Metzner v Jaqueline Rita Metzner [2021] NSWSC 1336 (Rein J) (at [14]) saw Rita’s evidence impugned, the Court doubting the veracity of Jackie and the witnesses she called, and Egon’s evidence being discounted as his health meant he was unavailable for cross-examination (at [126]).

Nevertheless, the Court found that it was Egon and Rita’s intention and understanding that they would be able to utilise the property whenever and for whatever period they wanted, and Jackie understood and accepted that was their intention. Jackie also accepted that she was not free to sell the property whilst either of her parents were alive (at [147(11)]. The presumption of resulting trust may be rebutted by the presumption of advancement, upon which Jackie relied. Egon and Rita did not rebut the presumption of advancement save for Jackie’s admission that she understood that the property could be used by her parents whenever they wanted, her promise not to sell the property whilst they were alive and her implicit acceptance that her parents had a claim to the property (at [166]). Accordingly, the Court declared to the effect that Jackie held the property on trust for her parents for their lifetime and then for herself absolutely (at [174]).

Family provision for spouse

Ishac Azar Nasr died in March 2018 aged 94 years. He was survived by his second wife of 17 years, Nejme Ibrahim (aged 69) and nine children (ranging from 66 to 52 years). By his last will made in 2015, the deceased gave a right of residence in their home to Nejme for two years, $200,000 to one child, and the rest of the proceeds of sale of the home equally to Nejme and his children. Nejme sought further provision from the deceased’s estate.

The Court found that the two year right of residence conferred exclusive possession as the residence had been the deceased and Nejme’s home for their married life and Nejme was required to bear 100% of the burden of rates, taxes, insurance and maintenance thereof (Ibrahim v Nasr [2021] NSWSC 1321 (Leeming JA, sitting at first instance) at [14(1)]). During the two years after Ishac’s death, the executors failed to ensure that Nejme enjoyed quiet uninterrupted possession (at [44]).

The Court acknowledged that, whilst there was no special rule for widows, there is a basic minimum which the community regards as necessary for testators to provide for spouses where the marriage has been of a medium to long duration. That minimum included a secure roof over the spouse’s head and at least a small capital sum (at [282–283]). This meant that Nejme was entitled to a reasonable measure of security of living quarters and means for the rest of her days (at [284]).

The Court considered that a Crisp order, providing a portable right of residence, did not adequately provide the security. This was partly because of the amount of the estate consumed by fees if NSW Trustee & Guardian was appointed to manage the trust (at [292]). Further, there may be tensions between Nejme’s preference for accommodation to suit her needs and the remaindermen’s preference for an appreciating asset (at [293]). The Court preferred a course which permitted Nejme and the siblings to go their own separate ways (at [295]). The Court ordered provision for Nejme of $500,000.

Guidelines for representation

In protective jurisdictions there are often restrictions on legal representation. An example is the Guardianship Division of NCAT’s Guideline from August 2017 headed ‘Representation’. (These can be found at: Paragraph 28 of the Guideline provides that ‘A legal practitioner cannot represent a party in proceedings in which the legal practitioner will also be a material witness. This may arise, for example, where a legal practitioner has witnessed the execution of an enduring power of attorney and the issue in dispute is whether the principal had the requisite capacity to execute that document. Legal practitioners are prohibited from acting where they are or may be a witness in proceedings.’

Darryl Browne
is the Principal at BROWNE.Linkenbagh Legal Services, and Chair of the Law Society Elder Law, Capacity and Succession Committee.