Hoobin v Hoobin

• [1] Peter Hammond died on 1 December 2024. In his last will of 22 June 2024 he named the applicant (Ms Powers) as his executor. She was his sister. On 5 August 2024 the deceased entered into a civil partnership with Ms Thi Que Vu.
• [2] Ms Powers contends that the will was made in contemplation of the deceased entering into a civil partnership with Ms Vu. Whether it was so made is the question before the court.
• [3] If it was, then Ms Powers seeks an order that she be granted probate. If it was not, then Ms Powers seeks an order that letters of administration upon intestacy issue to her.
• [4] All interested parties were served. None oppose the relief sought although three of them express this by saying that they "do not consent".

• [5] The deceased had three children from his first marriage and two from his second. Ms Vu had two children.
• [6] In his will, the deceased specifically excluded the children from his first marriage. The will distributed property in the following way:

(a) his superannuation fund to Ms Vu,

(b) his pension fund to his children from his second marriage, Ms Vu and the estate in equal shares,

(c) his residuary estate:

(i) 20% to Ms Vu,

(ii) 30% to each of his children from his second marriage,

(iii) 20% to Ms Powers

(d) his unit:

(i) on trust for Ms Vu to reside rent free for five years after his death,

(ii) upon its sale, the proceeds to be divided equally between his children from his second marriage and Ms Vu.

• [7] The will contained no reference to a civil partnership with Ms Vu.

When is a will made "in contemplation of entering into a civil partnership"?

• [8] Section 14A was inserted into the Succession Act 1981 (the Act) in 2011. It provides:

(1) A will is revoked by the testator entering into a civil partnership[1].

(2) However, the following are not revoked by the testator entering into a civil partnership -

(a) a disposition to the person with whom the testator is in a civil partnership at the time of the testator's death;

(b) an appointment as executor, trustee, advisory trustee or guardian of the person with whom the testator is in a civil partnership at the time of the testator's death;

(c) a will, to the extent it exercises a power of appointment, if the property in relation to which the appointment is exercised would not pass to an executor under any other will of the testator or to an administrator of any estate of the testator if the power of appointment were not exercised.

(a) a will made in contemplation of a civil partnership, whether or not that contemplation is stated in the will, is not revoked by the registration of the civil partnership contemplated; and

(b) a will that is stated to be made in contemplation of a civil partnership generally is not revoked by the registration of a civil partnership of the testator."

• [9] Section 14A of the Act makes identical provision for the effect of entering into a civil partnership as s 14 makes for the effect of marriage. It appears that neither section has been the subject of consideration by this court. There has, though, been consideration of similar statutory provisions in other jurisdictions which provides assistance.
• [10] In Hoobin v Hoobin[2] White J said that the phrase "in contemplation of marriage" in s 15 of the Wills, Probate and Administration Act 1898 (NSW) meant intending, proposing or expecting a marriage, or having a marriage in mind as a contingency to be provided for or as an end to be aimed at[3]. In that case, the will had been made by the deceased 18 months before his death. Three days before his death, he went through a ceremony of marriage. He had spoken to his solicitor before the preparation of the will about the possibility of marrying his de facto partner and about whether his will should be expressed to be made in contemplation of that marriage. At [53] of his reasons, White J said that he was not satisfied that when the deceased made his will that he had marriage to the plaintiff consciously in mind as a possibility - he was not looking beyond his impending hospitalisation, from which he did not expect to emerge. He concluded that the will was revoked by the deceased's marriage.
• [11] In Steel v Ifrah[4] Dixon J had to construe s 13 of the Wills Act (Vic). It provides for the effect of marriage on a will and is, for these purposes, identical in intention to of the Act and, thus, in relevantly identical terms to s 14A. of the provides that a will is revoked by the marriage of the testator and goes on to provide:

(a) a will made in contemplation of a marriage (whether or not that contemplation is expressed in the will) is not revoked by the solemnisation of the marriage contemplated; and

(b) a will which is expressed to be made in contemplation of marriage generally is not revoked by the marriage of the testator."

• [12] In that case the simplified chronology was as follows:

(a) the defendant proposed to the deceased,

(b) a date was set for the wedding,

(c) the deceased and the defendant made wills at the same time which protected the entitlements of their respective children,

(d) the deceased did not refer to her impending marriage when giving instructions to her solicitors at a meeting which the defendant attended,

(e) the deceased became ill and instructed her solicitors to prepare a will in largely the same terms as the previous will, making some provision for the defendant but re-expressing her intention that her children inherit her property,

(f) that will was not executed.

• [13] Dixon J considered the meaning of the term "made in contemplation of the marriage" and referred to the decision of White J in Hoobin v Hoobin[5] and of O'Neill J in Re Estate of O'Brien (dec'd)[6] (a decision of the High court of Ireland). With respect to the latter decision, Dixon J observed that the facts were at once substantially similar to, yet materially different from, the circumstances before him. The relevant Irish statute considered by O'Neill J effected a revocation of a will by a subsequent marriage unless the will was actually made in contemplation of the marriage, whether so expressed or not in the will.
• [14] The reasons in Steel v Ifrah were considered by Lindsay J in Re Estate of Grant (dec'd)[7]. His Honour held that the will made by the deceased soon after the dissolution of his first marriage was not made "in contemplation" of his second marriage and, so, it was revoked upon his re-marriage. In considering Dixon J's decision, Lindsay J held that the reasoning in Re Estate of O'Brien (dec'd) was not helpful in the context of the New South Wales legislation. He said: "To the extent that there is any difference of approach between White J's exposition of the law and that of Dixon J by reason of Dixon J's adoption of O'Neill J's observations, White J's formulation of the law is to be preferred."[8]
• [15] Dixon J had referred to O'Brien in some detail and, at [18], adopted part of O'Neill J's reasoning. But, notwithstanding that, I regard Dixon J's conclusions at [12]-[13] about the meaning of "made in contemplation of a marriage" as being the true basis for his reasoning. He said:

"[12] ... What is important is that there be contemplation of a marriage when determining how, and to whom, one's estate is to be distributed, because it is the making of a will without contemplation of the relevant circumstances that may apply when it comes into effect that is the mischief.

[13] It must appear probable that the testator gave thoughtful observation or consideration of a prospect, or an expectation, of a marriage in the process of making the will. A mere consciousness of a possibility of marriage in the future will not suffice but all that need be contemplated is a marriage, which must involve a particular person. The testator need not have any particular intention or contemplation about the future validity of the will, or the relation between the marriage and the validity of the will."

• [16] I adopt, with respect, some of Dixon J's conclusions and have adapted them for the circumstances of this case:

(a) The words "made in" in s 14(3)(a) of the Act should not be construed narrowly. In the relevant statutory context, they referred to the entire process of making a will rather than a specific event in that process.

(b) The words "in contemplation of entering into a civil partnership" do not require that the intention or contemplation of the testator be that the will should continue to have effect after and notwithstanding the civil partnership.

(c) In the absence of direct evidence of the deceased's intention, it has to be inferred from other established facts on the basis of the evidence as whole.

• [17] So far as there is a difference between the reasoning of White J and Dixon J I respectfully agree with Lindsay J's formulation of a reconciliation of the tests in Hoobin v Hoobin and Steel v Ifrah. He said:

"[134] An application of the concept of "a will made in contemplation of marriage" is fact-sensitive.

[135] The facts of the current case can be dealt with within the treatment of the law found in Hoobin v Hoobin and (shorn of observations in In Re O'Brien (dec'd)) Steel v Ifrah , but with a different nuance. White J's language ("there must be a more definite state of mind than a mere consciousness of the possibility of a particular marriage" and "having a marriage in mind as a contingency to be provided for or as an end to be aimed at") comes to mind. So too does Dixon J's requirement that there be something more than "a mere consciousness of a possibility of marriage in the future": a "thoughtful observation or consideration of a prospect, or an expectation, of a marriage in the process of making [a] will".

• [18] With that test in mind, I turn to the facts in this case.

Did the deceased have in contemplation that he would enter into a civil partnership with Ms Vu when he made his will?

• [19] The evidence provided by the applicant is uncontested. In summary, it is:

(a) the deceased met Ms Vu online in April 2022 and, personally, in May 2022 when the deceased travelled to Vietnam for the purpose of meeting her,

(b) Ms Vu says that they commenced a "romantic monogamous relationship which lasted until Peter's death",

(c) during 2022 - 2024 the deceased travelled to Vietnam and Ms Vu travelled to Australia in December 2022,

(d) the deceased was diagnosed with prostate cancer in December 2022 - he informed his family of that, in the presence of Ms Vu, in that month,

(e) in November 2023 the deceased and Ms Vu made an application for a partner visa for Ms Vu,

(f) in support of that application the deceased signed a statement in which he referred to her as his partner and fiancée,

(g) in a conversation with Gary Tong (a long-time friend and one of the witnesses to the deceased's will) in January 2024, the deceased said that he wanted to make sure that Ms Vu was "set up" and "looked after" in the event that he was not around to take care of her and that he thought that entering into a civil partnership with her would assist,

(h) in another discussion with Mr Tong in April 2024 (after the deceased had found that the cancer was spreading rapidly) the deceased referred to his intention to enter into a civil partnership with Ms Vu and his desire to make sure that she was looked after should anything happen to him,

(i) in a series of text messages with Ms Vu sent on 5 April 2024, the deceased said: "I want to register our relationship with Australian government in Queensland."

(j) on 22 June 2024, the deceased executed his will, and

(k) on 5 August 2024, the deceased entered into a civil partnership with Ms Vu.

• [20] There is evidence of other discussions after the deceased executed his will in which he referred to Ms Vu as his "registered partner" and of discussions he had with his solicitors about his will but these are irrelevant to the intention he had at the time of making his will.
• [21] I find that the deceased made his will in contemplation of entering into a civil partnership with Ms Vu. His conduct was consistent with more than a mere consciousness of a possibility of entering into a civil partnership. He expressed a determination to enter into that relationship and to ensure that Ms Vu would be looked after. That conclusion is supported by:

(a) the evidence of the relationship between the deceased and Ms Vu,

(b) the deceased's statements with respect to the visa application about his relationship,

(c) the deceased's statements to Mr Tong that he wanted to enter into a civil partnership and to make sure that Ms Vu was "looked after should anything happen to him", and

(d) the arrangements made for Ms Vu in the deceased's will.

• [22] The will of the deceased was made in contemplation of him entering into a civil partnership with Ms Vu.
• [23] Ms Powers was the deceased's choice to be his executor. She is an appropriate person to whom a plenary grant of probate ought issue.

• [24] Pursuant to s 6 of the Succession Act 1981, but subject to the formal requirements of the Registrar, a Grant of Probate with the Will of Peter John Hammond, deceased, (Deceased) dated 22 June 2024, be made to the Applicant.
• [25] The Applicant's costs of the proceeding be paid from the estate of the Deceased on the indemnity basis.

[1] A "civil partnership" means a civil partnership registered under the Civil Partnerships Act 2011. See Acts Interpretation Act 1954, s 36, Schedule 1

[2] [2004] NSWSC 705

[4] (2013) 38 VR 186

[5] [2004] NSWSC 705

[6] [2011] IEHC 327

[7] [2018] NSWSC 1031

[8] [2018] NSWSC 1031 at [110]