Plaintiffs v Caveator

1 Carmela Montalto died on 23 May 2015, aged 91 years ('the deceased' or 'the testatrix'). Her husband, Mauro Montalto, pre-deceased her on 28 September 2010. She is survived by her three adult sons, Antonino Montalto ('the caveator'), Tommaso Montalto and Guiseppe Montalto.

2 Her last will dated 11 February 2013 ('the 2013 will') appointed Giuseppe Sala, who is a family friend, and Giuseppe Montalto, her son, as the executors of her will and trustees of her estate. Her residuary estate is divided between her three sons, with 20 per cent to the caveator, 35 per cent to the second plaintiff and 45 per cent to Tommaso Montalto. The 2013 will purports to explain the deceased's reasons for leaving her estate to her sons in those percentages.

3 By originating motion filed 13 November 2015, Giuseppe Montalto and Giuseppe Sala ('the plaintiffs') filed an application for grant of probate of the 2013 will. The inventory of assets and liabilities filed with the application valued the deceased's net estate at $2,181,796. Included in the inventory of assets are two properties, 55 Wildwood Road, Whittlesea and 227 McDonald's Road, Epping, each valued at $950,000. These properties are not in the name of the deceased as a result of transfers signed in September 2012 ('the September 2012 transfers') whereby the properties were transferred into the name of the deceased and the caveator as joint proprietors. The September 2012 transfers are the subject of a proceeding issued on 14 October 2015 in this Court by the plaintiffs as executors of the estate against the caveator seeking orders for the properties to be transferred to the estate ('the transfer proceeding').[1]

4 Pursuant to requisitions dated 16 November 2015 from the Registrar of Probates, the plaintiffs filed an affidavit sworn 11 December 2015 by the first plaintiff deposing to the circumstances of the testatrix giving instructions for and executing the 2013 will.

5 On 24 June 2015, the caveator filed a caveat requiring notice be given to him in respect of any application made in connection with the will or estate of the deceased. On 16 November 2015, the Registrar of Probates notified the caveator of the application by the plaintiffs. On 11 December 2015, the caveator filed a summons for directions returnable on 12 February 2016 and particulars of his objections to the plaintiffs' application. The particulars of objections alleged that:

(b) the 2013 will was made at the direction of or under the undue influence of the plaintiffs[2] and Tommaso Montalto; and

(c) the 2013 will is 'not consistent with the deceased's wishes expressed in public in the presence of numerous persons'.

6 At the first directions hearing on 12 February 2016, as a result of the deficiencies in the particulars of the grounds of objection, the caveator was ordered to provide amended particulars of each of the grounds of his objections in accordance with r 8.08(a)(iii) of the Supreme Court (Administration and Probate) Rules 2014. These were filed with the Court on 4 March 2016.

7 At the next directions hearing on 18 March 2016, the caveator was ordered to provide further amended particulars of the grounds of his objections by 8 April 2016 to enable the plaintiffs to know what case they had to meet. A further directions hearing was listed for 15 April 2016.

8 On 15 April 2016, the plaintiffs sought removal of the caveat on the basis that the particulars of the grounds of objection were inadequate. They submitted that the third attempt by the caveator to file proper particulars of the grounds of objection were not an improvement on the first and second attempts, with many of the earlier inadequate particulars simply repeated. They submitted that the caveator has had more than adequate time to provide proper particulars of his objections and has caused a delay of six months without any proper basis asserted by the caveator.

9 The first section of the particulars set out the members of the Montalto family, with dates of birth and death of the parents and dates of birth of the three sons.

10 The second section sets out the residential history of the deceased which, in summary, states that in late 2008 the caveator and his wife lived part time with the deceased and her husband to attend to their daily needs. After the husband's death on 28 September 2010, the caveator and his wife lived full time with the deceased to care for her. In October 2012, the deceased was placed in respite care for six weeks. During this time, Tommaso Montalto removed the deceased from the respite care and she remained in his care and the care of Guiseppe Montalto until her death. The caveator alleges that he was substantially isolated from the deceased after she was removed from the respite care until her death.

11 The third section of the particulars alleges that the deceased lacked testamentary capacity shortly prior to and at the time of the execution of the 2013 will, relying on the following facts:

3.3 By in or about October 2012, the Deceased:

(a) was incoherent;

(b) suffered from memory loss;

(c) was confused and disorientated about her affairs and circumstances;

(d) was totally reliant upon the caveator and the caveator's wife for her daily needs;

(e) was not capable of making her own telephone calls and would ask someone to dial a number for her if she wanted to use the telephone so as to speak to family and friends;

(f) had visual hallucinations; and

(g) on each Monday, Wednesday and Friday a nurse would attend upon the Deceased for the purposes of washing her, washing her hair, and attending to her various personal needs.

3.4 Further, in mid-December 2012, the Deceased was examined for geriatric review at the Memory Clinic at the Bundoora Extended Care Centre due to a 12 month history of cognitive decline with issues including visual hallucinations, short term memory loss, confusion and disorientation.

3.5 On 25 June 2013, after VCAT considered a report from a neuropsychologist, who had examined the deceased and who advised VCAT that the Deceased had no capacity to appoint an enduring power of attorney or to make financial decisions, VCAT was satisfied that the Deceased, lacked the capacity to make an enduring power of attorney, and consequently appointed the Public Advocate, to be her limited guardian and appointed State Trustees as her administrator.

12 The fourth section of the particulars allege that the testatrix acted under the undue influence of Tommaso Montalto and the second plaintiff at the time of the execution of the 2013 will, relying on the following:

(2) (a) In or about October 2012 the Caveator placed the Deceased in a residential care unit at Arcare, Knox City for six weeks of respite care.

(b) Approximately four weeks into her stay, Tommaso Montalto and his daughter removed the Deceased from Arcare and thereafter the Deceased was under Tommaso Montalto's care and control.

(c) In late October 2012 Tommaso Montalto informed Frank Cernaz, the principal of the firm of solicitors, Frank J Sagaria & Associates, who had been retained in the past to act for the Deceased and Mauro Montalto that the Deceased was now in his care.

(d) Tommaso Montalto did not reveal to the Caveator where he kept the Deceased.

(e) From that time of her removal, the Caveator was unaware as to the whereabouts of the Deceased.

(f) From the time of her removal from Arcare, the Caveator did not see the Deceased until approximately 13 March 2013.

(g) The 2013 Will was executed while the Deceased was in the care and control of Tommaso Montalto and Giuseppe Montalto and in circumstances where she was kept substantially isolated from the Caveator until her death.

13 The fifth section of the particulars allege that the 2013 will was executed in suspicious circumstances. The caveator repeats the matters set out under the residential history of the deceased, the matters set out alleging that the deceased lacked testamentary capacity and the matters set out alleging undue influence. The caveator then refers to the deceased's prior wills dated 24 August 2011, 17 August 2010, 12 September 2007 and 2 June 2007. The caveator says that the August 2011 and August 2010 wills excluded Tommaso Montalto and the second plaintiff and left the deceased's estate to the caveator. As well, the 2007 wills excluded Tommaso Montalto. In oral submissions, the caveator also noted that they had certain witnesses who could attest to the 'fact' that the deceased had said that she would not provide any gift to Tommaso Montalto under her will.

14 The caveator says that the distribution of the deceased's estate under the 2013 will was 'in remarkable contrast' to the deceased's four previous wills. He also relies on the fact that the 2013 will was executed by the deceased while she was in the care and control of Tommaso Montalto and the second plaintiff and that the 2013 will did not express her testamentary wishes.

15 The transfer proceeding against the caveator concerns the transfer of the two properties owned by the deceased on 21 September 2012 to herself and the caveator as joint tenants. The September 2012 transfers resulted in the caveator obtaining ownership of the properties by virtue of survivorship. This proceeding seeks to set aside the transfer of the two properties. The plaintiffs allege that the September 2012 transfers were:

(a) brought about by the undue influence of the Defendant over [the deceased]; and, further or alternatively

(b) executed by [the deceased] in circumstances where she, through no fault of her own, had no real understanding of the effect of the 21 September transfers and as such are liable to be set aside on the basis that they are "non est factum".

Particulars

...

As at 21 September 2012 [the deceased] was 88 years of age, was suffering from a form of dementia, most likely Alzheimer's disease, hallucinations, renal failure and other ill health.

16 Relying on the same particulars set out above, the plaintiffs also allege that the caveator removed over $21 million belonging to or controlled by the deceased in the period between April 2009 and November 2012 for his own benefit and that he appropriated the deceased's engagement ring, wedding band, anniversary ring and necklaces.

17 The Court in its probate jurisdiction has certain peculiarities; namely, its inquisitorial role requires a greater supervision and control of proceedings than adversarial common law proceedings.[3] Caveats act as a mechanism for notice from the Court to a party interested in an estate that an application for a grant of probate or letters of administration has been made in respect of a deceased estate. The caveat procedure exists to ensure that estates are administered in an orderly manner and that any issues arising before a grant of probate or letters of administration is made can be investigated and dealt with by the Court. This ensures that any grant gives effect to the final valid testamentary wishes of the deceased or the intestacy provisions and title to any real or personal property owned by the deceased at the date of their death passes in accordance with these wishes or provisions.

18 If a caveator disputes the validity of the last will of a deceased, he or she must establish standing to object to the grant and file grounds of objection with particulars that provide a sufficient factual basis to raise at least a prima facie case of the grounds of objection relied on by him or her.[4]

19 The purpose of the particulars and the grounds of objection is to define the questions for trial, to enable the propounder of the last will to understand the case put against making a grant with precision and particularity and so as to avoid surprise at the trial. Where the particulars of objection are imprecise, vague or inadequate, the Court may order that further particulars be provided within a certain time, as has happened twice in this proceeding. Where the particulars are ambiguous, obscure or inadequate the particulars may be struck out.[5] In default of particulars that fail to provide a sufficient factual basis for the grounds of objection, the Court will order that the caveat cease to be of effect. If there is a proper basis for the caveat, orders would be made joining the caveator as a defendant in the proceeding and directions made for the trial of the proceeding.

20 Where more than one will is being propounded, for example, if the caveator seeks to propound the deceased's penultimate will in a separate proceeding, the procedure at trial is for the validity of the last will to be determined first. Only if the last will is found not to be a valid will would it be necessary for the validity of the penultimate will to be tested and determined.[6]

21 For a will to be admitted to probate, it must have been made of the free will of the testator. The approach to be taken as to the determination of a lack of testamentary capacity and a will being executed in suspicious circumstances is summarised by Santamaria JA in Veall v Veall as follows:

If the propounder proves that a will that is rational on its face has been duly executed, a presumption arises that the testator had testamentary capacity. The evidentiary burden then shifts to the party impeaching the will to point to circumstances that raise a suspicion that the testator was not mentally competent. If suspicious circumstances are established, the evidential onus is then put back upon the propounder to satisfy the Court that the testator had testamentary capacity: that is that the testator was of 'sound and disposing mind'.

Once the propounder has proved that the testator had testamentary capacity and that the will was duly executed, a further presumption arises that the testator knew and approved the contents of the will. As with the presumption of testamentary capacity, the presumption of knowledge and approval can be displaced by circumstances giving rise to a suspicion that the testator might not have appreciated the contents of the will and approved them. The burden then shifts back on to the propounder, who must adduce affirmative proof that the testator knew and approved the contents of the will.

The shifting evidentiary burden in the context of testamentary capacity and knowledge and approval should not be understood as indicating a reversal of the ultimate burden of proof. The onus of proving that the instrument sought to be admitted to probate reflects the will of a free and capable testator lies on the propounder. But it would be inconvenient if the propounder had to adduce in every case, over and above producing a duly executed will free from apparent defect, conclusive proof of the will's legitimacy.

In the majority of probate applications, the existence of a duly executed will that is rational on its face will be sufficient for the admission of the will to probate. A mere assertion by a contradictor that the testator either lacked testamentary capacity or knowledge and approval will not displace the presumption raised by the due execution of a will that is rational on its face. The party impeaching the will must establish circumstances supporting a well-grounded suspicion that the instrument might not express the will of the testator. In Bailey v Bailey, Isaacs J (with whom Gavan Duffy and Rich JJ agreed) summarised the law thus:

(1) The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument.

(2) This onus means the burden of establishing the issue. It continues during the whole case and must be determined upon the balance of the whole evidence.

(3) The proponent's duty is, in the first place, discharged by establishing a prima facie case. [7]

22 In this case, the deceased's 2013 will is valid on its face and the propounders of the 2013 will have the benefit of the presumption that the deceased had testamentary capacity.[8] The caveator has the evidentiary burden to point to circumstances that raise a suspicion that the deceased lacked testamentary capacity so as to require an investigation of the 2013 will.

23 The classic statement as to the legal test for testamentary capacity is stated in Banks v Goodfellow:

It is essential to the exercise of [a testamentary] power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.[9]

24 Testamentary capacity and knowledge and approval are separate and distinct concepts. The assertion by the caveator that the 2013 will was executed in suspicious circumstances is, in reality, an assertion of lack of knowledge and approval, an assertion that goes beyond lack of testamentary capacity.[10] It is a testator's understanding that is decisive in determining whether the testator knew and approved the contents of her will.

25 In Bailey v Bailey, Isaacs J (with whom Gavan Duffy and Rich JJ concurred) provided a summary of the principles to be drawn from the leading cases on the question of knowledge and approval (citations omitted) as follows:

(1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents.

(2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document.

(3) If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate.

(4) The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator's appreciation and approval of the contents of the will.

(5) But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification.

(6) Nor does the rule require as a matter of law any particular species of proof to satisfy the onus.

(7) The doctrine that suspicion must be cleared away does not create 'a screen' behind which fraud or dishonesty may be relied on without distinctly charging it.[11]

26 More recently, in Tobin v Ezekiel, Meagher JA stated:

Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be 'the most satisfactory evidence' of actual knowledge of the contents of the will ... What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example, in Wintle v Nye ... the relevant circumstances were described ... as being such as to impose 'as heavy a burden as can be imagined'. Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction ... That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator ... [12]

27 The final ground asserted by the caveator is that the 2013 will was procured by undue influence. This is a serious claim of an equitable species of fraud, an essential component of which is an allegation of fraudulent conduct. Where undue influence is alleged, the onus of proof lies on the party who alleges it. Although the assessment of whether there has been an inappropriate degree of influence is a nuanced one, 'to be undue influence in the eye of the law there must be - to sum it up in a word - coercion'.[13]

28 The three grounds of objection to the grant of probate of the 2013 will relied on by the caveator are allegations that should not be made lightly and are required to be determined by applying the principles expressed in Briginshaw v Briginshaw,[14] as that standard is applied under s 140(2) of the Evidence Act 2008.

29 The caveator's amended particulars of objections are discursive and in the form of an historical narrative. The caveator contends that the sections of the particulars that set out historical family matters and the residential care of the deceased between late 2008 until October 2012 are relevant as factual background and matters relevant to the objections. Otherwise he submits that the particulars of the objections are sufficient to raise the issues for consideration in respect of each of the three grounds relied upon by him and to inform the plaintiffs of the matters in issue.

30 In oral submissions, the caveator also referred to the transfer proceeding in that the plaintiffs rely on particulars that appear to be inconsistent with the affidavit of the first plaintiff filed in this proceeding in terms of the capacity of the deceased in the months preceding the execution of the 2013 will.

31 The mere fact of the residential history of the deceased between late 2008 until October 2012, that the testatrix was elderly or that the deceased was in care does not establish that she lacked testamentary capacity. These historical events relate to events well prior to the execution of the 2013 will. The caveator acknowledges in his particulars that he was not in contact with the deceased at the time of the execution of her will yet he asserts that she lacked capacity shortly prior to and at the time of its execution. The particulars of the events relied upon by him are either earlier or later than the date of execution of the 2013 will, which is explained in part by looking at the residential history of the deceased and the apparent dispute between the brothers. The assertions by the caveator of the deceased's state as at October 2012 and a geriatric review at the Memory Clinic in mid-December 2012 relate to the deceased's capacity prior to the execution of the will, although such medical reports may be of assistance in determining the extent of any cognitive decline of the deceased within that period of time.

32 The 2013 will appears rational on its face and has been duly executed. There is positive evidence of the efforts of the first plaintiff, who is not related to the testatrix and is a practising barrister, as well as the testatrix's solicitor in checking that she had testamentary capacity at the time she gave instructions for her will over a period of weeks. The first plaintiff deposes that the testatrix was spoken to in her native language on each occasion when her will was discussed over that time and at the time of the execution of the 2013 will. At the time of its execution, the will was read over and translated to her in her customary Italian language by a registered translator, who has attested that she appeared to understand the contents of her will and approved of its contents. The testatrix's signature was witnessed by the registered interpreter and the solicitor.

33 In the transfer proceeding, the plaintiffs rely on particulars, which state that in September 2012 the deceased was 'suffering from a form of dementia, most likely Alzheimer's disease, hallucinations...' when she signed the September 2012 transfers. These particulars corroborate the caveator's particulars set out at 3.3. The caveator's particulars at 3.4 appear to indicate cognitive decline of the deceased over a twelve month period ending in mid December 2012.

34 The report from a neuropsychologist in June 2013 referred to in 3.5 appears to relate to the deceased's position on 25 June 2013, not 11 February 2013, and the caveator does not assert that it addresses the deceased's testamentary capacity at the time she executed the 2013 will. Accordingly, the particulars set out at 3.5 will be struck out under this ground.

35 When the plaintiff's particulars in the transfer proceeding are taken together with the caveator's particulars in 3.3 and 3.4, there is sufficient justification for an investigation of the circumstances of the execution of the 2013 will by the testatrix to determine whether she was of 'sound and disposing mind'. It is apparent that the issue of the deceased's capacity within the six month period when the September 2012 transfers were signed and the 2013 will was executed is fundamental in both proceedings. If the plaintiffs are correct in the transfer proceeding that the deceased lacked capacity due to dementia when she signed the September 2012 transfers, such a finding might be inconsistent with a Court order granting probate of the 2013 will executed only five months later. These circumstances provide sufficient grounds to challenge both the September 2012 transfers and the 2013 will. To avoid any inconsistency and the multiplicity of proceedings, the two proceedings should be heard and determined together to dispose of the issue once and for all whether the deceased suffered from a disorder of the mind at the relevant times.[15]

36 Where suspicious circumstances arise, the Court must give be vigilant and scrutinise the evidence before admitting a will to probate.[16] Where there are circumstances raised as to whether the deceased had testamentary capacity, there may also be suspicious circumstances such that the evidentiary onus shifts back to the plaintiffs to prove that the deceased knew and approved of the contents of the 2013 will.

37 The particulars relied on for the 2013 will being executed in suspicious circumstances are wide ranging, relying on a montage of assertions of the matters already referred to. Namely, the residential care of the deceased, the assertions of the deceased's lack of testamentary capacity and the assertions of undue influence. These particulars do not make this ground clear and will be struck out.

38 The remaining part of the caveator's particulars of suspicious circumstances is that the 2013 will was a substantial departure from the deceased's four previous wills. The fact that the deceased might vary her will to include all of her sons rather than just the caveator is not remarkable in and of itself. In the usual course, the children of a testator or testatrix would be the subject of a parent's bounty. The testatrix's 2013 will sets out detailed reasons for her change of testamentary disposition, which include the matters that are the subject of the transfer proceeding, that is, the transfer of the two properties and the removal of the substantial funds from the deceased during the period that the testatrix was cared for solely by the caveator and his wife.

39 The fact that the 2013 will was a substantial departure from the deceased's four previous wills might mean there is a reasonable suspicion that she might not have known and approved of the contents of the 2013 will. Equally, the fact that the deceased's wills made in August 2011 and August 2010 leave her assets to the caveator only to the exclusion of her other children and were made when the deceased was cared for solely by the caveator and his wife might also mean there is a reasonable suspicion that she might not have known and approved of the contents of those wills.

40 As stated above, the particulars that the caveator relies on for lack of testamentary capacity include a geriatric review of the deceased in mid-December 2012 and a neuropsychologist's report in June 2013. The 2003 will was signed by the deceased within this time frame. The review and report do not address the testamentary capacity of the deceased at the relevant time, but they may be relevant to the caveator's ground of suspicious circumstances.

41 Considering the matters remaining in the particulars, the 2013 will, the four previous wills, the allegations in the transfer proceeding, the family history of multiple proceedings in the past concerning the deceased's assets and the nature of the relationships between the deceased and her three children, an investigation is necessary as to whether the deceased knew and approved the contents of the 2013 will, as opposed to relying simply on the affidavit sworn by the first plaintiff on 11 December 2015, notwithstanding its apparent evidentiary strength.

42 The particulars relied on to assert undue influence of the deceased by the second plaintiff or Tommaso Montalto contain a narrative of the testatrix's whereabouts from October 2012, with the caveator not seeing the testatrix until mid-March 2013. These particulars do not provide any basis to assert undue influence on the part of the second plaintiff or Tommaso Montalto. The assertions do not raise a reasonable suspicion that the testatrix was coerced in any way. Accordingly, this ground and the particulars are struck out.

43 The remaining particulars of the grounds alleging lack of testamentary capacity and suspicious circumstances provide a sufficient basis for objecting to the grant of probate of the 2013 will.

44 As the administration of justice requires that the incongruity of judicial decisions, whether in the form of a judgment or an order, must be prevented and that a multiplicity of proceedings ought be avoided, this proceeding will be heard at the same time as the transfer proceeding.

(a) The caveator be joined as a defendant to the proceeding and the title to the proceeding be amended accordingly.

(b) On or before 27 May 2016, the caveator file and serve amended grounds of objection and particulars in accordance with these reasons.

(c) This proceeding be heard and determined together with the transfer proceeding with the evidence in each proceeding being evidence in the other;

(d) Pursuant to r 8.08(a)(v) of the Supreme Court (Administration and Probate) Rules 2014, by 4.00 pm on 8 July 2016 the parties make discovery on oath of any:

(i) all medical or like reports or records (including hospital and nursing home records) concerning or relating to the testamentary capacity of the deceased;

(ii) testamentary scripts and writings made by or under the direction of the deceased whether executed or unexecuted;

(iii) solicitor's files pertaining to the creation of the last will and any previous will of the deceased; and

_(iv) documents pertaining to the 2013 VCAT proceeding - _

in their possession power custody or control concerning or relating to the validity of the purported last will or which are or have been in their possession power custody or control or which were in the possession power custody or control of the deceased at the time of death.

(e) The parties are hereby authorised to obtain access to all medical reports records or documents relating to the testamentary capacity of the deceased, and shall if necessary provide written authority to the other's solicitors to obtain access to all medical reports relating to the testamentary capacity of the deceased.

(f) Subject to any order of the trial judge, the evidence in chief in this proceeding at trial be given viva voce.

(g) This proceeding and the transfer proceeding be listed for directions on 22 July 2016.

[2] The allegations of undue influence against the first plaintiff were not pursued by the caveator.

[3] See, eg, Re Fuld [1965] P 405, 409F-411B; Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [264] (Lindsay J).

[4] Moran v Place [1896] P 214, 216-17 (Kay RJ) cited in Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [242].

[5] In re Smith (dec'd) [1951] VicLawRp 53; [1951] VLR 368.

1. [6] Re Barlow [1945] VicLawRp 33; [1945] VLR 193; Re Grey Smith [1978] VicRp 56; [1978] VR 596; Brown v Guss [2014] VSC 251 (2 June 2014).

[7] Veall v Veall [2015] VSCA 60 (16 April 2015) [168]-[171] (Santamaria JA).

[8] Gornall v Masen (1887) 12 PD 142; Palin v Ponting [1930] P 185, 188.

[9] (1870) LR 5 QB 549, 565.

[10] Veall v Veall [2015] VSCA 6 0(16 April 2015) [173] (Santamaria JA) citing Hoff v Atherton [2005] WTLR 99.

[11] [1924] HCA 21; (1924) 34 CLR 558, 528 or 570-2.

[12] (2012) NSWLR 757 [47] (citations omitted)

[13] Wingrove v Wingrove (1886) LR 1 P&D; Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558.

[14] [1938] HCA 34; (1938) 60 CLR 336.

[15] Blair v Curran [1939] HCA 23; (1939) 62 CLR 464, 531-2 (Dixon J), cited with approval in Jackson v Goldsmith [1950] HCA 22; (1950) 81 CLR 446, 466 and Port of Melbourne Authority v Anshun Proprietary Limited P [1981] HCA 45; (1981) 147 CLR 589, 597 (Gibbs CJ, Mason and Aickin JJ); Linsley v Petrie [1998] 1 VR 427, 429 (Hayne JA); See also, Supreme Court Act 1986, s 29(2).

[16] McKinnon v Voigt [1998] 3 VR 543.