Re Leopold; Application by Gasbarro and Roache [2022] VSC 579 (29 September 2022)

2 The deceased was in a domestic relationship with Cristie from 2006 until around September 2014. On 2 November 2016, Cristie, the deceased, and the deceased's company, Diagnostic Investments Pty Ltd, were parties to orders made by the Family Court of Australia in regard to their property matters.

3 Harrison is the sole beneficiary of the estate of the deceased on an intestacy under the intestacy laws in Victoria.[1]

4 Orders were made in the proceeding on 19 August 2022. This ruling is published for the assistance of practitioners generally, given that the factual matrix was unusual and that the application itself contained many misconceived issues.

5 The affidavits filed were those by the plaintiffs sworn 3 July 2020; the second plaintiff sworn 14 September 2021; Francesco Steidl, notary, sworn 29 June 2020; Tom Bennett-Mitrovski affirmed 29 March 2021; Seth Benjamin Howell sworn 10 September 2021 and 8 October 2021; Carlo Bernardi sworn 8 September 2021; Cristie Louise Hancock affirmed 9 September 2021; Nadia Therese McConnell affirmed 10 September 2021; Dr Patrick Bowden sworn 7 October 2021; Dr Ian Schmaman affirmed 4 October 2021; Peter Leopold affirmed 8 October 2021; Brenda Kathryn Leopold affirmed 8 October 2021; and Dr Andrew Hardidge affirmed 6 October 2021.

6 On 24 April 2014 the deceased made an informal will ('the informal document'). The informal document is a one-page document that is hand-written by the deceased. It is dated, headed '[t]his is the Will of Cameron Peter Leopold' and signed by the deceased at the end of the page. The informal document does not comply with s 7 of the Wills Act 1997 (Vic) ('the Wills Act'), as the deceased's signature is not witnessed.

(a) does not appoint an executor;

(b) includes an unusual revocation clause which states '[the informal document] supersedes a Will I prepared and lodged while living in Sydney';

(c) gives '[a]ll my worldly possessions... to my father and mother - Peter and Brenda Leopold' ('Peter' and 'Brenda' respectively);

(d) deems 'that up to 50% of the funds available on my death may be used by my parents in any way they see fit to care for my son - Harrison Leopold', and appoints his sister Nadia Leopold ('Nadia') to this responsibility in the event that his parents 'become infirm'; and

(e) states that '[w]hen my son reaches 21 years of age, the remaining funds shall be divided - 80% received by Harrison Leopold and 10% each to Ellie and Kye - my niece and nephew' (for simplicity, (d) and (e) will be referred to collectively as 'Harrison's trust').

8 The deceased also executed a formal will on 18 July 2003 using a 'will kit' ('the 2003 will'). The deceased lodged the 2003 will with the DacStar Group, a company that provides for the secure storage of wills for an annual fee. The deceased failed to respond to correspondence from the DacStar Group over a period of almost eight years and, in or around March 2014, the DacStar Group destroyed the original 2003 will due to non-payment of their account.

(a) appoints Peter as executor;

(b) appoints Nadia as substitute executor; and

(c) distributes the estate equally between Peter and Brenda, with a gift over to Nadia should both Peter and Brenda predecease the deceased.

10 The plaintiffs are solicitors of the firm McKean Park, acting on behalf of Cristie. By a non-enduring power of attorney executed 29 June 2020 ('the power of attorney'), Cristie purported to assign to the plaintiffs her right, as the guardian of Harrison, to apply for a grant of administration of the estate of the deceased. As well as being Harrison's guardian, Cristie is also a creditor of the estate in her personal capacity, pursuant to the extant family law property orders between herself, the deceased and his company.

11 By originating motion filed 14 July 2020 the plaintiffs sought a grant of administration of the estate with the 'will dated 24 April 2014' annexed.

12 Notably, the plaintiffs' application failed to mention that the 'will dated 24 April 2014' was put forward as an informal will, that the plaintiffs were acting in their capacity as attorneys of Cristie in her capacity as guardian of Harrison, who is the principal beneficiary under the informal document and a minor, and that they were actually seeking a grant of letters of administration of the estate of the deceased with the informal document annexed.

13 They also failed to specify whether the application was for a grant durante minore aetate or whether it was made pursuant to r 5.01 of the Supreme Court (Administration and Probate) Rules 2014 ('the Rules'), although a limited grant of similar effect was mentioned as perhaps contemplated in the affidavit of the second plaintiff sworn 14 September 2021, after the originating motion had been filed.

14 On the question of standing, in their written submissions, the plaintiffs sought to rely on r 5.01(1) of the Rules for a grant during minority; r 5.02 of the Rules for a grant under peculiar circumstances; and s 30 of the Trustee Act 1958 (Vic) ('the Trustee Act') to claim that the estate was under trusteeship awaiting a grant. In the alternative, they sought a grant of letters of administration with the informal document annexed, subject to it being formally admitted to probate, pursuant to s 9 of the Wills Act.

15 By orders of Judicial Registrar Englefield made 30 July 2021, Peter, Brenda, Nadia (in her capacity as parent to the deceased's nephew Kye McConnell ('Kye')) and the deceased's niece Ellie McConnell ('Ellie') were each served with notice of the application and given the opportunity to be joined as defendants, provided that any such application be made by summons issued on or before 20 August 2021.

16 Peter, Brenda and Nadia each provided their consent to the application. While Peter and Brenda deposed to some wishes in regard to the interpretation and future administration of Harrison's trust, their consent was not expressed as conditional on those matters.

17 Ellie did not respond to the plaintiffs nor did she file a relevant summons. Although Kye had since turned 18, he did not respond, however, consent had previously been provided on his behalf by his mother, Nadia, when he was a minor.

18 As at 28 January 2022, Harrison was the only party affected by the application who was not sui juris.

19 As the major beneficiary, namely Harrison, was a minor and could not consent, another beneficiary, Ellie, had not provided her consent and the value of the estate exceeded $1 million, by orders made 26 July 2021, Ms Kirsti Halcomb of counsel was appointed contradictor ('the contradictor'). In final submissions, the contradictor agreed in general terms that the informal document should be admitted to probate but raised some concerns with the form of the grant and the plaintiffs' standing in making the application.

20 Harrison is the residuary beneficiary with the largest interest in the estate. As a minor, he is unable to apply for letters of administration. Cristie is the only guardian of Harrison but resides in Italy. It is not practicable for her to make an application on behalf of her son.

21 In her submissions on the issue of standing, the contradictor:

(a) submitted that it would be more appropriate for the application to be amended to that of letters of administration durante minore aetate, whereby the plaintiffs would obtain a limited grant in the capacity of Harrison's court-assigned guardian;

(b) queried the application of r 5.02 of the Rules in relation to minors, as applications of this type are expressly contemplated under r 5.01;

(c) disputed that s 30 of the Trustee Act was applicable and, in particular, whether the estate could properly be described as being in 'trustee phase';

(d) submitted that any such grant would by necessity be made pursuant to s 9 of the Wills Act, given the nature of the informal document; and

(e) submitted that the proper order is for a limited grant, rather than a full grant.

22 The contradictor submitted that the Court may be satisfied, on the balance of probabilities, that:

(a) the deceased made only two possible testamentary documents - the 2003 will and the informal document; and

(b) if the informal document is found to be valid, the limited revocation clause contained within it is referring to, and validly revokes, the 2003 will.

23 The informal document is clearly a document within the meaning of s 9 of the Wills Act.

[T]he Court can be satisfied that the deceased intended the [informal document] to be his last Will, and that he had testamentary capacity, in the circumstances where:

(a) the form, structure and language of the [informal document] demonstrates that it was a final and concluded statement of his testamentary intentions;

(b) the deceased's failure to comply with the requisite formality to have witnesses is explicable by his minimal experience in will-making, the passage of time of more than 10 years since the making of [the 2003 will] and his character in prefer [sic] to deal with his own legal affairs rather than engage lawyers;

(c) the deceased called his mother on or about the date he made the [informal document] and said to her he had made a Will, the dispositions in the Will and where it was located, all of which was confirmed by the events that happened;

(d) the deceased placed the informal document in a prominent place in his office for his mother to find;

(e) the [informal document] is rational on its face, complies with some of the necessary formalities including possessing a signature of the deceased, and in form supports an inference that the deceased considered it a formal document.

25 Specifically on testamentary capacity, the Contradictor submitted that:

[T]he combined weight of the available evidence, both lay and expert, as well as the rational nature of the dispositions in the [informal document] itself, is sufficient to satisfy the Court that the deceased had testamentary capacity at the time he made [the informal document] on 24 April 2014.

26 As the natural guardian of the minor beneficiary, Cristie was a person entitled to a grant of administration. However, in circumstances where the person entitled to a grant of administration resided outside the jurisdiction, the Court was satisfied that the plaintiffs had standing to bring an application for a limited grant as Cristie's attorney.

27 On the basis of the evidence filed in the proceeding, the Court was satisfied to the requisite standard that the deceased had testamentary capacity at the time he made the informal document, that the informal document is a document within the meaning of s 9 of the Wills Act, that the informal document records the testamentary intentions of the deceased and that the deceased intended the informal document to be his last will. To the extent necessary, the Court was satisfied that the revocation clause in the informal document was sufficient to revoke the 2003 will.

28 The Court was also satisfied that, pursuant to r 5.01 of the Rules, a limited grant durante minore aetate should be made to the plaintiffs. To the extent that the plaintiffs sought, inter alia, that an unlimited grant should be made to them, or to rely on r 5.02 of the Rules for a grant under peculiar circumstances or relief pursuant to s 30 of the Trustee Act, the Court determined that those issues were not relevant in the circumstances of this proceeding.

29 The plaintiffs' initial notice of intention to apply for the grant was advertised and lodged by them on 16 June 2020. The advertisement predated the grant of the power of attorney. On 21 October 2021, the plaintiffs subsequently lodged a revised advertisement. As all persons with an interest in the estate of the deceased had been given sufficient notice of the substantive intention of the application and were not adversely effected by the initial error in the dates, the Court excused the irregularity in the timing of the advertisement of the notice of intention to apply for the grant and dispensed with any requirement for the plaintiffs to post a further notice.

30 Preliminary discussions appear to have occurred between at least the plaintiffs, Peter and Brenda regarding Ellie and Kye accessing their share of Harrison's trust when they attain the age of 18 years and for Harrison's share of the estate to be paid into Funds in Court. The Court made no orders in regard to the interpretation of Harrison's trust, specifically whether payment could be made to Ellie or Kye during Harrison's minority, as these issues fall outside the scope of the proceeding and, in addition, further notice must be given to any persons affected by these issues. It was unnecessary for the Court to make orders in regard to the payment of Harrison's trust into the Supreme Court, such powers being within the general power of trustees pursuant to s 69 of the Trustee Act. It was also unnecessary for the Court to make any orders under s 30 of the Trustee Act.

31 Peter and Brenda, as the named trustees of Harrison's trust, each deposed that they were unwilling to act in regard to the administration of the estate of the deceased generally. Nadia's appointment as substitute trustee is contingent upon her parents 'becom[ing] infirm'. Nadia deposed that she would also be unwilling to act in regard to the administration of the estate of the deceased generally. Any step involving the discharge of trustees and the appointment of new trustees to administer Harrison's trust should not be made in this application where a grant is sought, but may occur, if necessary, after a grant has been made by the Court.

32 On 19 August 2022, the Court made the following orders:

(a) Pursuant to r 36.01(1) of the Supreme Court (General Civil Procedure) Rules 2015, the title to the proceeding be amended nunc pro tunc to reflect that the proceeding is brought pursuant to r 5.01 of the Supreme Court (Administration and Probate) Rules 2014 and s 9 of the Wills Act 1997 (Vic) for a grant of letters of administration durante minore aetate of the informal will of Cameron Peter Leopold, deceased, and the heading to the proceeding be amended accordingly;

(b) Subject to any further requirements of the Registrar of Probates, pursuant to s 9(1)(a) of the Wills Act 1997 (Vic) and r 5.01 of the Supreme Court (Administration and Probate) Rules 2014, letters of administration durante minore aetate with the informal will of the deceased annexed, which is exhibit 'C' to the affidavit of the plaintiffs sworn 3 July 2020, be granted to the plaintiffs, Anne Marie Gasbarro and Stephen Paul Roache, subject to the limitations set out below;

(c) The grant of letters of administration be limited for the partial use and benefit of Harrison Leopold, the minor child of the deceased, until such time as Harrison Leopold attains the age of 18 years, applies for and obtains a grant;

(d) The requirements that the plaintiffs:

(i) provide an administration guarantee in relation to their administration of the estate pursuant to this order; and

(ii) post a further notice of their intention to apply for this grant on the Court's website -

be dispensed with;

(e) The proceeding otherwise be referred to the Registrar of Probates;

(f) The costs of the plaintiffs of and incidental to the proceeding be reserved.

33 On 23 August 2022 the Registrar of Probates made orders that letters of administration with the will annexed of the abovenamed deceased who died between 17 March 2017 and 24 March 2017 be granted to Anne Marie Gasbarro of Level 11, 575 Bourke Street, Melbourne, Victoria, and Stephen Paul Roache of Level 11, 575 Bourke Street, Melbourne, Victoria BUT LIMITED for the partial use and benefit of Harrison Leopold, the minor child of the deceased, until such time as the said Harrison Leopold attains the age of eighteen years, applies for and obtains a grant.

[1] The plaintiffs submitted that under Monegasque law, Harrison would receive the estate in its entirety. The Court was not asked to consider Monegasque law in its deliberations of this proceeding.