WILLS AND ESTATES - Principal beneficiary of estate does not exist in the manner contemplated by the deceased, or at all - Applicability of Re Benjamin; Neville v Benjamin

(a) the deceased appointed Kyle Stuart Jackson as executor;

(b) if Mr Jackson was unable or unwilling to act, appointed the plaintiff as executor;

(c) gifted $100,000 to the plaintiff;

(d) gifted the residue of his estate to Mr Jackson; and

(e) in the event that Mr Jackson failed to survive the deceased, gifted the residuary estate to the plaintiff.

3 The plaintiff commenced this application in circumstances where Mr Jackson's identity has not been able to be verified and where there is considerable uncertainty as to whether or not Mr Jackson exists in the manner understood by the deceased, or at all. By originating motion filed on 13 December 2024, the plaintiff seeks judicial advice in respect of the following questions:

(a) Is the plaintiff in her capacity as executor of the estate of the deceased entitled to distribute the residuary estate to herself pursuant to cl 5 of the will?

(b) If not, to whom should the residuary estate be distributed?

(a) Christina Kaye Jones sworn 18 June 2023; and

(b) Rachel Lee Hocking sworn 7 November 2024, 19 May and 20 June 2025.

5 The plaintiff and the deceased were married between 1976 and 1989 and remained close friends following their separation. The deceased was then in a relationship with Phillip William Seymour for approximately 40 years until Mr Seymour died in 2017. Following his death, the deceased appears to have engaged in successive 'online' relationships. The final of those was with Mr Jackson from about early 2022. The deceased made his will in contemplation of his possible marriage to Mr Jackson, albeit he did not ever meet him in person.

6 After his death, the deceased's former solicitor, Ms Jones, and the plaintiff's solicitors, KHQ, have made various attempts to contact Mr Jackson. I have summarised those attempts below.

(a) On 12 October 2022, Ms Jones attempted to contact Mr Jackson by phone on a number given to her by the deceased prior to his death. The call went unanswered, so she sent an email to the email address for Mr Jackson that had also been provided by the deceased, being 'oneluckysoull@gmail.com'.

(b) On 18 October 2022, Ms Jones received an email from the email address she had emailed. Following a series of further communications, Ms Jones spoke with a person claiming to be Mr Jackson by phone. The person purporting to be Mr Jackson said he had never been to Australia or met the deceased in person. He said he was upset about the news of the deceased's passing and could not continue the call.

(c) On 19 October 2022, Ms Jones sent an email to the 'oneluckysoull' email address, seeking to confirm his identity and sending a Zoom invitation so they could have a video call. She did not receive a response.

(d) On 20 October 2022, Ms Jones received an email from the 'oneluckysoull' email address which stated, amongst other things:

I want to respectfully excuse myself as a beneficiary of Williams estate. I don't want it, I don't deserve it. Kindly contact his close friends Chris and Con as I trust them even if they don't know me.[2]

Thereafter, Ms Jones did not have any contact with Mr Jackson, save for being copied onto one email to the plaintiff's solicitors in March 2023.

(e) On 6 March 2023, KHQ sent an email to the 'oneluckysoull' email address enquiring whether or not Mr Jackson wanted to administer the deceased's estate.

(f) On 7 March, a reply email came from the 'oneluckysoull' email address, in which a person purporting to be Mr Jackson stated:

Hello Everyone,

I am messaging you to give you the right to transfer the responsibility of executing William Southey's to Kaye Moseley. However, there is a caveat. I must be intimated of every step of the process of execution as well as entitled to 15% of his estates value and I will decide whom or what charity to send my share to. It is not too much to ask. I will also be happy to directly communicate with Kaye Moseley. She can send direct correspondence to my email. I will not be picking calls from anyone except her. My relationship with William was special and I am yet to recover from his demise, his memory will forever linger and I will live the rest of my life inspired by his genuine love and kindness. He was a good man, filled with love.

Kyle

PS: I will only be willing to share private information with Kaye about the nature of our relationship.[3]

(g) On 9 March 2023, KHQ sent a further email to the 'oneluckysoull' email address requesting Mr Jackson verify his identity and contact details, and provide a contact phone number. KHQ did not receive a response.

(h) On 20 March 2023, having received no response to their 9 March 2023 email, KHQ sent a follow up email to the 'oneluckysoull' email address. KHQ did not receive a response.

(i) On 21 March 2023, the plaintiff sent an email to the 'oneluckysoull' email address to, amongst other things, ask that Mr Jackson provide the information requested by KHQ.

(j) On 24 March 2023, in an email sent from the 'oneluckysoull' email address, a person purporting to be Mr Jackson provided an image of what purports to be the photo page from a US passport for a man named 'Kyle Jackson' born 18 October 1984. The date of issue is 9 January 2018 and date of expiration 18 October 2024. In the covering email, Mr Jackson provided an address at Broadway Street, Pennsylvania, and indicated he would not meet anyone via videocall and that any communications would be via email only. KHQ and the plaintiff each received further emails that day from the 'oneluckysoull' email address stating to the effect that Mr Jackson wanted nothing to do with the estate. The email to the plaintiff stated:

I have also advised the lawyers about relieving the administrative duties to you as I am not interested in any part of his estates, but I would love for a fraction of the proceeds to be sent to any non profit of my choice.[4]

(k) On 24 March 2023, after receiving the image of the passport, KHQ sent an email to the 'oneluckysoull' email address requesting Mr Jackson's best contact telephone number. They did not receive any reply.

(l) On 6 April 2023, KHQ sent an email to the 'oneluckysoull' email address attaching a draft renunciation of probate, an affidavit of verification, and a deed of disclaimer, as well as a covering letter recommending he obtain independent legal advice.

(m) On 12 April 2023, KHQ sent a copy of its 6 April 2023 letter and its enclosures to the Pennsylvania address.

(n) On 19 April 2023, KHQ received a voicemail from a man named Jeremy Snyder informing KHQ that documents had been sent to his address and that no one by the name of Mr Jackson resided there. In a subsequent call KHQ had with Mr Snyder, he confirmed that he was not aware of anyone by the name of Kyle Jackson or Kyle Stuart Jackson having ever lived at that address.

(o) On 13 December 2023, a person purporting to be Mr Jackson responded to the 6 April 2023 email from the 'oneluckysoull' email address stating he had been involved in an accident, had only just recovered, and asked '[i]s it too late to fill the forms?'[5] Upon being informed that the plaintiff had been granted probate but that he was welcome to return the completed documentation, the person purporting to be Mr Jackson replied by email (also on 13 December 2023) stating:

I am sure Will is rolling in his grave now. You guys went behind my back and made this happen all because of the love for money. He always wanted help his people back in Fiji and help the needy, sadly, this will never be actualized.[6]

(p) KHQ had no further contact with Mr Jackson subsequent to this email, although it has sent the originating process in this proceeding, and the Court's orders to the email address and to the Pennsylvania address.

7 On 2 August 2023, the plaintiff applied for a grant of probate. On 17 October 2023, Keith JR made orders passing over Mr Jackson as executor. The plaintiff was granted probate of the will on 25 October 2023.

8 The plaintiff has sought to verify the identity of Mr Jackson for the purposes of determining whether she should distribute the gift under the will to him.

9 First, the plaintiff's solicitors made an enquiry as to the authenticity of a copy cheque made payable to Mr Jackson for $1,200,536 CAD, allegedly for the purchase of two Jean Basquiat paintings by April Brickfield of 345 Queen St E, Brampton, Ontario, Canada, and which was found amongst the deceased's personal effects. On 14 March 2023, KHQ wrote to the Toronto-Dominion Bank enquiring as to the validity of the cheque. Also on 14 March 2023, KHQ wrote to Ms Brickfield at the Canadian address, but its correspondence was later returned to sender. On 21 April 2023, a KHQ employee spoke with Tina Tian from the Whitby, Ontario branch of the Toronto-Dominion Bank who confirmed that the cheque issued to Mr Jackson wasn't valid and would not clear if presented for payment. The bank confirmed this advice by subsequent email.

10 KHQ has also made various enquiries regarding the validity of the passport issued to Mr Kyle Stuart Jackson, an image of which was provided by a person purporting to be Mr Jackson via email from the 'oneluckysoull' email address. KHQ's enquiries with the US Consulate in Melbourne have not been responded to and its other enquiries could not be answered on privacy grounds. In her first affidavit, Ms Hocking deposes as to her observations that the photo in the passport image is non-compliant with the requirements for passport photos as published on the US Department of State - Bureau of Consular Affairs website.

11 In June 2024, the plaintiff engaged a private detective based in the United States to locate or obtain information about the identity and existence of Mr Jackson. On 17 July 2024, the private detective, Mr Rahimzadeh provided his report. In his report he concludes that the passport is fraudulent and Mr Jackson is not a real person.

13 The relevant parts of the will are set out below (formatting and typographical errors in original):

THIS IS THE LAST WILL AND TESTAMENT of me WILLIAM IAN SOUTHEY of 20 Maitland Avenue, Kew, Victoria and I declare that this Will is made in contemplation of possible marriage to KYLE STUART JACKSON and shall remain unrevoked notwithstanding such marriage, but is not conditional on such marriage taking place.

...

1. I APPOINT my partner KYLE STUART JACKSON as the Executor of my Will and Trustee of my Estate PROVIDED THAT if Kyle is unable or unwilling to act or continue to act I APPOINT my friend KAYE MOSELEY as the Executor of my Will and Trustee of my Estate. I DECLARE that the expression "my trustee" when hereinafter used and where the context permits shall mean and include the executor and trustee for the time being of my will whether original, substitute or additionally appointed.
2. I GIVE the sum of ONE HUNDRED THOUSAND DOLLARS ($100,000) to my friend KAYE MOSELEY for her own use and benefit absolutely.
3. I GIVE the rest of my estate to my trustee UPON TRUST for sale with the power to postpone the sale of the whole or any part or parts of the said property and out of the proceeds of such sale and any money forming part of my estate to pay my debts funeral and testamentary expenses and all duties and taxes in connection with my estate and to GIVE the balance of my said property (herein called 'my residuary estate') to my partner KYLE STUART JACKSON for his own use and benefit absolutely.
4. In the event that my said partner KYLE STUART JACKSON fails to survive me, I GIVE my residuary estate to my friend KAYE MOSELEY for her own use and benefit absolutely. [7]

14 The deceased's estate consisted of a property at 20 Maitland Avenue, Kew, which was sold for $2,520,000 on 18 November 2023, an amount of cash and shares and an old Holden Captiva.

15 Order 54 of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) permits an executor to seek judicial advice in respect of a wide range of issues, including about a matter of administration, or as to the construction of the terms of a will, without the need to commence an administration suit.[8]

16 By this application, the plaintiff seeks advice in respect of the proper construction of the deceased's will. In particular, she seeks advice as to the proper construction of cls 4 and 5 of the will in circumstances where it is unclear if the named beneficiary, Mr Kyle Stuart Jackson, exists in the manner understood by the deceased, or at all.

17 The plaintiff submits that Mr Jackson does not exist, and so the estate should be distributed without further regard to any interest attributable to him. She submits that the gift over in cl 5 of the will should be engaged, with the residue of the estate payable to her.

18 The status of the gift to the person named in cl 4 of the will as Kyle Stuart Jackson depends on whether Mr Jackson exists but cannot be located, or whether he does not exist, at least in the way contemplated by the deceased. It is relevant to this analysis that the deceased never met Mr Jackson, having developed a relationship with him online.

19 The plaintiff has been unable to verify Mr Jackson's identity using the contact information provided for him by the deceased, or using contact information provided by a person or persons purporting to be Mr Jackson. Requests for video calls have been ignored or refused. The persons or persons purporting to be Mr Jackson have refused to communicate other than by email. Email communications requesting contact or identity information have either been ignored, or where responded to, false information has been given. One such email sent by a person or persons purporting to be Mr Jackson attached an image of the photo page of a US Passport in the name of Kyle Stuart Jackson and disclosed a residential address in Pennsylvania.

20 The email communications have been sporadic and inconsistent, on one occasion accusing the plaintiff's solicitors of going 'behind my back'.[9] Draft renunciation documentation was never signed. The originating process has been served by email and by post to the nominated Pennsylvania address. There has been no attempt to file an appearance or participate in this hearing.

21 I am satisfied that the image of the US passport provided to the plaintiff's solicitors is of a fraudulent passport. The passport photo featured in the image does not comply with the US Department of State requirements. It also purports to have a period of validity that is shorter than the period of validity for which passports are issued in the United States. The private investigator engaged by the plaintiff could not find any record of the birth of any person named Kyle Stuart Jackson corresponding with the date of birth shown in the passport.

22 The plaintiff's investigations have also revealed that there is no person by the name of Kyle Jackson resident at the Pennsylvania address. To the knowledge of the current residents at that address, no one by that name has ever resided there. Those investigations have also confirmed that the copy cheque located amongst the effects of the deceased and made out to Kyle Jackson is not a valid cheque.

23 Based on the evidence before the Court, I am satisfied that the person named in cl 4 of the will as Kyle Stuart Jackson does not exist in the manner understood by the deceased, or at all.

Applicability of a Re Benjamin; Neville v Benjamin ('Benjamin')[10] type order

24 The plaintiff submits that, in the event that the Court were to find that Mr Jackson exists but cannot be found, then an order similar to a Benjamin order would be appropriate. In such cases, orders are sought to enable distribution without regard to that beneficiary's entitlement where, after conducting all reasonable searches, an executor cannot locate a beneficiary and they are presumed to be dead.

25 I accept that the plaintiff has undertaken necessary and proper investigations to verify Mr Jackson's identity, and that there are no other practicable, or useful, searches or attempts that could be made that are likely to reveal any further information. However, I am satisfied that the evidence does more than establish that he cannot be located - I am satisfied that Mr Jackson does not exist in the manner understood by the deceased when he was named in the deceased's will. Clearly a person or persons have been using that identity to engage with the deceased using the 'oneluckysoull' email address and the contact phone numbers in the deceased's possession. But the identity that has been used is not a real one; it does not belong to any real person. This means that the beneficiary to whom the deceased intended to bequeath his testamentary gift does not exist.

Proper construction of the will in circumstances where Mr Jackson does not exist

26 Clause 4 of the will reveals an unambiguous intention by the deceased to gift the residuary estate to the person who the deceased believed to be Mr Jackson. That belief is supported by the will having been made in contemplation of marriage between the deceased and Mr Jackson. The deceased believed that he was a real person.

27 There being, on the evidence, no Mr Jackson in existence in the way understood by the deceased, the gift provided by cl 4 must necessarily fail. There is no valid beneficiary meeting the description in the will to receive the gift. This means the estate can be distributed without regard to the entitlement which fails under cl 4.

28 Having determined that the gift of residue in cl 4 of the will fails, the Court must determine, as a matter of proper construction of the will, whether the gift over in cl 5 operates or fails too. Clause 5 states:

In the event that my said partner KYLE STUART JACKSON fails to survive me, I GIVE my residuary estate to my friend KAYE MOSELEY for her own use and benefit absolutely.[11]

The contingency referred to in cl 5, which must be construed in these circumstances, is the event where Mr Jackson 'fails to survive me'.

29 It is useful to recall some of the principles relating to the construction of wills. The Court's task is to 'give effect to the testator's intention through examination of the words used in the will, having regard to the will as a whole, aided as necessary by any admissible extrinsic evidence.'[12] The words used will usually be given their ordinary meaning, unless inconsistent with the intention of the testator leading to a capricious result.[13] It is open to the Court to insert missing words which are clearly necessary to give effect to the testator's intention,[14] but a Court cannot rewrite a will merely because it suspects the testator did not mean what is actually expressed.[15] Additionally, where there is a potential ambiguity that stems from alternative constructions of relevant words in a will, the Court will endeavour to adopt a construction that avoids an intestacy.[16]

30 Another general rule of construction specific to gift over clauses is that a gift over on contingency will not usually take effect unless the exact contingency as specified occurs.[17] However, an exception to this general rule emerged in the case of Jones v Westcomb.[18] McMillan J described this exception in Re Rattle (No 2) Equity Trustees Ltd v Halstead ('Re Rattle')[19] as follows:

The general rule is that a gift over on a contingency will not take effect unless the exact contingency specified occurs. The rule in Jones v Westcomb provides an exception to the general rule. Although the scope of the rule has been uncertain, in Re Edwards it was said to apply where, based on the will read as a whole and in light of any admissible extrinsic evidence, the testator a fortiori intended the gift over to operate in the circumstances that occurred. In this regard, 'a fortiori' means 'from yet firmer ground' and introduces a fact that, if a prior fact is true, must still be more obviously true'. In the application of the rule in Jones v Westcomb, the contingency that occurred is implied by necessary implication to be encompassed by the contingency provided for by the will.[20]

As her Honour clarified in Re Edwards; State Trustees Ltd v Edwards ('Re Edwards'),[21] the rule in Jones v Westcomb is an application of the principles of will construction as identified in Fell, and it is not applied in order to bring about a result that the Court considers fair.[22] Determining whether to invoke the exception in the circumstances of this case necessitates asking the question: if the testator had contemplated the contingency that did occur, is it obvious the testator must have intended that the gift over would still operate?[23]

31 The plaintiff submitted that cls 4 and 5 were 'clearly intended by the deceased to dispose of his remaining property'[24] and that the contingency contained in cl 5 was 'expressed relatively expansively'[25] and 'in negative terms'[26] rather than positively requiring Mr Jackson to have pre-deceased the deceased. The plaintiff submitted that this revealed a general intention for the gift over to operate in favour of the plaintiff in any situation, save only where Mr Jackson survives to take the benefit. She submitted that on one view Mr Jackson had failed to survive the deceased, there being no such person who could survive him, and so the contingency operates. I do not accept this submission as being consistent with the ordinary meaning to be given to the word 'survive' in this context. 'Survive' is defined in the Macquarie Dictionary as:[27]

-verb (i) 1. to remain alive after the death of someone or after the cessation of something or the occurrence of some event; continue to live.

2. to remain in existence after some person, thing, or event; continue to exist.

...

-verb (t) 4. to continue to live or exist after the death, cessation, or occurrence of; outlive.

Common to each of these definitions is existence. The concepts of remaining alive and continuing to exist, each presupposes that there is, or was, existence. By this gift over clause, the testator contemplated a situation where the beneficiary was a real person who failed to remain alive after he died. Mr Jackson has not failed to remain alive or not continued to exist, because he never existed in the first place. Therefore, Mr Jackson's non-existence is not the contingency specifically described in the gift over in cl 5.

32 The plaintiff submitted in the alternative that the Court could extend cl 5 pursuant to the rule in Jones v Westcomb to determine 'the real contingency that was intended to be met by the clause and determine whether the event that has actually occurred was impliedly intended by the deceased to be covered by that contingency'.[28] This involves an assessment of what the deceased's intentions were, having regard to the language of the will and admissible evidence in respect of surrounding circumstances.[29]

33 The plaintiff submitted, and I accept, that the language of the will reveals a clear intention on the part of the deceased to avoid an intestacy. Clauses 4 and 5 are intended to deal comprehensively and absolutely with the residuary estate. There are no other gift over clauses in the will. The fact that cl 5 favours the plaintiff in the event Mr Jackson does not take his gift, is consistent with the deceased's prior wills. The plaintiff has been the focus of the deceased's testamentary bounty since 1999. The penultimate and antepenultimate wills (made prior to the deceased having commenced his relationship with Mr Jackson but after the death of Mr Seymour) each provide for the plaintiff to take the majority of the deceased's estate.[30] The intention to provide a gift over in favour of the plaintiff in the present circumstances, and the broad preference to avoid intestacy in favour of her, is, as the plaintiff submits, rational, explicable and readily inferable from the deceased's prior testamentary instruments. I am satisfied that the terms of cl 5, 'fails to survive me',[31] are indicative of a general intention for the plaintiff to benefit from the residuary estate in the event Mr Jackson is unable to, whether because of the circumstances foreseen, his death, or unforeseen, his non-existence. Using the language from Re Edwards, the inference that the gift over was to take effect if Mr Jackson never existed was ineluctable.[32]

34 Although the construction of a will in each case is fact dependent, a similar gift over clause was extended using the rule in Jones v Westcomb in the Queensland Supreme Court case of The Trust Company Limited v Gibson.[33] In that case a gift over clause in the will was expressed to apply on the contingency of the primary beneficiary 'predeceasing me or failing to survive me'.[34] The primary beneficiary disclaimed her interest. The Court held:

In the circumstances, what the deceased intended to guard against was an intestacy due to the gift to Mrs Gibson not taking effect. The result of the disclaimer of the gift by Mrs Gibson is the same contingency that the deceased was endeavouring to avoid by including cl 3(b) in his will. In those circumstances, the rule in Jones v Westcomb should apply, and cl 3(b) of the will should be construed as impliedly including the event of Mrs Gibson disclaiming the gift under cl 3(a) of the will.[35]

Based upon the deceased's intention, evidenced by the language of the will, to avoid an intestacy if the primary beneficiary did not take the benefit of her gift, the Court found that the event of the beneficiary disclaiming her interest was impliedly included in the contingency. The same can be said for the deceased's will based on the evidence in this case.

35 The plaintiff directed the Court's attention to the cases of Re Rattle and Re Edwards, wherein the Court was not prepared to extend a similar gift over clause where the event sought to trigger the contingency was the application of the forfeiture rule. A relevant consideration in those cases was the danger of presuming what the deceased intended in the circumstances where the primary beneficiary killed the deceased. In each one, the gift over operated in favour of secondary beneficiaries who were related to the murderer. These cases involve an extreme contingency, namely forfeiture because of the criminal acts of the primary beneficiary, and it would not be rational to infer that the deceased in each case intended for those events to be impliedly included in the contingency. Responsibly on this ex-parte application, the plaintiff highlights the possible argument that the non-existence of the primary beneficiary is an extreme circumstance that the deceased did not intend be covered given he made his will in contemplation of marrying Mr Jackson. However, in the cases cited, the intention of the plaintiff in the event of such contingency was not readily apparent from the language of the will or the surrounding admissible evidence. Here, the deceased's intention to avoid intestacy, and favour the plaintiff as the secondary beneficiary in the event Mr Jackson did not take his benefit is clear.

36 Given the failure of the gift in cl 4, I do not need to consider the issue of disclaimer.

37 For the reasons outlined above, the Court advises as follows.

(a) The plaintiff is entitled to distribute the estate without further regard for Mr Jackson's interest as the gift under cl 4 of the will has failed.

(b) The plaintiff is entitled to distribute the residue of the estate to herself in accordance with cl 5 of the will.

38 I am satisfied that the plaintiff be indemnified for her costs of seeking this advice.[36] Accordingly, I will order that the plaintiff's costs of and incidental to this application be paid and retained out of the estate on a trustee basis.

[1] The originating motion was filed on 13 December 2024, before the introduction of the Supreme Court (General Civil Procedure) Rules 2025 (Vic) ('Rules') came into effect. By virtue of r 1.05(1) however, the Rules apply to this proceeding. In any event, no changes have been made to Order 54 as between the 2015 Rules and the Rules: see Explanatory Memorandum to the Rules at 13.

[2] Affidavit of Christina Kaye Jones sworn 18 June 2023, [19], Exhibit CKJ-1, 3-5.

[3] Affidavit of Rachel Lee Hocking sworn 7 November 2024, [12], Exhibit RLH-1, 6 ('Hocking affidavit').

[4] Hocking affidavit [18], Exhibit RLH-1, 16.

[5] Hocking affidavit [23], Exhibit RLH-1, 26A.

[6] Hocking affidavit [23], Exhibit RLH-1, 26B.

[7] Hocking affidavit, Exhibit RLH-1, 2.

[8] Morris v Smoel [2013] VSCA 11, [22]-[23] (Maxwell P, Whelan JA agreeing).

[9] Hocking affidavit [23], Exhibit RLH-1, 26B.

[10] [1902] UKLawRpCh 26; [1902] 1 Ch 723 ('Benjamin').

[11] Hocking affidavit, Exhibit RLH-1, 2.

[12] Craven v Bradley (2021) 63 VR 567, 586-7 [74].

[13] Re Allsop [1968] Ch 39, 47 (Lord Denning MR); Re Lapalme; Daley v Leeton [2019] VSC 534; (2019) 60 VR 71, 78 [30].

[14] Fell v Fell (1922) 31 CLR 268, 274 (Isaacs J) ('Fell'); Butlin v Butlin [1966] HCA 4; (1966) 113 CLR 353, 357 (Barwick CJ); Chan v Valmorbida [2019] VSC 336, [51].

[15] Perrin v Morgan [1943] AC 399, 420 (Lord Romer). See also Re Mas; Weston v Donaldson [2018] VSC 405.

[17] Re Edwards; State Trustees Ltd v Edwards [2014] VSC 392, [45] ('Re Edwards').

[19] [2018] VSC 700, [17] ('Re Rattle').

[22] Ekert v Mereider (1993) 32 NSWLR 729, 732-3.

[24] Submissions filed 3 October 2025, [50] ('Plaintiff's submissions').

[27] Macquarie Dictionary (online at 11 December 2025) 'survive'.

[30] Hocking affidavit, Exhibit RLH-1, 89 [6], 94 [6].

[31] Hocking affidavit, Exhibit RLH-1, 2 [5].

[33] [2014] 1 Qd R 553 ('Gibson').

[36] Yuen & Anor v Louey [2023] VSC 423, [38]-[39].