Re Leopold - [2022] VSC 579

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2020 23452

IN THE MATTER of the will and estate of CAMERON PETER LEOPOLD, deceased

APPLICATION BY:

ANNE MARIE GASBARRO and STEPHEN PAUL ROACHE

Plaintiffs

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	29 September 2022
CASE MAY BE CITED AS:	Re Leopold; Application by Gasbarro and Roache
MEDIUM NEUTRAL CITATION:	[2022] VSC 579

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PROBATE — Where plaintiffs seek general grant of administration of estate — Where testamentary document is an informal document — Whether informal document may be admitted to probate — Where principal beneficiary is a minor — Where limited grant of representation durante minore aetate made by Court.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms E Konstantinou	McKean Park
For the Contradictor	Ms K Halcomb

HER HONOUR:

Introduction

Cameron Peter Leopold (‘the deceased’) died between 17 and 24 March 2017 in Monaco. At the time of his death, the deceased was domiciled in Monaco. The deceased was survived by his son, Harrison Leopold (‘Harrison’), born on 21 February 2013. Harrison lives in Italy with his mother, Cristie Louise Hancock (‘Cristie’).

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.

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

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.

Affidavits

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.

Deceased’s informal will

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Leopold

Details

AGLC: Re Leopold [2022] VSC 579
Case: [2022] VSC 579
Decision Date: 29 September 2022

CaseChat Overview and Summary

The case of Re Leopold involved a dispute over the administration of an estate, specifically whether an informal testamentary document could be admitted to probate. The plaintiffs sought a general grant of administration of the estate of Leopold, who had passed away. The key issue was whether the document in question, which was not formally executed, could be considered valid and thus be admitted to probate. Additionally, since the principal beneficiary of the estate was a minor, the court had to consider whether a limited grant of representation for the minor should be issued.

The central legal issue before the court was the validity of the informal testamentary document. The plaintiffs argued that the document should be admitted to probate as it contained the testator’s intentions. The court had to determine whether an informal document could be deemed legally binding and, if so, under what circumstances. Furthermore, the court needed to decide whether a limited grant of representation should be issued to manage the estate until the minor reached the age of majority.

The court ruled that the informal document could indeed be admitted to probate, as it could be ascertained that it contained the testator’s clear intentions. The court emphasised the importance of considering the context and content of the document in assessing its validity. In light of the minor beneficiary, the court decided to issue a limited grant of representation during the minor’s age, ensuring that the estate was managed appropriately until the minor attained the age of majority. This decision balanced the need to respect the testator’s wishes with the necessity to protect the interests of the minor.

Orders