Re Ramos

[2025] VSC 19

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
IN ITS PROBATE JURISDICTION
TRUSTS, EQUITY AND PROBATE LIST

S PRB 2023 22736

IN THE MATTER of the deceased estate of GEORGE FRANK RAMOS for an application for revocation of grant of probate

DEENISHA NADESAN and MARCELLE JARDIM	Plaintiffs
v
DEENISHA NADESAN and MARCELLE JARDIM	Applicants

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JUDGE:	Gray J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January 2025
DATE OF JUDGMENT:	31 January 2025
CASE MAY BE CITED AS:	Re Ramos
MEDIUM NEUTRAL CITATION:	[2025] VSC 19

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PROBATE – Identity theft – Grant of probate obtained on behalf of clients fraudulently representing themselves as the executors named in the deceased’s will – Application by true executors to revoke grant of probate – Court’s power to revoke a grant of probate obtained by fraud.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	N/A	McManus & Co Lawyers

HIS HONOUR:

1. This case demonstrates the risks to the profession and public of identity theft in relation to probate matters.

1. George Frank Ramos (the deceased) died on 9 July 2021 in the Republic of South Africa leaving a Will dated 10 January 2018. The Will named Deenisha Nadesan and Marcelle Jardim[1] as executors.

   [1]The Will referred to ‘Jardim Financial Consulting’, which is Ms Jardim’s business.

1. On 3 November 2021, Letters of Executorship were made to Deenisha Nadesan and Marcelle Jardim of the Will in the Republic of South Africa.

1. In July 2023, the Victorian law practice, McManus & Co Lawyers, was contacted by a person calling from South Africa and purporting to be ‘Marcelle Jardim’.

1. The caller claimed to have received the law practice’s details from the Law Institute of Victoria. The caller sought a consultation, claiming to be one of the executors of the deceased’s estate.

1. The law practice requested that documents, including the grant of probate in South Africa, the deceased’s death certificate and the Will, be emailed to the law practice.

1. The caller emailed these and other documents. The documents received by the law practice appear to be genuine, including letters of executorship, the Will, and the death certificate, and are certified in a document signed by the Assistant Master of the ‘South Gauteng High Court, Johannesburg, of the High Court of South Africa’ and bearing a seal.

1. Later, the caller purporting to be Ms Jardim emailed the purported contact details of Deenisha Nadesan.

1. The firm requested and received from the purported executors copies of identification documents of Ms Jardim and Ms Nadesan. Again, these appear to be genuine, although they are only indirectly certified as such. By ‘indirectly’ I mean that the identification documents appear to have been certified as authentic copies of the originals by a named notary public in Gauteng, and then in turn a Registrar of the High Court of South Africa, ‘South Gauteng Local Division, Johannesburg’, has appended a cover page bearing a seal, and certified that the identify documents are duly notarised.

1. The law practice advertised the purported executors’ intention to seek a grant of probate, and subsequently made such an application to this Court.

1. This Court sent a requisition for an affidavit from a lawyer in South Africa confirming the reasons why the original will could not be released. An affidavit was provided by the purported Ms Jardim and filed by the law practice.

1. On 13 September 2023, this Court granted probate to the purported executors (2023 grant), with Unique Identifier 93969646.

1. There followed quite extensive correspondence between the law practice and the purported executors relating to the funds in certain ANZ bank accounts of the deceased. The purported executors instructed the law practice to obtain those funds with a view to distributing the funds at the direction of the purported executors.

1. It is noteworthy that at no time did the purported executors ever agree to a video conference with the law practice. They made excuses in that regard, claiming poor internet connectivity.

1. The ANZ bank account funds were paid into the trust account of the law practice, and the law practice began preparing a distribution statement.

1. At about this time, the communications from the purported executors became emotive and more frequent. This aroused the suspicions of Gabrielle McManus, the principal of the practice.

1. Prior to finalising the distribution, to her credit, Ms McManus conducted searches, including via Google, to obtain publicly available contact details for Ms Jardim and Ms Nadesan. Fortunately, both appear to have significant profiles in South Africa and their contact details were obtained by Ms McManus from public sources.

1. Ms McManus compared those contact details with the contact details and associated website of the purported executors. There was no correlation between the two. Ms McManus formed the view that the website apparently associated with the purported executors ( appeared legitimate, but contained grammatical errors and ‘dead links’. Ms McManus made contact with the true Ms Jardim via her publicly available contact details and learned that the true Ms Jardim had no knowledge of any of the transactions or correspondence that had been undertaken by the law practice to that time.

1. After ascertaining what had occurred, both Ms Jardim and Ms Nadesan authorised the practice to act on its behalf in this proceeding, and provided affidavits that have been filed in support of their application for revocation of the 2023 grant.

1. The law practice, with the authority of the true Ms Jardim and Ms Nadesan, then filed a summons in this proceeding by which they sought revocation of the 2023 grant. The deceased’s widow, who is the sole beneficiary under the Will, consents to the application.

1. I am informed that, in a separate proceeding, the true Ms Jardim and Ms Nadesan have made a fresh application for a grant of probate of the will.

1. The express powers of the Court conferred by the Administration and Probate Act 1958 (Vic) and by the Supreme Court (Administration of Probate) Rules 2023 (Vic) (including its relevant predecessors) do not address the present circumstances.

1. Section 67 of the Administration and Probate Act 1958 provides that when not otherwise provided for, the practice of this Court in its probate jurisdiction will be the practice of the Court in its ecclesiastical jurisdiction prior to 1 January 1873.

1. It has long been accepted that the Court has a broad discretionary power to revoke a grant of probate based on its consideration of all the circumstances of the case.[2] As Sir Francis Jeune, President of the Probate, Divorce and Admiralty Division of the High Court of Justice said in 1900, ‘the real object which the Court must always keep in view is the due and proper administration of the estate and the interests of the parties beneficially entitled thereto’.[3] Further, a grant obtained as a result of fraud may clearly be revoked.[4] I am satisfied that the grant in this case was obtained by fraud.

   [2]See In the Goods of Loveday [1900] P 154, 156 (Sir Francis Jeune P); see also: Bates v Messner (1967) 67 SR (NSW) 187, 191-192 (Asprey JA); Mavrideros v Mack (1998) 45 NSWLR 80, 101-102 (Sheller JA); Profilio v Profilio [1999] NSWSC 657 [25]-[28] (Bryson J); Lana Clarice Photios as Executor of the Estate of Henry Basil Photios v David Peter Photios [2018] NSWSC 1414, [70]-[83] (Rees J).

   [3]In the Goods of Loveday [1900] P 154, 156.

   [4]Re Gillard [1949] VLR 378.

1. In characterising the grant in this case as one obtained by fraud, I am of course not suggesting that the law practice or Ms McManus had any knowledge of the fraud or (at the time of the grant) any reason to reasonably suspect one. However, as a matter of objective fact ascertained after the event, the law practice was acting on instructions from persons unknown who had fraudulently assumed the identities of the true executors.

1. Even though the fraud has now been uncovered and the executors are now instructing her, the executors wish to have the 2023 grant revoked and to obtain a fresh grant. Ms McManus explained to me that she and the true executors are concerned that the purported executors may be able to exploit the 2023 grant in some way if it is not revoked.

1. I am satisfied that the grant should be revoked and will forthwith make such an order.

1. The law practice and its principal, Ms McManus, are to be commended for taking the precautions they did before making a final distribution of the funds obtained from the deceased’s ANZ bank accounts. Ideally, of course, those precautions might have been taken at an earlier stage, before application for a grant of probate was filed in the Court. I note that Ms McManus has now prudently adopted certain practices to reduce the risk of a fraud of this kind recurring. For example, as well as insisting on verified identification documents, the practice makes inquiries to ensure that the person whose name appears as notary or witness actually verified the documents. Further, the practice now insists on a video conference at which the client must display the verified identification clearly.

1. The evidence gives me cause for concern that there are weaknesses in the systems of record maintenance and communication that can be exploited by persons with criminal intent. It is simply unexplained and unclear how the purported executors came into possession of apparent genuine copies of sensitive documents presumably filed by the true executors in South Africa. There is also some reason to fear that correspondence between the true executors (one of whom has a prominent law firm in South Africa) and the ANZ bank might have been intercepted.

1. No order as to costs was sought.