Re Sambucco - [2022] VSC 699

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S PRB 2019 21421

IN THE MATTER of the Estate of Marco Sambucco (also known Mark Steven Sambucco, deceased

BETWEEN

MARA SAMBUCCO	Plaintiff
v
ODILLA SAMBUCCO (a person under disability who sues by her litigation guardian Luisa Sambucco) and Others (according to the schedule)	Applicants

---

JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 May 2022
DATE OF JUDGMENT:	21 November 2022
CASE MAY BE CITED AS:	Re Sambucco
MEDIUM NEUTRAL CITATION:	[2022] VSC 699

---

WILLS AND ESTATES – Revocation of grant of letters of administration – Where deceased participated in religious wedding ceremony without proper notice of intention to marry – Whether religious wedding ceremony sufficient to revoke earlier will – Whether marriage void due to absence of real consent – Marriage Act 1961 (Cth), ss 23, 42, 48, 50 - Wills Act 1997, s 13 – Official Trustee in Bankruptcy v Edwards (1997) 21 Fam LR 829; Simpson Morgan v Burreket [2009] FamCA 138; Omerdic v Angland [2018] VSCA 320.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Greenberger	Collards
For the Applicants	Mr R Boaden	Baraka Law

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

The facts............................................................................................................................................... 2

Proceeding to quash marriage certificate...................................................................................... 5

The Applicants’ case in summary................................................................................................... 6

Marriage Act 1961 (Cth)..................................................................................................................... 7

Applicants’ primary contention – there was no marriage........................................................ 10

Applicants’ submissions............................................................................................................ 10
Mara’s submissions..................................................................................................................... 13
Consideration.............................................................................................................................. 21

Applicants’ alternative contention – marriage was void.......................................................... 26

Section 23B(1)(d)(ii)..................................................................................................................... 27

Applicants’ submissions............................................................................................................ 27

Mara’s submissions..................................................................................................................... 30

Consideration.............................................................................................................................. 31

Disposition........................................................................................................................................ 36

HIS HONOUR:

Introduction

In May 2019, Marco Sambucco and Mara Batur[1] decided to marry. They approached the Reverend David Rock of the Baptist Union of Victoria, the Lead Pastor at the Church by the Bay in Portarlington which they attended. The Revd D. Rock is and was an authorised celebrant under the Marriage Act 1961 (Cth) (the Marriage Act).
[1]Mara Batur changed her name to Mara Sambucco on 11 October 2019. In the interests of clarity and without intending any disrespect to the parties, I will refer to them by their first names.

On 8 June 2019, Marco and Mara participated in a ceremony conducted by the Revd D. Rock, which the Revd D. Rock has described as a ‘religious commitment ceremony’ (the ceremony). The central issue in this case is whether, by participating in this ceremony, Marco and Mara were lawfully married.

The issue arises in the following way. Marco, who had had cancer for approximately four years, died on 9 September 2019, three months after the ceremony, leaving a will made in 2015 (the Will). The Will gives the entirety of his estate to a discretionary testamentary trust in which his issue and certain companies are the primary beneficiaries. On his passing, Marco left no issue. The secondary beneficiaries under the testamentary trust are his parents, his siblings as well as their spouses and their issue, and certain…

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 Sambucco

Details

AGLC: Re Sambucco [2022] VSC 699
Case: [2022] VSC 699
Decision Date: 21 November 2022

CaseChat Overview and Summary

The case of Re Sambucco involved a dispute concerning the revocation of a grant of letters of administration and the validity of a religious marriage ceremony. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether the deceased's participation in a religious wedding ceremony was sufficient to revoke her earlier will, and whether the marriage was valid in light of the absence of real consent. The court needed to consider the interplay between the Marriage Act 1961 (Cth) and the Wills Act 1997.

The court examined the provisions of the Marriage Act 1961 (Cth) and determined whether the marriage was void due to the absence of real consent. The court also considered the relevant sections of the Wills Act 1997, specifically section 13, to assess whether the religious ceremony could be considered a sufficient act of revocation. The court referred to previous cases, including Official Trustee in Bankruptcy v Edwards, Simpson Morgan v Burreket, and Omerdic v Angland, to aid in its analysis.

The court concluded that the marriage was not valid as it did not meet the requirements of real consent under the Marriage Act 1961 (Cth). The court found that the religious ceremony did not constitute a valid marriage and, therefore, could not be considered an act of revocation under the Wills Act 1997. Consequently, the grant of letters of administration was upheld, and the deceased's earlier will remained in effect. The court's reasoning was grounded in the statutory requirements for marriage and the legal principles of will revocation.

The final orders of the court were that the grant of letters of administration was confirmed, and the deceased's earlier will remained valid. The court ruled that the religious ceremony did not constitute a valid marriage and, therefore, could not be considered an act of revocation of the will. This decision provides clarity on the interplay between the Marriage Act 1961 (Cth) and the Wills Act 1997 in cases involving the validity of religious marriage ceremonies and the revocation of wills.

Orders