In an extremely important decision, the Supreme Court of Victoria considered a case where the primary beneficiary named in a Will could not be identified and may have never existed, at least not in the way the testator believed him to exist (Re Southey [2025] VSC 801). This unusual case raised questions surrounding Will construction, the identity of a beneficiary and the operation of a gift-over clause in a Will.

More broadly, this case also raises important considerations for will-makers and legal practitioners, including:

  • the growing risk of online relationships influencing testamentary decisions; and
  • the challenges associated with verifying beneficiaries in different jurisdictions.

Did the deceased’s partner exist?

The deceased died on 11 October 2022, leaving a last Will dated 16 August 2022.

Under the Will, the deceased appointed who he believed to be his partner as executor and trustee of the estate and, apart from a gift to his long-term closest friend, left the residuary estate to the ‘partner’. In the event that the partner was unwilling or unable to act or continue to act, the deceased’s friend was appointed as substitute executor and trustee. The friend was also the residuary beneficiary if the partner failed to survive the deceased.

The Will was made in contemplation of marriage between the deceased and the partner, whom the deceased met online in early 2022. The deceased never physically met the partner – their relationship was conducted entirely online.

Following the deceased’s death, attempts to contact the partner were difficult and sporadic with the primary method of communication being via an email address. Attempts to verify the partner’s identification proved even more difficult and involved issues of fraudulent documentation.

Court’s Decision

On 25 October 2024, the Supreme Court granted probate to the friend as substitute executor, passing over the partner. The deceased’s estate was valued at approximately $2.18 million for probate purposes. The issue before the Court was then as to the proper distribution of the deceased’s estate in accordance with the Will.

Based on the extensive investigations conducted, the Court was satisfied that the partner did not exist in the manner in which the deceased understood him to exist (if at all) and the gift of the residuary estate to the partner failed – as there was no valid beneficiary to meet the description in the Will. Accordingly, the residuary estate was awarded to the friend in accordance with the clear intentions that could be ascertained from the Will, taking into consideration the surrounding circumstances of the previous will-making history (in favour of that friend).

Key takeaways

In the judgment, the Court provides a helpful and interesting summary of the distinction between other Will construction cases, such as Re Rattle and Re Edwards, which applies principles from Jones v Westcomb on triggering contingencies for gift-over clauses. Unlike in those cases, where the Courts declined to extend gift-over clauses to cover extreme contingencies like forfeiture, this case was distinguished because the Court found that the deceased’s intention to avoid intestacy and benefit his friend as a second beneficiary was clear.

KHQ with Joseph Acutt of Counsel acted for the friend to whom probate was granted and who ultimately received the deceased’s residuary estate after the Will was construed by the Supreme Court.

This case will no doubt be an important consideration not only in construction cases, but cases involving ever evolving and increasing online relationships.