Transferring property between spouses or partners can be a practical step when considering relationship changes or financial planning. The good news is that in certain circumstances, you may be eligible to obtain a duty exemption on these types of transfers, potentially saving tens of thousands of dollars.
There are certain requirements however that must be met if you do not want to incur duty and understanding these requirements upfront can help you avoid costly mistakes.
In Victoria, a duty exemption may apply when property is transferred between spouses or domestic partners under section 43 of the Duties Act 2000. The State Revenue Office (SRO) designed this exemption to recognise that such transfers are often part of shared ownership arrangements, rather than commercial transactions.
To qualify for this duty exemption, several conditions must be met including:
Compliance with SRO and legislative guidelines is crucial, including any period after the date of the transfer with such transactions regularly being audited by the SRO. Before proceeding with a spouse or partner transfer, we recommend seeking legal advice to confirm your eligibility and for peace of mind.
Moores’ Residential Property team advises clients on property transfers, stamp duty exemptions and ownership arrangements. Our team can assist with assessing eligibility for duty exemptions, preparing transfer documentation and ensuring compliance with SRO requirements.
Please contact us for more detailed and tailored help.
Subscribe to our email updates and receive our articles directly in your inbox.
Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.
Discretionary trusts are a common structure in Australia for investment and business operations and provide a number of benefits including tax flexibility and asset protection.
A discretionary testamentary trust (a discretionary trust created by a Will) has similar benefits, but currently with the additional tax benefit of allowing income distributions to children at adult tax rates (including the tax-free threshold of $18,200). This makes this structure extremely tax effective in the right scenario.
Current income distributions from a discretionary trust would have an effective tax rate of less than 30% where the beneficiary’s total income is less than $45,000 per annum.
It has now been announced that:
Relevantly for estate planning purposes, it does not appear that future testamentary trusts will be excluded from the 30% minimum tax rate.
Testamentary trusts are included in Wills for a range of reasons including protecting assets from creditors, protecting from relationship breakdown, managing funds for beneficiaries with disabilities or addiction, managing succession issues between blended families and tax minimisation.
The exact form of testamentary trust used can vary depending on the objectives of the Willmaker. The style of trust could include a discretionary testamentary trust, a protective trust, a life interest or a special disability trust, among others. Each can have differing rules around entitlements to income. It is not yet clear whether trusts that do not clearly fall squarely within the discretionary trust model will be captured by these budget measures, save that special disability trusts have been specifically excluded. We will wait for the detail to assess the application of these measures to the various forms of testamentary trust that can be included in a Will.
Where a discretionary testamentary trust is created purely for tax minimisation purposes, then these measures may reduce the tax effectiveness of the trust, particularly where the family group includes children or other individuals who have minimal personally earned income. However, it is not necessarily the case that tax benefits will be completely removed, with the top marginal rate of 45% leaving a potential 15% saving in the right circumstances.
The measures reinforce the value in our preferred strategy of having flexible options within Wills in relation to the use of testamentary trusts and their exact form.
At Moores, our experienced Private Clients team can assist with reviewing existing estate plans and advising on flexible testamentary trust structures in light of the proposed reforms. We work with individuals and families to develop practical estate planning strategies that balance tax, asset protection and succession considerations.
High inflation and rising interest rates are increasing pressure on borrowers. At Moores, we have been seeing an increase in distressed loan enforcement matters including banks and private lenders actively pursuing borrowers and guarantors where commercial loans are distressed or in default.
While distressed loans may appear to be an intractable situation, particularly where a mortgagee is in possession, there can be options to stave off the secured lender and/or pursue recovery action against third parties. Of course, for guarantors their personal assets can be at risk.
In this article we discuss solicitors’ obligations when providing a certificate of independent legal advice. We have successfully pursued practitioners or joined them to lenders’ enforcement proceedings.
A solicitor’s certificate confirms that independent legal advice has been given before a loan, mortgage or guarantee is signed. Lenders generally want assurance that borrowers and guarantors have understood their obligations to minimise risks if the loan falls into default.
Solicitors’ Rules govern the form of solicitors’ certificates. If the solicitor takes shortcuts in giving advice though, the lawyer who gave the advice might be liable for financial losses.
There is a common misconception that a lawyer just needs to read through the legal fine print and witness a signature to provide a solicitors certificate but courts can expect more.
A solicitors’ obligations turn on the scope of the retainer and that can extend to explaining the practical consequences of the legal obligations arising from the arrangements. Where legal and practical consequences of entering into a transaction may be significant, but can’t be assessed without further financial information, the solicitor may be obliged to counsel about risks of proceeding – including risking the loss of substantial assets.
While a solicitors certificate follows, the advice given can require not only advising about the law but can extend to advising against a proposed transaction where the full legal ramifications or risks can’t be properly understood by a client.
Borrowers and guarantors should not ignore a default or assume that no options are available to them. Urgent legal advice should be sought including on any potential injunctive relief, depending on the circumstances of the loan/guarantee being signed, as well as any claims for professional negligence. Where we have successfully pursued professional negligence claims against solicitors or joined the practitioner to loan enforcement proceedings, we have seen some of the below shortfalls giving rise to solicitor’s liability:
Notices of default or enforcement action by a lender is not necessarily the end of the road for distressed borrowers or guarantors being pursued. If your client receives a demand, start to gather documents relating to the guarantee or loan, advise your client not to immediately comply and seek an urgent referral to a specialist lawyer.
Our Disputes Team can provide early advice on distressed loans to enable borrowers or guarantors to decide whether to consider alternative courses of action including pursuing professional negligence claims where poor legal advice has cost your clients. There are not always other options and we give frank and pragmatic advice if further action is simply throwing good money after bad. We assist clients to make informed decisions whatever the circumstances.
Please reach out to our team for a discussion about how we can help your clients manage and defend lenders’ enforcement action.
Workplace investigations rarely unfold in ideal conditions. They are often urgent, emotionally charged and conducted under scrutiny from employees, regulators and, increasingly, the Fair Work Commission (Commission).
Over the past two years, that scrutiny has intensified significantly. Unfair dismissal and dismissal-related claims before the Commission have increased at a pace that is placing significant pressure on the system, with the Commission itself noting that current workload levels are becoming unsustainable. In the 2024–25 financial year alone, the Commission received 16,500 unfair dismissal applications, up from 14,772 the year before. Total lodgements reached 44,075, representing a 10 per cent increase year on year and a level well above historical averages.
Unfair dismissal claims now account for more than one third of the Commission’s workload, making them the single most common type of application.
This is not simply a statistical shift in volume. It reflects a workplace environment in which employees are increasingly willing, and increasingly able, to challenge dismissal decisions.
In that environment, procedural fairness is not a theoretical concept. It is a frontline discipline that determines whether your investigation stands up or unravels under it.
At its core, procedural fairness is concerned with the fairness of the process, not the outcome itself. A decision may ultimately be defensible, but if the process by which it was reached is flawed, it remains exposed to challenge.
Those principles are not controversial. Where risk arises is in how they are operationalised.
Most leaders are familiar with the underlying principles. The individual must know the case against them, have an opportunity to respond, and the decision maker must be impartial.
Where organisations are exposed is rarely in understanding these principles, but in how they are applied in practice.1
In a workplace investigation context, procedural fairness typically requires you to:
These elements will be familiar. They are not, however, a checklist.
Recent decisions bring this into sharper focus. In Peter Jones v Exclusive Contracting (WA) Pty Ltd [2026] FWC 253, the Commission accepted that the employee’s conduct was serious misconduct. However, the dismissal was still found to be unfair because the employee was not told the case against him or given an opportunity to respond before termination.
The message for employers is clear. Even obvious misconduct does not relieve an employer of the obligation to follow a fair process.
Procedural fairness is relatively straightforward when facts are clear and uncontested. The complexity arises when:
It is in these moments that process is most likely to be compressed, and most likely to be compromised.
The Commission has consistently emphasised that an opportunity to respond must be meaningful and must occur before conclusions are reached.
In Gardner v Piacentini & Son [2024] FWC 211, the employee was not given a meaningful opportunity to respond until after the employer had effectively substantiated the allegations. That sequencing was a key factor in the Commission’s criticism of the process.
Similarly, in Mullins v KAB Seating Pty Ltd [2025] FWC 371, allegations were framed in a way that did not allow the employee to properly understand or respond to them. This lack of clarity contributed to a finding that the dismissal was harsh, unjust and unreasonable.
Taken together, these cases reflect a recurring issue. Procedural fairness is often undermined not by the absence of process, but by the way it is executed. It requires a meaningful, properly informed opportunity to engage with the case before findings are made.
In our experience, organisations that manage investigations tend to apply discipline at a few critical points.
1. Invest in the quality of allegations
Poorly particularised allegations remain one of the most common sources of procedural risk. As Mullins demonstrates, if an employee cannot understand the case against them, the process is unlikely to withstand scrutiny.
2. Treat the response as a critical input, not a procedural step
The Commission will examine whether the response was capable of influencing the outcome. A process that moves quickly to determination, or appears to have reached a conclusion in advance, is inherently vulnerable.
3. Be precise about what material is put to the respondent
Material that is credible, relevant and significant to the findings should be put to the individual for response. This requires careful judgment, particularly where confidentiality issues arise.
4. Maintain discipline around impartiality
Investigation quality continues to feature prominently in recent decisions. Where key witnesses are not interviewed, evidence is not fully tested, or investigators appear aligned with a particular outcome, the Commission is willing to characterise the entire process as deficient.
5. Document reasoning, not just outcomes
A defensible process is one that can be explained. Clear records of how evidence was assessed and why conclusions were reached are critical, especially where an organisation chooses to waive privilege over an investigation report by disclosing more than the findings.
Despite best intentions, several patterns continue to drive risk.
Procedural fairness is often framed as a legal requirement. In practice, it is also a reflection of organisational culture.
A process that is fair reinforces trust and can mitigate psychosocial safety risks, even where outcomes are contested. A process that is perceived as unfair does the opposite, regardless of the result In a heightened psychosocial safety regulatory environment, an unfair or deficient process creates psychosocial risk which organisations are obliged to eliminate or control.
Recent Fair Work Commission decisions reinforce these expectations. The Commission is not asking whether employers intended to be fair. It is asking whether fairness is evident in the way decisions are made.
For boards and executives, that is the critical insight.
Procedural fairness is not simply a legal safeguard. It is a marker of organisational integrity, organisational safety and a critical component of defensible decision making.
For many organisations, the challenge is not understanding procedural fairness. It is applying it consistently and confidently in complex, high stakes situations.
Moores works alongside boards, executives and HR leaders to:
We are often engaged not because something has gone wrong, but because the stakes are too high to leave the process exposed.
A well-run investigation will not always produce an easy outcome. But it should always be one that can be explained, defended and trusted.
Most people assume that if a person loses cognitive capacity to make a will, it is simply too late to protect their legacy. Without a valid will, their estate would typically fall under “intestacy” laws, which follow a rigid, one-size-fits-all formula for distributing assets among next-of-kin. You can find a guide to the Victorian’s intestacy laws here.
However, under the Wills Act 1997 (Vic), the Supreme Court has the authority to “step into the shoes” of a person without capacity and authorise a will on their behalf. This legal mechanism ensures that a person’s likely wishes are honoured, even when they can no longer prepare a will for them themselves.
A statutory will is a document authorised by the Court for a person who lacks testamentary capacity. Unlike a traditional will, which is signed by the testator, a statutory will is signed by the Registrar of Probates and sealed by the Court. It is typically sought by family members, carers, or guardians who believe that the existing state of affairs (which may include no will or an out of date will) would lead to an outcome that the person would not have intended.
To authorise such a will, the Court must be satisfied that:
There are many circumstances where a statutory will may be appropriate, as illustrated by the following cases:
Losing capacity does not have to mean losing control over how a person’s estate is ultimately distributed. Statutory wills provide a vital safeguard against the rigid outcomes of intestacy, allowing the Court to uphold what a person’s wishes were likely to have been, rather than defaulting to a formula that may produce unjust or unintended results.
Moores has extensive experience in successfully applying for and defending statutory wills. Our Wills, Estate Planning & Structuring team can assist you in ensuring that your loved one’s estate does not end up somewhere that was unintended.
In late April 2026, the VRQA released updated guidelines to the minimum standards for school registration.
Generally, the new guidelines aim to:
It is most important for schools to take note of the following significant proposed changes:
Following consultation, the guidelines will be available to all school in Term 3, and apply to registered schools from 1 January 2027.
Make sure to keep an eye out, as the VRQA will continue to consult further on the new guidelines.
Moores’ Education and Training team has a wealth of experience in navigating the complex landscape of independent school regulation and assisting clients to meet their compliance requirements. Please contact our expert Education and Training team for tailored advice on how you can ensure your school is staying up to date with the relevant guidelines.
For boards and executives, wage compliance can no longer be understood as a narrow payroll or technical issue. It has become a visible measure of organisational integrity, governance maturity and leadership accountability.
When wage compliance issues arise, stakeholders rarely focus solely on the mechanics of underpayment. Their interest quickly shifts to whether leadership understood the risk, exercised oversight, and had systems in place that were capable of supporting a complex and evolving workforce. In that sense, wage compliance has joined safety and safeguarding as a core indicator of how seriously an organisation takes its obligations to its people.
It is important to acknowledge a reality that is often lost in public debate. In our experience, most wage compliance issues do not arise from deliberate misconduct or bad faith. Rather, they tend to emerge from a combination of structural and capability pressures, including:
Awards and enterprise agreements do not remain static. Roles expand, working patterns shift and operational demands increase. Payroll assumptions that were once reasonable may no longer reflect how work is actually performed. In many organisations, these changes occur incrementally and without any single trigger that prompts systematic review.
As a result, well‑intentioned organisations doing valuable work can find themselves exposed simply because their systems, processes and oversight arrangements have not evolved alongside their workforce.
Regulators recognise this reality. The current legal framework draws a clear distinction between deliberate misconduct and honest mistakes or system failures, and places significant weight on whether an employer took reasonable steps to understand and meet its obligations. That distinction is important. However, it does not eliminate risk.
Boards and executives are therefore often surprised to discover underpayments in organisations that are values‑driven, professionally advised and acting in good faith. While the absence of ill intent may be relevant to how regulators assess conduct, it does not remove the practical, cultural or reputational consequences that can follow once non‑compliance is identified.
The focus here is not on how underpayments are calculated, but on how risk accumulates unnoticed, how oversight fails despite good intent, and how boards can exercise effective stewardship in an environment of heightened scrutiny.
Even inadvertent wage compliance failures can have a disproportionate impact on trust.
From an employee perspective, underpayments raise questions about whether leadership understands the realities of work, values fairness in practice, and responds appropriately when concerns are raised. Once confidence is eroded, the issue extends beyond remediation into engagement and organisational culture.
Externally, wage compliance issues are increasingly visible. Regulatory publications, media reporting and class actions mean these matters are rarely resolved quietly or quickly. For organisations whose legitimacy is closely tied to trust, including education providers, care organisations and not‑for‑profits, reputational harm can exceed the direct financial cost.
Regulators, funders and boards are also now attuned to the governance implications. The focus has shifted from whether errors occurred to whether reasonable steps were taken to prevent them, and whether leadership had sufficient visibility and assurance over workforce risk.
Boards are increasingly reconsidering how wage compliance risk is understood and monitored.
Common questions now include:
In many cases, the most significant exposure is not a known problem, but a lack of clarity about whether current systems are still fit for purpose.
A common hesitation at board and executive level is concern that reviewing wage compliance may identify issues that then require careful management. That concern is understandable, but misplaced.
Targeted, well‑scoped reviews are not an admission of failure. They are an expression of responsible stewardship. Proactive assurance allows organisations to identify and address gaps early, manage issues transparently, and protect trust with employees and regulators alike.
When undertaken thoughtfully, wage reviews strengthen rather than undermine organisational credibility. They signal that leadership is willing to look closely at complex risk, rather than waiting for it to surface through complaint or investigation.
Effective wage compliance governance cannot be reduced to a technical exercise. It requires context, judgement and careful sequencing.
The value of trusted advisers lies in helping boards and executives:
Above all, strong advice provides leaders with confidence that they are asking the right questions at the right time, and that they are equipped to respond thoughtfully if issues are identified.
Organisations that manage wage compliance issues most effectively are those that act before trust is undermined. They invest in understanding how pay operates in practice, ensure accountability for compliance is clear, and seek assurance as complexity increases.
For boards and executives, this approach is not about risk avoidance. It is about exercising leadership in an environment of heightened scrutiny and increasing expectations.
In that context, wage compliance is not simply a legal obligation. It is a reflection of how an organisation governs itself and how it honours its responsibilities to its workforce.
The Fair Work Ombudsman has been explicit about its enduring commitment to driving compliance through education, assistance and targeted regulatory intervention, particularly in sectors known to present heightened compliance risks. Education and assistance are central to this approach, alongside a sustained focus on protecting vulnerable or at‑risk workers and addressing systemic non‑compliance.
In priority sectors including universities and disability support services, regulatory attention is not confined to the identification and remediation of underpayments. It extends to broader misconduct such as sham contracting and other practices that undermine workplace protections, with the Fair Work Ombudsman signalling a willingness to deploy enforcement tools where conduct is serious, systemic or of public interest.
Moores works with boards and executive teams to help them understand, govern and manage wage compliance risk in a way that is proportionate, defensible and conscious of organisational culture and reputation.
Our role is not limited to identifying technical issues. We support leaders to form a clear view of where risk is most likely to arise, determine what level of assurance is appropriate, and navigate sensitive decisions carefully if issues are identified. This includes assisting boards to frame the right questions, sequence review activity prudently, and maintain trust with employees, regulators and other stakeholders throughout the process.
This work draws on both regulatory developments and extensive hands‑on experience advising education providers, care organisations and for‑purpose entities through wage audits, payroll remediation and Fair Work Ombudsman engagement.
If you would like to discuss wage compliance risk in your organisation, including whether a targeted review or governance‑level assessment would be appropriate, please contact Skye Rose, Practice Leader, or Alexandra Gronow, Special Counsel. We regularly advise boards and executive teams and can guide you through the process calmly, confidentially and with a clear focus on protecting trust.
The sale of any commercial property is normally subject to GST. A common exception to this rule is the sale of a tenanted property by a GST registered entity.
If the sale is to a GST registered purchaser, the sale could be GST free as the supply of a “going concern”. The “going concern” in such transactions would be the leasing enterprise.
There are clear financial benefits for a purchaser if the property that is being purchased can be treated as the supply of a “going concern” and therefore GST free. Not only is GST not required to be paid but duty on the purchase will be calculated on the GST free price, not the price plus GST.
What if the tenant vacates the property or the lease ends before the property sells or before the property settles? Would the sale of that property still qualify as the supply of a going concern and therefore be GST free?
Ordinarily this would mean that the property is not being sold with a leasing enterprise and the sale is not the supply of a going concern for GST purposes and therefore not GST free.
However, if the building or part of the building that is vacant is available for lease and is being actively marketed to secure a tenant, the sale of the property will still be regarded as the supply of a going concern for GST purposes and therefore GST free.
Our Commercial Real Estate team supports organisations across the full lifecycle of property transactions, from acquisition through to leasing, development and sale. We provide clear, practical advice to help you manage GST risk, structure transactions effectively and achieve commercially sound outcomes.
Across Australia, organisations working with children are operating in an environment of heightened scrutiny. Child safety investigations, particularly those conducted under reportable conduct schemes, now sit at the intersection of legal compliance, institutional accountability, psychological safety and public trust.
For leaders, boards and investigators alike, the question is no longer whether to adopt trauma‑informed investigation practices. The question is whether those practices are sufficiently rigorous, defensible and sophisticated to withstand regulatory oversight, judicial review and sector‑wide expectations.
At their best, trauma‑informed child safety investigations are not only child‑centred, but also procedurally fair, legally robust and ethically sound. Getting this balance wrong creates significant risk for children, respondents and organisations alike.
A common misconception is that trauma‑informed practice dilutes investigative rigour. In fact, the opposite is true. Trauma‑informed investigations require greater discipline, planning and professional judgement than traditional approaches.
Regulators across Australia emphasise that reportable conduct investigations must be child‑centred, fair and timely. They must also produce reliable findings capable of supporting consequential decisions, including employment action, notifications to professional bodies and regulatory reporting.
A trauma‑informed approach recognises the neurobiological and psychological impacts of trauma on memory, recall, behaviour and communication. Properly applied, it improves the quality and reliability of evidence, reduces the risk of re‑traumatisation, helps to maintain trust and confidence in the investigation, and strengthens the defensibility of findings if later challenged.
Effective trauma‑informed investigations recognise that different participants face different risks, and that a one‑size‑fits‑all process is rarely appropriate.
Child participants
Children may be complainants, reporters, witnesses or otherwise involved in an investigation. Regulators have made it clear that children should generally be invited to participate in a reportable conduct investigation unless there is a sound reason not to do so. Inviting children to participate in investigations appropriately recognises the voice of the child and signals that their experiences matter.
This requires tailored processes that prioritise safety agency and dignity without compromising evidentiary integrity. Depending on the age, capacity and maturity of the child, consent from a parent, carer or guardian may be needed.
Trauma‑informed practice with children involves deliberate decisions about timing, purpose and method of engagement. Practical considerations include:
One of the most common and damaging errors we see is informal questioning of children by well‑intentioned staff before an investigation is properly scoped. This frequently contaminates evidence and complicates regulatory reporting.
Respondents
Respondents are often overlooked in discussions about trauma‑informed practice, yet investigations involving child safety allegations carry profound personal and professional consequences.
A trauma‑informed approach for respondents does not protect wrongdoing. It protects the integrity of the process.
Respondents may experience acute psychological distress, reputational harm, and immediate impacts on employment, even before any findings are made. Investigative processes that lack clarity, fairness or proportionality expose organisations to legal challenge, including claims of procedural unfairness, adverse action or breach of contract.
Good practice includes involves:
Breakdowns in communication or procedural fairness at this stage are a frequent driver of employment claims, judicial review and reputational harm.
Other vulnerable participants
Witnesses, whistleblowers, family members and staff involved in parallel safeguarding processes often carry their own trauma histories or vulnerabilities.
Investigators must anticipate risks such as:
Trauma‑informed investigations anticipate these risks and put proportionate safeguards in place, while maintaining strict controls on confidentiality and information sharing.
The regulatory consequences of poorly managed investigations are increasingly severe. Across Australia, regulators have expanded powers to request documents, scrutinise investigative methodology and take enforcement action where organisations fall short.
The most common risk areas we see include:
From our experience advising and conducting investigations nationally, certain practices consistently distinguish strong, defensible investigations.
Before commencing:
During the investigation:
At conclusion:
Crucially, these investigations recognise that trauma‑informed practice and procedural fairness are mutually reinforcing, not competing principles.
Independent investigators play a critical role in high‑risk child safety matters. Independence supports confidence in findings, manages conflicts of interest and reduces organisational exposure.
However, independence alone is insufficient. Investigators must also bring:
Regulators expect reportable conduct investigations to be conducted by suitably qualified and experienced persons, whether internal or external. Where this expectation is not met, the consequences can be significant.
While it may be appealing to appoint an internal investigator to minimise costs, there is a higher risk of internal investigation findings being challenged if the internal investigator lacks the skills and expertise to run a trauma-informed and procedurally fair investigation. Internal investigations may give rise to conflicts of interest, which can undermine trust and confidence in an investigation process, leaving it open to challenge. Consider whether it is appropriate to appoint an external investigator.
Trauma‑informed child safety investigations are now a baseline expectation across Australia. What differentiates leading organisations is not whether they reference trauma‑informed principles, but whether those principles are embedded in a disciplined, legally sound investigative framework.
At Moores, we approach child safety investigations through a dual lens. We understand the human impact of these matters, and we understand the law, regulation and institutional risk that surrounds them.
In an environment of increasing scrutiny and accountability, that combination is what sets the standard.
Moores supports organisations to manage child safety investigations in a way that is trauma‑informed, procedurally fair and legally robust. We advise on scoping and oversight of reportable conduct matters, support internal decision‑makers and investigators, and where appropriate conduct or assist with independent investigations in higher‑risk or complex matters. We also work with organisations to strengthen their investigation frameworks, build internal capability and ensure alignment with employment law, work health and safety and regulatory expectations. Our focus is on practical support that reduces risk, maintains trust and produces findings that are defensible if scrutinised.
In Re the estate of Iovenitti [2026] VSC 106, the Supreme Court of Victoria refused to strike out fraudulent calumny as a ground of objection—signalling that alleged misinformation influencing a will may now be a live battleground in Victorian probate disputes.
For years, Australians contesting a will have relied on familiar arguments: lack of capacity, undue influence, lack of knowledge and approval, or technical defects in execution. But a recent decision of the Supreme Court of Victoria has opened the door to a far less familiar and potentially far‑reaching ground of challenge.
It is known as fraudulent calumny. And until now, it has barely featured in Australian courtrooms.
When doubts arise about the validity of a will, an application can be brought in the Supreme Court to have it set aside. If successful, the court may revive an earlier will or, if none exists, distribute the estate under the laws of intestacy.
Traditionally, these disputes turn on well‑worn principles. A will may be invalid if, for example:
These grounds are well understood, heavily litigated, and supported by decades of Australian authority.
Fraudulent calumny, by contrast, sits largely in the shadows.
Fraudulent calumny is a doctrine of the common law – being judge‑made law rather than legislation – and its application varies between jurisdictions. It has long been recognised in the United Kingdom, Canada, and Hong Kong. In Australia, however, it has until recently been largely unexplored and untested.
At its core, fraudulent calumny concerns deception.
Broadly speaking, a will may be invalid on this basis where:
Importantly, courts have accepted that direct evidence of the deception is not always necessary. The false belief and its source may be proved by inference from the surrounding circumstances.
Fraudulent calumny has been mentioned before in Australian case law, notably in Newton v Taylor (NSW, 2019) and Campbell v William & Anor (NSW, 2023). But in those cases, the courts acknowledged the concept without being required to decide whether it applied.
That changed in Victoria in 2026.
In Re the Estate of Iovenitti, the caveators, represented by Moores, challenged the deceased’s final will on three grounds, one of which was fraudulent calumny. The executors of the disputed will applied to have the objections struck out or summarily dismissed, arguing that the claims could not succeed.
The Court disagreed, finding that the caveators had established a prima facie case worthy of investigation on all pleaded grounds – including fraudulent calumny – and refused to strike out or summarily dismiss the claim.
The decision is significant. It is the first reported Victorian case to expressly accept fraudulent calumny as a viable basis for challenging the validity of a will, and may be the first such acceptance in any Australian jurisdiction.
Proceedings concerning the Estate of Iovenitti are still on foot, and the fraudulent calumny claim has yet to be finally determined. But the message is already clear: Victorian courts are prepared to entertain this ground of challenge, and litigants can no longer assume it will be dismissed as a historical or foreign curiosity.
For advisers, beneficiaries and executors alike, this development adds a new layer of complexity to will disputes – particularly those involving strained family relationships, misinformation, or manipulation behind closed doors.
Moores’ Estate Litigation team has specialist experience in disputes involving wills, estates and trusts. If you are concerned that a will‑maker may have been influenced by deception or misinformation – or if a will does not sit right for another reason – we can assist you with clear, practical advice tailored to your situation.