Estate disputes – To pass over or to challenge?

Dec 6, 2022

On 10 November 2022, the Supreme Court of Victoria handed down its decision in Re Gyss [2022] VSC 689 which highlights the importance in making the correct application to the Court for any estate dispute to avoid the risk of an adverse costs order.


Marlene Gyss (Marlene) died on 14 February 2021. She was survived by her three children: Alan Gyss (Alan), Darren Gyss (Darren) and Lynda Laemmle (Lynda).

Marlene left an estate worth around $1.35 million which included a nursing home bond of around $600,000 and a term deposit account of around $750,000.

Marlene executed two Wills:

  1. In her last Will dated 12 November 2018 (2018 Will) she appointed Alan and Darren as the executors of her estate. She left cash gifts of $100,000 to Darren and Lynda and left her residuary estate to her children equally.

The 2018 Will has the effect that Alan would receive an amount $100,000 less than his siblings.

  1. In her penultimate Will dated 9 October 2017 (2017 Will), she appointed Darren as the sole executor of her estate. She left her residuary estate to her children equally.

Neither Alan or Darren had applied to the Supreme Court to obtain a Grant of Probate of either the 2018 Will or the 2017 Will.

Alan’s position was that the 2018 Will was invalid on the grounds that either Marlene lacked testamentary capacity, or that Marlene was under duress or was unduly influenced. He also foreshadowed a claim for further provision under Part IV of the Act (further provision claim).


On 13 April 2022, Alan filed an application to the Supreme Court:

  • Seeking that Darren show cause as to why he should not either prove the 2018 Will or renounce his position as a co-executor.
  • Alternatively, Alan sought that Darren be “passed over” as executor of the 2018 Will and that either he be entitled to prove the 2018 Will or that an independent person be entitled to prove the 2018 Will.


The Court determined that Alan ought to renounce his right to prove the 2018 Will and that Darren ought to be entitled to prove the 2018 Will, subject to Alan’s right to challenge the validity of the 2018 Will or alternatively commence a further provision claim.

Orders were made to allow Darren’ permission to access the original 2018 Will to apply for the Grant of Probate and Alan’s proceeding was dismissed.

Costs application

The Court ordered that Alan should bear his own costs of the application as well as Darren’ costs of defending the application, without recourse from the assets of the estate.

Key takeaways

  • In circumstances where one of two executors dispute the validity of a Will, the proper course is to allow one such executor to make an application to prove the Will. The other executor can then dispute the Will “in the usual way” – by caveat or grounds of objection.
  • A Court may not allow for the costs of application to be paid for by the assets of an estate, especially where an application was misconceived and unsuccessful.
  • It is important to be guided by specialist advice before commencing any application in relation to an estate.

If you require assistance with your estate dispute, please contact Lisa George.