Able Australia Services v Yammas - [2010] VSC 237

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

IN ITS PROBATE JURISDICTION

No. Prob 51 of 2008

IN THE MATTER of the Will and Estate
of BERYL ROSE SIMMONS, deceased

BETWEEN:

ABLE AUSTRALIA SERVICES (ACN 005 783 175)	Plaintiff
v
JOHN YAMMAS	Defendant

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JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 and 20 May 2010
DATE OF JUDGMENT:	3 June 2010
CASE MAY BE CITED AS:	Able Australia Services v Yammas
MEDIUM NEUTRAL CITATION:	[2010] VSC 237

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PROBATE – Will signed in suspicious circumstances – Onus on propounder to prove that the testatrix had knowledge of and approved the contents of the will – Whether onus discharged – Standard of proof to be applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C McOmish	Charles B G Brett
For the Defendant	Mr R B Phillips	McNab McNab & Starke

TABLE OF CONTENTS

Introduction........................................................................................................................................ 2

Facts...................................................................................................................................................... 5

Has Mr Yammas satisfied his onus?............................................................................................. 25

Conclusion......................................................................................................................................... 28

HIS HONOUR:

Introduction

Beryl Rose Simmons (‘the deceased’) died on 19 February 2007. She was 96 years old. About a year earlier, on 23 March 2006, she had signed a will. By that will, she made specific bequests to her nephew, three grand-nieces and two charities. She bequeathed her residuary estate of approximately $400,000[1] to the defendant, John Yammas.
[1]Subject to Capital Gains Tax which may be substantial.

Mr Yammas and the deceased’s brother, David Simmons, were appointed joint executors. They were granted probate of the will on 9 October 2007.

David Simmons then became suspicious. He obtained legal advice and commenced this proceeding. He sought an order revoking the grant of probate. His application for revocation was based upon the belief that he would be entitled to the estate of the deceased on an intestacy if the probate was revoked. However, it was subsequently discovered that there was an earlier will made in 2004, under which he had no entitlement (the ‘2004 will’).

The 2004 will differs from the will in a number of respects. The most significant difference is that the residuary estate had previously been bequeathed to a charitable organisation, the Deafblind Association (now known as Able Australia Services). In these circumstances, Able Australia Services was substituted for David Simmons as the plaintiff and it has prosecuted the revocation application to trial.

Probate of a duly executed will may be refused, or a grant of probate revoked, on a number of grounds. The deceased may lack testamentary capacity, the will may be the result of undue influence or the will may have been signed in suspicious circumstances. Where a will has been signed in suspicious circumstances, there is an onus upon the propounders of the will to prove affirmatively that the testator knew and approved the contents of the will. In this case, notwithstanding the age of the deceased, testamentary capacity is not an issue. For a short while, undue influence was raised; but that allegation was abandoned. The plaintiff’s case is that the will…

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 Able Australia Services v Yammas

Details

AGLC: Able Australia Services v Yammas [2010] VSC 237
Case: [2010] VSC 237
Decision Date: 3 June 2010

CaseChat Overview and Summary

The case of Able Australia Services v Yammas involved the estate of a deceased individual, with the dispute centred on the validity of a will signed under questionable circumstances. The matter was heard in the Supreme Court of Victoria. The plaintiff, Able Australia Services, sought to contest the will, arguing it had been signed under duress and without the knowledge or approval of the deceased. The defendant, Yammas, was the executor of the will and sought to uphold its validity.

The court was required to determine whether the onus of proof lay with the propounder of the will to demonstrate that the deceased had knowledge of and approved the contents of the will. Furthermore, the court needed to establish the appropriate standard of proof to be applied in such circumstances. The central issue was whether the propounder had adequately discharged the onus of proving the deceased's knowledge and approval of the will's contents, and if so, whether this had been achieved to the required standard of proof.

In its decision, the court held that the onus indeed lay with the propounder to establish that the deceased had knowledge of and approved the contents of the will. The court further determined that the standard of proof required was the balance of probabilities. The court found that the propounder had not discharged the onus of proof as the evidence presented did not sufficiently demonstrate that the deceased had knowledge of and approved the contents of the will. Consequently, the court ruled that the will was invalid.

The court's final order was that the will in question was not valid, and therefore, the estate would be distributed according to intestacy rules rather than the terms of the contested will. The court's decision underscored the importance of the propounder meeting the requisite standard of proof when presenting a will for probate, particularly in cases where the circumstances surrounding the signing of the will are suspicious.

Orders