Alexopoulos v Krasovec - [2022] VSC 749

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S ECI 2022 01463

IN THE MATTER of the will and estate of FRANK KRASOVEC, deceased

- and -

IN THE MATTER of an application pursuant to order 54 of the Supreme Court (General Civil Procedure) Rules 2015

BETWEEN:

PAULA ALEXOPOULOS (in her capacity as executor and trustee of the estate of FRANK KRASOVEC, deceased)	Plaintiff
v
MICHAEL KRASOVEC	First Defendant
FRANK GEOFFREY KRASOVEC	Second Defendant

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JUDGE:	Barrett AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	6 October 2022
DATE OF JUDGMENT:	12 December 2022
CASE MAY BE CITED AS:	Alexopoulos v Krasovec
MEDIUM NEUTRAL CITATION:	[2022] VSC 749

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WILLS – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 54.02 – Construction of a will – Conditions of a clause of a will – No express gift over clause in the event conditions are not satisfied – Whether extrinsic evidence of a testator’s intention is admissible – Whether the conditions have been satisfied – Whether the executor can sell property of the deceased’s estate to satisfy debts of the estate – Held that extrinsic evidence is admissible where the uncertainty or ambiguity is on the face of the will – Wills Act 1997 (Vic) s 36 – Held that the executor can sell property of the estate to satisfy the debts of the estate – Administration and Probate Act 1958 (Vic) s 37 – Held that the conditions of a clause of a will were not satisfied – Held that it was the testator’s intention for the specified time limit to be of the essence – Re Goodwin [1924] 2 Ch 26.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Acutt	GPZ Legal
The First Defendant in person
For the Second Defendant	Mr J McCoy	Hicks Oakley Chessell Williams Pty Ltd

TABLE OF CONTENTS

Background......................................................................................................................................... 1

Evidence and submissions............................................................................................................... 4

Applicable principles........................................................................................................................ 7

Consideration...................................................................................................................................... 9

Conclusion......................................................................................................................................... 14

HIS HONOUR:

This is an application by the executrix of the will and estate of the late Frank Krasovec seeking advice pursuant to r 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’), as to the proper construction of the will.

Background

Mr Frank Krasovec (‘the deceased’) died on 28 February 2021, aged 90, leaving a will dated 14 July 2018 (‘the will’). He was survived by his two sons: Michael Krasovec, who is the first defendant, and Frank Geoffrey Krasovec, who is the second defendant.

On 1 July 2021, probate was granted to Paula Alexopoulos (‘plaintiff’). According to an account of the deceased’s estate (‘estate’) prepared by the plaintiff as at August 2022, the assets of the estate include a property (being the property at 21 Edith Street, Glen Waverley) (‘property’) valued at $1,925,000, an Omega watch valued at $1,500, a Mercedes-Benz vehicle valued at $16,500, and $27,692.36 in cash. That account records that $22,510.96…

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 Alexopoulos v Krasovec

Details

AGLC: Alexopoulos v Krasovec [2022] VSC 749
Case: [2022] VSC 749
Decision Date: 12 December 2022

CaseChat Overview and Summary

In the matter of Alexopoulos v Krasovec, the Victorian Supreme Court was called upon to interpret the terms of a will and determine the admissibility of extrinsic evidence to ascertain the testator's intentions. The dispute centred on the interpretation of a clause in the will that contained conditions, and the absence of an express gift over provision should those conditions not be satisfied. Specifically, the court had to decide whether extrinsic evidence could be used to interpret the will, whether the specified conditions had been met, and whether the executor could sell estate property to meet estate debts.

The legal issues before the court involved the interpretation of a will and the admissibility of extrinsic evidence to resolve any uncertainties. The court considered the relevance of sections 36 of the Wills Act 1997 (Vic) and section 37 of the Administration and Probate Act 1958 (Vic). The court examined whether the conditions stipulated in the will's clause were satisfied and whether the time limit specified was of the essence. The court also needed to determine if the executor could sell estate property to settle debts, given that the specified conditions were not met.

The court held that extrinsic evidence could be admitted when there is an ambiguity or uncertainty on the face of the will. The court found that the time limit specified in the will was of the essence, and as such, the conditions were not satisfied. Consequently, the court ruled that the executor could sell the estate property to satisfy the debts of the estate. This decision was grounded in the interpretation of the will, the admissibility of extrinsic evidence, and the statutes governing wills and probate.

The final orders of the court were that extrinsic evidence was admissible, the conditions of the clause were not satisfied, and the executor was permitted to sell estate property to meet estate debts. The decision underscores the importance of clear and precise language in drafting wills, as well as the role of extrinsic evidence in resolving ambiguities.

Orders