Aronis v Aronis and ors - [2019] QSC 292

SUPREME COURT OF QUEENSLAND

CITATION:

Aronis v Aronis & ors [2019] QSC 292

PARTIES:

MARIETTA ARONIS
(applicant)
v
MATTY ARONIS AS EXECUTOR OF THE ESTATE OF MARIA ARONIS (DECEASED)
(respondent)
MATTY ARONIS
(second respondent)
THEODORA LOULA ARONIS
(third respondent)
GEORGE ARONIS
(fourth respondent)
KATERINA ARONIS
(fifth respondent)
JOHN ARONIS
(sixth respondent)

FILE NO/S:

BS10436 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

29 November 2019

DELIVERED AT:

Brisbane

HEARING DATE:

22 November 2019

JUDGE:

Holmes CJ

ORDERS:

1. The application is adjourned to a date to be fixed, pending determination of the constructive trust proceeding, BS 12875/15, or further order.

2. The matter is to be placed on the Wills and Estates Supervised List.

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY CAPACITY – PROCEDURE – PROOF IN SOLEMN FORM – where the applicant seeks orders that the first respondent bring into the registry a grant of probate in common form of her deceased mother’s will and start a proceeding for a grant in solemn form, pursuant to rule 640 of the UCPR – where the respondent argues that there is no triable issue in relation to the deceased’s testamentary capacity and that the application should be dismissed for delay – where the respondent, in the alternative, seeks an adjournment of the application until a separate proceeding in relation to the estate assets is resolved – where the making of the orders sought by the applicant would prevent the respondent from defending that separate proceeding due to a lack of financial means – whether there is a triable issue with respect to the deceased’s testamentary capacity – whether the applicant’s delay in bringing the application is explained – whether an adjournment should be granted in the exercise of power under s 6 of the Succession Act

Succession Act 1981 (Qld), s 6, s 45
Trusts Act 1973 (Qld), s 96
Uniform Civil Procedure Rules 1999 (Qld), r 640, r 642

Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21, cited
Green v Critchley [2004] QSC 22, distinguished
Hoffman v Norris and White [1805] 161 ER 1129; [1805] EngR 81, cited
In re H. [1902] QWN 72, considered
In re Wood Deceased [1961] Qd R 585, considered
In the Will of Agnes Auld Gomm, Unreported, Supreme Court of Queensland, 23 July 1984 (Weld M), considered
Stott v Lyons and Stott [2006] QSC 135, considered

COUNSEL:

G R Allan for the applicant
S J Webster and P J Coore for the first and second respondent

SOLICITORS:

Walt Allan for the applicant

Cooper Grace Ward for the first and second respondent

This is an application under r 640 of the Uniform Civil Procedure Rules 1999 by the applicant, Marietta Aronis, that the first respondent, Matty Aronis, as executor of the will of her deceased mother, Maria Aronis, bring into the registry the grant of probate in common form which she obtained in February 2017 and start a proceeding for…

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 Aronis v Aronis and ors

Details

AGLC: Aronis v Aronis [2019] QSC 292
Case: [2019] QSC 292
Decision Date: 29 November 2019

CaseChat Overview and Summary

The case of Aronis v Aronis and ors involved an application by the applicant, seeking orders that the first respondent bring into the registry a grant of probate in common form of her deceased mother's will and commence a proceeding for a grant in solemn form. The respondent argued that there was no triable issue in relation to the deceased’s testamentary capacity and that the application should be dismissed for delay. The respondent also sought an adjournment of the application until a separate proceeding in relation to the estate assets was resolved, citing that making the orders sought by the applicant would prevent them from defending that separate proceeding due to a lack of financial means.

The primary legal issues that the court had to decide were whether there was a triable issue concerning the deceased’s testamentary capacity and whether the applicant’s delay in bringing the application was adequately explained. Additionally, the court needed to determine whether an adjournment should be granted in the exercise of power under section 6 of the Succession Act. The court had to balance the interests of the applicant in expediting the probate process with the respondent’s concerns about financial constraints and the potential impact on other related proceedings.

The court concluded that there was indeed a triable issue regarding the deceased's testamentary capacity, warranting a grant in solemn form. However, in exercising its discretion under section 6 of the Succession Act, the court decided to adjourn the application. The court found that the respondent's concerns about financial constraints and the impact on a separate proceeding were sufficiently compelling to warrant an adjournment. Consequently, the application was adjourned until the resolution of the constructive trust proceeding, BS 12875/15, or further order. Additionally, the court ordered that the matter be placed on the Wills and Estates Supervised List to ensure appropriate oversight and management of the proceedings.

Orders

Orders of the court

1. The application is adjourned to a date to be fixed, pending determination of the constructive trust proceeding, BS 12875/15, or further order.

2. The matter is to be placed on the Wills and Estates Supervised List.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Aronis v Aronis & ors [2019] QSC 292
PARTIES:	MARIETTA ARONIS (applicant) v MATTY ARONIS AS EXECUTOR OF THE ESTATE OF MARIA ARONIS (DECEASED) (respondent) MATTY ARONIS (second respondent) THEODORA LOULA ARONIS (third respondent) GEORGE ARONIS (fourth respondent) KATERINA ARONIS (fifth respondent) JOHN ARONIS (sixth respondent)
FILE NO/S:	BS10436 of 2019
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	29 November 2019
DELIVERED AT:	Brisbane
HEARING DATE:	22 November 2019
JUDGE:	Holmes CJ
ORDERS:	1. The application is adjourned to a date to be fixed, pending determination of the constructive trust proceeding, BS 12875/15, or further order. 2. The matter is to be placed on the Wills and Estates Supervised List.
CATCHWORDS:	SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY CAPACITY – PROCEDURE – PROOF IN SOLEMN FORM – where the applicant seeks orders that the first respondent bring into the registry a grant of probate in common form of her deceased mother’s will and start a proceeding for a grant in solemn form, pursuant to rule 640 of the UCPR – where the respondent argues that there is no triable issue in relation to the deceased’s testamentary capacity and that the application should be dismissed for delay – where the respondent, in the alternative, seeks an adjournment of the application until a separate proceeding in relation to the estate assets is resolved – where the making of the orders sought by the applicant would prevent the respondent from defending that separate proceeding due to a lack of financial means – whether there is a triable issue with respect to the deceased’s testamentary capacity – whether the applicant’s delay in bringing the application is explained – whether an adjournment should be granted in the exercise of power under s 6 of the Succession Act Succession Act 1981 (Qld), s 6, s 45 Trusts Act 1973 (Qld), s 96 Uniform Civil Procedure Rules 1999 (Qld), r 640, r 642 Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21, cited Green v Critchley [2004] QSC 22, distinguished Hoffman v Norris and White [1805] 161 ER 1129; [1805] EngR 81, cited In re H. [1902] QWN 72, considered In re Wood Deceased [1961] Qd R 585, considered In the Will of Agnes Auld Gomm, Unreported, Supreme Court of Queensland, 23 July 1984 (Weld M), considered Stott v Lyons and Stott [2006] QSC 135, considered
COUNSEL:	G R Allan for the applicant S J Webster and P J Coore for the first and second respondent
SOLICITORS:	Walt Allan for the applicant Cooper Grace Ward for the first and second respondent