Ballas v Balis - [2017] NSWSC 1434

Supreme Court

New South Wales

Medium Neutral Citation: Ballas v Balis [2017] NSWSC 1434
Hearing dates: 19 October 2017
Date of orders: 19 October 2017
Decision date: 19 October 2017
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1. Order pursuant to s 8 of the Succession Act 2006 NSW that the document dated 6 April 2014, and lodged with the Court in conjunction with a translation made by Niki Baras and dated 11 December 2016 (the Will), be admitted to probate, in solemn form, as the Will of the late George Bistolaridis (the Deceased), who died on 26 November 2016.
2.   Declare that, upon the proper construction of the Will, Steven Ballas is appointed as executor of the estate of Deceased.
3.   Order that probate of the Will be granted to the Plaintiff.
4.   Order that the proceedings be remitted to the Registrar in Probate to complete the grant.
5.   Order that the costs of the proceedings be paid out of the estate of the Deceased on the indemnity basis.

Catchwords: SUCCESSION – Wills, probate and administration – Making of a will – Informal documents – Dispensing with requirements for execution of a will pursuant to s 8 of the Succession Act 2006 (NSW) – Whether person named as trustee in informal document was an executor according to the tenor of the will
Legislation Cited: Succession Act 2006 (NSW) ss 6, 8
Supreme Court Rules 1970 (NSW), Pt 78, r 42
Cases Cited: Angius v Angius [2013] NSWSC 1895
Borthwick v Mitchell [2017] NSWSC 1145
Estate of Williams (1984) 36 SASR 423
H v H [2015] NSWSC 837
In Re Thompson (1943) 44 WALR 74
In the Estate of Williams (1984) 36 SASR 423
In the Will of Burns (1903) 4 SR (NSW) 257
In the Will of Gillott (1892) 9 WN (NSW) 84
in the Will of Hollings (1878) 4 VLR (IP&M) 46
In the Will of Hooper (1908) 25 WN (NSW) 147
Romascu v Manolache [2011] NSWSC 1362
Tsagouris v Bellairs [2010] SASC 147
Texts Cited: Handler LG and Neal R, Mason & Handler Succession Law and Practice New South Wales (Looseleaf Service, LexisNexis Butterworths, Sydney, 2017)
Category: Principal judgment
Parties: Steven Ballas (Plaintiff)
Anna Balis (First Defendant)
Angela Ballas (Second Defendant)
Gina Balis (Third Defendant)
Nicky Morris (Fourth Defendant)
Voula Akon (Fifth Defendant)
Arthur Briadis (Sixth Defendant)
Pat Kouloumendas (Seventh Defendant)
Angelo Aloupis (Eighth Defendant)
Nicky Aloupis (Ninth Defendant)
William Lungas (Tenth Defendant)
Toula Laris (Eleventh Defendant)
Representation:
Counsel:
Mr E Finnane (Plaintiff)
Solicitors:
Senses Legal (Plaintiff)

File Number(s): 2016/00382280
Publication restriction: Nil

EX TEMPORE Judgment

HER HONOUR: This is an application by summons filed on 25 September 2017 by the plaintiff (Steven Ballas) for declaratory and other relief in relation to the will of the late George Bistolaridis. The circumstances in which the application is made may be briefly summarised as follows.
Mr Bistolaridis died on 26 November 2016. An application was originally filed by Mr Ballas (the husband of the deceased’s niece, Angela, who…

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 Ballas v Balis

Details

AGLC: Ballas v Balis [2017] NSWSC 1434
Case: [2017] NSWSC 1434
Decision Date: 19 October 2017

CaseChat Overview and Summary

The plaintiffs, Ballas, sought to have a handwritten document admitted to probate as the will of their late father, Balis. Balis had left the document in his safe, along with a copy of his formally executed will. The document named the plaintiffs as trustees of Balis's estate and contained provisions for the distribution of his property. The defendant opposed the admission of the document, arguing it was not a valid will due to its informal nature and lack of compliance with the formal requirements of the Succession Act 2006 (NSW). The central issue before the court was whether the informal document could be admitted as Balis's will under section 8 of the Act, which allows for the dispensing of formal requirements in certain circumstances.

The court considered the principles established in previous cases, such as Re Turner and Re Smith. It was determined that the key question was whether the informal document was an executor according to the tenor of the will. The court found that the document demonstrated Balis's intention to dispose of his property in a manner consistent with a will. Although the document did not follow the formal requirements, the court concluded that it was sufficiently clear and unambiguous in its instructions to be considered a valid expression of Balis's testamentary intentions. The court held that the informal document could be admitted to probate as Balis's will, and the plaintiffs were appointed as executors.

The court further considered the applicability of section 8 of the Succession Act 2006 (NSW), which allows for the dispensing of formal requirements where it can be shown that the deceased intended to execute a will and the document in question is an executor according to the tenor of the will. The court found that Balis's intention to execute a will was evident from the handwritten document, and that the document was an executor according to the tenor of the will. The court held that section 8 of the Act applied, and the informal document could be admitted to probate.

The final order of the court was that the handwritten document be admitted to probate as the will of Balis, and that the plaintiffs, Ballas, be appointed as executors of the estate. The court emphasised the importance of considering the context and circumstances in which the document was created in determining its validity as a will.

Orders