Beverly Griggs v Julie Ann Mouglalis & Ors

[2007] NSWSC 120

CITATION:	Beverly Griggs v Julie Ann Mouglalis & Ors [2007] NSWSC 120
HEARING DATE(S):	19/02/07, 20/02/07, 21/02/07
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	21 February 2007
DECISION:	Amendment application refused.
CATCHWORDS:	SUCCESSION - Wills, Probate and Administration - Probate and Letters of Administration - Probate suit for lost will with opposing suit for administration on intestacy heard together - Declaration as to paternity of two children in aid of probate suit - Application after evidence and in course of counsel's final address to vary declaration to include a third child who had minimum involvement in either proceeding - Absence of prejudice if application refused - Declaration irrelevant to probate suit and if administration suit successful, third child could claim and, if dissatisfied administratrix’s decision, could appeal to the court
PARTIES:	Beverly Griggs - Plaintiff Julie Ann Mouglalis - First Defendant
FILE NUMBER(S):	SC 110756/04
COUNSEL:	Mr R Weaver - Plaintiff Mr G Rich - Defendant
SOLICITORS:	Davidsons Solicitors - Plaintiff Stacks Lawyers - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

WEDNESDAY 21 FEBRUARY 2007

110756/04 BEVERLY GRIGGS V JULIE ANN MOUGLALIS & ORS

EX TEMPORE JUDGMENT

1 Beverly Griggs, as attorney, seeks probate of a lost will of Willem Wyma, deceased. In her original summons for administration of the estate, she sought a declaration that Janneke Wyma and Tineke Wyma were the children of the deceased to the exclusion of all others.

2 Her proceedings were heard at the same time as a summons by Julie Ann Mouglalis for a declaration that the deceased died intestate and for an order that administration of the estate be granted to her. There was evidence that the deceased was the father of Ms Mouglalis and her two brothers.

3 The deceased’s wife and the above mentioned two daughters left Australia for the Netherlands while the deceased remained in Australia. Thea Jillings was born to the deceased’s former wife in the Netherlands in 1956, two years before her marriage to the deceased was dissolved. Ms Jillings’ birth certificate records the deceased as her father. He was in the Netherlands about the time of her conception. On the other hand, there was evidence that Ms Jillings was the daughter of a Mr Kraus, whom the deceased’s former wife subsequently married. Apart from an affidavit in which Ms Jillings swore she maintained a continuing relationship with the deceased during his lifetime by visiting him regularly when he was in the Netherlands, Ms Jillings took no part in either proceedings.

4 During his final address, counsel for Ms Griggs sought an amendment to her summons to add Ms Jillings to the declaration as to paternity.

5 I formed the view that the application had nothing to do with Ms Griggs’ primary claim for probate of a lost will and the summons ought not to be varied at such a late stage. I took the view that Ms Jillings should have the opportunity to make any claim she was minded to make if it was found that the deceased died intestate and it was inappropriate, after the close of Ms Griggs’ case and the hearing of evidence that largely excluded consideration of Ms Jillings, to allow the application.

6 Counsel for Ms Griggs pointed out that evidence had been adduced during the hearing with respect to Ms Jillings. Reference was made to the birth certificate and the dates of the deceased’s movements to the Netherlands and back to Australia. Counsel submitted that the estate was modest and determination of the question of the paternity of Ms Jillings would save costs.

7 I reiterate, however, that the question of the paternity of any of the children is irrelevant to the application that is at the forefront of Ms Griggs’ approach to the court. If probate is granted, there is no need for the court to determine the paternity of any child.

8 On the other hand, if the court determines that the deceased died intestate, the application for administration of the estate by Ms Mouglalis has been carefully crafted to seek a declaration only in respect of five children – Ms Mouglalis and her two brothers, Ms Janneke Wyma and Ms Tineke Wyma.

9 Had the declaration as to paternity sought by Ms Griggs in her original summons for administration included Ms Jillings, Ms Jillings may have been minded to take a more active role in the proceedings in support of that declaration and in opposing the declaration as to paternity of Ms Mouglalis and her brothers.

10 Ms Jillings’ position is not jeopardised if the application is refused. If probate of a lost will is granted, there is no utility in a declaration as to the paternity of any child.

11 If probate is not granted and administration is awarded to Julie Ann Mouglalis, it will be for her to determine whether or not Ms Jillings is to be included in the distribution to the children of the deceased on intestacy. In that regard, Ms Jillings will have the opportunity to make a claim that she be included in the distribution of the estate. The administratrix will have to consider that claim. If Ms Jillings is aggrieved by a decision of the administratrix, she may resort to the court for final adjudication.

12 I therefore, dismiss the application.

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