Capaldo v Gretsas - [2022] SASC 117

Supreme Court of South Australia
(Civil: Application)
CAPALDO v GRETSAS & ORS
[2022] SASC 117
Judgment of the Honourable Justice Stanley
SUCCESSION - ADMINISTRATION OF ESTATE - DISTRIBUTION - GENERALLY
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY
This is an application by the executrix seeking advice and direction pursuant to s 69 of the Administration and Probate Act 1919 (SA); a declaration as to the construction of the deceased’s will; and an order directing the Registrar-General to remove a caveat registered over the real property forming part of the estate.
The applicant is the executrix and trustee of the estate of her late father. The respondents, the deceased’s daughters, are the beneficiaries of the estate.
As part of the administration of the estate, the applicant wishes to sell the real property forming part of the estate and distribute the proceeds together with the other assets of the estate equally amongst the beneficiaries.
The first respondent and second respondent oppose this course and wish the properties to be distributed to the beneficiaries in specie to be held by them as tenants in common in equal shares.
The deceased’s will does not include an express power to sell the real property forming part of the estate.
The first respondent has lodged a caveat over the real property forming part of the estate claiming an estate or interest in fee simple as a beneficiary of the will.
Held:
1. The applicant, in her capacity as executrix, is advised and directed that it is within her power to sell and call in the real property forming part of the estate.
2. The Registrar-General is directed to remove the caveat registered by the first respondent over the real property forming part of the estate.
3. The costs of and incidental to the application are to be paid out of the estate.
Administration and Probate Act 1919 (SA) ss 46, 51, 69; Real Property Act 1886 (SA) s 191, referred to.
Barclay v Owen (1889) 60 LT 220; Barns v Barns (2003) 214 CLR 169; Burke v Public Trustee [2022] SASCA 64; Farrelly v Phillips (2017) 128 SASR 502; Galvasteel v Monterey Building (1974) 10 SASR 176; Garwoli v Garwoli [2015] SASC 1; Howe v Lord Dartmouth (1802) 32 ER 56; In the Estate of Just (No 2) (1974) 7 SASR 515; In the Estate of Nies (Deceased) [2014] SASC 93; Michael v Callil (1945) 72 CLR 509; Pagels v MacDonald (1936) 54 CLR 519; Re Wheaton [1937] SASR 19; Yule v Irwin (No 2) [2016] SASC 178, considered.

CAPALDO v GRETSAS & ORS
[2022] SASC 117
Civil
STANLEY J:
Introduction

Maria Capaldo, in her capacity as executrix of the estate of her late father, Georgios Tsarouchas (the deceased), seeks advice and direction pursuant to s 69 of the Administration and Probate Act 1919 (SA) (APA); a declaration as to the construction of the deceased’s will; and an order directing the…

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 Capaldo v Gretsas

Details

AGLC: Capaldo v Gretsas [2022] SASC 117
Case: [2022] SASC 117
Decision Date: 14 October 2022

CaseChat Overview and Summary

In the case of Capaldo v Gretsas, the court was tasked with resolving a dispute arising from the interpretation of a will. The deceased had left a will that contained ambiguous terms regarding whether his executrix had been granted a power of sale over certain real properties. This ambiguity led to a conflict between the executrix, Ms Capaldo, and another party, Mrs Gretsas, who had registered a caveat over some of the properties in question. The case ultimately reached the court, which had to determine whether Ms Capaldo had the authority to sell the properties and if the caveat placed by Mrs Gretsas was justified.

The primary legal issue before the court was whether the deceased's will had effectively granted Ms Capaldo the power to sell the specified real properties as part of the estate's distribution. Additionally, the court had to decide whether the caveat registered by Mrs Gretsas over the properties was valid and whether it should be removed. The court needed to interpret the ambiguous language of the will to ascertain the testator's intentions and decide on the appropriate course of action regarding the sale of the properties and the removal of the caveat.

The court found that the will's ambiguity regarding the power of sale was due to the testator's fault. As a result, the court ruled that Ms Capaldo, as the executrix, had the power to sell the specified properties located at 8 Frank Street, Para Hills; 38A Cowra Street, Mile End; and 25 Ebor Avenue, Mile End. The court also determined that the caveat placed by Mrs Gretsas was unjustified and ordered its removal. Furthermore, the court ruled that the costs of the application should be paid from the estate, reflecting the testator's responsibility for the ambiguity.

In conclusion, the court issued an order allowing Ms Capaldo to sell the specified properties and removed the caveat lodged by Mrs Gretsas. The court also directed that the costs of the application be paid from the estate. The ruling clarified the executrix's authority to proceed with the sale and resolved the dispute over the validity of the caveat.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In this case the proceedings are a result of the terms of the will. The terms of the will gave rise to uncertainty as to whether the deceased had conferred a power of sale for the purposes of distribution on his executrix. The fault lies at the feet of the testator. In those circumstances, I consider the appropriate order is that the costs of this application be paid out of the estate. Conclusion Pursuant to s 69 of the APA I would give Ms Capaldo, in her capacity as executrix, advice and direction that it is within her power to sell and call in real property forming part of the estate being the property situated at 8 Frank Street, Para Hills SA 5096; the property situated at 38A Cowra Street, Mile End SA 5031; and the property situated at 25 Ebor Avenue, Mile End SA 5031. In the circumstances it is unnecessary to make the declaration sought as to the construction of the deceased’s will. I would make an order pursuant to s 191(1)(d) of the RPA directing the Registrar-General to remove caveat no. 13611220 registered over the above properties by Mrs Gretsas. I would order that the costs of and incidental to this application be paid out of the estate.

Ratio Decidendi

Legal Principle Established

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