Chronis v Karan

Case [2021] SASC 87

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

CHRONIS v KARAN & ORS

[2021] SASC 87

Judgment of the Honourable Justice Parker  

SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY

SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - LOSS OR LACK OF CAPACITY AND STATUTORY WILLS

SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING

The applicant seeks an order from the Court pronouncing the force and validity of the will made by the deceased, Efstathia Birbas (known as Stathoula), who died on 31 December 2017.  The applicant also seeks an order that the will be admitted to probate in solemn form. The will was made on 17 December 2007 after instructions for its preparation were provided on 12 December 2007. The respondents contend that Stathoula lacked testamentary capacity at that time.  Alternatively, they contend that she did not have the requisite knowledge of, or did not approve of, the contents of the will. The respondents are included amongst the persons whom would take on an intestacy if the will was found to be invalid.

Stathoula was aged 82 years when she made her will on 17 December 2007.  Her husband, Stefanos, had passed away 25 days before that event. The will appointed the applicant, Stathoula’s nephew, as the sole executor and trustee and also the sole beneficiary.

Various family members, including the applicant and respondents gave evidence concerning the circumstances of Stathoula in 2007. However, due to either credibility issues or the limited extent of each witness’s interaction with Stathoula at the relevant time, their evidence throws very little light on her testamentary capacity in December 2007.

According to the evidence of Stathoula’s solicitor, Mr William Niarchos, who took instructions for and witnessed the execution of the will made by Stathoula on 17 December 2007, she appeared to be alert, aware and was very determined that all of her estate was to pass to the applicant. Mr Niarchos gave evidence that he held no doubts about the capacity of Stathoula.

The experts briefed by the parties disagreed as to whether Stathoula had testamentary capacity in December 2007. While the experts agreed that Stathoula was likely to have had some cerebrovascular disease in December 2007 and that by mid-September 2009 she was significantly impaired by dementia, they disagreed as to whether the effect of that condition on her testamentary capacity in December 2007 could be determined.

Held, per Parker J, allowing the application:

1.The contemporaneous and direct evidence of Mr Niarchos, as a legal practitioner with very extensive experience in taking instructions for wills, establishes that Stathoula had the necessary testamentary capacity under the Banks v Goodfellow test at the time she provided instructions to him and also when she executed her will.

2.Stathoula’s response to Mr Niarchos’ explanations of the will and the effect of its provisions establishes that she knew and approved the contents of her will.

3.The force and validity of the will made by Stathoula dated 17 December…

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AGLC
Chronis v Karan [2021] SASC 87
Case
[2021] SASC 87
Decision Date

CaseChat Overview and Summary

In the matter of Chronis v Karan, the Full Court of the Supreme Court of South Australia considered the validity of a will executed by Stathoula Birbas, an elderly Greek immigrant. Stathoula, aged 82 at the time of executing the will, appointed her nephew, Peter Chronis, as the sole beneficiary. The respondents, who included relatives of Stathoula, challenged the validity of the will on the grounds that Stathoula lacked testamentary capacity at the time of its execution.

The central legal issue was whether Stathoula possessed the necessary testamentary capacity when she executed the will on 17 December 2007. Testamentary capacity requires a testator to have a sound mind, memory, and understanding of the nature of the act of making a will, its effect, and the extent of their property, and to be able to comprehend and appreciate the claims to which they might be called to respond. The respondents argued that Stathoula, who had limited education, minimal command of English, and moderate cognitive decline, did not meet these criteria.

The court examined the evidence presented, including the testimony of William Niarchos, the solicitor who prepared and witnessed the will. Niarchos, fluent in Greek and familiar with Stathoula, testified that she was alert, aware, and capable of understanding the nature and effect of the will. He did not doubt her capacity and did not require a medical report to confirm it. Dr Sarah Lucas, a clinical neuropsychologist, supported the view that Stathoula had the requisite testamentary capacity. The court found that Stathoula's understanding of the will's contents, as demonstrated by her responses to Niarchos's explanations in Greek, was sufficient to establish her capacity.

The Full Court held that the will was valid and ordered that it be admitted to probate. The court acknowledged the challenges faced by the respondents in proving the lack of testamentary capacity but concluded that the evidence did not meet the required standard. The court's decision recognised the importance of individual circumstances in assessing testamentary capacity and upheld the will's validity based on the evidence presented.

Orders

Orders of the court

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Background

Background to the litigation

Mrs Birbas was known as Stathoula by her family. Without intending any disrespect to her and her husband, it is convenient to refer to them as Stathoula and Stefanos. Because several of the witnesses share the surname of Chronis (Stathoula’s maiden name), I have also referred to the family members by their first name. Background Stathoula was born in Greece in 1925. Thus, she was aged 82 years when she made her will on 17 December 2007 and 92 years when she died on 31 December 2017. Prior to the death of her husband, Stefanos Birbas, on 22 November 2007 they had been married for some 55 years. Her first language was Greek and she always used that language with family members. She only had a very limited education in Greece although she could read and write in Greek. At least in the later years of her life, she had at best, only a minimal command of English.[1] Before her retirement, she had worked in a factory and, more recently, as a cleaner. [1] The medical records of the Royal Adelaide Hospital indicate that Stathoula had “moderate” English in 1998 but by 2009 the same source recorded her as speaking no English. The applicant, Peter Chronis, is the son of Andreas Chronis, a deceased brother of Stathoula, and thus her nephew. He is the first born of her nieces and nephews. The relationship of the respondents to Stathoula is as follows:·Vicki Karan (formerly Karanastasis) is the daughter of Andreas Chronis, and thus a niece of Stathoula, and also a sister of the applicant. She is the first respondent. ·Theodora (or Dora) Chronis, also a daughter of Andreas Chronis and therefore a niece of Stathoula, and also a sister of the applicant. She is the second respondent.·Dina Pashalidis, the surviving sister of Stathoula. She is the third respondent.·Peter Chronis, the son of George Chronis, a deceased brother of Stathoula, and hence a nephew. He is the fourth respondent.·Vicki Stravinski, the daughter of George Chronis, and thus a niece of Stathoula. She is the fifth respondent.The witnesses The applicant, his wife, Stavroula (or Sally) Chronis and the applicant’s mother, Elli Chronis, gave evidence. The applicant also called Mr William Niarchos, the solicitor who had prepared the will and was one of the witnesses to its execution. Dr Sarah Lucas, a clinical neuropsychologist, gave expert evidence in support of the contention that Stathoula was not shown to have lacked testamentary capacity at the relevant time. Each of the respondents also gave evidence, with the exception of the third respondent, Dina Pashalidis, the 90-year-old sister of Stathoula. However, Thelma Pashalidis, the daughter of Dina Pashalidis, did give evidence. She is a niece of Stathoula and a first cousin of the applicant. Milton Karan, the husband of the first respondent, also gave some brief evidence about a particular incident when he was called upon to rescue Stathoula when she became caught in a fence while picking lemons. The respondents also called Dr Jane Hecker, a consultant physician practising in aged care and rehabilitation, with a special interest in memory disorders.

Evidence

Evidence Before The Court

The will is not complex. The applicant was appointed as the sole executor and trustee and also the sole beneficiary. The value of the estate has been declared for probate purposes at approximately $500,000. The assets consist of the family home and moneys held in a bank account.The evidence of Mr Niarchos The will was prepared and witnessed by William Niarchos, a solicitor. The other witness was his wife, Helen Niarchos. He is fluent in the Greek language, as is his wife. He stated that he has practiced in South Australia since 1978. He has prepared several thousand wills and practices predominantly on behalf of members of the Greek community. He has been active in the Greek Orthodox community for many years. Mr Niarchos stated that he had known Stathoula and Stefanos since he was a child. They had been friends of his parents since they had migrated from Greece in the 1950’s. He had met and spoken with them, particularly at Greek community events, on many occasions. The applicant, Peter Chronis, and his wife Stavroula (Sally) Chronis, and other members of the extended family, were also well known to him. His brother’s firm, where he had worked for a long period, had acted for Stathoula’s brothers in workers compensation claims many years ago and he thought that they may have also acted for her in a personal injury claim in the 1980’s or early 1990’s. In early December 2007, Mr Niarchos had been contacted by the applicant who informed him that because Stefanos had recently passed away Stathoula was reviewing her affairs and wanted to consult him. He arranged with the applicant to meet at the applicant’s mother’s house on 12 December 2007 and to follow him to Stathoula’s house. Mr Niarchos stated that they arrived at about lunch time or sometime after lunch. She warmly welcomed them and prepared and served coffee and Greek cakes. Mr Niarchos considered that Stathoula was alert and aware and her demeanour seemed entirely normal. She was also well groomed and presented. She commenced to speak to him about the making of a will but he advised her that it was necessary to discuss first the grant of an enduring power of attorney and an enduring power of guardianship. He explained the purpose and effect of these instruments. The applicant remained in a nearby area within earshot while these matters were discussed. Mr Niarchos asked Stathoula to gather documents such as Centrelink and Medicare papers, rates notices, bank documents and general accounts. Stathoula gathered those documents and provided them to him. The purpose of this request was to enable Mr Niarchos to check her precise name, its correct spelling, the extent of her assets and other relevant details. However, Mr Niarchos also stated that because he was satisfied with the response of Stathoula to these requests, and the way in which she was speaking to him, he did not wish to insult her by asking questions to test her mental capacity, such as asking her what year it was. He had taken instructions to prepare a great many wills and his practice was to require a medical report if, after talking to the person, he held any doubt about their capacity. He held no doubts about the capacity of Stathoula. Mr Niarchos also stated that he had taken instructions on other occasions for the preparation of a will soon after the death of a spouse.

Decision

Reasons for decision

The evidence of Mr Niarchos establishes that he translated the will into Greek and explained the effect of its provisions to Stathoula in that language. Her response (see [24] above) to his explanations is persuasive evidence that she knew and approved the contents of her will and I so find. Conclusion For the preceding reasons, I pronounce the force and validity of the will made by Efstathia (known as Stathoula) Birbas dated 17 December 2007 and order that the said will be admitted to probate in solemn form. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

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