Dedakis v Deligiannis

Case [2024] NSWSC 1018


Supreme Court


New South Wales

Medium Neutral Citation: Dedakis v Deligiannis; The estate of Rebecca Deligiannis (also known as Rebeka Deligiannis) [2024] NSWSC 1018
Hearing dates: 5, 6, 7 August 2024
Decision date: 15 August 2024
Jurisdiction:Equity
Before: Leeming JA
Decision:

Direct the parties to file and serve either an agreed short minute of order, or alternatively proposed short minutes of order for which they contend, accompanied by submissions not exceeding five pages, within 14 days of today, followed by submissions in reply not exceeding three pages 7 days thereafter. The submissions in reply are to indicate whether either side seeks an oral hearing or is content with any dispute to be resolved on the papers.

Catchwords:

PROBATE — testamentary capacity — knowledge and approval — undue influence — elderly testatrix altered will so as to dilute entitlement in favour of son — whether suspicious circumstances — testimonial and documentary evidence as to capacity and knowledge and approval — whether daughter had received real property during lifetime — whether additional reasons for diluting daughter’s entitlement — significance of those reasons — probate granted in favour of son — claim for mesne profits for period of daughter’s occupation of family home — whether claim available — consideration of Minister of State for the Interior v RT Co Pty Ltd (1962) 107 CLR 1; [1962] HCA 29 and Richardson v Richardson [2021] NSWSC 353

SUCCESSION — claim by daughter — whether adequate provision made — whether real property received by her during lifetime — application refused

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 63

Common Law Procedure Act 1853 (NSW), ss 37, 165

Common Law Procedure Act 1852 (15 & 16 Vict c 76), ss 41, 214

Common Law Procedure Act 1899 (NSW), s 49

Fair Trading Legislation (Repeal and Amendment) Act 2015 (NSW)

Landlord and Tenant Act 1899 (NSW), ss 1D, 12

Probate and Administration Act 1898 (NSW), s 44

Recovery of Possession by Landlords Act 1820 (1 Geo 4, c 87)

Stamp Duties Act 1920 (NSW)

Succession Act 2006 (NSW), ss 58, 59, 60

Supreme Court Act 1970 (NSW), ss 8, 79, 92

Supreme Court Rules 1970 (NSW) Pt 8 r 1, Pt 78 r 69

Uniform Civil Procedure Rules 2005 (NSW), rr 6.18, 7.10, 9.1

Cases Cited:

Angius v Salier [2019] NSWSC 184

Banks v Goodfellow (1870) LR 5 QB 549

Biviano v Natoli (1998) 43 NSWLR 695

Broadway Pty Ltd trading as trustee for the Criddle Family Trust v Lewis [2012] WASC 373

Bull v Fulton (1942) 66 CLR 295

Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136

Carnegy v Scott (1830) VII Bligh NS 462; 5 ER 843

Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65

Cassaniti v Ball as liquidator of RCG CBD Pty Limited (in liq) (2022) 109 NSWLR 348; [2022] NSWCA 161

Chalik v Chalik [2024] NSWSC 117

Ciaglia v Ciaglia [2010] NSWSC 341

Corbett v Packington (1827) 6 B & C 268; 108…

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Dedakis v Deligiannis [2024] NSWSC 1018
Case
[2024] NSWSC 1018
Decision Date

CaseChat Overview and Summary

In the matter of Dedakis v Deligiannis, the court was tasked with adjudicating on a dispute concerning the validity of a will executed by the deceased, Mrs Dedakis, and the subsequent distribution of her estate. The primary issue was whether the will, which altered the deceased’s earlier will to reduce her daughter’s inheritance in favour of her son, was made with the requisite testamentary capacity and knowledge and approval. Additionally, the court had to determine whether the daughter’s prior receipt of real property during the deceased’s lifetime justified the alteration of her inheritance, and whether any undue influence was exerted by the son to alter the will.

The court examined the evidence presented regarding the deceased’s testamentary capacity, knowledge, and approval of the altered will. It considered both testimonial and documentary evidence, including expert medical opinion, and evaluated whether there were suspicious circumstances surrounding the execution of the will. The court also looked at whether the daughter had indeed received real property during the deceased’s lifetime and whether this explained the altered will. Furthermore, the court assessed the significance of any additional reasons for diluting the daughter’s entitlement, weighing these against the presumption of undue influence. Ultimately, the court found that the deceased had the necessary testamentary capacity and had properly executed the altered will, granting probate in favour of the son.

In addition to the primary dispute, the court addressed the daughter’s claim for mesne profits for the period during which she occupied the family home. The court considered the applicability of Minister of State for the Interior v RT Co Pty Ltd and Richardson v Richardson in determining whether such a claim was available. The court ruled that the daughter’s claim for mesne profits was not sustainable, given the circumstances of the case. Finally, the court denied the daughter’s application for adequate provision, confirming that the deceased had made sufficient provision for her in light of the real property she had received during the deceased’s lifetime.

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Legal Principle Established

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