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
[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.
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AGLC
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.