SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0068
| PETER MARK DEMEDIUK & ORS | Applicants |
| v | |
| BARBARA HELEN DEMEDIUK & ORS | Respondents |
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| JUDGES: | KAYE, T FORREST JJA and CHAMPION AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 April 2019 |
| DATE OF JUDGMENT: | 10 April 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 79 |
| JUDGMENT APPEALED FROM: | Re Demediuk (No 3) [2018] VSC 86 |
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PROBATE – Original last page of Will containing testator’s and witnesses’ signatures not found – Photocopy given by testator to executor – Whether presumption ‘animo revocandi’ rebutted – Amended Grounds of Objection to grant of probate – Whether circumstances preceding and contemporaneous with execution of Will relevant and admissible – Welch v Phillips (1836) 1 Moo PCC 299; McCauley v McCauley [1910] 10 CLR 434, Sugden v Lord St Leonards (1876) LR 1 PD 154, Cahill v Rhodes [2002] NSWSC 561 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr C Caleo QC Mr A Verspaandonk | Arnold Bloch Leibler |
| For the First Respondent | Mr R Wells Mr D Kinsey | Kathy Wilson Legal |
KAYE JA
T FORREST JA
CHAMPION AJA:
The applicants seek leave to appeal against the decision of a trial judge of the Court by which they were refused leave to amend their Grounds of Objection to the grant of probate of the Will of their late father, Peter Demediuk (‘the deceased’), who died on 15 February 2013.
At the time of his death, the deceased was 93 years of age. His wife, Taisa, had pre-deceased him. The deceased left four adult children, namely:
(a) the first respondent, Barbara Demediuk (the plaintiff);
(b) the first and second applicants, Peter Demediuk and Nicholas Demediuk (the first and third defendants);
(c) the second respondent, Sandra Willis (the second defendant).
The deceased made at least five Wills during his lifetime, which were dated as follows: 5 July 1956; 9 July 2010; 24 November 2010; 10 February 2012 (‘the February Will’); and 27 June 2012 (‘the June Will’). None of those Wills had been professionally drawn by a firm of solicitors. The first Will (made in July 1956) was completed in handwriting on proforma Will stationery. Each of the last four Wills were typewritten, and appeared to have been printed from a computer with a word processing program. They each consisted of three pages. The deceased was not computer literate, and it is accepted that he must have had some assistance at least in engrossing each of those last four Wills.
After the deceased died, the only version of the June Will, that was available, was a four page document. It consisted of two original pages, numbered ‘one of three’ and ‘two of three’ respectively, and two further photocopied pages both numbered ‘three of three’. That third page contained the date and signature of the deceased and the two attesting witnesses.
The first respondent has made application to the Court for probate of the June Will. In her affidavit in support of that application, she…
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- AGLC
- Peter Mark Demediuk v Barbara Helen Demediuk [2019] VSCA 79
- Case
- [2019] VSCA 79
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the circumstances preceding and contemporaneous with the execution of the will could be considered to rebut the presumption of revocation and whether the amended grounds of objection to the grant of probate could be admitted. The court examined relevant cases such as Welch v Phillips, McCauley v McCauley, Sugden v Lord St Leonards, and Cahill v Rhodes to assist in its decision-making.
In determining the matter, the court found that the circumstances surrounding the execution of the will were indeed relevant and admissible in considering whether the presumption of revocation had been rebutted. The court ultimately concluded that the presumption had been successfully rebutted, leading to the allowance of the amended grounds of objection to the grant of probate. Consequently, the court granted the probate of the will, subject to the objections raised.
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
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Ratio Decidendi
Legal Principle Established
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