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Demediuk v Demediuk

Demediuk v Demediuk

Case [2019] VSCA 79 10 April 2019

Presumption of Revocation

Admissibility of Evidence

Interpretation of Wills

Succession Law

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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…

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 Demediuk v Demediuk

Details

AGLC: Peter Mark Demediuk v Barbara Helen Demediuk [2019] VSCA 79
Case: [2019] VSCA 79
Decision Date: 10 April 2019

CaseChat Overview and Summary

The case of Demediuk v Demediuk involved a dispute over the validity of a will. The deceased, Mrs Demediuk, had left behind a will that was to be probated. However, the original last page of the will containing the signatures of the testator and the witnesses could not be located. Instead, a photocopy of this last page was provided by the testator to the executor. The court was tasked with determining whether the presumption of revocation of the will by the testator, known as the "animo revocandi," had been rebutted in light of this situation.

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