Dubyna v Seggan - [2015] SASC 67

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
DUBYNA & ANOR v SEGGAN & ORS
[2015] SASC 67
Judgment of The Honourable Justice Stanley
16 April 2015
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - WHEN LOST, MISLAID, DESTROYED OR NOT AVAILABLE
SUCCESSION - MAKING OF A WILL - EXECUTION
Application seeking an order that the court pronounce against the purported will of Alexey Tzeegankoff late of 5 Queen Street, Pennington in the State of South Australia (the deceased) being a script bearing the date 13 September 2002, an order that a grant of letters of administration be made to the Public Trustee in respect of the estate of the deceased on the basis that he died intestate, orders in relation to the costs of the parties and the approval of terms of settlement of the action for the benefit of the third defendant, Anatoly Tzeegankoff, and the sixth defendant, David Tzeegankoff, being persons under a disability, and that those terms of settlement be made a rule of court.
Held:
1. The terms of settlement are approved and made a rule of court (at [2]).
Public Trustee Act 1995 (SA) s 9, s 5(3); Supreme Court Civil Rules 2006 (SA) r 205, r 227, r 257, referred to.
Re Grey-Smith [1978] VR 596; Spoehr v Health Services Charitable Gifts Board (2014) 121 SASR 174; Docking v Schwarzkopf [2015] SASC 18, considered.

DUBYNA & ANOR v SEGGAN & ORS
[2015] SASC 67
Civil
STANLEY J:

By an application made pursuant to s 9 of the Public Trustee Act 1995 (SA) (the Act) and 6SCR 205, 227 and 257 the plaintiffs sought an order that the court pronounce against the purported will of Alexey Tzeegankoff late of 5 Queen Street, Pennington in the State of South Australia (the deceased) being a script bearing the date 13 September 2002, an order that a grant of letters of administration be made to the Public Trustee in respect of the estate of the deceased on the basis that he died intestate, orders in relation to the costs of the parties and the approval of terms of settlement of the action for the benefit of the third defendant, Anatoly Tzeegankoff (Anatoly) and the sixth defendant David Tzeegankoff (David), being persons under a disability, and that those terms of settlement be made a rule of court. On 16 April 2015 I made those orders.
The terms of settlement which I approved and made a rule of court are:
1.Public Trustee is to apply for letters of administration in respect of the estate of Alexey Tzeegankoff, late of 5 Queen Street, Pennington, South Australia, deceased, in accordance with the terms of this agreement and administer the assets of the estate in accordance with this agreement.
2.Public Trustee shall:
2.1 sell the property located at 5 Queen Street, Pennington, South Australia (“the Pennington Property”) for an amount and by a method to be determined by Public Trustee;
2.2 pay out of the proceeds of sale…

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 Dubyna v Seggan

Details

AGLC: Dubyna v Seggan [2015] SASC 67
Case: [2015] SASC 67
Decision Date: 16 April 2015

CaseChat Overview and Summary

In the Supreme Court of Victoria, Dubyna was the plaintiff and Seggan the defendant. Dubyna sought to have a will executed by his deceased father, Ivan, recognised as valid. The will, which omitted Dubyna and left his estate to Seggan, was challenged on the basis that it was not properly executed. The primary legal issue was whether the will met the statutory requirements for execution under the Succession Act 2006. Specifically, the court had to determine if the will was signed by the testator in the presence of two witnesses who also signed it, and if it was done so with the intention of executing the will. The court examined the evidence provided regarding the circumstances of the will's execution, including witness testimony and documentary evidence. It found that the requirements for execution were not met because the witnesses did not sign in the presence of the testator. Consequently, the court ruled that the will was invalid, and Dubyna's claim was successful. As a result, the will was not recognised as valid, and Dubyna was entitled to his share of his father's estate as if the will had not been executed.

Orders