Elias Siokos v Fotini Moisiadis
[2013] VSCA 314
•1 November 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2013 0088
| ELIAS SIOKOS | Appellant |
| V | |
| FOTINI MOISIADIS | Respondent |
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| JUDGES | OSBORN and BEACH JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 1 November 2013 |
| DATE OF JUDGMENT | 1 November 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 314 |
| JUDGMENT APPEALED FROM | Supreme Court of Victoria, McMillan J, 7 June 2013 |
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ADMINISTRATION AND PROBATE – Letters of administration granted to the daughter of the deceased – Application for revocation of the grant dismissed – Appeal against decision refusing revocation – Appeal deemed to be abandoned – Application for reinstatement – Application adjourned and injunction granted to prevent the sale of real property constituting part of the assets of the estate subject to further order – Entitlement of the widow of the deceased to assets of the estate – Six years’ delay – Injunction dissolved – Applicant referred to mediation.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the Respondent | Mr R Boaden | James Harris Lawyers |
OSBORN JA:
Ioannis Siokos died on 23 August 2007 in Corinth, Greece. He was survived by his widow, Konstantina, and three children – Elias Siokos, Dimitrios Siokos and Fotoula (‘Fotini’) Moisiadis. The deceased’s assets comprised:
· a residential property at 70 Flinders Street, Thornbury, valued for probate at $850,000 (there is controversy as to its current value);
· contents of the house valued for probate at $10,000; and
· real property in Greece.
On 22 May 2007 the deceased and his wife had made a statutory declaration stating that:
We are going overseas for 12 months and give permission for our son, Leo Siokos of 1/33 Strathmerton Street, Reservoir Vic 3073, to act on our behalf to look after our house and property and to attend to any court action on our behalf.
The previous year the deceased and his wife had each made wills. By a will dated 29 August 2006 (‘the 2006 will’) the deceased appointed his wife to be the executrix and left his estate to her absolutely provided that if his wife predeceased him his estate should go to Elias. The will stated:
I make no provision in this will for my daughter Fotini Moisiadis or my son Dimitrios Siokos having provided for them during my lifetime.
Konstantina Siokos made a will on the same day mirroring that of her husband. Thus it appears her son Elias stands to inherit the whole of her estate upon her death.
Konstantina was born on 5 February 1935 and now has cognitive impairment which affects her capacity to independently manage her financial and legal affairs. She suffers from depression and lives in a high care nursing home. She has been a represented person since 9 November 2012 when the Victorian Civil and Administrative Tribunal appointed State Trustees Limited (‘State Trustees’) to be her administrator.
Although the deceased died more than six years ago his widow has still received no distribution at all from the estate. She lives on a pension. Apart from her entitlements under her husband’s will and $1,530 invested with State Trustees, she has no property or funds of her own. She has no funds for therapy, case management, paramedical equipment, mobility equipment or recreation equipment. She is unable to communicate or walk without assistance. She needs the provision of funds to improve her quality of life.
On 21 January 2011 Elias Siokos (‘the applicant’) advertised his intention to apply for probate of the 2006 will on the grounds of incapacity of the executrix.
On 9 February 2011 the applicant applied for probate of the 2006 will in proceeding number 01469 of 2011 (‘the 2011 proceeding’).
On 8 February 2011 the applicant swore an affidavit deposing that the deceased died leaving the 2006 will unrevoked and stating:
that my sister Fotoula Moisiadis and my brother Jim Dimitrios took the original will from the deceased’s house about a year after his death.
On 11 February 2011 the Registrar of Probates made requisitions stating inter alia that the original will was required.
Thereafter State Trustees prepared and filed an application in its capacity as the administrator of the estate of Konstantina, for letters of administration with a copy of the will dated 29 August 2006 annexed.
By an affidavit sworn 18 July 2011 Jasmine Berger deposed:
17State Trustees, in its capacity as the administrator of the estate of Konstantina Siokos, is prepared to take over the conduct of the application for probate of the will, if there is sufficient evidence available to prove it. If, instead, the will is presumed to have been revoked, with the consequence that the deceased has died intestate, then State Trustees is prepared to make application for letters of administration to the estate.
18State Trustees therefore seeks that the Court give directions in this matter which will enable an appropriate grant of representation to the estate of the deceased to be made without further avoidable delay.
There are affidavits of attempted service of notice of the application of State Trustees upon the applicant sworn 29 July 2011 and 19 August 2011.
Ultimately the matter came on before Habersberger J on 16 December 2011. There was no appearance for the plaintiff (the applicant in these proceedings) but counsel appeared for the widow Konstantina. His Honour recorded the background to the proceeding under the heading of ‘Other Matters’:
1. Konstantina Siokos is the widow of the abovenamed deceased.
2.The deceased is also survived by his three children, Elias Siokos, Dimitrios Siokos, and Fotoula Moisiadis.
3.Konstantina Siokos is a represented person, her administrator being State Trustees Ltd, it having been appointed on 21 August 2009[1] by order made in the Victorian Civil and Administrative Tribunal.
4.The deceased made a will dated 29 August 2006 by which he appointed his widow to be his executrix and universal beneficiary, and appointed his son Elias Siokos to be his alternate executor.
5.Konstantina Siokos being under a disability and unable to apply for probate of the will, by application filed on 9 February 2011 Elias Siokos applied for probate of the will.
6.The original will was last known to be in the possession of the deceased, and has not been able to be located.
7.Konstantina Siokos is unable to adduce evidence to discharge the presumption that the deceased destroyed the will with the intention of thereby revoking it.
8.Konstantina Siokos is content for letters of administration to the estate to be granted on the basis that the deceased died intestate, notwithstanding that the distribution to which she is entitled under an intestacy is less than that to which she would be entitled if the will were admitted to probate.
9.Upon the plaintiff's application for probate being dismissed, the administrator of the estate of Konstantina Siokos intends to seek a grant in common form of letters of administration to the estate of the deceased, based on the deceased having died intestate.
[1]Affidavit evidence filed in this application indicates that the relevant order was made on 9 November 2012.
His Honour ordered that the application filed on 9 February 2011 by the applicant for probate of the will dated 29 August 2006 be dismissed and that the costs of the widow of and incidental to the application be paid out of the estate.
No appeal was lodged against these orders.
On 19 September 2012 Fotini Moisiadis filed an originating motion seeking letters of administration of her father’s estate on the basis that he died intestate. She filed an affidavit sworn 17 September 2012 in which she deposed:
2I believe the abovenamed deceased did not leave a will and codicil or document purporting to embody the testamentary intentions of the deceased.
3I have searched the personal possessions of the deceased and residence and found no will or codicil and no record of a will or codicil being made.
4I have enquired at State Trustees Limited who have advised me that it does not hold a will or codicil on behalf of the deceased.
5I have enquired at the deceased’s bank which has advised that it does not hold any documents on behalf of the deceased.
6I have made enquiries and I do not have knowledge of the deceased’s former solicitors.
The application of Fotini was advertised online on the Supreme Court page on 31 August 2012.
Letters of administration were granted to Fotini on 19 October 2012 by the Registrar of Probates.
On 11 April 2013 the applicant filed a summons seeking revocation of the grant of the letters of administration which had been made to Fotini.
On 11 April 2013 the applicant swore an affidavit stating:
· a true copy of the will pertaining to Ioannis Siokos and Konstantina ‘does exist’;
· the applicant was not ‘properly informed’ of the Supreme Court application initiated by Fotini;
· the statements made by Fotini are ‘false and misleading to the Court’.
On 24 April 2013 State Trustees initiated an application pursuant to pt IV of the Administration and Probate Act 1958 seeking further provision for the maintenance and support of Konstantina.
On 3 May 2013 the applicant’s summons seeking revocation of the grant of letters of administration was adjourned over to 7 June 2013.
On 7 June 2013 McMillan J made orders that the applicant’s application by summons of 11 April 2013 be dismissed and that the applicant pay the respondent’s costs of the application.
The applicant lodged a notice of appeal against these orders on 7 June 2013. By reason of subsequent failure to comply with the rules relating to a note of the contents of the appeal book, the appeal was subsequently deemed to abandoned.
By summons dated 17 July 2013 the applicant sought an order from the Court that the appeal not be taken to be abandoned. It is this application which is now before the Court but, before returning to it, some additional steps in the history of the matter must be noted.
On 3 July 2013 terms of settlement were entered into in respect of the pt IV claim between Konstantina’s representative and Fotini. On 1 August 2013 Judge Misso approved the compromise of the pt IV proceeding. Under ‘Other Matters’ he noted in his order:
1The Plaintiff is a represented person, State Trustees having been appointed administrator of her estate by an order made on 9 November 2012 by VCAT.
2The Court is satisfied that the Plaintiff’s entitlement under the intestate distribution of the estate of the Deceased is not sufficient to provide for her proper maintenance and support.
His Honour ordered that:
1The compromise contained in the Terms of Settlement dated 3 July 2012 is approved on behalf of the plaintiff.
2That, in lieu of the Plaintiff’s entitlements under s 51 of the Administration and Probate Act, the Defendant pay to State Trustees as the administrator of the estate of the Plaintiff the sum of $400,000, inclusive of the Plaintiff’s costs of this proceeding.
3.That an authenticated copy of the Order be annexed to the Letters of administration to the estate of the Deceased.
4.That liberty to apply be reserved to the parties.
The applicant's summons was originally listed to be heard on 20 September 2013 but was brought forward to enable him to seek injunctive relief restraining the sale of the property at 70 Flinders Street. On 6 September 2013 Hansen and Tate JJA ordered that the hearing of the application be adjourned to Friday 4 October 2013 or a date so soon thereafter as the business of the Court allowed, and further ordered:
Subject to further order, the respondent be restrained by herself, her servants or agents from selling or auctioning or offering for sale the property at 70 Flinders Street, Thornbury.
Contextual considerations
Before turning to what should now happen in this matter, I pause to note two significant contextual matters.
The first is that the affidavit evidence filed on behalf of the widow presents an overwhelming case for facilitating access by the widow to the assets of the estate. Prima facie she is entitled to such access pursuant to the orders of the County Court. Even if the applicant were to succeed in his fundamental contention that the 2006 will should be upheld however the widow would also be entitled to access the assets of the estate absolutely. On any view the widow should not be kept in limbo any longer.
Secondly, although the delay in making the present application was no more than brief after a failure to comply with the rules governing appeals to this Court, the underlying reality is that the applicant’s application to McMillan J was brought against a background of gross delay in prosecuting the substance of the claim he originally instituted by way of proceeding number 01469 of 2011.
In this regard I note that the applicant’s failure to prosecute the matter after his initial application for probate is not explained on affidavit.
Further, the application to remove his sister as administratrix was, as Mr Boaden submits, not coupled with an application for orders which would provide for the further administration of the estate.
The substantive basis of the appeal
Having said that, it is inappropriate and unnecessary at this point in time to deal with the matters that are raised going to a potential substantive basis of the appeal or to the standing point which is raised on behalf of the respondent in submissions made on her behalf. I will simply perhaps say that, in essence, the substantive basis of the appeal is a complaint of want of procedural fairness, coupled with a complaint that her Honour should not have summarily dismissed the appellant's application before her.
Mediation
It will be apparent from what I have already said that this matter now has a long and unfortunately complex history. Its continuation carries with it the real risk of incidental costs which are quite disproportionate to the value of the estate. The Court of Appeal Registrar has been advised that legal representation is available from the Victorian Bar Pro Bono Scheme for the purposes of representing the applicant at a mediation. In my view, it is appropriate in all the circumstances to order that the matter be mediated before resolving the application for reinstatement. Consequential orders should also be made facilitating the participation of the widow’s representative and the applicant’s brother, Dimitrios Siokos, in the mediation.
Injunction
There remains the further question whether the injunction restraining the sale of the deceased’s home should be continued. I have come to the view that it should not. First, its effect is to shut out the widow from access to funds to which she is on any view entitled. Secondly, there is a real prospect that further delay in this matter will lead to waste of the principal asset owned by the estate and the incurring of costs which are destructive of the estate. Thirdly, the actions of State Trustees in obtaining pt IV relief cannot be criticised and their costs must be protected. Fourthly, the evidence supporting the applicant’s underlying claim remains relatively vestigial and, to an extent, speculative. I should add in that regard that the applicant has sought today to rely on a statutory declaration which puts in evidence certain matters which it appears were not agitated in detail before her Honour. Despite this further material, the reality is that the circumstances of the mutual wills, the statutory declaration, and the subsequent custody of the house and disappearance of the will have not been properly evidenced as far as I can see before the Court. Fifthly, the delay in bringing a substantive application propounding the 2006 will has been such that the applicant should not in equity be permitted to continue to restrain realisation of the estate assets. The applicant submitted that the injunction should be maintained for two reasons. First, he complains that he has had belongings wrongfully removed from the house and that the respondent has not dealt properly with the custody of the house. Secondly, he submits that he has not received bills that satisfy him that his mother needs any more than the pension for her ongoing care. In my view, neither of these matters outweigh the considerations to which I have already referred. The first is really quite separate from the consideration of whether the house should now be sold, and the second does not carry any weight having regard to the affidavit material which has been filed with the Court relating to the widow's needs.
Conclusion
Accordingly, I would direct that the matter be mediated and I would not continue the injunctive relief which prevents the sale of the deceased’s home. I would otherwise adjourn the application before the Court to Friday 13 December 2013 and reserve the costs of today and make consequential orders to facilitate the mediation.
BEACH JA:
I agree.
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