Estate of Halas Halas v NSW Trustee and Guardian
[2012] NSWSC 1107
•31 August 2012
Supreme Court
New South Wales
Medium Neutral Citation: NSW Trustee and Guardian; Estate of Halas Halas v NSW Trustee and Guardian [2012] NSWSC 1107 Hearing dates: Friday, 31 August 2012 Decision date: 31 August 2012 Jurisdiction: Equity Division - Probate List Before: White J Decision: Refer to paras [12] and [13] of judgment.
Catchwords: WILLS, PROBATE AND ADMINISTRATION - application for declaration that informal document constitutes will of deceased, Wills, Probate and Administration Act 1898 (NSW), s18A - where handwritten document clearly purports to embody the testamentary intentions of deceased - clear from face of document that deceased intended document to constitute will
PRACTICE AND PROCEDURE - requirement for notice of an application for a grant in relation to an estate be given to affected persons - Supreme Court Rules 1970, Part 78, r 34E - application for order dispensing with requirement for service of the application on any son of the deceased - where identity of son referred to in handwritten will unknown - where no evidence as to where the person might be living if he was born and still alive - order dispensing with requirement for notice to affected persons would not preclude any such person seeking to require sole beneficiary to account for estate distributed to herLegislation Cited: Wills, Probate and Administration Act 1898
Succession Act 2006Category: Principal judgment Parties: NSW Trustee & Guardian (Plaintiff 2012/163660)
Maria Halas (Plaintiff 2012/291791)Representation: Counsel:
A Hill (NSW Trustee & Guardian)
V Hartstein (Maria Halas)
Solicitors:
File Number(s): 2012/163660 2012/291791
Judgment
HIS HONOUR: These proceedings concern the estate of John Halas who died on 3 October 2002 at Marrickville aged 80. On 7 February 2003 letters of administration of the estate were granted to the Public Trustee (now the NSW Trustee and Guardian). In the first proceeding the NSW Trustee and Guardian seeks judicial advice as to whether it would be justified in distributing the estate on the basis that any child that the deceased had had predeceased him without leaving issue or whether further searches should be made to locate any issue of the deceased, and if so, what searches.
At the time of the 2003 grant it was thought that the deceased had died intestate. The deceased had been born in Greece of Greek parents. His parents predeceased him. His only surviving sibling was a sister, Maria Halas. She has children. The deceased's other siblings did not have children. Hence, unless the deceased had a child, his sister Maria Halas would be entitled to the estate on intestacy.
The complication arises from the fact that on 7 September 2005 a legal advisor for Maria Halas provided to the Public Trustee a copy, said to be a certified copy, of a handwritten document that appears to express the deceased's testamentary intentions. It is dated 15 October 1992. It was signed by the deceased, but not witnessed. The document is written in the Greek language. Translated, it provides:
"John Halas born in (illegible), resident of Baybay [sic], Marrickville Sydney NSW, Australia give to my sister Maria Chala my personal and real property and my money located in Greece and Australia for her moral and material assistance to me, my parents and our family.
I have a son out of wedlock, if he is found she may give him whatever she wishes.
with love ...".
The document was then signed by the deceased and dated. It appears from the document that it was executed in Australia. On 15 April 2005 this document was published in a court in Athens. The record of the Greek Court states that at an open hearing the judge published the above will, and it appears from the record of the proceedings that the will met the formal requirements for validity under Greek law.
The Public Trustee made inquiries to endeavour to locate the person whom the deceased had described as his son born out of wedlock. If the handwritten will is not a valid will under New South Wales law, and no declaration is made under s 18A of the Wills, Probate and Administration Act 1898 for it to be effective as an informal testamentary document, then any such son would be entitled to the estate on intestacy.
In the second proceeding, which was commenced by summons filed today and heard with the application of the NSW Trustee and Guardian, Maria Halas (or Chala or Chalas) seeks a declaration pursuant to s 18A of the Wills, Probate and Administration Act that the document, a copy of which is annexed to the summons, constitutes a will of the deceased. She seeks an order that there be a grant of administration of the estate with the will annexed to the NSW Trustee and Guardian. Although not sought in the summons, Maria Halas also seeks an order under Pt 78, r 34E of the Supreme Court Rules 1970 dispensing with the requirement for service of the application on any such son of the deceased. No son of the deceased has been located.
The deceased was born and lived on the island of Andros. Maria Halas deposes that to her knowledge her brother had not had a serious relationship and if there had been a child whom he fathered, born on Andros, she would have known about it. The evidence is that the population of Andros is small. Inquiries instituted by the Public Trustee through an organisation called Macbeth Genealogical Services confirms this. That organisation contacted the Andros mayoral office and spoke to an Irene Vastavdi who confirmed that, being a small place, she knew the residents of the island well. She was able to provide accurate information about the deceased's siblings, and said that to her knowledge there was no illegitimate child fathered by the deceased registered in Andros. There was an indication in this call that some years previously, a Cypriot lawyer had made an inquiry of the mayoral office on behalf of a client who was an English citizen. It appears that Macbeth Genealogical Services followed that potential lead by communicating with Cypriot lawyers whose name appeared in the Cypria Yellow Pages. No further information has become available to the Public Trustee.
The handwritten document dated 15 October 1992 clearly purports to embody the testamentary intentions of the deceased. It is not entirely clear that the document was not executed in accordance with the formal requirements of the Wills, Probate and Administration Act. Under s 32C(c) of that Act (now s 48(1) of the Succession Act 2006) the will is to be treated as properly executed if its execution conformed to the internal law in force in a country of which the testator was, either at the time of the execution of the will, or at the time of the testator's death, a citizen. The deceased, having been born in Greece, would have been a citizen of Greece. However, as counsel for Maria Halas submits, there is no evidence as to whether or not he acquired Australian citizenship and no evidence as to whether, by reason of his long residence outside of Greece, he may have lost his Greek citizenship. The deceased came to Australia in about 1949 and appears to have remained resident here until his death. In the absence of evidence as to citizenship, I think counsel for Maria Halas is right in making the application pursuant to s 18A.
It is clear from the face of the document itself that deceased intended the document to constitute his will. Part 78, r 34E requires notice of an application for a grant in relation to an estate where a person's interest in the estate might be affected by a declaration under s 18A to be given to the affected person. In this case it is not possible to give notice to a son of the deceased, if indeed that son exists. Pursuant to r 34E(2) the Court can dispense with the requirement of notice if, amongst other reasons, the affected person cannot be readily ascertained or, though ascertained, cannot be found. If the deceased had a son, as he asserted in the handwritten will, then that person's identity has not been able to be ascertained and he cannot be found.
A question has been raised as to whether, nonetheless, before making an order dispensing with the requirement of the rule, and before giving a direction to the NSW Trustee and Guardian that it would be justified in distributing the estate to Maria Halas, notices should be published in newspapers to seek to find this person. The difficulty with that course is that it is not at all clear where such advertisements should be placed. There would be no purpose in advertising on the island of Andros if indeed there are newspapers in circulation there. There is no other evidence as to where the person might be living, if indeed he was born and is still alive.
The effect of giving a direction to the NSW Trustee and Guardian that it would be justified in distributing the estate to Maria Halas would be to protect it against subsequent claims if a person answering the description of the deceased's son comes forward and contends that the document of 15 October 1992 is not a valid will. Such a direction would not preclude any such person from seeking to require Maria Halas to account for the estate that would be distributed to her. The position appears to be the same in Greece where she resides.
I also take into account that this appears to be a strong case for saying that the document should be declared to be the deceased's will, at least pursuant to s 18A of the Wills, Probate and Administration Act.
For these reasons I make the following declaration and orders:
1. Declare pursuant to s 18A of the Wills, Probate and Administration Act 1898 that the document, a copy of which is annexed to the summons filed today constitutes the will of the late John Halas who died on or about 3 October 2002 ("the deceased").
2. Order that the grant dated 7 February 2003 of letters of administration of the deceased's intestate estate be revoked.
3. Order that administration of the estate of the deceased with the copy will referred to in declaration 1 annexed, be granted to the NSW Trustee and Guardian.
4. Refer the proceedings to the Registrar to complete the grant.
5. Order that the costs of the plaintiff, Maria Halas, be paid out of the estate of the deceased and the defendant's costs on the indemnity basis be paid out of the estate of the deceased.
As those orders have been made in the proceeding commenced this morning, it is accepted that there is no need to give any of the directions sought in the summons for judicial advice in proceeding 2012/163660. Accordingly, in that matter I order that the summons be dismissed. I order that the plaintiff's costs of those proceedings be paid out of the deceased's estate on the indemnity basis.
Decision last updated: 19 September 2012
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