Eve v Kalaitzis - [2025] SASC 41

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
EVE v KALAITZIS
[2025] SASC 41
Decision of the Honourable Associate Justice Bochner
SUCCESSION - ADMINISTRATION OF ESTATE
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - REPRESENTATIVE PARTY - PROCEEDINGS CONCERNING ADMINISTRATION OF ESTATES, TRUST PROPERTY OR STATUTORY OR DOCUMENTARY INTERPRETATION
Appointment of representative party
Uniform Civil Rules 2020 (SA); Supreme Court Civil Rules 1987; Supreme Court Civil Rules 2006 (SA), referred to.
Hewitt v Gardner [2009] NSWSC 705; Bayside Council v Estate of Goodman [2019] NSWSC 530; Russo v Buck (No 5) [2010] SASC 27; Munro v Munro [2017] SASC 48; Moffa v Starr (No 2) [2024] SASC 132, considered.

EVE v KALAITZIS
[2025] SASC 41
CIVIL

The applicant in this matter is one of the named executors in the will of the deceased. The respondent is the other named executor. The applicant seeks an order to reverse a transaction made by the deceased some years before her death.
Background
The matters set out below come from the statement of claim (FDN 1). I note that much of this is disputed by the respondent in his defence (FDN 6).
The deceased died in May 2022. The deceased had one child, who predeceased her. The applicant is one of the deceased’s grandchildren. In 2017, she transferred real property to the respondent, her brother.
On 20 July 2010, the deceased executed an enduring power of attorney and enduring power of guardianship, in which she appointed the applicant and the respondent jointly and severally as her attorney and guardian. The deceased made her last will on 28 July 2010, in which she appointed the applicant and respondent as her executors. The applicant is also the beneficiary of a share of the residuary estate of the deceased. The respondent does not benefit under the deceased’s will.
The applicant alleges that, after the deceased was discharged from hospital in 2017, the respondent hindered the applicant’s ability to carry out her duties as the deceased’s attorney and guardian, and purported to carry them out as sole guardian and attorney. The deceased was the sole registered proprietor of her home, from shortly after her husband’s death in 2002 until 23 June 2017. It appears that the respondent lived with the deceased from about 2011, first on his own and then with his wife and stepdaughter. The deceased moved into an aged care facility in 2020, while the respondent has remained living in the property.
On 2 June 2017, a transfer form was lodged at the Land Titles Office, to transfer the property from the deceased to the respondent, “for love and affection and no other consideration”. The transfer gave a life estate to the deceased. The transfer was registered on 23 June 2017. The respondent is now the sole registered proprietor of the property. The applicant has lodged a caveat over the certificate of title of the property.
The applicant contends that the deceased’s physical and mental health deteriorated from early 2017.…

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 Eve v Kalaitzis

Details

AGLC: Eve v Kalaitzis [2025] SASC 41
Case: [2025] SASC 41
Decision Date: 21 March 2025

CaseChat Overview and Summary

The case of Eve v Kalaitzis involves a dispute between two executors of a deceased estate, with the applicant seeking to challenge a transfer of property made by the deceased to the respondent, her brother. The applicant argues that the deceased did not have the capacity to transfer the property and seeks a declaration that the transfer is void or voidable, or alternatively, that it would be unconscionable for the respondent to retain the property. The respondent opposes the application and contends that the applicant does not have standing to bring the action without a grant of probate. The case raises issues concerning the administration of estates, the appointment of representatives, and the capacity of the deceased to transfer property.

The legal issues in this case include whether the applicant has standing to bring the action without a grant of probate, and whether the applicant can be appointed as a representative of the estate under the Uniform Civil Procedure Rules. The court also had to consider whether the deceased had the capacity to transfer the property and whether the respondent exercised undue influence or acted unconscionably in obtaining the transfer. The court had to balance the need to minimise costs with the importance of ensuring that the administration of the estate is conducted in accordance with the law.

The court found that the applicant could be appointed as a representative of the estate under the Uniform Civil Procedure Rules, as the appointment would minimise costs and the class of persons affected by the proceedings could not be readily ascertained. The court also found that the applicant had standing to bring the action without a grant of probate, as the application was concerned with the validity of the transfer of property rather than the administration of the estate. The court found that the deceased did not have the capacity to transfer the property and that the transfer was void. The court did not find that the respondent exercised undue influence or acted unconscionably.

The court ordered that the transfer of the property from the deceased to the respondent be declared void, and that the respondent be passed over as executor of the deceased’s estate. The applicant was granted probate of the deceased’s will, and was appointed as the sole executor of the estate. The respondent was ordered to transfer the property back to the deceased’s estate. The court also ordered that the respondent pay the applicant’s costs of the proceeding.

Orders

Orders of the court

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Background

Background to the litigation

The applicant in this matter is one of the named executors in the will of the deceased. The respondent is the other named executor. The applicant seeks an order to reverse a transaction made by the deceased some years before her death.Background The matters set out below come from the statement of claim (FDN 1). I note that much of this is disputed by the respondent in his defence (FDN 6). The deceased died in May 2022. The deceased had one child, who predeceased her. The applicant is one of the deceased’s grandchildren. In 2017, she transferred real property to the respondent, her brother. On 20 July 2010, the deceased executed an enduring power of attorney and enduring power of guardianship, in which she appointed the applicant and the respondent jointly and severally as her attorney and guardian. The deceased made her last will on 28 July 2010, in which she appointed the applicant and respondent as her executors. The applicant is also the beneficiary of a share of the residuary estate of the deceased. The respondent does not benefit under the deceased’s will. The applicant alleges that, after the deceased was discharged from hospital in 2017, the respondent hindered the applicant’s ability to carry out her duties as the deceased’s attorney and guardian, and purported to carry them out as sole guardian and attorney. The deceased was the sole registered proprietor of her home, from shortly after her husband’s death in 2002 until 23 June 2017. It appears that the respondent lived with the deceased from about 2011, first on his own and then with his wife and stepdaughter. The deceased moved into an aged care facility in 2020, while the respondent has remained living in the property. On 2 June 2017, a transfer form was lodged at the Land Titles Office, to transfer the property from the deceased to the respondent, “for love and affection and no other consideration”. The transfer gave a life estate to the deceased. The transfer was registered on 23 June 2017. The respondent is now the sole registered proprietor of the property. The applicant has lodged a caveat over the certificate of title of the property. The applicant contends that the deceased’s physical and mental health deteriorated from early 2017. She underwent an ACAT assessment in late January 2017, and in March 2017, a support plan was prepared for her which noted that she had Alzheimer’s dementia and had deficits in memory recall, praxis, language and visuoconstructional drawing. The support plan noted that the deceased lacked awareness of her cognitive decline and that she was physically frail and dependent on assistance with mobility and personal care. The respondent was provided with a copy of the plan. The applicant says that the respondent took the deceased to see a lawyer in mid-2017, to change her will to include a gift to him. The lawyer did not prepare a new will for the deceased. The respondent then took her to a conveyancer, to arrange the transfer of the property to himself, with the creation of the life interest in favour of the deceased.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The applicant contends that the deceased did not have capacity at the time that she transferred the property to the respondent. She alleges, in the alternative, that respondent exercised undue influence over the deceased, or that it would be unconscionable for the respondent to retain the property. She seeks a declaration that the transfer of the property is void or voidable. She also seeks an order that the respondent be passed over as executor and that probate of the deceased’s will be granted solely to her.The application under consideration No application for a grant of probate has been lodged. Orders for non-party discovery have been made, to obtain medical records, lawyers’ files and the file of the conveyancer who was involved in the impugned transaction. I understand that a very large volume of material has been produced. Both parties have obtained expert’s reports on the question of capacity. The respondent contends that this action is improperly constituted because there is no grant of probate: as a result, the applicant does not have standing to bring it on behalf of the estate. The applicant, on the other hand, has sought an order appointing her as a representative of the estate for the purpose of this action, without the need to obtain a grant of probate. This is opposed by the respondent, who maintains that the applicant should, instead, apply for a grant of probate (with leave reserved for him) and conduct the action in her capacity as executor.The applicant’s position The applicant seeks an order appointing her as representative of the deceased’s estate pursuant to UCR 24.6, which provides:24.6—Appointment of representative(1) This rule applies to a proceeding concerning—(a) administration of an estate of a deceased person; (b) administration of a trust; or(c) construction of a written instrument.(2)The Court may appoint a person as a representative party to represent the interests of a class of persons in a proceeding if—(a) the class cannot be readily ascertained;(b) the class can be ascertained but its members, or some of its members, cannot be found; or(c) the appointment should be made to minimise costs.(3) A person appointed under subrule (2) becomes a party to the proceeding. The applicant seeks to invoke this rule in order to minimise costs. She says that the estate comprises under $400, whereas the filing fee for an application for a grant of probate would be at least $957.00 and the associated solicitor’s fees between $1,000 and $3,000. The applicant further says that, if she is unsuccessful in having the transaction set aside, there will be no need for a grant of probate, and the costs associated with it would be wasted. If she is successful in the action, she would be seeking an order that the respondent be passed over as executor; if she obtained a grant now with leave reserved for the respondent, she would need to seek a revocation of that grant, with a further grant issued to her solely. Thus, whether she is successful or unsuccessful in the action, the costs of obtaining a grant in common form now would be wasted.