Golybovitch v Soshnina

SUPREME COURT OF QUEENSLAND

CITATION:

Golybovitch v Soshnina [2009] QSC 437

PARTIES:

GALINA GOLYBOVITCH
(applicant)
v
ALLA SOSHNINA
(respondent)

FILE NO:

BS 12905 of 2009

DIVISION

Trial

PROCEEDING:

Applications

DELIVERED ON:

1 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

1 December 2009

JUDGE:

Fryberg J

ORDERS:

1.   Order that the caveat filed on 21 August 2009 be set aside.

2.   Order that the respondent to pay the applicant’s costs, to be assessed.

CATCHWORDS:

Succession – Wills, probate and administration – Probate and letters of administration – Practice – Queensland – Other cases – Identity of executor – Varied English renditions of executor’s name does not invalidate will without contrary evidence

Succession – Wills, probate and administration – The making of a will – Testamentary instruments – Knowledge and approval of contents – Generally – Misapprehension of factual circumstances is not an invalidating factor

Uniform Civil Procedure Rules 1999 (Qld), r 626(2)

Banks v Goodfellow (1870) LR 5 QB 549, cited

COUNSEL:

D R Murphy SC for the applicant
A Abaza for the respondent

SOLICITORS:

Compass Legal Solutions for the applicant
Andrew P. Abaza for the respondent

HIS HONOUR:  The applicant has sought probate of the will of Iraide Faivis who died on 11th of January this year.  The respondent has a caveat against the grant of probate to the applicant for that will.  The applicant now seeks to have the caveat removed and to have a grant of probate.

Rule 626(2) provides that the court may set aside a caveat if it considers that the evidence does not show two things.  It is conceded that the evidence does show the first of those two things, that is that the caveator has an interest.  The issue is whether or not the court considers that the evidence does not raise doubt as to whether the grant ought to be made.

To raise the doubt the caveator has referred to several things.  The first is a variety in the spelling in English of the applicant executor's name.  By way of background I should say that the testator, the beneficiary, the applicant and the caveator, that is the applicant executor and the caveator, are all of Russian descent.

The executor's name has been rendered into English in one form of spelling in the will and in the affidavits in support but with a different English spelling in another affidavit filed by her.  On behalf of the respondent caveator, Mr Abaza, submits that this raises the doubt about whether the applicant is the person named in the will.  I do not accept that argument.

The fact that there are different renditions in English of the spelling of a Cyrillic name does not cause me to have any doubt, particularly when there is no evidence of any other person known to the testatrix with a name of any similarity to that of the applicant.

The second major point arises from the content of the will.  The testatrix was the beneficiary's aunt and left her entire…