Hatsatouris v Hatsatouris

CITATION:	HATSATOURIS & ORS. v. HATSATOURIS [2001] NSWCA 408
FILE NUMBER(S):	CA 40284/01
HEARING DATE(S):	5 November 2001
JUDGMENT DATE:	30 November 2001
PARTIES :	Angelo George Hatsatouris, Maria Alexiou, Irene Antonas, Helen Purcell (Appellants) Julia Hatsatouris (Respondent)
JUDGMENT OF:	Priestley JA at 1; Powell JA at 5; Stein JA at 66

LOWER COURT JURISDICTION :	Equity Division - Probate List
LOWER COURT FILE NUMBER(S) :	118368/98
LOWER COURT JUDICIAL OFFICER :	Foster AJ

COUNSEL:	P.W. Taylor SC and Ms. K.E. Burke (Appellants) I.G. Harrison SC and W.G. Hodgekiss (Respondent)
SOLICITORS:	Nicholas G. Papas & Co. (Appellants) Phillip Parbury & Associates (Respondent)
CATCHWORDS:	Wills Probate and Administration - Testamentary instruments - Informal document intended to operate as a codicil to existing will - Time at which intention to be determined - Effect of subsequent change in intention D
LEGISLATION CITED:	Wills Probate and Administration Act 1898 ss. 17,18A
CASES CITED:	In the Goods of Beetson (1848) 6 NC 13 In the Estate of Masters (deceased); Hill v. Plummer; Plummer v. Hill (1994) 33 NSWLR 446 Permanent Trustee Co. Limited v. Milton (1995) 39 NSWLR 330 The Public Trustee v. Commins; The Estate of Gwendolyn Myrtle Wray, Powell J 16 June 1992 (unreported) Thorne v. Rooke (1841) 2 Curt. 798; 163 ER 589 Estate of Wilson (1991) 24 NSWLR 334
DECISION:	Appeal dismissed

CA 40284/01
ED 11836/98
PRIESTLEY JA
POWELL JA
STEIN JA


30 November 2001

HATSATOURIS & ORS v HATSATOURIS

Judgment

1 PRIESTLEY JA: I have had the benefit of reading in draft Powell JA’s reasons for judgment. I agree with his reasons for interpreting s 18A of the Wills Probate and Administration Act 1898 (as amended) in the way that he does relevantly to the present case; that is, to the effect that among the situations to which s 18A(1) applies is the situation where a subsequently deceased person intended that a particular document, in existence at the time of the manifestation of that person’s intention, should, without more on that person’s part, operate as that person’s will.

2 In terms of this case, this means that the condition for application of s 18A(1) to the document signed by the now deceased Mr G.E. Hatsatouris on 16 December 1997 in the circumstances narrated by Powell JA, is the satisfaction of the court that when the deceased signed the document he intended it to constitute an amendment of his then existing will.

3 On the indisputable facts in this case the deceased had exactly the intention of which s 18A(1) speaks at the time he signed the document. Foster AJ was satisfied that that intention then existed and I do not think that satisfaction can be challenged in the appeal. It follows that Foster AJ’s decision was correct.

4 I agree with Powell JA that the appeal should be dismissed with costs.

The Appellants, to whom, together with the Respondent, Probate in common form of the Will dated 20 July 1995 and two Codicils dated respectively 7 February 1997…