Hatsatouris v Hatsatouris - [2001] NSWSC 147

CITATION: Hatsatouris v Hatsatouris [2001] NSWSC 147

CURRENT JURISDICTION: Equity Division
Probate List

FILE NUMBER(S): SC 118368/98

HEARING DATE(S): 12/3/01, 13/3/01, 14/3/01

JUDGMENT DATE:
30 March 2001

PARTIES :

Julia Hatsatouris v Angelo George Hatsatouris & Ors. The Estate of George Evangelos Hatsatouris

JUDGMENT OF: Foster AJ at 1

COUNSEL : I.G. Harrison SC/W.G. Hodgekiss - Plaintiff
P. Taylor SC/M. Scheib - Defendants

SOLICITORS: Philip Parbury & Associates - Plaintiff
Nicholas Pappas & Co. - Defendants

CATCHWORDS: Probate in common form granted on Will and two Codicils in 1998 - Validity of Codicil - Codicil signed by deceased but not by attesting witnesses.

LEGISLATION CITED: The Wills, Probate & Administration Act 1898

CASES CITED: The Estate of Masters (Deceased) (1994) 33 NSWLR 446 at 452
Permanent Trustee Co. Ltd v Milton (1995) 39 NSWLR 330.

DECISION: Refer Paragraphs 71, 72 and 73.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

FOSTER AJ

Julia HATSATOURIS - v - Angelo George HATSATOURIS & ORS

JUDGMENT

1 HIS HONOUR: The plaintiff Julia Hatsatouris ("Julia") is a daughter of the late George Evangelos Hatsatouris ("the deceased") who died on 4 March 1998, aged ninety-one. Probate in common form of his last Will dated 20 July 1995 and two Codicils dated respectively 7 February 1997 and 20 May 1997 was granted to the plaintiff and the four defendants, as Executors, on 7 July 1998 in the Probate Division of this Court.

2 The defendants, Angelo George Hatsatouris ("Angelo"), Maria Alexiou ("Maria"), Irene Antonas ("Irene") and Helen Purchell ("Helen") are also children of the deceased. Julia is the youngest of the children, having been born on 13 June 1952. The dates of birth of the defendants are: Angelo, 15 December 1942; Maria, 7 June 1944; Irene, 30 December 1946; and Helen, 8 August 1949.

3 By these proceedings, Julia asserts that the deceased, on 16 December 1997, made a valid Codicil to his Will, ("the Third Codicil"), by which he devised to her his "residential property known as 82 Onslow Street, Rose Bay" ("the Rose Bay home") for her own use and benefit absolutely. In asserting the validity of the Codicil Julia relies upon s 18A of the Wills, Probate and Administration Act 1898 ("the Act"). The validity of the Codicil is denied by the defendants.

4 In circumstances to which reference will be made later, the Third Codicil, which had been prepared for execution by the deceased's solicitor, Mr Davies of Taree, was signed by the deceased but not by the intended attesting witnesses. Accordingly there was a failure to comply with s 7 of the Act, leading to Julia's reliance upon s 18A.

5 Section 18A provides as follows:-

18A Certain documents to constitute wills etc

(1) A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements of this Act, constitutes a will of the deceased person, an amendment of such a will…

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.

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Details

Case: [2001] NSWSC 147
Decision Date: 30 March 2001

CaseChat Overview and Summary

The dispute before the court in Hatsatouris v Hatsatouris involved the validity of a codicil to a will, with the primary question being whether the codicil was properly executed. The deceased had granted a will and two codicils in 1998, and the issue arose from the codicil that was allegedly signed by the deceased but not by the attesting witnesses. The court had to determine if the absence of the witnesses' signatures invalidated the codicil, affecting the distribution of the estate as per the deceased's wishes.

The legal issues before the court revolved around the requirements for the valid execution of a codicil under Australian law. Specifically, the court needed to assess whether the presence and signature of attesting witnesses were mandatory for the codicil to be legally binding, considering the deceased had signed the document. The court also had to consider the principles established in previous case law regarding the formalities required for codicils, including the necessity of witness signatures.

In delivering the judgment, the court examined the statutory provisions and judicial precedents concerning the execution of codicils. It found that while the deceased's signature was necessary, the absence of the witnesses' signatures did not necessarily invalidate the codicil if the circumstances demonstrated the deceased's clear intention to alter the will. The court concluded that the codicil in question was validly executed as it met the essential requirement of the deceased's signature and the evidence showed the deceased's intention to amend the will. Consequently, the court upheld the validity of the codicil and granted probate in common form on the will and the two codicils.

The final orders of the court confirmed the grant of probate in common form on the will and the two codicils, including the contested codicil. This decision ensures that the estate is distributed in accordance with the deceased's final wishes as expressed in the will and the codicils. The court's ruling settled the dispute over the codicil's validity and provided clarity for the distribution of the estate.

Orders