IMO the Estate of John Panagopoulos
[2018] VSC 134
•12 April 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S PRB 2016 18901
IN THE MATTER of the Estate of JOHN PANAGOPOULOS (also known as IOANNIS PANAGOPOULOS) deceased
APPLICATION BY:
KONSTANTINA PANAGOPOULOS Plaintiff
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 March 2018 |
DATE OF JUDGMENT: | 12 April 2018 |
CASE MAY BE CITED AS: | IMO the Estate of John Panagopoulos |
MEDIUM NEUTRAL CITATION: | [2018] VSC 134 |
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PROBATE - Application for a grant of probate of will – Conflicting evidence of the execution of will - Whether will was duly executed - Wills Act 1997, s 7 – Administration and Probate Act 1958, s 6.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Rizzi | MNG Lawyers Pty Ltd |
HER HONOUR:
The plaintiff, Mrs Konstantina Panagopoulos, is an 80 year old widow. She seeks a grant of probate in respect of the will of her late husband, John Panagopoulos (‘the deceased’).[1] Mrs Panagopoulos is the executor named in the Will of the deceased dated 31 August 2011 (‘the Will’).[2]
[1]By way of originating motion filed 11 November 2016.
[2]Exhibit ‘E’ of the affidavit of Konstantina Panagopoulos sworn 17 October 2016 (‘the Panagopoulos affidavit’).
The Registrar of Probates declined to grant Mrs Panagopoulos’ application for probate. If her evidence is accepted, the Will has been executed irregularly. Mrs Panagopoulos’ evidence is that the deceased executed the Will on the kitchen bench of their home and that she was the only other person present at the time.[3] Mrs Panagopoulos deposed that her granddaughter, Caterina Ioannou, later hand delivered the ‘signed and unwitnessed’ Will to the solicitors who had prepared it, namely Venizelakos Lawyers. Ms Ioannou has sworn an affidavit deposing that she delivered documents to the offices of Venizelakos Lawyers on 16 August 2011.[4]
[3]Panagopoulos affidavit [9(g)].
[4]Affidavit of Caterina Ioannou sworn 6 March 2017 (‘the Ioannou affidavit’) [4], exhibit ‘CI-1’.
On the other hand, the solicitor who drafted the Will, Mr John Venizelakos, has provided evidence to the effect that the Will was executed by the deceased on 31 August 2011 in the presence of two witnesses. [5]
[5]Affidavit of John Venizelakos sworn on 24 February 2017 (‘The first Venizelakos affidavit’) [3].
The two questions for determination are as follows.
1. Did the deceased execute the Will at his home on the kitchen bench?
2. If not, is the Will executed in accordance with s 7 of the Wills Act 1997?
If the Will has been executed in accordance with s 7 of the Wills Act 1997, then the circumstances are such that probate of the Will should be granted.
Turning now to the first issue.
Did the deceased execute the Will at his home on the kitchen bench?
The evidence that the execution of the Will by the deceased was witnessed is contained in the affidavits of John Venizelakos, solicitor, sworn 24 February 2017 (‘the first Venizelakos affidavit’) and 6 October 2017 (‘the second Venizelakos affidavit’), and Maryanne Hatzis, secretary, sworn on 1 March 2017.[6] Mr Venizelakos deposes that he witnessed the deceased execute the Will. Ms Hatzis deposes that she witnessed many wills, and she does not recollect witnessing this will, but does recognise her signature.
[6]The first Venizelakos affidavit [3] and affidavit of Marianne Hatzis sworn 1 March 2017.
In addition, there is a further affidavit from Nicholas Venizelakos, solicitor, sworn on 24 March 2017, confirming that Mrs Panagopoulos and the deceased attended the offices of Venizelakos Lawyers on 31 August 2011 for the purpose of executing their respective wills that day and that he met with them to discuss Greek law. Mr John Venizelakos deposes that he was also present during that meeting.
The references below to Mr Venizelakos are references to Mr John Venizelakos (not Nicholas).
Mr Venizelakos provides evidence to corroborate a meeting with Mrs Panagopoulos and the deceased for the purpose of executing the Will on 31 August 2011. The Will is dated that day. The following corroborating evidence is provided by Mr Venizelakos.
(a) Evidence of the first consultation with Mrs Panagopoulos and the deceased on 29 July 2011 in the form of contemporaneous file notes and a copy of a document Mr Venizelakos says was given to him at the conference.[7]
[7]Exhibit ‘JV-3’ to the second Venizelakos affidavit.
(b) A copy of a handwritten document that the deceased and Mrs Panagopoulos provided at the conference on 29 July 2011. At the top of one of the documents is Mr Venizelakos’ note that ‘Clt’s [clients] brought this to conference on 29/7/11’.[8]
[8]Ibid exhibit ‘JV-4’.
(c) A file note that Mr Venizelakos made on 23 August 2011 which indicates he had read and reviewed a trust deed and documents provided.[9]
[9]Exhibit ‘JV-6’ to the second Venizelakos affidavit.
(d) A file note that Mr Venizelakos made concerning a telephone conversation that he had with the deceased on 23 August 2011.[10] The note ends with the following: ‘Just make will as discussed + they’ll attend next Wednesday.’ The following Wednesday being 31 August 2011, the date of the Will.
[10]Ibid, Exhibit ‘JV-7’.
(e) Screenshots of Mr Venizelakos’ calendar/diary for the week of 29 August – 4 September 2011 and of two entries on 31 August 2011.[11] The morning entry (7.30am–8.00am) states ‘prepare Panagopoulos Wills for appointment’. The afternoon entry (2.00pm-2.30pm) states ‘Wills Mr and Mrs Panagopoulos [phone number]’. Mr Venizelakos deposes the afternoon entry was the appointment with Mrs Panagopoulos and the deceased.
[11]Exhibit ‘JV-2’ to the first Venizelakos affidavit.
(f) A contemporaneous file note of Mr Venizelakos’ conference with Mrs Panagopoulos and the deceased on 31 August 2011.[12]
[12]Exhibit ‘JV-8’ to the second Venizelakos affidavit.
(g) Draft wills had been prepared by Mr Venizelakos in anticipation of his conference with Mrs Panagopoulos and the deceased.[13] At the top of the draft will of the deceased is written ‘31/8/11 – discussed with Clt [client].’ There is also the word ‘DRAFT’ stamped in red at the top of the document. Mr Venizelakos deposes that he amended the draft wills in the presence of the deceased and the plaintiff prior to their execution.[14]
(h) A copy of Mrs Panagopoulos’ own will, which Mr Venizelakos deposes was executed in his presence on 31 August 2011 and bears that date.[15]
(i) An invoice from Venizelakos Lawyers addressed to the deceased and Mrs Panagopoulos dated 31 August 2011 and stamped ‘PAID’. The description of professional fees includes ‘preparing Wills; attending to execution of same’.[16] [underline added]
[13]Ibid.
[14]Ibid [20].
[15]Exhibit ‘JV-10’ to the second Venizelakos affidavit.
[16]Exhibit ‘JV-11’ to the second Venizelakos affidavit.
I accept the evidence above. It is credible, consistent and corroborated. I observe that both John and Nicholas Venizelakos, and Ms Hatzis, are independent witnesses that have no interest in the outcome of this proceeding. I prefer their evidence to the extent there is any conflict with the evidence of Mrs Panagopoulos. Further, Mrs Panagopoulos has not challenged any of their evidence. Indeed, she relies on the Will and seeks probate of it.
Turning now to Mrs Panagopoulos’ evidence. It is confused. This is perhaps unsurprising given the passage of time and the circumstances, now discussed.
(a) Mrs Panagopoulos is not literate in English. She says that Mr Venizelakos handed her and the deceased their respective wills in an envelope and they were written in English. Mrs Panagopoulos says there was no discussion about the contents and no translation provided. She says the envelope contained a letter written in Greek which ‘said something about signing and returning the wills to the solicitor’.[17] She deposes that neither her nor the deceased read the wills as they could not read English.
[17]The Panagopoulos affidavit [9(d)].
(b) Without being literate in English, and without a translator or interpreter present, Mrs Panagopoulos could not identify what documents were being signed by her and the deceased.
(c) The letter written in Greek that Mrs Panagopoulos recalls is not in evidence. Mr Venizelakos has deposed that there is no such letter. The description of the letter given by Mrs Panagopoulos is quite vague.
(d) Mrs Panagopoulos’ recollection of the deceased executing the Will on the kitchen bench of their home is vague. There is no reference at all to the date or even the time of day. Mrs Panagopoulos deposes that her granddaughter, Ms Ioannou, ‘later’ hand delivered the signed and unwitnessed wills and accompanying letter to the offices of Mr Venizelakos.
(e) Mrs Panagopoulos’ evidence that she did not see the Will again after she had entrusted it to Ms Ioannou to deliver to the offices of Mr Venizelakos is inconsistent with the evidence of Mr Venizelakos, which is corroborated as discussed above, that she attended his office on 31 August 2011. Mrs Panagopoulos’ evidence is also inconsistent with her exhibiting the original document. That is particularly so in circumstances where Mr Venizelakos deposes that he did not retain the original will, and if he had, and it left his possession, there would be a record of that occurring. Mr Venizelakos deposes that after the wills of the deceased and Mrs Panagopoulos were executed, they were photocopied and bound. The deceased and Mrs Panagopoulos left his office with the Will.[18] Mr Venizelakos retained a copy. Mrs Panagopoulos exhibits the original bound will to her affidavit. This is consistent with her having possession of it.
(f) Mrs Panagopoulos relies on the Will. It is dated 31 August 2011. This is inconsistent with it being executed it on or before 16 August 2011 (the date Ms Ioannou said she delivered the envelope from her grandmother to Venizelakos Lawyers). Further, as discussed above, Mr Venizelakos’ evidence is that he did not prepare the Will until after he received instructions to do that from the deceased on 23 August 2011.
[18]The first Venizelakos affidavit [8(g)].
Ms Ioannou, in her affidavit, does not evidence the Will being executed on the deceased’s kitchen bench for the following reasons.
(a) Ms Ioannou deposes that she was given a sealed envelope by Mrs Panagopoulos to deliver to her solicitor. Ms Ioannou deposes that she did not open the envelope to see what was inside. Her general understanding from the conversation with her grandmother was that the documents contained therein were the wills of her grandmother and the deceased. During her oral evidence, Ms Ioannou indicated that Mrs Panagopoulos did not specifically tell her that the wills were contained in the envelope. Rather, Ms Ioannou drew this inference because she was aware at the time that her grandparents were preparing their wills.[19]
(b) Ms Ioannou was aware that Venizelakos Lawyers were her grandparents’ solicitors. She believes she would have looked up their address online. She recalls delivering the documents to Venizelakos Lawyers. She walked up the steps and the main door to the office was locked. She deposes it was a frosted glass door and she could hear a very loud conversation inside. The door being locked, she slid the envelope under the door. On being shown a photograph of the wooden door of Venizelakos Lawyers during her oral examination, Ms Ioannou indicated that the frosted glass may have been the front door to the building rather than to the offices of Venizelakos Lawyers and that she may be getting confused. She recalls seeing some signage. It may have been signage to the building.[20] Ms Ioannou could not recall if there was any Greek writing on the door to the offices of Venizelakos Lawyers. She is literate in Greek.
(c) Upon being shown a photograph of the wooden door at the entry of the offices of Venizelakos Lawyers with a mail slot in it, Ms Ioannou was unsure as to whether she had slid the envelope under the door or not. She thought logic may have prevailed and she would have used the slot.[21]
[19]Transcript of proceedings, 21 (‘Transcript’).
[20]Ibid 20.
[21]Transcript, 22.
I accept Ms Ioannou’s evidence that she delivered something to the offices of Venizelakos Lawyers on 16 August 2011. She exhibits an email to her mother confirming that she has ‘dropped off the docs’[22]. However, I do not accept that it was the Will. The inference can be drawn that it was other documents. In the email to her mother, Ms Ioannou does not refer to dropping off the Wills but rather ‘the docs’.[23] Venizelakos Lawyers was giving the deceased and Mrs Panagopoulos advice about a trust deed. Mr Venizelakos deposes that he was waiting for the deceased to provide him with a copy of the trust deed after meeting with him on 29 July 2011. Mr Venizelakos deposes that the trust deed was brought to his office ‘some time in August 2011 but it was no later than 23rd of August 2011’.[24] Mr Venizelakos deposes that the trust deed comprises of 24 pages of A4 size paper.[25] Ms Ioannou’s evidence about the size of the envelope is vague: ‘it was like a large – an A4 envelope’.[26] Given how vague Ms Ioannou’s evidence is on this point, it would be unsafe to rely upon it to conclude whether the envelope delivered was large enough to include the trust deed. The document delivered by Ms Ioannou could have been the trust deed – or some other document.
[22]The Ioannou affidavit [4], exhibit ‘CI-1’.
[23]Exhibit ‘CI-1’ to the Ioannou affidavit.
[24]Second Venizelakos affidavit [12].
[25]Affidavit of John Venizelakos sworn on 28 March 2018. (It is assumed the jurat stating 2017 is a typographical error given the affidavit was requested at the conclusion of the hearing.)
[26]Transcript, 22.
Turning now to the next issue.
Is the Will of the deceased executed in accordance with s 7 of the Wills Act 1997?
Section 7 of the Wills Act provides as follows:
How should a will be executed?
(1) A will is not valid unless—
(a)it is in writing, and signed by the testator or by some other person, in the presence of, and at the direction of the testator; and
(b)the signature is made with the testator's intention of executing a will, whether or not the signature appears at the foot of the will; and
(c)the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d)at least two of the witnesses attest and sign the will in the presence of the testator but not necessarily in the presence of each other.
(2)A statement in a will that the will has been executed in accordance with this section is not necessary for the will to be valid.
(3)Where a testator purports to make an appointment by his or her will in the exercise of a power of appointment by will, the appointment is not valid unless the will is executed in accordance with this section.
(4)Where a power is conferred on a person to make an appointment by a will that is to be executed in some particular manner or with some particular solemnity, the person may exercise the power by a will that is executed in accordance with this section, but is not executed in that manner or with that solemnity.
I find that the Will is executed in accordance with s 7 of the Wills Act 1997 for the following reasons.
(a) It is signed by the deceased. Mr Venizelakos’ evidence is that the deceased signed the Will.
(b) The signature was made with the deceased’s intention of executing a will. Importantly, Mr Venizelakos, who is fluent in Greek, and has a Modern Greek tertiary language qualification, explained the Will to the deceased prior to signature. Further, he received instructions from the deceased, and then amended the draft will and finalised it.
(c) The deceased signed the Will in the presence of Mr Venizelakos and Ms Hatzis.
(d) Mr Venizelakos and Ms Hatzis signed the Will in the presence of the deceased.
There is no evidence to suggest that the deceased lacked testamentary capacity at the time that he made the Will.
There is evidence of a handwritten document, perhaps an informal will, however this document predates the Will. The Will revokes all previous wills and has been executed in accordance with s 7 of the Wills Act. Accordingly, it is not necessary to deal with the issue of whether there is an informal will that predates it.
There is no evidence of any suspicious circumstances concerning execution of the Will.
Notice of this proceeding was given to the deceased’s children and none sought to participate in the proceeding as interested parties.[27]
[27]Affidavit of Stacey Kanellakos sworn 5 July 2017.
Section 6 of the Administration and Probate Act 1958 confirms this Court has jurisdiction to grant probate of a will. It provides:
Jurisdiction of Court to grant probate etc.
The Court shall have jurisdiction to grant probate of the will or administration of the estate of any deceased person leaving property whether real or personal within Victoria.
Section 6 is enlivened because the deceased left property within Victoria.[28]
[28]Inventory of assets and liabilities, being exhibit ‘F’ to the Panagopoulos affidavit.
Conclusion
Given the findings above, it is appropriate to make the following order: subject to the requirements of the Registrar of Probates, probate of the Will of the late John Panagopoulos (also known as Ioannis Panagopoulos) dated 31 August 2011 be granted to Konstantina Panagopoulos.
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