IN THE ESTATE OF CHALACAS (DECEASED) - [2024] SASC 144

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
IN THE ESTATE OF CHALACAS (DECEASED)
[2024] SASC 144
Judgment of the Honourable Justice Bampton
10 December 2024
SUCCESSION - MAKING OF A WILL - REVOCATION - METHODS OF REVOCATION - OTHER WILLS, CODICILS OR WRITINGS
The deceased was born in Greece and died there in 2020, having lived in Australia between 1954 and 1983. He had made an Australian will in 1974 and a subsequent Greek will in 2010.
Referral under the Administration and Probate Act 1919 (SA), s 8 – whether the deceased intended the Greek will to revoke the Australian will.
Held:
1. The deceased did not intend the Greek will to revoke the Australian will.
Administration and Probate Act 1919 (SA) s 8; Family Law Act 1975 (Cth); Wills Act 1936 (SA) s 20A, referred to.
In the Estate of Crawford (Deceased) (2004) 90 SASR 119; In the Estate of Hughes-Roberts (Deceased) [2018] SASC 133, applied.

IN THE ESTATE OF CHALACAS (DECEASED)
[2024] SASC 144
Testamentary Causes Jurisdiction

BAMPTON J: Emmieual Chalacas (“Emmieual”)[1] died on 12 July 2020 aged 92 years at Palechori Plomari, Mytilini, Lesvos, Greece, where he had lived for the preceding 38 years.
[1] Also referred to in the documents as ‘Emmieuel’, ‘Emmaneual’, ‘Emmanoiul’ and ‘Emmanouyl’.
Emmieual was born in Greece and married Diamanto Chalacas (“Diamanto”)[2] in 1954. He emigrated from Lesvos, Greece to Australia in 1962, with Diamanto and their three children following him in 1964. Emmieual and Diamanto visited Lesvos in 1983 and Emmieual decided to remain there to live, while Diamanto returned to Australia. Emmieual never returned to Australia and Diamanto died in South Australia on 23 July 2013. Emmieual’s place of domicile was Greece.
[2] Also referred to in the documents as ‘Diamanti’, ‘Diminto’ and ‘Adamantia’, with her surname sometimes appearing as ‘Chalaca’ or ‘Halaka’.
Emmieual is survived by three children; namely, Maria Kostopoulos (“Maria”), John Chalacas (“John”) and Nicholas Chalacas (“Nicholas”). Maria and John seek a grant of letters of administration with the will annexed in respect of a will made by Emmieual on 7 June 1974 at Loxton, South Australia (“the Australian will”). To that end, Maria and John seek a declaration that a will made by Emmieual on 21 December 2010 at Mytilini, Lesvos, Greece (“the Greek will”) does not revoke the Australian will. Maria and John are in dispute with Nicholas, who argues that the Greek will does revoke the Australian will. The matter has been referred to me under s 8 of the Administration and Probate Act 1919 (SA) (“the Act”) to determine whether Emmieual intended the Greek will to revoke the Australian will.
The parties are agreed that regardless of whether the Greek will is found to have revoked the Australian will, Maria, John and Nicholas will share equally in Emmieual’s estate. It appears that the true dispute arises from which of them has control over the administration of Emmieual’s estate; Nicholas complains that Maria and John are excluding him from the process despite the repeated and clear expression of his wish to participate.
Background
Emmieual and Diamanto prepared wills in 1974 when they were living in Loxton, South Australia (“the Australian wills”). Maria deposes in an affidavit affirmed 9 March 2023 (FDN 13) that when her parents decided to travel to Greece in 1983, Emmieual wanted to ensure the safe keeping of the Australian wills. She deposes that he gave her the original wills in a yellow envelope, along with the certificates of title for properties he owned jointly with Diamanto at 15 and 17A Victoria Street, Mile End (“the Mile End properties”) and asked her to place them in a safety deposit box at the Commonwealth Bank in Hindley Street, Adelaide.
Maria further deposes that upon Diamanto’s return to Australia from Greece in or about 1984, Diamanto asked her to arrange for the Australian wills to be deposited in a safety deposit box at the State Bank at Henley Beach Road, Torrensville as the Commonwealth Bank branch in Hindley Street was closing down.
Maria deposes in FDN 13 that Emmieual expressed to her multiple times his intention to reside in Greece indefinitely and his wish to be buried there.
Nicholas deposes in an affidavit affirmed on 21 August 2024 (FDN 28) that Emmieual and Diamanto separated prior to the latter’s return to Australia and effected a property settlement in 1988. Nicholas asserts annexure NC11 to FDN 28, a document written in Greek signed “Em Chalacas”, is evidence of Emmieual’s acknowledgment of the separation and his “commencement of divorce procedures in Greece, and the alteration of their real property interests post-divorce”. NC11 is a copy of Emmieual’s letter to the Commonwealth Department of Veterans’ Affairs dated 14 February 1988 concerning his Veterans’ Affairs pension. NC11 includes an English translation of the letter wherein Emmieual states:
I and my wife left Australia on the 25^th of March 1982 with the intention to stay in Greece for 5 years. However, 5 months later on the 15/8/82 my wife left me and returned to Australia without telling so or asking for my permission.
Perhaps you are aware that she gets her pension because she has to look after me. The fact that I was not aware that I could complain and terminate her pension, she continued to receive it for the past four years and 5 months. When I did get in touch with the Embassy and spoke about this matter the Social Worker told me that all the money that my wife has taken all these years without offering me anything ought to be returned to me legally because I was forced to pay from my own money another lady to look after me. This was necessary because I am an invalid to the degree of 82% and now I can not see at all. What I would like from you is to get in touch and inform her that I have started the legal procedures for a devorce (sic) and that she will have to bear the consequences because she has left me.
Could you please inform her also that after the grant of the devorce (sic) the property will be shared in half. The houses at Nos 15 and 17 will taken care by a court order, according to the Law procedures, and they will be sold for the profits to be shared equally. Also from all the rent deriving from the houses all these years, of which I have received only $1000.00, I am entitled to get whatever I haven’t received after deviding (sic) the sum in half…
By letter dated 2 June 1988, an officer of the Department of Veterans’ Affairs informed Emmieual it was not within the department’s jurisdiction to act on his behalf to inform Diamanto of his intention to start divorce proceedings.
On 10 June 1988 Emmieual wrote to the Department of Veterans’ Affairs in an attempt to reduce Diamanto’s spousal entitlements. An officer of the Department informed Emmieual by letter dated 2 September 1988 that while he and Diamanto were still married, Diamanto was entitled to a service pension.
Nicholas deposes that over the next year, a property settlement was reached between his parents pursuant to which Diamanto would receive the Mile End properties and keep the income from them.
Nicholas further deposes in FDN 28 that he recalls speaking with his father by telephone about the terms of the property settlement, but he cannot recall the date of the conversation. I infer the telephone conversation took place sometime between late 1988 and late 1989 when Diamanto changed her will and commenced but did not conclude Family Court proceedings as discussed below. Nicholas says his involvement in speaking about the property settlement to his father:
… was not only to benefit [his] Mother but also to account for the years [he] worked on the family farm in Loxton without pay and the promise that [he] would receive a share of the real property. Unfortunately, the promise and representations of [his] Father that [he] would receive a share of the Australian Property was never fulfilled, but to advantage [his] Mother with her new life, [he] did not press for it.
During the hearing, I asked Nicholas’ counsel about Nicholas’ conversations with his father. The following exchange then occurred:
MR BEHAR:The conversations my client deposes he's had with his father is in connection with the property settlement.
HER HONOUR:   Yes.
MR BEHAR:After that he's had a falling out with his father and has not communicated with him for a number of years.
HER HONOUR:   And when do you say the property settlement was?
MR BEHAR:1989, or thereabouts.
HER HONOUR:   Whereas his siblings seem to have had some relationship with their father?
MR BEHAR:That is correct, that is correct.
HER HONOUR:   So he was really protective of his mother it would seem.
MR BEHAR:Yes. The proving applicants have already provided written submissions prior to the respondent even being joined where on their own submissions pursuant to the Greek civil law the Greek Will that has been probated is the only evidence of the intention of the deceased. What there appears to be is a sudden attempt to polish up the position that existed when those submissions were initially made to the Probate Registry and that has been then adduced by way of the affidavit evidence my learned friend has taken me to, deposing to the various conversations with the deceased post death.
Diamanto made a new will on 1 September 1989 stipulating at cl 8:
I DIRECT that no part of my estate pass to my husband EMMANUEAL CHALACAS due to his express intention and desire that we live separately and apart and due to the payment and division of assets between my husband EMMANUEAL CHALACAS and I during our lifetime and due to the fact that I believe that my husband EMMANUEAL CHALACAS has the financial resources to care for himself.
It appears that on or about 29 September 1989, Diamanto commenced but did not continue proceedings in the Family Court of Australia. A copy of what appears to be a list of documents filed in the Family Court action no 5828 annexed to FDN 28 records:
1.Property                   28/9/89
2.Aff- D. Chalacas (w)        "
3.Undertaking to file M/C    "
Maria deposes in FDN 13 that in 1989 or 1990 she discussed with her father that Diamanto had made a new will in 1989.
Nicholas deposes that Emmieual commenced matrimonial proceedings in Greece in October 1991. Nicholas asserts that the proceedings commenced by Emmieual were served on Diamanto in July 1997 and that the marriage was lawfully dissolved by an order made on 23 January 1998 (“the divorce order”), which order was announced in open court on 30 January 1998. An affidavit of Dennis Dellas made on 11 October 2024 (FDN 32) exhibits a translation of the divorce order made by the full bench of the Court of First Instance of Mytilini, Greece. The translation records that the Court of First Instance was satisfied that a certified copy of the divorce application was legally and duly served on Diamanto for the purposes of her attending at the hearing of the divorce application and that she did not appear. The divorce order does not detail the date or manner of service of the divorce application.
Also exhibited to FDN 32 is a translated certificate from the Secretary of the Court of First Instance of Mytilini dated 21 April 2023 confirming that the divorce order was never challenged. Nicholas further deposes that Emmieual took steps to dissolve his marriage on a spiritual level in the Greek Orthodox Church and obtained a letter certifying the dissolution on 23 February 2000, a translation of which is exhibited to FDN 32.
FDN 32 also annexes a translated communication from a Mr Merkouris to Diamanto concerning the divorce order. The letter from Mr Merkouris, which is undated, has no official letterhead and does not detail who Mr Merkouris is, includes the following:
A divorce order has been issued and within 240 days after receiving notification of the decision from your husband’s solicitor you will be considered as being divorced.
Nicholas does not explain how this document came into his possession.
The evidence before me establishes that Emmieual and Diamanto were estranged and lived separately for 38 years, and that Diamanto wrote a new will excluding Emmieual as beneficiary. However, there is no evidence before this Court establishing that Diamanto was notified of the divorce order made by the Court of First Instance of Mytilini, Greece and there is no evidence that the divorce order was recognised as valid pursuant to s 104 of the Family Law Act 1975 (Cth). I note Nicholas contends in FDN 28 that Maria and John “were aware of [the divorce order] by virtue of one, either or both of them taking [Diamanto] to the Greek Consulate in Adelaide to deal with the same”. Further there is no official record of the property settlement.
Maria and John point to a Greek Certificate of Next of Kin for Emmieual dated 11 February 2022, an English translation of which is exhibited to the affidavit of Vasiliki Hronopoulos affirmed 2 October 2024 (FDN 30), which refers to Diamanto as Emmieual’s wife. Nicholas submits that the certificate is “simply incorrect”. I note that FDN 29, another affidavit of Vasiliki Hronopoulos affirmed 2 October 2024, exhibits a Greek Certificate of Next of Kin for Diamanto, which similarly records Emmieual as her spouse at the date of her death.
I also note that an affidavit of Vasiliki Hronopoulos affirmed 17 March 2022 (FDN 7) exhibits a translation of a death certificate, which records Emmieual as a “widower” and names Diamanto under the heading “Partner’s Details”. Nicholas in FDN 28 also disputes the accuracy of this document.
Nicholas has previously asserted that his parents were divorced in separate proceedings (CIV-20-005272), and Judge Dart (as he then was) found that “there is no evidence that the parents ever divorced”.[3] Judge Dart noted Diamanto’s death certificate recorded her as still being married to Emmieual and that a document signed by the Greek Consul stated, according to Greek records, that Diamanto and Emmieual were still married at the time of her death. Judge Dart stated that the property settlement asserted by Nicholas would have the effect of the Mile End properties (held jointly by Diamanto and Emmieual) passing to Diamanto and forming part of her estate. However, his Honour found that there was no evidence of a property settlement and that upon the death of Diamanto in 2013, Emmieual became the sole registered proprietor of the Mile End properties.
[3] Chalacas v Kostopoulos & Ors, Reasons for decision of Judge Dart a Master of the Supreme Court, 15 December 2021.
The evidence before me does not permit me to make a finding about the divorce order and property settlement relied on by Nicholas.
The Australian will
The Australian will appoints Diamanto and Kevin David Hodge as executors and trustees. An affidavit of due execution made by Mr Hodge on 22 February 2021 has been filed (FDN 6) in respect of the Australian will however he died on 2 February 2022, having survived Emmieual but without having proved the Australian will.
The Australian will provides that all Emmieual’s freehold and leasehold land be held on trust until his youngest surviving child attains 18 years for Diamanto’s use and enjoyment and after her death, his trustees to stand possessed of the same for such of his children who survive him.
Clause 6 of the Australian will provides that Diamanto is the sole residuary legatee with no substituted beneficiary. As such, there is a partial intestacy with respect to the residuary estate which comprises money held in bank accounts.
Maria and John seek orders that letters of administration with the will annexed be granted to them in respect of the Australian will as two of the specific devisees of the real property held by Emmieual as at the date of death.
At the date of Emmieual’s death, he had assets in both Greece and Australia. His Australian assets included the following:
(a)The property at 15 Victoria Street Mile End 5031. Certificate of Title Volume 5497 Folio 182 with a Valuer-General’s Valuation of $720,000.00.
(b)The property at 17A Victoria Street Mile End 5031. Certificate of Title Volume 5554 Folio 417 with a Valuer-General’s Valuation of $550,000.00.
(c)Westpac Bank Account BSB 035-000 Account No. 247054 in the sum of $1,015.35.
(d)Westpac Bank Account held in trust for deceased BSB 735-212 Account No. 638724 in the sum of $21,445.37.
As the Mile End properties referred to in (a) and (b) above were owned by Emmieual and Diamanto as joint tenants, given that Diamanto predeceased Emmieual, under the right of survivorship the interest in the properties vested wholly in Emmieual upon Diamanto’s death.
If the Australian will is not revoked, the law of domicile applies to the intestate estate. Christina Manolaki, a solicitor specialising in probate law who has practised in Greece for 22 years, deposes as to intestacy laws in Greece in an affidavit affirmed on 24 November 2023 (FDN 19). She states that if a deceased dies without a will, his wife having predeceased him and three children surviving him, the Greek Civil Code operates to divide the estate equally between the children. Accordingly, Maria, John and Nicholas would receive equal shares in Emmieual’s intestate estate.
The Greek will
The affidavit of Dennis Dellas affirmed on 31 August 2022 (FDN 12) exhibits a translation of the Greek will. The Greek will deals with all of the assets owned by Emmieual in Greece as at the date the will was made, mainly several olive groves comprising many hundreds of trees and agricultural land on the island of Lesvos, Greece, as well as his house and other properties. It specifically and carefully details each and every asset owned by Emmieual in Greece at the time of its preparation. It identifies specific olive groves the subject of gifts by reference to the site, district and municipality, as well as the number of trees comprising the grove and its borders, including the names of roads or owners of neighbouring properties.
The Greek will does not mention any Australian asset and includes a clause in the following terms (“the revocation clause”):
I annul and revoke every previous Will made by me and I wish for this Will to be effective in its entirety.
Nicholas submits that the Greek will omitted certain of Emmieual’s assets in Greece including personal possessions such as war medals, household effects and income from Emmieual’s olive groves and leases held in an account in the National Bank of Greece. He submits that the omissions were likely deliberate and refers to the following statement at the conclusion of the Greek will:
I, the Notary Public asked [Emmieual] if he wished to include anything else or bequeath anything to any Charitable Institution or to the National Naval Force to which he replied negative.
Nicholas further submits that Emmieual likely deliberately omitted certain assets (including Australian assets) in the knowledge that the Greek Civil Code would operate to achieve equal distribution of any intestate estate between Maria, John and Nicholas.
Ms Manolaki deposes in an affidavit affirmed on 6 March 2023 (the original and translated copies of which are exhibited to the affidavit of Vasiliki Hronopoulos affirmed on 27 March 2023, FDN 16) that the Greek will was drawn up in accordance with the applicable Civil Code and meets all the requirements contained in the Civil Code to be legally binding.
A handwritten document dated 27 September 2017 (“the Greek addendum”) purports to record Emmieual’s testamentary intentions with respect to Greek assets acquired (further olive trees) subsequent to the making of the Greek will. Maria deposes in an affidavit affirmed on 21 December 2023 (FDN 18) that she wrote the document as Emmieual dictated his instructions when she was visiting him in Greece. She further deposes that she met with a Greek solicitor, Taxiarxi Koufelos in or about October 2023, who advised that before the Greek assets referred to in the Greek addendum could be dealt with in accordance with that document, outstanding taxes and fees levied on the assets would need to be paid and land would need to be cleared to allow for the measuring of borders. Maria deposes that she understands this process to be expensive and time-consuming and that neither she nor John have the funds available to proceed.

The Greek will was probated in the Magistrates Court at Mytilini on 16 October 2020. The Greek addendum has no formal status.
Evidence of Emmieual’s intentions
In In the Estate of Crawford (Deceased),[4] Besanko J remarked that:
… statements of the testator are admissible as evidence of the testator’s intention and include statements by the testator made after the will was made as well as statements made at the time the will was made.
[4] (2004) 90 SASR 119, [29].
Maria deposes in FDN 13 that when she visited Emmieual in Greece in 2012, he told her that he had prepared a Greek will for his Greek assets and that he subsequently reminded her in regular telephone conversations of the existence of the Greek will and its location. She deposes that on multiple occasions until 2019, including when she visited him in Greece in 2016, 2017, 2018 and 2019, Emmieual enquired as to whether the Australian will was being kept safe as he was concerned that it not be lost and repeated where the Greek will was located.
Maria recounts that whilst she was in Greece in 2019, Emmieual showed her a letter he had received by registered post from Land Services SA concerning caveats Nicholas had lodged over the Mile End properties. Maria deposes that Emmieual was furious with Nicholas and had a power of attorney prepared in Greece so that she and John could warn the caveats. Maria asserts that because of the issue that had arisen with Nicholas lodging the caveats, Emmieual again mentioned he wanted to keep the Australian will safe.
Maria further deposes that Emmieual, while never expressing an intention to return to live in Australia, expressed a desire to return to Australia for a short time to update the Australian will.
John also deposes in an affidavit affirmed 9 March 2023 (FDN 14) that he had multiple discussions with Emmieual between 1983 and 2019 about what was happening with the Australian properties and the safekeeping of the Australian will, as well as the property titles. He deposes in FDN 14 that in or about 2012, Emmieual told him that he had prepared a Greek will for his Greek assets. He further deposes that between 2012 and 2014, he and Emmieual regularly discussed by telephone Emmieual’s Greek and Australian assets including how they would be distributed after Emmieual’s death.
John deposes in FDN 14 that after Diamanto’s death in July 2013, he and Emmieual regularly discussed by telephone that Emmieual’s Australian assets would be left to Maria, John and Nicholas equally and that Emmieual regularly mentioned the Australian will during those conversations. He further deposes that Emmieual discussed his Greek will “in detail which was very specific” and that he “wanted to make sure that [John] understood how the Greek will distributed … his Greek property and extensive Olive Groves”. John deposes that Emmieual told him that the Greek will did not distribute the Greek assets equally.
John deposes in FDN 14 that he visited Emmieual in Greece in 2015 and during that visit, Emmieual reminded him of where the Greek will was located and what it contained, told him in detail what was happening with the olive groves, asked him to keep the Australian will safe and reminded him that the Australian properties were to be distributed equally between Maria, John and Nicholas.
John deposes that he also visited Emmieual in Greece in 2017, 2018 and 2019 and that on each occasion, they discussed the Australian properties, the safekeeping of the Australian will, the location and contents of the Greek will and the status of the olive groves. In particular, John refers to his father stating the need to keep the Australian will safe following the lodging of the caveats by Nicholas. John states Emmieual was furious at Nicholas’ conduct and on his instruction, the caveats were warned and lapsed.
Maria deposes in FDN 13 that in September 2022, she contacted the solicitor, Rafail Psarrou, who works with the Public Notary in Lesvos, Greece who prepared the Greek will, who advised that there is no will instruction file.
Ms Manolaki deposes in her affidavit exhibited to FDN 16 that notwithstanding the revocation clause, she believes that Emmieual only intended to revoke any previous will made in Greece relating solely to his Greek assets. She deposes that if Emmieual had intended the Greek will to deal with his Australian assets, he would have had to have made explicit reference to them. Ms Manolaki deposes that in accordance with the Greek Civil Code, her opinion is that the Greek will only concerns Emmieual’s Greek assets while the Australian will deals separately with his Australian assets.
It would have been preferable for Ms Manolaki to express her legal opinion in different terms by reference to her experience as a solicitor rather than as her “belief”.
Nicholas notes that Ms Manolaki’s legal opinion adopts what he asserts is an erroneous assumption (that Emmieual and Diamanto never divorced), and that it is not clear whether the opinion would have been different had Ms Manolaki been advised that there had been a divorce.
Nicholas refers to the statements in Diamanto’s will that there had been “payment and division of assets between [Emmieual and Diamanto] during [their] lifetime[s]” and that Diamanto did not want Emmieual to “claim or purport to be the owner of the properties”, including the Mile End properties. Nicholas submits that this explains why those assets were not dealt with in the Greek will. As I have explained, other than Nicholas’ assertions in FDN 28, there is no evidence of the alleged property settlement. He also deposes in FDN 28 that:
I say that my Father never registered my Mother’s death on the real property titles to perfect survivorship as he knew that those properties were my Mother’s pursuant to their property settlement agreement. Likewise, my Mother never transferred the titles into her sole name on account of the endeavour to protect the passing on of the assets to us children, should either of our parents [have] re-partnered.
Confusingly, Nicholas also submitted that Emmieual neglected to reference the Mile End properties in the Greek will because, as they were owned by him and Diamanto as joint tenants, he would have known that the properties would become Diamanto’s on his death “irrespective of what a will might say”.
Maria and John’s submissions
Maria and John submit that that the revocation clause in the Greek will operates only to revoke any previous will made in Greece in respect of Greek assets, and that there was no intention to revoke the Australian will.
Maria and John submit that the Greek will “specifically and carefully details each and every asset that Emmieual owned in Greece as at the date of [the Greek will]”, and that it “[descends] into devising specific trees and specific orchards [but] makes no reference at all to entire pieces of real property in South Australia”. They submit that conversely, the Australian will makes no reference to orchards in Greece. Overall, Maria and John submit that the Australian will and Greek will are clearly intended to apply separately to the assets in the respective jurisdictions.
Maria and John characterise Nicholas’ submission that their parents were divorced as a “baseless theory” and submit that it does not support a finding that Emmieual intended the Greek will to revoke the Australian will.
Nicholas’ submissions
Nicholas accepts that a general revocation clause in a later will is insufficient to revoke a prior will if the Court is not satisfied that the testator intended that the earlier will be revoked.[5] However, he submits that evidence to rebut the presumption that Emmieual, by the revocation clause, intended to revoke the Australian will must be clear and unequivocal.[6] Nicholas submits that the absence of both a will instruction file and any evidence of Emmieual’s intentions from the solicitor who prepared the Greek will is a factor that must weigh heavily against Maria and John in discharging this evidentiary onus.
[5] In the Estate of Crawford (Deceased) (2004) 90 SASR 119, [24]-[26].
[6] In the Estate of Wayland [1951] 2 All ER 1041, cited in In the Estate of Crawford (Deceased) (2004) 90 SASR 119, [28].
Nicholas submits that the revocation clause includes broad phrases such as “final wishes”, “every previous Will” and “effective in its entirety” which do not appear to have any limitation. He submits that to interpret the revocation clause as not operating to revoke the Australian will would narrow the meaning of the words used.
Nicholas submits that the revocation clause can be interpreted having regard to the divorce order and Emmieual’s knowledge that Diamanto had made a new will after her return to Australia. He submits that the revocation clause should be interpreted as revoking the Australian will on the basis of “common sense” having regard to Emmieual’s markedly different position at the time he made the Greek will as compared with his status as married at the time he made the Australian will. Nicholas also points to Emmieual’s actions in attempting to reduce Diamanto’s entitlements under his Department of Veterans’ Affairs pension, which he submits highlight that Emmieual was discontent Diamanto had left him to return to Australia.
Nicholas submits that the notion that between 1982 and 1998 Emmieual would have wanted his Australian will to remain intact, such that Diamanto would benefit if he had died during that period, is contrary to common sense. Nicholas has not identified any evidence of steps taken by Emmieual during this period to revoke or otherwise change Diamanto’s entitlements or powers under the Australian will, even after having become aware that Diamanto had made a new will in 1989 or 1990. Indeed, the absence of any such evidence weighs against Nicholas’ contention that the Greek will was intended to revoke the Australian will because Emmieual would not have intended Diamanto to benefit.
Nicholas submits that Emmieual’s statement to Maria that he wished to return to Australia for a short time to update the Australian will indicates that the Australian will did not reflect Emmieual’s testamentary intentions at the time the statement was made. Notwithstanding it is unclear whether the statement was made before or after the making of the Greek will, he submits that the statement makes clear that the Greek will was intended “at the very least… to serve as an interim means of dealing with [Emmieual’s] Australian estate”. This submission undermines Nicholas’ case. While I accept that the statement – if made after the making of the Greek will – would indicate that the Australian will may not have fully reflected Emmieual’s testamentary intentions such that it needed to be updated, it nonetheless would demonstrate that Emmieual did not regard the Australian will as having been revoked in its entirety by the Greek will.
Nicholas submits that by operation of s 20A of the Wills Act 1936 (SA), following the divorce order, any disposition of beneficial interest, appointment or grant in favour of Diamanto in the Australian will was revoked. This amounts to a submission that there was an automatic partial revocation of the Australian will. In circumstances where Nicholas asserts that the Greek will revoked the Australian will in its entirety, it is unclear to me why this submission is advanced at all. Further, the submission that the Australian will was partially revoked following the divorce order (such that any disposition of beneficial interest, appointment or grant in favour of Diamanto in the Australian will was revoked) further undermines Nicholas’ contention that the Greek will was intended to revoke the Australian will because Emmieual would not have intended Diamanto to benefit. Indeed, in oral submissions, Nicholas’ counsel acknowledged that Emmieual would have known that any benefit afforded to Diamanto under the Australian will would have been revoked by reason of the divorce order.
Conclusion
In In the Estate of Crawford (Deceased),[7] Besanko J said:
I have already set out the general revocation clause in the second English will. The clause is wide enough to revoke the Australian will. However, in February 1996 the deceased knew that he had assets in England and assets in Australia. At that time he decided to make two wills, one dealing with his assets in Australia and one dealing with his other assets, namely, his assets in England. Less than 18 months later in June 1987 he decided to make a further will. At that time he knew he had assets in two countries and separate wills in relation to those assets. On the evidence, the deceased made no reference to his Australian will or his assets in Australia at the time he made the second English will. I do not think that he intended to revoke the Australian will by the second English will.
[7] (2004) 90 SASR 119, [42].
Similarly, in In the Estate of Hughes-Roberts (Deceased),[8] I also took into account that a Thai will, having been made in circumstances where the testator knew he had Australian assets and had made an Australian will, made no reference to the Australian assets.
[8] [2018] SASC 133, [37].
Emmieual in this case made a Greek will in circumstances where he had Australian assets and had previously made the Australian will. The Greek will dealt with his Greek assets in great detail while making no mention of his Australian assets or the Australian will. In my view, if he had intended to revoke the Australian will, his intention would have been made explicit.
I infer that Nicholas fell out with his father at the time of their telephone conversation regarding the purported property settlement and did not, noting his counsel’s comment during the hearing, have a relationship with him for many years. Maria and John depose to visiting and remaining in contact with their father up until his death. I accept their evidence regarding the discussions they had with Emmieual regarding the Australian will and the Greek will. Nicholas has not deposed to any discussions with Emmieual regarding the wills. He alleges Maria and John have embellished their evidence which he also contends is hearsay and may have not been honest.
Maria and John’s evidence regarding statements made by Emmieual was provided in response to matters raised by the Deputy Registrar of Probates prior to the referral to me under s 8 of the Act. This evidence is admissible in supporting a finding together with other evidence of Emmieual’s intention in respect of the revocation clause at the time he made the Greek will.[9]
[9] In the Estate of Crawford (Deceased) (2004) 90 SASR 119; In the Estate of Hughes-Roberts (Deceased) [2018] SASC 133.
On the whole of the evidence, I do not consider Emmieual intended to revoke the Australian will by the Greek will. I am satisfied that the evidence of what Emmieual said to Maria and John, together with the precise and detailed dispositions in the Greek will, establish that Emmieual’s intention was to make the Greek will to dispose of Greek assets exclusively. I am also satisfied that Emmieual made the Greek will in the belief and desire that the Australian will remain in effect.
I will hear submissions from the parties regarding the orders to be made including as to the appointment of an independent administrator.