IN THE ESTATE OF CHALACAS (DECEASED)

Case [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

  1. 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’.

  2. 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’.

  3. 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.

  4. 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…

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AGLC
IN THE ESTATE OF CHALACAS (DECEASED) [2024] SASC 144
Case
[2024] SASC 144
Decision Date

CaseChat Overview and Summary

The case involves the estate of Emmieual Chalacas, who passed away, leading to a dispute among his children, Maria, John, and Nicholas, regarding the administration of his estate and the validity of different wills. The central issue is whether a Greek will revoked an earlier Australian will. The court was tasked with determining the validity of the wills and the intentions of the deceased regarding the distribution of his estate. This included examining whether the Greek will explicitly or implicitly revoked the Australian will and understanding Emmieual's intentions based on his statements and actions.

The court examined the nature of will revocation, particularly focusing on the explicit and implicit methods of revocation. It considered whether the Greek will, by its detailed focus on Greek assets and lack of reference to Australian assets, implied a revocation of the Australian will. The court also assessed the credibility of the testimonies from Maria and John, who had maintained regular contact with Emmieual and provided detailed accounts of his intentions, compared to Nicholas, who had limited contact with his father. The court concluded that the Greek will did not explicitly or implicitly revoke the Australian will, as Emmieual's intention would have been made clear if that was his intention. The court found Maria's and John's evidence more credible and accepted their accounts of Emmieual's intentions.

The court ruled that the Greek will did not revoke the Australian will, meaning both wills remained valid. The dispute over estate administration was resolved by acknowledging the equal share of the estate among Maria, John, and Nicholas, as per the Australian will. The court emphasized the importance of clear testamentary intentions and the need for explicit revocation to ensure that the deceased's wishes are properly executed.

Orders

Orders of the court

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Background

Background to the litigation

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 25th 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…

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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