IN THE ESTATE OF PASVOURIS
[2023] SASC 165
•22 November 2023
SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
IN THE ESTATE OF PASVOURIS
[2023] SASC 165
Judgment of the Honourable Justice Stanley
22 November 2023
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - OTHER MATTERS
This is an application for advice and direction pursuant to s 69 of the Administration and Probate Act 1919 (SA). The applicant is the executor of the estate of her late father.
The deceased’s last will and testament, made on 24 November 2004 provides that the applicant is entitled to a legacy on survivorship of $550,000 and a half share in the residue of the deceased’s estate. The balance of the residuary estate is left to her brother, the interested party.
On 6 January 2023 the interested party commenced a probate action seeking rectification of the will on the basis that the deceased failed to make proper allowance for benefits received by the applicant and the interested party during his lifetime. The interested party also claims the existence of an enforceable contract between himself and the deceased in relation to the improvement and use of property, and equitable and beneficial interests in real properties owned by the deceased. He also seeks orders that the deceased’s estate be administered independently of the applicant and the interested party.
The applicant seeks advice and direction that she is justified in continuing as executor of the estate and defending the proceedings brought by the interested party on the basis that the deceased did not err in making his will and that the terms of the will accurately reflect his testamentary intentions.
Held:
1. The applicant is justified in bringing this application;
2. The applicant is justified in continuing as executor of the estate;
3. The applicant is justified in defending the Supreme Court proceedings; and
4. The applicant is entitled to be indemnified out of the deceased’s estate for her costs of bringing this application and in defending the Supreme Court proceedings.
Administration and Probate Act 1919 (SA) s 69, referred to.
IN THE ESTATE OF PASVOURIS
[2023] SASC 165Testamentary Causes jurisdiction
STANLEY J:
This is an application for advice and direction pursuant to s 69 of the Administration and Probate Act 1919 (SA) (the Act). The applicant, Taxiarhoula Glavinas (the applicant), is the executor of the estate of her late father, Vasilios Pasvouris (the deceased) who died on 13 February 2021. The deceased’s last will and testament was made on 24 November 2004 (the will). The beneficiaries named in the will are the applicant and her brother Gabriel Pasvouris (Mr Pasvouris). Mr Pasvouris was named as a joint executor in the will but he did not apply for a grant of probate.
I have received the supporting affidavit of the applicant of 28 August 2023.
The will provides that the applicant is entitled to a legacy on survivorship of $550,000 and a half share in the residue of the deceased’s estate. The balance of the residuary estate is left to Mr Pasvouris.
On 6 January 2023 Mr Pasvouris commenced a probate action seeking rectification of the will (the Supreme Court proceedings). The basis of the application is Mr Pasvouris’ claim that the deceased’s testamentary intention was to equalise gifting between the applicant and Mr Pasvouris but that the deceased failed to make proper allowance for benefits received by the applicant and Mr Pasvouris from the deceased during his lifetime. Mr Pasvouris also claims the existence of an enforceable contract between himself and the deceased in relation to the improvement and use of property at Rose Street, Ottoway and equitable and beneficial interests in real properties owned by the deceased. Mr Pasvouris also seeks orders that the deceased’s estate be administered independently of the applicant and Mr Pasvouris.
The applicant seeks advice and direction that she is justified in continuing as executor of the estate and defending the Supreme Court proceedings brought by Mr Pasvouris.
The applicant’s position is that the deceased did not err in making his will and that the terms of the will accurately reflect his testamentary intention to equalise the entitlements of the applicant and Mr Pasvouris to his estate on the basis of inter vivos gifts made to each of them.
When this matter came before me on 7 November 2023 Mr White SC, appearing for Mr Pasvouris, informed the Court that his instructions were not to oppose the advice and direction sought by the applicant and not to make any submission other than that he would seek, as a named executor, to see the content of any final directions made by the Court. In addition, he asked that costs be reserved or be costs of the rectification proceedings.
In my view it is appropriate that the Court give the direction sought by the applicant. This is a modest estate. The appointment of a new executor at this stage would only burden the estate with additional costs that it can ill afford. Mr Pasvouris’ claims are such that, if the applicant did not defend his proceedings, it would be necessary to appoint a contradictor. Again, that would impose an unnecessary burden on a modest estate and would be contrary to the interests of the beneficiaries. There is nothing to indicate at this juncture that the applicant is acting improperly in the discharge of her duty to administer the deceased’s estate in accordance with the terms of the will.
In the circumstances there is no reason presently apparent to me why the Court should not grant the applicant the usual indemnity for her costs from the estate in bringing this application and in defending the proceedings brought by Mr Pasvouris.
Orders
Pursuant to s 69 of the Act I would direct that:
1.The applicant is justified in bringing this application;
2.The applicant is justified in continuing as executor of the estate;
3.The applicant is justified in defending the Supreme Court proceedings; and
4.The applicant is entitled to be indemnified out of the deceased’s estate for her costs of bringing this application and in defending the Supreme Court proceedings.
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