In the Estate of Rodopoulos
[2019] ACTSC 56
•8 March 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the Estate of Rodopoulos |
Citation: | [2019] ACTSC 56 |
Hearing Date: | 15 February 2019 |
Decision Date: | 8 March 2019 |
Before: | McWilliam AsJ |
Decision: | [39] |
Catchwords: | WILLS, PROBATE & ADMINISTRATION – Informality – Wills Act 1968 (ACT) |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 3007 Legislation Act 2001 (ACT) s 247, Dictionary Wills Act 1968 (ACT) ss 9, 11A, 21, pt 2 |
Cases Cited: | Estate of Peter Ronald Wiseman [2018] ACTSC 292 Re Letcher (dec’d) (1993) 114 FLR 397 |
Parties: | Angela Hajje (Applicant) |
Representation: | Counsel Ms M Gold (Applicant) |
| Solicitors Myer Vandenberg (Applicant) | |
File Number: | PRO 51 of 2019 |
McWilliam ASJ
The application before the Court concerns whether two documents prepared at separate times, one which is witnessed but not signed by the late Savas Rodopoulos (the deceased), and the other which is signed and dated by the deceased but not witnessed, together constitute an informal will that, notwithstanding their informality, should be declared valid. The application is brought ex parte by Ms Angela Hajje, who is the niece of the deceased.
Background
In early 2017, the deceased, accompanied by his friend Mr Angelo Fortis, went to the Belconnen Post Office to purchase a will kit, which contained a ‘Will Form’ (Will Form). Sometime after purchasing the will kit, the deceased asked his friend, Mr Antonios Bakas, to witness the blank Will Form. On or around the same date, the deceased asked another friend of his, Mr Constantions Armoutis, to witness the same blank Will Form.
Mr Armoutis passed away in May 2018 so was unable to provide evidence on the circumstances surrounding his signature of the Will Form. Mr Bakas deposed that he witnessed the form after the deceased said words to the effect of: ‘Tony [Mr Bakas] please sign this in case I need it later. I will probably fill out my will later’.
In April 2017, the deceased instructed the applicant to fill out the blank Will Form on his behalf as his English was poor. The applicant then handed the completed Will Form back to the deceased.
At a later date, the deceased on the inside of the back cover page of the Will Form set out, with greater specificity, his intentions regarding the distribution of his estate (Will Cover). These intentions were provided in his own hand, in Greek, with his signature appearing at the bottom of the page as well as the date of 21 April 2017. After the completion of the Will Cover, the deceased placed it with the Will Form in an envelope labelled ‘My Will’, and then placed this envelope in a bag with other personal documents. I will refer to the Will Form and the Will Cover as the deceased’s ‘Last Will’.
Prior to his death, the deceased had on a number of occasions left this bag with his brother-in-law (the applicant’s father), Mr Alempije Joksimovic, before travelling. The deceased specifically informed Mr Joksimovic when leaving the bag with him that its contents included an envelope containing his will, which was only to be opened in the event of his death. The deceased would then collect the bag from Mr Joksimovic once he had returned from his travels.
In late April 2017 or early May 2017 the deceased handed this bag to Mr Joksimovic before departing for Greece. Whilst in Greece the deceased fell ill. On 11 February 2018, the deceased passed away in Greece. The cause of death was respiratory failure, heart attack and mesothelioma.
After the deceased’s death, the applicant and Mr Joksimovic opened the bag the deceased had left with Mr Joksimovic to find the envelope titled ‘My Will’ containing the Will Form in the hand of the applicant and the signed and dated Will Cover in the hand of the deceased.
Relief sought
The relief sought by the applicant is an order pursuant to s 11A of the Wills Act 1968 (ACT) (the Act) that, notwithstanding the testamentary documents of the deceased not being executed in accordance with the formalities required by the Act, the Last Will constitutes a valid will of the deceased.
10. The lack of formality arises from the facts as they have been set out above. Section 9(1) of the Act requires:
Will to be in writing and signed before 2 witnesses
(1) Subject to this Act, a will is not valid unless—
(a)it is in writing; and
(b)it is signed at the foot or end by the testator, or by another person in the presence of and by the direction of the testator; and
(c)the signature of the testator is made or acknowledged, or the signature of the person who signs the will by the direction of the testator is acknowledged, by the testator in the presence of 2 or more witnesses present at the same time; and
(d)2 or more of those witnesses each attest that signing of the will or that acknowledgment of the signing of the will and subscribe the will in the presence of the testator and of the other witness or witnesses.
11. The two parts are in writing and fastened together as part of the same will kit. The testator (the deceased) has also signed at the end of the Will Cover. However, the deceased’s signature was not made in the presence of two or more witnesses present at the same time, and although there are two signatures of witnesses, the evidence discloses that they were made at different times, and neither signature was placed on the Will Form as an acknowledgement of the deceased signing the Will Form, nor in his presence. Accordingly, while the Last Will may on its face comply with the requirements of the Act, on the evidence, it does not.
Evidence
12. In support of the application, the applicant relies upon the affidavits of:
(a)Ms Angela Hajje, the niece of the deceased, sworn 13 July 2018 and 11 January 2019
(b)Mr Bakas, the deceased’s friend, affirmed 3 July 2018
(c)Mr Joksimovic, the deceased’s brother-in-law, sworn 13 July 2018
(d)Dr Nikolaos Tsentikopoulos, certified Greek/English translator, affirmed 15 August 2018
(e)Mr Angelo Fortis, the deceased’s friend, affirmed 3 September 2018, and
(f)Ms Michelle Louise Gold, solicitor for the applicant, sworn 13 February 2019 and 15 February 2019.
13. I have also been assisted by the applicant’s written outline of submissions filed 14 February 2019 and her oral submissions made during the hearing.
Service on potentially interested persons
14. The deceased was never married and has no surviving children. The deceased is survived by: the applicant; the applicant’s father (the deceased’s brother in-law), Alempije Joksimovic; and, the applicant’s children, Stephanie Hajje and Joseph Hajje, who all reside in Canberra.
15. The deceased is also survived by his sister, Ionna Triantafilopolous, and her two sons, Iosif Triantafilopolous and Spiros Triantafilopolous. The applicant does not have a close relationship with these individuals, who are believed to be located in Greece. Communication between the applicant and these individuals has been conducted via the applicant’s legal representatives and Mr Efthymios-Foivos Georgopoulos, the legal representative of Spiros Triantafilopolous. Mr Georgopoulos has also previously indicated that he is the attorney for Ms Triantafilopolous.
16. One the evidence before the court, I am satisfied:
(a)Joseph Hajje has been served a copy of the application, and consents to the orders sought.
(b)Stephanie Hajje has been served a copy of the application, and consents to the orders sought.
(c)Notice to the deceased’s sister and her two sons, through Mr Georgopoulos, has been given.
17. Mr Georgopoulos was served a copy of the application by email on 8 February 2019 in accordance with rule 3007 of the Court Procedures Rules 2006 (ACT), interpreted in accordance with subsection 247(1)(d) of the Legislation Act 2001 (ACT) (Legislation Act). No response had been received by the time the hearing took place but only a week had passed since service of the application. Accordingly, I heard the application but indicated that the applicant had leave to supplement the evidence in order to satisfy the Court that proper notification to all potentially interested persons had occurred. On 28 February 2019, Mr Georgopoulos confirmed receipt of the application and stated that his client does not intend to intervene in the proceedings currently before the Court.
18. Although Mr Georgopoulos has not specified that he acts for Mr Iosif Triantafilopolous, I am prepared to infer that he is aware of the proceedings due to the involvement of his mother and brother. He is not a direct beneficiary in any event. I consider that the applicant has taken all reasonable steps to inform the next of kin and those with a potential interest in the estate of the deceased of this application.
19. I am therefore satisfied that all potential beneficiaries or interested persons in this application have been properly notified of the existence of these proceedings.
The Court’s power to declare a will valid
20. The Court has the power under s 11A of the Act to order that a document constitutes the will of a deceased person notwithstanding that it has not been executed in accordance with the required formalities. Section 11A is in the following terms:
Validity of will etc not executed with required formalities
(1)A document, or a part of a document, purporting to embody testamentary intentions of a deceased person shall, notwithstanding that it has not been executed in accordance with the formal requirements of this Act, constitute a will of the deceased person, an amendment of the will of the deceased person or a revocation of the will of the deceased person if the Supreme Court is satisfied that the deceased person intended the document or part of the document to constitute his or her will, an amendment of his or her will or the revocation of his or her will respectively.
(2)In forming a view of whether a deceased person intended a document or a part of a document to constitute his or her will, an amendment of his or her will or a revocation of his or her will, the Supreme Court may, in addition to having regard to the document, have regard to—
(a)any evidence relating to the manner of execution of the document; or
(b)any evidence of the testamentary intentions of the deceased person, including evidence (whether admissible before the commencement of this section or not) of statements made by the deceased person.
Interpretation of s 11A of the Act
21. The proper interpretation of s 11A of the Act in cases seeking an order that an informal will is valid was considered in the Estate of Peter Ronald Wiseman [2018] ACTSC 292, in which I referred to the fundamental matters of fact that arise for determination set out by Gallop J in Re Letcher (dec’d) (1993) 114 FLR 397 (Re Letcher) at 401:
(1)Is there a document?
(2)Does the document purport to embody testamentary intentions of a deceased person? and
(3)Is the evidence which has been tendered such as to satisfy this Court that at the time of the document being brought into existence the deceased person intended the document to constitute his or her will?
22. These three questions form the issues for the application before the court.
Consideration 1: there is a document
23. It is uncontroversial that there are two documents in existence: the undated Will Form, written in the hand of the applicant with the signatures of two witnesses, and the Will Cover, written in the hand of the deceased, signed by him and dated 21 April 2017. At issue is whether these two documents being relied upon by the applicant as the Last Will can be considered a document reflecting the testamentary intentions of the deceased for the purposes of s 11A of the Act.
24. The term ‘document’ is defined in the Dictionary to the Legislation Act to mean any record of information, including:
(a)anything on which there is writing; or
(b)anything on which there are figures, marks, numbers, perforations, symbols or anything else having a meaning for people qualified to interpret them; or
(c)anything from which images, sounds, messages or writings can be produced or reproduced, whether with or without the aid of anything else; or
(d)a drawing, map, photograph or plan.
25. The definition is broad enough to include something that is fastened together, with parts of it written by different people at different times.
26. The Last Will reads (relevantly) as follows:
The unsigned and undated ‘Will Form’
Last Will
1.This is the last Will of me, Savas Rodopoulos of 87 Miller Street, O’Conner, Postcode 2602, in the State/Territory of ACT, which commences on this page and which concludes where the words “this is the end of my Will” appear.
By this will, I revoke all previous Wills and testamentary acts and dispositions.
2.Executor/Executrix
I appoint Angela Hajje of 31 Lyttleton Cres, Cook, Postcode 2614 in the State/Territory of ACT.
4.Special gifts
I make the following special gifts (legacies, bequests and devices):
To Angela Hajje – 1. House at 87 Miller St, O’Conner 2602
2. All financial assets in my name – Savas Rodopoulos
3. All physical assets in my name – Savas Rodopoulos
5.Residuary/Residue of my Estate
I direct my Executor(s) to pay all my debts and then I give the residue of my estate to Angela Hajje.
The signed and dated ‘Will cover’
Savas Rodopoulos son of Isof,
Of 87 Miller St. O’Connor Canberra Australia ACT
My Will.
In my residence, situated in Canberra of Australia, 87 Miller St, I am drawing up with my own hand this My Will and, having a thorough understanding of my actions, I stipulate the following:
I appoint my niece ANGELIKI HAJJE, daughter of ALEN JOXIMOVICH and RENA JOXIMOVICH, all of them being residents of Canberra, 31 Lytteton Cres. Cook Canberra, to be my heir, to whom I give devise and bequeath my house situated in 87 Miller St Canberra Australia as well as whatever monies are deposited in a bank in my name.
This is my last Will, which I am drawing up in my own hand.
At Canberra, 21 April 2017
The testator
(signature)
27. I find that both the Will Form and the Will Cover constitute ‘a document’, on the basis that they are part of the same will kit fastened together and kept in a packet titled ‘My Will’. If I am wrong, I would have found that each of the Will Form and the Will Cover were documents. I would then have applied the reasons that follow to the Will Cover, as the evidence discloses that it was created later in time.
Consideration 2: the document purports to embody the deceased’s testamentary intentions
28. The words of the Last Will have been set out above and it may be readily seen that they purport to embody the deceased’s testamentary intentions. Each part is described as a will. It names the executor and deals with the deceased’s intention as to how to distribute the entirety of his estate.
29. Accordingly, the second element is satisfied on the face of the document itself.
Consideration 3: the evidence establishes that at the time of the document being brought into existence the deceased person intended the documents to constitute his will
30. To assist in determining whether this consideration has been met, in addition to the Last Will, I have considered the affidavit evidence of: the applicant, Mr Bakas, Mr Joksimovic and Mr Fortis.
31. The Will Form was prepared by the applicant. The applicant affirms that the information contained on the form was conveyed directly to her by the deceased, and that she merely acted as his scribe. To corroborate this claim, the applicant relies on two previous wills dated 10 September 2008 and 9 September 1999, which broadly reflect the contents of the Last Will, and the affidavits of Mr Bakas and Mr Fortis.
32. Mr Bakas affirmed that he was asked by the deceased to sign the blank Will Form. He also recalled having conversations with the deceased in which the deceased made clear that he wanted to leave his house to the applicant, with the latest of those conversations taking place in early 2017.
33. Mr Fortis affirmed that he believed the deceased was under the impression that for a will to be valid he had to refresh his intentions and sign a new will. Mr Fortis recalled a conversation he had with the deceased at around the time he purchased the will kit, in which the deceased stated that the new will he was intending to sign would not be any different to his previous will. Additionally, on two occasions (once in April or early May of 2017, and once in September 2017), Mr Fortis recalled having conversations with the deceased in which the deceased made clear that he had made a new will that had left the applicant everything, with Mr Bakas and Mr Armoutis acting as witnesses, and that this new will reflected his intentions.
34. As to the Will Cover, the affidavits of Mr Bakas, Mr Fortis and Mr Joksimovic all support the conclusion that the Will Cover dated 21 April 2017 is in the hand of the deceased.
35. I accept the submissions of the applicant that at the time the Will Cover was signed and dated and placed with the Will Form in the envelope titled ‘My Will’, the deceased intended those documents together to constitute his Last Will. I make this determination for the following reasons.
36. First, it is clear from the photograph of the envelope marked ‘My Will’ in the deceased’s handwriting, annexed to the 13 July 2019 affidavit of the applicant, in which the Will Form and the Will Cover were found, that the deceased intended both documents when placed together to constitute his Last Will.
37. Second, as the deceased was not assisted by a lawyer when preparing the Will Form or the Will Cover, it can be inferred that he was probably unaware of the formal requirements for the making of a valid will. Therefore, his decisions to have the Will Form witnessed prior to it being filled-out; to not sign the Will Form, but only the Will Cover; to then not have the Will Cover witnessed; and, to prepare the Last Will on two separate documents on different occasions, should be viewed as an iterative process undertaken by the deceased, which only culminated in an intention by the deceased that the document constitute his will at the time he signed the Will Cover and put the totality of the material into the envelope and marked it ‘My Will’. I therefore find that at the time the Last Will was brought into existence in its final form on 21 April 2017, the deceased intended both parts to be considered together, and to constitute his final will.
Conclusion and orders
38. As the three questions for consideration have been answered in the affirmative, it is appropriate to make the declaration sought, which has the effect (by virtue of s 21(b)(i) of the Act) of revoking all previous wills, noting that there were two earlier wills created by the deceased in 1999 and 2008, each of which was consistent with the terms presently under consideration.
39. The order of the Court will be:
1.Pursuant to s 11A of the Wills Act 1968 (ACT), the three page document accompanying the originating application dated 24 January 2019, a copy of which is referred to as annexure “B” in the affidavit of Dr Nikolaos Tsentikopoulos affirmed 15 August 2018 and marked “Annexure B”, constitutes the last will of Savas Rodopoulos.
| I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam Associate: Date: 8 March 2019 |
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