In The Estate of Socrates Paschalidis
[2018] ACTSC 122
•26 April 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In The Estate of Socrates Paschalidis |
Citation: | [2018] ACTSC 122 |
Hearing Date: | 26 April 2018 |
DecisionDate: | 26 April 2018 |
Before: | McWilliam AsJ |
Decision: | 1. The document filed with this application, a copy of which is referred to as annexure A in the affidavit of Alexios Paschalidis sworn 2 November 2017 and marked ‘A’ constitutes the last will of Socrates Paschalidis. |
Catchwords: | WILLS, PROBATE & ADMINISTRATION – informality – Wills Act 1968 (ACT) s 11A |
Legislation Cited: | Wills Act 1968 (ACT) ss 9, 11A, 21, pt 2 |
Cases Cited: | Re Letcher (dec’d) (1993) 114 FLR 397 |
Parties: | Yannis Paschalidis (First Plaintiff) Alexios Paschalidis (Second Plaintiff) |
Representation: | Counsel Ms H Phelps (Plaintiffs) |
| Solicitors Snedden Hall and Gallop (Plaintiffs) | |
File Number: | SC 110 of 2018 |
Ex tempore:
The application before the Court concerns whether a document dated 28 June 2017 constitutes an informal will. It is brought ex parte by Yiannis Paschalidis and Alexios Paschalidis, who are two sons of the late Socrates Paschalidis (deceased).
Relief sought
The relief sought by the applicants is an order pursuant to s 11A of the Wills Act 1968 (ACT) (the Act) that, notwithstanding the testamentary document of the deceased dated 28 June 2017 was not executed in accordance with the formal requirements of the Act, the document constitutes a valid will of the deceased.
I will refer to that document dated 28 June 2017 as the ‘Last Will’. The lack of formality arises from the fact that the deceased only had one person witness his signature at the time he signed the Last Will. Sections 9(1)(c) and (d) of the Act require two witnesses to that signature.
Evidence
In support of the application the applicants rely upon the affidavits of Yannis Paschalidis affirmed 2 November 2017, Alexios Paschalidis affirmed 2 November 2017, and Tanya Herbertson, solicitor for the applicants, affirmed 13 March 2018. The original of the Last Will was also separately before the Court.
I have also been assisted by the applicants’ written submissions filed 24 April 2018.
Service on potentially interested persons
The deceased had four children, being the applicants, their brother, Mark Paschalidis, and their sister, Margareta Paschalidis. At the date of his death the deceased was still legally married to Ms Hannelore Paschalidis, who is commonly known as Eva Paschalidis.
The deceased and Eva were separated at the time of the deceased’s death. Divorce orders had been made on 7 July 2017 by the Federal Circuit Court however the divorce did not come into effect until 8 August 2017, shortly after the deceased’s death on 9 July 2017. The deceased’s four children are the named beneficiaries of the Last Will, and are also the named beneficiaries in the two previous wills executed by the deceased, one being dated 10 August 2015 and the other dated 26 July 2011.
The deceased’s nephews include Ioannis Nenes, Stylianos Nenes and Ioannis Paschalidis. The deceased’s nieces include Maria Ferentinou and Marianna Paschalidis. They are all beneficiaries under the Last Will. Ms Herbertson deposes to service of all the beneficiaries and the subsequent correspondence with them. On the evidence before the Court I am satisfied that:
(a)Eva Paschalidis, who is legally represented, does not object to the application and does not wish to be heard on the application;
(b)Mark Paschalidis does not object to the application and does not wish to be head on the application;
(c)Margareta Paschalidis signed and returned to the applicants’ solicitor an authority acknowledging that she is on notice as to the application and she does not wish to be heard on the application; and
(d)The nieces and nephews named as beneficiaries of the Last Will, all of whom are located in Greece, have all signed and returned to the applicants’ solicitor an authority acknowledging that they are on notice as to the application and they do not wish to be heard on the application.
I am thus satisfied that all potential beneficiaries or interested persons in this application have been properly notified of the existence of these proceedings.
Formalities for making a valid will or revoking an existing will
The formal requirements for making a valid will are set out in pt 2 of the Act. Among other things, s 9 requires that for a will to be valid it must be in writing and signed by the testator in the presence of two witnesses. Section 21 of the Act prescribes the requirements for a valid revocation of a will.
I am satisfied by the words and the form of the Last Will that the deceased executed a document in a like manner as a will that shows his intention to revoke all previous wills: see s 21(b)(ii) of the Act.
The Court’s power to declare a will valid
The Court has the power 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 under s 11A of the Act. 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
The proper interpretation of s 11A of the Act in cases seeking an order that an informal will is valid was considered in Re Letcher (dec’d) (1993) 114 FLR 397 (Re Letcher) by Gallop J who outlined the fundamental matters of fact that arise for determination in such matters 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?
Those three questions form the issues for this application. The authorities set out in the applicants’ submissions summarising the position at common law do not appear to me to be inconsistent with the statement of principle in Re Letcher.
Consideration 1: there is a document
In this case it is uncontroversial that there is a document. It is typed and it is dated 28 June 2017. The original is on the Court file as stated above.
The document reads (relevantly) as follows:
Last Will and Testament of SOCRATES PASCHALIDIS
I, SOCRATES PASCHALIDIS, currently residing at [XX] Greenway, ACT 2900 being of sound mind and disposing memory and not acting under duress or undue influence, and fully understanding the nature and extent of all my property and of this disposition thereof, do hereby make, publish, and declare this document to be my Last Will and Testament, and do hereby revoke any and all other wills and codicils heretofore made by me.
FIRST:
a. I appoint my sons IOANNIS (Yiannis) PASCHALIDIS and ALEXIOS (Alexi) PASCHALIDIS, both currently residing in Canberra ACT, to be the Executors of this my Will and Trustees of my Estate.
b. My Executors/Trustees are to act without bond and to the maximum amount possible without court supervision or control so that the estate can be settled as much as possible as a non-intervention proceeding.
c. I direct that all my debts, and expenses be paid as soon after my death as may be reasonably convenient, and I hereby authorize my Executors/Trustees, to settle and discharge, in their absolute discretion, any claims made against my Estate.
d. I further direct that my Executors/Trustees shall pay out of my estate any and all estate and inheritance taxes payable by reason of my death in respect of all items included in the computation of such taxes, whether passing under this Will or otherwise.
SECOND:
a. I hereby authorise my Executors/Trustees to distribute, share, donate or dispose [of] any household and personal items owned by me at my death.
b. I also authorised them to invite Peter and Deborah Fuller … to participate in the physical sharing of these items - as a token of my gratitude for their spontaneous, moral and physical support during my ordeal with cancer.
THIRD:
a. I hereby leave the entire residue of any assets and any property owned by me at my death, real and personal to be shared/donated as follows:
• Two per cent (2%) to my nephew IOANNIS (Yianis) Nenes…;
• Three per cent (3%) to my nephew Stylianos (Stergios) …;
• Five per cent (5%) to my niece Maria (Marisa) Ferentinou/Nenes …
• Three per cent (3%) to my niece Marianna Paschalidis …;
• Three per cent (3%) to my nephew IOANNIS (Yianis) Paschalidis …
• Four per cent (4%) to an Australian Institution doing research to treat Crohns Disease;
• Five per cent (5%) to an Australian Institution doing research to treat Cancer; and
• The 75% balance, in EQUAL SHARES, to:
- My daughter MARGARITA SOPHIA PASCHALIDIS, of Canberra, ACT;
- My son ALEXIOS (Alexi) PASCHALIDIS, of Canberra, ACT;
- My son MARCOS (Mark) PASCHALIDIS, of Canberra, ACT; and
- My son IOANNIS (Yiannis) PASCHALIDIS, of Canberra, ACT.
FOURTH:
a. I also hereby declare that my ex-wife HANNELORE EVA PASCHALIDIS (nee POHL) must be ABSOLUTELY EXCLUDED in the distribution and/or sharing of my assets.
b. This decision is based on our Pre-Nuptial Contract and the fact that she benefitted from our marriage until all her goals were achieved and abandoned me when I needed support.
FIFTH:
a. Upon my death, it is my wish that my body remnants are cremated and ashes disposed [of], in an agreeable by my children manner.
b. As a believer of Christ and His teachings, I am not concerned if my funeral rituals are conducted under the Orthodox or any other Church.
SIXTH:
a. This Will has been prepared in triplicate, each copy of which has been executed as an original. Two of these executed copies are deposited for safekeeping with my trustees, IOANNIS (Yiannis) PASCHALIDIS and ALEXIOS (Alexi) PASCHALIDIS. The third copy has been deposited with my daughter MARGARITA SOPHIA PASCHALIDIS.
b. Either of these wills is to be considered as the original. If only one copy of this Will can be found, then it shall be considered as the original, and the missing copy will be presumed inadvertently lost. Any clarifications or instructions concerning this Will may be obtained by calling the above-mentioned trustees who are requested to do everything necessary to implement the provisions of this Will.
…
Consideration 2: the document purports to embody the deceased’s testamentary intentions
The words of the Last Will refer to the deceased, name the applicants as executor of his will, state what he intends for the disposal of the entirety of his estate and states those who he wishes to benefit. As stated above, the Last Will is signed by the deceased.
The expressed words of the Last Will are sufficient to satisfy me that the document does purport to embody the deceased’s testamentary intentions.
Consideration 3: the evidence establishes that at the time of the document being brought into existence the deceased person intended the document to constitute his will
I accept the submissions of the applicants that at the time the document was brought into existence, the deceased intended the document to constitute his last will.
First, the document is headed “Last Will and Testament of Socrates Paschalidis”.
Secondly, on the evidence before the Court, both applicants believe that the deceased prepared the Last Will without any legal assistance and was likely not aware of the formal requirements for a valid will. The deceased did not purposely disregard the requirement for a second person to witness the Last Will.
Thirdly, the applicants depose to their belief that the deceased had also prepared his previous wills without legal assistance, however those documents had been signed by two witnesses. The applicants depose to their belief that their father may have had a computer formatting problem which meant the section for the second witness signature may have fallen away and was unnoticed or unattended to.
Fourthly, the Last Will was signed by the deceased and witnessed by Mr Murray David Judd, Justice of the Peace. The applicants have identified the signature on the Last Will as being that of the deceased. The fact that the deceased sought out a Justice of a Peace to witness his signature indicates that he attached some formal significance to the witnessing requirement and the document itself.
Finally, and as submitted by Ms Phelps who appeared for the applicants before the Court, the deceased sealed the Last Will in an envelope bearing a label “The Last Will and Testament of Socrates Paschalidis dated 28 June 2017” for safekeeping by Yannis Paschalidis.
For these reasons, at the time it was signed, the deceased intended that the document dated 28 June 2017 constitute his will.
Conclusion and orders
Accordingly, I am prepared to make the declaration sought, which has the effect (by virtue of s 21(b)(i) of the Act) of revoking the previous will.
The order of the Court will be:
1. The document filed with this application, a copy of which is referred to as annexure A in the affidavit of Alexios Paschalidis sworn 2 November 2017 and marked ‘A’ constitutes the last will of Socrates Paschalidis.
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam Associate: Date: |
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