In the matter of the Will and Estate of Kalliopi Siapantas
[2023] VSC 125
•22 March 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S PRB 2022 01392
IN THE MATTER of the Will and Estate of KALLIOPI SIAPANTAS (deceased)
BETWEEN:
| STEFEN KOURKOULIS | Plaintiff |
| v | |
| MARIA SIAPANTAS | First Defendant |
| LEON SIAPANTAS | Second Defendant |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 March 2023 |
DATE OF JUDGMENT: | 22 March 2023 |
CASE MAY BE CITED AS: | In the matter of the Will and Estate of Kalliopi Siapantas |
MEDIUM NEUTRAL CITATION: | [2023] VSC 125 |
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ADMINISTRATION AND PROBATE – Where an unopposed application for probate in solemn form where multiple wills that the parties had previously indicated they would contest – Where parties have entered a compromise prior to the grant of probate and seek to prove the most recent will – Minor beneficiary – Whether Court should require contrary evidence to be filed – Probate application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mattin of counsel | HWL Ebsworth Lawyers |
| For the First Defendant | Mr S Pitt of counsel | KCL Law |
| For the Second Defendant | Mr M Seelig of counsel | Canny Legal Pty Ltd |
HIS HONOUR:
Kalliopi Siapantas, the deceased, died on 1 October 2021 at the age of 92. She had a daughter, Maria Siapantas, the first defendant, and a son, Leon Siapantas, the second defendant. Leon is married to Helen Andriotakis, and they have two daughters, Mia and Lana Siapantas. Lana is still a minor. For convenience, and without meaning any disrespect, I will refer to them by their first names.
The deceased has executed a number of wills. In a will executed on 25 November 2008 both her children and her then husband are named as beneficiaries. Her husband died in 2012. In a will executed on 21 October 2015, both her children are named as beneficiaries. In wills executed on 20 May 2019 and 29 October 2019, both her children are named as beneficiaries, but so too are Helen and the deceased’s two grandchildren. The 20 May 2019 and 29 October 2019 wills are in effectively identical form. The 2008 and 2015 wills leave a greater share in the estate to Maria than the 2019 wills do. There have been arguments in the Victorian Civil and Administrative Tribunal (‘VCAT') as to whether the deceased should have someone appointed to administer her affairs. For a period of time, at least, an administrator was appointed to manage the deceased’s financial affairs, although the need for one was the subject of ongoing dispute.
Stefen Kourkoulis, a solicitor, is named as the executor in the 20 May 2019 and 29 October 2019 wills. He witnessed the execution of the 29 October 2019 will. He is not a beneficiary under any of the wills. He commenced this proceeding in which he applies for probate of the 29 October 2019 will. Maria filed grounds of objection in which she contended that the 21 October 2015, 20 May 2019 and 29 October 2019 wills were signed at a time that the deceased lacked testamentary capacity or at a time when she was unduly influenced by Leon or Helen or otherwise in suspicious circumstances. Leon filed grounds of objection in which he contended that the 25 November 2008 will was signed when the deceased was under the undue influence of Maria or otherwise in suspicious circumstances.
The adult potential beneficiaries have now resolved on a distribution of the deceased’s estate in a way that is acceptable to all of them. I was informed that the agreement is to apply regardless of which will is proved, or indeed if no will is proved. Lana is a minor, and so is not a party to or bound by that agreement.
Mr Kourkoulis’s application for a grant of probate, in solemn form, of the 29 October 2019 will came on for hearing. As well as producing copies of the wills, including an executed copy of the 29 October 2019 will, Mr Kourkoulis:
(a) Tendered a report and led oral evidence from the neuropsychiatrist Professor Dennis Velakoulis. Professor Velakoulis assessed the deceased on 4 August 2018, and formed the view that there was ‘no evidence of dementia’ or of cognitive decline over time. He said that at the time of his examination the deceased had the capacity to make a will and that there was no reason to think that this would have changed between then and October 2019 absent some intervening medical event. He said he disagreed with an opinion contained in a report dated 23 February 2019 by Dr Karen Bird, a neuropsychologist, that the deceased had emerging dementia.
(b) Led oral evidence from Mr Michael Kourkoulis. Mr Michael Kourkoulis is in practice with Mr Stefen Kourkoulis who is his father. He has been a solicitor for eight years and was present when the deceased was taken through the 29 October 2019 will by Mr Stefen Kourkoulis and he witnessed her execution of that will. He said that the deceased did not appear unwell and responded appropriately and that in his opinion she understood the nature and effect of the will and of the claims of her children.
(c) Gave oral evidence himself. He has been a solicitor for 37 years and is fluent in Greek. He adopted a written outline in which he explained that he first met the deceased on 3 October 2018 in the context of the VCAT proceedings. He prepared the 20 May 2019 will from written instructions in Greek. He formed the view on that day that the deceased had testamentary capacity. He, and the deceased, took the view that another will should be prepared (if possible) that would be safe from challenge. Accordingly, he arranged for a neuropsychologist, Dr Mathew Staios, to assess the deceased at his offices on 29 October 2019 and for a video operator to attend to film the explanation and execution of the will. Mr Kourkoulis had no prior relationship with Dr Staios. Dr Staios, who also speaks Greek, interviewed the deceased in private and then orally reported to Mr Kourkoulis that in his opinion she had testamentary capacity – he gave her ‘the thumbs up’. Mr Kourkoulis then went through the 29 October 2019 will with the deceased, explaining it to her in Greek, and satisfied himself that she had testamentary capacity in that she understood the nature and effect of making the will, was aware in general terms of the nature, extent and value of the estate, and appreciated the competing claims of her family members.[1] He also satisfied himself that she was acting free of undue influence. He and Mr Michael Kourkoulis then witnessed her execution of that will. The above was all video recorded. Mr Kourkoulis said that if Dr Staios had not opined that the deceased had testamentary capacity then he would not have proceeded with the will. Mr Kourkoulis noted that he also took some comfort from the fact that desires that the deceased expressed in October 2019 were the same as those she had expressed in May 2019. He expressed his own opinion that the deceased ‘absolutely’ understood the effect of the will;
(d) Tendered a report from Dr Staios dated 8 April 2020 in relation to his 29 October 2019 examination of the deceased. In that report, Dr Stainos opines that the deceased satisfied the criteria for testamentary capacity and had ‘intact cognitive function’; and
(e) Showed, and tendered, the video recording of him discussing the terms of the will with the deceased and her execution of it. The recording lasted approximately half an hour, and showed Mr Kourkoulis not just explaining the will but also engaging in some general discussion with the deceased. The recording had English captions added that Mr Kourkoulis swore were accurate.[2] The deceased confirmed that she understood the will, that it reflected her own wishes, and that she was not acting under pressure from anyone else. The recording revealed an elderly lady who was able to identify her assets and to give clear and plausible reasons for which she wished to divide her assets among the different members of her family in the way provided for in the will. She spoke clearly and with confidence. The terms of the will were explained to her, and the deceased appeared to understand the explanation and conveyed that the will reflected her wishes. She appeared to have good concentration and cognitive function; certainly, there was nothing that indicated to the contrary. For example, there was an occasion when she corrected Mr Kourkoulis on the ages of her two grandchildren.
[1]See, eg, Banks v Goodfellow (1870) LR 5 QB 549.
[2]Subject to some inconsequential errors.
Maria and Leon both engaged solicitors and were represented at the hearing. Neither challenged the evidence or called contrary evidence, or submitted that probate of the 20 October 2019 will ought not to be granted. Maria withdrew a caveat that she had previously filed.
The Court must not become a ‘rubber stamp’ when probate is applied for and there is no one opposing the application. However, I will make the order sought for the following reasons:
(a) First, the order sought is for probate of the most recent will. Accordingly, the grant of probate does not carry with it any conclusion that a subsequent will is ineffective;
(b) Second, there was nothing about the evidence that was inherently implausible or otherwise gave reason to doubt that the deceased had testamentary capacity at the time that she executed the 29 October 2019 will. Indeed, the evidence led satisfied me that the deceased had testamentary capacity at the relevant time;
(c) Third, the person propounding the 20 October 2019 will, Mr Stefen Kourkoulis, is the deceased’s solicitor and is not a beneficiary under any of the wills;
(d) Fourth, Maria is the only potential beneficiary under any of the earlier wills that might be disadvantaged by the proof of the 29 October 2019 will. She is legally represented, was present through her solicitors and counsel in Court, and did not challenge the evidence that was led or submit that probate should not be granted. Similarly, the next-of-kin, who would inherit in the event that no will was valid, are the two defendants in this proceeding and do not contend that probate should not be granted; and
(e) Fifth, the only beneficiary, or potential beneficiary, who is not of age and thus might need the protection of the Court, Lana, is a beneficiary under the 29 October 2019 will (which, as noted above, is in the same form as the 20 May 2019 will), but not under the 2008 or 2015 wills. Accordingly, a grant of probate of the 29 October 2019 will is in her interest and a grant of probate of either the 2009 or 2015 wills, or a finding that the deceased had not validly executed any will, would be contrary to her interests.
I consider that, in those circumstances, there is no obligation on Mr Kourkoulis to call evidence that may be contrary to his application, or on this Court to require that that be done.[3] There is no person not before the Court whose interest needs to be protected by the appointment of a contradictor. The situation may have been different if probate had been sought of one of the earlier wills, if there were a beneficiary under one of the earlier wills who was not a beneficiary (or had a lesser interest) under the 29 October 2019 will who was not before the Court, or if there were a next-of-kin who might benefit from an intestacy who was not before the Court.
[3]Re Levy (deceased) (No 2) [1957] VR 662, 665 (Scholl J). Cf In the estate of Leona Johnson (deceased) (2015) 122 SASR 190 (Gray J).
I will order (and the costs orders are by consent) that:
1. Probate of the will dated 29 October 2019 of Kalliopi Siapantas late of 11 Drake Street, Brighton in the State of Victoria, deceased, is proven in solemn form and is granted to Stefen Kourkoulis of 46A Atherton Road, Oakleigh, the executor named in the will.
2. The plaintiff’s costs of and incidental to this proceeding shall be paid or retained out of the estate on an indemnity basis (including all reserved costs) to be taxed in default of agreement.
3. There be no order as to costs of the first and second defendants.
4. The proceeding is otherwise dismissed.
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