Kalaf v Grimanes
[2013] WASC 327 (S2)
•3 FEBRUARY 2014
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS |
| CITATION | : | KALAF -v- GRIMANES [2013] WASC 327 (S2) |
| CORAM | : ALLANSON J | ||
| HEARD |
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| DELIVERED |
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| PUBLISHED |
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| FILE NO/S |
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| MATTER |
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| BETWEEN | : PETER KALAF |
Plaintiff
AND
PANAGIOTA GRIMANES
Second Defendant
LEANNE MALLIS As Executor of the Will of
EMANUEL KALAFThird Defendant
ANGELINE DIAMOND
Fourth Defendant
Catchwords:
Wills - Probate - Application for proof of will in solemn form - Proof of due execution - Original will lost - Presumption of revocation rebutted - Turns on own facts
[2013] WASC 327 (S2)
Legislation:
Wills Act 1970 (WA), s 8
Result:
Grant of probate in solemn form of will dated 19 November 2009
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| Second Defendant | : | Dr P R MacMillan |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | No appearance |
| Second Defendant | : | Havilah Legal |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | No appearance |
Case(s) referred to in judgment(s):
Kalaf v Panagiota Grimanes As Executor of the Will of Despina Kalaf [2013]
WASC 327
[2013] WASC 327 (S2)
ALLANSON J
ALLANSON J:
Introduction
On 3 February 2014, I made orders which should finalise this action. These are my reasons for making those orders.
These reasons follow my earlier decision, Kalaf v Panagiota Grimanes As Executor of the Will of Despina Kalaf [2013] WASC 327, delivered 30 August 2013, where I set out the facts in detail. I will not repeat them.
3 In the earlier decision, I declared the will of Despina Kalaf, dated
10 August 2010, to be invalid for want of testamentary capacity. The plaintiff, Peter Kalaf, sought orders that an earlier will, executed by the deceased on 19 November 2009 (the 2009 Will), be pronounced as the last will and testament of the deceased, and be admitted to probate in solemn form.
4 I was not prepared to make those orders on the pleadings and
evidence then before me. The parties agreed that I should adjourn the matter, with leave to amend the pleadings to plead the due execution of the 2009 Will, and with leave to lead further evidence to formally prove that will.
5 Ms Grimanes is the executor named in the 2009 Will, and a
beneficiary under it. She brought in a further re-amended defence and counterclaim, filed 17 January 2014, in which she pleads the facts relating to the preparation and execution of the 2009 Will. She further pleads:
1. after the death of Mrs Kalaf the 2009 Will could not be found [30]; 2. she has a copy of the 2009 Will [31]; and 3. in the circumstances it is just and appropriate that the court pronounce that the copy has force and effect as the will of Mrs Kalaf [32].
Ms Grimanes asks for the following orders:
1.
An Order pronouncing that the Document pleaded in paragraph 32 hereof and being 'Annexure A' to the affidavit of Panagiota Grimanes sworn 1st January 2014 or a copy thereof has force and effect in solemn form of law as the Will of the late Despina Kalaf (the Will).
[2013] WASC 327 (S2)
ALLANSON J
2. An Order directing the Probate Registry to settle a grant of probate of the Will until the original or a more authentic copy of the Will is brought into the Registry.
3. There be liberty to apply for directions.
4. The costs of the counterclaim insofar as they relate to obtaining probate of the Will dated 19 November 2009 action be paid from the estate of the late Despina Kalaf.
None of the other parties oppose the orders sought.
The additional evidence
8 Ms Grimanes made an affidavit sworn 1 January 2014. She attaches
a as 'Annexure A' a photocopy of the 2009 Will, although she cannot recall how it came into her possession. She states that she does not have possession of the original of the 2009 Will, has never had possession of it, and has no knowledge of where it is. The copy is of the executed document.
In the 2009 Will, Mrs Kalaf:
1. revokes all former wills and testamentary dispositions;
2 appoints Ms Grimanes as sole executor and trustee;
3. makes specific bequests of personal property; and
4. leaves the residue of the estate, including her residence at 31 Cleaver Street, West Perth, to her four children as tenants in common in equal shares absolutely. There is a condition that until such time as it may be sold, or subdivided and sold, any net income received from the residence at 31 Cleaver Street be given to Ms Grimanes absolutely. Ms Grimanes is given sole discretion as to when and on what terms the house should be sold.
The will is attested by Vladimir Veselko Ozich, solicitor, and Judith Ann Buchanan.
In a short affidavit, sworn 5 December 2013, Mr Ozich deposes that:
1. In 2009, he was practising as a solicitor but has now retired.
2. Mrs Kalaf attended his office on 19 November 2009 for the purpose of giving instructions to prepare her will and to execute it once prepared.
[2013] WASC 327 (S2)
ALLANSON J
3. He had known Mrs Kalaf for many years and had prepared the 1991 will.
4. He prepared the will in accordance with Mrs Kalaf's instructions. He carefully explained the contents to her to which she fully agreed, and she then signed the will in his presence and in the presence of Ms Buchanan.
5. Mr Ozich and his secretary, Ms Buchanan, then signed the will as witnesses in each other's presence and in the presence of Mrs Kalaf.
6. His usual practice was not to retain the original of wills, but to hand the original to the testator with at least one copy. He has no reason to believe he did not give Mrs Kalaf the original of the will.
7. He does not hold the original will.
12 On the evidence, I am satisfied that Despina Kalaf, also known as
Despina Kalafatas, late of 31 Cleaver Street, West Perth, in the State of Western Australia, born on 28 October 1910, died on 11 November 2010 at Unit 3, 14 The Avenue, Crawley, and left real and personal property situated within the State. Mrs Kalaf made a will dated 19 November 2009 which revoked all earlier wills. Her daughter, Panagiota Grimanes, is named as the executor in the will. A later will, made on 10 August 2010, was not validly made as Mrs Kalaf then lacked testamentary capacity.
13 I am satisfied that the copy tendered by Ms Grimanes is a true copy
of the 2009 Will. I am satisfied that due execution in accordance with s 8 of the Wills Act 1970 (WA) has been established in relation to the 2009 Will and that it is the will of the deceased, and that the names of the subscribing witnesses have been proved.
14 I am also satisfied that the 2009 Will revoked all earlier wills and
testamentary dispositions. There is no later will or codicil. Due to the loss of the original, I need to determine whether there was any revocation of the 2009 Will. Having regard to the basis on which the 2010 will was declared invalid, I will also state my findings on testamentary capacity.
The evidence regarding capacity
15 I am satisfied on the evidence of Mr Ozich that the 2009 Will was
executed and attested in a normal manner. Because there was evidence regarding testamentary capacity at and around the time of execution, I have considered whether, on the whole of the evidence, I am satisfied that
[2013] WASC 327 (S2)
ALLANSON J
Mrs Kalaf was of sound mind, memory and understanding at the time she executed the 2009 Will.
The evidence from the trial, in summary, is:
1 Mrs Kalaf was not formally diagnosed with any mental illness or disorder during her life. She suffered from a number of physical ailments, but the evidence does not show a causal link between them and cognitive impairment.
2. On 15 July 2009, Dr Andrew Granger, consultant physician, described Mrs Kalaf as 'cognitively intact'.
3. On 21 October 2009, Debbie Paynter, a clinical nurse consultant of the Aged Care Assessment Team, Fremantle Hospital, assessed Mrs Kalaf as 'sharp mentally'.
4. None of the health records and correspondence between various practitioners, made around the end of 2009, express concern about Mrs Kalaf's mental state.
5. Dr Henrietta Bryan, a general practitioner who saw Mrs Kalaf in December 2009, had no cause to doubt Mrs Kalaf's cognitive functioning at that time.
6. Mrs Kalaf's cognitive functioning deteriorated gradually from November 2009 to August 2010. Her general practitioner since 2004, Dr Helen Anstey, noticed this decline, and in particular difficulty with memory.
7. There were no medical reports which suggested or identified any neurological event or clinical signs to support a sudden loss of cognitive function in November 2009.
8. A power of attorney was executed at about the same time, and was witnessed by two doctors.
9. Mr Ozich, an experienced solicitor who had known Mrs Kalaf for many years, expressed no misgivings about the capacity of Mrs Kalaf to give instructions and make her will.
On consideration of the whole of that evidence, I am satisfied that Mrs Kalaf had testamentary capacity when she executed the 2009 Will.
[2013] WASC 327 (S2)
ALLANSON J
The lost original
18 I am satisfied that the copy pleaded in pars 31 and 32 of the further
re-amended defence and counterclaim and attached to the affidavit of Ms Grimanes is a true copy of the executed will, and that she has proved due execution. The 2009 Will revoked all previous wills. The original is lost.
19 Mr Ozich gave the original document to Mrs Kalaf. There is, in
these circumstances, a rebuttable presumption that she destroyed it with the intent to revoke it. There is, however, evidence which supports an alternative inference.
20 Mrs Kalaf was 99 years old when she executed the will. In
November 2009, Mrs Kalaf was very sick. She had been hospitalised for much of the period between 18 September and 24 November 2009. The will was executed, and Mrs Kalaf took possession of it, at about the time she left hospital.
21 Despite her advanced age, she had previously been able to live alone,
with the assistance of her family. She could no longer do so. Until her death, she lived with one or the other of her children. Some of this time was in her own home in Cleaver Street, at first with her son Peter and then with Ms Grimanes. While living at Cleaver Street, Mrs Kalaf also spent time at the home of her daughter Julie Diamond. From about September 2010, she stayed at the home of her son Emanuel.
22 During her last year, Mrs Kalaf's physical health was declining. She
was observed on occasion to be confused, and had failing memory. She had poor eyesight. By August 2010, Mrs Kalaf had significant memory deficit.
23 In those circumstances, I am satisfied that it is more likely that the
will was lost than that it was destroyed, and the presumption has been
rebutted.
For those reasons I made the orders sought.
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