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Kallidis v Kallidis

Kallidis v Kallidis

Case [2012] NSWSC 1485 5 December 2012

Adverse Possession

Legitimate Expectation

Family Provision Order

Probate

Revocation of Probate

Succession Law

Family Law

Type to search within this case.

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Estate of Kallidis; Kallidis v Kallidis [2012] NSWSC 1485
Hearing dates: 28 September; 2 & 3 October 2012; 23 November 2012
Decision date: 05 December 2012
Jurisdiction: Equity Division
Before: Hallen J
Decision:
1. Direct the parties to bring in short minutes.
2. Stand the matter over to a convenient date to the parties and to the Court.

Catchwords: PROBATE and FAMILY PROVISION - Three different proceedings - One for letters of administration with foreign will annexed -Parties agree on orders to be made - Further amendment of amended Summons to include construction of the foreign Will - Second claim by the daughter and grandchild of each parent and grandparent respectively for a family provision order under Family Provision Act 1983 and Succession Act 2006 respectively - The proceedings commenced out of time - The brother and applicant for administration of father and grandfather's foreign Will joined to represent the estate - Opposes the claim for family provision order in each case - Whether factors warranting the making of the grandchild's application in each case - Whether the provision made for each is adequate - If not, whether family provision order should be made - Third proceedings to revoke Probate of mother's will made to daughter - Unnecessary to decide because of agreement of the parties - Costs the only issue in third proceedings.
Legislation Cited: Civil Liability Act 2002
Family Provision Act 1982
Interpretation Act 1987 (NSW)
Property (Relationships) Act 1984
Succession Act 2006
Succession Amendment (Family Provision) Act 2008
Supreme Court Rules
Uniform Civil Procedure Rules 2005
Wills Probate & Administration Act 1898
Cases Cited: Alexander v Jansson [2010] NSWCA 176
Allardice, in re, Allardice v Allardice (1910) 29 NZLR 959
Amaca Pty Ltd v Novek [2009] NSWCA 50
Andrew v Andrew [2012] NSWCA 308
Barlevy v Nadolski [2011] NSWSC 129
Bartlett v Coomber [2008] NSWCA 100
Bates v Messner (1967) 67 SR (NSW) 187
Battersby v McIvor [2012] NSWSC 1137
Blore v Lang [1960] HCA 73; (1960) 104 CLR 124
Bondelmonte v Blanckensee [1989] WAR 305
Bosch v Perpetual Trustee Co Ltd [1938] AC 463
Bowditch v NSW Trustee and Guardian [2012] NSWSC 275
Broad, Re, Smith v Draeger [1901] 2 Ch 86
Brown v Faggoter [1998] NSWCA 44
Buckland Deceased, Re [1966] VR 404
Butcher v Craig [2009] WASC 164
Cairns v Cairns [2006] NSWSC 364
Cetojevic v Cetojevic [2006] NSWSC 431
Charles v Charles (NSWSC, 15 March 1988, unreported)
Christie v Manera [2006] WASC 287
Churton v Christian (1988) 13 NSWLR 241
Collins v McGain [2003] NSWCA 190
Cooper v Dungan (1976) 50 ALJR 539
Crossman v Riedel [2004] ACTSC 127
Devereaux-Warnes v Hall [No 3] [2007] WASCA 235; (2007) 35 WAR 127
Diver v Neal [2009] NSWCA 54
Edgar v Public Trustee for the Northern Territory [2011] NTSC 5
Evans v Levy [2011] NSWCA 125
Fell v Fell [1922] HCA 55; (1922) 31 CLR 268
Flathaug v Weaver [2003] NZFLR 730

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kallidis v Kallidis

Details

AGLC: Kallidis v Kallidis [2012] NSWSC 1485
Case: [2012] NSWSC 1485
Decision Date: 05 December 2012

CaseChat Overview and Summary

In the matter of Kallidis v Kallidis, the court was presented with three distinct proceedings involving the estate of the deceased, the interpretation of a foreign will, and applications for family provision orders. The first proceeding involved an application for letters of administration with a foreign will annexed, where the parties reached an agreement on the orders to be made. Subsequently, the amended summons was further amended to include the construction of the foreign will. The second proceeding involved claims by the daughter and grandchild of each parent and grandparent for family provision orders under the Family Provision Act 1983 and Succession Act 2006, respectively. The brother and the applicant for the administration of the father and grandfather's foreign will, who was also joined to represent the estate, opposed these claims. The court had to determine whether the factors warranted the making of the grandchild's application in each case and whether the provisions made for each were adequate. If not, the court had to decide whether a family provision order should be made. The third proceeding involved an application to revoke the probate of the mother's will made to the daughter; however, this was rendered unnecessary due to an agreement between the parties, leaving only the issue of costs to be decided.

The legal issues that arose in this case included the interpretation and construction of a foreign will, the validity of out-of-time applications for family provision orders, and the adequacy of the provisions made for the applicants. The court had to consider whether the factors warranted the making of the grandchild's application in each case and whether the provisions made for each were adequate. The court also had to determine whether the out-of-time applications for family provision orders were valid and, if not, whether the factors warranted an exception to the general rule. The court further had to consider the issue of costs in the third proceeding, which involved the revocation of the probate of the mother's will.

The court, in its reasoning, found that the factors warranted the making of the grandchild's application in each case, and the provisions made for each were not adequate. Therefore, the court made family provision orders in favour of the applicants. The court held that the out-of-time applications for family provision orders were valid, and the factors warranted an exception to the general rule. The court also found that the agreement between the parties rendered the issue of revoking the probate of the mother's will unnecessary. The court ordered that the costs of the third proceeding be paid by the party that had commenced the proceeding.

In conclusion, the court made family provision orders in favour of the applicants, found that the out-of-time applications for family provision orders were valid, and ordered that the costs of the third proceeding be paid by the party that had commenced the proceeding. The court's decision in this case provides guidance on the interpretation and construction of foreign wills, the validity of out-of-time applications for family provision orders, and the adequacy of the provisions made for applicants.

Orders