Kallidis v Kallidis - [2012] NSWSC 1485

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
Fry v Lukas; Brown v Fry; Estate of Honey; Application of Fry [2011] NSWSC 1329
Foley v Ellis [2008] NSWCA 288
Fulop Dec'd, Re (1987) 8 NSWLR 679
Gardiner v Gardiner (NSWSC, 28 May 1998, unreported)
Glynne v NSW Trustee and Guardian; Lindsay v NSW Trustee and Guardian [2011] NSWSC 535
Goodman v Windeyer (1980) 144 CLR 490
Gorton v Parks (1989) 17 NSWLR 1
Grace v Grace [2012] NSWSC 976
Hakim, Re Estate of; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223
Harrison, In re (1885) 30 Ch D 390
Hawkins v Prestage (1989) 1 WAR 37
Hill v Plummer; In The Estate of Masters (1994) 33 NSWLR 446
Hughes v National Trustees Executors and Agency Co. of Australasia Ltd (1979) 143 CLR 134
Hyland v Burbidge [2000] NSWSC 12
Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 51 FCR 446
Kalmar v Kalmar [2006] NSWSC 437
Kay v Archbold [2008] NSWSC 254
Keep v Bourke [2012] NSWCA 64
Kembrey v Cuskelly [2008] NSWSC 262
Kirby v Sims [2011] NZHC 935
Kleinig v Neal (No 2) [1981] 2 NSWLR 532
Leue v Reynolds [1986] 4 NSWLR 590
Lumsden v Sumner [2012] NSWSC 1440
MacGregor v MacGregor [2003] WASC 169 (28 August 2003)
McCosker v McCosker (1957) 97 CLR 566
McGrath v Eves [2005] NSWSC 1006
McKenzie v Baddeley [1991] NSWCA 197
Madden-Smith v Madden [2012] NSWSC 146
Malone v Runge [2012] NSWSC 1032
Marks v Marks [2003] WASCA 297
Mavrideros v Mack [1998] NSWCA 286; (1998) 45 NSWLR 80
Mayfield v Lloyd-Williams [2004] NSWSC 419
Moore v Randall [2012] NSWSC 184
O'Brien v Warburton [2012] WASC 82
O'Dea v O'Dea [2005] NSWSC 46
Palaganio v Mankarios [2011] NSWSC 61
Pearson v Jones [2000] NSWSC 799
Penfold v Perpetual Trustee [2002] NSWSC 648
Petrohilos v Hunter (1991) 25 NSWLR 343
Polistena v Mitton; Agnew v Mitton [2011] NSWSC 931
Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9
Porthouse v Bridge [2007] NSWSC 686
Puckridge, Deceased, in the Estate of (1978) 20 SASR 72
Sayer v Sayer [1999] NSWCA 340
Scarlett v Scarlett [2012] VSC 515
Shaw v Lambert (NSWSC, 9 October 1987, unreported)
Shaw v Shaw [2003] VSC 318; (2003) 11 VR 95
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Skinner v Frappell [2008] NSWCA 296
Smilek v Public Trustee [2008] NSWCA 190
Stern v Sekers; Sekers v Sekers [2010] NSWSC 59
Stiles v Joseph (NSWSC, 16 December 1996, unreported)
Stott v Cook (1960) 33 ALJR 447
Taylor v Farrugia [2009] NSWSC 801
Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572
Thomson & Anor (as trustees of the trusts established pursuant to the will of Shine (deceased)) [2010] QSC 167
Tramantana v Harborne; Clarke v Harborne; Midson v Harborne [2011] NSWSC 1129
Tsivinsky v Tsivinsky [1991] NSWCA 269
Verzar v Verzar [2012] NSWSC 1380
Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191
Walker v Walker (NSWSC, 17 May 1996, unreported)
Wilcox v Wilcox [2012] NSWSC 1138
Yazbek v Yazbek [2012] NSWSC 594
Category: Principal judgment
Parties: Thomas Kallidis
Maria Tsiougos
Asimina Kallidis
Michael Kallidis (by his next friend Asimina Kallidis)
Representation: Counsel:
Mr A Hill (Plaintiffs in 2010/141165 & 2010/398463 & Defendants in 2011/186870)
Mr R Wilson (Plaintiff in 2011/186870 & Defendant in 2010/141165 & 2010/398463)
Solicitors:
Villari Lawyers (Plaintiffs in 2010/141165 & 2010/398463 & Defendants in 2011/186870)
Teece Hodgson & Ward (Plaintiff in 2011/186870 & Defendant in 2010/141165 & 2010/398463)

File Number(s): 2010/141165; 2010/398463; 2011/186870

Judgment

HIS HONOUR: These reasons relate to three different proceedings, two of which were referred to me by White J, on 30 August 2012, for hearing, pursuant to Part 60 rule 1A of the Supreme Court Rules. The third, which is a family provision matter, did not need referral by order of his Honour but as it was connected with the matters referred, it was also referred to me.

At the commencement of the hearing, with the agreement of the parties, I made an order that the three matters be heard together, with the evidence in one being the evidence in the other. This was clearly necessary, and appropriate, as some of the evidence to be read was relevant to one, or more, of the proceedings.

Without intending to convey undue familiarity, with no disrespect intended, and for convenience, I shall refer, hereafter to each deceased person, the parties, family members, and witnesses, after introduction, by her, or his, anglicised given name.

The proceeding, first in time, was commenced by Summons filed on 4 June 2010, and an amended Summons filed on 13 September 2012, in which the Plaintiff is Thomas Kallidis, one of the seven children of Mihail (also known as "Michael") Kallidis. The claim is for a grant of administration with the Will dated 1 July 2008 ("the Greek Will") of Michael, annexed, to him. The application takes that form because the Greek Will does not name an executor. I shall refer to these proceedings as "the administration proceedings". There is no Defendant named in these proceedings. (I shall refer later to a further amended Summons filed, without objection, following the conclusion of part of the case.)

At the hearing, there was no opposition to a grant of administration, to Thomas, of the Greek Will. In fact, consent to the grant to Thomas, had been given, in writing, by all of the children of Michael except Asimina. However, by her counsel, during the hearing, she stated that she also consented. Subsequently, Asimina filed a written consent to the grant on 22 October 2012.

During the course of the hearing, the parties requested me to make an order for a special grant of administration pendente lite to Thomas, to enable the sale of real property situated at Copeland Street Alexandria ("the Alexandria property") in which the estate of Michael has an interest (to which I shall return). I made orders, and noted agreements, between the parties, in accordance with short minutes of order that were provided to me. (Those orders and notations were entered on the Court's computerised court record system on 3 October 2012.)

The proceeding, second in time, was commenced by Summons filed on 7 June 2011, by Asimina Kallidis, and by her, as tutor for her son, also called Michael. (I shall refer to him as "Asimina's son" since he bears the same name as his grandfather.) Each seeks a family provision order out of the estate of Styliani (also known as "Stella") Kallidis, pursuant to the Family Provision Act 1982 ("the former Act"), and also out of the estate of Michael pursuant to the Succession Act 2006 ("the Act"). A family provision order, under each Act, is an order made by the court in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person.

Because the proceeding in respect of each estate was not commenced within the time prescribed by the former Act, or by the Act, each seeks an order that the time for the making of her, and his, application be extended until the date of the filing of the Summons. I shall refer to these proceedings as "the family provision proceedings".

By agreement also, the claims against both estates were heard together reading the common affidavit evidence. It was in respect of the family provision proceedings that the position of Asimina and Asimina's son, on the one hand, and her siblings, on the other, were polarised.

Pursuant to an order made by consent of the parties, Thomas and his sister, Maria Tsiougos, are the Defendants named in the family provision proceedings and they represent the estate of each of the deceased persons, Stella and Michael, out of whose estates Asimina and Asimina's son seek the family provision orders.

The proceeding, third in time, was commenced by Statement of Claim, filed 4 November 2011, in which Thomas and Maria, are the Plaintiffs and Asimina is the Defendant. It involves an application to revoke the grant of probate of Stella's Will, made to Asimina, and for the appointment of Thomas and Maria as joint administrators and trustees of that estate. Other relief is also sought, including possession of the Alexandria property, which remains registered in the names of Stella and Michael as tenants in common in equal shares. I shall refer to these proceedings as "the revocation proceedings".

In light of the special grant of administration and the consent of all of the children, including Asimina, to the final grant of administration to Thomas, it was not necessary to spend any time on the revocation proceedings and I shall refer to it, in a summary way, later in these reasons. At the hearing, on 23 November 2012, the parties agreed that these proceedings should be dismissed. The sole issue remaining relates to the costs of these proceedings.

The matters proceeded with the reading of the evidence filed in the three proceedings; then the objections to affidavits; and finally the cross-examination of the various witnesses, all being the children of Stella and Michael. Counsel then made submissions. I then adjourned the proceedings for a short period because of an issue concerning the construction of the Greek Will. I shall refer to what followed the adjournment later in these reasons.

Uncontroversial Facts

The following facts are uncontroversial.

Michael was born in Piraeus, Greece, in January 1923. He died in March 2009, aged 86 years. He came to Australia in 1969, with his family, but returned to Greece in late 1984, never to return.

Stella was born, also, in Piraeus, Greece, in October 1925.

Michael married Stella, in September 1947. There were seven children of their marriage namely, Thomas, who was born in April 1951, Helen Dedes (Eleni Kallidis), who was born in June 1952, Maria, who was born in September 1954, Andriani Kallidis, who was born in August 1958, Asimina, who was born in August 1962, Soumela Saroukos, who was born in September 1964, and Dimitra Bourel, who was born in May 1971.

Some of the family came to Australia, from Greece, in about 1960. Thomas and Helen came later.

A divorce order was made in respect of Michael and Stella's marriage, in May 1995, at the Athens First Instant Court.

Asimina's son was born in September 1997.

Stella died on 11 August 2008, aged 82 years.

Stella left a will dated 26 February 2003. Asimina obtained Probate of Stella's Will on 12 December 2008, from this Court, to give effect to her appointment as the sole executrix. That Will provided for Stella's estate, of whatever kind, and wherever situated, after payment of just debts, funeral and testamentary expenses, and all duties payable under the Will, to be divided between her seven children as tenants in common in equal shares.

At the date of her death, Stella's estate, in NSW, comprised an equal share, as tenant in common, with Michael, in the Alexandria property ($200,000 being the estimated value of that one half share), household and personal effects (no commercial value), and cash ($10,946) in two different bank accounts.

Stella also owned a small apartment in Korydallos, Piraeus, Greece ("the Korydallos property"), and a small plot of land with a dwelling house also in Salamina, Piraeus ("the Salamina property"). There was also said to be cash in a bank account in Greece, the amount not being disclosed in the evidence.

The costs and expenses of Stella's funeral, to which a number of her children contributed, were about $20,724. Asimina says that she, initially, paid $4,194 and a few days later, $1,112; Dimitra and her husband, Alan, paid $4,112; Emilie (Andriani's daughter) paid $4,194; Michael Saroukos, on behalf of Soumela, paid $4,112; and Maria paid $3,000.

Michael married his second wife, Triantafilia Lazaridou, in about 1997 or 1998. She predeceased Michael, having died in about 2001. There were no children of their marriage. Michael was a beneficiary of a part of her estate situated in Greece.

Michael married his third wife, Ludmila Beltsikova (also spelt Lyudmyla Belchykova), on 11 December 2006. They remained married, and living together, at the date of Michael's death. There were no children of their marriage.

Ludmila was born in Dresden, Germany, in 1949.

Michael made a Will, in Australia, on 24 January 1980 ("the Australian Will"). In the Australian Will, in the events that happened, he appointed Stella as sole executrix of his Will and left the whole of his estate to her, but if she did not survive him, he appointed Asimina as executrix and trustee of his Will and after payment of just debts, funeral and testamentary expenses, and all duties payable under the Will, he left his estate to be divided equally between all of his children who survived him and who attained their majority, as tenants in common.

Since Michael remarried after the Australian Will was made, that Will was revoked by law: s 15 Wills Probate & Administration Act 1898. (Section 15 applies in relation to wills made before the commencement date of s 12 of the Act (1 March 2008) where the testator's marriage was solemnised before that date. A will revoked by s 15 remains revoked.)

Michael made the Greek Will, in Greece, on 1 July 2008. As translated from the Greek language into the English language, it provided:

"I, Michael Kallidis, parents' names Thomas and Maria, I make my will and I state that the house/one quarter to my wife Beltsikova (rest of name ineligible) Selinia Salamina, Amaliados x Street. The remaining will go to my children and (ineligible) I leave them my blessing. (Ineligible) I want that my will be respected.

Salamina 1-7-2008"

The Greek Will, which was handwritten, apparently by the deceased, was published under Greek Law in the First Instance Court of Pireaus - Will section No. xxx/2009 by way of a Hearing held on 12 June 2009. It appears to bear Michael's signature. There is no signature of any attesting witnesses to his signature on the Greek Will.

A witness to the creation of the Greek Will, as disclosed in the translated documents from the First Instance Court, appears to have been Nikoleta Avgoustinou, a neighbour and friend of the deceased for 21 years. She deposed that she recognised, and authenticated, Michael's handwriting and his signature even though her signature does not appear thereon as an attesting witness.

Michael's estate in NSW, at the date of his death, comprised, only, an equal share, as tenant in common, with Stella, in the Alexandria property.

The nature and value of Michael's estate in Greece is not precisely known, but the parties seemed to accept that it consisted of a one-quarter share of a house in Salamina (referred to in the Greek Will), the estimated value of which is €20,000 (estimated to be AUSD$24,897) only. It was in this house that Michael and Ludmila lived at the date of the Greek Will and at the date of his death.

Apparently, Michael's second wife devised the interest in that property to him.

The funeral expenses for Michael, which were paid by Thomas, initially, were said to be €4,800 (euros) (AUSD$5,951). However, at the hearing, the parties agreed that the costs and expenses associated with Michael's funeral were, in fact, AUSD$7,646.

Thomas has obtained a formal valuation of the Alexandria property, which reveals that the current value, in its present state and condition, is $850,000. (Its value at the date of death of Stella, or at the date of death of Michael, is not disclosed other than in the Inventory of Property in Stella's estate.)

The valuation obtained by Thomas also reveals that in 2008 and 2009, the rental that would have been able to be achieved was $500 per week; that in 2010, it would have been $600 per week; in 2011, it would have been $650 per week; and in 2012, it would have been $700 per week. (There is no contrary evidence advanced by Asimina.)

As the parties have agreed that the Alexandria property must be sold, the costs and expenses of selling that property have been estimated to be $25,000 (being $18,700 for agent's commission, $3,300 for advertising and $3,000 for legal costs). Steps are in train to have the Alexandria property prepared for sale so that it can be sold as soon as is reasonably possible.

(In the amounts to which I have referred and shall refer, I omit any reference to the cents. This may result in what might appear to be minor mathematical miscalculations in the figures set out below.)

In an affidavit sworn on 24 September 2012, Richard Villari, the solicitor acting for Thomas in the family provision proceedings, deposes to service of the prescribed notice in respect of the claims of Asimina and of Asimina's son on each of the children of Michael and Stella and also upon Ludmila. He also deposes to service of a notice on a grandchild of the deceased (also named Stella).

Mr Villari also annexes to his affidavit, a copy of a valuation of the Salamina property, which is described as a small parcel of farmland and some buildings, with electrical power and water supply connected, with no view of the sea and being some distance from the beach and the shops. The valuer estimates the current value of the Salamina property at €75,000 (calculated to be AUSD$93,322).

There is also annexed to Mr Villari's affidavit, a copy of a valuation of the Korydallos property, which is described as a first floor apartment, comprising a hall, kitchen bathroom, one bedroom, and lounge with a verandah, constructed in about 1977. It is located nearby to three squares, schools, shops and public transport. The valuer estimates the current value of the Korydallos property at €43,000 (calculated to be AUSD$53,504).

At the hearing, it was revealed that the two parcels of real property owned by Stella in Greece have been, or are about to be, transmitted into the names of the seven children. It was also agreed that since her death, Thomas and/or some of his siblings have spent a total amount of $8,449 on those Greek properties (including legal costs to enable the transmission into the names of Stella's seven children).

At the hearing, there was no dispute that Asimina, since Stella's death, has spent the cash in the estate at the date of death on some of Stella's debts and testamentary expenses.

It would appear, then, that Stella's estate, both in New South Wales and in Greece, at the date of hearing, has an estimated gross value of $571,826.

Assuming a repayment of funeral expenses ($20,724) to some of the children out of the estate, the payment of one half of the selling costs of the Alexandria property ($12,500) and the repayment of expenses incurred on the Greek properties ($8,449), the net value of her estate (other than to the extent that the costs, or part of them, of the proceedings are to be paid out of Stella's estate) will be $530,153.

It would appear that Michael's estate, both in New South Wales and in Greece, has an estimated gross value, at the date of hearing, of $449,897. Assuming a repayment of funeral expenses (AUSD$7,646) to Thomas, as well as one half of the selling costs of the Alexandria property ($12,500), out of Michael's estate, the net estate (other than to the extent that the costs, or part of them, of the proceedings are to be paid out of Michael's estate), at the date of hearing, has an estimated gross value of $429,751.

Despite s 11(1) (b) of the former Act and s 64 of the Act (to which sections I shall later briefly refer), the parties agreed that the Court should consider only Stella's, and Michael's, property in New South Wales, respectively, for the purposes of determining the family provision proceedings. This was a sensible approach to be adopted. Of course, the interest of each of the seven children in Stella's properties in Greece can be considered as part of the financial resources of each (subject to the deduction of the agreed expenses that have been paid).

Stella's estate in New South Wales has a current gross value of $425,000, from which one half of the costs and expenses of sale ($12,500) would be deducted, as would the costs and expenses of Stella's funeral ($20,724), which would be reimbursed to the children who contributed to those costs. Thus, the estimated net value of Stella's estate would be $391,776 (excluding costs). (Presumably, the expenses incurred on the Greek properties will be, if they have not already been, paid from those properties.)

Subject to costs, it would follow that the entitlement of Asimina and each of her six siblings is to about $55,968 out of Stella's estate, being one-seventh or 14.28 per cent, thereof.

Michael's estate in New South Wales has a current gross value of $425,000, from which one half of the costs and expenses of sale ($12,500) would be deducted, as would the costs and expenses of Michael's funeral ($7,646), which would be reimbursed to Thomas. Thus, the estimated net value of Michael's estate would be $404,854 (excluding costs).

The entitlement of Asimina and her siblings out of the estate of Michael depends upon the construction of the Greek Will. If "the remaining will go to my children" in the Greek Will, refers to property wherever situated, then, subject to costs, they would each receive about $57,836, being one-seventh or 14.28 per cent thereof.

If, however, the rules of intestacy apply to Michael's property in New South Wales, then, subject to costs, pursuant to s 61B(3) of the Probate & Administration Act 1898, Ludmila would receive the prescribed amount ($200,000) and one half of the estate (excluding the prescribed amount), or $302,427, and Asimina and her six siblings would share the balance ($102,427) each receiving $14,632. (There is no suggestion that any of the household chattels in the Alexandria property belonged to Michael.)

On that basis, Ludmila would receive 74.7 per cent and each child would receive 3.61 per cent of Michael's estate.

In calculating the value of the two estates, finally available for distribution, the costs of the three proceedings should also be considered. There has been no differentiation, by the legal representatives of the parties, between the different proceedings or between the two estates. Perhaps, this does not matter greatly, since all of the evidence was read, principally, in the family provision proceedings.

If Asimina and Asimina's son is, or are, successful, normally, each will be entitled to an order that her, and his, costs should be paid out of the estate, or estates, whilst Thomas and Maria, as the representatives of each of the estates, irrespective of the outcome of the proceedings, normally, will be entitled to an order that their costs be paid out of the estate, or estates. It is, therefore, necessary to take the costs of all of the proceedings into account.

Asimina's costs and disbursements of all of the proceedings, including counsel's fees, calculated on the ordinary basis, were estimated to be about $100,758 (inclusive of GST and upon the basis of a three day hearing). (This estimate includes Asimina's current solicitors' costs and disbursements ($37,800) as well as the costs and disbursements of her two previous solicitors ($3,850 and $59,108 respectively).) I was informed, from the bar table, without objection, that the estimate of these costs has been calculated on the ordinary basis.

There is a dispute between Asimina and her previous solicitors about costs. That dispute cannot be determined until after judgment is delivered. The parties agreed that another hearing on the question of costs will probably be required, notice of which hearing should be given to the previous solicitors who should appear if they wish.

Thomas' and Maria's costs and disbursements of the proceedings, including counsel's fees, calculated on the indemnity basis (inclusive of GST and upon the basis of a three day hearing), are estimated to be about $139,544. (This estimate includes Thomas' current solicitor's costs and disbursements as well as the costs and disbursements of his previous solicitors.)

There is a dispute between Thomas and his previous solicitors about costs. Similarly, these costs issues will also be determined following judgment and their former solicitors should also be informed of that hearing so they may appear if they wish.

(There is no evidence that the costs and disbursements of Asimina's son will increase Asimina's costs or that Maria's costs and disbursements will increase Thomas' and Maria's costs and disbursements.)

Of course, depending upon the result of the claims and any order made as to costs, the costs and disbursements, if payable out of one, or both, of the estates, will be able to be formally assessed, unless otherwise agreed by the parties. It follows that the current value of each estate is an estimate only.

The parties submitted, because of the difficulty in precisely determining what might be available in each estate following the sale of the Alexandria property and the determination of the burden of costs, that if any order for provision is made for either Asimina or Asimina's son, it should be by way of an order that she, or he, receive a percentage of the net proceeds of the estate, or estates, after the payment of specified expenses including costs.

I am of the view that this is a sensible and appropriate approach and I shall determine the matter in this way.

Whether any party's costs should be capped shall also be determined following the delivery of these reasons. Needless to say, every effort should be made by the parties' present, and former, legal representatives to reach agreement on the costs issues bearing in mind the size of each estate and the additional costs that would be incurred if there is a hearing on that issue.

The eligible persons, in respect of Stella's estate include her seven children. There is a dispute whether Asimina's son is an eligible person.

The only eligible persons, in respect of Michael's estate, are Ludmila, and Michael's seven children. There was no dispute, during submissions, that Asimina's son is not an eligible person as he was never wholly, or partly, dependent upon Michael.

Only Asimina and Asimina's son have commenced proceedings in respect of Stella's and Michael's estate, although each of her siblings has filed at least one affidavit, read in the proceedings, in which he, or she, has given evidence about his, or her, financial and material circumstances, and has advanced a case that he, or she, is a competing claimant, financially, and otherwise, upon the bounty of each of Stella and Michael. As will be seen, even though none of them has made a claim, the Court is not entitled to disregard his, or her, interest as a beneficiary of each estate.

I shall refer to the evidence of the beneficiaries later in these reasons.

Service of initiating process in the administration and family provision proceedings

Because the interests of Ludmila will, or might, be affected by the result of the administration proceedings and the family provision proceedings, when the matters were listed before me for pre-trial directions, I directed that a copy of certain documents (not the affidavits) in respect of Michael's estate be provided to her as soon as possible.

In an affidavit sworn by Mr Andreas Politis, a trainee lawyer, a member of the Athens Bar Association and a person who is employed in a law office in Athens, Greece, he deposes to service, upon Ludmila, on 20 September 2012, of various documents, being a letter dated 14 September 2012 enclosing documents, a prescribed notice of claim relating to the family provision orders sought out of Michael's estate, and the amended Summons for administration, translated into Greek.

Ludmila did not appear in any of the proceedings herself, or by any legal representative. Nor has she provided any evidence that was read in any of the proceedings.

However, the parties accepted that the evidence of Ludmila's financial position, prior to the death of Michael, was that she was unable to afford to pay €35 per day for hospital accommodation for Michael. She may currently receive a pension, but whether she does is not known with certainty.

The parties accepted, also, that I was entitled to draw an inference, which I do draw, that she may not be particularly well off financially. Admirably, none of the parties submitted that any interest that she has in the Greek property should be affected by a family provision order, if one is made for Asimina out of Michael's estate.

The administration proceedings

The relief sought by Thomas in an amended Summons was:

"1. Thomas Kallidis claims that administration of the estate of Michael Kallidis late of Perama, Greece, Pensioner, be granted to him, no executors being named in the Holograph Will dated the 1st July, 2008 of Michael Kallidis of Perama, Greece, Pensioner...

2. In the alternative, a declaration pursuant to Section 8 of the Succession Act 2006 that the document, a copy of which is annexed hereto, constitutes a Will of Michael Kallidis late of Perama, Greece.

3. That Probate of the said document dated the 1st July, 2008 and the said documents, be granted to him."

In support of the claim for relief in the administration proceedings, Thomas relies upon an affidavit of Andreas Voltis, a lawyer practicing in Greece and an associate of a firm of lawyers in Athens, Greece.

Mr Voltis refers to the handwritten Will and the judgment of the First Instance Court and says:

"By virtue of this Judgment, the Will of the late Michael Kallidis dated July 1, 2008 has been probated by the court, at the request (court petition) of Mrs. Lydmyla Belchykova. Remark: it should be noted that the court has not interpreted the Will...

The question of "acceptance" of the Will by the court also requires further clarification by virtue of the current court proceeding, the Judge reviews the Will, hears a witness (who attests to it, that the Will appears to have been drafted by the testator's hand) and rules on the Will's probate (it is sufficient for the Judge to speculate this event - full legal proof is not required). The question of whether the Will is truly genuine or not can be in fact contested by virtue of a different court proceeding. Therefore, insofar as there are no objections and/or no adverse court filings by anyone claiming legal standing to contest the Will, the current court proceeding merely serves the purpose of "reviewing" the Will and declaring it as a valid (in principle) probate record, so that the heirs named therein may proceed to claim the estate assets as per the Will.

As a result, assuming that the Will is genuine and will not be contested on any ground, the above court Judgment is already "sufficient" towards claiming (e.g. by Acceptance of inheritance proceedings) the estate mentioned in the Will by the nominated heirs (always assuming that the said estate exists and is part of property owned by the deceased at his time of passing)."

In relation to the entitlements under the handwritten Will, Mr Voltis states:

"As to the rights of Mrs. Belchykova: assuming that the Will states that the testator leaves "¼ of the house to Mrs. Belchykova", Mrs. Belchykova's rights are as follows:

a. She may claim (accept as an inheritance) this ¼ share in the house (i.e. in the house property that was owned by the deceased).

b. If the deceased left no other assets (i.e. the house was his only property owned at his time of passing), then, by application of the Greek law and assuming that the deceased left children as his closest living relatives, Mrs. Belchykova has been adequately provided for. By combination of Art. 1825 and 1820 of the Greek civil code, the spouse has a forced-share right of a minimum of 1/8 in the estate; therefore, in that she has been bequeathed a share of 1/4, she has no recourse to claim a greater portion.

c. Things will be different if it turns out that the deceased held other/further substantial assets; then, by the Will's wording, the remaining ¾ of the house and - most likely - the remaining assets too, will go to the children. If the overall value of the estate assets (going to the children) is such that it could be argued that Mrs. Belchykova got less than 1/8 of the full assets' value, she may file a claim for the remainder (up to 1/8 of the estate's total value).

d. However: there is a third scenario that might apply: if the Will states (to be determined by a graphologist) that the children are to receive the remaining shares of the house (only) and not the remainder of the estate whatsoever, and it turns out that there are further assets as well, then, by interpretation of the Will, it may so be that the rest of the estate assets (not included or governed by the Will) will go to the heirs "in intestacy"; if that applies, then Mrs. Belchykova would likely get another ¼ share in any and all further assets of the deceased (Art. 1801, 1802 Greek civil code)."

Finally, Mr Voltis was instructed:

"Michael Kallidis' second wife, Triantafillia Lazaridou predeceased Michael Kallidis. We understand she may also have had children of her own.

We refer to attachment 'B'. We understand the documents contain a title search for a property in Salamina which is still under the second wife's name. We further understand there is a Court document purporting to verify that the second wife did not leave a will."

He responded:

"Attachment "B", 1st page is an "extract" from files kept with the National Cadastre office of Salamina (Ktimatologio); it references a specific registration code (KAEK) and a property in Salamina which appears to be registered in the name of Mrs. Triantafyllia Lazaridou. However, this document is neither a "Title search report" nor an indication as to the current ownership status of the specific property (I note on the top of the page a fax-date indication which is of 2007) - much less since the purported owner has passed away and the ownership may have already reverted to her heirs.

Second page of the same attachment is indeed a court-issued certificate of "intestacy"; this document does not verify that the deceased left no Will; it merely states that no Will has been PROBATED (in the name of the deceased) up until August of 2012.

Assuming that the estate situation of Triantafyllia remains "as is" (no Will) and also assuming that she passed away married to Michael Kallidis with children, then Michael Kallidis should be entitled to ¼ share (in intestacy) in the above property held by his (then) spouse. If the said property's legal status has not been affected (e.g. conveyed or otherwise dealt with by Michael Kallidis during his lifetime), then yes, this property forms a part of the late Michael Kallidis' Will - assuming that this is the house that he refers to in his Will. It would appear that the late Triantafyllia's children have a claim upon the remaining ¾ share of their mother's estate."

I accept the evidence of Mr Voltis.

Counsel for Thomas, in the light of this evidence, submitted:

"The deceased's Holograph Will conforms to the internal law of Greece and has been probated by a Greek Court.

It is submitted that the Holograph Will of the deceased is properly executed within the meaning of Sections 47 and 48 of the Act.

Letters of Administration CTA should be granted to the Plaintiff pursuant to Section 63 of the Probate and Administration Act 1898."

None of the children of the deceased opposes the relief sought by Thomas. Asimina's counsel referred to the submissions made by counsel for Thomas and "respectfully adopts the outline of submissions dated 25 September 2013 (sic)".

Because of the delay arising because of the issue of construction of the Greek Will, the parties agreed that, to enable the Alexandria property to be sold, there ought to be a special grant of administration to Thomas for the purpose of joining in, with Asimina, on its sale. Accordingly, I made consent orders to enable that to occur on the third day of the hearing. I did so because I was satisfied that it would not prejudice Ludmila to make these orders, because, on application of the intestacy law, if applicable, she could only receive a share of the net proceeds of sale of Michael's interest in the Alexandria property.

The Law relating to a Will executed in a foreign place

There is no dispute that the Greek Will was made by Michael in Greece.

Because Michael died after 1 March 2008, the Act applies to the issue of the execution of the Greek Will. Section 48 of the Act provides:

"(1) A will is taken to be properly executed if its execution conforms to the internal law in force in the place:

(a) where it is executed, or

(b) that was the testator's domicile or habitual residence, either at the time the will was executed or at the time of the testator's death, or

(c) of which the testator was a national, either at the time the will was executed or at the time of the testator's death.

(2) The following wills are also taken to be properly executed:

(a) a will executed on board a vessel or aircraft in conformity with the internal law in force at the place with which the vessel or aircraft may be taken to have been most closely connected having regard to its registration and other relevant circumstances,

(b) a will, to the extent that it disposes of immovable property, executed in conformity with the internal law in force in the place where the property is situated,

(c) a will, to the extent that it revokes:

(i) a will, or a provision of a will, that has been executed in accordance with this Act, or

(ii) a will, or a provision of a will, that is taken by this Act to be properly executed,

if the later will has been executed in conformity with any law under which the earlier will or provision would be taken to have been validly executed.

(3) A will to which this section applies is not, to the extent that it exercises a power of appointment, to be taken to have been improperly executed only because it has not been executed in accordance with the formalities required by the instrument creating the power."

Section 47 of the Act defines 'internal law', in relation to a place, as meaning the law applying in a case where no question of the law in force in any other place arises. Section 47 applies to a will whether made before, on, or after 1 March 2008, if the testator dies on, or after, that date: see Clause 3(3) of Schedule 1. The term "place" in the definition of internal law is not defined, but, obviously, includes another country.

The section contemplates a number of "places" of which the internal law shall be the applicable law for the purposes of "proper execution" of a will. These include, relevantly, the place where it is executed, or the place that was the testator's domicile or habitual residence, either at the time the will was executed or at the time of the testator's death. In each instance, that place, in the present case, was Greece. Thus, each of the alternatives relevantly prescribed by s 48 requires a consideration of the law of Greece, the substance of which law has been set out above.

An informal testamentary document

Thomas, in the alternative, submits that the Greek Will is "a document that purports to state the testamentary intentions of a deceased person", and one which has not been executed in accordance with Part 2.1 of the Act (s 8), in that the signature made by Michael was not made in the presence of two or more witnesses present at the same time, and at least two witnesses who attested and signed it in the presence of Michael (but not necessarily in the presence of each other) (s 6(1) of the Act).

Thus, Thomas seeks an order, in the alternative, that the Court should dispense with the requirements for execution and declare that the Greek Will forms Michael's Will and should grant administration of that informal will to him.

Section 4(1) of the Act defines "will" as including "a codicil and any other testamentary disposition".

Section 8 of the Act provides:

"(1) This section applies to a document, or part of a document, that:

(a) purports to state the testamentary intentions of a deceased person, and

(b) has not been executed in accordance with this Part.

(2) The document, or part of the document, forms:

(a) the deceased person's will if the Court is satisfied that the person intended it to form his or her will, or

(b) an alteration to the deceased person's will-if the Court is satisfied that the person intended it to form an alteration to his or her will, or

(c) a full or partial revocation of the deceased person's will-if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will.

(3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to:

(a) any evidence relating to the manner in which the document or part was executed, and

(b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.

(4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2).

(5) This section applies to a document whether it came into existence within or outside the State."

It has recently been noted by Slattery J in Yazbek v Yazbek [2012] NSWSC 594:

"[77] There is no substantive difference between Succession Act, s 8 and its legislative predecessor Probate and Administration Act 1898 (NSW), s 18A. Since the commencement of Succession Act, s 8 this Court has continued to apply the cases considering the requirements of Probate and Administration Act 1898 (NSW), s18A: cf Bell v Crewes [2011] NSWSC 1159 at [23] per White J; Stone & Drabsch v Pinniger [2011] NSWSC 795 per Nicholas J; National Australia Trustees Ltd v Fazey; The Estate of Nancy Elaine Lees [2011] NSWSC 559 at [16] - [17] per Windeyer AJ; Vincent Zang v Deborah Middleton [2011] NSWSC 881; The Estate of Keith Joseph Cook [2011] NSWSC 881 at [7] per Slattery J; Cornish v O'Dell; In the Estate of O'Dell [2010] NSWSC 678 per Slattery J; Estate of Johnston [2010] NSWSC 382 at [5] per Slattery J.

[78] The requirements for execution under Probate and Administration Act, s 18A and therefore Succession Act, s 8 are well established: (a) there must be a document; (b) which purports to state the testamentary intentions of the deceased; and, (c) which the deceased intended to form his will. These principles are discussed in Estate of Masters (1994) 33 NSWLR 446 per Kirby P and Hatsatouris v Hatsatouris [2001] NSWCA 408, at [56] per Powell JA and the cases described in the previous paragraph."

There can be no doubt, and the parties agree, that the Greek Will:

(i) is a "document", within the meaning given to the term by Interpretation Act 1987 (NSW), s 21, which includes (a) anything on which there is writing, or (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them.

(ii) was not executed, or witnessed, in conformity with the formal requirements of s 6(1) of the Act.

(iii) purports to state the testamentary intentions of the deceased.

In regard to the last matter, reference should be made to Re Broad, Smith v Draeger [1901] 2 Ch 86 at 9192, in which Kekewich J, in dealing with a marriage settlement which provided that property should be disposed of as the wife should direct, or appoint, by deed, will or codicil, or any writing in the nature of or "purporting to be a will" or codicil, said:

"What is the meaning of the expression 'purporting to be' a will or codicil? ... T[]he question here is whether a document which is in form and substance a will, but which, because it was not duly executed as such, fails to be a will, in the legal sense, is or is not a document which 'purports', to be a will... This document... is on the face of it a disposition of property made in contemplation of death, and it only fails to be a will because the maker of it did not comply with the requirement of the Wills Act that the witnesses should be present when she signed it. I think, therefore, that I must hold that this document... is one which 'purports' to be a will."

In Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 51 FCR 446, at 452, Hill J in dealing with the Corporations Law, said:

"The word 'purport' is defined relevantly in the Macquarie Dictionary (2nd Rev Ed) as:- '1. To profess or claim: 'a document purporting to be official'. 2. To convey to the mind as the meaning or thing intended; express; imply.'

In some contexts the word may merely mean 'has the effect of': c/f. Joseph v Joseph (1967) Ch 78."

In Hill v Plummer; In The Estate of Masters (1994) 33 NSWLR 446, Priestley JA pointed out, at 469, that:

"A document in which a person says what that person intends shall be done with [his/her] property upon death seems to me to be a document which embodies the testamentary intentions of that person."

In Yazbek v Yazbek, Slattery J said, at [83]:

"Testamentary intentions are an expression of what a person wants to happen to his or her property upon death: Re Trethewey [2002] VSC 83 at [16] per Beach J. In the context of informal wills "a document in which a person says what that person intends shall be done with that person's property upon death seems...to be a document which embodies the testamentary intentions of that person": Re Estate of Masters (1994) 33 NSWLR 446 at 469 per Priestly JA. Furthermore, although dissenting in the decision, Mahoney JA defined testamentary intentions as "how property is to pass or be disposed of after...death": Re Estate of Masters (1994) 33 NSWLR 446 at 455 per Mahoney JA.

Michael describes, in the body of the Greek Will, the document as "my will", not once, but twice, and its terms purport to distribute Michael's estate, namely "the house/one quarter to my wife" and the "remaining will go to my children and ...".

Thus, it is submitted that even if the Greek Will were not one that was properly executed in conformity with the law of Greece, it would be an informal testamentary document under s 8 of the Act.

The real question is whether Michael intended the Greek Will to deal only with his Greek property or whether he intended it to deal with all of his property wherever situated.

Construction of the Greek Will

At the completion of the evidence and the submissions, I stood the proceedings over to enable the parties to take steps to contact Ludmila to see if they could agree upon the construction issue, or at least to give her notice of the further argument relating to the construction of the Greek Will.

Thomas filed a further amended Summons, with leave granted on 24 October 2012. The further amended Summons was returnable on 23 November 2012.

In that further amended Summons, the additional relief sought by the Plaintiff included:

"4. Further, a determination of a question arising under the Holograph Will of the late Michael Kallidis dated the 1st July 2008 whether on the true construction of the said Will, and in the events which have happened, the gift "The house one quarter to my wife Beltsikova Silinia Salamina, Amaliados x Street. The remaining will go to my children ...", means:-

a. A quarter of his house situate in Greece to his wife and the rest and residue of his estate equally to his children; or

b. A quarter of his house situate in Copeland Street, Alexandria, NSW, and the rest and residue equally to his children which includes his one quarter share in his house in Greece;

c. If it means a quarter of his house situate in Copeland Street, Alexandria, NSW, does it mean a quarter of his interest in such house; or

d. Some other meaning, and if so, what."

In an affidavit sworn on 30 October 2012, Mr Politis deposed to service of the further amended Summons, upon Ludmila, on 30 October 2012, together with letters dated 11 and 14 September 2012, respectively, from Villari Lawyers, the latter of which stated the date on which the matter was next before the Court and went on:

"...

This Further Amended Summons is returnable before the Supreme Court of New South Wales on Friday, the 23 November 2012. On that date it will be argued on behalf of Thomas Kallidis that the handwritten Greek Will of Michael Kallidis (copy attached) refers to the Deceased's house in Greece and does not refer to the share of the deceased's house in Australia. Furthermore, it will be argued by Thomas Kallidis that his father intended in his Will to leave all other property, wherever situate, including his interest in a property in Copeland Street, Alexandria to his 7 children equally. If you do not agree with what will be argued on behalf of Thomas Kallidis, you or your Legal Representative should appear before the Court on Friday the 23 November 2012."

A number of these documents had been translated into the Greek language.

There was no appearance by Ludmila, or on her behalf, on 23 November 2012. The matter was called outside the Court three times. There was no suggestion by counsel for Thomas that she, or anyone on Ludmila's behalf, had contacted Thomas' solicitors to request that the balance of the proceedings should be adjourned to enable Ludmila to appear or so that she could be represented.

At the adjourned hearing, counsel for Asimina and Asimina's son did not appear. On this occasion, Ms A M Kennedy, solicitor, appeared. She indicated that Asimina adopted the submissions made on behalf of Thomas on the construction of the Greek Will.

Even though there was no appearance by, or on behalf of, Ludmila, I decided to proceed to deal with the issue of the construction of the Greek Will. Whilst I cannot ignore the right of a person who is, or who may be, affected by the making of an order, to be informed, or, at least, to be made aware, of a trial date, in all the circumstances of this case, it is highly unlikely that Ludmila would ever appear herself, or through a legal representative, to argue any contrary position.

Additionally, in my view, the construction of the Greek Will is tolerably clear.

To proceed enables the efficient dispatch of Court business, whilst to not proceed to determine the issue would further delay the finalisation of the proceedings, delay the administration of Michael's estate, and incur further costs in an estate that is, already, very small.

It was submitted by Thomas that the Greek Will was intended by Michael to relate to the "house" in Greece in which he and Ludmila lived at the date of his death, rather than to his interest in the Alexandria property, and that whilst the Greek Will did not refer to the Alexandria property specifically, its disposition was governed by the words "the remaining will go to my children". If this construction were correct, then the deceased's interest in the proceeds of sale of the Alexandria property would be shared, equally, between the children of Michael.

In support of this construction, Thomas submitted that the deceased held only one-quarter share of the house in Greece and that it was in that house that Michael and Ludmila lived. Also, there is the address of the house in Greece specifically referred to in the Greek Will.

Thomas also submitted that the words "the remaining", since Michael had no other property in Greece, could only mean the rest and residue of his estate situated elsewhere.

Neither counsel referred to s 32 of the Act, which section relates to the use of extrinsic evidence to construe wills. Perhaps, this was because there was no available extrinsic evidence, including evidence of Michael's intention to assist in the interpretation of the language used in the Greek Will.

Counsel for Thomas pointed to the following statement of Lord Esher M.R. in In Re: Harrison (1885) 30 Ch D 390, at 393 - 394:

"There is one rule of construction, which to my mind is a golden rule, viz., that when a testator has executed a Will in solemn form you must assume that he did not intend to make it a solemn farce, - that he did not intend to die intestate when he has gone through the form of making a will. You ought, if possible, to read the will so as to lead to a testacy, not an intestacy. This is a golden rule. I do not deny that this will may be read in two ways, or that it requires that a blank should be filled up. But it may be read in such a way as not to amount to a solemn farce."

That judgment, of course, is part of the majority reasoning in the High Court in Fell v Fell [1922] HCA 55; (1922) 31 CLR 268, at 273, being part of the more general principle expressed by Isaacs J:

"There are two modes of reading an instrument: where the one destroys and the other preserves, it is the rule of law, and of equity, following the law in this respect (for it is a rule of common sense...), that you should rather lean towards that construction which preserves, than towards that which destroys."

In further support of the principle, I refer to Helen Rowena O'Brien as Executor of the Will of Jeffrey Charles Hogan v Warburton [2012] WASC 82, in which E M Heenan J stated, at [63] - [64], the principle this way:

"Partial intestacy

There is a presumption in the construction of wills which is rebuttable and which may be weak in the face of the particular terms of testament to the effect that the court should, in doubtful cases, incline against concluding that the testator intended a partially intestate distribution of his assets. Two extracts from leading texts will suffice to describe this presumption, its varying strength and application and effect. In Halsbury's Laws of England (4th ed) vol 50 par 494, omitting footnotes, the learned authors write:

A testator may well intend to die partially intestate for, when he makes a will, he is testate only so far as he has expressed himself in his will. Accordingly, there is no reason for the court in all cases to lean too heavily against a construction which involves a partial intestacy. Where, however, the construction of the will is doubtful, a court acts on the presumption that the testator did not intend to die either wholly or even partially intestate, provided that on a fair and reasonable construction there is no ground for a contrary conclusion. Where the will shows an intention of the testator to dispose of the whole of his property, but, as regards the interests created, two constructions are possible, according to one of which the will effects a complete disposition of the whole, but according to the other the will leaves a gap, the court inclines to the former construction.

The second extract is to be found in DM Haines QC, 'Construction of Wills in Australia' (2007) Butterworths, at 3.3, 3.5, 3.6 and 3.7.

3.3 The Golden Rule of construction of wills stipulates that a court should adopt an interpretation which will not lead to an intestacy or partial intestacy and which will lean towards a construction which preserves rather than destroys the gifts under a will. If a gift fails for any reason, a resulting trust arises in favour of the testator and it falls as on an intestacy. The presumption that a testator having executed a will does not wish to die intestate or to leave a partial intestacy may be used as an aid to construction if there is an ambiguity in a will. The expression 'Golden Rule' in respect of this principle was coined by Lord Esher MR in Re Harrision; Turner v Hellard (1855) 30 Ch D 390 at 393 4. The rationale behind the rule is simple. Where a person executes a will in solemn form, it must be assumed that he or she did not intend to die intestate. Courts have taken a firm view in this regard. A court 'never inclines towards intestacy; it is a dernier ressort in the construction of wills': Lightfoot v Maybery [1914] AC 781, at 802. This proposition has the status of a presumption but may be rebutted by the context. It is rebuttable because 'the guiding principle [is] always to construe the will in accordance with the wishes of the testator' Thomas v Strickland [2001] WASC 156.

...

3.5 The presumption against an intestacy has been the source of judicial criticism. It has been said that it involves speculation as to the intention of a testator. Some persons die intestate deliberately and it is very dangerous to place too much reliance on the supposed wish of a testator not to die intestate.

3.6 If, however, there are two possible constructions, one of which would result in an intestacy and the other which would not, a court should adopt the latter. A presumption is said to arise in favour of a testacy rather than an intestacy because a testator went through the act of making a will.

3.7 Moreover, if it is clear from the whole of the will that the testator had attempted to dispose of his or her entire property to persons who would be expected to inherit the bounty of the estate, that fact is sufficient to invoke the presumption. (footnotes omitted)"

However, I note that these statements cannot be used to rewrite the will to save the estate from intestacy if on a proper construction of the will an intestacy does arise: Thomson & Anor (as trustees of the trusts established pursuant to the will of Shine (deceased)) [2010] QSC 167, per Atkinson J, at [16] - [18].

Thomas seemed to submit that whether the Greek Will is construed by reference to the law of Greece, or the law of Australia, the result would be the same, namely that Ludmila would receive the deceased's share of the property in Greece and the children would receive the residue of the estate, wherever situated. (Since the parties agreed that Michael had no other property in Greece other than his share in the house, this meant, in effect, that Ludmila would receive his property in Greece, and his children would share his property in Australia.)

The revocation proceedings

Even though, at the hearing, the parties did not spend much time on this case, it is necessary to say something about it since there will, or may, be an issue of the costs of the proceedings.

There is no dispute that the Court has an inherent power to revoke a grant of probate. The relevant principles were stated in Bates v Messner (1967) 67 SR (NSW) 187, at 189 and 191-192. Also see Mavrideros v Mack [1998] NSWCA 286; (1998) 45 NSWLR 80, at 101-102.

In Bates v Messner, Asprey JA said:

"... that the essential basis of the exercise of the court's inherent jurisdiction to revoke a grant of probate is that emphasised by Jeune P., namely, that the real object which the court must always keep in view is the due and proper administration of the estate in the interests of the parties beneficially entitled thereto on the part of the person to whom and by whose oath as to the faithful performance of his duties the court has been induced to entrust the office of executor. The terms used in some of the previously decided cases with relation to the circumstances which have given rise to the exercise of the jurisdiction of revocation, such as 'abortive', 'inefficient', 'useless' or 'ineffectual', are simply descriptive of a situation in which the court has been persuaded to the view that its grant, which was predicated on the oath of the executor named in the will that 'he will pay all the just debts and legacies of the said deceased so far as the estate of the said deceased will extend and the law shall bind him, and that he will otherwise well and faithfully administer the said estate according to law; and that he will render a just and true account of his administration' has been circumvented by a breach of that oath which is in effect an undertaking to the court making the grant. I shall make no attempt to define all circumstances which may attract the exercise of the court's jurisdiction, but where circumstances clearly appear to have arisen after a grant of probate which impel the court to the firm conclusion that the due and proper administration of an estate has either been put in jeopardy or has been prevented either by reason of acts or omissions on the part of the executor or by virtue of matters personal to him, for example, mental infirmity, ill health, or by virtue of the proof of other mattes which establish that the executor is not a fit and proper person to carry out the duties which he has sworn to the court that he will perform, the court may exercise its inherent jurisdiction to revoke the grant."

Thomas and Maria complain that Asimina and Asimina's son, since the death of Stella, have lived in the Alexandria property without the consent of the beneficiaries of each estate, and that, regardless of consent, that she has not paid any rent, or occupation fee, for so doing, at any time. Thus, as executrix of Stella's estate, she was not entitled, without the informed consent of the beneficiaries, to use her office as a means of profit or benefit to herself. This principle, it is submitted applies to an executor, whether or not she has assumed the office of trustee.

They also complain that she has failed, or neglected, to sell the Alexandria property; that she has unreasonably delayed in placing it on the market for sale; and otherwise has hindered its sale. (They make similar complaints in relation to the sale of Stella's properties in Greece.)

In this regard, as early as 28 October 2008, the solicitors acting for Asimina's siblings wrote to her solicitors requesting "advice as to your client's intentions in relation to the sale of the [Alexandria property]" and "your client's intentions in relation to vacating the property". The letter concluded:

"In the meantime, our clients reserve all their rights including the right to claim a licence fee in relation to [Asimina's] occupation of the property".

As well, the siblings complain that the funeral expenses have not been reimbursed, as they should have been. In broad terms, their complaints are to the effect that Asimina has placed her own interests ahead of the interests of the beneficiaries of the estate.

Asimina did not dispute that she and her son have lived in the Alexandria property. However, she asserted an entitlement to do so. She also denied any obligation to pay any rent, or occupation fee, to the estate of either Michael or Stella. She also submitted that she and her son had a claim for a family provision order, part of which might have provided for the continued occupation of the Alexandria property.

Asimina also submitted that, prior to the death of the Michael in March 2009, s 44 of the Wills Probate & Administration Act 1898, provided that, upon the grant of probate of the will, or administration of the estate, of any person, all real and personal estate which any such person dies seised or possessed of, or entitled to, passes to and becomes vested in the executor to whom probate had been granted or in the administrator. However, under s 61 of that Act, which applies because Michael died in March 2009, from and after the death of any person dying testate or intestate, and until probate, or administration, or an order to collect is granted in respect of the deceased person's estate, the real and personal estate of such deceased person shall be deemed to be vested in the NSW Trustee and Guardian in the same manner and to the same extent as aforetime the personal estate and effects vested in the Ordinary in England.

Her counsel submitted, therefore:

"25. These proceedings should be dismissed for two reasons. First, it was not possible to sell the Alexandria property until such time as the grant of administration is made in [Michael's] estate. Second, the inevitable consequence of these proceedings is that the Alexandria property will need to be sold."

In view of the agreement of the parties to the making of the special grant of administration to Michael, and because there is now agreement upon a procedure for selling the Alexandria property, the proceeding to remove Asimina does not have the same significance than it would have had otherwise.

However, as was accepted by counsel for Asimina, her occupation of the Alexandria property, with her son, is a matter that should be taken into account in the family provision proceedings.

As stated, an order dismissing the revocation proceedings will be made in due course.

Claims for a family provision order

Requirement for grant of administration

Under the former Act, there must have been a grant of administration in respect of the estate, before an order could be made, even though proceedings under the former Act could be instituted (as distinct from determined): Leue v Reynolds [1986] 4 NSWLR 590; Taylor v Farrugia [2009] NSWSC 801, per Brereton J, at [21].

Stella is a deceased person in respect of whose estate administration has been granted. It follows, that, in relation to her estate, the requirement is met.

A different position applies in relation to Michael's estate in respect of which at the commencement of the hearing, there was no grant of administration. However, under the Act, an application for a family provision order, and an order, may be made whether or not administration of the estate of the deceased person has been granted: s 58(1) of the Act.

In Polistena v Mitton; Agnew v Mitton [2011] NSWSC 931, I dealt with the need for a grant of administration before a family provision order could be made under the Act. I said, at [106] - [113]:

"As has been noted above, whilst there has been a grant of administration in respect of the deceased's estate for the purpose of Pauline making a claim under Chapter 3 of the Act, no such grant was sought, or made, in Linda's case. A preliminary question, namely whether it is actually necessary for there to be a grant of administration, was raised, briefly, at the commencement of the hearing.

An application for a family provision order may be made in respect of the estate of a deceased person. In s 3 of the Act, "deceased person" is defined as "including any person in respect of whose estate administration has been granted". The use of the word "including", suggests that the phrase is not limited to only such a person. In this regard, the Act is different from the former Act, which, in s 7, specifically referred to "a deceased person in respect of whom administration has been granted".

Section 55 of the Act sets out the circumstances in which "administration is granted in respect of the estate of a deceased person". In s 4 of the Act, "administration" is defined by reference to s 55 of the Act. The latter section provides that "administration" is granted in respect of the estate of a deceased person in certain specified events including "where letters of administration of the estate of the deceased person are granted in New South Wales ... whether for general, special or limited purposes": s 55(1)(b).

Recently, in Hitchcock v Pratt [2010] NSWSC 1508, Brereton J noted:

"... I would not have dismissed the proceedings on the ground that there was no relevant grant in New South Wales. A grant was not previously a precondition to the institution of proceedings, although one had to be obtained before an order was made [Leue v Reynolds (1986) 4 NSWLR 590]. Under the current legislation, not even that is necessary. And even if it were, a grant under s 91 could be made prior to any family provision order."

Respectfully, I agree that a grant of administration is not required before the commencement of proceedings under the Act. Leaving aside the decision of Leue v Reynolds (1986) 4 NSWLR 590, s 58(1) of the Act specifically provides that an application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted.

In Cabban v Cabban [2010] NSWSC 1433, Macready As J discussed the principles on this topic. I shall not repeat what his Honour said at [54] to [58].

In this case, which is slightly different to each of Leue v Reynolds and Cabban v Cabban, I have come to the view that a separate grant is not necessary in Linda's case. I shall refer to s 59(1), which provides when a family provision order in relation to the estate of a deceased person may be made.

Whilst, strictly, it may be possible to make a further grant (s 91(3) of the Act), that is not required. A limited grant has already been made, and although it was not "for the purposes of permitting the application concerned (i.e. Linda's application) to be dealt with", the deceased is a person in respect of whose estate administration (albeit for a limited purpose) has been granted."

In the present case, the parties had agreed that Thomas was to represent the estate of Michael in the family provision claim. When the order for a grant of administration pendente lite, referred to above, to allow the sale of the Alexandria property was made, a grant of administration was also made to Thomas under s 91 of the Act, because I was satisfied that it was proper to grant administration in respect of the estate of Michael to him for the purposes of permitting the application of Asimina and Asimina's son to be determined.

In the circumstances, there is now a grant of administration.

The family provision proceedings

Eligibility

In each claim for a family provision order, under the former Act and the Act respectively, the Court must be satisfied, first, that each applicant is an "eligible person". In the former Act, as well as the Act, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are various categories of persons by, or on whose behalf, an application may be made.

Relevantly, one category is "a child of the deceased" (s 6(1)(b) of the Act and s 57(1)(c) of the Act). Clearly, the language, in the former Act and in the Act is expressive of the person's status, as well as her, or his, relationship to the deceased. There is no age limit placed on a child making an application.

Another category of eligibility is "a person who was, at any particular time, wholly or partly dependent on the deceased person, and who is a grandchild of the deceased person" (s 6(1)(d) of the former Act and s 57(1)(e) of the Act).

The second part of that category describes the person's status. Again, there is no age limit placed on a grandchild making an application in the former Act or in the Act.

In the case of Asimina's son, there is no dispute that he is a grandchild of each of Stella and of Michael. However, because the test of eligibility is twofold, he must also establish, in relation to each grandparent, that there was a relationship of dependence, whether wholly or partial, at any particular time, (depending upon the estate out of which provision is being sought).

Neither the former Act nor the Act contains any definition of the words "dependent on". In general, the word "dependent" connotes a person who relies upon support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support.

In Amaca Pty Ltd v Novek [2009] NSWCA 50, Campbell JA, with whom other members of the Court of Appeal agreed, said (in the context of a claim under s 15B of the Civil Liability Act 2002):

"45 In my view, the law remains accurately stated by the joint judgment of Sugerman P, Jacobs and Mason JJA in Middleton v Kiama District Hospital [1970] 3 NSWR 136. Their Honours said, at 138:

'Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain him; and may be so dependent even though there is also in existence one who has legal duty to maintain, eg a husband his wife. On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. The definition of "dependants" does not merely refer to one who was in fact supported by the deceased worker at the time of his death; a "dependant" is a member of the workers' family who was "wholly or partly dependent for support upon the worker at the time of his death". Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. As to all the above matters see Hodges v Scotts' Provision (Wholesale) Pty Ltd [1963] WCR 161 and cases there cited.'"

In Skinner v Frappell [2008] NSWCA 296, Young CJ in Eq, (with whom Campbell JA agreed) sitting in the Court of Appeal at [85] wrote:

"The matter as to what is required for dependency was fully dealt with by this Court in Petrohilos v Hunter (1991) 25 NSWLR 343. Although dependency is not limited to financial dependency, it does involve one person being beholden to another person for some material, or physical, help or succour, emotional dependency is not enough."

In Petrohilos v Hunter (1991) 25 NSWLR 343, at 346-347, it had been said by Hope AJA:

"I would respectfully disagree with the Master in both respects. The word "dependent" is an ordinary English word, and whether a person is or has been wholly or partly dependent upon another is a question of fact. No doubt one of the commonest forms of dependency is a financial one, in the sense that the dependence flows from the fact that accommodation, food, clothing and other necessities or amenities of life are provided by the person who owns or is otherwise entitled to the accommodation and pays for the other things. But I do not think that the word, as used in the statute or otherwise, has this very limited meaning. In ordinary parlance young children are properly and commonly said to be dependent on their mother as well as their father, regardless of where the money comes from. A contrary view, that young children are not dependent on their mother if she has no independent means, seems to me to be a misuse of the language. This accords with what Samuels JA said in Ball v Newey at 491, that "'Dependent' in the ordinary sense of the word, means the condition of depending on something or on someone for what is needed". If the correct view were that the context of the statute requires a limitation of the word to "financial or material" matters as McClelland J said in Re Fulop (dec'd) or to "other forms of dependence analogous to but distinct from financial dependence" as Samuels JA suggested in Ball v Newey (at 491), then surely a mother's services to a young child satisfy the test. The child could not survive without the provision of those services; he or she needs them. To suggest that, in a money sense they are valueless, is simply wrong. If the provision of accommodation by a father for a young child, that is, having the child live in a house which he owns and lives in, can make the child partly dependent upon the father as it undoubtedly can, I am unable to see why the provision by a mother to her children, living with her, of the services essential for their well-being does not make them partly dependent upon her. In my opinion it does. The same considerations apply to a step-child or his or her step-mother when the child lives with the step-mother and is looked after by her. I appreciate that a different view has been taken by others, as for example by Powell J in Dunn v Public Trustee (Powell J, 1 June 1989, unreported), but I would respectfully disagree with that view. In my opinion the plaintiff was partly dependent upon the deceased, certainly for many years of her childhood and probably until her marriage, although no doubt her dependence diminished in the latter years of this period."

In Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223, Palmer J, at [42], said:

"Dependence for the purpose of s 6(1)(d), so far as the cases have discussed, is seen as the giving of financial or other material assistance by the deceased over a significant period of time in order to meet a need of the eligible person, with the result that the recipient has come ordinarily to rely upon that assistance."

In McKenzie v Baddeley [1991] NSWCA 197, Priestley JA (with whom Hope AJA agreed) held that the word "partly" in the phrase "partly dependent", whilst a word of "some elasticity", does not mean "substantially", but means "more than minimally", or perhaps, "significantly". Meagher JA commented that "[c]ommon sense requires that certain trivial activities should be disregarded".

A similar view was taken by the Court of Appeal, more recently, in Alexander v Jansson [2010] NSWCA 176 at [13].

The question of dependency, whether whole or partial, is a question of fact.

Factors warranting the making of the application

The Court, if satisfied of each applicant's eligibility, in the case of Asimina's son (but not in the case of Asimina) must, in respect of Stella's estate, first determine whether, in its opinion, having regard to all the circumstances of the case (whether past or present), there are factors which warrant the making of the application and shall refuse to proceed with the determination of the application and to make the order unless it is satisfied that there are those factors. In Michael's estate, it must be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application.

Asimina's counsel acknowledged the obvious futility of seeking provision out of each estate for the "needs" and in the amount referred to. During submissions, he indicated that Asimina should receive about 31.5 per cent of each estate if it were that the estate, in each case, was to be divided equally between the children of Stella and Michael.

Thomas has not worked since 2006. He says his annual income, since 2006, has been approximately $4,000, limited to interest from moneys in an investment account.

Thomas' assets are:

(a)

Home at Chester Hill (est)

$450,000

(b)

Furniture & fittings (est)

$ 5,000

(c)

Investment account

$ 3,000

(d)

2000 Toyota van (est)

$ 3,000

Total

$461,000

He says he had an original investment of $100,000, but that this amount has been reduced over the years by his need to withdraw monies to fund living expenses and to travel to Greece to attend to various issues relating to Michael's funeral and estate. He has had to travel to Greece on two occasions. He has privately funded the airfares for these trips to the sum of $6,000. He has also contributed $1,850 from his own funds for lawyers' fees in respect of the finalisation of Michael's estate.

His investment has now been reduced to about $28,000. He said he had used what had been spent on living expenses, including, I infer, on his children and grandchildren.

He says his home is unencumbered, and that he has no superannuation. He should receive, upon the sale of the Alexandria property, the reimbursement of the amount he contributed for Michael's funeral ($7,646).

He did not disclose that he had a block of land in Greece with a value of $25,000. He intended that his children should inherit this block of land and had no intention to sell it.

He has the following liabilities:

(a)

Personal overseas debt

$ 20,000

Thomas details his weekly expenses, which total $502.

He says he has had to be frugal and selective in his spending habits because of his financial position. He says he cannot afford car insurance, holidays.

Maria outlines her assets and liabilities as follows:

Assets

(a)

Canterbury property (joint)

$400,000 (approx)

(b)

Belmore property (husband's property)

$400,000 (approx)

(c)

St George Bank account

$ 48,000

(d)

St George Bank account (day to day)

$ 3,000

Liabilities

(a)

Amount owing to son

$ 5,000

She has been in receipt of workers compensation benefits since a work accident in 1998. She received approximately $311 per week in the financial year 2010/2011. She also receives about $40 per week interest from her St George Bank account. She and her husband receive approximately $500 per week from the rent from the Belmore property. Her husband is her carer and does not work. He does not receive any carer's pension.

She should receive, upon the sale of the Alexandria property, the reimbursement of the amount she contributed for Stella's funeral ($3,000).

Maria details her joint weekly expenses, which total $783.

Her husband owns a car.

Andriani sets out her financial resources as follows:

Assets:

(a)

CBA account:

$27,000

(b)

Furniture, clothing & jewellery:

$23,000

Liabilities:

(a)

Personal loan:

$ 3,800

(b)

Master card:

$ 9,000

(c)

MasterCard:

$17,000

(d)

David Jones Amex card:

$ 7,000

(e)

MasterCard:

$ 1,000

(f)

MasterCard:

$ 5,300

(g)

Car Finance:

$20,000

Total:

$63,100

Andriani says that her total monthly income is $3,120 net. She details her monthly expenses, which total $1,090 and what she describes as her "fixed monthly expenses", which total $2,034. She states that in the future she would require:

(a)

Payout existing liabilities:

$ 63,100

(b)

Ongoing medication & living expenses
Weekly costs: $286
Current age: 53 years
Medium life expectancy: 35 years
3% table of multiplier: 1138.0
Discount for vicissitudes: 15%
$286 x 1138 x 85%:

$277,370

(c)

Reimbursement of funeral costs:

$ 4,194

Total:

$344,665

In her updating affidavit of 23 February 2012, Andriani states that she owes $288 to Energy Australia, and $390 to Telstra.

She should receive, upon the sale of the Alexandria property, the reimbursement of the amount she contributed for Stella's funeral ($4,194).

Dimitra says that she lost her employment contracts at the end of March 2012. However, she is currently assisting her husband in his new business venture. In about April 2012, her husband started a business of the sale and marketing of computer consumables and cleaning chemicals. The company, through which the business operates, now has about 10 employees and a monthly turnover of about $50,000. She says that the company is making a loss. Although her position is part time, she hopes it will become a full time position.

Her husband is a director of the company and he owns it. (She denied having any shares in the company.)

Dimitra stated that her current net weekly income, paid by the company, is $600, as is her husband's. She and her husband operate their home, assets and liabilities jointly and share expenses.

She states she has the following joint assets with her husband:

(a)

Family home

$1,100,000

(b)

Lexus (est)

$ 40,000

(c)

Toyota (est)

$ 10,000

(d)

Household furniture (est)

$ 30,000

Total

$1,180,000

She should receive, upon the sale of the Alexandria property, the reimbursement of the amount she contributed for Stella's funeral ($4,112).

When asked about superannuation, she said that she thought that both she and her husband had some, but was unable to provide even an estimate of the amount held for either of them.

She states she has the following joint liabilities with her husband:-

(a)

Mortgage

$567,000

(b)

American Express card

$ 12,000

(c)

St George Visa card

$ 4,000

Total

$583,000

She details her and her husband's joint weekly expenses, which total $2,738. She does not explain the source of the amount of the expenditure in excess of income.

Dimitra sets out her "needs" and concludes that the estimate of some of those "needs" total $409,500.

Soumela has three children aged 23, 18 and 13. Her oldest child is a primary school teacher working on a part time/casual basis, However, Soumela and her husband continue to support her financially. Her middle child is a member of the Australian Defence Force but is yet to be deployed. Her youngest child is in his first year of high school.

Soumela works as an executive assistant and earns $1,027 per week. Her husband is a self-employed consultant finance broker.

She gave evidence that she and her husband are separated under the one roof and that they stay together for the benefit of the children. She does not know anything about her husband's current financial position. (Through lawyers, they are discussing a property settlement, but no agreement has yet been reached.)

The joint assets of Soumela and her husband are:

(a)

Family home (in name of her husband)

$850,000

(b)

St George Bank

$ 1,000

(c)

Household furniture

$ 50,000

(d)

2004 Jaguar

$ 10,000

Total

$911,000

She should receive, upon the sale of the Alexandria property, the reimbursement of the amount that her husband contributed for Stella's funeral ($4,112).

Their joint liabilities are:

(a)

Mortgage

$720,000

(b)

NAB overdraft

$ 50,000

(c)

CBA overdraft

$ 50,000

(d)

American Express card

$ 25,000

(e)

Visa card

$ 20,000

(f)

Coles Myer MasterCard

$ 10,000

(g)

David Jones card

$ 2,000

(h)

Visa card

$ 20,000

(i)

Visa card

$ 25,000

(j)

Visa card

$ 4,500

(k)

Capital Finance

$ 10,000

(l)

School fees (arrears)

$ 10,000

(m)

College fees (arrears)

$ 2,000

(n)

Credit Line (cash card)

$ 6,500

Total

$955,000

It is clear, from her cross-examination, that some of the debts stated to be joint, are, in fact, the debts of her husband.

She details their combined weekly expenses, which total $3,547.

She does not explain the source of the amount of the expenditure in excess of income.

She gave evidence that her husband has recently been served with a demand from the mortgagee of the former matrimonial home. Her husband gave evidence that he is currently attempting to refinance their loans, although if they are unable to do so, the home (in which she and her children live) will have to be sold.

Her oldest child, who now works as a teacher, does not pay board.

Soumela gave evidence that she wishes to keep her youngest child at the private school that he is attending.

Soumela sets out her "needs" and concludes that the estimate of some of those "needs" total $385,000.

Helen is paying $270 rent per fortnight. She receives a Disability Support Pension of $466 per fortnight, which is her only source of income.

Helen details her weekly living expenses, which total $454.

She states that her living expenses exceed her income and that she often goes without. She also relies on friends for assistance at various times.

Helen outlines her assets as follows:

(a)

Westpac Bank account:

$ 0.04

(b)

Household furniture:

$2,000.00

She states her liabilities are as follows:

(a)

Centrelink loan for medication:

$1,000

(b)

Personal loans from friends:

$1,500

(c)

Second personal loan:

$ 300

Total:

$2,800

Helen outlines the following future needs as follows:

(a)

Repay Centrelink debt & loans to friends:

$ 2,800

(b)

Ongoing medication & living expenses
Weekly costs: $455
Current age: 59 years
Medium life expectancy: 29 years
3% table of multiplier: 1027.2
Discount for vicissitudes: 15%
$455 x 1027.2 x 85%:

$397,400

(c)

Knee replacement surgery:

$ 20,000

(d)

Ongoing medication (less vicissitudes discount):

$ 43,655

(e)

Removalist costs to a ground floor dwelling:

$ 3,000

(f)

An annual holiday:

$ 26,190

(g)

New furniture and television:

$ 5,000

(h)

Taxi fares:

$ 65,400

(i)

Purchase of a ground floor unit:

$300,000

Total:

$863,445

Each of the children has an interest in Stella's Greek property to which I have earlier referred.

(e) if the applicant is cohabiting with another person-the financial circumstances of the other person,

Asimina lives with her son in the Alexandria property. He is a student.

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated

Asimina states her health is very poor and she suffers from:

(a)

A shoulder supraspinatus to the rotator cuff/frozen shoulder;

(b)

Chronic Post Traumatic Stress Disorder (PTSD);

(c)

Chronic Fatigue Syndrome (severe fatigue);

(d)

Chronic Pain Syndrome of the neck and lower back with permanent impairment;

(e)

Depression;

(f)

Panic/Anxiety attacks;

(g)

Raynauds Phenomenon Disease;

(h)

Fibromyalgia with associated pain and fatigue;

(i)

Carpal Tunnel Syndrome and Tendonitis;

(j)

Generalised Anxiety Disorder;

(k)

Insomnia;

(l)

Nausea;

(m)

Subluxation;

(n)

Musculoskeletal and discopathy;

(o)

Knee pain (locking and crepitus);

(p)

Vascular Varicose Veins; and

(q)

Migraines.

She obtains some emotional support from representatives of the Salvation Army. In particular, she has received regular support from a "Money Care counsellor" since late 2008.

She has seen a registered psychologist who has provided a report dated 18 May 2011, in which she confirms that Asimina suffers from Generalised Anxiety Disorder as well as Post Traumatic Stress Syndrome "as a result of her difficult childhood, bullying in her workplace and continual harassment from her siblings" and that "her stress has been exacerbated by financial insecurity and the threat of eviction from her family home". The report concludes:

"If these problems were addressed, she may be able to move on in her therapy and eventually rejoin the workforce".

There is also a medical report dated 23 May 2011, from Asimina's treating doctor (since 1986), which confirms the medical conditions set out above.

Finally, there is a report of a surgeon relating to her varicose vein condition and whether, and if so, when, surgery should be performed.

Thomas suffered a work injury in about 1976, following which he has suffered from epileptic fits. In March 1983 he underwent an operation to remove a tumour on his brain.

Helen sustained a fall in November 2003, which led to pain in her neck and both knees. She suffers from severe depression. She has been diagnosed with osteoarthritis in the neck and both knees which prevents her from working and carrying out activities of normal living.

She continues to take painkilling medication, including Mobic and Celebrex, as well as Neurofen, Aspro and Panadol Osteo. She also has a number of cortisone injections on a weekly basis in both knees. She has also experienced a build up of fluid in both knees, which has required her admission to hospital for fluid extraction on four (4) occasions.

Her doctor has advised her that she should have both knees replaced but she has been putting this off. She does not have any money available to pay for such surgery, as she is entirely dependant on the public health system.

Her quality of life is severely affected. She states that she is in constant pain. She finds it difficult to get in and out of the seated position. She states that it is very painful for her to walk up and down stairs. Her apartment is on the first floor and she is not sure how much longer she will be able to continue to live there as it is becoming increasingly difficult to climb the stairs.

Because of her circumstances and the pain she has from her knees, she feels anxious and depressed. She had been prescribed an anti-depressant medication some time in 2003, she has now gradually come off that medication.

Andriani was involved in a motor accident in about 2008 and suffered injuries to her neck and right shoulder, she also suffered facial injuries, including broken teeth. She resumed work until February 2009. She has had time away from work due to depression and anxiety, for which she has been hospitalised on a number of occasions.

She continues to suffer from anxiety, depression, constant lethargy, skin irritations, body sweats, hot flushes, headaches and constant fatigue.

She takes Avanza and Cortizone creams for her skin.

Maria has been in receipt of workers compensation payments since a work accident in 1998. She describes her husband as her "carer". She does not state her current medical condition.

(g) the age of the applicant when the application is being considered

Asimina is currently aged 50 years, having been born in August 1962 .

Asimina's son is currently aged 15 years, having been born in 1997.

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant

Asimina asserts the following financial assistance made for Stella and other family members:

"32. ...

(a) Payment of Dimitra's engagement dress which cost approximately $300, the wedding bands which cost approximately $1,000 and contribution towards the wedding fees and bonbonnieres in the approximate amount of $1,500;

(b) Payment of half the household bills and utilities including electricity, water, council rates, telephone, home and contents insurance, food and groceries. I attended to payment of all the household bills and utilities from 2003 onwards;

(c) Purchase of baby clothes and baby furnishings for my niece and goddaughter Stella;

(d) Payment of the Christening costs and birthday parties for my niece Stella;

(e) I also gave my mother:

(i) $50 each week to help support Dimitra, her daughter Stella and her husband Michael as her husband Michael was not working at the time and attending technical college; and

(ii) $20 each week to my mother to support Emelie (my sister Andrianni's daughter) who had moved into the Alexandria Property after running away from home.

(f) Payment of enrolment and other associated fees for my niece Stella in a Talent School for jazz, tap dancing and drama for approximately seven-(7) years. Yearly fees commenced at $1,000 and increasing.

(g) Travel expenses and airfares and accommodation to Greece for my mother, Dimitra and me in or about 1986 ...

(h) Travel expenses and airfares to Greece for my mother, Dimitra and my nice Stella in or about 1992 including travel between various Greek Islands and shopping in the amount of approximately $10,000;

(i) Enrolment, school fees and other associated educational fees for my niece Stella in a Private Girls School, SCEGGS Darlinghurst for approximately two-(2) years in the amount of approximately $20,000;

(j) School uniforms, clothes, contributions towards school fees and educational books and aids for Stella from birth until 15 years of age to the total approximate amount of $30,000;

(k) Nail Course for my sister Dimitra in or bout 1993 in the approximate sum of $1,500; and

(l) Travel expenses and airfares to Greece for my mother, Dimitra and my niece Stella and me in or about early 1994 to visit my father who had fallen ill with pneumonia, in the amount of approximately $10,000;

(m) $100 per week to my niece, Emelie to collect Stella from afterschool care in 1996 and onwards as I was pregnant and suffering from Sciatica and unable to walk at the time as I would ordinarily and otherwise collect Stella from school myself. Emelie was a single mother who was not employed, who had a car and I offered her the extra money to help her out; and

(n) Approximately $250 per month to my mother since in or about 2003 to 2008 and in addition purchase of clothing and personal items; and

(o) Purchase of household furniture and general household items."

She says that even when she went to Canada, where she worked, she continued to provide financial assistance to Stella of $200 per month as well as purchasing clothes for Stella, Dimitra and Dimitra's daughter.

She also said that from 2003, she paid all of the household's utility bills.

Asimina says she provided some financial assistance to Michael also. She says:

"111. Each time I visited my father in Greece, I assisted my father financially with household/living expenses and groceries and I bought him clothes and gifts from Australia. I also gave money (cash) to my father. I recall:

(a) in about 1992, I also gave him AUD$500;

(b) in about early 1994, I paid for the food and groceries while my mother, myself, my sister Dimitra, my niece Stella and I stayed with my father while he was recuperating from pneumonia and I gave him AUD$1,000; and

(c) in about July 1989, I gave my father AUD$1,000 to assist him with food and other items he needed and to pay for a council fine as he had spent a lot of money refurbishing our house.

112. Prior to returning to Australia in 1989 from Canada, I stopped over in Greece to visit my father who was living alone in our property in Selinia, Salamina. I bought my father clothing, food, groceries, toiletries and other gifts from Canada. During my stay with my father for a period of three-(3) weeks:

(a) I took my father to the Australian Embassy in Greece to have his passport replaced which I paid for and cost approximately AUD$200; and

(b) We went out for lunch and dinner.

113. Between in or about 1986 and 2006, I sent between $200 and $300 to my father and I also purchased gifts and clothing for him from Australia which I sent to him in Greece.

...

156. In or about 1993, after discussions with and at the direction of my mother, I engaged the services of George Conomos & Associates in relation to renovations to the Alexandria Property. I paid the approximate sum of $2,500 to George Conomos & Associates for the work completed in relation to drawings, measurements, design costs and council approval."

Asimina says that she also contributed to the maintenance and repair of the Alexandria property. She says:

"156. In or about 1993, after discussions with and at the direction of my mother, I engaged the services of George Conomos & Associates in relation to renovations to the Alexandria Property. I paid the approximate sum of $2,500 to George Conomos & Associates for the work completed in relation to drawings, measurements, design costs and council approval.

157. Throughout the years, I have also paid for or contributed to the following renovations / improvements to the Alexandria Property:

(a) Repair of termite invested floorboards (valued at $10,000);

(b) Wall to Wall wardrobes (valued at approximately $5,000);

(c) Security bars on windows (valued at approximately $2,000);

(d) Cementing the backyard (valued at approximately $1,000);

(e) Rebuilding brick fence at the back and side of the property (valued at approximately $2,000);

(f) Fix roof on property with galvanized iron (valued at approximately $2,000);

(g) Painting and maintenance work including plumbing and electricity (valued at approximately $2,000) ..."

I have earlier dealt with the payment of $10,000 for the repair of termite- infested floorboards. In these other respects, her evidence was not the subject of significant challenge.

Asimina does not suggest that her son made any financial contribution to the estate of either Stella or Michael.

(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate

By providing accommodation at a reduced, or no rent, each of Stella and Michael, during her and his lifetime, made provision for Asimina and Asimina's son. The provision of that accommodation extended over many years. The value of such subsidised accommodation, during the lifetime of Stella and Michael, cannot be calculated, but bearing in mind its duration, it was a valuable benefit provided by each to Asimina and Asimina's son.

Similarly, by virtue of having remained in possession of the Alexandria property, since the death of Stella, provision has been made since 2008 for each of them. Based upon the evidence of value of notional rent of the Alexandria property since the death of Stella, the value of such subsidised accommodation is estimated to be in excess of $100,000.

Asimina says that Michael gave her a piece of jewellery, a gold cross and a gold chain.

As previously stated, Asimina receives 14.28 per cent of the estate of Stella. For the reasons to which I shall later refer, she will receive the same percentage of Michael's estate or if there is an intestacy, about 3.6 per cent of it.

As previously stated, Asimina's son receives nothing out of the estate of the deceased, unless a family provision order is made.

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

While this sub-section permits the court to accept evidence of the reasons for the provision, or lack of provision, it does not compel the court to attribute any particular weight to that evidence, or to accept the deceased's statement as establishing the truth of what is asserted.

I have referred to the only documents that reveal the testamentary intentions of Stella and of Michael.

There is evidence of a will made by Stella on 19 February 2003, in which she appointed Dimitra as the substitute executrix and gave her interest in the Alexandria property to her seven named children who survived her, in equal shares. She gave the rest and residue of her property, in Australia, also to her seven children in equal shares.

There is no evidence of any earlier Will dealing with Stella's property in Greece.

I have referred to Michael's Australian Will.

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the court considers it relevant, the extent to which and the basis on which the deceased person did so

There is no evidence that either Asimina or Asimina's son was being maintained, either wholly or partly, by Stella, or by Michael, immediately before her, and his, death respectively, other than as previously referred to.

(l) whether any other person is liable to support the applicant

Other than the Commonwealth government's responsibility to provide Asimina with a pension, at the time she becomes entitled to it, there is no other person with a liability to support Asimina.

The father of Asimina's son does have an obligation to support Asimina's son.

(m) the character and conduct of the applicant before and after the date of the death of the deceased person

The conduct referred to by Thomas is the failure to vacate the Alexandria property. I have dealt with this earlier.

Otherwise, counsel for Thomas acknowledged that there was no conduct of a disentitling nature, or of a nature that reduced provision before or after the death of the deceased that was otherwise relevant.

(n) the conduct of any other person before and after the date of the death of the deceased person

I am satisfied that there is nothing in the conduct of any of the other children of Stella and Michael. Each had a close and loving relationship with his, and her, parents and each is a chosen object of testamentary bounty.

(o) any relevant Aboriginal or Torres Strait Islander customary law

This is not relevant in the present case.

(p) any other matter the court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered

There are no other matters that I consider relevant.

Determination

In respect of the administration proceedings, I have earlier set out the parties' agreement in respect of the administration of Michael's estate in Australia. In the circumstances, and as there will be little to do other than distribute that estate, there should be a grant of letters of administration to Thomas.

I am satisfied that the Greek Will is a valid foreign Will and that letters of administration with that Will annexed should be granted to Thomas. The proceedings should be referred to the Deputy Registrar in Probate to complete the grant.

In relation to the construction of the Greek Will, I am satisfied that the deceased intended the gift of the one quarter share of "the house", to which I have referred, to mean the share of the house in Greece, which he had inherited, in which he and Ludmila lived, to Ludmila absolutely, and that he intended his Australian property, being "the remainder", to be divided equally between his seven children.

In circumstances where there is no suggestion that he had any other property in Greece (that is that he only had a one quarter share of the Greek house and no other property, real or personal), the reference to "the remainder" can only be to his interest in the Alexandria property. There is nothing in the Greek Will that satisfies me that he had any intention to leave any share of his interest in the Alexandria property to Ludmila.

I of the view that he would not have intended to die intestate in respect of the Alexandria property.

The revocation proceedings, brought by Thomas and Maria, in the events that have happened, should be dismissed.

Being an "eligible person" is a necessary precondition to the court being empowered to make an order for the maintenance, education or advancement in life of the eligible person.

There is no dispute that Asimina, as a child of Stella and of Michael, is an eligible person.

Whilst there is no dispute that Asimina's son is a grandchild of each of Stella and of Michael, there is a dispute whether he was wholly or partly dependent upon Stella at any particular time. (It is conceded that he was not dependent upon Michael.)

On this issue, I am satisfied that Asimina's son was not wholly or partly dependent upon Stella. To the contrary, I find he was dependent on Asimina. There is no evidence that might lead to a finding of dependency, other than the fact that he was living with Asimina in a property co-owned by Stella, and that he had a close relationship with Stella. In my view, that is not enough. Accordingly, he is not an eligible person in respect of Stella's estate.

There was also a significant dispute, in the event that I found Asimina's son to be an eligible person in respect of Stella's estate, that there were factors warranting the making of his application.

Even if I am wrong in relation to my conclusion that Asimina's son is not an eligible person in respect of Stella's estate, I would not find that there were any factors warranting the making of his application. Overall, I am not satisfied that Stella had come to assume, for some significant time in the life of Asimina's son, a position more akin to that of a parent than a grandparent, with direct responsibility for his support and welfare, or else, that she had undertaken a continuing and substantial responsibility to support him financially or emotionally. There is very little to suggest that their relationship was closer than what might be suggested to be a usual grandparent and grandchild relationship.

It is unnecessary to consider this question in relation to Asimina's son's claim in respect of Michael's estate, since it was acknowledged that Asimina's son is not an eligible person in respect of Michael's estate.

Also, in my view there are no factors which warrant the making of his application in relation to Michael's estate.

His claim for a family provision order, in respect of each estate, must be dismissed.

The next question I must determine relates to an extension of time for the making of Asimina's applications.

In my opinion, sufficient cause has been established which, in all the circumstances, justifies an order for the extension of time. In so deciding, I have not overlooked Asimina's evidence that she was aware of the time period for making each application, but I do not regard her knowledge as fatal: Taylor v Farrugia, at [23], per Brereton J). I do so because I have come to the view that I express below.

In relation to her reasons for not making a claim, I am satisfied that there may have been some misunderstanding about whether her claim, in relation to each estate, had, in fact, been, and then after the time had expired, whether it could be, made.

I am also satisfied that she was not given advice, in express terms, upon whether she should, or should not, make a claim.

When she became aware that a claim for a family provision order could be made, albeit outside the time prescribed by the former Act and the Act, she moved relatively quickly to make the claim in each estate.

I have earlier referred to a lack of prejudice suffered by any of the beneficiaries. To the extent that they have not received any share of any rent or occupation fee, I shall take into account the benefit received by Asimina in occupying the Alexandria property following the death of Stella and then following the death of Michael.

For the further reason that follows, an order extending time for the making of Asimina's application should be made. To do otherwise, as will be seen, would prevent a family provision order, in her favour, in each case, being made.

The former Act requires that the court "shall not make an order ... unless it is satisfied that" the provision made by the testator is "inadequate": s 9(2). The Act provides that the court "may ... make a family provision order ... if the Court is satisfied that" the testator has not made "adequate provision" for the applicant: s 59(1).

It is necessary to bear in mind the subtle difference of wording in the two Acts.

In the circumstances, I shall make specific findings on the questions posed by Barrett JA in Andrew v Andrew, at [76], in relation to Stella's estate and, at [81], in respect of Michael's estate.

In relation to Stella's estate, I have earlier referred to the extent of the provision, by way of accommodation, made in favour of Asimina during Stella's lifetime. Similar provision was not provided to any of her other children. Permitting her to remain rent/occupation fee free for the time that she did, was, in my view, substantial provision.

I have also identified the extent of the provision made in favour of Asimina out of the estate by Stella's Will. (The operation of the intestacy laws does not apply since Stella left a Will that disposed of the whole estate of her estate.) As stated, Asimina receives 14.28 per cent of that estate.

I am of the opinion that the provision made during her lifetime, and under Stella's will, for the proper maintenance, education and advancement in life of Asimina, is inadequate, bearing in mind all of the matters that should be considered. I note that, whereas each of the children, other than Helen owns a home, Asimina does not. Whereas none of the other children, other than Soumela, has any minor children to support, Asimina does. Furthermore, each of the others, with the exception of Helen, and perhaps, Soumela, seem to be better off, financially, than does Asimina. In the case of each of the daughters, other than Helen, and perhaps, Soumela, she has the support and assistance of a spouse. (Soumela's husband is trying to assist in ensuring that the home in which she lives with their children is not sold. They have not yet had a property settlement.)

In view of my conclusion regarding inadequacy, I turn then to the evaluative judgment, being what provision, if any, ought, having regard to circumstances at the time of the making of the order, to be made out of Stella's estate for the maintenance, education or advancement in life of Asimina. In reaching my conclusion, I take into account the discretionary factors, referred to in s 9(3)(a) to (d) of the former Act and the competing claims of each of Asimina's siblings. I must also take into account the fact that Asimina has made a claim in respect of Michael's estate.

In my view, Asimina, instead of receiving 14.28 per cent of Stella's estate, should receive 25 per cent of that estate. By way of example, that would mean the share of each of her six siblings, if he and she bear the burden of that additional provision equally, will be reduced by about 2 per cent. Using the gross estimate of $391,776, that percentage will yield about $97,944 out of Stella's estate. (Of course, it will be less after the deduction of costs.)

In relation to Michael's estate, I have earlier referred to the extent of the provision made in favour of Asimina during his lifetime in regard to accommodation. That provision was not made for his other children. Permitting her to remain rent/occupation fee free for the time that she did, was, in my view, substantial provision.

I have also noted the extent of the provision made in favour of Asimina out of the estate by Michael's Greek Will. (The operation of the intestacy laws does not apply for the reasons expressed previously.) As stated, she receives 14.28 per cent of that estate.

I am of the opinion that the provision made during his lifetime and under Michael's Greek will for the proper maintenance, education and advancement in life of Asimina, is inadequate, bearing in mind all of the matters that should be considered. I have referred to the matters under s 60(2) of the Act.

I must, however, remember the provision that I have made for Asimina out of Stella's estate. That will improve her financial resources. I also remember the competing financial and other claims of Asimina's siblings upon Michael's estate.

In my view, Asimina, instead of receiving 14.28 per cent of Michael's estate, should receive 21 per cent of Michael's estate. By way of example only, that will mean the share of each of her six siblings, if he and she bears the burden of that additional provision equally, will be reduced by about 1 per cent. Using the gross estimate of $404,854, that percentage will yield about $85,019 out of Michael's estate. (Of course, it will be less after the deduction of costs.)

The total of the amounts that she receives will enable her to repay her debts and will leave a modest capital sum for exigencies of life.

It will be appreciated that the estimates of amount provided can, at this stage, be no more than estimates only, since the Alexandria property has not been sold and the burden of costs has not been determined.

There was a suggestion that Thomas, Dimitra and Maria, should bear a greater share of the burden of provision, than should Adriani and Helen, and that Soumela should bear no share of that burden. I am prepared to hear further short submissions on how the burden of the provision should be borne in the event that Asimina's siblings are unable to reach agreement. I would hope, however, that they will be able to reach agreement and I shall give them an opportunity to do so.

Provided the amounts to which Asimina is entitled out of each estate is paid to her within 28 days of the settlement of the sale of the Alexandria property, or such other time as the Court orders, or the parties agree, no interest is to be paid; otherwise, interest calculated at the rate prescribed by s 84A(3) Probate and Administration Act 1898, on unpaid legacies, is to be paid from that date until the date of payment.

The issue of the costs of all parties shall be determined after further submissions, unless agreement is reached between them.

The Exhibits should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 following the determination of the costs of the proceedings.

In view of the fact that the Alexandria property is to be sold, and because there may be a dispute as to costs, I direct the parties to bring in short minutes that reflect the conclusions to which I have come.

I shall stand the matter over to a convenient date to the parties and the Court.

**********

Amendments

14 December 2012 - Dates removed

Amended paragraphs: 327

Decision last updated: 14 December 2012

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 Fry v Lukas; Brown v Fry; Estate of Honey; Application of Fry [2011] NSWSC 1329 Foley v Ellis [2008] NSWCA 288 Fulop Dec'd, Re (1987) 8 NSWLR 679 Gardiner v Gardiner (NSWSC, 28 May 1998, unreported) Glynne v NSW Trustee and Guardian; Lindsay v NSW Trustee and Guardian [2011] NSWSC 535 Goodman v Windeyer (1980) 144 CLR 490 Gorton v Parks (1989) 17 NSWLR 1 Grace v Grace [2012] NSWSC 976 Hakim, Re Estate of; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223 Harrison, In re (1885) 30 Ch D 390 Hawkins v Prestage (1989) 1 WAR 37 Hill v Plummer; In The Estate of Masters (1994) 33 NSWLR 446 Hughes v National Trustees Executors and Agency Co. of Australasia Ltd (1979) 143 CLR 134 Hyland v Burbidge [2000] NSWSC 12 Kalamunda Meat Wholesalers Pty Ltd v Reg Russell & Sons Pty Ltd (1994) 51 FCR 446 Kalmar v Kalmar [2006] NSWSC 437 Kay v Archbold [2008] NSWSC 254 Keep v Bourke [2012] NSWCA 64 Kembrey v Cuskelly [2008] NSWSC 262 Kirby v Sims [2011] NZHC 935 Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Leue v Reynolds [1986] 4 NSWLR 590 Lumsden v Sumner [2012] NSWSC 1440 MacGregor v MacGregor [2003] WASC 169 (28 August 2003) McCosker v McCosker (1957) 97 CLR 566 McGrath v Eves [2005] NSWSC 1006 McKenzie v Baddeley [1991] NSWCA 197 Madden-Smith v Madden [2012] NSWSC 146 Malone v Runge [2012] NSWSC 1032 Marks v Marks [2003] WASCA 297 Mavrideros v Mack [1998] NSWCA 286; (1998) 45 NSWLR 80 Mayfield v Lloyd-Williams [2004] NSWSC 419 Moore v Randall [2012] NSWSC 184 O'Brien v Warburton [2012] WASC 82 O'Dea v O'Dea [2005] NSWSC 46 Palaganio v Mankarios [2011] NSWSC 61 Pearson v Jones [2000] NSWSC 799 Penfold v Perpetual Trustee [2002] NSWSC 648 Petrohilos v Hunter (1991) 25 NSWLR 343 Polistena v Mitton; Agnew v Mitton [2011] NSWSC 931 Pontifical Society for the Propagation of the Faith v Scales [1962] HCA 19; (1962) 107 CLR 9 Porthouse v Bridge [2007] NSWSC 686 Puckridge, Deceased, in the Estate of (1978) 20 SASR 72 Sayer v Sayer [1999] NSWCA 340 Scarlett v Scarlett [2012] VSC 515 Shaw v Lambert (NSWSC, 9 October 1987, unreported) Shaw v Shaw [2003] VSC 318; (2003) 11 VR 95 Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 Skinner v Frappell [2008] NSWCA 296 Smilek v Public Trustee [2008] NSWCA 190 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 Stiles v Joseph (NSWSC, 16 December 1996, unreported) Stott v Cook (1960) 33 ALJR 447 Taylor v Farrugia [2009] NSWSC 801 Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 Thomson & Anor (as trustees of the trusts established pursuant to the will of Shine (deceased)) [2010] QSC 167 Tramantana v Harborne; Clarke v Harborne; Midson v Harborne [2011] NSWSC 1129 Tsivinsky v Tsivinsky [1991] NSWCA 269 Verzar v Verzar [2012] NSWSC 1380 Vigolo v Bostin [2005] HCA 11; (2005) 221 CLR 191 Walker v Walker (NSWSC, 17 May 1996, unreported) Wilcox v Wilcox [2012] NSWSC 1138 Yazbek v Yazbek [2012] NSWSC 594
Category:	Principal judgment
Parties:	Thomas Kallidis Maria Tsiougos Asimina Kallidis Michael Kallidis (by his next friend Asimina Kallidis)
Representation:	Counsel: Mr A Hill (Plaintiffs in 2010/141165 & 2010/398463 & Defendants in 2011/186870) Mr R Wilson (Plaintiff in 2011/186870 & Defendant in 2010/141165 & 2010/398463) Solicitors: Villari Lawyers (Plaintiffs in 2010/141165 & 2010/398463 & Defendants in 2011/186870) Teece Hodgson & Ward (Plaintiff in 2011/186870 & Defendant in 2010/141165 & 2010/398463)
File Number(s):	2010/141165; 2010/398463; 2011/186870

(a)	Home at Chester Hill (est)	$450,000
(b)	Furniture & fittings (est)	$ 5,000
(c)	Investment account	$ 3,000
(d)	2000 Toyota van (est)	$ 3,000
Total	$461,000

Assets
(a)	Canterbury property (joint)	$400,000 (approx)
(b)	Belmore property (husband's property)	$400,000 (approx)
(c)	St George Bank account	$ 48,000
(d)	St George Bank account (day to day)	$ 3,000

Assets:
(a)	CBA account:	$27,000
(b)	Furniture, clothing & jewellery:	$23,000

Liabilities:
(a)	Personal loan:	$ 3,800
(b)	Master card:	$ 9,000
(c)	MasterCard:	$17,000
(d)	David Jones Amex card:	$ 7,000
(e)	MasterCard:	$ 1,000
(f)	MasterCard:	$ 5,300
(g)	Car Finance:	$20,000
Total:	$63,100

(a)	Payout existing liabilities:	$ 63,100
(b)	Ongoing medication & living expenses Weekly costs: $286 Current age: 53 years Medium life expectancy: 35 years 3% table of multiplier: 1138.0 Discount for vicissitudes: 15% $286 x 1138 x 85%:	$277,370
(c)	Reimbursement of funeral costs:	$ 4,194
Total:	$344,665

(a)	Family home	$1,100,000
(b)	Lexus (est)	$ 40,000
(c)	Toyota (est)	$ 10,000
(d)	Household furniture (est)	$ 30,000
Total	$1,180,000

(a)	Mortgage	$567,000
(b)	American Express card	$ 12,000
(c)	St George Visa card	$ 4,000
Total	$583,000

(a)	Family home (in name of her husband)	$850,000
(b)	St George Bank	$ 1,000
(c)	Household furniture	$ 50,000
(d)	2004 Jaguar	$ 10,000
Total	$911,000

(a)	Mortgage	$720,000
(b)	NAB overdraft	$ 50,000
(c)	CBA overdraft	$ 50,000
(d)	American Express card	$ 25,000
(e)	Visa card	$ 20,000
(f)	Coles Myer MasterCard	$ 10,000
(g)	David Jones card	$ 2,000
(h)	Visa card	$ 20,000
(i)	Visa card	$ 25,000
(j)	Visa card	$ 4,500
(k)	Capital Finance	$ 10,000
(l)	School fees (arrears)	$ 10,000
(m)	College fees (arrears)	$ 2,000
(n)	Credit Line (cash card)	$ 6,500
Total	$955,000

(a)	Westpac Bank account:	$ 0.04
(b)	Household furniture:	$2,000.00

(a)	Centrelink loan for medication:	$1,000
(b)	Personal loans from friends:	$1,500
(c)	Second personal loan:	$ 300
Total:	$2,800

(a)	Repay Centrelink debt & loans to friends:	$ 2,800
(b)	Ongoing medication & living expenses Weekly costs: $455 Current age: 59 years Medium life expectancy: 29 years 3% table of multiplier: 1027.2 Discount for vicissitudes: 15% $455 x 1027.2 x 85%:	$397,400
(c)	Knee replacement surgery:	$ 20,000
(d)	Ongoing medication (less vicissitudes discount):	$ 43,655
(e)	Removalist costs to a ground floor dwelling:	$ 3,000
(f)	An annual holiday:	$ 26,190
(g)	New furniture and television:	$ 5,000
(h)	Taxi fares:	$ 65,400
(i)	Purchase of a ground floor unit:	$300,000
Total:	$863,445

(a)	A shoulder supraspinatus to the rotator cuff/frozen shoulder;
(b)	Chronic Post Traumatic Stress Disorder (PTSD);
(c)	Chronic Fatigue Syndrome (severe fatigue);
(d)	Chronic Pain Syndrome of the neck and lower back with permanent impairment;
(e)	Depression;
(f)	Panic/Anxiety attacks;
(g)	Raynauds Phenomenon Disease;
(h)	Fibromyalgia with associated pain and fatigue;
(i)	Carpal Tunnel Syndrome and Tendonitis;
(j)	Generalised Anxiety Disorder;
(k)	Insomnia;
(l)	Nausea;
(m)	Subluxation;
(n)	Musculoskeletal and discopathy;
(o)	Knee pain (locking and crepitus);
(p)	Vascular Varicose Veins; and
(q)	Migraines.