Konstantin Philip German v Nicholas Germantsis
[2022] VSCA 157
•8 August 2022
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2022 0002 |
| KONSTANTIN PHILIP GERMAN | Applicant |
| v | |
| NICHOLAS GERMANTSIS | Respondent |
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| JUDGES: | NIALL, SIFRIS and WALKER JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 July 2022 |
| DATE OF JUDGMENT: | 8 August 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 157 |
| JUDGMENT APPEALED FROM: | German v Germantsis (Supreme Court of Victoria, Matthews AsJ, 7 December 2021) |
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SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – Caveats – Standing – Applicant son of deceased – 2013 will named applicant as executor and applicant’s mother, wife of deceased, as sole beneficiary – 2018 will revoked all prior wills – 2018 will named others as executors and beneficiaries – Trial judge held applicant lacked standing to lodge caveat against grant of probate of deceased’s estate – Applicant accepted below and on appeal that 2013 will was valid – Whether trial judge erred in considering 2013 will – Whether applicant could rely on ‘bare possibility’ that deceased died intestate – Whether applicant could rely on potential family provision claim – Whether applicant could bring proceedings on behalf of mother who was subject of administration order – No error established – Gardiner v Hughes (2017) 54 VR 394, applied – Administration and Probate Act 1958, s 58 – Application for leave to appeal refused.
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| Counsel | |||
| Applicant: | In person | ||
| Respondent: | Mr DJ Sanders | ||
| Solicitors | |||
| Applicant: | -- | ||
| Respondent: | Hartleys Lawyers | ||
NIALL JA
SIFRIS JA
WALKER JA:
The applicant in this case, Konstantin German, is the son of Naoum Germantsis (‘the deceased’) and the brother of the respondent, Nicholas Germantsis. The dispute between the brothers concerns the deceased’s will dated 6 April 2018 (‘the 2018 will’).
The deceased died on 12 February 2020. He was survived by his estranged wife, Elefteria Germantsis and their three sons: the applicant, the respondent and Steven Germantsis (who is not a party to this proceeding). Elefteria Germantsis is the subject of an administration order made by the Victorian Civil and Administrative Tribunal (‘VCAT’) on 15 January 2018. The administration order appointed State Trustees Limited (‘State Trustees’) as administrator for Ms Germantsis. The administration order was re-affirmed in 2020 and again in 2021. Neither State Trustees nor Ms Germantsis is a party to the present proceeding.
The respondent is a beneficiary under, and the executor of, the 2018 will. Neither the applicant nor Ms Germantsis is a beneficiary under the 2018 will. However, Ms Germantsis would be the sole beneficiary under an earlier will (‘the 2013 will’) if the 2018 will was held to be invalid; and the applicant would be the executor under the 2013 will.
The applicant filed a caveat against a grant of probate in relation to the deceased’s estate pursuant to s 58 of the Administration and Probate Act1958 (‘the Act’). He purported to act in furtherance of his own interests as a possible beneficiary of the estate, as well as on behalf of Ms Germantsis. The respondent contended that the applicant lacked standing to lodge the caveat and sought an order that the caveat be struck out. The question of standing was referred to an associate judge by McMillan J. On 7 December 2021 the associate judge (hereafter referred to as the trial judge) made a declaration that the applicant lacked standing to lodge or maintain the caveat, and a consequential order dismissing the caveat.
The applicant has sought leave to appeal from the orders below on several grounds. The grounds[1] are as follows:
(a)The trial judge erred in considering the 2013 will, given that the 2018 will had revoked ‘all prior wills’. Rather, there was a ‘bare possibility’ that, if the 2018 will was invalid, the applicant, as an adult son of the deceased with a potential family provision claim under pt IV of the Act,[2] could have an interest in the estate on the basis of the principles concerning intestacy. (Ground 1)
(b)The trial judge erred by not determining whether the 2018 will was legally valid or invalid, before relying on the revoked 2013 will in order to decide whether the applicant had standing. (Ground 2)
(c)The trial judge erred in concluding that there was ‘no basis for the proposition that the intestacy provisions of the Act would apply’, because there was evidence before the Court that intestacy was a very real possibility. That is because it is possible that neither the 2013 will nor the 2018 will is legally valid, and so it is possible that the deceased was intestate and that the applicant may have standing by way of a possible family provision claim under pt IV of the Act. (Ground 3)
(d)The trial judge erred in not accepting that Ms Germantsis was entitled to disregard the administration order, because it was not legally valid, and in not accepting that Ms Germantsis was entitled to appoint the applicant as her administrator and guardian and join in the caveat proceedings. (Ground 4)
(e)The trial judge erred in accepting the appointment of State Trustees as Ms Germantsis’ administrator, because VCAT did not have jurisdiction to make the administration order because Ms Germantsis was and is a resident of Western Australia. (Ground 5)
[1]For convenience, we will refer to proposed grounds of appeal as grounds of appeal.
[2]The applicant referred to a ‘TFM claim’, which we understood to be a reference to a ‘testator family maintenance’ claim. Orders of that kind are now known as ‘family provision orders’ under pt IV of the Act.
For the reasons that follow, we would refuse leave to appeal. In short, none of the grounds of appeal are made out. The issue before the trial judge was confined to the question whether the applicant had standing to lodge and maintain the caveat; her Honour correctly found that he did not.
Factual background
The 2018 will
The deceased made the 2018 will on 6 April 2018. It was witnessed by two lawyers.
(a)Clause 1 of the 2018 will revoked all prior wills and testamentary dispositions.
(b)Clause 2 of the 2018 will appointed Steven Germantsis and his wife, Victoria Germantsis, as executors of the estate.
(c)Clause 3 provided that, if Steven and Victoria were unwilling to act as executors, then the respondent was appointed as executor.
Under clause 6 of the 2018 will, the deceased left his estate to the respondent and Steven Germantsis in equal shares. (As noted earlier, neither the applicant nor Ms Germantsis was a beneficiary under the 2018 will.)
As matters transpired, Steven and Victoria Germantsis were unwilling to act as executors of the 2018 will. Thus the respondent is the executor of the 2018 will.
The deceased’s estate consists of a 37.5 per cent interest in a property at 5 Civic Drive, Greensborough, Victoria (‘the Greensborough property’), money in the sum of approximately $19,000, and household contents said to be of nominal value.
The 2013 will
The deceased’s previous will had been made in 2013. By reason of cl 1 of the 2018 will, the 2018 will superseded the 2013 will. The relevant provisions of the 2013 will were as follows:
(a)The 2013 will had appointed the applicant as executor and the respondent as the alternative executor.
(b)Under the 2013 will the whole of the deceased’s estate was to be left to Ms Germantsis, on the proviso that she survive the deceased by one month.
(c)In the event that Ms Germantsis predeceased the deceased, or failed to survive him by one month, cl 4 of the 2013 will bequeathed the deceased’s estate to his trustee to hold on trust for each of the deceased’s three children in equal shares.
As matters transpired, Ms Germantsis did not predecease the deceased or fail to survive him by one month.
Ms Germantsis’ circumstances
The applicant contended that Ms Germantsis is a resident of Western Australia. It is unclear on the materials before the Court whether that is correct, as a matter of fact or law. If it is correct, it is not clear when she commenced to live in Western Australia. However, as will become apparent, it is not necessary for this Court to resolve the question of Ms Germantsis’ prior or current residence.
The respondent’s evidence was that, on 30 November 2017, the applicant had applied to VCAT to be appointed as Ms Germantsis’ guardian and administrator. That application was refused.
As earlier noted, on 15 January 2018 VCAT made an order appointing State Trustees as administrator for Ms Germantsis (‘the administration order’). The basis for that order was that Ms Germantsis suffers from a disability (Alzheimer’s disease and dementia) such that she is unable to make reasonable judgements about her estate. The administration order was re-affirmed in May 2020, and again in May 2021. It remains on foot.
The respondent deposed that, since the making of the administration order, the applicant has brought a number of applications to VCAT seeking the removal of State Trustees as Ms Germantsis’ administrator, and seeking that he be appointed as her administrator. The applicant has not been successful in these applications. Further, the applicant has appealed the original decision of VCAT (made in January 2018) to the Supreme Court. That proceeding has not yet been resolved.
The separation of the deceased and Ms Germantsis
The deceased and Ms Germantsis separated in 2017, but did not divorce prior to the deceased’s death. In 2019 the deceased instituted proceedings against Ms Germantsis in the Federal Circuit Court of Australia (‘FCCA’). On 2 September 2019 the FCCA appointed State Trustees as Ms Germantsis’ litigation guardian and the respondent as the deceased’s litigation guardian.
The deceased and Ms Germantsis had a joint interest in the Greensborough property, being a combined 75 per cent share (the remaining 25 per cent is owned by the respondent). On 2 September 2019, the FCCA made consent orders requiring that the parties’ interest in the Greensborough property be sold by public auction and that the proceeds be distributed between the parties (‘September 2019 Orders’).
On 2 October 2019, Ms Germantsis filed an application in the FCCA, purportedly in her own name. The application sought orders that:
(a)State Trustees be removed as her litigation guardian and replaced by the applicant;
(b)the September 2019 Orders be struck out or varied so that Ms Germantsis receive the full legal interest in the Greensborough property; and
(c)the respondent be removed as the deceased’s litigation guardian, in favour of an alternate litigation guardian.
The two affidavits filed in support of the application were sworn by Ms Germantsis and the applicant.
Ms Germantsis’ FCCA application was dismissed by Stewart J on 29 October 2019. In her reasons, the judge expressed concern as to the true identity of the applicant and stated that she was ‘troubled’ that it appeared to have been Mr German who had provided instructions to Ms Germantsis’ solicitor, although ultimately her Honour noted that there was no direct evidence about that.
On 5 December 2019, Ms Germantsis brought an application seeking an extension of time in which to appeal the September 2019 Orders. State Trustees, as litigation guardian for Ms Germantsis, did not consent to that application and it was dismissed on 10 February 2020.
The proceedings below and the trial judge’s reasons
On 15 July 2020, the applicant lodged a caveat against a grant of probate in relation to the deceased’s estate, pursuant to s 58 of the Act. The respondent applied for probate of the 2018 will in August 2020.
The applicant filed written grounds of objection dated 11 February 2021. That was a lengthy document setting out numerous assertions and allegations about the relationships between the deceased and Ms Germantsis and their sons. In paragraphs [37] and [41] the applicant asserted that his brothers manipulated the deceased into making the 2018 will, taking advantage of his dementia and mental incapacity, and/or that there was undue influence exerted in the making of the 2018 will. At the end of the document, the applicant more succinctly stated three grounds of objection to the grant of probate, namely that:
(a)the deceased lacked testamentary capacity during the period shortly before and at the time of signing the 2018 will;
(b)when the deceased signed the 2018 will he acted under the undue influence of Steven Germantsis, Victoria Germantsis, lawyer Steven Thomas and the respondent; and
(c)the 2013 will was executed when the deceased had testamentary capacity.
The applicant sought orders that the 2018 will be declared null and void, that the 2013 will be declared to be the last will and testament of the deceased, and that money improperly withdrawn from Mr Germantsis’ bank account in 2017 be returned to her.
On 16 April 2021 the applicant filed a position paper.[3] It largely repeated what was in the written grounds of objection. It also addressed the applicant’s standing, as follows:
96.Konstantin Philip German (formerly Constantine Germantsis) is named as Executor and a Beneficiary in the event of the passing of his mother Elefteria Germantsis (the spouse of Naoum Germantsis) in the previous Will of Naoum Germantsis dated 16/10/2013 (see Annexure 6), which it is submitted was the last Will attested to at a time when Naoum Germantsis still had testamentary capacity.
97.Konstantin Philip German is the eldest biological son of Naoum Germantsis and as such, if it was deemed that there was no valid Will and the Court ruled that Naoum Germantsis was intestate, he would be able to claim to be a Beneficiary of the estate of his father as one of his rightful heirs.
…
99.Elefteria Germantsis has said that she would lodge her own Application to revoke the alleged Will of Naoum Germantsis dated 06/04/2108 except that State Trustees Ltd. would undoubtedly intervene to prevent her from being heard, claiming (falsely) that they are her legally appointed administrator and litigation guardian, as they have done on numerous occasions when Elefteria Germantsis has tried to be heard in Courts). The appointment of State Trustees Ltd. as administrator for Elefteria Germantsis by the Victorian Civil and Administrative Tribunal (VCAT) on 15/01/2018 was never legal, since VCAT have never had jurisdiction in relation to residents of WA, which was the case for Elefteria Germantsis, as ruled by the High Court of Australia in the case Burns v Corbett [2018] HCA 15.
[3]The position paper was prepared and served in accordance with orders made by Keith JR at the first directions hearing on 19 March 2021. The applicant also filed an amended position paper dated 10 May 2021. It was not marked up to show the amendments, but it does not appear that the applicant’s submissions concerning his standing were in substance different from the submissions here quoted.
On 14 May 2021 the respondent filed a position paper in which he contended that the applicant was seeking to use the probate proceedings to obtain remedies in relation to other matters, including the setting aside of the administration order in relation to Ms Germantsis, overturning the transfer of an interest in the Greensborough property to the respondent, setting aside the September 2019 Orders made by the FCCA and recovery of funds allegedly belonging to Ms Germantsis. The respondent contended that the applicant had no standing to lodge a caveat on behalf of Ms Germantsis, because her administrator was the only person entitled to act on her behalf.
At a directions hearing on 17 September 2021 in the proceeding below, State Trustees informed the Court that it did not seek to join or take part in the proceedings on behalf of Ms Germantsis as her administrator.
In October 2021 the applicant filed an outline of submissions concerning his standing to lodge and maintain the caveat and the respondent filed submissions in response, dealing with the applicant’s claim on his own behalf, as well as his claim to act on behalf of Ms Germantsis. The applicant also filed reply submissions, to the effect that his appointment as executor and trustee under the 2013 will was sufficient to give him personal standing, as well as repeating many of his earlier submissions concerning Ms Germantsis.
On 6 December 2021 McMillan J ordered that the matter of the applicant’s standing be referred to the trial judge for hearing and determination, pursuant to r 77.05 of the Supreme Court (General Civil Procedure) Rules 2015 (‘General Civil Procedure Rules’).
The trial judge concluded that the applicant did not have standing. Her Honour delivered ex tempore reasons for her decision, which were set out as Other Matters in the orders made. The trial judge recorded the applicant’s submissions, and her conclusions, as follows:
(a)First, the Caveator submits that, in light of his participation in this proceeding heretofore, the Court has already accepted or affirmed the Caveator’s standing. I reject this submission. Making procedural orders so as to determine the Caveator’s standing or for the orderly progress of the proceeding is hardly an acceptance of the Caveator’s standing.
(b)Second, the Caveator submits that Judicial Registrar Keith erred in accepting STL’s [State Trustees Limited] decision not to take part in these proceedings on behalf of Ms Germantsis on the basis that the VCAT Administration Order is invalid, and the subject of an extant appeal by the Caveator. This submission is also rejected as being without merit in the context of this matter.
(c)Third, the Caveator submits that, under Part IV of the Act, Ms Germantsis is entitled to intervene in this proceeding, and that the Caveator is acting at the behest of instructions received from Ms Germantsis in this respect. That may well be, but such is a matter for STL and any Part IV claim is of no relevance to this proceeding. I therefore reject this submission.
(d)Fourth, the Caveator asserts that this proceeding should be adjourned until certain documents, including the duplicate certificate of title for the Property and original copies of the 2018 Will and the 2013 Will (together, ‘the Wills’), are produced to the Caveator.
(e)Fifth, and in a similar vein, the Caveator submits that the Court should make an order for the discovery of certain documents by the Plaintiff, including the duplicate certificate of title for the Property and original copies of the Wills, or otherwise require the Plaintiff to advise as to the documents’ whereabouts. The Caveator further contends that the proceeding ought to be adjourned until such material is provided. This submission and the similar one in paragraph (d) above are rejected as they are not germane to the issue of standing.
(f)Finally, the Caveator submits that Judicial Registrar Keith erred by ‘demonstrating unfair bias in favour of’ the Plaintiff's solicitor, whom he alleges to be in contempt of Court for failing to comply with a subpoena filed by the Caveator on 6 July 2021. This too has no relevance to the issue of standing, even if there was any merit to the point (about which I have not been given any evidence).
In addition to these submissions, the Caveator has made a number of additional submissions in support of his standing to maintain the Caveat in his reply submissions dated 29 October 2021. These auxiliary submissions restate many of the submissions referred to above, and make a number of other scurrilous allegations which I need not set out here. Taken as a whole, I consider that the Caveator’s submissions misconceive and are otherwise extraneous to the concept of standing, seek to relitigate matters determined by the FCCA and VCAT, undermine the VCAT Administration Orders and the September 2019 Orders and misconstrue the provisions of the 2013 Will.
In addition, the trial judge recorded the following additional submissions made by the applicant, and her conclusions in relation to them. Relevantly for present purposes, her Honour recorded the following submission and her conclusion:
The Caveator says that he is a beneficiary under the 2013 Will, relying on clauses 3 and 4 of that will.
The Caveator says that as he is the eldest biological son of the deceased, if the Court rules that there was no valid will, then the deceased would be taken to have died intestate and he would be able to claim to be a beneficiary under the laws of intestacy. I presume that the Caveator relies on this to say that he has standing to lodge a caveat in his own right. However such a submission completely ignores the facts and that is that even though he seeks to impugn the validity of the 2018 Will, there is no challenge to the 2013 Will. Indeed, the Caveator seeks to propound it. Therefore, there is no basis for the proposition that the intestacy provisions of the Act would apply.[4]
[4]Emphasis added.
The trial judge recorded the submissions of the respondent (the plaintiff below) that the applicant did not have standing either in his own right, or on behalf of Ms Germantsis. Her Honour then held as follows:
I accept the Plaintiff’s submission that, on either view, the Caveator does not have standing to maintain the Caveat. It was clear from the Caveator’s oral submissions that he contends he has standing in his own right and on behalf of Ms Germantsis. If it was the intention of the Caveator to lodge and maintain the Caveat in his personal capacity, the terms of both wills make clear that the Caveator has no beneficial interest under either will, such that he has no ‘special interest’ in this Application and proceeding. As is made plain from the terms of the 2018 Will, the Caveator is not a beneficiary under the 2018 Will. Further, the Caveator was only named as the executor under the 2013 Will, which is insufficient to ground an interest for the purpose of standing, and stood to benefit from the 2013 Will only if Ms Germantsis predeceased the deceased or failed to survive the deceased by one month. This precondition did not transpire, and in this circumstance the Caveator has no beneficial entitlement under the 2013 Will. The Caveator’s submission that he is the beneficiary named in the 2013 Will is not accepted: his basis for that submission is misconceived and stems from a clear mis-reading of the 2013 Will.
In the alternative, if the Caveator is purporting to maintain the Caveat on behalf of Ms Germantsis, I accept the Plaintiff’s submission that the Caveator has no right to represent Ms Germantsis in any litigation or any other matter concerning her financial matters. The VCAT Administration Orders appointed STL as Ms Germantsis’ administrator, and STL has opted not to participate in this proceeding. The VCAT Administration Orders have the effect of precluding the Caveator from bringing proceedings on behalf of Ms Germantsis. That the validity of those orders is currently the subject of a challenge by the Caveator in this Court is neither here nor there for the purposes of this proceeding.
For these reasons, I consider that the Caveator does not have any, or any sufficient, standing to lodge a caveat under s 58 of the Act. The Caveat ought to be dismissed.
The trial judge refused the other relief sought by the applicant at trial, namely orders concerning the administration order, the transfer of land executed some time ago in relation to the Greensborough property, the setting aside of the September 2019 Orders, and the recovery of funds allegedly belonging to Ms Germantsis. The judge observed that those orders did not pertain to either of the wills and were not directed to the grant of probate, and the probate proceeding was not the appropriate means by which those matters could or should be pursued.
Grounds 1 and 2: the relevance of the 2013 will to the applicant’s standing
Grounds 1 and 2 allege that the trial judge erred in relying on the 2013 will as part of her analysis of the applicant’s standing. It is thus convenient to deal with these grounds together. We note that the second part of ground 1, as drafted, concerns the possibility of the applicant having standing by way of statutory provisions concerning intestacy, and the possibility of the applicant having a family provision claim; we will deal with those aspects of ground 1 when we deal with ground 3.
Section 58 of the Act permits ‘any person’ to lodge a caveat against the making of a grant of probate, in accordance with the Rules of the Supreme Court. Rule 8.01 of the Supreme Court (Administration and Probate) Rules 2014 requires a caveat to be in a form requiring only particulars of the deceased and the caveator. Unless the caveat expires or is withdrawn, the Registrar of Probates cannot grant probate without an order of the Court.[5] Notwithstanding the apparent breadth of s 58, the authorities make it clear that in order for a person to lodge and maintain such a caveat, they must have standing to do so; in the absence of standing, a caveat will be dismissed.[6]
[5]The Act, s 12(2)(a).
[6]See generally the survey of the authorities in Gardiner v Hughes (2017) 54 VR 394, 403–16 [38]–[87] (McLeish JA); [2017] VSCA 167 (‘Gardiner’).
This Court set out the key principles concerning the standing of a person in relation to a grant of probate or letters of administration in Gardiner, as follows:
First, in order to establish standing, an applicant for an order revoking a grant of probate or letters of administration must have a sufficient interest in the proceeding. Sufficiency of interest is established by showing that the applicant’s rights would or might be affected if the grant were to be revoked. The bare possibility of an interest will suffice.
Secondly, where the validity of more than one will is in issue, the applicant must establish standing by showing that his or her rights would or might be affected if the grant were to be revoked and the disputed wills were found to be invalid. Conversely, if there is a prior, undisputed will under which the applicant would derive no benefit, the applicant will lack standing to challenge the grant made in respect of the later will.
Finally, although an application for revocation is made in the proceeding in which probate or letters of administration were granted, there are cases in which the validity of more than one will has been put in issue in the same proceeding. Alternatively, prior wills might be in dispute in separate proceedings. By whatever procedural means the dispute has been raised, the principles stated above operate in the same manner.[7]
[7](2017) 54 VR 394, 417 [90]–[92] (McLeish JA, Tate and Kyrou JJA agreeing at 396 [1]–[2]); [2017] VSCA 167 (emphasis added) (citations omitted). That statement of the principles followed a thorough consideration of the relevant authorities.
Ground 1 is directed to the fact that the 2018 will revokes all other wills; thus, the applicant says, the 2013 will was revoked. It may immediately be observed that the applicant’s case below was that the 2018 will was invalid or should be set aside, and that the 2013 will was valid, being the last will made by the deceased before he was affected by dementia. That is, the applicant’s own case turned on the proposition that the 2013 will was the valid will, rather than the 2018 will. Ground 1 is thus inconsistent with the applicant’s case at trial. There was no error in the trial judge not considering an argument that was not put to her. For that reason, it must be rejected.
For completeness, we observe that it is plain that the trial judge did not err in considering the 2013 will; to the contrary, her consideration of it was entirely consistent with the principles set out by this Court in Gardiner. We also note that, in oral argument before us, although the applicant repeated his contention that the 2013 will is valid, he submitted that the bare possibility of an interest arises, not in his capacity as executor under the 2013 will, but rather as a result of either intestacy or a family provision claim.
Ground 2 is that the trial judge erred in relying on the 2013 will without having first determined that the 2018 will was invalid. This submission misunderstands the nature of the trial judge’s analysis. That analysis assumed for the purposes of argument that the applicant was correct that the 2018 will was invalid, and assessed whether the applicant stood to obtain any benefit as a consequence. The answer was that he did not, because he was not a beneficiary under the 2013 will (which he argued was valid, and which would have taken effect had the 2018 will been declared to be invalid). Thus the trial judge held that, even if the applicant was correct in his arguments concerning the validity of the 2018 will, he was not a beneficiary under the 2013 will and thus did not have standing. His status as executor under the 2013 will was not sufficient, without more, to give him standing. There is no appeal against this finding by the trial judge. Rather, as pointed out, the applicant relied upon intestacy and a family provision claim as supporting his interest. It is therefore unnecessary to consider whether an executor of a prior will has a sufficient interest to support the lodging of a caveat.
Her Honour did not err in reasoning in that manner. It was not necessary for her to finally determine the validity of the 2018 will in order to consider the 2013 will or in order for her to conclude that the applicant lacked standing to maintain a caveat against a grant of probate. Again, the judge’s consideration of the 2013 will was consistent with the principles set out by this Court in Gardiner.
For these reasons, ground 2 has no merit.
Ground 3: the ‘possibility’ that the deceased died intestate
By ground 3 the applicant alleges that it is possible that both the 2013 will and the 2018 will are invalid, and hence possible that the deceased died intestate. Thus, the applicant submitted, it is possible that he could have a claim against the estate by reason of pt IV of the Act, which deals with family provision orders.
Again it may be observed that the applicant’s case before the trial judge was that the 2013 will was valid. Thus this ground of appeal is inconsistent with the case as it was run below and ought to be rejected for that reason. The applicant is bound by the case he ran at trial.[8]
[8]University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, 483 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ); [1985] HCA 28; Coulton v Holcombe (1986) 162 CLR 1, 7–8 (Gibbs CJ, Wilson, Brennan and Dawson JJ); [1986] HCA 33.
In addition, in circumstances where there is no challenge to the 2013 will, it cannot be said that there is a real (or even a bare) possibility that the deceased died intestate so as to give the applicant standing. So much follows from Gardiner. In that regard, we consider that the Court’s reference to a ‘bare possibility’, while setting a low threshold, nonetheless connotes something more than ‘mere speculation’ as to the existence of an interest.[9]
[9]Burke v Public Trustee for State of South Australia [2022] SASCA 64, [360] (Doyle JA, Stanley AJA agreeing at [480]).
For completeness we note that, under s 70K of the Act, where a person dies intestate, leaving a partner and a child or children of that partner, the partner is entitled to the whole of the residuary estate. In the present context, where Ms Germantsis remained married to the deceased at the time of his death, the consequence is that the deceased’s estate would have passed to her in its entirety; no part of it would have passed to the applicant. (We consider the question of Ms Germantsis’ position, and the applicant’s ability to maintain the caveat on her behalf, when we deal with grounds 4 and 5.)
In so far as the applicant relies upon the possibility of a family provision claim under pt IV of the Act, he has not yet made such a claim in relation to the estate. It may be accepted that the applicant is an eligible person, as defined in s 90 of the Act, and thus permitted to make such a claim. However, the fact that he could bring such a claim, and the possibility that he might succeed in such a claim (about which we express no opinion), does not give him standing to lodge and maintain a caveat against a grant of probate. A family provision claim could be brought regardless of the validity of the 2018 will or the 2013 will; intestacy is not a prerequisite for such a claim: see s 91 of the Act. Section 99 affords an applicant for a family provision order six months after the date of the grant of probate to make an application. Thus the possibility of such a claim in the future is irrelevant to the applicant’s standing to maintain a caveat against a grant of probate in relation to the deceased’s estate.
For these reasons, ground 3 has no merit.
Grounds 4 and 5: the validity and effect of the administration order
Ground 4 alleges error by reason of the trial judge not accepting that Ms Germantsis has the right under the Guardianship and Administration Act 2019 to ‘disregard the (not legally valid) appointment of State Trustees’ as her administrator and appoint the applicant as her administrator and guardian instead. The applicant contended that Ms Germantsis was prevented from joining in the caveat proceeding, in which she would have had standing, to stop the grant of probate; and that the trial judge erred in dismissing the caveat in those circumstances.
Ground 5 articulated the basis for the invalidity of the administration order, namely that Ms Germantsis was and is a resident of Western Australia, thus VCAT had no jurisdiction to make an administration order in relation to her. These errors had the effect, it was said, of preventing Ms Germantsis from joining the caveat proceedings, in which she would have had standing as a beneficiary under the 2013 will. Again, the applicant contended that the trial judge erred in dismissing the caveat in those circumstances.
The trial judge did not err in the manner alleged.
First, as already noted, her Honour’s task was to determine the standing of the applicant. The fact that the applicant’s mother may have standing to lodge a caveat against the making of a grant of probate in relation to the 2018 will does not confer standing on the applicant. If the relevant interest sought to be vindicated is one belonging to Ms Germantsis then a caveat, and any summons seeking to advance grounds of objection, must be brought in her name, and considering the circumstances, would inevitably require the involvement of a litigation guardian, with the protection that this entails.[10] No such procedure has been invoked.
[10]See General Civil Procedure Rules, ord 15, made applicable to probate proceedings by r 1.05 of the Supreme Court (Administration and Probate) Rules2014.
There are mechanisms within the Rules of Court by which a named party may represent the interests of another.[11] Specifically, in relation to the administration of the estate of a deceased person, r 16.01 of the General Civil Procedure Rules provides that the Court may appoint one or more persons to represent any person where the person to be represented cannot be ascertained or cannot be found, or where it appears to the Court to be expedient having regard to all of the circumstances.[12] No application under that provision was made nor has the Court appointed the applicant to act in that capacity. The fact that there are questions concerning the capacity of Ms Germantsis to make decisions for herself, makes it entirely inappropriate for the applicant to purport to represent her without the protections of a litigation guardian. The applicant’s mere assertion that he was acting to protect the interests of his mother did not permit him to act in a representative capacity and was insufficient to give him standing. There was no basis on which the applicant could lodge a caveat and seek to object to probate in his own name but purport to act on behalf of a non-party for the purposes of establishing his own standing.
[11]For example, representative proceedings under r 16 of the General Civil Procedure Rules.
[12]General Civil Procedure Rules, r 16.01(2)(a)–(c).
Further, any resolution of the validity of the administration order in relation to Ms Germantsis was outside the scope of the matter referred to the judge by McMillan J.
Secondly, the judge was entitled to proceed on the basis that, in so far as the applicant was seeking to represent Ms Germantsis in the caveat proceeding, he had (and has) no right to do so. There was an order of VCAT appointing State Trustees as her guardian, which was plainly relevant to whether the applicant should be permitted to represent his mother. There was no proper basis to allow the applicant to act in a representative capacity while the guardianship order in favour of State Trustees was on foot. Neither Ms Germantsis nor State Trustees were parties to the caveat proceeding (State Trustees having informed the Court that it would not participate). The validity of the orders could not be determined in proceedings in which they were not parties.
Thirdly, the administration order is the subject of an appeal on a question of law in the Trial Division of this Court. In that context it would have been inappropriate for the trial judge to have resolved the validity of that order through a collateral challenge in the caveat proceedings.
The decision as to whether Ms Germantsis should bring proceedings to set aside the 2018 will is one for her to make, in the context of her currently existing circumstances (including the fact that State Trustees is her administrator). The fact that State Trustees has resolved that it is not in Ms Germantsis’ interests to make or join in such a challenge is not relevant to the applicant’s standing; nor does he have the right or power to bring such a challenge on her behalf.
For these reasons, grounds 4 and 5 have no merit.
Conclusion
For the above reasons, we would refuse leave to appeal.
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