Konstantin Philip German v Nicholas Germantsis - [2022] VSCA 157

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2022] VSCA 157
Decision Date: 8 August 2022

CaseChat Overview and Summary

In the matter of Konstantin Philip German v Nicholas Germantsis, the appellant sought to lodge a caveat against the grant of probate of the deceased's estate. The deceased had executed two wills: the first in 2013 named the applicant as executor and the deceased’s mother as the sole beneficiary, and the second in 2018 revoked all prior wills and named other individuals as executors and beneficiaries. The applicant argued he had standing to lodge the caveat on the basis that he could potentially be a beneficiary under the laws of intestacy if it were determined that the deceased died intestate. Additionally, he suggested that he could bring proceedings on behalf of his mother, who was the subject of an administration order.

The court had to determine whether the trial judge erred in considering the 2013 will, and whether the applicant could rely on the bare possibility that the deceased died intestate, a potential family provision claim, or act on behalf of his mother. The court held that no error was established in the trial judge's consideration of the 2013 will, which the applicant accepted was valid. The court found that the applicant could not rely on the possibility that the deceased died intestate, as there was no challenge to the validity of the 2018 will. The potential family provision claim was deemed irrelevant to the issue of standing. Furthermore, the court concluded that the applicant could not bring proceedings on behalf of his mother, as he was precluded from doing so by the administration orders in place.

The court ultimately found no grounds for the appeal and refused the application for leave to appeal. The decision was based on the principles outlined in Gardiner v Hughes and the relevant provisions of the Administration and Probate Act 1958. Consequently, the caveat was dismissed, and the applicant's appeal was unsuccessful.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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