Koutsouliotas v Koutsouliotis - [2011] SASC 196

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of PAVLOS DEMETRIOU KOUTSOULIOTIS (DECEASED); KOUTSOULIOTAS V KOUTSOULIOTIS
[2011] SASC 196
Judgment of The Honourable Justice Gray
11 November 2011
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - ADMINISTRATION GENERALLY - TO WHOM GRANTED AND WHEN NECESSARY IN GENERAL - SOUTH AUSTRALIA
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - REVOCATION - METHODS OF REVOCATION - DESTRUCTION OR MUTILATION, OR STRIKING OUT PORTIONS - PRESUMPTION OF DESTRUCTION OF LOST WILL ANIMO REVOCANDI
Application for an order that probate of the deceased's will, as contained in a copy, be granted to two applicants - the deceased's will was executed on 17 February 1984 at his solicitor's office - the deceased provided a marked up copy of the will or a photocopy of the marked up copy to each applicant - the deceased travelled to Greece later in 1984 - the deceased did not return to Australia again prior to his death - the deceased died on 29 November 1997 - following the deceased's death, his original will could not be found - whether the deceased's will was lost or destroyed - in particular, whether the presumption of revocation arises and, if so, whether it has been rebutted.
Held: Application granted - it was more likely than not that the solicitor retained the deceased's original will following execution - the presumption of revocation does not arise - in any event, if the presumption of revocation arose, it has been rebutted - probate of the deceased's will, as contained in a copy, is granted to the applicants limited until the original will or a more authentic copy is brought into and left in the Probate Registry of this Court.
Wills Act 1936 (SA) s 8; Administration and Probate Act 1919 (SA) Pt 3A and s 24; Probate Rules 2004 (SA) r 68; Supreme Court Act 1935 (SA) s 18; Court of Probate Act 1857 (UK) s 24; Testamentary Causes Act 1867 (SA), referred to.
In the Estate of Hall (deceased) [2011] SASC 117; In the Estate of Engelhardt Deceased [2010] SASC 196; In the Estate of Roediger Deceased [1967] SASR 118; Cahill v Rhodes [2002] NSWSC 561; Curley v Duff (1985) 2 NSWLR 716; In the Will of Molloy [1969] 1 NSWR 400; Gair v Bowers (1909) 9 CLR 510; Allan v Morrison [1900] AC 604; Welch v Phillips (1836) 1 Moo PC 299; McCauley v McCauley (1910) 10 CLR 434; Whiteley v Clune (No 2); The Estate of Brett Whiteley (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993); Colvin v Fraser (1929) 2 Hag Ecc 266; In the Estate of Gerard Deceased (2007) 251 LSJS 176; Gordon v Beere [1962] NZLR 257; Sugden v Lord St Leonards (1876) LR 1 PD 154; Finch v Finch (1867) LR 1 P…

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: [2011] SASC 196
Decision Date: 11 November 2011

CaseChat Overview and Summary

In the matter of Koutsouliotas v Koutsouliotis, the applicants sought an order that probate of the deceased's will, as contained in a copy, be granted to them. The deceased had executed his will on 17 February 1984 at his solicitor's office. Each applicant had received a marked-up copy or a photocopy of the marked-up copy from the deceased. After the execution of the will, the deceased travelled to Greece and did not return to Australia before his death on 29 November 1997. After the deceased's death, the original will could not be found. The central issue before the court was whether the deceased's will was lost or destroyed, and in particular, whether the presumption of revocation arises and, if so, whether it has been rebutted.

The court considered the evidence and found that the witnesses were honest and did their best to recall the events from many years prior. Although there were some differences in their accounts, these were limited to matters of detail. The court accepted the evidence as presented and found that it was more likely than not that the solicitor retained the deceased's original will following execution. The court concluded that the presumption of revocation does not arise. Even if the presumption of revocation did arise, it had been rebutted. The applicants were granted probate of the deceased's will, as contained in a copy, limited until the original will or a more authentic copy is brought into and left in the Probate Registry of the Court.

The court ordered that the applicants prepare minutes of orders to give effect to the above reasons. The applicants were granted probate of the deceased's will, as contained in a copy, limited until the original will or a more authentic copy is brought into and left in the Probate Registry of the Court. The court directed the applicants to prepare minutes of orders to give effect to the above reasons.

Orders

Orders of the court

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Background

Background to the litigation

I accept that the witnesses were honest and did their best to accurately recount the events occurring many years ago. The passage of time has obviously led to some difficulty of recall. I accept the evidence as outlined below. The differences in their accounts were limited, in my view, to matters of detail. I am prepared to act on this evidence and make findings in accordance with the summary set out below. The Facts The deceased was born in Greece and emigrated to Australia in 1949. His wife, Venatoula Koutsouliotis, and his seven children later joined the deceased in Australia. In 1984, the deceased travelled to Greece alone and remained there until his death. The deceased died on 29 November 1997, aged 89 years. He was survived by Venatoula, who died on 15 July 2007. The deceased was also survived by four adult sons and two adult daughters – Dimitrios, Stergios, Ioannis, Theodoros Koutsouliotis, Agni Kyriakou and Malamati Gianoli. The remaining son, Constantinos Koutsouliotis, predeceased the deceased. The statement of assets and liabilities of the deceased’s estate discloses the deceased’s house property at 208 Jeffcott Street, North Adelaide as the only asset. This property was valued at $450,000.00 by the Valuer-General. There are no liabilities disclosed. The deceased previously owned property at 204-206 Jeffcott Street, North Adelaide. This was jointly owned with Ioannis. Ioannis gave evidence that he made regular payments to the deceased following the purchase of the property, totalling an estimated $15,000.00. Ioannis also conducted unpaid work at 204-206 Jeffcott Street including painting and electrical work; he is a builder and electrician who conducts his own building business. He conducted similar unpaid work on the deceased’s other property at 208 Jeffcott Street. In 1976, the deceased wanted to sell the property at 204-206 Jeffcott Street. He offered the property to Stergios and Theodoros. Neither took up the offer. The property was then offered to Dimitrios who accepted. Dimitrios testified that he paid $30,000.00 to the deceased for the property. Ioannis did not receive any money from the sale. Dimitrios testified that the deceased said that he needed the money because he wanted to travel to Greece. On 17 February 1984, the deceased executed a will at the office of his solicitor, Lazaros Peter Christou, in the presence of Mr Christou and Arthur Drikas. Those witnesses then attested and subscribed the will in the deceased’s presence. The will was duly executed in accordance with the requirements of section 8 of the Wills Act 1936 (SA).[5] Prior to execution, Mr Drikas read the will to the deceased in the Greek language. Mr Christou was present during that process and deposed that the deceased appeared to thoroughly understand and to have full knowledge of the terms of the will. [5] Section 8 of the Wills Act 1936 (SA) relevantly provides:Subject to this Act, no will is valid unless it is in writing and executed in the following manner:(a) it must be signed by the testator or by some other person in the testator's presence and by the testator's direction; and(b) it must appear, on the face of the will or otherwise, that the testator intended by the signature to give effect to the will; and(c) the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and(d) the witnesses must attest and sign the will (but no form of attestation is necessary); and(e) the signatures of the witnesses must be made or acknowledged in the presence of the testator (but not necessarily in the presence of each other).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is one further matter to be mentioned. The deceased executed a will on 24 November 1960. Given my findings in relation to the deceased’s will of 1984, I am of the view that the 1960 will was revoked by the 1984 will. Conclusion I have reached the conclusion that the copy will should be admitted to probate limited until the original will or a more authentic copy of it be brought into and left in the Probate Registry of this Court. I consider that the presumption of revocation does not arise, but that if it did arise, it has been rebutted. I direct the applicants to prepare minutes of orders to give effect to the above reasons.

Ratio Decidendi

Legal Principle Established

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