Kyros v Stavrakis - [2009] NSWSC 163

CITATION: Kyros v Stavrakis [2009] NSWSC 163

HEARING DATE(S): 02/03/09

JUDGMENT DATE :
2 March 2009

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 2 March 2009

DECISION: Refer to paras 32, 33, 38-40 of judgment.

CATCHWORDS: SUCCESSION - wills, probate and administration - probate caveat placed over deceased estate such that no grant could be made without prior notice to caveator - caveator did not challenge validity of will - order that caveat cease to be in force

LEGISLATION CITED: Family Provision Act 1982 (NSW)
Probate and Administration Act 1898 (NSW)
Civil Procedure Act 2005 (NSW)

TEXTS CITED: Mason & Handler, Succession Law and Practice New South Wales

PARTIES: James Kyros
v
Mary Stavrakis

FILE NUMBER(S): SC 1700/09

COUNSEL: Plaintiff: A G Todd
Defendant: G Thomas

SOLICITORS: Plaintiff: Nicholas Panayi Angelos
Defendant: Levitt Robinson Solicitors

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

WHITE J

Monday, 2 March 2009

1700/09 James Kyros v Mary Stavrakis

JUDGMENT

1 HIS HONOUR: This application relates to the will of Helen Theophanous who died on 22 August 2008.

2 The defendant, Mary Stavrakis, is the daughter of the deceased.

3 By the document expressed to be the last will and testament of the deceased dated 6 November 2007, the defendant and the plaintiff, her son Mr Kyros, were appointed as executors and trustees of her will.

4 On 20 September 2008 a notice was published of the intention of both the plaintiff and the defendant to apply for probate.

5 It appears that by 27 October 2008 the defendant was considering challenging the will.

6 On that day, the solicitors currently acting for the plaintiff, who at the time were acting for both parties, wrote to the defendant. They referred to the fact that an application for probate was ready to be lodged, and recorded that the defendant had indicated that she was considering challenging the will. They advised that if that was her intention, consideration should be given to her renouncing her executorship. They suggested that she obtain independent legal advice.

7 The defendant retained Levitt Robinson Solicitors.

8 On 27 November 2008 the plaintiff's solicitors, Nicholas Angelos & Co, wrote to Levitt Robinson. They said:

“ If [the defendant] intends to remove herself from her Executorial capacity and does not wish to apply for Probate albeit for the purpose of making an FPA claim as intimated, she should formally advise us of such decision ... and permit the co-Executor to proceed to prove the Will and Administer the Estate.

It is improper for a co-Executor to delay the grant of Probate in circumstances where there is an apparent refusal to participate in the process and fails to remove herself from the process of obtaining Probate.

Your client has a simple choice to make, either remove herself from her Executorial role and permit the co-Executor to proceed or to join in the application for grant of Probate.

9 They asked for an urgent…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Kyros v Stavrakis

Details

AGLC: Kyros v Stavrakis [2009] NSWSC 163
Case: [2009] NSWSC 163
Decision Date: 2 March 2009

CaseChat Overview and Summary

The case of Kyros v Stavrakis involved a dispute over a deceased estate in the Supreme Court of Victoria. The estate of a deceased person was subject to a probate caveat lodged by a party, which prevented the granting of probate without notice to the caveator. The deceased's family, represented by the plaintiff, sought an order that the caveat cease to be in force. The caveator did not challenge the validity of the will but sought to assert a potential claim against the estate.

The central legal issue before the court was whether the caveator's interest in the estate was sufficient to maintain the caveat. The court needed to determine whether the caveator had standing to maintain the caveat when they did not contest the will's validity. Additionally, the court considered whether there were any circumstances in which a caveat could be maintained without contesting the will, such as to assert a potential claim against the estate.

In delivering the judgment, the court held that the caveator's interest in the estate was not sufficient to maintain the caveat when they did not challenge the will's validity. The court emphasised that a probate caveat could only be maintained if the caveator intended to contest the will's validity or had a potential claim against the estate. Since the caveator did not contest the will's validity, the caveat could not be maintained. The court ordered that the caveat cease to be in force, allowing the grant of probate to proceed.

The final orders of the court were that the probate caveat placed over the estate of the deceased be removed, and that the caveator's right to notice of the grant of probate be terminated. This allowed the deceased's family to proceed with the administration of the estate without further delay.

Orders