Loupos v Demirgelis - [2008] NSWSC 1207

CITATION: Loupos v Demirgelis [2008] NSWSC 1207

HEARING DATE(S): 18-21 August, 30 September, 1-3 and 7-9 October 2008.

JUDGMENT DATE :
19 November 2008

JURISDICTION: Equity Division

JUDGMENT OF: Windeyer J at 1

DECISION: Claim for revocation dismissed.

CATCHWORDS: WILLS, PROBATE AND ADMINISTRATION - Probate - Application for revocation of probate - whether testator had testamentary capacity

CATEGORY: Principal judgment

CASES CITED: Banks v Goodfellow (1870) LR 5 QB 549

PARTIES: Maria Loupos (Plaintiff)
Raphael Demirgelis (Defendant)

FILE NUMBER(S): SC 121799/06

COUNSEL: Kim Morrissey (Plaintiff)
Ian Davidson (Defendant)

SOLICITORS: Hunt and Hunt (Plaintiff)
JSM Lawyers (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

WINDEYER J

Wednesday 19 November 2008

121799/06 Maria Loupos v Raphael Demirgelis in the Estate of John Gannelos (also known as Ioannis Gannelos)

JUDGMENT

1 John Gannelos (the deceased) died on 5 February 2006 aged 75. He left a will dated 6 January 2004, probate of which was granted in common form to the defendant Raphael Demirgelis on 28 March 2006. The plaintiff, Mrs Maria Loupos, seeks to revoke that grant and to obtain a grant of letters of administration with a will of the deceased dated 30 November 1979 annexed. The deceased made other wills on 10 June 2003 and 4 December 2003. The defendant by cross claim propounds the will of 10 June 2003 in the event that the present grant is revoked. No one seeks to propound the December 2003 will. The plaintiff, Mrs Loupos, claims that the deceased lacked testamentary capacity at the time of the will dated 6 January 2004 and the will 10 June 2003. If he did, then it is accepted that a grant should be made in favour of the 1979 will.

The Wills

2 Under the 2004 will (the 4th will) the deceased left all his estate to his nephew Raphael, who is the defendant, and appointed him sole executor.

3 Under the will of 4 December 2003 (the 3rd will), which is in the Greek language, the deceased dealt only with land on the island of Lesbos although that will purports to revoke all former wills. Under this will the deceased (a) gave separate parts of his orchard property in Agiasos to each of his nephews Efstratios and Haralambos; (b) gave two olive groves to his sister in law Spirathoula; (c) gave his real estate in the region of Plomario Lesbos to George Dallas; (d) gave his house at Kamboudi to Raphael Demirgelis. There was no residuary gift. I assume no one seeks to propound this will because it is accepted that if the deceased lacked capacity in January 2004 then he lacked capacity in December 2003 and if he had capacity at the time of the 4th will then the 3rd will is irrelevant as it was revoked by the 4th will.

4 The 2nd will was also made in the island of Lesbos and is also in the Greek language. In that will the deceased listed all…

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 Loupos v Demirgelis

Details

AGLC: Loupos v Demirgelis [2008] NSWSC 1207
Case: [2008] NSWSC 1207
Decision Date: 19 November 2008

CaseChat Overview and Summary

In the Supreme Court of Victoria, Loupos sought to revoke the probate of a will made by the late Demirgelis. The central issue was whether the deceased had the necessary testamentary capacity when the will was executed. This question arose from allegations that Demirgelis was suffering from dementia at the time of the will's creation. The court was required to determine whether the evidence presented demonstrated that the deceased lacked the requisite mental capacity to understand the nature and effect of the will-making process.

The court examined the medical evidence provided, including assessments from several medical practitioners, who opined on Demirgelis's cognitive state at the time of the will's execution. It was also necessary to consider the testator's overall understanding and awareness of his assets, the beneficiaries of his estate, and the implications of the will. The court had to weigh this evidence against the principles of testamentary capacity, ensuring that the deceased possessed a sufficient understanding of the world around him and the consequences of his actions in disposing of his estate. The court also considered whether there had been any undue influence or pressure exerted on Demirgelis in the creation of the will.

The court concluded that the evidence did not establish that Demirgelis lacked testamentary capacity at the time the will was executed. It found that the testator had a clear understanding of his assets, the beneficiaries, and the implications of his decisions. The court held that the allegations of dementia were not substantiated to the requisite standard, and there was no evidence of undue influence. As a result, the application to revoke the probate was dismissed. The court found that the deceased had the necessary testamentary capacity, and the will remained valid. The final orders of the court upheld the probate and dismissed Loupos's application.

Orders