Magiera v Cekan

Case [2023] SASC 20

Supreme Court of South Australia

(Testamentary Causes Jurisdiction)

MAGIERA & ANOR v CEKAN

[2023] SASC 20

Judgment of the Honourable Justice Stanley  

6 March 2023

SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - ALTERATION AND REVOCATION OF GRANTS – CIRCUMSTANCES – DISCOVERY OF WILL AND INVALIDITY OF WILL

SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - PROCEDURE - SOUTH AUSTRALIA - PROOF IN SOLEMN FORM

This is an application by the respondent for the revocation of a grant of probate in solemn form of a will of the deceased made in 2016, on the ground that the deceased made a subsequent valid will in 2018.

The applicants are the executors of the 2016 will. The respondent is named as the sole executor and residuary beneficiary of the 2018 will.

The applicants applied for a grant of probate in respect of the 2016 will on 20 April 2022. Unsuccessful attempts were made to serve that application on the respondent, and following an application for an order for substituted service, substituted service was effected on 31 May 2022.

On 29 July 2022 a grant of probate in solemn form of the 2016 will was made in favour of the applicants. The respondent denies receiving actual notice of the application for the grant of probate before this date.

Held:

1.      The application for revocation of the grant of probate in solemn form of the 2016 will is refused.

2.      The question of costs is reserved.

Acts Interpretation Act 1954 (Qld) s 39(1); Administration and Probate Act 1919 (SA) s 122; Electronic Communications Act 2000 (SA) ss 5(1), 13A(1)(a); Legislation Interpretation Act 2021 (SA) ss 4, 51; Supreme Court Act 1935 (SA) s 72, referred to.
Battiste v Mulvaney [1997] SASC 6419; BP Australia Ltd v Brown (2003) 58 NSWLR 322; Cameron v Cole (1944) 68 CLR 571; Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87; Lind v Legal Profession Conduct Commissioner [2022] SASC 20; Mortimer v David; Estate of Dawn Audrey Day (Deceased) [2005] NSWSC 1166; Re Barraclough, Deceased [1967] P1; Re Dowling; sub nom NSW Trustee & Guardian v Crossley [2013] NSWSC 1040; Re Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786; Re Goode (1890) 11 NSWR (Eq) 281; Re Izett [1982] 2 NZLR 425; Re Levy, Deceased [1953] VLR 652; Richardson v Rearden [2006] NSWSC 1252; Stanley v Stanley [2000] NSWSC 1133; Taylor v Taylor (1979) 143 CLR 1; The Estate of Rogers; Rogers v Rogers [2009] WASC 358; Tobin v Ezekiel (2012) 83 NSWLR 757; Neilson v Public Trustee (Supreme Court of New South Wales, Powell J, 8 May 1992); Willis v Earl Beauchamp (1886) 11 PD 59, considered.

MAGIERA & ANOR v CEKAN
[2023] SASC 20

Introduction

  1. The respondent has brought proceedings for the revocation of a grant of probate in solemn form of a will of the testator, Michael Kowalczyk (the deceased), dated 28 September 2016 (the 2016 will).  That grant was made…

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Magiera v Cekan [2023] SASC 20
Case
[2023] SASC 20
Decision Date

CaseChat Overview and Summary

In Magiera v Cekan, the applicants sought revocation of a grant of probate in solemn form of the 2016 will of a deceased person, arguing that the respondent was not given proper notice of the application. The matter was heard in the Supreme Court of South Australia. The court needed to determine whether the respondent had actual knowledge of the application for the grant, whether the respondent disproved actual knowledge, and whether the service of the application was sufficient under the law. The court considered whether the respondent had actual knowledge of the application for the grant, and whether the service was effective under the relevant rules and statutes. The court found that the respondent had been given notice of the application through substituted service, which was deemed sufficient under the circumstances. Despite the respondent's lack of personal knowledge of the application, the court held that the opportunity to be heard was provided through the respondent's solicitors, who were deemed to have received the notice via email. The court also noted the principles concerning the finality of judgments and the best interests of the due and proper administration of the estate. The court ultimately refused the application for revocation of the grant in solemn form of the 2016 will, stating that the grant was made correctly and in the best interests of the estate.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

That gives rise to five intermediate issues. For the purpose of revocation:i.is it necessary that the respondent has actual knowledge of the application for a grant in solemn form; ii.if so, has the respondent disproved actual knowledge;iii.if not, is it necessary that the respondent is actually served with the application;iv.if so, was he actually served – does service include receipt; and v.if not, is substituted service sufficient. The affidavit evidence The Court received the following affidavits:·Affidavit of Igor Cekan dated 6 October 2022;·Affidavit of Igor Cekan dated 6 October 2022 and the exhibit IC3 in the possession proceedings;[1][1] On 15 August 2022, the applicants’ solicitors filed an originating application seeking a finding that they are entitled to possession of the deceased’s property.·Affidavit of Igor Cekan dated 25 October 2022;·Affidavit of Igor Cekan dated 26 October 2022;·Affidavit of Igor Cekan dated 6 October 2022 – In the possession proceedings;·Affidavit of David eoffrey Chambers of Proof of Service dated 2 June 2022;·Affidavit of Madeleine Phoebe Alexander dated 13 September 2022;·Affidavit of James Brendon Kearney dated 13 September 2022;·Third Affidavit of Madeleine Alexander dated 5 October 2022 – In the possession proceedings;·Affidavit of Jonasz Magiera dated 8 April 2022;·Affidavit of Jason Sam Coluccio dated 26 May 2022;·Affidavit of Colin Andrew Dale of Proof of Service dated 2 June 2022;·Affidavit of David Geoffrey Chambers of Proof of Service dated 2 June 2022;·Affidavit of Georgia Paige McHugh of Proof of Service dated 10 June 2022;·Affidavit of Gregory Neil Welden dated 21 July 2022;·Affidavit of Justin Lewis Piro dated 18 October 2022;·Affidavit of Brenton Joraslafsky dated 19 October 2022;·Affidavit of Colin Andrew Dale dated 19 October 2022;·Affidavit of Daniel Jez dated 19 October 2022;·Affidavit of Arthur Wojtyna dated 18 October 2022;·Affidavit of David Geoffrey Chambers dated 27 October 2022.Uncontested factual findings On 20 April 2022, the applicant’s solicitors filed an originating application to pronounce the force and validity in solemn form of the 2016 will. By that time the respondent was residing at the deceased’s property at 10 Trimmer Parade, Woodville West (the deceased’s property). Unsuccessful attempts were made by the applicants’ solicitor to serve the application personally on the respondent at the deceased’s property on 1 May, 2 May, 3 May and 10 May 2022. On 18 May 2022, a process server, retained by the applicants’ solicitors, attended at the deceased’s property to serve the application on the respondent. The process server alleges that he spoke to a person named Alex at the property who advised him that the respondent was currently in Queensland but typically resided at an address in Tea Tree Gully. That proved to be a reference to a property at 59 Chapel Road, Modbury at which the respondent had resided before he moved to the deceased’s property.

Decision

Reasons for decision

In this case, while the Court made the order granting probate in solemn form of the 2016 will ex parte, it did so after investigating whether all parties with an interest in the outcome of the application for the grant had been notified. It only made the order after being satisfied that was the case. The grant was regularly made. This is an estate of fairly modest size. Considerable work has already been undertaken to obtain the grant and to hear the application for revocation. Granting the application for revocation will, almost certainly, be followed by an application to prove the 2018 will. This will have the inevitable effect of further eroding the value of the estate. For the reasons set out above, I am satisfied that the Court was correct in making the order granting probate on the basis that the respondent had been given notice of the application. In this case, the principles concerning the finality of judgments dictate the exercise of the Court’s discretion to refuse the application for revocation even if, contrary to what I have found, the respondent was not afforded a fair opportunity to be heard on the application. A grant in solemn form can be made notwithstanding the absence of any contest,[36] the critical factor being service of notice of the proceedings on all interested persons.[37] In this case that critical factor was satisfied. Refusing the application for revocation is in the best interests of the due and proper administration of the estate. [36] Re Levy (Deceased) [1953] VLR 652. [37] Mortimer v David; Estate of Day, Deceased [2005] NSWSC 1166 [28]; Re Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 [296].Conclusion I would refuse the application for revocation of the grant in solemn form of the 2016 will. I would hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

The Probate Rules 2015 (SA) are a legislative instrument for the purposes of s 51(1).[25] Section 51 applies to the giving of notice on an application for a grant of probate. Rule 59 of the Probate Rules requires the provision of an address for service, being an address at a place where proceedings, notices and other documents may be left for a party. [25] Legislation Interpretation Act 2021 (SA) s 4; Administration and Probate Act 1919 (SA) s 122; Supreme Court Act 1935 (SA) s 72.Consideration In this case, it is necessary to resolve the tension between the respondent’s lack of knowledge of the existence of the application for a grant of probate of the 2016 will, due to a series of unfortunate events, and the applicants’ observance of the requirements of substituted service imposed by the Court to bring to the notice of the respondent the fact of that application. The giving or delivery of notice is a unilateral act. It does not necessarily imply the receipt of the notice. That is the distinction made in Fancourt.[26]In this case, notice was given, however, it was not effective to bring to the attention of the respondent the existence of the application for a grant of probate of the 2016 will. But, as in Fancourt, the evidence does not prove non-delivery of the originating application. On the contrary, the applicants have proved delivery by way of substituted service of the application. While the evidence proves that the respondent did not know of the application, the authorities focus on the giving of notice not on the intended recipient’s knowledge of the notice. That is explicable by reason of the practical difficulty of proof by an applicant for a grant of probate in solemn form that notice was not only given to an interested person but that the person read the notice. As observed in Fancourt,[27] the requirement for delivery rather than receipt of notice is founded on reasons of efficiency and convenience. There is an obvious risk that in some cases documents will not be received by the intended recipient. The justification for the acceptance of that risk is the obvious convenience of service by post, and the fact that in most cases the notice will reach the intended recipient.[28] A fortiori in relation to sending a document electronically.[26] Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, 97.[27] Ibid, 96.[28] Battiste v Mulvaney [1997] SASC 6419. It follows that the respondent was given notice. However, that leaves the question of whether the giving of notice, absent receipt of that notice personally by the respondent, afforded him the opportunity of being heard. In my view, he was given that opportunity but, even if he was not, that does not warrant an order for revocation. At all relevant times the respondent was represented by solicitors. The solicitors were the respondent’s agent in relation to the dispute as to which of the 2016 and 2018 wills should be proved and admitted to probate. On 31 May 2022, the applicants served notice of the application for probate of the 2016 will by email on the respondent’s solicitors. Pursuant to s 13A(1)(a) of the Electronic Communications Act 2000 (SA) (ECA) the solicitors were deemed to have received the email when it became capable of being retrieved by a partner or an employee of Minter Ellison from Mr Leonardis’ office email address. I am satisfied the email to Mr Leonardis’ office email address enclosing the application for a grant of probate of the 2016 will was capable of being retrieved that same day, that is, 31 May 2022. That no one at Minter Ellison saw the email does not affect that conclusion. Section 13A of the ECA deems the email to have been received by Minter Ellison on that date. That suffices to afford the respondent the opportunity to be heard on the application even where personally he was unaware of the application.