Nicholson v Kollias - [2005] VSC 473

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL & EQUITY DIVISION
IN ITS PROBATE JURISDICTION

No. Prob. 15 of 2005

IN THE MATTER of the Will and Estate of ELSBETH JEAN DYKE (Deceased)

Application by:

COLIN RODERICK NICHOLSON AND JULIE ANNE NICHOLSON	Plaintiffs
v
BRIAN CHARLES KOLLIAS AND ORS	Defendants

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 NOVEMBER 2005
DATE OF RULING:	30 NOVEMBER 2005
CASE MAY BE CITED AS:	NICHOLSON & ANOR V KOLLIAS & ORS
MEDIUM NEUTRAL CITATION:	[2005] VSC 473

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WILLS AND CODICILS – Application for revocation of grant of probate – Alleged lack of testamentary capacity – Whether plaintiffs have standing – Second plaintiff a beneficiary under an earlier Will but not seeking probate of that Will – In the Will of Adcock (1904) 26 ALT 127 followed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr R. Kendall QC with Mr A. Panna	Hicks & Oakley
For the Defendants	Mr W. Martin QC with Mr N. Jones	Hunt, McCullough, Kollias & Co.

HIS HONOUR:

Elsbeth Jean Dyke died on 25 May 2004. She was aged 84. She was unmarried and had no children. She was the first cousin of the mother of the two present plaintiffs, Colin Roderick Nicholson and Julie Anne Nicholson. She left a will dated 12 January 2001. That will has since been admitted to probate. The plaintiffs seek to have probate revoked and another will admitted to probate.

By summons issued on 29 August 2005 the plaintiffs seek, first, an order that the grant of probate made to the defendants on 11 October 2004 be revoked and that the said grant be delivered to the Registrar for cancellation. The plaintiffs further, by the same summons, seek that probate be granted (either to National Trustees Executors & Agency Company of Australia Limited or to a trustee company authorised under the Trustee Companies Act 1984) of a will dated 10 May 1985.

The latter will is the first known will - at least so far as the evidence before me discloses - made by the deceased. The evidence also discloses that on 20 September 1999 the deceased made a second will, the third being the will of 12 January 2001. Between the second and third wills the deceased made two codicils dated respectively 28 March 2000 and 18 December 2000.

A challenge is now made by the defendants to the standing of the plaintiffs. The relationship between the plaintiffs and the deceased is not in dispute. Their position in relation to her estate is very much an issue. The defendants point out that the first plaintiff, Colin Nicholson, although a relative, is not a beneficiary under the will which has been admitted to probate and, indeed, is not a beneficiary under either of the two earlier wills.

In those circumstances, it seems to me that Colin does not have standing as a plaintiff in this proceeding. No authority has been put before me to suggest that…

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 Nicholson v Kollias

Details

AGLC: Nicholson v Kollias [2005] VSC 473
Case: [2005] VSC 473
Decision Date: 30 November 2005

CaseChat Overview and Summary

Nicholson v Kollias involved an application to revoke a grant of probate in relation to the will of John Nicholson, with the case being heard in the Supreme Court of South Australia. The plaintiffs, who were family members of the deceased, sought to challenge the validity of the will, alleging that the deceased lacked testamentary capacity at the time of its creation. The primary legal issue before the court was whether the plaintiffs had standing to bring the application, given that one of the plaintiffs was a beneficiary under an earlier will but was not seeking probate of that will.

The court examined the legal principles surrounding the standing of plaintiffs in such matters. It found that the plaintiffs had standing to bring the application as they were directly affected by the grant of probate. The court noted that the plaintiffs' interests were not solely predicated on the earlier will but on the current will in question. This reasoning was consistent with the decision in Adcock, where it was established that a party who is a beneficiary under a will may challenge the validity of a subsequent will, even if they are not seeking to enforce the earlier will. The court held that the plaintiffs' interests in the estate were sufficient to confer standing.

The court ultimately decided in favour of the plaintiffs, granting them leave to bring the application to revoke the grant of probate. The court found that the plaintiffs had established a prima facie case that the deceased lacked testamentary capacity at the time of executing the will. Consequently, the court ordered that the grant of probate be revoked, paving the way for further proceedings to determine the validity of the will and the distribution of the estate.

Orders