Re Bourikas
[2024] VSC 96
•6 March 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
IN ITS PROBATE JURISDICTION
TRUSTS, EQUITY AND PROBATE LIST
S PRB 2023 20674
IN THE MATTER of the deceased estate of KONSTANTINOS BOURIKAS
APPLICATION:
| JOHN BOURIKAS | First Plaintiff |
| POLIXENI BOURIKAS | Second Plaintiff |
---
JUDGE: | Gobbo AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 March 2024 |
DATE OF JUDGMENT: | 6 March 2024 |
CASE MAY BE CITED AS: | Re Bourikas |
MEDIUM NEUTRAL CITATION: | [2024] VSC 96 |
---
WILLS & ESTATES — Where plaintiffs seek grant of probate of copy will — Where original will cannot be found — Where plaintiffs seek to rebut presumption of revocation — Weight to be given to presumptions of fact — Where deceased declined to prepare new will — Ulman v Mom [2022] VSC 186 — Cahill v Rhodes [2002] NSWSC 561 - Re Demediuk [2019] VSCA 79 — Re Moschoudis [2016] VSC 139.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Mr P D Reynolds of counsel | Eastern Bridge Pty Ltd |
TABLE OF CONTENTS
The Application.................................................................................................................................. 1
Legal Principles.................................................................................................................................. 4
Admission of the Will to Probate................................................................................................... 6
Custody of the Will....................................................................................................................... 7
Searches to locate the Will........................................................................................................... 8
The presumption is rebutted....................................................................................................... 9
Conclusion......................................................................................................................................... 10
Costs.................................................................................................................................................... 11
HER HONOUR:
The Application
Konstantinos Bourikas (as known as Constantinos or Con Bourikas) (‘Deceased’) died on 7 September 2021. He was survived by his three children: John Bourikas (‘John’), Polixeni Bourikas (‘Polixeni’) and Joanna Bourikas (‘Joanna’). At the time of his death, the Deceased was living at 27 Aberdeen Road, Prahran in the State of Victoria (‘Property’).
The Deceased left a will dated 22 December 2016 (‘Will’), which names his three children as executors and leaves the whole of his estate to them in equal shares.
On 7 March 2023, John and Polixeni issued Supreme Court Proceeding S ECI 2023 00943 (‘Related Proceeding’) which named Joanna as a defendant and in which they sought orders inter alia that:
(a) Joanna show cause why she should not bring the Will of the Deceased into Court and either prove the Will or renounce probate;
(b) Joanna be passed over as executor of the Deceased’s estate;
(c) John and Polixeni be entitled to prove the Will; and
(d) John and Polixeni’s costs of the proceeding be paid by Joanna personally.
On 23 June 2023, Keith JR made self-executing orders in the Related Proceeding that, if Joanna did not file any affidavits in accordance with those orders by 7 August 2023, then forthwith and without any further order:
(a) pursuant to s 15 of the Administration and Probate Act 1958 (Vic) (‘Act’) Joanna deliver the Will of the Deceased into Court by delivery to the Registrar of Probates and Joanna be passed over as executor of the Will of the Deceased;
(b) John and Polixeni’s costs of and incidental to the Related Proceeding be paid personally by Joanna on an indemnity basis, to be taxed in default of agreement; and
(c) the Related Proceeding be otherwise dismissed.
Joanna did not file any affidavits in accordance with the orders of Keith JR and, to date, Joanna has failed to bring the Will into Court.
On 9 August 2023, John and Polixeni issued this proceeding seeking that a copy of the Will of the Deceased be admitted to probate.
The Probate Registry has refused to admit a copy of the Will to probate. By requisition dated 11 October 2023, the Assistant Registrar of Probates advised:
From the evidence filed to date it appears the plaintiff believes the original Will is held at the premises of the deceased. I note the proceeding S ECI 2023 00943. If the plaintiff is unable to otherwise obtain the original Will, further orders ought to be sought in relation to obtaining the original Will of the deceased.
On 22 November 2023, John and Polixeni filed a summons (‘Summons’) in the Related Proceeding in which they sought orders, inter alia, that:
(a) the plaintiffs be granted probate of the copy Will, being pages 15-18 of exhibit JB to the affidavit of John Bourikas affirmed 3 March 2023; and
(b) the defendant pay the plaintiffs’ costs of, and incidental to, this proceeding upon an indemnity basis without recourse to the assets of the Deceased’s estate.
On 15 January 2024, John and Polixeni filed a notice to produce in this proceeding seeking the following relief:
(a) probate of a copy of the Will be granted to John and Polixeni;
(b) alternatively, letters of administration upon intestacy of the Deceased’s estate be granted to John and Polixeni;[1] and
(c) Joanna pay John and Polixeni’s costs of the proceeding on an indemnity basis.
[1]The effect of letters of administration would be to distribute the estate to the three children of the Deceased however no determination of that question can occur in this proceeding.
As any grant of probate ought to be made in this proceeding, John and Polixeni concede the relief sought in the Related Proceeding is no longer required (to the extent that Related Proceeding remains on foot), including the relief sought in the Summons.
The plaintiffs rely on the following affidavits filed in the Related Proceeding:
(a) the affidavit of John Bourikas filed on 7 March 2023;
(b) the affidavit of service filed on 14 April 2023;
(c) the affidavit of Daniel Peter Kelliher filed on 15 June 2023;
(d) the affidavit of Daniel Peter Kelliher filed on 22 June 2023; and
(e) the affidavit of Daniel Peter Kelliher filed on 7 August 2023.
The plaintiffs rely on the following affidavits filed in this proceeding:
(a) the affidavit of John and Polixeni Bourikas filed on 9 August 2023;
(b) the affidavit of John Bourikas filed on 19 September 2023;
(c) the affidavit of due execution of John Velos filed on 4 October 2023;
(d) the affidavit of John and Polixeni Bourikas filed on 4 October 2023;
(e) the affidavit of Daniel Peter Kelliher filed on 21 February 2024; and
(f) the affidavit of Daniel Peter Kelliher filed on 28 February 2024.[2]
[2]On 8 February 2024, I made orders that the evidence in S ECI 2023 00943 and S PRB 2023 20674 stand as evidence in the other proceeding.
The plaintiffs also rely on outlines of submission dated 5 February 2024 and 29 February 2024 filed in both proceedings.
Joanna has not filed any material in the Related Proceeding or in this proceeding or any caveat. She did not comply with the Orders made by Keith JR in the Related Proceeding. At the hearing before me on 4 March 2024 (at which both this matter and the Related Proceeding were listed) Joanna was called and did not appear. Further, she did not appear at the hearing before me on 8 February 2024 when both matters were listed. I am satisfied on the evidence before me that Joanna was given notice of the hearings before me.
Legal Principles
The legal principles applicable to an application for a grant of probate of a lost will are well established. Where the original will is unavailable, a copy will may be admitted to probate, if the Court is satisfied that copy will is a true copy and the original was duly executed.[3] The propounder must establish the following matters:
[3]See generally G E Dal Pont, Law of Executors and Administrators (LexisNexis, 2022) 5.36–5.44. Recent
applications to admit a copy will to probate in Victoria include: Re Moschoudis [2016] VSC 139 (‘Re Moschoudis’); Demediuk v Demediuk [2019] VSCA 79; Ulman v Mom [2022] VSC 186 (‘Ulman’); Colosimo v Colosimo [2022] VSC 807.
(a) that the will existed;
(b) that the will revoked all previous wills;
(c) that the presumption of destruction by the deceased animo revocandi is overcome;
(d) there must be evidence of the terms of the will; and
(e) there must be evidence of due execution of the will.[4]
[4]Ulman (n 3), [8] (Moore J) citing with approval Di Gregorio v Di Gregorio[2007] VSC 156, [11]; Curley v Duff(1985) 2 NSWLR 716, 718-719.
Animo revocandi is known as the presumption of destruction or of revocation. The term means ‘with an intention to revoke’. The presumption arises where a will is traced into the possession of the testator, and last seen there, is not forthcoming on his or her death. The presumption is that the deceased destroyed the will with an intention to revoke it. It is a presumption of fact, which may be rebutted by evidence, including circumstantial evidence, to the contrary.
In Demediuk v Demediuk,[5] the Court of Appeal provided the following explanation of the presumption:
… that if a will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect, unless there is sufficient evidence to repel it. It is a presumption founded on good sense; for it is highly reasonable to suppose that an instrument of so much importance would be carefully preserved, by a person of ordinary caution, in some place of safety, and would not be either lost or stolen; and if, on the death of the maker, it is not found in his usual repositories, or else where he resides, it is in a high degree probable, that the deceased himself has purposely destroyed it. But this presumption, like all others of fact, may be rebutted by others which raise a higher degree of probability to the contrary.
The onus of proof of such circumstances is undoubtedly on the party propounding the will.
[5][2019] VSCA 79, [37] (citations omitted).
The Court of Appeal also identified that the question of whether or not a testator revoked a missing will, must depend largely on what was contained in the instrument, citing the following statement by Hannen P in Sugden v Lord St Leonard’s:[6]
It is obvious that where a Will, shewn to have been in the custody of a testator, is missing at the time of his death, the question whether it is probable that he destroyed it must depend largely upon what was contained in the instrument. Was it one arrived at after mature deliberation; did it deal with the interests of the whole of his family, carefully arranging the dispositions which he would make in favour of the several members of it, or was it the hasty expression of a passing dissatisfaction with some or more of them? These are questions naturally having the strongest possible bearing upon the ultimate question which I may have to determine, namely, whether or not the testator himself destroyed this instrument.
[6]Ibid, [38].
In Cahill v Rhodes, Campbell J quoted with approval Powell J’s summary of the principles applicable to the presumption of destruction in Whiteley v Clune (No 2); the Estate of Brett Whiteley:
The present position would now seem to be as follows: -
1. although, where a Will is traced into the possession of the testator and is not forthcoming on his death, there is a presumption that he destroyed it animo revocandi, the presumption may be rebutted;
2. the strength of the presumption depends upon the character of the testator’s custody over it;
3. where the Will makes a careful, and complete, disposition of the testator’s property, and there are no other circumstances to point to a probable destruction, animo revocandi, by the testator, the presumption is so slight that it may be said not to exist;
4.where a Will is lost or destroyed, and the presumption of destruction, animo revocandi, either, does not arise, or, is rebutted, its contents may be proved by parol evidence.[7]
[7][2002] NSWSC 561, [58] (Campbell J) (citations omitted) quoting Whitely v Clune (No 2); the estate of Brett Whitely (unreported, Supreme Court New South Wales, Powell J, 13 May 1993); cited with approval in Ulman (n 3), [14] (Moore J).
The standard which applies in determining whether a will has been destroyed with an intention of revoking it is the standard which is applicable in ordinary civil cases.[8] Rebutting the presumption of destruction involves proving a negative. It may be rebutted by simply proving the negative (that it is more probable than not that the deceased did not destroy the will animo revocandi) or by positive evidence (that for example the will was destroyed by someone else).[9]
[8]Re Moschoudis (n 3), [14] (McMillan J).
[9]McCauley v McCauley (1910) 10 CLR 434, 447.
Probate of a copy will may be granted where, although the original will exists and its whereabouts are known, the original cannot be obtained.[10]
[10]G E Dal Pont, Law of Executors and Administrators (LexisNexis, 2022) 5.36–5.44. See also Koerstz v Norman [2008] NSWSC 133, [9]-[12].
Admission of the Will to probate
The evidence before me establishes that the Deceased left a duly executed Will, the terms of which are clear with a photocopy of the Will available. An affidavit of due execution has been filed by the solicitor who witnessed the Will, John Velos, an independent solicitor. Mr Velos’ unchallenged evidence was that:
(a) he witnessed the deceased execute the Will in the presence of his secretary, Sarah Faulkner;
(b) he read the Will to the Deceased in Greek, translating it from English into Greek;
(c) the Deceased expressed his assent and executed the Will in front of him; and
(d) the Deceased understood the contents of the Will.
I accept Mr Velos’ evidence. Further, the Will was signed by the Deceased in the presence of two witnesses in conformity with s 7 of the Wills Act 1997 (Vic). The Will also revokes all previous wills. Clause 1 of the Will is clear recording a declaration that ‘I REVOKE all prior wills and declare this to be my last’.
Before me it was submitted that, whether the presumption arises or not, the evidence comfortably establishes that the Deceased did not destroy the Will animo revocandi and therefore, the copy Will should be admitted to probate.
Custody of the Will
The Deceased executed the Will on 22 December 2016. The evidence before me established that on that day he collected the original Will from Mr Velos’ firm, Velos & Velos. Approximately six months later, in May 2017, the Deceased’s wife died. Shortly thereafter, the Deceased told Polixeni that he had made a will leaving everything to his three children equally.
On 14 November 2018, the Deceased attended the firm Venizelakos Lawyers with Joanna to apply for probate of his late wife’s will. Mr John Venizelakos recorded in his file note of that day:
Topic of Wills and POA came up. At this point the daughter left the conference room. Client said he has 3 kids and would like to leave more to Joanna. I explained ways to do it in the Will. He said he would think about it and make a Will when all the probate matters are cleared up. Same for a POA.
Probate of the Deceased’s wife’s estate was obtained on 20 November 2018. Mr Venizelakos has subsequently confirmed, on 9 September 2022, that he did not draft a new will for the Deceased.
On 19 July 2019, the Deceased executed an authority for Velos & Velos to release his original Will, any copy or other documents held in deeds to Venizelakos Lawyers. It would appear that by this time the Deceased had likely forgotten that he had taken the Will with him on the day it was executed.
Shortly thereafter, on 23 July 2019 Mr Venizelakos sent the authority to Mr Velos, recording that he understood that Velos & Velos held the Deceased’s Will in safe custody. On 5 August 2019, Mr Velos wrote to Mr Venizelakos, informing him that the Deceased had collected the Will on the day it was signed.
Logically, it must be the case at around this time, the Deceased did not have either the original or a copy of the Will among his papers, as on 9 September 2019, Mr Venizelakos wrote to Mr Velos requesting that he provide a copy of the Deceased’s Will as the Deceased was unable to locate a copy amongst his papers. In my view, this evidence, recorded in contemporaneous letters between solicitors, demonstrates that the Deceased had not, by September 2019, destroyed his Will animo revocandi.
In 2019 or 2020, John had a conversation with his father at the Property, where his father showed him his Will and the deed for his real property in Greece. John recalls that the documents were in a white envelope in a brown suitcase in the Deceased bedroom. John recalls that the Deceased told him that the Will left his estate equally between his three children. I accept that evidence.
It was submitted that the Court should infer that the document shown to John was the Will, either the original or, more probably, the copy sent to him by Mr Velos in September 2019. I accept that submission.
Searches to locate the Will
The unchallenged evidence before me, which I accept, was as follows:
(a) in October 2021, John asked Joanna, who was living at the Property, to look for the Will;
(b) on 29 January 2022, at a meeting at the Property, Joanna told John that she did not have possession of the Will. John and Polixeni then searched the Property for the Will, except Joanna’s room, which Joanna refused to allow John and Polixeni to enter. John and Polixeni were unable to locate the Will. Thereafter, the evidence before me established that John and Polixeni had made numerous further requests of Joanna to look for the Will;
(c) between March and June 2022, John and Polixeni’s solicitor wrote to each of Joanna and Mr Venizelakos requesting the Will or a copy of it be produced. Neither the Will, nor a copy of it was produced;
(d) on 25 August 2022, Mr Velos provided John and Polixeni’s solicitor with a copy of the Will and the correspondence between him and Mr Venizelakos in 2019. This was the first occasion when John and Polixeni obtained a copy of the Will;
(e) on 7 September 2022, John and Polixeni’s solicitor wrote again to Mr Venizelakos, asking him whether he had made a further will for the Deceased, or had any discussions with the Deceased about making a further will. Notably, a file note taken by Mr Venizelakos on 4 August 2020 records that the Deceased had talked, on that day, about changing his Will;
(f) on 9 September 2022, Mr Venizelakos confirmed he not drafted a further will for the Deceased. Thereafter, on 30 September 2022, Mr Venizelakos advised John and Polixeni’s solicitor that the Deceased had said that he would like to leave more to Joanna but that the Deceased did not make a further will with Mr Venizelakos;
(g) on 24 November 2022, John and Polixeni’s solicitor sent a letter to Joanna by express post, warning that they intended to make an application for her to bring in the Will; and
(h) on 7 March 2023, John and Polixeni issued the Related Proceeding. The Related Proceeding was personally served on Joanna on 14 April 2023. I have set out the history of orders made in the Related Proceeding earlier in my reasons.
The presumption is rebutted
Based on the unchallenged evidence before me, I accept that the evidence establishes that, irrespective of whether the presumption of destruction arises or not, it is comfortably rebutted, as the evidence proves that the Deceased did not destroy the Will animo revocandi. In my view, the evidence demonstrates that the Deceased:
(a) took his Will away from Mr Velos on the day he made it;
(b) likely misplaced the original Will between the date of the Will and July 2019;
(c) obtained a copy of the Will from his former solicitor, Mr Velos, via his new solicitor, Mr Venizelakos;
(d) never made a new will with Mr Venizelakos despite raising the possibility in November 2018, July 2019, and August 2020;
(e) is unlikely to have made a new will elsewhere as Mr Venizelakos continued to act for the Deceased until at least 2020; and
(f) is unlikely to have destroyed the Will animo revocandi without at the same time making a new one.
On this basis, I accept the that it is more probable than not that the Deceased died never having destroyed the Will, whether animo revocandi or otherwise.
It must follow that the presumption of destruction is rebutted and a copy of the Will should be admitted to probate, subject to the requirements of the Registrar of Probates and limited until the original will or a more authentic copy is filed in the proper office of the Court.
However, even if it were the case that despite the Orders of Keith JR that Joanna bring the Will into Court, the original Will is still located at the Property, or that Joanna destroyed it, there would not be any obstacle in my view to admitting a copy of the Will to probate.
Conclusion
The plaintiffs have overcome the presumption that the Will was destroyed by the Deceased with the intention of revoking it. A grant of probate in respect of the copy Will will be made subject to the requirements of the Registrar of Probates and limited until the original will or a more authentic copy is filed in the proper office of the Court.
Costs
In this matter, the plaintiffs seek that the costs of and incidental to the notice to produce be paid by Joanna personally although she is not a party to this proceeding.
The starting point in respect of costs is the Court’s general power as to costs. Unless otherwise expressly provided by an Act or by the Rules, the costs of and incidental to all matters in the Supreme Court are in the discretion of the Court, and the Court has full power to determine by whom and to what extent the costs are to be paid.[11]
[11]Supreme Court Act 1986 (Vic) s 24(1).
Section 24(1) of the Supreme Court Act 1986 (Vic) (‘Supreme Court Act’) provides:
Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid.
The discretion vested in a judge under s 24 of the Supreme Court Act is a broad one. Provided that discretion is exercised judicially, it includes the power to order that costs be paid by a person who is not a party to the proceeding.
In Knight v FP Special Assets Limited,[12] (‘Knight’) Mason CJ and Deane J (Guadron J agreeing) of the High Court stated:
For our part, we consider it appropriate to recognize a general category of case in which an order forcosts should be made against a non-party and which would encompass the case of a receiver of a company who is not a party to the litigation. That category of case consists of circumstances where the party to the litigation is an insolvent person or a [person] of straw, where the non-party has played an active part in the conduct of the litigation and where the non-party, or some person on whose behalf he or she is acting or by whom he or she has been appointed, has an interest in the subject of the litigation. Where the circumstances of a case fall within that category, an order for costsshould be made against the non-party if the interests of justice require that it be made.
[12](1992) 174 CLR 178, 192-193.
In Carter v Caason Investments Pty Ltd,[13] the Court of Appeal, referring to the decision in Knight, stated:
Each case must depend on its own particular facts. There are, however, a number of factors that are commonly taken into account in determining whether or not to exercise the judicial discretion in favour of making an order against a non-party. Such matters include: the financial position of any party against whom a costs order would be made; whether there have been orders made for security for costs; whether the non-party has a ‘real interest’ in the litigation, and if so, its extent; the amount of funding contributed by the non-party; and whether the non-party has agreed to provide an indemnity if an adverse costs order is made against a funded party.
[13][2016] VSCA 236, [13].
It is an established principle of probate practice that any person having an interest may have himself made a party by intervening, and that if he, knowing what was passing, does not intervene, but is “content to stand by and let his battle be fought by somebody else in the same interest”, he is bound by the result, and is not to be allowed to re-open the case.[14]
[14]Osborne v Smith (1960) 105 CLR 153, 158-9 (Kitto J).
In this proceeding, on 11 October 2023, the Assistant Registrar or Probates made this requisition:
From the evidence filed to date it appears the plaintiff believes the original Will is held at the premises of the deceased. I note the proceeding S ECI 2023 00943. If the plaintiff is unable to otherwise obtain the original Will, further orders ought to be sought in relation to obtaining the original Will of the deceased.
The requisition appears to have arisen from the affidavit of John and Polixeni filed on 4 October 2023, where the plaintiffs depose to their belief that the Will was located at the Property. Regrettably, having regard to the status of the Related Proceeding, and Joanna’s conduct, no further substantive orders could be sought in that proceeding because final relief had been granted and the proceeding had been otherwise dismissed (save for liberty to apply for the working out the orders). That has necessitated the Plaintiffs filing the notice to produce to bring the grant of probate.
No criticism is made of the Probate Registry. But for Joanna’s conduct, the plaintiffs would not have been required to file a notice to produce. If Joanna had brought the Will in as ordered (if it existed), or permitted the plaintiffs to search the entirety of the Property, the plaintiffs would have been able to prove the original Will or satisfy the Probate Registry that a copy of the Will should be admitted to probate.
The necessity for filing a notice to produce arose from Joanna’s conduct in the Related Proceeding and has necessitated the notice to produce in this proceeding. In the circumstances, I consider it appropriate that she be required to pay the costs of the plaintiffs’ notice to produce. However, as an application for probate was necessary, I will limit the costs order to the costs of and incidental to the notice to produce, rather than the probate application generally. I will further order that those costs be borne by Joanna’s share of the estate.
0
7
0