Re Bourikas - [2024] VSC 96

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

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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

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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.

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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…

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 Re Bourikas

Details

AGLC: Re Bourikas [2024] VSC 96
Case: [2024] VSC 96
Decision Date: 6 March 2024

CaseChat Overview and Summary

In the matter of Re Bourikas, the plaintiffs sought a grant of probate of a copy will, following the death of the deceased, Mr Bourikas. The original will could not be found, and the plaintiffs sought to rebut the presumption of revocation. The case was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether the presumption of revocation could be rebutted and if the weight of this presumption could be overcome by the evidence presented by the plaintiffs.

The court examined the relevant legal principles and precedents, including Ulman v Mom, Cahill v Rhodes, Re Demediuk, and Re Moschoudis. The court considered the deceased's refusal to prepare a new will as a relevant factor in determining whether the presumption of revocation had been rebutted. The court also considered the weight to be given to presumptions of fact in the context of the case. Ultimately, the court found that the presumption of revocation had not been sufficiently rebutted by the evidence presented by the plaintiffs.

The court denied the grant of probate to the copy will, finding that the presumption of revocation had not been overcome. The court held that the deceased's refusal to prepare a new will was not sufficient to rebut the presumption of revocation, and that the weight of this presumption could not be overcome by the evidence presented. The plaintiffs' application for the grant of probate was dismissed.

Orders