JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 May 2016
DATE OF JUDGMENT:	29 September 2016
CASE MAY BE CITED AS:	Re Demediuk
MEDIUM NEUTRAL CITATION:	[2016] VSC 587

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PROBATE — Alleged testamentary undue influence by plaintiff — Hall v Hall (1868) LR 1 P&D 481 —Bailey v Bailey (1924) 34 CLR 558 — Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker & Anor [2007] NSWCA 136 —Nicholson v Knaggs [2009] VSC 64 — Schrader v Schrader [2013] EWHC 466 (Ch)

PRACTICE AND PROCEDURE — Where plaintiff seeks summary judgment — Whether defendants have no real prospect of success — Whether discretion should be exercised to allow matter to proceed to trial — Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 — Mandie v Memart Nominees Pty Ltd [2016] VSCA 4 – Civil Procedure Act, ss 62, 63(1), 64 — Supreme Court (General Civil Procedure) Rules 2015, r 23.02(2)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R C Wells	Aitken Partners
For the Defendants	Mr A J Verspaandonk	Arnold Bloch Leibler

HER HONOUR:

Introduction

Peter Demediuk (‘the deceased’) died on 15 February 2013, aged 93. His wife, Taisa Demediuk, (‘Taisa’) pre-deceased him on 31 October 2011. The deceased was the sole beneficiary under Taisa’s will.

The deceased was survived by his four adult children: Barbara Demediuk (‘the plaintiff’ or ‘Barbara’) and Peter Mark Demediuk, Sandra Willis and Nicholas Ivan Demediuk (‘the defendants’ or ‘Peter’, ‘Sandra’, ‘Nicholas’).

After Taisa’s death in October 2011, the deceased made a will dated 10 February 2012 (‘the February will’), which was his penultimate will. The February will appoints all four of his children as executors and trustees of his estate and the deceased leaves his interests in his properties, stocks and shares to his four children allocated in accordance with a schedule contained in the will.

The deceased’s last will was dated 27 June 2012 (‘the June will’). It is a four page document consisting of two original pages numbered ‘1 of 3’ and ‘2 of 3’ and two further photocopied pages both numbered ‘3 of 3’. The June will appoints all four of his children as executors and trustees of his estate and the deceased also leaves his interests in his properties, stocks and shares to his four children in accordance with a schedule in the will, but not the same allocation as in his February will.

On 31 July 2015, the defendants filed a caveat requiring notice be given to them in respect of any application made in connection with the June will or the estate of the deceased.

On 26 August 2015, the plaintiff filed an application for grant of probate of the June will, with leave being…

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 Demediuk

Details

AGLC: Re Demediuk [2016] VSC 587
Case: [2016] VSC 587
Decision Date: 29 September 2016

CaseChat Overview and Summary

The plaintiff, a beneficiary under the will of the deceased, brought an action against the executors and a family member of the deceased, claiming undue influence over the deceased in the creation of the will. The defendants denied the allegations and the case was heard in the Supreme Court of Victoria. The plaintiff sought summary judgment, arguing that the defendants had no real prospect of success in defending the claims. The defendants opposed the application, arguing that there were genuine issues of fact and law that should be determined at trial.

The court was required to decide whether the defendants had any real prospect of successfully defending the claims of undue influence. The court considered the evidence presented by both parties and assessed whether there were any genuine issues of fact or law that should be determined at trial. The court also considered whether, in the exercise of its discretion, the matter should proceed to trial.

The court found that there were genuine issues of fact and law that required determination at trial. The court held that the evidence presented by the defendants was sufficient to establish a real prospect of successfully defending the claims. The court also found that the exercise of its discretion under the Civil Procedure Act should be exercised in favour of the defendants, allowing the matter to proceed to trial. The plaintiff's application for summary judgment was therefore dismissed.

The court made no orders as to costs.

Orders