JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 March 2017
DATE OF RULING:	5 May 2017
CASE MAY BE CITED AS:	Re Demediuk (No 2)
MEDIUM NEUTRAL CITATION:	[2017] VSC 236

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EVIDENCE – Plaintiff’s objections to defendants’ affidavits – Whether matters objected to are inadmissible or should otherwise be excluded – Evidence Act 2008, ss 55, 135, 140.

WILLS AND ESTATES – Application for grant of probate – Caveat lodged on grounds of testamentary undue influence, alternatively, revocation of deceased’s will.

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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

The plaintiff and the defendants are siblings. They are the adult children of Peter Demediuk, deceased, who died on 15 February 2013.

On 26 August 2015, the plaintiff filed an application for a grant of probate of the deceased’s will dated 27 June 2012 (‘the June will’). The defendants object to the plaintiff’s application for a grant on the grounds of undue influence by the plaintiff and that the June will was revoked by the deceased.

The plaintiff issued a summons seeking dismissal of certain grounds of the defendants’ objections to the grant. Judgment of the summary dismissal application was delivered on 29 September 2016.[1] Orders were made, inter alia, that the defendants file amended grounds of particulars of their claim of testamentary undue influence so as to identify their claim clearly and the parties attempt to reach agreement on the objectionable statements in the defendants’ affidavits, failing which the proceeding will be relisted for determining any unresolved objections to the defendants’ affidavits.
[1]Re Demediuk [2016] VSC 587 (29 September 2016).

On 9 November 2016, the defendants filed amended grounds of particulars of their claim of testamentary undue influence (‘the amended undue influence claim’). In turn, on 15 December 2016, the plaintiff filed amended objections to the defendants’ affidavits (‘the objections’). The parties reached some limited agreement regarding the disputed parts of the affidavits, however, the defendants dispute the vast majority of the plaintiff’s objections.[2]
[2]In respect of certain paragraphs of the affidavit of Volodymir Vsevolod Galashchuk sworn 14 March 2016, see [15] and [27] below.

The defendants’ amended undue influence claim
Amended undue influence claim

The amended undue influence claim deletes the particulars of undue influence previously contained in 4(a)–(q),[3] and replaces them with paragraphs 4.1–4.13 now set out:
[3]Re Demediuk [2016] VSC 587 (29 September 2016) [9] (McMillan J).

Further and/or in the alternative to paragraph 2 hereof, the June Will was procured by the undue influence of the Plaintiff in support of which the Defendants rely on the following facts, matters and circumstances.
PARTICULARS
4.1At the time the June Will was made it was apparent 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 Re Demediuk (No 2)

Details

AGLC: Re Demediuk (No 2) [2017] VSC 236
Case: [2017] VSC 236
Decision Date: 5 May 2017

CaseChat Overview and Summary

The case of Re Demediuk (No 2) involved the plaintiff, who sought a grant of probate for the will of the deceased. The defendants lodged a caveat, raising concerns of undue influence and an alleged revocation of the will. The matter was heard in the Supreme Court of Victoria. The primary focus was on the admissibility of certain affidavits presented by the defendants, which the plaintiff contested on the basis that they were inadmissible or should otherwise be excluded.

The court was tasked with determining whether the affidavits in question were admissible under the Evidence Act 2008. Specifically, it needed to consider sections 55, 135, and 140 of the Act, which relate to the admissibility of evidence, the exclusion of evidence on the grounds of unfairness, and the discretion to exclude evidence that could be oppressive to a party. The court had to balance the probative value of the affidavits against the potential prejudice they might cause to the plaintiff.

In examining the affidavits, the court found that the matters raised by the defendants were relevant to the issues of undue influence and revocation. The court held that the probative value of the evidence outweighed any potential prejudice to the plaintiff. Consequently, the affidavits were deemed admissible, and the caveat was dismissed. The court granted the plaintiff's application for a grant of probate.

The court's final order was that the caveat lodged by the defendants was dismissed, and the plaintiff was granted the probate of the deceased's will. This decision underscored the importance of considering both the relevance and the potential prejudice of evidence when deciding on its admissibility in probate matters.

Orders