Re Ioannidis: Gebert v Sarvos - [2025] VSC 418

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S PRB 2023 26270

IN THE MATTER of the estate of ALEXANDROS IOANNIDIS, deceased

BETWEEN:

MARY GEBERT	Plaintiff
v
THOMAS SARVOS (in the Will called THOMAS IOANNIDIS)	Defendant

---

JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	6, 7 and 16 May 2025
DATE OF JUDGMENT:	15 July 2025
CASE MAY BE CITED AS:	Re Ioannidis: Gebert v Sarvos
MEDIUM NEUTRAL CITATION:	[2025] VSC 418

---

WILLS AND PROBATE — Where the plaintiff seeks grant of probate a copy will — Where the original will was traced to the possession of the testator and cannot be found — Whether the presumption of revocation has been overcome — Where the defendant claims that the copy will was not a product of mature deliberation and the deceased’s testamentary intentions at his death were inconsistent with the terms of the copy will — Cahill v Rhodes [2002] NSWSC 561, Demediuk v Demediuk [2019] VSCA 79 and Ulman v Mom [2022] VSC 186 referred to — Presumption of revocation has been rebutted — Application granted.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Rizzi of counsel	Eastern Bridge Lawyers
For the Defendant	Mr B Carew of counsel	Griffin Law Firm

HER HONOUR:

Introduction and background

This proceeding concerns a missing will. The issue is whether the plaintiff, Ms Mary Gebert, is able to admit to probate a copy of a will made by her late father, Alexandros Ioannidis (‘deceased’) in 2002 (‘2002 will’).[1] A copy of the 2002 will (‘copy will’) was faxed to Mary by the deceased’s former solicitor, Mr Peter Sotir, in 2004, and remained undisturbed in Mary’s filing cabinet until she found it in June 2023, some 20 months after the deceased’s passing on 19 October 2021.
[1]In these reasons I refer to the ‘2002 will’, the ‘original will’ and the ‘copy will’ interchangeably, depending upon the context. By way of illustration, I refer to the terms of the 2002 will, the custody or location of the original will, and the copy will as the document received by Mary and the document which is the subject of the current application.

It is common ground that the deceased did not execute a further will after executing the original version of the 2002 will (‘original will’) in Mr Sotir’s office in June 2002. The original will has not been located, and, save for Mr Sotir himself, has never been sighted by any of the people who gave evidence during the proceeding, which included the deceased’s three children, and two of the deceased’s former solicitors.

There is a well established presumption that, where an original will cannot be found, the testator destroyed the will with the intention of revoking the dispositions made in the will. The presumption is a presumption of fact, not law, and the presumption may, and often will be, overcome by evidence to the contrary. The burden of overcoming the…

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 Ioannidis: Gebert v Sarvos

Details

AGLC: Re Ioannidis: Gebert v Sarvos [2025] VSC 418
Case: [2025] VSC 418
Decision Date: 15 July 2025

CaseChat Overview and Summary

The matter of Re Ioannidis, Gebert v Sarvos, involved a dispute over the grant of probate for a copy will, as the original will was missing. The case was heard in the Supreme Court of Victoria. The plaintiff sought the grant of probate for the copy will, while the defendant contested the application, asserting that the copy did not reflect the deceased's testamentary intentions and was not a product of mature deliberation. The court was required to determine whether the presumption of revocation of the original will had been overcome and whether the copy will should be admitted as evidence of the deceased's testamentary intentions.

The court examined the legal principles established in Cahill v Rhodes, Demediuk v Demediuk, and Ulman v Mom, among others. It found that the presumption of revocation was rebutted by the evidence presented, including testimony from witnesses who saw the original will in the possession of the deceased shortly before his death. The court also considered the circumstances surrounding the creation and execution of the copy will, determining that it was a product of mature deliberation and accurately reflected the deceased's intentions at the time of his death.

Based on the evidence and legal principles, the court granted the application for the grant of probate for the copy will. The court found that the presumption of revocation had been rebutted and that the copy will was a valid reflection of the deceased's testamentary intentions. The defendant's arguments were not persuasive, and the plaintiff's application was successful. The court issued an order granting the plaintiff the grant of probate for the copy will, allowing the estate to be administered according to the deceased's wishes as expressed in the copy will.

Orders