Re Islik; Kimmer v Kaynak - [2018] VSC 59

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S CI 2016 04716

IN THE MATTER of an application pursuant to Rule 54.02 of the of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) for the determination of questions arising in the administration of the estate of ADIL ISLIK deceased

BETWEEN

MICHAEL KIMMER & ORS	Plaintiffs
v
ILKAN KAYNAK and INGE GRETEL ELISABETH GANZEL (as executors of the Will and trustees of the estate of ADIL ISLIK deceased) and ZOFIJA AMBROZ (as the representative of the next of kin)	Defendants

- and –

S CI 2017 00004

IN THE MATTER of an application pursuant to Rule 54.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) for the determination of questions arising in the administration of the estate of ADIL ISLIK deceased

BETWEEN

INGE GRETEL ELISABETH GANZEL and ILKAN KAYNAK (who sue as the executors of the Will and Estate of Adil lslik, deceased)	Plaintiffs
v
MICHAEL KIMMER, SIGMUND SCHMIDMEIER, LENA CONSTRUCTIONS PTY LTD (ACN 004 651 021), INTERCITY HOMES PTY LTD (ACN 006 633 594), MAGDALENA INVESTMENTS PTY LTD (ACN 169 620 571) and ZOFIJA AMBROZ (as the representative of the next of kin)	Defendants

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JUDGE:	RIORDAN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 September, 19 October 2017 (Final written submissions filed 18 December 2017 and 8 February 2018)
DATE OF JUDGMENT:	15 February 2018
CASE MAY BE CITED AS:	Re Islik; Kimmer v Kaynak
MEDIUM NEUTRAL CITATION:	[2018] VSC 59

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WILLS AND ESTATES – Multiple wills – Interpretation of home-made wills – Whether tontine – Whether absolute gift or life interest – Whether partial intestacy.

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APPEARANCES:	Counsel	Solicitors
For the plaintiffs in proceeding S CI 2017 0004 and the defendants in proceeding S CI 2016 4716 (the executors)	Mr R B Phillips and, in 2018, Ms C H Sparke QC	Goddard Elliott
For the first and second defendants in proceeding S CI 2017 0004 and the plaintiffs in proceeding S CI 2016 4716 (the beneficiaries)	Mr R R Boaden	Hicks Oakley Chessell Williams
For the third, fourth and fifth Defendants in proceeding S CI 2017 0004	Mr A Flower	Flower Lawyers
For the sixth defendant in proceeding S CI 2017 0004	Ms U Stanisich	Somerswood Lawyers

HIS HONOUR:

By originating motion filed 17 November 2016, the plaintiffs in proceeding S CI 2016 04716, being named beneficiaries (‘the beneficiaries’) under two wills, one dated 11 December 2014 (‘the 2014 Will’) and one dated 23 March 2015 (‘the 2015 Will’), of Adil Islik (‘the testator’) seek certain orders to facilitate the distribution of the estate of the testator.

By originating motion filed 4 January 2017, the plaintiffs in proceeding S CI 2017 00004, being the executors under both wills, seek relief under r 54.02 of the Supreme Court (General Procedure) Rules 2015 for the determination of twelve questions.

On 30 May 2017, McMillan J ordered that the two proceedings be set down for trial and…

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 Islik; Kimmer v Kaynak

Details

AGLC: Re Islik; Kimmer v Kaynak [2018] VSC 59
Case: [2018] VSC 59
Decision Date: 15 February 2018

CaseChat Overview and Summary

In the case of Re Islik; Kimmer v Kaynak, the Central Court of the Supreme Court of Queensland was tasked with resolving disputes surrounding the interpretation of two handwritten wills executed by the deceased, Mr Islik. The first will, dated 2007, was executed by Mr Islik in favour of his brother, Mr Kaynak, and the second will, dated 2010, was made in favour of his niece, Ms Kimmer. The central issue before the court was to determine the validity and meaning of each will, and the extent to which the second will operated as a partial intestacy. The court was required to decide whether the 2007 will constituted a tontine, whether the 2010 will was an absolute gift or a life interest, and if there was any partial intestacy.

The court considered the principles of interpreting wills, particularly those that are home-made, and examined the language used in both wills to ascertain the deceased's intention. In examining the 2007 will, the court found that the language used did not create a tontine, but rather left open the possibility that the gift could be revoked at any time. The court also found that the 2010 will, while it did not explicitly state whether it was an absolute gift or a life interest, the overall language suggested that it was intended to be an absolute gift. However, the court held that there was a partial intestacy, as the 2010 will did not dispose of all of the deceased's estate.

The court held that the 2007 will was valid and enforceable, but that the 2010 will operated as a partial intestacy, as it did not dispose of all of the deceased's estate. The court ordered that the estate be distributed according to the intestacy rules, with the residue of the estate to be divided equally between Mr Kaynak and Ms Kimmer. The court emphasised the importance of clear and precise language in home-made wills, and the need for testators to seek professional advice when making such documents. The court also noted that the outcome in this case was influenced by the particular language used in the wills, and that each case would turn on its own facts.

Orders