JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	Written submissions
DATE OF JUDGMENT:	5 April 2023
CASE MAY BE CITED AS:	Re Kairouz
MEDIUM NEUTRAL CITATION:	[2023] VSC 168

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WILLS AND ESTATES – Application to admit informal will to probate – Whether deceased had testamentary capacity – Whether deceased intended informal will to be her will – Application granted – Wills Act 1997, ss 7 and 9 – Evidence Act 2008, s 140 – Banks v Goodfellow (1870) LR 5 QB 549 ; Timbury v Coffee (1941) 66 CLR 277; Equity Trustees Ltd v Levin [2004] VSC 203; Estate of Brock [2007] VSC 415; Re White; Montgomery & Anor v Taylor [2018] VSC 16; Sultanova v Bolgarow [2019] VSCA 245; Re Martin (2019) 59 VR 584.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Stephen Marantelli	Cosgriff Lawyers

HIS HONOUR:

Paula Kairouz died on 12 July 2021 at the age of 44, leaving a document dated 28 January 2021 which she signed and which was described as a will (the 2021 document). The 2021 document does not, however, comply with the formal requirements for the execution of a will because it was not made or acknowledged by the deceased in the presence of two or more witnesses as required by s 7(1)(c) of the Wills Act 1997 (the Act).

The 2021 document appoints the deceased’s sister, the plaintiff in the proceeding, as executor and trustee of the deceased’s estate.

On 20 May 2022, the plaintiff filed an amended originating motion for a grant of probate of the 2021 document.

Factual background

At the time of her death, the deceased was working as an in-house commercial lawyer for a company that develops medical technologies.

The 2021 document was prepared by the deceased’s solicitors and is comprised of six pages. It makes the following provisions:

(a) The plaintiff is appointed as executor and trustee of the deceased’s estate in the first instance, with the deceased’s brother, Tamer Kairouz (Tamer) to act as executor and trustee in the event the plaintiff is unable or unwilling to act.

(b) Gifts the deceased’s jewellery equally between the deceased’s nephew and nieces.[1]

(c) Gifts the deceased’s artwork, cars, furnishings and chattels to the deceased’s husband, Adam Stephen Pilling (Adam), who is referred to in the 2021 document as the deceased’s fiancé.

(d) Gives the deceased’s residuary estate to the plaintiff, with a reserve distribution of the residuary estate to the deceased’s nephew and nieces in the event the plaintiff does not survive the deceased.

[1]Tony Xavier Kairouz, Olivia Leila Kairouz, Marian Rose Kairouz and Catherine Christiana Kairouz (the deceased’s nephew and nieces).

As noted above, the 2021 document…

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 Kairouz

Details

AGLC: Re Kairouz [2023] VSC 168
Case: [2023] VSC 168
Decision Date: 5 April 2023

CaseChat Overview and Summary

The applicant sought the court's approval to admit to probate an informal will of the deceased. The deceased passed away in May 2020, and the application was brought in the Supreme Court of Victoria. The application was contested by two of the deceased’s daughters who challenged the validity of the informal will on the basis that the deceased lacked testamentary capacity and that the informal document was not intended to be her will. The court had to decide whether the deceased had testamentary capacity at the time of making the informal will and whether the document in question was intended to be her will.

The court considered the evidence of the witnesses, including the testimony of the deceased's daughters, and other evidence including the deceased's medical history. The court concluded that the deceased had testamentary capacity at the time of making the informal will. The court also concluded that the deceased intended the informal document to be her will. The court found that the deceased's medical history did not necessarily mean that she lacked testamentary capacity. The court also found that the content of the informal will demonstrated the deceased's intention that it was to be her will.

The court granted the application to admit the informal will to probate. The court found that the deceased had testamentary capacity at the time of making the informal will and that the informal document was intended to be her will. The court also found that the provisions of the informal will were clear and unambiguous. The court ordered that the informal will be admitted to probate.

Orders