Re Kalenyouk - [2024] VSC 390

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
IN ITS PROBATE JURISDICTION
TRUSTS, EQUITY AND PROBATE LIST

S PRB 2022 12707

IN THE MATTER of the Estate of GEORGE KALENYOUK, deceased

AND

IN THE MATTER of an application pursuant to s 9 of the Wills Act 1997

APPLICATION BY:

MARTIN JOHN HASTWELL (in the Will called MARTIN HASTWELL)

Plaintiff

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JUDGE:	GRAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 June 2024
DATE OF JUDGMENT:	5 July 2024
CASE MAY BE CITED AS:	Re Kalenyouk
MEDIUM NEUTRAL CITATION:	[2024] VSC 390

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WILLS AND ESTATES — Application to admit informal will to probate — Wills Act 1997 s 9 — Affected persons entered into deed with executor altering dispositions — Affected persons resident overseas and communicating in another language through an intermediary — Undertaking by executor not to diverge from terms of informal will without seeking judicial advice — Supreme Court (General Civil Procedure) Rules 2015 O 54.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Smith	iWills Legal

HIS HONOUR:

Should I admit to probate a handwritten document entitled ‘Will’ that appears to have been prepared by the deceased four days before his death?

Facts

George Kalenyouk, the deceased, made a will on 20 March 2018 that by all appearances met the requirements of s 7 of the Wills Act 1997 (Wills Act). For reasons that will become clear, I will call this the penultimate will.

By the penultimate will, the deceased appointed Margaret Sarah Dixon and Doru Caleniuc to be his executors. The deceased had been in a long-term relationship with Ms Dixon, since 1994. Doru Caleniuc (Doru) was the deceased’s nephew, resident in Romania.

Under the terms of the penultimate will, the deceased gifted the money in his bank accounts to Ms Dixon and to his four Romanian nephews and nieces (Doru, Loredana Sveduneac (Loredana), Mirela Huzdup (Mirela), and Maria Sveduneac (Maria)) equally. He divided his residuary estate into three parts and gifted one part to each of:

(a) Doru and his son Darius Caleniuc (Darius) equally;

(b) Loredana and her daughter Natalia Sveduneac (Natalia, referred to as Nataly) equally; and

(c) Mirela and her son Andrei Huzdup (Andrei) equally.

Martin Hastwell, the plaintiff, is the son-in-law of Ms Dixon.

He has given evidence of the following facts, which I accept.

The deceased expressed to Mr Hastwell a number of times in the period leading up to the deceased’s death that he wished to update his will. Mr Hastwell made initial enquiries with iWills Legal, with a view to having this arranged. However, the deceased died prior to being able to formally instruct iWills Legal.

By April 2021, the deceased was gravely ill with cancer and being cared for at The Alfred hospital.

Mr Hastwell obtained advice from iWills Legal as to the requirements for submitting an informal will.

On 14 April 2021, Mr Hastwell attended at…

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 Kalenyouk

Details

AGLC: Re Kalenyouk [2024] VSC 390
Case: [2024] VSC 390
Decision Date: 5 July 2024

CaseChat Overview and Summary

The case involved an application to admit an informal will to probate, heard in the Supreme Court of Queensland. The applicant sought to have the will admitted to probate, despite objections from some beneficiaries. The deceased had drafted an informal will, which was not witnessed, but intended to be legally binding. The legal issues in the case centred on whether the will could be admitted to probate under the Wills Act 1997, and whether the affected persons' consent to the altered dispositions was properly obtained. The court had to determine whether the informal will met the requirements of section 9 of the Wills Act, and whether the affected persons' consent was valid, given their overseas residency and the use of an intermediary for communication.

The court considered whether the informal will satisfied the criteria of section 9 of the Wills Act, which permits the admission of informal wills to probate if the court is satisfied that the will is the deceased's last will and that there is no valid formal will. The court also examined the process by which the affected persons' consent was obtained. It noted that the affected persons were overseas and communicated through an intermediary, and that their consent was documented in a deed. The court found that the executor had provided an undertaking not to deviate from the terms of the informal will without seeking judicial advice, which was sufficient to protect the affected persons' interests. The court concluded that the informal will met the requirements of section 9 of the Wills Act and that the affected persons' consent was valid. The executor's undertaking further ensured that the affected persons' interests would be protected.

The Supreme Court admitted the informal will to probate, finding that it met the requirements of section 9 of the Wills Act and that the affected persons' consent was properly obtained. The court held that the executor's undertaking provided sufficient protection for the affected persons' interests. The court's decision allows the estate to be administered according to the terms of the informal will, subject to the executor's undertaking. This outcome ensures that the deceased's wishes are respected, while also protecting the interests of the affected persons.

Orders