Re Kizelis - [2019] VSC 667

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2018 18338

IN THE MATTER of the will of GUSTAVAS KIZELIS, deceased

APPLICATION BY:

SONIA ANNA MARIA MOLLUSO and VICTOR JOHN PATRICK KIZELIS (in the will called Viktor John Patrick Kizelis)

Plaintiffs

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	2 October 2019
CASE MAY BE CITED AS:	Re Kizelis
MEDIUM NEUTRAL CITATION:	[2019] VSC 667

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WILLS AND ESTATES — Where caveator objected to grant of probate — Where caveator required to file amended particulars of objection — Whether amended particulars establish a prima facie case — Whether case for investigation or something to ‘go on’ — Gardiner v Hughes [No 2] [2019] VSCA 198.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Ms E Coates	Burke & Associates Lawyers Pty Ltd
For the Caveator	Mr JD Mattin	Robertson Legal & Conveyancing Lawyers Pty Ltd

HER HONOUR:

Introduction

Gustavas Kizelis died on 25 July 2018 aged 99 years. At the date of his death, the deceased was a widower, his wife having predeceased him on 2 July 2015. The deceased was survived by his two adult children, being the second plaintiff and the caveator. The first plaintiff is the deceased’s granddaughter-in-law, having married the caveator’s son, who predeceased the deceased.

The deceased’s will dated 27 August 2015 appoints the plaintiffs as the executors and trustees of his estate and bequeaths his residuary estate in proportions of 47.5 per cent to each of the plaintiffs and 5 per cent to the caveator. The will was prepared by the firm of Balbata & Associates, solicitors in Essendon. The deceased’s signature was witnessed by Leo Rimantas Balbata, solicitor, and Jennifer Adele Jones, legal secretary. At the date of execution of his will, the deceased was aged 96 years and five months.

Application by plaintiffs

By originating motion filed 2 November 2018, the plaintiffs seek a grant of probate of the deceased’s will. The inventory of assets and liabilities filed in support of the application records a net estate of $1,341,515.61.

Procedural history

On 20 August 2018, the caveator filed a caveat, requiring him to be notified before anything was done in relation to the estate. On 30 November 2018, the caveator filed grounds of objection to the grant, alleging that the deceased lacked testamentary capacity, that the deceased was the subject of undue influence by the first plaintiff, and that the deceased did not know and approve of the contents of the will.

At the first directions hearing on 1 February 2019, the caveator sought orders that included adding her as a party in the proceeding and requiring the plaintiff to produce, by way of discovery, medical and testamentary documentation. The plaintiffs submitted that the caveator’s grounds of objection were vague and did not particularise or substantiate the caveator’s allegations. Orders were made requiring the caveator to file and serve amended particulars of 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 Kizelis

Details

AGLC: Re Kizelis [2019] VSC 667
Case: [2019] VSC 667
Decision Date: 2 October 2019

CaseChat Overview and Summary

In the matter of Re Kizelis, the deceased, the court faced a dispute concerning the validity of the grant of probate of the deceased’s will. The deceased’s son, who was the caveator, objected to the grant of probate. The son argued that the will was not validly executed and was influenced by undue influence. The matter was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the caveator had established a prima facie case that the grant of probate should not be made. This required the court to consider the sufficiency of the amended particulars of objection filed by the caveator. The court was also required to determine whether the caveator had presented a case with enough substance to warrant an investigation into the validity of the will, in line with the principles set out in Gardiner v Hughes [No 2] [2019] VSCA 198.

The court found that the caveator had not presented a prima facie case against the grant of probate. The amended particulars of objection did not establish a credible or plausible case that the will was invalid. The court emphasised that for a case to be sufficient, it needed to go beyond mere assertions and provide some substance or evidence to support the claims of undue influence. The court held that the caveator’s amended particulars were insufficient in this regard. Consequently, the court dismissed the caveat and granted the application for probate.

The final order of the court was the grant of probate of the deceased’s will. The court held that the caveator had not discharged the onus of establishing a prima facie case against the validity of the will, and therefore the application for probate was to be granted.

Orders