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Re Klapsas; Klapsas v Muscat

Re Klapsas; Klapsas v Muscat

Case [2022] VSC 755 8 December 2022

Wills & Testamentary Capacity

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S PRB 2007 07156

IN THE MATTER OF THE WILL AND ESTATE OF HELEN KLAPSAS, DECEASED BETWEEN
PETER KLAPSAS	Applicant
v
CHRISTINA MUSCAT (THE EXECUTOR OF THE ESTATE OF HELEN KLAPSAS, DECEASED)	Plaintiff

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JUDGE:	WALKER JA
WHERE HELD:	Melbourne
DATE OF HEARING:	4 October 2022
DATE OF JUDGMENT:	8 December 2022
CASE MAY BE CITED AS:	Re Klapsas; Klapsas v Muscat
MEDIUM NEUTRAL CITATION:	[2022] VSC 755

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WILLS & ESTATES – Application to revoke probate – Deceased had made will in 1981 distributing most of estate to only son – Deceased made will in 2002 revoking earlier will and distributing estate to only daughter – Whether suspicious circumstances as to deceased’s knowledge and approval of 2002 Will – Deceased had limited ability to read English – 1981 Will contained attestation clause regarding inability to read English but 2002 Will did not – No evidence from solicitor about circumstances in which 2002 Will was made – Dispute as to whether both daughter and son were present during execution of 2002 Will – Son had financial issues that explained change of beneficiary – Suspicious circumstances not established – Application to revoked probate dismissed.

Nock & Austin (1918) 25 CLR 519; Veall v Veall (2015) 46 VR 123; Tobin v Ezekiel (2012) 83 NSWLR 757, applied; Hawes v Burgess [2013] EWCA Civ 74, discussed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms P Carey	Patrick Smith Lawyers
For the Plaintiff	Ms C Sparke KC	Dellios West & Co

HER HONOUR:

Introduction

Helen Klapsas died on 7 November 2006. She was survived by two children: Peter Klapsas, who is the applicant in this matter; and Christina Muscat (at the time known as Christina Gagatsis), who is the plaintiff in this matter.[1]
[1]Without any disrespect to the parties, first names will be used because several of the relevant persons share a common surname.

Helen left a will dated 6 March 2002 (the ‘2002 Will’). The 2002 Will was drafted by the firm of Rush & Failla Solicitors (the ‘solicitors’). It appointed Christina as the sole executor and trustee of the estate and left the entire residual estate to her. The estate was principally comprised of a property in Reservoir.

Helen had made a previous will at the same time as her late husband, Aoanis Klapsas (also known as John), dated 4 August 1981 (the ‘1981 Will’). The 1981 Will appointed Aoanis as the executor and trustee of the estate; if he predeceased Helen, Peter was appointed as the alternative executor and trustee. The 1981 Will distributed the estate as follows:

(a) the entire residual estate to Aoanis;

(b) if Aoanis predeceased Helen, the entire residual estate to Peter; and

(c) a $500 gift to Christina (at the time known as Christina Catipovski).

Aoanis died on 25 February 2002 and his funeral was held on 28 February 2002.

The 1981 Will was formally…

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 Klapsas; Klapsas v Muscat

Details

AGLC: Re Klapsas; Klapsas v Muscat [2022] VSC 755
Case: [2022] VSC 755
Decision Date: 8 December 2022

CaseChat Overview and Summary

The applicant, a son, sought to revoke a grant of probate of the will of his father, who had passed away in 2014. The father had originally made a will in 1981, which left the majority of his estate to the son. However, in 2002, the father executed a new will, revoking the 1981 will and leaving his estate to his daughter. The son alleged suspicious circumstances surrounding the execution of the 2002 will, particularly given that the father had limited ability to read English, and the 2002 will did not contain an attestation clause to that effect. The son further claimed that both he and his sister were not present during the execution of the 2002 will. The court was required to determine whether there were suspicious circumstances regarding the execution of the 2002 will, warranting the revocation of the grant of probate.

The court noted that the son had not established any suspicious circumstances regarding the execution of the 2002 will. The court held that the absence of an attestation clause in the 2002 will did not necessarily indicate suspicious circumstances, given that the father had executed a will in 1981 with such a clause. The court further found that there was no evidence from the solicitor who prepared the 2002 will regarding the circumstances in which it was executed. The court also rejected the son's claim that both he and his sister were not present during the execution of the 2002 will, finding that there was insufficient evidence to support this allegation. The court held that the son had not discharged the onus of proof to establish suspicious circumstances regarding the execution of the 2002 will.

The court dismissed the son's application to revoke the grant of probate, finding that there were no suspicious circumstances regarding the execution of the 2002 will. The court held that the change in the beneficiary of the will was not, in itself, sufficient to establish suspicious circumstances. The court also noted that the son's financial issues did not necessarily explain the change in the beneficiary of the will. The court held that the daughter was entitled to the estate under the terms of the 2002 will. The court made no orders as to costs.

Orders