Re Matsis; Charalambous v Charalambous

SUPREME COURT OF QUEENSLAND

CITATION:

Re Matsis; Charalambous v Charalambous & Ors [2012] QSC 349

PARTIES:

CARL CHARALAMBOUS
(Applicant)
v
ESTHER CHARALAMBOUS
(First Respondent)
HARRY CHARALAMBOUS
(Second Respondent)
JOHN PAUL CHARALAMBOUS
(Third Respondent)

FILE NO/S:

9982 of 2012

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

Delivered ex tempore on 1 November 2012

DELIVERED AT:

Brisbane

HEARING DATE:

1 November 2012

JUDGE:

Ann Lyons J

ORDER:

Pursuant to s 22 of the Succession Act1981 (Qld) (“the Act”), the Applicant have leave to apply for an Order pursuant to s 21 of the Act that a Codicil be authorised to be made to John Matsis;1.          

Pursuant to s 21 of the Act, a Codicil be authorised to be made for John Matsis in terms of the Draft Codicil which is Exhibit “DJB-3” to the Affidavit of David John Bowles filed 25 October 2012; and2.          

The Applicant’s costs of and incidental to the Originating Application be assessed on the indemnity basis and paid out of the assets of John Matsis.3.          

CATCHWORDS:

SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – where the applicant seeks a statutory codicil to be made on behalf of his grandfather who does not have capacity to alter his will – where the codicil is that the gift of the residuary estate is to be held on three testamentary trusts for the benefit of the applicant and his siblings instead of passing to them outright – whether the proposed codicil is the codicil the grandfather may make were he to have capacity

Succession Act 1981, s 21, s 21(1)(a), s 22, s 23, s 23(k), s 24(d)

InRe D(J) [1982] Ch 237
McKay v McKay & Ors [2011] QSC 230
Re Fenwick [2009] NSWSC 530
Re Keane; Mace v Malone [2011] QSC 49

COUNSEL:

R D Williams for the Applicant

SOLICITORS:

The Law Place for the Applicant

ANN LYONS J:

Background

1. This application, pursuant to the Succession Act 1981 (Qld) (“the Act”) for a statutory codicil, was filed on 25 October 2012. The applicant, Carl Charalambous, is one of the three grandsons of John Matsis, a 90 year old man who does not have capacity to alter his will. Mr Matsis is possessed of a large and valuable estate, which is valued in excess of $13 million.

1. The first respondent is Mr Matsis’ adopted daughter, Esther Charalambous (“Esther”). The second and third respondents are Mr Matsis’ grandsons, namely Harry and John Paul.  Harry and John Paul are, together with Carl, the sons of Esther.

1. Mr Matsis has an existing will dated 14 May 2001.  Under that will, his estate passes as follows:  his house at Spring Street West End is left to John Paul; the residuary estate to such of Harry, Carl and John Paul as survive Mr Matsis for 30 days, and if more than one, as tenants in common in equal shares.

1. Esther is not a beneficiary under the will and does not have any need for…