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Re Moschoudis

Re Moschoudis

Case [2016] VSC 139 8 April 2016

Presumption of Revocation

Summary Judgment

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PROBATE LIST

S PRB 2015 15743

GEORGE JASON MOSCHOUDIS & PAUL ANTHONY WESLEY-SMITH	Plaintiffs
v
CONSTANTINE SOULTANAKIS	Caveator

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 February 2016
DATE OF JUDGMENT:	8 April 2016
CASE MAY BE CITED AS:	Re Moschoudis
MEDIUM NEUTRAL CITATION:	[2016] VSC 139

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SUCCESSION — Where testator’s copy will found amongst his papers after his death —Where original will last seen in the possession of the testator and not found — Deceased’s children seek a grant of representation on intestacy — Beneficiary under copy will objects to a grant on intestacy on basis that presumption of revocation ‘animo revocandi’ is rebutted — Onus on beneficiary to rebut presumption — Welch v Phillips (1836) 12 ER 828 — Whiteley v Clune (Unreported, Supreme Court of New South Wales, Powell J, 13 May 1993) — Cahill v Rhodes [2002] NSWSC 561.

PRACTICE AND PROCEDURE — Where plaintiffs seek summary judgment — Whether caveator has no real prospect of success — Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 — Mandie v Memart Nominees Pty Ltd [2016] VSCA 4 – Civil Procedure Act 2010 (Vic), s 63(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr W F Gillies	R B Legal Pty Ltd (as agents for Jensens Solicitors)
For the Caveator	Ms C H Sparke QC	Williams & Lay Lawyers

HER HONOUR:

Introduction

John Moschoudis died on or about 2 March 2015, aged 76 years (‘the deceased’). He was survived by his two sons: the first plaintiff and Theodore Marc Moschoudis.

By originating motion filed 15 October 2015, the plaintiffs seek a grant of letters of administration on intestacy of the deceased’s estate.[1]
[1]The application for the grant will be amended as the second plaintiff is not the next-of-kin of the deceased.

On 11 February 2016, the deceased’s nephew (‘the caveator’) filed a caveat objecting to a grant on intestacy on the grounds that the deceased left a copy will dated 14 January 2003, the original of which can no longer be found. The copy 2003 will appoints the caveator’s father as the executor of the deceased’s estate and leaves part of his estate to the caveator.

Where a will, last traced to the possession of the testator, cannot be found at the time of the testator’s death after all reasonable searches and inquiries, it is presumed to have been destroyed by the testator with the intention of revoking it, animo revocandi.[2]
[2]Welch v Phillips (1836) 1 Moo PC 299; (1836) 12 ER 828 (Parke B) (‘Welch v Phillips’); Colvin v Fraser (1829) 2 Hag Ecc 266; (1829) 162 ER 856 (Sir John Nicholl) (‘Colvin v Fraser’); Cahill v Rhodes [2002] NSWSC 561 (10 July 2002) (‘Cahill v Rhodes’); McCauley v McCauley (1910) 10 CLR 434, 438 (Griffith CJ) (‘McCauley’); Re…

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 Moschoudis

Details

AGLC: Re Moschoudis [2016] VSC 139
Case: [2016] VSC 139
Decision Date: 8 April 2016

CaseChat Overview and Summary

The matter before the court was a dispute regarding the validity of a will and the entitlement of the deceased's children to a grant of representation on intestacy. The deceased, Moschoudis, was found to have left behind a copy of his will amongst his papers after his death, but the original will could not be located. The deceased's children sought a grant of representation on intestacy, while a beneficiary under the copy will objected on the basis that the presumption of revocation 'animo revocandi' had been rebutted. The court was required to determine whether the beneficiary had discharged the onus of rebutting the presumption of revocation and whether the caveator had a real prospect of success.

The court considered the applicable legal principles, including the presumption of revocation 'animo revocandi' as discussed in Welch v Phillips and Whiteley v Clune, and the onus of proof on the beneficiary to rebut this presumption. The court also examined the relevant provisions of the Civil Procedure Act 2010, particularly section 63(1), which deals with summary judgment applications and the assessment of whether a caveator has a real prospect of success. The court held that the presumption of revocation 'animo revocandi' had not been rebutted by the beneficiary, as there was insufficient evidence to suggest that the testator had intended to revoke the will.

As a result, the court determined that the caveator did not have a real prospect of success in their objection to the grant of representation on intestacy. The court found that the deceased had died intestate, as the copy will was not sufficient evidence of a valid will. Consequently, the deceased's children were entitled to a grant of representation on intestacy. The court dismissed the objection and granted the application for a grant of representation on intestacy in favour of the deceased's children.

Orders