Re Nikolaou - [2025] VSC 640

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

IN ITS PROBATE JURISDICTION
TRUSTS, EQUITY AND PROBATE LIST

S PRB 2009 14412

IN THE MATTER of the Estate of IOANNIS NIKOLAOU (also known as JOHN NIKOLAOU), deceased

BETWEEN:

STATE TRUSTEES LIMITED (as Administrator of the Estate of IAONNIS NIKOLAOU (also known as JOHN NIKOLAOU))	Plaintiff
v
ELEFTHERIOS NIKOLAOU	Applicant

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JUDGE:	Irving AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	21 August 2025
DATE OF JUDGMENT:	10 October 2025
CASE MAY BE CITED AS:	Re Nikolaou
MEDIUM NEUTRAL CITATION:	[2025] VSC 640

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PROBATE — Application for revocation of grant of letters of administration of intestacy — Where copy of original will found — Presumption of destruction by the deceased animo revocandi must be overcome — Presumption not rebutted — Application dismissed — Re Ionnidis: Gebert v Sarvos [2025] VSC 418, [72]-[82] applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms A Bartfeld of counsel	KCL Law
The Applicant in person

Contents

Introduction
Terry’s grounds of revocation
Background
The terms of the 1990 copy will
Relevant legal principles
Terry’s evidence
John Anile’s evidence
Denyse Dawson’s evidence
Consideration
Conclusion

HIS HONOUR:

Introduction

Ianonnis (John) Nikolaou (deceased) died on 22 August 2005. The deceased was survived by his wife, Sofia Nikolaou and his three children, Soula Nikoloau, Eleftherios (Terry) Nikolaou, the applicant in this proceeding, and Spiro Nikolaou.
On 9 October 2009 Sofia was granted letters of administration of intestacy. Sofia was discharged as administrator and trustee of the deceased’s estate on 27 January 2022 with Terry appointed in replacement of Sofia. On 22 December 2023 this Court made orders discharging Terry as administrator and trustee of the estate and appointing State Trustees Limited to replace Terry in those positions.[1] State Trustees Limited is therefore the plaintiff in this proceeding.
[1]Order of AsJ Barrett in Sofia Nikolaou (who brings this proceeding by her administrator State Trustees Limited) vs Eleftherios (Terry) Nikolaou (as the administrator of the estate of Iaonnis Nikolaou, deceased) (Supreme Court of Victoria, S ECI 2023 01749, 22 December 2023).
On 19 March 2024 Terry filed a summons and grounds of revocation of the grant of letters of administration. While discussed in further detail below, in summary, Terry seeks to have the grant revoked on the basis that he seeks a grant of probate of a copy of the deceased’s original will dated 12 October 1990.
The central issue at the hearing of Terry’s application was whether Terry, as propounder of the deceased’s copy will, has overcome the presumption, animo revocandi, that the deceased destroyed the original will. For the reasons given below, I have decided that Terry has not overcome the presumption and that his application for revocation should be dismissed.

Terry’s grounds of revocation

On 19 March 2024 Terry filed grounds of revocation relevantly alleging that since the grant of letters of administration a true copy of the original last known will dated 12 October 1990 of the deceased was located.

Background

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 Nikolaou

Details

AGLC: Re Nikolaou [2025] VSC 640
Case: [2025] VSC 640
Decision Date: 10 October 2025

CaseChat Overview and Summary

The parties involved in the matter were Nikolaou, the applicant, and the respondent, who held letters of administration of intestacy. The dispute centred around an application seeking the revocation of the grant of letters of administration following the discovery of a copy of the deceased's will. The case was heard and determined by the Supreme Court of Victoria.

The primary legal issue before the court was whether the presumption that the deceased intended to revoke the will by destroying it could be rebutted. The court had to assess if the applicant had successfully overcome this presumption in light of the newly discovered copy of the will. This determination was crucial to deciding whether the grant of letters of administration should be revoked to allow for the administration of the estate according to the will.

In examining the matter, the court applied principles from Re Ionnidis; Gebert v Sarvos, focusing on the presumption that a will is revoked if the deceased destroys it with the intention to revoke it. The court found that the applicant had not provided sufficient evidence to rebut this presumption. The applicant's case relied on circumstantial evidence and did not meet the high standard required to overcome the presumption of revocation. Consequently, the court dismissed the application for revocation of the grant of letters of administration.

The court's decision was grounded in the understanding that the presumption of revocation by destruction was not rebutted by the applicant's evidence. The court affirmed that the respondent's letters of administration remained valid, and the estate would be administered according to the intestacy laws. The applicant was not successful in establishing grounds for the revocation of the grant, and the court's ruling upheld the respondent's position.

Orders