Re Nikolaou
[2025] VSC 640
•10 October 2025
| 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
Sofia Nikolaou obtained a grant of letters of administration on 9 October 2009.
According to the Inventory of Assets and Liabilities filed by Sofia in support of her application for Letters of Administration, the principal asset of the estate is a commercial property at 19 Ross Road, Altona North, Victoria. On 25 November 2009 the Altona North property was registered in the name of Sofia as legal personal representative of the deceased’s estate.
In 2017 the Victorian Civil and Administrative Tribunal appointed State Trustees Limited as Sofia’s guardian. State Trustees Limited were reappointed to that position on 26 February 2021.
On 27 January 2022 the Court discharged Sofia as administrator and trustee of the deceased’s estate and appointed Terry in her place. Sofia was discharged on the basis of her advanced age and declining state of health, including significant cognitive impairment. In that proceeding[2] Terry swore an affidavit in which he deposed to his preparedness to be appointed as administrator of the deceased’s estate and gave an undertaking to the Court to administer the estate according to law.
[2]S ECI 2021 01165 Sofia Nikolaou (who brings this proceeding by her administrator State Trustees Limited) vs No-Respondent.
On 22 December 2023 the Court discharged Terry as administrator and trustee of the deceased’s estate and appointed State Trustees Limited in his place.[3]
[3]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 3 December 2024 the Altona North property was registered in the name of State Trustees Limited as legal personal representative of the deceased’s estate.
It was common ground between the parties that the estate has not been finally distributed. Under the operation of the applicable intestacy provisions contained in s 51 of the Administration and Probate Act 1958 (Vic) (Act) Sofia is entitled to the personal chattels of the deceased; a legacy payment of $100,000 plus interest; and one third of the balance of the estate. The deceased’s children are each entitled to an equal share of the balance of the estate.
On 19 March 2024 Terry filed his summons for revocation of the grant of letters of administration.
The terms of the 1990 copy will
The deceased’s 1990 copy will appoints Soula as executor of the will and trustee of the estate.
Under the terms of the will the deceased bequeathed:
(a)the Altona North property to Terry;
(b)a property located at 499 Brunswick Street, Fitzroy to Terry, Soula and Spiro as tenants in common in equal shares;
(c)his 1977 ‘Voltswagon’ motor vehicle to Spiro;
(d)his 1971 Ford motor vehicle to Terry;
(e)the sum of $10,000 to his friend Androula Anagnostou; and
(f)the residuary estate to Terry, Soula and Spiro as tenants in common in equal shares.
The Fitzroy property was, in fact, jointly held by the deceased and Sofia and on 3 September 2009 Sofia became the sole registered proprietor by survivorship.
There was no dispute between the parties that, under the terms of the copy will, Terry would receive the Altona North property and that there is no residuary estate available for distribution.
There was also no dispute between the parties and the evidence before the Court established that the 1990 will existed, revoked all previous wills and was duly executed.
Relevant legal principles
The Court has the inherent power to revoke a grant of representation on two grounds:
(a)that the grant was made on the basis of facts later established to be untrue, such that, had the true position been known to the Court, it would not have made the original grant;[4] or
(b)where due administration of the estate is frustrated by subsequent events, including the physical or mental incapacity of an executor or administrator.
[4]In the Will of Christian (1975) 25 FLR 89.
Where an original will is unavailable, a copy may be admitted to probate if the Court is satisfied that the copy will is a true copy and the original will was duly executed. The propounder of the copy will bears the onus of establishing:
(a)that the will existed;
(b)that the will revoked all previous wills;
(c)that the presumption of destruction by the deceased animo revocandi is overcome;
(d)there is evidence of the terms of the will; and
(e)there is evidence that the will was duly executed.[5]
[5]Ulman v Mom [2022] VSC 186, [8].
The burden of overcoming the presumption of destruction rests on the party who seeks to displace the presumption. In this instance that person is Terry.
In Re Ionnidis:Gebert v Sarvos,[6] Daly AsJ helpfully surveyed the authorities on the presumption of revocation:
[6][2025] VSC 418, [72]-[75], [78]-[82] (citations omitted).
The leading modern Australian authority on the presumption of revocation is the decision of Campbell J in Cahill v Rhodes. His Honour expressed the presumption as follows:
[I]f any Will traced to the possession of the deceased is not forthcoming on his death, it is presumed to have been destroyed by himself with an intention of revoking it, unless there is sufficient evidence to rebut any such presumption.
His Honour went on to say as follows (omitting citations):
The present position would now seem to be as follows:-
1.although, where a Will is traced into the possession of the testator and is not forthcoming on his death, there is a presumption that he destroyed it amino revocandi, the presumption may be rebutted;
2.the strength of the presumption depends upon the character of the testator’s custody over it;
3.where the Will makes a careful, and complete, disposition of the testator’s property, and there are no other circumstances to point to a probable destruction, animo revocandi, by the testator, the presumption is so slight that it may be said not to exist;
4.where a Will is lost or destroyed, and the presumption of destruction, animo revocandi, either, does not arise, or, is rebutted, its contents may be proved by parol evidence.
…
The cases to which Powell J referred as authority for the proposition that “the strength of the presumption depends upon the character of the testator’s custody over it” explain by example what is meant by the expression “the character of the testator’s custody over it”. It refers to facts concerning the physical arrangements the testator has for security of the Will - for instance, whether it is kept in a place which is locked or unlocked, if kept in a locked place, how many keys there are and who has them or has access to them, or whether the testator keeps his will in his coat pocket - who knows of the location of the Will, whether anyone besides the testator has access to the Will, and the extent to which the testator has been careful in looking after his Will. All these are matters which can affect the likelihood of the Will being missing because the testator himself destroyed it, or because there is some other explanation for its absence, like that someone else removed it, or that the testator has merely lost it.
His Honour’s statement of the applicable principles has been expressly approved and applied in numerous decisions of this Court and other Australian courts.
In Ulman v Mom, Moore J summarised the key statements of principle arising from the decision of the Court of Appeal in Demediuk v Demediuk, as follows (omitting citations):
The Court of Appeal identified that the nature and contents of the document itself is of particular importance in determining whether the testator had revoked a missing will. The Court referred to the following statement by Hannen P in Sugden v Lord St Leonard’s:
... it is obvious that the question whether or not the testator revoked this instrument must depend to a considerable degree upon what conclusion I may arrive at as to the contents of the instrument itself. It is obvious that where a Will, shewn to have been in the custody of a testator, is missing at the time of his death, the question whether it is probable that he destroyed it must depend largely upon what was contained in the instrument. Was it one arrived at after mature deliberation; did it deal with the interests of the whole of his family, carefully arranging the dispositions which he would make in favour of the several members of it, or was it the hasty expression of a passing dissatisfaction with some or more of them? These are questions naturally having the strongest possible bearing upon the ultimate question which I may have to determine, namely, whether or not the testator himself destroyed this instrument.
The Court of Appeal also observed that:
The strength of the presumption of revocation may also depend on the nature of the testator’s custody over the missing document. Obviously, if the testator was given to keeping the document under tight security, and it is missing at the time of his or her death, that circumstance would lend more heavily in favour of the presumption of revocation, than if the testator were lax about the manner in which he or she had kept and retained important documents such a will.…
The Court of Appeal stated that:
...in determining whether, in a particular case, the presumption of revocation has been rebutted, or in determining whether an inference of intentional revocation should be drawn the Court should take into account all relevant circumstances, including circumstances that existed before and at the time of the making of the Will that is missing.
…
The weight to be given to the presumption of revocation is also an issue in this proceeding. The prevailing view in the authorities seems to be that the presumption is only a starting point, and falls away once there is evidence to the contrary, with the Court being required to ‘consider the whole of the facts together, and draw what inference should be drawn from the whole of the evidence’. Further:
…where the Will makes a careful and complete disposition of the testator’s property and there are no other circumstances to point to probable destruction – probable destruction being on the balance of probabilities – the presumption of revocation is so slight that it may be said not to exist.
In Cahill v Rhodes, Campbell J relevantly observed:
[t]he factual presumption can be overcome by circumstantial evidence which shows, on the balance of probabilities, that, even though the Will is missing at the testator’s death, it is more likely than not that the reason for it being missing is something other than that the testator destroyed it with the intention of revoking it.
Further ‘[r]ebutting the presumption does not require [the plaintiff] to show how the copy will came to be lost or destroyed; rather, he must establish that the presumption does not apply in the circumstances’.
In his written submissions, counsel for Mary paraphrased the statement of Lord Reid in S v S, as follows:
Once evidence has been led it must be weighed without using the presumption on a make-weight in the scale… So even weak evidence … must prevail if there is not other evidence to counter-balance it. The presumption will only come in at that stage in the very rare case of the evidence being so evenly balanced that the court is unable to reach a decision upon it.
However, in McCauley v McCauley, Griffith CJ stated that ‘if the probabilities of loss or destruction are equal the presumption of destruction must prevail’. However, that statement may do no more than confirm that the burden of proof rests upon the party seeking to rebut the presumption.
Terry’s evidence
Terry’s evidence was that he saw the deceased’s will on a table in his parents’ home in 2005 when his father passed away. He recalled that the will was yellow in colour and that his father kept it with his money pouch. Terry said that he obtained the original will two or three days after his father died.
Terry acknowledged that under the terms of the copy will he would receive the Altona North property and that the Fitzroy property and the cars were no longer available for distribution and nor was there any residuary estate.
Terry said that in 2009 he went with his mother to the offices of Lilley Dawson Solicitors where they met with Denyse Dawson, solicitor. Terry said that he handed the original will to Ms Dawson, who told him and his mother that they would not need it anymore. Terry’s evidence was that Ms Dawson told him that she would not seek probate of the deceased’s will because if she did the government would take the property. Terry said that after taking the original will Ms Dawson destroyed it in his mother’s presence. Terry’s evidence was that he was given a photocopy of the will by either Ms Dawson or her receptionist.
Terry had no real explanation for the four year gap between his father’s death and the appointment with Ms Dawson other than that he was grieving a lot and was not thinking straight at the time. He said that during that time he paid bills in relation to the Altona North property but did not take any steps to secure the property which was in a poor state of repair because he was waiting for Ms Dawson to take action.
Terry agreed that the copy will appoints Soula as executor and not either of Terry or Sofia. In answer to questions about why Soula did not seek probate of the copy will, Terry’s evidence was that his mother suggested to Terry that she and Terry visit her solicitor, Ms Dawson, to ‘see if she can put it through’. He did not know why his mother did not ask Soula to take the will to a solicitor. When asked whether he had spoken to Soula about the will, Terry said Soula wanted to do something and asked him where the will was located. Terry said he told Soula that she needed to do something about the will but that Soula was unable to take action because she was unwell at the time and that she wanted to renounce her appointment as executor and leave it to Terry. In this regard Terry sought to rely on a photocopy of a statutory declaration dated 1 June 2023 made by Soula in which she purported to revoke her right to be nominated and awarded guardianship or administration over her mother’s affairs and to support Terry’s application for administration of his mother’s affairs. Under cross-examination Terry conceded that Soula’s statutory declaration did not purport to renounce her appointment as executor under the deceased’s will.
Terry said that following the grant of letters of administration in 2009 he took no steps regarding his father’s estate because his mother had been sick on and off over those years. He did not seek legal advice but sometime between 2020 and 2022 he began to think about seeking probate of his father’s will, a copy of which he had retained. Terry said that between about 2014 and 2015 he commenced looking for the original will. He contacted his father’s solicitor to ask if he had the original will. Sometime after 2009 Terry also made inquiries with local bank branches to see if his father had accounts or safe custody packets at any of them. In cross-examination Terry conceded that given his evidence was that Ms Dawson had destroyed the original will in 2009, there would have been no need for search further for the original after that date.
John Anile’s evidence
John Anile was the former solicitor who took instructions from and prepared the deceased’s will dated 12 October 1990, the copy of which Terry seeks to propound. Mr Anile practised as a solicitor from 1983 until 2017.
Mr Anile had no specific recollection of taking instructions to prepare the deceased’s will but recognised his own signature witnessing the will. His evidence was that the copy will was a true copy of the original. Mr Anile explained that his usual practise on execution of a will was to give the client the choice to take the original with advice to keep it safe, or to have Mr Anile hold the original will in his deed safe. Mr Anile could not recall which option the deceased chose. Mr Anile explained that when he stopped practising, the Legal Services Commissioner sold his deed register to another firm. If that firm did not have the original will, Mr Anile said the only logical conclusion was that the deceased took the original will with him.
Mr Anile did not recall Terry approaching him after the deceased’s death in 2005.
Denyse Dawson’s evidence
Ms Dawson is a solicitor of fifty three years’ experience, including in probate matters.
Ms Dawson acted for Sofia in a few different matters. She recalled that Sofia attended her office with Terry and that Terry remained in the waiting room while Sofia consulted with Ms Dawson. Ms Dawson did not recall having any conversation with Terry beyond saying hello, telling him to wait outside her office while she consulted with Sofia, and goodbye.
Ms Dawson did not recall being given any documents during the course of the meeting. Her evidence was that she never received the original will and so never made an application for probate of that will.
Ms Dawson denied she would ever advise a client to disregard the existence of a will or a testamentary document. Ms Dawson said that if Sofia had given her the original will, Ms Dawson would not have proceeded to apply for letters of administration on her behalf.
Ms Dawson said that throughout her practise as a solicitor she had never destroyed an original document. If a client requested Ms Dawson destroy an original document, Ms Dawson would insist they come to her office to do so themselves or she would send the document to them by registered mail. Ms Dawson explained that she keeps a deed register at the firm which she had checked and that it contained no reference to the 1990 will document.
Ms Dawson denied that her secretary gave Terry a photocopy of the original 1990 will. Her evidence was that she did not see Terry hand a document to her secretary and that her secretary would not have given Terry a copy of a document without conferring with Ms Dawson.
In cross-examination Terry put to Ms Dawson that she had told him that if she came to Court she would lie to the Court by saying she had never seen the original will. Ms Dawson denied ever making that statement.
Consideration
As discussed above, Terry bears the onus of rebutting the presumption of destruction of the original will by the deceased.
The available evidence establishes that Mr Anile prepared the deceased’s original will, the copy of which Terry seeks to propound. The evidence also establishes, and it was not in dispute, that the deceased’s 1990 will made a complete disposition of the deceased’s property. I am satisfied on the balance of probabilities that Mr Anile gave the original will to the deceased. This is consistent with Mr Anile’s evidence as to his usual practice, the absence of any record of the original will in Mr Anile’s deed register and Terry’s evidence that he saw the original will on the table in the deceased’s home.
Terry’s evidence that his father kept his will with his money pouch was the only available evidence about the character of the testator’s custody over the will. Given the nature of Terry’s case, being that Terry and his mother had the original will following the death of his father, the character of the deceased’s custody of the will is of less importance to consideration of the presumption of destruction.
The essence of Terry’s case is that the original will was not destroyed by the deceased, but rather by his mother’s solicitor, Ms Dawson, in 2009. Ms Dawson denies destroying the will.
In order to be successful, the Court would have to accept Terry’s evidence over that of Ms Dawson. For the following reasons I decline to do so.
If Terry is successful in having the grant of letters of administration revoked and obtaining a grant of probate of the copy will, he stands to benefit when compared to his position under the intestacy provisions, and to the detriment of Sofia, Soula and Spiro.
Terry’s accusation that, despite the request of Sofia, Ms Dawson refused to apply for a grant of probate of the will and destroyed it is inherently implausible and I reject it. Neither Sofia nor Terry were appointed executor under the terms of the will. Soula was the named executor. Her absence from the meeting with Ms Dawson to instruct her to make an application for probate is not properly explained. Nor is there any evidence, beyond Terry’s assertion that Soula has renounced her position as executor under the terms of the will. Her absence as a witness for Terry leads to an inference that her evidence would not have supported his case.
Terry’s evidence was that Ms Dawson destroyed the will. He admitted, however, that he was not present during Sofia’s consultation with Ms Dawson and did not see the document being destroyed. Terry admitted that he was not present during his mother’s consultation with Ms Dawson and that he waited in the waiting room. In my view it is simply implausible that Ms Dawson would refuse to make an application for probate of the will, go to the trouble of destroying the will and yet have her secretary provide a copy of the will to Terry. Terry’s case was that Ms Dawson’s intention was to deny the existence of the will and that the act of destroying the will was part of that intention. It would make no sense for Ms Dawson to make a copy of the will in those circumstances.
Terry was also unable to satisfactorily explain why, if he knew the original will had been destroyed in 2009 by Ms Dawson, he made inquiries of various solicitor’s firms and local bank branches years later in an attempt to locate the original will. Nor was Terry able to explain why, if he had a copy of the will and knew the original will had not been destroyed by the deceased, he swore an affidavit in 2021 undertaking to administer the deceased’s estate according to law. I do not accept Terry’s explanation that his affidavit was prepared by his then solicitor and that he did not understand its contents. The affidavit is short and clear in its terms.
In the face of Terry’s implausible account, the Court heard from Ms Dawson. Where Ms Dawson’s evidence conflicted with Terry’s evidence, I preferred Ms Dawson’s evidence. Ms Dawson is a very experienced solicitor with considerable expertise in probate matters. She does not stand to benefit from the deceased’s estate either under the grant of letters of administration or a grant of probate. Ms Dawson was forthright about matters of which she no longer had a recollection. She was able to describe her usual practice regarding the retention and destruction of original documents. She denied being given the original will. In regards to the retention of documents, her evidence was that she kept a deed register and that, having checked the register, there was no record of her being given the original will. In this way Ms Dawson’s oral evidence was consistent with the absence in her deed register of any notation of the original will.
Conclusion
For the reasons given above Terry has not discharged the onus of rebutting the presumption of destruction of the deceased’s will dated 12 October 1990. Accordingly, I will dismiss Terry’s summons for revocation of the grant of letters of administration.
My preliminary view, subject to any submissions the parties may wish to make, is that in keeping with the outcome of this case, Terry should pay State Trustee Limited’s costs of Terry’s summons. I request the parties confer on the question of costs. If the parties are unable to agree on the terms of any order regarding costs within seven days of the date of this judgment, the proceeding will be relisted for oral submissions on costs.
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