Re Papavasiliou; Theofanous v Aizen - [2023] VSC 43

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2020 27022

IN THE MATTER of the will of THEODORA PAPAVASILIOU, deceased

PANAYIOTA THEOFANOUS	Plaintiff
v
CHRISTINE AIZEN	Applicant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 August 2021
DATE OF RULING:	15 February 2023
CASE MAY BE CITED AS:	Re Papavasiliou; Theofanous v Aizen
MEDIUM NEUTRAL CITATION:	[2023] VSC 43

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PROBATE — Application for revocation of grant of probate — Grounds for revocation are lack of testamentary capacity and lack of knowledge and approval — Standing to seek revocation — Delay and other discretionary considerations — Prima facie case not established — Where applicant also made claim for further provision under Part IV of the Administration and Probate Act 1958 (Vic) — Re Kouvakas; Lucas v Konakas [2014] NSWSC 786.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Newton	Velos & Velos Lawyers
For the Applicant	Dr E Kelly	Lewenberg & Lewenberg

HER HONOUR:

Introduction

Theodora Papavasiliou (‘the deceased’) died on 15 August 2020, aged 84 years.[1] The deceased was predeceased by her husband, Elias Papavasiliou (‘Elias’) and survived by her three children, Christine Aizen (‘the applicant’), Stamatia Paraskevopoulos (‘Stamatia’) and Panayiota Theofanous (‘the plaintiff’).
[1]The death certificate of the deceased, as originally registered on 24 August 2020, recorded the date of death as 16 August 2020. The death certificate was amended on 28 May 2021 by application of the plaintiff.

The deceased’s last will is dated 1 April 2019 (‘the 2019 will’). The 2019 will names the plaintiff as the sole executor and beneficiary of the deceased’s estate.

The deceased’s estate is valued at $2,082,806.54, and comprises a property in Richmond, Victoria valued at $2,000,000 (‘the Richmond property’) and personal assets valued at $82,806.54. For some years prior to the death of the deceased, the plaintiff was the deceased’s primary carer and resided with the deceased in the Richmond property. The plaintiff and her family have continued to live in the Richmond property following the death of the deceased.

Three applications concerning the estate of the deceased are before the Court. The first is the applicant’s summons seeking, inter alia, revocation of the grant of probate of the 2019 will. The second and third are a summons by the plaintiff seeking dismissal of the revocation application and, in the event that the revocation application is not dismissed, security for costs from the applicant, pursuant to r 62.02(1)(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’).

For the reasons set out below, the applicant’s summons will be dismissed. In light of that finding, it is unnecessary for the Court to determine the plaintiff’s summons seeking dismissal of the revocation application and, in the event that the revocation application is not dismissed, security for costs from the applicant.

Procedural history

On 19 August 2020, four days after the death of the deceased, the applicant filed a caveat against the…

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.

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Details

Case: [2023] VSC 43
Decision Date: 15 February 2023

CaseChat Overview and Summary

The case before the court involved an application for the revocation of a grant of probate, with the applicant challenging the validity of a will. The applicant alleged that the deceased lacked testamentary capacity and did not have the requisite knowledge and approval of the will's contents. The court was tasked with determining whether the applicant had established a prima facie case for revocation, as well as considering issues of standing, delay, and other discretionary factors.

The central legal issues that the court had to resolve included whether the applicant had demonstrated a prima facie case for the revocation of the grant of probate, based on the grounds of lack of testamentary capacity and lack of knowledge and approval. Additionally, the court had to consider the applicant's standing to seek revocation, the impact of any delay in making the application, and other discretionary factors relevant to the decision. The court was also required to consider the applicant's claim for further provision under Part IV of the Administration and Probate Act 1958 (Vic), as well as the decision in Re Kouvakas; Lucas v Konakas [2014] NSWSC 786.

The court found that the applicant had not established a prima facie case for revocation on the grounds of lack of testamentary capacity or lack of knowledge and approval. The court held that the applicant did not have standing to seek revocation, and that the delay in making the application was a significant factor against the applicant. Furthermore, the court considered other discretionary factors and concluded that the applicant's claim for further provision under Part IV of the Administration and Probate Act 1958 (Vic) was not relevant to the revocation application. Based on these findings, the court dismissed the application for revocation.

The court's final orders were that the application for the revocation of the grant of probate be dismissed. The applicant was also ordered to pay the respondent's costs of the application.

Orders