Re Papavasiliou; Theofanous v Aizen

Theofanous applied for the revocation of the grant of probate of the will of her brother, the deceased, on the grounds that he lacked testamentary capacity and did not know and approve the contents of the will. The application was made in the Supreme Court of Victoria, with the respondent, Aizen, opposing the application. The applicant, Theofanous, argued that she had standing to seek revocation because she was the deceased’s sister and next of kin. The court needed to determine whether the applicant had established a prima facie case for revocation, considering the delay in making the application, the applicant’s claim for further provision under Part IV of the Administration and Probate Act 1958 (Vic), and other discretionary factors.

The court examined the evidence and found that the applicant had not established a prima facie case for revocation. The court noted that the deceased had made several wills over the years and had consistently included the applicant as a beneficiary. The court also found that the delay in making the application was significant and that the applicant had not provided a satisfactory explanation for the delay. Additionally, the court considered the applicant’s claim for further provision under Part IV of the Administration and Probate Act 1958 (Vic) and found that it did not affect the applicant’s standing to seek revocation. The court concluded that the applicant had not demonstrated that the deceased lacked testamentary capacity or did not know and approve the contents of the will.

The court dismissed the application for revocation of the grant of probate, finding that the applicant had not established a prima facie case for revocation. The court noted that the delay in making the application and the applicant’s claim for further provision under Part IV of the Administration and Probate Act 1958 (Vic) were significant factors that weighed against the applicant. The court also found that the applicant had not provided sufficient evidence to establish that the deceased lacked testamentary capacity or did not know and approve the contents of the will. The court dismissed the application and ordered that the costs of the application be paid by the applicant.