Re the Estate of Kaczmarski
[2025] VSC 530
•1 September 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S PRB 2024 08516
IN THE MATTER of the deceased estate of TADEUSZ KACZMARSKI
BETWEEN:
| MAGDALENA KACZMARSKA | Plaintiff |
| v | |
| EUGENE KACZMARSKI | Caveator |
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JUDGE: | Goulden AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 May 2025 |
DATE OF RULING: | 1 September 2025 |
CASE MAY BE CITED AS: | Re the Estate of Kaczmarski |
MEDIUM NEUTRAL CITATION: | [2025] VSC 530 |
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WILLS AND ESTATES – Application by plaintiff for a grant of probate – Caveat filed by defendant to oppose grant – Plaintiff’s application to strike out caveat on the basis that there is no prima facie case – No prima facie case for objection demonstrated – Caveat struck out.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Craig of counsel | Rickards Legal |
| The Caveator in person |
TABLE OF CONTENTS
Background
Legal Principles
Is there a prima facie case?
Testamentary capacity
Knowledge and approval
Suspicious circumstances
Other Grounds of Objection
Disposition
HER HONOUR:
Mr Tadeusz Kaczmarski died on 26 October 2023, leaving a Will dated 9 November 2020 (‘Will’). Mr Eugene Kaczmarski (‘the caveator’) filed a caveat on 9 May 2024.
By summons filed on 5 September 2024, the plaintiff seeks an order that the caveat be struck out and, in the alternative, there be a prima facie case hearing.
The plaintiff relies on her affidavit affirmed on 29 August 2024 and the affidavits of Dr Peter Webster affirmed on 11 September 2024 and Ms Christine Raptis affirmed on 17 March 2025. The caveator relies upon his affidavits sworn on 21 March and 27 May 2025, and the affidavits of his son, Mr Jeremy Williams, sworn on 21 March and 27 May 2025.
At the hearing on 29 May 2025, both parties raised objections to the admissibility of evidence sought to be adduced in the affidavits. I determined those objections at the hearing and the reasons are recorded in the transcript.
For the reasons that follow, I will order that the caveat be struck out.
Background
The deceased had two sons, Mr Andrew Kaczmarski and the caveator. The plaintiff is the daughter of Mr Andrew Kaczmarski, and therefore, the granddaughter of the deceased.
In around August 2020, the plaintiff prepared the Will. On 9 November 2020, the deceased had an appointment with Dr Peter Webster at Electra Park Medical Centre. During the appointment the deceased signed the Will in the presence of Dr Webster and Ms Raptis, who worked as an employee at the medical centre.
By its terms, the Will, amongst other things:
(a)appointed the plaintiff as executor and trustee;
(b)granted the deceased’s wife the right to reside in the real property located at 3/8 Valley Street Oakleigh South (‘Valley Street Property’), owned by them as tenants in common, until her death;
(c)gifted the deceased’s share in the Valley Street Property to the caveator and his brother in equal shares; and
(d)gifted the residue of the deceased’s estate to the plaintiff.
Prior to the deceased’s death, the Valley Street Property was sold by exercise of power of attorney. Accordingly, there is an exception to the principle of ademption in accordance with s 83A of the Power of Attorney Act 2014 such that the proceeds of sale of that property are gifted in accordance with the Will of the deceased, rather than falling into residue. The deceased’s share of the sale proceeds was approximately $357,000.
On 2 May 2024, the plaintiff applied for a grant of probate of the Will. The value of the deceased’s estate as disclosed in the affidavit filed in support of the application for grant is $396,221.79.
On 9 May 2024, the caveator (who is self-represented) filed the caveat. On 7 June 2024, he filed his grounds of objection.
By this application, the plaintiff seeks that the caveat be struck out so that she can obtain a grant of probate and administer the Will in accordance with its terms.
It is worth noting that no other will of the deceased has been located, so in the event that the Will is set aside, the estate will be administered in intestacy. In that event and given the value of the estate, none of the named beneficiaries in the Will are likely to receive any part of the deceased’s estate.
Legal Principles
Where application is made to strike out a caveat, the relevant test is whether the caveator has a prima facie case which warrants investigation.[1] A caveator will have a prima facie case, and so their caveat will not be subject to strike out, if there is a ‘case for investigation’ or ‘something to go on’.[2] The burden of establishing a prima facie case is relatively easy to discharge.[3] In making this determination, the Court is to assume that the allegations contained in the particulars to the grounds of objection are true. Whilst speculation will not suffice, the caveator does not need to prove the facts upon which they rely as a basis for their objection, nor do they need to satisfy the Court of the preferred inference to be drawn from competing facts. That is the task for trial. Further, the particulars of objection are not to be separately examined in isolation from each other. The Court must have regard to the ‘overall narrative’.[4]
[1]Gardiner v Hughes (No 2) [2019] VSCA 198 (‘Hughes’); Re Robustelle (No 2) [2023] VSC 72, [14] (‘Re Robustelle’); Lehr v Matters [2024] VSC 640, [13] (‘Lehr’).
[2]Hughes [41]; Re Robustelle [16]; Lehr [13].
[3]Lehr [14]; Lynch v Perpetual Trustees Co Ltd [2022] VSC 702, [50].
[4]Hughes [82]–[83].
The legal principles regarding testamentary capacity, which is one basis for the caveator’s objection in this case, were summarised in Re Robustelle.[5] A testator who leaves a will that is rational on its face and which has been duly executed enjoys a presumption of validity. However, that presumption can be rebutted if there is evidence supporting a doubt about capacity at the time of the execution of the will. To have testamentary capacity, the testator must be able to:
(a)comprehend the nature and effect of a will;
(b)understand the extent of the property of which the will disposes; and
(c)comprehend and appreciate the claims to which they ought to give effect.[6]
A testator who suffers from a ‘disorder of the mind’ will lack the requisite capacity if the disorder affects their mental faculties to a degree that renders them incapable of exercising their testamentary powers. A diagnosis of dementia prior to execution of the will does not necessarily preclude testamentary capacity.[7]
[5]Re Robustelle [17]–[19].
[6]Re Robustelle [18].
[7]Re Robustelle [19].
Is there a prima facie case?
The caveator’s grounds of objection are prolix and confusing, mixing particulars that might raise a case for invalidity with particulars regarding the alleged conduct of the plaintiff as executor, which grounds necessarily assume the Will is valid. The grounds that might be established by these particulars are in tension. Allegations are also made in the particulars about the execution and use of a power of attorney during the deceased’s lifetime. Those objections do not relate to the Will at all.
The evidence adduced by the caveator is directed solely to establishing the invalidity of the Will. The narrative, albeit strained, that the Court can discern from the grounds of objection, read together with the admissible parts of the caveator’s evidence and his submissions, is that the caveator contends that there is a case for investigation that:
(a)the deceased did not have testamentary capacity;
(b)the deceased did not know of or approve the contents of the Will; and
(c)the circumstances of execution of the Will are suspicious.
I have described that narrative as strained because, as the plaintiff points out in her submissions, the caveator does not invoke the words commonly associated with these grounds. That is, there is not a single reference in the grounds of objection to ‘capacity’, ‘incapacity’, ‘undue influence’, ‘knowledge’, ‘approval’ or ‘suspicious’, nor to any derivatives or synonyms of those words.
Testamentary capacity
To resist the strike out on this ground, the caveator must have a prima facie case that the deceased lacked testamentary capacity at the time the Will was executed, not at some later time.
The caveator gives very general evidence as to his observation that the deceased’s cognitive abilities ‘had been impacted and were deteriorating from around 2019 if not earlier.’[8] There is no further evidence to support his observation from that period of time, being prior to execution of the Will. The caveator gives more specific examples of the asserted cognitive decline, such as confusion and memory loss, based upon conversations he deposes he had with the deceased in 2023. The caveator also exhibits a medical certificate of Dr Irina Khanina dated 20 March 2023, which states that the deceased ‘is not able to make any informed decisions due to a medical condition’.[9] The caveator also relies on the deceased’s dementia diagnosis in 2023.
[8]Affidavit of Eugene Kaczmarski sworn on 27 May 2025, [21].
[9]Affidavit of Eugene Kaczmarski sworn on 27 May 2025, Exhibit EK-1.
The date of execution of the Will, being 9 November 2020, predates the specific examples given in the caveator’s evidence as to the deceased’s declining cognitive abilities, the medical certificate and the deceased’s ultimate dementia diagnosis. The plaintiff gives evidence that the deceased gave her instructions in relation to the preparation of his Will in about August 2020. The Will is also rational on its face and the plaintiff intends to rely on the presumption of validity at trial. The plaintiff also relies upon the evidence of the deceased’s treating General Practitioner, Dr Peter Webster, who witnessed his execution of the Will in November 2020. Dr Webster deposes that he saw the deceased as a patient in the clinic from March 2020 until his death. He also deposes that, at the time of execution of the Will, the deceased ‘had the mental capacity to understand [it]’.[10]
[10]Affidavit of Dr Peter Webster affirmed on 11 September 2024, [9].
Having regard to the particulars of the grounds of objection (which do not include specific reference to lack of testamentary capacity) and to the evidence filed in support of those particulars, I am not satisfied that the caveator has raised facts capable of giving rise to a suspicion that the deceased lacked testamentary capacity at the time of execution of his Will. Whilst the plaintiff’s evidence has not been tested via cross-examination as it would be at trial, the particulars and the caveator’s evidence even when assumed to be true do not cogently disclose a narrative of declining health, particularly of cognitive function, until well after execution of the Will. The evidence of an independent witness, a qualified General Practitioner, contradicts it. I am not satisfied that there is any reason to suspect that at the time of execution of the Will, the deceased did not understand its nature, comprehend his assets or comprehend and appreciate the claims to which he should give effect in making it. Nor are there grounds to suspect that the deceased was under some delusion that prevented his proper assessment of the claims on his estate. This ground of objection to the grant of probate should be struck out.
Knowledge and approval
Again, there is no particularised assertion by the caveator in his grounds of objection that the deceased did not know of and approve the contents of his Will. However, I interpret the caveator’s submissions that the deceased did not have a sufficient understanding or command of English to understand his Will, together with his evidence relevant to his assertions that the deceased lacked testamentary capacity, as relevant to establishing this ground.
Both the caveator, and his son, Mr Williams, depose that in their respective opinions the deceased could not read and comprehend English. The caveator deposes that he never heard the deceased speak English to anyone. His evidence is all anecdotal. He submits that, for the deceased to have understood the Will, a translator would have needed to translate it for him.
The plaintiff gives contrary evidence in her affidavit affirmed on 29 August 2024. She states that, in her opinion, the deceased could speak and read English. She deposes that she spoke to the deceased in both English and Polish. Both Dr Webster and Ms Raptis, who are independent witnesses called by the plaintiff, also depose that the deceased spoke to them in, and could read, English.
As summarised above, contradictory evidence about the deceased’s capacity to speak English is given by the plaintiff, and by the caveator and his son, all persons related to the deceased. The two independent witnesses each depose that the deceased could speak and write English. This is an observation Dr Webster makes that is not only based upon his interaction with the deceased on the day of execution of his Will, but also the interactions Dr Webster had in his consultations with the deceased, as a patient, from March 2020 until his death. No evidence beyond the opinions and observations of these individuals has been adduced.
I have already expressed my conclusion as to the insufficiency of the particulars and evidence to establish a prima facie case for lack of testamentary capacity. I am also not satisfied that there are sufficient particulars or evidence to raise a suspicion about the deceased’s English language proficiency. Looking at these matters together, I am not satisfied there is a prima facie case demonstrated by the caveator regarding the deceased not having knowledge, or approving the contents, of his Will, and this ground, if it is indeed raised by the caveator, should be struck out.
Suspicious circumstances
The other ground the Court considers may be intended to be raised by the caveator is that there are suspicious circumstances attending the drafting and execution of the Will. The caveator relies on his evidence regarding the deceased’s inability to speak or write English, and the fact that no translator was present, as one such circumstance. He also submitted at the hearing that he had never heard of Dr Webster, and that he was surprised the deceased would have been his patient because he previously consulted a GP at a clinic where everyone was able to speak in Polish. He also says he did not know there was a Will, and that no one in his family told him before producing it to this Court. He is also suspicious that the plaintiff drafted the Will and is the executor and residuary beneficiary.
The plaintiff deposes in her affidavit that she suggested the deceased sign the Will he had asked her to prepare for him in the presence of his doctor and that, until she received the original signed Will in December 2020, she was not aware of the arrangements the deceased had made to execute it. Furthermore, it is clear that the plaintiff was not present when the Will was executed at Dr Webster’s clinic by two independent witnesses. The plaintiff submits that no question about suspicious circumstances arises since the deceased had testamentary capacity and because the Will was signed in the absence of the plaintiff.
In my view, the evidence does not raise a case for investigation based on suspicious circumstances, especially having regard to the fact that I am satisfied there is no case for investigation regarding the deceased’s testamentary capacity. Given the deceased was a patient of Dr Webster prior to his appointment to execute the Will, there is nothing suspicious in his selecting him, at the suggestion of the plaintiff, as an appropriate person to bear witness to it. That the plaintiff drafted the Will and is executor and a beneficiary under it is relatively common in estate matters, especially given her legal qualifications and her familial relationship with the deceased. The plaintiff was not a witness to the execution of the Will, and was not even present when the Will was signed, as she resides in Sydney.
Other Grounds of Objection
As noted above, the caveator raises numerous other grounds of objection including that the plaintiff has:
(a)failed to administer the estate in accordance with the Will;
(b)a conflict of interest as executor and residuary beneficiary; and
(c)neglected her duties as executor by causing delay.
These grounds of objection presume the Will is valid and so are inconsistent with the caveator’s primary contention that the Will is invalid. Further, neither his submissions, nor any of the evidence filed by the caveator in support, relate to these asserted grounds and they ought be struck out.
The caveator also objects to the grant of probate on the basis that the Will was not prepared and executed in conformity with the Wills Act 1997. However, the particulars to this ground only go so far as saying that the Will was executed on one page only and that there are numerous other breaches of the Wills Act 1997, but none is specified. I accept the plaintiff’s submission that the Will is compliant with s 7 of the Wills Act 1997 and any other irregularities noted in respect of it are not such as to render the Will invalid.
Disposition
For the reasons set out above, I am not satisfied that there is a prima facie case for investigation on any grounds of objection articulated in the caveator’s grounds or in the evidence he has adduced. I will accordingly order that the caveat filed by the caveator on 9 May 2024 be struck out. I reserve my decision on the issue of the costs of the caveat and of the plaintiff’s application.
The plaintiff is to provide a proposed minute of order to give effect to this ruling.
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