JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	11 October 2018
CASE MAY BE CITED AS:	Re Theodoulou
MEDIUM NEUTRAL CITATION:	[2018] VSC 601

---

PROBATE — Application for revocation of grant of probate — Whether particulars of grounds of undue influence and lack of knowledge and approval establish a prima facie case — Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 — Bridgewater v Leahy (1998) 194 CLR 457— Nock v Austin (1918) 25 CLR 519.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A J Verspaandonk	Dandanis & Associates
For the Applicant	Mr M W Wise SC with Ms R Grayson Morison	Berger Kordos Lawyers

HER HONOUR:

Introduction

Antonios Theodoulou died on 25 March 2017, aged 93 years. The deceased was survived by four of his five children, namely, the plaintiff, the applicant, Steve Theodoulou and Kerry Athanasiou. The deceased’s wife and another child, Mario Theodoulou, predeceased the deceased.

On 29 June 2017, the plaintiff applied for a grant of probate of the deceased’s will dated 23 March 2017. Probate of the deceased’s will was granted on 11 July 2017.

On 24 January 2018, the applicant filed a summons for revocation of the grant of probate of the deceased’s will.

The deceased’s will

The deceased’s will dated 23 March 2017 leaves the sum of $20,000 to the applicant, and his property in Mulgrave (‘the Mulgrave property’) and his residuary estate to the plaintiff. The deceased declared in his will that he made no further provision for the applicant, or any provision for his other children, or children of his deceased son, ‘as either I have made adequate provision for them during my life or alternatively I feel I have no moral obligation to make provision for them.’

The deceased signed his will on each page and his signature is witnessed by Mr Con Fabiatos, solicitor, of Dandanis & Associates and Ms Alanna Osborn, secretary. On the first page, the deceased’s signature is placed approximately two centimetres above the signing line. On the second page, the deceased’s signature appears above the name of ‘Con Fabiatos’, rather than above his own name. On the third and final page, the deceased’s signature is on the signing line above his name. The execution clause of the will includes a recital that the will was read to the deceased in ‘Greek being the customary language understood by him and the Willmaker appeared to thoroughly understand the same and approved the contents thereof’. The will was translated into Greek by Mr Fabiatos.

Application for probate of the will

On 29 June 2017, the plaintiff applied for a grant of probate of the will.…

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 Theodoulou

Details

AGLC: Re Theodoulou [2018] VSC 601
Case: [2018] VSC 601
Decision Date: 11 October 2018

CaseChat Overview and Summary

The parties involved in the case are Theodoulou, the applicant, and the estate of the deceased, the respondent. The applicant seeks the revocation of a grant of probate of the deceased’s will. The dispute revolves around the validity of the will, with Theodoulou alleging undue influence and lack of knowledge and approval by the deceased. This case was heard in the Supreme Court of New South Wales.

The primary legal issues the court had to decide were whether the particulars of grounds of undue influence and lack of knowledge and approval established a prima facie case for the revocation of the grant of probate. The applicant relied on previous cases such as Re Kouvakas; Lucas v Konakas [2014] NSWSC 786, Bridgewater v Leahy (1998) 194 CLR 457, and Nock v Austin (1918) 25 CLR 519 to support their claims. The court had to assess whether these cases were applicable to the facts of this case and whether they provided sufficient grounds for the revocation of the grant of probate.

The court examined the particulars of the grounds of undue influence and lack of knowledge and approval, assessing if they established a prima facie case. It considered the relevant legal precedents and the circumstances surrounding the creation of the will. The court concluded that the particulars did not establish a prima facie case for revocation. The applicant’s allegations were not substantiated by the evidence provided, and the court found no sufficient grounds to revoke the grant of probate. Consequently, the application was dismissed.

The court ordered that the application for the revocation of the grant of probate be dismissed. The court also ordered that the costs of the application be paid by the applicant.

Orders