| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S PRB 2017 10194
IN THE MATTER of the will of ANTONIOS THEODOULOU (in the will called ANTONIOS THEODOULOU (also known as ANTONIOS YIANNI THEODOULOU), deceased
| JANE LIGIDAKIS | Plaintiff |
| v | |
| ANNE KARATJAS | Applicant |
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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 |
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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.
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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.…
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- AGLC
- Re Theodoulou [2018] VSC 601
- Case
- [2018] VSC 601
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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