Re Topcu; Tampus v Canipek - [2020] VSC 541

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2012 06003

IN THE MATTER of the Estate of Hasan Husyin Topcu, deceased

CHRISTINE GORDONES TAMPUS	Plaintiff
v
REYHAN CANIPEK	Applicant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	27 August 2020
CASE MAY BE CITED AS:	Re Topcu; Tampus v Canipek
MEDIUM NEUTRAL CITATION:	[2020] VSC 541

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PROBATE — Revocation of grant of probate —Standing of applicant —Prima facie case for revocation — Substantial delay explained — Application granted — Wills Act 1997 (Vic) s 45(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff
For the Applicant	Mr SF McNab	Mazzeo Lawyers

HER HONOUR:

Introduction

Hasan Husyin Topcu died on 3 May 2011, leaving a will dated 26 November 2010.

The will contains one clause:

I APPOINT my daughter GULNAZ TOPCU to be the Executrix of this my Will and I give devise and bequeath the whole of my estate to her absolutely.

Gulnaz Topcu (‘Gulnaz’) predeceased the deceased, having died on 12 January 2011. Gulnaz was survived by her three children: Reyhan Canipek (‘the applicant’), Resul Canipek (‘Resul’), and Saniye Tugra, who is a minor.

On 3 August 2012, a grant of letters of administration with the will dated 26 November 2010 annexed was made to the deceased’s widow, Christine Gordones Tampus (‘the plaintiff’).

Application

By summons filed 2 August 2019, the applicant sought to revoke the grant of letters of administration to the plaintiff. The summons originally nominated the plaintiff as the first defendant and Resul as the second defendant, and sought as follows:

(a) an order revoking the grant of letters of administration with the will annexed made to the plaintiff, on the basis that the applicant is a beneficiary of the residuary estate with her siblings by the operation of s 45(1) of the Wills Act 1997; and

(b) an order pursuant to r 6.03 of the Supreme Court (Administration and Probate) Rules 2014 that the plaintiff and Resul make a full accounting of their administration of the deceased’s estate.

The applicant filed an affidavit affirmed 17 May 2019.[1]
[1]The applicant later filed a statement of grounds of revocation dated 12 September 2019 on 6 July 2020.

At the first directions on 30 August 2019, orders were made amending the title of the proceeding to refer to Ms Tampus as the plaintiff, the applicant in her capacity as applicant and Resul as defendant. Submissions as to the necessity of Resul being a party to the application were filed, and the Court determined it was not appropriate for him to be a party.

Leave was granted to the applicant to file a further amended summons removing Resul as a defendant and listing the proceeding for further directions on 13 December 2019.

On 13 December 2019, the applicant deposed to her unsuccessful attempts to serve the plaintiff. On 18 December 2019, orders were made for substituted service, pursuant…

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: [2020] VSC 541
Decision Date: 27 August 2020

CaseChat Overview and Summary

The case of Re Topcu; Tampus v Canipek involved a dispute concerning the revocation of a grant of probate in Victoria. The deceased, Topcu, had left a will in which his estate was left to his brother, Canipek. Following Topcu’s death, probate was granted to Canipek. Subsequently, a sister of the deceased, Tampus, applied for the revocation of the grant of probate on the basis that Canipek had acted dishonestly and contrary to the deceased's intentions. The matter was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether Tampus had standing to apply for the revocation of the grant of probate and if a prima facie case for revocation had been established. Additionally, the court needed to consider whether the substantial delay in making the application could be justified. Under the Wills Act 1997 (Vic), a grant of probate could be revoked if there were grounds for such action, and Tampus's application needed to meet the criteria set out in section 45(1).

The court found that Tampus had standing to apply for the revocation of the grant of probate as she was a beneficiary under the will. In examining whether a prima facie case for revocation existed, the court determined that Tampus had presented sufficient evidence to suggest that Canipek had acted dishonestly. The court was satisfied that Canipek had not only acted contrary to the deceased's intentions but also had misappropriated estate assets. Regarding the delay, the court accepted Tampus’s explanation that the delay was due to her lack of knowledge of Canipek’s actions and the time needed to gather the necessary evidence. Consequently, the application for revocation was granted.

As a result of the court's decision, the grant of probate issued to Canipek was revoked, and the estate was to be administered in accordance with the deceased's will, with Tampus as the new executor. The court ordered that Canipek account for any misappropriated assets and that further proceedings be taken to recover any losses to the estate. This outcome highlighted the importance of the integrity of estate administration and the court's role in ensuring that the deceased's wishes are honoured.

Orders