Re Topcu; Tampus v Canipek
[2020] VSC 541
•27 August 2020
| 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 to r 6.10 of the Supreme Court (General Civil Procedure) Rules 2015, to the effect that the plaintiff would be served with the further amended summons and other relevant documents by registered post to her address in the Philippines and to Resul at his address in Craigieburn, Victoria. The orders provided that, if the plaintiff did not appear at the hearing scheduled for 14 February 2020, orders may be made in her absence.
By affidavit sworn 15 January 2020, the applicant’s solicitors confirmed that substituted service was effected on 20 December 2019. No documents were filed by the plaintiff.
On 14 February 2020, after the proceeding was formally called, no appearance was entered for the plaintiff. The applicant was content for the application for revocation to be determined on the papers, without further notice to the plaintiff.
Consideration
The Court in its probate jurisdiction has power to revoke a grant, with such power exercised at its discretion, having regard to all the relevant circumstances in the particular case.[2] An applicant seeking to revoke a grant must show:
[2]Re Lamont (1881) 7 VLR (I) 86; Re Goode (1890) 11 NSWR (Eq) 281; Re Gillard [1949] VLR 378; Re Egan [1963] VR 318.
(a) standing to make such an application;
(b) a reasonable explanation for the delay in bringing the application; and
(c) a prima facie case to challenge the grant of probate or letters of administration.[3]
Standing
[3]See, eg, Offley v Best (1665) 1 Lev 186; (1665) 83 ER 361; Re Gillard (n 2) 381 (Barry J); Edwards v Boyd (1958) 75 WN (NSW) 525; Re Egan (n 2) 320 (Herring CJ); Van Wyk v Albon [2011] VSC 120; Re Kouvakas; Lucas v Konakas [2014] NSWSC 786, [285]–[288], [310] (Lindsay J); Re Cockell; Cole v Paisley [2016] NSWSC 349, [53] (Lindsay J); Re Watson [2017] VSC 322, [15] (McMillan J).
The applicant relies on s 45 of the Wills Act1997 (‘the Act’) to establish her standing as a beneficiary of the estate. Section 45(1) relevantly provides:
45 Dispositions not to fail because issue have died before the testator
(1) If a person makes a disposition to any of his or her issue, where—
(a) the disposition is not a disposition to which section 43 applies; and
(b) one or more of the issue do not survive the testator for thirty days; and
(c) the interest in the property is not determinable at or before the death of the issue—
the issue of the deceased issue who survive the testator for 30 days take the deceased issue's share of the disposition in place of the deceased issue in the same manner as if the testator had died intestate and as if the testator had died leaving only issue surviving.[4]
[4]Pursuant to s 52(1) of the Act, s 45 applies to wills made on or after 20 July 1998. As the deceased’s will post-dates the commencement of the Act, s 45 applies to the will.
The will devises and bequeaths the deceased’s estate to Gulnaz. There is no gift over in the event that Gulnaz fails to survive the deceased. Gulnaz predeceased the deceased and was survived by her three children. All three children survived the deceased by 30 days.
For the purposes of s 45(1)(a) of the Act, there is no contrary intention in the will that would call the disposition into question under s 43 of the Act. For the purposes of s 45(1)(c), Gulnaz’s interest is not determinable at or before her death. Accordingly, pursuant to s 45(1), the children of Gulnaz, one of whom is the applicant, are entitled to the whole of the deceased’s estate, which Gulnaz otherwise would have taken. As a beneficiary of the deceased’s estate, the applicant has standing to make the application to revoke the grant of letters of administration to the plaintiff.
Prima facie case
An applicant seeking revocation of a grant must also show a prima facie case, meaning there is a ‘case for investigation’ or ‘something to go on’.[5] When the plaintiff made her application for a grant of letters of administration in 2012, she provided no information concerning Gulnaz’s children. The inventory filed by the plaintiff records that the assets of the deceased’s estate comprised funds of $32,867.98 in the bank and a property in Mildura valued at $230,000 and no liabilities.
[5]Gardiner v Hughes (No 2) [2019] VSCA 198, [41] (Kyrou, McLeish and T Forrest JJA), referring to Re Egan (n 2) 320 (Herring CJ).
The applicant and her former solicitor deposed to telephone conversations with Resul and the surety guarantor, Rasit Canipek, for the plaintiff’s application, in which they were informed that ‘all the money in the bank has been spent’. The applicant deposed to Resul renting out the Mildura property over the years. The Mildura property remains registered in the deceased’s name. Neither Resul nor Mr O’Haire, the solicitor who acted for the plaintiff to obtain the grant of letters of administration, provided any information as to the administration of the estate. A letter from Mr O’Haire to the applicant’s solicitor stated ‘[t]here has been no progress in the administration of the estate since 2013’.
The plaintiff has no interest in the deceased’s estate and is not entitled to administer the estate. As best that can be determined, the funds in the bank no longer remain in the bank, any rent received by Resul for renting out the Mildura property since the death of the deceased is unknown, and the Mildura property should be distributed to the three beneficiaries. After a proper investigation, there may also be grounds to call on the surety guarantor. Accordingly, the applicant has a prima facie case to revoke the grant of letters of administration to the plaintiff.[6]
Reasonable explanation for delay
[6]It is well-established that the person who has the greatest interest as beneficiary is usually entitled to be appointed administrator with the will annexed; Re Carey; State Trustees Ltd v Howden [2011] VSC 682, [5] (Habersberger J), citing Re Pierce (1886) 12 VLR 733.
The delay in making this application is almost seven years. The applicant explained that her delay was partly due to the fact that she resided in Turkey since 12 February 2009 and only returned to Australia in 2016. Upon her return to Australia she became aware of the state of the administration of the deceased’s estate.
In the period between October 2017 and April 2018, the applicant engaged her solicitors to contact both Resul and the plaintiff to determine the status of any distributions from the estate. Having received no responses to her enquiries, the applicant then commenced her application to revoke the grant.
While the applicant has not fully accounted for the delay between her return to Australia, in 2016, and October 2017, when she first engaged representation to enquire into the administration of the estate, some allowance ought be made for the time taken for her to move from a different country, for her to make enquiries directly with family members, and to obtain legal advice when such enquiries failed to bear fruit.
The applicant’s explanation for the lengthy period of delay is adequate in the circumstances.
Conclusion
The Court is satisfied that the applicant has established that the grant of letters of administration with the will of the deceased dated 26 November 2010 annexed made to the plaintiff on 3 August 2012 should be revoked.
Orders
The Court will order that:
(a) By 9 October 2020, the plaintiff file a true and just account of the administration of the estate in Form 3–6AA of the Supreme Court (Administration and Probate) Rules 2014 in the office of the Registrar of Probates and serve a true copy of the account on the applicant’s solicitors.
(b) The grant of letters of administration with the will of the deceased dated 26 November 2010 annexed made to the plaintiff on 3 August 2012 be revoked and the grant be delivered up to the Registrar of Probates within 14 days of the end of Stage 4 COVID-19 Restrictions, or as soon as reasonably practicable thereafter.
(c) The plaintiff pay the costs of the applicant of and incidental to the proceeding on the standard basis, without recourse to the estate.
(d) Liberty to the applicant to apply.
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