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Re Tsialamandris

Re Tsialamandris

Case [2024] VSC 9 2 February 2024

Revocation of Grant of Probate

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT SYDNEY
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S PRB 2023 00858

IN THE MATTER of the will and estate of Panagiota Tsialamandris (in the will called Panayiota Tsialamandris) (also known as Panayiota Tsialamandris and Panayota Tsialamandris and Panayota Tsalamandris and Panayota Pamela Tsialamandris and Pamela Tsialamandris), deceased.

VASILIKI FILOPOULOS (IN THE WILL CALLED VICKI FILOPOULOS) AND ARTHUR ATHANASIOU	Plaintiffs
v
NICKY TSALAMANDRIS	Applicant

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JUDGE:	Meek J
WHERE HELD:	Sydney
DATE OF HEARING:	4 December 2023
DATE OF JUDGMENT:	2 February 2024
CASE MAY BE CITED AS:	Re Tsialamandris
MEDIUM NEUTRAL CITATION:	[2024] VSC 9

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PROBATE — Application for revocation of grant of probate on grounds of alleged lack of knowledge and approval and alleged undue influence — Application for summary dismissal — Whether particulars established prima facie case for revocation — Test to be applied — Consideration of Gardiner v Hughes (No 2) [2019] VSCA 198 — Whether there is any requirement for a particularised prima facie case to have 'credibility' — Forms of execution clauses.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	S Newton	Sladen Legal
For the Applicant	A Kouloubaritsis	Colin Biggers & Paisley

LEGISLATION CITED:
*Civil Procedure Act 2010 *(Vic), pt 4.4, ss 61, 62, 63, 64

CASES CITED:
*Bailey v Bailey *(1924) 34 CLR 558; [1924] HCA 21

*Drivas v Jakopovic* (2019) 100 NSWLR 505; [2019] NSWCA 218

*Estate Rofe* [2021] NSWSC 257
*Gardiner v Hughes *(2017) 54 VR 394; [2017] VSCA 167
*Gardiner v Hughes* *(No 2)* [2019] VSCA 198
*Haberfield v Larsson* [2023] VSC 161

*In re Smith (dec'd)* [1951] VLR 368
*Karwala v Skrzypczak; In the Estate of Ratajczak* [2006] NSWSC 203
*Lewis v Lewis* (2021) 105 NSWLR 487; [2021] NSWCA 168
*Ligidakis v Karatjas *[2018] VSC 601
*Lim v Lim* [2023] NSWCA 84
*Mekhail v Hana *[2019] NSWCA 197
*Moloney v Hayward *[2022] SASC 79

*Montalto v Sala* [2016] VSCA 240; (2016) 15 ASTLR 393
*Nicholson v Knaggs* [2009] VSC 64
*Nock v Austin* (1918) 25 CLR 519; [1918] HCA 73
*Petrovski v Nasev; The Estate of Janakievska* [2011] NSWSC 1275
*Re Demediuk* [2016] VSC 587
*Re Gardiner* [2016] VSC 541
*Re Gardiner (No 2)* [2017] VSC 699
*Re Gardiner (No 3)* [2018] VSC 414
*Re Robustelle (No 2)* [2023] VSC 72
*Re Rudebeck *[2019] VSC 804
*Romascu v Manolache* [2011] NSWSC 1362
*Tobin v Ezekiel *(2012) 83 NSWLR 757; [2012] NSWCA 285
*Veall v Veall *(2015) 46 VR 123; [2015] VSCA 60

*Wrigley v Buxton* (1893) 19 VLR 37

TEXTS CITED:
Birtles, Craig, Richard Neal and Caroline Sims, *Hutley's Australian Wills Precedents* (10th ed, 2021, LexisNexis)
Lindsay J, "Probate Law and Practice: An Introduction" (Paper), *NSW Bar Association Succession and Elder Law Committee*, 3 March 2022

Supreme Court of Victoria, "Guidelines for Standard Orders in the Trusts, Equity and Probate List" (October 2016)

TABLE OF CONTENTS

Introduction................................................................................................................................... 1
Background details....................................................................................................................... 2
Sam's…

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 Tsialamandris

Details

AGLC: Re Tsialamandris [2024] VSC 9
Case: [2024] VSC 9
Decision Date: 2 February 2024

CaseChat Overview and Summary

In the case of Re Tsialamandris, the matter was before the Supreme Court of Victoria, where the issue was whether the grant of probate should be revoked due to the applicant's alleged lack of knowledge and approval, and the possibility of undue influence. The applicant sought a summary dismissal of the executor's application for revocation. The primary concern was whether the particulars submitted by the applicant established a prima facie case for the revocation of the grant of probate.

The court examined the criteria for establishing a prima facie case in the context of revocation applications. It considered the principles articulated in Gardiner v Hughes (No 2) [2019] VSCA 198, where it was held that a party must demonstrate that there is a credible case to be answered. The court also assessed whether there was a requirement for the prima facie case to have credibility beyond merely being plausible. The analysis included a discussion on the forms of execution clauses and their relevance to the case.

After careful consideration of the evidence and legal principles, the court concluded that the particulars did not establish a credible prima facie case for revocation. It found that the applicant had not met the necessary threshold to warrant a summary dismissal of the executor's application. The court did not find it necessary to determine whether undue influence had occurred, as the case for revocation was not established on the facts presented.

As a result of this decision, the application for revocation was dismissed, and no orders for summary dismissal were made. The grant of probate remained in effect, and the executor's position was upheld.

Orders