Ruxandra Dumitrescu v Constantin Daniel Scradeanu - [2012] NSWSC 1235

Supreme Court

New South Wales

Medium Neutral Citation: Ruxandra Dumitrescu v Constantin Daniel Scradeanu [2012] NSWSC 1235
Hearing dates: 26.09.12, 27.09.12
Decision date: 16 October 2012
Before: Nicholas J
Decision:
Par 37

Catchwords: WILLS PROBATE AND ADMINISTRATION - contested application for grant of letters of administration - cross-claim for grant of probate in solemn form - form and layout of will unusual - operation of "suspicious circumstances" rule in context of allegation of forgery - whether evidence sufficient to remove suspicions - whether proponent demonstrated will should be admitted to probate - whether necessary for proponent to provide executor's affidavit - turns on facts - no question of legal principle
Legislation Cited: Succession Act 2006
Civil Procedure Act 2005
Supreme Court Rules 1970
Cases Cited: Nock v Austin [1918] HCA 73; (1918) 25 CLR 519
Re Estate of Fuld [1968] P 675
Re Stevens [1897] 1 Ch 422
Tobin v Ezekiel [2012] NSWCA 285
Texts Cited: Williams, Mortimer and Sunnucks, Executors, Administrators, and Probate, 17th Ed, 1993
Category: Principal judgment
Parties: Ruxandra Dumitrescu - plaintiff/cross-defendant
Constantin Daniel Scradeanu - defendant/cross-claimant
Representation: Counsel:
M W Sneddon/C A Alexander - plaintiff/cross-defendant
P Lange - defendant/cross-claimant
Solicitors:
Florin Burhala Lawyers - plaintiff/cross-defendant
Aquila Lawyers - defendant/cross-claimant

File Number(s): 11/194811

Judgment

These proceedings arise from a dispute over the validity of the will of the late Marin Cristescu (the testator) made on 14 January 2011 (the will). The testator died on 23 March 2011, aged 59 years.

The plaintiff is a cousin of the testator, and claims to be his only living blood relative. She resides in Bucharest, Rumania. By statement of claim filed 28 March 2012 she claims to be entitled on intestacy to the whole of the estate based on the assertion that the will is not that of the testator, and that he died intestate. She seeks a grant of letters of administration to Florin Burhala, her solicitor. She also seeks orders for an account of monies received and distributed, and of dealings, by the defendant with the property of the estate, and consequential orders.

By cross-claim filed 29 May 2012, the defendant applies for a grant of probate of the will in solemn form.

On 16 June 2011 probate of the will in common form was granted to the defendant. On 7 May 2012 White J held that the grant had been due to administrative error, and ordered it be revoked. His Honour expressed the view that the plaintiff's claim raised a serious question to be tried as to whether or not the document was a forgery. He observed that the onus of establishing that the document was the will of the testator was on the defendant as the party who propounds the will. The hearing before me proceeded on that basis. It was common ground that if the defendant failed the order sought by the plaintiff for a grant of letters of administration of the estate should be made.

The plaintiff contended that the physical form and content…

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: [2012] NSWSC 1235
Decision Date: 16 October 2012

CaseChat Overview and Summary

The case of Ruxandra Dumitrescu v Constantin Daniel Scradeanu involved a contested application for a grant of letters of administration, with a cross-claim for the grant of probate in solemn form. The dispute centred around the form and layout of the will of an individual, which was deemed unusual. The court was tasked with examining whether the "suspicious circumstances" rule applied in light of an allegation of forgery, and whether the evidence provided was sufficient to alleviate those suspicions. Additionally, the court needed to determine whether the proponent of the will had demonstrated that it should be admitted to probate, and whether it was necessary for the proponent to provide an executor's affidavit.

The court examined the evidence presented regarding the will's authenticity and the circumstances surrounding its creation. It considered whether the unusual form and layout of the will, combined with the allegation of forgery, warranted the application of the suspicious circumstances rule. The court assessed the sufficiency of the evidence provided by the proponent to dispel the suspicions raised by the cross-claimant. Furthermore, the court deliberated on the necessity of an executor's affidavit in this context and whether it was essential for the proponent to provide such an affidavit.

In its decision, the court found that the evidence provided was not sufficient to remove the suspicions raised by the cross-claimant. The unusual form and layout of the will, coupled with the allegation of forgery, led the court to conclude that the suspicious circumstances rule applied. Consequently, the court determined that the proponent had not demonstrated that the will should be admitted to probate. The court also held that it was not necessary for the proponent to provide an executor's affidavit in these circumstances. As a result, the application for the grant of letters of administration was dismissed, and the cross-claim for the grant of probate in solemn form was denied.

The final orders of the court were that the application for the grant of letters of administration be dismissed, and the cross-claim for the grant of probate in solemn form be denied. The court's decision emphasised the importance of the evidence provided in relation to the authenticity of the will and the circumstances surrounding its creation, particularly in cases where the will's form and layout are unusual and allegations of forgery are made.

Orders