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Ryan v Kazacos

Ryan v Kazacos

Case [2001] NSWSC 140 13 March 2001

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Reported Decision:
(2001) 183 ALR 506
(2001) 159 FLR 452
[2001] NSWSC 140
[2001] ACL Rep 195 NSW 19
[2001] ACL Rep 395 NSW 23

New South Wales

Supreme Court

CITATION: Ryan v Kazacos; Estate of Michael Harvey Kazacos [2001] NSWSC 140

CURRENT JURISDICTION: Equity Division
Probate List

FILE NUMBER(S): SC 104947/97

HEARING DATE(S): 20/02/01 and 21/02/01

JUDGMENT DATE:
13 March 2001

PARTIES :

Michelle Ryan (P)
Michael Constantine Kazacos (D)

JUDGMENT OF: Young J

COUNSEL : L Ellison and E Cox (P)
T Alexis and T Hudson (D)

SOLICITORS: David H Cohen & Co (P)
Sharpe Partners Legal (D)

CATCHWORDS: EVIDENCE [23]- Inadmissible evidence by statute- Solicitor for X listening to tapes of tapped phone calls for criminal proceedings against X- Solicitor takes notes- Notes inadmissible in probate proceedings Y v X. SUCCESSION [4][48]- Suicide note- Whether an informal will- Whether maker of sound mind- when "will" made. WORDS & PHRASES- "Information".

LEGISLATION CITED: Wills Probate & Administration Act 1898, s 18A
Telecommunications (Interception) Act 1979 (Comm) ss 5B, 63, 74, 77
National Crime Authority Act 1984 (Comm) s 29A

CASES CITED: Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Burrows v Burrows (1872) 1 Hagg Ecc 109; 162 ER 524
Harman v Home Department State Scretary [1983] 1 AC 280
Kizon v Palmer (1997) 72 FCR 409; (1997) 75 FCR 261; (1998) 100 A Crim R 86
Mulray v Ogilvy (12 June 1991)
Permanent Trustee Co Ltd v Milton (1996) 39 NSWLR 330
Perpetual Trustee Company Ltd v Baker [1999] NSWCA 244
Re Estate Griffith (7 June 1995)
Re Furney [1964] ALR 814
Re Hodges (1988) 14 NSWLR 698
Re Masters (1994) 33 NSWLR 446
Reg v Carmelo Micalizza (Slattery CJ at CL - 13 November 1987)
Vane v Lord Dungannon (1804) 2 Sch & Lef 118
Wood v Beves (1997) 92 A Crim R 209; (1997) 137 FLR 436
Worth v Clasohm (1952) 86 CLR 439

DECISION: See paras 72 and 73.

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

PROBATE LIST

YOUNG J

TUESDAY 13 MARCH 2001

104947/97 - RYAN v KAZACOS; ESTATE OF MICHAEL HARVEY KAZACOS

JUDGMENT

1 HIS HONOUR: The question in this case is whether a note (called in evidence the “suicide note”) written by the late Michael Harvey Kazacos (the deceased) should be admitted as a codicil to the deceased’s last will under s 18A of the Wills Probate and Administration Act 1898.

2 The deceased shot himself in his office on the 6th floor, 250 Pitt Street Sydney in the late evening of 2 November 1996 or the early morning of 3 November 1996. The note, which is clearly in the deceased’s handwriting and bears the notation “6.40 am 1.11.1996” reads as follows:

Life for me is just an existence. I prefer to end it rather than exist in this apparent prison.

I wish to amend my present will by including Michelle Ryan, whom I owe so much for her devotion…

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 Ryan v Kazacos

Details

AGLC: Ryan v Kazacos [2001] NSWSC 140
Case: [2001] NSWSC 140
Decision Date: 13 March 2001

CaseChat Overview and Summary

The matter before the court involved a dispute over the validity of a will and the admissibility of evidence obtained through intercepted phone calls. The deceased, Ryan, left behind a note which was in question as to whether it constituted a valid will. Kazacos, the deceased's heir, contested the note's validity and argued that it was not a sound testamentary document. The case was heard in the Supreme Court of Queensland. The legal issues before the court included the admissibility of notes taken by a solicitor who had listened to intercepted phone calls in relation to the deceased, and the validity of the note as a testamentary document.

The court held that the notes taken by the solicitor from listening to the intercepted phone calls were inadmissible as they were considered information obtained through an illegal process. The court further found that the note left by the deceased did not constitute a valid will, as it was not made by a person of sound mind at the time of its creation. The court determined that the note was not a valid testamentary document and therefore could not be considered in the probate proceedings. The court ruled that the evidence obtained through the intercepted phone calls was not admissible in the probate proceedings.

As a result of the court's decision, Kazacos's claim for probate of the note was dismissed. The court found that the note did not constitute a valid will and that the evidence obtained through the intercepted phone calls was inadmissible. The court's decision was based on the principles of evidence law and succession law, and the court held that the note was not a valid testamentary document. The final orders of the court were that the claim for probate of the note was dismissed and that the evidence obtained through the intercepted phone calls was not admissible in the probate proceedings.

Orders