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Sultanova v Bolgarow

Sultanova v Bolgarow

Case [2019] VSCA 245 30 October 2019

Wills Act 1997

Informal Will

Testamentary Intent

Briginshaw v Briginshaw

Succession Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0124

TATYANA SULTANOVA	Applicant
v
VALENTINA BOLGAROW AND ROBIN MARCHMENT	Respondents

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JUDGES:	BEACH and NIALL JJA and KENNEDY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 October 2019
DATE OF JUDGMENT:	30 October 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 245
JUDGMENT APPEALED FROM:	[2018] VSC 498 (Lyons J)

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WILLS AND ESTATES – Informal will – Will not seen by, or read to, deceased - Testator given opportunity to execute will - Whether will intended by deceased to be her final will – Whether sufficient evidence - Whether failure to take into account relevant considerations - No errors made - Briginshaw v Briginshaw (1938) 60 CLR 336, Fast v Rockman [2013] VSC 18 cited - Wills Act 1997, ss 7 and 9.

COURT AND JUDICIAL SYSTEM – Appeal - Where new point or issue raised on appeal which was not taken at trial - New issue not permitted to be raised - No merit in any event - Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C H Sparke QC with Ms S Aufgang	Saunders Family & Estate Lawyers
For the Respondents	Dr K Hanscombe QC with Mr T Mah	M & K Lawyers

BEACH JA
NIALL JA
KENNEDY AJA:

Nina Elzow (‘Nina’) died on 7 July 2016 aged 91 years.

On 14 April 2010 she executed a will (the ‘2010 Will’) wherein, subject to some small legacies, she gave her substantial asset, being her home at Hawthorn East, to be divided equally among five overseas relatives.

Shortly prior to her death, a will was prepared on her behalf by her solicitor, Charles Reichman, on 23 June 2016 (‘the New Will’) which has not been executed. The only change to the 2010 Will was that each of her five overseas relatives was to receive a legacy of $180,000, but with the residue of the estate to go to the first respondent, Valentina Bolgarow (‘Valentina’), a close friend, principal carer, and co-executor.

Valentina and her co-executor sought orders that the (informal) New Will be admitted to probate pursuant to s 9 of the Wills Act1997 (Vic) (the ‘Act’). These orders were opposed by the applicant, Tatyana Sultanova (‘Tatyana’), one of the overseas relatives.[1]
[1]Tayana also claimed to be authorised to oppose the application on behalf of three of the other relatives but said that one of the relatives, Dikanskaya Nina Vitalivna, did not oppose the grant of probate sought. See affidavit of Tatyana Sultanova dated 29 June 2018 at [18].

The sole issue in dispute was whether the New Will was intended by Nina to be her final will in circumstances where the document was not seen by, or read to, Nina, but where she understood the changes it made to the 2010 Will, and told her solicitor that the will was ‘exactly what she wanted’ and was ‘settled.’

The trial judge determined that Nina intended the…

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 Sultanova v Bolgarow

Details

AGLC: Tatyana Sultanova v Valentina Bolgarow and Robin Marchment [2019] VSCA 245
Case: [2019] VSCA 245
Decision Date: 30 October 2019

CaseChat Overview and Summary

The case of Sultanova v Bolgarow involved the interpretation of an informal will executed by a deceased woman. The dispute centred on whether the will in question was intended by the deceased to be her final testament, and whether there was sufficient evidence to support this intention. The matter was heard in the Supreme Court of Victoria.

The primary legal issues before the court were whether the deceased intended the will to be her final testament, and whether there was sufficient evidence to establish this. The court also needed to determine whether the trial judge had failed to take into account relevant considerations in reaching their decision. These issues were addressed under the provisions of the Wills Act 1997, particularly sections 7 and 9.

The court found that the trial judge did not make any errors in their assessment of the evidence and intention of the deceased. The court held that the will was indeed intended by the deceased to be her final testament, and that there was sufficient evidence to support this conclusion. The court also found that the trial judge had considered all relevant factors in reaching their decision, and therefore no new points or issues could be raised on appeal. In light of this, the appeal was dismissed.

The final orders of the court were that the appeal be dismissed, and that the decision of the trial judge be upheld. The will in question was recognised as the deceased's final testament, and the distribution of her estate was to proceed accordingly. The court emphasised the importance of considering all relevant factors in such cases, and the need for sufficient evidence to establish the intention of the deceased.

Orders