SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY - IN GENERAL
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - SOUTH AUSTRALIA - NO REASONABLE DOUBT THAT MAKER INTENDED DOCUMENT AS WILL
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - PRACTICE - SOUTH AUSTRALIA - OTHER MATTERS
Application made pursuant to section 12(2) of the Wills Act 1936 (SA) for an order admitting an informal will to probate – deceased left handwritten document not witnessed according to the Wills Act – whether document satisfies the requirements of section 12(2) – testamentary capacity of the deceased raised as an issue inter partes, but withdrawn before the hearing of the application – consideration of the information before the Court regarding the testamentary capacity of the deceased – document did not expressly appoint an executor – whether plaintiffs are appointed executors according to the tenor of the will – whether, in the circumstances, the Court should direct a grant of probate in solemn or common form.
Held: document an informal will which embodies the testamentary intentions of the deceased – appropriate case to utilise the remedial nature of section 12(2) – no material doubt as to the testamentary capacity of the deceased at the time of the making of the document – the tasks for the plaintiffs nominated in the document are typical tasks attributable to the office of executor – the plaintiffs are appointed executors according to the tenor of the document – this is a case where the grant of probate should be made in common form.
[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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AGLC
Tsagouris v Bellairs [2010] SASC 147
Case
[2010] SASC 147
Decision Date
CaseChat Overview and Summary
In the matter of Tsagouris v Bellairs, the applicants sought to admit a handwritten document, dated 6 June 2002, to probate as the will of the deceased, who passed away in 2017. The applicants, Dimitrios and Katarina, initially sought a grant in common form but later amended their application to seek a grant in solemn form. The deceased left the document, which was not witnessed in accordance with the Wills Act 1936 (SA), but the applicants argued that it was intended to be their father’s will. Testamentary capacity of the deceased was raised as an issue but was later withdrawn before the hearing of the application.
The legal issues before the court included whether the document satisfied the requirements of section 12(2) of the Wills Act 1936 (SA), whether the document was intended to be the deceased’s will, and whether the applicants should be appointed as executors of the will. The court had to consider the information before it regarding the testamentary capacity of the deceased, and whether the applicants were appointed executors according to the tenor of the will. The court also had to decide whether, in the circumstances, it should direct a grant of probate in solemn or common form.
The court found that the document was intended to be the deceased’s will and that the applicants were appointed executors according to its tenor. The court also found that the allegations of lack of testamentary capacity were withdrawn before evidence was led, and that the grant of probate could be made in common form. The court ordered that the document dated 6 June 2002 be admitted to probate as the will of the deceased pursuant to section 12(2) of the Wills Act 1936 (SA), and that the will be admitted to probate in common form. The court also ordered that Dimitrios Tsagouris and Katarina Gkargkasoula are the executors of the will of the deceased dated 6 June 2002 according to its tenor.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Dimitrios and Katarina in the within proceeding initially sought a grant in common form. On advice from the Registrar, they amended their application to seek a grant in solemn form. It is in the discretion of the Court as to what evidence it regards as sufficient to justify a grant of probate in solemn form,[28] and the Court retains a discretion to order the grant of probate in common form. Where the allegations are withdrawn before evidence is led, it seems a grant in common form may be made.[29] In the circumstances of this proceeding, and in view of the foregoing authority, I am not prepared to order a grant in solemn form, and am of the opinion that this is a situation where the grant should be made in common form. [28] Executor Trustee Australia Ltd v Henderson (2006) 244 LSJS 43 at [30].[29] Wheatley v Edgar [2003] WASC 118.Conclusion In this matter I order that:· the Registrar of Probates admit the document dated 6 June 2002 to probate as the will of the deceased pursuant to section 12(2) of the Wills Act 1936 (SA). · the will be admitted to probate in common form. · Dimitrios Tsagouris and Katarina Gkargkasoula are the executors of the will of the deceased dated 6 June 2002 according to its tenor.