Vogdanos v Kriaris - [2012] VSC 248

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

PRACTICE COURT

No. 2553 of 2012

IN THE MATTER of section 99 of the Administration and Probate Act 1958

and

IN THE MATTER of the estate of CONSTANTINOS VOGDANOS in the Will called
CONSTANTINO VOGDANOS also known as CON VOGDANOS (deceased)

STAMATIOS VOGDANOS	Plaintiff
v
ANASTASIOS KRIARIS (who is sued as the executor of the Will of CONSTANTINOS VOGDANOS, deceased)	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 June 2012
DATE OF JUDGMENT:	19 June 2012
CASE MAY BE CITED AS:	Vogdanos v Kriaris
MEDIUM NEUTRAL CITATION:	[2012] VSC 248

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ADMINISTRATION AND PROBATE – Application under s 99 of the Administration and Probate Act 1958 for extension of time to commence application under s 91 of the Administration of Probate Act 1958 – Delay – Merits of the claim – Prejudice to any beneficiaries.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R.D. Shepherd	GPZ Pty Lawyers
For the Defendant	Ms L. Glass	S. Kourkoulis & Associates

HER HONOUR:

Introduction

The plaintiff, pursuant to s 99 of the Administration and Probate Act 1958 ("the Act"), makes an application to extend the time within which he may commence an application under Part IV of the Act seeking further provision for his proper maintenance and support from the estate of his late father, Constantinos Vogdanos ("the deceased").

In making this application the plaintiff relies on his two affidavits sworn on 1 May and 22 May 2012. The defendant has not filed any affidavits in this proceeding and did not make any submissions on the merits of the application. At the hearing, counsel for the defendant said that the defendant would abide by the decision of the Court.

Factual background

The deceased died on 22 October 2010, leaving a will dated 26 September 2007. At the time of his death, the deceased was aged 78 years. The deceased's former wife died on 14 April 2012. There are three children of the marriage — the plaintiff born 3 June 1962 and twin daughters, Ms Stella Ferentinos and Ms Agorastoula Vogdanos, born 26 September 1972. The plaintiff deposes that Ms Ferentinos has no children and is divorced and Ms Vogdanos has one child from her first marriage and a second child from her second marriage.

The deceased's will appointed his nephew, the defendant, as his executor. Pursuant to his will, the deceased gave the residue of his estate in equal shares to his three adult children. The three children survived the death of the deceased.

Probate of the deceased's will was granted to the defendant on 8 August 2011. According to the inventory of assets and liabilities filed in support of the application for a grant of probate, the deceased left an estate of $502,007.02 with no liabilities. The principal asset of the estate was the deceased's residence at 6 Hodgkinson Court, Springvale, Victoria. The property has been sold for $461,000. The net estate is now…

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 Vogdanos v Kriaris

Details

AGLC: Vogdanos v Kriaris [2012] VSC 248
Case: [2012] VSC 248
Decision Date: 19 June 2012

CaseChat Overview and Summary

The case of Vogdanos v Kriaris involved an application by Vogdanos, seeking an extension of time to initiate a proceeding under section 91 of the Administration and Probate Act 1958. The application was made under section 99 of the same Act. The dispute arose as Vogdanos had missed the statutory deadline to commence the action. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court were whether the delay in bringing the application was justified and whether any beneficiaries would suffer prejudice as a result. The court had to balance the principle of finality in probate matters against the circumstances that might warrant an extension of time. The court needed to consider whether Vogdanos had a bona fide claim and whether the delay was such that it would prejudice any interested parties.

The court found that Vogdanos had a valid reason for the delay, and the claim had substantial merits. The delay did not prejudice any beneficiaries, as they were all aware of the claim and had not acted to their detriment based on the delay. The court was satisfied that Vogdanos had acted promptly once the circumstances giving rise to the claim became known. Consequently, the court granted the application for an extension of time. The final orders were that Vogdanos could proceed with the application under section 91 of the Administration and Probate Act 1958 despite the delay.

Orders