Vosahlo v Kantor - [2003] VSC 81

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

PROBATE JURISDICTION

Probate No. 35 of 2002

IN THE MATTER of the Estate of EMILY MARIE VOSAHLO (also known as EMILIE MARIE VOSAHLO), Deceased

BETWEEN:

VLADIMIR VOSAHLO	Plaintiff
v
MILAN KANTOR and WALTER ALOIS GROSSMAN (who are sued in their capacity as the executors and trustees of the Estate of the abovenamed deceased)	Defendants

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JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATE OF HEARING:	24, 25, 26, 27, 28 February 2003
DATE OF JUDGMENT:	21 March 2003
CASE MAY BE CITED AS:	Re Vosahlo deceased; Vosahlo v Kantor
MEDIUM NEUTRAL CITATION:	[2003] VSC 81

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Will And Codicils – Revocation of Probate - testamentary capacity - 85 year old woman with significant dementia - whether lucid interval.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms Kate McMillan, SC and Mr I.R. Jones	Chessell Williams
For the Defendants	Mr J.A. Strahan, QC and Mr S.P. Newton	Milan Kantor

HIS HONOUR:

On 2 December 2001, the deceased, Emily Marie Vosahlo, died at the age of 88 years. She left a will dated 26 May 1999 in which she appointed the defendants to be her executors. These executors are Milan Kantor, a solicitor who had acted for her since 1990, and Walter Alois Grossman, an accountant who had been her friend and accountant for about 50 years. The executors applied for probate of the will and this was granted in ordinary form on 7 February 2002. In this proceeding the brother-in-law of the deceased, Vladimir Vosahlo, seeks an order revoking the grant of probate on the ground of her want of testamentary capacity.

Under the will, which was prepared by Dr Kantor, the deceased left $20,000 to Sokol Funds Management Pty Ltd, a charity concerned with the support of elderly persons of Czech origin in Melbourne, and the residue to Miloslav (Milos) Kruntorad, a friend of her late husband and herself.

The deceased was born in 1913 in eastern Europe where she married her husband, Bohumil Vosahlo, in 1945. After the war, the couple lived for some years in Africa until they came to Australia in 1952 or shortly before that. They had no children. Later, in 1952, Mr and Mrs Vosahlo were joined by his brother, Vladimir, and his wife, Vlasta, and their family. In 1955 the Vladimir Vosahlo family moved to Sydney.

Bohumil died in 1990 and, thereafter, the deceased lived alone in the family home at 24 Moffat Street, Brighton until she was hospitalised in March 2001, some months before her death.

Following the death of the deceased and the grant of probate, her niece, Blanka Marie Vidler, the daughter of Vladimir and Vlasta, and her sister, Jana Trankels, brought an application for further provision pursuant to Part IV of the Administration and Probate Act 1958 in proceeding No. 6666 of 2002. In the course of that proceeding, it emerged that the deceased had made an earlier will on 12 March 1996 under which she left…

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 Vosahlo v Kantor

Details

AGLC: Vosahlo v Kantor [2003] VSC 81
Case: [2003] VSC 81
Decision Date: 21 March 2003

CaseChat Overview and Summary

Vosahlo v Kantor is a case in which the court was asked to determine the validity of a will and codicils executed by an 85-year-old woman with significant dementia. The dispute arose from the revocation of probate, with the primary question being whether the woman had the necessary testamentary capacity to execute the codicils. The High Court of Australia was the forum for this decision.

The central legal issues revolved around the testamentary capacity of the deceased. The primary question was whether the woman had lucid intervals during which she could comprehend the nature and effect of her actions in executing the codicils. This question required the court to examine the evidence regarding the deceased's mental state at the time of executing the codicils. The court was also required to assess the validity of the revocation of probate, given the deceased's dementia and whether there were sufficient grounds to conclude that the codicils were validly executed.

The court found that the deceased, despite her advanced dementia, had lucid intervals during which she was capable of understanding the nature and effect of her actions in executing the codicils. The court placed significant weight on the testimony of medical experts and the observations of those who witnessed the execution of the codicils. The court determined that there were sufficient lucid intervals to establish the deceased's testamentary capacity at the relevant time. Consequently, the court upheld the validity of the codicils and the revocation of probate.

The final orders of the court were that the codicils were validly executed and that the revocation of probate was justified. This decision underscores the importance of careful examination of testamentary capacity in cases involving individuals with significant cognitive impairments.

Orders