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Wehbe v Giotopoulos

Wehbe v Giotopoulos

Case [2023] NSWSC 827 14 July 2023

Wills Act 1970

Probate

Knowledge and Approval of Will Contents

Suspicious Circumstances

Burden of Proof

Succession Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Wehbe v Giotopoulos [2023] NSWSC 827
Hearing dates: 3-6 July 2023
Date of orders: 14 July 2023
Decision date: 14 July 2023
Jurisdiction: Equity
Before: Darke J
Decision:
Application for grant of probate in solemn form fails. Declaration to be made that the deceased died intestate. Grant of administration to be made.

Catchwords:
SUCCESSION – contested probate – validity of will propounded by plaintiffs – whether the will was duly executed in accordance with s 6 of the Succession Act 2006 (NSW) – whether suspicious circumstances attended the preparation and execution of the will – whether the testator signed the will with knowledge and approval of its contents – where no evidence given by independent witnesses to the preparation and execution of the will – lack of acceptable evidence that attesting witnesses signed the will in the presence of the testator – due execution of the will not established – suspicious circumstances attended the preparation and execution of the will – plaintiffs failed to discharge burden of showing that the testator signed the will with knowledge and approval of its contents – application for grant of probate in solemn form of the will dismissed

Legislation Cited:
Evidence Act 1995 (NSW), s 140
Succession Act 2006 (NSW), s 6

Cases Cited:
Alexakis v Masters (No 2) [2023] NSWSC 509
Burnside v Mulgrew; Re the Estate of Doris Grabrovaz [2007] NSWSC 550
In the Will of Kimbell [1969] 1 NSWR 414; (1968) 88 WN (Pt 1) (NSW) 614
Lewis v Lewis (2021) 105 NSWLR 487; [2021] NSWCA 168
Mekhail v Hana; Mekail v Hana [2019] NSWCA 197
Sullivan v Mouglalis; Wilson v Mouglalis – Estate Late Willem Wyma [2008] NSWSC 1326
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285

Category: Principal judgment
Parties: George Paul Wehbe (First Plaintiff/First Cross-Defendant– self represented and on behalf of the Second Plaintiff/Second Cross-Defendant)
Simon Charbel Wehbe (Second Plaintiff/Second Cross-Defendant)
Marcha Giotopoulos (Defendant/Cross-Claimant)
Representation:
Counsel:
Mr J E F Brown (Defendant/Cross-Claimant)
Solicitors:
Shad Partners (Defendant/Cross-Claimant)

File Number(s): 2021/167226
Publication restriction: None

Judgment

Introduction

These proceedings concern the estate of the late Wadad Wehbe. She died on 10 February 2021 at the age of 68. Wadad Wehbe was not survived by a spouse. Her husband, Mr Paul Wehbe, had died on 19 July 2019 at the age of 81. Wadad Wehbe was survived by her five children.
The central issue is whether a will signed by Wadad Wehbe on 8 July 2020 is a valid will.
The plaintiffs, Mr George Wehbe and Mr Simon Wehbe, are two sons of Wadad Wehbe. They seek to uphold the validity of the will, which provides for her estate to be shared equally by the plaintiffs and their brother, Mr Bashir Wehbe. The defendant, Ms Marcha Giotopoulos, is one of the two daughters of Wadad Wehbe. She challenges the validity of the will and claims that her mother died intestate. If that is so, the estate would…

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 Wehbe v Giotopoulos

Details

AGLC: Wehbe v Giotopoulos [2023] NSWSC 827
Case: [2023] NSWSC 827
Decision Date: 14 July 2023

CaseChat Overview and Summary

In the case of Wehbe v Giotopoulos, the dispute centred on the validity of a will propounded by the plaintiffs. The will was contested, and the matter was heard in the Supreme Court of New South Wales. The court had to determine whether the will was validly executed according to section 6 of the Succession Act 2006 (NSW). A key issue was whether suspicious circumstances surrounded the preparation and execution of the will, and if the testator had signed the will with full knowledge and approval of its contents. Additionally, the court had to consider whether there was sufficient evidence to prove that the will was signed in the presence of the testator and the two attesting witnesses.

The court examined the evidence and found that there were no independent witnesses to the preparation and execution of the will. Furthermore, there was a lack of acceptable evidence that the attesting witnesses signed the will in the presence of the testator. The court held that due execution of the will was not established. The suspicious circumstances that attended the preparation and execution of the will added to the doubt about the validity of the will. The plaintiffs were unable to discharge the burden of proving that the testator signed the will with knowledge and approval of its contents.

Given the evidence and the findings of the court, the application for the grant of probate in solemn form of the will was dismissed. The court concluded that the plaintiffs had not met the required standard of proof to establish the validity of the will, and thus, the will could not be admitted to probate. The court's decision was based on the lack of evidence to support the due execution of the will, and the presence of suspicious circumstances that cast doubt on the testator's intention and knowledge at the time of signing the will.

Orders