HER HONOUR: This is an application by summons filed on 25 September 2017 by the plaintiff (Steven Ballas) for declaratory and other relief in relation to the will of the late George Bistolaridis. The circumstances in which the application is made may be briefly summarised as follows.
Mr Bistolaridis died on 26 November 2016. An application was originally filed by Mr Ballas (the husband of the deceased's niece, Angela, who is the second defendant) (by summons seeking the grant of probate) on 10 April 2017. That application was rejected on the basis that the will did not appoint an executor, as opposed to a trustee, and because compliance was required with Pt 78, r 42 of the Supreme Court Rules 1970 (NSW) for notice to be given all affected persons in relation to the application for probate of an informal testamentary document).
There was a response to the requisition. The application for probate was still rejected. That led to the filing of the summons on which the plaintiff now moves. I have read the following affidavits that have been read on the application:
1. Affidavit of Elias Khouzame sworn 22 September 2017;
2. Affidavit of Executor sworn 7 April 2017;
3. Affidavit of Steven Ballas sworn 1 May 2017;
4. Affidavit of Attesting Witness sworn 7 April 2017;
5. Affidavits of Service as to summons filed 25 September 2017 of:
1. Elias Khouzame sworn 10 October 2017;
2. Peter Turner sworn 3 October 2017;
3. Peter Turner sworn 3 October 2017 (second affidavit);
4. Alan McNamara sworn 29 September 2017;
5. Alan McNamara sworn 10 October 2017;
1. Affidavits of Service as to notice to affected persons:
1. Peter Turner sworn 31 August 2017;
2. Peter Turner sworn 31 August 2017 (second affidavit);
3. Alan McNamara sworn 29 August 2017;
4. Alan McNamara sworn 21 August 2017; and
5. Elias Khouzame sworn 18 October 2017 (filed in Court by leave).
Those affidavits establish that there has been service of the summons and supporting material on each of the first to eleventh defendants as well as service of notice on the eighth to eleventh defendants of the listing of the motion for hearing today. (The first to seventh defendants have signed consents to the making of the declaratory relief sought.)
By way of background, the first defendant (Anna Balis) is the sister of the deceased. The second to fourth defendants are Anna's children. The fifth, sixth and seventh defendants are the cousins of the deceased. The eighth to eleventh defendants are persons who were named in an earlier will executed by the deceased in 2004. Of those, the ninth to eleventh defendants are the children of another sister of the deceased, Areti, who pre-deceased the deceased. The eighth defendant is Angela Aloupis who was named as co‑executor with the plaintiff in the previous will.
The existence of the previous will was not known to the plaintiff at the time the initial application for probate was made. Its existence came to light at a later time, even though enquiries had previously been made of the solicitors in whose possession the will was ultimately found. The previous will is dated 19 May 2004. In that will, the deceased appointed as his "executors and trustees" Angelo Aloupis (the husband of the deceased's niece Niki Aloupis) and the plaintiff.
The document, the subject of the present application for admission to probate, is handwritten and largely written in the Greek language, which was the primary language of the deceased. It has been translated by an accredited translator. The translation is as follows:
George Theodor Bistolaridis
May Last [sic] Will
On this day Sunday 6/4/14 I write my last Will - [for] after [my] death the time is 10am in the morning. In terms of health I am very well & my reasoning excellent. My estate both real and otherwise I will [illegible] where I wish.
1st all of my accounts will go to my sister ANNA BALLIS and her daughter ANGELA BALLAS her helper I will [illegible] certain where I tell them to.
2nd the PROPERTY in Windsor two shops & two FLATS 219-221 George St Windsor will go to ENGELA BALLAS.
The house will go to NICKY MORIS with all its contents and the car. Dina will get $800,000 cash.
From the money ANNA and ENGELA will give $50,000 to the first cousins Voula and Panagiota Retsou maiden name. To Atha Briadis $50,000 and they are to pay all funeral expenses and for the memorial stone that they wil build.
I don't owe anyone [money] not nor do I have a mortgage.
Trustee will be Stiv BALLAS
May Last [sic] Will
[signature George Bistolaridis) [signature illegible]
NICK PREKETES
[address]………
………
………
As for Areti's children they got what I had given their mother.
[signature]
The translator indicated in the above translation that some of the words in the document were illegible or partially illegible. Some of the words were described by the translator as being "Gringlish", which I understand to be a mixture of Greek and English. The trustee identified in the handwritten document was described as "Stiv Ballas". The plaintiff has deposed that the deceased commonly referred to him as "Steve", and that, in the deceased's accent, that would sound like "Stiv" or would be understood as "Stiv".
As noted, the first to seventh defendants have signed consents to the application. The eighth to eleventh defendants have not signed consents but I am satisfied that they have been given notice of the application. (The eleventh defendant, I note, was represented by a solicitor when the matter was last before me in the Family Provision List, and indicated on that occasion that there was no intention on the part of the eleventh defendant to appear at this application.)
There was no attendance or appearance at the hearing of this application by any of the defendants, and the matter was called outside the Court before the commencement of the hearing of the application. There is thus no contradictor to the present application. (However, as all instructed parties have been notified I have proceeded to hear the application.)
The first issue to be determined is the status of the handwritten document. There is no doubt that the requirements as to the formalities for the execution of a will in New South Wales as set out in s 6 of the Succession Act 2006 (NSW) have not been complied with, as the will has been witnessed only by one person. The witness to the execution of the will (Mr Nick Preketes) has sworn an affidavit in these proceedings which I have read.
In the affidavit sworn 7 April 2017, Mr Preketes deposes that he and the deceased were very close friends and visited each other on almost a weekly to fortnightly basis. Mr Preketes deposes that he was as close to the deceased as to a brother, and that they often had personal and lengthy conversations with respect to financial matters amongst other things.
In particular, Mr Preketes deposes that he visited the deceased at his home at Westmead on 6 April 2014 at some time between 10am and 2pm. He deposes to the circumstances in which the deceased told him that he had finished writing his will, which he had prepared by himself, and goes on to depose that the deceased stated, "I have finished my will, and if you do not mind, can you sign as a witness. I trust you more than anybody else".
Mr Preketes has deposed that, on at least two occasions prior to that date, the deceased had told him that he was in the process of writing his will. He deposes that the deceased discussed the contents of the will with him, and proceeded to read the will to him (which Mr Preketes says was written in the Greek language - as it is indeed). Mr Preketes says that he also read the will himself, and that he was born in Greece and reads and writes Greek fluently.
Mr Preketes deposes that after the deceased and he had read the will, the deceased proceeded to sign the will in his presence, and Mr Preketes then signed next to the deceased's signature and printed his name and address. He deposes that the deceased then wrote a further sentence in Greek about Areti's children, read that to Mr Preketes, and that Mr Preketes read it himself as well. Mr Preketes said the deceased then initialled beneath that sentence in his presence.
Mr Preketes remembers the day clearly because he was honoured that the deceased had confided the details of his will to him. Mr Preketes deposes that the deceased was, to his observation, mentally able and understood what he was doing, and he told him that he had written the will himself, and Mr Preketes said he was able to read it to him clearly. Mr Preketes says that after signing the will, the deceased and he spent another one to two hours speaking about different things.
Section 8 of the Succession Act provides:
8 When may the Court dispense with the requirements for execution, alteration or revocation of wills?
(1) This section applies to a document, or part of a document, that:
(a) purports to state the testamentary intentions of a deceased person, and
(b) has not been executed in accordance with this Part.
(2) The document, or part of the document, forms:
(a) the deceased person's will--if the Court is satisfied that the person intended it to form his or her will, or
(b) an alteration to the deceased person's will--if the Court is satisfied that the person intended it to form an alteration to his or her will, or
(c) a full or partial revocation of the deceased person's will--if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will.
(3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to:
(a) any evidence relating to the manner in which the document or part was executed, and
(b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.
(4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2).
(5) This section applies to a document whether it came into existence within or outside the State.
The circumstances in which an informal will may be admitted to probate were considered in some detail by Hallen J in Angius v Angius [2013] NSWSC 1895, see from [241] ff. I had cause to consider and apply those principles recently in Borthwick v Mitchell [2017] NSWSC 1145.
I note that what must be established, for the purposes of s 8(1) is that there is a document that has not been executed in accordance with Pt 2.1 of the Succession Act of the will. That is clearly the case here.
What is also required to be established for the purposes of s 8(1) is that the document purports to state the testamentary intentions of a deceased person. What must then be established pursuant to s 8(2) is that the document was intended by the deceased to constitute his or her will.
In relation to the enquiry to be made under s 8(2), s 8(3) permits evidence as to the manner in which the document was executed, and the actual testamentary intentions of the deceased person, including the deceased person's statements if any. Section 8(4) permits the Court to consider any other factor on the question whether the deceased intended the document in question to form his or her will.
The evidence before me clearly establishes in my opinion that the document signed by the deceased in the presence of, and witnessed by, Mr Preketes is a document that clearly on its face purports to state the testamentary intentions of the deceased for the purposes of subs (1)(a) of s 8 of the Act.
The document is described as "May [sic; scil "my"] last will". It refers to this being the deceased's last will "[for] after [my] death". It lists the property of the deceased, including identified real property, which is to go to various members of the deceased's family. It refers to the payment of all funeral expenses and for a memorial stone that will be built. In my opinion s 8(1)(a) is clearly satisfied, in that a sensible reading of the document is that it purports to state the testamentary intentions of the deceased.
As to the requirement under s 8(2) that the Court be satisfied that the deceased intended the relevant document to be his or her will (which has been recognised as being usually the most difficult question in cases of this kind), the evidence of Mr Preketes makes very clear in my opinion, and there is no reason not to accept it, that the deceased intended the document to be his will and to take effect on his death as his testamentary intentions.
I note that, of the requirements to be established in relation to the propounding of a will in solemn form, the propounder must establish that the deceased had capacity at the relevant time, had intention by instrument to make a will, and knew and approved of the instrument, and must call at least one of the existing witnesses to approve the due execution of the document (see Romascu v Manolache [2011] NSWSC 1362, Hallen AsJ as his Honour then was, at [180] to [181]. Although the only evidence as to the capacity of the deceased is that which is given by Mr Preketes, Mr Preketes has set out the circumstances in which he formed the view that the deceased was mentally able, and that the deceased understood what he was doing in signing, and I accept that evidence (see H v H [2015] NSWSC 837 at [37] where Lindsay J implicitly acknowledged the usefulness of "a direct, personal engagement with the person whose capacity for self-management is under consideration, and those closely associated with him or her in daily living" if there was any doubt as to capacity - albeit there not in the context of assessing testamentary capacity).
In the circumstances, I consider that this is a straightforward case within s 8 of the Succession Act. I am satisfied on the balance of probabilities that the document was intended by the deceased to form his will within the principles that were described in Angius, and that I have considered above.
The next issue is as to the construction of the will and, in particular, as to whether or not the statement "Trustee will be Stiv Ballas" was intended to be an appointment of Mr Ballas (the plaintiff) as both trustee and executor of the will.
The explanation given by the translator when pressed on his use of the word "trustee", was that the word appearing in the will was the English word "trustee" spelt phonetically using Greek lettering email dated 2 May 2017, a copy of which is annexed to the affidavit of Elias Khouzame sworn 22 September 2017. The translator has indicated that the combination of Greek and English, as used in this word, is very common among older Greek migrants and is readily understood by the translator (most of the time).
The word "executor" is not necessary to be used in order for a person to be effectively appointed in that role. What is required is that the person be an executor according to the tenor of the will (see Handler LG and Neal R, Mason & Handler Succession Law and Practice New South Wales (Looseleaf Service, LexisNexis Butterworths, Sydney, 2017), at [10.3.2], and the cases cited therein, namely in the Will of Hollings (1878) 4 VLR (IP&M) 46; In the Will of Gillott (1892) 9 WN (NSW) 84; In the Will of Burns (1903) 4 SR (NSW) 257; In the Will of Hooper (1908) 25 WN (NSW) 147; In the Estate of Williams (1984) 36 SASR 423 at 435-6).
I also refer to what was said by Gray J in Tsagouris v Bellairs [2010] SASC 147 at [31]. There his Honour said,
The following principles relevant to the present case can be drawn from Estate of Williams: the appointment of an executor may be express or implied; whether it is implied will depend on a construction of the whole will and whether a conclusion is reached that the named persons will carry out the functions normally associated with the office of executor; upon reaching such a conclusion, the persons named are said to be called the executor according to tenor; a mere direction to persons to pay debts, funeral and other testamentary expenses can appoint such persons as executors according to tenor; and, in order for named persons to constitute executors according to tenor, a reasonable construction of the will should disclose an intention on the part of the testator that the named persons should collect the assets of the testator, pay the debts and funeral expense and discharge the legacies contained in the will.
Reliance is placed by the plaintiff on two particular cases in relation to this issue. The first is In Re Thompson (1943) 44 WALR 74. There, the testatrix had left all her estate to her brother and sister and concluded the will by saying "and I make them sole trustees of my will." There was no mention of any executor. Wolff J considered that the testatrix had intended to use the expression "trustees" to mean "executors" and concluded that a grant to them as executors according to the tenor of the will would be justified, saying that "Otherwise no meaning can be attached to the words 'make them sole trustees', because there is no trusteeship to be carried out." In the present case, similarly, there are no testamentary trusts established under the will.
The other case on which reliance was placed by the plaintiff is the Estate of Williams (1984) 36 SASR 423 at 435 to 436. There, the document (a home-made handwritten document) did not name any persons as executors to the will but, rather, named the two sons to be "sole trustees of this my will" but went on, immediately after that appointment, to make a bequest of "certain property after payment of my debts, funeral and testamentary expenses." Legoe J was of the opinion that the appointment in the will of the trustee, followed immediately by the statement as to payment of debts, funeral and testamentary expenses, were duties of an executorial nature and not trustee duties and so the applicants were constituted executors according to the tenor of the will. In that case Cox J, agreeing with the conclusion reached by Legoe J, noted that it was not uncommon for lay people to confuse the distinction between an executor and a trustee.
In the present case, it is noted that in the previous will of the deceased (which was prepared by a solicitor) there was reference to the appointment of both Mr Ballas and Mr Aloupis as executors and trustees. No assistance can be gleaned from the identification of the persons required or nominated in the will as responsible for the payment of funeral and testamentary expenses, those being, it would appear (although there may be some uncertainty as to this) to have been intended to be Anna Balis and Angela Ballas. However, given that the funeral and testamentary expenses were to be attended to by other persons, there is then no role for Mr Steve Ballas to play in respect of the administration and implementation of the will, unless it be intended that the reference to him as trustee operate also to appoint him as executor under the will. For that reason, I am of the view that, properly construed, Steve Ballas is appointed under the will as the executor of the estate of the deceased.
Therefore, for the above reasons I make orders in accordance with the short minutes of order handed up by the plaintiff which I have initialled and dated.
I note that the original will, together with the translation and certificate of the translator, are on the court file. The original will will be forwarded to the Registrar in Probate for the completion of probate in relation to the will.
[2]
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Decision last updated: 20 October 2017