//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2009] QSC 437
plaintiff. Order setting aside the caveat filed 21 August 2009; order that the respondent pay the applicant's costs, to be assessed.
The Supreme Court set aside a caveat against probate. The respondent argued identity doubts because the executor's Cyrillic name was transliterated differently and that the will resulted from a mistaken belief by the deceased. The court accepted the solicitor's unchallenged evidence that the deceased had capacity, understood and approved the will, and found no evidence of any other similarly named person. Transliteration differences, the testatrix's misapprehension about family gifts, a missing witness and a renounced co-executor did not raise sufficient doubt to sustain the caveat. The caveat was removed and costs were ordered against the respondent.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1,740 words · generated 11/07/2026
The court considered a contested probate application. The deceased, Iraide Faivis, had died and a will dated in 1992 left her entire estate to her niece. The applicant, Galina Golybovitch, was the named executor and sought a grant of probate. The respondent, Alla Soshnina (the beneficiary's sister), lodged a caveat against the grant. On 1 December 2009 before Fryberg J the applicant applied to set aside the caveat under the court's power (the case cites UCPR r 626(2)).
No linked legislation citations have been extracted yet.
The respondent's challenge advanced several points to raise doubt that the grant should be made. Key contentions were:
The applicant's name, rendered from Cyrillic into English, appeared in inconsistent spellings across documents. The respondent argued this cast doubt on whether the person claiming to be the named executor was in fact the person named in the will.
The will's distribution left the caveator out. The caveator said the testatrix had been mistaken about family circumstances when making those dispositions. Specifically the testatrix believed the caveator had previously received everything from their father and therefore deserved no bequest; however it later emerged the caveator had gifted part of her inheritance to the testatrix's niece.
Other points included the solicitor's departure from every step described in Banks v Goodfellow, a missing attesting witness after many years and the nominated co-executor renouncing her role.
Fryberg J heard the evidence, including the solicitor's affidavit that he took instructions, found the testatrix to be "a very astute and active woman" who gave "clear and unequivocal" instructions, and that the will was read over to and understood by the testatrix. The judge found no evidence of any other person known to the testatrix with a name similar to the applicant's, and considered the transliteration differences immaterial. The court held that the alleged misapprehension about family gifts did not invalidate the will, and that the circumstantial points did not raise sufficient doubt. The caveat was set aside and the respondent ordered to pay the applicant's costs to be assessed.
At base, Fryberg J applied a pragmatic evidential approach. The governing procedural rule permits the court to set aside a caveat unless the evidence raises doubt as to whether the grant should be made. The court's task was not to decide contested issues finally, but to determine whether there was a real question or reasonable doubt sufficient to prevent the grant without further proof.
Three core strands of reasoning appear in the judgment.
Identity by transliteration: The court recognised the linguistic reality that members of Russian background often have Cyrillic names transliterated into English in variable ways. Absent evidence of any other person known to the deceased with a similar name, different English spellings of the same underlying Cyrillic name did not produce a reasonable doubt about identity. This reasoning focuses on whether the transliteration variance creates ambiguity about who the testatrix intended.
Testamentary capacity and knowledge: The solicitor who took instructions provided an unchallenged affidavit describing the testatrix as mentally capable and as having understood the will because it was read to her. Fryberg J treated that evidence as compelling. The judge accepted that although the solicitor did not follow every ritualistic step sometimes associated with demonstrating capacity (a point referencing Banks v Goodfellow), that omission did not, in itself, make the will suspect.
Misapprehension of facts and invalidity: The court treated the testatrix's possible mistaken belief about the caveator's prior inheritance as an error of motive rather than a ground for setting aside the will. The judge emphasised that a testator's misconception about family circumstances does not, without more, invalidate a testamentary document where capacity and knowledge/approval are demonstrated.
Finally, peripheral factual features (missing witness, renounced co-executor, possible lost later will) were examined and dismissed as not creating suspicious circumstance on the evidence. The judge observed proportionality (size of estate) and the sufficiency of the existing evidence to decline requiring proof in solemn form.
Before this decision, the longstanding principles in the law of wills and probate were:
Testamentary capacity and the testator's knowledge and approval are prerequisites for a valid will. The classic formulation is found in Banks v Goodfellow as an articulation of capacity issues.
A caveat prevents the court from making a grant unless the caveator can show cause (or the court is satisfied there is no reasonable doubt).
This judgment applies those principles to a specific factual matrix: transliteration inconsistencies and a testatrix's factual misapprehension. The decision confirms that:
Transliteration differences alone will not be enough to defeat identity in a will where there is no evidence of another similar-named person.
A testator's mistaken belief about non-material facts that relate to motive does not automatically vitiate a testamentary instrument where evidence of capacity and understanding exists.
The decision sits comfortably with the established law: it does not modify legal doctrine but illustrates how those doctrines apply in multicultural contexts and evidentiary assessments at the caveat stage.
Plain-English: Simply spelling a Russian name differently in English documents is not suspicious if there is no sign the testatrix could have been naming someone else.
Plain-English: The lawyer who prepared the will said the deceased understood what she was doing and was mentally capable; the court treated that evidence as persuasive.
Plain-English: Even if the deceased misunderstood some family facts that influenced her decisions, that misunderstanding alone does not make the will invalid.
Plain-English: The court will not force the executor to bring a full, expensive trial to prove the will is valid because the available evidence is adequate and the estate's size makes heavy procedures disproportionate.
This judgment is instructive for situations where:
Names are transliterated from non-Latin scripts and appear with variant spellings across documents; the court will not treat that variance as fatal to identity absent evidence of a distinct person who might be intended.
A beneficiary or excluded person alleges the will resulted from the testator's mistaken belief about family transfers or comparable motives; if the solicitor or other witnesses can attest to the testator's capacity and comprehension, this alone will not likely overthrow the will at the caveat stage.
Attesting witnesses cannot be located after many years or a nominated co-executor renounces; unless there is evidence of forgery, fraud or other suspicious circumstance, those facts alone will not suffice to maintain a caveat.
The estate is modest and the evidentiary record shows a straightforward will-taking process; proportionality considerations may be applied in refusing to require formal proof in solemn form.
Practitioners faced with similar challenges should therefore assess whether they possess independent evidence of identity, capacity and the circumstances of execution. Absent suspicious indicia, courts may set aside caveats and allow probate to proceed.
This judgment itself contains no discussion of subsequent judicial treatment. It applies established principles and cites Banks v Goodfellow and the UCPR provision governing caveats. To determine how later courts have treated the specific points addressed (notably the treatment of transliteration variants or the effect of a testator's factual misapprehension), a practitioner should search reported decisions citing Golybovitch v Soshnina and related probate authorities. The present decision provides useful, fact-bound guidance rather than a novel legal principle likely to be the subject of extensive appellate elaboration.
Several issues reserved practical or doctrinal questions for future cases:
Degree of evidence required to prove identity where transliteration variants exist: Fryberg J required an absence of evidence of another person with a similar name. What if such evidence is ambiguous or contested? Future cases will clarify the threshold of proof at the caveat stage when competing attestations about identity exist.
Scope of 'misapprehension' as vitiating factor: The judgment treats a motivational misunderstanding as insufficient to invalidate a will. But the boundary between a mere mistake of motive and a mistake so profound as to indicate lack of testamentary intention or to amount to undue influence remains to be delineated in contested fact situations.
The evidential weight to be given unchallenged solicitor affidavits: The solicitor's affidavit was decisive because it was unchallenged. There may be contexts where such affidavit evidence is equivocal, or where cross-examination undermines it. How courts will handle cases where counsel disputes the solicitor's account is a live question.
Interaction with cultural and linguistic evidence: The judgment recognises practical transliteration variance without engaging expert linguistic evidence. Future disputes might raise more complex questions about identity where cultural naming conventions, patronymics, or multiple persons share similar Cyrillic names; the level and type of extrinsic evidence appropriate will be developed incrementally.
Proportionality and procedure: The court noted the size of the estate when refusing to order proof in solemn form. There remains scope for debate about how proportionality should shape the court's direction on further proof or interlocutory processes in more substantial estates.
Conclusion
Golybovitch v Soshnina provides a pragmatic, evidence-focused application of established probate principles. At the caveat stage, courts will look at the totality of evidence, give due weight to unchallenged solicitor testimony about capacity and understanding, and avoid allowing linguistic transliteration quirks or isolated factual misunderstandings to derail a legitimate will without stronger suspicious circumstances. Practitioners should assemble clear identity evidence, contemporaneous execution records and witness material when advising clients in multicultural contexts where transliteration and family histories can complicate probate disputes.
HIS HONOUR: The applicant has sought probate of the will of Iraide Faivis who died on 11th of January this year. The respondent has a caveat against the grant of probate to the applicant for that will. The applicant now seeks to have the caveat removed and to have a grant of probate.
Rule 626(2) provides that the court may set aside a caveat if it considers that the evidence does not show two things. It is conceded that the evidence does show the first of those two things, that is that the caveator has an interest. The issue is whether or not the court considers that the evidence does not raise doubt as to whether the grant ought to be made.
To raise the doubt the caveator has referred to several things. The first is a variety in the spelling in English of the applicant executor's name. By way of background I should say that the testator, the beneficiary, the applicant and the caveator, that is the applicant executor and the caveator, are all of Russian descent.
The executor's name has been rendered into English in one form of spelling in the will and in the affidavits in support but with a different English spelling in another affidavit filed by her. On behalf of the respondent caveator, Mr Abaza, submits that this raises the doubt about whether the applicant is the person named in the will. I do not accept that argument.
The fact that there are different renditions in English of the spelling of a Cyrillic name does not cause me to have any doubt, particularly when there is no evidence of any other person known to the testatrix with a name of any similarity to that of the applicant.
The second major point arises from the content of the will. The testatrix was the beneficiary's aunt and left her entire estate to her niece. The respondent caveator is the beneficiary's sister. She was left nothing. The reason given by the testatrix in conversations with a number of people at about the time of the will in 1992 and since for the exclusion of the caveator from her will was that the caveator had been left everything by her father and her sister had been excluded from her father's will.
It is common ground that that was true. What appears to not have been known by the testatrix was that after the father's death in 1989 or so the caveator respondent gifted about one-third of the estate which she received from her father to the beneficiary, her sister.
The evidence discloses that the solicitor who took instructions for the will was satisfied that the testatrix was of sound mind. He described her as "a very astute and active woman who was well aware of her circumstances and her directions and her instructions to me were clear an unequivocal." He was not cross-examined on that deposition.
It is conceded that he did not, when preparing the will, follow every step described in Banks v. Goodfellow (1870) LR 5 QB 549 but that does not, it seems to me, lead to an inference that the will is in some way suspect.
The testatrix may have been under a misapprehension. It is surprising that the caveator did not tell her either at the time of the gift to her sister or subsequently of the fact of the gift but that appears to be the position since several deponents have spoken of the testatrix revealing the reason for her dispositions to them. That does not, to my mind, result in invalidity of the will. It could not do so.
The solicitor has deposed to reading the will over to the testatrix and to her apparent understanding of it. I do not think there is any basis for forcing the applicant to proceed by way of proof in solemn form, particularly when one has regard to the size of the estate.
There was reference in Mr Abaza's outline to a will dated 12 February 1992 and subsequently lost but it appears that nothing hangs on that as no further reference was made to it. If there were such a will, of course, it would post-date the will that is the subject of the probate application, but there is no evidence of what was in it and the fact that the testatrix did nothing about its theft would suggest that she was content to work on the basis that it was destroyed.
I see no suspicious circumstance in the fact that the witness to the will cannot be found after all these years nor do I see anything suspicious in the fact that the nominated co-executor has renounced her position.
In all the circumstances, I am satisfied that the application should be granted and that the caveat should be set aside. I am not, at the moment, persuaded that I should do more than that and would prefer to leave other matters to the Registrar in view of the suggestion that there may be formalities to be complied with but I will hear counsel on that question.
HIS HONOUR: I set aside the caveat filed on the 21st August 2009. I order that the respondent pay the applicant's costs to be assessed.
Golybovitch
Soshnina
Order setting aside the caveat filed 21 August 2009; order that the respondent pay the applicant's costs, to be assessed.