Plaintiff v Caveator

(a) submissions filed on 29 January 2026;

(b) affidavits sworn by him on 13 May 2025 and 1 September 2025;

(c) VCAT transcripts from 28 September 2022 which was handed up at the hearing; and

(d) an enduring power of attorney dated 6 August 2014.

1. The caveator relies on the grounds of objection filed on 4 June 2025 and submissions filed on 18 February 2026.

1. The plaintiff submitted that the caveator arguably lacks standing because his share of the estate under the 2019 Will is worth $9,843.75 and therefore is no more than a '"toe-hold" with which to conduct a mean-spirited attack on the other beneficiaries.'
2. I do not agree. That submission is predicated on the validity of the 2019 Will which is in question in this proceeding. The parties all agreed that under all previous wills, the brothers were each to receive one-third of the estate.

1. The question for determination is whether the grounds establish a prima facie case.[1] The relevant principles are well-established as expressed in the case Gardiner v Hughes (No 2) ('Gardiner v Hughes').[2] A caveator will have a prima facie case, and so their caveat will not be subject to strike out, if there is a 'case for investigation' or 'something to go on'.[3] The question is whether the allegations in the grounds of objection, assuming them to be true, call for further investigation.[4] Speculation will not suffice, but the caveator does not need to prove the facts upon which they rely as a basis for their objection, nor do they need to satisfy the Court of the preferred inference to be drawn from competing facts. That is the task for trial. The Court is only required to determine whether the particulars, as a whole, constitute a narrative warranting further investigation.[5]

1. The grounds of objection in this case relate to lack of testamentary capacity; lack of knowledge and approval; suspicious circumstances; and undue influence. I will deal with each in turn.

1. To be valid, the testatrix, at the time of making the 2019 Will must have:

(a) understood the nature and effect of making a will;

(b) understood the extent of the property she was disposing of;

(c) comprehended and appreciated the claims of those who might reasonably expect to benefit from her estate; and

(d) been free from any disorder of the mind or delusion that influences or distorts the disposition of their property.[6]

1. There is a presumption of capacity when a will is rational on its face and duly executed, which can be rebutted by 'evidence supporting a doubt about capacity at the time of execution'.
2. A testator who suffers from a 'disorder of the mind' will lack the requisite capacity if the disorder affects their mental faculties to a degree that renders them incapable of exercising their testamentary powers.[7] A diagnosis of dementia prior to execution of a will does not necessarily preclude testamentary capacity.[8]
3. The grounds are as follows:
   1. The Deceased suffered from Alzheimer's Dementia which was first diagnosed in or around 2012 and deteriorated over time. [I note this is 7 years before the will was executed].
   2. On 10 October 2016, the Deceased was certified by her regular General Practitioner as having 'moderate dementia (Al[z]heimer's type) and had seen geriatritian [sic], Dr Ganage [sic] Ganesvaran in the past for assessment and advice. She has mental impairment to make any valid judgement' [sic].
   3. On 30 November 2017, the Plaintiff made an Application to the Victorian Civil and Administrative Tribunal ("VCAT") seeking to set aside an Enduring Power of Attorney appointing the Deceased's Spouse as Attorney, and appoint himself Administrator for the Deceased. The Plaintiff's Application listed the Deceased's disability as 'Dementia'. The Plaintiff further relied upon a report by Dr. Ganesvaran to the effect that the Deceased lacked capacity to enter into the Enduring Power of Attorney and lacked decision-making capacity to manage her own legal and financial affairs and required an administrator.
   4. On 15 January 2018, VCAT appointed State Trustees as Administrator for the Deceased based on findings that the Deceased suffered from a disability (Alzheimer's disease and dementia) and she was unable to make reasonable judgments about her estate. The Plaintiff was not found to be suitable to administer the Deceased's personal estate.
   5. Further particulars will be available following release of the VCAT file.
   6. A follow up medical certificate was provided by Dr. Ganesvaran, dated 14 February 2020, shortly after the 2019 Will was apparently executed, which noted that the Deceased had deteriorated since last review and "was disorientated to place, year and could not tell me her date of birth or age".
   7. The 2019 Will was drafted in whole or part by the Plaintiff. The 2019 Will was not drafted by a lawyer.
   8. The Deceased did not receive any legal advice regarding the 2019 Will.
   9. Despite the diagnosis of dementia and findings of the VCAT that the dementia constituted a disability and by reason of that the Deceased lacked decision-making capacity, no contemporaneous and competent assessment as to testamentary capacity of the Deceased was performed. Alternatively, if such an assessment was performed its existence has not been disclosed by the Plaintiff.
   10. The VCAT administration order was re-affirmed in May 2020 and again in May 2021 and remained on foot at the time of the Deceased's death.
4. The caveator submits that having regard to this narrative, there is a strong prima facie case that the deceased lacked testamentary capacity.
5. The plaintiff acknowledges the deceased's Alzheimer's diagnosis in 2013. The plaintiff nevertheless submits that a report by a geriatrician, Dr Ganga Ganesvaran, dated 14 February 2020 demonstrates that even though the deceased exhibited cognitive deterioration since her previous examination 'she was able to clearly communicate to him that she owned 75% of her house and that she was most distressed that she was being pressured to vacate her house and be placed in a nursing home by her two youngest sons and State Trustees.' The plaintiff submits that this is proof that the deceased comprehended and appreciated the claims of those who might reasonably be expected to benefit from her estate. The plaintiff relies on s 5 of the Guardian and Administration Act 2019 (Vic), which deals with questions of capacity_._ He also refers to a report from Dr Albert Tan from Perth dated 14 October 2019. That report is of limited weight given that it concludes with the words '[s]he has yet to be properly assessed by a psychiatrist for capacity assessment for legal purposes.'
6. The plaintiff also says there are other witnesses for capacity, one is Mary Tabaki who swore an affidavit on 25 August 2025 stating that she acted in the role of the deceased's carer from early 2020 to the deceased's death in February 2025. That affidavit is exhibited to the plaintiff's affidavit sworn on 1 September 2025. I refused to permit the plaintiff to call Ms Tabaki to give oral evidence having regard to the fact that orders were made for the adducing of evidence by affidavit, there had been no notice, and in any case, the evidence sought to be adduced would be of minimal weight in the context of the question before the Court.
7. I am satisfied that the caveator has established a prima facie case as to capacity. The fact that a person suffers from Alzheimer's disease and dementia does not in every case mean that the sufferer has no capacity at a particular time for a particular purpose, but the narrative in this case does call for further investigation. That is particularly so having regard to the fact that prior to the date of the 2019 Will, State Trustees was appointed administrator on the basis that the deceased suffered from a disability (Alzheimer's disease and dementia) and on the basis that she was unable to make reasonable judgments about her estate.

1. To be valid, the testatrix must have known and approved the contents of the 2019 Will. There is a presumption of knowledge and approval in the plaintiff's favour, but only if the will has been duly executed. A caveator must raise 'circumstances supporting a well-grounded suspicion that the instrument might not express the will of the [testatrix].'[9]
2. The grounds describe the circumstances in which the deceased was vulnerable to, and dependent upon, the plaintiff. Those circumstances include her limited ability to read and understand written English. The caveator relies on the grounds in relation to capacity and further says:
   1. The Deceased was in the sole care and custody of the Plaintiff from 15 November 2017, when the Deceased's Spouse was removed from their Matrimonial Property, until her death.
   2. In February 2018, the Plaintiff moved to Perth, taking the Deceased with him. The Plaintiff and the Deceased occupied a residence together in Perth from about this time until sometime after the 2019 Will was executed.
   3. The Deceased was highly reliant upon the Plaintiff physically and emotionally:
      1. The Plaintiff assisted the Deceased with the activities of daily living.
      2. The Deceased was incapable of independent transport, and was dependant on the Plaintiff for any transport.
      3. The Deceased was incapable of managing her own financial affairs, and was dependent on the Plaintiff to do so, other than the financial administration provided by State Trustees Limited.
      4. The Deceased was incapable of organising and attending medical appointments herself and was wholly dependent upon the Plaintiff to do so.
      5. The Deceased was isolated by the Plaintiff from her other family members and the surrounds and comfort of her home located in Greensborough, Victoria. At a later time, the Plaintiff decided to move the Deceased back to Victoria. The Deceased remained isolated. The Deceased had no option but to be relocated as the Plaintiff chose.
   4. The Deceased was of Greek Macedonian heritage, culture and language. Even if she had had testamentary capacity at the time of execution (which is denied), the Deceased was incapable of reading and understanding the 2019 Will without translation and assistance.
   5. The 2019 Will was not translated to the Deceased.
   6. In contrast, the 2015 Will, which had been prepared by lawyers, certified that at the time of execution in 2015 'not being able to read or to speak the English language the Will was read over to her translated into the Macedonian language...'
   7. In the circumstances, the Deceased did not (and could not) know and approve the contents of the 2019 Will.
3. The plaintiff did not submit that he did not play a significant and important role in the deceased's life in her final years. In fact, he emphasised the extent of the support he gave to her when others would not. That is consistent with much of the grounds.
4. In relation to the deceased's ability to understand English, the plaintiff submitted that the deceased could understand English perfectly well. A significant portion of his submissions were directed to rebutting the allegation that the deceased did not understand English. The plaintiff is adamant that the deceased understood English sufficiently well. In order to establish that capacity, the plaintiff relies on a number of matters. First, he relies on the affidavit of Ms Tabaki. I have addressed that issue above. The plaintiff also relies on the transcript of proceedings from VCAT on 28 September 2022. At that hearing, the deceased communicated directly with the Senior Member. The plaintiff relies on that transcript as evidence that the deceased understood and spoke English. It is apparent from the transcript that an interpreter, called Boris, had been engaged to assist the deceased. That transcript records that the first thing that occurred at the hearing was the introduction of an interpreter for the deceased. The plaintiff relies on pp 28 and 29 which read as follows:

MS GERMANTSIS: (Indistinct)

SENIOR MEMBER: I'm sorry, Mrs Germantsis. Did you wish to say something?

MR GERMAN: (Indistinct) wants you to speak to her - to him. Did you speak to the judge?

SENIOR MEMBER: Boris [the interpreter] can you ask Mrs Germantsis if she wishes to say anything? Can you make sure she understands.

MS GERMANTSIS: Yeah, the judge.

INTERPRETER: Elefteria. Elefteria.

MS GERMANTSIS: Yes.

INTERPRETER: (Foreign words spoken)

MR GERMAN: (Foreign words spoken)

MS GERMANTSIS: (Foreign words spoken)

MR GERMAN: In English. In English.

MS GERMANTSIS: What - what can I say?

MR GERMAN: Say to the judge what you want to say.

MS GERMANTSIS: What you want me to say?

SENIOR MEMBER: Nothing. I thought you were wanting to say something to me. It's ok, I'll see you next time, Mrs Germantsis.

MS GERMANTSIS: What - what he say?

INTERPRETER: (Foreign words spoken)

MS GERMANTSIS: (Foreign words spoken)

MR GERMAN: My mother is finding it a little difficult to understand the interpreter's dialect. I will explain in the dialect that I know my mother understands. Interpreter can tell you if I'm saying something different. (Foreign words spoken)

MS GERMANTSIS: (Foreign words spoken)

MR GERMAN: (Foreign words spoken)

MS GERMANTSIS: (Foreign words spoken)

MR GERMAN: In English.

MS GERMANTSIS: I can tell you, I wanted to live in this house. My husband and I, we build it together. Then my son, he's taking over. He's looking after me. He has got another two brothers - three - three boys I have. Another two brothers, there nothing wrong. He's taken all the care for me. He's doing everything I want and I need. My husband died so I'm alone with Kon, and I want him to be nice treated. To keep my house, to keep my money, what I have. I know I can leave, when I die, he's gonna take it.

SENIOR MEMBER: Thank you, Mrs Germantsis. I'll talk to you next time. Thank you.

MS GERMANTSIS: Yeah, you understand me?

MR GERMAN: Yes, thank you.

1. This transcript suggests that there may well be questions around the deceased's ability to understand English. In the first place, if the deceased was fluent in English, it is difficult to see why a translator would be necessary at all. The very fact of a translator being used suggests a lack of fluency. Second, the content of the interaction suggests the deceased did in fact depend on translation to some degree. That is not to say that the deceased did not know or approve of the contents of the will, only that on the material there is a prima facie case.
2. The caveator also submits in response that the question is not whether the deceased could speak English, but rather, whether she could read and understand the 2019 Will. A person's ability to speak a language may be different from their ability to read and understand it.
3. In response to the submission that the deceased may not have understood the terms of the 2019 Will, the plaintiff said (from the bar table) that the deceased did understand the 2019 Will because he translated it for her. Again, that raises the question as to why translation would be necessary if not to overcome some lack of fluency.
4. In the circumstances, I am satisfied that the caveator has established a prima facie case. That conclusion naturally follows from the conclusion as to capacity but is fortified by the allegations in the grounds that the deceased could not read English and by the VCAT transcript.

1. In grounds supporting the allegation of suspicious circumstances, the caveator relies on grounds 1 and 2 and further says:
   1. The 2019 Will is a radical departure from the 2015 Will. Of particular note:
      1. the Plaintiff is purportedly appointed as the Executor.
      2. the Plaintiff is the primary (90%) beneficiary, even over the Deceased's Spouse (5%).
      3. the other children of the Deceased receive 2.5% each with a clause that purports to provide them with nothing if they 'contest[s] in any court any of the provisions of this Will.'
      4. The 2019 Will was prepared without the assistance of a lawyer.
   2. The 2019 Will is on the apparent "instructions" of the Plaintiff, and not the Deceased. The family was aware that the Plaintiff wanted a larger share of his parents' estates from on or before September 2016. In an application by the Deceased's Spouse for an intervention order against the Plaintiff, dated 21 November 2017, the Deceased's Spouse declared: 'In Sept 2016, the [Plaintiff] overheard me discussing my will and disagreed with how I wanted to distribute my assets. He begin shouting at me and wanted me and my wife to change our wills so he would inherit a larger share. He said "I hope you have a heart attack and die" [sic]'.
   3. The purported witnesses were acquaintances of the Plaintiff and have purportedly declared the Deceased 'declared this instrument to be their last Will' and was 'mentally competent and under no constraint or undue influence' yet have not recorded that the Deceased could not read or understand English or recognised her cognitive impairment.
2. The caveator submits that it is clear many of the matters set out in the grounds raise significant suspicious circumstances.
3. The plaintiff does not directly address suspicious circumstances but his overall narrative reflects the position that he was the one who was looking after the deceased and she wanted to give him more in her will as a result. The plaintiff's position is also that his younger brothers were not supportive of the deceased. This application is not the place to draw any conclusions as to those matters.
4. I am satisfied that the matters relied on raise a prima facie case for suspicious circumstances. That conclusion is also supported by the comments of Meagher JA in Tobin v Ezekiel that:

Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction. That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator.[10]

1. In the circumstances, I am satisfied there is a case for investigation.

1. The question of undue influence is determined by having regard to the extent to which a will is the product of undue pressure. If the Court is satisfied on the balance of probabilities that the 2019 Will is the product of undue pressure, then it will be invalid.
2. The caveator relies on grounds 1, 2 and 3 and further says:

The Plaintiff has a history of purporting to represent and speak for the Deceased in matters affecting her legal rights, without the legal authority to do so and whilst the Deceased lacked legal capacity and could not communicate her wishes herself. The Plaintiff has also repeatedly sought to gain the legal authority to make decisions for the Deceased. The Plaintiff has initiated a range of proceedings, including proceedings in the VCAT (including the unsuccessful appeal in German v Germantsis [2023] VSC 7), Federal Circuit Court of Australia (Germantsis & Germantsis [2019] FCCA 3416), Supreme Court of Victoria (Unreported, S PRB 2021 25323, 7 December 2021 per Matthews AsJ; and the appeal [2022] VSCA 157). The Plaintiff was wholly unsuccessful in all of these matters and repeatedly claimed to be representing both the Deceased and himself.

...

In the circumstances, the Deceased, vulnerable to and dependent upon the Plaintiff could not have asserted her own will over the will of the assertive and outspoken Plaintiff who had from a few years earlier demanded more of her estate and habitually purported to speak for her.

1. The caveator relies on the grounds and submits that:

In circumstances where: the deceased was highly vulnerable and dependant on the plaintiff; the plaintiff repeatedly, without her having ability to speak for herself, purported to speak for her; and the plaintiff had forcefully expressed a desire to his parents to change their wills so he would take more than his brothers; and the 2019 Will appeared, typed in English and giving effect to the plaintiff's previously expressed desire for the bulk of his parents' estate, there is a prima facie case of undue influence that requires investigation.

1. As stated above, the plaintiff says that he played a significant and important role in the deceased's life in her final years. In fact, he emphasised the extent of the support he gave to her when others would not. In addition, there was no dispute that the 2019 Will represented a significant departure from earlier wills and provides for the majority of the estate to go to the plaintiff.
2. I am satisfied that the caveator has established a prima facie case. The circumstances described, assuming them to be true, raise a case for investigation as to whether the plaintiff exerted undue influence over the deceased.

1. The plaintiff also submits that the assertion that the deceased does not speak English is demonstrably false and therefore, the caveator comes to the Court with unclean hands and his case should be 'thrown out'.
2. The caveator submits that probate jurisdiction is not equitable jurisdiction so the question of unclean hands does not apply. He further submits that the matters relied on do not constitute unclean hands, or assist in resolution of the issues, in any case.
3. The parties did not refer to any authorities on unclean hands, but it is a well-known maxim of equity.[11]
4. I do not agree with the plaintiff's submission regarding unclean hands for the following reasons.
5. First, there are degrees of fluency. Broadly speaking, the grounds in this case are that the deceased could not read and understand the 2019 Will without translation, and as there was no translation, she did not know or approve of its contents. Even if it were established that the deceased could speak English, that does not make it false to say she could not read and understand the 2019 Will without translation. At this stage there is insufficient evidence to conclude that the deceased was able to read and understand the 2019 Will. The evidence adduced as to the deceased's proficiency with English clearly leaves open a prima facie case. That being the case, I am not satisfied on the evidence that there has been any relevant falsity that would constitute unclean hands, even if the maxim applied to probate proceedings.
6. Second, 'unclean hands' is an equitable maxim applying in relation to claims for equitable relief,[12] but the probate jurisdiction and the equity jurisdiction of the Court are not the same. In Boyce v Bunce, Lindsay J observed:

Historically, 'probate jurisdiction' is derived from the ecclesiastical jurisdiction exercised by church courts in England; 'equity jurisdiction', from the equitable jurisdiction exercised by the English Lord Chancellor. The historical origins of these two sources of the Court's jurisdiction inform systemic differences of ongoing, functional significance.[13]

1. Probate proceedings are not simple inter partes disputes. The Court has an inquisitorial role in which its main functions are to 'ascertain and determine what testamentary paper or papers are to be regarded as the deceased's last will, and who is entitled to be constituted as his or her representative.'[14] In Re Przychodski, McMillan J explained the role of a caveat in that context:

The Court in its probate jurisdiction has an inquisitorial role that requires a greater supervision and control of proceedings than adversarial common law proceedings. The primary function of the Court in exercising its probate jurisdiction is to make grants of representation. Caveats act as a mechanism for notice from the Court to a party interested in an estate that an application for a grant of representation has been made in respect of a deceased estate.

The caveat procedure exists to ensure that estates are administered in an orderly manner and that any issues arising before a grant of representation is made can be investigated and dealt with by the Court. This ensures that any grant gives effect to the final valid testamentary wishes of the deceased or the intestacy provisions and title to any real or personal property owned by the deceased at the date of their death passes in accordance with these wishes or provisions. All participants in a proceeding must be mindful that the purpose of the probate jurisdiction is ensuring that the testamentary intentions of a deceased person are carried out and the beneficiaries receive what is due to them.[15]

1. The misconduct of a party in that context (by way of unclean hands), if there were any, would not relieve the Court of that function.
2. I was not referred to any authorities in which the equitable maxim of unclean hands has applied in probate proceedings. The absence of any such authority fortifies my conclusion that it does not apply in the circumstances of this case.
3. Finally, even if unclean hands had been established in relation to the deceased's ability to speak English, the fact that one ground for challenging a will is based on a false premise would not mean that all of the other grounds should be disregarded. The 2019 Will may be invalid for other reasons not affected by the deceased's ability to speak English. Further, the question of the validity of the 2019 Will affects other beneficiaries of the estate, and not just the caveator. It would be contrary to principles of conscience upon which equitable jurisdiction is based to dismiss the caveat for misconduct of the caveator alone in relation to one particular ground.
4. The plaintiff's application is refused. I direct the parties to provide draft orders reflecting these reasons, including as to costs, if they can be agreed. Otherwise, I will hear the parties further.

[1] Gardiner v Hughes (No 2) [2019] VSCA 198 ('Gardiner v Hughes').

[6] Re Robustelle (No 2) [2023] VSC 72, [14] ('Re Robustelle').

[9] Veall v Veall [2015] VSCA 60, [171].

[10] Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757, [47] (citations omitted).

[11] Dering v Earl of Winchelsea [1787] EngR 40; (1787) 29 ER 1184, 1185; Meyers v Casey [1913] HCA 50; (1913) 17 CLR 90, 123_; Kelin v Mochkin_ (2024) 76 VR 1; Black Uhlans Inc v New South Wales Crime Commission (2002) 12 BPR 22, 421_._

[12] Dering v Earl of Winchelsea (n 11) 1185 (Eyre CB), quoted in Meyers v Casey (n 11) 123 (Isaacs J); Klein v Mochkin (n 11) [62]-[63].

[13] Boyce v Bunce [2015] NSWSC 1924, [48].

[14] Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (Sweet & Maxwell, 22nd ed, 2023) [2-17]; Brownell v Robinson [2017] TASFC 11, [28].

[15] Re Przychodski [2016] VSC 781, [14]-[15].