A likely story: probate, revocation and battles over narratives

Background and facts

Panagiota Tsialamandris (deceased) died on 25 September 2022, survived by her two children Vasiliki Filopoulos (Vicki) and Nicky Tsialamandris (Nicky).

The deceased made a Will in 1976 (1976 Will) that left the entirety of her estate to her husband, but if he were to predecease her, then the 1976 Will split the deceased’s estate equally between Vicki and Nicky.

The deceased also purportedly made a Will in 2012 (2012 Will) that roughly split her estate (by value) such that:

1. Vicki’s three children received approximately $1,266,666 each;
2. Nicky’s two children received approximately $550,000 each; and
3. the residue of approximately $948,120 was split evenly between Vicki and Nicky.

On 29 November 2012, the deceased signed:

1. the 2012 Will;
2. a death benefit agreement; and
3. an enduring power of attorney.

The 2012 Will attests that it was read to the deceased and signed by two attesting witnesses.

On 30 January 2023, the executors of the estate, Vicki and Arthur Athanasiou (a solicitor), received a grant of probate of the 2012 Will.

On 30 June 2023, Nicky brought an application to have the grant of probate revoked. The amended grounds for revocation (AGR) were that the:

1. deceased did not know of and approve the contents of the 2012 Will (Knowledge and Approval ground); and
2. 2012 Will was procured by the undue influence of Vicki (Undue Influence ground).

In summary, the particulars of the AGR established a narrative that the deceased:

1. was elderly, illiterate in English, had health issues, historically had no involvement or understanding of the administration of her property holdings and previously had signed documents without being aware of their nature or contents;
2. had progressively been isolated by Vicki and subject to pressure that amounted to elder abuse. Additionally, at the time of making the 2012 Will, the deceased was dealing with solicitors she did not know and about complex subject matter; and
3. had expressed intentions regarding the disposition of her estate shortly before and after the making of the 2012 Will that were inconsistent with it.

The application before the Court in this proceeding was a summary dismissal application to dismiss the revocation application on the basis that Nicky had not established a ‘prima facie case’.

Issues considered

The Court considered:

1. Gardiner v Hughes (No 2) [2019] VSCA 198 (Gardiner) and the appropriate legal principles regarding the establishment of a ‘prima facie case’;
2. whether the deceased knew and approved the contents of the 2012 Will. The focus of the analysis was whether the deceased knew the contents of the Will and appreciated the effect of what she was doing such that the Will contained and reflected the real intentions of the deceased; and
3. whether, in the circumstances, the independent mind of the deceased had been overborne by Vicki such that the deceased could not be considered a free agent nor the Will an expression of her true intentions.

Prima facie case

Legal Principles

Both parties relied on principles from Gardiner, that an applicant for revocation of probate must make out a prima facie case to show that there is a case for investigation and that the opposition is not merely frivolous or vexatious.

The Court outlined some general principles that are relevant to the establishment of a prima facie case, including that:

• mere speculation is insufficient, but a prima facie case may be established if the facts alleged, assuming them to be true, justify the conclusion that there should be a further investigation;
• the Court is not required to decide whether an inference justifying revocation should be drawn or which of two possible inferences is to be preferred (which are matters for trial);
• there may be a case for investigation even if all the necessary facts are not known or alleged;
• evaluation of a prima facie case is not an exercise of discretion but an application of a legal test to alleged facts. There either is a prima facie case or there is not; and
• whilst regard may be had to the weight attached to the alleged facts individually, it is appropriate to consider whether, as a whole they constitute a narrative warranting further investigation.

In this case, the summary dismissal application sought separate orders for summary dismissal of each of the two grounds relied upon for revocation. The Court held that whilst it was conceptually open to them to give summary dismissal in relation to one ground and not the other, given the significant factual overlap, they declined to do so.

Credibility consideration

Vicki’s legal team made submissions that the revocation application material must have some basic credibility to establish a prima facie case. They argued that the allegations particularised were not credible but generalised and vague.

The Court dismissed these arguments as in this context they should not be assessing the likelihood of a matter being probative, rather whether it is capable of suggesting a lack of testamentary capacity. Further, whilst individual particulars may appear to ‘lack credibility’, the Court should view the grounds of revocation as an overall narrative. So long as the particulars are not frivolous, vexatious, or mere speculation, but call for further investigation then that is sufficient and there is not a threshold of credibility to be met.

Knowledge and Approval ground

The Court considered whether the deceased knew of and approved the contents of her Will such that it contained her true intentions. The Court broke this ground into five main aspects, as follows:

• Mental aspect:
  • The deceased’s age, limited English and education, her mental health (extreme anxiety and depression) and early onset of cognitive decline were particulars that went towards the deceased’s mental acuity and sophistication.
  • The particulars provided some support for the factual scenario that the deceased did not have knowledge or approved of the Will in the sense that they are not frivolous but lay a platform for further probing and investigation.
• Radical departure aspect:
  • Nicky argued that there was a radical departure from the long-held testamentary dispositions in the 2012 Will by no longer splitting the estate equally amongst the deceased’s two children (and their respective families). However, the Court accepted that the 2012 Will still had a semblance of equality and there might be a plausible and rational explanation as to why the deceased changed a testamentary disposition 36 years after making her initial Will.
  • Nonetheless, the particulars stated that representations were made shortly before and after the purported execution of the 2012 Will that the deceased’s wealth would be divided equally between Nicky and Vicky. The Court held that these particulars were not speculative and claimed to be actual events that occurred. Accordingly, the strength of the suggestion that the 2012 Will is a radical departure from a settled intention did not rely alone on the substance of the 1976 Will, but also these equality representations made closely proximate to the making of the 2012 Will. These matters required deeper investigation.
• Complexity aspect:
  • Nicky submitted that the 2012 Will was much longer, and more complex than the 1976 Will, with references to a death-benefit agreement and property that would be beyond the financial literacy, comprehension and instructions of the deceased.
  • The Court stated that it is not self-evident that the documents would be beyond the comprehension and instructions of the deceased, but nonetheless the particulars were not frivolous or speculative in the context of a person of the deceased’s age, limited level of education and literacy. Accordingly, the detailed 2012 Will and death-benefit agreement may plausibly give reason to scrutinise whether the deceased understood the effect of the 2012 Will.
• Participation aspect:
  • At the hearing, it became evident that Vicki was present when the 2012 Will was executed (at [218]). Therefore, it cannot be said that her presence is irrelevant or speculative. The physical presence of a beneficiary or person who otherwise benefits from a Will is a matter which may rationally bear upon whether the deceased knows and approves of the terms of the Will, and which constitutes a cause to scrutinise the circumstances of making the 2012 Will.
• Execution aspect:
  • The particulars of this ground suggested that the 2012 Will was only read to the deceased in English (noting her English language skills were limited. Having regard to the issues below, the Court found that the particulars were not vexatious and warranted further investigation.
• The Court raised the following concerns with the execution and attestation of the 2012 Will:
  • The affidavit evidence that the attesting witness believed the deceased ‘knew and approved’ of the Will’s contents and ‘perfectly understood the Will’ serve a limited purpose as they do not expose any detail of what actually occurred in the discussion;
  • The attestation clause in the 2012 Will accords with the recommended form of attestation clause for reading the Will in English, as opposed to when the Will was translated into another language; and
  • The attestation clause does not suggest in its terms that there was an explanation of the Will to the deceased.

In light of the overall narrative outlined above, the Court considered that there was a sufficient basis for concluding that the matters called for further investigation as to whether the deceased knew and approved of the 2012 Will.

Undue Influence ground

In considering whether the deceased had been unduly influenced in the making of the 2012 Will, the Court broke this ground into two aspects, as follows:

• Vulnerability aspect:
  • The vulnerability particulars largely overlap with many of the ‘knowledge and approval’ particulars and on their own might be benign to a case of undue influence.
  • However, it is necessary to consider them in light of the Abuse aspect and the overall narrative; that from 2012, the deceased had been isolated by Vicki and that led to a deterioration of the deceased’s mental and physical health.
• Abuse aspect:
  • The deceased was allegedly subject to acts of aggression, controlling and manipulative behaviour and emotional abuse by Vicki proximate to the date of the 2012 Will so as to amount to coercion.
  • The Court acknowledged that there were allegations being presented as actual instances of abusive conduct, although the occasions were remote from the timing of the 2012 Will.
  • The substance of the overall narrative is that the deceased made the 2012 Will because of prolonged abusive control which impermissibly affected her will even if actual abuse was not present on the day the 2012 Will was executed.
  • The Court found that there was sufficient basis in the particulars although not all of them, to warrant further investigation.

Conclusion

In dismissing the plaintiff’s application for summary dismissal, the Court considered that the particulars of the AGR individually, and in light of the overall narrative, were plausible and not vexatious. Thus, there was some warrant for further investigation so as to establish a prima facie case. If the claims warrant further investigation, then that does not necessarily undermine a prima facie case, rather it suggests the necessity of a trial. Accordingly, the threshold for the grounds of an application for revocation of a grant of probate to establish a prima facie case in a summary dismissal proceeding is quite low.

The Court acknowledged that at the trial of the revocation application, it may be that the proper inference is that the grounds are not made out, but that is a matter for evidence at trial. Merely arguing that the particulars are not credible but generalised and vague is insufficient to meet the high threshold to summarily dismiss an application for revocation of a grant of probate.

This article was written by Simon Crawford, Partner, Jinny Guo, Solicitor and Declan Dempster, Law Graduate.