Lana Clarice Photios as Executor of the Estate of Henry Basil Photios & Anor v David Peter Photios [2018] NSWSC 1414

Lana Clarice Photios as Executor of the Estate of Henry Basil Photios & Anor v David Peter Photios [2018] NSWSC 1414

Leave to further amend the Amended Cross Claim was refused because, although David had a prima facie and reasonably arguable case that Henry lacked testamentary capacity when executing the 2012 Will, the proposed revocation claim was bound to fail in the Court's discretion. David had known of the facts and matters on which he relied for more than five years, had voiced and investigated concerns about Henry's capacity before and after the 2012 Will, gave no acceptable explanation for delay, stood by while probate in common form was granted, acquiesced in the grant and conducted the proceedings on the premise that the 2012 Will was valid. The proposed amendment, raised late and for tactical...

Jurisdiction
Australia
Judgment Date
20 September 2018
Procedural Posture
Equity Applications List; Interlocutory Application to Further Amend an Amended Cross Claim Seeking Revocation of a Grant of Probate in Common Form and Probate of an Earlier Will in Solemn Form / Motion of 18 April 2018 for Leave to Further Amend Amended Cross Claim
Outcome
Application to further amend the Amended Cross Claim refused; motion dismissed.
Legal Topics
['cross Claims' 'leave to Amend' 'revocation of Grant of Probate in Common Form' 'proof of Will in Solemn Form' 'testamentary Capacity' 'delay' 'acquiescence' 'prejudice' 'case Management']
['civil Procedure' 'succession'] ['cross Claims' 'leave to Amend' 'revocation of Grant of Probate in Common Form' 'proof of Will in Solemn Form' 'testamentary Capacity' 'delay' 'acquiescence' 'prejudice' 'case Management']

Case Brief

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Procedural Posture

Equity Applications List; Interlocutory Application to Further Amend an Amended Cross Claim Seeking Revocation of a Grant of Probate in Common Form and Probate of an Earlier Will in Solemn Form / Motion of 18 April 2018 for Leave to Further Amend Amended Cross Claim

Legal Issues

  1. 1 ["Whether David Peter Photios should be granted leave to further amend the Amended Cross Claim to seek revocation of the grant of probate of Henry Basil Photios' Will dated 11 December 2012 and a grant of probate in solemn form of the Will dated 12 August 2010." 'Whether David had a reasonably arguable or prima facie case that Henry lacked testamentary capacity when he executed the 11 December 2012 Will but retained testamentary capacity when he executed the 12 August 2010 Will.' "Whether David's delay, lack of explanation, and conduct amounted to acquiescence in the common form grant of probate and the validity of the 2012 Will." 'Whether permitting the amendment would cause prejudice to Lana Photios, the estate, beneficiaries, and the conduct of the proceedings.' 'Whether, having regard to probate discretion and case management considerations, the proposed revocation claim was bound to fail.']

Ratio Decidendi

Leave to further amend the Amended Cross Claim was refused because, although David had a prima facie and reasonably arguable case that Henry lacked testamentary capacity when executing the 2012 Will, the proposed revocation claim was bound to fail in the Court's discretion. David had known of the facts and matters on which he relied for more than five years, had voiced and investigated concerns about Henry's capacity before and after the 2012 Will, gave no acceptable explanation for delay, stood by while probate in common form was granted, acquiesced in the grant and conducted the proceedings on the premise that the 2012 Will was valid. The proposed amendment, raised late and for tactical...

Court Disposition

Application to further amend the Amended Cross Claim refused; motion dismissed.

Orders

  • ['Motion of 18 April 2018 is dismissed.' "Defendant to pay the plaintiff's costs of the Motion." "These proceedings are stood over to the Registrar in Equity's list for the allocation of a hearing date."]