Calokerinos, Executor of the Estate of the late George Sclavos v Yesilhat; Yesilhat v Calokerinos, Executor of the Estate of the late George Sclavos [2017] NSWSC 666

Calokerinos, Executor of the Estate of the late George Sclavos v Yesilhat; Yesilhat v Calokerinos, Executor of the Estate of the late George Sclavos [2017] NSWSC 666

The Court found that the October 2012 informal will was signed and intended by the deceased, admitted to probate, and not fabricated; that Mr Yesilhat was not in a de facto or close personal relationship with the deceased and was not an eligible person under Succession Act s 57; that all advances prior to death were loans (not gifts) given in the context of business and personal friendship, the absence of loan documentation not altering this, and that regular repayments evidenced the character as loans; and that all monies transferred by Mr Yesilhat from the deceased’s estate after death were unauthorised and fraudulent, held on constructive trust for the estate, and must be repaid.

Parties
Plaintiff (2013/358168); Defendant (2014/212466): Cleopatra Sclavos Calokerinos, as executor of the estate of the late George Sclavos; First Defendant (2013/358168); Plaintiff (2014/212466): Okan Yesilhat; Second Defendant (2013/358168): Gokan Yesilhat; Third Defendant (2013/358168): Australia's Best Tyres & Auto Pty Ltd ACN 151 629 131
Jurisdiction
Australia
Judgment Date
09 June 2017
Procedural Posture
Principal Judgment of Consolidated Proceedings for Probate, Family Provision, and Debt Recovery / Final Judgment After Trial
Outcome
Plaintiff’s family provision and probate revocation claims dismissed. Estate’s debt/trust claims against plaintiff succeed.
Legal Topics
Informal Wills, Family Provision Claims, De Facto Relationships, Constructive Trusts, Fraudulent Transfers, Loan Vs Gift Characterisation
Equity Succession Debt Probate Informal Wills Family Provision Claims De Facto Relationships Constructive Trusts +2 more

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Parties

Cleopatra Sclavos Calokerinos, as executor of the estate of the late George Sclavos

Plaintiff (2013/358168); Defendant (2014/212466)

Okan Yesilhat

First Defendant (2013/358168); Plaintiff (2014/212466)

Gokan Yesilhat

Second Defendant (2013/358168)

Australia's Best Tyres & Auto Pty Ltd ACN 151 629 131

Third Defendant (2013/358168)

Procedural Posture

Principal Judgment of Consolidated Proceedings for Probate, Family Provision, and Debt Recovery / Final Judgment After Trial

Legal Issues

  1. 1 Whether the October 2012 informal will was valid and should remain admitted to probate
  2. 2 Whether the plaintiff was in a de facto, dependant or close personal relationship with the deceased and entitled to claim under Succession Act 2006 (NSW) s 57
  3. 3 Whether monies advanced by the deceased to the plaintiff were loans or gifts

Ratio Decidendi

The Court found that the October 2012 informal will was signed and intended by the deceased, admitted to probate, and not fabricated; that Mr Yesilhat was not in a de facto or close personal relationship with the deceased and was not an eligible person under Succession Act s 57; that all advances prior to death were loans (not gifts) given in the context of business and personal friendship, the absence of loan documentation not altering this, and that regular repayments evidenced the character as loans; and that all monies transferred by Mr Yesilhat from the deceased’s estate after death were unauthorised and fraudulent, held on constructive trust for the estate, and must be repaid.

Court Disposition

Plaintiff’s family provision and probate revocation claims dismissed. Estate’s debt/trust claims against plaintiff succeed.

Orders

  • Plaintiff’s claim for family provision out of the estate of the late George Sclavos is dismissed.
  • Plaintiff’s claim to revoke the grant of probate to the defendant of the will of the late George Sclavos dated 16 October 2012 is dismissed.