Wehbe v Giotopoulos [2023] NSWSC 827

Wehbe v Giotopoulos [2023] NSWSC 827

The plaintiffs failed to establish due execution of the will in accordance with s 6(1)(c) of the Succession Act 2006 (NSW), as there was no acceptable evidence that the attesting witnesses signed the will in the presence of the testator. Further, suspicious circumstances attended the preparation and execution of the will and the plaintiffs did not discharge the burden of proving the testator knew and approved the contents of the will. Therefore, the application for a grant of probate in solemn form fails.

Jurisdiction
Australia
Judgment Date
14 July 2023
Procedural Posture
Contested Probate / Final Judgment
Outcome
Application for grant of probate in solemn form dismissed. Declaration that the deceased died intestate. Grant of administration to be made to an independent administrator.
Legal Topics
['probate in Solemn Form' 'validity of Will' 'due Execution' 'knowledge and Approval' 'suspicious Circumstances' 'undue Influence' 'intestacy']
['succession' 'equity'] ['probate in Solemn Form' 'validity of Will' 'due Execution' 'knowledge and Approval' 'suspicious Circumstances' 'undue Influence' 'intestacy']

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Procedural Posture

Contested Probate / Final Judgment

Legal Issues

  1. 1 ['Whether the will dated 8 July 2020 was duly executed in accordance with s 6 of the Succession Act 2006 (NSW)' 'Whether suspicious circumstances attended the preparation and execution of the will' 'Whether Wadad Wehbe signed the will with knowledge and approval of its contents' 'Whether the execution was procured by undue influence']

Ratio Decidendi

The plaintiffs failed to establish due execution of the will in accordance with s 6(1)(c) of the Succession Act 2006 (NSW), as there was no acceptable evidence that the attesting witnesses signed the will in the presence of the testator. Further, suspicious circumstances attended the preparation and execution of the will and the plaintiffs did not discharge the burden of proving the testator knew and approved the contents of the will. Therefore, the application for a grant of probate in solemn form fails.

Court Disposition

Application for grant of probate in solemn form dismissed. Declaration that the deceased died intestate. Grant of administration to be made to an independent administrator.

Orders

  • ['Statement of Claim dismissed.' 'Declaration made that Wadad Wehbe died intestate.' 'Grant of administration of the estate to be made to Mr Andrew Fleming, solicitor, as independent administrator.' 'Costs reserved for further written submissions.']