Golybovitch v Soshnina[2009] QSC 437

SUPREME COURT OF QUEENSLAND

HIS HONOUR:  The applicant has sought probate of the will of Iraide Faivis who died on 11th of January this year.  The respondent has a caveat against the grant of probate to the applicant for that will.  The applicant now seeks to have the caveat removed and to have a grant of probate.

Rule 626(2) provides that the court may set aside a caveat if it considers that the evidence does not show two things.  It is conceded that the evidence does show the first of those two things, that is that the caveator has an interest.  The issue is whether or not the court considers that the evidence does not raise doubt as to whether the grant ought to be made.

To raise the doubt the caveator has referred to several things.  The first is a variety in the spelling in English of the applicant executor's name.  By way of background I should say that the testator, the beneficiary, the applicant and the caveator, that is the applicant executor and the caveator, are all of Russian descent.

The executor's name has been rendered into English in one form of spelling in the will and in the affidavits in support but with a different English spelling in another affidavit filed by her.  On behalf of the respondent caveator, Mr Abaza, submits that this raises the doubt about whether the applicant is the person named in the will.  I do not accept that argument.

The fact that there are different renditions in English of the spelling of a Cyrillic name does not cause me to have any doubt, particularly when there is no evidence of any other person known to the testatrix with a name of any similarity to that of the applicant.

The second major point arises from the content of the will.  The testatrix was the beneficiary's aunt and left her entire estate to her niece.  The respondent caveator is the beneficiary's sister.  She was left nothing.  The reason given by the testatrix in conversations with a number of people at about the time of the will in 1992 and since for the exclusion of the caveator from her will was that the caveator had been left everything by her father and her sister had been excluded from her father's will.

It is common ground that that was true.  What appears to not have been known by the testatrix was that after the father's death in 1989 or so the caveator respondent gifted about one-third of the estate which she received from her father to the beneficiary, her sister.

The evidence discloses that the solicitor who took instructions for the will was satisfied that the testatrix was of sound mind.  He described her as "a very astute and active woman who was well aware of her circumstances and her directions and her instructions to me were clear an unequivocal."  He was not cross-examined on that deposition. 

It is conceded that he did not, when preparing the will, follow every step described in Banks v. Goodfellow (1870) LR 5 QB 549 but that does not, it seems to me, lead to an inference that the will is in some way suspect.

The testatrix may have been under a misapprehension.  It is surprising that the caveator did not tell her either at the time of the gift to her sister or subsequently of the fact of the gift but that appears to be the position since several deponents have spoken of the testatrix revealing the reason for her dispositions to them.  That does not, to my mind, result in invalidity of the will.  It could not do so.

The solicitor has deposed to reading the will over to the testatrix and to her apparent understanding of it.  I do not think there is any basis for forcing the applicant to proceed by way of proof in solemn form, particularly when one has regard to the size of the estate.

There was reference in Mr Abaza's outline to a will dated 12 February 1992 and subsequently lost but it appears that nothing hangs on that as no further reference was made to it.  If there were such a will, of course, it would post-date the will that is the subject of the probate application, but there is no evidence of what was in it and the fact that the testatrix did nothing about its theft would suggest that she was content to work on the basis that it was destroyed.

I see no suspicious circumstance in the fact that the witness to the will cannot be found after all these years nor do I see anything suspicious in the fact that the nominated co-executor has renounced her position.

In all the circumstances, I am satisfied that the application should be granted and that the caveat should be set aside.  I am not, at the moment, persuaded that I should do more than that and would prefer to leave other matters to the Registrar in view of the suggestion that there may be formalities to be complied with but I will hear counsel on that question.

...

HIS HONOUR:  I set aside the caveat filed on the 21st August 2009.  I order that the respondent pay the applicant's costs to be assessed.