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Ryan v Kazacos [2001] NSWSC 140 (AustLII)
heard 21 February 2001; delivered 13 March 2001

These were contentious probate proceedings (a dispute regarding a deceased person's will).

[7] The deceased was a one-half owner with his father of a business known as the "Penthouse Club" in Sydney. This was euphemistically called a "gentlemen's club". It was a seven day a week, 24 hours a day business which involved attending to the needs of the members. In order to service the members, shifts of large number of hostesses were employed and at least ten suites of rooms were made available by the club for private conferences between the members and the hostesses.

Kazacos committed suicide, leaving [46] "an estate which would appear ... to have a value of about $4.5 million". He left a suicide note, which purported to leave his 50% share in the business to Michelle Ryan. The question was whether the suicide note acted as a codicil to a will he had made some years earlier.

As it turned out, the business was under investigation by the National Crime Authority – unbeknown to Kazacos – and Kazacos' phone calls were legally tapped. A solicitor for Kazacos took notes from recordings of the calls. Young J found that the notes were inadmissible under the statute authorising the tapping.

In Australia, an informal codicil is not presumed invalid merely because it is a suicide note. [50]

[51] The defendant says that the evidence of Anabel, which should be accepted as it was uncontradicted and Anabel was unaffected by the cross examination, shows that the deceased was in a depressed state of mind when he wrote the note. He wrote the note only four minutes after finishing a very emotional conversation with Anabel's father, after he had just found Anabel in bed with another man, in circumstances where he was accusing Anabel of betraying him.

The judgment contains a salacious review of the evidence concerning Kazacos' private life. For the most part, Young J was unconvinced by the evidence going to Kazacos' incapacity:

[58] In their affidavits and in cross examination, the doctors were asked about the size of the estate, the fact that there was a large benefit given to the plaintiff which had the effect of reducing substantially the benefit that the deceased's son would take under the will, that there was no benefaction to Anabel, that it might be said that the "will" was to punish Anabel for what she had done by leaving money to her rival. I must confess that none of this really impressed me very much. There was also debate as to whether a person who says in his will that he is of sound mind thereby signifies that he is afraid that other people will think he is not. This, to my mind is speculation...
[55] Evidence was given by two psychiatrists, one for each side. As is almost always the case in this sort of litigation, neither psychiatrist had ever seen the deceased and all their views were formed from documents which had been briefed to them...
[59] ... it is probable from the evidence that the defendant also asked a Dr Strum, a psychiatrist, to give an opinion, yet no report from Dr Strum was ever forthcoming. The conclusion must be that nothing that Dr Strum said could have assisted the defendant's case. I should note at this time that the culture in probate proceedings has been that both parties are assisting the Judge to get at the truth and the Court does expect all medical evidence to be produced, whether favourable or unfavourable to a party. It is regrettable that just because these are hotly contested proceedings involving a lot of money the prevailing culture does not seem to have been observed in the instant case.

Ultimately, Young J found that the note validly amended Kazacos' will. The Canberra Times reported accordingly.

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You should not rely on these case notes for any purpose. They contain my views at the time they were written. They do not represent my employer's views, and may be outdated or differ from my current views.