Background
Ahileas Parastatidis died on 23 December 2011 leaving a 1998 will that divided his residual estate equally among his three daughters — Sophia Paras, Anastasia Ualesi, and Yvonne Tarazi — with Sophia named as sole executrix. His only significant asset was a mixed-use property at Ashbury comprising a family home upstairs and two commercial shops below, worth considerably more than the roughly $1,000 in cash he held at death. Despite being named executrix, Sophia took no steps to administer the estate in the nearly thirteen years following her father’s death.
Yvonne commenced proceedings in 2024 seeking administration of the estate according to the will’s equal-division terms. Sophia and Anastasia cross-claimed, arguing the Ashbury property was held on trust for them alone — to Yvonne’s exclusion — by reason of an alleged 1987 family arrangement made shortly after their mother Panagiota died. Their case was that, at a family meeting attended by their maternal grandparents and aunt, it was agreed that Sophia and Anastasia would forgo rights in the maternal grandparents’ Greek estates, pay their father’s debts, and manage the property, in exchange for ultimately inheriting the Ashbury property, while Yvonne (then only four years old) would live with her aunt and receive from her grandparents’ Greek estates.
Sophia and Anastasia raised both an express or common intention constructive trust and, in the alternative, proprietary estoppel. Their aunt Dina Kostopoulos — the only other surviving witness to the alleged 1987 meeting who gave evidence — contradicted Sophia’s account. Ahileas himself could not give evidence, having died in 2011.
The Court’s Holding
Peden J dismissed both the trust claim and the proprietary estoppel claim and gave judgment for Yvonne. On the trust claim, the court found Sophia and Anastasia had not established to the level of actual persuasion that the 1987 family agreement ever took place. Dina’s unchallenged evidence directly contradicted Sophia’s, no written agreement existed (required for an express trust of land under s 23C of the Conveyancing Act 1919 (NSW)), and there was no evidence of any conversation in which Ahileas accepted or adopted the alleged arrangement. The fact that Ahileas executed a will in 1998 — eleven years after the alleged agreement — dividing his estate equally among all three daughters was highly inconsistent with any prior trust obligation excluding Yvonne.
The proprietary estoppel claim failed on multiple independent grounds. The court found no unequivocal representation by Ahileas that Sophia and Anastasia owned the Ashbury property to Yvonne’s exclusion; his statements — such as “the property is yours” — were colloquial expressions delegating management responsibility, not representations of beneficial ownership. There was no reasonable reliance: the sisters’ conduct (paying debts, staying in the property, funding renovations) was equally explained by familial duty and their own financial benefit. No detriment was established — the sisters received rental income, rent-free accommodation, and the capital appreciation of the property — and the expenses incurred were their ordinary living and business costs. Sophia was found to be an unimpressive witness whose evidence was incredible in multiple respects.
The court ordered the appointment of an independent administrator (Sophia having failed to act as executrix), declared the Ashbury property was not held on trust for Sophia and Anastasia to the exclusion of Yvonne, and ordered Sophia and Anastasia to account to the estate for their use of the Ashbury property. The court also criticised defence counsel’s submission of unsolicited post-hearing written submissions, declining to read them and noting such conduct is antithetical to the overriding purpose of the Civil Procedure Act 2005 (NSW).
Key Takeaways
- Where the alleged creator of a trust is deceased, courts apply a heightened scrutiny to oral evidence of the alleged agreement; “actual persuasion” of the occurrence of the relevant conversations is required, not mere probability — and fallibility increases where parties have a financial stake in the outcome.
- Colloquial family statements such as “the property is yours” or “you girls will get this building” do not constitute clear representations of beneficial ownership sufficient to ground proprietary estoppel, particularly where the speaker’s executed will is inconsistent with the alleged representation.
- Conduct that benefits the party claiming detrimental reliance — collecting rental income, living rent-free, operating a business on the property at no cost — will not satisfy the detriment element of proprietary estoppel even if it was also burdensome in other respects.
- An executor’s prolonged failure to administer an estate is itself a basis for the court to appoint an independent administrator, particularly where the executor has a personal financial interest conflicting with the beneficiaries’ entitlements.
- Counsel must not provide supplementary written submissions to a court after a hearing without first obtaining leave; doing so wastes time and costs and contravenes the overriding purpose of civil procedure legislation.
Why It Matters
This judgment offers a careful application of the evidential standards governing oral trust and estoppel claims in a family property dispute — a fact pattern that arises frequently in estate litigation. It underscores that informal family understandings, however sincerely held, will not displace a formal will unless the claimant can prove both the representations and detrimental reliance to a high standard of actual persuasion. The court’s analysis of “detriment” is particularly instructive: financial contributions that were offset by countervailing benefits received from the same property will not suffice.
The case is also a reminder of the practical risks of executor inaction. Here, nearly thirteen years elapsed between the testator’s death and any attempt to administer the estate, during which one beneficiary was effectively excluded from the only meaningful asset. The appointment of an independent administrator and the order to account for use of the property demonstrate that courts will not permit inaction — especially inaction by an executor with an adverse interest — to operate as a de facto transfer of estate assets.