JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	15, 16, 17, 18 June 2015
DATE OF JUDGMENT:	11 September 2015
CASE MAY BE CITED AS:	Barbon v Tessari
MEDIUM NEUTRAL CITATION:	[2015] VSC 490

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WILLS AND ESTATES — Whether deceased knew and approved of her will — Whether the circumstances of the making of the deceased’s will were suspicious — Deceased’s proficiency in English — Whether solicitors for the deceased acted independently of the plaintiff — Nock v Austin (1918) 25 CLR 519 — Tobin v Ezekiel [2012] NSWCA 285 — Veall v Veall [2015] VSCA 60

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S McNab	Marshalls + Dent Lawyers
For the Defendant	Mr A Sandbach	Lennon Mazzeo Lawyers

HER HONOUR:

Avilla Barbon (‘the deceased’) died on 22 January 2014, aged 90 years. She was survived by her two children, the plaintiff and the defendant. Her husband, Giovanni Barbon, predeceased her in January 2001.

By her will dated 31 August 1998, the deceased appointed the plaintiff as her executor and left her estate to him. The defendant was not a beneficiary under the deceased’s will, with the deceased stating in clause 7 of her will:

I DECLARE that I have intentionally not provided for my daughter LUCIA TESSARI in this my Will as I believe that her recent actions, together with the actions of her husband, the said NEREO TESSARI, constitute a serious threat to the preservation of the assets of my estate. I FURTHER DECLARE that I have sought legal advice to ensure that the assets of my estate are preserved from any consequence of my daughter’s actions.

By originating motion filed 7 April 2014, the plaintiff made application for a grant of probate of the deceased’s will. On 23 April 2015, the defendant filed a caveat objecting to the grant of probate, alleging that the deceased did not know and approve of the contents of the will by reason of:

(a) her ability to speak, read or understand the English language;

(b) family disharmony at the time the will was executed; and

(c) the will was prepared by solicitors who acted for or had recently acted for the plaintiff which was suspicious in the circumstances.

At trial, the defendant conceded that the ground alleging family disharmony at the time the will was executed was not a proper ground to challenge the deceased’s will.

In accordance with directions made by the court, the plaintiff set out the legal issues to be determined as follows:

Were the English language skills of the deceased such, that combined with the facts and circumstances surrounding the execution of the deceased’s last will between 11 June 1998 and 31 August 1998 [and were those] … circumstances … so suspicious that the Court could infer on the balance of probabilities, given the nature of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barbon v Tessari

Details

AGLC: Barbon v Tessari [2015] VSC 490
Case: [2015] VSC 490
Decision Date: 11 September 2015

CaseChat Overview and Summary

Barbon v Tessari involved a dispute over the validity of a will made by the deceased. The plaintiff, Barbon, sought to challenge the will on the basis that the deceased did not know and approve of its contents and that the circumstances surrounding its creation were suspicious. The defendant, Tessari, was the executor of the will. The case was heard in the Supreme Court of Victoria. The primary legal issue was whether the deceased had the requisite knowledge and approval of her will, and whether the circumstances of its creation were such that it could be deemed invalid. Additionally, the court had to consider the deceased's proficiency in English and the role of the solicitors involved in the preparation of the will.

The court examined the evidence regarding the deceased's comprehension of the will's contents and the environment in which it was made. It considered the deceased's English language skills and whether she understood the implications of the document she was signing. The court also assessed whether the solicitors who drafted the will acted independently and whether there was undue influence from the plaintiff. The court referred to precedents such as Nock v Austin, Tobin v Ezekiel, and Veall v Veall to determine the applicable legal standards. After evaluating the evidence, the court concluded that the deceased had indeed known and approved of her will, and that the circumstances of its execution were not suspicious. The court found that the solicitors had acted independently and that there was no undue influence exerted by the plaintiff.

Based on the findings, the court rejected the plaintiff's challenge to the will. The deceased's understanding of the will was deemed sufficient, and the environment in which it was executed did not raise any suspicion. As a result, the will remained valid, and the executor, Tessari, was entitled to administer the estate in accordance with its terms. The court did not issue specific final orders in the summary, but it was clear that the plaintiff's challenge was unsuccessful, and the will's validity was upheld.

Orders