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Belcastro v Belcastro

Belcastro v Belcastro

Case [2004] WASC 111 25 May 2004

Unexecuted Will

Admissibility of Evidence

Knowledge and Approval

Succession Law

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BELCASTRO & ANOR -v- BELCASTRO & ORS [2004] WASC 111

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 111
Case No:	CIV:1866/2002	Heard:	19 MAY 2004
Coram:	COMMISSIONER ODES QC	Delivered:	25/05/04
No of pages:	10	Judgment Part:	1 of 1
Result:	Claim for relief dismissed Alternative relief granted
Category:	B
PDF Version

Parties:	VINCENT BELCASTRO TERESA ZARELLI DOMENIC VINCENT BELCASTRO NANCY MARY (ANUNZIATA) MERENDA CLEMENTINA LUCY DARLING
Catchwords:	Unexecuted Will Requirements for admission to probate No evidence that deceased aware of subject document No adoption or authentication of contents
Legislation:	Wills Act 1970 (WA), s 34
Case References:	Estate Donald Lee Hudson (Dec) [2002] WASC 146 Estate of Kevin John Hines & Anor v Hines [1999] WASC 111 Hatsouris v Hatsouris [2001] NSWCA 408 Henwood v Public Trustee (1993) 9 WAR 22 In the Estate of Vauk (decd) (1986) 41 SASR 242 In the Estate of Williams (decd) (1984) 36 SASR 423 Perpetual Trustees (WA) Ltd v Gailey & Anor [1999] WASC 61 Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535 Barclays Bank Plc v O'Brien [1993] 4 All ER 417 Baumanis v Praulin (1980) 25 SASR 423 Commercial Bank of Australia v Amadio (1983) 151 CLR 447 In the Will of Lobato Shields v Caratozzolo (1991) 6 WAR 1 Martin & Ors v Fletcher & Ors [2003] WASC 59 Re Will and Estate of Robert Emanuel Trinidad (decd); Ex parte the Public Trustee, unreported; SCt of WA (Templeman J); Library No 980504; 28 August 1998 Silvester & Ors v Tarabini & Ors, unreported; SCt of WA (Anderson J); Library No 960062; 13 February 1996

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : BELCASTRO & ANOR -v- BELCASTRO & ORS [2004] WASC 111 CORAM : COMMISSIONER ODES QC HEARD : 19 MAY 2004 DELIVERED : 25 MAY 2004 FILE NO/S : CIV 1866 of 2002 BETWEEN : VINCENT BELCASTRO

TERESA ZARELLI

Plaintiffs

AND

DOMENIC VINCENT BELCASTRO

First Defendant

NANCY MARY (ANUNZIATA) MERENDA

Second Defendant

CLEMENTINA LUCY DARLING

Third Defendant

Catchwords:

Unexecuted Will - Requirements for admission to probate - No evidence that deceased aware of subject document - No adoption or authentication of contents

Legislation:

Wills Act 1970 (WA), s 34

(Page 2)

Result:

Claim for relief dismissed

Alternative relief granted

Category: B

Representation:

Counsel:

Plaintiffs : Mr G Papamihail

First Defendant : No appearance

Second Defendant : No appearance

Third Defendant : No appearance

Solicitors:

Plaintiffs : Chan Galic

First Defendant : No appearance

Second Defendant : No appearance

Third Defendant : No appearance

Case(s) referred to in judgment(s):

Estate Donald Lee Hudson (Dec) [2002] WASC 146
Estate of Kevin John Hines & Anor v Hines [1999] WASC 111
Hatsouris v Hatsouris [2001] NSWCA 408
Henwood v Public Trustee (1993) 9 WAR 22
In the Estate of Vauk (decd) (1986) 41 SASR 242
In the Estate of Williams (decd) (1984) 36 SASR 423
Perpetual Trustees (WA) Ltd v Gailey & Anor [1999] WASC 61
Re Application of Brown; Estate of…

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 Belcastro v Belcastro

Details

AGLC: Belcastro v Belcastro [2004] WASC 111
Case: [2004] WASC 111
Decision Date

CaseChat Overview and Summary

In Belcastro & Anor v Belcastro & Ors, the plaintiffs, Vincent Belcastro and Teresa Zarelli, sought to have an unexecuted will admitted to probate, as well as an executed will from 2000. The defendants, Dominic Vincent Belcastro, Nancy Mary Merenda, and Clementina Lucy Darling, argued that the unexecuted will should not be admitted to probate and questioned the validity of the 2000 will. The court was required to determine whether the unexecuted will met the criteria for admission to probate under the Wills Act 1970 (WA) and whether the 2000 will was validly executed. The court found that there was insufficient evidence to show that the deceased was aware of the unexecuted will or had adopted or authenticated its contents, and therefore dismissed the claim for relief regarding the unexecuted will. However, the court found that the 2000 will had been validly executed and granted the alternative relief sought by the plaintiffs, admitting the 2000 will to probate in solemn form. The court also ordered that the costs of the proceedings be borne by the estate of the deceased.

Orders