BELCASTRO & ANOR -v- BELCASTRO & ORS [2004] WASC 111
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 111 | |
| Case No: | CIV:1866/2002 | 19 MAY 2004 | |
| Coram: | COMMISSIONER ODES QC | 25/05/04 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Claim for relief dismissed Alternative relief granted | ||
| 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
- 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…
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- [2004] WASC 111
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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
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Background
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Decision
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