Blasutto v Fantin

[2000] NSWSC 258

CITATION:	Blasutto v Fantin; Estate of Maria Delfina Blasutto [2000] NSWSC 258
CURRENT JURISDICTION:	Equity Division Probate List
FILE NUMBER(S):	SC 103462/99
HEARING DATE(S):	21/02/2000 and 27/03/2000
JUDGMENT DATE:	27 March 2000
PARTIES :	Paolo Blasutto (P) Sara Maria Rosa Fantin (D)
JUDGMENT OF:	Young J

COUNSEL :	D L Warren (P)
SOLICITORS:	Lapaine Pomare & Forster (P)
CATCHWORDS:	Succession [30]- Lost will- Presumptions- Uncertainty whether will last in possession of testatrix or solicitor.
CASES CITED:	Curley v Duff (1985) 2 NSWLR 716 Finch v Finch (1867) LR 1 P & D 371 Patten v Poulton (1858) 1 Sw & Tr 55 The Estate of Whiteley 13 May 1993
DECISION:	See paras 12 and 13

THE SUPREME COURT

OF NEW SOUTH WALES

EQUITY DIVISION

PROBATE LIST

YOUNG J

MONDAY 27 MARCH 2000

103462/99 - PAOLO BLASUTTO v SARA MARIA ROSA FANTIN;

ESTATE OF MARIA DELFINA BLASUTTO

JUDGMENT

1    HIS HONOUR: This is an application for probate in solemn form of a missing will. The testatrix, on the evidence, made her last will on 18 September 1981. She made it by instructing a solicitor, Mr Pelosi, who at that stage was in partnership with a Mr Marshan under the name of Pelosi Marshan and Co at Leichhardt.

2    The evidence is that the testatrix was given a copy of her will and the original was left with the solicitors. The solicitors subsequently dissolved their partnership. Neither Mr Pelosi nor Mr Marshan has the will.

3    Mr Pelosi gave evidence that on the dissolution of the partnership, contact was made with various clients and many attended the office and uplifted their files, private packets and wills. However, there are no records indicating which clients attended, and there is no indication that the present testatrix collected her will.

4    Before she died, the testatrix remarked to her son from time to time that her will was with her solicitor. After her death the copy of the will was found, but not the original.

5    The testatrix was a member of the Australian Italian Community. The plaintiff's solicitors made inquiries of all solicitors who normally act for members of that community, and put advertisements in newspapers read by Italian speakers, but the original will has not been found.

6    The plaintiff seeks to have probate of the copy of the will. Under that will the plaintiff, who is the testatrix's son, will receive about $169.00 and the principal asset of the testatrix will pass to her granddaughter Sara, who is called Renata in the will, Renata being her mother's name.

7 In Curley v Duff (1985) 2 NSWLR 716 at 718-719, I said that in this sort of case five matters must be established, viz:

(1) there actually was a will;

(2) that that will revoked previous wills;

(3) that any presumption of revocation is overcome;

(4) that there is evidence of the terms of the will; and

(5) evidence of due execution.

8    All of those matters are satisfied by the evidence in this case with the exception of the third, which is debatable.

9 The presumption is that if a will is in the hands of the testator and is not produced on his or her death, then the court can presume that it was revoked. However, that presumption has to be reviewed in the light of all the surrounding circumstances, including statements made by the testator and the terms of the will itself and whether it was the sort of will that a careful testator would have made with regard to the complete disposition of his or her property. In many cases the presumption is of little strength; see the recent summary of the law in The Estate of Whiteley, Powell J, 13 May 1993 unreported, although the key points of that decision are noted in (1993) 67 ALJ 862-863.

10    Mr Warren for the plaintiff says that one never gets to the presumption in this case because the evidence shows that on the balance of probabilities the will was not last seen in the hands of the testatrix at all, but in the hands of the solicitors, and the probabilities are that when the solicitors' partnership was terminated the will somehow or other was mislaid.

11 However, another inference could be that the will did find its way into the custody of the testatrix and had been inadvertently destroyed. One would not have thought it had been deliberately destroyed if the copy was kept: cf Patten v Poulton (1858) 1 Sw & Tr 55: 164 ER 626. See also Finch v Finch (1867) LR 1 P & D 371.

12    I think this is right. Further, I think that the balance of the evidence does show that the will was not last seen in the testatrix's possession, and so it would be inappropriate to apply the presumption. However, even if the presumption were applied, it seems to me that the balance of the circumstances in this case show that the testatrix did not revoke this will and accordingly the usual order for the probate of a lost will should be made and I refer it to the Registrar to complete the draft.

13    The costs of the plaintiff are to come out of the assets of the estate.

oOo

Last Modified: 09/25/2000