Cassarino v Cassarino - [2020] NSWSC 454

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Cassarino v Cassarino [2020] NSWSC 454
Hearing dates: Dealt with in Chambers and on the papers
Date of orders: 28 April 2020
Decision date: 28 April 2020
Jurisdiction: Equity
Before: Hallen J
Decision:
The Court:

1. Orders subject to compliance with the Probate rules of Court that Probate in solemn form of the Will dated 19 January 2015 of Francesco Cassarino (“the deceased”) be granted to the Defendants/Cross-Claimants, Vincent Cassarino (a.k.a. Vince Cassarino), Tony Cassarino, Connie Russo and to the Plaintiff, Francesca Cassarino.

2. Orders that the matter be remitted to the Senior Deputy Registrar in Probate to complete the grant.

3. Orders that the administration bond be dispensed with.

4. Orders that the Statement of Claim, filed on 15 November 2018, be dismissed.

5. Orders that the Cross-Claim, filed on 1 July 2019, otherwise be dismissed.

6. Makes no order as to the costs of any party, to the intent that she, and they, will bear her, and their, own costs, respectively, of the proceedings.
7. Agreements of the parties noted.
Catchwords: SUCCESSION – Probate and administration – Entitlement to grant of Probate – Contested proceedings – Where parties reach agreement to pass over a later Will in favour of grant in solemn form of an earlier Will – Where there was some doubt as to the validity of the later Will – Grant of Probate a public act – Orders not to be made as a matter of course – Whether, and in what circumstances, the Court will make a grant of Probate based on the agreement of the parties
Cases Cited: Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786
Fairclough v Cvitan [2019] WASC 370
Philpott v Olney [2004] NSWSC 592
Public Trustee v Gerritsen [2012] WASC 201
Smith v Smith, Estate of Smith [2007] NSWSC 116
The Estate of Clarence Gilbert Alcorn (Supreme Court (NSW), Powell J, 9 August 1991, unrep)
Tolson v Hender [2009] WASC 319
Vandeleur v Franich [1991] 1 Qd R 481
Category: Principal judgment
Parties: Francesca Cassarino (Plaintiff/Cross-Defendant)
Vincent Cassarino (First Defendant/First Cross-Claimant)
Tony Cassarino (Second Defendant/Second Cross-Claimant)
Connie Russo (Third Defendant/Third Cross-Claimant)
Representation: Solicitors:
Agostino & Co (Plaintiff/Cross-Defendant)
Simone Legal (Defendants/Cross-Claimants)

File Number(s): 2018/00257946

Judgment

Introduction

HIS HONOUR: This matter has been referred to me by a Senior Deputy Registrar in Probate and was dealt with in Chambers. It involved what was, until relatively recently, contested Probate proceedings. The proceedings now involve the question whether the Court should grant Probate of a duly executed Will dated 19 January 2015 of Francesco Cassarino (the deceased) (the 2015 Will), thereby overlooking a later duly executed Will made by him on 15 April 2016 (the 2016 Will). All parties who are concerned with the question stated reached a compromise, the principal effect of which was to seek an order that there be a grant of Probate in solemn form of the 2015 Will.
(The deceased made an earlier Will on 24 September 2014 but…

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.

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Details

Case: [2020] NSWSC 454
Decision Date: 28 April 2020

CaseChat Overview and Summary

In the Family Court of Australia, the case of Cassarino v Cassarino involved a dispute over the entitlement to a grant of Probate, which is part of the administration of an estate following a death. The case arose after the death of the testator, where there was contention about which of the two wills should be recognised. The court was tasked with deciding which of the two wills, if any, should be granted probate. The first will, known as the "solemn form" will, was believed to be valid and had been agreed upon by the parties to be recognised in preference to a later will. There were, however, doubts regarding the validity of the later will.

The legal issues before the court included whether the court should respect the agreement of the parties to forgo the later will in favour of the earlier solemn form will, given the uncertainty surrounding the validity of the later will. The court also needed to determine whether, in the event of an agreement among the parties, the court would routinely grant probate as a matter of course or if there were other considerations that would inform the court's decision. The court had to consider the public nature of the grant of probate and the broader implications of recognising or disregarding a will in light of an agreement among the parties.

In its reasoning, the court noted that while the agreement of the parties to pass over the later will was a significant factor, it was not the sole determinant in the grant of probate. The court emphasised the public nature of the grant of probate, which meant that the court could not simply make orders as a matter of course. The court held that while the agreement of the parties was a material consideration, the court had a duty to ensure that the grant of probate was in the best interests of justice and in accordance with the law. The court ultimately decided not to make a grant of probate based solely on the parties' agreement, as there were unresolved issues about the validity of the later will and broader considerations of public interest in the recognition of wills.

The final orders of the court were that no grant of probate would be made in respect of either will until the validity of the later will was resolved and other relevant matters were determined. The court indicated that further proceedings would be necessary to address these issues, and that the grant of probate would be considered afresh in light of any further evidence or arguments presented.

Orders