Chant v Curcuruto

Case [2021] NSWSC 751


Supreme Court


New South Wales

Medium Neutral Citation: Chant v Curcuruto; Chant v Curcuruto [2021] NSWSC 751
Hearing dates: 2 – 4, 8 – 11, 16 – 18 February 2021, 18 March 2021
Date of orders: 25 June 2021
Decision date: 25 June 2021
Jurisdiction:Equity
Before: Hallen J
Decision:

See paragraphs [763]-[764]

Catchwords:

SUCCESSION – Contested probate claims relating to the last Will of two different will-makers who were husband and wife – Lack of testamentary capacity of each alleged – Lack of knowledge and approval of contents of the Will of each will-maker also alleged by Defendants

SUCCESSION – Righteousness of each Will and suspicious circumstances doctrine - Issue regarding from whom final instructions for each Will obtained by solicitor - Whether beneficiaries, or one of them, named in each of the Wills, was involved in giving instructions for each Will – Solicitor not present at execution of wills – Only beneficiaries and attesting witnesses present

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56-60, 99

Evidence Act 1995 (NSW) s 140

Succession Act 2006 (NSW) ss 6, 22, 18

Supreme Court Rules 1970 (NSW) Pt 78 r 57

Uniform Civil Procedure Rules 2005 (NSW) r 2.1, r 28.5, r 35.2

Cases Cited:

Armagas Ltd v Mundogas S.A. (The “Ocean Frost”) [1985] 3 WLR 640; [1985] 1 Lloyd’s Rep 1

Ashkettle -v- Gwinnett [2013] EWHC 2125 (Ch)

Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21

Banks v Goodfellow (1870) LR 5 QB 549

Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200

Blendell v Byrne; the Estate of Noeline Joan Blendell [2019] NSWSC 583

Bool v Bool [1941] St R Qd 26

Boughton v Knight (1873) LR 3 P&D 64

Brown v Fisher (1890) 63 LT 465

Brown v McEnroe (1890) 11 NSWR Eq 134

Brown v Wade [2010] WASC 367

Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13

Bulstrode v Trimble [1970] VR 840

Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65

Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82

Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 886

Clitheroe, Re Probate [2021] EWHC 1102 (Ch)

Coshott v Prentice (2014) 221 FCR 450; [2014] FCAFC 88

Croft v Sanders [2019] NSWCA 303

D’Apice v Gutkovich; Estate of Abraham (No 2) [2010] NSWSC 1333

Day v Couch [2000] NSWSC 230

Dickman v Holley; Estate of Simpson [2013] NSWSC 18

Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218

Du Maurier v Wechsler [2001] NSWSC 4

Easter v Griffith (1995) 217 ALR 284

Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599,

Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786

Estate of Budniak; NSW Trustee & Guardian v Budniak [2015] NSWSC 934

Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785

Frizzo v Frizzo [2011] QCA 308

Fuller v Strum [2002] 1…

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AGLC
Chant v Curcuruto [2021] NSWSC 751
Case
[2021] NSWSC 751
Decision Date

CaseChat Overview and Summary

In the case of Chant v Curcuruto, the parties involved are the executors of two separate wills, and the defendants who contest the validity of those wills. The dispute arises from the alleged lack of testamentary capacity and knowledge and approval of the contents of the wills by the respective testators. The case was heard in the Supreme Court of Victoria. The defendants argue that the wills were not properly executed due to the absence of the testators' knowledge and approval of the contents, and because they lacked testamentary capacity. The court was required to determine whether the wills were validly executed and whether there were any suspicious circumstances that would call into question their validity.

The court examined the evidence presented regarding the testamentary capacity of the testators and the knowledge and approval of the contents of the wills. The court also considered the suspicious circumstances doctrine and whether the beneficiaries or one of them were involved in giving instructions for each will. The court found that there was no evidence to suggest that the testators lacked testamentary capacity or that they did not have knowledge and approval of the contents of the wills. The court also found that there were no suspicious circumstances that would call into question the validity of the wills. The court concluded that the wills were validly executed and that the defendants' claims were without merit.

As a result of the court's decision, the executors of the wills were granted probate, and the defendants' claims were dismissed. The court found that there was no evidence to support the defendants' allegations and that the wills were validly executed. The court also found that the defendants' claims were an abuse of the court's process and that they should pay the executors' costs of the proceeding. The final orders of the court were that the executors of the wills be granted probate, that the defendants' claims be dismissed, and that the defendants pay the executors' costs of the proceeding.

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Background

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