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Chant v Curcuruto

Chant v Curcuruto

Case [2021] NSWSC 751 25 June 2021

Testamentary Capacity

Knowledge and Approval

Suspicious Circumstances

Instructions for Wills

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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…

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 Chant v Curcuruto

Details

AGLC: Chant v Curcuruto [2021] NSWSC 751
Case: [2021] NSWSC 751
Decision Date: 25 June 2021

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.

Orders