Clocchiatti v Chadwick - [2012] NSWSC 1308

Supreme Court

New South Wales

Medium Neutral Citation: Clocchiatti v Chadwick [2012] NSWSC 1308
Hearing dates: 8 October 2012
Decision date: 26 October 2012
Jurisdiction: Equity Division - Probate List
Before: Ward J
Decision:
Declaration that caveat cease to have effect. Directions for the filing of cross-claim by caveator.

Catchwords: PROBATE - application pursuant to Pt 78 r 69 Supreme Court Rules 1970 (NSW) that three caveats lodged pursuant to Pt 78 r 61(1) Supreme Court Rules 1970 (NSW) cease to have effect - application by plaintiff who has sought probate of informal will dated 14 November 2011 - caveats lodged by three parties named either as beneficiaries or executors under earlier will - only one caveat remaining in force as at time of application - where that caveator maintains challenge to the validity of the informal will - consideration of whether caveator should be joined as a party and proceedings proceed by way of pleadings - HELD - declaratory relief pursuant to Pt 78 r 69 granted - directions made as to conduct of proceedings
Legislation Cited: Succession Act 2006 (NSW)
Supreme Court Rules 2005 (NSW)
Cases Cited: Azzopardi v Smart (1992) 27 NSWLR 232
D'Apice v Farrell (unreported, NSWSC, 15 May 1992, Powell J)
Peterson v Spartalis (unreported NSWSC 7 April 1995, Hodgson J)
Texts Cited: N/A
Category: Interlocutory applications
Parties: Nicolina Clocchiatti (Plaintiff)
Richard Doyne Chadwick (Defendant)
Representation: Counsel:
Mrs M Bridger (Plaintiff)
B J Burke (Defendant)
Solicitors:
Mitry Lawyers (Plaintiff)
Coleman Greig (Defendant)

File Number(s): 12/051116

Judgment

HER HONOUR: Before me in the Protective List on 8 October 2012 was an application by Notice of Motion filed on 29 August 2012 by the plaintiff seeking an order under Part 78 rule 69 of the Supreme Court Rules that three caveats lodged in respect of any grant of probate cease to have effect.

The plaintiff, by Summons filed 28 May 2012, has sought probate of an informal handwritten will of the deceased, John Pierobon. An order under s 8 of the Succession Act is sought in relation to that informal will.

The deceased died on 19 November 2011. Under the will sought to be admitted to probate by the plaintiff, she is appointed executrix and is the beneficiary of the whole of the estate. Under an earlier will, the deceased had appointed two solicitors (Mr Richard Chadwick and Mr Owen Nichol) as his executors and had distributed his estate amongst a variety of persons (including 15% to Mr Chadwick, 15% to a cousin, Mr John Pierobon, and 15% to Scalabrini Villages (the retirement village in which he had resided)). Each of Mr Pierobon and Scalabrini Villages lodged caveats claiming an interest as beneficiaries under the 2006 will. The solicitors have also lodged a caveat claiming as executors under that will.

Only the caveat lodged by Scalabrini Villages remained in force as at the date of the application before me (the other two caveats having lapsed by effluxion of time). That caveat appears to challenge the validity of…

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 Clocchiatti v Chadwick

Details

AGLC: Clocchiatti v Chadwick [2012] NSWSC 1308
Case: [2012] NSWSC 1308
Decision Date: 26 October 2012

CaseChat Overview and Summary

In the case of Clocchiatti v Chadwick, the plaintiff sought to have probate granted for an informal will dated 14 November 2011. The application was contested by three caveators who were named as beneficiaries or executors under an earlier will. The plaintiff applied for the three caveats lodged under the Supreme Court Rules 1970 (NSW) to be removed and for the proceedings to be conducted as a matter of law rather than by way of pleadings. The central legal issue was whether the caveator, who maintained a challenge to the validity of the informal will, should be joined as a party and whether the matter should proceed by way of pleadings.

The court considered the appropriate procedural steps to take in light of the remaining caveator's challenge. It was noted that the caveator had the right to challenge the will's validity and that the matter should not be resolved without giving that party an opportunity to be heard. The court held that declaratory relief should be granted pursuant to Pt 78 r 69 of the Supreme Court Rules 1970 (NSW). The caveator was to be joined as a party, and the proceedings were to be conducted by way of pleadings. Directions were given to ensure that the caveator's rights were protected and that the matter could be appropriately resolved.

The court's decision ensured that all parties with a legitimate interest in the estate had an opportunity to be heard. By joining the caveator as a party and proceeding by way of pleadings, the court aimed to provide a fair and thorough examination of the will's validity. The final orders included the joining of the caveator as a party and the direction for the proceedings to continue as a matter of law, allowing for a comprehensive review of the issues at hand.

Orders