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Clocchiatti v Pierobon

Clocchiatti v Pierobon

Case [2014] NSWSC 488 8 April 2014

Validity of Will

Grant of Probate

Suspicious Circumstances

Succession Act 2006 (NSW)

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Nicolina Clocchiatti v John Paul Pierobon & Ors; Estate of John Pierobon [2014] NSWSC 488
Hearing dates: 7 and 8 April 2014
Decision date: 08 April 2014
Jurisdiction: Equity Division - Probate List
Before: White J
Decision:
Refer to paras [73] and [92] of judgment

Catchwords: WILLS, PROBATE AND ADMINISTRATION - probate - validity of will - whether suspicious circumstances attend the execution of the will - whether the deceased knew and approved the contents of the will - whether grant of probate should instead be ordered for prior will - whether an order should be made under s 6 or s 8 of the Succession Act - whether costs should be paid out of the estate or no order as to costs - probate in solemn form of the will granted to the plaintiff - Succession Act 2006 (NSW) ss 6, 8
Legislation Cited: Succession Act 2006 (NSW)
Cases Cited: Fulton v Andrew (1875) LR 7HL 448
In Re Nixon deceased [1916] VLR 274
Fuller v Strum [2002] 2 All ER 87
Nock v Austin (1918) 25 CLR 519
Vernon v Watson [2002] NSWSC 600 at [2]-[9]).
Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757
Plunkett v Bull [1915] HCA 14; (1915) 19 CLR 544
Mitchell v Gard (1863) 3 Sw & Tr 275; 164 ER 1280 Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Gray v Hart (No 2) [2012] NSWSC 1562
Texts Cited: Mason and Handler, Succession Law and Practice New South Wales, LexisNexus Butterworths
Category: Principal judgment
Parties: Nicolina Clocchiatti (Plaintiff)
John Paul Pierobon (1st Defendant)
Richard Doyne Chadwick (2nd Defendant)
Scalabrini Village Limited (3rd Defendant)
Representation: Counsel:
P Blackburn-Hart SC with D A Allen (Plaintiff)
Submitting appearances (1st and 2nd Defendants)
B J Burke (3rd Defendant)
Solicitors:
Mitry Lawyers (Plaintiff)
Stockman & Evans (1st Defendant)
Coleman Greig (2nd Defendant)
Hicksons Lawyers (3rd Defendant)

File Number(s): 2012/51116

Judgment

HIS HONOUR: These proceedings concern the estate of John Pierobon who died on 19 November 2011 aged 84. The estimate made for probate purposes of the value of his estate is approximately $5.9 million.

The deceased was unmarried. He had no children and no close family. The plaintiff, Mrs Nicolina Clocchiatti, seeks a grant of probate in solemn form of a document she claims is a will of the deceased made on 14 October 2011. Under that document, she is named as the executor of his estate and its sole beneficiary.

The deceased had made a prior will on 24 October 2006. It named the second defendants, Messrs Richard Chadwick and Owen Nicol, both solicitors, as the executors of the will.

Under the will of 24 October 2006, the deceased had left his estate to a cousin in Italy; another cousin, the first defendant, in Australia; and had left a 15 per cent share of his residuary estate to Mrs Clocchiatti; a 15 per cent share to his solicitor Mr Chadwick; and the balance, that…

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 Pierobon

Details

AGLC: Nicolina Clocchiatti v John Paul Pierobon [2014] NSWSC 488
Case: [2014] NSWSC 488
Decision Date: 08 April 2014

CaseChat Overview and Summary

Clocchiatti v Pierobon involved a dispute over the validity of a will, with the plaintiff, Clocchiatti, asserting their entitlement to probate based on a particular will, while the defendant, Pierobon, argued for the probate of a prior will. The case was heard in the Supreme Court of New South Wales. The central issue for the court was to determine whether suspicious circumstances surrounded the execution of the will in question, and if the deceased had the requisite knowledge and approval of the will's contents. Furthermore, the court needed to decide if probate should be granted for the earlier will instead, and whether an order should be made under section 6 or section 8 of the Succession Act 2006 (NSW). The court also had to consider the appropriate allocation of costs, specifically whether they should be paid out of the estate or if no order should be made as to costs.

The court examined the evidence regarding the suspicious circumstances and the deceased's knowledge and approval of the will. It assessed the credibility of the witnesses and the documentary evidence presented. The court determined that the plaintiff had demonstrated that the suspicious circumstances were not sufficient to invalidate the will. It found that the deceased had indeed known and approved the contents of the will. The court concluded that there was no basis for ordering probate of the prior will and that an order should be made under section 6 of the Succession Act 2006 (NSW). The court further ruled that costs should be paid out of the estate.

In its final orders, the court granted probate in solemn form of the will to the plaintiff, Clocchiatti, and made an order under section 6 of the Succession Act 2006 (NSW). It also directed that the costs of the proceeding be paid out of the estate. The defendant's application for an order under section 8 of the Succession Act 2006 (NSW) was dismissed, and no order was made as to costs in relation to that application.

Orders