Colosimo v Colosimo - [2022] VSC 807

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST

S PRB 2020 33189

IN THE MATTER of the estate of ANTHONY GERARD COLOSIMO deceased

BETWEEN:

MICHAEL COLOSIMO	Plaintiff
v
GEORGE COLOSIMO	Defendant

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JUDGE:	Incerti J
WHERE HELD:	Melbourne
DATE OF HEARING:	27, 28 September 2022
DATE OF JUDGMENT:	20 December 2022
CASE MAY BE CITED AS:	Colosimo v Colosimo
MEDIUM NEUTRAL CITATION:	[2022] VSC 807

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WILLS AND ESTATES – Where plaintiff seeks grant of probate of copy will – Where original will cannot be found – Where plaintiff seeks to rebut presumption of revocation – Weight to be given to presumptions of fact – Where deceased kept unmarked copy of original will – Cahill v Rhodes [2002] NSWSC 561 – Re Demediuk [2019] VSCA 86 – Ulman v Mom [2022] VSC 186.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	R C Wells	McNab McNab & Starke
For the Defendant	M J Latham	Collards Solicitors

HER HONOUR:

Introduction

Anthony Gerard Colosimo (‘the deceased’) was admitted to the Austin Hospital on 15 January 2020 following a fall at home.[1] He was diagnosed with a terminal brain tumour,[2] and died on 5 May 2020 aged 62 years.[3] At the time of his death, the deceased was unmarried, unpartnered and had no children.
[1]Exhibit P5 (Medical Notes Relating to the deceased).
[2]Ibid.
[3]Ibid.

The deceased was predeceased by his parents and three of his nine siblings, Peter Colosimo, Michael Colosimo and Maria Rech. The deceased was survived by his remaining siblings Rosetta Cinotti, Ross Colosimo, Vittoria Fontan, William Colosimo, Giulio Colosimo and George Colosimo (‘the defendant’). Michael Santo Colosimo (‘the plaintiff’) is the deceased’s nephew.[4]
[4]T55.4.

The plaintiff seeks a grant of probate in respect of a will (‘the Original Will’) prepared by the deceased on 8 May 1991. The plaintiff propounds an unmarked copy of the signed will (‘the Copy Will’), as the Original Will cannot be found.[5]
[5]The Copy Will is attached to Exhibit P2 (Affidavit of Michael Santo Colosimo).

The grant of probate is opposed by the defendant. The defendant’s ground of objection is that, because the Original Will cannot be located and was last traced to the deceased, it is presumed to have been destroyed animo revocandi. Accordingly, the defendant says the deceased died intestate. In the event the Copy Will is not admitted to probate, the defendant intends to apply for a grant of letters of administration as next of kin of the deceased entitled to a share of the residuary of the deceased’s estate upon intestacy, there being no other will of the deceased.[6]
[6]Administration and Probate Act 1958 (Vic) s 70ZI.

Factual background

By way of background, the following matters are not in dispute.

Leslie Nicholas Christie (‘Mr Christie’) is the long-term solicitor and friend of the deceased. They met in or about 1970, when the deceased was approximately 12 years old.[7]
[7]T14.12.

At some…

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 Colosimo v Colosimo

Details

AGLC: Colosimo v Colosimo [2022] VSC 807
Case: [2022] VSC 807
Decision Date: 20 December 2022

CaseChat Overview and Summary

In Colosimo v Colosimo, the plaintiff sought a grant of probate of a copy will, as the original will could not be located. The dispute arose from the deceased's failure to leave a copy of the will with any family member, friend, or legal advisor, which made it difficult to prove the contents and authenticity of the will. The case was heard in the Supreme Court of Victoria.

The central legal issue was whether the presumption of revocation of the original will could be rebutted by the plaintiff. The court needed to determine the weight to be given to presumptions of fact, particularly in light of the deceased's conduct of keeping an unmarked copy of the original will. The plaintiff argued that the deceased's conduct was inconsistent with an intention to revoke the will, and therefore the presumption of revocation should not apply. The court also had to consider the relevant legal principles established in cases such as Cahill v Rhodes, Re Demediuk, and Ulman v Mom.

The court found that the presumption of revocation was a strong one, but it could be rebutted if the plaintiff could demonstrate that the deceased's conduct was inconsistent with an intention to revoke the will. The court held that the weight to be given to presumptions of fact depended on the circumstances of each case, and that the deceased's conduct in this case did not demonstrate an intention to revoke the will. Therefore, the presumption of revocation was rebutted, and the plaintiff was granted a grant of probate of the copy will. The court also found that the copy will was a true and accurate copy of the original will.

In conclusion, the court granted the plaintiff's application for a grant of probate of the copy will, and rejected the presumption of revocation of the original will. The court held that the weight to be given to presumptions of fact depended on the circumstances of each case, and that the deceased's conduct in this case did not demonstrate an intention to revoke the will. The court also found that the copy will was a true and accurate copy of the original will.

Orders