Coppola v Nobile (No 2)

Case [2012] SASC 129

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

COPPOLA & ANOR v NOBILE & ANOR (NO 2)

[2012] SASC 129

Judgment of The Honourable Justice Stanley

10 August 2012

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - KNOWLEDGE AND APPROVAL OF CONTENTS - GENERALLY

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - GENERALLY

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - UNDUE INFLUENCE - GENERALLY

Action for grant of probate in solemn form – the plaintiffs are executors in a will executed by the deceased on 2 June 1992 (the 1992 will) – the plaintiffs seek an order pronouncing the force and validity of the 1992 will – or in the alternative, the first plaintiff seeks a grant of probate in solemn form of a will made by the deceased on 18 April 1972 (the 1972 will).

The first defendant denies the deceased had capacity to execute either will – the first defendant claims the deceased did not understand the contents of either will which were both in English, not her native Calabrese dialect – in the alternative, the first defendant claims if the deceased understood the 1992 will, it was executed under the undue influence of the first plaintiff – the first defendant claims if the 1972 will is valid, it was revoked by the 1992 will.

The second defendant puts the plaintiffs to proof of the1992 will – if the 1992 will is not admitted to probate, the second defendant admits a grant should be made in relation to the 1972 will.

Held: The 1992 will was duly executed - the deceased had testamentary capacity – the plaintiffs have failed to discharge their onus of proving the deceased knew and understood the terms of the 1992 will – as the deceased did not understand the terms of the 1992 will, it is not open to find that the will was executed under undue influence.

The 1972 will was duly executed – the deceased knew and approved of the terms of the 1972 will – the deceased satisfied the criteria for testamentary capacity – as the 1992 will has not been found to be valid, the revocation of earlier wills is ineffective – the Court pronounces for the force and validity of the 1972 will.

Wills Act 1972 (SA) s 22; Powers of Attorney and Agency Act 1984 (SA) s 5, s 6, referred to.
Thomas & Anor v Nash (2010) 107 SASR 309; Nock v Austin (1918) 25 CLR 519; Paraskov v Paraskos [2002] WASC 109, applied.
Re Estate of Griffin (Deceased) (1951-2002) 217 ALR 284; Nicholson v Knaggs [2009] VSC 64, discussed.
Roos v Karpenkow (1998) 71 SASR 497; Carney & Ors v Hall (2011) 111 SASR 424; Re Estate of Chomiak [2012] SASC 27, considered.

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AGLC
Coppola v Nobile (No 2) [2012] SASC 129
Case
[2012] SASC 129
Decision Date

CaseChat Overview and Summary

In Coppola v Nobile (No 2), the Court considered the validity of a will executed by Vittoria Fazzari Coppola in 1972. The deceased, who was born in Italy and migrated to Australia with her family, passed away on 31 August 2009. The dispute centred on the validity of two wills: the 1972 will and a 1992 will. The plaintiffs, Severina Coppola and Francesco Coppola, sought to have the 1972 will recognised as the deceased's valid last will and testament, while the defendants, Grazia Coppola and Concetina Coppola, argued for the validity of the 1992 will.

The legal issues before the Court included whether the deceased had the requisite testamentary capacity to execute the 1992 will, and whether the 1992 will was validly executed in accordance with the requirements of the Wills Act. The Court also considered whether there was evidence of undue influence that could have affected the deceased's decision-making capacity.

In its judgment, the Court found that the deceased lacked testamentary capacity when she executed the 1992 will, due to a combination of advanced dementia and depression. The Court determined that the deceased did not know or approve of the contents of the 1992 will, and that there was evidence of undue influence exerted by the second defendant. Consequently, the Court held that the 1992 will was not validly executed. The Court found the 1972 will to be validly made and recognised it as the deceased's last will and testament.

The Court will hear further submissions on the issue of costs associated with the proceedings.

Orders

Orders of the court

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Background

Background to the litigation

However, as White J noted in Carney & Ors v Hall:[14][T]here seems no reason in principle why evidence tending to show the exercise of undue influence (in the sense of coercion) may not be capable of creating a suspicion that the testator did not know or approve of the terms of the document in question as a will, and accordingly have the effect of displacing the presumption in favour of knowledge and approval. … In many cases, the matters relied upon for undue influence may also give rise to a suspicion that the testator did not know or approve of the content of the document. [14] (2011) 111 SASR 424 at 432 [29].Background The deceased was born Vittoria Fazzari on 12 December 1924 in the village of San Martino in Reggio Calabria, Italy. She died on 31 August 2009. On 24 January 1946 she married Giuseppe Coppola. They married in Italy. Mr Coppola was two years older than the deceased. He also was born in San Martino in Reggio Calabria. The first defendant, Grazia Coppola, was born in San Martino, Reggio Calabria, on 6 December 1946. On 8 May 1950 the deceased gave birth to a son, Francesco “Frank” Coppola, in San Martino, Reggio Calabria. The deceased’s younger brother, Salvatore Fazzari, gave evidence that the deceased had no education in Italy.[15] She worked on the family farm. Mr Fazzari was born in 1942, however, so his understanding of his sister’s lack of education must be hearsay. Nonetheless, he gave evidence that his sister could not read or write in Italian. [15] T 849. In 1952 Giussepe Coppola migrated to Australia and settled in Adelaide on land in Lockleys. He was not accompanied by his wife or children. Later that year he purchased a block of land at Adele Avenue, Kidman Park. In 1953 he was joined in Australia by his wife and two children. They lived at Lockleys. The following year the family moved to the property at Adele Avenue, Kidman Park. On 7 February 1956 the first plaintiff, Severina Coppola, was born in Adelaide. On 5 January 1958 the second defendant, Concetina Coppola, was born in Adelaide. Domenico Nobile was born in San Martino, Reggio Calabria, on 29 May 1941. He migrated to Australia in about 1956. The following year, he met the Coppola family, including Grazia Coppola. Mr Nobile and Grazia came to know each other. Their relationship developed to a point whereby, when she was about 13 years of age, they decided they wanted to marry at an appropriate time in the future. It appears Grazia’s parents were informed of their intentions. The evidence is not entirely clear, but it seems that Grazia’s parents may have received the news with equanimity initially, but after a short period of time they made clear their opposition to the proposal. The deceased was particularly strong in her opposition to the proposed marriage. The evidence suggests that she considered Mr Nobile to be an unsuitable match for Grazia, given he owned no property and was a person of very limited means. The evidence suggests that from that time onwards, she behaved towards Mr Nobile in a way which made him feel unwelcome in the Coppola home.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The second defendant pleaded that the 1972 will, if it was valid, was expressly revoked in 1992 in accordance with the provisions of s 22 of the Wills Act. It is unclear to me whether the second defendant pressed this argument in closing submissions. In any event, the revocation of previous wills, contained in the 1992 will, is only effective if the 1992 is valid. Having found against the validity of the 1992 will, the purported revocation of earlier wills in the 1992 will is ineffective.Conclusion I am not satisfied that the 1992 will was validly made. I am satisfied that the 1972 will was validly made. The Court pronounces for the force and validity of the last will and testament of Vittoria Coppola, late of 7 Martins Road, Salisbury Downs in the State of South Australia, the abovenamed deceased, being the document dated 18 April 1972 and propounded on behalf of the plaintiffs. I will hear the parties on the question of the costs of the action.

Ratio Decidendi

Legal Principle Established

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