Di Cecco v Contini (No 2) - [2004] VSC 243

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION

No. Prob 29 of 2002

GIULIANA DI CECCO	Plaintiff
V
FULVIO CONTINI and MARIO CONTINI	Defendants

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JUDGE:	Whelan J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 June 2004
DATE OF JUDGMENT:	25 June 2004
CASE MAY BE CITED AS:	Di Cecco v Contini (No 2)
MEDIUM NEUTRAL CITATION:	[2004] VSC 243

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PRACTICE AND PROCEDURE - costs - probate matters - general rule - costs follow the event - two exceptions in probate matters - first where testator caused the litigation - second where circumstances led reasonably to an investigation of the will - second exception established in part - defendants ordered to pay plaintiff’s costs to specified date - otherwise no order as to costs.

Shorten v Shorten (No 2) [2003] NSWCA 60; Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R McGarvie	Perillo Adami & Frank
For the Defendants	Mr S Newton	Scomparin & Bernardi

HIS HONOUR:

In this matter I found for the plaintiff on 11 June 2004 and ordered that the will of Mr Armando Contini made 30 March 2001 be granted probate. I indicated that I would hear the parties on the question of costs and suggested that my reasons be considered by the parties before addressing this question.

I heard argument from counsel on the question of costs on 23 June 2004. The principles applicable to the determination of costs in probate matters such as this were not controversial, although their application to this case was.

As is well established, the general rule is that costs follow the event. Two exceptions apply to this general rule in probate matters. First, where the testator or those interested in the residue have been the cause of the litigation, the costs of an unsuccessful party may be paid out of the estate. Secondly, where the circumstances led reasonably to an investigation of the will, the parties may be ordered to bear their own costs.[1]
[1]Shorten v Shorten (No 2) [2003] NSWCA 60; Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244.

Originally the grounds relied upon by the defendants in this matter were twofold: lack of testamentary capacity, and undue influence by Giuliana Di Cecco. The undue influence ground was abandoned on the first day of the trial. The trial then solely concerned whether Mr Armando Contini had testamentary capacity.

Mr Newton of counsel for the defendants successfully submitted that there was a threshold doubt as to Mr Contini’s testamentary capacity. As stated in my judgment of 11 June 2004, this doubt was created by Mr Contini’s age, the number of wills he made over 3½ years, the increasingly disproportionate dispositions in these wills, and his consultations with the doctors. However, when investigated, the evidence revealed a very strong case in favour of Mr Contini having had testamentary capacity when his later wills were made, and, in…

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 Di Cecco v Contini (No 2)

Details

AGLC: Di Cecco v Contini (No 2) [2004] VSC 243
Case: [2004] VSC 243
Decision Date: 25 June 2004

CaseChat Overview and Summary

Di Cecco v Contini (No 2) involved a dispute over the estate of a deceased person. The plaintiff, Di Cecco, sought to recover costs incurred during the probate process from the defendants, Contini and others. The case was heard in the Supreme Court of New South Wales. The central legal issues were whether the defendants were liable for the plaintiff's costs under the exceptions established in probate matters, specifically whether the circumstances of the case warranted such costs or whether the testator had instigated the litigation.

The court examined the two established exceptions in probate matters for awarding costs. The first exception applies when the testator caused the litigation, while the second applies when the circumstances reasonably led to an investigation of the will. The court found that the second exception was partially met, as the circumstances did reasonably lead to an investigation of the will. However, the court did not find that the first exception applied, as there was no evidence that the testator had caused the litigation. Consequently, the defendants were ordered to pay the plaintiff's costs up to a specified date. The court declined to make any further order regarding costs.

The court's reasoning was grounded in the established principles of probate law and the specific circumstances of the case. By applying the relevant exceptions, the court determined that the defendants were liable for a portion of the plaintiff's costs. The final orders required the defendants to cover the plaintiff's costs up to a particular point in the litigation, reflecting the partial establishment of the second exception.

Orders