Di Domizio v Matalone
[2012] NSWSC 296
•12 March 2012
Supreme Court
New South Wales
Medium Neutral Citation: Di Domizio v Matalone [2012] NSWSC 296 Hearing dates: 12 March 2012 Decision date: 12 March 2012 Jurisdiction: Equity Division - Probate List Before: White J Decision: Refer to para [9] of judgment.
Catchwords: WILLS, PROBATE AND ADMINISTRATION - application for revocation of the grant of probate - no explanation as to what steps have been taken to complete distribution of estate - no satisfactory explanation as to why the administration of estate has not been completed - failure to comply with order for delivery of accounts - probate revoked Legislation Cited: Probate and Administration Act 1898 Category: Principal judgment Parties: Catherine Di Domizio (Plaintiff)
Salvatore Matalone (1st Defendant)
Gaetano Matalone (2nd Defendant)Representation: J Merkel (Plaintiff)
No appearance (Defendants)
Margiotta Solicitors (Plaintiff)
File Number(s): 2010/379023
Judgment
HIS HONOUR: This is an application for the revocation of a grant of probate. It relates to the estate of Teresa Matalone who died on 27 November 2005. By her will, she appointed her sons Gaetano Matalone and Salvatore Matalone as executors and trustees of her will. She gave the whole of her estate to her five children in equal shares. The plaintiff is the daughter of the deceased and entitled to one-fifth of the net estate.
Probate of the Will was given to the defendants Salvatore and Gaetano Matalone on 28 April 2006. These proceedings were commenced by summons filed on 15 November 2010. The relief then sought was an order that the plaintiff was entitled to payment of what was called a legacy of $68,240.69 from the estate and an order pursuant to s 84 of the Probate and Administration Act 1898, that the executors pay the plaintiff $43,240.69. The plaintiff deposes that she has received two payments totalling $25,000, the last being a payment of $20,000 made on 14 April 2010.
Appearances were entered by solicitors for the defendants who have since filed a Notice of Ceasing to Act. There is no appearance of the defendants today.
The matter came before me on 13 February 2012. There had been furnished to the Court a medical certificate in relation to one of the defendants saying that he was then unfit to travel but may be able to travel after 27 February 2012. I adjourned the proceedings to today. I made orders for the defendants to file and serve any affidavits they proposed to rely upon and noted the parties should expect the hearing would proceed today and no further adjournments should be expected unless very good cause could be demonstrated. No further application for an adjournment has been made.
The evidence read on the application includes an affidavit of the plaintiff's solicitor which annexes affidavits filed in the proceedings on behalf of the defendants. Mr Gaetano Matalone deposed on 14 February 2011 that the assets of the estate that were realised totalled a little over $400,000, that expenses had amounted to a little over $116,000 including over $67,000 for costs incurred to put the house into a saleable condition. He has filed a further affidavit setting out work he had done to put the house into a saleable condition and stated that although a charge at commercial rate for the value of his work was in excess of $150,000, he charged $50,000 for the labour involved. There is no explanation as to what steps if any have been taken to complete the distribution of the estate.
On 17 October 2011 the Registrar ordered that within 28 days the defendants verify and pass the executors' accounts of the estate. That order has not been complied with. The administration of the estate appears to have reached an impasse. The defendants have failed to comply with an order for provision of accounts. It appears that there is a substantial amount, substantial that is in terms of the size of the estate, that remains to be distributed. There is no satisfactory explanation as to why the administration of the estate has not been completed. The defendants have not appeared to explain the delays. It appears that the active steps of the administration have been left for Mr Gaetano Matalone. It appears, although the evidence is not clear about that, he is unable to complete his duties by reason of illness.
Whether the reason preventing the due administration of the estate is the ill health of one the executors or not, I am satisfied the due administration of the estate is being prevented by the conduct or incapacity of the executors. In the circumstances their failure to comply with the Registrar's order for delivery of accounts would itself be a sufficient ground for revoking the grant of probate and appointing another person as administrator of the estate.
A solicitor, Mr Ardino, who does not act for any party, has sworn an affidavit indicating that he is prepared to accept a grant. He undertakes to administer the estate according to law.
I make the following orders:
(1) Order that the grant of probate to the defendants be revoked.
(2) Order that letters of administration with the will of Teresa Matalone, dated 25 July 1996, annexed be granted to Mr Rocco Ardino, solicitor.
(3) Refer the proceedings to the Registrar to complete the grant.
(4) Order that within 28 days the defendants transfer all assets of the estate and documents within their possession, custody and power relating to the administration of the estate to Mr Ardino.
(5) Order the defendants pay the plaintiff's costs of the proceedings, including reserved costs.
(6) These orders may be entered forthwith.
Decision last updated: 30 March 2012
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