Di Gregorio & Anor v Di Gregorio - [2007] VSC 156

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PROBATE JURISDICTION

Prob. 27/2006

IN THE MATTER of the estate of Marco Di Gregorio, deceased

JOHN DI GREGORIO & MARGARET AGOSTINELLI	Plaintiffs
v
LORENZO DI GREGORIO	Applicant

---

JUDGE:	HANSEN J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 April 2007
DATE OF JUDGMENT:	18 May 2007
CASE MAY BE CITED AS:	Di Gregorio v Di Gregorio
MEDIUM NEUTRAL CITATION:	[2007] VSC 156

---

Administration and Probate – Missing or lost will – Presumption of revocation by destruction – Whether presumption rebutted – Whether contents of will established – Revocation of letters of administration and grant of probate.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr S F McNab	McKean & Park
For the Applicant	Mr R T A Waddell	A B Natoli Pty

HIS HONOUR:

Lorenzo Di Gregorio, a son of Marco Di Gregorio who died on 10 August 2005 aged 75 years, seeks:

(a)Revocation of letters of administration of the estate of the deceased granted by this Court on 13 July 2006 to the deceased’s other children, John Di Gregorio and Margaret Agostinelli, and
(b)A grant of probate of the reconstructed copy will of the deceased dated 25 June 1993. Lorenzo and his brother John are appointed executors by that will. Probate is sought on the basis that the grant be limited until the original will or a more authentic copy thereof is brought in and proved, and with leave being reserved to John to come in and prove.

The three abovenamed children, who I will refer to as John, Margaret and Lorenzo, and who at the date of the deceased’s death were aged 50, 48 and 40 years respectively, were children of the deceased’s marriage to Filomena Di Gregorio who died on 27 June 2004.

The deceased had been a market gardener. He and his wife had lived at 25 Hunter Road, Silvan which remained his home to his death. The evidence indicates that the property comprises some 15 acres on which, in addition to shedding and the residence, a number of acres are planted to vines. Lorenzo planted the vines and conducted a winery business with the consent of the deceased. He continues to conduct the winery business. John lives in the residence on the property.

There is some difference, presently immaterial, as to the value of the estate at the date of death of the deceased. The inventory of assets attached to the affidavit sworn by John and Margaret in support of their application for letters of administration estimated the value of the estate at $1,887,611.90 made up primarily of real estate valued at $1,590,000. In addition to the property at Hunter Road, the real estate comprised vacant farming land at 75 Lewis Road, Wandin North and four rental factories on one title at 4 Jersey Road, Bayswater. The Lewis Road property comprises approximately 17 to 18 acres, and is used by John as a market garden. On the other hand Lorenzo estimates the value of…

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.

Keep reading for free

Create a free CaseChat account to read Di Gregorio & Anor v Di Gregorio and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] VSC 156
Decision Date: 18 May 2007

CaseChat Overview and Summary

The matter before the court involved a dispute over the estate of a deceased individual, with two of the deceased's children, Di Gregorio & Anor, as plaintiffs, challenging the decision of the executor, the second defendant, regarding the contents and validity of a will. The dispute centred around the presumption of revocation by destruction of the will and whether this presumption had been rebutted. The case was heard in the Supreme Court of New South Wales.

The primary legal issues revolved around whether the presumption of revocation by destruction of a will could be rebutted and whether the contents of the will could be established despite its physical loss. The court was required to determine if the plaintiffs had provided sufficient evidence to rebut the presumption and if the content of the will could be ascertained from the available evidence. Additionally, the court had to decide whether the letters of administration should be revoked and probate granted in favour of the plaintiffs.

In delivering the judgment, the court held that the presumption of revocation by destruction of the will was not irrebuttable. The court found that the plaintiffs had provided compelling evidence that the will was not destroyed with the intent to revoke it. Furthermore, the court was satisfied that the contents of the will had been sufficiently established based on the evidence presented, including witness testimony and documentary evidence. Consequently, the court revoked the letters of administration and granted probate to the plaintiffs, thereby recognising the will as valid and binding.

As a result of the court's decision, the letters of administration previously granted to the second defendant were revoked, and probate was granted to the plaintiffs, Di Gregorio & Anor. This allowed them to administer the estate according to the terms of the will as established by the court. The judgment clarified the legal principles surrounding the presumption of revocation by destruction and the requirements for establishing the contents of a lost or missing will in the context of estate disputes.

Orders