Di Rosa v Relquyst - [2020] SASC 189

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
In the Estate of PIGNATARO (DECEASED)
DI ROSA v RELQUYST & ORS
[2020] SASC 189
Decision of The Honourable Justice Bampton
9 October 2020
SUCCESSION - MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - GENERALLY
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - WHERE SEVERAL INSTRUMENTS
Application pursuant to r 254.9(3) of the Uniform Civil Rules 2020 (SA) seeking orders in terms agreed in a deed of family arrangement – determination of the application referred to a Judge in court pursuant to r 64(4) of the Probate Rules 2015 (SA) – whether an informal document handwritten in Italian should be admitted to proof as the last will and testament of the deceased or as a codicil to a will made by the deceased on 27 November 2012 in accordance with the Wills Act 1936 (SA) – whether the requirement for the consents of all persons who may be prejudiced by the order sought to admit the informal document can be dispensed with.
HELD: The requirement for the consents of all persons who may be prejudiced by the application prescribed by the Probate Rules 2015 (SA) is dispensed with – pursuant to s 12(2) of the Wills Act 1936 (SA) the informal document to be admitted to proof as a codicil to the last will of the deceased dated 27 November 2012 even though the codicil has not been executed in accordance with the formalities required by the Wills Act 1936 (SA) – upon the applicant making application for a grant of letters of administration with the will and codicil annexed in the estate of the deceased in a form acceptable to the Registrar of Probates, the Registrar is directed to issue the grant.
Wills Act 1936 (SA) s 12(2); Uniform Civil Rules 2020 (SA) r 254; Probate Rules 2015 (SA) r 64; Succession Act 2006 (NSW) s 8, referred to.
Boettcher v Driscoll & Anor (2014) 119 SASR 523; Quartermain Estate: Steggall v Quartermain [2009] NSWSC 553, discussed.
In the Estate of Masters (1994) 33 NSWLR 446; Re Swale [1940] SASR 391; Probert v Commissioner of State Taxation (1998) 72 SASR 48, considered.

In the Estate of PIGNATARO (DECEASED)
DI ROSA v RELQUYST & ORS
[2020] SASC 189
Civil: Application
BAMPTON J.
Background

Ernesto Antonio Tomaso Pignataro (“Ernesto”) died on 8 August 2017, a divorced man, aged 84 years, leaving a will dated 27 November 2012 (“the 2012 will”). The executor named in the 2012 will is the solicitor, Aladino Di Rosa (“Mr Di Rosa”).
Ernesto’s death certificate records that he was married to Paola Careddu for 23 years and that his children are Antonio, Lui, Irene, Sonia, Baldovino, and Alessandro. The certificate also records Antonio’s year of birth as 1956 and Lui’s date of birth as 4 August 1958. There is no record of the year or date of birth of the other four children.
Mr Di Rosa commenced these…

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 Rosa v Relquyst

Details

AGLC: Di Rosa v Relquyst [2020] SASC 189
Case: [2020] SASC 189
Decision Date: 9 October 2020

CaseChat Overview and Summary

The case of Di Rosa v Relquyst concerns a dispute over the admissibility of an informal handwritten document as a codicil to an existing will. The application was brought pursuant to rules of the Uniform Civil Rules 2020 (SA) and the Probate Rules 2015 (SA), and the case was referred to a Judge in Court. The central issue was whether the informal document, written in Italian and lacking formal execution, should be admitted as the deceased's last will and testament or as a codicil to the deceased's will dated 27 November 2012. Additionally, the court had to decide whether the requirement for the consents of all persons who may be prejudiced by the application could be waived.

The court found that the requirement for the consents of all persons who may be prejudiced could indeed be dispensed with. This conclusion was based on the evidence that Dragica, who had executed a disclaimer and sought legal advice, did not need to be notified and provide consent. Moreover, Gene's siblings, who likely lived overseas and had been out of contact for many decades, were also excluded from needing to consent due to the explicit exclusion from benefits in the 2009 and 2012 wills. The court determined that the informal document expressed the testamentary intentions of the deceased, Ernesto Antonio Tomaso Pignataro, and that he intended it to constitute a codicil to his 2012 will, even though it did not comply with the formalities required by the Wills Act 1936 (SA). Consequently, the 2017 document was admitted to proof as a codicil to the 2012 will.

In accordance with the deed of family arrangement, the court ordered that Gene Lui Relquyst be appointed as the administrator of Ernesto's estate, with the 2012 will and 2017 document annexed. The Registrar of Probates was directed to issue the grant of letters of administration upon Gene's application, provided the documents were in a form acceptable to the Registrar. The court made clear that no formal order need be drawn up for this purpose.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Gene deposed that the notebook was handed to him by Ernesto covered by a piece of paper with the words “IL PIÙ NUOVO” written on it. Translated from Italian to English, those words read “THE NEWEST”.The affidavit evidence regarding the 2017 document The evidence regarding the 2017 document is deposed to by Kiara in her affidavit sworn 29 January 2020, by Erik in his affidavit sworn 5 March 2020, and by Gene in his affidavit. At the time the 2017 document was created, Cody had left Ernesto’s home to purchase some materials from a nearby store while Gene was in the backyard of the house welding a bed frame for Ernesto’s bed. Kiara and Erik were sitting with Ernesto in his bedroom, talking jovially and listening to music. Kiara and Erik observed Ernesto holding a notebook. Kiara saw Ernesto write in the notebook, although she did not understand what he had written as it was in Italian. Ernesto asked Erik to bring Gene inside so he could speak with him. Gene entered the bedroom and spoke to Ernesto in Sardo, a dialect of Italian. Ernesto asked Gene to get a shoe box from another room and bring it to him, which he did. The shoe box contained a large number of photographs of Gene’s children and a number of Ernesto’s personal items. Whilst Gene was holding the shoe box, Ernesto handed Gene the 2017 document. Ernesto placed his hand firmly over Gene’s and said to him in Italian “put this in your pocket”, with tears in his eyes. Gene deposed that after receiving the 2017 document he immediately went outside to continue welding and it was not until three weeks later that he properly read the document. In the period of time between being handed the 2017 document and Ernesto’s death, Gene’s primary focus was on securing aged care placement for Ernesto. As a result, he did not consider the 2017 document or its significance at that time. Rule 64 of the Probate Rules 2015 I am satisfied that Dragica, having executed the disclaimer and having apparently sought legal advice, does not need to be notified and provide her consent to the application to admit the 2017 document to probate. As to Gene’s siblings, I have had regard to the evidence that they most likely live overseas and have not been in contact with Gene or Ernesto for many decades. It is also significant that the 2009 will and 2012 will specifically exclude them from benefiting from Ernesto’s estate. In the circumstances, I dispense with the requirement for Gene’s siblings to be notified and to consent to the application in accordance with r 64 of the Probate Rules.Which document/s should be admitted to probate? There is no dispute that the 2012 will satisfies the formalities of s 8 of the Wills Act.Is the 2017 document an informal will? Clearly, the 2017 document does not satisfy any of the formal requirements of a will prescribed by s 8 of the Wills Act. It is unsigned, undated, does not bear Ernesto’s name, and does not contain a revocation clause. For the 2017 document to be admitted to probate pursuant to s 12(2) of the Wills Act, I must be satisfied that it expresses the testamentary intentions of Ernesto and that Ernesto intended the document to constitute his will or that he intended it to constitute his codicil.

Decision

Reasons for decision

BAMPTON J

The 2012 will appoints Mr Di Rosa as executor, whilst the 2017 document is silent on the issue. In accordance with clause 2.4 of the deed, counsel for Gene invites the Court to make an order that he be appointed as administrator of Ernesto’s estate. Gene’s counsel submitted that such an order should be made in accordance with the Court’s inherent special circumstances jurisdiction.[6] I am satisfied, noting the consents of Mr Di Rosa and the Charities to the making of such an order and the fact that Gene is the largest beneficiary of the estate pursuant to the deed, that it is appropriate to order that there be a grant of letters of administration with the 2012 will and 2017 document annexed to Gene.[6] Re Swale [1940] SASR 391.Conclusion I thereby make the following orders:(1)The requirement for the consents of all persons who may be prejudiced by the application is dispensed with.(2)Pursuant to s 12(2) of the Wills Act 1936 (SA), the 2017 document Exhibit 1R3, initialled by me and held by the Probate Registry, be admitted to proof as a codicil to the last will of Ernesto Antonio Tomaso Pignataro dated 27 November 2012 even though the codicil has not been executed in accordance with the formalities required by the Wills Act.(3)Upon Gene Lui Relquyst making application for a grant of grant of letters of administration with the will and codicil annexed in common form in the estate of Ernesto Antonio Tomaso Pignataro in a form acceptable to the Registrar of Probates, the said Registrar is directed to issue the grant.(4)Order need not be drawn up.

Ratio Decidendi

Legal Principle Established

Established by: BAMPTON J

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