Di Rosa v Relquyst
[2020] SASC 189
•9 October 2020
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 189Civil: 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 proceedings in the civil jurisdiction seeking to prove the 2012 will in solemn form (“the proceedings”).
The first respondent to the proceedings is Gene Lui Relquyst (“Gene”). The second respondent is Dragica Mihalovic (“Dragica”). The third and fourth respondents are the Flinders Medical Centre and Foundation Daw Park respectively (“the Charities”).
Gene’s affidavit
Gene deposed in an affidavit sworn 29 January 2020 (“his affidavit”) that he is the second eldest of the six children of Ernesto and Ernesto’s former wife, that his birth name is Pier Luigi and that he changed his name by deed poll in 1985 to Gene Lui Relquyst.
Gene deposed that in 1968, when he was nine years old, he, Ernesto, his mother and his five siblings (“the family”) arrived in Australia from Italy. He said that in 1978 the family returned to Italy. In 1979, Ernesto and his mother separated whereupon Ernesto and Gene returned to Australia.
Gene stated that his elder brother Antonio resided in South Australia for a short period of time. However, in 1983, following an assault against Ernesto by Antonio, Ernesto obtained a restraining order against Antonio. Gene deposed that he has not had contact with Antonio since 1996 and does not know his whereabouts. He also deposed that he has had no contact with any of his other siblings, that he does not know whether they or his mother are alive and, if they are alive, where they are living, their birth dates or the surname they use.
Gene asserted that he is the only child of Ernesto who maintained a relationship with him, that he was a loving a dutiful son, and that there was never a significant period of estrangement between them.
Ernesto’s Estate
The principal assets in Ernesto’s estate (“the estate”) comprise residential property at Richmond, South Australia (“the property”), valued by the Valuer‑General at $570,000, and $11,899.76 as at the date of his death in a savings account.
Ernesto’s wills
The 2012 will revokes a will Ernesto made on 3 August 2009 (“the 2009 will”).
Gene deposed in his affidavit that Ernesto also handwrote a testamentary document on 21 July 2017 in Italian (“the 2017 document”). The original of the 2017 document, being a notepad and covering note, was tendered during the hearing of the application on 25 June 2020 and received as Exhibit 1R3. Gene sought an order in his defence that the 2017 document be admitted to probate as Ernesto’s last will pursuant to s 12(2) of the Wills Act 1936 (SA) (“the Wills Act”). In the alternative, he sought an order that the 2009 will be admitted to probate in solemn form and the 2017 document be admitted as a codicil to the 2009 will pursuant to s 12(2) of the Wills Act.
Gene pleaded in his defence that on 8 September 2017, Dragica, who is the principal beneficiary of the 2012 will, executed a deed of disclaimer disclaiming all her entitlements pursuant to the 2012 will. Dragica, who is referred to as Ernesto’s friend in the 2009 will and de facto spouse in the 2012 will, did not file a notice of address for service or otherwise participate in the proceedings.
The deed of family arrangement
Mr Di Rosa, Gene, and the Charities have entered into a deed of family arrangement (“the deed”) compromising the proceedings. Clause 2 of the deed, states:
2.The parties hereby consent and agree to do all things necessary to permit Lui to make an application for orders to the general effect of:
2.1. The 2017 document being admitted to probate as a will of Ernesto under subs. 12(2) of the Wills Act.
2.2. Alternatively, the 2012 Will being admitted to probate with the 2017 document being admitted as a codicil to that will under subs. 12(2) of the Wills Act.
2.3. In the further alternative, the 2012 Will being pronounced as the last trust will of Ernesto, no order being made in favour of the 2017 document.
2.4. In each case, Lui being appointed as administrator of Ernesto’s estate, on the basis that there be a grant of letters of administration with the relevant testamentary instrument being annexed.
2.5. That any requirement that any other persons be notified of the proceedings to be dispensed with.
Dragica’s disclaimer
It is to be noted that Dragica is not a party to the deed. Gene’s solicitor explained in her affidavit sworn 13 July 2020 that:
4.On 25th June 2020 I telephoned Ms Melissa Yule of Adelta Legal who advised as follows:
(a) That in or around August – September 2017, Dragica attended on her for the purposes of seeking advice and drawing up a deed of disclaimer to disclaim any interest in [Ernesto’s] estate. Exhibited hereto and marked with the letters “GAC1” is a copy of the signed Deed of Disclaimer.
(b) That Ms Yule gave Dragica legal advice with respect to the Deed of Disclaimer.
(c) Once the Deed of Disclaimer was executed, a copy was sent to the Applicant Mr Di Rosa.
(d) That following the issuing of the within proceedings, Dragica was served with the proceedings by the Applicant, Mr Di Rosa.
5.No Notice of Address for Service was filed by Dragica or on her behalf.
6.At the hearing of these proceedings before Judge Bochner on 5th July 2020, Ms Yule appeared on Dragica’s behalf and informed the Court that Dragica did not wish to participate in the proceedings and sought to be excused from all future Court attendances.
7.An order was made excluding Dragica from all Court attendances. A copy of the record of outcome from this hearing is exhibited hereto and marked with the letters “GAC2”.
8.On 14th November 2019 a settlement conference was held and the matter resolved between the other parties in principle. Dragica did not participate in the conference.
9.On 31st January 2020 following the settlement conference between the parties, I emailed a draft copy of the Deed of Family Arrangement to all parties, including Dragica via Adelta Legal.
10.On 18th February 2020 I received an email from Ms Yule confirming that Dragica would not be signing the Deed of Family Arrangement or any other documentation as she had already signed the Deed of Disclaimer.
By the deed of disclaimer, Dragica disclaimed her entitlement under the 2012 will and thereby divested her right to call upon Ernesto’s executor to administer any benefit afforded to her under the 2012 will (should the 2012 will be admitted to probate).[1]
[1] Probert v Commissioner of State Taxation (1998) 72 SASR 48 at 55.
Gene’s application
Gene now makes application pursuant to r 254.9(3) of the Uniform Civil Rules 2020 (SA) seeking orders in the terms agreed in the deed, listed above. Determination of the application was referred to me pursuant to r 64(4) of the Probate Rules 2015 (SA) (“the Probate Rules”).
The questions for my determination are:
(1)Which document/s should be admitted to probate?
(2)Should Gene be appointed administrator of Ernesto’s estate?
(3)Should the requirement that all persons who may be prejudiced by the application be notified and consent to it pursuant to r 64 of the Probate Rules be dispensed with?
In considering which document should be admitted to proof, it is necessary to consider the 2009 will and 2012 will.
2009 will
The 2009 will appointed Dragica sole executor, gave her a pecuniary legacy of $50,000, a right to reside in the property for her lifetime and gave the residue of the estate to Gene. Clause 7 specifically excluded Ernesto’s other children from any benefit under the 2009 will as follows:
I DECLARE that I specifically exclude my other children ANTONIO PIGNATARO IRENE PIGNATARO SONIA PIGNATARO BALDOVINO PIGNATARO AND ALESSANDRO PIGNATARO from any benefit under this my Will as I have had no contact with any of them for over twenty-five years (from the time my former wife PAOLINA CAREDDU and I divorced) and it is my express wish that they not share in my estate.
(Emphasis in original)
2012 will
The 2012 will appoints Mr Di Rosa sole executor.
Clauses 6, 7, and 8 provide:
6.I GIVE AND DEVISE to my de facto spouse DRAGICA MIHALOVIC of […] Richmond in the State all monies held by me in any account or accounts held by me in any bank or other financial institution.
7.I GIVE to my trustee my residence at […] Richmond in the said State or such principal place of residence owned by me at the date of my death including all my furniture and personal effects contained therein UPON TRUST to permit my de facto spouse the said DRAGICA MIHALOVIC to have the use, occupation and enjoyment thereof until the “date of vesting” she paying all rates and taxes and other outgoings thereon and keeping the same in a good and habitable state of repair, fair wear and tear damage by insured risks exempted and she keeping the same insured against risks usually insured for domestic residences to the satisfaction in all things of my trustee AND I EMPOWER my trustee at the request of my de facto spouse the said DRAGICA MIHALOVIC to sell the said residence and to apply the proceeds of such sale in the purchase of another residence to be held upon the same trusts including the trust for the sale and repurchase as are herein declared in respect of the original residence AND I DIRECT that from and after the “date of vesting” the said residence shall fall into and form part of my residuary estate as in hereinafter defined.
8.I DECLARE that the words “date of vesting” wherever herein appearing shall mean the earliest of the following events:
(a) the date of death of the said DRAGICA MIHALOVIC;
(b) the date that the said DRAGICA MIHALOVIC permanently vacates the said residence;
(c) the date upon which the said DRAGICA MIHALOVIC commences living in a close personal relationship with another person within the meaning of the Domestic Partners Property Act 1996 (SA).
(Emphasis in original)
The residue of the estate is given to the Charities in equal shares.
Clause 11 explains why Ernesto’s children do not benefit under the 2012 will and specifically refers to Gene as follows:
11.I DECLARE that I have not provided for any of my children in this will because except for my son PIER LUIGI RELQUYST I have had hardly any contact from them in thirty years since my separation and divorce from their mother and in the case of my son the said PIER LUIGI RELQUYST he has only visited me occasionally in the last seven years and his disrespect and ill will towards me is so great that he changed his surname from “PIGNATARO” to “RELQUYST” to spite me.
(Emphasis in original)
Gene deposed in his affidavit that, at around the time of the making of the 2012 will, there was an argument between his wife and Dragica which resulted in tension between him and Ernesto and that not long after the argument Ernesto executed the 2012 will. Gene asserted that the allegation that he did not visit Ernesto regularly is simply untrue, that it is not reflective of their long standing and loving relationship and that the 2012 will was made at a time when there was a tension in his family. Gene stated that he changed his name by deed poll from Pier Luigi Pignataro to Gene Lui Relquyst in 1985 and that the reason he did so had no relevance to his family or his father.
2017 document
Gene said that the 2017 document was created by Ernesto on 21 July 2017 whilst he, his sons Cody Relquyst (“Cody”) and Erik Relquyst (“Erik”), and Cody’s de facto partner, Kiara Lee Argent (“Kiara”), were present at Ernesto’s home.
The 2017 document is a handwritten note in Italian on a page in a small spiral bound notebook which reads as follows:
CAMBIARE LUI! No, i cinquanta mila Doll., ma bensi che deve stare in questa casa Per Sempre fino alla sua morte. Poi va a mio figlio Pier Luigi, non a nessun altro.
Translated from Italian to English, the handwritten note reads: [2]
HE MUST CHANGE! No, to the fifty thousand dollars, but rather that he/she must stay in this house forever until his/her death. Then it should go to my son Pier Luigi, not to anyone else.
[2] The translation of the 2017 document is exhibited to the affidavit of Gene Lui Relquyst sworn 29 January 2020, marked “GLR 3”.
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.
In answering the question of whether the 2017 document should be admitted to probate under s 12(2) of the Wills Act, the starting point is an examination of the words of the document itself. It is convenient to again set out the English translation of the covering paper and the 2017 document:
THE NEWEST
HE MUST CHANGE! No, to the fifty thousand dollars, but rather that he/she must stay in this house forever until his/her death. Then it should go to my son Pier Luigi, not to anyone else.
Gene’s counsel principally referred to the cases of Boettcher v Driscoll (“Boettcher”)[3] and Steggall v Quartermain (“Quartermain”)[4] to support the submission that the 2017 document should be admitted to probate as the will of Ernesto. In Boettcher, a note handwritten by the testator was admitted to probate as a codicil to the testator’s will. The note, which was dated and signed by the testator, read “I Patricia Driscoll wish to amend my will to read – Michael may have the use of the house for as long as he needs it”. The Court was satisfied that the document exhibited testamentary intention because it was clear as to its intended purpose, written with a degree of formality, signed and dated. The Court also had regard to the fact that the document was stored amongst other testamentary documents. However, the gift contained in the document was found to be uncertain and as a result failed.
[3] Boettcher v Driscoll & Anor (2014) 119 SASR 523.
[4] Quartermain Estate: Steggall v Quartermain [2009] NSWSC 553.
Quartermain is a judgment of the Supreme Court of New South Wales concerning s 8 of the Succession Act 2006 (NSW), wherein an informal codicil was admitted to probate. The relevant document was a note handwritten by the testator in a small spiral notepad, not dissimilar to the 2017 document. The Court drew inferences from the use of “the language of will‑making” in the document, chiefly the statements of “I bequeath you…”, “I leave you…”, and “the balance of value above what has been bequeathed…”. The Court also had regard to the fact that the document was left in a prominent location in the testator’s home where it could easily be discovered.
The 2017 document is drafted in terms of command, namely “HE MUST…” and “she must…”, in contrast to the language of will making evidenced in the informal wills admitted to probate in Boettcher and Quartermain.
The 2017 document deals with the property, by referring to “this house”, which is the principal asset of Ernesto’s estate. On one view, the words “No, to the fifty thousand dollars, but rather that he/she must stay in this house forever until his/her death” can be construed as bequeathing a life interest in the property, however, it is on the face of the document ambiguous as to whom that statement pertains. Counsel for Gene submitted that this statement refers to Dragica, who was entitled to a pecuniary legacy of $50,000 and a right to reside in the property under the 2009 will, and a right to reside in the property and all monies in Ernesto’s bank accounts under the 2012 will. It was submitted that the 2017 document should not be viewed as “testamentary intentions out of the air” but rather “testamentary intentions in respect of the previous wills”. Having regard to the 2009 will and the 2012 will, I am satisfied that the words of the 2017 document refer to the previous testamentary wishes of Ernesto.
I speculate, noting that there was less than $12,000 in Ernesto’s bank account as at the date of his death, that it may be that Ernesto was affirming the gift in the 2012 will of “all monies” in his bank accounts to Dragica, aware that there was insufficient cash in hand to gift Dragica $50,000 (the pecuniary legacy under the 2009 will). There is insufficient evidence to arrive at any conclusion regarding the reference to the $50,000 other than the fact it was the amount of the bequest in the 2009 will.
Counsel for Gene submitted that the words on the covering note of “THE NEWEST” are significant suggesting an intention to revoke previous testamentary documents. There exists an obvious difficulty in drawing an inference from the words “THE NEWEST” in isolation. Had the words read “THE NEWEST WILL”, or the 2017 document itself had contained words to the effect of “this is a will”, the inference submitted by counsel may more readily be drawn. However, having regard to the apparent references to the previous wills and in considering the circumstances as a whole, I am satisfied that the words “THE NEWEST” support the proposition that the 2017 document contains the latest iteration of Ernesto’s testamentary wishes. As such, those words elevate the significance of the 2017 document and exhibit testamentary intention.
The evidence as to the circumstances in which the 2017 document was created is also of significance. The present circumstances are distinguishable from the aforementioned cases of Boettcher and Quatermain in that the creation of the 2017 document was observed by others and Ernesto gave the 2017 document to Gene prior to his death. Counsel for Gene submitted that the 2017 document was presented with some solemnity to Gene and that inferences as to the testamentary intention of Ernesto can be drawn from that act. The act of handing over a document to another person for safe keeping, in circumstances where the testator regards the document as important, is a factor that supports the existence of testamentary intention.[5] Given the fact that Ernesto, immediately after creating the document, sought out Gene and gave the 2017 document to him with tears in his eyes, it is clear that the 2017 document held an elevated level of significance to Ernesto. Indeed, it can hardly be said that Ernesto would have created the document and handed it to Gene in such a fashion had he not intended it to have some form of effect or significance. On the other hand, I am conscious of the fact that Ernesto did not say any words at the time of handing over the 2017 document to Gene that unequivocally support the exhibition of testamentary intention. Rather, Ernesto simply said “put this in your pocket”. There is no evidence before me that suggests that Ernesto said anything further to Gene or any other person in respect of the 2017 document after 21 July 2017. Nonetheless, the manner in which Ernesto handed the 2017 document to Gene supports the notion that Ernesto intended for the document to have testamentary effect.
[5] In the Estate of Masters (1994) 33 NSWLR 446 at 469 per Priestley JA.
I also have regard to the fact that the 2009 and 2012 wills were drawn by solicitors, which suggests Ernesto had a degree of awareness of the formal requirements of will making. In the circumstances where Ernesto was in ill‑health at the time of creating the 2017 document and would have likely incurred significant difficulty in obtaining legal assistance in drawing a new will, I place little weight on the mere existence of the previous wills in determining the question of testamentary intention as it concerns the 2017 document.
In circumstances where the 2017 document does not contain an express or implied revocation clause, does not deal with the entirety of Ernesto’s estate, and is drafted in a manner that alters and has reference to testamentary intentions expressed in the 2012 will, I find that Ernesto intended the 2017 document to be a codicil to the 2012 will.
I am satisfied that the 2017 document expresses the testamentary intentions of Ernesto and that Ernesto intended it to constitute a codicil to the 2012 will. I would admit the 2017 document to proof as a codicil to the 2012 will pursuant to s 12(2) of the Wills Act.
The grant
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.
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