Dowling v Ierino - [2025] TASSC 27

[2025] TASSC 27

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Dowling v Ierino [2025] TASSC 27
PARTIES:	DOWLING, Wendy Lynette
DOWLING, Alvin Bruce
v
IERINO, Orlando (as representative of the next of kin of
the late Nesta Yolandis HILL)
FILE NO:	1007/2010
DELIVERED ON:	1 May 2025
DELIVERED AT:	Hobart
HEARING DATE:	15 April 2025
JUDGMENT OF:	Daly AsJ
CATCHWORDS:

Succession – Execution – Attestation – In whose presence witnesses must sign – Each witness signed the purported will in the presence of the deceased, but not each other – Evidence proves the purported will embodies the testamentary intention of the deceased – Letters of Administration granted.

Aust Dig Succession [1059]

Legislation:

Wills Act 1992 (Tas) ss 10 and 26

Cases cited:
In the Estate of Williams (Deceased) (1984) 36 SASR 423
Hatsatouris v Hatsatouris [2001] NSWCA 408

Schlesinger v Bowman & Ors (2007) 16 Tas r 350

REPRESENTATION:

Counsel:

Applicants: T Barrett
Respondent: O Ierino

Solicitors:

Applicants: Tierney Law
Respondent: Ierino & Associates

Judgment Number:	[2025] TASSC 27
Number of paragraphs:	14

Serial No 27/2025 File No 1007/2010

WENDY LYNETTE DOWLING and ALVIN BRUCE DOWLING v ORLANDO
IERINO (as representative of the next of kin of the late Nesta Yolandis HILL)

REASONS FOR JUDGMENT

DALY AsJ 1 May 2025

1   By originating application filed 1 December 2010, the applicants apply for the following
orders:
(i)          That Letters of Administration with the will annexed be granted to the said Wendy Lynette Dowling and Alvin Bruce Dowling.
(ii)         That the costs of and incidental to this application be paid by the estate on a solicitor and own client basis.
(iii)        Such further or other consequential orders as the Court deems appropriate.

2             Before granting letters of administration, the Court must first be satisfied there is no reasonable doubt that the late Nesta Yolandis Hill (the deceased), intended the testamentary writing signed by her and dated 3 September 1993 to constitute her last will: Wills Act 1992, s 26.
3             The application is not opposed. The applicants submit that the evidence shows that it is beyond any reasonable doubt that Nesta Yolandis Hill (the deceased) intended the informal will to be her last will.
4            The evidence establishes the short facts set out in the applicants' submissions. The deceased Nesta Yolandis Hill is late of Spencer Nursing Home, Wynyard in Tasmania. She was born on 10 July 1902 and died on 7 May 2004, aged nearly 102 years. The deceased's estate consisted entirely of the real property situated at New Road Franklin, described in the purported will as "my property situated on New Road Franklin, Deed title number 2674-66" and the will provides for only one gift, being the New Road property bequeathed to the applicants.
5             On 3 September 1993, she purported to make her last will. The witness Julie Annette Evans signed the purported will at the same time as the deceased, but the other person who purported to sign as witness did not.…

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.

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Details

Case: [2025] TASSC 27
Decision Date: 1 May 2025

CaseChat Overview and Summary

In Dowling v Ierino, the parties involved were the applicants, Wendy Lynette Dowling and Alvin Bruce Dowling, who sought to have a will admitted to proof and letters of administration granted in relation to the estate of Nesta Yolandis Hill. The dispute centred on the validity of a purported will, with the central issue being whether the witnesses to the will signed it in the presence of each other and the deceased, as required by statute. The matter was heard in the Supreme Court of Tasmania.

The court was required to determine whether the witnesses to the will signed the document in the presence of each other and the deceased, as mandated by section 26 of the Wills Act. The applicants argued that the witnesses signed the will in the presence of the deceased but not each other, and that this was sufficient to satisfy the statutory requirements. The court had to consider whether the evidence presented proved that the purported will embodied the testamentary intention of the deceased, and whether the witnesses' signatures complied with the statutory requirements.

In reaching its decision, the court considered the evidence presented, including affidavits from the witnesses and other witnesses to the execution of the will. The court found that while the witnesses did not sign the will in the presence of each other, they did sign it in the presence of the deceased. The court was satisfied that the evidence proved that the purported will embodied the testamentary intention of the deceased and that the witnesses' signatures complied with the statutory requirements. Accordingly, the court admitted the will to proof and granted letters of administration to the applicants.

The court ordered that the will be uplifted from the relevant file and transferred to the Probate Registry of the Supreme Court of Tasmania. A certified copy of the will was also placed on the civil registry file. The applicants were excused from giving notice under Probate Rule 33, and the parties were granted liberty to apply for any further orders required to complete any grant of letters of administration or to give effect to that grant.

Orders

Orders of the court

It is ordered:

(1)

That pursuant to s 26 of the Wills Act the will exhibited to the affidavit of Paul Andrew Conde, sworn and filed on 1 May 2019, be taken to be the will of the deceased (the said will) and is admitted to proof in solemn form of law.

(2)

That the said will be uplifted from file 1007 of 2010 and transferred to the Probate Registry of

the Supreme Court of Tasmania.

(3)

That a certified copy of the said will be placed on the civil registry file 1007 of 2010.

(4)

That Wendy Lynette Dowling and Alvin Bruce Dowling be excused from giving notice under

Probate Rule 33.

(5)

That letters of administration with the said will annexed in solemn form of the last will of the late Nesta Yolandis Hill, dated 3 September 1993, is granted to Wendy Lynette Dowling and Alvin Bruce Dowling.

(6)

The parties have liberty to apply for any further orders required to complete any grant of

letters of administration or to give effect to that grant.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Applicants:	Tierney Law
Respondent:	Ierino & Associates