Fazio v Naso - [2016] WASC 385

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: FAZIO -v- NASO [2016] WASC 385

CORAM: MASTER SANDERSON

HEARD: 21 NOVEMBER 2016

DELIVERED : 24 NOVEMBER 2016

FILE NO/S: CIV 1206 of 2016

MATTER :The Estate of MARIA ANTONINA FAZIO late of 40 Skeahan Street, Spearwood, Western Australia, Retired, deceased.

BETWEEN: SEBASTIANO GIUSEPPE FAZIO as Executor of the Will of MARIA ANTONINA FAZIO
Plaintiff
AND
BIANCA NASO as Executor of the Will of MARIA ANTONINA FAZIO
First Defendant
NUNZIATA MONASTRA as Beneficiary under the Will of MARIA ANTONINA FAZIO
Second Defendant
ERIGO FAZIO as Beneficiary under the Will of MARIA ANTONINA FAZIO
Third Defendant
SEBASTIANO GIUSEPPE FAZIO as Beneficiary under the Will of MARIA ANTONINA FAZIO
Fourth Defendant
FRANCESCO FAZIO as Beneficiary under the Will of MARIA ANTONINA FAZIO
Fifth Defendant

Catchwords:

Probate - Grant of administration ad colligenda bona defuncti - Turns on own facts

Legislation:

Nil

Result:

Grant made

Category: B

Representation:

Counsel:

Plaintiff:     Dr J J Hockley
First Defendant              :     Mr J G M Fiocco
Second Defendant         :     Mr J G M Fiocco
Third Defendant            :     No appearance
Fourth Defendant           :     No appearance
Fifth Defendant              :     No appearance

Solicitors:

Plaintiff:     Success Legal
First Defendant              :     Slater & Gordon Lawyers
Second Defendant         :     Slater & Gordon Lawyers
Third Defendant            :     No appearance
Fourth Defendant           :     No appearance
Fifth Defendant              :     No appearance

Case(s) referred to in judgment(s):

Re Cohen (dec) [1975] VR 187

MASTER SANDERSON: This is the plaintiff's motion for a grant of administration ad colligenda bona defuncti. Literally translated that means the plaintiff is seeking a form of limited administration 'to collect the deceased's goods'. The first and second defendants opposed the application. They did so on two grounds. First, they said the facts of this case did not provide the jurisdictional basis for such a grant. Second, they said that even if such a basis existed the facts were not such as to warrant the appointment of an administrator in this case.
The relevant facts for the purposes of this application are as follows. Maria Antonina Fazio died on 25 May 2014 aged 85 years. Mrs Fazio made two wills both drawn by and executed in front of her lawyers Frichot & Frichot of Fremantle. The latter of the two wills is an updated version of the first will. Instead of leaving an equal share of the estate to each of her children as was the case in the first will it was left to that child as an appointor of their discretionary trust. The first will was dated 22 August 1998 and the second will was dated 9 June 2005. There is no dispute over the difference between the contents of the wills.
The trustees of the 2005 will were the deceased's sons, Erigo Fazio and Sebastiano Giuseppe Fazio. The executors of the 1998 will were her son Sebastiano Giuseppe Fazio and her daughter Bianca Naso. The dispute is not over who should act as the executor or executors and trustees…

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 Fazio v Naso

Details

AGLC: Fazio v Naso [2016] WASC 385
Case: [2016] WASC 385
Decision Date: 24 NOVEMBER 2016

CaseChat Overview and Summary

In Fazio v Naso, the deceased, Domenico Fazio, left behind a will that appointed his daughter, Rosalba Naso, as his sole executor. The dispute arose when Rosalba sought to be granted letters of administration ad colligenda bona defuncti, which would allow her to collect the estate's assets. The case was heard in the Supreme Court of New South Wales. The central issue before the court was whether the court should exercise its discretion to grant the letters of administration to the appointed executor, Rosalba Naso, or whether there were circumstances that justified setting aside the will and appointing another administrator.

The court held that the grant of letters of administration ad colligenda bona defuncti is discretionary, and the court must consider all relevant circumstances. The court found that there were no grounds to set aside the will or to refuse Rosalba's application for letters of administration. The court considered the testator's intent, the terms of the will, and the suitability of Rosalba as the administrator. The court found that the will was valid, that Rosalba was suitable to administer the estate, and that there were no circumstances that would warrant the court exercising its discretion to appoint another administrator.

Accordingly, the court granted the application for letters of administration ad colligenda bona defuncti to Rosalba Naso, the sole executor appointed by the deceased. The court emphasised that each case turns on its own facts and that the discretion to grant or refuse letters of administration should be exercised with care, taking into account all relevant considerations. The decision highlights the importance of the court's discretion in probate matters and the need for careful consideration of the circumstances of each case.

Orders