JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: GALLOTTI -v- GALLOTTI-BROWN [2025] WASC 384
CORAM: SOLOMON J
HEARD: 19 JUNE 2025
DELIVERED : 17 SEPTEMBER 2025
FILE NO/S: CIV 1537 of 2023
BETWEEN: ROBERT GALLOTTI
Plaintiff
AND
WARATAH MARGOT GALLOTTI-BROWN
Defendant
Catchwords:
Probate - Application for revocation of grant of probate - Note written on will discovered after grant - Whether deceased intended document to constitute a codicil to her will - Part X of the Wills Act 1970 (WA) - Informal wills - Court's power to revoke probate
Legislation:
Administration Act 1903 (WA), s 29, s 47
Wills Act 1970 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | In Person |
| Defendant | : | In Person |
Solicitors:
| Plaintiff | : | In Person |
| Defendant | : | In Person |
Cases referred to in decision:
Campton v Hedges [2016] NSWSC 201
Cronan v Coates [No 2] [2024] WASC 184
Estate of Wilson (1991) 24 NSWLR 334
Hatsatouris v Hatsatouris [2001] NSWCA 408
In the Estate of Masters (Deceased); Hill v Plummer; Plummer v Hill (1994) 33 NSWLR 446
In the Will of Lamont [1881] VLR IPM 86
Kemp v Findlay [2024] NSWSC 902
Lindsay v MsGrath [2015] QCA 206
National Australia Trustees Ltd v Fazey [2011] NSWSC 559
Newman v Brinkgreve; Estate of Verzijden [2013] NSWSC 371
Oreski v Ikac [2008] WASCA 220
Peek v Wheatley [2025] NSWSC 554
Re Banning; Ex Parte Banning [2018] WASC 313
Re Gillard [1949] VLR 378
SOLOMON J:
Overview
This matter is an application to revoke a grant of probate and to grant probate in respect of a different document. The application for the new grant of probate is in respect of a professionally prepared will that was duly witnessed and executed. However, the document also contained a subsequent handwritten note in Italian, on an inside page of the document. The note was signed but not witnessed. The note on its face purported to alter the terms of the executed will. The plaintiff's application is for the executed will - as altered by the note - to be accepted as constituting the testator's will.
Background
Angela Alfonsa[1] Gallotti (Mrs Gallotti) was born in 1930 and died on 6 January 2020. She had three children; Rosemary, born in 1963, the defendant, Waratah, born in 1965, and the plaintiff, Robert, born in 1967. Without meaning any disrespect, I shall refer to the children by their first name to avoid any confusion.
[1] Throughout these reasons, Mrs Gallotti's middle name is spelled 'Alfonsa', consistent with the grant of probate dated 24 February 2020. The alternative spelling, 'Alphonsa', is used in the parts of this judgment that directly quote Mrs Gallotti's will documents and statutory declaration dated 2 June 2011, in which that spelling appeared.
Mrs Gallotti left a will dated 2 June 2011 (Will). As will be explained in more detail, in the Will, Mrs Gallotti appointed Waratah as…
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- AGLC
- Gallotti v Gallotti-Brown [2025] WASC 384
- Case
- [2025] WASC 384
- Decision Date
CaseChat Overview and Summary
The court examined the evidence and circumstances surrounding the execution of the will and the note. It considered the good faith payment of legacies by Waratah, as protected by section 47 of the Administration Act 1903 (WA). The court also noted the awareness of the note by the parties involved, particularly Rosemary, before they initiated the proceedings. The discretionary nature of the court's power to revoke a grant of probate was emphasised, drawing on historical precedents such as In the Will of Lamont and Re Gillard. The court concluded that the factors present in this case, including the awareness of the note by the parties and the good faith actions of Waratah, weighed against the exercise of the discretion to revoke the grant of probate.
Given the above considerations, the court decided not to exercise its discretion to revoke the grant of probate. The court held that the evidence did not support the contention that the note constituted a valid codicil to the will. The court's decision was influenced by the good faith actions of Waratah and the awareness of the note by the parties involved. The court ultimately found that revoking the grant of probate would serve little utility and would not be in the interests of justice.
The final order of the court was that the application to revoke the grant of probate be dismissed. The court did not find that the note constituted a valid codicil to the will, and therefore the grant of probate remained in effect. The decision highlighted the discretionary nature of the court's power to revoke a grant of probate and the importance of considering all relevant circumstances in exercising that discretion.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
First, on the evidence, Waratah has, in good faith, paid out the legacies required by the Will.[62] In that regard, I note that s 47 of the Administration Act 1903 (WA) (Administration Act) provides:All persons making or permitting to be made any payment or transfer bona fide upon any probate or administration granted under the authority of this Act shall be indemnified and protected in so doing, notwithstanding any defect or circumstance whatsoever affecting the validity of such probate or administration not then known to such person.[62] Exhibit C, 20. In the circumstances, there may be little if any utility in the revocation of probate. Secondly, the evidence establishes that both Rosemary and Robert were aware of Exhibit A well before they issued these proceedings. At least in respect of Rosemary, it is most likely that she was aware of Exhibit A before or at the same time as Waratah's application for probate of the Will. Thereafter, on the evidence before the court Rosemary pressed for, and received her entitlements under the Will before then issuing these proceedings together with Robert.[63][63] Exhibit C, 19. In that context, it is appropriate to observe that the authorities establish that the court's power to revoke a grant of probate is a discretionary power. The factors referred to above weigh against the exercise of the discretion. Historically, the power to revoke a grant of probate has long been characterised as a discretionary power. In the interesting case of In the Will of Lamont [1881] VLR IPM 86 (Lamont), a revocation of probate was sought by the next of kin on the basis that Mr Lamont had written his will under the pernicious influence of a Mrs Jackson, who was apparently possessed of supernatural powers that manifested in episodes of mesmeric spiritualism that appear to have been a fashion of the era. The case includes lengthy passages from the eloquent exposition of an English professor of physiology who observed, among other things, that it had become 'impossible to go into any kind of society, literary or scientific, professional or lay, gentle or simple, without finding a large proportion of intelligent and truthful persons, such as would be regarded as trustworthy on all other subjects' who subscribe to views that are largely repugnant to common sense.[64] [64] Lamont (91). Whilst the passages provide useful confirmation of the historical tendency for even decent and intelligent people to subscribe to repugnant theories, its relevance to this matter lies in the case's explanation of the history of the power to revoke a grant of probate. The origin of the jurisdiction is to be found in the Ecclesiastical Court in England. Having traced some of the history of the jurisdiction in England and Australia, Molesworth J observed that the revocation of a grant of probate 'is a matter of discretion depending on the circumstances in each case'.[65] [65] Lamont (98 - 99). Similarly, in Re Gillard [1949] VLR 378at 379 the revocation of a grant of probate or administration was said to be 'a matter of discretion'.