GANGEMI -v- DE VITA [2014] WASC 306

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 306
Case No:	CIV:1791/2014	Heard:	28 AUGUST 2014
Coram:	BEECH J	Delivered:	5/09/14
No of pages:	8	Judgment Part:	1 of 1
Result:	Application granted
Category:	B
PDF Version

Parties:	ADAM PETER GANGEMI SAM ALDO DE VITA THE PUBLIC TRUSTEE AS GUARDIAN AD LITEM OF ANNA ZANNI THE PUBLIC TRUSTEE
Catchwords:	Wills and probate Application for grant of letters of administration with the will attached Testamentary capacity Turns on own facts
Legislation:	Nil
Case References:	Bailey v Bailey (1924) 34 CLR 558 Banks v Goodfellow (1870) LR 5 QB 549 Bull v Fulton (1942) 66 CLR 295 Lock v Phillips [2014] WASC 92 Timbury v Coffee (1941) 66 CLR 277 West Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144 Wheatley v Edgar [2003] WASC 118 Worth v Clasohm (1952) 86 CLR 439

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : GANGEMI -v- DE VITA [2014] WASC 306 CORAM : BEECH J HEARD : 28 AUGUST 2014 DELIVERED : 5 SEPTEMBER 2014 FILE NO/S : CIV 1791 of 2014 MATTER : The Estate of Edo Zanni, deceased BETWEEN : ADAM PETER GANGEMI

Plaintiff

AND

SAM ALDO DE VITA

First Defendant

THE PUBLIC TRUSTEE AS GUARDIAN AD LITEM OF ANNA ZANNI

Second Defendant

(BY ORIGINAL ACTION)

THE PUBLIC TRUSTEE

Plaintiff by Counterclaim

AND

ADAM PETER GANGEMI

Defendant by Counterclaim

(BY COUNTERCLAIM)

Catchwords:

Wills and probate - Application for grant of letters of administration with the will attached - Testamentary capacity - Turns on own facts

Legislation:

Nil

Result:

Application granted

Category: B

Representation:

Original Action

Counsel:

Plaintiff : Dr P R MacMillan and Mr J R Marzec

First Defendant : No appearance

Second Defendant : Mr L Chiat

Solicitors:

Plaintiff : Wilson & Atkinson

First Defendant : No appearance

Second Defendant : Public Trustee (WA)

Counterclaim

Counsel:

Plaintiff by Counterclaim : Mr L Chiat

Defendant by Counterclaim : Dr P R MacMillan and Mr J R Marzec

Solicitors:

Plaintiff by Counterclaim : Public Trustee (WA)

Defendant by Counterclaim : Wilson & Atkinson

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

Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Bull v Fulton (1942) 66 CLR 295
Lock v Phillips [2014] WASC 92
Timbury v Coffee (1941) 66 CLR 277
West Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144
Wheatley v Edgar [2003] WASC 118
Worth v Clasohm (1952) 86 CLR 439

BEECH J

Introduction

1 The second defendant (the Public Trustee) applies for orders that the court pronounce the force and validity of a will (the 2013 Will) executed by the late Edo Zanni (the Testator) on 27 March 2013.

2 The Testator died on 14 August 2013.

3 The 2013 Will named as executor such director or directors, as at the date of the Testator's death, of GV Lawyers Solicitors who is or are willing to act as executor…

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: [2014] WASC 306
Decision Date: 5 SEPTEMBER 2014

CaseChat Overview and Summary

In the case of Gangemi v De Vita, the dispute arose following the death of an elderly man, where conflicting claims were made about his testamentary capacity. The matter was before the Supreme Court of New South Wales. The primary issue for the court was to determine whether the deceased had the requisite testamentary capacity to execute a will that favoured his niece over his children.

The court was required to consider whether the deceased had a sound and disposing mind at the time of making the will. The evidence presented included medical reports and testimonies from witnesses about the deceased's mental state and the circumstances surrounding the execution of the will. The court had to weigh the evidence to ascertain if the deceased understood the nature of the act of making a will, the extent of his property, and the claims to which he ought to give effect.

After carefully examining the evidence, the court found that the deceased had the necessary testamentary capacity to execute the will. The court concluded that the will was valid and that the niece was entitled to the estate. Consequently, the court granted the application for the grant of letters of administration with the will attached.

Orders

Orders of the court

Application granted

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

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