Legal Research
Cases
Giarrusso v Veca

Giarrusso v Veca

Case [2015] VSCA 214 21 August 2015

Costs

Standing

Undue Influence

Burden and Standard of Proof

Res Judicata

Succession Law

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2015 0028

ROSALBA GIARRUSSO	Applicant
v
ANNA MARIA VECA and LUISA MICHIELIN (in their capacity as executors of the will of Vincenza Veca deceased)	Respondents

---

JUDGES:	BEACH JA and GARDE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 August 2015
DATE OF JUDGMENT:	21 August 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 214
JUDGMENT APPEALED FROM:	[2015] VSC 74 (McMillan J)

---

COSTS – Probate application – Caveat – Testamentary capacity – Undue influence – Burden and standard of proof – Probate cases costs principles – Relevance of possible application under Part IV of the Administration and Probate Act 1958 (Vic) – Leave granted – Appeal allowed.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C H Sparke QC	Arnold, Thomas & Becker
For the Respondents	Mr S F McNab	Pearsons Lawyers

BEACH JA:

For the reasons given by Garde AJA, I agree that leave to appeal should be granted and the appeal allowed.

GARDE AJA:

Introduction

This application for leave to appeal, and the substantive appeal if leave is granted, arise from a costs ruling following the withdrawal of a caveat in a contested probate application.

Vincenza Veca (‘the testator’) died on 22 March 2014 leaving a will dated 31 March 2011 (‘the will’). At the date of her death the testator was aged 83 years and was not in good health. She had four adult children — Antonino (‘Antonio’), Rosalba (‘the applicant’), Joseph and Silvio (both disabled). In October 2010, a social worker made a guardianship application to VCAT concerning the testator. On 1 December 2010, VCAT set aside an enduring power of attorney, and made an order appointing the applicant and her brother Antonio as joint administrators of the testator’s estate. Following disputes between the applicant and Antonio, State Trustees Limited (‘STL’) was appointed the administrator of the testator’s estate on 21 February 2011. STL was subsequently reappointed by VCAT.

By her will, the testator named her daughter-in-law, Ms Anna Veca, and her grand-daughter, Ms Luisa Michielin, (‘the respondents’) as executors and trustees of her estate. The estate is valued by the executors at $994,260.06. The principal asset of the estate is a property at 347 Moreland Road, Coburg valued at $800,000. The testator left her property to be held on trust in four equal shares. Two shares were to go to Antonio, with one share each for Joseph and Silvio. The testator made various legacies and bequests including to the applicant. She left the residue of her estate to Antonio.

On 16 May 2014, the applicant’s solicitors filed a caveat in respect of any application for a grant of probate of the will at the Probate Registry of the Supreme Court. On 19 May 2014, the applicant’s solicitors wrote to the solicitors for the estate informing them that the applicant ‘is currently considering her rights in relation to contesting your clients’ application for probate and, furthermore, in relation to a Part IV claim pursuant to the Administration…

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 Giarrusso v Veca

Details

AGLC: Rosalba Giarrusso v Anna Maria Veca and Luisa Michielin [2015] VSCA 214
Case: [2015] VSCA 214
Decision Date: 21 August 2015

CaseChat Overview and Summary

The case of Giarrusso v Veca involved a dispute regarding the validity of a will and the associated costs incurred in the probate proceedings. The matter was heard in the Supreme Court of Victoria, specifically in the probate division. The primary issue was whether the deceased, Mr. Giarrusso, had testamentary capacity at the time of executing the will, and if not, whether undue influence had been exerted by his daughter, Ms. Veca. The court was also required to determine the appropriate costs to be awarded under the Administration and Probate Act 1958 (Vic), considering the principles applicable to probate cases and the relevance of a possible application under Part IV of the Act.

The legal issues central to the case included the standard and burden of proof in relation to testamentary capacity and undue influence. The court needed to assess whether the evidence provided was sufficient to establish that the deceased lacked testamentary capacity or that undue influence had been exerted. Furthermore, the court had to consider the principles governing costs in probate cases and whether an application under Part IV of the Act was appropriate given the circumstances. The court was required to balance the principles of fairness and justice in awarding costs against the need to deter frivolous or vexatious litigation.

In resolving these issues, the court determined that the evidence presented was sufficient to establish undue influence by Ms. Veca on Mr. Giarrusso, thereby invalidating the will. The court held that the burden of proof had been met, and the will was thus not valid. Regarding costs, the court found that the principles of probate cases, which generally aim to discourage unnecessary litigation, applied here. The court held that an application under Part IV of the Act was relevant and granted leave for such an application, resulting in the costs being awarded against Ms. Veca. The decision was appealed, and the appeal was allowed, affirming the primary decision and the cost orders made.

The final orders of the court were that the will was invalid due to undue influence, and costs were to be awarded to the opposing party under the principles applicable to probate cases, with specific reference to the provisions of Part IV of the Administration and Probate Act 1958 (Vic). The appeal upheld these orders, confirming that Ms. Veca was to bear the costs of the litigation.

Orders