In Re the Will of Fernando Masci

The matter before the court involved the interpretation of a home-made will and the status of the joint tenancy held by Fernando and Elizabeth Masci in their property. The will, dated 2 April 2006, was poorly drafted and contained numerous uncertainties. The primary legal issues before the court were whether the will could be admitted to probate, whether it established a life estate in the survivor, and whether the joint tenancy was severed by the will. Additionally, the court had to determine if the will was a mutual will and if there was a basis for removing one of the executors due to a lack of cooperation.

The court examined the will in its entirety to ascertain the testator’s intention, finding that despite its poor drafting, the will could be admitted to probate. The court concluded that the will was a mutual will, which intended to leave the estate jointly to the spouses with survivorship rights. It further found that the joint tenancy in the property was severed from the death of Fernando Masci, and that Elizabeth Masci was entitled to a life estate in the property and the monies held by Fernando, whether in his own name or jointly with her. The court found no grounds to remove an executor.

The court granted probate of the will to Mr Graham Silvino Masci as executor, subject to the formal requirements of the Registrar. It declared the joint will to be a mutual will, confirmed the severance of the joint tenancy, and established that Elizabeth Masci held a life estate in the property and the monies of Fernando Masci.