In the Estate of REPARATA MERCORELLA (DECEASED)
[2013] SASC 88
•11 June 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of REPARATA MERCORELLA (DECEASED)
[2013] SASC 88
Judgment of The Honourable Justice Gray
11 June 2013
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - TO WHOM PROBATE GRANTED - EXPRESSLY APPOINTED EXECUTORS - SUBSTITUTIONAL APPOINTMENTS
SUCCESSION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - CONSTRUCTION GENERALLY - PRINCIPLES OR RULES OF CONSTRUCTION - EFFECT OF CODICIL
Application for a grant of probate - the deceased's will appointed her husband as executor and provided that her niece Antonia Minicozzi and her nephew Pellegrino Mercorella were to act as executors in the event that her husband predeceased her - a codicil to the deceased's will appointed her nephew Angelo Carapella as "additional executor and trustee" of her will - the deceased's husband predeceased her - an application was made for a grant of probate - whether Angelo Carapella was appointed as an executor in addition to the deceased's husband - whether, alternatively, Angelo Carapella was appointed as an additional substituted executor in addition to Antonia Minicozzi and Pellegrino Mercorella - the solicitor responsible for drafting the codicil gave evidence that the deceased's intention was to appoint Angelo Carapella as an additional substituted executor.
Held: The applicants are entitled to a grant of probate - the deceased's intention was to appoint Angelo Carapella as a substituted executor in addition to Antonia Minicozzi and Pellegrino Mercorella.
Administration and Probate Act 1919 (SA) s 24(1), referred to.
In the Estate of REPARATA MERCORELLA (DECEASED)
[2013] SASC 88Testamentary Causes Jurisdiction
GRAY J.
Introduction
Reparata Mercorella, the deceased, died on 8 July 2012. The deceased left three testamentary documents: a will dated 4 February 1998, a first codicil dated 11 October 2008 and a second codicil dated 12 November 2011. A question has arisen as to who is entitled to a grant of probate.
The deceased’s will relevantly provides:
...
I APPOINT my husband VINCENZO MERCORELLA to be the executor and trustee of this my will. If my husband does not survive me then I APPOINT my niece ANTONIA MINICOZZI of 149 Stradbroke Road Rostrevor in the State of South Australia Delicatessen Owner and my nephew PELLEGRINO MERCORELLA of 2/18 Brentwood Grove Paradise in the said State Bank Officer (hereinafter referred to “as my trustees”) to be the executors and trustees of this my will and if either of my said niece or nephew predeceases me then the survivor shall be the executrix or executor and trustee of this my will.
...
The first codicil relevantly provides:
...
I APPOINT my nephew ANGELO CARAPELLA of 28 King Street Mile End in the State of South Australia Share Trader as additional executor and trustee of my last will.
In all other respects I confirm my will dated 4th February 1998 except that my appointment and gift to my husband VINCENZO MERCORELLA has no effect because he predeceased me.
...
It is apparent from the terms of the first codicil that the deceased’s husband had died between the date of the making of the will and the date of the making of the first codicil. The second codicil is of no significance to the present application.
An application for a grant of probate of the deceased’s will was made by Antonia Minicozzi, Pellegrino Mercorella and Angelo Carapella. A difficulty arose in relation to who was entitled to a grant of probate and in what capacity that grant could be taken. The application was referred to me by the Registrar.
The difficulty which arises relates to the construction of the first codicil. The description of Angelo in the first codicil as an “additional executor and trustee” is susceptible to two possible interpretations. The intention of the deceased may have been to appoint Angelo as an executor in addition to the deceased’s husband, Vincenzo Mercorella. In that case, Angelo alone would now be entitled to a grant of probate. Alternatively, the intention of the deceased may have been to appoint Angelo as a substituted executor in addition to Antonia and Pellegrino. If this is the case, all three applicants are jointly entitled to a grant of probate.
An affidavit was sworn by Aniello Carbone, a solicitor representing the applicants who had also been responsible for the drafting of the codicil. Mr Carbone deposed that the deceased’s intention had been to appoint Angelo as an executor in addition to Antonia and Pellegrino. Regrettably, the affidavit provided no evidentiary basis for the assertion of the deponent as to the intention of the deceased. I determined to question the deponent myself, exercising my powers pursuant to section 24(1) of the Administration and Probate Act 1919 (SA). That section relevantly provides:
(1) The Court may—
(a) require the attendance of any person whom it thinks fit to examine, or cause to be examined, in any action or other proceeding in respect of matters or causes testamentary, whether an action is depending or not; and
(b) examine or cause to be examined, upon oath or affirmation, as the case may require, parties and witnesses by word of mouth; ...
...
Mr Carbone gave oral evidence that he had drafted the first codicil on the instructions of the deceased. He said that the deceased had come to his office with Antonia. The deceased had given him instructions to draft a codicil appointing Angelo as an executor in addition to Antonia and Pellegrino. He said that the deceased had wanted to appoint Angelo as an additional executor as his proficiency with the English language was superior to that of both Antonia and Pellegrino. He gave evidence that his objective in drafting the codicil had been to give effect to this intention of the deceased.
I accept the evidence of Mr Carbone as an accurate account of the deceased’s stated intention in making the first codicil. I am satisfied that in making the second codicil, the intention of the deceased was to appoint Angelo Carapella as a substituted executor in addition to Antonia Minicozzi and Pellegrino Mercorella.
Conclusion
It is appropriate that there be a grant of probate to Angelo Carapella, Antonia Minicozzi and Pellegrino Mercorella.
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