Lacerenza v Calautti - [2005] WASC 46

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: LACERENZA -v- VERONICA MARIA CALAUTTI as Executor of the Estate of ANNA LACERENZA (DEC) & ORS [2005] WASC 46

CORAM: JENKINS J

HEARD: 8 - 11 MARCH 2005

DELIVERED : 24 MARCH 2005

FILE NO/S: CIV 2444 of 2002

MATTER :Estate of ANNA LACERENZA (DEC)

BETWEEN: STEFANO LACERENZA
Plaintiff
AND
VERONICA MARIA CALAUTTI as Executor of the Estate of ANNA LACERENZA (DEC)
First Defendant
VERONICA MARIA CALAUTTI
Second Defendant
TERESA LACERENZA
Third Defendant

Catchwords:

Succession - Wills - Application for revocation of a Grant of Probate - Testamentary capacity - Terminally ill patient

Legislation:

Evidence Act 1906, s 79C

Result:

Plaintiff's claim allowed
Defendants' counterclaim allowed

Category: B

Representation:

Counsel:

Plaintiff:     Mr T Lampropoulos
First Defendant             :     Mr P S Bates
Second Defendant         :     Mr P S Bates
Third Defendant           :     Mr P S Bates

Solicitors:

Plaintiff:     Naveen Pillay
First Defendant             :     Arns & Associates
Second Defendant         :     Arns & Associates
Third Defendant           :     Arns & Associates

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

Banks v Goodfellow (1870) LR 5 QB 549
Nock v Austin (1918) 25 CLR 519
Perera v Perera (1901) AC 354
Silvester v Tarabini, unreported; SCt of WA (Anderson J); Library No 960062; 13 February 1996
Waring v Waring (1848) 6 Mood CC 341

Case(s) also cited:

Nil

JENKINS J: Stefano Lacerenza ("the plaintiff") and Anuta Lacerenza ("the deceased") were husband and wife. Veronica Calautti ("the first defendant") is the executor of the deceased's estate in respect to a Will of the deceased on which Probate was granted on 15 February 2001 ("the third Will"). She is also, personally, the second defendant. The second defendant and Theresa Lacerenza ("the third defendant") are the daughters of the deceased. The plaintiff seeks orders revoking the said grant of Probate, declaring against the force and validity of the third Will and a declaration that the deceased did not have capacity or sufficient capacity to make a valid Will as at 9 January 2001, the date the deceased executed the third Will.
The defendants deny that the deceased did not have the capacity to make a valid Will as at 9 January 2001. Their defence further pleads that the deceased executed a Will on 19 December 2000 which was prepared by Giuseppe Lacerenza, ("Mr Lacerenza Junior"), the son of the deceased, who is also a legal practitioner (the second Will"). The defence asserts that the third Will was prepared by another legal practitioner, Ms Helen Drury, who was present when the deceased executed the Will, this being the same date that it was read out to the deceased in the Italian language. The defence alleges that prior to its execution the deceased was lucid and appeared to fully understand and approve of the contents of the Will.
The defendants have filed a counterclaim which pleads that if, which is denied, the deceased was not of sound mind, memory and understanding when she executed the third Will, dated 9 January…

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 Lacerenza v Calautti

Details

AGLC: Lacerenza v Calautti [2005] WASC 46
Case: [2005] WASC 46
Decision Date: 24 MARCH 2005

CaseChat Overview and Summary

In the case of Lacerenza v Calautti, the dispute arose from a challenge to the validity of a will executed by a terminally ill patient. The applicant, Lacerenza, sought to have a Grant of Probate revoked on the basis that the deceased lacked testamentary capacity at the time of making the will. The matter was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether the deceased had the requisite testamentary capacity when executing the will. This involved assessing whether the deceased understood the nature and effect of the will-making process, comprehended the extent of their estate, and appreciated the claims to which they were subject. The court also had to consider whether the deceased's terminal illness influenced their decision-making capacity.

The court examined the evidence provided by medical and psychological experts, as well as testimonies from those who were present when the will was executed. It was determined that the deceased had a sufficient understanding of the nature and effect of the will-making process, the extent of their estate, and the claims to which they were subject. The court found that the deceased's terminal illness did not impair their testamentary capacity. Consequently, the application to revoke the Grant of Probate was dismissed.

Orders