Marcuola-Bel v Tran

[2004] NSWSC 173

CITATION:	Marcuola-Bel v Tran [2004] NSWSC 173
HEARING DATE(S):	10 and 11 March 2004
JUDGMENT DATE:	11 March 2004
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Windeyer J at 1
DECISION:	Probate of 1998 will revoked. Probate in solemn form granted of 2002 will
CATCHWORDS:	PROBATE - revocation of grant - subsequent will propounded - conflicting evidence as to date of signature of deceased - order for revocation and for grant in solemn form of later will
LEGISLATION CITED:	Family Provision Act 1982 Property (Relationships) Act 1984
PARTIES :	Ines Marcuola-Bel (Plaintiff) Thi Ly Tran (Defendant)
FILE NUMBER(S):	SC 117205 of 2002
COUNSEL:	Mr M Meek (Plaintiff) Mr J Wilson SC (Defendant)
SOLICITORS:	Cumberland Frank Commercial Lawyers (Plaintiff) Thomas Tarmo & Company (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

WINDEYER J

THURSDAY 11 MARCH 2004

117205/02 INES MARCUOLA-BEL v THI LY TRAN THE ESTATE OF GIOVANNI MARCUOLA-BEL

JUDGMENT

1 HIS HONOUR: The plaintiff in these proceedings seeks an order that a grant of probate in the common form of a will of Giovanni Marcuola-Bel dated 31 March 1998 to the defendant as the executrix named in that will be revoked and that probate in solemn form of a will of the deceased dated 21 July 2002 be granted to her.

2 The plaintiff is a daughter of the deceased. He died on 22 August 2002. It is not right in this judgment to make statements about the relationship of the deceased and the defendant because after this part of the proceedings is finished, there will be other proceedings in this action a cross claim of the defendant under the Family Provision Act 1982 for provision out of the estate of the deceased on the basis that she was the de facto wife of the deceased. That is not something which is being determined in this judgment.

3 What is being determined here is whether or not the document which the plaintiff seeks to propound was or is a will made by the deceased subsequent to the will in respect of which a grant of probate is now in existence.

4 This is a somewhat strange case. The issue before the Court really came down to determining whether or not the document propounded by the plaintiff was executed by her father on 21 July 2002. The two attesting witnesses to that document have given evidence by affidavit and orally that it was signed by the deceased and witnessed by them on that date. The son of the plaintiff has also given evidence which supports a conclusion being come to that it was signed on 21 July 2002.

5 The defendant says that it could not have been signed on that day because the deceased was in her company throughout the day and particularly in her company during the period of time in which the plaintiff's witnesses say the will was signed.

6 The evidence shows that the deceased collected his will dated 31 March 1998 from his solicitors and it seems that he gave it to the defendant and that it was kept among their joint papers.

7 So far as the subsequent document now propounded is concerned, the evidence of Mr Giancarlo Nobili, who is the former husband of the plaintiff, is that it was executed by the deceased at his daughter’s, namely the plaintiff's property, 233 Great Western Highway, St Marys, on 21 July 2002 in his presence and in the presence of Mr Leonard Nobili, who is the nephew of Giancarlo Nobili.

8 Their evidence is that they drove Christian Marcuola-Bel, who is the son of the plaintiff, from the home of Giancarlo to the plaintiff's home on 21 July 2002.

9 Mr Giancarlo Nobili says that he did this because he and his then wife were separated, that his former wife, the plaintiff, had gone to Brisbane for the school holidays with two of the children which she has had through a subsequent relationship, that Christian was staying with him, that the school term commenced the next day, that he was in the custody or care of his mother during the term time and that he needed to be returned to her home so that he could commence school on Monday 22 July 2002.

10 Christian's evidence supports this. He said that he was taken from his father's home to the home at St Marys by car, that he got out of the car, took his luggage in, knocked on the door, that his grandfather was there, that he went in, that his grandfather asked to talk to his father whom he had not seen for some time during the breakdown of the relationship with his daughter, that he went back to the car and stopped it and asked his father to go in. Giancarlo says that he did this, that he had a conversation with his former father-in-law, that his former father-in-law asked him if he was still a Justice of the Peace and asked him if he would witness his will. He said that he told the deceased that he would do so but they would need another witness. There was conversation about whether Leonard could be the witness. Giancarlo said Leonard and he agreed to act as witness and he went into the house for this purpose.

11 According to Giancarlo, he looked at the document, knew it was a will, knew that it had to be dated because he was a JP, dated it and it was then signed by the deceased and then by him and then by Mr Leonard Nobili. Mr Leonard Nobili supports this.

12 As to the date, Mr Leonard Nobili said that he was a tennis coach. As I understood it, tennis coaches know when school terms end, that he knew that the 21st of July was the last day of the school holidays and that the school term started the next day and he could relate the date to this, once he knew that this was some issue in the proceedings.

13 As for Mr Giancarlo Nobili, he said that he could determine that the date on the will was correct because he knew that the week prior to that was the anniversary of his father's death and that two weeks after that was the date upon which he and his former wife's family settlement by way of sale of a property became effective.

14 I should say that there is no issue at all about whether or not the signature on the will is that of the deceased, nor as to the attestation of the document. Nor, I think, could there be any doubt about the year, namely 2002, because as it stands, it appears to be just part of the printed part of the document.

15 The defendant says that on the day in question, she and the deceased spent the day together, that they were then living in the Cumberland Hotel, the deceased's former home at Homebush having been sold and they not at that stage being able to move into a new home which was being purchased; that they had furniture stored at Kennards Storage; that they had permission to move into the garage in the new home that was being purchased in the name of the deceased at Carlingford; that they spent part of the day moving but ultimately at about 4 o'clock, they caught a train from Carlingford to Clyde and then to Lidcombe and went to the Lidcombe Catholic Club; and, at 5.50pm, they went to the Catholic Church at Lidcombe, a place they were accustomed to go on Sunday evenings for a service at 6pm.

16 The defendant says that at 7pm, they walked to Lidcombe Station to catch a train back to the Cumberland Hotel at Bankstown where they were staying; that they went straight to their room and neither of them left the room that night. Thus, she says, she was with the deceased the whole of Sunday 21 July 2002. She said they worked very hard that day. By evening, they were tired and exhausted. Thus she said the deceased did not sign the document now propounded on 21 July 2002.

17 I consider that the evidence of the attesting witnesses should be accepted. I thought that it was convincing. I thought that the reasons which they gave for fixing the date at 21 July 2002 were reasons which could properly be accepted. I accept the evidence that Mr Giancarlo Nobili dated the document. I see no reason to think that he would not have dated it the correct date.

18 In saying that, of course, it is necessary to find that I do not accept the evidence of the defendant on this particular issue. It is put that, the defendant was not challenged about her vision other than going to church. The versions were clear enough so that all that could be put was her version was untrue. Nevertheless she was recalled for the purpose and nothing was really gained from that other than the expected denial. She maintained her adherence to the story deposed to in her affidavit.

19 There is at least some basis to think that the defendant’s recollection of dates is not necessarily accurate. For the most part, her evidence was a reconstruction as a result of reference to a year planner document for the year 2002 which she said had been on the wall in the Homebush house and after this was sold, was folded up and went with her. I have no reason to disbelieve that.

20 Some of the writing on that planner was admittedly placed on it before the dates, such as dates where the defendant was required to clean for various employers in homes where she worked. Some of it was admittedly placed some days after the dates against which the entries are shown.

21 On the important date, namely 21 July 2002, the entry shows "move club church". It is not established when that was written. It was put that there were no other entries as to church before that date, but in fact there is one on 30 June 2002, but none before that. To some extent then, if this calendar is said to show the ordinary activities, or perhaps unusual activities, then while "church" appears in a number of places after the crucial date, it only appears on that date and on one day before that. I do not think that there is much to be gained from that.

22 I cannot determine on the evidence when the entry on the planner for 21 July was made. Neither can I determine that it is necessarily accurate. For instance, some of the evidence of the plaintiff and some of the dates as to the time during which the self-storage space at Kennards was leased is contrary to the payment document which is in evidence at exhibit L and shows the period for which the space was in fact leased.

23 There are two other matters which counsel for the defendant referred to as being of some significance in whether or not the case put forward by the plaintiff should be accepted. The first of these was the question of whether or not the deceased had access to the St Marys home on the date in question. In other words, whether he had a key to it as no-one else was there when Christian arrived. While the evidence of this is not entirely clear, the plaintiff said that a key was kept somewhere on the front verandah and that the deceased knew it was there, as did her son, and it was there so that they could get into the house if they needed to get into the house. The fact that on some previous occasion the deceased had not been able to access the house to get his mail does not, I think, in any way establish that on most occasions he did not have access to a key to enable him to get into the house.

24 The other matter on which some submissions were put forward was a statement by the deceased to his daughter that he would settle his will after the house which he was purchasing at Carlingford had been completed and after it was in his name and that this did not happen until after the date of the will. That evidence is contrary to evidence of the sister of the plaintiff who said that on the particular occasion in question, which was a family get-together in Burwood Park, her father had said to her:

“Everything is in order, my will's in order. You shouldn't worry about it. Just look after Bella.”

25 For some unexplained reason, the deceased had said to Mr Giancarlo Nobili that he should not tell his former wife about the will until thirty days after he had died.

26 The last matter put forward by counsel for the defendant was that the will was found in a rather strange place, namely in a book of the deceased titled "The Herb Book", which the plaintiff found while she was looking through his possessions, I do not think that anything turns on that. If the document propounded is a will, where it was found seems to me to be immaterial.

27 In the long run, therefore, we have a document which on its face is a testamentary instrument which is not really argued not to be a testamentary instrument which is executed by the deceased, witnessed by two persons and of which three people give cogent evidence which goes to establishing that it was signed on the date which it bears.

28 In the light of that evidence and the three witnesses whom I accept as being witnesses of truth, it is not, I think, possible to do other than to prefer their evidence to that of the defendant. It there follows that the plaintiff's case should succeed.

29 I should add that as on the face of it the document is a testamentary instrument, if the case had gone forward in some other way, whether or not the date was correct or incorrect would not have had any real bearing on its validity. The reason it had a bearing in this case, as counsel for the defendant says, is that the whole case of the plaintiff was that this document was signed on this particular date and that was the issue fixed between the parties. In some ways, the fact that it is clearly intended to be a testamentary instrument and bears a particular date, together with the evidence that supports that, goes towards establishing that it was in fact signed on the date which it bears.

30 For all these reasons, on the separate issue to be determined as to the claim for revocation and grant of probate in solemn form of the later instrument, I find for the plaintiff. The orders are, therefore, as follows:

1. Order that the grant of probate to the defendant of a will of the deceased dated 31 March 1998 be revoked.

2. Order that the said grant, being exhibit 2, be deposited in the Registry.

3. Order that probate in solemn form of the will dated 21 July 2002 of the deceased be granted to the plaintiff, the sole executrix named therein.

4. Order that it be referred to the Registrar to complete the grant.

31 The only remaining question is that of costs. Generally speaking, the costs follow the event. There are certain circumstances in probate actions where that result should not follow such as cases where the proceedings have been brought about by some act of the deceased in which event quite often the costs are ordered to be paid out of the estate, or at least the unsuccessful party is not ordered to pay the costs of the successful party. In my view, this is not one of those cases.

32 Up to a relatively late stage, the question of the authenticity of the signature was an issue in the proceedings. It was not altogether clear on the defence and amended defence whether or not the question of knowledge and approval was an issue or was not an issue.

33 Leaving aside the date, there has really been no contest to the claim that the instrument was a testamentary instrument.

34 In all the circumstances, the plaintiff should have an order for costs against the defendant but not an order for indemnity costs which is claimed as a result of a letter of 8 March 2004 which will not be a proper basis in any circumstances for a grant of indemnity costs.

35 Order the defendant pay the plaintiff's costs of the separate issue.

36 Exhibits other than exhibit A and exhibit 2 may be returned, to be retained by the solicitors for the parties pending the determination of the Family Provision Act proceedings.

37 This is a case where, in my view, it would not be proper for me to hear the subsequent claim under the Property (Relationships) Act 1984. Direct that the balance of the proceedings be determined by a Master.

38 Direct the cross-claimant file and serve any further evidence by 8 April 2004.

39 Cross-defendant to file and serve any additional material and material in response by 7 May 2004.

40 Direct the matter be placed in the Master's June call-over list to fix a hearing date for the issues on the cross-claim.

41 I dismiss the plaintiff's claim in paragraph 5 of the amended statement of claim.

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Last Modified: 04/01/2004