Masci v Masci - [2015] QCA 245

SUPREME COURT OF QUEENSLAND

CITATION:

Masci v Masci & Anor [2015] QCA 245

PARTIES:

ELIZABETH MASCI

(appellant)v
GRAHAM SILVINO MASCI

(first respondent)SUSAN ELIZABETH DAY
(second respondent)

FILE NO/S:

Appeal No 12234 of 2014
SC No 494 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – [2014] QSC 281

DELIVERED ON:

27 November 2015

DELIVERED AT:

Brisbane

HEARING DATE:

25 June 2015

JUDGES:

Gotterson and Morrison and Philippides JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1. Appeal dismissed.

2. There be no order as to costs of the appeal unless any party files written submissions in support of a different costs order within 10 days of the date of pronouncement of these orders.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE'S FINDINGS OF FACT – OTHER MATTERS – where there was a will executed by a husband and wife, Fernando Masci and Elizabeth Masci, the appellant – where Fernando died on 7 February 2012 – where Fernando is survived by the appellant – where both Fernando and the appellant had children from earlier marriages who also survived Fernando – where there are no children of their marriage – where the will was executed in accordance with s 10 of the Succession Act 1981 (Qld) – where the will was prepared at the couple’s home and they both participated in the preparation of it – where the pre-printed form was filled out in handwriting, apparently that of the appellant, and then executed – where the will bequeathed the whole of the estate to Fernando upon the appellant’s death and to the appellant upon Fernando’s death – where the will bequeathed, upon the death of both Fernando and the appellant, 50 per cent of the estate to the appellant’s daughter and 50 per cent of the estate to Fernando’s children – where the will appointed Fernando’s son Graham and the appellant’s daughter as the executors – where Graham commenced a proceeding in the Supreme Court of Queensland by way of an Originating Application – where the learned primary judge ordered that probate of the will be granted to Graham and declared that the will is a mutual will – whether the learned primary judge erred in fact and in law in finding that the will constituted a mutual will

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE'S FINDINGS OF FACT – OTHER MATTERS – where the learned primary judge declared that the joint tenancy was severed at least from the death of Fernando – whether the learned primary judge erred in fact and in law in finding that the joint tenancy had been be severed at or prior to the death of Fernando

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE'S FINDINGS OF FACT – OTHER MATTERS – where the learned primary judge declared that…

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 Masci v Masci

Details

AGLC: Masci v Masci [2015] QCA 245
Case: [2015] QCA 245
Decision Date: 27 November 2015

CaseChat Overview and Summary

The appeal before the court involved the validity of a will executed by Fernando Masci and Elizabeth Masci, the appellant. The primary dispute centred on the interpretation and execution of the will, particularly regarding whether it constituted a mutual will and the implications of joint tenancy in the property they owned. The case was heard in the Supreme Court of Queensland.

The central legal issues revolved around whether the primary judge had erred in finding that the will constituted a mutual will, in declaring that the joint tenancy was severed from the death of Fernando, and in determining that the appellant had a life interest in the property and all jointly held monies. Additionally, the court needed to assess whether the will was sufficiently certain to be effective as a disposition of Fernando’s estate.

The court held that the primary judge’s findings were not erroneous. It was determined that the will was a mutual will, executed with proper formalities and intent, and that the joint tenancy was indeed severed at least from the death of Fernando. Furthermore, the court upheld the finding that the appellant had a life interest in the jointly held assets. The will was found to be clear and certain in its disposition of the estate, thus validly expressing the intentions of the testators. Consequently, the appeal was dismissed without any specific order regarding the costs of the appeal unless further submissions were made by any party within the stipulated timeframe.

Orders

Orders of the court

1. Appeal dismissed.

2. There be no order as to costs of the appeal unless any party files written submissions in support of a different costs order within 10 days of the date of pronouncement of these orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Masci v Masci & Anor [2015] QCA 245
PARTIES:	ELIZABETH MASCI (appellant)v GRAHAM SILVINO MASCI (first respondent)SUSAN ELIZABETH DAY (second respondent)
FILE NO/S:	Appeal No 12234 of 2014 SC No 494 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – [2014] QSC 281
DELIVERED ON:	27 November 2015
DELIVERED AT:	Brisbane
HEARING DATE:	25 June 2015
JUDGES:	Gotterson and Morrison and Philippides JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. Appeal dismissed. 2. There be no order as to costs of the appeal unless any party files written submissions in support of a different costs order within 10 days of the date of pronouncement of these orders.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE'S FINDINGS OF FACT – OTHER MATTERS – where there was a will executed by a husband and wife, Fernando Masci and Elizabeth Masci, the appellant – where Fernando died on 7 February 2012 – where Fernando is survived by the appellant – where both Fernando and the appellant had children from earlier marriages who also survived Fernando – where there are no children of their marriage – where the will was executed in accordance with s 10 of the Succession Act 1981 (Qld) – where the will was prepared at the couple’s home and they both participated in the preparation of it – where the pre-printed form was filled out in handwriting, apparently that of the appellant, and then executed – where the will bequeathed the whole of the estate to Fernando upon the appellant’s death and to the appellant upon Fernando’s death – where the will bequeathed, upon the death of both Fernando and the appellant, 50 per cent of the estate to the appellant’s daughter and 50 per cent of the estate to Fernando’s children – where the will appointed Fernando’s son Graham and the appellant’s daughter as the executors – where Graham commenced a proceeding in the Supreme Court of Queensland by way of an Originating Application – where the learned primary judge ordered that probate of the will be granted to Graham and declared that the will is a mutual will – whether the learned primary judge erred in fact and in law in finding that the will constituted a mutual will APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE'S FINDINGS OF FACT – OTHER MATTERS – where the learned primary judge declared that the joint tenancy was severed at least from the death of Fernando – whether the learned primary judge erred in fact and in law in finding that the joint tenancy had been be severed at or prior to the death of Fernando APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE'S FINDINGS OF FACT – OTHER MATTERS – where the learned primary judge declared that…