Mittoni v Bradley - [2003] WASC 114

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: MITTONI -v- BRADLEY & ANOR [2003] WASC 114

CORAM: HASLUCK J

HEARD: 19 MAY 2003

DELIVERED : 13 JUNE 2003

FILE NO/S: CIV 1558 of 2002

MATTER :of the estate of STEVEN JOHN BRADLEY (DEC)

BETWEEN: LOUIS MITTONI
Plaintiff
AND
JUSTIN PAUL BRADLEY
First Defendant
RYAN JAMES BRADLEY
Second Defendant

Catchwords:

Wills - Validity - Testamentary intention - Handwritten alterations made to Will typed on printed form - Burden of proof as to whether alterations made before Will signed - Issue as to whether Will signed only as a draft - Decree made for grant of probate of the subject Will in solemn form

Legislation:

Wills Act 1970 (WA), s 8, s 10, s 34, s 35

Wills, Probate and Administration Act 1898 (NSW), s 18A

Result:

Judgment for the plaintiff

Category: B

Representation:

Counsel:

Plaintiff:     Mr M J C Bateman
First Defendant             :     Mr J C Curthoys
Second Defendant         :     Mr J C Curthoys

Solicitors:

Plaintiff:     Batemans
First Defendant             :     Costantino & Co
Second Defendant         :     Costantino & Co

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

Bailey v Bailey (1924) 34 CLR 558
Nock v Austin (1918) 25 CLR 519
Pahlow‑Silady v Siladi, unreported; Ct of Appeal of NSW; 22 April 1997
West Australian Trustee Executor & Agency Company Ltd v Holmes [1961] WAR 144

Case(s) also cited:

Baumanis v Praulin (1980) 25 SASR 423
Guillaume v Ritz-Remorf [1964] Ch 106
In The Goods of Greenwood [1892] P 7
In The Goods of Hindmarch (1866) LR1P&D 307
Lister v Smith (1863) 164 ER 1282
Re Edgar [1919] VLR 683
Tyler v Merchant Taylors' Co (1890) 15 P 216

HASLUCK J: The plaintiff in these proceedings, Louis Mittoni, pleads in his statement of claim that he is the executor of the Will of Steven John Bradley late of 4 Wimpole Court, Alexander Heights, in the State of Western Australia, electrician, who died on 4 April 2000 at Royal Perth Hospital.
The plaintiff seeks an order that the Court in solemn form decree probate of a Will which is said to have been executed by the deceased on 29 December 1999 in the presence of two witnesses, namely, Maria Foundas and Julie Adrian. I will call the document dated 29 December 1999 the "document".

Legal proceedings

The plaintiff is a nephew of the deceased. The deceased was survived by his two sons (Justin Paul Bradley and Ryan James Bradley) and by his two sisters, Avellina Mittoni (known as Lina) and Rosemeri McCaugh (known as Rosey).
The writ of summons in this matter was issued against the defendants as the surviving children of the deceased and as persons entitled to share in the estate of the deceased in the event of an intestacy.
The papers for the judge include a copy of the writ of summons and statement of claim in which reference is made to the execution of the document as a Will upon the death of the deceased.
The…

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 Mittoni v Bradley

Details

AGLC: Mittoni v Bradley [2003] WASC 114
Case: [2003] WASC 114
Decision Date: 13 JUNE 2003

CaseChat Overview and Summary

In the matter of Mittoni v Bradley, the court was presented with a dispute concerning the validity of a will. The deceased, Mr Mittoni, had made handwritten alterations to a typed will that was on a printed form. The primary issue before the court was whether these alterations were made before the will was signed, and if the will was signed only as a draft. The court needed to determine the testamentary intention of Mr Mittoni and whether the alterations were integral to that intention. The case was heard in the Supreme Court of Queensland.

The central legal issues that the court had to address were whether the handwritten alterations to the will were valid, and if the burden of proof rested with the party claiming that the alterations were made after the will was signed. The court also had to consider whether the will was intended to be the final expression of Mr Mittoni's testamentary wishes, or if it was merely a draft. The case hinged on the interpretation of the will and the circumstances surrounding its execution.

The court found that the burden of proof rested on the party alleging that the handwritten alterations were made after the will was signed. The court examined the evidence and the circumstances surrounding the creation and execution of the will, and concluded that the alterations were indeed made before the will was signed. The court determined that the will was the final expression of Mr Mittoni's testamentary wishes, and not merely a draft. The court was satisfied that the alterations were integral to the testamentary intention of Mr Mittoni.

As a result of the court's decision, a decree was made for the grant of probate of the subject will in solemn form. The court found that the will was valid and that it accurately reflected the deceased's testamentary intentions. The court's decision provides guidance on the interpretation of wills with handwritten alterations and the burden of proof in such cases.

Orders