SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0087
| ANTONINO MONTALTO | Applicant |
| v | |
| GIUSEPPE SALA and GIUSEPPE MONTALTO | Respondents |
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| JUDGES: | WARREN CJ, WHELAN and SANTAMARIA JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 October 2016 |
| DATE OF JUDGMENT: | 7 October 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 240 |
| JUDGMENT APPEALED FROM: | Re Montalto [2016] VSC 266 (McMillan J) |
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PROBATE – Where caveat lodged with Registrar of Probates – Caveator objected to grant of probate – Caveator filed grounds of objection – Caveator required to file particulars of grounds of objection – Whether particulars of grounds of objection adequate for assertion of undue influence – Particulars of undue influence struck out – Whether primary judge erred in striking out particulars of undue influence – Particulars of undue influence not sufficient – Application for leave to appeal dismissed
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| APPEARANCES: | Counsel | Solicitors |
| For the applicant | Mr A Panna QC with Mr J Mattin | Frank Sagaria & Associates |
| For the respondent | Mr D Collins QC with Mr M Hoyne | DSA Law |
WARREN CJ
WHELAN JA
SANTAMARIA JA:
Summary
On 23 May 2015, Carmela Montalto (‘the testatrix’) died. She was aged 91 years. Her husband, Mauro Montalto, pre-deceased her on 28 September 2010. She is survived by her three adult sons, Antonino Montalto (‘the applicant’), Tommaso Montalto and Giuseppe Montalto.
The testatrix executed a will dated 11 February 2013 ('the 2013 Will'). This was the last known will. Pursuant to the terms of the 2013 Will, she appointed the respondents, Giuseppe Sala, who is a family friend, and Giuseppe Montalto, her son, as the executors of her will and trustees of her estate. Her residuary estate is divided between her three sons, with 20 per cent to the applicant, 35 per cent to Giuseppe Montalto and 45 per cent to Tommaso Montalto. The 2013 Will purports to explain the testatrix’s reasons for leaving her estate to her sons in those percentages.
The applicant wishes to contend that, in making the 2013 Will, the testatrix was under the undue influence of Tommaso Montalto and Giuseppe Montalto. The primary judge has struck out the proposed particulars of undue influence. The applicant has applied for leave to appeal her decision. For the reasons that follow, the application should be refused.
Summary of proceedings and issues
On 24 June 2015, the applicant filed a caveat with the Registrar of Probates requiring that notice be given to him of any application made in connection with the 2013 Will or estate of the testatrix.
On 14 October 2015, the respondents, in their capacity as executors, filed a proceeding in the Supreme Court against the applicant. In that proceeding, they have applied for the transfer of various properties and funds said to belong to the estate of the testatrix.[1]
[1]Proceeding S CI 2015 05349.
By originating motion filed 13 November 2015, the respondents applied for grant of probate of the 2013 Will.
On 16 November 2015, the Registrar of Probates notified the applicant of the respondents’ application and…
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- AGLC
- Montalto v Sala [2016] VSCA 240
- Case
- [2016] VSCA 240
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the particulars of undue influence were adequate to establish the claim of undue influence and whether the primary judge was correct in striking out the particulars of undue influence. The court had to examine the particulars filed by Montalto to determine if they provided sufficient detail to support the claim of undue influence, and whether the primary judge's decision to strike out the particulars was justified.
The court found that Montalto's particulars of undue influence were insufficient as they did not provide specific details or evidence to substantiate the claim. The court held that the particulars were conclusory and failed to outline the circumstances that gave rise to the assertion of undue influence. The court also determined that the primary judge did not err in striking out the particulars of undue influence due to their insufficiency. The application for leave to appeal was dismissed as the court found no grounds for the appeal.
The final orders of the court were that Montalto's application for leave to appeal was dismissed. The court held that the particulars of undue influence were not sufficient and upheld the primary judge's decision to strike them out. Consequently, Sala's application for probate was not further delayed, and the will could proceed to be admitted to probate.
Orders
Orders of the court
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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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