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Montalto v Sala

Montalto v Sala

Case [2016] VSCA 240 7 October 2016

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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…

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 Montalto v Sala

Details

AGLC: Montalto v Sala [2016] VSCA 240
Case: [2016] VSCA 240
Decision Date: 7 October 2016

CaseChat Overview and Summary

The case of Montalto v Sala involved a dispute over the validity of a will and the granting of probate. The deceased, who passed away in 2002, had left a will which named the respondent, Sala, as the sole beneficiary. The appellant, Montalto, a relative of the deceased, lodged a caveat with the Registrar of Probates objecting to the grant of probate to Sala. Montalto subsequently filed grounds of objection, asserting that the will was procured by undue influence. After the primary judge struck out the particulars of undue influence as insufficient, Montalto sought leave to appeal against this decision.

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