MUSOLINO (DECEASED) - [2008] SASC 334

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of MUSOLINO (DECEASED)
[2008] SASC 334
Judgment of The Honourable Justice Gray
2 December 2008
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - ALTERATION AND REVOCATION OF GRANTS - IN WHAT CIRCUMSTANCES - OTHER CASES
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - LIMITED, SPECIAL, AND CONDITIONAL GRANTS OF PROBATE AND ADMINISTRATION - OTHER CASES
Application by Public Trustee for revocation of grant of letters of administration of deceased’s estate, and for grant of probate of unsigned photostat copy of will of deceased – copy will bore a stamp indicating that original was executed on 21 January 1982 and lodged in office of Public Trustee – following deceased’s death, Public Trustee advised administrator that original will could not be found – Public Trustee initially reluctant to admit copy will to proof – the deceased’s children agreed that the youngest son would apply for letters of administration, and other children would transfer their entitlements to administrator – Deed of Family Arrangement to effect the transfer prepared – due to subsequent falling out between deceased’s two eldest sons and rest of family deed was not executed – Public Trustee then instructed administrator to initiate proceedings to admit copy will to proof – consents sought from “all persons who may be prejudiced by the grant” pursuant to Rule 68 The Probate Rules 2004 (SA) – administrator, deceased’s daughter and deceased’s second youngest son agreed to application – deceased’s two eldest sons were served with proceedings but did not appear – application referred to a Judge.
Held, allowing the application: Deceased made a valid will – copy will was a true and correct copy of original will which cannot be found – original will was not revoked before deceased’s death – in the circumstances, it is just and expedient to dispense with the requirement for consent from all persons who may be prejudiced by the grant – letter of administration – grant of probate of copy will to Public Trustee.
The Probate Rules 2004 (SA) s 68, s 77; Administration and Probate Act 1919 (SA) s 5; Supreme Court Act 1935 (SA) s 18, referred to.
Butler v Meriga [1904] St R Qd 248; Caldar v Public Trustee [2003] NSWCA 187; Curley v Duff (1985) 2 NSWLR 715; Greenland v Baldwin and Neale [2007] 1 Qd R 117, applied.
In the Estate of Gerard, deceased (2007) 251 LSJS 176; In the Estate of Gwynne, deceased (1988) 48 SASR 209; In the Estate of Marden, deceased [2008] SASC 312; In the Estate of Roediger Deceased [1967] SASR 118, distinguished.
In the Estate of Vauk (1986) 41 SASR 242; In the Estate of Yeo (1978) 17 SASR 545; In the Will of Christian (1975) 25 FLR 89, discussed.
Karwala v Skrzypczak; In the Estate of Ratajczak [2006] NSWSC 203

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 MUSOLINO (DECEASED)

Details

AGLC: MUSOLINO (DECEASED) [2008] SASC 334
Case: [2008] SASC 334
Decision Date: 2 December 2008

CaseChat Overview and Summary

The deceased, Vincenzo Musolino, died in October 2003, leaving behind an estate valued at approximately $480,000, consisting mainly of a house and land in Norwood, South Australia. The deceased’s last known will, dated 21 January 1982, named his youngest son, Vincenzo Musolino, as the sole beneficiary of the estate and appointed the Public Trustee as executor. After the deceased’s death, his youngest son searched for the original will but only found an unsigned photostat copy. The Public Trustee confirmed that the original will could not be located. Initially, the Public Trustee was reluctant to admit the copy will to proof. The deceased's children agreed that the youngest son would apply for letters of administration, while the other children would transfer their entitlements to him. However, a proposed Deed of Family Arrangement was not executed due to a disagreement between the deceased's two eldest sons and the rest of the family. Subsequently, the Public Trustee instructed the administrator to initiate proceedings to admit the copy will to proof. The application required consent from all persons who might be prejudiced by the grant, as per Rule 68 of The Probate Rules 2004 (SA). The administrator, the deceased’s daughter, and the second youngest son consented to the application, while the two eldest sons did not respond.

The legal issues before the court included whether the copy will was a true and correct copy of the original will, whether the original will had been revoked before the deceased's death, and whether it was just and expedient to dispense with the requirement for consent from all potentially prejudiced parties. The court needed to determine if the circumstances justified revoking the letters of administration and granting probate over the copy will. The court held that the copy will was a true and correct copy of the original will, which was not revoked before the deceased's death. It was satisfied that a proper and reasonable attempt had been made to obtain consent from all potentially prejudiced parties. The court found that it was just and expedient to dispense with the requirement for consent from the two eldest sons, who had not responded to the proceedings. Consequently, the court revoked the grant of letters of administration to the youngest son and granted probate over the copy will to the Public Trustee, limited until the original will or a more authentic copy is produced.

The court’s decision led to specific orders being made. The grant of letters of administration issued to Vincenzo Musolino on 1 November 2006 was revoked and declared null and void. Probate of the last will and testament executed on 21 January 1982, as contained in the copy will, was granted to the Public Trustee, limited until the original will or a more authentic copy is brought into and left in the Probate Registry of the Court. This decision ensures that the deceased's estate is administered according to the terms of the will, rather than under the rules of intestacy.

Orders

Orders of the court

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Background

Background to the litigation

The application was supported by affidavits from a number of deponents. In making the findings recorded in these reasons, I have acted on the affidavit evidence.Material Facts The deceased, Vincenzo Musolino, died on 9 October 2003 in South Australia, aged 92 years. The deceased is survived by his five adult children – Armando Musolino, born 15 December 1935; Arturo Musolino, born 2 November 1938; Orlando Musolino, born 9 February 1941; Stella Monteleone (nee Musolino), born 16 May 1946; and Vincenzo Musolino, born 7 May 1955. The last known will of the deceased was said to have been executed on 21 January 1982. The will appoints Public Trustee as sole executor and bequeaths the deceased’s entire estate to his youngest son, who is also named Vincenzo Musolino. The value of the estate is in the order of $480,000. The most significant asset of the estate is a house and land situated at 93 Queen Street, Norwood, South Australia. Shortly after the death of the deceased in 2003, Vincenzo Musolino undertook an unsuccessful search of the Queen Street property, to locate the original will of the deceased. A subsequent search of the property located an unsigned photostat copy of the will, inside an official envelope of Public Trustee (“the copy will”). The envelope was located in a locked drawer in the deceased’s wardrobe, together with the certificate of title and building plans in respect of the Queen Street property and an official envelope of the office of Public Trustee containing the copy will of the deceased’s wife. The copy will bears a stamp indicating that the original was executed on 21 January 1982 and lodged in the office of Public Trustee. The stamp is signed by James Edward Robert Reilly who was then, and still remains, an employee of Public Trustee. Vincenzo Musolino’s solicitors then made initial enquiries with Public Trustee to locate the original will. On 7 June 2006, Public Trustee advised that it did not have the original will of the deceased. Vincenzo Musolino and his siblings then agreed that he would apply for Letters of Administration of the estate of the deceased and that they would transfer the shares they would receive as per the rules of intestacy to him. On 15 August 2006, Vincenzo Musolino applied for a grant of letters of administration of the estate of the deceased. He deposed that he undertook this course of action, as opposed to commencing an action to admit the copy will to proof, as at this point in time he had little information about the circumstances of the deceased drafting his will, and Public Trustee was not forthcoming in initiating an application to admit the copy will to proof. The grant of letters of administration issued to Vincenzo Musolino on 1 November 2006. In or about December 2006, Vincenzo Musolino instructed solicitors to draft a deed of family arrangement which was to have the effect of transferring the whole of the deceased’s estate to him. In the event however, due to a “falling out” between Arturo Musolino and Armando Musolino and the rest of the family, the deed was not executed, and the settling of the matter according to the deed has not proceeded. Arturo Musolino and Armando Musolino did not wish to be involved in the administration of the deceased’s estate. On 19 June 2007, Vincenzo Musolino caused a lost will notice to be entered in the public notices of “The Advertiser” newspaper and in an edition of the Law Society Bulletin. The original will was not located through these efforts.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

As earlier observed, I am satisfied that the copy will is a true and correct copy of the original will which cannot be found. I am further satisfied that given that both Arturo Musolino and Armando Musolino have, by direction from the Registrar, been served with these proceedings, a proper and reasonable attempt has been made to obtain their consent. I consider that it is just and expedient to dispense with the requirement for consent. Conclusion In conclusion, I consider that this is a proper case in which to exercise my discretion to revoke the grant of letters of administration of the deceased’s estate to Vincenzo Musolino on 1 November 2006, and to grant probate over the photostat copy of the will of the deceased executed on 21 January 1982. I make the following orders:-The grant of letters of administration of the estate of Vincenzo Musolino late of Wynwood Nursing Home, 77 Sydenham Street, Norwood in the State of South Australia deceased to Vincenzo Musolino of 93 Queen Street Norwood aforesaid son of the deceased be revoked and declared null and void to all intents and purposes in the law whatsoever.-That probate of the last will and testament executed on the 21st day of January 1982 as contained in a copy (being the exhibit marked “LC-1” to the affidavit of Louise Cufone sworn on the 11th day of August 2008) of the said deceased be granted to the Public Trustee of 25 Franklin Street Adelaide in the said state the sole executor therein named limited until the original will or a more authentic copy of it be brought into and left in the Probate Registry of this Court.

Ratio Decidendi

Legal Principle Established

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