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; Koerstz v Norman [2008] NSWSC 133; Mercieca v State Trustees Ltd [2001] VSC 69; Mortimer v David; Estate Dawn Audrey Day Deceased [2005] NSWSC 1166; Re Proud (dec’d) [1951] QWN 17; Richardson v Rearden [2006] NSWSC 1252; Sinclair v Forsyth [2008] VSC 250, considered.

In the Estate of MUSOLINO (DECEASED)
[2008] SASC 334

Testamentary Causes Jurisdiction

GRAY J

(In Chambers)

1. This is an application for the revocation of a grant of letters of administration of the deceased’s estate, and for a grant of probate of a photostat copy of the last known will of the deceased.

2. 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

3. 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. 

4. 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.

5. 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.

6. 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.

7. 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. 

8. 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. 

9. 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. 

10. On 12 June 2008, Public Trustee applied by summons for orders revoking the grant of letters of administration to Vincenzo Musolino and granting probate of the copy will.  Vincenzo Musolino, Orlando Musolino and Stella Monteleone have, by affidavit, consented to the orders sought.  Consents from Arturo Musolino and Armando Musolino have been sought.  Pursuant to an order from the Registrar, both have been served with the proceedings.  No appearance has been entered.  There are no other persons adversely affected by the orders sought.

11. As consents have not been obtained “by all persons who may be prejudiced by the grant” in accordance with Rule 68, the Registrar of Probates is unable to make the orders sought.  On 9 September 2008, the application was referred to a Judge of this Court, pursuant to Rule 77 of The Probate Rules 2004 (SA).

    Jurisdiction of the Court

12. The Supreme Court, in exercising the jurisdiction vested in it by section 5 of the Administration of Probate Act 1919 (SA) and section 18 of the Supreme Court Act 1935 (SA), has power to grant or revoke probate of wills or letters of administration.[1]  The discretion conferred upon the Court by these provisions is broad and general.  The proper exercise of the discretion will always turn on the particular facts of the case.[2]

    [1]    John Ross Martyn and Nicholas Caddick (eds.) Williams, Mortimer & Sunnuks: Executors, Administrators and Probate (19th ed, 2008) at [27-15]; Caldar v Public Trustee [2003] NSWCA 187 at [5].

    [2]    Greenland v Baldwin and Neale [2007] 1 Qd R 117 at [3].

13. In Richardson v Rearden,[3] in the context of an application for revocation of letters of administration, Campbell J discussed the exercise of the court’s jurisdiction in the following terms:[4]

    A grant of letters of administration in common form is an interlocutory order.  It is open to a court exercising probate jurisdiction to revoke that grant at any time upon a proper case being established: Caldar v Public Trustee[2003] NSWCA 187 at [5]. The sorts of situation that can count as a “proper case” are not rigidly confined. In Neilson v Public Trustee - The Estate of Ellen Letitia Neilson (8 May 1992 unreported, BC92018 88) Powell J said, at 14–15:

    That the Court possesses, and, when necessary and appropriate, will exercise, the power to revoke a grant which it has made — even after the death of the original grantee (see, Ayling, deceased January (1949) (UK) unreported, but noted Tristram and Coote's Probate Practice 24 Ed (1973) at 470) In Re Gillard (1949) VLR 378) is undoubted, the classes of case in which the power has, in the past, been exercised being usually described as being: 1. where the grant is, in effect, a nullity; 2. where the surname or first Christian name, of the deceased in the grant is seriously incorrect; 3. where the grant has been obtained on a false, or incorrect, basis; 4. where, by reason of supervening events, the grant has become defective. (see, for example Tristram and Coote op cit at 426–433; Williams Mortimer and Sunnucks: Executors Administrators and Probate 16 Ed (1982) at 335–339).

    It should, however, be noted that, although the power to revoke a grant undoubtedly exists, it is not exercised as of course, or even as a matter of right; rather, the question whether, in a particular case, the power ought to be exercised is one which lies in the discretion of the Court, having regard to all the circumstances of the case (In the Will of Lamont (1881) 7 VLR (IP and M ) 86; In re Goode (1890) 11 NSWLR (Eq) 281; Re Gillard (above)). Since that discretion is to be exercised after having regard to all the circumstances of the particular case, it is undesirable — and, in any event, probably impossible — to attempt to lay down, in advance, any general principles as to the way particular circumstances ought to affect the exercise of that discretion.

    [3]    Richardson v Rearden [2006] NSWSC 1252

    [4]    Richardson v Rearden [2006] NSWSC 1252 at [16].

14. Notwithstanding the breadth of the Court’s discretion, two principal grounds are commonly cited[5] upon which a grant of probate or administration may be revoked.  First, where the grant was made on the basis of facts later established to be untrue, such that had the true position been known to the Court, it would not have made the original grant.  Secondly, where due administration of the estate is frustrated by subsequent events.  An application for revocation based upon the discovery of a will after a grant of administration is a matter falling within the former ground.[6]

    [5]    LexisNexis, Halsbury’s Laws of Australia - Online, 395 Succession, III Grants, (2) Administration, (E) Revocation of Grants, (I) Grounds, [395-3425].  See also Roger Kerridge, Parry & Clark: The Law of Sucession (11^th ed, 2002) at [19-49]-[19-50].

    [6]    JI Winegarten, RD Costa and T Synak, Tristam And Coote’s Probate Practice (29th ed, 2002) at 17.11, John Ross Martyn and Nicholas Caddick (eds.) Williams, Mortimer & Sunnuks: Executors, Administrators and Probate (19th ed, 2008) at [27-19].  Examples of cases involving facts of this kind include: Sinclair v Forsyth [2008] VSC 250 at [3]; Mortimer v David; Estate Dawn Audrey Day Deceased [2005] NSWSC 1166 at [24]; Mercieca v State Trustees Ltd [2001] VSC 69; In the Will of Christian (1975) 25 FLR 89; Re Proud (dec’d) [1951] QWN 17; Butler v Meriga [1904] St R Qd 248.

    The Application

15. If the deceased died with a valid will, it is clear that the grant of letters of administration should be revoked.[7]  This proposition leads to the need to determine the following questions: “was a will validly made?”; and if the answer is affirmative: “had the will been revoked before death?”.

    [7]    Clifford Mortimer and Hamish HH Coates (eds.), Mortimer on Probate Law and Practice (2^nd ed, 1927) p.426.

    Was a Will Validly Made?

16. As earlier observed, the original will cannot be located.  Keith Williamson Sinkinson, manager estate services in the Office of Public Trustee, by affidavit evidence, has deposed to the unsuccessful search for the will, and as to the most probable reason for its loss:

    Public Trustee is unable to locate the original will.

    Public Trustee has retained records of wills withdrawn dating back to when the will was executed and a search of these records has failed to locate a record of the will being withdrawn.

    At the time of making the will it was the usual practice of the office to make a will card recording details of the testator and the date of signing of the will.  These records were checked annually against the wills held in safe custody and any discrepancies rectified.  No record can be located that a discrepancy was ever raised in relation to this will.

    In 1989 all of the records contained on the will cards were recorded on a computer system.  A detailed reconciliation was carried out at that time that all wills held a record created in the new computer system.  There is no record of a will being held for the deceased by Public Trustee at that time and no record of a will was recorded on the computer system.

    …

    I can only surmise that the original will of the deceased was not filed into our safe custody and was misplaced in our office around the time it was originally executed.  I can find no evidence to support the fact that the deceased withdrew the will after its execution.

17. A copy of the will, bearing a stamp signed by an employee of Public Trustee, James Edward Robert Reilly, which indicates that the original will was executed on 21 January 1982 and lodged in Public Trustee’s office, has been produced to the Court.  The stamp provides as follows:

    C O P Y

    ORIGINAL WILL LODGED IN
    THE OFFICE OF THE
    PUBLIC TRUSTEE
    EXECUTED ON … 21.1.82…

    [Signature of James Reilly]
    …………………………….

18. Mr Reilly has deposed to recognising his signature on the stamp.  He was however unable to recall the deceased, either when he provided instructions or executed the will.  He had no specific recollection in relation to the original will.  Mr Reilly also deposed to Public Trustees’ usual procedure for the execution and custody of wills:

    In my experience with Public Trustee, the usual procedure on the execution of wills was to place the original will in the “Wills Packet” which was then marked with the Testator’s name.  The packet remained unsealed and was placed in a container with other wills executed that day.  This container was known as the “Summary Box”.  An index card would have been created with the testator’s details and the date of the will.  As I recall, a checking officer on a daily basis would physically check the will to ensure that it was executed correctly and that the will and the name packet matched.  The will was placed back into the packet and sealed by the checking officer who would initial across the deal of the packet.  Thereafter a clerical officer would file the will into the wills security room.

19. Vincenzo Musolino has deposed to a conversation with the deceased, in which the deceased informed him that he had gone to Public Trustee in order to make his will.  The executor had a similar conversation with his mother.  He was unable to recall the date of these conversations.  He further deposed to having talked about the making of the wills with his parents on many later occasions.  Orlando Musolino has deposed to three separate conversations with the deceased in or about 2001, concerning the deceased’s will.  On these occasions, Orlando Musolino asked the deceased words to the effect of, “Do you have a will?”.  The deceased answered words to the effect of “Yes, I have made a will.  It is with Public Trustee”.

20. The factual circumstances of this case bear some similarity to In the Estate of Gwynne, Deceased,[8] where this Court granted probate of a carbon copy of an original will. The copy was not signed by the deceased or by any attesting witness. However, the deceased’s solicitor, David Thomas, made a notation below the attestation clause on the carbon copy “Original signed and taken by Miss Gwynne” and dated and initialled it “25/6/53 DAGT”. Mr Thomas died some two decades prior to the litigation, and there was therefore no direct evidence of the notation. The Court held that the notation was a written statement tending to establish facts within the personal knowledge of the deceased solicitor, and was admissible as to the truth of the facts asserted, pursuant to section 34C(1) of the Evidence Act 1929 (SA). The notation was then admitted into evidence as tending to prove the fact that the original will was signed by the deceased in Mr Thomas’ presence. The reasoning in Gwynne is apposite in the present application.

    [8]    In the Estate of Gwynne, deceased (1988) 48 SASR 209.

21. It is to be observed that Gwynne was recently applied by the Supreme Court of New South Wales in Koerstz v Norman,[9] where an original will had been destroyed, and a photostat of the original will displaying all relevant signatures was sought to be proved.

    [9]     Koerstz v Norman [2008] NSWSC 133.

22. The present case however goes one step further than Gwynne.  Mr Reilly has given direct evidence as to the circumstance of notation and the usual procedure for the execution and custody of wills.  There is also corroborative evidence from Vincenzo Musolino and Orlando Musolino concerning the deceased’s involvement with Public Trustee. 

23. The totality of the evidence before the Court supports the existence of an original valid will which has been lost.  I find that the deceased engaged the services of Public Trustee and made a valid will, the original of which cannot be found.  I am satisfied that the will was duly executed.  I am further satisfied that the copy will is a true and correct copy of the original.  In light of this finding, it is now necessary to consider whether the original will had been revoked before the death of the deceased.

    Had the original will been revoked?

24. There is a presumption that if an original will cannot be found, it has been destroyed by the deceased animo revocandi.[10]  However, as observed by this Court in In the Estate of Yeo,[11] the presumption of revocation does not apply where the original will cannot be traced into the custody of the deceased during the life of the deceased.  I am satisfied that the deceased did not have custody of the original will during his lifetime.  The presumption of revocation does not arise.  As earlier observed, Mr Sinkinson deposed that Public Trustee has retained records of wills withdrawn dating back to when the deceased’s will was executed.  A search of these records has failed to locate a record of the deceased’s will being withdrawn.  There is no evidence of revocation.  In conclusion, I am satisfied that the original will was not revoked before the death of the deceased.

    [10]   Curley v Duff (1985) 2 NSWLR 715 at 719.

    [11]   In the Estate of Yeo (1978) 17 SASR 545 (Jacobs J). See also Karwala v Skrzypczak; In the Estate of Ratajczak [2006] NSWSC 203 (Windeyer J).

    Consent to Grant

1. As earlier observed, pursuant to Rule 68 of The Probate Rules, an application for an order admitting to proof a copy will must be supported by, inter alia, the written consent by all persons who may be prejudiced by the grant.  The Rules, however provide a discretion to dispense with the requirements for consent where “it is just and expedient to do so”.

2. As previously noted, Vincenzo Musolino, Orlando Musolino and Stella Monteleone have consented to the grant.  Consents from Arturo Musolino and Armando Musolino have been sought but not received.

3. In In the Estate of Roediger Deceased,[12] an application was made for probate of a certified copy of a will lost after the death of the testratrix.  The following facts were established by affidavit evidence – the due execution of the will; the existence of the will and its loss after the death of the testatrix; efforts made to find the original will; the accuracy of the copy put forward for proof; that advertisements had been published and that no replies had been received; that there was a complete copy of the document which the Court was asked to admit to probate.  The only fact which was not met, and could not be met in the circumstances of the case, was that all person who might be prejudiced by the grant had consented and were sui juris.  This was because the testatrix’s children, who were the residuary beneficiaries under the will, were all infants and were therefore not sui juris.[13]  Mitchell J observed that it was the practice of this Court to grant the motion in a case of this nature where there was no doubt that the document sought to be proved is a copy of the original will.[14]  This proposition has since been cited with approval in this Court.[15]  I respectfully agree.

   [12]   In the Estate of Roediger Deceased [1967] SASR 118 (Mitchell J). See also In the Estate of Vauk (1986) 41 SASR 242 at 249 (Legoe J); In the Estate of Gerard, deceased (2007) 251 LSJS 176 at [30]-[31].

   [13]   In the Estate of Marden, deceased [2008] SASC 312 at [5].

   [14]   In the Estate of Roediger Deceased [1967] SASR 118 at 120. See also In the Estate of Vauk (1986) 41 SASR 242 at 249 (Legoe J); In the Estate of Gerard, deceased (2007) 251 LSJS 176 at [30]-[31].

   [15]   In the Estate of Vauk (1986) 41 SASR 242 at 249 (Legoe J); In the Estate of Gerard deceased (2007) 251 LSJS 176 at [30]-[31] (Gray J).

4. 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

5. 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.

6. 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 21^st day of January 1982 as contained in a copy (being the exhibit marked “LC-1” to the affidavit of Louise Cufone sworn on the 11^th 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.