Nobile v Scragg - [2011] SASC 182

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
In the Estate of VITTORIA COPPOLA, DECEASED
NOBILE v SCRAGG & ORS
[2011] SASC 182
Reasons of Judge Withers a Master of the Supreme Court
25 October 2011
SUCCESSION - FAMILY PROVISION AND MAINTENANCE - PRACTICE
Inheritance (Family Provision) Act application before probate - application to dismiss - application for concurrent or consecutive hearing of probate action and inheritance action.
Inheritance (Family Provision) Act 1972 (SA) ss 4, 7 and 8 , referred to.
Burns v Elder's Trustee and Executor Co Ltd & Anor (1968) SASR 297, applied.
Blunden v Blunden & Anor (2008) 258 LSJS 206; [2008] SASC 286; Central Electricity Generating Board v Halifax Corporation (1962) 3 All ER 915; Ruwolt v Drake-Brockman & Anor (Unreported, Master Ng, Supreme Court of WA, 29 March 1996); Re Purnell (1961) Queensland Law Reporter 47; Leue v Reynolds & Anor (1986) 4 NSWLR 590, considered.

In the Estate of VITTORIA COPPOLA, DECEASED
NOBILE v SCRAGG & ORS
[2011] SASC 182

JUDGE WITHERS. In Supreme Court Action No 1280 of 2010 the plaintiffs Severina Coppola and Peter Scragg, by a summons and statement of claim filed on 16 September 2010 sought an order that the will of Vittoria Coppola, who died on 31 August 2009, and which will was dated 2 June 1992, be admitted to probate in solemn form. The defendant to that action is Grazia Nobile who had filed a caveat in the probate office against the granting of such probate.
Mr Scragg in an affidavit filed on 11 October 2010 – FDN 3 – attested that Vittoria and her late husband Giuseppe, who had died on 16 April 1991, had three daughters, Grazia, Severina, and Concetina. They also had a son Francesco but he had died on 5 March 1971.
To his affidavit Mr Scragg exhibited a copy of the will of Vittoria that had been executed on 18 April 1972 – document 3A on the Court file. By this will Vittoria had appointed Severina as her executor, had left $100.00 to Grazia, and had left the balance of her estate in equal shares to Severina and Concetina.
Mr Scragg further exhibited a copy of Vittoria’s will of 2 June 1992, being document 3B on the Court file. By that will Vittoria appointed Severina and Mr Scragg as executors and left two-thirds of her estate to Severina and one-third to Concetina provided that she complied with certain conditions, which Mr Scragg attested had been met. There was a residual bequest to the children of those two beneficiaries if they did not survive Vittoria to take a vested interest. By paragraph 6 of that will Vittoria specifically excluded Grazia from the disposition of her estate as a result of alleged inappropriate conduct.
On 3 November 2010 Grazia filed a defence to the action taken by Severina and Mr Scragg – FDN 4 – in which defence she challenged the deceased’s legal capacity at the time that the 1992 will was…

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 Nobile v Scragg

Details

AGLC: Nobile v Scragg [2011] SASC 182
Case: [2011] SASC 182
Decision Date: 25 October 2011

CaseChat Overview and Summary

The case of Nobile v Scragg involved a legal dispute concerning an application under the Inheritance (Family Provision) Act. The plaintiff, Nobile, sought to have their application for family provision heard concurrently or consecutively with an ongoing probate action. The defendants, Scragg and others, opposed the application and sought to have Nobile's action dismissed. The matter was heard in a relevant Australian court, where the presiding judge considered the procedural and substantive issues presented.

The court was required to determine whether Nobile's application to have their Family Provision Act claim heard concurrently or consecutively with the probate action should be granted. Additionally, the court needed to decide if evidence presented in the probate action could be used in Nobile's Family Provision Act application. The defendants argued that Nobile's application should be dismissed and that the Family Provision Act claim was an abuse of process.

The court held that Nobile's application for a concurrent or consecutive hearing was refused, as it was not in the interests of justice to do so. The court found that the evidence from the probate action could not be used in the Family Provision Act application, as the applications were distinct and separate. The court further determined that Nobile's action should be dismissed, as it was considered an abuse of process. The court ordered that Nobile pay the costs of the defendants in the Family Provision Act action.

The final orders of the court were that Nobile's application for a concurrent or consecutive hearing be refused, that evidence from the probate action could not be used in the Family Provision Act application, that Nobile's action be dismissed, and that Nobile pay the costs of the defendants. The judge also certified the case as fit for counsel.

Orders

Orders of the court

1. That the plaintiff’s application FDN 2 in Action No 1740 of 2010 that this action be heard concurrently or consecutively with Action No 1280 of 2010 be refused.

2. That the said application that the evidence in Action No 1280 of 2010 be evidence in Action No 1740 of 2010 be refused.

3. That the application by the first and second defendants that Action No 1740 of 2010 be struck out be allowed and that the action be dismissed.

4. That the plaintiff is to pay the costs of the first, second and third defendants in Action No 1740 of 2010 to be taxed or agreed.

5. I certify fit for counsel.

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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