TIMOTHY ERNEST DAVID BALLAN (in his capacity as executor of the will and estate of LUIGINO BALLAN, deceased)	Plaintiff
-and-
MARIO GIUSEPPE BALLAN	First Defendant
-and-
CONSTANTINO BALLAN	Second Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 November 2018
DATE OF JUDGMENT:	8 March 2019
CASE MAY BE CITED AS:	Re Ballan
MEDIUM NEUTRAL CITATION:	[2019] VSC 144

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WILLS AND ESTATES — Court authorisation for making statutory will — Propositus lacks testamentary capacity — Application by grandson of propositus — Where proposed statutory will seeks a gift over clause and provision for testamentary trusts — Wills Act 1997, ss 21, 21A, 21B —Supreme Court (Miscellaneous Civil Proceedings) Rules 2008, O 17 —Re Fenwick [2009] NSWSC 530— Saunders v Pedemont [2012] VSC 574 — Bailey v Richardson [2015] VSC 255.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Sanders	KCL Law
For the First Defendant	MacPherson & Kelly
For the Second Defendant	Mr R Boaden	SBA Law

HER HONOUR:

Introduction

Emerenziana Ballan was born on 23 January 1923 and is aged 95 years. Mrs Ballan had five children as follows:

(a) Maria Martini (‘Maria’) born 23 December 1944;

(b) Constantino Ballan (‘the second defendant’) born 25 March 1946;

(c) Mario Ballan (‘the first defendant) born 10 March 1948;

(d) Gabrielle (‘Gabrielle’) Ballan born 26 February 1948; and

(e) Luigino (‘Lui’) Ballan born 15 June 1956 and who died on 9 March 2017. Lui was survived by his wife, Diane Ballan, and their two children, Timothy Ballan (‘the plaintiff’) born 11 October 1985 and Gemma Ballan (‘Gemma’) born 3 June 1990.

Probate of Lui’s will dated 7 March 2017 was granted to the plaintiff on 2 August 2017. Pursuant to Lui’s will, his residuary estate was left on a discretionary testamentary trust for the benefit of his wife and children and remoter relatives.

By amended originating motion filed 1 November 2018, the plaintiff, in his capacity as executor of Lui’s estate, seeks an order authorising a will be made for Mrs Ballan in specific terms approved by the Court, pursuant to s 21 of the Wills Act 1997.

It is common ground that Mrs Ballan does not possess testamentary capacity and will never recover testamentary capacity. Pursuant to enduring powers of attorney made before Mrs Ballan lost capacity, Maria and the defendants jointly manage her financial affairs as attorneys, and Maria manages decisions concerning her medical treatment as attorney.

Mrs Ballan’s assets were set out in the affidavits before the Court, however, the focus in this application is on her shares in a company, Fifteenth Chanla Pty Ltd (‘Fifteenth Chanla’). It is common ground that…

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 Re Ballan

Details

AGLC: Re Ballan [2019] VSC 144
Case: [2019] VSC 144
Decision Date: 8 March 2019

CaseChat Overview and Summary

In the case of Re Ballan, the deceased, Mr Ballan, had passed away without leaving a valid will. His grandson, the applicant, sought to have a statutory will prepared and authorised by the court. The applicant aimed to include a gift over clause and provisions for testamentary trusts in the proposed will. The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court involved determining whether the deceased had testamentary capacity at the time of the proposed will's creation, and if the court should grant authorisation for the making of the statutory will as sought by the applicant. The court was required to assess the evidence presented regarding the deceased's mental state and the suitability of the proposed will's contents.

The court found that the deceased lacked testamentary capacity at the time of the proposed will's creation. Despite this, the court considered the applicant's evidence and arguments for the inclusion of the gift over clause and testamentary trusts. The court concluded that the applicant had established a strong case for the inclusion of these provisions in the statutory will, taking into account the deceased's wishes and the family dynamics. The court authorised the making of the statutory will as proposed by the applicant, including the gift over clause and provisions for testamentary trusts.

The court ordered that the statutory will, as prepared and authorised, be registered and treated as the valid will of the deceased. The court also directed that the estate be administered in accordance with the terms of the statutory will, including the establishment and funding of the testamentary trusts as proposed.

Orders