Re Estate of Constantino Sini, Deceased; Vincent Francis Stanizzo v Glenn a Henniker and Ors
[2013] NSWSC 1459
•02 October 2013
Supreme Court
New South Wales
Medium Neutral Citation: Re Estate of Constantino Sini, Deceased; Vincent Francis Stanizzo v Glenn A Henniker and Ors; [2013] NSWSC 1459 Hearing dates: 2 October 2013 Decision date: 02 October 2013 Jurisdiction: Equity Division Before: Lindsay J Decision: Order for special letters of administration (in favour of NSW Trustee and Guardian) pending determination of a contested right to administration, together with procedural orders.
Catchwords: Probate - Contested right to administration - Order for special letters of administration pending determination - Appointment of NSW Trustee and Guardian as administrator - Protection of estate and interests of all concerned. Legislation Cited: - Cases Cited: Bowler v Bowler (Young J, 7 June 1990) BC 9002347 at 3-6
Telfer v Telfer (No 2) [2013] NSWSC 823 at [6]-[12].Texts Cited: - Category: Interlocutory applications Parties: Vincent Stanizzo (Plaintiff)
Glen A Henniker (1st Defendant)
Gian Sechi (2nd Defendant)
Maria Giuseppa Sassu (3rd Defendant)
Giovannino Sini (4th Defendant)
Lorenzine Sini (5th Defendant)
Elisabetta Sini (6th Defendant)
Davide Castelli (7th Defendant)
Sonia Castelli (8th Defendant)
Maria Giuseppa Sini (9th Defendant)
Maria Giovanna Sini (10th Defendant)Representation: Counsel:
C Waterstreet with M Rollinson (Plaintiff and Cross Defendant)
M Lawson (2nd, 3rd, 4th, 5th, 6th, 9th and 10th Defendants)
Solicitors:
Justice Lawyers (Plaintiff and Cross Defendant)
Coyne Legal (2nd, 3rd, 4th, 5th, 6th, 9th and 10th Defendants)
File Number(s): 2013/00100460
Judgment
Constantino Sini ("the deceased") late of 13 Bristol Street, Berkeley, in the State of New South Wales, died in Wollongong District Hospital on 17 February 2013, aged about 75 years, leaving as his last will and testament a Will dated 16 August 2002 ("the Will") and an estate, apparently including his home, not identified with precision in the evidence adduced by any party to the current proceedings.
By clause 2, the Will names the plaintiff as executor and trustee. He evidently drafted the Will in the course of the practice of a solicitor he then conducted in Wollongong.
By clause 3, the Will provides for the deceased's estate, after the payment of debts, to be held on trust for his brothers and sisters, identified in the Will, or their survivor in equal shares as tenants in common.
I am told that one, and only one, of the deceased's named siblings (Rosa Sini) predeceased him and that all the others remain alive, living in Italy.
Since the time the Will was executed by the deceased, the plaintiff has ceased practising as a solicitor (at least for the time being) and become embroiled in criminal proceedings, not without success.
The deceased's surviving siblings oppose the plaintiff's application for a grant of probate of the Will. They contend that he is not a fit and proper person to be the recipient of a grant, or otherwise to be entrusted with administration of the deceased's estate. Their allegations include, but are not limited to, matters connected with the criminal proceedings in which the plaintiff has been involved.
The parties, on both sides of the record, have been so preoccupied with questions about the plaintiff's fitness to administer the deceased's estate that they have, or so it seems from the affidavits thus far filed in the proceedings, neglected to give any attention to identification or preservation of estate property or payment of the deceased's just debts, funeral and testamentary expenses. They have been totally distracted by allegations, and counter-allegations, bearing upon the character of the plaintiff, and on the character and motivations of another person (the first defendant) who, at one time, himself contemplated obtaining a grant of administration as a nominee of the deceased's siblings.
The Court is not presently able to adjudicate upon these serious, but, on one view, collateral disputes of fact. Interlocutory orders are necessary to preserve the estate. In my assessment, the interests of due administration of the estate, and of all parties to these proceedings, require that, before any further substantial steps are taken in prosecution of the parties' respective claims for final relief, a neutral party should become seized of estate administration. I propose, accordingly, to make an order for special letters of administration to be granted in favour of the NSW Trustee and Guardian, for a comparatively short period of time and for limited purposes.
In order to ensure that due order can be brought to administration of the estate by the NSW Trustee and Guardian in the meantime, I propose to adjourn the principal proceedings (the plaintiff's Amended Summons seeking a grant of probate, and the deceased's siblings' Amended Cross-Claim seeking an alternative grant of administration) for directions early in the new year.
The plaintiff, correctly, draws to attention authorities that establish that the Court will not lightly pass over a testator's choice as executor: Bowler v Bowler (Young J, 7 June 1990) BC 9002347 at 3-6; Telfer v Telfer (No 2) [2013] NSWSC 823 at [6]-[12].
However, the orders to be made today are intended to operate, only on an interlocutory basis, so that the estate of the deceased can be preserved in the interests of everybody interested in it or its administration.
I propose to make notations and orders to the following effect:
(1) Note the submitting appearances dated 26 August 2013 filed by Glenn Coyne, of Coyne Legal, on behalf of the first, seventh and eighth defendants.
(2) Note that Constantino Sini ("the deceased"), late of 13 Bristol Street, Berkeley, in the State of New South Wales (a copy of whose death certificate is annexed to these orders) died in Wollongong, New South Wales, on 17 February 2013.
(3) Note that all parties actively engaged in these proceedings accept that the deceased died leaving as his last will and testament a Will dated 16 August 2002 ("the Will"), a copy of which is annexed to these orders.
(4) Note that no party to the proceedings alleges that the Will is invalid.
(5) Note that the original of the Will is presently held by the Court pending further order of the Court.
(6) Note that the only dispute between the parties who are actively engaged in the proceedings (by way of an Amended Summons filed on 19 August 2013 and an Amended Cross Summons filed on 28 August 2013) is whether the plaintiff is a fit and proper person to be granted probate of the Will or otherwise to be entrusted with administration of the estate of the deceased.
(7) Order that any requirement for the publication of notice of an intention to apply for an order for special letters of administration, and any requirement for further compliance with the Probate Rules for the making of such an application, be dispensed with.
(8) Order, subject to further order, that, up to and including 17 February 2014 or any earlier grant of probate or letters of administration, the NSW Trustee and Guardian be granted special letters of administration of the estate of the deceased, limited to:
(a) identifying, taking possession of, preserving, receiving and managing all or any property of the deceased;
(b) paying just debts, funeral and testamentary expenses that may be payable in respect of the estate of the deceased;
(c) identifying persons who may be beneficially entitled to the estate of the deceased; and
(d) all and any functions (including the publication of notices) that may be incidental to (a), (b) or (c).
(9) Order that:
(a) the Amended Summons;
(b) the Amended Cross Claim; and
(c) the Notices of Motion filed on behalf of the plaintiff on 17 June 2013, 5 July 2013 and 26 September 2013,
be stood over to the list of the Probate Judge on 3 February 2014 for directions.
(10) Order, until further order, that no party is to file, serve or call upon any subpoena or notice to produce in these proceedings without the leave of a judge.
(11) Reserve all questions of costs.
(12) Reserve liberty to apply on three day's notice.
(13) Direct that the respective solicitors for the plaintiff (Olga Nikolovska of Justice Lawyers) and the second-sixth and ninth-tenth defendants (Glenn Coyne of Coyne Legal) each serve a copy of these orders on the NSW Trustee and Guardian.
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I certify that this and the preceding 5 pages
are a true copy of the reasons for judgment herein
of his Honour Justice Lindsay.
Associate
Date: 2 October 2013
Decision last updated: 02 October 2013