Re Giaimo (No 1) - [2025] VSC 55

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY AND PROBATE LIST

S PRB 2024 10750

IN THE MATTER of the Deceased Estate of ANGELO GIAIMO

VINCENZO GIAIMO	Plaintiff
v
VITO GIAIMO JOSEPH GIAIMO	Defendants

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JUDGE:	KEOGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 February 2025
DATE OF RULNG:	21 February 2025
CASE MAY BE CITED AS:	Re Giaimo (No 1)
MEDIUM NEUTRAL CITATION:	[2025] VSC 55

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PRACTICE AND PROCEDURE — Legal practitioners — Contested application for grant of probate — Testamentary capacity in issue — Application to restrain legal firm from acting where principal solicitor prepared will and witnessed its execution — Where likely that legal practitioner will be material witness about controversial matters — Where legal practitioner referred conduct of proceeding to another legal practitioner in same firm — Steps taken to isolate legal practitioner from conduct of proceeding do not mitigate conflict of interests — Makripoulias v Arhontovasilis [2022] VSC 53 — Veall v Veall [2015] 46 VR 123 — Application granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	C Sparke KC	SGM Legal
For the Defendants	T Bevan	P W Webster

HIS HONOUR:

The deceased, Angelo Giaimo, died in April 2024. The parties to this proceeding are his three sons.

In May 2024, the plaintiff Vincenzo Giaimo (‘Vincenzo’) applied for a grant of probate as the sole named executor in the deceased’s final will, executed on 26 April 2023 (‘final will’). The defendants, Vito and Joseph Giaimo (‘Vito’ and ‘Joseph’ respectively), lodged a caveat with the Registrar of Probates over the estate of the deceased and filed grounds of objection to Vincenzo’s application for probate. Relevantly, the first ground of objection is that the deceased lacked testamentary capacity during the period shortly before and at the time he executed his final will.

Vincenzo was initially represented in the proceeding by a solicitor, Giulio Marra. Marra was also responsible for the drafting and witnessing of the deceased’s final will. In October 2024, the defendants wrote to Marra inviting him to cease to act on the basis that he would be required to give evidence in the proceeding about the deceased’s testamentary capacity, and was therefore in a position of conflict. Marra responded by transferring the conduct of the proceeding for the plaintiff to Nicholas Raso, another solicitor employed at his firm SGM Legal Pty Ltd (‘SGM Legal’). The defendants do not accept that the conflict they identified has been resolved by transfer of the conduct of the proceeding to Raso, and have applied for orders that SGM Legal be restrained from acting for the plaintiff in this proceeding.

Background

The deceased was 87 years of age when he died in April 2024. The cause of death recorded in the death certificate is ‘Aspiration pneumonia 12 Days, Vascular dementia 5 Months’.

The deceased made his penultimate will in May 2000. In that will, he named the parties as co-executors and divided his estate equally between them.

In an affidavit…

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 Giaimo (No 1)

Details

AGLC: Re Giaimo (No 1) [2025] VSC 55
Case: [2025] VSC 55
Decision Date: 21 February 2025

CaseChat Overview and Summary

The case of Re Giaimo (No 1) involved a contested application for the grant of probate concerning the estate of a deceased individual. The dispute arose when it was alleged that the deceased lacked testamentary capacity at the time of executing the will, which was drafted and witnessed by a principal solicitor of a legal firm. The application was heard by the Supreme Court of Victoria, which was required to determine whether the legal firm should be restrained from acting in the proceedings due to a potential conflict of interest.

The central legal issue before the court was whether the conflict of interest created by the principal solicitor's involvement in preparing and witnessing the will, coupled with the likelihood that the solicitor would be a material witness in the contentious matters, warranted restraining the legal firm from continuing to act. The court considered the principles established in Makripoulias v Arhontovasilis and Veall v Veall, which underscore the importance of maintaining the integrity of the legal process and avoiding conflicts of interest. The court found that the steps taken to isolate the principal solicitor from the conduct of the proceeding were insufficient to mitigate the conflict of interest. The potential for the solicitor to provide biased evidence due to their involvement in the will's creation and execution was deemed too significant to allow the legal firm to continue acting.

The court granted the application to restrain the legal firm from acting in the proceedings, recognising the necessity to uphold the impartiality of the legal process. The decision underscored the importance of avoiding even the appearance of impropriety in cases involving contested wills and testamentary capacity. The court concluded that the conflict of interest was too substantial to be managed within the firm, necessitating the complete disqualification of the legal firm from the case. The final orders included a prohibition on the legal firm from continuing to act in the probate application and a direction for the parties to secure alternative legal representation.

Orders