JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March 2016
DATE OF JUDGMENT:	23 May 2016
CASE MAY BE CITED AS:	Re Montalto
MEDIUM NEUTRAL CITATION:	[2016] VSC 266

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PROBATE — Where caveat objecting to grant of probate lodged with Registrar of Probates — Where caveator filed grounds of objection — Where caveator required to file particulars of grounds of objection — Whether caveator’s grounds of objection sufficiently particularised to proceed

PRACTICE AND PROCEDURE — Where separate proceeding issued by plaintiffs against caveator to set aside inter vivos transactions — Whether issues in dispute in probate proceeding and separate proceeding should be determined together to avoid multiplicity of proceedings and inconsistency of decisions — Blair v Curran (1939) 62 CLR 464 — Supreme Court Act1986, s 29(2).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M J Hoyne	DSA Law Pty Ltd
For the Caveator	Mr J D Mattin	Frank J Sagaria & Associates

HER HONOUR:

Background

Carmela Montalto died on 23 May 2015, aged 91 years (‘the deceased’ or ‘the testatrix’). Her husband, Mauro Montalto, pre-deceased her on 28 September 2010. She is survived by her three adult sons, Antonino Montalto (‘the caveator’), Tommaso Montalto and Guiseppe Montalto.

Her last will dated 11 February 2013 (‘the 2013 will’) appointed Giuseppe Sala, who is a family friend, and Giuseppe Montalto, her son, as the executors of her will and trustees of her estate. Her residuary estate is divided between her three sons, with 20 per cent to the caveator, 35 per cent to the second plaintiff and 45 per cent to Tommaso Montalto. The 2013 will purports to explain the deceased’s reasons for leaving her estate to her sons in those percentages.

By originating motion filed 13 November 2015, Giuseppe Montalto and Giuseppe Sala (‘the plaintiffs’) filed an application for grant of probate of the 2013 will. The inventory of assets and liabilities filed with the application valued the deceased’s net estate at $2,181,796. Included in the inventory of assets are two properties, 55 Wildwood Road, Whittlesea and 227 McDonald’s Road, Epping, each valued at $950,000. These properties are not in the name of the deceased as a result of transfers signed in September 2012 (‘the September 2012 transfers’) whereby the properties were transferred into the name of the deceased and the caveator as joint proprietors. The September 2012 transfers are the subject of a proceeding issued on 14 October 2015 in this Court by the plaintiffs as executors of the estate against the caveator seeking orders for the properties to be transferred to the estate (‘the transfer proceeding’).[1]
[1]Proceeding number S CI 2015 05349.

Pursuant to requisitions dated 16 November 2015 from the Registrar of Probates, the plaintiffs filed an affidavit sworn 11 December 2015 by the first plaintiff deposing to…

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 Montalto

Details

AGLC: Re Montalto [2016] VSC 266
Case: [2016] VSC 266
Decision Date: 23 May 2016

CaseChat Overview and Summary

In the matter of the estate of a deceased person, a caveat was lodged objecting to the grant of probate. The caveator subsequently filed grounds of objection, which the respondent sought to have dismissed due to insufficient particularisation. The matter was heard in the Supreme Court of Victoria. The primary legal issue was whether the caveator's grounds of objection were sufficiently particularised to proceed with the probate application. Additionally, the court had to consider whether the issues in dispute in the probate proceeding and a separate proceeding issued by the plaintiffs against the caveator should be determined together to avoid multiplicity of proceedings and inconsistency of decisions.

The court examined the particulars of the grounds of objection filed by the caveator and found that they were not adequately detailed. The particulars were considered vague and did not provide enough information for the respondent to adequately respond to the objections. Furthermore, the court considered whether it was appropriate to consolidate the probate proceeding with the separate proceeding to ensure consistency in the court's decisions. The court found that the issues in both proceedings were sufficiently related to warrant consolidation under section 29(2) of the Supreme Court Act 1986. This decision was in line with the principles established in Blair v Curran.

The court dismissed the caveator's grounds of objection due to their insufficient particularisation. Additionally, the court ordered that the probate proceeding be consolidated with the separate proceeding to avoid multiplicity of proceedings and inconsistency of decisions. The consolidated proceeding would allow for a comprehensive determination of the issues in dispute between the parties.

Orders