Re Occhipinti - [2023] VSC 730

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2020 23683

IN THE MATTER of the estate of GIUSEPPA OCCHIPINTI, deceased

GIOVANNA GURRIERI	Plaintiff
v
KATIA COMITINI	Caveator

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	7 December 2023
CASE MAY BE CITED AS:	Re Occhipinti
MEDIUM NEUTRAL CITATION:	[2023] VSC 730

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WILLS AND ESTATES – Caveats – Application by plaintiff for grant of probate opposed by caveator – Caveator alleges testator subject to undue influence at time of making will –Whether particulars establish prima facie case of testamentary undue influence – Prima facie case established—Gardiner v Hughes[No 2] [2019] VSCA 198 – Montalto v Sala (2016) 15 ASTLR 393 – Re Robustelle (No 2) [2023] VSC 72.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Rizzi	Natoli Legal
For the Caveator	Mr M J Biviano	Costanzo Lawyers

HIS HONOUR:

Introduction

The deceased died on 24 November 2019 at 85 years of age. She was survived by her four sisters, Giovanna Gurrieri (the plaintiff), Emilia Guastella, Maria Costantin, and Lucia Aurora Zigarella, and her niece, Katia Comitini (the caveator).

The deceased left a will dated 15 October 2014 (the 2014 will) by which she appointed the plaintiff as her executor and provided for her estate to be held on trust and distributed in equal shares to her four sisters.

The caveator filed a caveat in relation to the deceased’s estate on 22 June 2020. Although she is not a beneficiary under the 2014 will, the caveator is the sole beneficiary and executor under the deceased’s penultimate will dated 19 May 2006 (the 2006 will). If probate of the 2014 will is not granted, the 2006 will would stand as the last valid will of the deceased. The caveator’s standing to challenge the 2014 will was accordingly not in issue.

The caveator seeks to impugn the validity of the 2014 will on four bases:

(a) the deceased lacked testamentary capacity when she made the will;

(b) the will was made without the deceased’s knowledge and approval;

(c) the will was made in suspicious circumstances;[1] and

(d) the deceased made the will under the undue influence of three of her sisters (the plaintiff, Ms Guastella and Ms Costantin) (the Sisters), or either of them.

[1]Although this terminology is not used in the grounds of objection lodged by the caveator, the relevant paragraphs of the grounds are properly characterised in this way.

The plaintiff applied for a grant of probate of the 2014 will on 17 July 2020. The inventory of assets and liabilities filed with the plaintiff’s application records the gross value of the estate as $921,275.83 and that the deceased also has an interest in properties in Italy, the value of which was undetermined.

By an affidavit sworn 1 September 2017, Daniela Petrolo, legal practitioner, deposed that the deceased executed the 2014…

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 Occhipinti

Details

AGLC: Re Occhipinti [2023] VSC 730
Case: [2023] VSC 730
Decision Date: 7 December 2023

CaseChat Overview and Summary

The case of Re Occhipinti involved the plaintiff, who sought the grant of probate on the will of a deceased individual, opposed by the defendant, who had lodged a caveat against the grant of probate. The defendant claimed that the testator was subject to undue influence when the will was made. The matter was heard in the Supreme Court of Victoria. The primary legal issue was whether the particulars in the caveat lodged by the defendant established a prima facie case of testamentary undue influence, thereby justifying the maintenance of the caveat.

The court considered the relevant legal principles established in previous cases, such as Gardiner v Hughes [No 2], Montalto v Sala, and Re Robustelle. The court found that the particulars in the caveat did establish a prima facie case of testamentary undue influence. The defendant had provided sufficient evidence to demonstrate that the testator was subject to undue influence, which included the existence of a close relationship between the testator and the beneficiary, as well as the beneficiary's involvement in the preparation of the will and the testator's financial affairs. This was sufficient to meet the threshold required to maintain the caveat.

The court held that the defendant had established a prima facie case of testamentary undue influence, and therefore the caveat should be maintained. This meant that the grant of probate could not proceed without first resolving the issue of undue influence. The court ordered that the matter proceed to a full hearing to determine whether testamentary undue influence had in fact occurred. This decision ensured that the testator's wishes would not be implemented until the issue of undue influence was properly examined.

Orders