Re Pellettieri - [2025] VSC 20

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
TRUSTS EQUITY AND PROBATE LIST

S PRB 2020 08731

IN THE MATTER of the Estate of FRANCESCO PELLETTIERI (also known as FRANK PELLETTIERI) deceased

and

IN THE MATTER of an application under rule 11 of the Supreme Court (Administration and Probate) Rules 2023

BETWEEN:

MARIA TRINCHI	Plaintiff
And
MARIO BERNARDO	Applicant for Revocation

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	19 December 2024
DATE OF JUDGMENT:	4 February 2025
CASE MAY BE CITED AS:	Re Pellettieri
MEDIUM NEUTRAL CITATION:	[2025] VSC 20

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PROBATE — Application for revocation of grant of probate under Supreme Court (Administration and Probate) Rules 2023 (Vic), r 11 — Whether a prima facie case for investigation established — Presumption of testamentary capacity where will is solicitor-prepared and duly witnessed — Whether testator lacked testamentary capacity at the time of execution — Consideration of cognitive impairments, illiteracy, and lifelong intellectual disability in rebutting presumption — Whether testator knew and approved the contents of the will — Nock v Austin (1918) 25 CLR 519, referred to — Whether involvement of the primary beneficiary in will preparation raised suspicious circumstances — Evidentiary weight of post-will medical assessments — Prima facie case for investigation established — Revocation application allowed to proceed.

PRACTICE AND PROCEDURE — Summary dismissal — Application under Civil Procedure Act 2010 (Vic), ss 61, 63 and Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 22.03, 23.02 — Consideration of delay — Revocation application filed four years after grant of probate — Whether delay constituted an abuse of process — Rasheed v Rasheed (1999) 73 SASR 346, and Photios v Photios (2019) 372 ALR 264 referred to — Whether delay resulted in prejudice to the estate and beneficiaries — Re Hayes [2018] VSC 239, referred to — Whether unexplained delay warranted summary dismissal — No evidence as to prejudice caused by delay — Mere delay insufficient to justify summary dismissal — Application for dismissal refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Reynolds	Eastern Bridge Pty Ltd
For the Applicant	Mr J. Rizzi	Davis Zucco Lawyers

HER HONOUR:

Introduction and background

This proceeding commenced in 2020 as an application for the grant of probate of the will of Mr Francesco Pellettieri (‘Frank’). Frank died on 2 February 2020, at the age of 54. Frank was born very prematurely, and suffered from an intellectual disability and epilepsy throughout his life. He had no brothers or sisters, and never married. Frank’s father died in 1985, and his mother died in 1995. After the death of his parents, his closest blood relatives were his cousins, the plaintiff in this proceeding, Ms Maria Trinchi, and the applicant for the revocation of the grant of probate, Mr Mario Bernardo.

Maria and Mario are siblings, and each has a family of their own. It seems that both Maria and Mario provided assistance and support to Frank throughout his life, Maria more…

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 Pellettieri

Details

AGLC: Re Pellettieri [2025] VSC 20
Case: [2025] VSC 20
Decision Date: 4 February 2025

CaseChat Overview and Summary

In the matter of Re Pellettieri, the deceased's daughter, Ms. Pellettieri, applied for the revocation of the grant of probate, arguing that her father lacked testamentary capacity when he executed his will. The dispute was heard in the Supreme Court of Victoria. The primary issue before the court was whether a prima facie case for investigation had been established to rebut the presumption of testamentary capacity, given that the will was prepared by a solicitor and witnessed. The court also had to consider whether the delay in filing the revocation application four years after the grant of probate warranted summary dismissal.

The court found that a prima facie case for investigation was established, primarily due to the testator's cognitive impairments, illiteracy, and lifelong intellectual disability. These factors were deemed sufficient to rebut the presumption of testamentary capacity. The court considered the involvement of the primary beneficiary in the preparation of the will and the evidentiary weight of post-will medical assessments. The court concluded that these circumstances raised suspicious circumstances that warranted further investigation. Regarding the delay in filing the revocation application, the court found that there was no evidence of prejudice to the estate or beneficiaries, and therefore, the delay did not justify summary dismissal of the application.

The court allowed the application for revocation to proceed, finding that a prima facie case for investigation had been made. The court also rejected the argument that the delay in filing the revocation application warranted summary dismissal, as there was no evidence of prejudice to the estate or beneficiaries. This decision ensures that the court will further investigate the circumstances surrounding the execution of the will, particularly the testator's testamentary capacity at the time of execution.

Orders