Re Pellettieri

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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

  1. 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.

  1. 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…

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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.

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