JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	16 August 2013
DATE OF JUDGMENT:	4 October 2013
CASE MAY BE CITED AS:	Re Rosaro
MEDIUM NEUTRAL CITATION:	[2013] VSC 531

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WILLS – Informal wills – Whether unexecuted document expresses testamentary intention – Whether the deceased’s wishes are testamentary in nature – Whether the document was intended to be the final will – Meaning of ‘without more’ – Whether conduct and statements subsequent to the making of an informal will is relevant to intention – Where deceased is aware that the declaration is informal and does not wish to take steps to rectify it – Grant of probate refused – Wills Act 1997, ss 7 and 9.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Mah	State Trustees Limited

HER HONOUR:

Introduction

By originating motion filed 5 November 2012, State Trustees Ltd (‘State Trustees’) seeks a grant of probate of the informal will dated 16 April 1986 of Anna Rosaro, deceased (‘the deceased’). State Trustees has been authorised by Magdalena Wisniewski, the executrix appointed by the deceased in her informal will, to apply for the grant of probate.

Background

The deceased was born on 26 April 1919. She married on 4 October 1947. She immigrated to Australia on 30 September 1950, aged 31 years. Her husband, Mario Rosaro, died on 3 October 1975. The deceased died on 8 April 2011. Her estate at the date of her death comprised cash deposits totalling $181 906. The deceased’s assets had been administered by State Trustees since 24 April 1997, when it was appointed administrator of the deceased’s legal and financial affairs.

By a statutory declaration dated 16 April 1986, a declaration was made, said to be by the deceased, in the following terms:[1]
[1] The words in italics are handwritten.

I ANNA ROSARO of 82 LYNCH ROAD FAWKNER 3060 in the State of Victoria AUSTRALIA do solemnly and sincerely declare this as being my Last will.
THAT being of sound mind and good health, declare that in the event of my death the following should take place: —
That I be cremated in the country in which I die, and that my ashes be placed in a small container. This container with my ashes must be transfered [sic] to Santana Cemetery in Trieste, Italy. To be placed by the side of my late husband Mario Rosaro who deceased on 3–10–1975, whose position in Santana Cemetery is Locola–1129 Camp 32 (XXX II) The cost incurred for my funeral arrangements must come from my possessions and estate which I leave behind. After my funeral arrangements have been taken care of, I wish the remainder of my estate and possessions to be given to Hospital USL Units Sanitarie Locale Catinara, Trieste, Italy.

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 Rosaro

Details

AGLC: Re Rosaro [2013] VSC 531
Case: [2013] VSC 531
Decision Date: 4 October 2013

CaseChat Overview and Summary

The case of Re Rosaro involved the determination of whether an unexecuted document expressed the testamentary intention of the deceased. The deceased, who was aware that the document was informal, had not taken any steps to rectify it, leading to a dispute regarding the validity of the document as a testamentary instrument. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue was whether the document constituted a valid informal will. This involved determining whether the deceased’s wishes were of a testamentary nature and whether the document was intended to be the final expression of those wishes. The court also needed to interpret the phrase 'without more' in the context of the Wills Act 1997, and consider the relevance of subsequent conduct and statements in assessing testamentary intention.

The court held that the document did not express a testamentary intention as it lacked the necessary formality and certainty required by law. The court emphasised that an informal will must be without more to be valid, meaning that it must be clear and unambiguous in expressing the deceased’s testamentary intentions. The court found that the document did not meet this standard, and that the deceased’s subsequent conduct did not indicate a clear intention to treat the document as a will. As a result, the court refused to grant probate.

The court’s decision was based on the statutory requirements under the Wills Act 1997, which demands that a will be in writing, signed by the testator, and made in the presence of witnesses. The court found that the document in question did not satisfy these requirements, and therefore could not be recognised as a valid will.

Orders