Re Tarquinio - [2019] VSC 164

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROBATE LIST

S CI 2018 01038

IN THE MATTER of the last will and testament of MARIA TARQUINIO

- and –

IN THE MATTER of section 21 of the Wills Act 1997

BETWEEN

JOHN BECKWITH (as Administrator of MARIA TARQUINIO, propositus)	Plaintiff
v
PETER TARQUINIO	Defendant

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JUDGE:	MOORE J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	15 March 2019	Revised: 18 March 2019
CASE MAY BE CITED AS:	Re Tarquinio
MEDIUM NEUTRAL CITATION:	[2019] VSC 164

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WILLS AND ESTATES — Court authorisation for the making of a statutory will — Propositus lacks testamentary capacity — Where applicant is the administrator of the estate for the propositus — Where proposed statutory will excludes a child of propositus — Wills Act 1997, ss 21, 21A, 21B – Re Gillam [2016] VSC 5.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B Guzzo	Cavoli & Co
For the Defendant	Mr B Gillies	RB Legal

HIS HONOUR:

Introduction

The plaintiff, Mr John Beckwith (Mr Beckwith), is the administrator of the estate of Maria Tarquinio (Mrs Tarquinio). He has filed an application pursuant to s 21 of the Wills Act 1997 (the Act) seeking orders for the making of a statutory will on her behalf (the proposed will).

Mrs Tarquinio is aged 63 years. She was married to her late husband, Mario Tarquinio (Mr Tarquinio) for some 43 years. Mr Tarquinio died on 20 December 2015. They had two children, Robert Tarquinio (Robert) and Peter Tarquinio (Peter), the latter being the defendant in this proceeding.

Mrs Tarquinio has suffered from poor health since 2010, when she suffered a stroke. Since that time she has had approximately 6 more strokes, including one in June 2017. Her health has deteriorated further since that time. She is bed ridden and requires full-time care, which she receives as a permanent resident of the Bupa Aged Care Facility in Donvale. It is common ground that Mrs Tarquinio lacks testamentary capacity.

No will made by Mrs Tarquinio has been uncovered.

The proposed will appoints Robert as the Executor and Trustee of Mrs Tarquinio’s estate and provides that the whole estate is to be bequeathed to him. In the event that Robert predeceases Mrs Tarquinio, the proposed will provides that Mrs Tarquinio’s whole estate be bequeathed to Peter.

Peter submits that the proposed will does not reflect Mrs Tarquinio’s wishes. He believes her wishes are to leave her estate to both of her sons in equal parts.

Factual background

Mrs Tarquinio suffers from poor health and requires full-time care. On 20 April 2016, the Victorian Civil and Administrative Tribunal (VCAT) made an order appointing Robert as Mrs Tarquinio’s guardian for the limited purpose of making decisions concerning her accommodation and as sole administrator of her estate with all the powers and duties conferred by…

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 Tarquinio

Details

AGLC: Re Tarquinio [2019] VSC 164
Case: [2019] VSC 164
Decision Date: 15 March 2019

CaseChat Overview and Summary

The case of Re Tarquinio involves the application of the Wills Act 1997 to authorise the making of a statutory will for a deceased individual, Tarquinio. The applicant, who is the administrator of Tarquinio's estate, seeks court approval for a will that excludes one of Tarquinio's children. The dispute hinges on whether the court should permit the creation of such a will given Tarquinio's testamentary capacity or lack thereof. The matter was heard in the Supreme Court of Victoria.

The primary legal issue was whether the court should authorise the making of a statutory will in circumstances where the deceased person lacked testamentary capacity, and whether the exclusion of a child of the deceased from the will is permissible under the Wills Act 1997. The court considered the provisions of sections 21, 21A, and 21B of the Act, as well as the case law, particularly Re Gillam [2016] VSC 5. The court had to balance the deceased's potential wishes, as expressed through the applicant, against the statutory requirements and the rights of the excluded child.

In reaching its decision, the court closely examined the evidence regarding Tarquinio's mental state and testamentary capacity at the time of creating the proposed will. The court also assessed the proposed statutory will's contents, particularly the exclusion of the child. After considering the statutory provisions and relevant case law, the court determined that the statutory will should not be authorised due to the deceased's lack of testamentary capacity and the potential unfairness to the excluded child. The court emphasised the importance of ensuring that any statutory will aligns with the deceased's genuine intentions and does not unfairly disadvantage any beneficiaries.

The final orders of the court were that the application for the making of a statutory will should be dismissed. The court held that the statutory requirements were not met, and the exclusion of the child was not justifiable under the circumstances. The decision underscores the need for careful consideration of testamentary capacity and fairness in the creation and authorisation of statutory wills.

Orders