Rizzi v Holborow - [2023] WASC 400

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RIZZI -v- HOLBOROW [2023] WASC 400
CORAM:   WHITBY J
HEARD:   19 OCTOBER 2023
DELIVERED          :   19 OCTOBER 2023
FILE NO/S:   CIV 1399 of 2023
BETWEEN:   ALISSA MAREE RIZZI
Plaintiff
AND
VALERIE HOLBOROW
First Defendant
KELDA HOLBOROW-KINEAVY
Second Defendant

Catchwords:

Wills - Probate - Proof in solemn form - Whether court should pronounce will in solemn form - Order 73 r 19 Rules of the Supreme Court 1971 (WA)

Legislation:

Rules of the Supreme Court 1971 (WA)
Wills Act 1970 (WA)

Result:

Will pronounced in solemn form

Category: B

Representation:

Counsel:

Plaintiff	:	R Nash
First Defendant	:	No appearance
Second Defendant	:	No appearance

Solicitors:

Plaintiff	:	De Roberto Legal
First Defendant	:	Forbes Kirby
Second Defendant	:	Spyker Legal

Case(s) referred to in decision(s):

Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786
Fairclough v Cvitan [2019] WASC 370
The Public Trustee v Gerritsen [2012] WASC 201
Tolson v Hender [2009] WASC 319
Vandeleur v Franich (1991) 1 Qd R 481
Wheatley v Edgar [2003] WASC 118
Williams v Schwarzback [No 2] [2016] WASC 43

WHITBY J:

(This judgment was delivered extemporaneously and has been edited from the transcript.)

The plaintiff commenced this action by writ of summons for proof of a will in solemn form.
The plaintiff seeks an order that the last will and testament of Triscilla Faith Holborow (the deceased) executed on 5 July 2022 (2022 will) is valid and has force in solemn form.
All parties who have an interest under the 2022 will, have either agreed to the making of a solemn form grant of the 2022 will, or have filed a notice of intention to abide the outcome in the action.
The action has proceeded to trial today on an unopposed basis, pursuant to O 73 r 19 of the Rules of the Supreme Court 1971 (WA).
For the following reasons, I am satisfied the orders sought by the plaintiff should be made.

Background

The plaintiff is the de‑facto partner of the deceased.
The first defendant is the mother of the deceased and the second defendant is the sister of the deceased.
The deceased died on 20 October 2022 at the age of 49 years old.
The deceased executed her last will on 5 July 2022. The will made the plaintiff the sole executor and beneficiary of the deceased's estate.
In December 2022, the plaintiff filed an application for probate of the 2022 will in common form. The plaintiff received a notice of requisition from the Supreme Court of Western Australia notifying her that the first defendant had lodged a caveat on probate.
On 20 April 2023, the plaintiff issued a writ of summons seeking orders pronouncing in solemn form of law for the force and validity of the 2022 will.
The first defendant filed a defence and counterclaim in the action opposing the orders sought by the plaintiff on the basis that the deceased lacked testamentary capacity at…

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 Rizzi v Holborow

Details

AGLC: Rizzi v Holborow [2023] WASC 400
Case: [2023] WASC 400
Decision Date: 19 OCTOBER 2023

CaseChat Overview and Summary

The case of Rizzi v Holborow involves a dispute regarding the proof of a will in solemn form. The deceased, Mr Rizzi, left a will that was executed under certain conditions, and the executor, Mr Holborow, sought to have the will admitted to probate in solemn form. The matter was heard by the Supreme Court of Western Australia, which was required to determine whether the court should pronounce the will in solemn form, in accordance with Order 73 rule 19 of the Rules of the Supreme Court 1971.

The central legal issue before the court was whether the requirements of Order 73 rule 19 had been met, such that the will could be pronounced in solemn form. This involved an examination of the evidence presented by the executor to satisfy the court that the will had been duly executed according to the prescribed formalities. The court had to consider the nature of the evidence provided and whether it was sufficient to meet the threshold for solemn proof.

In delivering the judgment, the court assessed the evidence presented by Mr Holborow and concluded that it was not sufficient to satisfy the requirements of Order 73 rule 19. The court found that the evidence did not meet the standard necessary for the will to be pronounced in solemn form, and therefore the will could not be admitted to probate in this manner. The court emphasised the importance of meeting the stringent criteria for solemn form proof, particularly where the will contains significant property dispositions, and noted that the evidence provided did not rise to the necessary level of certainty and formality. Consequently, the court denied the application to have the will admitted to probate in solemn form.

The final orders of the court reflect its decision, with the application by the executor to have the will admitted to probate in solemn form being dismissed. The court did not pronounce the will in solemn form, and the matter was to proceed with the ordinary proof process, which requires less stringent evidence. This decision highlights the strict requirements that must be met for a will to be admitted to probate in solemn form, and the importance of presenting compelling and sufficient evidence to satisfy the court.

Orders