Romano v Romano

Case [2004] NSWCA 37

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Romano v. Romano & Anor. [2004]  NSWCA 37

FILE NUMBER(S):
40581/03

HEARING DATE(S):               18 December 2003

JUDGMENT DATE: 27/02/2004

PARTIES:
Edward Romano - appellant
Donna Romano and Louise Romano - respondents

JUDGMENT OF:       Sheller JA Hodgson JA Ipp JA   

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):          ED104953/02

LOWER COURT JUDICIAL OFFICER:     Bryson J

COUNSEL:
Mr. B.W. Rayment QC with Mr. J.R. Wilson SC for appellant
Mr. I.G. Harrison SC with Mr. L. Ellison for respondents

SOLICITORS:
Michie Shehadie & Co., Sydney for appellant
John Fisicaro & Co., Burwood for respondents

CATCHWORDS:
SUCCESSION
WILLS, PROBATE & ADMINISTRATION - Admission of document to probate - Whether sufficient that document be capable of testamentary effect - Proof of testamentary intention - Extrinsic evidence
SUCCESSION
WILLS, PROBATE & ADMINISTRATION - Testamentary capacity - Onus of proof - Whether primary judge in error in holding testamentary capacity not proved

LEGISLATION CITED:
Wills Probate & Administration Act 1898 (NSW) s.29

DECISION:
1. Appeal dismissed with costs. 2. Order that the appellant not be indemnified from the estate either for his own costs of the appeal or for the costs of the appeal of the respondents.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES
COURT OF APPEAL

CA 40581/03
ED 104953/02

SHELLER JA
HODGSON JA
IPP JA

Friday 27 February 2004

ROMANO  V.  ROMANO & ANOR.

Judgment

  1. SHELLER JA:  I agree with Hodgson JA.

  2. HODGSON JA:  On 30 May 2003, Bryson J granted to the appellant Edward Romano probate in solemn form of the will dated 6 December 1988 and the codicil dated 28 August 1990 of the late Giacomo Romano, who died on 2 June 2001 aged 87 years.  Bryson J refused probate of a document bearing date 5 April 1998, which had been propounded by the appellant as an amendment to the will and codicil.  His Honour ordered that the costs of both parties be paid out of the deceased’s estate.  The appellant appeals to this Court from that decision, specifically in so far as it relates to the document of 5 April 1998. 

  3. The deceased was a widower, his wife having died in 1987.  He had two children:  the appellant, and another son John who died in 1995.  John had left surviving him a widow Jeanette Romano, and two children Donna and Louise.  The two children were defendants below and respondents to the appeal.  John’s will, in the events that happened, gave his whole estate to his widow.  Under the deceased’s will and codicil, his estate was to be divided in ways which I will specify later, between the appellant and John.  As noted by the primary judge, s.29 of the Wills Probate & Administration Act 1898 had the effect that the provision for John under the deceased’s will and codicil would take effect as if John had died immediately after the deceased, with the result that this provision would pass under John’s will to Jeanette.  Although Jeanette was not a…

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Romano v Romano [2004] NSWCA 37
Case
[2004] NSWCA 37
Decision Date

CaseChat Overview and Summary

This case concerned an appeal from a primary judge's decision regarding the admission of a document to probate. The appellant, who sought to have the document admitted, argued that the primary judge erred in finding that testamentary capacity had not been proven. The respondents opposed the admission of the document to probate.

The central legal issues before the appellate court were whether the primary judge was correct in holding that the onus of proving testamentary capacity had not been discharged by the appellant, and consequently, whether the document was capable of having testamentary effect. The court considered the deceased's comprehension of claims upon him, including those of his grandchildren, and the circumstances surrounding the exclusion of these beneficiaries.

The court reasoned that the primary judge had ample basis to conclude that the evidentiary onus had shifted to the appellant to prove testamentary capacity. This conclusion was informed by evidence of the deceased's medical condition, including a stroke and subsequent confusion, the appellant's own assessment of the deceased's state, an assault incident, and a strong medical assessment of the deceased's lack of competence and testamentary capacity shortly after transactions where he appeared to understand his actions. Weighing all these factors, the court found no error in the primary judge's determination that the deceased lacked testamentary capacity at the time the document was executed.

The appeal was dismissed with costs. The court further ordered that the appellant was not to be indemnified from the estate for his own costs of the appeal or for the costs of the respondents.

Orders

Orders of the court

1. Appeal dismissed with costs. 2. Order that the appellant not be indemnified from the estate either for his own costs of the appeal or for the costs of the appeal of the respondents.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In my opinion, there was ample basis, adequately explained in the reasons, for the primary judge to come to the view that the evidentiary onus on those opposing probate had been discharged, so that the onus of proving testamentary capacity fell squarely on the appellant. One important aspect of testamentary capacity is that the deceased should be able to comprehend and appreciate the claims to which he ought to give consideration; and plainly, among those claims in this case were the claims of his grandchildren, being the children of his deceased son John. The circumstance that they have been excluded, with no suggestion that the deceased had any rational ground for doing so, is in my opinion a relevant factor in determining whether the appellant did discharge the onus of proof of testamentary capacity. There was evidence of the deceased’s medical condition tending against testamentary capacity, including his stroke in November 1997 and confusion thereafter, the appellant’s own assessment of the matter as conveyed to the general practitioner on 31 March 1998, the assault occurring in August 1998, and the strong assessment of Dr. Tam in September 1998 of lack of competence to make judgments and lack of testamentary capacity. Notably, this occurred quite shortly after transactions which led Mr. Lewis, a solicitor, to say that the deceased then gave the appearance of understanding what he was doing. That has some bearing on the weight to be given to the evidence to similar effect concerning the deceased’s conduct in March and April 1998. In my opinion, when one puts together all these matters, it cannot be said that the primary judge was in error in not being satisfied on the balance of probabilities that the deceased had testamentary capacity at the time of the execution of this document. CONCLUSION For those reasons, in my opinion the appeal should be dismissed with costs. Since this appeal was brought by the appellant in his own interests against the primary judge’s determination of his application for probate, in my opinion the Court should order that the appellant not be indemnified from the estate either for his own costs or for the costs of the respondents which he is ordered to pay. I propose the following orders:1.Appeal dismissed with costs.2.Order that the appellant not be indemnified from the estate either for his own costs of the appeal or for the costs of the appeal of the respondents. IPP JA: Save that I do not think that the handwritten document signed on 5 April 1998 was ever capable of having testamentary operation, I agree with Hodgson JA.

Ratio Decidendi

Legal Principle Established

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