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Romano v Romano

Romano v Romano

Case [2003] NSWSC 436 30 May 2003

Soundness of Mind, Memory and Understanding

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CITATION: ROMANO v. ROMANO & ANOR [2003] NSWSC 436

HEARING DATE(S): 19 and 20 May 2003

JUDGMENT DATE:
30 May 2003

JURISDICTION:
PROBATE

JUDGMENT OF: Bryson J at 1

DECISION: Grant probate of will and codicil, pronounce against informal document [79]

CATCHWORDS: WILLS - testamentary instruments - test of testamentary character - intention of testator - extrinsic evidence - deceased signed before 2 witnesses a document which contained directions for management of his estate when he became incapable by son who held Power of Attorney - expressions in the direction were claimed to show by implication testamentary intentions - on the construction of the document, it did not express any testamentary intention. - WILLS - testamentary capacity - soundness of mind memory and understanding - elderly (alleged) testator suffered stroke, expressed hostility to son & son's wife without rational basis - showed signs of deterioration in some respects and continuing competence in others - (as alternative ground) plaintiff had not shown sound mind memory and understanding.

LEGISLATION CITED: s.7 of the Wills, Probate and Administration Act 1898 (NSW)
Wills Act 1837 (UK)
Income Tax Assessment Act 1936 (Cth)
s66G of the Conveyancing Act 1919 (NSW)

CASES CITED: Whyte or Hamilton v. Pollok or Whyte 7 App Cas 400
Methuen v. Methuen (1817) 2 Phillimore 416; (1817) 161 ER 1186
Rhodes v. Rhodes (1882) 7 App Cas 192
Meynell Deceased, Meynell v. Meynell & Ors [1949] English Weekly Notes 273
In Re Barnes (Deceased) Public Trustee v. Barnes & Ors [1954] NZLR 714
Banks v. Goodfellow (1870) LR5QB 549
Timbury v. Coffee (1941) 66 CLR 277
Bull v. Fullton (1942) 66 CLR 295
Re Hodges; Shorter v. Hodges (1988) 14 NSWLR 698
Re Estate Griffith deceased; Easter v. Griffith (unreported) 7 June 1995
Shaw & Anor v. Crichton (Unreported) 23 August 1995
Bird v. Perpetual Executors and Trustees Association (1946) 73 CLR 140
Russell v. Scott (1936) 55 CLR 440
In Re Resch's Will Trust [1969] 1 AC 514

PARTIES :
Edward Romano - Plaintiff
Donna Romano and Louise Romano - Defendants

FILE NUMBER(S): SC 104953/2002

COUNSEL: J. Wilson - Plaintiff
I.G. Harrison SC and L. Ellison - Defendants

SOLICITORS: Michie, Shehadie & Co. - Plaintiff
John Fisicaro & Co. - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

BRYSON J.

FRIDAY 30 MAY 2003

104953/2002 EDWARD ROMANO v. LOUISE MARIE ROMANO & ANOR
ESTATE OF THE LATE GIUSEPPE ROMANO

JUDGMENT

1 HIS HONOUR: Giacomo Giuseppe Romano late of Ryde New South Wales, died at Eastwood on 2 June 2001 aged 87 years. He was born in Belluno, Italy, and lived in Australia since his childhood. Giacomo Romano lived for many years at 341 Blaxland Road, Ryde. He described himself in his Will and Codicil as a company director. At the time of his death he had been retired for some years; earlier in life he carried on the occupation of flower farmer at Ryde and he also owned a number of residential properties and…

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 Romano v Romano

Details

AGLC: Romano v Romano [2003] NSWSC 436
Case: [2003] NSWSC 436
Decision Date: 30 May 2003

CaseChat Overview and Summary

In the matter of Romano v Romano, the parties involved were the plaintiff, seeking to challenge the validity of a will, and the defendants, the executors of the will. The dispute centred on whether the deceased had the requisite testamentary capacity and intention when he signed a document containing directions for the management of his estate in the event of incapacity. The case was heard in the Supreme Court of New South Wales.

The central legal issues revolved around the interpretation of the document signed by the deceased and whether it expressed testamentary intentions. Additionally, there was a question of whether the deceased had the necessary testamentary capacity at the time of signing. The court had to determine whether the document could be considered a testamentary instrument based on the expressions within it, and whether the deceased's mental state was sound enough to execute a valid will.

The court found that the document did not explicitly or implicitly express any testamentary intention. The expressions within the document were not indicative of testamentary dispositions. Furthermore, the court examined the deceased's mental state at the time of signing and concluded that while the deceased had shown signs of deterioration, there was insufficient evidence to conclude that he lacked sound mind, memory, and understanding. The court determined that the plaintiff had not proven that the deceased lacked testamentary capacity.

The court ordered that the will in question be upheld as valid, and the estate should be distributed according to its terms. The plaintiff's challenge to the will was dismissed on the grounds that it did not meet the criteria for testamentary capacity or testamentary intention.

Orders