Scarpuzza v Scarpuzza

Case [2011] WASC 65

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   SCARPUZZA -v- SCARPUZZA [2011] WASC 65

CORAM:   EM HEENAN J

HEARD:   8 MARCH 2011

DELIVERED          :   16 MARCH 2011

FILE NO/S:   CIV 1876 of 2009

MATTER                :In the Estate of ANSELMO SCARPUZZA (Dec)

BETWEEN:   MARIO ANGELO SCARPUZZA

PETER ANTHONY SCARPUZZA
Plaintiffs

AND

MARIO ANGELO SCARPUZZA
First Defendant

PETER ANTHONY SCARPUZZA
Second Defendant

ANTHONY JOHN SCARPUZZA
Third Defendant

MICHAEL ANSELMO SCARPUZZA
Fourth Defendant

ANGELO LEOPOLDO SCARPUZZA
Fifth Defendant

CONCETTINA MARIA CASSIN
Sixth Defendant

WILLIAM MARK DYSON
Seventh Defendant

Catchwords:

Wills - Probate - Application for proof in solemn form of the second of three apparent wills of the deceased - Contents of third and latest apparent will not translated into the testator's language as recorded - Testator not fluent or literate in English - Probate granted of former will as the last valid will of the deceased - Implied renunciation by co-executor - Presumptions of due execution - Presumption arising from attestation clause - Rebutting presumptions - Position of testator not fluent in English - Need for proof of knowledge and acceptance of contents of will -

Legislation:

Administration Act 1903 (WA), s 7
Wills Act 1970 (WA), s 8

Result:

Probate in solemn form of law of will dated 10 September 2003

Category:    A

Representation:

Counsel:

Plaintiffs:     Mr C D Clifton

First Defendant             :     In person

Second Defendant         :     In person

Third Defendant           :     In person

Fourth Defendant          :     In person

Fifth Defendant            :     In person

Sixth Defendant            :     In person

Seventh Defendant        :     No appearance

Solicitors:

Plaintiffs:     Clifton Tham

First Defendant             :     In person

Second Defendant         :     In person

Third Defendant           :     In person

Fourth Defendant          :     In person

Fifth Defendant            :     In person

Sixth Defendant            :     In person

Seventh Defendant        :     No appearance

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

Barry v Butlin (1838) 2 Moo PC 480

Bryan v White (1850) 163 ER 1330; 2 Rob Ecc 315

Bull v Fulton (1942) 66 CLR 295

Cleare v Cleare (1869) LR 1 P & D 655

Harris v Knight (1890) 15 PD 170

In the Estate of Bercovitz [1961] 1 WLR 892

In the Goods of Morant (1874) LR 3 P & D 151

Re Atkinson (1883) 8 PD 165

Re Clout & Frewer's Contract [1924] 2 Ch 230

Re Fenwick [1972] VR 646

Re Gordon; Roberts v Gordon (1877) 6 Ch D 531

Re Schar; Midland Bank Executor and Trustee Co Ltd v Damer [1951] Ch 280

Re Webb [1964] 1 WLR 509

Sherrington v Sherrington [2005] 3 FCR 538

Sugden v Lord St Leonards (1876) 1 PD 154

Thompson v Leach (1690) 2 Vent 198; 86 ER 391

Tsaknis v Lilburne [2010] WASC 152

Vinnicombe v Butler (1864) 3 Sw & Tr 580

Weatherhill v Pearce [1995] 1 WLR 592

Will of Steward [1974] VR 179

Worth v Clasohm (1952) 86 CLR 439

  1. EM HEENAN J:  This is an application by two of three executors named in the second of three apparent wills of a…

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Scarpuzza v Scarpuzza [2011] WASC 65
Case
[2011] WASC 65
Decision Date

CaseChat Overview and Summary

The case of Scarpuzza v Scarpuzza dealt with the probate of wills, specifically the application for proof in solemn form of the second of three apparent wills of the deceased, Mr Scarpuzza. The dispute involved the contents of the third and latest apparent will, which were not translated into Mr Scarpuzza's language as recorded, given that he was not fluent or literate in English. The court had to decide whether the third will could be admitted to proof in solemn form and whether it was the last valid will of the deceased.

The court considered the legal issues of whether the third will had been properly executed and if there had been an implied renunciation by the co-executor. It also examined the presumptions of due execution, including the presumption arising from the attestation clause, and whether these presumptions could be rebutted given Mr Scarpuzza's lack of fluency in English. The court needed to determine if there was proof of Mr Scarpuzza's knowledge and acceptance of the contents of the will.

The court concluded that the third will could not be admitted to proof in solemn form as it did not meet the requirements under the Non-Contentious Probate Rules 1967 (WA). It found that the presumptions of due execution were not satisfied due to the lack of translation and the testator's limited understanding of English. Consequently, the court granted probate of the former will as the last valid will of the deceased, thereby resolving the dispute over the validity of the wills.

The final orders included granting probate of the 2003 will and dismissing the application for proof in solemn form of the 2006 will.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In this regard, the Non‑Contentious Probate Rules 1967 (WA) provide as follows:15.Evidence as to due execution of will(1)Where a will contains no attestation clause or the attestation clause is insufficient or where it appears to him that there is some doubt concerning the due execution of the will, the Registrar shall, before admitting it to proof, require an affidavit as to due execution from one or more of the attesting witnesses or, if no attesting witness is conveniently available, from any other person who was present at the time the will was executed. (2)An affidavit of due execution shall be in accordance with Form 1 with such variations as the circumstances may require. (3)Where an affidavit cannot be obtained in accordance with subrule (1), the Registrar may, having regard to the desirability of protecting the interests of any person who may be prejudiced by the will, accept evidence on affidavit from such person as he may think fit to show that the signature on the will is in the handwriting of the deceased, or of any other matter that may raise a presumption in favour of the due execution of the will. (4)Where the Registrar, after considering the evidence — (a)is satisfied that the will was not duly executed, he shall refuse the application and shall mark the will accordingly; (b)is in doubt whether the will was duly executed, he may refer the matter to the Court on motion. 16Execution of will of blind or illiterate testator Before admitting to proof a will that appears to have been signed by a blind or illiterate testator or by another person by direction of the testator, or which for any other reason gives rise to doubt as to the testator having had knowledge of the contents of the will at the time of its execution, the Registrar shall satisfy himself that the testator had such knowledge. Any conclusion that the 2006 apparent will was not valid would still leave, as apparent obstructions to a grant of letters of administration then being sought, the apparent wills of 1 February 1996 and 10 September 2003 on the basis that the invalid 2006 document was not effective to revoke the 2003 will or any other will then having application. The evidence advanced by the applicants for letters of administration in 2007 in this regard was that although copies of the will of 10 September 2003 had been found, the original will could not be found among the papers of the deceased or in other places where it might be expected to be found such as at his solicitor's office. This, so they submitted, gave rise to a presumption that it must have been destroyed by the testator and destroyed with an intention of revocation: Sugden v Lord St Leonards (1876) 1 PD 154; Re Webb [1964] 1 WLR 509. Added to this, there was some ambiguous evidence from the solicitor who had prepared the will to the effect that she had either been told by the deceased that he had destroyed the 2003 will or that she had recommended to him, at the time the 2006 will was being prepared or sent for execution, that he might wish to destroy it.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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