Vallelonga v Sorgiovanni [No 2]
[2021] WASC 101
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: VALLELONGA -v- SORGIOVANNI [No 2] [2021] WASC 101
CORAM: ALLANSON J
HEARD: 12 APRIL 2021
DELIVERED : 12 APRIL 2021
FILE NO/S: CIV 3177 of 2016
BETWEEN: ELSIA VALLELONGA
Plaintiff
AND
LEO TONI SORGIOVANNI
First Defendant
FRANCESCO SORGIOVANNI
Second Defendant
PETER SILVESTRI by guardian ad litem XAVIER VINCENZO PASQUALE SILVESTRI
Third Defendant
ANTONIO SORGIOVANNI
Fourth Defendant
Catchwords:
Wills - Probate - Application for proof of will in solemn form - Uncontested application
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr J C Hammond |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Hammond Legal |
| First Defendant | : | No appearance |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | No appearance |
Case(s) referred to in decision(s):
Wheatley v Edgar [2003] WASC 118
ALLANSON J:
Introduction
The plaintiff, Elsia Vallelonga, seeks the following orders :
1.An order that the Court pronounce the force and validity of the Will of the late MARIA STELLA GIANINI dated 8 February 2013 ('the 2013 Will').
2.The Court direct the Probate Registrar to seal a grant of letters of administration (with the 2013 Will annexed) in solemn form of law in favour solely of Ian Torrington Blatchford as Administrator.
3.There be no order as to costs and all previous undischarged costs orders be vacated.
The plaintiff is the named executor and a beneficiary in the 2013 Will. She is a niece of the deceased.
There are four named defendants:
(1)Leo Toni Sorgiovanni (first defendant), the deceased's nephew;
(2)Francesco Sorgiovanni (second defendant), the deceased's brother;
(3)Xavier Vincenzo Pasquale Silvestri (third defendant), the deceased's great nephew;
(4) Antonio Sorgiovanni (fourth defendant), the deceased's nephew.
The third defendant is an infant, and is represented by his father as guardian ad litem.
There are seven other great nephews or great nieces of the deceased who have been given notice of the proceedings.
The proceedings
The plaintiff commenced proceedings to prove the 2013 Will in December 2016.
The first and second defendants sought orders to pronounce against the validity of the 2013 Will, and for probate of a will alleged to have been made in 2001, alternatively a declaration that the deceased died intestate.
After a protracted and expensive dispute, the parties to the proceedings and other interested parties reached agreement and executed a Deed of Settlement.
The Deed was subject to conditions precedent, including that, pursuant to O 20 r 10(1) of the Rules of the Supreme Court 1971 (WA), the court approve the compromise on behalf of the third defendant, and that the 2013 Will be proved in solemn form.
On 20 August 2020, Master Sanderson approved the settlement of the claim made on behalf of the third defendant.
On 26 August 2020, Registrar Whitby made orders by consent for the first and second defendants to have leave to withdraw their defence and discontinue their counterclaim; for plaintiff to have leave to amend the statement of claim; and for the plaintiff to have leave, pursuant to O 73 r 19, to enter this action for trial on an undefended basis and as a short cause with evidence by affidavit.
Order 73 r 19 provides:
Where at any stage of the proceedings in a probate action the parties agree to a compromise, the action may, with leave of the court, be set down for trial.
Notwithstanding the agreed compromise, the action was set down for trial because no grant of probate should be made merely on the consent of the parties: see Wheatley v Edgar [2003] WASC 118 [30].
In support of the application, the plaintiff has sworn two affidavits, dated 17 September 2020 and 11 January 2021.
In her first affidavit, the plaintiff attaches the 2013 Will. It is prepared by the firm, Slater & Gordon. The will is attested by two witnesses, including John Robert Pitman, then a legal practitioner. The attestation clause states that the will was read to the deceased by Mr Pitman, in the presence of the other witness, and that she stated that she knew and approved the contents. The dispositions in the 2013 Will are to members of the deceased's family.
The plaintiff has also filed an affidavit of Mr Pitman, sworn 6 April 2021, in which he deposes to the due execution of the 2013 Will.
The plaintiff having proved the proper execution of the 2013 Will, it is presumed to have been made by a person competent and understanding.
I am satisfied, on the evidence adduced, of the formal validity of the will and that there should be orders in terms of the minute of orders filed by the plaintiff.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Associate to the Honourable Justice Allanson
12 APRIL 2021
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