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…

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 Vallelonga v Sorgiovanni [No 2]

Details

AGLC: Vallelonga v Sorgiovanni [No 2] [2021] WASC 101
Case: [2021] WASC 101
Decision Date

CaseChat Overview and Summary

Elsia Vallelonga, the plaintiff, applied for the Supreme Court of Western Australia to grant solemn form probate of the will of Maria Stella Gianini, dated 8 February 2013. The will was executed in favour of Vallelonga, who is both the named executor and a beneficiary. Vallelonga is the deceased's niece, and the defendants are various other relatives, including Leo Toni Sorgiovanni, Francesco Sorgiovanni, Xavier Vincenzo Pasquale Silvestri, and Antonio Sorgiovanni. The defendants, except for Silvestri, did not appear in court. The plaintiff sought an order to declare the will valid, to grant letters of administration to Ian Torrington Blatchford, and to vacate previous undischarged costs orders.

The court was required to decide whether the will was properly executed and whether the application should be granted. The court found that the will was valid and that the plaintiff had proved the proper execution of the will. The court also noted that the will was prepared by Slater & Gordon, and was attested by two witnesses, one of whom was a legal practitioner. The court was satisfied with the evidence provided and the formal validity of the will.

The court granted the application and ordered that the force and validity of the 2013 will be pronounced. The court also directed 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. There was no order as to costs, and all previous undischarged costs orders were vacated.

Orders