Cassarino v Cassarino

HIS HONOUR: This matter has been referred to me by a Senior Deputy Registrar in Probate and was dealt with in Chambers. It involved what was, until relatively recently, contested Probate proceedings. The proceedings now involve the question whether the Court should grant Probate of a duly executed Will dated 19 January 2015 of Francesco Cassarino (the deceased) (the 2015 Will), thereby overlooking a later duly executed Will made by him on 15 April 2016 (the 2016 Will). All parties who are concerned with the question stated reached a compromise, the principal effect of which was to seek an order that there be a grant of Probate in solemn form of the 2015 Will.

(The deceased made an earlier Will on 24 September 2014 but none of the parties involved in the litigation, or anyone else, seeks to propound that Will. This is because there is no dispute that, but for the 2016 Will, which contains a revocation Clause, the 2015 Will is a valid Will of the deceased.)

It is necessary to set out a brief statement of the relevant facts.

The deceased was born in November 1928 and died on 3 August 2018, leaving property in New South Wales. He left surviving him, his wife, Caterina Cassarino, and their four children, being the Plaintiff, Francesca Cassarino, and the three Defendants, Vincent Cassarino, Tony Cassarino and Connie Russo.

In a Statement of Claim filed 15 November 2018, the Plaintiff, as the sole executrix named therein, propounded the 2016 Will, while the Defendants, as three of four executors named in the 2015 Will (the Plaintiff being the fourth executor), in a Defence and Statement of Cross-Claim filed 1 July 2019, asserted that the 2016 Will was not a valid Will and they propounded the 2015 Will.

In the 2015 Will, the deceased’s wife was given a right to reside for the rest of her life in real estate situated at Fairfield (the Fairfield property), which she and the deceased owned as tenants in common in equal shares, subject to her keeping the home in good repair and insured in the name of the executors and in a sum approved by them, her paying the rates and taxes levied on the Fairfield property, and her keeping it in good repair having regard to its condition at the date of death. On her death, the remainder of the Fairfield property was divided, equally, between the four children of the deceased. The whole of the residue of the deceased’s estate was divided between the four children of the deceased.

The evidence reveals that as at 16 December 2016, the deceased’s wife was a resident of Scalabrini Aged Care Facility in Austral, a suburb of Sydney. Accordingly, she, no longer, has any interest under the 2015 Will. She is the subject of a financial management order and her financial affairs are, apparently, managed by the NSW Trustee and Guardian.

In the 2016 Will, no provision was made for the deceased’s wife. The estate, after the payment of debts, funeral and testamentary expenses, was divided, as to one half to the Plaintiff, and as to the other half, equally between the three Defendants.

The proceedings were before the Court on a number of occasions, most notably, when a contested notice of motion, filed by the Defendants, seeking leave to issue a subpoena, was heard, and determined, on 29 May 2019. The then Senior Deputy Registrar in Probate, L Brown, delivered ex tempore reasons and made an order requiring “[the] Plaintiff solicitors [sic] [to] produce the file containing all documents involving the preparation of the [2016] Will including the instructions and all documents going to execution including any documents referring to capacity …”.

Importantly, for present purposes, the learned Senior Deputy Registrar in Probate wrote:

The conclusions set out above were based upon the evidence read in support of the notice of motion.

The only person who is adversely affected by the grant of Probate of the 2015 Will, and the passing over of the 2016 Will, is the Plaintiff, as her share of the estate would be reduced from one-half of the whole of the estate (as provided for in the 2016 Will) to one-quarter of the rest and residue of the estate (as provided for in the 2015 Will).

Relevantly, for present purposes, it is only necessary to note that the “Terms of Settlement” provided to the Court involve the grant of Probate of the 2015 Will and consequential orders (as set out later). For the purpose of these reasons, other paragraphs, reflecting the agreement of the parties as to occupation of the Fairfield property, the method of sale, and the distribution of proceeds of sale, and the balance of the deceased’s estate, do not need to be rehearsed.

Although some of the terms are framed in the “Terms of Settlement” as orders, they are really matters that the Court will note as agreements of the parties. In addition, the Court was informed, by the legal representative of both parties, that the NSW Trustee and Guardian, on behalf of the wife of the deceased, is aware of the proposal to sell the Fairfield property and does not oppose the sale. Naturally, one half of the net proceeds of sale of the Fairfield property will be paid to it as her financial manager.

There is no dispute about due execution of the 2015 Will. There is also no dispute that the deceased had the capacity to make a will at that time. In addition, the matters identified by the then learned Senior Registrar in Probate set out above, reveal that there is some doubt about the validity of the 2016 Will.

The principles to be applied in a case such as this are clear. In broad terms, if the last will of a testator is not to be admitted to probate, but an earlier one is, the last will has to be pronounced against and the earlier will (if there is one) pronounced for. Where a genuine doubt exists as to the validity of a testamentary document, the court, as part of a compromise, may be willing to pronounce against that testamentary document, but the court will not, as part of a compromise, be willing to pass over a testamentary document (either a will or codicil) which is, apparently, a valid document, and as to which there is no evidence of invalidity. Where the evidence filed is insufficient, the court may refuse to approve the compromise and instead direct a trial on written evidence, even where the matter is agreed or uncontested.

As long ago as 1991, Powell J in The Estate of Clarence Gilbert Alcorn (Supreme Court (NSW), Powell J, 9 August 1991, unrep), wrote at 7:

Macrossan CJ in Vandeleur v Franich [1991] 1 Qd R 481 at 484–485 wrote:

In Smith v Smith, Estate of Smith [2007] NSWSC 116, Windeyer J wrote, at [34]:

Lindsay J wrote in the now celebrated case of Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [271]–[272] and [277]:

It is a relevant consideration that the only interested parties have agreed upon a resolution of how the estate will be administered: Phillpot v Olney [2004] NSWSC 592 at [7] (White J (as his Honour then was)); Tolson v Hender [2009] WASC 319 at [4] (Hall J); Public Trustee v Gerritsen [2012] WASC 201 at [14] (Beech J); Fairclough v Cvitan [2019] WASC 370 at [26] (Kenneth Martin J).

The agreement that has been reached by the parties and the approach they have taken in achieving that agreement, appear to be prudent insofar as each of them is concerned. The result of Probate suits is often difficult to predict and there often emerges, in the course of a hearing, circumstances which one party, or both parties, may not have quite expected.

It is salutary that the parties have determined, presumably on legal advice, to agree, consensually, to avoid what may well have continued to have been a complex and protracted hearing, which would have required the Court to adjudicate on issues of witnesses’ credit, and the circumstances, in relation to an elderly deceased, whose habits, whose medical condition, and whose last years of life, obviously would have required some detailed examination in order to ascertain whether, as the Plaintiff had sought to assert, the 2016 Will was valid. Furthermore, significant costs have been saved in reaching agreement.

Bearing in mind the matters to which I have referred, including the due execution of the 2015 Will, the fact that the 2015 Will was made when there is no dispute that the deceased had capacity, the existence of a bona fide attack on the 2016 Will, and the agreement of all those potentially affected by the grant of probate of the 2015 Will, I am satisfied that a grant of Probate in solemn form of the 2015 Will, as proposed, should issue.

The form of orders proposed by the parties in the document has required some refinement and amendment. In this regard, I provided to the parties a form of proposed orders with which they have all agreed. I have noted the agreement of the parties in the document provided by them (which is not necessary to rehearse in these reasons). I shall now make the orders and notations and refer the matter back to the Senior Deputy Registrar in Probate to complete the grant.

The Court: