Nicolina Clocchiatti v John Paul Pierobon & Ors; Estate of John Pierobon [2014] NSWSC 488

Nicolina Clocchiatti v John Paul Pierobon & Ors; Estate of John Pierobon [2014] NSWSC 488

The will dated 14 October 2011 was made at the deceased's own instigation, witnessed by two people, read to and by him, with knowledge and approval affirmed. Suspicious circumstances were explained by the deceased's conduct and prior relationship with the plaintiff. There was no evidence of forgery or undue influence. The statutory requirements for valid execution under s 6 of the Succession Act 2006 (NSW) were met, rendering the will valid and admissible to probate. Costs should be paid out of the estate, as the deceased's conduct was the cause of the litigation.

Jurisdiction
Australia
Judgment Date
08 April 2014
Procedural Posture
Probate Proceedings / Principal Judgment
Outcome
Probate in solemn form of the will of 14 October 2011 granted to the plaintiff; cross-claim dismissed; costs (including those of both submitting and active defendants) paid out of the estate.
Legal Topics
['validity of Will' 'suspicious Circumstances' 'knowledge and Approval' 'probate in Solemn Form' 'succession Act S 6 and S 8' 'costs in Probate Litigation']
['wills and Estates' 'succession Law' 'probate'] ['validity of Will' 'suspicious Circumstances' 'knowledge and Approval' 'probate in Solemn Form' 'succession Act S 6 and S 8' 'costs in Probate Litigation']

Case Brief

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Procedural Posture

Probate Proceedings / Principal Judgment

Legal Issues

  1. 1 ['Whether the will dated 14 October 2011 is valid and should be admitted to probate' 'Whether suspicious circumstances attend the execution of the 2011 will' 'Whether the deceased knew and approved of the contents of the 2011 will' 'Whether probate should instead be ordered for the 2006 will' 'Whether an order should be made under s 6 or s 8 of the Succession Act' 'How costs should be allocated']

Ratio Decidendi

The will dated 14 October 2011 was made at the deceased's own instigation, witnessed by two people, read to and by him, with knowledge and approval affirmed. Suspicious circumstances were explained by the deceased's conduct and prior relationship with the plaintiff. There was no evidence of forgery or undue influence. The statutory requirements for valid execution under s 6 of the Succession Act 2006 (NSW) were met, rendering the will valid and admissible to probate. Costs should be paid out of the estate, as the deceased's conduct was the cause of the litigation.

Court Disposition

Probate in solemn form of the will of 14 October 2011 granted to the plaintiff; cross-claim dismissed; costs (including those of both submitting and active defendants) paid out of the estate.

Orders

  • ['Probate in solemn form of the will dated 14 October 2011 granted to the plaintiff.' 'Proceedings remitted to the Registrar to complete the grant.' 'Cross-claim dismissed.' 'Costs of the first and second defendants as submitting defendants to be paid out of the estate.' 'Costs of the third defendant to be paid out...