Supreme Court of WA|2011-03-16|Before: Heenan J

SCARPUZZA -v- SCARPUZZA [2011] WASC 65 (16 March 2011)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

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

MATTER : In the Estate of ANSELMO SCARPUZZA (Dec)

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 -

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

Harris v Knight (1890) 15 PD 170

In the Estate of Bercovitz [1961] 1 WLR 892

Re Atkinson (1883) 8 PD 165

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

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

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

Sherrington v Sherrington [2005] 3 FCR 538

Sugden v Lord St Leonards (1876) 1 PD 154

Thompson v Leach [1726] EngR 505; (1690) 2 Vent 198; 86 ER 391

Tsaknis v Lilburne [2010] WASC 152

Weatherhill v Pearce [1995] 1 WLR 592

Will of Steward [1974] VR 179

1 EM HEENAN J: This is an application by two of three executors named in the second of three apparent wills of a deceased for a grant in solemn form of law of probate of that will. Their case includes the claim that the third, and most recent, apparent will of the deceased is not valid and effective because of want of understanding of its contents by the testator at the date of execution due to lack of explanation or reading of the contents to him in the Italian language when he had only limited fluency and little, if any, literacy in English.

2 Anselmo Scarpuzza, late of 222 Fourth Street, Geraldton, in the State of Western Australia, fisherman, died in Geraldton on 24 November 2006, then aged 79 years, having been born on 12 March 1927 in Italy. According to his death certificate there were two contributing causes to his passing; the first, cardio-respiratory arrest occurring only some hours before death, and the second, disseminated carcinoma of the bowel of some 18 months' duration. Mr Scarpuzza's wife, Mrs Rosetta Scarpuzza, predeceased him, dying in August 1988. He was survived by all of their six children, Mario Angelo Scarpuzza, born 9 September 1963, Peter Anthony Scarpuzza, born 7 August 1964, Angelo Leopoldo Scarpuzza, born 30 May 1967, Concettina Maria Cassin (nee Scarpuzza) born 22 June 1970, Michael Anselmo Scarpuzza, born 5 May 1974, and Anthony John Scarpuzza, born 2 February 1978.

3 The deceased had no other children and had never remarried. The affidavit evidence establishes that he had no adopted children.

4 The late Mr Scarpuzza died leaving property within the State of Western Australia. This comprised both movable and immovable property and, in addition, he left immovable property in the form of a small land holding outside the State, in Sicily, Italy. A list of assets and liabilities of the deceased prepared in September 2007 in support of an application for letters of administration of an alleged intestate estate of the deceased in the non-contentious jurisdiction has now been revealed to contain a number of errors and omissions.

5 At the trial of this matter I pointed out to counsel for the plaintiffs that, in view of the errors contained in the earlier statement of assets and liabilities of the deceased filed in support of the original application for letters of administration, there would need to be a fresh statement of assets and liabilities as at the date of death verified by an affidavit of the plaintiffs, and I gave leave for such an affidavit to be filed within seven days and directed that if it was in satisfactory form there would be no need for any further hearing. Such an affidavit with a new statement of assets and liabilities has since been filed and is satisfactory. This corrected affidavit shows that the value of the movable property of the deceased within this State at the date of death was $604,939, that the value of the immovable property located within the State at the date of death was $1,580,000, and that the value of the real property in Sicily at the date of death was $100,000. As the deceased left no debts, the net value of his estate was therefore $2,284,939.

6 Three apparent wills are known to have been made by the deceased. The first is dated 1 February 1996, the second is dated 10 September 2003, and the third is dated 18 September 2006. Each of these was made by a firm of solicitors who had been acting for the deceased at the time and each, on its face, appears to have been duly executed in the presence of two attesting witnesses and to comply with the formal requirements of s 8 of the Wills Act 1970 (WA). There are some differences between the three documents, firstly in relation to the executors named and, in the second and third of the apparent wills, by the presence of provisions, differing between the second and third document, relating to the ownership, use and disposition of licences over valuable craypots held in the name of the deceased and used in the course of his business as a fisherman. Fuller details of those differences are set out later in these reasons.

7 The plaintiffs Mario Angelo Scarpuzza and Peter Anthony Scarpuzza are the two eldest children of the deceased. They are two of the three named executors in the apparent will of 10 September 2003. The third named executor, William Mark Dyson, the seventh defendant in these proceedings, is a former accountant, family friend and adviser of the deceased. He has been given notice of these proceedings and appeared but has not filed any defence. He has informed the solicitors for the plaintiffs that he is willing to abide by any decision of the court in these proceedings. He has not applied for probate or any other grant of representation of the estate of the deceased either under the apparent will of 10 September 2003 or at all. There is no suggestion that he has or has had in his possession or control any of the assets of the deceased or that he has intermeddled in the estate in any way. However, although invited formally to renounce any entitlement to probate, Mr Dyson has not formally renounced nor has he been cited to take probate under s 32 of the Administration Act 1903 (WA) or otherwise. The significance of his passive stance will be considered later.

8 The ultimate pattern of distribution under each of the three apparent wills is the same, namely that the whole of the residuary estate should be divided equally between the six children, namely the plaintiffs and the first to sixth defendants.

9 By the will of 1 February 1996 the deceased appointed one Harold Robert Morris as his executor and trustee but he also named his sons Mario Angelo Scarpuzza and Peter Anthony Scarpuzza or the survivor thereof to be joint substitute executors and trustees in lieu of Mr Morris should the latter predecease him, renounce probate or die before obtaining probate. The evidence is that Mr Morris was a former accountant and adviser of the deceased. Under this will, the whole of the residuary estate was left to be divided equally between the six named children of the deceased if they should survive him and attain the age of 21 years as tenants in common in equal shares but so that if any child predeceased the testator or died before attaining the age of 21 years then his or her share would go to such of his or her children as should attain the age of 21 years and, if more than one, as tenants in common in equal shares.

10 I have already recorded that under the apparent will of 10 September 2003 the deceased named three executors and trustees; his sons Peter Anthony Scarpuzza and Mario Angelo Scarpuzza, and the seventh defendant, William Mark Dyson. By this document the whole of the estate is left to the trustees to be held on trust to pay all debts, funeral and testamentary expenses and all tax payable because of his death, and then for the residuary estate to be distributed equally among such of his six named children as should survive him and, if more than one, as tenants in common in equal shares subject to an option granted to either or both of his sons, Peter Anthony Scarpuzza and Anthony John Scarpuzza, if they survived him to purchase the managed fishing licence number 1788 and rock lobster pots associated therewith (the managed fishing licence and pots) provided further that the managed fishing licence and pots should not be offered to any other party at a lesser price than that offered to be paid by either or both of his named son or sons, and provided further that this first option to purchase could not and should not be exercised by any issue of either or both of the named sons. This apparent will also contains a clause that if any of the children of the deceased should predecease him leaving children who survive him, then those children, on reaching the age of 18 years, should take as tenants in common in equal shares the share which their deceased parent would otherwise have taken.

11 The third apparent will, dated 18 September 2006, names Peter Anthony Scarpuzza and Mario Angelo Scarpuzza as the sole executors and trustees of the deceased. It provides that the whole of the residuary estate should be divided equally among the six named children as shall survive the testator and, if more than one, as tenants in common in equal shares, and it also contains a clause that if any of the deceased's children should predecease the testator leaving children, then those children, on reaching the age of 18 years, should take as tenants in common in equal shares the share which their parent would otherwise have taken. However, this apparent will of 18 September 2006 contains more detailed provisions relating to the disposal of the crayfishing licence number 1788 and the rock lobster pots. Under this document, Peter Anthony Scarpuzza and Anthony John Scarpuzza are together given a first option to purchase that licence at market value with a direction that the deceased's trustee should not offer the licence to any other party at a lesser price than put to either or both Peter and/or Anthony. Then there are provisions to the effect that if neither Peter nor Anthony exercise that option to purchase the crayfishing licence and rock lobster pots, the trustees are to hold that licence on trust for a period of 30 years and during that time to allow either or both of Peter and Anthony to operate the licence either as skipper or deckhand, with detailed provisions as to the payment of wages to them plus an annual bonus and superannuation, with further provisions that if either or both Peter and Anthony elect not to be employed to operate the licence for a continuous period of four years the trustees should wind up the trust on such conditions as they thought fit. The document contains more detailed provisions as to the operations of the rock lobster licence and the use of the pots in the event that Peter or Anthony elect to avail of these rights without purchasing the licence and the document also contains a provision that on the vesting day of this trust the licence shall revert to and form part of the testator's residuary estate. Accordingly, in circumstances where these testamentary provisions should apply and where neither Peter nor Anthony should exercise the option to purchase the lobster licence and crayfishing pots, there is the potential for the realisation of those assets to be deferred for anything from four to 30 years after the date of the testator's death with a consequent delay of the distribution of the value of those assets to the residuary beneficiaries.

12 As already noted, the first to the sixth defendants inclusive are all the children of the deceased, the only residuary beneficiaries under any of the three apparent wills and also the only persons entitled to share in the distribution of the estate of the deceased should it emerge that he died intestate. The seventh defendant, also as already noted, is one of the three executors named in the will being propounded but has not sought to join in the proceedings or to apply for probate.

13 On 19 December 2007 Peter Anthony Scarpuzza and Mario Angelo Scarpuzza, now respectively the second and first defendants, applied by motion in the non-contentious probate jurisdiction for a grant to them of letters of administration of their father's estate. A series of affidavits was filed in support of that application including an affidavit of Peter Anthony Scarpuzza and Mario Angelo Scarpuzza sworn 21 September 2007. That and other affidavits in the non-contentious proceedings have been ordered to stand as evidence in this present action. By that affidavit Peter Anthony Scarpuzza and Mario Angelo Scarpuzza swore that they and their three brothers and one sister were the only persons having a right to administration of the estate of the deceased prior to or equal with them and that they were all lawful children of the deceased, each having attained the age of 18 years. They also deposed that there was no person who is or who claimed to be an illegitimate child of the deceased or who claimed to be entitled to distribution through any such person. They confirmed that the deceased married only once to Rosetta Scarpuzza, nee Alessi, who died on 21 August 1988 and that the six named children were the only children of the marriage and that there were no adopted children.

14 This joint affidavit of Peter Anthony Scarpuzza and Mario Angelo Scarpuzza of 21 September 2007 addressed the apparent will of 18 September 2006 which they lodged with the application for letters of administration. According to them, they were both present at the time their father executed the apparent will of 18 September 2006 and they each said that neither of the two named witnesses to that apparent will, Joseph John Tascone and Tina Rosa Wilson, read the will to the deceased in Italian. Other affidavits of Mr Tascone and Ms Wilson also filed in the non-contentious proceedings confirmed that neither read the will to the deceased in Italian, or at all, at the time of execution. Both sons also say that their father did not attempt to read the will himself. They say, and none of the family disputes, that their father did not read English although he could speak English reasonably well. In further affidavits there is elaboration on this subject to the effect that although the late Mr Scarpuzza could speak English reasonably well at a simple level, he could not speak or understand more complicated or formal English such as was contained in the apparent will of 18 September 2006.

15 The attestation clause to the apparent will of 18 September 2006 reads as follows:

This Will having been first read over to the above-named ANSELMO SCARPUZZA (who understands the Italian language but has an imperfect knowledge of and cannot read the English language) by me the undersigned [manuscript] Tina Rosa Wilson in English and having been truly interpreted to the said ANSELMO SCARPUZZA by me and the undersigned [manuscript] Tina Rosa Wilson both of whom the said [manuscript] Joseph John Tascone and ... understand the English and Italian languages and which reading and interpretation was done in out (sic our) presence when the said ANSELMO SCARPUZZA appeared thoroughly to understand this Will and to approve the contents thereof and was signed by the said ANSELMO SCARPUZZA as his last Will in the presence of us both present at the same time who at his request and in his presence and in the presence of each other have hereunto subscribed our names as witnesses.

16 Beside the attestation clause is the signature of the deceased. In comparison with his signature on the two earlier apparent wills, this particular signature is very shaky and distorted, indicating a significant deterioration in his handwriting. It is followed by the signatures, names and addresses of the two named witnesses and, subject to what follows, appears to have been validly and formally executed.

17 The affidavit evidence establishes that a young woman solicitor, from the firm of solicitors which had prepared the earlier apparent will of 10 September 2003, had been asked to see Mr Scarpuzza with a view to making a new will. The solicitor concerned was, of course, fluent in English but had no Italian. She met with the deceased at his home, and according to the affidavit evidence, which I accept, one point of concern of the deceased was to have a will drawn which allowed his real property (two houses, a vacant lot and a commercial building, all in Geraldton) to be passed to his children on his death without the need for any land to be sold, it being a long and deeply held view of the late Mr Scarpuzza that however possible a family should avoid ever selling its land. According to the evidence, the solicitor explained to Mr Scarpuzza that this was not possible, although the reasons for that advice do not seem to have been given or recorded. The solicitor left and returned to her office and some days later a draft will, in the form ultimately signed, was sent to the Scarpuzza home for execution. The family was left to arrange and attend to the formalities of execution themselves. Two witnesses who were friends were asked to come to the house and, despite the attestation clause, the deceased did not read or attempt to read the will, it was not read to him in English, and there was no translation of it, or the substance of it, to him in Italian. The document was simply signed and witnessed as already described. Mr Scarpuzza died only about two months later.

18 Based on the evidence that, contrary to the attestation clause, the apparent will of 18 September 2006 had not been interpreted to the deceased in Italian, nor had he attempted to read it himself, and his lack of ability to read it in English, the applicants for letters of administration contended that it was not valid. The need for proof of due execution and due comprehension by the testator of its contents was, of course, necessary in respect of the apparent 2006 will.

19 In this regard, the Non-Contentious Probate Rules 1967 (WA) provide as follows:

(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.

Execution 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.

20 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.

21 The next step in the submissions in support of the application for letters of administration was that, even though it should be presumed that the 2003 will had been destroyed with the intention of revoking it, it had, nevertheless, before destruction been effective to revoke the will of 1 February 1996 which, up until that point, had been valid.

22 After delivering certain requisitions and obtaining additional evidence in response in support of the application for letters of administration, the probate Registrar refused to grant the letters of administration as sought: Re Scarpuzza; Ex Parte Clifton Tham, Registrar C Boyle, 26 November 2008, P5305/07. In his reasons the learned registrar said:

One argument is that the fact that the will could not be found after the death of the deceased invokes a presumption of revocation by destruction. I am not persuaded the question can be resolved so simply. The presumption of revocation by destruction does not speak to the date of the presumed destruction. There is nothing to suggest that the deceased had destroyed the 2003 will before executing the 2006 will. Had he done so, he would have been intestate at that point at least.

If the deceased destroyed the 2003 will after executing the 2006 will, it is not clear to me that destruction in these circumstances would have operated to revoke the 2003 will if the 2006 will was inoperative for the reasons already explained. While I have been directed to no authority on the topic, it seems to [me] that if a testator destroys a will in the mistaken belief that it has already been validly revoked by a later will, he does not effect the destruction with the necessary intent.

...

The result of the process is that, because I am unable to find that the 2003 will should fail, whether by revocation or by reason of lack of knowledge and approval of its contents, I am unable to find that the deceased died intestate. Therefore, the reasons for which I find that the 2006 will failed are irrelevant to my conclusion, which is that the present application for letters of administration on the basis that the deceased died intestate must be dismissed.

23 With respect, the decision of the learned Registrar was correct and has turned out to be particularly fortuitous for additional reasons. Since then, the original of the apparent will of 10 September 2003 has been found, so any possibility of destruction by the testator with the intention of revocation has disappeared. The circumstances of its discovery were described in evidence at this trial by each of the present plaintiffs. It turns out that in a later detailed search of their late father's safe located at the old family home Mario unexpectedly came across this document, whereupon he and his co-plaintiff immediately sent it to their present solicitors. Neither can identify the date of discovery with any precision but the indications are that it must have been between July 2008 and May 2009. That latter date is when the present proceedings based upon the validity of the apparent will of 2003 were instituted, and on the affidavit evidence before me I accept that the original of the apparent will of 10 September 2003 was found between July 2008 and May 2009.

24 Not only does the discovery of the original of the 10 September 2003 will properly executed dispose of the issue as to whether or not that will had been revoked by destruction as opposed to revocation by the 2006 will, it also confirms that the 2003 will expressly revoked all previous wills, including the February 1996 will. Accordingly, the essential issue for decision now is whether the 2003 will, as sought by the plaintiffs, or the 2006 will should be admitted to probate.

25 The dispositive effect of this apparent will and its naming of three executors including the two plaintiffs has already been described, as has been the apparent regularity of its execution by the deceased in the presence of two witnesses in compliance with s 8 of the Wills Act. This document also bears a special attestation clause which reads as follows:

This Will having first been read over to the abovenamed ANSELMO SCARPUZZA (who understands the Italian language but has an imperfect knowledge of and cannot read the English language) by me the undersigned (manuscript) John Anthony Minervini in English and having been truly interpreted to the said ANSELMO SCARPUZZA by me and the undersigned John Anthony Minervini both of whom the said Vincenzo William Sgro (manuscript) and .. understand the English and Italian languages and which reading and interpretation was done in out [sic our] presence when the said ANSELMO SCARPUZZA appeared thoroughly to understand this Will and who approved the contents thereof and was signed by the said ANSELMO SCARPUZZA as his last Will in the presence of us both present at the same time who at his request and in his presence and in the presence of each other have hereunto subscribed our names as witnesses.

26 The testator's signature appears opposite the attestation clause, and is followed by the signatures, full names and residential addresses of the two witnesses, Vincenzo William Sgro and John Anthony Minervini, who are described respectively as a Commissioner for Declarations and as a Justice of the Peace for the State of Western Australia.

27 The circumstances of the execution of this will are described in affidavits. Mr Vincenzo William Sgro, on 4 January 2010, deposed that he was asked by his friend, Mr John Anthony Minervini in 2003 to act as a witness to the signing of a will of one of Mr Minervini's friends, a Mr Scarpuzza. At the time Mr Sgro did not know Mr Scarpuzza. According to his recollection and diary, Mr Sgro attended a meeting on 10 September 2009 (which must have in fact been September 2003) at 1.30 pm at the home of Mr and Mrs Glorioso. Mrs Glorioso was John Minervini's sister-in-law and the house was in Manning Street in Fremantle. Mr Sgro says that present at the meeting were Mr Anselmo Scarpuzza, Mr Minervini, Mrs Glorioso, himself, and that possibly Mr Glorioso may have been there, but he is not certain of that. He recalls Mr Anselmo Scarpuzza signing each page of the will in the presence of Mr Minervini and himself, and Mr Minervini signing each page of the will as well. In relation to the attestation clause which records that both witnesses to the will have 'interpreted' the will to Mr Scarpuzza in Italian, Mr Sgro says that he speaks some Italian but did not speak it well enough to translate a will, so that he did not translate the will to Mr Scarpuzza. Nevertheless, his knowledge of Italian was sufficient for him to understand that discussion and he listened to Mr Minervini explaining the will to Mr Scarpuzza and confirms that Mr Minervini interpreted the will correctly.

28 There is also an affidavit of the other witness, Mr John Anthony Minervini, sworn 17 December 2009. He too described the meeting at the home of his sister-in-law, a Ms Concetta Glorioso, on 10 September 2003. According to his recollection, the persons present at the meeting were the testator Mr Anselmo Scarpuzza, himself, Mr Sgro and two of Mr Anselmo Scarpuzza's sons, Mario and Peter. He also deposes that he knew that Mr Anselmo Scarpuzza could not really read English well and while they were all there together he, Mr Minervini, read the will to him in Italian so he could understand it. He says that he did that by reading the sections of the will in English and then translating what he had just read into Italian. Mr Minervini then deposes that the testator listened to him 'and appeared to have a perfect understanding of what I was telling him'. Mr Minervini's recollection was that although Mr Anselmo Scarpuzza was not a young man at the time, his health appeared good and he was lucid and comprehended everything that was going on and was happy with what Mr Minervini had told him about the will. In his affidavit Mr Minervini identifies the testator's signature and his own signature as a witness on an annexed copy of the will.

29 In these circumstances, I find that the will of 10 September 2003 was executed by Mr Anselmo Scarpuzza by him signing the document opposite the attestation clause in the presence of the two named witnesses and that each of the two named witnesses then signed the will as witnesses below the testator's signature and added their full names, addresses and occupations. I also find that the testator and each of the witnesses had, as part of this process, also signed the foot of each page of the will before signing formally on the last page. I am satisfied that before the testator signed the will it was read over to him by Mr Minervini, a paragraph at a time, in English and that paragraph was then translated into Italian, and that this process was repeated paragraph by paragraph for the whole of the will. I accept the evidence of Mr Minervini and Mr Sgro that the deceased was alert and attentive to this process and appeared to understand the explanations which had been given to him and the Italian interpretation. I am satisfied that, although Mr Sgro was not as fluent in Italian as Mr Minervini, his knowledge of Italian was sufficient for him to appreciate and understand that an accurate translation of the contents of the will was given by Mr Minervini to Mr Scarpuzza.

30 This evidence as to the procedure followed for the execution of the will dated 10 September 2003 satisfies me that it was duly executed by the deceased who, indeed, appreciated its contents, it having been read over to him both in English and in Italian by Mr Minervini but not by Mr Sgro. This finding is at variance with the recitation in the attestation clause that the will had been read over to the deceased both in English and in Italian by each of the two witnesses because I am satisfied that it was not so read over by Mr Sgro. However, this does not detract from my conclusion that the will was duly executed although it establishes that the recitation in the attestation clause is wrong insofar as it records the will having been read over in English and Italian by Mr Sgro. This leads to some observations about the significance of an attestation clause and, in particular, an attestation clause for a testator who is not fluent or literate in English although competent in a foreign language.

31 Knowledge and approval of the contents of a will by the testator at the time of execution must be proved if the document being propounded is to be accepted as the valid last will of the deceased: Barry v Butlin [1838] EngR 1056; (1838) 2 Moo PC 480 and Cleare v Cleare (1869) LR 1 P & D 655, 657. The learned authors of Williams, Mortimer & Sunnucks, Executors, Administrators and Probate (2008) write at [13-22] and [13-23] that:

In ordinary circumstances the burden of proof is discharged by proof of testamentary capacity and of due execution, from which knowledge and approval by the testator of the contents of his will are assumed. But, in the kinds of circumstances considered below, knowledge and approval must be proved affirmatively by those propounding the will.

Proof of knowledge and approval

Affirmative proof of knowledge and approval may take any form, provided it is strong enough to satisfy the court. The fact that the deceased gave instructions for his will, or that it was read over to him or by him is, no doubt, the most satisfactory, but not the only satisfactory form of proof. The court will naturally look for such evidence. It may be impossible to establish a will without it, but the court does not require it in every case and has, in numerous cases, been satisfied as to the knowledge and approval of the testator without such evidence, provided that other evidence and the circumstances of the case warrant such a conclusion.

There must be a proper and sufficient reading over of the will. It might not be a proper reading of the will by the testator if he were merely to cast an eye over it or if a draft has been sent him for his perusal, accompanied by a letter to the effect there had been no material departure from his instructions. Clearly reading over the will at such a speed as to make it virtually impossible for the testator to follow it would not be enough; nor, in the case of a somewhat deaf man, would it suffice to read it over in such a low voice that the testator could not properly hear it.

32 The presence of a suitable attestation clause, especially in a case like this, if adapted to acknowledge the testator's limited understanding of the English language, can assist in establishing due execution and, hence, knowledge and understanding of the contents of the will by the testator. However, the Wills Act does not require the presence of an attestation clause nor is any particular form of attestation clause generally required by the authorities, although many different forms of attestation clauses, some applying in particular circumstances such as, for example, for a blind or illiterate testator, have been endorsed by the courts: Bryan v White [1850] EngR 788; (1850) 163 ER 1330; 2 Rob Ecc 315 and Re Atkinson (1883) 8 PD 165.

33 However, the presence of an attestation clause is desirable because it facilitates the grant of probate and will give rise, in the absence of other material circumstances, to a presumption of due execution: Vinnicombe v Butler (1864) 3 Sw & Tr 580. If there is no attestation clause on a will then a registrar of probate on an application for a grant in common form will require satisfactory proof of due execution by affidavit under powers which, in this jurisdiction, are set out in the Non-Contentious Probate Rules at r 15 (see above).

34 In Halsbury's Laws of England (4th ed, 2005 reissue) vol 50 [369] there is the passage:

There is a presumption of due execution where there is a proper attestation clause, even though the witnesses have no recollection of having witnessed the will, but this presumption may be rebutted by evidence of the attesting witnesses: Weatherhill v Pearce [1995] 1 WLR 592; 2 All ER 492 or otherwise.

35 Even if proof of due execution is not available from the evidence of the witnesses (who may be dead) or others who may have been present at the time of execution, it may nevertheless be inferred. In Harris v Knight (1890) 15 PD 170, 179 Lindley LJ observed:

The maxim, 'omnia praesumuntur rite esse acta', is an expression, in a short form, of a reasonable probability, and of the propriety in point of law of acting on such a probability. The maxim expresses an inference which may reasonably be drawn when an intention to do some formal act is established; when the evidence is consistent with that intention having been carried into effect in a proper way; but where the actual observance of all due formalities can only be inferred as a matter of probability.

36 In Parry and Kerridge, The Law Of Succession (12th ed, 2009) [19-24] the learned authors refer to this maxim and say that it applies with more or less force according to the circumstances of each case; for example, a formal attestation clause in a will which is regular in form raises a strong presumption - Sherrington v Sherrington [2005] 3 FCR 538, but an informal clause - Vinnicombe v Butler, or a formal clause in a will irregular in form - In the Estate of Bercovitz [1961] 1 WLR 892, 896 raises a weaker presumption - Weatherhill v Pearce [1995] 1 WLR 592.

37 A full discussion of the principles and authorities relating to the inference of knowledge and approval of the will by a testator arising from due execution or otherwise is contained in Hutley's Australian Wills Precedents (6th ed, 2004) [31.2] where the learned author observes that, generally, a court will infer or presume knowledge and approval by a free and capable testator from the fact of due execution following reading over: Will of Steward [1974] VR 179; Re Fenwick [1972] VicRp 75; [1972] VR 646; Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295, 343 (Williams J); and Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439, 452 - 453. Various forms of attestation clauses are discussed by the learned author of Hutley at [31.27] and an example of an attestation clause where a testator cannot read English but can speak it and can sign his or her name is to be found at form [31.05] of that work at page 374. Special consideration of a testator unable to speak or read English but who can sign a will or a migrant testator unable to read English but who can speak it is found at [31.31] and [31.32] of that work. The essence of these passages is that a suitable attestation clause should record the inability or deficiency of the testator in literacy or in the English language, as the case may be, and confirm that the will was read over to the testator or translated to the testator by a named person in the testator's preferred language and to confirm that the testator stated that he or she knew and approved of its contents. The reading over or interpretation should occur in the presence of both witnesses and the attestation clause should record that the testator signed the will in the presence of both witnesses, who then attested the testator's signature.

38 In the present case the presumption of due execution of the will of 18 September 2006 which would otherwise arise from the apparent due execution of that document by the testator and the particular attestation clause earlier set out cannot be accepted. The direct evidence is that the will was not read over to the testator either in English or in Italian or read by the testator himself. Having regard to the evidence which established that Mr Anselmo Scarpuzza did not have a thorough command of the English language, and the presence in the will itself of an attestation clause which, by its very terms, recited that he did not have that capacity, the absence of a reading over of the will to him and of any translation of its contents means that I cannot be satisfied that the testator had knowledge of the contents of that will or approved it. Accordingly, I conclude that the apparent will of 18 September 2006 cannot be accepted as a valid and effective last will of the deceased.

39 By contrast, the evidence establishes that at the time of execution of the will dated 18 September 2003 its contents were read over to the deceased in English, and interpreted to him in the Italian language, and that the deceased expressed himself to be satisfied with the contents of the will and proceeded to execute it formally in the presence of the two named witnesses. That evidence satisfies me that this will was duly executed and that its contents were known and approved by the testator at the time of execution. I draw these conclusions from the direct evidence of the witnesses, Mr Minervini and Mr Sgro. Although there is another attestation clause in that will recording that it was read over to the testator in English and in Italian by both named witnesses before execution, and in other circumstances that would give rise to the presumption of due execution, I cannot accept all the inferences which would otherwise arise from that attestation clause because of the direct evidence of Mr Sgro that he did not read over the will either in Italian or English to the testator. Accordingly, the inferences which might otherwise arise from such an attestation clause cannot all be drawn in this case. However, the inaccuracy of the attestation clause in that will is overcome by the direct evidence of the witnesses as I have already stated.

40 If ever there were an example of the dangers of unsupervised execution of a will prepared by solicitors, this case is one. With respect, there is great experience and wisdom in the observations in Hutley at [31.2] and [31.28] that the testator should always be asked to state in the presence of both witnesses that he or she has read over the will, that he or she knows and approves its contents, and that he or she intends the documents to be his or her will. The author of that text suggests that the standard attestation clause could be redrafted to contain the assertion that 'the testator stated that he or she knew and approved the contents of the will', but that there is a danger because if the testator does not in fact make the statement the attestation clause will state an untruth which could easily happen if, for example, the testator executed the will unsupervised by the solicitor or, where the will is being executed under supervision, the question is not put accurately by the solicitor. Further, it follows as set out in [31.28] that the solicitor should be careful to ensure that the testator states in front of the witnesses (or translator and witnesses) that the testator knows and approves the contents of the will. As the author writes, the solicitor should read the attestation clause carefully and ensure that every part of it accurately reflects what actually happened at the time. This is especially important where unusual methods of execution have been employed for testators with disabilities such as a blind testator, or an illiterate testator, or where the will has been signed by another person at the direction of the testator, or where there are circumstances which raise a doubt as to whether the testator at the time of execution of the will knew and approved its contents.

Absence of citation to or renunciation by seventh defendant

41 The seventh defendant, William Mark Dyson, entered an appearance to the action in person on 5 October 2009. He also swore an affidavit of scripts on 14 August 2009 but this document had been prepared by the solicitors for the plaintiff. At a status conference before a registrar on 21 October 2009 the solicitor for the plaintiffs appeared not merely for the plaintiffs but also for all of the defendants, including Mr Dyson, and then informed the registrar that Mr Dyson would abide by any order made by the court. Among the evidence is an affidavit from Mr Cameron David Clifton, the solicitor for the plaintiffs, sworn 30 June 2010 in which he deposes to sending an email to the parties to the action, including Mr Dyson, on 27 October 2009. At the time Mr Clifton was under the belief that Mr Dyson, who was then living in Adelaide, was not interested in this action and did not wish to be the executor of any will of the deceased and, accordingly, Mr Clifton included a paragraph which stated:

Mark, please send me an email saying that you have no interest in the Scarpuzza estate, you do not wish to take part in the action and you wish to abide by the decision of the court.

42 Mr Clifton received a reply email from Mr Dyson in terms which said:

I agree to accept the decision of the court. Thanks, Mark Dyson.

43 Following this, on 18 March 2003 (presumably 2010) Mr Clifton sent an email to Mr Dyson. The annexed copy of the email confirms that it was, in fact, sent on 18 March 2010. Annexed to that correspondence was a form of renunciation for execution by Mr Dyson and a copy of proposed consent orders to the effect that the court should grant probate in solemn form of the deceased's will dated 10 September 2003 to his sons, Peter Anthony Scarpuzza and Mario Angelo Scarpuzza, two of the three executors appointed, and that the right and title to probate and execution (presumably administration) of the will of William Mark Dyson is renounced. However, those documents were never returned by Mr Dyson. Mr Clifton then annexes a further email communication from Mr Mark Dyson, this time addressed to Mr Mario Scarpuzza and dated 19 May 2010 which, in its material part, reads as follows:

Sorry, Mario,

Will sign and send in (must admit I thought I had already do so). Hope all is well. Mark.

44 Despite this, no form of renunciation or other signed document has been received from Mr Dyson, nor has any communication been received from him to the court. He has not sought to oppose the plaintiffs' claim or to take any active part in the proceedings.

45 By s 7 of the Administration Act 1903 (WA) the court has power to grant probate to one or some of the executors named in the will but to grant leave to another executor or executors who have not renounced to come in and apply, and this is often done: see Tsaknis v Lilburne [2010] WASC 152. Section 32 acknowledges that where an executor renounces probate of the will or dies without having taken probate or where, being personally cited to take probate, does not appear to such citation, the right of such an executor to obtain a grant in respect of the estate shall wholly cease. As already mentioned, there has been no citation issued to Mr Dyson, the seventh defendant, to take probate of the will of the deceased dated 10 September 2003 in which he is named as one of the three executors. Nor, as explained, has he executed or filed any formal notice of renunciation. The question, therefore, is whether or not he should be excluded from the grant of probate sought by the plaintiffs absolutely, or omitted but granted leave to come in and prove later. Renunciation is described in Tristram and Coote's Probate Practice (29th ed, 2002) ch 15 as being the act whereby a person having a right to probate or administration waives and abandons it.

46 A formal renunciation should be in writing, signed by the executor renouncing, if a person, or sealed if the executor is a corporation, and thereupon filed in a probate registry and it will become binding upon being filed: In the Goods of Morant (1874) LR 3 P & D 151. A failure to appear to a citation to prove or renounce a will is equivalent to a renunciation. Unless he or she has intermeddled in the estate, an executor is, at any time before taking a grant, free to renounce.

47 In the present case, the question arises as to whether or not, in the absence of a formal notice of renunciation or a failure to appear to a citation to propound the will, the inaction of the seventh defendant coupled with his notification of a willingness to abide by the order of the court amounts to a waiver or abandonment of his right to seek a grant. A person cannot be compelled to accept the burdens of executorship or trusteeship against his or her will: Thompson v Leach (1690) 2 Vent 198, 206; [1726] EngR 505; 86 ER 391, 397. This applies to all forms of trusteeship. It is said that such a disclaimer is best made in writing by deed poll because that places the intention of the disclaiming trustee beyond doubt: Re Schar; Midland Bank Executor and Trustee Co Ltd v Damer [1951] Ch 280 - see generally Ford & Lee, Principles Of The Law Of Trusts [8310], but it may be implied by conduct which sufficiently indicates a refusal to accept. The question of whether mere inaction on the part of a person named as trustee justified a conclusion of acceptance or disclaimer was addressed in Re Clout & Frewer's Contract [1924] 2 Ch 230 where, at 236, it was said:

In the present case Crick survived the testator for nearly thirty years without proving, acting, or applying for or receiving his official legacy. In the circumstances I think that is sufficient evidence that he never intended to act, and disclaimed the trusts.

48 See also Re Schar and Re Gordon; Roberts v Gordon (1877) 6 Ch D 531. It has been said (by the learned authors of Jacob's Law Of Trusts In Australia [1572]) that merely remaining quiescent is equivocal and may, according to circumstances, be evidence of disclaimer or acceptance.

49 In the present case, however, I consider that, in all the circumstances, the only conclusion which should be drawn from the inaction of Mr Dyson, the seventh defendant, in applying for a grant, and his action of entering an appearance in these proceedings but not filing a defence or counterclaim seeking a grant of probate of the 2003 will jointly with the plaintiffs, should be an implied renunciation of his right to obtain probate as a co-executor with the plaintiffs. I shall, therefore, treat him as having renounced and exclude him from the grant of probate which I am satisfied should be made to the plaintiffs without reserving leave to him to come in and prove later.

50 In their application for letters of administration to be granted to Peter Anthony Scarpuzza and Mario Angelo Scarpuzza, the plaintiffs deposed, by affidavit filed 19 December 2007, that if they were to obtain such a grant by non-contentious proceedings they would administer the estate of the deceased according to law. This is a necessary requirement for a grant of probate or letters of administration under the Non-Contentious Probate Rules r 8(vii). As far as I can see, neither of the plaintiffs have given a similar undertaking in contemplation of them being granted probate of any of the apparent wills. However, in light of the evidence, and the incorporation of the probate file as evidence in these proceedings, I will treat the plaintiffs' oaths to administer the estate of their deceased father according to law as extending to a situation where they are granted probate in solemn form of that will.

51 In these circumstances, therefore, I am satisfied that the court should order that there should be a grant of probate in solemn form of law of the will of Anselmo Scarpuzza (deceased) dated 10 September 2003. The form of the grant is to be referred to a probate registrar for settling, and in the event of there being any issues arising as to the form of the grant or otherwise, there will be liberty to apply to the court, but otherwise the grant will date from this decision, being the date of the publication of these reasons. I will also order that the costs of these proceedings, both the non-contentious proceedings and this present action, be costs in the administration of the estate and payable out of the assets of the estate.

SCARPUZZA -v- SCARPUZZA [2011] WASC 65 (16 March 2011)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (92 paragraphs)

SCARPUZZA -v- SCARPUZZA [2011] WASC 65 (16 March 2011)

Absence of citation to or renunciation by seventh defendant

Legislation Cited (1)

Cases Cited (2)