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  • Unreported Judgment

Sorbello v Noble

 

[2004] QSC 433

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

de JERSEY CJ

Application No 476 of 2004

MARGARET ELIZABETH SORBELLO JOHN RUSSO,
ERIC JOHANNES BOURGONJE AND ALF ROSS GERARD MANGANO

Applicants

and

 

KEITH ALLAN NOBLE

Respondent

CAIRNS

DATE 19/11/2004

JUDGMENT

THE CHIEF JUSTICE: On the 7th of April 1997 Hilda Jago signed a will, which is in rather unusual form, appointing her brother, Ted Jago, as her executor, and giving him a property at Cardwell, and placing another property in his “sole charge…to act on in any manner he sees fit to carry out the verbal instructions I have given him.”

There was an earlier will under which the respondent was a beneficiary. The respondent takes the view that the 1997 will was the result of at least undue influence exercised by the executor under that will upon the testatrix. The respondent accordingly lodged a caveat requiring proof in solemn form of that 1997 will.

The present applicants, who are the executors of the will of Ted Jago who has since died, subsequently that is to the death of the testatrix, seek a grant of administration in the estate of Hilda Jago so that they may administer the will of 1997.

The respondent caveator on the other hand would seek the appointment of the Public Trustee to administer that will if it should be admitted in solemn form.

THE CHIEF JUSTICE: The applicants have applied for an order under rule 626 of the Uniform Civil Procedure Rules setting aside the caveat. That rule provides that the Court may set aside a caveat if the Court considers that the evidence does not raise doubt as to whether the grant ought to be made.

Mr Philp SC, who appears for the respondent, has raised a number of matters which he submits exclude the view that there is plainly no doubt whether a grant ought to be made. They are, in summary, that on the evidence Ted Jago organised the making of the 1997 will, drafted its terms, arranged for its execution at the Canegrowers Building in Tully, and retained possession of the will after its execution. All that was done in the absence of, or without input from, a solicitor or any other independent advisor acting in the interests of the testatrix. Further, Ted Jago was the sole beneficiary under the 1997 will.

There is, presently anyway, no evidence that the will was read over to the testatrix before she executed it. Further, when interviewed by the police, Ted Jago in his terms said that he had “badgered” the deceased into making the will.

In a situation like this, as confirmed in Fulton and Andrew, 1875 Law Reports 7 House of Lords 448, the onus is borne by Ted Jago, or those who would now represent his interests to establish what is termed the “righteousness” of the transaction.

There is no suggestion that when she executed the will the testatrix was not of sound mind and memory, incapable of comprehending it. The issue would be the righteousness or the conscientiousness of the transaction, raising of course the question whether the testatrix acted purely voluntarily or alternatively under the pressure of some undue influence exerted by Ted Jago.

The issue at the moment is simply whether all of those prima facie concerns are answered to the point where the Court should take the view that there is no doubt but that a grant of probate should be made. It is only in those circumstances that the Court would summarily set aside the caveat under rule 626. Otherwise, the issues would fall to be examined comprehensively, and at appropriate leisure, in the course of a full solemn form hearing.

The answer made to those prima facie matters for concern, by Mr Pope who appears for the applicants, is that there was no attempt to change the will on the part of the testatrix between 1997 and the year 2001 when she died. Mr Philp responds that the evidence does not disclose any such attempt. I am not satisfied to the requisite standard, from that circumstance, even if it be established there was no attempt to change the will, to warrant my excluding or overcoming the doubts prima facie arising from the combination of circumstances to which I earlier referred. I consider therefore that the application should not succeed and that the matter should go to a full solemn form hearing.

When I began to hear this case this morning, I recalled having received from the respondent material in which he comprehensively challenged the police investigation into the death of his aunt, the testatrix, and the determination of the Coroner that there should not be a coronial inquiry, and the sufficiency of subsequent treatment of his concerns within the Queensland Police Service and at the level of executive Government.

I have over recent years received, to my recollection, a number of sets of material from the respondent. My recollection is that I have been one of a number of recipients or addressees of that material. I raised the question at the outset whether that should preclude my dealing with the matter this morning and was informed that no objection was raised to my dealing with it. I did, however, continue to consider in my own mind whether it was appropriate that I continue.

The material the respondent has sent to me relates more to the circumstances of the death than to the circumstances of the execution of the will. None of it has been relevant to my disposition of this application this morning. In fact that material, so far as it is before the Court, has been filed on behalf of the applicants and not the respondent. He does not seek to rely upon it in his opposition to this morning's application and insofar as it has been placed before me by the applicants, I have to say that I consider it irrelevant to the determination of the application this morning.

If anything, that material would have caused me to have some concern about the position of the respondent. Overall, I have not thought that I should disqualify myself, notwithstanding the absence of any objection to my continuing with the matter on the basis of the receipt of that material from the respondent.

In relation to costs, I think they should be reserved to await the outcome of the solemn form application and that should be brought on as soon as possible.

THE CHIEF JUSTICE: The application filed on the 6th of October 2004 is dismissed with costs reserved. What direction do you seek?

MR POPE: That my clients commence some formal proceedings within 14 days or so.

THE CHIEF JUSTICE: I make that direction. Thank you.

THE CHIEF JUSTICE: I grant leave to all parties to the intended solemn form proceeding to make a copy of the original will, Exhibit 1, and for that purpose, by arrangement with the Registrar, to remove it from the precincts of the Court.

Close

Editorial Notes

  • Published Case Name:

    Margaret Elizabeth Sorbello John Russo, Eric Johannes Bourgonje and ALF Ross Gerard Mangano v Keith Allan Noble

  • Shortened Case Name:

    Sorbello v Noble

  • MNC:

    [2004] QSC 433

  • Court:

    QSC

  • Judge(s):

    de Jersey CJ

  • Date:

    19 Nov 2004

Litigation History

No Litigation History

Appeal Status

No Status