Blasutto v Fantin; Estate of Maria Delfina Blasutto [2000] NSWSC 258

New South Wales Supreme Court

CITATION : Blasutto v Fantin; Estate of Maria Delfina Blasutto [2000] NSWSC 258 CURRENT JURISDICTION: Equity Division Probate List FILE NUMBER(S) : SC 103462/99 HEARING DATE(S) : 21/02/2000 and 27/03/2000 JUDGMENT DATE : 27 March 2000

PARTIES : Paolo Blasutto (P) Sara Maria Rosa Fantin (D) JUDGMENT OF : Young J

COUNSEL : D L Warren (P) SOLICITORS : Lapaine Pomare & Forster (P) CATCHWORDS : Succession [30]- Lost will- Presumptions- Uncertainty whether will last in possession of testatrix or solicitor. Curley v Duff (1985) 2 NSWLR 716 CASES CITED : Finch v Finch (1867) LR 1 P & D 371 Patten v Poulton (1858) 1 Sw & Tr 55 The Estate of Whiteley 13 May 1993 DECISION : See paras 12 and 13

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROBATE LIST YOUNG J

MONDAY 27 MARCH 2000

103462/99 - PAOLO BLASUTTO v SARA MARIA ROSA FANTIN; ESTATE OF MARIA DELFINA BLASUTTO JUDGMENT 1 HIS HONOUR: This is an application for probate in solemn form of a missing will. The testatrix, on the evidence, made her last will on 18 September 1981. She made it by instructing a solicitor, Mr Pelosi, who at that stage was in partnership with a Mr Marshan under the name of Pelosi Marshan and Co at Leichhardt. 2 The evidence is that the testatrix was given a copy of her will and the original was left with the solicitors. The solicitors subsequently dissolved their partnership. Neither Mr Pelosi nor Mr Marshan has the will. 3 Mr Pelosi gave evidence that on the dissolution of the partnership, contact was made with various clients and many attended the office and uplifted their files, private packets and wills. However, there are no records indicating which clients attended, and there is no indication that the present testatrix collected her will. 4 Before she died, the testatrix remarked to her son from time to time that her will was with her solicitor. After her death the copy of the will was found, but not the original. 5 The testatrix was a member of the Australian Italian Community. The plaintiff's solicitors made inquiries of all solicitors who normally act for members of that community, and put advertisements in newspapers read by Italian speakers, but the original will has not been found. 6 The plaintiff seeks to have probate of the copy of the will. Under that will the plaintiff, who is the testatrix's son, will receive about $169.00 and the principal asset of the testatrix will pass to her granddaughter Sara, who is called Renata in the will, Renata being her mother's name. 7 In Curley v Duff (1985) 2 NSWLR 716 at 718-719, I said that in this sort of case five matters must be established, viz: