Konstantinou v Mazitelli [2010] NSWSC 576

New South Wales Supreme Court

CITATION : Konstantinou v Mazitelli [2010] NSWSC 576

HEARING DATE(S) : 1 March 2010

JUDGMENT DATE : 1 March 2010

JUDGMENT OF : Bergin CJ in Eq

DECISION : Order in Summons made.

CATCHWORDS : SUCCESSION - validity of will - whether deceased had capacity to make will - whether deceased had ability to discriminate

CASES CITED : Azzopardi v Smart (1992) 27 NSWLR 232 Weinstock v Beck in the Estate of Weinstock [2007] NSWSC 193

Peter Konstantinou (First Plaintiff) PARTIES : Angela Konstantinou (Second Plaintiff) Damon Mazitelli (First Defendant) Allan Williams (Second Defendant)

FILE NUMBER(S) : SC 2009/321499

COUNSEL : J Armfield (Plaintiffs) R Wilson (Defendants)

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BERGIN CJ in Eq

1 MARCH 2010

2009/321499 - KONSTANTINOU v MAZITELLI JUDGMENT – EX TEMPORE 1 This is an application brought by Peter Konstantinou and Angela Konstantinou by Summons filed on 16 December 2009 in respect of caveats lodged by Damon Mazitelli, the first defendant, and Allan Williams, the second defendant, being the nephews of the deceased Harry Dalton Williams, who died on 13 March 2009 aged 90 years.

2 The deceased left his estate, the main asset of which is a property in Enfield, to the plaintiffs who can be described as his friends and carers. There is also a gift of a piano and $10,000 to the granddaughter of the plaintiffs, Ilyssa. 3 The plaintiffs rely upon the evidence of Photios Vouroudis, the solicitor who drew the will and took instructions from the deceased, and on their own affidavit evidence annexing relevant documentation. 4 The defendants rely upon the affidavits of Russell Kenny of 12 February 2010, Leroy Alan Jones of 18 February 2010, John Fisicaro of 8 February 2010 and Damon Mazitelli sworn 9 February 2010. 5 Mr J Armfield, of counsel, appears for the plaintiffs and Mr R Wilson, of counsel, appears for the defendants. There is no issue that the caveators have an interest in the estate. The only issue that has been argued before me today is whether there is some matter occasioning doubt as to whether the grant ought to be made. 6 The defendants argue that the doubt should be entertained in respect of the deceased's capacity to make the will. The principles to be applied in an application such as this have been helpfully set out by Windeyer J in Weinstock v Beck in the Estate of Weinstock [2007] NSWSC 193, in particular at [13] where his Honour said: There is no doubt that Mrs Beck as caveator has an interest. In most cases, of course, the interest which a caveator asserts is an interest under an earlier will if capacity is attacked or under a later will if the last will is not propounded. There might also be an interest on intestacy in the event that the will propounded is held to be invalid. In such a case the law is quite clear. If the caveator adduces some evidence that may cast doubt upon the validity of the will propounded or whether it is the last will then orders will be made that the matter proceed as a contested suit on pleadings. There is no requirement on the caveator to establish a prima facie case or a serious question to be tried; what has to be established is that there is reason to allow the matter to proceed as a contested suit.