SIMMONE MAREE MOSCUFO as executrix of the will of GUISEPPE MOSCUFO -v- MOSCUFO [No 2] [2025] WASC 112

Catchwords:
Wills – Probate – Proof in solemn form – Compromise – Proposed discontinuance – Undefended trial – Due and proper execution in accordance with the Wills Act 1970 (WA) – Procedure to be followed

[2025] WASC 112
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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION : SIMMONE MAREE MOSCUFO as executrix of the will of GUISEPPE MOSCUFO -v- MOSCUFO [No 2] [2025] WASC 112
CORAM : SOLOMON J
HEARD : 20 MARCH 2025
DELIVERED : 20 MARCH 2025
PUBLISHED : 8 APRIL 2025
FILE NO/S : CIV 1510 of 2023
BETWEEN : SIMMONE MAREE MOSCUFO as executrix of the will of GUISEPPE MOSCUFO
Plaintiff
AND
ENZO MOSCUFO
Defendant
Catchwords:
Wills – Probate – Proof in solemn form – Compromise – Proposed discontinuance – Undefended trial – Due and proper execution in accordance with the Wills Act 1970 (WA) – Procedure to be followed
Legislation:
Administration Act 1903 (WA), s 35, s 36
Rules of the Supreme Court 1971 (WA), O 17 r 3
Wills Act 1970 (WA)
[2025] WASC 112
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Result:
Probate in solemn form granted
Category: B
Representation:
Counsel:
Plaintiff
:
Mr J Burke
Defendant
:
Mr G A Lacerenza
Solicitors:
Plaintiff
:
Lark Lawyers
Defendant
:
G A Lacerenza & Associates
Cases referred to in decision:
Fisher v Kay [2010] WASCA 160
Wheatley v Edgar [2003] WASC 118
[2025] WASC 112
SOLOMON J
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SOLOMON J:
(This judgment was delivered extemporaneously on 20 March 2025 and has been edited from the transcript).
Background
1
This is an application by the plaintiff, who seeks proof in solemn form of the will of Guiseppe Moscufo (Testator) dated 21 February 2021 (2021 Will).
2
The proceedings were issued by writ of summons indorsed with a statement of claim dated 17 May 2023. Orders were sought that the court pronounce the enforceability of the 2021 Will in solemn form. That application was opposed by the defendant, who initially sought proof of a previous will, being a will executed by the Testator in 1987 (1987 Will).
Without intending any disrespect, I shall refer to people by their first name so as to avoid confusion. The Testator was born in Italy in February 1929. He married Emilia Moscufo (Emilia), who was born in April 1932, in February 1950. They emigrated to Australia some 10 years later, around 1960. The Testator and Emilia (who has also since passed away), had two children. Nicolo Moscufo (Nicolo) was born in 1952, and Enzo Antonio Moscufo (Enzo) was born in 1961. Nicolo had three children. The oldest was Simmone Maree Moscufo (Simmone), who was born in 1974. Simmone is the named executor to the 2021 Will and is the plaintiff in these proceedings, seeking proof in solemn form of the 2021 Will. Nicolo had a second child, Daniel John Yee-Moscufo (Daniel), born in 1977, and a third child, Adam Nicholas Moscufo (Adam), born in February 1979. Sadly, Nicolo passed away in 2014. Enzo is still alive and is currently 63 years old. Enzo has no children.1
Simmone’s evidence
3
Simmone gave evidence by an affidavit dated 7 March 2025, which was tendered and is relied upon in this proceeding. Simmone’s uncontested evidence is that she was very close to her grandparents and visited them regularly, providing them with care and assistance. Most relevantly, in January 2021, Simmone took her grandmother, Emilia, to an appointment with a doctor. The discussion with the doctor then led to the Testator and Emilia making fresh wills. Simmone gives evidence
1 Affidavit of Simmone Maree Moscufo, 7 March 2025, 2.
[2025] WASC 112
SOLOMON J
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that there were a number of discussions at that time in relation to the
wills of the Testator and Emilia. Those discussions, or at least some of them, were attended also by Simmone’s brothers and by Simmone’s husband, Adam Boddington, who is a chartered accountant and has some experience with these matters.
4
Wills were prepared for the Testator and for Emilia. They were straightforward wills. The will of the Testator (the 2021 Will) nominated Simmone as executrix, and if Simmone did not survive the Testator, then the grandson Daniel was nominated.
5
In effect, the 2021 Will left the estate of the Testator to his wife, Emilia. If Emilia did not survive the Testator, then half of the estate was to go to their son, Enzo, and the other half was to be divided in equal shares between the late Nicolo’s three children, being Simmone, Daniel and Adam. Provisions were to operate if Enzo or any of the grandchildren did not survive the Testator, but those provisions need not be considered because this did not eventuate.
6
In her affidavit, Simmone gave evidence that she arranged for the wills to be signed by her grandparents at their local pharmacy, which they regularly attended. Two registered pharmacists were in attendance and witnessed the wills.
7
The evidence indicates that the wills were mirror wills, that is, they provided for mutual outcomes. The 2021 Will is in evidence. It is executed in regular form and the signatures of the two pharmacists appear on the will as having attested to the signature of the Testator. Simmone gave evidence that conversations with both of her grandparents, throughout the time period leading up to and on the day of the execution of the wills, satisfied her that her grandparents were of sound mind and had a sound understanding of what it was they wished to do and what the wills contained.
8
Simmone’s affidavit also includes evidence that her husband, Adam, explained the wills to the Testator and Emilia, and received confirmation that they understood the content of the wills.
9
In addition, Simmone’s evidence was that the pharmacist, Mr Fong, asked the Testator and Emilia if they understood the document they were signing, that is; their wills, and each of them confirmed that they did. Simmone’s evidence was that her grandparents were at the pharmacy for approximately half an hour.
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SOLOMON J
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10
Simmone gives further evidence that in all her interactions with the Testator – at least up until mid-2021, which includes the time of the execution of the 2021 will – there was nothing said or done by the Testator that raised any question or query about the Testator’s mental capacity or cognition.
The 1987 Will
11
From about mid-2021, the Testator’s health began to deteriorate, and he eventually passed away on 6 March 2022. Following the Testator’s death, the family found in his house a prior will dated 30 June 1987. That is the 1987 Will to which I referred at [2] of these reasons. The 1987 Will, in effect, provides substantively for the same outcome as the 2021 Will. The principal relevant difference is that in the 1987 Will, the Testator’s two sons, Nicolo and Enzo, were appointed joint executors.
12
I pause at this point to observe that the 2021 Will and 1987 Will were therefore in substantially identical terms, other than the identity of the executor. Significantly, they both reflect unremarkable and rational dispositions of the sort that one would expect to find in the Testator’s will.
Enzo’s counterclaim and compromise
13
As I have observed, following the proceedings issued by Simmone for proof in solemn form of the 2021 Will, Enzo counterclaimed seeking a grant of probate of the 1987 Will in solemn form.
14
On 29 October 2024, with the consent of the parties and under s 35 of the Administration Act 1903 (WA) I appointed a legal practitioner, Mr Ian Blatchford, as the manager and receiver of the Testator’s estate pending the outcome of the litigation.
15
Subsequently, the parties agreed to a compromise of the action. The compromise is on the basis that the parties agree to do all things within their capacity to seek proof in solemn form of the 2021 Will, save that Mr Blatchford would be appointed administrator of the estate of the Testator, rather than Simmone taking up her role as executor.
16
To that end, counsel for Simmone confirmed at trial that Simmone had renounced her executorship, and that her renunciation would be
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SOLOMON J
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formalised in writing.
A formal written deed of renunciation dated 20 March 2025 was filed with the court attached to an affidavit.2
The undefended trial
17
Having been advised of the compromise, on 10 February 2025 I made orders under Order 73 rule 19 of the Rules of the Supreme Court 1971 (WA) for the action to be entered for trial on an undefended basis, with evidence by way of affidavit, and for the defendant to have leave to withdraw his defence and discontinue the counterclaim, which the defendant then did.
18
That course is taken in accordance with the principles set out in the decision of this court in Wheatley v Edgar [2003] WASC 118. I adopt the principles set out in that decision without repeating them. The substantive and relevant point that arises from that decision for present purposes is that, notwithstanding an agreed compromise, the action is to be set down for trial because no grant of probate, particularly in solemn form, should be made merely by the consent of the parties.3
19
As that case also makes plain:
… [F]or there to be a grant in solemn form the court must be satisfied on evidence adduced by the party propounding the will, or by any other party to that suit, whether joined or cited, of the formal validity of the will, on such evidence as the propounder decides to adduce that the testator had the capacity to make a will at that time: Barry v Butlin (1838) 2 Moo PC 480 and Pereira v Pereira [1901] AC 354 PC. In this regard the propounder may take advantage of the rule that a will, properly executed is, in the absence of evidence to the contrary, presumed to have been made by a person competent and understanding.4
20
That is, as that case recognises:
… [W]hen a compromise is reached between the parties to a contested action for proof in solemn form, it is open to the court to decree in favour of the will either in common form or in solemn form but, for solemn form to be decreed sufficient evidence to satisfy the minimum requirements for validity must be adduced and that this will require, at least, proof of due execution.5
2 Affidavit of Melissa Romeo, 20 March 2025.
3 Wheatley v Edgar [2003] WASC 118, [30].
4 Wheatley v Edgar [2003] WASC 118, [24].
5 Wheatley v Edgar [2003] WASC 118, [26].
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SOLOMON J
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21
The plaintiff, as I have observed, relies substantially upon Simmone’s affidavit. I have also received an affidavit of Ian Torrington Blatchford dated 11 March 2025 and an affidavit of Yii Mee Fong dated 19 March 2025 attaching the binding heads of agreement that embody the compromise. As I have already observed, the defendant, who was represented by counsel today, did not seek to adduce any evidence or make any submissions, and raised no objection to the orders sought or the evidence adduced.
22
I turn then to the evidence in favour of proof in solemn form. It is clear from the affidavit evidence that the 2021 Will was duly and properly executed in accordance with the Wills Act 1970 (WA).6 In that regard, I note that a presumption of due execution arises where a will, regular on its face, bears the signature of a testator and two witnesses. That principle was confirmed by the Court of Appeal in Fisher v Kay [2010] WASCA 160 at [83].
23
In that case, the Court of Appeal also observed (at [85]) three presumptions that arise from due execution; testamentary intention, testamentary capacity, and knowledge and approval of the contents of the will. It follows that those presumptions arise by reason of the due execution of the will, and no evidence was sought to be adduced to rebut those presumptions. Further, and in any event, I am satisfied from the affidavit evidence, particularly the affidavit evidence of Simmone to which I have referred, that the Testator had the necessary and requisite testamentary intention, capacity, and knowledge and approved of the contents of the 2021 Will. That emerges quite plainly from Simmone’s evidence in what she observed in relation to the preparation and the execution of the 2021 Will.
24
In addition, those matters can be readily inferred from the fact that the will was witnessed by two health professionals. Simmone’s evidence also confirms that at least one of those health professionals, a pharmacist, spoke to the Testator and confirmed that he understood and consented to the contents of the 2021 Will.
25
It is also most significant, as I have already observed, that the 2021 Will is consistent with the 1987 Will, and that both those wills reflect and embody entirely rational dispositions.
6 Wills Act 1970 (WA) s 8.
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SOLOMON J
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Conclusion
26
For those reasons, I am satisfied that the 2021 will ought to be proved in solemn form and orders to that effect will be made. The plaintiff has proposed orders in its minute dated 18 March 2025. Those orders are that:

1. It is pronounced that the last will and testament of Guiseppe Moscufo dated 21 February 2021 is valid and has force as the will of the late Guiseppe Moscufo.
2. The probate registrar is to seal a grant of letters of administration with the will annexed in solemn form in favour solely of Ian Torrington Blatchford, as administrator.
3. There be no order as to costs and all previous undischarged costs orders be vacated.
   27
   In respect of order 2 regarding the appointment of Mr Blatchford, s 36 of the Administration Act 1903 (WA) provides the power to appoint a person as administrator.7 That power arises in these circumstances where Simmone has, pursuant to the compromise, renounced her executorship. The court therefore has the power to appoint Mr Blatchford as administrator with the will annexed. Accordingly, the orders set out above will be made.
   7 Administration Act 1903 (WA), s 36.
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   SOLOMON J
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   I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
   LZ
   Associate to the Honourable Justice Solomon
   9 APRIL 2025