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Case Review Ramano v Ramano & Anor


Case Review – Romano v Romano & Anor [2004] in the Supreme Court of New South Wales – Testamentary intention and testamentary capacity.


The Facts


The dispute concerned the estate, of the late Mr Giacomo Romano (“the deceased”). The deceased’s assets included, two properties valued at $630,000, land in Italy valued at $10,000, funds with the Protective Commissioner of $970,000, funds loaned to a family trust of $137,000, funds in a solicitor’s trust account of $25,000, shares valued at $2,000 and a car valued at $1,500. In addition to these assets the deceased had made loans to Edward of approximately $5 million.


The deceased was a widower and the father of two sons, Edward and John. John died in 1995, leaving a widow and two children Donna and Louise. Under Section 29 of the “Wills Probate & Administration Act” 1898 any provision that John would have received under the deceased’s will would pass to his widow.


The deceased’s will dated December 1988 and codicil dated August 1990, made specific gifts to each son and gave the residue of the estate to them equally. 


Edward argued that a handwritten and signed document of the deceased dated April 1998, gave the entirety of his estate to Edward and forgave a loan to him, by the deceased of $5 million, was an amendment to the deceased’s will and had testamentary intention.


John’s children, the grandchildren of the deceased, argued that the handwritten document did not have a testamentary intention and further, at the time of writing this document the deceased did not have the necessary testamentary capacity.


At first instance the Court found that the handwritten document:


- Was not a Will as it did not have the necessary testamentary intention; and that

- The deceased did not have the necessary testamentary capacity, of being of sound mind, memory and understanding at the time the document was signed.




In relation to testamentary intention, the Court stated that for a document to be admitted to probate, it is sufficient that the document be capable of having a testamentary effect, so long as the intention of the deceased’s   document be his Will as established. 


In relation, to testamentary capacity. the Court considered that one important aspect of testamentary capacity is that the deceased should be able to comprehend and appreciate the claims, to which he ought to give consideration, and among those claims were the claims of his grandchildren. In addition the Court considered evidence of the deceased’s medical condition at the time of signing the handwritten document.


The Decision


After considering the facts of the case the Court held that:


1. The primary judge was correct in finding the evidence not sufficient to show that the handwritten document shows a testamentary intention.

2. The primary judge was correct in finding that, on the balance of probabilities, the deceased did not have testamentary capacity at the time of signing the handwritten document.


The Court also held that, Edward should pay the costs of the appeal, as the appeal was brought in his own interests against the primary judge’s determination of his application for probate. This meant that the costs of the appeal could not be paid for by the deceased’s estate.    


If you are contesting or disputing a Will or need advice in relation to a Will, you need to gain expert advice today so that it doesn’t end up costing you tomorrow!    

Frank Boitano is an Estate Litigation Expert who can help with any disputes or challenges that may arise from a Contested Will. To make an appointment for a free case appraisal call him today on 02 9630 0444 or email



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