Lessons from Coppola & Anor v Nobile & Anor (No.2) [2012] SASC 129.

Vittoria Coppola died a widow on 31 August 2009. She was born in 1924 in a village of San Martino in Reggio, Calabria, Italy. She spoke a particular Calabrese dialect and her English was poor.

Vittoria migrated to Australia in 1953 and executed a will in 1972 which provided firstly for her husband, and in substitution, equally to her children. After her husband’s death she made a further will in 1992 distributing her estate in uneven proportions between her children.

Clause 6 of the 1992 will also provided:

“I have not provided for my eldest daughter Grazia Nobile because of the repeated threats made by her and her husband against both my deceased husband and myself, including threats against our lives. Evidence of those threats can be given by my other children. Those threats were made over a period of 23 years before my husband’s death. On account of those threats we both feared for our safety.”

The will was prepared by a solicitor and appointed himself and Vittoria’s daughter, Severina as executors. The solicitor’s evidence was that the instructions came partially via Severina in the presence of, and with the “interpretative” assistance of, a family acquaintance, and client of the solicitor, Mr. Rocco.

The South Australian Supreme Court concluded that Vittoria was incapable of conveying her complete instructions to the solicitor in English. The evidence was that there was no basis to the allegations made in paragraph 6 of the 1992 will.

The solicitor gave evidence that he read the will and clause 6 to Vittoria in English and that Mr. Rocco appeared to translate each clause to Vittoria in Italian. However, Mr. Rocco was not an accredited interpreter and suffered from dyslexia and had difficulty reading. He admitted that there were many words in the document that he was unable to translate such as “threat” or “evidence” and nor did he know the Italian word for “beneficiary” or “executor”. In a summary fashion he attempted to translate clause 6 as some family “trouble” which he said had made Vittoria and her husband “scared”.

There was doubt that Vittoria did not fully know and approve the contents of the 1992 will. In particular, the Court was not satisfied that she knew and approved the contents of clause 6 or of the different proportions pursuant to which her estate was to be divided. The Court concluded that Severina failed to discharge the onus of proving that Vittoria knew and approved the terms of the 1992 will.

Therefore, the 1992 will was not valid and the 1972 will prevailed. However costs remained to be addressed. In Coppola & Anor v Nobile & Anor (No 3) [2012] SASC 145, Justice Stanley dealt with this question. He found that Severina, knowing the explanation proffered in clause 6 to be untrue, also knew that Grazia had a reasonable ground for disputing the 1992 will. Severina’s conduct was a cause of the litigation in respect of that will and not Vittoria. Neither, Severina or the co-executor solicitor were permitted to indemnify themselves out of the estate for the costs of the action.

Comment Coppola highlights the importance of having a will properly translated and that independence of instructions is not only seen to have been achieved, but that all suspicions of influence must be avoided such that upon independent investigation there is no reasonable doubt that a willmaker knows and approves of the contents of the will.