Agostino v Pietrobon - [2020] SASC 117

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
AGOSTINO v PIETROBON & ANOR
[2020] SASC 117
Judgment of The Honourable Justice Stanley
26 June 2020
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - WHERE SEVERAL INSTRUMENTS - GRANT OF SINGLE PROBATE - PARTICULAR CASES
SUCCESSION - MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - KNOWLEDGE AND APPROVAL OF CONTENTS - EVIDENCE - CIRCUMSTANCES AROUSING SUSPICION
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - EVIDENCE - ONUS OF PROOF
Application to propound a will of the deceased, Giuseppina Agostino, made on 9 May 2003. The deceased died on 23 December 2016.
The plaintiff was the daughter-in-law of the deceased. The plaintiff’s late husband was the son of the deceased and her late husband. The defendants were the niece and nephew of the deceased.
The plaintiff, her late husband, and their six children resided with the deceased at her property, having earlier sold an adjoining property and moving in to better facilitate the provision of care.
The defendants oppose the application on the sole ground that it was revoked by a subsequent will the deceased made in 2014. There is no challenge by the defendants to the validity and due execution of the 2003 will.
The effect of the alleged 2014 will is to disinherit the deceased’s son (the plaintiff’s husband) and her six grandchildren and leave the whole of the deceased’s estate to the defendants. No notice was given to the plaintiff or the six grandchildren of any intention to make a new will in these terms.
Held (granting the application):
1. Although the defendants do not seek to have the alleged 2014 will admitted to probate, they nonetheless bear the onus of proving the validity of that document because, by raising its existence as revoking the 2003 will, in effect they are propounding the 2014 document as the deceased’s last will and testament.
2. In order to prove a will the proponent must establish that the testator had testamentary capacity and knew and approved the contents of the will at the time of its execution.
3. The suspicions raised by the evidence as to the deceased’s knowledge and approval of the alleged 2014 will have not been dispelled by the defendants. They have not proved the document as the last will and testament of the deceased.
4. The plaintiff has proved the 2003 will. It will be admitted to probate.
Tobin v Ezekiel (2012) 83 NSWLR 757; Veall v Veall (2015) 46 VR 123, applied.
Thompson v Bella-Lewis [1997] 1 Qd R 429; Bailey v Bailey (1924) 34 CLR 558; Crerar v Crerar (unreported, April 1956, Sachs LJ); Gill v Woodall [2011] Ch 380; Roche v Roche & Anor [2017] SASC 8, discussed.

AGOSTINO v PIETROBON & ANOR
[2020] SASC 117
Testamentary Causes Jurisdiction
STANLEY J.
Introduction

This is an application to propound a will of the deceased, Giuseppina Agostino, made on 9 May 2003. The deceased died on 23 December 2016.
The plaintiff, Caterina Agostino, was the daughter-in-law of the deceased. The plaintiff’s husband, Rocco Agostino, was the son of the deceased and her late husband, Vincenzo. Vincenzo died in October 1996.
The defendants, Nancy Pietrobon and Dominic Agostino, are brother and sister. They are the niece and nephew of the deceased.
The application is unusual in that the defendants oppose the application to prove the 2003 will on the sole ground that it was revoked by a subsequent will the deceased made in 2014. There is no challenge by the defendants to the validity and due execution of the 2003 will. The only issue in relation to the 2003 will is whether it was superseded by the later will. The defendants do not seek to have the alleged will of 2014 admitted to probate but, nonetheless, they bear the onus of proving the validity of that document[1] because, by raising its existence as revoking the 2003 will, in effect they are propounding the 2014 document as the deceased’s last will and testament.
[1] Tobin v Ezekiel [2012] NSWCA 285 at [44]-[53], (2012) 83 NSWLR 757 at 770-773; Veall v Veall [2015] VSCA 60 at [166]-[179], (2015) 46 VR 123 at 173-178.
In the event that the Court was to find that the 2003 will was revoked by a will made in 2014, the plaintiff brings a claim in equity seeking a proprietary estoppel in relation to the principal asset of the estate, namely a residential property at 92 Nelson Avenue, Flinders Park (the Nelson Avenue property). In the further alternative, a claim is made for a common intention constructive trust in respect of the same property.
Factual background
The following matters are not in dispute or have been established on the evidence.
The deceased was born in Italy on 1 December 1937. She and Vincenzo married in about 1955. Rocco was born on 10 December 1956. In or about 1964 the deceased, Vincenzo and Rocco migrated to Australia. The deceased and Vincenzo purchased Nelson Avenue as joint tenants in 1968. It was originally a three bedroom house. The deceased resided at the Nelson Avenue property until 2016. The deceased’s daughter, Maria, was born in 1972. Maria was severely intellectually and physically disabled from birth. She was cared for at home for her entire life. Another son, Nicola, died in infancy.
On 17 February 1988 Rocco purchased the house adjoining the Nelson Avenue property. Its address was 7 Fowler Avenue. On 22 April 1989 Rocco and the plaintiff were married. They took up residence at Fowler Avenue. They ran a pizza shop business. The plaintiff worked in the shop as well as running the home. From the time the plaintiff and Rocco took up residence in Fowler Avenue the plaintiff also assisted the deceased in running the household at Nelson Avenue. In due course the fence between the two properties was removed to make it easier for the plaintiff and Rocco to access the Nelson Avenue property. The plaintiff’s and Rocco’s first child, Adrianna, was born on 17 March 1993. On 17 February 1994 Rocco sold the Fowler Avenue property and he, the plaintiff and Adrianna moved into the Nelson Avenue property to better facilitate caring for the deceased, Vincenzo and Maria. In June 1995 Rocco and the plaintiff lodged a development approval application to undertake extensive renovations to the Nelson Avenue property to accommodate their growing family. In August 1995 Rocco, the plaintiff, Vincenzo and the deceased made wills.
Various events increased the plaintiff’s responsibilities in the household at Nelson Avenue. In 1995 and 1996 Vincenzo underwent two operations to amputate his legs. By early 1997 there was a conflict between Nicola Oppedisano, the deceased’s father and Rocco’s grandfather, and the deceased’s sister, Ester. They were living in their residential property at Hobbs Street, Findon. Their continued occupation of the property was untenable. In March of that year Nicola transferred his interest in the Hobbs Street property to Rocco and the plaintiff. This was in consideration for Rocco and the plaintiff borrowing money to pay out Ester’s interest in the Hobbs Street property. The NAB took a mortgage over the Hobbs Street property to secure the loan to Rocco and the plaintiff. Subsequently Mr Oppedisano took up residence in the Nelson Avenue property. On 21 October 1996 Anthony and Vincent were born. On 23 October 1996, Vincenzo died. On 23 October 1997 Christopher and Allessandra were born. On 5 February 1999 Catherine was born.
On 21 February 2000 Rocco and the plaintiff were declared bankrupt. That resulted in the NAB taking possession of the Hobbs Street property. It was then Mr Oppedisano took up residence at the Nelson Avenue property. He lived there until his death in 2007.
On 5 September 2000 Maria died. In 2000 and 2001 the first stage of the renovations to the Nelson Avenue property were undertaken. In November 2000 the Agostino Family Trust was declared. It is a standard discretionary family trust. The specified beneficiaries are the plaintiff, Rocco, and their six children. The definition of general beneficiaries includes the plaintiff and Rocco.
In August 2001 Adelaide Nut Distribution Pty Ltd was registered. Rocco conducted that business from a warehouse in Welland. On 8 March 2003 Rocco and the plaintiff were discharged from bankruptcy. In April and May of 2003 Rocco, the plaintiff and the deceased made new wills.
Various other renovations were conducted on the Nelson Avenue property. The kitchen was renovated in 2005. Landscaping was done in 2006. All the renovations were complete by 2008. In September 2007 the Nelson Avenue property was transmitted into the deceased’s name only. In 2008 Rocco fell ill and underwent a kidney transplant. In November 2011 Rocco suffered a brain haemorrhage which left him severely disabled. In February 2012 he was admitted to the Hampstead Rehabilitation Centre. In September 2012 he was admitted to the St Hilarion Home. From 2012, an employee of the company, Mr Armando Trimboli, and the plaintiff took over the day-to-day running of the business. The plaintiff continued to maintain the household at Nelson Avenue.
Following Rocco’s admission to St Hilarion the deceased became increasingly upset and distressed. She wanted Rocco to come home. She blamed the plaintiff. Their relationship became strained. Fortunately, as time went by, the relationship improved.
In April 2016 the deceased was admitted to the Queen Elizabeth Hospital. While there the deceased was seen by a solicitor, Amalia Addabbo, for the purposes of giving instructions for a new will. The deceased did not make a will as Ms Addabbo formed the opinion that she lacked testamentary capacity. The deceased signed the set of will instructions prepared by Ms Addabbo. On 3 May 2016 the deceased made a new advanced care directive nominating the plaintiff and Adrianna as her decisionmakers.
On 23 December 2016 the deceased died. Her funeral was held on 29 December 2016. The defendants attended the funeral. On 23 January 2017 the defendants’ solicitors wrote to Rocco advising that they acted for a person named as executor in a will made by the deceased on 20 August 2014. On 3 February 2017 the plaintiff lodged a caveat. Rocco died in 2018.
The deceased’s wills
I am satisfied on the basis of the evidence of the affidavit of Anastasia Richards sworn 4 November 2019 that the deceased made a will on 17 August 1995. By the terms of that will she appointed Rocco and the plaintiff as her executors and left the whole of her estate to her husband, Vincenzo, should he survive her. If he did not survive her, then she left the whole of her estate, after payment of her debts, to Rocco provided he agreed to be responsible for the care, maintenance and supervision of Maria until her death. The will further provided that in the event that Rocco predeceased her, leaving a child or children who had attained the age of 18 years, that child or children should take in equal shares as tenants in common.
The deceased’s 2003 will revoked all former wills and appointed Rocco and the plaintiff as her executors and trustees. The deceased left the whole of her estate, after payment of her debts and funeral expenses, to the Agostino Family Trust. In the event that the Agostino Family Trust was not in existence at the time of the deceased’s death, she left the whole of her estate to Rocco provided he survived and, in the event that he predeceased her, she left the whole of the residue of her estate to such of his children as survived her and had attained the age of 21 years and, if more than one, equally between them.
The alleged 2014 will
The alleged will appoints the deceased’s niece, Nancy Pietrobon, as her executor and trustee. The deceased leaves the whole of her estate, after payment of debts and testamentary expenses, to be divided equally between the defendants, Nancy Pietrobon and the deceased’s nephew, Dominic Agostino. Dominic Agostino is appointed as the substitute executor. It is dated 20 August 2014 and purports to be signed by the deceased. The document appears to be prepared from a will kit. It is written in English. It appears to be witnessed by Joyce Bueti and Lisa Fuda.
The effect of the document is to disinherit her son and her six grandchildren and leave the whole of her estate to her niece and nephew.
The evidence is that the deceased did not give any notice to the plaintiff or any of the deceased’s grandchildren of any intention to make a new will in these terms. There is no evidence that the deceased informed Rocco of any intention to do so.
Knowledge and approval
In order to prove a will the proponent must establish that the testator had testamentary capacity and knew and approved the contents of the will at the time of its execution.[2]   Testamentary capacity and knowledge and approval are distinct concepts. The establishment of testamentary capacity is a necessary but insufficient condition for the establishment of knowledge and approval.[3] If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity. Circumstances which raise a doubt as to the existence of testamentary capacity shift the evidential burden to the party propounding the will to show that the testator was of sound and disposing mind. In those circumstances, proof of testamentary capacity would require the Court to be satisfied, on a consideration of the evidence as a whole, that the testator enjoyed testamentary capacity at the time of execution of the will. Upon proof of testamentary capacity and due execution there is also a presumption of knowledge and approval of the contents of the will at the time of execution. But that presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator.[4]
[2]    Veall v Veall [2015] VSCA 60 at [166], (2015) 46 VR 123 at 173.
[3]    Veall v Veall [2015] VSCA 60 at [173], (2015) 46 VR 123 at 176.
[4]    Tobin v Ezekiel [2012] NSWCA 285 at [45]-[46], (2012) 83 NSWLR 757 at 771.
In Tobin v Ezekiel[5] Meagher JA, with whom Basten and Campbell JJA agreed, cited with approval a passage from the reasons of McPherson JA in Thompson v Bella-Lewis[6] that the circumstances which can raise a suspicion concerning knowledge and approval must be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator’s death.[7] The exception to this may be where the will is retained by someone who benefits under it, or who participated in its preparation or execution.
[5] [2012] NSWCA 285, (2012) 83 NSWLR 757.
[6] [1997] 1 Qd R 429.
[7] [2012] NSWCA 285 at [46], (2012) 83 NSWLR 757 at 771.
Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved of the contents of the document.[8]
[8] [2012] NSWCA 285 at [46], (2012) 83 NSWLR 757 at 771.
Meagher JA said:[9]
Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be “the most satisfactory evidence” of actual knowledge of the contents of the will: Barry v Butlin; Gregson v Taylor; Re Fenwick. What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example, in Wintle v Nye the relevant circumstances were described as being such as to impose “as heavy a burden as can be imagined”. Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction: Fulton v Andrew; Tyrrell v Painton. That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator: Tyrrell v Painton; Nock v Austin; Fuller v Strum; Dore v Billinghurst.
[Citations omitted]
[9] [2012] NSWCA 285 at [47], (2012) 83 NSWLR 757 at 771.
The burden of proof on the proponent is the civil standard but discharged in accordance with the approach in Briginshaw v Briginshaw.[10]
[10] [2012] NSWCA 285 at [48], (2012) 83 NSWLR 757 at 772.
This analysis of the law in relation to knowledge and approval was subsequently adopted by the Victorian Court of Appeal in Veall v Veall.[11] Santamaria JA referred to the summary of the law by Isaacs J, with whom Gavan Duffy and Rich JJ agreed, in Bailey v Bailey[12] that:[13]
1.The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument.
2.This onus means the burden of establishing the issue. It continues during the whole case and must be determined upon the balance of the whole evidence.
3.The proponent's duty is, in the first place, discharged by establishing a prima facie case.
[11] [2015] VSCA 60, (2015) 46 VR 123.
[12] [1924] HCA 21, (1924) 34 CLR 558.
[13] [1924] HCA 21, (1924) 34 CLR 558 at 570.
Santamaria JA continued:[14]
Once suspicious circumstances are established, it is then for the propounder to dispel that suspicion. What evidence will be sufficient to allay the court’s suspicion will necessarily depend on the circumstances supporting the suspicion; the proof required to allay “suspicious circumstances” will depend upon what it was about the circumstances that made them suspicious. For instance, where a person who stands to gain a benefit under the will participated in its production and execution, it is said that special vigilance is required.
“Knowing and approving of the contents of one’s will is traditional language for saying that the will ‘represented [one’s] testamentary intentions’”. “Testamentary capacity” and “knowledge and approval” are distinct concepts. The former is a necessary but not a sufficient condition for the establishment of the latter. In Hoff v Atherton, Chadwick LJ said:
[I]t may well be that where there is evidence of a failing mind — and, a fortiori, where evidence of a failing mind is coupled with the fact that the beneficiary has been concerned in the instructions for the will — the court will require more than proof that the testator knew the contents of the document which he signed. If the court is to be satisfied that the testator did know and approve the contents of his will — that is to say, that he did understand what he was doing and its effect — it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator’s capacity to make a will. It is because the court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents — in the wider sense to which I have referred.
[Citations omitted]
[14] [2015] VSCA 60 at [172]-[173], (2015) 46 VR 123 at 175-176.

Santamaria JA then referred with approval to the statement by the learned authors of Williams Mortimer & Sunnucks – Executors, Administrators and Probate[15] that:
[a] radical departure from testamentary dispositions, long adhered to, requires explanation, especially if the person in whose favour the change is made possesses greater influence and authority with the deceased and originates and conducts the whole transaction; and such facts may raise strong suspicions that the change was not the result of the free volition of the deceased. But that suspicion may be dissipated by proof of a change of circumstances since the earlier wills. There have been a number of cases in which wills prepared by elderly testators in favour of their carers have been subjected to close scrutiny by the court, and are often set aside.
The testator’s feebleness of body or mind may be relevant to knowledge and approval.
[15] 20^th ed (2013) at 207 [13-30].
Proof that the will was read by or read to the testatrix before its execution may not be sufficient. Nor will evidence that the will was explained to the testatrix. Santamaria JA cited with approval the reasons of Sachs LJ in Crerar v Crerar[16] that the Court had to consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, come to a conclusion whether or not those propounding the will had discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption of law.[17]
[16] Unreported, April 1956, Sachs LJ.
[17] [2015] VSCA 60 at [178], (2015) 46 VR 123 at 177-178.
The reasons of Sachs LJ in Crerar were subsequently approved by the Master of the Rolls, Lord Neuberger of Abbottsbury, in Gill v Woodall.[18]
[18] [2010] EWCA Civ 1430 at [22], [2011] Ch 380 at 389.
In Roche v Roche & Anor[19] Kourakis CJ adopted the explanation of the relevant principles concerning knowledge and approval in Veall.
[19] [2017] SASC 8 at [536]-[537].
The evidence relevant to knowledge and approval
Ms Joyce Bueti was an ethnic aged care coordinator with an Italian community organisation, ANFE, for 18 years from 1999. She retired in 2017. Her duties included home visitation, arranging volunteers to visit isolated and lonely people in their homes and nursing homes, and organising volunteers to telephone people. In the course of her work in about mid-2013, the deceased was referred to her by another organisation, Ethnic Link.
Ms Bueti met the deceased at the Nelson Avenue property. She organised for a volunteer to visit her on a weekly basis. Ms Bueti said that, in addition, she performed occasional check visits where she visited the deceased. She described her as being lonely and sad. She gave evidence that the deceased told her she was unhappy. She said she was not being treated well at home. No‑one listened to her. She said she was isolated within the family. She said the deceased complained that she was distraught about her son, Rocco, being in a nursing home.
Ms Bueti described her involvement in the preparation of the alleged 2014 will. She received a telephone call from a volunteer advising that the deceased wanted to speak to Ms Bueti about changing her will. The deceased did not want to do that at home. Ms Bueti said she organised for a JP, Mr Cosmo Camporeale, to attend at the ANFE office for this purpose. She gave evidence that there were two meetings with Mr Camporeale and the deceased. She attended both. At the first meeting she said the deceased said she wanted to change her will, that she loved her niece and nephew very much, they were very respectful to her and had been very caring throughout the years. The deceased said she wanted to leave part of her home to them. In cross-examination she said she was uncertain whether the deceased had said the whole or part of the property. She said that Mr Camporeale said that if the deceased was certain this is what she wanted to do, he would prepare a will. He took “all the details” and said he would phone her to sign the will at a later stage. She gave evidence that some time later Mr Camporeale telephoned her to advise that the will was ready. She arranged to drive the deceased to the ANFE office on 20 August 2014. She accompanied the deceased into a little board room. Mr Camporeale was present. She said that the defendants were not present at that time but they came later. In examination‑in‑chief she said that Mr Camporeale read the will to the deceased in the Italian language. However, in cross-examination she said he did not read the will. Instead, she said he read his notes. She gave evidence that the deceased signed the document. She witnessed it by affixing her signature to the document. She said Lisa Fuda came in when the deceased signed the document. She said Ms Fuda signed it. I will come back to this.
Ms Bueti said the deceased did not want to take the will home. There were two versions of the will. Ms Bueti said that both documents were signed. They were both placed in the safe. Later, the defendants collected one of them. Subsequently she said the will was collected by the second defendant.
In cross-examination Ms Bueti said that on this occasion the deceased also had granted a power of attorney and enduring power of guardianship. Subsequently, she said she could not recall them being signed.
I am not prepared to rely on the evidence of Ms Bueti.
The defendants gave evidence that they had a close, warm, loving relationship with the deceased. They visited her regularly. The first defendant said that she received a telephone call from Mr Camporeale asking both her and her brother to attend at his office at the Woodville Town Hall for the purpose of signing some documents concerning the deceased. She did not know Mr Camporeale. She relayed this request to her brother. They said they went to his office the same day. The deceased had not previously asked whether they would be her attorney and guardian. Nonetheless, they signed the power of attorney and enduring power of guardianship documents. They took them home. No mention was made of a will having been made by the deceased in their favour that same day. The deceased had not spoken to the first defendant about appointing her as her executor. Nor did she subsequently do so. The first defendant learned that she had been appointed the deceased’s executor on 28 December 2016 when she attended on a solicitor, Mr Jordan, with her brother.
The first defendant said her brother had made the appointment with Mr Jordan. Her brother said he had a “document” and he wanted Mr Jordan to look at it. She does not recall her brother mentioning a will. He had told her that Ms Bueti had arranged for him to collect it. He had done so but had not told her what it was. She did not suspect it was a will. She said that she attended with her brother at ANFE’s office where Ms Bueti gave her brother an envelope containing documents relating to the deceased. She said Ms Bueti did not describe the documents. They did not ask what they were. She did not look at the documents before the first meeting with Mr Jordan when she learned that she and her brother were the sole beneficiaries of the deceased’s estate. She denied undertaking an LTO search of the Nelson Avenue property in November 2014.
The second defendant described receiving a telephone call from his sister advising him that they needed to meet Mr Camporeale to sign some papers. He did not know Mr Camporeale. He and his sister met Mr Camporeale at the Woodville Town Hall. On the basis of the date on the documents and the evidence of the first defendant I infer that was on 20 August 2014. Mr Camporeale presented them with a power of attorney and an enduring power of guardianship. They signed the documents. They were given copies which they took home. Later he was telephoned by Ms Bueti. He did not know her. She asked him whether he would come to the ANFE office as she had some documents that the deceased wanted him to collect. He went to the ANFE office and met Ms Bueti. She told him that the document was the deceased’s will. Ms Bueti said that the deceased wanted the documents kept in a locked safe. He was given a sealed envelope. He took the envelope home. He did not open it. He did not discuss it with the deceased. He informed his sister that he had been given the deceased’s will.
He denied the plea in the defence that the deceased had given him the will, expressing concern about keeping it at the Nelson Avenue property owing to the controlling and prying nature of the plaintiff. He said that the deceased had asked him to collect the will from Ms Bueti. The deceased asked him not to say anything to anybody about it. He said that after the meeting with Mr Camporeale where they had executed the power of attorney and enduring power of guardianship the deceased telephoned him to ask if he had received the paperwork and advised him to keep it a secret. The second defendant described taking the envelope to Mr Jordan after the death of the deceased. He denied conducting an LTO search into the Nelson Avenue property in November 2014. He could not explain how it found its way into Mr Jordan’s file.
I was not impressed the evidence of either defendant. Important details changed during the course of each of them giving evidence. Their evidence was riddled with inconsistencies. They contradicted each other. I do not accept the evidence, of at least one of them, denying undertaking the LTO search of the Nelson Avenue property in November 2014. The only plausible explanation for the existence of the LTO search on Mr Jordan’s file is that one or both of them provided the search to him. That points unequivocally to at least one of them giving incorrect evidence of being unaware of the contents of the alleged 2014 will. I do not consider their evidence provides a reliable foundation for making findings of fact.
Consideration
It is the defendants who bear the onus of proving the alleged 2014 will was valid because they propound that document as revoking the 2003 will, the validity of which is otherwise unchallenged, by way of defence to the plaintiff’s claim for a grant of probate for the 2003 will.[20]
[20] Tobin v Ezekiel [2012] NSWCA 285 at [44]-[53], (2012) 83 NSWLR 757 at 770-773; Veall v Veall [2015] VSCA 60 at [166]-[179], (2015) 46 VR 123 at 173-178.
For the reasons that follow, I find that the defendants have not discharged that onus.
The evidence leaves me with a doubt as to whether the alleged 2014 will was duly executed by the testatrix signing it in front of two witnesses who duly signed it. The sequence by which the document was supposedly signed, given in evidence by Ms Bueti, was inconsistent and she did not give express evidence that Ms Fuda saw the deceased sign the document.[21] In evidence-in-chief she was asked who was present when the deceased executed the alleged 2014 will. She said:[22]
I was present, and Cosmo [Camporeale] was present.
[21] T 407-409 and 428-429.
[22] T 407.20-21.
Ms Bueti subsequently gave evidence that Ms Fuda came into the room when the deceased signed the document. In cross-examination she said:[23]
[23] T 428.19-429.17.
Q.    … what was the next step that happened.
A.    Then Mrs Agostino would have signed the will.
Q.    Then what was the next thing that happened.
A.    I witnessed the will.
Q.    So you signed.
A.    Yes, I signed it and Lisa came in and signed it. She witnessed the signatures.
Q.    She didn't see Pina sign, did she.
A.    She came in as Pina signed the will, so we both witnessed the signature.
Q.    So - no, she had already come in before Pina signed.
A.    Who, Lisa?
Q.    Yes.
A.    She came in when Pina signed the will.
Q.    Before or after.
A.    No, when she was signing the will.
Q.    As she was signing it.
A.    Yes.
Q.    Okay, so Mrs -
A.    We both witnessed her signature.
Q.    So you say as she was signing -
A.    Yes.
Q.    - Lisa then came in.
A.    Yep, Lisa was only from here to there (INDICATES). So she came in.
Q.    Are you sure about that.
A.    Yes, I am.
Q.    It's not the case that Lisa came in after -
A.    No.
Q.    - she was signing.
A.    No.
Q.    Why are you so certain about that.
A.    Because we called Lisa to come in and witness the signatures.
Q.    So that's your memory now.
A.    That's my memory.
On the basis of Ms Bueti’s evidence I am not prepared to accept that Ms Fuda was present in the room when the deceased executed the will.
I note that the evidence given by Ms Bueti is inconsistent with the basis upon which Mr Douglas, counsel for the defendants, opened. He told the Court Ms Bueti would give evidence that she brought the deceased to the ANFE office. There they met Mr Camporeale. He read the deceased’s previous will and he asked the deceased whether she wanted to change it. The deceased gave instructions she wished to do so by leaving her inheritance to the defendants. Mr Camporeale then typed amendments to the will kit document before explaining and reading the terms of the will kit document to the deceased. She signed the will in front of Ms Bueti and Ms Fuda who then witnessed the document. The deceased then asked if the will could be retained at ANFE and if they could arrange for it to be collected by the defendants.
That doubt as to due execution is heightened by the unexplained failure to call the other ostensible witness to the alleged 2014 will, Ms Fuda. The position is compounded by the unfortunate failure to call Mr Camporeale to give evidence. While Mr Jordan’s affidavit[24] provides an explanation for the failure of the defendants to do so, the absence of evidence from Mr Camporeale and Ms Fuda, the only other persons who could give evidence as to the ostensible execution of the alleged 2014 will, given the unsatisfactory nature of Ms Bueti’s evidence, to which I will return, leaves a forensic hole which the defendants bear the onus of filling.
[24] Exhibit D10 Affidavit of Mark Jordan sworn 13 November 2019.
That lacuna is not filled by the evidence of Mr Camporeale’s affidavit of 18 August 2017.[25] The affidavit incorrectly asserts that the alleged 2014 will is dated 20 August 2012. Contrary to the evidence of Ms Bueti it asserts that the deceased instructed Mr Camporeale to prepare the document in 2012 rather than 2014, that the will was executed in Mr Camporeale’s office rather than the ANFE office and that Mr Camporeale could not recall the names of the witnesses despite Ms Bueti giving evidence that she knew Mr Camporeale well.[26] I further note that the letter from Dr Chia exhibited to Mr Jordan’s affidavit refers to Mr Camporeale having issues with remembering events from 2017 and that he cannot recall the parties involved from 2017 when his involvement in these matters apparently occurred in 2014. None of this evidence ameliorates the difficulties for the defendants in relying upon the evidence of Ms Bueti as to due execution.
[25] Exhibit D11.
[26] T 403.22-23, 405.34-36, 420.23-25, 424.37-425.25.
In any event, there is evidence of circumstances exciting suspicion that the deceased did not know and approve of the contents of the alleged 2014 will at the time of its execution.
First and foremost, the document excludes persons naturally having a claim upon the testatrix, namely, her son and her grandchildren. There is no evidence that would provide any cogent or even a satisfactory explanation for why the deceased would have changed her will to exclude them from her bounty.
Second, the alleged 2014 will departed from long-held testamentary intentions of the deceased as evidenced by the 1995 will and the 2003 will.[27]
[27] Veall v Veall [2015] VSCA 60 at [175], (2015) 46 VR 123 at 177.
Third, there is evidence that casts doubt on the deceased’s mental acuity at the time the alleged 2014 will was ostensibly executed. By 20 August 2014 the deceased was aged 76 years. She had suffered a stroke from which she did not fully recover.[28] She was very forgetful.[29] Her physical health was very poor.[30] She withdrew into herself.[31] She did not seem to understand things that were said to her by the plaintiff.[32] I accept the evidence of the plaintiff and Adrianna that this accurately describes the condition of the deceased, not just in 2016 but from 2014.[33] Even Ms Bueti described the deceased as frail.[34] She was sad and cried a lot.[35] I accept that the deceased was severely affected psychologically by Rocco’s stroke.[36] Neither of the defendants gave evidence to the contrary. Indeed, the defendants said that Rocco’s stroke left the deceased very distressed and upset. She would cry a lot.[37]
[28] T 102.33-103.19.
[29] T 103.19.
[30] T 142.24-27.
[31] T 192.33.
[32] T 143.23.
[33] T 201.20 and following, 270 and following, 276.17-19.
[34] T 426.17.
[35] T 431.26.
[36] T 192.29-33.
[37] T 329-330, 334.3.
Fourth, both before and after 20 August 2014 the deceased told Adrianna and Mr Higgins that the Nelson Avenue property would go to the grandchildren.[38] While there is a possibility that the deceased set out deliberately to deceive them, there is no plausible explanation why she would wish to do so in the case of Mr Higgins. All the evidence suggests that they had a good and close relationship.[39] On the other hand, while it can be contended that if the deceased intended to disinherit Adrianna, she might have had a motive to conceal from her what she had done to effect that intention, there is no satisfactory explanation for why she would wish to disinherit Adrianna or any of the other grandchildren. It is common ground that the deceased and her grandchildren enjoyed a warm, strong relationship typical of the kind that exists between grandparent and grandchildren, without any history of acrimony or dispute between them.[40]
[38] T 213.28-30, 215.13-14, 217.8-38, 276.13-14.
[39] T 209.31-35, 212.10-24, 215.25-27.
[40] T 16.14-27.
Further, there is no evidence that would explain why the deceased would have formed an intention to exclude Rocco from her bounty. I am satisfied that she loved Rocco dearly. The evidence is that she was deeply distressed by his stroke.[41] There is simply no evidence to explain why she would wish to disinherit him. While questions were asked in cross-examination of the plaintiff about Rocco’s life expectancy,[42] there was no evidence from the defendants or Ms Bueti that would establish either knowledge on the part of the deceased that Rocco’s life expectancy was limited by reason of his illness, or that his illness provided an explanation for her to disinherit him. Certainly Ms Bueti did not give any evidence that would suggest the deceased had intended to make a new will in 2014 so as to disinherit her only living child, let alone why she would do so.
[41] T 192.25-29, 334.3-5.
[42] T 191-192.
In this context I should refer to two matters. In their defence the defendants pleaded that the deceased expressed concerns to them that Rocco had received his grandfather’s inheritance, i.e. Nicola Oppedisano’s inheritance, to the exclusion of his other grandchildren including them.[43] There was no evidence to support this allegation. On the contrary, the evidence was that Mr Oppedisano had no estate to leave. The second defendant was forced to concede that the allegation was false.[44]
[43] Second defence paragraph 18.2.2.2.
[44] T 389.36 – 392.9.
Ms Bueti gave evidence of various complaints made by the deceased concerning her belief that the plaintiff and Mr Trimboli were conducting an affair, that the deceased’s telephone usage was being monitored and that she was being discouraged from using the heater and the stove.[45] No other witness gave evidence of the deceased making these complaints, including the defendants. Further, there was no evidence that the substance of the complaints were true. On the contrary, the evidence was that they were not true.[46] It is unclear why Ms Bueti would not have acted on these complaints if she believed them to be true. In any event, there is no evidence that the deceased referred to these matters as explaining why she intended to disinherit her son and grandchildren. The evidence of these complaints tended to attribute blame to the plaintiff rather than Rocco or the children. I accept the plaintiff’s evidence that from September 2012 when Rocco was transferred to St Hilarion, the relationship between her and the deceased became strained.[47] That could provide a possible explanation for excluding the plaintiff from being a beneficiary under the deceased’s will, however, it remains the position that there is no evidence that provides a satisfactory explanation for the exclusion of the deceased’s son and grandchildren from the benefit of her estate.
[45] T 400.14-401.19.
[46] Re the stove: T 120.36, 228-231; the telephone: T 194; the alleged relationship with Trimboli: T 138, 195.8. Generally see the evidence of Higgins at T 216-217.
[47] T 107.37-108.11 and 192.16-19.

Rather, the evidence suggests that the deceased was confused and lacked a proper appreciation and understanding of the contents and effect of the alleged 2014 will. That is consistent with the evidence that when she conferred with Ms Addabbo in April 2016 for the purposes of making a new will, she did not appear to know who the beneficiaries were of the alleged 2014 will.[48] That also provides an explanation for the exclusion of her son and grandchildren from benefiting from her estate, contrary to her long-held testamentary intentions.
[48] T 259-260.
Fifth, the alleged 2014 will was taken into the possession of the second defendant, one of the two principal beneficiaries under the document, and its existence kept secret until the death of the deceased. The evidence of the defendants by which they sought to explain their conduct in this regard, I found implausible and unpersuasive.[49] The defendants’ claim that they did not read the alleged 2014 will until they sought legal advice following the deceased’s death is difficult to reconcile with the existence of the LTO search of the Nelson Avenue property dated 17 November 2014[50] found in the file kept by their solicitor, Mr Jordan,[51] who was instructed in December 2016. There is evidence of a second will, supposedly in identical terms, executed on 20 August 2014, which remains in ANFE’s custody but there is no evidence of steps having been taken by the defendants to bring this document before the Court to establish that its terms reflect the terms of the alleged 2014 will.[52]
[49] T 339.20-343.21, 345.10-347.12, 382.37-383.38, 389.32-391.27.
[50] Exhibit P14.
[51] T 361-363, 392-394.
[52] T 439-440.
Against that body of evidence of circumstances arousing suspicion must be weighed the evidence of Ms Bueti. Unfortunately, as I have indicated, I did not find her evidence to be a reliable basis for making findings of fact. In giving her evidence Ms Bueti frequently stated that she did not remember matters but nonetheless insisted that she had no trouble with memory.[53] Notwithstanding her evidence in this regard, she forgot several important details until prompted, such as the making of the power of attorney and guardianship, and whether there was a second will, which may still sit in the safe at ANFE. Some of her evidence smacked of reconstruction,[54] for example, her evidence in relation to the supposed execution of the alleged 2014 will.[55] Her demeanour in the witness box was defensive and prickly. She regularly declined to answer questions on the ground that she was simply there to do her job[56] or that she knew what the deceased wanted.[57] She contradicted herself. For example she denied and then admitted feeling sorry for the defendants.[58] I was left with the impression that Ms Bueti was prepared to tailor her answers when she perceived that they may cast doubt on the validity of the alleged 2014 will. The most obvious example of this was her refusal to admit the water stained and torn document she said the deceased produced at the first meeting could not have been the deceased’s 2003 will.[59] That description did not match the 2003 will. In any event it is not clear what document was presented by the deceased at the first meeting that was water stained and torn.[60] Ms Bueti had given evidence that she had never seen exhibit P4, the 2003 will.[61] She could not remember whether anyone read it.[62] Ms Bueti’s evidence concerning the deceased’s expressed intentions as to the disposition of the Nelson Avenue property to the defendants was inconsistent, confused and ultimately unresolved. As I have found, she initially gave evidence that the deceased wanted to give part of the Nelson Avenue property to the defendants.[63] However, under cross‑examination she resiled from that proposition and asserted that the deceased wished to give the whole of the property to the defendants.[64] Eventually she conceded that she did not remember what the deceased said in this regard and that it could have been either that she intended to leave the defendants the whole or part of the property.[65] Ms Bueti gave evidence that she sat through a meeting where Mr Camporeale took instructions for a will and sat through another meeting where he read to the deceased his notes concerning those instructions and yet she said she does not know the terms of the alleged 2014 will.
[53] T 411, 418.
[54] T 419, 420, 422, 423, 424, 425, 427 and 438.
[55] T 407-409 and 428-429.
[56] T 412.4-12, 414.16-17.
[57] T 413.17-18, 420.3-4.
[58] T 414.19-34.
[59] T 416-419.1.
[60] T 416.
[61] T 417-418.
[62] T 418.31.
[63] T 405.16.
[64] T 411.24, 414.35-416.24.
[65] T 415.35-416.6.
As I have said, Ms Bueti could not remember whether the alleged 2014 will was read to the deceased by Mr Camporeale. Clearly the deceased could not have read the document. She could not read English. Ms Bueti’s only memory was that Mr Camporeale read his notes to the deceased.[66] There is no evidence of the contents of those notes. Ms Bueti could not give a substantial account of what Mr Camporeale said in this regard. She said he did so in Italian. The evidence as to how instructions, if any, for the alleged 2014 will, the power of attorney and the enduring power of guardianship were provided to Mr Camporeale is less than satisfactory. Ms Bueti gave evidence that she attended two meetings between Mr Camporeale and the deceased in which there was discussion about making a new will. That evidence suggests that Mr Camporeale took instructions at the first meeting and that the alleged 2014 will was supposedly executed at the second meeting. However, this evidence suffers from the flaws that afflict the reliability of Ms Bueti’s evidence referred to earlier. She has little recollection of what, if any, instructions were given by the deceased. As I have noted she was confused about what the deceased wanted to leave to the defendants. She could not recall whether it was the whole or part of the Nelson Avenue property. In itself this raises doubts as to whether the alleged 2014 will reflects the deceased’s actual testamentary intentions. Ultimately I cannot rely upon the evidence of Ms Bueti that the deceased knew her own mind in relation to her testamentary intentions.
[66] T 423-424.
Further, there is no evidence that, at the time of the supposed execution of the alleged 2014 will, the deceased knew and understood the extent of the assets of her estate.[67] As at 20 August 2014 the deceased had a balance of nearly $57,000 in a Commonwealth Bank account.[68] There is no evidence of any discussion with Mr Camporeale concerning that account or any other property constituting her estate.
[67] T 420.9-21.
[68] Exhibit P5.
The suspicions raised by the evidence as to the deceased’s knowledge and approval of the alleged 2014 will have not been dispelled by the defendants. They have not proved the document as the last will and testament of the deceased.
I am satisfied the plaintiff has proved the 2003 will. There was no challenge to its validity. The sole basis of the defence to the application to prove the 2003 will was that it had been revoked by the alleged 2014 will. I am satisfied on the basis of the evidence of Ms Boylan that the 2003 will was duly executed.
In the circumstances I do not need to consider the plaintiff’s claims in equity seeking a proprietary estoppel or a common intention constructive trust in respect of the Nelson Avenue property.
Conclusion
I would admit the 2003 will to probate. I will hear the parties as to the orders that should be made.