Antonacci v Antonacci - [2016] SASC 101

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
ANTONACCI v ANTONACCI & ORS
[2016] SASC 101
Judgment of Judge Dart a Master of the Supreme Court
5 July 2016
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - TO WHOM PROBATE GRANTED - PASSING OVER OF EXECUTOR AND OTHER MATTERS
Application to admit will and subsequent codicil to probate – admission to probate opposed – lack of testamentary capacity – codicil changes the executor – whether the named executor should be passed over.
Held:
1. The will is admitted to probate.
2. The codicil is admitted to probate.
3. No basis to pass over the plaintiff as executor.
Wills Act 1936 , referred to.
In Estate of Crane (2005) 93 SASR 198, considered.

ANTONACCI v ANTONACCI & ORS
[2016] SASC 101
JUDGE DART:

This is an application by the plaintiff to admit a will and a codicil to probate. The plaintiff is one of the sons of Lucia Emma Antonacci (“the deceased”) who died on 9 April 2013. The will was made on 25 January 2002. The deceased made the codicil on 29 January 2007. The second defendant is the eldest son of the deceased.
The third defendant is the daughter of the deceased. She is the contradictor in these proceedings. At the commencement of the trial the three issues in dispute were:
1whether the will should be admitted to probate;
2whether the codicil should be admitted to probate;
3whether, if the codicil was admitted to probate, the plaintiff should be passed over as the executor of the deceased estate.
During the course of the trial the third defendant dropped her opposition to the will being admitted to probate. There is no longer any issue in that respect. For the reasons that follow, the codicil should also be admitted to probate. In the circumstances of this matter, there is no proper basis to pass over the plaintiff as the executor of the estate of the deceased.
The will
The deceased lived in Whyalla. Her native language was Italian. By the time she came to make the subject will, she was a widow. None of her children reside in South Australia.
The will was drafted by solicitors in Whyalla in 2002. An interpreter assisted the solicitor in explaining the will to the deceased. The will was read over to her in Italian by the interpreter. It contained a number of specific bequests to the children of the deceased and also to her grandchildren. It left the residue of the estate to be divided equally amongst her three children.
The will was executed in appropriate form and meets the requirements of the Wills Act 1936. Due execution of the will was established. There is no reason for it not to be admitted to probate.
Unauthenticated addition to the will
The plaintiff gave evidence that after the execution of the codicil the deceased posted to him an envelope containing the codicil and a copy of the will. His evidence was that he did not open the envelope for approximately a year after receiving it in 2007. He never spoke to his mother about the copy of the will which was contained in the envelope. That copy of the will had a hand-written addition at the end of the will, in what appears to be his mother’s handwriting.
A translation of the additional writing was provided to the Court. It contained an additional bequest to three of the granddaughters in respect of other jewellery in the estate. All parties accept that it was the handwriting of their mother. However, no party is pressing to have the informal addition admitted to probate. The reason for that is because the evidence established that the jewellery referred to in the handwritten addition no longer forms part of the estate. There would be no practical benefit in seeking to prove the handwritten addition as a testamentary document.
The codicil
The will provided for Peter Robert Calliss to be the sole executor and trustee of the will. He was not a family member. The codicil is brief and its sole purpose is to substitute, as the executor and trustee, the deceased’s son, the plaintiff.
The will was prepared by Whitelum & Associates in Whyalla. The plaintiff gave evidence that in 2007 he made some enquiries of Whitelum & Associates about preparing a codicil. He did so at the request of his mother. They informed him that their Whyalla practice had been transferred to Gerard Downing & Associates.
The plaintiff contacted Mr Downing. It was Mr Downing who prepared the codicil in 2007 and attended to its execution. Since the execution of the codicil Mr Downing has passed away.
At some time in 2008, whilst the deceased was still alive, there were Guardianship Board proceedings. Mr Downing filed two affidavits in those proceedings. The affidavits were tendered in these proceedings without objection. The first affidavit of Mr Downing was sworn on 8 January 2009. In it he explains the circumstances leading to the preparation and execution of the codicil.
The evidence of Mr Downing was that he received a telephone call in January 2007 from the plaintiff advising that the deceased wished to make a codicil to change her will. She also wished to appoint the plaintiff as her enduring power of attorney. At that time, and now, the plaintiff was living interstate.
Mr Downing says that he attended at the deceased’s residence on 29 January 2007. Also present was Mrs Rosa Giannini. She was an Ethnic Link Services Worker. That is a service provided by Uniting Care Wesley. Mrs Giannini is a native Italian speaker and had known the deceased for many years. The terms of the codicil and the power of attorney were explained to Mrs Giannini, who then explained the contents of the documents to the deceased in the Italian language. The attendance took approximately one hour.
Mr Downing formed the view that the deceased had a reasonable understanding of English. He formed that view because she asked him quite a lot of questions in English. Mr Downing’s answers were relayed in Italian. Mr Downing deposes that he had no concerns about the mental capacity of the deceased, that she asked appropriate questions and that she gave an explanation for wanting to change the executor. It was made clear to Mr Downing that the deceased wanted her son to take control of the estate and also to assist in making decisions using the power of attorney.
The codicil was witnessed by Ms Filipatos. She was the next door neighbour of the deceased for nearly 40 years. She made an affidavit in respect of witnessing the codicil. She identified the signature on the codicil as her signature. Ms Filipatos gave some oral evidence. There was a small degree of confusion in respect of the evidence. It is clear she does not remember the occasion of witnessing the codicil. However, I accept her evidence that she witnessed the signing of the codicil and that the signature on the page is hers.
Mrs Rosa Giannini was a person fluent in Italian, who explained the codicil to the deceased. Ms Filipatos knew Mrs Giannini and deposed to the fact that she used to visit the deceased every few weeks. There is no evidence before the Court to suggest that Mrs Giannini did not properly explain the contents of the codicil to the deceased, or that the deceased did not understand the document.
The third defendant contends that the codicil should not be admitted to probate because:
1the testator lacked mental capacity from May 2005;
2the deceased did not understand the content of the codicil and that she was influenced and rushed in deciding the codicil;
3that Mr Downing was acting for the plaintiff and second defendant and not the deceased at the time the codicil was prepared.
There is, in evidence, a letter from Dr Lucia Migliore dated 28 May 2008 which indicates the deceased lacked mental capacity at that time. There is no evidence before the Court as to the deceased’s mental capacity at the time of executing the codicil in January 2007. The only evidence before the Court is contained in the affidavit of Mr Downing in which he states, having met with her and explained the codicil to the deceased, he was satisfied that she had mental capacity and understood the nature and effect of what she was doing. I find that the deceased had mental capacity at the time the codicil was executed.
Neither of the other two points made by the third defendant can be accepted. Again relying on the affidavit of Mr Downing, it is clear that the deceased knew what she was doing and that she wished to appoint the plaintiff as the executor of her will. The fact that the arrangements were made by the plaintiff does not affect the validity of the codicil. He was living interstate at the time, as were all of the deceased’s children. He had spoken to his mother. She had made a request. He took steps to organise the attendance by Mr Downing. There is nothing sinister or inappropriate in that.
The codicil should be admitted to probate.
Passing over of the plaintiff as executor
In the circumstances, as the codicil is to be admitted to probate, it is necessary to consider whether the plaintiff’s appointment as executor should be passed over.
The Court has a jurisdiction in limited circumstances to pass over an executor named in a will. In In Estate of Crane[1] Besanko J explored the nature of the jurisdiction and how it arose. His Honour said:[2]
In my opinion, this Court does have jurisdiction in limited circumstances to pass over an executor named in a will. That jurisdiction is given to this Court by s 18 of the SCA and the provisions of the Administration and Probate Act. This Court also has the power to remove an executor who has been given a grant of probate.
[1] (2005) 93 SASR 198.
[2] In Estate of Crane (2005) 93 SASR 198 at [23].
His Honour then went on to consider the circumstances in which courts had passed over an executor. His Honour said:[3]
[3]    In Estate of Crane (2005) 93 SASR 198 at [25]
There are a large number of English cases where the Court of Probate has passed over an executor or revoked a grant of probate. That has been done on various grounds of which the following are examples:
1.The executor was of bad character, had been convicted of manslaughter in relation to the death of the testator and was in prison: In Estate of S [1968] P 302.
2.The executor had neglected his duties: In Estate of Potticary [1927] P 202.
3.The executor had intermeddled in the estate and refused to take a grant: In Estate of Biggs [1966] P 118.
4.The executor was absent abroad: In Goods of Taylor [1892] P 90.
5.     The executor was suffering from ill-health: Re Galbraith (dec'd) [1951] P 422.
6.     The executor was of unsound mind: In Goods of Atherton [1892] P 104.
7.The executor was not competent to take probate: In Goods of Stewart (1872-75) LR 3 PD 244.
8.     The executor had disappeared: Re Sawtell (1862) 2 Sw & Tr 448.
9.The estate was insolvent: Ex parte Leguia; In Estate of Ashworth [1934] P 80.
His Honour also said:[4]
In considering whether this is an appropriate case to exercise the jurisdiction to pass over Kevin, I must have regard to the due and proper administration of the estate and the interests of the parties beneficially entitled to the estate. That is the guiding principle. I must also recognise that the jurisdiction is limited and that, in general, Kevin, as a person who is named as executor by the testator, is entitled to a grant of probate. I also recognise that, in the ordinary case, a potential conflict of interest will not be sufficient to justify the exercise of the jurisdiction.
[4] In Estate of Crane (2005) 93 SASR 198 at [40]
It is clear that the Court’s jurisdiction to pass over a named executor is a special and limited jurisdiction. A court should not remove an executor chosen by a testator without good cause.
The third defendant says that the plaintiff should be passed over as executor. There are four bases which the third defendant submits to the Court justify the passing over of the plaintiff. They are:
1the plaintiff allowed the second defendant to reside in the deceased’s home;
2the third defendant alleges that there has been a misuse of the funds of the deceased by the plaintiff;
3that the plaintiff failed to take steps to recover jewellery of the deceased that is missing; and
4that the deceased did not want the plaintiff to be appointed as executor and also that she wanted to destroy the codicil.
The Whyalla house
The first issue relates to the third defendant’s allegation that the plaintiff permitted his brother to move in to the family home in Whyalla and remain rent-free for a period of two years. The third defendant complains that this delayed the sale of the family home, to the detriment of the estate.
The family had been fractured for many years. The two brothers had not spoken to each other since a dispute in the 1970s. In 2008 they reconciled for the good of their mother. By that time the deceased was frail and had moved into a nursing home. The second defendant moved back to Whyalla from interstate and moved into the family home. He wished to be in a position to care for his mother. The evidence is that he regularly took the deceased out from the nursing home for excursions. Sometimes this was simply to the family home; other times to visit her husband’s grave. Every Sunday he took her to visit a family friend, which is something the family had been doing for many years. The second defendant remained in Whyalla for approximately two years.
The complaint of the third defendant falls away when one has regard to the fact that the Public Trustee was appointed by order of the Guardianship Board to manage the affairs of the deceased in 2008. It is true that the plaintiff permitted the second defendant to move into the property. He said he did so at the request of the deceased. I accept that evidence. I also accept the evidence in respect of the second defendant caring for his mother whilst he was in Whyalla.
The second defendant was only in the Whyalla property for a matter of weeks before the Public Trustee was appointed to manage the affairs of the deceased. It is not reasonable, therefore, to blame the plaintiff for the fact that no rent was paid by the second defendant or the fact that he simply remained in occupation. However, in any event, I find the second defendant moved to Whyalla to assist his mother and that he did so at her request. The evidence is that the deceased did not wish the second defendant to pay rent. I accept that evidence.
In my opinion, none of the matters arising from the second defendant residing in the family home provide a basis to pass over the plaintiff as executor.
The power of attorney
The next issue is the allegation that the plaintiff, as power of attorney, misused funds of the deceased. This is simply an allegation that the plaintiff acted dishonestly.
In May 2008 the deceased was admitted to the Whyalla hospital. From that time onwards the plaintiff managed his mother’s affairs and utilised the power of attorney in doing so. The deceased was moved to the Royal Adelaide Hospital. A treating doctor, Dr Lucia Migliore, provided a brief note dated 28 May 2008 saying that the deceased was currently mentally incapacitated and that the power of attorney needed to be activated.
The plaintiff filed a detailed affidavit responding to the allegation that he had misused funds. He accounted in great detail for the funds of his mother that he expended. The amount totalled approximately $35,000. There were two large amounts. The first of those was in the amount of $13,000. That amount related to a payment to SD Tillett Memorials in respect of restoring the headstone on his father’s grave. He had died many years before. The plaintiff explained that he lent his mother the money for that purpose because she did not wish to draw funds out of her fixed term deposits. It was his mother that wanted the grave restored. Once the deposits matured, the amount of $13,000 was repaid to the plaintiff. Invoices in respect of the expenditure were in evidence.
The other significant expenditure was in the amount of $4,629. This was by way of a pre-payment for the deceased’s funeral. The plaintiff gave evidence that he made that payment at the request of his mother. Again, an invoice was produced.
Most of the other expenses incurred were of a domestic nature, the payment of bills and the like. There were also car hire and airfares for family members to come over from Perth from time to time. The second defendant, in particular, was in modest financial circumstances in 2008. Evidence was given that the deceased offered to provide financial assistance for family members to travel to Whyalla. I accept that evidence. There were also some payments for new appliances at their mother’s home in Whyalla.
The plaintiff was cross-examined extensively in respect of the expenditure. He gave evidence clearly and precisely. He was an impressive witness. For nearly all of the expenditure, documentation was produced. I have no hesitation in accepting fully his evidence in respect of the expenditure. In fact, the evidence establishes that the total expenditure incurred by the plaintiff on behalf of his mother was $35,214.58 and that he was only reimbursed in the amount of $31,989.80.
The third defendant made numerous complaints to the Guardianship Board and the Public Trustee in respect of the expenditure of her mother’s funds by the plaintiff. On 30 March 2010 the Guardianship Board ordered that no further action be taken in respect of the allegation of misuse of funds by the plaintiff. Notwithstanding the position that the Guardianship Board came to, the third defendant continued to press in respect of the expenditure issue. The Public Trustee wrote a letter on 11 April 2014, after a review of the file, identifying 11 payments that required further clarification. The issues referred to in the letter from the Public Trustee had been satisfactorily explained in the evidence. There is no evidence before the Court that the Public Trustee believes that the plaintiff has misused any of his mother’s money.
I find that the plaintiff did not misuse the funds of his mother.
Jewellery of the deceased
The next issue relates to the jewellery of the deceased. It is accepted by all parties that the deceased had an amount of jewellery at her home. The exact extent of the amount of jewellery is not clear. There are two aspects to the missing jewellery. One relates to jewellery said to have been taken from the deceased’s home and the second relates to jewellery said to have been taken when the deceased was in the nursing home.
The plaintiff gave evidence he noticed jewellery in the Whyalla home in May 2008 when his mother was first hospitalised.
He returned to the Whyalla house in July 2008 with his brother. They were unable to access the house because the locks had been changed. By that time, the plaintiff was acting as his mother’s attorney. He had not authorised the locks on the house to be changed. It transpired that the third defendant had contacted a locksmith and had the locks changed. The plaintiff contacted the locksmith and had the locks changed back so that the he could obtain access. On the same day, 14 July 2008, on re-gaining entry of the house he noticed that jewellery, documents and a coat of his mother were missing. The plaintiff then contacted the Whyalla Police Station and filed a report.

Thereafter the third defendant had the locks changed again. That became apparent when the second defendant went to Whyalla to visit his mother and was unable to gain access to her house. Again the plaintiff had the locks changed so that he and his brother could obtain access.
There were discussions between the plaintiff and Public Trustee in respect of the jewellery. The plaintiff wrote to the Public Trustee in 2011 in respect of the jewellery. The police and the Public Trustee investigated the matter, but were unable to resolve the issue of the missing jewellery. There is certainly no conclusive evidence that the plaintiff took the jewellery.
The plaintiff cannot be responsible in respect of jewellery taken from the deceased at the nursing home unless he took it himself. He denies that and I accept his evidence. In cross-examination the third defendant accepted the plaintiff did not take any jewellery from his mother when she was in the nursing home.
At least some of the jewellery that went missing from the nursing home was given to the daughter of the second defendant during a visit to see the deceased. The jewellery in question was bequested to that granddaughter in the will in any event.
The third defendant alleges that the jewellery that went missing in 2008 was taken by the plaintiff and gifted to his daughters and his niece. As a consequence, the plaintiff’s three daughters gave evidence. I accept their evidence unreservedly.
The third defendant obtained Facebook photographs of the three girls wearing jewellery and alleged that the jewellery they were wearing was their grandmother’s. Each had been given a gold chain by their grandmother. No dispute arises in respect of the gold chains. That apart, each gave clear and unambiguous evidence about the provenance of the other jewellery they were wearing in the photographs obtained by the third defendant. I find that the jewellery they were wearing was not the jewellery of their grandmother.
No aspect of the missing jewellery issue provides any basis to pass over the plaintiff as executor.
Deceased did not want the plaintiff as executor
The last issue on the question of passing over is the third plaintiff’s suggestion that the deceased did not want the plaintiff to be executor of her will. There is simply no basis for this allegation. The evidence is that the deceased contacted the plaintiff by telephone and that led to the appointment of Mr Downing. That came about solely because the deceased wanted her eldest son to be executor of her estate. I accept that evidence. There is simply no evidence to suggest to the contrary.
Summary of position on passing order
None of the bases put forward by the third defendant as grounds for passing over are made out. There is no reason to pass over the plaintiff as executor.
The third defendant took an obsessive view about all matters in these proceedings. It is not clear why she objects to her brother being the executor of the estate. Considerable expense has been incurred in pursuing the objection. SAPOL, the Guardianship Board and the Public Trustee have investigated the third defendant’s numerous complaints. None of those bodies have come to a conclusion that the plaintiff was guilty of any misconduct. The third defendant does not accept that position. Her position is that the investigations were inadequate or incomplete. The third defendant believes that a proper investigation would vindicate her view that her brother acted inappropriately. However, the objective facts before the Court do not establish any wrongdoing by the plaintiff.
In considering the exercise of the Court’s jurisdiction to pass over an executor, regard must be had to the due and proper execution of the estate and the interests of the parties beneficially entitled to the estate. There is no evidence before the Court to suggest that the due and proper administration of the estate, or the interests of the parties beneficially entitled to the estate, would be impaired by the plaintiff acting as executor. The evidence suggests that the plaintiff would carry out his functions as executor in a diligent and appropriate manner. The jurisdiction of the Court is not enlivened.
Conclusion
In summary, then, the position is that the will and codicil should be admitted to probate and the application of the third defendant to have the Court pass over the plaintiff as executor is dismissed. I will hear the parties as to the form of orders to be made.