Argiro v Lagozino

Case [2017] SASC 185

SUPREME COURT OF SOUTH AUSTRALIA

(Testamentary Causes Jurisdiction: Application)

ARGIRO v LAGOZINO

[2017] SASC 185

Judgment of The Honourable Justice Stanley

14 December 2017

SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - LOSS OR LACK OF CAPACITY AND STATUTORY WILLS

Application pursuant to s 7 of the Wills Act 1936 (SA) for the making of a statutory will.

The defendant made a will kit will in 1980. The interested party, who is the defendant’s sister, was arguably the sole beneficiary under that will. He subsequently gave instructions in 2014 as to the making of a new will, and made provision for her solely due to advice that his estate might otherwise be subject to an Inheritance (Family Provision) Act 1972 (SA) claim. The proposed will now before the Court makes three specific bequests to persons other than the interested party, and then distributes the remainder of the estate 30 per cent to the interested party if she survives the testator and 70 per cent in equal shares to those of her children who survive the testator. In the event she does not survive the testator, her share falls back into the remainder to be distributed amongst her children who survive the testator.

The evidence of the interested party is, in essence, that she enjoyed a good relationship with her brother until some time after 2009 which coincided with his diagnosis of Alzheimer’s dementia.  The real issue is whether the Court can be satisfied on the evidence that the proposed will accurately reflects the likely intentions of the defendant if he now had testamentary capacity.

Held: Application granted.  It is desirable that a statutory will be made.  The parties are to be heard further in relation to the precise terms of the proposed will and the orders to be made.

1.  This is a lost capacity case.  The defendant was diagnosed with Alzheimer’s dementia in 2009.  There is no issue that the defendant lacks capacity and in any event, the evidence supports such a finding (at [30]-[31).

2.  By September 2014, the defendant’s instructions were influenced by the hostility he felt towards his sister.  That hostility was informed by a view he had long held, since he developed dementia, that his sister had acted in ways that prejudiced his property and financial interests in Italy.  His views were misinformed and founded on a delusional belief.  To that extent, he lacked testamentary capacity (at [45]-[46]).

3.  In the circumstances it is not reasonable that an order should be made authorising the making of a will on behalf of the defendant in the specific terms of the proposed will. However, if the defendant had testamentary capacity now he would likely make a will which provided for the interested party and the three persons proposed to receive specific legacies.  It is desirable to make a statutory will and the parties will be further heard as to its precise terms and the orders to be made (at [53] and [55]).

Wills Act 1936

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Argiro v Lagozino [2017] SASC 185
Case
[2017] SASC 185
Decision Date

CaseChat Overview and Summary

The case of Argiro v Lagozino involves the deceased's estate and the validity of a will executed by the deceased, Michele Lagozino, who passed away with Alzheimer’s dementia. The primary dispute is whether the 1980 will, which names Michele's sister, Maria De Girolamo, as the sole beneficiary, accurately reflects his intentions if he had testamentary capacity at the time of its execution. The plaintiff, Judith Quick, Michele's former guardian and administrator, seeks to challenge the validity of the 1980 will in favour of a proposed will that reflects the deceased's alleged intentions in 2014. This case was heard by the Supreme Court of South Australia.

The legal issues before the court included determining whether Michele had testamentary capacity at the time of executing the 1980 will and whether the will accurately reflected his intentions if he had capacity. A significant part of the deliberation was whether the instructions Michele gave to his solicitor in 2014, which suggested a different distribution of his estate, accurately reflected his intentions if he had testamentary capacity at that time. Additionally, the court had to consider whether Michele had the requisite testamentary capacity when he gave these instructions in 2014, and whether his instructions were influenced by a hostility towards his sister.

The court found that Michele did indeed suffer from Alzheimer’s dementia and lacked testamentary capacity at the time of his death. However, it was also established that he had testamentary capacity at some point in the past. The court examined the evidence of instructions Michele gave to his solicitor in 2014, noting the substantial changes from the 1980 will. The court concluded that while Michele had the capacity to give these instructions in 2014, it was uncertain whether he would have maintained those intentions if he were free from delusions or hostility towards his sister. Given the uncertainty and the lack of clarity regarding Michele's true intentions, the court decided not to validate the proposed will over the 1980 will.

The court granted permission to proceed with the application but ultimately upheld the validity of the 1980 will. The court found that the evidence did not sufficiently demonstrate that the proposed will accurately reflected Michele's intentions if he had testamentary capacity at the relevant time. Therefore, the 1980 will remains valid, and Maria De Girolamo is entitled to the estate under its terms.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The plaintiff requires permission to bring this application. The purpose of a grant of permission to proceed is to provide a mechanism by which baseless or unmeritorious applications are screened out. In proceedings such as the present, where the application is not obviously without merit, the practice of this Court has been to hear and determine concurrently the issues of permission to proceed and the substantive application.[16] I have adopted that practice in this case and, having heard the application, propose to grant the necessary permission.[16] Hoffmann v Waters [2007] SASC 273 at [10], (2008) 98 SASR 500 at 503; Re W, DJ [2015] SASC 45 at [20]; Re Maniskas [2015] SASC 77 at [15]; In the Matter of K, JL [2016] SASC 53 at [8].Evidence I have received in evidence and had regard to affidavits of Judith Quick, dated 13 February 2017, the plaintiff, dated 10 May 2016, 18 May 2016, and two affidavits of 20 February 2017, affidavits of the plaintiff’s solicitor, Jason Coluccio, of 10 May 2016, 24 August 2016, 29 August 2016 and 31 August 2017, an affidavit of Giulia Zito, dated 2 June 2017 and an affidavit of Michele Polvere, dated 5 July 2017, affidavits of the interested party’s solicitor, Jennifer Brook, dated 18 November 2016 and 29 June 2017, an affidavit of Maria Lagozino, dated 19 October 2016, medical records of Mr Lagozino, a will kit will of Mr Lagozino, dated 1 August 1980, and various correspondence between the solicitors in relation to administration expense, an email from Mr Coluccio in regard to current estate assets and values of 26 September 2017, and an email from Pasquale, Donato and Angelo De Girolamo, the children of Ms Lagozino of 21 September 2017, together with an English translation of that email. I also received a consent by Angelo Lagozino to act as an executor and trustee of Mr Lagozino. I heard evidence from the plaintiff, Mr Michele Polvere, Mr Lagozino’s solicitor, and Dr Armando Matto, Mr Lagozino’s general practitioner. I was considerably assisted by the evidence of Dr Matto and Mr Polvere. Both are experienced professionals who did their best to assist the Court to the extent they were able. I found their evidence to be careful, considered and objective, notwithstanding that they had a relationship with Mr Lagozino which, to a varying extent, went beyond the merely professional. I have no hesitation in accepting their evidence as credible and reliable, however their opinions as to whether Mr Lagozino enjoyed testamentary capacity at any particular time, while highly relevant, are not conclusive. Necessarily, much of their evidence was based on refreshing memory from contemporaneous notes they had made on their file. I had less confidence in the evidence of the plaintiff. She exhibited a surprising inability to answer relatively simple questions concerning her conduct of Mr Lagozino’s affairs in her capacity as his guardian and administrator. I found her defensive and, from time to time, I thought her answers were calculated to advance her case. It was apparent under cross-examination that much of her evidence was hearsay reflecting things she had been told by her father, Angelo Lagozino. However, in the end the plaintiff’s evidence did not take the matter very far.

Decision

Reasons for decision

STANLEY J

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Ratio Decidendi

Legal Principle Established

Established by: STANLEY J

Mr Lagozino appears to have executed a will kit will on 1 August 1980 before two attesting witnesses, appointing Mr Polvere as his executor and trustee. The document purports to make a generalised bequest in favour of his sister Maria De Girolamo without specifying the nature of the bequest. Consideration Mr Lagozino was born in Italy on 2 February 1936. He migrated to Australia in 1957. He did not marry or have children. His only surviving sibling is his sister, Ms Lagozino, who lives in Italy. She has three children. They also live in Italy. I am satisfied that Mr Lagozino suffers from Alzheimer’s dementia. He was diagnosed with this condition in 2009. There is no issue that he lacks testamentary capacity. In any event, I find on the evidence that this is the case. So much is apparent from the medical evidence found in the reports of Dr Eng dated 4 May 2015 and Dr Patrick Flynn of 8 March 2016, and the affidavit of Judith Quick. Nor is there any likelihood of him regaining testamentary capacity. I am further satisfied that Mr Lagozino at some time in the past enjoyed testamentary capacity. Accordingly, this is a lost capacity case. The real issue is whether the Court can be satisfied on the evidence that the proposed will accurately reflects the likely intentions of Mr Lagozino if he now had testamentary capacity. In that regard, much of the parties’ focus has been on the evidence of instructions given by Mr Lagozino to his solicitor, Mr Polvere, in late 2014 for the making of a new will. Those instructions were for the making of a will that substantially differed from the terms of the will he ostensibly made in 1980 which arguably left his sister, Ms Lagozino, as his sole beneficiary. There are two key features to the instructions Mr Lagozino gave Mr Polvere which distinguishes what are alleged to be his testamentary intentions in late 2014 from those which find expression in the 1980 will. First, he proposed to make substantial pecuniary legacies to his cousin, Angelo Mario Lagozino, to his close friend, Giuseppa Michelina De Girolamo, with whom he had lived since migrating to Australia in 1957, and to Pellegrino John De Corso, a nephew of Giuseppa De Girolamo. There is some evidence that Pellegrino John De Corso is indebted to Mr Lagozino in a sum of $35,000, being the precise amount of the pecuniary legacy Mr Lagozino instructed Mr Polvere he wished to give Mr De Corso. Second, Mr Lagozino gave instructions that he wished to exclude his sister from benefiting from his estate and, instead, wished to leave the residue of his estate to her children. Subsequently, he varied these instructions, on the advice of Mr Polvere, apparently to avoid the risk of an Inheritance (Family Provision) Act 1972 (SA) (Family Provision Act) claim, by giving 30 per cent of the residue of his estate to his sister and the balance to her children. At issue is whether the instructions Mr Lagozino gave Mr Polvere in September 2014 accurately reflect his likely intentions now if he had testamentary capacity. This raises the related questions of whether he had testamentary capacity at the time he gave those instructions, or whether those instructions were the product of a hostility he felt towards his sister, and whether, if he had retained testamentary capacity, he would have maintained those testamentary intentions if he no longer suffered any deluded hostility.