Argiro v Lagozino - [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 (SA) s 7, referred to.
Re Fenwick (2009) 76 NSWLR 22; In the Matter of Rak [2009] SASC 288; Banks v Goodfellow (1870) LR 5 QB 459; In the Will of Wilson (1897) 23 VLR 197; Timbury v Coffee (1941) 66 CLR 277; In the Matter of K, JL [2016] SASC 53, considered.

ARGIRO v LAGOZINO
[2017] SASC 185
Statutory Will Application
STANLEY J.
Introduction

This is an application brought pursuant to s 7 of the Wills Act 1936 (SA) (the Act) for the making of a statutory will for Nicola Lagozino (Mr Lagozino).
The application is brought by the plaintiff who is Mr Lagozino’s guardian and administrator. The plaintiff was appointed as Mr Lagozino’s guardian and administrator by order of the Guardianship Board made on 24 November 2014. The Court joined Maria Lagozino (Ms Lagozino) as an interested party. Ms Lagozino is the sister of Mr Lagozino and arguably is the sole beneficiary of a will made by Mr Lagozino in 1980.
The Court appointed Judith Margaret Quick as Mr Lagozino’s litigation guardian.
Proposed will
The proposed will appoints Angelo Mario Lagozino, the first cousin of Mr Lagozino, and the plaintiff’s father, as his executor and trustee. In the event of him not surviving the testator, or renouncing probate, or for any other reason becoming unable to act in that capacity, the proposed will appoints the plaintiff as executor and trustee in his place. The will provides for the payment of all debts, funeral and testamentary expenses and makes specific bequests of $50,000 to Angelo Mario Lagozino, $35,000 to Pellegrino John De Corso and $50,000 to Giuseppa Michelina De Girolamo and then distributes the residue of the estate 30 per cent to Ms Lagozino and 70 per cent, in equal shares, to those of her children who survive the testator. In the event that Ms Lagozino does not survive the testator, then her share will fall back into the residue to be distributed amongst her children as have survived the testator.
Section 7 of the Act
Section 7(1) confers jurisdiction on the Court to make an order authorising, inter alia, the making of a will in specified terms approved by the Court on behalf of a person who lacks testamentary capacity. The exercise of that jurisdiction is subject to an application for the making of such an order by a person with the permission of the Court.
The nature of the jurisdiction conferred by s 7 is remedial. It has a protective purpose. In Re Fenwick,[1] Palmer J, in considering the comparable provisions in the New South Wales legislation, namely, the Succession Act 2006 (NSW) said:[2]
The best interests of an incapacitated person and of those having a proper claim on his or her testamentary bounty are the objects of the jurisdiction which the Court exercises under ... the Succession Act. It is a remedial and protective jurisdiction and is, accordingly, not governed by the rules of adversarial litigation. In other words, the judge is not a referee; rather, the judge is to endeavour to rectify a problem which is affecting people’s lives, in the best possible way.
[1] [2009] NSWSC 530, (2009) 76 NSWLR 22.
[2] [2009] NSWSC 530 at [132], (2009) 76 NSWLR 22 at 51.
The Court is conferred with a broad and flexible jurisdiction as is plain from the terms of s 7(2) which provides that the authorisation may be granted on such conditions as the Court thinks fit.
Before making an order under s 7(1) of the Act, the court must be satisfied of three matters, namely:[3]
(a)the person lacks testamentary capacity; and
(b)the proposed will, alteration or revocation would accurately reflect the likely intentions of the person if he or she had testamentary capacity; and
(c)it is reasonable in all the circumstances that the order should be made.
[3] Wills Act 1936 (SA) s 7(3).
The first two conditions, namely, want of testamentary capacity and the accurate reflection of likely intentions, are matters of fact. The third condition, that of reasonableness, involves the exercise of curial discretion.[4] In considering an application under s 7(1), s 7(4) requires the court to take into account certain matters, namely:
[4]    In the Matter of Rak [2009] SASC 288 at [12], citing with approval Boulton v Sanders (2004) 9 VR 495 at 499.
(a)any evidence relating to the wishes of the person;
(b)the likelihood of the person acquiring or regaining testamentary capacity;
(c)the terms of any will previously made by the person;
(d)the interests of—
(i)the beneficiaries under any will previously made by the person;
(ii)any person who would be entitled to receive any part of the estate of the      person if the person were to die intestate;
(iii)any person who would be entitled to claim the benefit of the Inheritance      (Family Provision) Act 1972 in relation to the estate of the person if the     person were to die;
(iv)any other person who has cared for or provided emotional support to the      person;
(e)any gift for a charitable or other purpose the person might reasonably be      expected to give by a will;
(f)the likely size of the estate;
(g)any other matter that the Court considers to be relevant.
Section 7(12) defines testamentary capacity as “the capacity to make a will”.
In Banks v Goodfellow,[5] a test for capacity was propounded by Cockburn CJ. His Honour held that to have sufficient capacity, a testator must understand the nature of the will and its effects, comprehend the extent of the property which is being disposed of, and understand and appreciate the claims to which he or she ought to give effect.[6] In In the Will of Wilson,[7] Hood J observed that in order for a testator to rightly understand these matters, it is essential that his “mind should be free to act in a natural, regular, and ordinary manner”.[8] These observations were cited with approval by Dixon J (as he then was) in Timbury v Coffee.[9]
[5] (1870) LR 5 QB 459.
[6] (1870) LR 5 QB 459 at 565.
[7] (1897) 23 VLR 197.
[8] (1897) 23 VLR 197 at 199.
[9] (1941) 66 CLR 277 at 283.
The court must be satisfied that the proposed will accurately reflects the likely intentions of the proposed testator if he or she had testamentary capacity. It follows that the contents of the proposed will must be more than a mere possible or potential reflection of the testator’s intentions. But it is not fatal to an application that there are multiple potential or possible wills reflecting the testator’s likely intentions. It is sufficient that, despite the range of possibilities, the court is satisfied that a particular version can be identified as the “likely” version of the testator’s testamentary intentions. In this context, there is room for some flexibility in matters of detail.[10]
[10] In the matter of K, JL [2016] SASC 53 at [42].
Next, the court must be satisfied that the testator would have acted upon those intentions by making a will in those terms. The exercise undertaken by the court involves a hypothetical. In answering the hypothetical question in this case, it is open to the court to have regard to the evidence of Mr Lagozino’s subjective views which inform the objective considerations to which the court must otherwise have regard in deciding whether it can be satisfied as to the contents of a will that accurately reflects the likely intentions of Mr Lagozino if he had testamentary capacity at the time of the making of any order for a statutory will.
In finding whether the proposed will accurately reflects the likely intentions of the proposed testator, the law distinguishes between “lost capacity”, “pre‑empted capacity” and “nil capacity” cases. That is a distinction between, in the first two categories, proposed testators who once had testamentary capacity and then lost it and, in the third category, proposed testators who never enjoyed testamentary capacity.
For reasons I will explain shortly, the Court in this matter is concerned with a lost capacity case.
In Re Fenwick,[11] Palmer J gave consideration to the basis upon which the court should approach an application for a statutory will in a lost capacity case. He said:[12]
The easiest case is a lost capacity case where the incapacitated person is adult, has formed family and other personal relationships, has made a valid will before testamentary incapacity occurred, and is now said to have expressed some testamentary intention in relation to the circumstances sufficient to warrant an application for a statutory codicil or new will.
The Court must first be satisfied that the proposed will or codicil truly implements what the applicant claims the incapacitated person wishes to do. The task is one of fact finding: has the incapacitated person actually stated or otherwise manifested a particular testamentary intention or has such an intention been attributed to him or her by others on the basis of inference, likelihood or mere wishful thinking?
The evidence is likely to be on affidavit, at least in the first instance. There will be some cases in which the affidavit evidence is so clear and convincing that the Court will be satisfied at once that the incapacitated person has indeed expressed the intention reflected in the proposed will or codicil. In other cases, the Court will bear in mind that evidence on affidavit is easily moulded by the drafter and may give an impression which the Court would not receive if it saw and heard the deponent in person. Accordingly, where the affidavit evidence taken as a whole is not clear and convincing that the incapacitated person has actually expressed the testamentary wish contained in the proposed will or codicil, the Court should avail itself of the power under s 21(b) and s 21(c) to see and hear the incapacitated person to verify the wish ascribed in the affidavit evidence.
If the Court is satisfied that the proposed will or codicil expresses the present actual intention of the incapacitated person, the next question is: would that intention have been carried into testamentary effect by the person “if he or she had testamentary capacity”? This question may pose little difficulty if the person’s testamentary capacity is borderline, that is, the person falls only a little short of having testamentary capacity. The question may not be so easy if the testamentary intention expressed by the incapacitated person is the result of delusions about the natural objects of his or her testamentary bounty — a not infrequent symptom of testamentary incapacity.
In short, the Court should be conscious that there are two questions involved in a case of alleged actual intention under s 22(b): has the incapacitated person actually expressed the intention attributed; would the person have held that intention if possessed of testamentary capacity?
There is another question also: is the expressed intention the product of the incapacitated person’s free choice, or has some undue pressure or influence been applied?
[11] [2009] NSWSC 530, (2009) 76 NSWLR 22.
[12] [2009] NSWSC 530 at [154]-159], (2009) 76 NSWLR 22 at 54-55.
The court is concerned to establish whether it is reasonably likely that the person would have expressed that intention if he or she had retained testamentary capacity. The asserted intention may be the product of deluded attachment or hostility.[13]
[13] [2009] NSWSC 530 at [180], (2009) 76 NSWLR 22 at 59.
In In the matter of K, JL,[14] Doyle J explained the approach to be taken by the court pursuant to s 7 in the following terms:[15]
In summary, the hypothetical nature of the inquiry will always allow room for some objective considerations. In some cases there will be no evidence of the person’s subjective intentions, in which case the issue will be determined entirely objectively. This will be so in the typical “nil capacity” cases. On the other hand, there will often be evidence of the person’s actual or likely subjective intentions (for example, in many “lost capacity” and “pre-empted capacity” cases). In my view, not only is it appropriate given the nature of the inquiry under s 7(3)(b) that this evidence be taken into account, but also that approach is supported (if not required) by the provision in s 7(4)(a) to the effect that the Court must take into account any evidence relating to the wishes of the person. However, the weight that should be attached to such evidence can only be determined in an individual case by reference to considerations such as the person’s capacity to express their wishes, the nature of those wishes, the extent to which those wishes conflict with objective considerations, the extent to which the person’s expressed subjective intentions might have been influenced by the taking of advice prior to the formal making of a will, the age and maturity of the person when expressing their wishes, and the timing of the expression of wishes relative to the application to make a statutory will.
[14] [2016] SASC 53.
[15] [2016] SASC 53 at [51].
The exercise required by s 7 in a lost capacity case involves considerations that are both objective and subjective. The court’s focus is upon the nature of the facts and evidence in the particular case.
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.
Ms Lagozino deposed in her affidavit to the nature of her relationship with her brother. She said that Mr Lagozino had visited Italy a number of times since 1957 and, on each occasion, visited her. She explained that she enjoyed a good relationship with her brother until some time after 2009 when he would become increasingly agitated at times when they spoke on the telephone. She found it more difficult to talk to him on occasions but, at other times, they had a good relationship. She sent him occasional letters and cards. He sent her money at Christmas and Easter until about 1998. She said she distributed the money in accordance with his directions. She deposed to her brother inheriting land in Italy from their father. It appears there were two properties. In about 1990, following an earthquake, Mr Lagozino received money from the Italian government and he used the money to erect a house on this land. She said that, in 2015, she and her husband acquired this property by reason of the Italian law equivalent to the principle of adverse possession. In 2009, Mr Lagozino appointed Dario De Girolamo as his attorney for the purposes of selling the other property. The property was sold to Mr Lagozino’s nephew, Pasquale De Girolamo, for €90,000. While Ms Lagozino understands that Dario travelled to Australia shortly thereafter, her brother was not paid the proceeds of sale. When she asked Mr Lagozino about this, he told her it was none of her business and not to interfere. She further said that, in 1995, during one of her brother’s trips to Italy, he gave her 16,000,000 lire, which is equivalent to about €8,000, as a type of postal bond, for her own purposes.

This evidence was unchallenged.
The Will Kit will
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.
I accept the evidence of Mr Polvere that somewhere between 2004 and 2009 Mr Lagozino told Mr Polvere that he had fallen out with his sister over matters associated with property in Italy he had inherited from their parents. He told him that he no longer trusted her. I find that in 2009 Mr Lagozino told Mr Polvere that he had appointed his nephew Dario De Girolamo as his attorney for the purposes of selling property owned by Mr Lagozino in Italy to Pasquale De Girolamo and his wife. The land was sold for €90,000. Subsequently Mr Lagozino told Mr Polvere that he had experienced difficulty in being paid this money. This was very upsetting to Mr Lagozino. After 2009 Mr Lagozino made various statements to Mr Polvere to the effect that he wanted nothing to do with his sister and he did not trust the people in Italy.
I accept the evidence of Mr Polvere that when Mr Lagozino consulted him on 28 August 2014 Mr Polvere considered that Mr Lagozino lacked the necessary capacity to make a will. He was unshaven and looked generally dishevelled. In Mr Polvere’s experience this was contrary to his usual appearance. Mr Polvere saw Mr Lagozino on 3 September 2014 when they had a general discussion about Mr Lagozino’s affairs and the need for him to make a will and an enduring power of attorney. Mr Polvere was concerned that Mr Lagozino may have been subject to undue influence and indicated that he would need to see him alone at a later occasion to take instructions. On 15 September 2014 Pellegrino John De Corso contacted Mr Polvere’s office indicating an urgent need for Mr Lagozino to see Mr Polvere for the purposes of making a will as he was deteriorating quickly. Mr De Corso sought advice as to whether he needed to get a letter from a doctor saying that Mr Lagozino had capacity to give instructions for a will. As a result, an appointment was made for 17 September 2014 when Mr Lagozino was interviewed by Mr Polvere. No one else was present. On this occasion Mr Lagozino presented in his usual way. He was able to provide details of his assets and responded appropriately to questions posed by Mr Polvere. He gave Mr Polvere instructions for a will. He indicated he wanted his cousin, Angelo Mario Lagozino, and Pellegrino John De Corso to be his executors. He gave instructions that if they predeceased him he wished to substitute the plaintiff and David De Corso. He gave instructions that his executors were to call in his estate, including any personal loans made to persons appointed as his executors, together with the proceeds of sale of land that he owned as tenants-in-common with Giuseppa De Girolamo, subject to her consent, which he wanted applied to a legacy of $50,000 to Angelo Mario Lagozino, and if he predeceased, to his children, with the residue going to his sister’s children with provision for their children if any of them should predecease him.
Mr Lagozino was adamant that his sister not receive anything from his estate. He said he had been badly treated and believed his sister had not been truthful in her dealings with their parents’ estate resulting in her ending up with a house that he believed he was entitled to. He indicated he had some postal bonds held with the Italian post office which had gone missing at a time when his sister held his power of attorney.
After taking instructions Mr Polvere indicated he wanted to see Mr Lagozino again to confirm these instructions. I am satisfied that, notwithstanding Mr Lagozino’s improved appearance and apparent understanding of his assets and his intentions as to their testamentary disposition, Mr Polvere still harboured some concerns as to whether Mr Lagozino enjoyed testamentary capacity. Accordingly, Mr Polvere decided to seek a certificate from Mr Lagozino’s treating general practitioner, Dr Matto.
On 25 September 2014 Mr Polvere interviewed Mr Lagozino again. Mr Lagozino recalled having seen Mr Polvere a week or so earlier. He gave instructions for the preparation of an enduring power of attorney. He gave further instructions in relation to his will. He repeated the instructions in relation to the appointment of executors and substitute executors. He indicated he would provide Mr Polvere with details of people who owed Mr Lagozino money. He indicated that Pellegrino John De Corso owed him some money as did others. He gave instructions that the land he owned as tenants-in-common with Giuseppa De Girolamo should only be sold with her consent if she survived him. Otherwise he gave instructions that the land should be sold and the proceeds should fall into the residue of his estate. On this occasion, he gave instructions for three specific legacies. First, $50,000 to Angelo Mario Lagozino provided he survived, and if he predeceased, to his children in equal shares. This legacy was to be in lieu of trustee’s commission. Second, a legacy of $35,000 to Pellegrino John De Corso provided he survived, and if he predeceased, to his children in equal shares. This legacy also was expressed to be in lieu of trustee’s commission. Third, a legacy of $50,000 to Giuseppa De Girolamo provided she survived, and in the event she predeceased, then the legacy was to fall back into the residue of his estate. He indicated that he would give Mr Polvere further instructions on a later date in relation to how he wished to dispose of his motor vehicles, being a Ferrari and a Fiat Punto. He again reiterated that he did not want to have anything further to do with his sister. He reported that they had fallen out over his parents’ estate and his property in Italy. He also talked about a homicide that had been carried out by others in a property that he owned. He said that he would never go back to Italy. He was adamant that he did not want to make any provision for his sister in his estate.
In response, Mr Polvere advised Mr Lagozino that his sister was a member of a class of persons entitled to make a claim against his estate under the Family Provision Act and in the circumstances he advised that Mr Lagozino might consider leaving some of his estate to his sister in order to avoid a claim which could prove expensive for the estate. Mr Lagozino seems to have accepted this advice as he gave instructions that he would leave 30 per cent of the residue of his estate to his sister if she survived him, but if not, that share would go to her children in equal shares, with the remaining 70 per cent going to his sister’s children in equal shares. He gave further instructions that where not otherwise provided, if a beneficiary predeceased him, his or her share would go to their children.
Mr Lagozino consulted Dr Matto on 1 October 2014. Dr Matto noted in his records that he thought Mr Lagozino appeared to be aware of the real property he owned and the money he had invested in the bank.
On 2 October 2014 Mr Polvere and Dr Matto spoke on the telephone. Dr Matto informed Mr Polvere that, in his opinion, Mr Lagozino was able to give instructions about a will and an enduring power of attorney, and understood what he was doing at the time, although a week later he may not recall doing so without prompting.
On 4 October 2014 Dr Matto issued a certificate to Mr Polvere stating that he had interviewed Mr Lagozino on 1 October 2014, at which time he appeared to be aware of his financial circumstances, and in particular, the property and motor vehicles that he owned and money that he had invested in the ANZ Bank. He certified that he was satisfied that despite the diagnosis of dementia Mr Lagozino demonstrated adequate clarity of intention that he had the capacity to provide instructions in relation to his will and advise his wishes to nominate a power of attorney.
Mr Polvere made arrangements for Mr Lagozino to see him on 30 October 2014 to finalise his instructions in relation to these matters. Accordingly, he prepared draft wills and an enduring power of attorney in accordance with the instructions he had taken. However, on 28 October 2014 Mr Lagozino experienced some form of medical episode resulting in delusions, hallucination and confusion which resulted in him being admitted to Modbury Hospital. Thereafter it was not thought by anyone that he had testamentary capacity.
Dr Matto gave evidence that he had been Mr Lagozino’s treating general practitioner since 2002. He said Mr Lagozino had been diagnosed with dementia in 2009. The disease was progressive and his condition deteriorated over time. He said that for a number of years Mr Lagozino had expressed a sense of grievance against his sister and his nephews in Italy. Dr Matto gave evidence that when he saw Mr Lagozino on 1 October 2014 he was satisfied that Mr Lagozino demonstrated adequate clarity of intention in relation to how he wished to dispose of his estate by his will, notwithstanding that by that time Mr Lagozino was suffering moderate to severe dementia. This affected his short-term memory, understanding and insight.
I am satisfied on the evidence that, by September 2014, Mr Lagozino’s instructions in relation to the making of a new will were influenced by the hostility he felt towards his sister. I find that hostility was informed by a view Mr Lagozino had long held, since he developed dementia, that his sister had acted in ways that prejudiced his property and financial interests in Italy. In particular, this hostility was informed by a view that she had somehow been complicit in him being deprived of a sum of €90,000, being the proceeds of the sale of land he had inherited in Italy, and that she had appropriated some postal bonds he owned. I am satisfied on the unchallenged evidence of Ms Lagozino that her brother’s views on these matters were misinformed.
Of course, the application is for an order authorising the making of a will in specific terms on behalf of Mr Lagozino which includes a provision that, should she survive him, Ms Lagozino should receive 30 per cent of the residue of her brother’s estate. The Court needs to be satisfied that this provision in the proposed will reflects the likely intentions of Mr Lagozino now if he had testamentary capacity. There is no doubt that at the time he was giving instructions for the making of a will in September 2014 Mr Lagozino had a strong view, which he expressed on a number of occasions to various people, that he did not wish his sister to benefit from his will. I am satisfied that Mr Lagozino’s intention in this regard was a symptom of his dementia. It was founded on a delusional belief. I make that finding notwithstanding the evidence of Dr Matto, that when he saw Mr Lagozino on 1 October 2014 he assessed him as having testamentary capacity. I have no reason to doubt the assessment made by Dr Matto on that occasion, but that does not preclude a finding that his mistaken belief concerning his sister’s misconduct, which he had harboured over many years since his diagnosis with Alzheimer’s dementia, was deluded. Such a conclusion is consistent with his sister’s unchallenged evidence. The acceptance of that evidence, which excludes any rational basis on the part of Mr Lagozino to harbour a hostile sense of grievance against his sister, coupled with the development of that hostility coinciding with his diagnosis of dementia, leads to the conclusion that his hostility towards his sister was delusional. To that extent, Mr Lagozino lacked testamentary capacity. The basis of testamentary capacity is a rational appreciation of those persons who have a legitimate claim on a testator’s bounty. Dr Matto formed his opinion on the basis that Mr Lagozino appeared to have a sound understanding of the nature and extent of his estate and was able to give clear expression of his intentions as to its disposition. Dr Matto acknowledged that he was aware of Mr Lagozino’s hostility towards his sister and had some appreciation of the basis of that hostility, but he conceded he was not in a position to assess whether there was a rational basis for that hostility. In my view, that necessarily impaired his ability to assess whether Mr Lagozino’s expression of his testamentary intentions might have been the product of a delusional belief.
I find that but for the advice of Mr Polvere in relation to the risk of the estate being exposed to a Family Provision Act claim, Mr Lagozino would have excluded his sister entirely from benefiting from his estate. However, if Mr Lagozino had testamentary capacity now and his intentions were not misinformed by a deluded hostility towards his sister, I do not see why he would only provide for his sister in the manner the application proposes.
Mr Edmonds-Wilson SC, counsel for the plaintiff, submits that the terms of the proposed will reflect a rational intention to bestow a greater benefit on Mr Lagozino’s sister’s children, which is likely to reflect Mr Lagozino’s intentions if he had testamentary capacity now, for practical reasons associated with the fact his sister is now nearly 80 and the children’s financial needs would be greater than hers. I consider this amounts to little more than speculation. There is no evidence of the financial position of Ms Lagozino or her children before the Court. Given that Mr Lagozino appears to have intended to have left his estate entirely to his sister in 1980, I consider that it is unlikely, if he now had testamentary capacity and was free from the deluded hostility which he felt towards his sister over the period up to September 2014, he would make a will which did not leave the substantial portion of his estate to his sister, notwithstanding the effluxion of time since that will was made and that he has subsequently formed an intention to bestow some of his bounty on Angelo Mario Lagozino, Pellegrino John De Corso and Giuseppa De Girolamo.
It is the case that, in this regard, the Court must take into account the interests of Ms Lagozino, who was a probable beneficiary under the will made in 1980; a person who would be entitled to receive a part of Mr Lagozino’s estate if he were to die intestate; and may be a person entitled to claim the benefit of the Family Provision Act in relation to the estate of Mr Lagozino if he died.
I am further required in considering this application to have regard to the likely size of the estate. The value of Mr Lagozino’s estate now has been significantly diminished from the position that applied in 2014 as a result of the management of the estate by the plaintiff pursuant to the orders made by the Guardianship Board. That finding does not imply any criticism of the plaintiff’s conduct in relation to the administration of Mr Lagozino’s affairs. The appropriateness of her conduct as his administrator is not an issue in these proceedings.
Some of the assets of the estate have been realised by sale. This has been done with the approval of the South Australian Civil and Administrative Tribunal. Mr Lagozino’s half-share in real estate at Evanston South, which he held as tenant-in-common with Giuseppa De Girolamo, was sold recently. After expenses, Mr Lagozino’s interest in the real estate realised about $160,000. I expect those proceeds have now been deposited into his bank account. His two motor vehicles have also been sold, realising $105,000. A Refundable Accommodation Deposit at a nursing home of $380,000 has been paid. Over $75,000 has been paid to cover funeral expenses. Considerable legal expenses have been incurred. Of course, Mr Lagozino continues to incur living expenses, which necessarily diminishes the value of his estate notwithstanding that he is now in receipt of a pension. Mr Lagozino now has about $228,000 in the bank and a Refundable Accommodation Deposit of $380,000. Necessarily, the longer Mr Lagozino lives, it is to be expected that the size of his estate will be further reduced.
It follows that doubt is aroused as to whether Mr Lagozino would now make specific bequests in the amounts he instructed Mr Polvere to provide in his will, in circumstances where the size of his estate has, and continues to, contract. That is not to bring into question whether Mr Lagozino would make some provision for Angelo Lagozino, Pellegrino John De Corso and Giuseppa De Girolamo if he now had testamentary capacity. There is some evidence that each of these persons, to a greater or lesser extent, have cared for or provided emotional support at various times to Mr Lagozino. Rather, it raises the issue of whether the amounts of the specific legacies included in the proposed will would accurately reflect his likely intentions if he now had testamentary capacity, given that these legacies would represent a proportionately larger share of his estate than he might have had in contemplation when he gave instructions for the making of his will to Mr Polvere in September 2014. I acknowledge immediately that when he gave those instructions he may not have had in contemplation his imminent demise and, on the contrary, might have hoped and expected to live for many years yet. In those circumstances he might rationally have appreciated that his estate might diminish over time but, nonetheless, I still feel some doubt that the terms of the proposed will accurately reflect his likely intentions if he now had testamentary capacity, at least to the extent of the amounts of the specific legacies to Angelo Lagozino, Pellegrino John De Corso and Giuseppa De Girolamo included in the proposed will.

In these circumstances I do not consider it is reasonable in all the circumstances that an order should be made authorising the making of a will on behalf of Mr Lagozino in the specific terms of the proposed will. On the other hand, if a will is not made pursuant to s 7 there is the real potential for further litigation in relation to Mr Lagozino’s estate. There may be an issue as to the construction and effect of the 1980 will. There may be a Family Provision Act claim. I am satisfied that if Mr Lagozino had testamentary capacity now he would make a will which provided for his sister and Angelo Lagozino, Pellegrino John De Corso and Giuseppa De Girolamo. In my view it is unlikely that, if he now had testamentary capacity and was not acting under a hostile delusion, Mr Lagozino would intend to benefit Ms Lagozino’s children. For the reasons I explained earlier I am satisfied that his instructions to Mr Polvere in September 2014 to benefit his sister’s children were the product of the hostile delusion he felt towards his sister. I note Ms Lagozino’s children have indicated to the Court they did not wish to be heard on this application.
While the size of the estate is diminishing, it is not insubstantial. I consider it desirable that a statutory will be made which would reflect the terms of the findings I have made. That would accord with the remedial and protective purposes of the Act.
In these circumstances I would invite the plaintiff and Ms Lagozino to consider these reasons and put a proposed will or wills before the Court which reflect these findings as to the likely intentions of Mr Lagozino if he now had testamentary capacity.
I will hear further from the parties as to the precise terms of the will and the orders to be made