Coppola v Nobile (No 2) - [2012] SASC 129

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
COPPOLA & ANOR v NOBILE & ANOR (NO 2)
[2012] SASC 129
Judgment of The Honourable Justice Stanley
10 August 2012
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - KNOWLEDGE AND APPROVAL OF CONTENTS - GENERALLY
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - GENERALLY
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY INSTRUMENTS - UNDUE INFLUENCE - GENERALLY
Action for grant of probate in solemn form – the plaintiffs are executors in a will executed by the deceased on 2 June 1992 (the 1992 will) – the plaintiffs seek an order pronouncing the force and validity of the 1992 will – or in the alternative, the first plaintiff seeks a grant of probate in solemn form of a will made by the deceased on 18 April 1972 (the 1972 will).
The first defendant denies the deceased had capacity to execute either will – the first defendant claims the deceased did not understand the contents of either will which were both in English, not her native Calabrese dialect – in the alternative, the first defendant claims if the deceased understood the 1992 will, it was executed under the undue influence of the first plaintiff – the first defendant claims if the 1972 will is valid, it was revoked by the 1992 will.
The second defendant puts the plaintiffs to proof of the1992 will – if the 1992 will is not admitted to probate, the second defendant admits a grant should be made in relation to the 1972 will.
Held: The 1992 will was duly executed - the deceased had testamentary capacity – the plaintiffs have failed to discharge their onus of proving the deceased knew and understood the terms of the 1992 will – as the deceased did not understand the terms of the 1992 will, it is not open to find that the will was executed under undue influence.
The 1972 will was duly executed – the deceased knew and approved of the terms of the 1972 will – the deceased satisfied the criteria for testamentary capacity – as the 1992 will has not been found to be valid, the revocation of earlier wills is ineffective – the Court pronounces for the force and validity of the 1972 will.
Wills Act 1972 (SA) s 22; Powers of Attorney and Agency Act 1984 (SA) s 5, s 6, referred to.
Thomas & Anor v Nash (2010) 107 SASR 309; Nock v Austin (1918) 25 CLR 519; Paraskov v Paraskos [2002] WASC 109, applied.
Re Estate of Griffin (Deceased) (1951-2002) 217 ALR 284; Nicholson v Knaggs [2009] VSC 64, discussed.
Roos v Karpenkow (1998) 71 SASR 497; Carney & Ors v Hall (2011) 111 SASR 424; Re Estate of Chomiak [2012] SASC 27, considered.

COPPOLA & ANOR v NOBILE & ANOR (NO 2)
[2012] SASC 129
Civil
STANLEY J:
Introduction

This is an action for a grant of probate in solemn form.
The plaintiffs are Severina Coppola and Peter Austin Rhodes Scragg, the persons named as executors in the will executed by the deceased testatrix, Vittoria Coppola (“the deceased”), on 2 June 1992 (“the 1992 will”). Severina Coppola is the second daughter of the deceased. They seek an order pronouncing the force and validity of the 1992 will.
The defendants to the action are the deceased’s other daughters. The first defendant, Grazia Nobile, opposes the pronouncement sought by the plaintiffs.
In the alternative, if for any reason the 1992 will, propounded by the plaintiffs, is not entitled to probate, the plaintiff Severina Coppola seeks a grant of probate in solemn form of a will made by the deceased on 18 April 1972 (“the 1972 will”). The first defendant also opposes such order.
Grazia Nobile, the deceased’s eldest child, denies that the deceased had the capacity to make either will, and denies that she knew and approved of the contents of either will, both of which are in English, a language it is alleged she was unable to read, write or speak. She alleges that both wills were made in suspicious circumstances. She alleges that both wills were not properly executed and that they were not properly translated for the deceased by a competent, independent professional interpreter, conversant with the Calabrese dialect spoken by the deceased. If it is found that the deceased had the necessary capacity in 1992, the first defendant alleges that the 1992 will was executed under the undue influence of the first plaintiff, who obtained the major benefit under the 1992 will and was involved in the process of giving instructions for that will.
Finally, the first defendant claims that to any extent that the 1972 will may have been a valid will, it was expressly revoked in 1992 in accord with the provisions of s 22 of the Wills Act 1936 (SA) (“the Wills Act”).
The second defendant, the youngest daughter of the deceased, who I will refer to as Concetina Coppola, merely puts the plaintiffs to proof in relation to the 1992 will. She otherwise admits that if the 1992 will is not admitted to probate then a grant of probate in solemn form should be made in respect of the 1972 will.
Relevant principles
The principles relevant to the determination of an application of this kind are helpfully summarised by Doyle CJ in Thomas & Anor v Nash[1] as follows:
[1] (2010) 107 SASR 309 at 320 - 322 [71] – [75].
In Banks v Goodfellow (1870) LR 5 QB 549 Cockburn CJ, delivering the judgment of the Court, said at 565:
“It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”
This statement has often been cited with approval, although the point has been made that the effect of the concluding part is not altogether clear. The case before the Court was one in which the testator had suffered mental illness. As to that, Cockburn CJ said at 565-566:
“If therefore, though mental disease may exist, it presents itself in such a degree and form as not to interfere with the capacity to make a rational disposal of property, why, it may be asked, should it be held to take away the right? It cannot be the object of the legislator to aggravate an affliction in itself so great by the deprivation of a right the value of which is universally felt and acknowledged. If it be conceded, as we think it must be, that the only legitimate or rational ground for denying testamentary capacity to persons of unsound mind is the inability to take into account and give due effect to the considerations which ought to be present to the mind of a testator in making his will, and to influence his decision as to the disposal of his property, it follows that a degree or form of unsoundness which neither disturbs the exercise of the faculties necessary for such an act, nor is capable of influencing the result, ought not to take away the power of making a will, or place a person so circumstanced in a less advantageous position than others with regard to this right.”
He spoke to the same effect at 569-570.
In Bailey v Bailey (1924) 34 CLR 558, Isaacs J formulated a number of “working propositions” drawn from the case law, including Banks v Goodfellow. The other two members of the majority (Gavan Duffy J and Rich J) agreed with the reasons of Isaacs J. These propositions (at 570-572) are, relevantly, as follows:
(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 ...
…
(5)A man may freely make his testament, how old soever he may be; for it is not the integrity of the body, but of the mind, that is requisite in testaments ...
…
(6)The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the Court varies with the circumstances ...
(7)As instances of such material circumstances may be mentioned: (a) the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries ... ; (b) the exclusion of persons naturally having a claim upon the testator ... ; (c) extreme age, sickness, the fact of the drawer of the will or any person having motive and opportunity and exercising undue influence taking a substantial benefit ...
…
(9)To displace a prima facie case of capacity and due execution mere proof of serious illness is not sufficient: there must be clear evidence that undue influence was in fact exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property ...
(10)The opinion of witnesses as to the testamentary capacity of the alleged testator is usually for various reasons of little weight on the direct issue ...
(11)While, for instance, the opinions of the attesting witnesses that the testator was competent are not without some weight, the Court must judge from the facts they state and not from their opinions ...
…
I treat these passages as binding authority.
In Timbury v Coffee (1941) 66 CLR 277, Dixon J referred with approval to three passages from reported cases at 283:
“Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realize the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner” (per Hood J, In the Will of Wilson (1897) 23 VLR 197, at p 199). “If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding. But if there are circumstances in evidence which counterbalance that presumption, the decree of the court must be against its validity, unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it” (per Cresswell J, Symes v Green (1859) 1 Sw & Tr 401, at p 402)-Cf per Holroyd J, In the Will of Key (1892) 18 VLR 640. “In the end the tribunal- the court or jury - must be able, affirmatively, on a review of the whole evidence, to declare itself satisfied of the testator's competence at the time of the execution of the will (Smith v Tebbitt (1867) LR 1 P & D 398, at p 436; Sutton v Sadler (1857) 3 CB(NS) 87, at p 97)” (per Rich J, Landers v Landers (1914) 19 CLR 222, at pp 235, 236).”
In Worth v Clasohm (1952) 86 CLR 439, the Court (Dixon CJ, Webb J and Kitto J) made the following statement in relation to the standard of proof at 453:
“A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution. ...”
Finally, I refer to the decision of the Court (Williams, Fullagar and Kitto JJ) in Boreham v Prince Henry Hospital (1955) 29 ALJ 179 where the Court said at 180:
“The proper approach of the Court to the question whether a testator has testamentary capacity is clear. Although proof that a will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator's competency, the Court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it or, if instructions for the will preceded its execution, when the instructions were given. ...”
To similar effect, in Nock v Austin,[2] Isaac J set out the principles to be applied when the knowledge and approval by a testator of the terms of a document purporting to be his will are put in question:
[2] (1918) 25 CLR 519 at 528.
The relevant law is not doubtful. It may be thus stated:
(1)In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument, creates an assumption that he knew of and assented to its contents.
(2)Where any suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document.
(3)If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate.
(4)The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator’s appreciation and approval of the contents of the will.
(5)But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification.
(6)Nor does the rule require, as a matter of law, any particular species of proof to satisfy the onus.
(7)The doctrine that suspicion must be cleared away does not create “a screen” behind which fraud or dishonesty may be relied on without distinctly charging it.
[Citations omitted].
As noted by Doyle CJ in Thomas v Nash,[3] it is for the plaintiffs to establish testamentary capacity and to do so on the balance of probability. It is the plaintiffs who bear the burden of proof.
[3] (2010) 107 SASR 309 at 322 [77].
In Re Estate of Griffith (Deceased)[4] Gleeson CJ emphasised, however, the caution traditionally exercised by courts in setting aside the testamentary dispositions of testators on the ground of a lack of capacity. His Honour said:[5]
This formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. The power freely to dispose of one’s assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter. Where a testatrix exhibits florid symptoms of psychotic disturbance, such a conclusion may be reached relatively easily. However where, as in the present case, what is claimed is that a woman, who presented to the world an appearance of intelligence and rationality, had formed an aversion to her child so unfounded and unreasoning that it evidences an unsoundness of mind, the decision may be very difficult. This was the point made by Sir James Hannen in his charge to the jury in Boughton and Marston v Knight, above. Nevertheless, difficult though its application may be in individual cases, the law treats as critical the distinction between mere antipathy, albeit unreasonable, towards one who has a claim, and a judgment which is affected by a disorder of the mind.
[4] (1951 – 2002) 217 ALR 284.
[5] (1951 – 2002) 217 ALR 284 at 290.
Moreover, the authorities emphasise that a finding of a lack of testamentary capacity should not be made on the basis of an inference grounded in the court’s view of what constitutes an appropriate claim on a person’s testamentary bounty. As Gleeson CJ said in Griffith:[6]
Testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of most ordinary members of the community, but that does not make the will invalid.
[6] (1951 – 2002) 217 ALR 284 at 291.
Doyle CJ also addressed the principles applicable to an allegation of undue influence in the following terms:[7]
[7] Thomas & Anor v Nash (2010) 107 SASR 309 at 322 – 324 [78] – [80].
In relation to undue influence, the following observations by Sir James Hannen P in Wingrove v Wingrove (1885) LR 11 PD 81 at 82-83 have often been referred to:
“To be undue influence in the eye of the law there must be - to sum it up in a word - coercion. It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she will make a will in a particular person's favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue influence.
The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quietness’ sake, to do anything. This would equally be coercion, though not actual violence.
…
If therefore the act is shewn to be the result of the wish and will of the testator at the time, then, however it has been brought about — for we are not dealing with a case of fraud — though you may condemn the testator for having such a wish, though you may condemn any person who has endeavoured to persuade and has succeeded in persuading the testator to adopt that view — still it is not undue influence.”
There is no role for a presumption of undue influence in relation to a will. To establish that a will was executed as a result of undue influence, it is necessary for the court to be satisfied that undue influence was in fact exerted. In a circumstantial case, it is necessary to show more than circumstances from which an inference of undue influence might be drawn, or circumstances consistent with a hypothesis of undue influence. It is necessary to persuade the court that the influence was exercised: Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116 at 122 Powell J; Boyse v Rossborough (1857) 6 HLC 1 at 49; 10 ER 1192 at 1212. As Sir James Hannen makes clear in the passage set out above, and as other authorities establish, a distinction must be drawn between persuasion and undue influence. The court must bear in mind that it is not its function to require a testator to make a will of which the court approves.
It is appropriate to say something more about undue influence. The expression "coercion" used by Sir James Hannen is suggestive of the use of force, but is not limited to force. The underlying notion is that of compulsion. Compulsion can be achieved by threats, by persuasion, by psychological pressure. In Craig v Lamoureux [1920] AC 349 at 356-357 Viscount Haldane, speaking for the Privy Council, said:
“ ... [A] will, which merely regulates succession after death, is very different from a gift inter vivos, which strips the donor of his property during his lifetime. And the Courts have in consequence never given to the principle to which the learned judges refer the sweeping application which they have made of it in the present case. There is no reason why a husband or a parent, on whose part it is natural that he should do so, may not put his claims before a wife or a child and ask for their recognition, provided the person making the will knows what is being done. The persuasion must of course stop short of coercion, and the testamentary disposition must be made with comprehension of what is being done.
As was said in the House of Lords when Boyse v Rossborough (1856) 6 HLC 2, 49 was decided, in order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis. Undue influence, in order to render a will void, must be an influence which can justly be described by a person looking at the matter judicially to have caused the execution of a paper pretending to express a testator's mind, but which really does not express his mind, but something else which he did not really mean.”
Footnote omitted
Viscount Haldane went on to refer to power “ ... unduly to overbear the will of the testator”. In Winter v Crichton, Powell J said at 121:
… while, in relation to gifts, or other like transactions, made inter vivos, undue influence will be held to have been established in a case in which — whether because a relevant presumption has not been rebutted, or because of direct evidence to that effect — it has held that the donee has, by the unconscionable use of a position of influence over the donor, obtained an advantage for himself, the influence which must be shown to avoid a will must amount to force or coercion destroying free agency.
In a case like this the Court must distinguish between legitimate influence, persuasion and even pressure on the one hand, and on the other hand that degree of persuasion, pressure or influence that amounts to coercion, depriving the testator of “free agency”.

As Doyle CJ observed in Thomas v Nash,[8] the burden of proof rests on the person alleging undue influence, if the will has otherwise been established as valid. In Nicholson v Knaggs,[9] Vickery J said:[10]
The fact that there are circumstances which arouse the Court’s suspicion about the will does not affect the issue of undue influence. At all times, the onus remains on the plaintiffs, as the parties alleging undue influence.
[8] (2010) 107 SASR 309 at 324 [81].
[9] [2009] VSC 64.
[10] [2009] VSC 64 at [109].
A party asserting undue influence must establish more than the mere opportunity for the exercise of such influence. An actual exercise of undue influence must be proved. Accordingly, the proponent of a will is required to establish that the testator knew and approved of the contents of the document purporting to be the will. This requires proof of testamentary capacity, proof that the testator knew the document which she was executing was a will and was aware of its contents, and proof that the testator approved the contents as her will. It is open to a party opposed to the proof of a will to seek to rebut the presumption of knowledge and approval by pointing to evidence of suspicion that the testatrix was subject to undue influence when she made the will. However, such a suspicion, if it exists, does no more than require the proponents of the will to prove that the testatrix knew and approved of the contents of the document so that the Court is affirmatively satisfied, on the balance of probabilities, that the document is the freely made will of the testatrix.[11] The onus remains on the objecting party who raises the allegation of undue influence, in order to resist a grant of probate, to prove that the testatrix was subject to undue influence when she made the will in question.
[11] Roos v Karpenkow (1998) 71 SASR 497 per Doyle CJ at 505 – 506.
In Tobin v Ezekiel[12] Brereton J explained the difference between proof of knowledge and approval from proof of undue influence:[13]
I accept Mr Gormly's submission that the doctrine means that "telltale signs of an absence of knowledge and approval by a testator should either be explained or they should prevent a grant of Probate of the Will" (emphasis added). But this does not mean that suspicion, falling short of proof, of undue influence or fraud has the same effect. A testator who executes a will without knowing and approving the contents does not know - or is mistaken as to - what he or she is doing. A testator who executes a will as a result of undue influence or fraud nonetheless knows what he or she is doing when executing the will. A will procured by fraud or undue influence nonetheless expresses the testator's intention - albeit one that was improperly procured. Thus, a testator nonetheless knows and approves the contents of a will which reflect an intention that has been procured by fraud or undue influence. Those defences do not undermine knowledge and approval; they assume it but attack the process by which the testator's admitted intention, as expressed in the will, was produced. If the testator does not know and approve the will, one does not reach the defences of fraud and undue influence. If suspicion were enough to cast the onus on the proponent, then there would be no point in casting the burden of proof of those defences on the opponent. It follows that suspicion of undue influence is not a relevant suspicion when it comes to removing the presumption of knowledge and approval of the contents of a will. Suspicion that a beneficiary may have participated in the giving of instructions or preparation of the will, so that its contents do not accord with the testator's intention, is quite a different matter. Only in this way can the elements of knowledge and approval, the doctrine of suspicious circumstances, and the defences of fraud and undue influence be reconciled so as to produce a coherent approach to this aspect of probate law.
[12] [2011] NSWSC 81.
[13] [2011] NSWSC 81 at [106].
Brereton J held that suspicious circumstances dispense with the presumption of knowledge and approval that arises from due execution of a prima facie rational will, so as to cast on the proponents the onus of removing the suspicion by proof that the testator knew and approved the contents of the will. Undue influence is an affirmative defence, however, which assumes that the testatrix knew and approved the will in the relevant sense, but asserts that such knowledge and approval was improperly obtained. It is the objector who bears the onus of proof on this matter.
However, as White J noted in Carney & Ors v Hall:[14]
[T]here seems no reason in principle why evidence tending to show the exercise of undue influence (in the sense of coercion) may not be capable of creating a suspicion that the testator did not know or approve of the terms of the document in question as a will, and accordingly have the effect of displacing the presumption in favour of knowledge and approval. … In many cases, the matters relied upon for undue influence may also give rise to a suspicion that the testator did not know or approve of the content of the document.
[14] (2011) 111 SASR 424 at 432 [29].
Background
The deceased was born Vittoria Fazzari on 12 December 1924 in the village of San Martino in Reggio Calabria, Italy. She died on 31 August 2009.
On 24 January 1946 she married Giuseppe Coppola. They married in Italy. Mr Coppola was two years older than the deceased. He also was born in San Martino in Reggio Calabria.
The first defendant, Grazia Coppola, was born in San Martino, Reggio Calabria, on 6 December 1946. On 8 May 1950 the deceased gave birth to a son, Francesco “Frank” Coppola, in San Martino, Reggio Calabria.
The deceased’s younger brother, Salvatore Fazzari, gave evidence that the deceased had no education in Italy.[15] She worked on the family farm. Mr Fazzari was born in 1942, however, so his understanding of his sister’s lack of education must be hearsay. Nonetheless, he gave evidence that his sister could not read or write in Italian.
[15] T 849.
In 1952 Giussepe Coppola migrated to Australia and settled in Adelaide on land in Lockleys. He was not accompanied by his wife or children.
Later that year he purchased a block of land at Adele Avenue, Kidman Park.
In 1953 he was joined in Australia by his wife and two children. They lived at Lockleys. The following year the family moved to the property at Adele Avenue, Kidman Park.
On 7 February 1956 the first plaintiff, Severina Coppola, was born in Adelaide.
On 5 January 1958 the second defendant, Concetina Coppola, was born in Adelaide.
Domenico Nobile was born in San Martino, Reggio Calabria, on 29 May 1941. He migrated to Australia in about 1956. The following year, he met the Coppola family, including Grazia Coppola.
Mr Nobile and Grazia came to know each other. Their relationship developed to a point whereby, when she was about 13 years of age, they decided they wanted to marry at an appropriate time in the future. It appears Grazia’s parents were informed of their intentions. The evidence is not entirely clear, but it seems that Grazia’s parents may have received the news with equanimity initially, but after a short period of time they made clear their opposition to the proposal. The deceased was particularly strong in her opposition to the proposed marriage. The evidence suggests that she considered Mr Nobile to be an unsuitable match for Grazia, given he owned no property and was a person of very limited means. The evidence suggests that from that time onwards, she behaved towards Mr Nobile in a way which made him feel unwelcome in the Coppola home.
I should clarify the position when I refer to the Coppola home. The evidence is that when the deceased and her two children arrived in Adelaide, they lived for a time with her husband and their father in a shed at Kidman Park. After some time, a house was built on the property at Kidman Park. It is unclear precisely when the Coppola family moved into the Kidman Park house. In 1958 Giussepe Coppola purchased property at Martins Road, Salisbury Downs. The land was vacant at the time of purchase. Over the next three years or so a house was constructed by Mr Coppola on the Salisbury Downs property. The Coppola family moved into this house in 1962. The deceased lived at this house until 2004 when she took up residence at St Hilarion’s Nursing Home where she lived until her death.
The events surrounding Domenico Nobile and Grazia Coppola falling in love and the announcement to Grazia’s parents of their intentions to marry all occurred while the Coppola family was living in the house at Kidman Park.
Notwithstanding the opposition of the deceased to the marriage, Grazia Coppola and Domenico Nobile married in November of 1966. By this time, the Coppola family was living at Salisbury Downs.
Both Domenico Nobile and Grazia Nobile gave evidence that they had no contact for a period of some three or four years prior to 1966 as a result of the deceased’s hostility to Domenico Nobile.[16] This evidence was inconsistent with the recollections of Severina Coppola.[17] I will return to this issue later.
[16] T 733 and T 611.
[17] T 516.
Grazia gave evidence that she attended school in South Australia, but did not do so beyond primary school. Her evidence was that she stayed home after completing her primary education and worked around the home.[18] After the family moved to Salisbury Downs, she worked in the market gardens her parents established on that property, until she married in November 1966 and left the Coppola home to live with her husband. She gave evidence of working extensively in the home and the market gardens with her parents in the four years from 1962 to 1966. This evidence was disputed by Severina Coppola. Again, I will return to this issue later.
[18] T 604 – 606.
While Grazia and Domenico Nobile were married in 1966, the evidence is that the deceased’s hostility to the union remained unabated. Both Mr and Mrs Nobile gave evidence that at the wedding, as they left the church, the deceased threw holy water in Grazia’s face and said to her “I wish to God that you never in your life find happiness”.[19] There was no wedding reception. The next day Mr and Mrs Nobile travelled to Berri to begin their married life together.
[19] See Grazia Nobile’s evidence at T 628 and Domenico Nobile’s evidence at T 736.
They lived in Berri until the late 1980s when they moved to Waterloo Corner, north of Adelaide. In the few years immediately following their marriage, the Nobiles had little contact with the deceased and her husband.
One of the critical factual disputes at trial concerned the conduct of Domenico Nobile towards the deceased and her husband. In particular, whether in the years before and following the Nobile’s marriage, Domenico Nobile threatened the deceased and her husband with violence on a repeated basis. I will return to this issue later.
At this stage it is appropriate to say something about the character of the deceased. It is apparent from the evidence that she was a strong, hardworking woman, with a domineering personality. She was frequently described as “cold”, and her daughters gave evidence of the absence of any display of physical affection by her. From the time the Coppola family moved to the Salisbury Downs property, she spent most days working long hours in the market garden they established on the property. Both Severina Coppola and Concetina Coppola emphasised her strictness.
On 5 March 1971 Francesco “Frank” Coppola, the deceased’s only son, was killed in a motor vehicle accident. Every witness who saw the deceased thereafter, testified to the devastating impact his death had on her. Concetina Coppola said that it was as if her mother’s soul had been buried with her brother. Another witness, Anthony Rocca, a friend of the Coppola family, described the atmosphere in the Coppola home in the years after Francesco’s death as being like a “living morgue”. The deceased became reclusive. She wore black for more than 20 years following his death. Both Severina and Concetina emphasised that their mother’s strictness before Francesco’s death became more severe after it.[20] They were not permitted to go out other than with the family. They were not permitted to have friends visit them at home. The deceased discouraged them from talking to boys.
[20] See Severina Coppola’s evidence at T 458 and Concetina Coppola’s evidence at T 875.
On 18 April 1972 the deceased and her husband executed joint wills leaving their estate to each other upon survivorship, with the balance of their respective estates, by way of substitution, divided equally between Severina Coppola and Concetina Coppola, save for a legacy of $100 to Grazia Nobile. I will return to the circumstances of the making of the 1972 will later in these reasons.
In August 1975 Severina and Concetina left the Coppola home. They did so secretly, in the dead of night, concealing their intentions from their parents. Neither resided at the Coppola home on a permanent basis after this time. They left because of the suffocating, unhappy atmosphere in the home, and their father’s violence towards them. Except indirectly, Concetina had no further contact with her parents thereafter. After her father’s death, however, she did visit his grave[21]. This fact became known to the deceased.
[21] T 883.
Following their departure from the family home, Severina and Concetina lived together in a flat. They were both employed at Woolworths, Parabanks. In early 1976 Severina moved to Victoria. Later, she moved to Queensland. She still lives in Queensland. For some years she was in a relationship with Mark Johnson. After she moved to Victoria in early 1976, Severina saw Concetina on a few occasions only in the course of the next two or three years. Thereafter there was no further contact between them. After she left the family home in August 1975, Concetina had no contact with Grazia and Domenico Nobile or their children until the trial of this action.
Severina gave evidence that she moved to Melbourne later than Concetina recalls.[22] She gave evidence that while she was still in Adelaide before moving to Melbourne, she resumed contact with her parents. She says this occurred about six months after she and Concetina had left home. She visited the family home at Salisbury Downs and telephoned on a regular basis. Once she was living interstate she would visit her parents at Christmas and Easter, and telephone in the intervening periods.[23]
[22] See Severina Coppola’s evidence at T 463 and Concetina Coppola’s evidence at T 899.
[23] T 463 – 465.
On 16 April 1991 Giussepe Coppola died. By this time Severina was living in Queensland with Mark Johnson. They had a seafood business.
On 23 April 1991 it appears Severina and the deceased met with the second plaintiff, Mr Scragg, for the purposes of instructing him in relation to the administration of Giussepe Coppola’s estate, the preparation of a new will for the deceased, and the preparation of an enduring power of attorney for the deceased. It appears Mr Scragg was instructed on the basis of a recommendation made to the deceased by Anthony Rocca. Mr Rocca was an acquaintance of the Coppola family and a client and friend of Mr Scragg. The deceased had asked Mr Rocca for the name of a solicitor as she wanted to make a new will. While it is not entirely clear, it appears that little by way of specific instruction was given to Mr Scragg at this time in relation to the provisions of a new will by the deceased. In fact, it appears that Mr Scragg did not take specific instructions in relation to a new will for the deceased until later. In the meantime, discussions occurred between Mark Johnson, Severina Coppola, and Mr Scragg in relation to the disposition of Giuseppe Coppola’s estate. The evidence suggests that proposals were floated by Mark Johnson and Severina for the deceased to transfer a joint interest in the Salisbury Downs property, which she had inherited pursuant to Giuseppe Coppola’s will, to Severina. This proposal did not proceed because it was not agreeable to the deceased. On 27 August 1991 the deceased appointed Serina Coppola [sic] as her attorney pursuant to a power of attorney made under ss 5 and 6 of the Powers of Attorney and Agency Act 1984 (SA).[24] The grant was prepared by Mr Scragg.
[24] Exhibit P4.
On 9 March 1992 probate was granted in respect of the will of Giussepe Coppola.[25]
[25] Exhibit P2.
On 2 June 1992 the deceased attended at Mr Scragg’s office with Severina and Anthony Rocca. The deceased executed the 1992 will in the presence of Mr Scragg and Jennifer Richards, one of his staff, who, together with Mr Scragg, witnessed the will after Mr Rocca endeavoured to translate it into Calabrese for the deceased. At Mr Scragg’s insistence, Severina was absent during the process of the will being read and executed. I will return to the circumstances surrounding the execution of the 1992 will later in these reasons.
After her husband’s death, the deceased continued to reside at the Salisbury Downs property until a series of falls saw her admitted to the Lyell McEwin Hospital in August 2004. She was then transferred to St Hilarion’s Nursing Home, where she lived until her death on 31 August 2009.
There is a dispute between Severina and Grazia over the amount of contact and support each offered to the deceased during the period subsequent to Giussepe Coppola’s death. I do not need to resolve this dispute.
Witnesses
The Court heard evidence from Severina Coppola, Grazia Nobile, and Concetina Coppola. The second plaintiff, Mr Scragg, gave evidence. In addition, the plaintiffs called evidence from Mr Joseph Pertl, the solicitor responsible for drawing the 1972 will.
Evidence was also adduced by the plaintiffs from Mr Anthony Rocca, Mrs Laureen Stan and Ms Jennifer Richards.
The first defendant also called evidence from members of her family, namely, her husband, Mr Domenico Nobile, and her children, Domenico Nobile Jnr, Maria Mercorella and Rosa Alongi. Finally, the first defendant called the deceased’s younger brother, Mr Salvatore Fazzari, to give evidence.
I found the evidence of Concetina Coppola to be the most reliable of the deceased’s three daughters. She left a strong impression of someone who was trying at all times to recount events as fully and as frankly as her recollection allowed. Some of the events about which her sisters gave evidence occurred at a time prior to her birth or when she was too young to recall what occurred. Other events occurred after 1975 when she had ceased all contact with her family. However, in respect of matters of which she has a clear recollection, I am content to rely upon her evidence as a sound basis for making findings of fact. I have formed a strong impression of her disinterestedness and her determination to be as objective as she could in providing an account to the Court of the events the subject of her evidence, including those occasions which she found painful to recall. While she sat through and listened to almost all the evidence before she was called to the stand, I do not consider that any proper foundation exists for criticising her evidence on this basis.
I entertain serious doubts as to the reliability of the evidence of Grazia Nobile. I do not consider she was untruthful, but it appeared to me evident that she often experienced considerable difficulty in understanding questions that were asked, and this creates serious reservations as to the extent to which I can rely upon her evidence in making findings of fact. Nonetheless, some of her evidence was corroborated by other witnesses, albeit members of her own family, who potentially stand to benefit from the outcome of the litigation, as well as Mr Fazzari, who does not stand to benefit from the outcome of the litigation, and I am prepared to accept much of this evidence as a basis for making findings of fact.

Severina Coppola gave evidence of a series of events that occurred over a period covering almost her entire life. I did not form a favourable view of her evidence. I consider that some of the answers she provided to questions were given in a calculated fashion, intentionally framed to advantage what she perceived to be her interest. Her account of the activities of her sister, Grazia, in and about the family home at Salisbury Downs in the years preceding Grazia’s marriage was contradicted by others, including her uncle, and was unconvincing. On the central issue of threats made by Domenico Nobile against her parents, her evidence was contradicted not only by Mr and Mrs Nobile, but also by Concetina.
Severina gave evidence that Domenico Nobile “often threatened” her parents with a gun, told them he would take them up to the mountains and kill them, and constantly reminded Giuseppe Coppola and the deceased that he had a shotgun in the car. She said she recalled Grazia being present and laughing when these threats were made. She claimed to have telephoned the police at the request of the deceased on two occasions about these threats but the police did not attend. She said the threats continued until Domenico and Grazia married.[26]
[26] T 437 – 440.
The evidence suggests it was Severina who, on behalf of her mother, gave the instructions to Mr Scragg for the preparation of the 1992 will. I think it likely she told Mr Scragg that Domenico and Grazia Nobile had made repeated threats against her parents, including threats against their lives, over a period of 23 years before her father’s death. She also gave the instructions, on behalf of her mother, that evidence of those threats could be given by Severina and Concetina. Yet Concetina denied ever witnessing any threat of such a kind being made by either Domenico or Grazia Nobile, let alone on a repeated basis. Necessarily, Concetina’s recollections of such threats had to be confined to the period up to August 1975 when she left the family home, never to return. Nevertheless, the period of 23 years prior to Giussepe Coppola’s death would have commenced in 1968. Indeed, the evidence of Severina was that these threats had preceded Domenico and Grazia Nobile’s marriage in 1966. By the time she left home, Concetina was 17 years old. If these threats had been made on a repeated basis over a period of seven years or more before Concetina left the family home, in circumstances where the deceased considered that both her daughters could corroborate them, I consider it likely she would have recalled at least one of these incidents. Her failure to support Severina’s evidence on this central issue causes me to doubt the reliability of Severina’s evidence on this and other critical matters.
I am reinforced in this view by the evidence given by Severina of a threat she said was made to her by Domenico Nobile shortly after she and Concetina left the family home in 1975. She claimed that he telephoned her at her place of employment at Woolworths, Parabanks, and threatened to kill her if she returned to the family home.[27] This evidence struck me as inherently improbable. No rationale was given as to why such a threat would be made, given that she had been living at home up to that time for 19 years. On the contrary, Domenico Nobile gave evidence that at that time he telephoned Severina Coppola and urged her to return home so as to avoid a scandal and damage to the family’s reputation. This seemed to me much more likely than the account given by Severina. I consider that Severina’s evidence on this topic was calculated to bolster her allegations of violent threats made by Domenico Nobile against her parents. I reject that evidence.
[27] T 464.
Mr Pertl was the solicitor who acted for the deceased and her husband in relation to the wills each made in 1972. Understandably, he has no recollection of the precise circumstances around the making of these wills. He gave evidence of his general practice. I have no hesitation in accepting his evidence as truthful and, insofar as it goes, reliable.
Peter Scragg was the solicitor responsible for the preparation of the 1992 will. He was appointed as an executor under that document. He was also responsible for the administration of Giussepe Coppola’s estate following his death in 1991. He prepared the power of attorney granted by the deceased in favour of Severina Coppola in September 1991. Despite numerous requests by the solicitors for the first defendant prior to trial, Mr Scragg was unable to produce his file in relation to the preparation of the 1992 will. Initially, he gave evidence-in-chief on the basis that no file existed, or if it had existed it had been misplaced. I consider that his evidence was coloured by the absence of the file such that he was led to form a belief that the instructions for the 1992 will were taken on the very day the will was made, namely, 2 June 1992. However, during the course of cross-examination by Mr Cameron, counsel for the first defendant, during an overnight adjournment, a further search by Mr Scragg at his office resulted in the discovery of the will file (in both senses of the term). This caused a change in his evidence when his counsel was given permission to re-open examination-in-chief. In the light of the material on the file, he gave evidence that he had taken instructions for a new will in a very general sense on 23 April 1991 and specifically on either 8 May 1992 or 2 June 1992. Criticisms of Mr Scragg’s honesty I consider to be misplaced. In my view, Mr Scragg endeavoured to give his evidence truthfully. It is unsurprising that his memory of events 20 years ago is flawed. I reject any suggestion that he deliberately concealed the existence of the file until the trial was underway. If that had been the case, it seems remarkable that he would have chosen to reveal the existence of the file while under cross-examination without any obvious indication that the fact of the file’s existence would be discovered. While Mr Scragg’s diligence in undertaking a proper search for the file may be a legitimate basis for criticism, I do not consider that his evidence was in any way tainted by a conscious attempt to mislead the Court. Nonetheless, as I have observed, his memory of the relevant events surrounding the making of the 1992 will is flawed, and was often a matter of reconstruction from the contents of the file (and earlier from the absence of the file documents). I have taken this into account in evaluating the reliance I should place upon his evidence in making findings of fact.
Ms Jennifer Richards, an employee in Mr Scragg’s office, gave evidence of the circumstances surrounding the reading of the 1992 will to the deceased and her execution of it. In my view, she was doing her best to honestly and accurately recite these events as she now recalls them. Again, due allowance must be made for the effluxion of time and the inevitable erosion of a person’s honest recollection of such events from so long ago, particularly, where they would not have assumed great significance in the life of Ms Richards. I make due allowance for this.
Mr Anthony Rocca endeavoured to truthfully recount the events surrounding the making of the 1992 will as he recalled them. Nonetheless, I consider that his memory is flawed in relation to some of those events. He gave evidence that he had no input whatsoever into the preparation of the 1992 will. He only recalls attending with the deceased and Severina Coppola at Mr Scragg’s office on 2 June 1992. He says his role was confined to translating the will for the deceased. He gave evidence that he was “shocked” to discover on that occasion that this was the role he was expected to play.[28] Yet Mr Scragg’s file records a greater degree of involvement on the part of Mr Rocca. On 8 May 1992 Mr Scragg attended on Mr Rocca and the deceased. Mr Scragg’s note says that the attendance was “to discuss will”.[29] I find that Mr Rocca played some role in the provision of instructions by the deceased to Mr Scragg. It is unsurprising that his memory of these events has faded, given the passage of time. I make no criticism of him for this but the fact that his memory of these events has faded underlines the need to treat his evidence cautiously in making findings of fact. Nonetheless, I am satisfied that his recollection of the events that took place in Mr Scragg’s office on 2 June 1992 generally provides a sound basis for making findings of fact, with one exception which I will refer to later in these reasons.
[28] T 354.
[29] Exhibit P6.
Mrs Stan, a friend of Severina Coppola, gave brief evidence. I was impressed by her as a witness. I am prepared to make findings of fact on the basis of her evidence, notwithstanding the criticism of her evidence that she was told by Giuseppe Coppola that he never saw his grandchildren. This was contradicted by the evidence of the Nobile family. While I am prepared to accept the accuracy of the evidence of the Nobile family as to their respective contact with Giuseppe Coppola, this does not cause me to doubt the accuracy of Mrs Stan’s evidence of her conversations with him. In my view, the apparent contradiction is explained by Mr Coppola using hyperbole. When he reported to her that he never saw his grandchildren, I consider he did not mean that literally, but that he saw them much less than he wished was the case.
I also accept a good deal of Domenico Nobile’s evidence. I accept him as truthful by and large. In some instances, I suspect that his answers to questions reflected a calculation on his part as to whether the answer may assist his wife’s case. Nonetheless, I am prepared to accept most of his evidence. Importantly, I prefer his evidence over the evidence of Severina Coppola in relation to the allegation of threats he is alleged to have made against his parents-in-law. I am less satisfied about his evidence, corroborated by his wife, concerning his decision not to see Grazia for some four years prior to their engagement because of the hostility of the deceased towards him. In any event, I do not consider that this matters much, except to the extent that it throws some doubt on his credit, given that I find his evidence was calculated to defeat the false accusation of Severina in relation to the threats. Moreover, I am satisfied as to the truth of his evidence about the deceased’s hostility towards him, and her opposition to him marrying Grazia.
I accept the evidence of the Nobile children, namely, Domenico Nobile Jnr, Maria Mercorella and Rosa Alongi. However, I do not derive much assistance from this evidence, as it mostly concerns events after the making of the 1992 will.
I also accept much of the evidence of Salvatore Fazzari as truthful, although I am cautious about some of his evidence concerning the deceased and her husband. I consider that his evidence in relation to them was coloured by a desire to protect the memory of his sister and her husband.
The 1992 will and the circumstances of its making
It is convenient to consider the circumstances of the making of the 1992 will first. If the 1992 will is valid, by its terms, it revokes the 1972 will and renders unnecessary consideration of the validity of the 1972 will.
The 1992 will appointed the plaintiffs as joint executors. By the terms of clause 3 the deceased disposed of the whole of her estate by dividing it as to two-thirds to Severina Coppola and one-third to Concetina Coppola upon the condition that Concetina advise the executors of her wish to claim within 14 months of the death of the deceased. Importantly, clause 6 provided:[30]
I have not provided for my eldest daughter Grazia Nobile because of the repeated threats made by her and her husband against both my deceased husband and myself, including threats against our lives. Evidence of those threats can be given by my other children. Those threats were made over a period of 23 years before my husband’s death. On account of those threats we both feared for our safety.
[30] Exhibit P3.
As the deceased’s husband died in 1991, the period of 23 years referred to in clause 6 of the 1992 will is from 1968 to 1991.
The plaintiffs contend that clause 6 evidences the basis of the deceased’s intention to exclude Grazia from inheriting under her will. This proposition depends upon the truth of the contents of clause 6. By contrast, the first defendant contends that clause 6 evidences the lack of testamentary capacity on the part of the deceased when she made the 1992 will. This submission depends on the falsity of the contents of clause 6. As I have indicated earlier in these reasons, I do not accept the truth of the allegations contained in clause 6 nor the evidence given by Severina in support of those allegations. It does not follow, however, that the failure to prove the truth of the allegations in clause 6 necessarily leads to the acceptance of the submission of the first defendant that the deceased was suffering from a delusion at the time she made the 1992 will, which delusion is evidenced by clause 6. Such conclusion depends upon a finding that the deceased knew and understood the contents of clause 6 and gave instructions for the preparation of the 1992 will in those express terms.
It is not possible on the state of the evidence to make a conclusive finding as to the circumstances and timing by which instructions were given to Mr Scragg for drafting the 1992 will.
Mr Scragg has an undated file note headed “Will for Mrs Coppola”[31] which he considers he made either on 8 May 1992 or 2 June 1992. That file note appears to record the instructions which form the basis for the inclusion of clause 6 in the 1992 will.
[31] Exhibit P6.
The instructions recorded by Mr Scragg in his own handwriting are:[32]
Have not provided for eldest daughter because of threats made by her and husband against both my deceased husband & myself including threats against our lives. Evidence of those threats can be given by my other children. These threats were over a period of 23 years before my husband’s death. We both feared for our safety to the point where we hated them.
[32] Exhibit P6.
Mr Scragg gave evidence that in preparing the will, the instructions from the deceased came via Severina Coppola or Anthony Rocca. He said he was dependent on Severina for information.[33]
[33] T 249.
It appears the first occasion in which he saw the deceased for the purposes of taking instructions was 23 April 1991. He says he saw her in the company of Severina. The discussion principally concerned the estate of Giuseppe Coppola. The file note records instructions as, “new will for mother.”[34] The terms of that note tend to reinforce Mr Scragg’s impression that the deceased attended upon him on this occasion with Severina. The file note does not record any further instructions in relation to the making of such a will. On 8 May 1992 he has a cost entry recording an attendance by him on Anthony Rocca and the deceased. It also records two telephone attendances on Mr Rocca on the same date. The 2^nd of June 1992 was the occasion when the 1992 will was executed. There is no doubt that on that day, the deceased attended at Mr Scragg’s office in the company of Severina Coppola and Anthony Rocca. Mr Rocca brought them to Mr Scragg’s office.
[34] Exhibit P6.
I am satisfied that the deceased was incapable of conveying to Mr Scragg in English her instructions for the making of her will. The instructions obtained by Mr Scragg must have come through Severina Coppola or Anthony Rocca. Yet Severina was not present in South Australia on 8 May 1992. On 2 June 1992 the evidence establishes that she was not present in Mr Scragg’s room when he attended upon the deceased in the company of Mr Rocca and Ms Richards for the purposes of executing the will, although Severina was present in some other part of Mr Scragg’s office. She could not have conveyed the deceased’s instructions if they were given on this occasion. Yet Mr Rocca is adamant that he did not give the instructions for the making of the will. He said he had “nothing” to do with the preparation of the will.[35] This is supported by his evidence that he did not know the Italian words for “threat” or “evidence”.[36]
[35] T 352.
[36] T 361 and T 368.
Yet Mr Scragg testified that on 8 May 1992 after the attendance by him upon the deceased and Anthony Rocca he had two telephone conversations with Mr Rocca. Mr Scragg said that it was possible his file note recording his instructions as to the terms of the will may have been made during one or both of these telephone conversations with Mr Rocca. Obviously, in that event the deceased was not in Mr Scragg’s presence when the instructions were given.
The picture created by the evidence is confusing.
There is an ambiguity about Severina Coppola’s evidence concerning her involvement in the preparation of the 1992 will. She gave the following evidence in examination-in-chief:[37]
[37] T 468.
A. My mother said she decided she wanted to make a new will and she wanted to find good lawyer so she said she would ring Tony Rocca and ask him.
Q. Did you have anything yourself personally to do with the arrangements made in respect of seeing Mr Rocca's suggested solicitor.
A. No, mum made the arrangements with Tony Rocca.
Q. Who was the solicitor.
A. It was Peter Scragg.
Q. I think that you attended upon Mr Scragg with your mother in terms of the probate of the will.
A. I don't recall doing the probate.
Q. Nothing at all.
A. No.
Q. Do you know that during the period in which she saw Mr Scragg you took some instructions for a new will.
A. Yes.
Q. Did you have anything to do with the preparation of that document.
A. No.
I am inclined to think that the instructions for the document presented as the 1992 will are more likely to have come from Severina Coppola than from Anthony Rocca. I consider that this is more likely because I suspect that had those instructions been given through Mr Rocca, he would have recalled that occurring. Moreover, I accept his evidence he did not know the Italian words for “threat” and “evidence”. While his evidence in this regard concerned translating those words from English to Italian, logic dictates he would have experienced the same difficulty in reverse. Nonetheless, as I have said, I consider Mr Rocca played some role in the provision of instructions by the deceased to Mr Scragg. This did not necessarily relate to the contents of the will however.
It is unlikely that those instructions were given on 2 June 1992. I think they were more likely to have been given on an earlier occasion. I am inclined to the view that if those instructions had been given on 2 June 1992, Mr Scragg would not have made the notes that appear in exhibit P6, but rather he would have dictated the will as those instructions were conveyed, as he first thought had occurred before the discovery of exhibit P6. Of course, if the instructions were given by Severina Coppola on an earlier occasion, it begs the question when, given her absence from the State prior to 2 June 1992.
It is not necessary however, for me to resolve this question definitively and I do not consider that the evidence enables me to make a conclusive finding.
Against this background I turn to consider the circumstances in which the 1992 will was executed.
This occurred in Mr Scragg’s office on 2 June 1992. Present were the deceased, Mr Scragg, Anthony Rocca and Jennifer Richards. According to Mr Scragg and Ms Richards, Mr Rocca was present for the purpose of translating the will into Italian for the deceased.
Mr Scragg recalled the will being translated by Mr Rocca. After some hesitation, he gave evidence that he read the document aloud in English, clause by clause, except for clause 7 which he paraphrased.[38] He said Mr Rocca appeared to translate each clause to the deceased after Mr Scragg had read it in English.
[38] T 68.

Mr Rocca’s evidence accorded generally with Mr Scragg’s account of this process except that he said Mr Scragg had read clause 7 in its entirety. He said he was following the words on the page as Mr Scragg read them.[39]
[39] T 379.
Clause 7 provides:
MY executors shall have the following powers:-
(a)to apply for the benefit of any beneficiary as my executors think fit the whole or any part of the income from that part of my estate to which he is entitled or may in future be entitled.
(b)to apply for the benefit of any beneficiary as my executors think fit the whole or any part of the capital to which that beneficiary is entitled or may in future be entitled and on becoming absolutely entitled he shall bring into account any payments received under this clause;
(c)to invest and change investments as freely as if they were beneficially entitled and this power includes the right to invest in unsecured interest-free loans or other non-income-producing assets including property for occupation or use by a beneficiary;
(d)to borrow money on such terms as they think fit and use it for any purpose for which the capital of the estate may be used.
Ms Richards could not remember Mr Scragg reading the will. She did recall Mr Rocca appearing to translate the document into Italian for the deceased.[40]
[40] T 43 – 44.
Mr Rocca is not an accredited interpreter. He suffers from dyslexia and has difficulty reading. He admitted he could not properly translate clause 6. He admitted there were lots of words in the document that he was unable to translate. As I have said, he did not know the Italian words for “threat” or “evidence”. Neither did he know the Italian words for “beneficiary” or “executor”.[41] In respect of clause 6 he gave evidence that he translated clause 6 in a summary fashion, referring to “trouble” that Grazia and her husband had caused the deceased and Giuseppe Coppola over 23 years that made them “scared”.[42]
[41] T 392.
[42] T 369.
He said he had a “heated discussion” with the deceased over the exclusion of Grazia from the will.[43] He said the deceased asked several times whether the terms of the will were the same as her husband’s will. He said that he reassured her that it was, after confirming this with Mr Scragg. He said, however, that he explained the division of her estate between Severina and Concetina on a two-thirds / one-third basis. He said that the deceased agreed that is what she wanted.[44] Mr Rocca’s evidence of this discussion, however, smacked of reconstruction and I found it less than convincing.
[43] T 389.
[44] T 399 – 402.
At the conclusion of this process, the evidence is that the deceased executed her will. It was executed in the presence of Mr Scragg, Mr Rocca and Ms Richards, who all witnessed her signature.
Mr Rocca drove the deceased and Severina home to the house at Salisbury Downs from Mr Scragg’s office.
The only discussion Severina says she had with her mother concerning the 1992 will was to the effect that the deceased told her that she was “favoured” in the will relative to her sisters.
On the basis of this evidence I am satisfied that the 1992 will was duly executed by the deceased.
In the absence of evidence of suspicious circumstances, I am entitled to presume that the 1992 will was made by the deceased with her knowledge and approval. The degree of suspicion will vary with the circumstances of the case.
In my view, there is sufficient suspicion in the evidence concerning the making of the 1992 will to displace the presumption. I consider the evidence excites the suspicion that the terms of the 1992 will may not have been fully known and approved by the deceased.[45]
[45] Re Estate of Chomiak [2012] SASC 27 per Gray J at [44] citing Nock v Austin (1919) 25 CLR 519 per Isaacs J at 528.
The circumstances surrounding the giving of instructions for the will are unclear. The circumstances by which the will was read to the deceased give rise to real doubt as to whether the deceased did fully understand the terms of the document prepared by Mr Scragg. Accordingly, the plaintiffs bear the onus of proving that the deceased knew and approved of the terms of the 1992 will.
In my view, they have not discharged this onus.
Three critical features of the 1992 will are: the disinheritance of Grazia, the reasons for her disinheritance, and the basis of the distribution of the deceased’s estate between Severina and Concetina.
I am satisfied that on 2 June 1992 the deceased knew and approved of the provision in the will that excluded Grazia Nobile from inheriting. I am not satisfied that she knew and approved of the contents of clause 6 or of the proportions pursuant to which her estate was to be divided between Severina and Concetina.
It is plain from the evidence of Anthony Rocca that the deceased was insistent that Grazia be excluded from her testamentary bounty. The animated discussion between Mr Rocca and the deceased in Mr Scragg’s office on that date where she insisted over his objections that Grazia was to receive nothing, “niente”,[46] evidenced her knowledge and approval of the provisions of clause 3 that exclude Grazia from inheriting under the will.
[46] T 360 and T 398.
The state of the evidence does not persuade me, however, that the deceased could have understood the contents of clause 6. Plainly it was not translated perfectly. More importantly, even the gist of clause 6 was not accurately conveyed by Mr Rocca to the deceased. On Mr Rocca’s own evidence, the deceased could not have understood the essence of the explanation for Grazia’s exclusion from the deceased’s bounty.
Further, I am not persuaded that the deceased knew and approved of the two-thirds / one-third division of her estate between Severina and Concetina. As I have said, I found this aspect of Anthony Rocca’s evidence unconvincing. Moreover, I have difficulty accepting the deceased intended the change in the 1992 will from the provisions made in the 1972 will for an equal division of the deceased’s estate between her remaining daughters. While the absence of Concetina from the deceased’s life since 1975 provides an obvious basis for differentiation, the evidence of Mr Rocca that the deceased asked repeatedly, during the course of the meeting at Mr Scragg’s office, whether the terms of the 1992 will reflected the terms of her late husband’s will, reinforces the doubt I feel on this issue. Mr Rocca said that during the meeting in Mr Scragg’s office the deceased expressly insisted “Make sure it’s [the will] the same as what my husband had but with my name on it.”[47] Giuseppe Coppola’s will made in 1972, like the deceased’s 1972 will, provided for an equal distribution of the estate between Severina and Concetina.
[47] T 399.
For the sake of clarity, I am not satisfied that the provisions of clause 7 were translated to the deceased by Mr Rocca. I accept Mr Scragg’s evidence in this regard. However, the absence of an accurate translation of clause 7 by itself would not lead to the conclusion that the deceased did not know and approve of the terms of her will as these provisions are not critical to her testamentary disposition.
It follows that the plaintiffs have failed to discharge the onus of proving on the balance of probabilities that the testatrix knew and approved of the terms of the 1992 will.
This renders unnecessary the determination of the other challenges to the validity of the 1992 will, namely, a lack of testamentary capacity and undue influence.
I am, nevertheless, satisfied that the deceased had testamentary capacity in June 1992.
The principal foundation of the first defendant’s case on lack of testamentary capacity is the proposition that the deceased’s lack of testamentary capacity is evidenced by her delusional belief in the accuracy of clause 6 of the 1992 will. The premise of this argument lacks foundation as I cannot find that clause 6 reflects the subjective belief of the deceased at that time. The evidence does not satisfy me that it was translated to her. I cannot know that it represents her true instructions to Mr Scragg because these instructions were conveyed to him either by Severina or by Anthony Rocca. As I have said, I am inclined to think that those instructions are more likely to have come from Severina Coppola than from Anthony Rocca. In any event, whoever provided those instructions to Mr Scragg, I cannot find on the available evidence that clause 6 represents the deceased’s belief at that time.
While it is true that the evidence disclosed incidents of some bizarre behaviour on the part of the deceased in the years after Francesco’s death in 1971, namely, claiming to hear him in the roof and chewing his food for him, I am not persuaded that she lacked testamentary capacity in 1992. In 2004 at the Lyell McEwin Hospital she underwent a psychiatric assessment with Dr Bagnato. The assessment was conducted in the presence of Grazia and Severina with the assistance of an Italian interpreter. He obtained no psychiatric history. During the assessment the deceased denied experiencing psychotic symptoms or paranoia. This was not contradicted by her daughters. Dr Bagnato concluded that the deceased did not have any acute psychiatric issues that would preclude her from making her own decisions.
Dr Bagnato was not called to give evidence. The Lyell McEwin Hospital notes, which record his assessment, were admitted.[48] I am prepared to rely upon the notes as setting out Dr Bagnato’s opinion at the time. I am satisfied that, had he been called, he was unlikely to have been able to give any further evidence as to this assessment beyond what appears in his notes. I reach this conclusion on the basis that given the effluxion of time it is unlikely he would have any memory of the assessment he conducted than is revealed by his notes.
[48] Exhibit P21.
Given the evidence of her psychiatric condition in 2004, I am not prepared to find that the deceased suffered from a delusional belief in 1992 such that she lacked testamentary capacity. Episodes of florid behaviour I attribute to the profound grief suffered by an unsophisticated ill-educated person.
As it has not been proved that the deceased knew and understood the terms of the 1992 will, logically it is not open to me to find that the terms of that will were procured by the exercise of undue influence. In any event, I could not have been persuaded that this was so even had I been disposed to find that the deceased had known and approved of the terms of the 1992 will. The evidence would not satisfy me that, whatever were the subjective intentions of the deceased in relation to her testamentary disposition, they could have been overridden through the exercise of any coercive influence by Severina Coppola, Mark Johnson or anyone else. On the contrary, it is evident that she was perfectly capable of resisting any influence Severina or Mr Johnson sought to exercise over her in relation to their suggestion she transfer the Salisbury Downs property into the joint names of herself and Severina at a time not long before she made the 1992 will. Likewise, the deceased experienced no difficulty in rebuffing the entreaties of Mr Rocca, at Mr Scragg’s office, that she should make proper provision for Grazia in her will.
For all these reasons, I am not prepared to pronounce in favour of the force and validity of the 1992 will. It follows that I must turn to a consideration of the validity of the 1972 will.
The 1972 will and the circumstances of its making
The deceased and her husband executed mirror wills on 18 April 1972. Each left their estate to each other upon survivorship and appointed the other as executor. In the event of the other predeceasing or dying within the space of one calendar month after the death of the testator, the residual estate was to be divided equally between Severina and Concetina after payment of a specific request of $100 to Grazia. Severina was appointed executor in those circumstances.
As I have noted, Mr Pertl has no direct memory of the circumstances surrounding the giving of instructions in relation to the 1972 will or its execution. He gave evidence as to his general practice.
He told the Court that he would not have permitted the execution of a will in circumstances where he entertained real doubt as to the testamentary capacity of the testator. In such circumstances he would have insisted upon the testator obtaining medical evidence as to his or her capacity.[49] There is no evidence he did so in this case.
[49] T 9 and T 33.
Where a testator was insufficiently fluent in the English language to comprehend the terms of his or her will, he would have arranged for the translation of the will. Where he had instructions to prepare wills for a husband and wife, he would satisfy himself that each of them individually understood and approved the terms of the will and that the will accurately reflected the client’s instructions. Once he had prepared a will he would arrange for the testator to execute it in his presence.
While Mr Pertl has no recollection of the specific circumstances of this case, I have no reason to doubt that he observed his general practice in relation to the making of the 1972 will by the deceased and, for that matter, by her husband. I so find. In Paraskov v Paraskos[50] Pullin J said:[51]
Although there was no direct evidence of what instructions were given to [the solicitor] and whether the will was read to the deceased or the contents explained to him, there is strong evidence as to [the solicitor’s] usual practice. Once it was established, as it was, that [the solicitor’s] usual practice was to explain the contents of wills to clients who could not speak English, then it can be inferred, in the absence of any evidence to the contrary, that he followed that usual course in this case. This inference, or presumption, arises because the common experience and observation of mankind is that persons acting in the course of business tend to conduct themselves in a routine and regular way: McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 at 849. In Public Trustee v Permanent Trustee Co Ltd [1999] NSWSC 722, Young J, in the absence of any direct evidence, drew an inference that a will had been explained to a testatrix because the lawyers involved were experienced and that it could be inferred that the lawyers “did their job properly”.
[50] [2002] WASC 109.
[51] [2002] WASC 109 at [45].
I adopt the same approach in this matter.
In this regard, I note that the 1972 will was witnessed by an employee of Mr Pertl, Ms Esposito. She spoke Italian. The evidence does not establish whether she spoke Calabrese. Neither does it establish that she was an independent professional interpreter, whatever that concept might have conveyed in 1972.[52] I accept Mr Pertl’s evidence that he spoke some conversational Italian but would not have attempted to translate the will to a client.
[52] The National Accreditation Authority for Translators and Interpreters (NAATI) was not established until 1978.
I am satisfied that the deceased did not read English. I am also satisfied that she did not comprehend English sufficiently well to understand the terms of the 1972 will had it been read to her in English. It is probable that the will was translated for her by Ms Esposito or by her husband. I am satisfied that Giuseppe Coppola understood English well enough to comprehend the terms of the 1972 will had it been read to him so that he could have explained the terms of the will to his wife in Calabrese sufficiently for her to know and approve of its contents, if this was not done by Ms Esposito.
In making this finding, I rely upon the evidence of Mrs Stan. She was a friend of Severina Coppola. She visited the home of Mr and Mrs Coppola many times. She gave evidence that she could understand Mr Coppola perfectly in English. She could only understand “brief bits and pieces” of what was said by the deceased. She mainly relied upon Severina interpreting in order to speak to the deceased.[53] I have no reason to believe Mrs Stan was doing anything other than conveying accurately her recollection of Giuseppe Coppola’s command of spoken English. Of course, I must make allowance for the evidence of Concetina Coppola that her father spoke broken English.[54] Likewise, Mr Salvatore Fazzari gave evidence that Giuseppe Coppola was able to speak English, although “not 100%”.[55] He considered he also had a rudimentary ability to read English. Mr Coppola worked for many years at Kelvinators and later at Holden’s Elizabeth plant. It is unlikely he did so without being able to make himself understood in English and, more importantly, to understand what was said in English. I reject the evidence of Mr and Mrs Nobile that Giuseppe could not speak English at all, or next to nothing, or not well enough to be understood.[56] In any event, the real issue is his ability to comprehend what was said in English.
[53] T 575.
[54] T 884 and T 910.
[55] T 849.
[56] See Domenico’s evidence at T 771 – 772 and Grazia Nobile’s evidence at T 618 – 620.
I find that Mr Pertl received instructions to exclude Grazia Coppola from inheriting under her parents’ wills. Although Mr Pertl has no specific recollection, I find there was some discussion which probably culminated in Giuseppe and the deceased accepting Mr Pertl’s advice to create a specific bequest of $100 in Grazia’s favour so as to evidence the fact that she had not been overlooked in the testamentary disposition by which each of her parents weighed her legitimate moral claim on their bounty. I am satisfied that Mr Pertl would not have given his approbation to these instructions but it did not cause him to question the testamentary capacity of either Giuseppe Coppola or the deceased.
I am reinforced in this finding by the fact that the terms of the 1972 will are rational on its face. The exclusion of Grazia from any right to inherit but for the paltry bequest of $100 is explicable, even if thought to be unfair. The deceased harboured a real and profound resentment of Grazia’s decision to defy her wishes and to marry Domenico Nobile. I am satisfied on the evidence that Grazia’s defiance of her parents’ wishes in this regard was a significant contravention of Calabrese cultural traditions and norms as they existed at that time and were observed by the Coppola family and their friends and neighbours whose origins were in Calabria.
The terms of the 1972 will reflect Giuseppe Coppola’s will of the same date, which was admitted to probate on 9 March 1992.[57] This finding is supported by the evidence of Concetina that subsequently the deceased informed her of the contents of the 1972 will and explained her reasons for excluding Grazia.[58] I am also reinforced in this finding by the fact that the 1992 will substantially reflects the testamentary wishes of the deceased in the 1972 will. I am satisfied that the deceased intended to exclude Grazia as a beneficiary of her estate in 1972 and, for reasons which I have explained, in 1992.
[57] Exhibit P2.
[58] T 882 – 883.
I am satisfied the will was duly executed. Mr Pertl, in his evidence, was able to identify the signatures of himself and his employee, Ms Esposito, as well as the signature of the deceased.
In the absence of evidence of suspicious circumstances, I am entitled to presume that the 1972 will was made by the deceased with her knowledge and approval. The degree of suspicion will vary with the circumstances of the case.
In my view, there is sufficient suspicion in the evidence concerning the making of the 1972 will to displace the presumption.
The absence of any direct recollection on the part of Mr Pertl as to the circumstances of his taking instructions and preparing the will and its execution, together with the absence of an attestation clause stating that the will was read over to the deceased in Italian requires the Court to be affirmatively satisfied as to the fact of her knowledge and approval of the terms of the 1972 will.

For the reasons set out above, I am satisfied that the deceased knew and approved of the terms of the 1972 will.
I reject the submission that the deceased was suffering from some delusion at the time of the making of the 1972 will. While I am satisfied on the evidence that, following the death of her son, Francesco, in 1971, the deceased experienced a deep and profound grief reaction which lasted many years, I am, nonetheless, satisfied that she knew what she was doing in making the 1972 will, and had a rational basis for her testamentary disposition effectively excluding Grazia from her bounty.
For the reasons set out above, I find that the deceased satisfied the criteria for testamentary capacity.
Revocation
The second defendant pleaded that the 1972 will, if it was valid, was expressly revoked in 1992 in accordance with the provisions of s 22 of the Wills Act. It is unclear to me whether the second defendant pressed this argument in closing submissions. In any event, the revocation of previous wills, contained in the 1992 will, is only effective if the 1992 is valid. Having found against the validity of the 1992 will, the purported revocation of earlier wills in the 1992 will is ineffective.
Conclusion
I am not satisfied that the 1992 will was validly made.
I am satisfied that the 1972 will was validly made.
The Court pronounces for the force and validity of the last will and testament of Vittoria Coppola, late of 7 Martins Road, Salisbury Downs in the State of South Australia, the abovenamed deceased, being the document dated 18 April 1972 and propounded on behalf of the plaintiffs.
I will hear the parties on the question of the costs of the action.