Donato v Mangravite, Estate of Donato

[2005] NSWSC 488

CITATION:	Donato v Mangravite, Estate of Donato [2005] NSWSC 488
HEARING DATE(S):	24 February and 24 March 2005
JUDGMENT DATE :	24 May 2005
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Burchett AJ at 1
DECISION:	Probate to be granted pursuant to short minutes to be brought in on a date to be fixed.

CATCHWORDS:	WILLS - mental capacity - effect of ill-health grief and dissension in the family - onus - evidence - test for capacity - effect of age having regard to modern medicine
LEGISLATION CITED:	Supreme Court Act 1970, s95
CASES CITED:	Bailey v Bailey (1924) 34 CLR 558 Banks v Goodfellow (1870) LR 5 QB 549 Boreham v Prince Henry Hospital (1955) 29 ALJ 179 Estate of Stefan Miegoch; Redroff v Miegoch (unreported, 22 November 1995) Hayden v Bond [2003] WASC 96 In the Estate of Kazacos; Ryan v Kazacos (2001) 183 ALR 506 Kerr v Badran [204] NSWSC 735 Read v Carmody (1998) BC 9803374 Re Estate of Boehm; Fuggle v Sochacki [1999] NSWSC Seeley v Back [2005] NSWC 68 Shorter v Hodges (1988) 14 NSWLR 698 Timbury v Coffee (1941) 66 CLR 277 Worth v Clasohm (1952) 86 CLR 439
PARTIES:	Giovanni Michele Donato and Domenic Donato (Plaintiffs/First Cross-Defendants) Concettina Mangraviti (also known as Tina Mangraviti (Defendant/Cross-Claimant) Antonio Donato (Second Cross Defendant)
FILE NUMBER(S):	SC 103455 of 2003
COUNSEL:	Mr L J Ellison with him Mr J M Patey (Plaintiffs/Cross Defendants) Mr BW Rayment QC with him Mr A G Todd (Defendant/Cross-Claimant)
SOLICITORS:	Danielle Scott (Plaintiffs/Cross-Defendants) Ciaglia Legal (Defendant/Cross-Claimant)

LOWER COURT JURISDICTION:

- 22 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

BURCHETT AJ

TUESDAY 24 MAY 2005

103455/03 GIOVANNI MICHELE DONATO and DOMINIC DONATO V CONCETTINA (also known as Tina) MANGRAVITI; RE THE WILL OF DOMENICO DONATO, deceased

JUDGMENT

1 The plaintiffs as executors seek a grant of probate in solemn form of the will made on 18 September 2001 of the late Domenico Donato who died on 19 November 2001 at the age of 79 years. The plaintiffs are respectively a son and a grandson of the deceased. The defendant is a daughter of the deceased on whose behalf caveats were filed on 22 January 2002 and 10 April 2003, in each of which she alleged that she was an executrix named in an earlier will made on 14 August 2001 and expressed concern that the plaintiffs were “deliberately failing to disclose estate assets”. However, the defences raised in answer to the statement of claim denied the deceased’s knowledge and approval of the will of 18 September 2001 and denied that the deceased was then “of sound disposing mind, memory and understanding”.

2 Domenico Donato and his wife Giuseppa, sometimes referred to as Giuseppina, both of whom came from near Messina in Sicily, were married when he was 23 years of age and had three children, a daughter, the defendant, who was 54 when her father died, a son, Antonino, who was then 51, and another son, the plaintiff Giovanni, sometimes called John, who was then 47. The deceased worked as a ticket inspector on the Italian railways for many years. After the three children had migrated to Australia, the daughter first, and then the sons in 1972, their parents did so also, arriving in 1978. They continued, nevertheless, to speak the Sicilian dialect within the family and the deceased, whose education was very limited, never achieved any mastery of the English language. His ability to read and write was quite limited, even in Italian, the language which those who speak the Sicilian dialect, unlike those whose heritage is the Neapolitan dialect with its literature, would employ when writing.

3 On 23 December 1998, the deceased made a will, drawn for him by his usual solicitor, Maria Daniele of the firm of Daniele Scott of Leichhardt, in which he named the same son and grandson executors as were named in the will of which probate is now sought, and devised and bequeathed all his estate to his wife, provided that should she predecease him his trustees were to pay $8,800 to his son Antonino Donato “being repayment of money paid by the said Antonino Donato for the purchase of a family burial crypt at Rookwood Cemetery Sydney (receipt no 69248)”, and a further $8,800 to his son Giovanni Michele Donato, also as a repayment in respect of the family burial crypt, for which the receipt number was 69249, and then he directed that his estate be divided into three equal shares to be distributed so that each of his daughter and two sons would receive one third. There was a provision for the substitution of grandchildren in the event of a child predeceasing the testator and there were unremarkable incidental clauses.

4 On 29 April 1999, Mrs Daniele made a further will for the deceased, revoking the previous will, in which the same executors were appointed and the same provision made for his wife followed by the same provisions in the event of his wife predeceasing him, but there was added a provision that each of the sums of $8,800 bequeathed to the sons Antonino and Giovanni should carry interest from the date of the receipts referred to in the will at the rate prescribed in s95 of the Supreme Court Act 1970. Each of the receipts bears the date 27 November 1998.

5 Early in July 2001, Giuseppa Donato was admitted to Concord Hospital, where tests were carried out which resulted in the diagnosis of stomach cancer, after which she was discharged from that hospital on 18 July 2001. While Mrs Donato was in hospital, she was visited by her daughter, the defendant, who had previously, over a period of some three and a half years, been substantially estranged from both her parents. There had apparently been some quarrel in which the defendant’s husband, Joseph Mangraviti, had used insulting language towards the deceased. There had also been a serious breach between the defendant and both her brothers, particularly Antonino.

6 Mrs Donato was operated on in a private hospital at Ashfield on 18 August 2001 for removal of the cancer, but complications set in and she was transferred to Royal Prince Alfred Hospital where she died on 3 September 2001.

7 In July 2001, the late Domenico Donato was also diagnosed as suffering from cancer, in his case throat cancer. On the same day that his wife was operated on in Ashfield, he was admitted to Royal Prince Alfred Hospital, where he remained for tests until 29 August 2001. Upon his discharge, he was brought home from hospital by the defendant and stayed with her and her husband for one night, but from 30 August 2001 until his admission to Strathfield Private Hospital on 25 October 2001 for a laryngectomy he was living with his son Antonino and Antonino’s girlfriend, Maria Gatik, either in their flat at Homebush or (and for most of the time) at his own home where they came to live with him. After the operation on 25 October 2001 and until his death, the deceased did not come out of hospital.

8 It was during a break in this series of visits to hospital by Mr and Mrs Donato, on 13 and 14 August 2001, that a further significant event occurred. Pursuant to an appointment arranged by the defendant, Mr and Mrs Donato saw a solicitor on 13 August at 6.14 pm, Mr Gino Russo of Burwood, who had not previously acted for any of the parties, to make new wills. The defendant was present throughout the taking of instructions and I accept evidence that she took a vigorous part in debating with her parents the terms of those instructions. Giovanni Donato was also present for part of the meeting on 13 August, but he left early. Antonino was not present. On 14 August 2001, Mr and Mrs Donato returned with the defendant to execute their wills. No other member of the family was then present.

9 By the will made by Mr Russo signed on 14 August 2001, previous wills were revoked, and in the event that Giuseppa Donato predeceased the testator all three of his children were appointed executors and trustees, the plan of the 1998 and 1999 wills being in this respect departed from. But again there was a general gift to the three children as tenants in common in equal shares with the usual proviso for substitution of grandchildren in the event of a child dying before obtaining a vested interest. However, there was then a further respect in which the plan of the previous wills was changed. This was by the insertion of a clause, numbered 6, in the following terms:

“ NOTWITHSTANDING anything herein contained and in the event that my said wife has predeceased me THEN : -
a.
my children JOHN MICHAEL DONATO [ie Giovanni] and CONCETTINA MANGRAVITI shall receive before any distribution of my estate the sum of $5,000-00 each as tenants in common; and
b.
prior to any payment to my daughter CONCETTINA MANGRAVITI I GIVE from her share of my estate to each of my sons as tenants in common the sum of $3,000-00 each together with interest thereon at the rate payable by the Commonwealth Bank of Australia on term deposits from the date of purchase of my above ground tomb to the date of payment of the said sum.”

Finally, it was noted the testator was “unable to read or write the English language” and that the will was “read over to him in the Sicilian dialect of the Italian language” by Mr Russo.

10 Mr Russo, although born in Australia, had two grandparents, each of whom came from the eastern region of Sicily within thirty kilometres or somewhat more from the major city of Catania. Through speaking to these grandparents, Mr Russo was familiar with the Sicilian dialect of Italian. This was spoken at the conference with Mr and Mrs Donato. In that conference, Mr Russo said there were “some family issues with regard to the crypt or the vault” as to which “amongst the siblings there were differently held opinions”, and Mr Domenico Donato “had his opinion about these matters”. As Mr Russo recollected it, “Mr and Mrs Donato and John [ie Giovanni] were of the opinion that Mr and Mrs Mangraviti or Mrs Mangraviti in particular had not paid for their share of the crypt. Mrs Mangraviti, from my recollection, said she had contributed, but that is from memory”. Mr Russo saw it as his “job” to “try and reach some consensus”. Having regard to the functions of a solicitor in drawing up a will, it may be doubted whether Mr Russo was right to see the matter in that light. It may be thought he should have been particularly cautious, bearing in mind the ages and state of health of his clients and the absence of one of their three children, and, indeed, the departure before the conference concluded of another. It was all too possible that the so-called consensus might end up as rather a compromise which might not reflect the true wishes of one or both of the clients. Giovanni Donato, who left the conference early, made it clear at the hearing that this was his own view, and that he and his brother Antonino adhered to that view when, later, a final will was made. They were not present. At any rate, for better or for worse, Mr Russo permitted some argument of competing viewpoints to take place, and he himself described the clause he inserted in the will as representing “a compromise” of allegations made in respect of the crypt or vault by the deceased which his daughter had disputed but he had never actually retracted.

11 Although it is a clear conclusion from the evidence that the defendant was in conflict, not only with her brothers, but also with her parents, in relation to the question of the vault, the precise nature of the disagreement was not fully explored in the evidence. It appears that the defendant and her husband had some control of a vault which had been paid for by Anna and Michele Ferro and that at some stage it was proposed that Mr and Mrs Donato should have a place in that vault. However, despite more than one request that they do so, the defendant and her husband refused to confirm this in writing. Mr and Mrs Donato were concerned to ensure that the vault would be available for them and Mrs Donato eventually asked her sons Antonino and Giovanni to purchase a crypt for them, the receipts for the price of which were referred to in the 1998 and 1999 wills. It was having regard to that background that a question seems to have arisen whether provision should be made, and if so what provision, in the will of the testator to reimburse the plaintiff Giovanni and his brother Antonino in respect of the purchase of the crypt.

12 As I have said, after Mr Domenico Donato came out of hospital at the end of August he lived with his son Antonino and Antonino’s girlfriend. Within a few days, on 3 September, he suffered the great grief of the loss of his wife of nearly 50 years, and that at a time when he was himself waiting to undergo serious surgery for his cancer. His wife’s funeral followed within a few days, and then an unfortunate event occurred on or about 7 September. At that particular time, Mr Donato was still living at his son’s flat, but they went back to his own home together with his other son, Giovanni, to repair a damaged door. While they were there, Mr and Mrs Mangraviti arrived and a serious quarrel broke out. Antonino and Giovanni Donato regarded the attitude of Mr Mangraviti, who is a solidly built man, as physically threatening, and Antonino telephoned the police. But when the police arrived, they simply ordered all the warring parties, including Mr Domenico Donato himself, to leave the premises. As a result, Mr Domenico Donato was temporarily evicted from his own home because of a dispute that began when the defendant and her husband arrived to interrupt work that his sons were doing for him, and this occurred at a time when his emotional state must have been extremely fragile following the funeral of his wife. If he became angry with his daughter and her husband, that would have been a very human reaction.

13 It was at about this time (there is some inconsistency as to the precise date in the evidence) that Mr Domenico Donato spoke to his son Antonino and his solicitor Mrs Daniele about a power of attorney in favour of the defendant which Mr Russo had drawn for him at the same time as the will of 14 August 2001 was made. Mr Domenico Donato expressed shock when the full effect of this power of attorney was explained to him. He asked Mrs Daniele to prepare a revocation of it and also a fresh will. However, she made it clear she thought he ought to go back to Mr Russo, who had drawn the power of attorney and the will of 14 August 2001. For the defendant, it was argued that I should infer, in the absence of evidence on the point from her, that Mrs Daniele thought her longstanding client was now incapable of revoking the power of attorney given some three weeks before, or of making a fresh will, and therefore declined to draw the documents for him. But she did not simply decline; she referred him to Mr Russo, and specifically for the purpose of making a new will and revoking the power of attorney. Indeed, Mrs Daniele told Mr Domenico Donato, according to his son Giovanni, whose evidence I accept on this and on other issues - he impressed me as a careful and honest witness - “Mr Donato, don’t worry, you can stop the authority.” This evidence was confirmed by Mr Antonino Donato. That would suggest, not that she thought he was incapable, but that she thought he was capable and should have his problems rectified by the solicitor who had most recently taken detailed instructions from him and drawn his will and the power of attorney. In any case, I have more direct evidence on the question of capacity, and each side has called an expert to assist me in understanding it.

14 After seeing Mrs Daniele, Mr Domenico Donato went straight round to see Mr Russo with both his sons. There is, unfortunately, a conflict of evidence as to just what then occurred. According to Mr Antonino Donato, they arrived at Mr Russo’s office and Mr Domenico Donato said: “I want you to stop this power of attorney and I want to change my will”, to which Mr Russo replied: “I am too busy, make an appointment with my secretary.” Mr Antonino Donato also said that he personally attempted on several occasions to make an appointment for this purpose, but as he was unsuccessful, he subsequently made an appointment for his father with another solicitor, Mr D’Angelo. He later also spoke to Mr D’Angelo about reporting Mr Russo to the Law Society. Mr Antonino Donato’s evidence was confirmed by Mr Giovanni Donato, who added that his father at that time said to Antonino and to him: “Can one of you arrange for me to change the will? It’s not what I want, I want the will to be like the one Maria Daniele prepared for me and your mother.”

15 Mr Russo gives a different version. He says, in an affidavit made over two years after the event - the lapse of time may be significant in the case of a professional man who must in the interim have seen numerous clients and had little reason to keep thinking about this one - that “[o]n 3rd or 4th September, Mr Donato came to [his] office accompanied by his sons” when one of them requested he prepare a revocation of the power of attorney “immediately”. He “observed Mr Donato was clearly unwell”, and the affidavit continues:

“He did not speak to me directly, he appeared to be sedated and was obviously having difficulty in understanding what was being asked of me. He appeared to be confused between the Will and the Power of Attorney and was unsure of which document he wanted revoked. I do not now recollect the words spoken but I made it known to both Mr Donato and his son that I considered Mr Donato incapable of giving me those instructions upon which they both departed my office.”

16 It will be observed that this evidence is vague as to the date. Neither date given fits the other evidence, which points to the 9th of September or thereabouts. The 3rd was the date of Mrs Donato’s death, and if Mr Donato saw Mr Russo then, it would not be surprising that he might not appear to be in a normal state. But if, as I think is more likely, Mr Russo simply got the date wrong, it is apparent he did not have a dated diary note, which would be consistent with the brief meeting of which the testator’s sons give evidence. The use of the word “immediately” with reference to the revocation is also consistent with their account, as is the fact Mr Domenico Donato wanted to report Mr Russo to the Law Society, which would be a natural reaction to a refusal to see them, given the urgency of the revocation of a power of attorney, but not to a mere adverse opinion. I am satisfied their evidence as to their meeting with Mr Russo is substantially correct. He does not dispute the evidence that further attempts were made to fix an appointment, which would not be consistent with his having expressed to Mr Donato and his sons a firm view Mr Donato was now incompetent. As no one suggests the meeting lasted for more than a few minutes, he would, in any case, have had little opportunity to form the opinion stated in his affidavit. It is also not unimportant that he gave evidence this was the last occasion he saw Mr Domenico Donato, and in a letter written shortly afterwards, on 11 September 2001, on behalf of the defendant he expressed himself in more tentative terms about Mr Donato’s capacity, saying “we understand that Mr Donato Snr is now likely to be incapable of deciding his own affairs due to illness”, but making no reference to any personal observation or conclusion on that issue. On the whole I conclude that Mr Russo has mistakenly reconstructed what happened in his mind. If, of course, Mr Donato was indeed suffering some incapacity caused by sedation, that would have been in itself temporary as the defendant’s own medical witness, Dr McMurdo, made clear.

17 Having failed to secure a further appointment with Mr Russo following the abortive visit to his office, Antonino Donato made an appointment by telephone for his father to see another Italian speaking solicitor, fluent in the Sicilian dialect, Mr Angelo D’Angelo, who at the time practised at Burwood. Mr D’Angelo had not previously met Mr Domenico Donato or either of his sons. He had practised as a solicitor since 1985, as a principal for about nine years. His parents are Sicilian and spoke the Sicilian dialect to him at home. They came from the same eastern region of Sicily, not far from Catania, from which Mr Russo’s grandparents came. Mr D’Angelo was cross-examined at some length, and I found him a credible witness. He stated that he did not at any time have any difficulty understanding or speaking to Mr Domenico Donato, to whom he spoke in the Sicilian dialect, and, as to Mr Donato’s understanding, he said “I perceived he understood everything, everything I was saying to him.”

18 When Mr Domenico Donato went to see Mr D’Angelo, he was driven by his sons to the building where the office was, but they left him at the stairs and did not attend upon Mr D’Angelo with him. The evidence of Mr Donato’s sons is that he himself expressed the wish to change his will and to revoke the power of attorney and there is simply no evidence on which I could find that they persuaded him to do either of these things. When he first saw Mr D’Angelo, on 12 September 2001, a revocation of the power of attorney was immediately drawn up and executed, and it was registered by Mr D’Angelo the next day. Instructions were also taken for the drawing of a new will. Mr D’Angelo gave evidence that he did not have “any concerns about his physical health or wellbeing”, either when the instructions were taken or when the will was subsequently executed on 18 September 2001. Asked the question:

“Did you see anything or perceive or hear anything that might give you the impression that he was not competent to do a will?”

Mr D’Angelo answered:

“As a layman, no.”

Asked further:

“And as a solicitor?”

he answered:

“As a solicitor, no, I didn’t, what I was saying to him, if he did not understand, because I was saying to him ‘if you don’t understand anything I am saying to you please ask me’.”

Mr D’Angelo described carefully and appropriately going through the will with Mr Donato on the occasion of its execution, when again Mr Donato attended alone. The testator paid in cash Mr D’Angelo’s fee of $100 which covered both the will and the revocation of the power of attorney. That charge related to about three hours’ work. During his interviews with Mr Donato, Mr D’Angelo was told by Mr Donato that he was “not happy” that he had signed the will of 14 August and that he was “made” to do so having been taken by his daughter to sign it. He did not give a copy of the will of 14 August to Mr D’Angelo, but did give him a copy of the will of 1999 and of the receipts referred to in it.

19 Despite the evidence of disputes in the family, including the extraordinary dispute following the funeral of Mr Domenico Donato’s wife, which resulted in his temporary eviction from his own home, and despite the fact, independently confirmed by Mr D’Angelo, that the testator felt his daughter had “made” him execute the will of 14 August, which plainly represented a compromise he came to think wrong, if he did not always think so, the surprising thing about the will he instructed Mr D’Angelo to draw was that it appears so equitable upon its face. Mr Donato did not cut his daughter out of his will. He reinstated his original intention, as expressed in each of the wills of 1998 and 1999, of making his son Giovanni and his grandson Dominic his executors, in the event which had now happened, of his wife predeceasing him. Having regard to the bitter animosity which plainly existed between his daughter and his other son Antonino, a decision to do that, rather than to retain them in a role that would be likely to lead to problems, can hardly be criticised. This may well have been one of the matters the testator had in mind when he made the remark about wishing to go back to the will drawn by Mrs Daniele. Another respect in which he did so was to delete the legacies of $5,000 to each of his daughter and his son Giovanni, which had been introduced for the first time, probably as part of the “compromise” referred to by Mr Russo, in the will of 14 August 2001. An effect of the legacy of $5,000 to Mrs Mangraviti had been, of course, to go far towards negating the provision for the payment out of her share of $3,000 to each of his sons, the genesis of which was the problem about the crypt. Having deleted the two legacies of $5,000 that had not appeared in the earlier wills of 1998 and 1999, Mr Donato dealt afresh with the matter of the crypt. In that respect, he restored the provision in respect of interest in the 1999 will, which was both more precise and more generous than the provision made in the will of 14 August 2001. He also restored the reference to each sum of $8,800 paid by each of his sons instead of retaining the two sums of $3,000 referred to in the will of 14 August 2001. But the 1999 will had simply provided for the payment to the two sons together with interest before the division of the residual estate. That meant that two-thirds of both the principal sums and also of the interest, which was plainly intended to reflect the fact that Giovanni and Antonino Donato had been out of pocket for some three years, and might be out of pocket for much longer if Mr Donato survived treatment for his cancer, would come from Giovanni and Antonino Donato’s own shares in the estate. The solution adopted in the will of 18 September 2001 was to provide that the whole of these payments should come out of Mrs Mangraviti’s share. The effect of that, of course, was to throw upon her the full burden of the cost of the crypt. On all the evidence, I conclude that, quite clearly, this was the deceased’s intention. It was criticised as unfair, but I do not think that follows. In the first place, it is apparent, as I noted earlier, that the testator and his wife had expected, at one stage, to have a place in a vault controlled by Mr and Mrs Mangraviti and that they had been unable to obtain the written assurance which they had sought in that respect. The full circumstances are not before the court, but plainly it may be that the testator considered, rightly or wrongly, that his sons had been forced to incur an expense on his behalf which they never should have had to incur. It was certainly not incumbent upon him to be overly meticulous about a payment of such a sum as $17,600, but if he reached the broad conclusion that it would be fair to deduct that amount plus interest at the rate fixed under the Supreme Court Act for obligations found by the court to be due, this conclusion does not suggest, or tend to suggest, any lack of will making capacity.

20 In broad terms, the relevant clause of the will of 18 September 2001 supports the explanation I have just been discussing. It reads as follows:

“4. After payment of my just debts, funeral and testamentary expenses including death estate and succession duties I DIRECT my Trust Authority to make payments from the one third share of my estate that I leave my Daughter CONCETTINA MANGRAVITI (also known as TINA MANGRAVITI) unto GIOVANNI MICHELE DONATO (also known as JOHN MICHAEL DONATO) in the sum of $8,800.00 receipt number 69249 and dated 27 November 1998 together with interest as and from that date at the prescribed rate referred to in Section 95 of the New South Wales Supreme Court Act 1970 as amended (hereafter called "the interest'') and ANTONINO DONATO (also known as ANTHONY DONATO) in the sum of $8,800.00 receipt number 69248 and dated 27 November 1998 as and from that date together with interest as a result of my daughter refusing my wife and myself our rightful place in the Vault known as the Ferro and Mangraviti Vault purchased at Rookwood Cemetery for 12 people by my mother in law Anna Ferro. In consequence of this refusal a crypt for both myself and wife was purchased by GIOVANNI MICHELE DONATO (also known as JOHN MICHAEL DONATO) and ANTONINO DONATO (also known as ANTHONY DONATO) and they shall be refunded with interest these monies from her share of my estate.”

21 The remaining provisions of the will do not call for special comment, save that it gives the addresses of the executors, and in the case of the grandson, Dominic Donato, who is a son of Antonino, a wrong address is given. The address is that of his former home, before the divorce of his parents, and he had not lived there for some two years. Although Mr D’Angelo’s evidence suggests the contrary, it seems probable that he is mistaken on the point and that this error in the will arose in some fashion from the fact that the testator gave Mr D’Angelo his will of 1999. For in that will the executors are named in very much the same way, and in the same reverse order of seniority, and the same addresses are given, as follows:

“I APPOINT DOMINIC DONATO of 82 Old Kent Road, Greenacre, New South Wales and GIOVANNI MICHELE DONATO (also known as JOHN MICHAEL DONATO) of Mintaro Avenue, Strathfield …”.

In the will of 18 September 2001, this appears as follows:

“ I APPOINT DOMINIC DONATO of 82 Old Kent Road Greenacre and GIOVANNI MICHELE DONATO (also known as JOHN MICHAEL DONATO) of Mintaro Avenue Strathfield …”.

It will be observed that, not only is the same address given for the executor Dominic Donato, but the same omission occurs in the case of the executor Giovanni Michele Donato of the street number of his address. However, even if the error represented some lapse of memory or inattention on the part of the testator it would, in my opinion, weigh very lightly indeed against other evidence in the case.

22 The defendant’s case drew attention to the parlous state of the testator’s health as at 12 to 18 September 2001 and the afflictions that then beset him. His wife of many years had died on 3 September and he had attended the funeral a few days later. There is evidence, particularly from his son Antonino’s girlfriend, Maria Gatik, that at this time he frequently expressed deep grief. He seems to have developed a habit of apostrophising a photograph of his dead wife. Maria Gatik did not have a Sicilian heritage and could only speak to Mr Donato in English, but there is evidence from other members of the family to confirm the reality of Mr Donato’s sorrow. But a will is not invalid because it is made at a time of grief; indeed, the need to make a will often arises at just such a time. The question is whether Mr Donato lacked capacity, and I do not see any evidence that his grief deprived him of capacity. Indeed, it is significant that Mr D’Angelo, who spent about an hour getting instructions from him and later another hour explaining the will as it had been drafted, did not get to be told at any time in the course of those two conferences about the recency of Mr Donato’s loss. As counsel for the plaintiffs pointed out, this suggests no obsession with his bereavement was intruding into the will making activity.

23 Again, the defendant’s case placed reliance on the shadow of cancer that was hanging over Mr Donato and the imminence of his admission to hospital for a laryngectomy which would leave him unable to speak. But these matters also would have no necessary effect on his capacity to make a will. Indeed, his cancer had been diagnosed prior to the making of the will of 14 August, on an occasion when his daughter, the defendant, had herself taken him to make a will and a solicitor, Mr Russo, had not seen any difficulty about his capacity to do so. On 12 and 18 September, similarly, Mr D’Angelo saw nothing to raise any concern about that question. His instructions were clear and the explanation for the deduction from the defendant’s share suggests no disorder of the mind or failure of recollection, whether or not the circumstances would have evoked the same decision from another testator similarly placed.

24 Neither the plaintiffs nor the defendant chose to call any of the treating medical practitioners, but information from the clinical notes of Mr Donato’s general practitioner and of Royal Prince Alfred Hospital was introduced for the defendant through a consultant psychiatrist, Dr Robin McMurdo, who had never seen the deceased in his lifetime. To this evidence, the plaintiffs responded by calling another consultant psychiatrist who also had never seen the deceased in his lifetime, Dr David Bell. Dr McMurdo referred to indications in the hospital notes of lack of co-operation with nursing staff, refusal of medication and failure to stay in bed, but he conceded that behaviour of that kind “could have many possible causes” and that he did not find in the notes “anyone diagnosing or provisionally diagnosing dementia” or making “any record” of “cognitive impairment or some such thing”. The doctor considered that “[a]lmost certainly during the time he was in hospital from the notes available he was at times cognitively impaired”. But he could not say that the testator was so impaired after his discharge. He expressed the opinion that “there is a possibility, I can say no more than that, that he still had periods where he was not clearly lucidly aware”, and the doctor added: “I cannot prove that.” He conceded there was nothing in the hospital notes to indicate “that anyone was concerned about this man’s cognitive impairment or possibility thereof” and that the factors he described in relation to the testator’s behaviour in hospital “are wholly consistent with someone who was just a difficult patient, that difficulty being perhaps for a number reasons”. The comment seems appropriate that Mr Donato’s extremely limited English might well have caused problems with respect to his nursing during a stay in hospital at the age of seventy-nine and when seriously ill and also worried about his wife who was seriously ill too. The doctor agreed that there is a tendency for aged persons who have grown up speaking a different language, particularly if they are not highly educated, to regress in communication under conditions of stress such as illness. Dr McMurdo accepted that he had seen “nothing to indicate this man was being treated for depression”, or that he had been diagnosed with depression. Nevertheless, at the end of his cross-examination he expressed the view:

“All I can say is, as I mentioned earlier, there were several factors in this person’s life which led him to be depressed which was an acute grief reaction facing imminent surgery, having already been physically ill, having dissension within the family. All those factors would have affected his capacity to some degree and all I can say is to some degree to comprehend the making of the will and the understanding thereof.”

25 Dr Bell takes a different view. Having analysed in some detail the clinical notes both of the hospital and of the general practitioner, Dr Ragusa, Dr Bell finds no basis in them for any conclusion that Mr Donato was suffering from any significant cognitive impairment, whether by reason of dementia or otherwise. Among other things, he notes that a CT scan of Mr Donato’s brain done on 10 August 2001, just prior to the admission to Royal Prince Alfred Hospital, “had shown no abnormality”. In cross-examination, he distinguished between depression “in the sense of a mental illness” and depression as the normal reaction or mood involved in stress caused by the death of a wife. He made it clear that he did not think that the testator’s situation had produced depression in the sense of a mental illness. Asked about the unfortunate incident when the testator was required by the police to leave his own home following the altercation involving his children and his daughter’s husband, Dr Bell made it clear he thought the apparent reaction of the testator was “more in keeping with some action prompted by anger than by mental confusion”. On this, and on the other issues about which he gave evidence, I found Dr Bell compelling, and I prefer his conclusion, which supports the integrity of the testator’s cognitive abilities and of his capacity in the sense required for the making of a valid will, to the view of Dr McMurdo which, to my mind, attributes to the clinical notes and the circumstances a measure of weight that they do not have.

26 The law which must be applied in the determination of this case is well known. It was succinctly stated by Williams Fullagar and Kitto JJ in their joint judgment in Boreham v Prince Henry Hospital (1955) 29 ALJ 179 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.”

27 See, to the same effect, the authorities cited by Dixon J in Timbury v Coffee (1941) 66 CLR 277 at 283. In the joint judgment of the High Court (Dixon CJ, Webb and Kitto JJ) in Worth v Clasohm (1952) 86 CLR 439 it is repeatedly made clear that, in considering the question of mental capacity, the apparent rationality of the terms of the will is a matter of importance, and in the final conclusion of the court their Honours returned to this point when they said (at 452-453):

“After anxious consideration of the whole case we of opinion that there is no sufficient reason for denying that a testatrix who appeared to so many competent observers to be completely sane, and made a completely rational will [emphasis added], lacked a sound disposing mind. 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 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. It appears to us that there is ample ground for that belief in this case. Accordingly we must allow the appeal and substitute for the judgment below an order establishing the will.”

See also Bailey v Bailey (1924) 34 CLR 558 and Shorter v Hodges (1988) 14 NSWLR 698.

28 This being the effect of the raising of a doubt as to testamentary capacity, it is appropriate to state briefly what testamentary capacity requires. The law has repeatedly been stated, as Santow J stated it in Estate of Stefan Miegoch; Redroff v Miegoch (unreported, 22 November 1995), by reference to the judgment of Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565:

“It is essential to the exercise of such a power [ie the testamentary 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.”

29 Unsoundness of mind in the sense indicated by this statement of the law may come about in various ways. In the present case, age, illness, bereavement and personal stresses are relied upon. A number of other matters, such as education and linguistic problems, are relevant. But although it is legal principle, expounded in the cases, which makes all these things relevant, the ultimate decision upon them is one of fact, and the weight of a particular aspect may not necessarily be the same at the outset of the twenty-first century as it would have been in the nineteenth. The point has been made before (see the decision of Windeyer J in Kerr v Badran [2004] NSWSC 735 at [49]), but it is worth emphasising again in a case where inferences are sought to be drawn, amongst other things, from the testator’s 79 years. Modern medicine has ensured that there is no reason to infer that the testator’s brain was labouring to function in a miasma arising from malfunctioning arteries. In fact, of course, his CT scan, and the absence of any diagnosis of dementia or of possible dementia, suggested the opposite. Nor, as the medical evidence made clear, could it be inferred that if his cancer required sedation at a particular time any effects on his mental faculties would have persisted at some subsequent time.

30 It is important also to bear in mind the point made by Santow J in Redroff v Miegoch (at para 5) that, although extreme age or grave illness will provide evidence of lack of testamentary capacity, they “will only displace a prima facie case of testamentary capacity if there is evidence the Deceased’s mental facilities [scil faculties] had been so affected thereby as to make him or her unequal to the task of disposing of his or her property. That is, the decay of intelligence must have been to such an extent that the proposed testator did not appreciate the testamentary act in all its bearings … .” As Young J put it in In the Estate of Kazacos; Ryan v Kazacos (2001) 183 ALR 506 at 516: “[t]o displace a prima facie case of capacity mere proof of serious illness is not sufficient”. Similarly, in Seeley v Back [2005] NSWSC 68 Barrett J said (in para 20):

“Great age is a factor which will normally suggest the exercise of particular vigilance when considering testamentary incapacity: Bailey v Bailey (1924) 34 CLR 558. It does not follow, however, that even a marked decline in a testator’s intellectual capacity through advancing age establishes lack of testamentary capacity.”

He went on to cite a passage from Banks v Goodfellow in which Cockburn CJ said (at 566)

“In these cases it is admitted on all hands that though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains. It is enough if, to use the words of Sir Edward Williams, in his work on Executors, ‘the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done.’”


See also Mittoni v Bradley [2003] WASC 114; Hayden v Bond [2003] WASC 96 at [23]; Re Estate of Boehm; Fuggle v Sochacki [1999] NSWSC 1214 at [37], [40].

Concerning the repeated references in the authorities to the level of capacity required by the principle, I think it is important to note that the judgment of Powell JA in Read v Carmody (1998) BC 9803374 (with which Meagher JA and Stein JA agreed) cited (at 42) with apparent approval the remarks of Cockburn CJ in Banks v Goodfellow which I have just quoted referring to cases where “the mental power may be reduced below the ordinary standard ”.

31 Even if I gave quite significant weight to the propositions advanced for the defendant, I would not on the facts and in the circumstances of this case be able to conclude otherwise than that the testator had sufficient capacity in all the respects required by the principle. However, I am not persuaded as a matter of fact that the evidence does raise a doubt and, if it does, I am fully satisfied that the evidence affirmatively establishes the will of 18 September 2001 was the will of a free and competent testator who knew and understood its contents and intended to execute it, knowing those contents, as his will. The matters relied upon, whether singularly or cumulatively, do not show incapacity or impugn the due execution of the will following the careful obtaining of instructions; at most, they would provide a platform for the launching of such a case if there were evidence sufficient to support it, but there is not.

32 The only formal order I make at this stage is to direct the plaintiffs to bring in, on a date to be fixed, short minutes of orders appropriate to reflect these reasons. It will be necessary to provide for the disposition of the cross-claim and deal with the matter of costs. If there is to be argument upon these issues or either of them, I shall hear it when the short minutes are brought in.

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