Flynn v Roccisano - [2004] VSC 346

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

Probate No. 28 of 2003

IN THE MATTER of the will of JOAN MARGARET BISHOP (Deceased)
BETWEEN:
SHIRLEY ANNE FLYNN	Applicant
V
VINCENT MARIO ROCCISANO	Respondent

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JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 August 2004
DATE OF JUDGMENT:	14 September 2004
CASE MAY BE CITED AS:	Flynn v Roccisano
MEDIUM NEUTRAL CITATION:	[2004] VSC 346

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WILLS – Probate and administration – lack of testamentary capacity – testatrix excluded her only daughter – testatrix suffered severe chronic schizophrenia – daughter persisted in measures to overcome mother’s lifelong rejection – testatrix found not to have a sound disposing mind – unable to consider and give effect to the claims of her daughter

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R. Wells	Maddens Lawyers
For the Respondent	Mr R. Phillips	V. M. Roccisano

HIS HONOUR:

These are my reasons for concluding that I should accede to an application to make an order for the revocation of a grant of probate, the revocation being warranted by reason of a lack of testamentary capacity. On 4 September 2002, a grant of probate of the will dated 15 June 1988 of Joan Margaret Bishop (“Joan Bishop”), who died on 6 December 2001 was made to Vincent Mario Roccisano (“Mr Roccisano”). The application for revocation was brought by the only child of Joan Bishop, her daughter Shirley Anne Flynn (“Shirley”).

Disputes over a will are often accompanied by bitterness and sadness. The hearing of the application for revocation before me was not bitter, but it was sad. The sadness flowed from the apparent schadenfreude effect of the schizophrenia suffered by Joan Bishop. Sadly, she seemed to benefit over the lifetime of her daughter from inflicting the pain of rejection on her daughter. She did it in a way that was troubling enough in the years of her daughter’s childhood and early marriage. She did it in spades from 1975 onwards. She did it in her will of 15 June 1988. She omitted her daughter. She made no later will.

At the hearing, evidence was given before me by Shirley Flynn, by her husband Geoffrey Flynn, by Mr Roccisano, and by Professor Daniel O’Connor. All four were credible witnesses. Shirley Flynn and Professor O’Connor were particularly impressive. There were also affidavits from Shirley Flynn and Professor O’Connor and two former neighbours of Joan Bishop, namely Ourania Kantzelis and Lance Merrett. I had the file of Mr Roccisano relating to the making of the will. I also had copies of documents extracted from hospital and medical files concerning Joan Bishop. Those copy documents had been obtained by Shirley’s lawyers from the Department of Human Services under the Freedom of Information Act. I shall refer to them as the “FOI documents”. There was a high level of consistency between information in the FOI documents and that provided by Shirley and the two neighbours.

It…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Flynn v Roccisano

Details

AGLC: Flynn v Roccisano [2004] VSC 346
Case: [2004] VSC 346
Decision Date: 14 September 2004

CaseChat Overview and Summary

The case of Flynn v Roccisano involved a dispute over the validity of a will executed by the deceased, who suffered from severe chronic schizophrenia. The deceased, the testatrix, had excluded her only daughter, the plaintiff, from her will. The daughter, the defendant, sought to challenge the validity of the will on the basis that the testatrix lacked testamentary capacity at the time of its execution. The case was heard in the Supreme Court of New South Wales. The central legal issues were whether the testatrix had the requisite testamentary capacity to execute the will and, if not, whether the will should be admitted to probate. The court had to consider the testatrix's mental state, specifically her ability to understand the nature of her act of making a will and the claims of her daughter.

The court found that the testatrix did not possess a sound disposing mind, as required by the relevant statutory provisions. The testatrix's severe chronic schizophrenia, coupled with the daughter's persistent efforts to overcome her mother's lifelong rejection, influenced the testatrix's decision to exclude her daughter from the will. The court determined that the testatrix was unable to consider and give effect to the claims of her daughter, as she was unable to comprehend the full implications of her actions. This decision was based on the testatrix's history of mental instability and her inability to appreciate the extent of her daughter's claims. The court concluded that the will did not reflect a sound disposing mind, and therefore could not be admitted to probate.

In summary, the court found that the testatrix lacked testamentary capacity due to her severe chronic schizophrenia and her inability to appreciate the claims of her daughter. Consequently, the will was deemed invalid and could not be admitted to probate. The court's decision hinged on the testatrix's mental state at the time of executing the will and her inability to consider her daughter's claims. The final order of the court was that the will of the deceased was not valid and could not be admitted to probate, leaving the daughter to potentially pursue her claim for equitable relief.

Orders