Gangemi v De Vita
[2014] WASC 306
•5 SEPTEMBER 2014
GANGEMI -v- DE VITA [2014] WASC 306
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 306 | |
| Case No: | CIV:1791/2014 | 28 AUGUST 2014 | |
| Coram: | BEECH J | 5/09/14 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | ADAM PETER GANGEMI SAM ALDO DE VITA THE PUBLIC TRUSTEE AS GUARDIAN AD LITEM OF ANNA ZANNI THE PUBLIC TRUSTEE |
Catchwords: | Wills and probate Application for grant of letters of administration with the will attached Testamentary capacity Turns on own facts |
Legislation: | Nil |
Case References: | Bailey v Bailey (1924) 34 CLR 558 Banks v Goodfellow (1870) LR 5 QB 549 Bull v Fulton (1942) 66 CLR 295 Lock v Phillips [2014] WASC 92 Timbury v Coffee (1941) 66 CLR 277 West Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144 Wheatley v Edgar [2003] WASC 118 Worth v Clasohm (1952) 86 CLR 439 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
SAM ALDO DE VITA
First Defendant
THE PUBLIC TRUSTEE AS GUARDIAN AD LITEM OF ANNA ZANNI
Second Defendant
(BY ORIGINAL ACTION)
THE PUBLIC TRUSTEE
Plaintiff by Counterclaim
AND
ADAM PETER GANGEMI
Defendant by Counterclaim
(BY COUNTERCLAIM)
Catchwords:
Wills and probate - Application for grant of letters of administration with the will attached - Testamentary capacity - Turns on own facts
Legislation:
Nil
Result:
Application granted
Category: B
Representation:
Original Action
Counsel:
Plaintiff : Dr P R MacMillan and Mr J R Marzec
First Defendant : No appearance
Second Defendant : Mr L Chiat
Solicitors:
Plaintiff : Wilson & Atkinson
First Defendant : No appearance
Second Defendant : Public Trustee (WA)
Counterclaim
Counsel:
Plaintiff by Counterclaim : Mr L Chiat
Defendant by Counterclaim : Dr P R MacMillan and Mr J R Marzec
Solicitors:
Plaintiff by Counterclaim : Public Trustee (WA)
Defendant by Counterclaim : Wilson & Atkinson
Case(s) referred to in judgment(s):
Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Bull v Fulton (1942) 66 CLR 295
Lock v Phillips [2014] WASC 92
Timbury v Coffee (1941) 66 CLR 277
West Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144
Wheatley v Edgar [2003] WASC 118
Worth v Clasohm (1952) 86 CLR 439
- BEECH J:
Introduction
1 The second defendant (the Public Trustee) applies for orders that the court pronounce the force and validity of a will (the 2013 Will) executed by the late Edo Zanni (the Testator) on 27 March 2013.
2 The Testator died on 14 August 2013.
3 The 2013 Will named as executor such director or directors, as at the date of the Testator's death, of GV Lawyers Solicitors who is or are willing to act as executor and trustee of the will. Mr Pino Monaco is a director of GV Lawyers who is willing to act as executor and trustee of the 2013 Will. Mr Monaco has authorised the Public Trustee to apply for proof of the 2013 Will pursuant to s 12(2) of the Public Trustee Act 1941 (WA).
4 The Testator also left an informal testamentary document signed 4 February 2013 (the Informal Will). The Testator had executed a will dated 30 June 2006 (the 2006 Will).
5 Each of the 2013 Will, the Informal Will and the 2006 Will provided that in the event that she survived him for a stipulated period, the Testator left the whole of his property and estate to his wife, Mrs Anna Zanni. Mrs Zanni survived the Testator for more than the stipulated periods. The Public Trustee is administrator of the estate of Mrs Zanni by orders of the State Administrative Tribunal. Thus, on any of the candidates as to the Testator's will, the whole of the estate passes to his widow, Mrs Zanni.
Procedural history
6 The Testator's daughter, Ms Loredana Gangemi, lodged a caveat preventing Mr Monaco from applying for a grant of probate of the 2013 Will. Mr Monaco commenced proceedings in this court, CIV 2668 of 2013, seeking an order removing the caveat.
7 The plaintiff in this action, Mr Adam Gangemi, is Ms Gangemi's son, and so the grandson of the Testator. The plaintiff commenced this action in June 2014 seeking a grant of probate of the 2006 Will.
8 It was apparent that the dispute between those who propounded the 2013 Will and those who propounded the 2006 Will related to the question of who would be the executor or administrator of the will. As I have said, in the events that have happened, both wills make identical provision for the whole of the estate to pass to Mrs Zanni.
9 It emerged that the Public Trustee was an administrator acceptable to all parties.
10 The caveat proceedings, CIV 2668 of 2013, were resolved by consent upon terms that, upon the undertaking of the Public Trustee to propound the 2013 Will in these proceedings, Mr Monaco authorised the Public Trustee to apply for proof of the 2013 Will and Ms Gangemi withdrew her caveat against proving of the 2013 Will.
11 In this action, the Public Trustee counterclaims for a grant of probate of the 2013 Will.
12 In the circumstances, and because the Public Trustee seeks a grant of probate in solemn form, the court must be satisfied on the evidence adduced by the propounding party of the formal validity of the will and of the testamentary capacity of the Testator. The principles were explained by EM Heenan J in Wheatley v Edgar.1
13 I am satisfied that the 2013 Will was executed in accordance with the requirements of s 8 of the Wills Act 1970 (WA).
14 The plaintiff submits that I should not be satisfied that on 27 March 2013 the Testator had testamentary capacity.
Testamentary capacity - principles
15 For a testator to have had testamentary capacity, he must have had sufficient mental capacity to comprehend the nature of the act of making a will and its effects, to understand the extent and character of the property being dealt with, and to comprehend and appreciate the claims which naturally ought to press upon him in making his will. In order to understand these matters, the testator's mind must be free to act in a natural, regular and ordinary manner.2
16 The onus of proof of testamentary capacity lies upon the propounder of the will.3
17 Where a will has been executed and attested in a normal manner, a presumption arises that the testator had the required mental capacity.4 The presumption has a practical operation only in circumstances in which there is an absence of evidence respecting testamentary capacity. Once there is evidence which is 'sufficient to throw a doubt upon the testator's competency', then the onus of persuasion is on the proponent of the will.5 The question then is whether on the whole of the evidence the plaintiff has discharged its onus as to the testator's capacity.6
18 The court is entitled to have regard to the contents of the will in assessing the question of capacity.7
Did the Testator have testamentary capacity on 27 March 2013?
19 Some parts of the evidence before me are difficult to reconcile with others. Further, some parts are incomplete, and give rise to questions. The process of assessing the various parts of the evidence, analysing whether apparently contradictory evidence can be reconciled and determining what inferences can be drawn is not made easy in circumstances where there has been no cross-examination of witnesses. In the end, the question for me is whether on the whole of the evidence the Public Trustee has discharged its onus of satisfying me of the Testator's capacity at the time he executed the will.
20 Mr Monaco and Mr Napoli were with the Testator on 27 March 2013 when he executed the 2013 Will. Each of them has provided affidavits. Their evidence relates to a time at which the question of capacity is to be addressed. Further, it relates to the subject matter of that capacity, the dispositions effected by the Will. In my view, their evidence, especially the detailed factual evidence in Mr Monaco's affidavit, is worthy of substantial weight. Moreover, they were not cross-examined. I accept their evidence.
21 Viewed in the context of the whole of the evidence, the evidence of Mr Monaco and Mr Napoli satisfies me that the Testator had testamentary capacity when he executed the 2013 Will on 27 March 2013.
22 On 27 March 2013, the 2013 Will was explained to the Testator, line by line, in a way that satisfied Mr Monaco that the Testator understood the effect of the will.8
23 The 2013 Will reflects the Testator's earlier instructions at meetings in December 2012 and February 2013. At their first meeting in December 2012, the Testator told Mr Monaco that he wanted his estate left to his wife, and if she died before him, he wanted his grandchildren to share his estate. He provided Mr Monaco the names of his grandchildren.9 Mr Monaco's notes reveal that the Testator outlined his assets to Mr Monaco.10
24 The contents of the 2013 Will mirror the contents of the Informal Will signed by the Testator and witnessed by Mr Monaco on 4 February 2013. On that day, Mr Monaco went through the Informal Will line by line. At the end of that process, Mr Monaco asked Mr Zanni to express in his own words what he wanted to happen in his estate. Mr Zanni said words to the effect: I want my wife to get my estate, and if she is dead before me I want it to go to my grandchildren equally.11
25 The evidence of Dr Pavlos and Dr Felice raises questions about the competency of the Testator. On 8 February 2013, Dr Pavlos conducted a Mini Mental State Examination (MMSE). The Testator scored only 12 out of 30. However, Dr Pavlos, who had been a treating doctor of the Testator for 10 years, expressed the view that that result was hindered by language and hearing issues.
26 After examining the Testator for more than an hour, Dr Pavlos was satisfied that the Testator understood the contents of his Informal Will. However, the weight to be given to that opinion is diminished by the absence of any indication that Dr Pavlos applied the appropriate test for competency.
27 The plaintiff points out that Dr Pavlos' notes state that the Testator understands that he is dividing his property equally between the four grandchildren, and not to his daughters, when the Informal Will did not so provide. Rather, the Informal Will leaves all property to Mrs Zanni, and only if she does not survive him for 28 days does the property go to the grandchildren. This shows, the plaintiff submits, that neither Dr Pavlos nor the Testator correctly understood the basic effect of the Informal Will.
28 In circumstances where Dr Pavlos was not cross-examined, in the face of the unchallenged evidence of Mr Monaco I do not think that I can safely draw that conclusion. Competing inferences arise, and relevant factual questions have not been explored in cross-examination. It is unclear whether Dr Pavlos saw the Informal Will on 8 February 2013. In any event, his recording of the effect of the Informal Will may reflect the primary focus of what the Testator said in explaining the Informal Will. The principal substantive change between the 2006 Will and the Informal Will is that if Mrs Zanni did not survive the Testator, the estate went to the grandchildren under the Informal Will, whereas it was shared between the two daughters under the 2006 Will. That may explain why Dr Pavlos' notes focus, in effect, on the choice between leaving property to the grandchildren or to the Testator's daughters.
29 Dr Felice did not examine the Testator, but prepared a report based on the information provided to him. He outlines the Testator's medical history. He expresses the opinion the Testator could have had testamentary capacity notwithstanding his MMSE score. Dr Felice said he did not have sufficient information to say whether the Testator had capacity in March 2013. Dr Felice was not provided with the affidavits of Mr Monaco and Mr Napoli.
30 There is nothing in the contents of the 2013 Will that gives any indication in favour of incompetence. To the contrary, in circumstances where there was a bitter dispute between his daughters, the Testator's choice to leave his estate, if his wife did not survive him, to his grandchildren is entirely rational.
31 On the whole of the evidence, I am satisfied that the Testator had testamentary capacity when he signed the 2013 Will.
Conclusion
32 For these reasons, I would pronounce the force and validity of the 2013 Will. I will hear counsel as to the precise form of orders.
1Wheatley v Edgar [2003] WASC 118 [16] - [24], [28] - [30]; see also Lock v Phillips [2014] WASC 92 [32] - [33].
2Banks v Goodfellow (1870) LR 5 QB 549, 565; Timbury v Coffee (1941) 66 CLR 277, 283.
3Bailey v Bailey (1924) 34 CLR 558, 570.
4Bull v Fulton (1942) 66 CLR 295, 343; West Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144, 146.
5Bull v Fulton (343).
6Worth v Clasohm (1952) 86 CLR 439, 453.
7Bailey v Bailey (571).
8 Affidavit of Mr Monaco 4 March 2014 [70].
9 Affidavit of Mr Monaco [31], annexure PM2.
10 Affidavit of Mr Monaco annexure PM2.
11 Affidavit of Mr Monaco [48] - [50].
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