Gangemi v Monaco
[2020] WASC 183
•29 MAY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: GANGEMI -v- MONACO [2020] WASC 183
CORAM: TOTTLE J
HEARD: 18 MAY 2020
DELIVERED : 29 MAY 2020
FILE NO/S: CIV 1875 of 2019
BETWEEN: ADAM PETER GANGEMI
Plaintiff
AND
PINO ANTHONY MONACO
Defendant
Catchwords:
Wills and estates - Probate - Application for revocation of grant of probate - Whether testator had testamentary capacity - Where testator suffering from Alzheimer's-type dementia - Where evidence establishes suspicion that testator lacked testamentary capacity - Where no evidence called to rebut suspicion - Where Court positively satisfied that the testator lacked testamentary capacity - Grant of probate revoked
Wills and estates - Probate - Grant of probate in solemn form - Where earlier will duly executed - Where capacity only lost after the making of earlier will
Legislation:
Supreme Court Act 1935 (WA), s 18
Wills Act 1970 (WA), s 8
Result:
Grant of probate in common form for will executed 27 March 2013 revoked
Grant of probate in solemn form for will executed 30 June 2006 granted
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr P Mendelow |
| Defendant | : | No Appearance |
Solicitors:
| Plaintiff | : | Zafra Legal |
| Defendant | : | GV Lawyers |
Case(s) referred to in decision(s):
Attwell v Morgan [2019] WASC 182
Banks v Goodfellow (1870) LR 5 QB 549
Boughton v Knight (1873) LR3P&D 64
Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295
Estate of Rogers v Rogers [2009] WASC 358
Gangemi v De Vita [2014] WASC 306
King v Hudson [2009] NSWSC 1013
Lacerenza v Calautti [2005] WASC 46
Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275
Power v Smart [2018] WASC 168
Re Griffith; Easter v Griffith (1995) 217 ALR 284
Saunders v Public Trustee [2015] WASCA 203
Silvester v Tarabini (Unreported, WASC, Library No 960062, 13 February 1996)
The Public Trustee v Nezmeskal [2018] WASC 394
Timbury v Coffee (1941) 66 CLR 277
Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757
Veall v Veall [2004] VSCA 204
Waring v Waring (1848) 6 Mood PC 341
Wheatley v Edgar [2003] WASC 118
Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439
TOTTLE J:
Introduction
Anna Maria Zanni died on 1 March 2019, aged 91 years. This case is concerned with two wills made in her lifetime, the first on 30 June 2006 (2006 Will) and the second on 27 March 2013 (2013 Will).
Mrs Zanni had been diagnosed with Alzheimer's-type dementia in 2011. The primary issue before the Court is whether Mrs Zanni had testamentary capacity at the time she executed the 2013 Will and, if she did have that capacity, whether she knew and approved of the contents of the 2013 Will.
Background
Mrs Zanni and her husband, Edo, emigrated from Italy to Australia in the early 1950s. They had two daughters, Ms Loredana Gangemi and Ms Manuela Sparta, who have survived them. There is a history of discord between Ms Gangemi and Ms Sparta. Ms Gangemi has two children, Adam and Marc. Mr Adam Gangemi is the plaintiff in these proceedings. Ms Sparta has two children, Josephine and Salvatore. During their working lives Mrs Zanni and Mr Zanni owned a number of small businesses.
Mrs Zanni began showing a noticeable decline in her memory some time in 2010. A formal diagnosis of dementia was made in 2011. Mrs Zanni's condition was degenerative and her problems with memory and cognition progressively worsened until her death in 2019.
The 2006 Will and the 2013 Will are the only wills known to have been made by Mrs Zanni. I will explain the effect of the wills in these reasons. As is usual, the 2013 Will was stated to have the effect of revoking any former wills and testamentary dispositions. Under the 2006 Will the plaintiff was one of two nominated executors, the other being Mr Sam De Vita. Mr De Vita has renounced any right to probate under the 2006 Will.
The defendant is one of the class of persons nominated to act as executor under the 2013 Will. On 21 March 2019 he filed a motion in this Court for a grant of probate for the 2013 Will. On 29 March 2019 probate was granted to the defendant as the executor under the 2013 Will.
On 17 May 2019 the plaintiff commenced the present proceedings seeking revocation of the grant of probate made in respect of the 2013 Will and orders pronouncing the force and validity of the 2006 Will. By an amended statement of claim the plaintiff also seeks a declaration that Mrs Zanni did not have testamentary capacity at the time she executed the 2013 Will.
The defendant has filed a notice of intention to abide the outcome of these proceedings. I note that in Gangemi v De Vita,[1] a case concerning the will of the late Mr Edo Zanni, in which his testamentary capacity was in issue, the defendant gave detailed factual evidence about steps taken to establish Mr Zanni's capacity to which the trial judge attached substantial weight. It is puzzling that no such evidence has been adduced in this action. In any event, notice of the defendant's intention to abide and notice of these proceedings has been provided to all of the beneficiaries under the 2013 Will.[2]
The 2006 Will
[1] Gangemi v De Vita [2014] WASC 306.
[2] Exhibit 1.
The 2006 Will was executed on 30 June 2006. The 2006 Will was witnessed by Claire Herts, a personal assistant, and by Jane Carrott, a securities clerk. There was no evidence before the court as to the relationship between Mrs Zanni and these two witnesses. Other than a copy of the executed 2006 Will, there was no further evidence before this Court touching upon the making of the 2006 Will.
The operative terms of the 2006 Will can be summarised as follows:
(a)if Mr Zanni were to survive Mrs Zanni for a period of 28 days then Mr Zanni would be the sole executor and beneficiary of Mrs Zanni's estate;
(b)if Mr Zanni predeceased Mrs Zanni or if Mr Zanni did not survive Mrs Zanni for a period of 28 days, then the plaintiff and Mr De Vita would be appointed executors of Mrs Zanni's estate;
(c)the sum of $50,000 would be paid to each of Mrs Zanni's grandchildren Adam, Marc, Josephine and Salvatore;
(d)the sale proceeds of a property located in the Perth suburb of Dianella would be paid in equal shares to Ms Gangemi and Ms Sparta.
(e)the remainder of the estate would be paid to Ms Gangemi.
The 2013 Will
The 2013 Will was executed 27 March 2013. The 2013 Will was prepared by GV Lawyers, the firm of solicitors of which the defendant is a member. The witnesses to the 2013 Will were the defendant and Gordon Hedley Bragg, a solicitor.
The operative terms of the 2013 Will can be summarised as follows:
(a)a director or directors of GV lawyers would be appointed as the executors of Mrs Zanni's estate;
(b)if Mr Zanni survived Mrs Zanni for a period of 30 days then Mrs Zanni's estate would be left to Mr Zanni after the payment of debts, funeral and testamentary expenses;
(c)if Mr Zanni predeceased Mrs Zanni or did not survive Mrs Zanni for a period of 30 days then Adam, Marc, Josephine and Salvatore would be the sole beneficiaries.
The evidence concerning the making of the 2013 Will and Mrs Zanni's capacity
In relation to testamentary capacity the plaintiff relied on the following affidavits:[3]
(a)an affidavit of Ms Loredana Gangemi sworn 9 December 2019;
(b)an affidavit of Dr Anthony Brisbout sworn 17 December 2019;
(c)an affidavit of Mrs Alida De Pellegrin sworn 18 December 2019; and
(d)an affidavit of Dr Chris Pavlos sworn 19 December 2019.
The medical evidence
Dr Anthony Brisbout
[3] The plaintiff relied on an affidavit sworn by him on 20 December 2019 but that dealt with formal matters only and there is no need to refer to it.
Dr Brisbout is a medical practitioner who has specialised in geriatric medicine and rehabilitation for over 30 years. Between 1998 and 2018 he held the position of Senior Medical Officer/Healthcare Medical Practitioner at the St John of God Hospital, Mount Lawley, which he described as a division of the Inner City Aged Care Service, Royal Perth Hospital.
Dr Brisbout first reviewed Mrs Zanni in June 2011. In a letter dated 21 July 2011, reporting on the review, Dr Brisbout recorded that Mrs Zanni presented with a history of over 12 months of reduced memory and that she was repetitive and forgetful. Dr Brisbout recorded that Mrs Zanni had 'emerging' Alzheimer's-type dementia and scored 20/30 on a Mini Mental State Examination (MMSE), with 0/3 on recall and was unable to put in the hands on a clock face.
Dr Brisbout reviewed Mrs Zanni again on 24 August 2011. In a letter dated 24 August 2011, reporting on the review, Dr Brisbout recorded that it looked as if Mrs Zanni would not respond to treatment. Mrs Zanni's MMSE score on this occasion was 16/30.
Dr Brisbout reviewed Mrs Zanni in October 2011 and noted that her daughter mentioned that Mrs Zanni had some emotional lability and irritability. She achieved an improved MMSE score of 23/30 when tested.
Dr Brisbout reviewed Mrs Zanni again in February 2012 and assessed her as 'still independent with basic self-care but increasingly inert ... with an improvement in her emotional lability'.
On 20 February 2013 Dr Brisbout prepared a letter addressed to 'To Whom It May Concern' recording his assessment of Mrs Zanni. The letter read as follows:
Mrs Zanni was originally seen in the Memory Service in July 2011, where it was documented that she had moderate Alzheimer's type dementia. She was followed up over the subsequent eight months and her memory was seen to have progressively declined over this time, consistent with her background dementing process. She only copes at home with extensive input and support from her family and carers and it [sic] quite vulnerable. She requires assistance and supervision with all ADL tasks.
In his affidavit Dr Brisbout commented on his description of Mrs Zanni's condition contained in his letter of 20 February 2013. He said that Mrs Zanni's condition was typified by a particular problem with memory, this being 'consistent with Alzheimer's-type dementia, impairing the cognitive functions also associated with judgment and tasks involving evaluative reasoning such as estate planning'.
Dr Brisbout attached to his affidavit the records relating to an aged care assessment of Mrs Zanni, prepared by the Royal Perth Hospital Aged Care Assessment Team in July 2013. These included an Aged Care Client Record which recorded that Mrs Zanni required 'full assistance, prompting and supervision with all tasks', that she was unable to shower on her own and had forgotten the process of showering and she voided and defecated inappropriately and that she did not understand money. Dr Brisbout considered that the symptoms recorded in the assessment suggested severe impairment of judgment and insight consistent with Alzheimer's-type dementia.
Dr Brisbout reviewed Mrs Zanni again on 29 August 2013. In a letter reporting on this review he recorded:
[Ms Zanni] performed an MMSE test with the interpreter Mrs Russo and she scored 18/30, scoring 0/3 on recall and only 1/5 subtracting serial 7s from a 100. She was orientated to place and was aware of her home address. She was unaware of the year but knew what the time and month was. On further discussion it was evident that she was aware that she had 2 children and 4 grandchildren and that she owned her own house. She was unsure of the financial value of the house and seemed generally unaware of the details of her finances. It was evident that she did not have financial capacity. On asking Ms Zanni she appeared to re-state that she got on well and valued both her daughters and her whole family and that any possessions she had should be distributed equally between her dependents. She did not appear to have any depression or psychotic thought processes and appeared under no duress or pressure in this regard.
Dr Brisbout completed a Doctor's Guide form on 10 September 2013 for the purposes of an application to the State Administrative Tribunal. In this form Dr Brisbout recorded that:
[The] patient seems able to have some input into her living circumstances. Does not know specifics of financial circumstances or details but has some general awareness and seems able to have some general input. Depends on complexity and details of the financial decision.
In his affidavit Dr Brisbout explained that at the time of the application to the State Administrative Tribunal Mrs Zanni may have been capable of undertaking 'an incredibly minor or trivial financial decision where accuracy was unimportant, such as giving $5.00 dollars for a newspaper or providing a birthday gift to a grandchild … However, anything other than undertaking an incredibly minor or trivial financial decision would have, in [his] assessment, been beyond [Mrs Zanni's] abilities at the time in question.' He recalled that at the review on 29 August 2013 Mrs Zanni did not know anything at all about her bank accounts, and remembered owning a house but had no concept of its worth.
In his affidavit Dr Brisbout was careful to stress that he had not been called upon to perform a 'will assessment' at any stage during Mrs Zanni's time as his patient. He had not personally observed Mrs Zanni on 27 March 2013 and thus it was impossible for him to be certain as to her testamentary capacity on that date. Dr Brisbout concluded, however, that on what he did know of the deceased's condition around that time he had significant doubts as to her capacity to understand the nature and extent of her property by reason of the degenerative nature of her neurological disorder on that date.
There were four factors that contributed to Dr Brisbout's opinion about Mrs Zanni's capacity to understand the nature and extent of her property. The first was Dr Brisbout's consistent finding that Mrs Zanni had extremely poor memory. The second was that Dr Brisbout was certain that Mrs Zanni had lost financial capacity by 29 August 2013 at the latest. The third was it was highly unlikely that if, as at 29 August 2013, Mrs Zanni did not have financial capacity, then, as at 27 March 2013, her mental capacity would have been much different. In respect of the third factor, Dr Brisbout expressed his opinion with specific reference to the requirement that a testator must understand the extent of the property they are disposing of to have testamentary capacity. It was Dr Brisbout's view that: it is likely that Mrs Zanni had lost this aspect of testamentary capacity by the time of his earliest attendance on her in July 2011; increasingly likely that Mrs Zanni had lost this aspect of testamentary capacity by the time of his attendance on her in February 2012; and very likely that she had lost this aspect of testamentary capacity by 27 March 2013. The fourth factor was that Mrs Zanni required assistance with tasks of daily living in February 2013 which was indicative of highly advanced dementia at that time.
Dr Chris Pavlos
Dr Pavlos has worked as a general medical practitioner for some 34 years. Between 1999 and 2013 he was Mrs Zanni's general medical practitioner. For this purpose he maintained medical notes in which he recorded details of his consultations with her.
In January 2011 Mrs Zanni consulted Dr Pavlos and expressed concerns about her memory. She consulted him again in February 2011 complaining that her memory was failing and that her short-term memory was poor. Dr Pavlos referred Mrs Zanni to the Memory Clinic of the Inner City Aged Care Service where Mrs Zanni was assessed by Dr Roger Warne on 24 February 2011. Dr Warne identified cognitive deficits that he considered, 'may reflect senile dementia of Alzheimer's type/underlying cerebral vascular disease'.
Dr Pavlos had 11 consultations with Mrs Zanni between June 2011 and April 2013. In that time he did not make any specific notes in relation to her cognitive impairment. He observed, however, that during that period Mrs Zanni's cognitive condition deteriorated. She was visibly slower to speak, to understand routine questions and to formulate responses to those questions.
On 22 July 2013 Dr Pavlos completed a pro forma State Administrative Tribunal Doctor's Guide in respect of Mrs Zanni. In that form he recorded that he had last seen Mrs Zanni on 2 April 2013. Dr Pavlos answered the standard questions contained in the pro forma report, which were directed to whether Mrs Zanni could make reasonable decisions in relation to personal health care, her living situation and her financial affairs, in the negative. Dr Pavlos recorded his view that Mrs Zanni did not have the capacity to execute a valid Enduring Power of Attorney.
In his affidavit Dr Pavlos stated that he was certain that by 2 April 2013 Mrs Zanni had lost the cognitive reasoning capacity for decisions as to her personal health care, decisions as to her living situation and decisions as to her financial affairs and decisions as to executing an enduring power of attorney. He expressed the following opinions:
45.In my opinion, it is certain that on 2 April 2013, Mrs Zanni had also lost the cognitive reasoning capacity to understand the extent of her property for the purposes of making a will.
46.There is an open question as to whether Mrs Zanni's dementia constituted a disorder of the mind which prevented the exercise of her natural faculties; however, in the absence of conducting a will assessment, I do not believe that I am able to provide an opinion on that particular aspect of the testamentary capacity criteria.
47.I believe that it is highly unlikely that, six days prior to 2 April 2013 on 27 March 2013, Mrs Zanni possessed the cognitive reasoning capacity that I personally observed she lacked on 2 April 2013.
48.This lack of cognitive reasoning would, in my opinion, have precluded Mrs Zanni from understanding the extent of the property she would be disposing of in any will on 27 March 2013, as it is relevant to the second requirement for testamentary capacity to make a will.
The lay evidence
Ms Loredana Gangemi
As recorded earlier Ms Gangemi is one of Mrs Zanni's two daughters. In 2010 she noticed that her mother was becoming increasingly forgetful. Ms Gangemi gave the example that she had visited her parent's home and noticed cooking pots burned black on the stove, Ms Gangemi said that when she questioned her mother about the issue, Mrs Zanni responded 'oh, I forgot'. Another example that Ms Gangemi gave was that on a number of occasions she observed her father asking her mother to bring him a glass of water, and by the time her mother had walked from the living room to the kitchen, she had forgotten. Ms Gangemi gave other examples but it is unnecessary to refer to them.
Ms Gangemi recorded that Mrs Zanni's condition worsened in 2012 and that she became extremely forgetful in relation to names, dates and events. By the end of 2012 Ms Gangemi observed several occasions on which her mother's understanding of the value of money appeared to be compromised. Mrs Zanni was unable to select the correct amount of cash to pay for purchases when shopping. Ms Gangemi noticed that her mother's personal hygiene began to deteriorate in late 2012.
Ms Gangemi said Mrs Zanni was fluent in Italian which was the main language spoken in their household. Mrs Zanni had a conversational understanding of the English language and could speak, read and write in English without difficulty. Ms Gangemi's evidence was that following Mrs Zanni's dementia diagnosis in 2011, and in particular from 2012 onwards, Mrs Zanni's recall of the English language deteriorated and she spoke almost exclusively in Italian.
In December 2012 Ms Gangemi and her husband went on vacation to Europe. Before leaving Ms Gangemi had made arrangements for her mother to be cared for by Silver Chain and by a friend Mrs Alida De Pellegrin. On visiting her parents upon returning from vacation Ms Gangemi noticed a trust account receipt from GV Lawyers. She asked her father about the receipt and he responded by telling her that her sister had organised for her parents to have new wills prepared. On 22 January 2013 Ms Gangemi sent an email to the defendant in which she informed him that Mrs Zanni had been diagnosed with Alzheimer's disease some time ago and could not recall the defendant calling out to see her. Ms Gangemi complained that her sister was attempting to influence her parents whilst she was overseas and that her father had told her that her sister and the defendant were friends. Ms Gangemi stated she wanted to know from the defendant what enquiries he had made to check that her parents were of 'sound mind' to be able to make wills.
The defendant responded to Ms Gangemi's emails and explained the circumstances in which he had attended on Mrs Zanni and her husband. He stated he was not a friend of her sister and rejected the allegation that he had acted in an unprofessional manner. Ms Gangemi responded to the defendant's email and, among other matters, reiterated her view that her parents were not of sound mind.
In her affidavit Ms Gangemi deposed that:
65.By the end of 2012 and when I returned from holiday to see her in January 2013, I personally observed that my mother was regularly:
65.1forgetting scheduled appointments;
65.2forgetting to take her medication;
65.3forgetting to attend to matters of basic personal hygiene, including showering and changing her clothes;
65.4forgetting simple requests or questions on the matter of moments, such as a request by me to speak to my father on the telephone;
65.5wandering if left unattended in public places;
65.6getting lost in places that were well known to her, such as shopping centres; and
65.7offering obviously incorrect sums of money to cashiers for shopping transactions.
Mrs Alida De Pellegrin
Mrs De Pellegrin deposed that she had been a very close friend of Mrs Zanni for over 30 years. They spoke the same dialect of Italian. She said she spoke to Mrs Zanni almost every day on the telephone and visited Mrs Zanni and her husband at their home on a weekly basis. In summary, Mrs De Pellegrin deposed that before Mrs Zanni was afflicted by dementia she found that Mrs Zanni was a very intelligent and confident woman but that as her illness progressed she became less so and 'did whatever she was told'.
Mrs De Pellegrin deposed that she visited Italy in 2010 to visit her mother who was unwell. She said she spoke to Mrs Zanni on the telephone and noticed that there was something amiss when in one telephone conversation Mrs Zanni insisted that Mrs De Pellegrin 'come back, come back home'. She considered this to be out of character for Mrs Zanni.
In 2011 Mrs De Pellegrin travelled to Italy again because her mother had passed away. She deposed that she told Mrs Zanni what the purpose of her trip was before she left and that she spoke to Mrs Zanni by telephone from Italy on a number of occasions and told her what was happening. When Mrs De Pellegrin returned to Perth and spoke to Mrs Zanni, Mrs Zanni had forgotten why Mrs De Pellegrin had gone to Italy and had forgotten the telephone conversations that had taken place when Mrs De Pellegrin was in Italy.
Mrs De Pellegrin said that in the period of 2011, 2012 and 2013 she observed that Mrs Zanni regularly forgot the names of family members and places and that on one occasion when discussing Mrs Zanni's problems with memory Mrs Zanni began to cry and said, 'yes, I know - I forget things'.
The jurisdiction to revoke a grant of probate
The application for revocation of the grant of probate is made in reliance upon the Court's jurisdiction under s 18 of the Supreme Court Act 1935 (WA) or in its inherent jurisdiction.
The Court has a broad jurisdiction in probate matters under s 18 of the Supreme Court Act. The jurisdiction includes the power to revoke a grant of probate. The circumstances under which revocation of a grant of probate or letters of administration may be made may be divided into two broad categories, see: Estate of Rogers v Rogers.[4] The first, of relevance for present purposes, is where it is discovered that there is some error in the grant or where the grant should not have been made. The second category includes revocations made necessary or desirable to ensure the due administration of the estate.
[4] Estate of Rogers v Rogers [2009] WASC 358 [23].
Principles applicable to the determination of testamentary capacity
Testamentary capacity is determined by the application of the test stated by Cockburn LCJ in Banks v Goodfellow:[5]
It is essential to the exercise of [a 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 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.
[5] Banks v Goodfellow (1870) LR 5 QB 549 at 565; Saunders v Public Trustee [2015] WASCA 203 [154] - [171]; The Public Trustee v Nezmeskal [2018] WASC 394; Attwell v Morgan [2019] WASC 182 [67]; Power v Smart [2018] WASC 168.
The Banks v Goodfellow approach does not require perfect mental acuity and memory. Even if a person's mental faculties are impaired, testamentary capacity will exist, provided the person retains 'sufficient intelligence to understand and appreciate the testamentary act in its different bearings'.[6]
[6] Banks v Goodfellow (566); Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275.
Conformably with the proposition set out in the preceding paragraph the courts do not overlook the fact that many wills are made by people of advanced years in whom slowness, illness, feebleness and eccentricity may sometimes be apparent. These features are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will.[7]
[7] Re Griffith; Easter v Griffith (1995) 217 ALR 284 [295]; Petrovski v Nasev [247].
When determining testamentary capacity the Court needs to be satisfied that the deceased had the capacity: to remember, so that she can call to mind the property at her disposal and those who may have claims upon her; to reflect, so that she can consult within herself on the relative weight of their claims; and to reason, so that she can judge, having regard to her assets, how far, if at all, she should give effect to them.[8]
[8] King v Hudson [2009] NSWSC 1013 [51]; In the Will of Wilson [1897] 23 VLR 197, 199; Timbury v Coffee (1941) 66 CLR 277, 280 (Rich ACJ); Silvester v Tarabini (Unreported, WASC, Library No 960062, 13 February 1996) 17 - 18.
It must be remembered, however, that the question is whether the deceased had the capacity of sound judgment, not whether she, in fact, made the judgment about her disposition of the estate by will soundly, and for reasons which might appear to the observer to be appropriate.[9]
[9] Petrovski v Nasev [252].
It is not necessary to establish that the deceased was capable of understanding all the clauses of the disputed will. An appreciation of the legal effect of every clause in a will is unnecessary. What must be established is that the deceased understood that she was executing a will and the practical effect of the central clauses in that document, including the dispositions of property made and the implications for the estate of the appointment of those who are to administer it.[10]
[10] Petrovski v Nasev; Nicholson v Knaggs [2009] VSC 64 [97].
In determining testamentary capacity, consideration should also be given to the nature of the subject will itself, regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries.[11] An unexplained and significant departure from testamentary intentions recorded in earlier wills may raise doubts about testamentary capacity.[12]
[11] Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, 571.
[12] Bool v Bool [1941] St R Qd 26, 39.
If the will is rational on its face and is proved to have been duly executed, there is a presumption that the deceased was mentally competent.[13]
[13] Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757; Veall v Veall [2004] VSCA 204 [167].
Once the propounder has proved that the deceased had testamentary capacity and that the will was duly executed, a further presumption arises that the deceased knew and approved the contents of the will.[14]
[14] Veall v Veall [169].
The presumptions of testamentary capacity and knowledge and approval may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity (sometimes expressed in terms of a 'well-grounded suspicion that the instrument might not express the will of the testator')[15] or a doubt the testator might not have appreciated the contents of the will and approved them. Circumstances that raise such doubts shift the evidential burden to the party propounding the will to show that the testator was of 'sound disposing mind' and knew and approved the contents of the will.[16] Those doubts, unless resolved on a consideration of the evidence as a whole, may be sufficient to preclude the court being affirmatively satisfied as to testamentary capacity and knowledge and approval of the contents of the will.[17] Thus, where it appears that the deceased suffered from any medical condition which affected testamentary capacity, the onus is on the propounder of the will to show that the deceased's mental state did not influence the will.[18] A residual doubt is, however, not enough to defeat a claim for probate unless it is felt by the Court to be substantial enough to preclude a belief that the document propounded is the last will of a free and capable testator.[19]
[15] Veall v Veall [171].
[16] Veall v Veall [169]; Waring v Waring (1848) 6 Mood PC 341; Lacerenza v Calautti [2005] WASC 46 [113].
[17] Veall v Veall [166] - [171].
[18] Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295; Veall v Veall [168].
[19] Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439 at 452 - 453.
Decisions about 'testamentary capacity' and 'knowledge and approval' are necessarily fact sensitive. Ultimately, whether the deceased possessed the requisite capacity and knew and approved the terms of her will are questions to be determined upon all of the facts established in the case and not solely by reference to the medical evidence.[20]
[20] Boughton v Knight (1873) LR3P&D 64, 67; King v Hudson [2009] NSWSC 1013.
The plaintiff did not dispute that the 2013 Will was duly executed and rational on its face and that it was thus for the plaintiff show that a suspicion arises as to Mrs Zanni's testamentary capacity at the time the 2013 Will was executed.
Analysis and disposition
Taken both individually and in combination, the medical evidence and the lay evidence raise a serious doubt about Mrs Zanni's testamentary capacity - a doubt that displaces the presumption of regularity that arises from the fact that the 2013 Will was rational in terms of its provisions, and properly executed in the presence of two solicitors.
The evidence of both Dr Brisbout and Dr Pavlos was to the effect that by March 2013 Mrs Zanni had lost the cognitive capacity to understand the extent of her property and had lost the cognitive reasoning capacity required to make a valid will. The weight of this evidence is reinforced by the evidence from Ms Gangemi and Mrs De Pellegrin about the difficulties encountered by Mrs Zanni with the tasks of everyday life. Mrs Zanni's inability to manage the basic aspects of life supports the view that her judgment and her ability to reason were profoundly impaired by her illness.
On the basis of the evidence adduced in this action I am positively satisfied that Mrs Zanni did not have testamentary capacity at 27 March 2013. I consider that it is unlikely that she had an understanding of the extent of her property. I also consider it unlikely that Mrs Zanni had the cognitive reasoning capacity to make a valid will or that she had the capacity to form a proper appreciation of the terms of the 2013 Will.
Accordingly, the grant of probate in respect of the 2013 Will should be revoked.
The next issue is whether probate should be granted in respect of the 2006 Will.[21] The terms of the 2006 Will are rational. The 2006 Will has been executed in accordance with the provisions of s 8 of the Wills Act 1970 (WA). In those circumstances there is a presumption of testamentary capacity that is not displaced by any evidence of mental infirmity on the part of Mrs Zanni - she did not report being adversely affected by her illness until 2010. Probate should be granted to the plaintiff in respect of the 2006 Will.
[21] The relevant principles were explained by EM Heenan J in Wheatley v Edgar [2003] WASC 118.
I will hear counsel as to the precise terms of the orders to be made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Associate to the Honourable Justice Tottle29 MAY 2020
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