In the Estate of AMELIA FRANCESCA BAGNARA (DECEASED) - [2011] SASC 244

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of AMELIA FRANCESCA BAGNARA (DECEASED)
[2011] SASC 244
Reasons for Decision of The Honourable Justice Gray
23 December 2011
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - SOUTH AUSTRALIA - NO REASONABLE DOUBT THAT MAKER INTENDED DOCUMENT AS WILL
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY
Application seeking an order pursuant to section 12(2) of the Wills Act 1936 (SA) that a document dated 22 June 2004 be admitted to probate as the last Will of the deceased - where the formalities of section 8 of the Wills Act had not been met - whether the deceased had testamentary capacity at the time of execution of the document - whether the requirements of section 12(2) of the Wills Act were satisfied.
Held: Application granted - the deceased was of sound mind in September 2004 and it was inferred that she was of sound mind and capable of making a testamentary disposition at the time of execution of the propounded document - the document dated 22 June 2004 admitted to probate.
Wills Act 1936 (SA) s 8 and s 12(2), referred to.
Tsagouris v Bellairs (2010) 269 LSJS 451; Public Trustee of Western Australia v Parish of Saints Apostles Peter and Paul [2009] WASC 75; Wheatley v Edgar [2003] WASC 118, considered.

In the Estate of AMELIA FRANCESCA BAGNARA (DECEASED)
[2011] SASC 244
Testamentary Causes Jurisdiction
GRAY J.

In the within proceedings, an order is being sought pursuant to section 12(2) of the Wills Act 1936 (SA) that a document dated 22 June 2004 be admitted to probate as the last Will of the deceased, Amelia Francesca Bagnara.
The applicant, Peter Bagnara, is the son of the deceased and the sole executor named in the document of 22 June 2004.
Directions were given that the proceedings were to proceed by way of pleadings and as a consequence a statement of claim, a defence and a reply were filed. The defence asserted, inter alia, that the deceased lacked testamentary capacity. In that respect, it was alleged:
The respondents deny the assertions contained in paragraph 1.3 of the statement of claim that the deceased had a testamentary capacity to understand and execute the document. Even if the deceased did have such capacity (which they deny) there is no suggestion that the purported will was read or translated to her.
The deceased was 91 years of age as at 22 June 2004. She was effectively housebound, frail, in ill-health, socially isolated, had limited English language skills and was largely illiterate in the English language. She had, in recognition of her declining capacity, granted her general power of attorney to the applicant on 27 October 1997 (“the power of attorney”).
As a result of Fabian’s actions in forbidding the respondents to attend at the house the deceased was denied the benefit of close female companionship and confidence from the respondents and was liable to become confused as result of the removal of long-standing family support.
The purported will is inconsistent with a comprehension or appreciation of the deceased’s relationship with the respondents and the claims to which she ought to give effect.
By 2008 the deceased was so frail that she was unable to sign her own name or be aware of her own surrounding circumstances. Consequently, on the 3 October 2008 the applicant executed a transfer of the deceased’s house to Fabian for consideration pursuant to the power of attorney.
The deceased was in all the circumstances prevented from the exercise of her natural faculties so as to lack testamentary capacity. In the premises the deceased lacked testamentary capacity to execute a will as at 22 June 2004.
The applicant joined issue with these assertions in his reply.
During the course of a directions hearing prior to trial, the Court was informed that the parties had resolved their differences and that the respondents would not oppose the admission to proof of the document of 22 June 2004. The applicant accepted, however, that the parties’ agreement that a document be admitted to proof was insufficient. The applicant accepted the Court had to be satisfied that section 12(2) should be invoked and further that at the time of the signing of the Will, the deceased had testamentary capacity.
Section 12(2) of the Wills Act provides:
Subject to this Act, if the Court is satisfied that—
(a) a document expresses testamentary intentions of a deceased person; and
(b) the deceased person intended the document to constitute his or her will,
the document will be admitted to probate as a will of the deceased person even though it has not been executed with the formalities required by this Act.
The applicant referred to several affidavits in support of his case. There was no objection to the Court acting on this material. When the within proceedings were resolved the respondents did not challenge probate being granted in respect of the document of 22 June 2004. The defendant did not pursue the allegations of testamentary incapacity.
I turn now to testamentary capacity. Once an issue of testamentary capacity has been raised before the Court that issue needs to be addressed and resolved. The Court has an obligation to be satisfied that the deceased had testamentary capacity and even though the allegation has been withdrawn, evidence should be placed before the Court to establish testamentary capacity. In Tsagouris v Bellairs, I observed:[1]
… In proceedings such as the present, the court cannot ignore issues regarding testamentary capacity once raised inter partes.[2] Despite withdrawal, the allegations still warrant a vigilant examination by the Court of the whole of the evidence which the parties place before it.[3] …
[1]    Tsagouris v Bellairs (2010) 269 LSJS 451, [12].
[2]    See Public Trustee of Western Australia v Parish of Saints Apostles Peter and Paul [2009] WASC 75 (Simmonds J); Wheatley v Edgar [2003] WASC 118 (EM Heenan J).
[3]    Public Trustee of Western Australia v Parish of Saints Apostles Peter and Paul [2009] WASC 75 at [39].
The deceased, at or about the time of signing the 2004 document, was involved in proceedings in this Court in relation to a claim being made in respect of the estate of the deceased’s daughter. In the course of those proceedings, the deceased swore an affidavit. The solicitor who acted in those proceedings, in the present proceedings attested to the capacity of the deceased in September of 2004. The solicitor had drafted the affidavit in accordance with instructions that she had taken from the deceased. To that end, she attended at the home of the deceased with an interpreter. The solicitor then prepared the affidavit and made arrangements to attend the deceased’s home to have the affidavit sworn. An interpreter attended. The solicitor, the interpreter and the deceased were the only persons present. The solicitor has deposed as follows:
I remember that the deceased appeared to understand what I was saying to her in English during our meeting, but she was not able to respond to me in English. The interpreter translated the affidavit to the deceased in Italian, and the deceased indicated to me through the interpreter that she swore the contents of the affidavit to be true and correct.
I remember that the deceased told me she was very close to Mr Zampese, and that they looked after each other.
I make the following findings on the basis of the evidence before this Court: that the deceased instructed the applicant to arrange for the preparation of the Will; that the applicant relayed those instructions, through an intermediary, to the solicitors who prepared the Will; that the Will was prepared in accordance with those instructions; that the Will was presented by the applicant to the deceased for her signature; that, despite the document being dated 22 June 2004, the Will was signed by the deceased on a day between 30 June 2004 and 19 July 2004; that the signature of the testator on the Will is the signature of the deceased and is in the handwriting of the deceased; and, that the Will expresses the testamentary intentions of the deceased.
This evidence has satisfied me that the deceased was of sound mind in September 2004 and I am prepared to infer that she was of sound mind and capable of making a testamentary disposition at the date when the Will was signed.
Section 8 of the Wills Act prescribes the formalities to comply with before a document can be admitted to probate. That section provides:
Subject to this Act, no will is valid unless it is in writing and executed in the following manner:
(a)     it must be signed by the testator or by some other person in the testator's presence and by the testator's direction; and
(b)     it must appear, on the face of the will or otherwise, that the testator intended by the signature to give effect to the will; and
(c)     the signature must be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and
(d)     the witnesses must attest and sign the will (but no form of attestation is necessary); and
(e)     the signatures of the witnesses must be made or acknowledged in the presence of the testator (but not necessarily in the presence of each other).
In the present proceedings, it is evident that there was a failure to comply with these formalities. In particular, the testator’s signature on the document of 22 June 2004 was not made or acknowledged by her in the presence of two or more witnesses present at the same time. Further, it appears that the signatures of the witnesses were not made or acknowledged in the presence of the testator.
Notwithstanding the failure to comply with these formalities, the Court may dispense with these formalities under section 12(2) of the Wills Act. The Court must be satisfied that the document expresses the testamentary intentions of the deceased and that the deceased intended the document to constitute her Will. Having regard to my findings set out above, I am satisfied of both of these matters.
Having regard to the forgoing, on 13 December 2011 I made an order admitting the document dated 22 June 2004 to probate.