In the Estate of PIETRO ANDREA GAZZOLA (DECEASED)
[2012] SASC 112
•6 July 2012
Supreme Court of South Australia
(Testamentary Causes Jurisdiction)
In the Estate of PIETRO ANDREA GAZZOLA (DECEASED)
[2012] SASC 112
Judgment of The Honourable Justice Gray
6 July 2012
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING - GENERALLY
Application for an order for a grant of letters of administration with the will annexed, being a document claimed to be a copy of the last will and testament of the deceased – on 8 July 1997, the deceased executed two documents purporting to be wills, one written in the Italian language and the other in the English language – whether, at the relevant time, the deceased had testamentary capacity.
Held: Application dismissed – the applicant failed to satisfy the onus of establishing testamentary capacity – on the balance of probabilities, the deceased lacked testamentary capacity due to mental infirmity brought about by the progressive Alzheimer's disease and consequent dementia – the deceased lacked testamentary capacity at the latest from sometime in 1996 – in particular, the deceased lacked testamentary capacity in about February 1997 when the documents were being first prepared until 8 July 1997 when the documents were executed.
Wills Act 1936 (SA) s 8, referred to.
Timbury v Coffee (1941) 66 CLR 277; In the Will of Wilson (1897) 23 VLR 197; Symes v Green (1859) 1 Sw & Tr 401; Landers v Landers (1914) 19 CLR 222; Roos v Karpenkow (1998) 71 SASR 497; Vout v Hay [1995] 2 SCR 876; Worth v Clasohm (1952) 86 CLR 439; Re Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284; Boreham v Prince Henry Hospital (1955) 29 ALJ 179, considered.
In the Estate of PIETRO ANDREA GAZZOLA (DECEASED)
[2012] SASC 112Testamentary Causes Jurisdiction
GRAY J:
Introduction
This is an application for an order for a grant of letters of administration with the will annexed, being a document claimed to be a copy of the last will and testament of the deceased. The primary issue at the hearing concerned the testamentary capacity of the deceased, Pietro Andrea Gazzola.
Following the death of the deceased, Virginia Gazzola, a sister of the deceased, applied for an order for a grant of letters of administration with a copy of the document said to be the deceased’s last will and testament of 8 July 1997 annexed. Since Virginia’s death, the application has been pursued by her executor, Lino Luigi Beltrame, a nephew of Pietro Gazzola.
The deceased executed two documents on 8 July 1997, one written in English and the other in Italian.[1] The originals of both documents cannot be found.
[1] The front page of the Italian version is dated 8 June 1997. The final page is dated 8 July 1997. However, there is a substantial body of evidence which suggests that the document was executed on 8 July 1997 rather than 8 June 1997.
The application initially sought that the document written in English be the subject of the grant. The application was later amended to seek, in the alternative, a grant in respect of both copy documents. However, at the hearing a grant was only sought in respect of the document written in the English language.
When the proceedings were first before the Court for directions, problems concerning the deceased’s testamentary capacity had not been drawn to the attention of the Court. As a consequence, other issues were explored. These included an inquiry as to what had become of the original documents and as to the differences between the English and Italian versions of the two documents. Later it became apparent that there was a real question concerning the testamentary capacity of the deceased that required investigation.
A general practitioner, Pasquale Cocchiaro, who took on the general care of the deceased in December 1998, provided a written report in which he expressed the opinion that the deceased lacked testamentary capacity. Phillip Henschke first expressed an opinion on the papers that the deceased lacked testamentary capacity during the period from 15 April 1999 to mid-May 1999 and had lacked capacity for some time prior to that date. Dr Henschke later provided a detailed written report in which he expressed the opinion that it was clear that the deceased had lacked testamentary capacity due to ongoing dementia during 1997. The effect of these two opinions, if there were no more, would lead to the conclusion that the 1997 writings should not be the subject of a grant.
At the hearing, both medical practitioners were called to give evidence. Dr Cocchiaro maintained his opinion. However, Dr Henschke, both in subsequent reports and in evidence, expressed an entirely different opinion to that appearing in his earlier reports. He concluded that it was clear that the deceased had testamentary capacity in 1997.
The deceased died on 10 July 2001 a bachelor without issue. Four of his six siblings predeceased him. Those four siblings each left children. The deceased’s siblings who survived him, Beniamino Gazzola and Virginia Gazzola, have since died.
A solicitor, Alfio Macolino, was appointed by the Registrar of Probates to represent the interests of the class of persons who would be adversely affected by a grant of letters of administration with the document executed on 8 July 1997 annexed and who had not consented to or indicated their opposition to the application for that grant. In particular, the class comprised: Maria Gazzola as the executor of the estate of the deceased’s brother, Beniamino Gazzola; the children of the deceased’s brother, Guiseppe Gazzola, except for Lucia Mazzarolo; and, the children of the deceased’s sister, Albina Trevisi.
Four children of the deceased’s sister, Maria Daniel, were separately represented. They opposed the application. The remaining person affected by the application was Ms Mazzarolo. Ms Mazzarolo, although served, did not enter an appearance and took no part in the proceedings.
The applicant presented five witnesses – three nephews of the deceased, Vito Beltrame, Lino Beltrame and Olivo Beltrame; Manager of the Archdiocessan[2] Development Fund at Adelaide, Angelo Raffaele Fantasia; and a specialist physician, Dr Henschke. Additionally, the applicant tendered a two volume book of agreed documents containing affidavits, exhibits and other relevant documentation. Mr Macolino did not present any evidence save for a letter from the Public Trustee attaching a will of the deceased apparently executed in 1970. The four children of Ms Daniel led evidence from Dr Cocchiaro who had been the general medical practitioner of the deceased from December 1998 until the date of his death in July 2001.
[2] This spelling reflects that deposed in Mr Fantasia’s affidavit.
The deceased was born on 22 November 1904 in Italy. The deceased’s sister, Virginia, was born on 10 February 1915. The deceased and Virginia were unmarried and had resided together at the same premises for more than 50 years. They appear to have shared a level of dependency and in particular, a dependency of the deceased in Virginia with respect to business matters.
The evidence disclosed little about the deceased’s history. He had limited education before immigrating to Australia. It appears that the deceased had little command of English. The evidence suggested that he was illiterate in English, although it might be expected that he had some familiarity with basic everyday expressions. Although he was fluent in a particular oral Italian dialect, there was no evidence that he was able to understand the written text. He was, however, able to sign his name. He had acquired interests in real property over some years.
During the last decades of his life, the deceased appeared to follow a simple routine. The witnesses described his work in the home garden and his regular visits on foot to the Adelaide Central Market where he would collect unwanted fruit and vegetables and on his return home, distribute this collection to friends.
Some years prior to death, the deceased and Virginia sold property and invested the monies in an Archdiocesan fund, apparently on the advice of Mr Fantasia. The investment returned regular interest payments and together they would attend on Mr Fantasia to collect the interest in cash. Virginia would arrange for their attendance on these occasions and on any other occasion when Mr Fantasia’s advice was sought. Virginia would count the entire sum, place the notes between sheets of newspaper and then put the resulting package in a shopping bag that she would retain.
From about 1993 until July 1997, the deceased with Virginia attended on Mr Fantasia in regard to the preparation of their wills. Mr Fantasia was reluctant to take on the task of preparing their wills and advised them to consult a solicitor. This advice was rejected. They attended on Mr Fantasia on a number of occasions. Each appointment was arranged by Virginia. They would attend with a draft document in Virginia’s hand, containing notes of instructions for both wills. These notes were written in Italian. Mr Fantasia would discuss the matter with them, advising them to discuss their plans with family and friends. He stressed the importance of the making of the will.
On 8 July 1997, the deceased executed two documents; one written in English and the other in Italian. The documents were prepared by Mr Fantasia who continued at that time to hold the office of the Manager of the Archdiocessan[3] Development Fund at Adelaide. The deceased executed the documents in accordance with the requirements of the Wills Act 1936 (SA).[4]
[3] This spelling reflects that deposed in Mr Fantasia’s affidavit.
[4] That is, in accordance with the requirements of section 8 of the Wills Act 1936 (SA).
Attached to these reasons as schedules is the text of the 8 July 1997 documents as executed by the deceased. It is to be noted that the English version is a document of some complexity. The Italian version, translated into English, although simpler, still remains a complex document. Significantly, there are a number of differences between the English and Italian versions which suggest that there were some inadequacies in Mr Fantasia’s ability to translate. These matters compound the uncertainties of the matters occurring at the time of execution.
Attendance with the formalities of the Wills Act was established by affidavit. It is apparent that the deceased and Virginia both executed documents on the same occasion. However, the evidence as to the detail of the meeting was vague. This may be explained in part by the events occurring more than a decade earlier and Mr Fantasia’s recollection being affected by his poor health. However, the result is a lack of evidence about the circumstances in which the deceased came to execute the English version of the document on 8 July 1997.
The evidence is unclear as to the events that surround the execution of the documents. Inconsistent accounts have been provided as to whether either document was read to the deceased. As discussed earlier, the deceased appeared unable to understand the written text of either document, whether in English or Italian. There was some suggestion that Mr Fantasia, while holding the document written in English, spoke to the deceased in Italian, but the evidence is inadequate to make a finding that the English document was translated either in its entirety or in substance to the deceased.
Mr Fantasia initially deposed by affidavit that the deceased and Virginia informed him that they wanted to maintain possession of the executed original documents. Mr Fantasia further deposed that he placed the executed originals into an envelope[5] and that Virginia placed the envelope in a plastic shopping bag. On the hearing of the application, Mr Fantasia provided a different account. He said that following execution, he took a photocopy of both documents and then gave the originals to Virginia who placed them between sheets of newspaper which she then put into a plastic bag. Those original documents of 8 July 1997 cannot be found.
[5] From the wording of Mr Fantasia’s affidavit, it is unclear whether all four documents were placed in one envelope or whether the deceased’s Italian and English documents were placed in one envelope and Virginia’s were placed in a separate envelope.
Mr Fantasia was informed at a meeting with two of the deceased’s nephews and a solicitor in December 2000 that the original documents executed by the deceased on 8 July 1997 had been lost. This was prior to the death of the deceased. Following the death of the deceased, thorough searches were conducted. However, the original documents remain missing. The contents of the originals as executed are contained in copies which have been located and which are sought to be propounded.
Testamentary Capacity – The Legal Principles
The issue of testamentary capacity became the central issue in the trial.
The evidence revealed that it was probable that the deceased’s dementia was caused by Alzheimer’s disease. Accordingly, a convenient starting point is Dr Henschke’s report of 2 October 2011 in which he sets out the following information about Alzheimer’s disease:
…the typical Alzheimer Disease patient is diagnosed 32 months after symptom onset, at the age of 75 years. This patient is institutionalized 25 months after diagnosis, or approximately 57 months after symptom onset at age 78. The patient remains institutionalized for 44 months or, in actuality, until death. Total disease duration for this typical AD patient is just over 101 months, or approximately 8.5 years. …
…
The natural history of the disease is one of progressive decline, requiring increasing degrees of care… Patients with early disease are generally cared for at home with or without regular nonprofessional caregivers. However, as the disease progresses to moderate and then severe stages, the requirement for long-term-care nursing or assisted-living facilities increases dramatically.
…
The lay person often notes aspects of performance suggesting intact cognition. …
In advancing dementia one commonly sees affected individuals capable of pursuing well practised routines and having reasonably sustained verbal skills which create an impression of insight and understanding. Formal enquiry and cognitive testing by clinicians will reveal this as a social facade diverting others from appreciating cognitive deficits. When cognitive deficits are revealed by testing, their close associates are surprised.
[Footnote omitted.]
I turn now to the relevant case law. In Timbury v Coffee,[6] Dixon J referred with implicit approval to three passages from reported cases. First, his Honour extracted a passage from the judgment of Hood J in In the Will of Wilson:[7]
… Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realize the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner …
[6] Timbury v Coffee (1941) 66 CLR 277.
[7] In the Will of Wilson (1897) 23 VLR 197, 199 as cited in Timbury v Coffee (1941) 66 CLR 277, 283.
Secondly, Dixon J referred to the remarks of Cresswell J in Symes v Green:[8]
If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding. But if there are circumstances in evidence which counterbalance that presumption, the decree of the court must be against its validity, unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it
[8] Symes v Green (1859) 1 Sw & Tr 401, 402-403, as cited in Timbury v Coffee (1941) 66 CLR 277, 283.
Thirdly, Dixon J extracted the following principle from the reasons of Rich J in Landers v Landers:[9]
In the end the tribunal—the court or jury—must be able, affirmatively, on a review of the whole evidence, to declare itself satisfied of the testator's competence at the time of the execution of the will (Smith v. Tebbitt; Sutton v. Sadler).
[Footnotes omitted.]
[9] Landers v Landers (1914) 19 CLR 222, 235-236, as cited in Timbury v Coffee (1941) 66 CLR 277, 283.
In Roos v Karpenkow, Doyle CJ reviewed the relevant principles:[10]
[10] Roos v Karpenkow (1998) 71 SASR 497, 504-505.
The relevant principles are reasonably clear. They were stated authoritatively, for my purposes, by the High Court in Nock v Austin (1918) 25 CLR 519. Although the judgment of Isaacs J did not receive the assent of the other two members of the court, what his Honour said is not inconsistent with their judgment, and appears to me to be consistent with other cases of persuasive authority. I propose to set out the relevant statement of principles by his Honour, omitting from that statement all reference to authorities. His Honour said (at 528):
(1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents.
(2) Where any suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document.
(3) If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence of both sides, is not judicially satisfied that the document does contain the real intention of the testator, the court is bound to pronounce its opinion that the instrument is not entitled to probate.
(4) The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the court of the evidence as to the testator's appreciation and approval of the contents of the will.
(5) But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification.
(6) Nor does the rule require as a matter of law any particular species of proof to satisfy the onus.
(7) The doctrine that suspicion must be cleared away does not create "a screen" behind which fraud or dishonesty may be relied on without distinctly charging it.
Doyle CJ then addressed the situation where suspicious circumstances arise and observed:[11]
[11] Roos v Karpenkow (1998) 71 SASR 497, 505-506.
If what are called suspicious circumstances are found to be present, what must the proponent of the will do to meet the requirements stated by Isaacs J?
In Barry v Butlin (1838) 2 Moo 480 at 482; 12 ER 1089 at 1090, Baron Parke said that a circumstance of suspicion:
... calls upon it [the court] to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the deceased.
In Fulton v Andrew (1875) LR 7 HL 448 at 471-472, Lord Hatherley said, in words often referred to with approval, that when there are circumstances of suspicion, those who propound the will " ... have thrown upon them the onus of showing the righteousness of the transaction".
In Wintle v Nye [1959] 1 WLR 284 at 291; [1959] 1 All ER 552 at 557 Viscount Simonds said:
In all cases [of suspicion] the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed.
These statements are helpful, but in the end I consider that Isaacs J has adequately stated the position.
I must examine the evidence with care. I must bear in mind that when, as here, the only witnesses to the critical events are those who propound the will, their evidence and motives must be carefully scrutinised. I must pay careful attention to any circumstances of suspicion that do arise, and the suspicions that arise from them. It is not a question of whether Mr Karpenkow has made out a case of fraud or of undue influence, or a case that Mrs Hein did not know or approve of the contents of the will. If there are circumstances of suspicion, the onus that always rests upon the plaintiff to prove knowledge and approval will not be discharged unless the suspicion that arises from those circumstances is dispelled. In the end, I must be affirmatively satisfied, on the balance of probabilities, that this is the freely made will of Mrs Hein, and that she knew and understood what she was doing. While what is required is always proof on the balance of probabilities, the evidence required to dispel a suspicion will depend upon the nature and gravity of the suspicion. The fact that neither fraud or undue influence is pleaded does not mean that I can ignore the possibility of either fraud or undue influence being present. Any suspicion along those lines must be displaced: see Tyrrell v Painton [1894] P 151.
Suspicious circumstances have also been the subject of discussion by the Supreme Court of Canada. In Vout v Hay, Sopinka J speaking for the Court observed:[12]
… The suspicious circumstances may be raised by (1) circumstances surrounding the preparation of the will, (2) circumstances tending to call into question the capacity of the testator, or (3) circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud. Since the suspicious circumstances may relate to various issues, in order to properly assess what effect the obligation to dispel the suspicion has on the burden of proof, it is appropriate to ask the question "suspicion of what?" …
…
Where suspicious circumstances are present, then the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the will reassumes the legal burden of establishing testamentary capacity. Both of these issues must be proved in accordance with the civil standard. …
[12] Vout v Hay [1995] 2 SCR 876, [25], [27].
There are three further authorities which are worth extracting. In the High Court decision of Worth v Clasohm, the Court made the following pertinent remarks in respect of the standard of proof:[13]
… 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 criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. 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. …
[13] Worth v Clasohm (1952) 86 CLR 439, 453 (Dixon CJ, Webb and Kitto JJ).
In Re Estate of Griffith (dec’d); Easter v Griffith, Gleeson CJ, while he was still the Chief Justice of the Supreme Court of New South Wales, observed:[14]
Where the evidence in a suit for probate raises a doubt as to testamentary capacity, there rests upon the plaintiff the burden of satisfying the conscience of the court that the testatrix had such capacity at the relevant time. If, following a vigilant examination of the whole of the evidence, the doubt is felt to be substantial enough to preclude a belief that the testatrix was of sound mind, memory and understanding at the time of execution of the will, probate will not be granted.
[14] Re Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284, 289.
Further, in Boreham v Prince Henry Hospital, the Court relevantly observed:[15]
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 …
[15] Boreham v Prince Henry Hospital (1955) 29 ALJ 179, 180 (Williams, Fullagar and Kitto JJ).
Testamentary Capacity – The Evidence
In July 1997, the deceased was in his 93rd year. He was at this time suffering from what the medical experts described as moderate dementia. The question to be determined is the extent of this dementia and its effect, if any, on his testamentary capacity.
There is a paucity of evidence from the lay witnesses about the deceased’s capacity in 1997. Evidence from the deceased’s nephews spoke of occasional contact of a routine nature. Most of this evidence related to the years prior to 1997 and, to my mind, carried little weight with regard to the assessment of testamentary capacity during 1997.
Mr Fantasia had ongoing contact with the deceased. Again, his evidence did not provide sufficient detail of the types of contact from which any assessment of capacity could be made. Mr Fantasia had ongoing health problems both prior to and subsequent to 1997. He emphasised that he had some difficulty with his memory of relevant events. Mr Fantasia’s contact with the deceased occurred at times when Virginia arranged the meetings and was present throughout and appeared to take control of the business affairs involving herself and the deceased. The conversations recounted by Mr Fantasia with the deceased appeared to involve the deceased indicating his assent to propositions advanced by Mr Fantasia. There was no evidence of any occasion when the deceased indicated anything other than an assent.
Mr Fantasia gave troubling evidence of an involvement with the deceased following the execution of the documents in July 1997. Mr Fantasia recounted that in October 1998, the deceased was involved in the witnessing of a document with Mr Fantasia. He said that at this time, the deceased, although physically frail, appeared to be mentally competent. Mr Fantasia recalled that the following day, the deceased had requested that the document be returned. No sensible reason was provided.
The difficulty with Mr Fantasia’s evidence on this topic is that soon thereafter on 28 October 1998, the deceased, following a collapse at home, was hospitalised. While in hospital a history was taken of the deceased having been incoherent for more than six months. Dr Beare reported on 18 November 1998 to the aged care assessment team that “MR Gazzola is demented and incoherent in his speech (Italian) to the point that his family have not understood his conversation for at least 6/12”. The hospital notes further record the conclusions of the aged care assessment team made on 20 November 1998. The record reads as follows: “Interview with interpreter. He wishes to go home to be cared for by his mother. High level residential care approved.” The hospital records are replete with references to the deceased’s dementia and aggressive behaviour.
There were inconsistencies in Mr Fantasia’s evidence, in particular between affidavits sworn by him and his oral testimony. Mr Fantasia deposed by affidavit to having read the 8 July 1997 document written in Italian to the deceased immediately before execution. However, in his sworn testimony, he said that he had no recollection of doing this. I do not suggest that Mr Fantasia was setting out to mislead the Court. He explained that he had suffered from an ongoing illness during the late 1990s and had undergone heart surgery in 2004. He explained something of the reasons for his ongoing illness. These factors provide some explanation for the inconsistencies in his testimony.
I form the view that although an honest witness, Mr Fantasia’s evidence was unreliable. I am not prepared to act on Mr Fantasia’s evidence in respect of the mental capacity of the deceased unless supported by other evidence led in the proceedings.
As earlier mentioned, Dr Cocchiaro was the deceased’s general primary physician from the time of admission to nursing care in December 1998. He continued as the deceased’s primary physician until his death on 10 July 2001. Dr Cocchiaro reported in September 2004 that the deceased was not of sound mind and was, by reason of mental incapacity, incapable of managing his own affairs. In his written report, he stated that this situation had existed well before his transfer to nursing care. In particular, it was Dr Cocchiaro’s opinion that the deceased was not of sound mind for a period of at least two to three years prior to December 1998 and that he lacked testamentary capacity at any relevant time during 1997.
In the course of his evidence, Dr Cocchiaro expressed the following views about general aspects of dementia:
-The cardinal feature of dementia is forgetfulness and inability to care for oneself in any way, shape or form. Dementia patients forget their day to day activities. Activities of daily living are non-existent. They would just do nothing if it were left up to them themselves.
-Any decision making by a patient with dementia that may occur would be exercised in agreement with whoever may prompt the patient. If that person were the patient’s carer and were caring for him or her, the patient would form a bond with that person and therefore, would virtually agree to anything that person were to say.
-A person suffering from dementia would find stability when engaged in set and regular routines.
-Dementia is a slowly evolving process that starts off gradually and then moves on to the patient not being aware of anything in time or space.
-In the initial stages of dementia the patient would be able to convince visitors that they are perfectly lucid because the conversation they would be having about certain items would probably be very relevant at the time and they would give lucid answers. However, later on in the conversation, even as little as five or ten minutes later, they would forget everything that has been said. Later in the day they would completely forget that they ever had a visitor.
When discussing the deceased and having regard to the foregoing general observations, Dr Cocchiaro expressed the following specific opinions:
-The deceased’s clinical history is indicative of severe dementia. The earlier referred to hospital note made by Dr Beare confirms the severity of the dementia.
-In 1995 to 1996, the deceased would have had mild dementia slowly progressing to moderate dementia in 1997 to moderately severe dementia in 1998.
-The deceased had no capacity whatsoever for at least two to three years prior to the first time that Dr Cocchiaro saw him. The deceased would not have had testamentary capacity from at least December 1996 and probably before that.
-If Virginia put a document in front of the deceased to sign and said “this is an important document that we have to … do”, then the deceased would have signed it, probably without even knowing exactly the content of what was said. The deceased would not have been able to make any sense of the document of 8 July 1997 whether written in English or Italian. If it were shown to him by his carer, somebody whom he trusted, and the carer said “[w]e have to sign this document”, he would have signed that document willingly and freely.
-Dr Cocchiaro accepted that he was making a retrospective assessment of the deceased’s capacity. However, he was able to draw on his own examination of the deceased in December 1998 and to have regard to the hospital records following the deceased’s admission in October 1998. Dr Cocchiaro was able to draw on usual patterns of the development of the condition of dementia. He pointed out that it is common knowledge that the deceased’s ongoing problems followed a pattern of progression of the disease. Although there may be slight variations, sufferers from dementia follow a gradual deterioration with the effects of the dementia becoming more severe over time.
-Taking into consideration Dr Beare’s note, Dr Cocchiaro’s assessment of the deceased in December 1998 and the assessment done by nursing staff, Dr Cocchiaro considered that the deceased’s dementia had been in place at least for the last three to four years. He suffered from dementia including “significant loss of [faculties], significant loss of self-care, … significant loss of mental capacity, and being confused etc”. In most cases, at times, these patients can give the appearance of being semi-lucid depending on the conversation, especially if it is part of a routine or if they have somebody that they trust with them, guiding them, helping them and telling them what they should be doing and where they should be going.
Dr Cocchiaro’s opinion was supported by other evidence. The first is to be found in the earlier referred to note of Dr Beare and the recommendation of the aged care assessment team. The hospital records are replete with references to the deceased’s dementia.
Dr Cocchiaro’s opinion, as earlier noted, was supported by Dr Henschke in his first two written reports. On 24 November 2004, Dr Henschke, on the basis of hospital records and other relevant documents, expressed the opinion that the deceased lacked testamentary capacity between the period of 15 April 1999 and mid-May 1999. He drew attention to the daily reports of disorganised thought and action, incapacity in self-care, spatial disorientation, mental confusion, lack of judgment – wanting to go home though having been in a nursing home previously – and finally, physical aggression. Dr Henschke considered that there was ample observational evidence that the deceased had an advanced state of dementia that he considered was likely to be Alzheimer’s disease. He then expressed the following opinion: “I am in no doubt that on this display of his cognitive abilities, he has been lacking in testamentary capacity for some time. At a guess, I would put this at some few years.”
Dr Henschke provided a further comprehensive report dated 2 October 2011. In this report, Dr Henschke expressed the view that the deceased’s dementia was “afoot around 1993-94”. Dr Henschke considered the 8 July 1997 document to be complex and one that presents a greater challenge to the person seeking to demonstrate capacity; that is, the ability to comprehend the nature and effect of a will, the extent of his assets and the ability to weigh the claims which naturally press upon the person. Dr Henschke reviewed the material, noting in particular Dr Beare’s report of 18 November 1998 and the aged care assessment team’s assessment that the deceased needed 24 hour high level nursing home care. Dr Henschke in his report then undertook a review of recognised texts concerning the natural development of Alzheimer’s disease before concluding that the deceased did not have testamentary capacity to make a will on 8 July 1997. He considered that the document was far from simple given the spread of property and what he described as the several sizeable accounts and the claimants. He added that such a document presents a significant challenge to a healthy person of 93 years.[16] He considered the reality of a disease, which on the facts and natural history was Alzheimer dementia of moderate severity further confirmed this view.
[16] Dr Henschke’s report refers to “93 years”. However, the deceased was 92 years of age when he executed documents on 8 July 1997.
There is a further matter of relevance. In his report of 2 October 2011, Dr Henschke noted that commonly people with advancing dementia create an impression of insight and understanding because they are capable of pursuing well practised routines and they have reasonably sustained verbal skills. However, Dr Henschke went on to observe that cognitive testing reveals that this is a social facade which assists the person in preventing others from appreciating cognitive deficits. Accordingly, when the cognitive deficits of a person with dementia are revealed by testing, close associates are surprised.
As earlier discussed, evidence given in the trial allows the conclusion that the deceased, from about the mid-1980s at least, was pursuing well practised routines. In this situation, he appeared to be able to converse meaningfully with other members of his family and third persons. However, much of that routine, particularly when dealing with any matter of business, occurred when he accompanied his sister.
I was impressed by Dr Cocchiaro as a witness. He is a general practitioner experienced with dealing with the aging and the demented. Further, he has other Italian patients and speaks to them in the Italian language. He has treated many of these patients for progressive dementia. Dr Cocchiaro was thoroughly tested in cross-examination. He held to his opinion throughout. Where necessary he made appropriate concessions. He displayed an open mind and I was left with the conclusion that his opinion was well based and should be awarded considerable weight.
The evidence of the three nephews of the deceased was expressed in general terms. They spoke of contact with the deceased, but in the main it was in regard to matters arising out of ordinary everyday events. I do not consider that any of this evidence carries any significant weight on the issue of testamentary capacity.
The remaining matter to be addressed concerns the change in opinion of Dr Henschke. On 26 October 2011, Dr Henschke further reported he had been provided with copies of what he described as “handwritten draft wills dated 1995, 1996, 1997 each with translation from the Italian to typed English”. Dr Henschke noted that although there was doubt about the authorship of the handwriting, it was presumed to be that of the deceased. Dr Henschke then had regard to this fact and to what he described as “re-assuring consistency of content over the time period 1995-1997 as to the intended benefaction”. He considered that these drafts indicated that the deceased was aware of his assets and was consistent as to the intended benefaction. He further considered that the intended benefaction appeared to be “underpinned” by valid reasons based on what was known of the deceased’s past links with the beneficiaries. These considerations led Dr Henschke to conclude that “the supplied draft Wills were made by an individual with sufficient testamentary capacity”. In particular, Dr Henschke considered that the moderate degree of dementia suffered in 1997 did not preclude testamentary capacity, having regard to the long standing and enduring intentions to be found in the draft documents.
Dr Henschke readily acknowledged when giving oral testimony that he had made the assumption that the handwritten documents were in the hand of the deceased and he accepted that if this was not so, then this basis for his changed opinion would be invalidated. He considered that if Virginia, the author of the documents, had acted as no more than the compliant amanuensis of the deceased, then the basis for his altered opinion would be made out.
The primary difficulty that arises is that there is no evidence from which any conclusion can be drawn as to the part played by the deceased in the preparation of the draft notes. It may be accepted that Virginia, at all times, acted bona fide in what she believed to be the interests of the deceased. However, the draft notes were all prepared at times when the deceased was in his 90s and suffering from progressive Alzheimer’s disease. If the deceased was consulted about the drafts, there is no basis for assuming that he was fully consulted or, for that matter, that he had any proper understanding of the contents of the documents.
Having regard to the foregoing, I am not prepared to accept or act on Dr Henschke’s revised opinion. In reaching this conclusion, I have had particular regard to his expertise as a consultant physician in the healthcare of older persons. To my mind, however, the critical assumptions that he has made to reach his altered opinion were not made out on the evidence.
Testamentary Capacity - Conclusions
I consider that there are circumstances of suspicion that arise in respect of the document of 8 July 1997 written in English sought to be the subject of a grant.
The evidence establishes that during 1997 the deceased was suffering from moderate dementia which, on the probabilities, was as a result of the development of Alzheimer’s disease. His condition was so severe that by as late as May 1998, he had become incoherent so that members of his family could not understand his conversation. The evidence from Dr Henschke and Dr Cocchiaro addressed the development of Alzheimer’s disease. The progression of the case of the deceased would have commenced in or about 1993. The deceased may well have been able to mask the development of his dementia as he was following a well established routine in regard to his everyday activities. Further, it appears that Virginia had become his carer in respect of everyday living as well as in all business matters.
As discussed above, Dr Henschke’s change of opinion made the assumption that the handwritten notes providing instructions to Mr Fantasia were in the hand of the deceased. This assumption was not made out on the evidence. Dr Henschke’s revised opinion appears to have proceeded on the basis that the deceased was literate in Italian and able to write out the notes. To the contrary, the evidence suggests that the deceased was not able to write in Italian and may not have had the ability to read the notes in any event. The entirety of the evidence suggests that the notes were prepared by Virginia. It may be accepted that Virginia had the best interests of the deceased in mind, but beyond that it is not possible to make any finding that the notes contained the intent of the deceased.
It is to be borne in mind that Mr Fantasia’s employer and Virginia were both beneficiaries under the 8 July 1997 document. These factors require the Court to be vigilant in its scrutiny of the application.
I am not satisfied on the balance of probabilities that the document was interpreted or read over to the deceased in an Italian dialect that he fully understood. More particularly, I am not satisfied that it was interpreted or read over to him at all. I am not satisfied that he had any material part to play in its preparation. I am not satisfied that the document represents instructions that he gave. I am not satisfied that Mr Fantasia was a person able to assess the mental competence of the deceased generally or to make an assessment of his testamentary capacity as at 8 July 1997 or at any earlier time during the year 1997. The evidence does not allow a finding to be made that Virginia acted at the deceased’s direction in the preparation of the written notes forwarded to Mr Fantasia between 1993 and 1997.
All of the above create circumstances of suspicion. As a consequence, the applicant bore the onus of establishing testamentary capacity. The applicant has failed to discharge that onus. To my mind, not only has the applicant failed to satisfy the onus, but I find on the balance of probabilities that the deceased lacked testamentary capacity due to mental infirmity brought about by the progressive Alzheimer’s disease and consequent dementia.
Having regard to all of the evidence and in particular, the hospital notes and Dr Cocchiaro’s opinions, I find that the deceased was suffering from the symptoms of dementia from in or about 1993 and his dementia was becoming worse over time. I find that the deceased lacked testamentary capacity at the latest from sometime in 1996. In particular, the deceased lacked testamentary capacity in about February 1997 when the documents were being first prepared until 8 July 1997 when the documents were executed. I find that by May 1998 he was suffering from severe dementia calling for intensive 24 hour nursing care.
Conclusion
For the above reasons, the application is dismissed. In this circumstance, it would appear to be open for there to be an application to propound an earlier will of the deceased or alternatively, for the matter to proceed on an intestacy.
Schedule A
The terms of the document of 8 July 1997 written in English are as follows:
THIS IS THE LAST WILL AND TESTAMENT of me PIETRO ANDREA GAZZOLA of 22 Cudmore Terrace, Marleston in the State of South Australia, Retired Market Gardener.
1.I REVOKE all former Wills and Codicils made by me and declare this to be my last Will.
2.I APPOINT ANGELO RAFFAELE FANTASIA, Development Manager of 7 Thelma Street Payneham in the said State to be the sole Executor and Trustee of this my will.
3.SUBJECT to the payment of all my just debts, funeral and testamentary expenses I GIVE DEVISE AND BEQUEATH the whole of my real and personal estate unto my said Trustee and direct my Trustee to stand possessed of my estate as aforesaid upon and subject to the following trusts:
[a] as to my interest in the real estate situated at 22 Cudmore Street Marleston being allotment 87 being Certificate of Title Register Book Volume 4249 Folio 33 allotment 88 being Certificate of Title Register Book Volume 4249 Folio 34 for the Roman Catholic Archbishop of Adelaide for the time being [ or if there be no Archbishop, to the person then administering the Roman Catholic Archdiocese of Adelaide ] it being my express direction that either said properties or the proceeds of the sale thereof be applied to the restoration of the Cathedral Church of St Francis Xavier in Wakefield Street, Adelaide in recognition of the goodwill that the Church as shown towards me, PIETRO ANDREA GAZZOLA provided that prayers be offered on my behalf for many blessings to enter into Paradise and that a Mass be offered each November in my memory and the repose of my soul and my grave be visited on a regular basis I declare that the receipt of the proper officer of the Catholic Church Office shall be a full and sufficient discharge to my Trustee for the said legacy;
[b] as to my interest in the vacant land situated on the corner of Aldridge Terrace and St Anton Street, Marlston, allotment 135 being Certificate of Title Register Book Volume 192 Folio 141, for my sister VIRGINIA GAZZOLA, 22 Cudmore Terrace, Marleston SA 5033 for her own use and benefit absolutely.
[c] as to my interest in the vacant land situated on the corner of Aldridge Terrace and St Anton Street, Marleston, allotment 134 being Certificate of Title Register Book Volume 4249 Folio 39 for my LINO BELTRAME, 8 Main Street, Richmond SA 5033 for his own use and benefit absolutely in memory of his uncle PIETRO ANDREA GAZZOLA provided he visit my grave on a regular basis until we meet again in heaven.
[d] as to my interest in the vacant land Lot 66 situated at 36 Barnes Road, Marleston being Certificate of Title Register Book Volume 1993 Folio 79 for my nephew ANTONIO GAZZOLA, 45 Cudmore Terrace, Marleston SA 5033 in remembrance of his uncle for his own use and benefit absolutely in memory of his uncle PIETRO ANDREA GAZZOLA provided a regular Mass is offered for the repose of my soul and he visit my grave on a regular basis until we meet again in heaven.
[e] as to my interest in the real estate situated at 8 Bakers Road, Marleston (corner of Major Avenue and Bakers Road, Marleston) being Certificate of Title Register Book Volume 1952 Folio 5 for the Roman Catholic Archbishop of Adelaide for the time being [ or if there be no Archbishop, to the person then administering the Roman Catholic Archdiocese of Adelaide ], it being my express direction that either said property or proceeds of the sale thereof benefit the Catholic parish of Richmond at 61 Brooker Terrace Richmond as aforesaid in memory of me and in recognition of the goodwill that the Church has shown towards me and in memory of me and my three sisters ELVIRA BELTRAME, MARIA DANIEL and VIRGINIA GAZZOLA whether dead or alive provided that prayers be offered on our behalf for blessing to enter in Paradise - and that a Mass for the repose of my soul be offered on a regular basis, I declare that a receipt of the proper officer of the Catholic Church shall be a full and sufficient discharge to my Trustee for the said legacy;
[f] as to the proceeds of my account held with the Archdiocesan Development Fund, 39 Wakefield Street, Adelaide $257,930.16 and what is remaining to ANGELO RAFFAELE FANTASIA my TRUSTEE who must firstly reimburse himself for any expense and time in the execution of this Will, in memory of me and my three sisters ELVIRA BELTRAME, MARIA DANIEL and VIRGINIA GAZZOLA whether dead or alive that organise a beautiful funeral for me to be held at the Catholic Church at 61 Brooker Terrace, Richmond SA and that both Mass be celebrated and Holy Rosary be recited thereat, that I am buried next to my sister the said VIRGINIA GAZZOLA in a Catholic / Italian section of an Adelaide Cemetary in a good position with the Sacred Heart of Jesus place on my headstone with both beautiful and appropriate words inscribed thereon, that he visit my prayers be offered on our behalf for blessings to enter into Paradise.
[g] As to the proceeds held in accounts with three Commonwealth Bank, branches, to ANGELO RAFFAELE FANTASIA as TRUSTEE in honour of Saint Peter until we meet again in heaven, to be used as follows:
[i]Procceds [sic] held in the Commonwealth Bank, King William Street, Adelaide $373,000.00 and what is remaining in remembrance of myself PIETRO ANDREA GAZOLA and my three sisters ELVIRA BELTRAME, MARIA DANIEL and VIRGINIA GAZZOLA, whether dead or alive in honour of Saint Peter so that Saint Peter will sing our praise as soon as possible for a place in Heaven.
[ii]Proceeds held in the Commonwealth Bank, Gouger Street, Adelaide $214,617.83 and what is remaining in remembrance of myself PIETRO ANDREA GAZZOLA and my three sisters ELVIRA BELTRAME, MARIA DANIEL and VIRGINIA GAZZOLA, whether dead or alive for our souls and those holy souls in Purgartory, that they hold a place for me in heaven.
[iii]Proceeds held in the Commonwealth Bank, Marion Road, Richmond $15,250.15 and what is remaining in remembrance of myself PIETRO ANDREA GAZZOLA and my three sisters ELVIRA BELTRAME, MARIA DANIEL and VIRGINIA GAZZOLA for the Roman Catholic Archbishop of Adelaide for the first time [ or if there be no Archbishop, to the person then administering the Roman Catholic Archdiocese of Adelaide] it is my express direction that these proceeds benefit the Catholic Parish of St John Bosco, at Lipsett Street Brooklyn Park SA in recognition of the goodwill that the Church has shown to me, provided that prayers be offered on our behalf for blessings to enter in Heaven and that Mass be celebrated in November each year in our memory for the repose of our souls.
[g] as to all my personal effects and any furniture and equipment of which I die possessed to my sister VIRGINIA GAZZOLA for her sole use and benefit absolutely.
[h] That my Trustee ANGELO RAFFAELE FANTASIA pay all my testamentary expenses will and also his work in relation to this will and his work with the Archbishop. Perhaps he could visit my grave from time to time, then thank you until we meet again in Paradise.
4.MY TRUSTEE may at such time or times and in such manner as my Trustee shall think fit sell call in and convert into money such of my estate as shall not consist of money with power to postpone such calling in and conversion of any part or parts of my estate for such period as my Trustee in his absolute discretion deems fit.
IN WITNESS whereof I have to this my last Will and Testament set my hand this
8th day of July 1997
SIGNED by the Testator the said PIETRO ANDREA GAZZOLA as and for his last Will and Testament in the presence of us both present at the same time who at his request in his sight and presence and in the sight and presence of each other have hereto subscribed our names as witnesses.
Schedule B
The terms of the document of 8 July 1997 written in Italian and translated into English are as follows:[17]
[17] These are the terms of the Italian will as translated by an accredited translator.
THIS IS THE LAST WILL AND TESTAMENT of the undersigned PIETRO ANDREA GAZZOLA of 22 Cudmore Tce, Marleston, in the State of South Australia, horticulturist.
I THE UNDERSIGNED, REVOKE any previous Testament and Codicil made by me and declared as a last will.
I THE UNDERSIGNED, APPOINT ANGELO RAFFAELE FANTASIA, Business Manager of 7 Thelma Street, Payneham in the said State to be the sole Executor and Trustee interpreter of this my Will.
[1]I leave the house situated at No 22 Cudmore Street Marleston 5033 lot 87 Lands Title Register Volume 4249, folio 33; lot 88 Lands Title Register Volume 4249, folio 34 to the church Cathedral of St. Francis Xaviers priest in Wakefield St, Adelaide 5000, what there is, for me Pietro Andrea Gazzola, but he has to say a mass each year in November, pay for a lot of good, and a visit to the cemetery, to be able to enter Paradise quickly.
[2]I leave the block 135 Aldridge Terrace corner St Anton Street, Marleston 5033, as specified in the Register of the Lands Title Office in Volume 4249, Folio 141 to my sister VIRGINIA GAZZOLA
[3]I leave the block 134 Aldridge Terrace, Marleston 5033, as specified in the Lands Title Register Volume 4249 folio 39, to LINO BELTRAME No 8 Main Cudmore Terrace, Richmond 5033, that you come to visit me in the cemetery if there is something needed, pray in memory of uncle Pietro till we meet in Heaven.
[4] I leave the block 66 Barnes Avenue, Marleston 5033 Lot No. 36 as specified in the Lands Title Office Volume 1993, Folio 79, to ANTONIO GAZZOLA, No. 45 Cudmore Terrace, Marleston 5033 in memory of uncle Pietro Andrea Gazzola, to say mass sometimes and in the cemetery, you pray, and the children.
[5]I leave the block 8 Bakers Road and Major Avenue Marleston 5033, Lot 192 as specified in the Lands Title Office Volume 1952, Folio 5, for me Pietro Andrea Gazzola and also the 3 sisters, Elvira Beltrame, Maria Daniel, Virginia Gazzola in Australia, be they living or dead, the Church in Richmond the Catholic Parish of Richmond situated at No. 61 Brooker Terrace, Richmond 5033, for a lot of good, praying and to say mass sometimes to be able to enter Paradise.
[6]And the episcopal bank number, the dollars there $257,930.16 and all there is, for me Pietro Andrea Gazzola and also the 3 sisters, Elvira Beltrame, Maria Daniel, Virginia Gazzola, be they living or dead, Angelo Raffaele Fantasia interpreter to arrange my funeral in the church in Richmond with mass, rosary, in the cemetery where there are Italians a nice place, and the grave with a beautiful headstone nice words, and the heart of Jesus, and also the grave for sister Virginia Gazzola nearby, but the land.
[7]Then there are the 3 banks in Adelaide and then the rest $257,930.16, and all there is – in honour of St Peter till we meet in Heaven and Angelo Raffaele Fantasia interpreter.
[8]The Commonwealth bank King William Street, Adelaide 5000, $373,000.00 – and all there is, for me Pietro Andrea Gazzola, and the 3 sisters – Elvira Beltrame, Maria Daniel, Virginia Gazzola be they living or dead, in honour of St Peter who will quickly open the door to sing the praises in Heaven.
[9]The Commonwealth bank Gouger Street, Adelaide 5000, $214,617.83 – and all there is, for me Pietro Andrea Gazzola, and the 3 sisters Elvira Beltrame, Maria Daniel, Virginia Gazzola, be they living or dead, the sainted souls of purgatory who keep me a place in Heaven.
[10]The Commonwealth bank Marion Road, Richmond 5033, $15,250.15 and all there is, for me Pietro Andrea Gazzola, and the 3 sisters Elvira Beltrame, Maria Daniel, Virginia Gazzola, be they living or dead, the church of John Bosco Lipsett Terrace, Brooklyn Park for many prayers, and a mass in the month of November to raise to Heaven.
[11] Then there is my furniture, and the furniture inside the house, and outside to sister VIRGINIA GAZZOLA, but there is also my furniture Virginia then we’ll talk.
[12]Then Angelo Raffaele Fantasia has to pay all the expenses, (debts?) with the 2 witnesses to talk.
[13]And pay himself his work as interpreter with the Bishop then he has finished, thank you very much, till we meet in Heaven.
[14]If he wants to visit me in the cemetery in memory but for nothing, he has to make do from that of the capital.
In witness whereof I have signed this my last Will and Testament in my own hand
day 8th month JULY year 1997
Signed by the testator, the above named PIETRO ANDREA GAZZOLA as his Last Will and Testament, at the same time and in the presence of us two (2) witnesses as requested by the above named Testator.
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