In the Matter Of Dimitra Giofches
[2011] VSC 553
•3 NOVEMBER 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
PROBATE LIST
No. S PRB 2010 12211
IN THE MATTER of the Will of Dimitra Giofches
And
IN THE MATTER of an application for grant of probate
By
| SAM GIOFCHES | Plaintiff |
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JUDGE: | HABERSBERGER J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28 JULY 2011 | |
DATE OF JUDGMENT: | 3 NOVEMBER 2011 | |
CASE MAY BE CITED AS: | IN THE MATTER OF DIMITRA GIOFCHES | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 553 | |
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Wills – Application for grant of probate – Whether testatrix lacked testamentary capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Glezakos | Le Brun Glezakos |
| For Ms Lorraine Kotopoulos | Ms U Stanisich | MK Steele & Giammario |
HIS HONOUR:
The Application
This is an application by the plaintiff, Sam Giofches, for a grant of probate of the last will of his mother, Dimitra Giofches. Mrs Giofches (“the deceased”) died on 19 April 2010 leaving a will dated 9 September 2008. The death certificate indicated that the deceased was suffering from “advanced dementia” at the time of her death. Under her last will the deceased appointed her son, Sam Giofches, her executor and trustee and left the whole of her estate to him.
The deceased’s last will also included the following paragraphs:
7.I DECLARE that I have made no provision in this my Will for my daughter OURANIA KOTOPOULOS (ALSO KNOWN AS LORRAINE KOTOPOULOS) AND I FURTHER DECLARE that I have carefully considered her present financial circumstances and future prospects and the fact that she has sufficient income and assets to allow her to maintain an adequate standard of living AND I DO NOT WISH to benefit the said OURANIA KOTOPOULOS (ALSO KNOWN AS LORRAINE KOTOPOULOS) further in this my Will AND IT IS MY INTENTION that she be excluded from all and any further benefit from my estate.
8.I DECLARE that I am of sound mind and have made these provisions after long and careful deliberation and consideration of the respective circumstances and prospects of my daughter OURANIA GIOFCHES (ALSO KNOWN AS LORRAINE KOTOPOULOS) and those of my other children AND I FURTHER DECLARE that I have been informed by my Legal Practitioner of the effect of the Testator’s Family Maintenance Provisions.
The deceased’s penultimate will was executed on 12 September 2007. Under that will the deceased appointed her son, Mr Giofches, and her daughter, Ms Kotopoulos, her executors and trustees, left her house at 82 Wattle Avenue, Werribee to her son, a shop at 1/36 Synnott Street, Werribee to her daughter and the residue of her estate to her son and daughter as tenants in common in equal shares.
The Procedural History
On 7 May 2010 Ms Kotopoulos lodged a caveat in relation to the will. However, on 11 June 2010 Ms Kotopoulos issued an originating motion naming her brother as defendant and stating that he was sued “as the executor named in the Will” of the deceased. The relief sought in the originating motion included a declaration that the will of the deceased dated 9 September 2008 was invalid and a declaration that the deceased lacked testamentary capacity at the relevant time of execution of the will. As Ms Kotopoulos had lodged a caveat, this proceeding was unnecessary. Not surprisingly, Ms Kotopoulos filed a notice of discontinuance of that proceeding on 31 August 2010.
On 16 September 2010 Mr Giofches applied for a grant of probate of the deceased’s last will. The inventory of assets and liabilities indicated that the deceased had left real estate valued (by the council valuation) at $1,181,000 and personal estate of $381,913. There were no liabilities. The council valuation for the shop was $597,000 and for the house was $584,000.
The application was supported by an affidavit sworn by Helen Bladenis on 9 September 2008. Ms Bladenis deposed that she was one of the witnesses to the execution of the will. In signing as a witness to the will Ms Bladenis had given her occupation as “Interpreter”. The other witness was an Australian legal practitioner, Helen Le Brun. Ms Bladenis gave evidence of the due execution of the will by Mrs Giofches.
On 17 September 2010 the Registrar of Probates raised the following requisition:
Medical evidence on oath to be provided, by the deceased’s medical practitioner as to the testamentary capacity of the testator at the time the Will was executed. The death certificate indicates the deceased was diagnosed as suffering from dementia at the time the Will was executed.
On 24 September 2010 Mr Giofches filed a supplementary affidavit sworn on 23 September 2010. Mr Giofches deposed that, shortly prior to executing her last will, Mrs Giofches had been “subjected to an assessment” by the Office of Public Advocate (“OPA”) as to her state of mental health. The request to the OPA had followed an application to the Victorian Civil and Administrative Tribunal (“VCAT”) by his sister, Ms Kotopoulos, seeking to set aside an Enduring Power of Attorney (“EPA”) executed by Mrs Giofches on 4 February 2008. Mr Giofches exhibited a copy of the OPA’s report to his affidavit. It had been prepared for VCAT by Mariella Camilleri, an investigator with the OPA, and was dated 29 July 2008. Ms Camilleri’s report responded to the following questions concerning Mrs Giofches, the proposed represented person (“PRP”):
·Does the PRP have a disability affecting ability to make reasonable decisions?
·Is there a need for a guardian?
·Is there a need for an administrator?
·What are the PRP’s wishes, so far as they can be ascertained?
The recommendation contained in Ms Camilleri’s report, which I refer to in more detail below, was that:
the application for guardianship and administration for Mrs Giofches be dismissed on the basis that Mrs Giofches does not have a disability that affects her capacity to make reasonable decisions.
Mr Giofches stated in his supplementary affidavit that after his mother’s assessment, his sister withdrew her application to VCAT.
On 29 September 2010, Ms Kotopoulos lodged a withdrawal of caveat. Therefore, she never became a party in this proceeding.
On 31 March 2011, the plaintiff’s application for a grant of probate came before Cavanough J. There was no appearance by or on behalf of Ms Kotopoulos. The plaintiff’s application was further supported by an affidavit sworn on 16 March 2011 by George Themis Glezakos, a member of the firm, Le Brun Glezakos, which under its previous name of Calleas Le Brun & Burke had been nominated by the deceased in her last will to be the solicitors for the estate. Mr Glezakos said in his affidavit that the last will had been prepared by him “on the express instructions of the deceased”. She had been a client of his since about 2002. Mr Glezakos deposed that the medical practitioner who had undertaken an assessment of Mrs Giofches’ mental capacity for the OPA was “presently on extended maternity leave, and is unable to be contacted in relation to obtaining an Affidavit in support of this Application”. Although Mr Glezakos referred to that practitioner as Dr Singh, it seems that he was intending to refer to Dr Barbara Sabangan.
According to paragraph 2 of “Other Matters” in the order of Cavanough J made on 31 March 2011, the hearing was adjourned to 28 April 2011:
because the plaintiff required time to remedy various errors and deficiencies identified by the Court in relation to the affidavit of George Themis Glezakos sworn 16 March 2011.
On 28 April 2011 the application was further adjourned by the order of Ferguson J to 9 June 2011. Again, there was no appearance by or on behalf of Ms Kotopoulos.
On 6 June 2011, Ms Kotopoulos’ solicitors MK Steele & Giammario, filed an affidavit sworn by Joseph Giammario on that day. Mr Giammario deposed that he understood that Mr Giofches would be seeking a further adjournment and that he had received instructions from his client to oppose that application. He submitted that if the plaintiff was unable to satisfy the Court on the return date as to the deceased’s testamentary capacity, then the previous will of the deceased made on 12 September 2007 should be propounded.
A further affidavit was sworn by Mr Glezakos on 8 June 2011 deposing to the difficulties he had encountered in seeking further information from Dr Sabangan.
On 9 June 2011 both the plaintiff and Ms Kotopoulos were represented at the hearing. Dixon J adjourned the further hearing of the application to 28 July 2011 and ordered that the plaintiff pay “the costs of Ms Kotopoulos of this day”. It was noted in “Other Matters” in the order that:
The purpose of the adjournment is to afford the plaintiff the further opportunity to obtain medical evidence directed to the question of the testamentary capacity of the deceased at or about the time of execution of the Will, which is the subject of the application.
An affidavit was eventually obtained from Dr Sabangan. It was sworn on 26 July 2011. I refer to the contents of the affidavit below.
Further affidavits by the opposing solicitors were also filed – one by Mr Glezakos sworn on 26 July 2011 and one by Mr Giammario sworn on 27 July 2011.
At the hearing before me on 28 July 2011 the plaintiff was represented by Mr Glezakos and Ms Kotopoulos by Ms Stanisich of counsel, who described her client as “an interested party”. Later, Ms Stanisich said that:
MS STANISICH: We’re not contesting the application. But what we are saying is that the applicant or the plaintiff must be able to satisfy the court. And from the evidence that’s been filed, we would say that the court shouldn’t be satisfied as to the deceased’s capacity at the time.
HIS HONOUR: Well, then you are contesting the application, aren’t you?
MS STANISICH: We’re not filing material in opposition or stating that we have material as to her capacity at the time to say definitively what her capacity was. So that’s the difficulty, Your Honour. I think that’s the difficulty with the application itself.
No objection was taken to Ms Kotopoulos’ counsel participating in the hearing and making submissions even though she was not a party in the proceeding.
Evidence as to Testamentary Capacity
There was the following medical and lay evidence about Mrs Giofches’ mental state at relevant times.
(a)In July 2007 Dr Rafael Milone, Mrs Giofches’ general practitioner, diagnosed her with dementia and auditory hallucinations and prescribed Olanzapine to manage this. Dr Milone told Ms Camilleri that the CAT scan done on 26 July 2007 showed “a tiny infarct in the right cerebral cortex with some cortical atrophy”, which indicated a mini stroke and normal atrophy from aging. But Dr Milone stated that this did not indicate that Mrs Giofches had lost decision making capacity. In her report, Ms Camilleri was critical of Dr Milone’s diagnosis of dementia and auditory hallucinations because “no independent interpreter was used to verify the behaviours that Ms Kotopoulos described to him upon which he based his diagnosis”.
(b)On 2 March 2008 Mrs Giofches was admitted to Werribee Mercy Hospital “post falls at home” and remained there until 4 April 2008. Upon or shortly after admission she was diagnosed as suffering from delirium. She was referred to the Western Aged Care Assessment Service and on 7 March 2008 was assessed by Geriatrician Dr Shiki Joseph. In Dr Joseph’s report it was stated that the patient was “alert/no evidence of delirium”, and it was recommended that the treating medical team “consider withdrawing Olanzapine”. This recommendation was accepted and following that medication ceasing “the number of documented incidents of disruptive behaviour and hallucinations ceased at this time & Mrs Giofches continued to improve medically & functionally …”[1]
[1]Letter from Werribee Mercy Hospital to Ms Camilleri dated 28 July 2008, which was attachment 1 to Ms Camilleri’s report.
(c)On 4 April 2008 Dr Sim, a junior medical practitioner at the Werribee Mercy Hospital, completed a Medical/Psychological Report[2] in which he stated that he had last seen Mrs Giofches the day before and that he considered that she then had “the capacity … to make an EPA”. He stated that she was “currently alert, resolved delirium”.
[2]The report was attachment 2 to Ms Camilleri’s report.
(d)On 11 April 2008 Dr Milone completed a Medical/Psychological Report[3] in which he stated that:
[3]The report was attachment 3 to Ms Camilleri’s report.
since July 07, Mrs Giofches has been showing signs of dementia with auditory hallucinations.
He had last seen Mrs Giofches on 27 February 2008. Dr Milone said that his diagnosis had been supported by a “mini mental test”. He was “unsure/unable to comment” about whether Mrs Giofches then had “the capacity … to make an EPA” He recommended a neuropsychological report and said that he had referred Mrs Giofches to Professor Helme. However, Mrs Giofches never attended Professor Helme.
(e)On 24 June 2008 Ms Camilleri met with Mrs Giofches. Relevantly, Ms Camilleri stated in her report that:
Mrs Dimitra Giofches is an 87 year old Macedonian woman who lives in her own home in Werribee, currently with council and family supports. Mrs Giofches’ husband died approximately nine years [ago]. There is a history of a strained relationship between Mrs Giofches’ children, Mr Sam Giofches and Mrs Lorraine Kotopoulos.
Mrs Kotopoulos advised me that after her father died her brother and her worked together to try to make sure that their mother [was] cared for. Following his death Mrs Kotopoulos took on the role as primary carer for her mother and continued in this capacity until late last year and Mr Giofches assisted his mother with the management of her retail property.
…
Mrs Kotopoulos advised me that her mother had made a Will in consultation with both her children in 2005. In July 2007, Mrs Giofches changed her Will after consultation with Mr Giofches but not her. Mrs Kotopoulos advised me that resulting from this action, which she perceives as excluding her, she has suffered from high levels of stress and has been unable over time to continue to care for her mother.
…
I met with Mrs Giofches on 24 June 2008 in the presence of Ms Helen Bladenis, Interpreter. Mrs Giofches was cooking her lunch. Mrs Giofches was fully aware of why I was coming to speak with her and stated that she wanted the matter dealt with as quickly as possible because she was tired of it dragging on.
Mrs Giofches advised me that in her opinion the problems began when she changed her Will. Mrs Giofches said that she had originally left the house and land to her daughter and the shop to her son. Mrs Giofches said that over time she began to realise that her daughter and son-in-law would not honour her late husband’s wish to keep the house and land in the family. Mrs Giofches stated that she believed her son would honour this request and so swapped the assets going to the beneficiaries.
Mrs Giofches stated that after this her daughter cut back on her visits and then only came sporadically. Mrs Giofches stated that she believes her daughter intentionally misinformed Dr Milone about her behaviour. This led to Mrs Giofches being put on psychiatric medication, which Mrs Giofches said affected on her in negative ways. Mrs Giofches believes that Mrs Kotopoulos did this to gain access to her finances. This allegation was put to Mrs Kotopoulos who denied that the information she gave to the doctor was false.
I asked Mrs Giofches about the allegations made by Mrs Kotopoulos and her granddaughter Mrs Margaret Antoniou that she was speaking to her late husband over the phone. Mrs Giofches stated that this was not true; she said that she had been dreaming of her late husband and did so regularly. Mrs Giofches indicated that the conversations she spoke of with her late husband were those she had in her dreams.
Mrs Giofches stated that her husband and she have financially supported Mrs Kotopoulos by providing money for her mortgage and groceries. Mrs Giofches alleged that her son-in-law was a gambler and drinker and rarely held down a job. When I put this allegation to Mrs Kotopoulos, she stated that her husband was a very good provider and that he only went to the pokies on the odd occasion and drank minimally.
Mrs Giofches demonstrated accurate knowledge of her different bank accounts and the income she derives from the shop rental. She was acutely aware of the big-ticket items she had bought over the past year and how much she took out regularly for housekeeping. Mrs Giofches has alleged that approximately $5,000 went missing from her “secret spot” when she was in hospital. I have spoken to both Mr Giofches and Mrs Kotopoulos and they have denied anything to do with the theft.
Mrs Giofches stated that she changed her EPA Financial in February of this year because her daughter lived far away, did not drive a car and was not visiting regularly any more. Mrs Giofches said that it was more convenient to have her son and daughter-in-law assist her with her finances as they lived five minutes away.
Mrs Giofches advised that she remembered signing a form that made Mr Giofches and his wife Margaret her new attorneys. Mrs Giofches did not recognise the term “Enduring Power of Attorney”; however, when I explained the meaning of this term Mrs Giofches demonstrated that she knew what it meant. Mrs Giofches advised me that she was giving authority to Sam and Margaret Giofches to manage her finances when she was no longer able to do so, that once she lost capacity she could no longer change the Enduring Power of Attorney. Mrs Giofches stated that “as long as she can see and has her memory no one is to touch anything”. At present Mrs Giofches still signs all her cheques and the power has not been executed.
Mrs Giofches told me that she discussed the changes in her EPA Financial with the solicitor George Glezakos in Greek and that she did this with and without Mr Sam and Mrs Margaret Giofches present in the room. This was verified in my discussion with Mr Glezakos.
(f)On 25 June 2008 Dr Sabangan assessed Mrs Giofches with an interpreter. She prepared a report for VCAT. It relevantly stated:
Mrs Giofches is an 87 year old Macedonian woman whom I assessed at home with a Macedonian interpreter. This follows a referral from the Office of the Public Advocate to assess Mrs Giofches’ capacity to make decisions regarding her health, lifestyle, and finances.
Mrs Giofches has a past medical history of type II diabetes, ischaemic heart disease, atrial fibrillation, hypertension, gastroesophageal reflux, renal impairment, delirium, and fractured right distal fibula and right 2nd-5th metatarsal. She was an inpatient in the Werribee and Williamstown hospitals earlier this year of which she was able to give a reasonable account. Her current medications include aspirin, caltrate, coloxyl with senna, lipitor, monopril, nexium, norvasc, ostelin, urex, paralgin and sigmaxine. She has been self-administering her medications through a Webster Pack and appeared to be compliant with these.
Mrs Giofches is currently living alone. She is independent with her dressing and meal preparation and receives formal services including personal care assistance and home help for cleaning. She is independent with her mobility with the use of a 2-wheel frame and demonstrated handrails that had been installed for her safety. She stated that her son, Sam, and her daughter-in-law Margaret assisted her with her shopping and payment of her bills. She was able to identify the benefit in receiving both formal and informal services.
She displayed a reasonable and extensive knowledge of her finances. She stated that she did not receive the aged pension, and was able to identify her assets including properties in her name, savings, and other financial obligations. She was, however, unable to recall completing an Enduring Power of Attorney. In addition, she was unable to understand or retain the concept of an Enduring Power of Attorney. However, she did clearly state on several occasions throughout the assessment that she wished for her son, Sam, to manage her finances when she was no longer capable of doing so herself.
On formal cognitive testing she was alert and appropriate. Her mood was euthymic and there was no evidence of a formal thought disorder. Her Mini Mental State Examination score was 20/30, largely limited by her limited formal education. Her orientation was 10/10 and recall 2/3. There was some evidence of mild attention and concentration difficulties. No significant deficits were noted in executive functioning.
In summary, Mrs Giofches is a woman who appears to be managing at home with the support of her son Sam and community services. She was a reasonable historian and aware of the current matter involving her children, and of the matter being reviewed by VCAT. There was no evidence to suggest a diagnosis of dementia. I do feel that she still has the capacity to make decisions regarding her health, lifestyle and finances, although I do not feel that she is able to revoke her Enduring Power of Attorney.[4]
[4]The report was attachment 4 to Ms Camilleri’s report.
(g)On 23 July 2008 Dr Milone told Ms Camilleri that Mrs Giofches had “mild dementia, but not enough not to know what she is doing, she can work out what she wants to do”. On being asked by Ms Camilleri for clarification of what he meant by this he expanded by saying “she could manage her finances”.
(h)In his affidavit sworn on 16 March 2011 Mr Glezakos gave evidence about the events leading up to the execution by the deceased of her last will:
At about the time of her executing her Will, I discussed with the deceased at some length her wishes. She made it clear that she wished to provide for the entirety of her Estate to be left to her son, the Executor named in the Will. She was advised in relation to various matters pertaining to Part IV claims and challenges to the Estate, but was very clear in her expressed wishes that her Estate be left for the benefit of her son alone.
(i)In his affidavit sworn on 26 July 2011 Mr Glezakos deposed that the deceased had instructed him to oppose Ms Kotopoulos’ application to VCAT seeking that her power of attorney be set aside and that a guardian be appointed to administer her affairs. He continued:
following the discontinuation of the VCAT proceedings, the deceased attended upon me, insistent that I attend to preparation of a revised Last Will and Testament for her. She had previously asked me to attend to preparation of such a Will immediately following the issue of VCAT proceedings by Lorraine, but I declined to do so until an assessment of her mental health had been undertaken, and she had had the opportunity to “cool off”. In light of her firm instructions, I prepared the deceased’s Will in accordance with her wishes that Lorraine be excluded. I had the Will witnessed by an interpreter, Ms Helen Bladenis, and my business partner, Ms Helen Le Brun, once the Will had been read over to the deceased in Macedonian, and explained by me in Greek (she being familiar with both languages more so than English). This Will, executed on 9 September 2008, accurately reflects the deceased’s clear instructions to me. As previously deposed by me, I explained, prior to her executing her Will, the likelihood of a Part IV claim, and asked her to considered [sic] making provision for her daughter. She insisted that she did not wish to do so. I truly believe that she understood the nature of the Will she was signing, and that the said Will accords with her wishes at that time.
(j)The chronology would therefore appear to be as follows. Mrs Giofches gave her instructions about a new will to Mr Glezakos following the issue of Ms Kotopoulos’ application to VCAT. Although that date is not known it has to be some time prior to 24 June 2008, when Ms Camilleri met with Mrs Giofches. Then, the will was drawn a short time after the VCAT application was withdrawn, which step occurred some time after 29 July 2008, being the date of Ms Camilleri’s report. Thus, there was a gap of at least five weeks between the giving of the initial instructions and the drawing of the will and a further gap of approximately five weeks between the preparation of the will and its execution.
(k)According to Ms Bladenis, prior to the execution of the will on 9 September 2008:
(a)the testatrix was advised of the effect of Testator’s Family Maintenance Provisions, having had information in respect of the effect of Testator’s Family Maintenance Provisions annexed hereto and marked with the letter “B” read over by me to the said Testatrix and translated into the Macedonian language to the Testatrix.
(b)the said Will was read over by me to the said Testatrix and translated into the Macedonian language to the Testatrix.
Ms Bladenis further stated that both she and Mrs Giofches were Macedonian in nationality and that Macedonian was their native tongue. She deposed that Mrs Giofches “seemed fully to understand” the will and “the nature and effect thereof”. Exhibit “B” to Ms Bladenis’ affidavit was a summary just over one page in length of the provisions concerning testator’s family maintenance applications. It was headed “Challenges to Wills”.
(l)Mrs Giofches was seen by a general practitioner, Dr Feda Edgal, a number of times between 13 June and 19 December 2008. In a letter from Dr Edgal to Mr Glezakos dated 17 May 2011 it was stated as follows:
I saw Mrs Giofches for the first time on 13.6.2008 for a review of her fractured right tibia. I saw her on 16.8.08 for Influenza immunisation and 19.6.08 [sic] for repeat prescription. I reviewed her on 21.8.08 after she was discharged from the Werribee Mercy Hospital. She came on 15.9.08 for another repeat prescription. I saw her again on 17.11.08 for both repeat prescription and her knee pain. I then reviewed her on 19.12.08 for a review after she was discharged from the Werribee Mercy Hospital for pneumonia.
My examination on her was at a physical level. Mrs Giofches was a fragile lady but I never formally assessed her cognitive function in regards to her mental state. Therefore I am unable to comment on her testamentary capacity at the time of my meeting with her in mid 2008.
(m)In his affidavit sworn on 26 July 2011 Mr Glezakos also said:
I understand from the deceased’s son, Sam, that the deceased’s physical state deteriorated sometime following her attendance upon me in September 2008. This resulted in her being placed in a nursing home in or about February 2009 …
(n)On 24 February 2009 Mrs Giofches was assessed by Annee Miron, an occupational therapist and a member of the Western Aged Care Assessment Team, as “having dementia by then”. A letter dated 8 February 2011 from Dr Whiting of the same service to Mr Glezakos continued:
Her Mini Mental State Examination score at that time was 13/28. No comment was made about her testamentary capacity then.
From the information available from the file it is not possible to be definitive about Dimitra Giofches’ testamentary capacity on 09/09/2008. It is not possible for me to know from her ACAS file notes when her dementia was first apparent or when she lost testamentary capacity.
(o) On 26 July 2011 Dr Sabangan swore the following affidavit:
1. I am a Medical Practitioner and Physician in Geriatric Medicine.
2.I had cause to attend upon Ms Dimitra Giofches on 25 June 2008, as a result of a referral from the Victorian Civil & Administrative Tribunal.
3.I was asked to assess Mrs Dimitra Giofches’ capacity to make decisions regarding her health, lifestyle and finances. At the time that I saw Dimitra Giofches on 25 June 2008 I felt that she had the capacity to make such decisions. Furthermore, there was insufficient clinical evidence to sustain a diagnosis of dementia.
The Law
The relevant principles can be summarised as follows.[5]
[5]See generally Kantor v Vosahlo [2004] VSCA 235; Nicholson v Knaggs [2009] VSC 64.
(a)When there are circumstances which give rise to suspicion about the testatrix’s testamentary capacity, the propounder of the will assumes the burden of affirmatively proving, to the satisfaction of the Court, that she had the requisite capacity to make the will,[6] that is, that she was of sound mind, memory and understanding when she executed it or, if instructions for the will preceded its execution, when the instructions were given.[7]
[6]Kantor v Vosahlo [2004] VSCA 235, [3] (Ormiston JA); Nicholson v Knaggs [2009] VSC 64, [87].
[7]Boreham v Prince Henry Hospital (1955) 29 ALJ 179, 180 (Williams, Fullagar and Kitto JJ).
(b)The standard of proof is upon the balance of probabilities “but the Court is not to reach such a conclusion unless it has exercised the caution appropriate to the issue in the particular circumstances by a vigilant examination of the whole of the relevant evidence”.[8]
(c)To prove that the testatrix was of sound mind, memory and understanding at the relevant time, the propounder must satisfy the Court that the testatrix:
(i)understood the nature and effect of making a will;
(ii)was aware of the general nature and value of her estate;
(iii)was aware of those who would have a legitimate claim to the estate; and
(iv)was able to evaluate and discriminate between such claims.[9]
(d)Although it needs to be shown that the testatrix understood that she was executing a will and the practical effect of the central clauses in the instrument, including the dispositions of property made, it is not necessary to establish that she was capable of understanding every clause of the will.[10]
[8]Kantor v Vosahlo [2004] VSCA 235, [22] (Ormiston JA).
[9]Banks v Goodfellow (1870) LR 5 QB 549, 565; Bailey v Bailey (1924) 34 CLR 558, 566-567 (Knox CJ and Starke J); Timbury v Coffee (1941) 66 CLR 277, 283 (Dixon J); Nicholson v Knaggs [2009] VSC 64, [100] (Vickery J).
[10]Nicholson v Knaggs [2009] VSC 64, [97] (Vickery J).
Consideration of the Issues
Ms Stanisich submitted, on behalf of Ms Kotopoulos, that the Court could not be affirmatively satisfied that Mrs Giofches had the necessary testamentary capacity at the time she executed her last will on 9 September 2008. She referred to the fact that the deceased’s death certificate recorded “advanced dementia” at the date of death, being approximately 19 months after the will was made. Ms Stanisich also referred to the fact that on 24 February 2009, some five and a half months after the will was executed, Mrs Giofches was assessed by an occupational therapist as having dementia, having recorded a score of 13/28 on the relevant test. This had led Dr Whiting to write in February 2011 that it was “not possible to be definitive” about Mrs Giofches’ testamentary capacity on 9 September 2008 or for him to know “when her dementia was first apparent or when she lost testamentary capacity”. Ms Stanisich also referred to Dr Milone’s report of 11 April 2008 in which he stated that “since July 07, Mrs Giofches has been showing signs of dementia with auditory hallucinations”.
Ms Stanisich submitted that the sudden change in Mrs Giofches’ attitude towards her children, from equal treatment in September 2007 to exclusion of the daughter in September 2008, was consistent with a state of dementia when combined with a rather paranoid view as to how the daughter was behaving. She referred in this respect to what Mrs Giofches had told Ms Camilleri about Ms Kotopoulos intentionally misinforming Dr Milone about her behaviour. Ms Stanisich also relied on the allegation of the theft of $5,000 as further evidence of paranoia on the part of Mrs Giofches. Ms Stanisich also submitted that the suggestion that Mrs Giofches had changed her will because of her daughter’s application to VCAT was not borne out by the reasons given in her last will for not leaving anything to her daughter.
Ms Stanisich further submitted that the plaintiff’s evidence was deficient. She pointed out that:
(a)the solicitor making the will had not specifically tested for testamentary capacity and had not provided any file notes as to his observations at the time of making the will;
(b)no medical evidence of capacity had been arranged at the time of making the will, despite concerns having been raised as to Mrs Giofches’ general capacity before then, the fact that she was elderly (aged 87), was making a radical change to a will made only a year prior and that she had ready access to a range of doctors at the time;
(c)the plaintiff had not given any evidence as to his observations of his mother at the relevant time;
(d)the VCAT proceeding did not address the question of testamentary capacity and was only concerned with the issue of whether a power of attorney should be set aside; and
(e)the evidence relied upon by the plaintiff, which was that the deceased was able to make reasonable decisions regarding her health, lifestyle and finances, was insufficient to support a finding that the deceased had testamentary capacity. Ms Stanisich referred to the decision of Mandie J in Brown v Sandhurst Trustees Ltd[11] where a grant of probate was revoked on the grounds of lack of testamentary capacity due to alzheimer’s disease in circumstances where the testator was living in a supported residential service (low care), he required limited assistance, he took himself out once every fortnight, read the newspaper and participated in a regular aged services department program.[12]
[11][2009] VSC 212.
[12][2009] VSC 212, [147]-[152].
Finally, Ms Stanisich submitted that the omissions and inconsistencies in Dr Sabangan’s report were not cured by her uninformative three paragraph affidavit. Ms Stanisich submitted that in neither document did Dr Sabangan address the question of testamentary capacity. Nor did Dr Sabangan explain in her affidavit why she had concluded in her report that Mrs Giofches was not “able to revoke her Enduring Power of Attorney”, even though she had stated that “there was no evidence to suggest a diagnosis of dementia”. Ms Stanisich also queried how this statement married up with other statements by Dr Sabangan in her report that Mrs Giofches was “unable to recall completing an Enduring Power of Attorney” and was “unable to understand or retain the concept of an Enduring Power of Attorney”.
Mr Glezakos submitted, on behalf of the plaintiff, that the evidence established that the deceased had testamentary capacity at the time she gave instructions for her will and the time she executed the will. He submitted that the evidence established that the deceased understood the nature and effect of making a will, although she may not have understood each and every clause therein; that she displayed “a reasonable and extensive knowledge of her finances” and was able to identify her assets both real and personal; that she understood the implications of what she was doing in changing her will and not leaving anything to her daughter; that she had made clear that she wished her son to manage her finances when she was no longer capable of doing so and that she had made arrangements for this to happen; and that the contents of the will had been explained to her in her native Macedonian language by Ms Bladenis and in the Greek language, which she also understood, by Mr Glezakos himself.
Mr Glezakos submitted that the evidence of Dr Sabangan that Mrs Giofches scored 20/30 on the mini mental state test, which result was “largely limited by her limited formal education”, 10/10 for orientation and 2/3 for recall, was not indicative of somebody who lacked testamentary capacity.
Mr Glezakos further submitted that Ms Kotopoulos by her own actions, in commencing a proceeding seeking a declaration that the deceased lacked testamentary capacity and then discontinuing it and then lodging a caveat and withdrawing it, had effectively conceded that her mother had testamentary capacity at the relevant time.
Finally, Mr Glezakos submitted that the apparent inconsistency in Dr Sabangan’s report highlighted by the submissions made on behalf of Ms Kotopoulos was explicable. First, he pointed out that the effect of the evidence of both Dr Sabangan and Ms Camilleri was that it was the term “Enduring Power of Attorney” which Mrs Giofches was unclear about rather than the nature and effect of such a document. Secondly, Mr Glezakos submitted that Dr Sabangan should be understood as saying that Mrs Giofches was not able to revoke her Enduring Power of Attorney because according to Dr Sabangan’s perception, she was “unable to understand or retain the concept of an Enduring Power of Attorney”.
I have given the competing submissions lengthy and anxious consideration. In my opinion, the medical evidence is not unequivocal. It seems that by 24 February 2009, some five and a half months after the will was executed, Mrs Giofches was suffering from dementia, which had become advanced dementia by the time of her death some 13 and a half months later. In addition, Dr Milone had expressed the view in April 2008, five months before the will was signed, that Mrs Giofches had been “showing signs of dementia” since July 2007, but in July 2008 he had stated that her “mild dementia” was not enough for her not to know what she was doing and that she could work out what she wanted to do and could manage her finances. Dr Sim stated in April 2008 that he considered Mrs Giofches had “the capacity … to make an EPA” and in June 2008 Dr Sabangan concluded that “there was no evidence to suggest a diagnosis of dementia”. Although Dr Edgal saw Mrs Giofches seven times between 13 June and 19 December 2008 such examination as there was “was at a physical level” and no formal assessment was made as to her mental state. Thus, there was no medical evidence on oath as to the testamentary capacity of Mrs Giofches at the precise time the will was executed.
In my opinion, the best evidence of Mrs Giofches’ mental state in September 2008, because it is closest to the time of the execution of the will, was that of Dr Sabangan. It is also the only sworn medical evidence. Although it is true that Dr Sabangan’s report was not answering the question of Mrs Giofches’ testamentary capacity, but rather a different question, namely Mrs Giofches’ capacity to make decisions regarding her health, lifestyle and finances, it does seem to me that her affirmative answer to that different question coupled with her observation that “there was no evidence to suggest a diagnosis of dementia” is helpful evidence for the plaintiff. I am not so troubled by the delay of 10 or 11 weeks between the time Dr Sabangan assessed Mrs Giofches and the date the will was executed. It seems to me that the lay evidence supports a finding, on the balance of probabilities, that Mrs Giofches’ mental state was much the same on the two occasions. In any event, the more important time for testamentary capacity is when the instructions of the will were given[13] and this occurred around about the same time as Dr Sabangan’s assessment, probably only a short time before it.
[13]Boreham v Prince Henry Hospital (1955) 29 ALJ 179, 180 (Williams, Fullagar and Kitto JJ).
The reports of Dr Sabangan and Ms Camilleri and the affidavits of Mr Glezakos provide support, in my opinion, for a finding that Mrs Giofches well understood what she was doing when she changed her will and that she knew what this would mean for her son and daughter if all of her assets were left to her son and that this is what she then wanted. Whilst I accept that the reports of Dr Sabangan and Ms Camilleri addressed a different question, it seems to me that their conclusions about Mrs Giofches’ capacity to make decisions regarding her health, lifestyle and finances and their evidence about Mrs Giofches’ knowledge of her real and personal assets and her understanding of the nature and effect of an EPA even if she did not recognise the title of such a document or recall signing one some months earlier, went a long way towards establishing testamentary capacity. Further, the deceased’s mental state in the case cited by Ms Stanisich was a far cry from this situation, in my opinion.
I do not accept the submission that Mrs Giofches’ discussion with Ms Camilleri about her daughter’s behaviour and the change in the way she provided for her two children in her last will indicated paranoia or dementia. It seems to me that what Mrs Giofches told Ms Camilleri about her past and present relationship with her children, when combined with the fact that Ms Kotopoulos had applied to VCAT to set aside an EPA by Mrs Giofches in favour of her son and Mr Glezakos’ evidence about the circumstances in which he received instructions to prepare a new will, provide an explanation for Mrs Giofches’ change of attitude towards her children. I am also not persuaded by the submission that the fact that the reasons given in the last will for not leaving anything to the daughter do not match this explanation was indicative of a lack of testamentary capacity. The statement by Mrs Giofches that she considered that Ms Kotopoulos had “sufficient income and assets to allow her to maintain an adequate standard of living” meant that she would have felt able to abandon her previous approach of equality between her children as a result of her upset at her daughter’s actions. Further, there is no evidence from Ms Kotopoulos suggesting that this assertion was obviously incorrect and that this therefore demonstrated that her mother was lacking testamentary capacity.
This is not to say that there was not some force in the criticisms advanced by Ms Stanisich of the sparseness of the plaintiff’s evidence. It is perhaps surprising that Mr Giofches did not include in his supplementary affidavit his observations of his mother’s mental state between say June and September 2008, or alternatively an explanation of why he was not able to do so. The evidence about the giving of the instructions for the will could also have been more detailed. On the other hand, Ms Kotopoulos did not provide any evidence of her observations of her mother’s mental state at the relevant time.
The other problem with the plaintiff’s evidence was the apparent inconsistency, referred to above, in Dr Sabangan’s report which was not explained or even mentioned in her affidavit. I consider that the most likely explanation was that put forward by Mr Glezakos. But even if that is not correct, Dr Sabangan has gone on oath to say that she felt that Mrs Giofches had the capacity on 25 June 2008 to make decisions regarding her health, lifestyle and finances and that “there was insufficient clinical evidence to sustain a diagnosis of dementia”.
Therefore, I have decided, despite the criticisms of the plaintiff’s evidence, that I am affirmatively satisfied that the testatrix had the necessary testamentary capacity at the appropriate time to make the propounded will and that a grant of probate should be made.
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