Lacerenza v Calautti - [2005] WASC 46

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: LACERENZA -v- VERONICA MARIA CALAUTTI as Executor of the Estate of ANNA LACERENZA (DEC) & ORS [2005] WASC 46

CORAM: JENKINS J

HEARD: 8 - 11 MARCH 2005

DELIVERED : 24 MARCH 2005

FILE NO/S: CIV 2444 of 2002

MATTER :Estate of ANNA LACERENZA (DEC)

BETWEEN: STEFANO LACERENZA
Plaintiff
AND
VERONICA MARIA CALAUTTI as Executor of the Estate of ANNA LACERENZA (DEC)
First Defendant
VERONICA MARIA CALAUTTI
Second Defendant
TERESA LACERENZA
Third Defendant

Catchwords:

Succession - Wills - Application for revocation of a Grant of Probate - Testamentary capacity - Terminally ill patient

Legislation:

Evidence Act 1906, s 79C

Result:

Plaintiff's claim allowed
Defendants' counterclaim allowed

Category: B

Representation:

Counsel:

Plaintiff:     Mr T Lampropoulos
First Defendant             :     Mr P S Bates
Second Defendant         :     Mr P S Bates
Third Defendant           :     Mr P S Bates

Solicitors:

Plaintiff:     Naveen Pillay
First Defendant             :     Arns & Associates
Second Defendant         :     Arns & Associates
Third Defendant           :     Arns & Associates

Case(s) referred to in judgment(s):

Banks v Goodfellow (1870) LR 5 QB 549
Nock v Austin (1918) 25 CLR 519
Perera v Perera (1901) AC 354
Silvester v Tarabini, unreported; SCt of WA (Anderson J); Library No 960062; 13 February 1996
Waring v Waring (1848) 6 Mood CC 341

Case(s) also cited:

Nil

JENKINS J: Stefano Lacerenza ("the plaintiff") and Anuta Lacerenza ("the deceased") were husband and wife. Veronica Calautti ("the first defendant") is the executor of the deceased's estate in respect to a Will of the deceased on which Probate was granted on 15 February 2001 ("the third Will"). She is also, personally, the second defendant. The second defendant and Theresa Lacerenza ("the third defendant") are the daughters of the deceased. The plaintiff seeks orders revoking the said grant of Probate, declaring against the force and validity of the third Will and a declaration that the deceased did not have capacity or sufficient capacity to make a valid Will as at 9 January 2001, the date the deceased executed the third Will.
The defendants deny that the deceased did not have the capacity to make a valid Will as at 9 January 2001. Their defence further pleads that the deceased executed a Will on 19 December 2000 which was prepared by Giuseppe Lacerenza, ("Mr Lacerenza Junior"), the son of the deceased, who is also a legal practitioner (the second Will"). The defence asserts that the third Will was prepared by another legal practitioner, Ms Helen Drury, who was present when the deceased executed the Will, this being the same date that it was read out to the deceased in the Italian language. The defence alleges that prior to its execution the deceased was lucid and appeared to fully understand and approve of the contents of the Will.
The defendants have filed a counterclaim which pleads that if, which is denied, the deceased was not of sound mind, memory and understanding when she executed the third Will, dated 9 January 2001, then the last Will and testament of the deceased was the second Will. They seek a declaration that the second Will be pronounced as the last Will and testament of the deceased and that it be admitted in Probate in solemn form.
This issues that I must determine are:
1.whether the deceased had sufficient capacity to make the third Will; and
2.if not, whether the deceased had capacity to make the second Will.

The Facts

The deceased was born on 8 December 1929 in Europe. It is not clear to me whether the deceased is of Romanian or Italian heritage but in either event she spoke Italian and over the course of her life time she learnt to understand English. The plaintiff was also born in Europe. He is 84‑years‑old. The deceased and the plaintiff married in Europe around the time of the Second World War. They had three children; the eldest being the third defendant, followed by Mr Lacerenza Junior and then the second defendant. The family immigrated to Australia in the 1950's.
The plaintiff was the main income earner for the family. He operated an electrical contracting business. The deceased devoted her life to her family but she also worked on occasions outside of the house. She was able to understand oral English and could speak simple English. She could only understand simple written English.
The first property that the plaintiff owned was in Palmerston Street, Perth. In the mid 1960's a block of land was purchased at 15 Conto Avenue, Dianella. From the date of purchase the deceased was the sole registered proprietor of this property. This is the only property of any significant value in the deceased's estate. The plaintiff built a home on the block and the family moved into it in about 1968. The plaintiff and the deceased lived together in the home until the deceased's last admission to hospital. The plaintiff continues to reside in it. There is an issue as to when the plaintiff discovered that he was not a registered proprietor of that property. It is not an issue that I need to resolve in this proceeding.
The Palmerston Street property was leased until Mr Lacerenza Junior and his wife moved into it in the 1970's. At some time he and his then wife became the registered proprietors of that property.
A commercial property in Midland was purchased by Mr Lacerenza Junior and the third defendant at some later time. Subsequently, the third defendant's share in the property was transferred to the plaintiff. In 2002 the plaintiff and Mr Lacerenza became joint tenants of that property and remained so to the date of hearing.
On 4 June 1981 the deceased executed a Will ("the first Will"). The plaintiff also executed a Will on the same date. The Wills were substantially identical and reciprocal in substance. In them they left their estates to each other. If the other spouse did not survive them they left their estate to their children in equal shares. They each appointed Mr Lacerenza Junior as their executor and trustee. As such, they each left their estate to Mr Lacerenza Junior upon trust to convert it into money and to divide it amongst the beneficiary or the beneficiaries. Mr Lacerenza Junior was given the usual powers of sale.
In 1987 the deceased was diagnosed with breast cancer. In 1993 she had a recurrence of that cancer. In 1998 she was diagnosed with bone metastases. These were controlled with appropriate treatment. In 1999 she felt run down and went to Spain to visit her daughter, the third defendant. Upon her return to Australia she found she had not improved and in February 2000 she was diagnosed with a progression of the bone cancer. The deceased commenced chemotherapy and had a series of chemotherapy treatments in 2000.
The third defendant returned from Spain, where she lives, in the first half of 2000 to assist her mother as she underwent the chemotherapy. In mid 2000 the third defendant had to return to Spain in order to comply with visa restrictions. She returned to Australia in about September and remained here until after her mother's death in early 2001. Whilst in Australia she lived with her parents at the Conto Avenue property and devoted herself to the care of her parents, in particular, her mother.
The second defendant operated a retail business with her husband in Inglewood and so it was difficult for her to help her mother during the day but she helped as best she could, particularly when the third defendant was overseas. She visited her mother very regularly in the evenings.
Mr Lacerenza Junior also worked full‑time, in his case in his legal practice, and so was not available during the day to assist his mother. However he, too, visited his mother and father frequently out of business hours. He remains very close to the plaintiff whereas his sisters are estranged from him.
The plaintiff continued living with the deceased in the Conto Avenue property throughout 2000. His health was also failing and he relied upon his daughters to help the deceased. There may also have been cultural and personal reasons why the second and third defendants primarily assisted the deceased.
In September 2000, the deceased was found to have heart disease which was treated with drug therapy. At this time she spent 12 days in hospital. The hospital notes were admitted into evidence and I rely upon them as evidence of the facts which are asserted in them pursuant to the Evidence Act, 1906 (WA), s 79C. I have found the notes to be most helpful as they were completed in the course of the hospital's everyday business of recording the deceased's activities, care and treatment at relevant periods and they were completed by people who do not have any interest in the outcome of these proceedings. At admission, the deceased complained of feeling weak and not feeling well. The notes record that she was tired and needed encouragement to ambulate but by the time she was discharged she was doing so.
A week later she spent another week in hospital because she was still lethargic. The patient admission assessment notes that she was usually independent in her activities of daily living and the hospital notes record that she was independent or self‑caring in her hygiene whilst in hospital. It was recorded at various times that she was watching TV, reading the newspaper, walking around the ward and speaking with her visitors. In the nursing notes there is no indication that the nurses had difficulty communicating with the deceased.
In November 2000 further progression of the deceased's disease was disclosed with evidence of intra abdominal disease, liver metastases and worsening bone metastases. The deceased was admitted to hospital between 12 and 24 November. The patient admission assessment notes that the reason for her admission was back pain, vomiting and "not coping at home". In the early stages of her admission she spent a lot of time sleeping and resting in bed. She had assistance with showering and personal hygiene. On 19 November 2000 she had a fall when returning to her bed after showering. She was noted to be conscious and coherent. Towards the end of her admission she appeared more active, to be self‑caring, watching TV, walking around the ward and chatting with visitors.
Her discharge medications including dexamethasone, 4 milligrams once daily, but there is no mention of Panadene Forte. On discharge, the deceased was walking.
The deceased returned home. It is here that the facts become disputed. Before resolving those disputes I will conclude my summary of the undisputed facts.
The deceased remained at home until 10 December 2000. Around 6 December Mr Lacerenza Junior was asked by his sisters to meet them at the second defendant's retail business. He did so, but what was discussed between them is not the subject of agreement. It is not disputed that the sisters asked him to draw up a document in the form of a Will for the deceased in terms which left the Conto Avenue property to the second and third defendants and a life interest in the house to the plaintiff. Mr Lacerenza Junior agreed to do so and subsequently prepared a document which had all the appearances of a draft Will in the name of the deceased. A copy of this document was exhibited at trial and I sighted the original of it. It was prepared in the office of Mr Lacerenza Junior. It has cardboard covers which bind the two page document. The front cover has the date 2000, the name "Anna Lacerenza" and the word "Will" between horizontal lines. In its unexecuted state the typed document was, in substance and form, a draft Will of the deceased. There is nothing in its appearance or substance that would be likely to lead a lay person to think that it was anything other than a genuine draft Will. However, it did not contain a clause to the effect that the Will had been translated, into the Italian language, to the deceased before she signed it ("a translation clause"). Mr Lacerenza Junior gave the document to his sisters at the Conto Avenue property. There is no agreement as to whether this was in the presence of his mother, the deceased, and what was said at the time.
On 10 December 2000 the deceased was again admitted to hospital where she remained until 22 December 2000.
On the hospital admission form it is noted that the deceased had diarrhoea and vomiting and felt unwell. A previous fall, apparently the previous Tuesday, was noted. For the majority of the deceased's stay she required assistance with her hygiene. Her activities in hospital consisted of either resting in bed, sitting out of bed or walking around the ward with a frame.
During this visit the deceased was visited by an old family friend, Maria Laura Fiorillo. Ms Fiorillo was called by the plaintiff and her evidence about the deceased's condition in December was not disputed by the defendants. I find Ms Fiorillo to be a credible and reliable witness. Ms Fiorillo said that when she visited the deceased in December she was looking forward to going home for Christmas and the Christening of a grandchild. She said that she was quite well and happy and that they talked about the family. She did not have any conversation with the deceased about the Will.
On 19 December 2000 the deceased signed the draft Will which Mr Lacerenza Junior had prepared ("the second Will"). The second Will was signed in the presence of the third defendant and witnessed by a registered nurse and pharmacist at the hospital. Neither of the witnesses was called to give evidence. The second Will was not read to the deceased in English or Italian at the time of its execution.
On that date the hospital notes record that the deceased slept most of the night, was sitting out of bed at 7.45 am, had breakfast, walked around the ward, had lunch, rested in her bed, then slept, sat out of bed and was asleep at 10.30 pm. The total care progress notes record:
"0600 slept well, nil complaints.
1300 attended own hygiene needs with help of daughter. Ambulant around ward.
S/B Dr Van Hazel - ? Home tomorrow.
Pt [and] family attending to ADL's. Otherwise no change."
Upon discharge, the deceased returned home. She had Christmas at home but it seems that she remained in bed for most of that period. A photograph taken of her on Christmas Day with her grandchildren shows her on her bed, apparently supporting herself on one arm, smiling and looking alert. She is lying across the bed, surrounded by her grandchildren. She appears also to be supporting a baby. She is probably wearing lipstick.
Around this time the deceased had a conversation with Mr Lacerenza Junior and told him that he was "sick in the head". I accept that this was a criticism of him because she had learnt that he had prepared the draft second Will without a translation clause in it knowing that the omission may render the Will invalid.
On 27 December 2000 the deceased was readmitted to hospital suffering nausea and vomiting, vertigo and falls. She remained in hospital until she died on 16 January 2001.
The hospital notes record that she spent her time sitting out of bed, ambulating around the ward with a frame and her family, resting in bed or sleeping. Up to and including 9 January there is no indication that she was mentally confused or that the nurses had difficulty communicating with her. On 30 December she had a fall from her chair. In the incident report the nurse notes that the deceased was rational before the incident. No injuries were noted after it.
On 8 January 2001 the second defendant made an appointment to see a solicitor, Ms Helen Drury, from Irdi & Associates. Ms Drury was a credible witness. She has had experience in the preparation and completion of wills since 1982, having been employed at that time with a firm of solicitors in Albany, having a large wills and probate practice. In approximately 1989 she commenced her five year articles with that same firm and was admitted to practice in 1994. She commenced employment with Irdi Legal in 1997 and practises extensively in the area of wills and probate. Further, many of Irdi & Associates' clients are of ethnic origin who understand English but do not read it. Consequently, Ms Drury has gained further and considerable experience with respect to the need for having wills interpreted to clients, confirming that they understand the wills and ensuring that wills are properly executed.
The second defendant told Ms Drury that her mother was dying of cancer and that she had signed a Will prepared for her by Mr Lacerenza Junior. Ms Drury knew Mr Lacerenza to be a solicitor. The second defendant told Ms Drury that the plaintiff was "furious" that her mother had executed this Will and had repeatedly told the deceased that the Will was not worth the paper it was written on. The second defendant told Ms Drury that she was upset that her father was causing her mother unnecessary distress and her mother was determined to retain the provisions in the Will as they had been prepared by her brother. The second defendant told Ms Drury that she suspected that her brother may have told her father that the Will was useless. Ms Drury asked the second defendant whether her mother was able to understand what was going on about her, whether or not she could communicate with people and whether she could understand what was said to her. The second defendant advised her that the deceased did understand what was going on, that she could communicate but that she got very tired. Ms Drury also asked the second defendant if her mother could read and/or speak English. The second defendant told her that her mother could read little English but could speak English and understand spoken English.
Ms Drury examined the second Will and told the second defendant that the only significant problem she could see with the Will was that there was not a translation clause in it. She advised the second defendant that if her mother did not read English and the Will had not been interpreted to her before it was signed, then it could be argued that the Will was invalid. She advised that in view of the plaintiff's attitude and her advice that her mother wanted the Will to be upheld, that the Will should be redone and properly interpreted to her mother before it was signed by her. She did not recall, nor record, that the second defendant advised her that the Will had been read to or translated from English into Italian for the deceased at any time prior to its execution.
The second defendant told Ms Drury that Mr Lacerenza Junior had been provided for during her mother's lifetime. She told her that there had been a transfer to him of an interest in a house in North Perth, presumably the Palmerston Street property, and that there was a property in Midland that Mr Lacerenza Junior owned equally with her parents, her parents had paid their full share of the purchase price but now their share was mortgaged to secure her brother's debts. I accept that the second and third defendants held these beliefs. Whether they are correct is a question I do not have to determine in this matter.
The second defendant also told Ms Drury that the deceased wished to be buried in the mausoleum at Karrakatta but that the plaintiff had already purchased a family plot. Ms Drury gave advice to the second defendant about the deceased's wishes including that any application for a place in the mausoleum should be signed by the deceased and not by either of the defendants. The second defendant told Ms Drury that she would discuss the Will with the deceased.
Ms Drury advised the second defendant that if she took instructions from her for the Will she insisted upon attending its execution.
Ms Drury's file notes record a telephone conversation later that day with the second defendant. Ms Drury took instructions from the second defendant to prepare a new Will for her mother in exactly the same terms as the second Will, except for the addition of a clause to include the deceased's request to be buried in the mausoleum.

During the original consultation with the second defendant Ms Drury had been given a copy of the second Will. Ms Drury used this copy to prepare a new Will. She adopted the same provisions except for using, what the second defendant had advised her was, the deceased's full name (Anuta, instead of Anna), the addition of a translation clause and the expression of a desire to be buried in the mausoleum.
Ms Drury made arrangements with the second defendant to attend upon the deceased at hospital to have the new Will executed. Ms Drury was not busy because it was the holiday period and so she offered to attend at the hospital the following day. She advised the second defendant that the firm could not provide an Italian interpreter and the second defendant told her that she would arrange the interpreter herself. Ms Drury told the second defendant that the interpreter should be independent of the family, fluent in speaking Italian and capable of reading the English language.
The third defendant contacted the adult daughter of a close friend, Veronica Anna‑Maria Zaffino. At trial there was some suggestion that Ms Zaffino was not an impartial witness. However, given the lack of contact between the deceased, the defendants and the witness prior to 9 January or after it, Ms Zaffino's demeanour and the substance of her evidence I have no hesitation in accepting her as an unbiased witness. Ms Zaffino is a primary school teacher. She has also studied Italian at university. She has lived and worked as a teacher in Italy between 1996 and 1997.
On about 8 January 2001, Ms Zaffino received a telephone call from the third defendant asking her to attend at the hospital to translate a Will for her. The third defendant told her that the deceased wished to do a Will and that she had been told by a lawyer that the Will had to be translated to the deceased in Italian. She also said that the deceased would feel more comfortable if Ms Zaffino would translate it to her. Ms Zaffino agreed to do this.
Ms Drury testified that she thought she had attended the hospital somewhere between 3.00 and 4.15 pm on 9 January. She could not recall exactly how long she had stayed at the hospital. Ms Zaffino says that she went to the hospital in the early evening. The hospital notes record that at 5.00 pm visitors were present with the deceased. It seems likely that these included Ms Drury and Ms Zaffino.
Ms Zaffino arrived at the hospital before Ms Drury. She was met in the hallway by the third defendant and taken into the deceased's room. She said that either the second or third defendant was playing cards with the deceased. She had not seen the deceased for a number of years but the deceased recognised her immediately and asked after her mother. She also asked Ms Zaffino if she was still teaching. Ms Zaffino testified that she had not seen the deceased for 10 ‑ 15 years when she would have been in her late teens or twenties. She said that the deceased looked tired but did not appear weak. She said that she could not recall her having trouble speaking.
After about 15 minutes Ms Drury arrived. She thought that the deceased looked "quite striking". She noted that she was sitting up in the bed, propped up with pillows, and was "beautifully groomed". She appeared to have had some makeup applied to her face. Ms Drury said that as she walked into the room the deceased looked at her and followed her with her eyes as she moved to her bedside. Present in the room was the second and third defendants and Ms Zaffino. Ms Drury introduced herself to the deceased and asked if she was Anna Lacerenza. The deceased acknowledged that she was. Ms Drury then read in English to the deceased the draft Will she had prepared. After she read each clause to her she explained what the effect of the clause was and asked the deceased if that was what she wanted and whether she understood her. The deceased acknowledged either by saying "Yes", "Yes, I understand" or by nodding her head. In respect to cl 4.1 the deceased told Ms Drury that she wanted her husband, the plaintiff, to live in the house but it was to be for her daughters when he died. Ms Drury told her that that was what the Will provided and that it did not require the plaintiff to pay the rates and insurance on the house. Ms Drury asked her if that was what she wanted or did she want her to alter the Will so he had to pay them. The deceased said no, it was how she wanted it.
As to her desire to be buried in the mausoleum, the deceased told Ms Drury that she wanted the mausoleum and not to be buried.
Ms Drury then asked Ms Zaffino to translate the Will to the deceased in Italian. There is a dispute between Ms Drury and Ms Zaffino as to whether Ms Drury read each clause in English and whether it was then translated one clause at a time to the deceased or whether Ms Zaffino translated it as a whole document. I do not find it necessary to resolve this dispute. Either method may have been employed. On one or two occasions Ms Zaffino did not know the Italian equivalent of a word in the Will. She asked Ms Drury if her understanding of the word was correct. Ms Drury explained that it was and Ms Zaffino then put that explanation to the deceased in Italian. Ms Zaffino was convinced that the deceased understood what was being translated to her. The effect of Ms Drury's evidence was that she would have not permitted the deceased to execute the Will unless she was satisfied that the deceased understood what was being said to her and agreed with it.
At the conclusion of the translation a relative of another patient at the hospital came into the room and witnessed the deceased's signature, as did Ms Drury. The deceased took a long time to execute this document which once executed became the third Will. The signature appears to be done with a shaky hand. It is also quite simplistic as compared to the signature on the second Will. It is barely decipherable. Ms Drury left after the execution of the third Will. Ms Zaffino stayed behind for a little longer and chatted with the deceased.
In the days following the execution of the third Will there was an acceleration of the deterioration in the deceased's condition. This is clear from the hospital notes. There is a reference in those notes to the deceased feeling confused at times. On 10 January she was found standing next to her bed feeling dizzy. The deterioration continued, so that by 13 January her condition is described as "poor". Ms Fiorillo visited the deceased twice in this last week, probably after 9 January. She was lying in bed and did not speak to Ms Fiorillo. The deceased continued to deteriorate and she died in hospital on 16 January 2001.
The plaintiff's treating oncologist, Dr Guy Van Hazel, gave evidence at the trial. He saw the deceased every day whilst she was in hospital but he had no specific recollection of her mental state as at 19 December 2000 or 9 January 2001. His evidence, which the defendants accept, is that the deceased's mental condition would have been deteriorating in the last few weeks of her life and, indeed, in December 2000. His opinion is that as at 9 January it is unlikely, but possible, that the deceased would have had the mental capacity to execute a Will and at 19 December her mentation would not have been much different. His opinion, is that the only way to adequately assess the deceased's mental capacity would have been to have performed a mental examination which would have required her to answer questions, for example, about general knowledge and simple arithmetic.
In his report of 26 August 2002 Dr Van Hazel stated that the deceased's illness "would definitely cause headaches and increasing problems with mentation." He further said:
"I cannot accurately say what the state of her mind was on the 9th January 2001. However she had diffuse brain metastases causing increasing cerebral oedema and it is very unlikely that she was able to think normally."
He further stated that she was in a poor state of health on 9 January, both physically and mentally. He opined that he was "quite confident that [the deceased] had deteriorating mental capacity to know or understand what she was doing on the 9th January 2001."
In a further report of 21 August 2003, addressed to the defendants' solicitors, he answered questions specifically put to him by them. He was asked whether, notwithstanding the deceased's medical condition and the medication administered to her, was it nevertheless likely that she was able to understand the persons who ought to be considered as the possible beneficiaries in her Will, the extent of the property that she was able to gift to the beneficiaries in her Will and the provisions of the Will assuming that they had been carefully explained to her in simple language. Dr Van Hazel answered this question by saying: "Although [the deceased] had deteriorating mental state it is possible that she was still able to understand" these matters. He further said that he believed that the deceased's mental capacity to sign her Will on 19 December 2000 would have been much the same as her capacity on 9 January 2001.
Dr Van Hazel prepared a further report on 20 January 2005. I note that in a letter from Mr Lacerenza Junior to Dr Van Hazel dated 21 January 2005 he confirms his attendance on Dr Van Hazel on the afternoon of 20 January 2005. Thus, it seems as if this last report, addressed to Mr Lacerenza Junior, was as a consequence of that attendance. In his report of 20 January 2005, Dr Van Hazel confirms that the deceased had deteriorating mental capacity to know or understand what she was doing on 9 January 2001 and in all likelihood had deteriorating mental capacity on 19 December 2000. This opinion, whilst consistent with the earlier expressed opinions about the deceased's mental condition on 9 January 2001, seems to be slightly less negative about her mentation as at 19 December 2000. Dr Van Hazel went on to say that in the absence of any formal testing of her mental powers on those dates he believes it is reasonable to conclude that her mentation would be affected enough to inhibit her understanding of written documents.
Dr Van Hazel did not retract any of these opinions in cross‑examination. As I have stated, the defendants do not dispute that the deceased would have had a deteriorating mental condition when she executed the second and third Wills but say that the evidence of their witnesses establishes that the deceased had the capacity to execute a Will on 9 January or, alternatively, on 19 December.
Dr David Anthony Joyce, a physician specialising in clinical pharmacology and toxicology, gave evidence on behalf of the plaintiff. He was asked by plaintiff to provide an opinion as to whether any drugs that the deceased took on or about 19 December 2000 or 9 January 2001 would have affected her capacity to execute a Will.
Dr Joyce examined the hospital records to discover what drugs the deceased was prescribed and when she took them. He concluded that only two of the drugs the deceased was prescribed were likely to have a direct effect on her mental state. These were dexamethasone, which she took to limit brain swelling and Panadeine Forte for pain relief.
Dr Joyce testified that dexamethasone introduced a risk of mental impairment and a dosage of 8 milligrams per day would inevitably have some effect on mental or psychological functions. He said:
"This may take the form of a simple mild impairment of attention, comprehension and reasoning ability. At the other extreme, it may take the form of a florid psychosis, with severe disruption of memory, insight, reasoning ability, comprehension and capacity to distinguish real from imagined events. Delusions (false beliefs) may form part of this psychosis. High doses of dexamethasone are commonly associated with disorders of mood, which may take the form of either a mild elevation in mood or mild depression, but which may also take the form of quite severe depression."
Dr Joyce testified that doses of 30 milligrams or more of codeine, an ingredient of Panadeine Forte, may have effects on mentation. In studies, consumption of 30 milligrams of codeine by an otherwise healthy person have shown that the patient will feel impaired alertness but formal testing shows that it does not have much effect on mental function. Higher doses, given to young, healthy people will cause them to feel drug affected but, again, formal testing does not indicate a severe impairment of mental functioning. He said that the literature does not address the effects on older people but in his opinion it is clear that codeine "does have more profound effects on neurological and psychomotor function in elderly people than in the young".
The effects of codeine normally wear off over four hours in a healthy person. However, it will take longer in people with kidney failure. The deceased had impaired kidney function. Dr Joyce could not say "how influential that would be in the deceased's case".
I am not persuaded that on 19 December the deceased's mental functioning was affected by any drugs she took that day or in the preceding days. This is because she was not regularly taking Panadeine Forte at this time. She took some on 16 December and did not take more until 20 December. As to dexamethasone there is no evidence that the deceased took it on 19 December. The first prescription written in hospital for dexamethasone was written on 22 December. There is a medication chart with dexamethasone listed on it as a drug the deceased was on at admission to hospital but this document is undated and there is no evidence before me that it relates to her admission on 10 December. Even if it does, it does not provide any evidence that she took dexamethasone during this admission to hospital.
On 9 January 2001 the deceased received 8 milligrams of dexamethasone and had done so for the preceding days of that admission. There is no record of her receiving her dose on 8 January which could mean that she did not receive it on that date or a nurse omitted to insert his or her initials to record that the deceased had been given it.
On 9 January 2001, the deceased received two tablets at 1.20 am, two tablets at 5.30 am and one tablet at 8.00 am of Panadeine Forte. If these were the only tablets she took that day then the likelihood is that the effect would have worn off by the late afternoon when the deceased signed the third Will. The plaintiff suggests that they would not have been the only tablets taken that date because the hospital notes record that at 9.00 pm on 8 January a nurse noted that the family wanted the deceased to have pain relief strictly four hourly. The same nurse noted on 9 January that a daughter was self‑administering Panadeine Forte and telling nurses of times and dosage. This nurse made notes between 7.30 am and midday. There is another note which records that at 6.15 pm on 9 January the deceased refused algesia. In my opinion, in view of the note by the nurse on the morning of 9 January, I must conclude that the deceased had some Panadeine Forte that morning. How much, I do not know.
Dr Joyce concluded that the dexamethasone and codeine that the deceased was taking "introduce[d] the possibility of drug‑induced impairment in attention, reasoning ability, insight and mood that could affect the mental function needed for making a valid will". He went on to say that the drugs were administered to the deceased whose mind was probably susceptible to drug effects, because of illness. Putting this opinion together with the other evidence in the case I conclude that the deceased's mind was to some extent affected by dexamethasone and codeine on 9 January the date she executed the third Will. In my view this took the form of some "impairment of attention, comprehension and reasoning ability" but that the drug effects were not severe. This is because there is no evidence in the hospital notes to the effect that as of 9 January the deceased was suffering from any delusions or psychosis, a matter which I would expect to find recorded in the notes. Further, the evidence of Ms Drury and Ms Zaffino is to the effect that the deceased was able to attend to what they said to her and concentrate on their conversation with her.
There are still some important factual disputes between the parties upon which I must make findings. However, before I do so I turn to a consideration of the credibility of the four main witnesses.
I heard evidence from four family members who may be said to have taken sides in this dispute. On one side there is the plaintiff and Mr Lacerenza Junior and on the other side there is the second and third defendants. This is not to say that the evidence of the respective witnesses on each side is identical but there are clear similarities between their evidence. Regrettably I do not find that any of these four witnesses are particularly credible or reliable in respect to areas of conflict between them. All four are partial witnesses. In the case of the plaintiff and Mr Lacerenza Junior they have an obvious interest in having neither the second or third Wills declared valid. In the case of the second and third defendants their interest lies in either of these Wills being declared valid. It appears to me from an analysis of the substance of the evidence of all four witnesses and their demeanour when giving it that they have allowed their interests to colour their evidence. There are other problems which make me question the truthfulness and reliability of their evidence. I will give examples in respect to each witness.
The plaintiff gave evidence that from the end of December 2001 the deceased just slept, did not stand and when she opened her eyes she did not know where she was (TS 328). I accept that the deceased was in this condition for the last five or so days of her life but the evidence of Ms Drury and Ms Zaffino and the hospital notes do not permit me to accept that she was like that for the whole period of her last admission to hospital.
It is also clear that the plaintiff believes that his daughters influenced his wife to tear up the first Will. This is despite the fact that he has no direct knowledge of the circumstances in which the Will was destroyed and he did not speak to his wife to ascertain those circumstances. This belief made him "angry" with the third defendant. This anger, coupled with his reliance on what Mr Lacerenza Junior has told him about relevant matters that he, the plaintiff, has no direct knowledge of, has made him an unreliable witness.
I also note that the plaintiff's evidence on some issues was difficult to understand because he contradicted himself or was very unclear. For example, he testified that the draft of the second Will was prepared by Mr Lacerenza Junior "to make the deceased happy because she was down" (TS 334). This information could only have come from Mr Lacerenza Junior. This is confirmed by the plaintiff's answer to a previous question. He was asked when he first became aware that the deceased had made another Will and he said it was when Mr Lacerenza Junior came back from the meeting with the defendants at the second defendant's shop. The plaintiff's evidence was to the effect that he did not at any time discuss the draft second Will with the deceased but rather with Mr Lacerenza Junior. Yet a short time later in his evidence he was asked why Mr Lacerenza Junior had prepared the draft second Will and the plaintiff said that Mr Lacerenza Junior had never told him (TS 335). This appears to contradict the evidence I have earlier quoted as well as later evidence that the plaintiff gave to the effect that Mr Lacerenza Junior told him that the deceased wanted a new Will (TS 335).
To emphasise the point I am making about the contradictory and sometimes incoherent nature of the plaintiff's evidence I need only quote one passage of it (TS 335) which is as follows:
"When [Mr Lacerenza Junior] said it wasn't a will what did he tell you it was? How did he describe the documents that he had prepared?---They said it never happened there. Initially the describe – they say that the will they prepared – it never happened then. It never happened there.
What was the purpose of those documents? Why did Joe prepare them?---That's a question you must ask him, not me.
Perhaps after you have been telling me what Joe told you did he tell you why he had prepared those documents?---He told me, yes, but I don't know why. I don't know why he did. Ask Joe to do."

There may be some transcription errors in the above quote due to the plaintiff's accent. Even accepting this there are obvious problems with the plaintiff's evidence. They could be caused by his ill health, his advancing age, his partiality, his language difficulties or a combination of two or more of these factors. However, the problems have made me reluctant to rely upon his evidence unless it is corroborated by other evidence which I accept to be true and reliable or which commonsense dictates must be true.
Mr Lacerenza Junior's evidence was marred by one significant inconsistency as well as more general problems.
In Mr Lacerenza Junior's evidence‑in‑chief he said that at the meeting at the second defendant's shop his sisters told him about concerns they, and apparently his mother, had about the plaintiff squandering the deceased's property upon her death. Thus, they wanted him to prepare a new Will for the deceased leaving all her property to the defendants. It seems contrary to commonsense that Mr Lacerenza Junior never questioned his sisters as to why he had to be omitted from the Will simply because of concerns with respect to his father. However, leaving that to one side for the moment, Mr Lacerenza Junior said that although he disagreed with this concern, he agreed to draft up a document "only to appease and calm [the deceased's] feelings of distress". He said he prepared a document which "was not going to be signed in any event, just shown or read out to [the deceased]" (TS 415).
My first concern is that this evidence simply does not sound plausible. Why would a draft Will, read out to the deceased or shown to her, appease her? Even in her deteriorating condition she would surely appreciate that in order for the Will to be valid and, thus, for it to appease her it had to be signed? In fairness to Mr Lacerenza Junior I put this to him and he replied (at TS 428):
"---No, I'm not saying that she may not have been asked to sign the document. I didn't play a part in any of that; I just prepared a document that my sisters asked of me. I believed or assumed either they would have shown mum that they had a document and paraphrased it and that would have calmed her or maybe they would have done something more and got her to sign it. I really don't know. I never raised that subject with my sisters from that day onwards and they never spoke to me about it from that day onwards and I'm assuming that they would have used that document responsibly for the reason that it had been produced."
To me, Mr Lacerenza Junior's evidence only makes sense if he did understand that the deceased was likely to be asked to sign the document. Thus, I believe that when Mr Lacerenza Junior prepared the draft second Will he did understand or assume that his sisters would have got the deceased to sign it. It concerns me that a legal practitioner would prepare a draft Will for his mother on the understanding that she would or may sign it, believing that she had executed a valid Will, when Mr Lacerenza Junior either believed that she did not have the capacity to execute her Will or that it would not be valid because it was not translated to her and a translation clause was not included in it.
This is especially so when Mr Lacerenza Junior testified that he then gave the draft Will to his sisters without attempting to speak to his mother about the document. At one point in his evidence he said that he trusted his sisters but this does not ring true in light of his evidence that the last months of his mother's life were marred because the plaintiff believed that his sisters were trying to persuade the deceased to change the first Will.
Whether I believe his evidence given to me directly in answer to my question or not, the fact remains that this evidence conflicts with the evidence he gave in the above quoted passage from his evidence‑in chief. It also conflicts with evidence he gave later in cross‑examination where in the following passage he said (TS 444):
"Why did you not take those same basic steps – go to your mother and say, 'Look, Vera and Teresa have told me that you want a new will. What's it all about, mum'?---
…
I never because, as I've said before, I was never instructed by my mother to make a will. I never created a document that had to be signed as a will. I only prepared a document that I gave to my sisters, based on what they told me, that would be used to appease my mother's condition. She was very vulnerable, impressionable, and she was sick, and I don't know what her state of mind was but I was more concerned with allaying her state of mind rather than getting involved in this discussion about wills which I found quite distasteful."
Whichever way I look at the evidence, it makes me question Mr Lacerenza's credibility in respect to matters involving his mother's Wills. I am left with the impression that Mr Lacerenza Junior on the one hand wants me to believe that he did not understand that the document was to be executed as a Will. That is, it was a document to appease the deceased rather than a draft Will. On the other hand, he was prepared to contradict himself in evidence on this issue when a hole in that proposition was put to him.
Further, I believe that Mr Lacerenza Junior also exaggerated his mother's ill‑health over the last month of her life. In his evidence‑in‑chief he said that around 6 December when his sisters spoke to him about the preparation of the draft second Will (TS 414):
" … I knew from my personal observations that my mother was in constant pain, had become withdrawn and uncommunicative, her mind used to drift, and was afraid of dying. I believe she was also on very strong medication for her pain and for treating her condition."
The hospital records and Ms Fiorillo's evidence does not support some of the views expressed by Mr Lacerenza Junior. In particular, on discharge from hospital on 24 November the deceased was not taking any pain relieving medication other than paracetamol and whilst in hospital on that occasion she received only two doses of pethidine and no Panadeine Forte. When she was admitted on 10 December it does not seem that she was taking Panadeine Forte regularly, as confirmed by Dr Joyce. Further, there is insufficient evidence in the hospital notes of either admission to enable me to conclude that the deceased was in constant pain at these times. Ms Fiorillo's evidence, which I accept, is that she visited the deceased between 10 and 22 December and she was still quite well and happy.
These conclusions make me doubt the remaining observations expressed by Mr Lacerenza Junior.
In my opinion, the cause of the lack of balance in Mr Lacerenza Junior's evidence is obvious. First, he does have an interest in these proceedings although he denied that he had. It is clear that if the second or third Wills are declared valid then he will not inherit anything from his mother's estate.
Secondly, Mr Lacerenza Junior believes that the second and third Wills unjustly "excluded [the plaintiff] from his rightful entitlement to his own home" (TS 415) and that it was the second and third defendants who were "influencing [the deceased] to change [the first Will] …" (TS 413). I believe that the feelings he holds on this issue have adversely affected the truthfulness and reliability of his evidence.
Regrettably I cannot conclude that the evidence of the third defendant is any more reliable.
In his closing submissions counsel for the plaintiff submitted that I should not accept the evidence of the second or third defendants. The first reason he gave was their demeanour in the witness box. He submitted that they demonstrated a high level of evasiveness and were overly eager to criticise the plaintiff and Mr Lacerenza Junior. He submitted that they feigned disinterest in the contents of the deceased's Will when it was obvious that they were vitally interested in the outcome and manipulating the circumstances to achieve their desired outcome.
I agree that generally speaking their demeanour in the witness box was not convincing. However, I am more influenced by the inconsistent substance of their evidence. In respect to the third defendant the plaintiff submitted that she had lied on a number of occasions. It is not necessary for me to conclude that the third defendant was deliberately lying. It is sufficient for me to say that there were so many inconsistencies in her evidence that I would not be prepared to find that it was very reliable. Examples given by the plaintiff, with which I agree, are:
1.The third defendant testified that when her mother told her that she wanted to prepare a new Will, she, the third defendant obtained the first Will from a box of papers in the deceased's bedroom. She actually said that if anybody suggested that it was her mother who got the Will that would be a lie. She was then taken to her affidavit of scripts sworn 15 April 2003 wherein she deposed that it was the deceased who had taken the Will from a drawer.
2.The third defendant initially testified that when her mother gave instructions to Mr Lacerenza Junior to prepare a new Will she was downstairs and not in the same room as them. Whereas in her examination‑in‑chief she had testified that she was "present the entire time [Mr Lacerenza Junior] spoke to [the deceased] about the Will. [The plaintiff] was also present." When this inconsistency was pointed out to her her evidence then changed to that she may have been present for part of the time Mr Lacerenza Junior took instructions.
3.The third defendant exaggerated the level of the deceased's alertness in the last month of her life. She asserted that there was little change in her mother's level of mental alertness right up until the time she died. I accept that that is not consistent with the hospital notes and the medical evidence.
The third defendant has an interest in having either the second or third Wills declared valid. I also have little doubt that she encouraged her mother, in a way which she did not admit to in her evidence, to execute a Will in the second and third defendant's favour. These matters have made me cautious about relying upon her evidence unless it is supported by other evidence which I believe to be truthful and reliable or commonsense dictates that her evidence is correct.
In respect to the second defendant I also accept that the balance of her evidence has been influenced by her interest in the outcome of these proceedings and her views about her father. However, her evidence does not bear the same sorts of inconsistencies and contradictions of the other three witnesses.
I now turn to the outstanding issues of fact.
The first matter to resolve is whether the deceased tore up the first Will in early December. The third defendant testified that the deceased got her to read the Will and she then tore it up saying something like "things have changed". Nobody else was present. The plaintiff and Mr Lacerenza Junior did not seriously question the assertion that in some way the deceased destroyed the first Will. In my view she probably did destroy it. The deceased subsequently signed the second Will in circumstances where I accept that she had sufficient mental capacity to appreciate or remember that she had made the 1981 Will and was making a new Will which revoked all former Wills. I conclude that she was capable of knowing and remembering these things as over a month later, she was able to recognise Ms Zaffino from many years earlier and to remember her mother and some of her background. Similarly, Ms Fiorillo testified that when she saw her in hospital in December she was able to speak normally about family matters. As to her capacity to understand that she was making a Will, in respect to the second Will, the deceased's comment to Mr Lacerenza Junior that he was "sick in the head", as I have found, because he had prepared a draft Will which may be invalid is to me a clear indication that the deceased understood that the second Will was a Will which would have replaced all former Wills.
Further, there was no suggestion before me that the first Will had been located. Whatever happened to it, it has disappeared.
The only alternative view is that the second or third defendants destroyed the first Will on their own. This was never put to them, although I have no doubt that they would have denied it had it been put to them.
The second outstanding factual issue is to decide whether the deceased told the second and third defendants, either together or separately, that she wished to leave the Conto Avenue property to them. For the same reasons that I have given in respect to the above issue, I conclude that the deceased expressed this desire to the second and third defendants prior to the execution of the second Will. In making this finding I make no comment as to whether such a desire was influenced by the second and third defendants. Whether it was a desire that sprang from her own views or those of the second and third defendants, there is no doubt in my mind that the matter was discussed between the second and third defendants and the deceased prior to the execution of the second Will and the deceased decided that she wanted to leave the Conto Avenue property to them.
In summary, the reasons why I have no doubt about this matter is that the deceased subsequently signed the second and third Wills in circumstances where I am satisfied that she was content to do so. Further, the comment made to Mr Lacerenza Junior about him being "sick in the head" indicates that she was unhappy with him because his actions had compromised the validity of the second Will. This indicates that the second Will accorded with her views. Lastly, the evidence satisfies me that prior to 19 December, and particularly in early December when the second Will was drafted, the deceased had the mental capacity to decide what she wanted to do with the Conto Avenue property. In this respect that I noted that it is not part of the plaintiff's case that the defendants had prevailed upon the deceased to sign the second and third Wills without her knowing, in general terms, that they bequeathed the Conto Avenue property to the second and third defendants.
The third issue to determine is what occurred at the second defendant's retail shop when Mr Lacerenza Junior received instructions to draft the second Will.
I preface my comments in this regard by saying that I find that the meeting took place outside of the family home because the second and third defendants did not want to cause a scene with the plaintiff. I find that the second and third defendants wanted to get the Will drafted and indeed executed with as little fuss as possible and without the plaintiff or Mr Lacerenza Junior persuading the deceased not to execute it. I find that by this time the whole family knew that the plaintiff did not want the deceased to execute a new Will and would have been likely to try and prevent it from occurring.
The third defendant said that at the meeting she told Mr Lacerenza Junior that the deceased wanted a new Will drawn up and Mr Lacerenza Junior told her that he would see the deceased and find out what she wanted. The second defendant testified that at this meeting she told Mr Lacerenza Junior that the deceased wanted to leave the family home to her and the third defendant and Mr Lacerenza Junior told them that he would go and see the deceased and take instructions. She says that she did not tell Mr Lacerenza Junior what she thought should be in the Will.
On the other hand, Mr Lacerenza Junior says that at the meeting his sisters told him that they had concerns that his father would squander the property after the deceased died. He said they expressed further concerns to him that the plaintiff's gambling habits would grow without the deceased around and that there was "every possibility he would find another woman to live with after [the deceased] died, who would make a claim for part of his property". He says that he was taken aback by these comments and expressed his disbelief. He said that the second and third defendants told him that the deceased was distraught at such a thing happening and was depressed by the thought of it. He said that they went on to say that he should prepare a Will for the deceased giving the plaintiff a life interest in the family home, and on his death leaving the house to the second and third defendants who would be joint executors and trustees. He said that they also wanted the Will to be kept secret from the plaintiff. Mr Lacerenza Junior testified that he objected to this and told them that it was not the sort of thing to speak about whilst the deceased was seriously ill. He said he agreed to type up a draft Will on those terms "only to appease and calm [the deceased's] feeling of distress". He testified that he told the second and third defendants that the Will would not be binding because it excluded the plaintiff from his rightful entitlement to his own home. He also insisted that the contents of the documents had to be told to the plaintiff.
In my view, it is not possible for me to decide, given the credibility problems with the three participants of this meeting, what exactly occurred at it. However, it is possible for me to arrive at some findings in respect to it based on commonsense, logic and what I have found were the surrounding facts.
I find that the second and third defendants did tell Mr Lacerenza Junior what should be in the draft Will. It seems to me to defy logic that they would leave this entirely to their mother to give instructions on given their interest in the matter, their knowledge that the plaintiff and Mr Lacerenza Junior did not agree with the instructions and their mother's ill health.
I accept that Mr Lacerenza Junior did say he would go and get instructions from his mother. It does not make sense to me that a legal practitioner would accept instructions from the second and third defendants without indicating, that he would speak to the deceased about the contents of it.
It may have been that the second and third defendants expressed some concerns about their father's habits but it does not make sense to me that these were the main reasons that the second and third defendants gave for the need for a new Will for the deceased. As I put to Mr Lacerenza Junior in evidence, if this was the case, why would he not say to his sisters that there was then no need to exclude him from the draft Will? I think it much more likely that the reasons why the second and third defendants wanted the Will drawn up was because it would bequeath the Conto Avenue property to the second and third defendants. I accept that the deceased also wanted this result.
Mr Lacerenza Junior may well have told the second and third defendants that the purported Will would not be binding because it excluded the plaintiff. Even if he had said this I am sure that that would not have deterred the second and third defendants or caused them to believe that it would not be binding for that reason. The second and third defendants seem to genuinely believe that the bequest of the property to them, with a life interest to the plaintiff, was and is fair.
I find that whatever the belief of Mr Lacerenza Junior was, the second and third defendants believed that he was going to draw up a document that was in its formal parts a genuine draft Will. I am satisfied that Mr Lacerenza Junior did not tell his sisters that there would be any formal defects in the document. I conclude this because it is clear from the evidence of all four family members that they each knew that the second and third defendants wanted the deceased to execute a Will in their favour. It does not make sense that the defendants would then have their mother execute a Will which, to their knowledge, had a significant defect in it.
The fourth issue to decide is whether Mr Lacerenza Junior then took instructions from the deceased. In this respect the third defendant said in her evidence‑in‑chief that she was present the next day or a day later when Mr Lacerenza Junior took instructions from the deceased. However, in cross‑examination she said that she was not in the same room. When the inconsistency was pointed out to her she said that she may have been present for part of the time. Mr Lacerenza Junior gave evidence that he did not take instructions from the deceased. On the basis of this evidence I am not prepared to find that Mr Lacerenza Junior took instructions from the deceased. In my opinion the evidence of the third defendant on this issue is inconsistent and unreliable.

The fifth matter to decide is whether, after Mr Lacerenza Junior drafted the second Will, he attended upon his mother in the presence of the plaintiff and the second and third defendants and read the contents of the Will to the deceased. In this respect the third defendant testified that at a meeting at Conto Avenue attended by all the family Mr Lacerenza Junior read out the second Will in English and asked the deceased to tell him if there was anything she did not understand. He then paraphrased the will in Italian. She testified that he then gave the Will to the deceased and told her that it had to be signed before two witnesses. She said that the plaintiff did not say anything. The second defendant testified that at this meeting Mr Lacerenza Junior read out aloud the contents of the Will and then translated it into Italian. He asked the deceased whether she was happy with the contents of the Will and whether this was what she wanted to do and she said yes. He then handed the Will to the deceased and told her that she should sign it before two witnesses. She said that her father did not say anything in response.
The plaintiff gave evidence that no such meeting occurred. Mr Lacerenza Junior also gave evidence that the meeting did not occur. He testified that he prepared the draft second Will and provided it to the second and third defendants.
After careful consideration of the evidence in respect to this matter, I have concluded that this meeting did occur. In my view it is consistent with what I believe was the charade that Mr Lacerenza Junior was putting up. That is, preparing a draft Will that looked and sounded legitimate, this would then appease his mother. Mr Lacerenza Junior testified that his father was distressed at hearing that he had prepared the draft Will and became agitated at what was happening. I think it is likely that Mr Lacerenza Junior appeased him by telling him that the Will would probably not be valid in any event. This is probably why the plaintiff said nothing at this meeting.
In coming to the findings on this issue I have considered the plaintiff's submission that the fact that the second defendant did not tell Ms Drury that the second Will had been translated to the deceased at this meeting is an indication that the meeting did not occur. It is true that Ms Drury testified that she told the second defendant that if the Will had not been interpreted to the deceased before she signed it then it could be argued that the Will was invalid. If this meeting had occurred there is no logical reason why the second defendant would not then have mentioned it to Ms Drury. However, Ms Drury also said that she told the second defendant that the absence of a translation clause in the Will itself was a problem. This defect existed whether or not the Will had been translated to the deceased. This may well be why the second defendant did not disclose the translation that occurred at the meeting. Another reason could be that Mr Lacerenza Junior did not translate the Will in full but as the third defendant said, he paraphrased it to her. I acknowledge that the second defendant did not put forward these explanations herself. I have weighed these matters and concluded that they do not persuade me that the meeting did not occur.
I find that at this meeting the draft second Will was read out in English and some of it was translated to the deceased in Italian. Those parts that were translated would have been the more difficult parts of the Will for the deceased to understand.
The final matter to determine is how the second and third defendants and the deceased found out that there was a problem with the second Will. I find that this occurred when the plaintiff told the deceased what Mr Lacerenza Junior had told him about the deficiencies in the Will. I interpret the plaintiff's evidence to be to this effect. I find that the plaintiff and Mr Lacerenza Junior discussed the draft second Will between them and that Mr Lacerenza Junior told the plaintiff that even if the Will was signed it was likely to be invalid. The plaintiff then passed this information onto the deceased, which led to the deceased confronting Mr Lacerenza Junior about it. The deceased also told the second and third defendants about her conversations with the plaintiff.
Mr Lacerenza Junior testified that he was "very upset" as he had prepared the draft second Will based on what his sisters had told him and this had somehow caused the deceased to distrust him. Mr Lacerenza Junior may well have been upset but the cause of the deceased's displeasure is obvious. I find that she had signed the Will believing it to be a valid testament and was upset to learn that it had been prepared with a defect in it that may render it invalid.
The second Will is in the following terms:
"I, ANNA LACERENZA of 15 Conto Avenue, Dianella in the State of Western Australia, Retired HEREBY REVOKE all former testamentary dispositions Made by me and declare this to be my last will as follows:-
1.I appoint my daughters TERESA LACERENZA and VERONICA MARIA CALAUTTI to Executrixes and Trustees of this my Will.
2.I devise my property and land at 15 Conto Avenue, Dianella to my Trustees in fee simple upon trust to permit my husband STEFANO LACERENZA to have the sole use and enjoyment thereof during his life So long as he makes the same his principal place of residence and after His death or if in the opinion of my Trustees he shall have ceased to Make the same his principal place of residence whichever the first happens Upon trust to convey the same to my two daughters TERESA LACERENZA AND VERONICA MARIA CALAUTTI in fee simple in Equal shares as tenants in common. I expressly declare that my husband Shall not be liable to repair or the affecting or keeping up of the property Insurance's or for any rates and taxes on the property.
3.I DEVISE AND BEQUEATH unto my Trustees all the residue of my real Estate and all my personal estate upon trust to convert into money all such Parts thereof as shall not consist of money and after payment of My debts funeral and testamentary expenses to divide the net proceeds Of such conversion and any ready money belonging to me at my death among my two daughters TERESA LACERENZA AND VERONICA MARIA CALAUTTI in equal shares as tenants in common."
The third Will was in the same terms except that it added a translation clause and a paragraph wherein the deceased requested that she be buried in the mausoleum.
The defendant acknowledges that once there is evidence before the Court to incite its suspicion that the deceased did not have testamentary capacity, the onus is on the party asserting the validity of a Will to remove the suspicion by proving affirmatively that the testator had testamentary capacity: Waring v Waring (1848) 6 Mood CC 341. The defendant did not seriously dispute that the medical evidence in this case was sufficient to excite the Court's suspicions. I find that it is.
The ultimate question for my determination is whether the defendants have established to my satisfaction that the deceased knew what she was doing when she executed the third, or the second, Will: Nock v Austin (1918) 25 CLR 519 at 523. The defendants submitted that in answering this question the following legal principles from Banks v Goodfellow (1870) LR 5 QB 549 were applicable. It is said that the testator needed to be able to:
A.Understand the nature of the act of making a Will and its effects.
B.Understand what property she had to dispose of.
C.Comprehend and appreciate the competing claims of those relatives and friends who might expect to be recognised in her Will.
The plaintiff did not dispute the applicability of these principles.
A helpful summary of the applicable principles was stated by Anderson J in Silvester v Tarabini, unreported; SCt of WA (Anderson J); Library No 960062; 13 February 1996 at 10 where his Honour said:
"It might be convenient to state some general rules applicable in cases of this kind. The ultimate onus of proving that an instrument is the will of an alleged testator lies on the parties propounding the will. If the onus is not discharged the court must pronounce against the instrument. Baker v Batt (1838) 2 Moo. PCC 317 at 319-320. The standard of proof required of the propounder is the ordinary civil standard of proof. Worth v Clasohm (1952) 86 CLR 439 at 453; West Australian Trustee Executor & Agency Company Ltd v Holmes [1961] WAR 144 at 146. What must be established is that the will propounded is the last will of a free and capable testator. Durnell v Corfield (1844) 1 Rob. Eccl. 51 at 57. The amount of evidence sufficient to establish a testamentary instrument must always depend on the circumstances of each case as the degree of vigilance to be exercised by the court varies with the circumstances. Barry v Butlin (1838) 2 Moo. PCC 480 at 484. A material circumstance may be extreme age or sickness. Baker v Batt (supra). Mere proof of serious illness will not necessarily lead to a conclusion of want of testamentary capacity. There must be evidence that the illness affected the testator's mental faculties to a degree sufficient to deprive the testator of testamentary capacity. Wingrove v Wingrove (1885) 11 PD 81 at 83."
Relevant to the issue of whether the deceased had the capacity to execute the third Will, the defendant relies upon Perera v Perera (1901) AC 354 at 361 where Lord Macnaghten said:
"In Parker v Felgate Sir James Hannen lays down the law thus:
'If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus far: "I gave my solicitor instructions to prepare a will making a certain disposition of my property; I have no doubt that he has given effect to my intention, and I accept the document which is put before me as carrying it out".'
Their Lordships think that the ruling of Sir James Hannen is good law and good sense."
Prima facie the medical evidence of Dr Van Hazel is to the effect that the deceased had testamentary capacity on 9 January 2001. This is because of the physical effects of the brain metastases on her mental capacity. I accept this evidence. Her mental capacity would also have been affected by drugs she took that day.
On the other hand, Ms Drury who attended on the execution of the third Will was satisfied that the deceased had testamentary capacity when she executed that Will. The question comes down to the same as that posed in Perera v Perera (supra) at 359, where it was said:
"The question, therefore, comes to this: Having regard to all the circumstances of the case, ought the diagnosis of Dr. Fonseka and Dr. Rockwood, who were not present when the will was executed, to outweigh and prevail over the testimony of eye‑witnesses based upon the evidence of their own senses?"
The evidence of Ms Drury and Ms Zaffino was credible and, in the absence of the medical evidence and other evidence about the deceased's deteriorating condition, I would have no hesitation in fully accepting it. However, I have decided that this other evidence prevents me from relying upon it. They were only in the presence of the deceased for less than one hour and other than that had not seen her or had experience of her mental condition. The deceased died a week later and the hospital notes show that only a day after the third Will was signed the deceased was, at times, disorientated.
The plaintiff says that this case is similar to that of Silvester v Tarabini (supra). At pages 17 – 18, Anderson J said:
"It is not enough to bring evidence that the deceased was at times conscious, appeared at times to recognise people, made a few simple request or even that he knew in a general sense that he was engaged in the task of making a will. What must be shown, on the balance of probabilities, is that the deceased had sufficient mental capacity to 'have an understanding of what he is about, have sense and knowledge of what he is doing, and the effect his disposition will have, knowledge of what his property was, and who those persons were that then were the objects of his bounty.' Timbury v Coffee (1941) 66 CLR 277 per Rich ACJ at 280; that he was "capable of making a reasonable and proper disposition of his property and of taking a rationale view of the matters to be considered in making a will "(Banks v Goodfellow (1870) LR 5 QB 549); and that he had sufficient mental capacity to 'weigh the claims which naturally ought to press upon him' (In the Will of Wilson [1897] 23 VLR 197 per Hood J at 199."
The plaintiff points to the fact that the deceased made no provision for her grandchildren as evidence that she was unable to weigh the claims which naturally ought to have pressed upon her. I do not find this to be a determining factor given that the deceased was dying and her two daughters were in good health.
After considering all of the evidence I am not satisfied that as of 9 January 2001 the deceased had sufficient mental capacity to execute the third Will. The medical evidence is to the effect that her physical illness would have significantly affected her mental capacity. There is evidence in the hospital notes and from other witnesses that this effect was well advanced by 9 January. Further, I am satisfied that at the time she executed the third Will, the deceased was under the effect of medication, particularly dexamethasone.
I accept that the deceased knew that she was in the process of executing a Will. My concern is that she did not have sufficient capacity to understand competing claims, to recollect the persons who might make a claim upon her estate and to exercise a reasonable judgment as to how she distributed her estate.
The conversation between Ms Drury, Ms Zaffino and the deceased is not sufficient to displace the prima facie effect of the medical evidence.
I now turn to the second Will. In my view the position was different as of 19 December 2000. The evidence from Ms Fiorillo and the evidence from the hospital notes is to the effect that the deceased was much more alert and able to engage in rational conversation at about this date. The photo taken at Christmas is consistent with this view. Further, the conversation which Mr Lacerenza Junior had with the deceased after the second Will was executed indicates to me that the deceased was aware not only that she had signed that Will but that there was a problem with it.
Although I have not found that instructions for this Will were taken directly from the deceased, I am satisfied that it was read over to her and those parts of it that she might not have understood were translated for her into Italian by Mr Lacerenza Junior. I also take into account that it is clear from Mr Lacerenza Junior's evidence that around this time it was well known in the family that the deceased wished to make another Will in these terms. For example, he said that the last few months of the deceased's life were marked with bickering and arguments that took place involving the defendants and the plaintiff. The central issue being that the plaintiff protested that the defendants were influencing the deceased to change the first Will. Whilst Mr Lacerenza Junior does not say that these arguments took place in the presence of the deceased, he later said that the plaintiff spoke to the deceased in the presence of he and the defendants a number of times expressing his frustration at what he thought was happening in the house. I infer that the deceased's wish to make a new Will in the terms of the second Will was well known to all members of the family and was the subject of dispute between them. The defendants gave direct evidence that this was the case.
The plaintiff says that I should not be satisfied as to the validity of the second Will given that the two witnesses to it were not called to give evidence. I have taken this into account but have decided that there is sufficient evidence from the third defendant, other witnesses and in the hospital notes to satisfy me that the second Will was properly executed. That is that at the time the deceased executed the second Will, she understood that she was making a Will, she knew what property she had to dispose of and she comprehended and appreciated, at that time, the competing claims of the relatives and friends who might expect to be recognised in her Will. I also take into account Ms Drury's and Ms Zaffino's evidence that two weeks later she was apparently alert.
I have taken into account Dr Van Hazel's evidence that the deceased's mental capacity would also have been deteriorating on 19 December. However, the other evidence before me causes me to believe that the deceased's mental capacity was sufficient as at 19 December to execute the second Will.
It follows from what I have said that I accept that the deceased had the capacity to revoke the first Will on or before 6 December 2000.

Conclusion

As a consequence of the above findings the grant of probate obtained on 15 February 2001 in respect to the Will dated 9 January 2001 should be revoked and that Will declared invalid. The defendants counterclaim should be allowed and a declaration made that the Will executed by the deceased on 19 December 2000 be pronounced as the last Will and testament of the deceased. A further order should be made that the Will executed by the deceased on 19 December 2000 be admitted to probate in solemn form. I will hear counsel as to the formal orders.