SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
PAOLI v PAOLI
[2021] SASC 11
Judgment of the Honourable Justice Stanley
10 February 2021
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - LOSS OR LACK OF CAPACITY AND STATUTORY WILLS
This is an application brought pursuant to s 7 of the Wills Act 1936 (SA) (the Act) for the making of a statutory will for Luciano Paoli. Mr Paoli made a will in 2007. Subsequently his financial circumstances changed. In late 2019 he instructed solicitors to make a new will. He attended on Mr Jason Coluccio for that purpose on a number of occasions. Sometimes he did so with his accountant. He gave instructions to Mr Coluccio for the making of a new will. The last attendance on Mr Coluccio by Mr Paoli was on 21 November 2019. Mr Coluccio prepared a draft will based on the final instructions given by Mr Paoli on that date. However, before that draft will was executed by Mr Paoli he suffered a stroke on 1 December 2019.
The applicant sought the making of a statutory will in terms which reflect the final instructions given by Mr Paoli to Mr Coluccio on 21 November 2019. The Court appointed Richard Norman Jackson as Mr Paoli’s litigation guardian.
The applicant requires permission to bring this application. Further, the provisions of s 7 of the Act require that any person who may inherit on an intestacy and any person who might claim the benefit of the Inheritance (Family Provision) Act 1972 (SA) would be entitled to be heard on the application.
Held:
1. The evidence demonstrated that the terms of this will accurately reflect the likely intentions of Mr Paoli if he now had testamentary capacity. There was no reason to consider Mr Paoli would have changed his testamentary intentions in the ensuing 12 months since he gave instructions to Mr Coluccio.
2. The evidence established that it was reasonable in all the circumstances to make the orders sought.
3. Permission to make the application is granted to the Applicant.
4. Service of the summons on Sonia Ann Paoli otherwise known as Anica Cedermaz be dispensed.
5. The Court authorises the making of a will on behalf of the respondent in the terms of the document which is Annexure “VP 8” to the affidavit of the Applicant sworn on 15 October 2020.
6. The will is to be signed by the Registrar of Probates and to be sealed with the seal of the Court.
7. The will is to be retained by the Registrar of Probates and is not to be withdrawn from deposit with the Registrar by or on behalf of the Respondent unless by an order of the Court made under s 7(11) of the Wills Act 1936.
8. The costs of all parties to the action are to be paid out of the assets of the Respondent on a solicitor and client basis.
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CaseChat Overview and Summary
The legal issues before the court were whether Mr Paoli lacked testamentary capacity and whether the proposed will accurately reflected his likely intentions if he had testamentary capacity. The court was also required to consider whether it was reasonable in all the circumstances to make the orders sought.
The court found that Mr Paoli lacked testamentary capacity due to his stroke and that the proposed will accurately reflected his likely intentions if he had capacity. The court was satisfied that there was no reason to consider Mr Paoli would have changed his testamentary intentions in the ensuing 12 months since he gave instructions to Mr Coluccio. The court also found that it was reasonable in all the circumstances to make the orders sought.
The court granted permission to the applicant to make the application and authorised the making of a will on behalf of Mr Paoli in the terms of the document which is Annexure “VP 8” to the affidavit of the Applicant sworn on 15 October 2020. The will is to be signed by the Registrar of Probates and sealed with the seal of the Court. The will is to be retained by the Registrar of Probates and is not to be withdrawn from deposit with the Registrar by or on behalf of the Respondent unless by an order of the Court made under s 7(11) of the Wills Act 1936. The costs of all parties to the action are to be paid out of the assets of the Respondent on a solicitor and client basis.
Orders
Orders of the court
Held:
1. The evidence demonstrated that the terms of this will accurately reflect the likely intentions of Mr Paoli if he now had testamentary capacity. There was no reason to consider Mr Paoli would have changed his testamentary intentions in the ensuing 12 months since he gave instructions to Mr Coluccio.
2. The evidence established that it was reasonable in all the circumstances to make the orders sought.
3. Permission to make the application is granted to the Applicant.
4. Service of the summons on Sonia Ann Paoli otherwise known as Anica Cedermaz be dispensed.
5. The Court authorises the making of a will on behalf of the respondent in the terms of the document which is Annexure “VP 8” to the affidavit of the Applicant sworn on 15 October 2020.
6. The will is to be signed by the Registrar of Probates and to be sealed with the seal of the Court.
7. The will is to be retained by the Registrar of Probates and is not to be withdrawn from deposit with the Registrar by or on behalf of the Respondent unless by an order of the Court made under s 7(11) of the Wills Act 1936.
8. The costs of all parties to the action are to be paid out of the assets of the Respondent on a solicitor and client basis.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
I am satisfied that the proposed will reflects the instructions Mr Paoli gave to Mr Coluccio in late 2019 for the making of a new will. The terms of those instructions were that Mr Paoli wished to appoint the applicant as his executor and trustee, but if she was to predecease him or was otherwise unable or unwilling to act, then he appointed Welco Professional Services Pty Ltd (ACN 626 307 980) (Welco) to be his executors and trustees.[4] He left his entire estate to the applicant, but if she did not survive him for a period of 14 days then he left his estate to be distributed as follows:1.The property at 17 Hobbs Street, Findon is left to Ines;2.A bequest of $200,000 is left to Sonia; 3.A bequest of $100,000 is left to Ines; 4.The residuary estate is to be divided and held in trust. 20 per cent is to be held in a special disability trust in favour of David. The balance is to be held in a discretionary testamentary trust, the beneficiaries of which are Tania as to 60 per cent, Ines as to 10 per cent and Sonia as to 10 per cent.[4] Welco resolved to nominate its directors, Mr Coluccio and Mr Welden, to act as syndics for the purposes of obtaining a grant of probate. Consideration The evidence satisfied me that the terms of this will accurately reflect the likely intentions of Mr Paoli if he now had testamentary capacity. That finding followed from the evidence of the instructions he gave to Mr Coluccio in late 2019 for the making of a new will. I was satisfied that the terms of the proposed will reflected those instructions. I was further satisfied that there was no reason to consider Mr Paoli would have changed his testamentary intentions in the ensuing 12 months since he gave those instructions. The evidence established that it was reasonable in all the circumstances to make the orders sought. This is a substantial estate.[5] The proposed will leaves Mr Paoli’s entire estate to the applicant if she survives him. I was satisfied that would have been his testamentary intention if he now had capacity. In the event the applicant does not survive Mr Paoli, the proposed will makes different provision for the interests of the beneficiaries under the 2007 will. There is no longer a specific bequest made of the shares in Adelaide Hydraulics Pty Ltd in favour of David, John Di Fabio and Tania. However, the evidence is that these shares now have no value.[6] [5] Affidavit of Vlasta Paoli deposed 15 October 2020 [20]-[36].[6] Affidavit of Vlasta Paoli deposed 29 October 2020 [8]-[23]. Under the proposed will Ines’ interest will be affected in that, if the applicant does not survive Mr Paoli, Ines will receive the Findon property, a legacy of $100,000 and 10 per cent of the residuary estate while under the 2007 will, if the applicant does not survive Mr Paoli, Ines receives the Findon property and 15 per cent of the residuary estate. However, Ines has not sought to be heard on the application to make the proposed orders. I could not find whether Ines will be better or worse off by the making of the proposed will. I inferred from her decision not to be heard on the application that she was satisfied with the Court making the proposed will.