Paoli v Paoli
[2021] SASC 11
•10 February 2021
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.
Wills Act 1936 (SA) s 7, referred to.
Argiro v Lagozino [2017] SASC 185, applied.
PAOLI v PAOLI
[2021] SASC 11
Testamentary causes jurisdiction
STANLEY J:
Introduction
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. On 18 December 2020 I made the orders sought by the applicant. These are my reasons.
Background
The applicant is the wife of Luciano Paoli. Mr Paoli was born on 12 September 1936. Accordingly he is 84 years of age.
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.
Evidence
The matter proceeded before me by way of the following affidavits:
1.Affidavits of the applicant sworn 15 October 2020 and 29 October 2020;
2.Affidavit of Jason Sam Coluccio sworn 20 October 2020;
3.Affidavit of Gregory Neil Welden sworn 2 December 2020;
4.Affidavit of Richard Norman Jackson sworn 16 December 2020;
5.Affidavits of Dajana Poletan sworn 16 December 2020 and 18 December 2020; and
6.Affidavit of Tania Di Fabio sworn 18 December 2020.
Section 7 of the Wills Act 1936 (SA)
Section 7 provides:
(1) The Court may, on application by any person made with the permission of the Court, make an order authorising the making or alteration of a will in specific terms approved by the Court, or the revocation of a will, on behalf of a person who lacks testamentary capacity.
(2) An authorisation under this section may be granted on such conditions as the Court thinks fit.
(3) Before making an order under this section, the Court must be satisfied that—
(a) the person lacks testamentary capacity; and
(b) the proposed will, alteration or revocation would accurately reflect the likely intentions of the person if he or she had testamentary capacity; and
(c) it is reasonable in all the circumstances that the order should be made.
(4) In considering an application for an order under this section, the Court must take into account the following matters:
(a) any evidence relating to the wishes of the person;
(b) the likelihood of the person acquiring or regaining testamentary capacity;
(c) the terms of any will previously made by the person;
(d) the interests of—
(i) the beneficiaries under any will previously made by the person;
(ii) any person who would be entitled to receive any part of the estate of the person if the person were to die intestate;
(iii) any person who would be entitled to claim the benefit of the Inheritance (Family Provision) Act 1972 in relation to the estate of the person if the person were to die;
(iv) any other person who has cared for or provided emotional support to the person;
(e) any gift for a charitable or other purpose the person might reasonably be expected to give by a will;
(f) the likely size of the estate;
(g) any other matter that the Court considers to be relevant.
(5) An order may be made under this section in relation to a minor.
(6) The Court is not bound by rules of evidence in proceedings under this section.
(7) The following persons are entitled to appear and be heard at proceedings under this section:
(a) the person in relation to whom the order is proposed to be made;
(b) a legal practitioner representing the person or, with the permission of the Court, some other person representing the person;
(c) the person holding or acting in the office of Public Advocate under the Guardianship and Administration Act 1993;
(d) the person's administrator, if one has been appointed under the Guardianship and Administration Act 1993;
(e) the person's guardian, if one has been appointed under the Guardianship and Administration Act 1993;
(f) the person's manager, if one has been appointed under the Aged and Infirm Persons' Property Act 1940;
(g) the person's attorney, if one has been appointed under an enduring power of attorney;
(h) any other person who has, in the opinion of the Court, a proper interest in the matter.
(8) In determining an application under this section, the Court may make such incidental orders relating to costs or other matters as it thinks fit.
(9) A will or instrument altering or revoking a will made pursuant to an order under this section must be executed as follows:
(a) it must be signed by the Registrar; and
(b) it must be sealed with the seal of the Court.
(10) The will or instrument altering or revoking a will must be retained by the Registrar and will be taken to have been deposited with the Registrar under section 13 of the Administration and Probate Act 1919.
(11) The will may not be withdrawn from deposit with the Registrar by or on behalf of the person on whose behalf it was made unless the Court has made an order under this section authorising the revocation of the will (in which case the Registrar must withdraw it on presentation of a copy of the order) or the person has acquired or regained testamentary capacity.
(12) In this section—
testamentary capacity means the capacity to make a will1.
Note—
1 The cause of incapacity to make a will may arise from mental incapacity or from physical incapacity to communicate testamentary intentions.
Relevant principles
In Argiro v Lagozino[1] I set out the principles applicable to this application. I said:[2]
[1] [2017] SASC 185.
[2] [2017] SASC 185 at [5]-[19].
Section 7(1) confers jurisdiction on the Court to make an order authorising, inter alia, the making of a will in specified terms approved by the Court on behalf of a person who lacks testamentary capacity. The exercise of that jurisdiction is subject to an application for the making of such an order by a person with the permission of the Court.
The nature of the jurisdiction conferred by s 7 is remedial. It has a protective purpose. In Re Fenwick, Palmer J, in considering the comparable provisions in the New South Wales legislation, namely, the Succession Act 2006 (NSW) said:
The best interests of an incapacitated person and of those having a proper claim on his or her testamentary bounty are the objects of the jurisdiction which the Court exercises under ... the Succession Act. It is a remedial and protective jurisdiction and is, accordingly, not governed by the rules of adversarial litigation. In other words, the judge is not a referee; rather, the judge is to endeavour to rectify a problem which is affecting people’s lives, in the best possible way.
The Court is conferred with a broad and flexible jurisdiction as is plain from the terms of s 7(2) which provides that the authorisation may be granted on such conditions as the Court thinks fit.
Before making an order under s 7(1) of the Act, the court must be satisfied of three matters, namely:
(a) the person lacks testamentary capacity; and
(b) the proposed will, alteration or revocation would accurately reflect the likely intentions of the person if he or she had testamentary capacity; and
(c) it is reasonable in all the circumstances that the order should be made.
The first two conditions, namely, want of testamentary capacity and the accurate reflection of likely intentions, are matters of fact. The third condition, that of reasonableness, involves the exercise of curial discretion. In considering an application under s 7(1), s 7(4) requires the court to take into account certain matters, namely:
(a) any evidence relating to the wishes of the person;
(b) the likelihood of the person acquiring or regaining testamentary capacity;
(c) the terms of any will previously made by the person;
(d) the interests of—
(i)the beneficiaries under any will previously made by the person;
(ii)any person who would be entitled to receive any part of the estate of the person if the person were to die intestate;
(iii)any person who would be entitled to claim the benefit of the Inheritance (Family Provision) Act 1972 in relation to the estate of the person if the person were to die;
(iv)any other person who has cared for or provided emotional support to the person;
(e) any gift for a charitable or other purpose the person might reasonably be expected to give by a will;
(f) the likely size of the estate;
(g) any other matter that the Court considers to be relevant.
Section 7(12) defines testamentary capacity as “the capacity to make a will”.
In Banks v Goodfellow, a test for capacity was propounded by Cockburn CJ. His Honour held that to have sufficient capacity, a testator must understand the nature of the will and its effects, comprehend the extent of the property which is being disposed of, and understand and appreciate the claims to which he or she ought to give effect. In In the Will of Wilson, Hood J observed that in order for a testator to rightly understand these matters, it is essential that his “mind should be free to act in a natural, regular, and ordinary manner”. These observations were cited with approval by Dixon J (as he then was) in Timbury v Coffee.
The court must be satisfied that the proposed will accurately reflects the likely intentions of the proposed testator if he or she had testamentary capacity. It follows that the contents of the proposed will must be more than a mere possible or potential reflection of the testator’s intentions. But it is not fatal to an application that there are multiple potential or possible wills reflecting the testator’s likely intentions. It is sufficient that, despite the range of possibilities, the court is satisfied that a particular version can be identified as the “likely” version of the testator’s testamentary intentions. In this context, there is room for some flexibility in matters of detail.
Next, the court must be satisfied that the testator would have acted upon those intentions by making a will in those terms. The exercise undertaken by the court involves a hypothetical. In answering the hypothetical question in this case, it is open to the court to have regard to the evidence of Mr Lagozino’s subjective views which inform the objective considerations to which the court must otherwise have regard in deciding whether it can be satisfied as to the contents of a will that accurately reflects the likely intentions of Mr Lagozino if he had testamentary capacity at the time of the making of any order for a statutory will.
In finding whether the proposed will accurately reflects the likely intentions of the proposed testator, the law distinguishes between “lost capacity”, “pre‑empted capacity” and “nil capacity” cases. That is a distinction between, in the first two categories, proposed testators who once had testamentary capacity and then lost it and, in the third category, proposed testators who never enjoyed testamentary capacity.
For reasons I will explain shortly, the Court in this matter is concerned with a lost capacity case.
In Re Fenwick, Palmer J gave consideration to the basis upon which the court should approach an application for a statutory will in a lost capacity case. He said:
The easiest case is a lost capacity case where the incapacitated person is adult, has formed family and other personal relationships, has made a valid will before testamentary incapacity occurred, and is now said to have expressed some testamentary intention in relation to the circumstances sufficient to warrant an application for a statutory codicil or new will.
The Court must first be satisfied that the proposed will or codicil truly implements what the applicant claims the incapacitated person wishes to do. The task is one of fact finding: has the incapacitated person actually stated or otherwise manifested a particular testamentary intention or has such an intention been attributed to him or her by others on the basis of inference, likelihood or mere wishful thinking?
The evidence is likely to be on affidavit, at least in the first instance. There will be some cases in which the affidavit evidence is so clear and convincing that the Court will be satisfied at once that the incapacitated person has indeed expressed the intention reflected in the proposed will or codicil. In other cases, the Court will bear in mind that evidence on affidavit is easily moulded by the drafter and may give an impression which the Court would not receive if it saw and heard the deponent in person. Accordingly, where the affidavit evidence taken as a whole is not clear and convincing that the incapacitated person has actually expressed the testamentary wish contained in the proposed will or codicil, the Court should avail itself of the power under s 21(b) and s 21(c) to see and hear the incapacitated person to verify the wish ascribed in the affidavit evidence.
If the Court is satisfied that the proposed will or codicil expresses the present actual intention of the incapacitated person, the next question is: would that intention have been carried into testamentary effect by the person “if he or she had testamentary capacity”? This question may pose little difficulty if the person’s testamentary capacity is borderline, that is, the person falls only a little short of having testamentary capacity. The question may not be so easy if the testamentary intention expressed by the incapacitated person is the result of delusions about the natural objects of his or her testamentary bounty — a not infrequent symptom of testamentary incapacity.
In short, the Court should be conscious that there are two questions involved in a case of alleged actual intention under s 22(b): has the incapacitated person actually expressed the intention attributed; would the person have held that intention if possessed of testamentary capacity?
There is another question also: is the expressed intention the product of the incapacitated person’s free choice, or has some undue pressure or influence been applied?
The court is concerned to establish whether it is reasonably likely that the person would have expressed that intention if he or she had retained testamentary capacity. The asserted intention may be the product of deluded attachment or hostility.
In In the matter of K, JL, Doyle J explained the approach to be taken by the court pursuant to s 7 in the following terms:
In summary, the hypothetical nature of the inquiry will always allow room for some objective considerations. In some cases there will be no evidence of the person’s subjective intentions, in which case the issue will be determined entirely objectively. This will be so in the typical “nil capacity” cases. On the other hand, there will often be evidence of the person’s actual or likely subjective intentions (for example, in many “lost capacity” and “pre-empted capacity” cases). In my view, not only is it appropriate given the nature of the inquiry under s 7(3)(b) that this evidence be taken into account, but also that approach is supported (if not required) by the provision in s 7(4)(a) to the effect that the Court must take into account any evidence relating to the wishes of the person. However, the weight that should be attached to such evidence can only be determined in an individual case by reference to considerations such as the person’s capacity to express their wishes, the nature of those wishes, the extent to which those wishes conflict with objective considerations, the extent to which the person’s expressed subjective intentions might have been influenced by the taking of advice prior to the formal making of a will, the age and maturity of the person when expressing their wishes, and the timing of the expression of wishes relative to the application to make a statutory will.
The exercise required by s 7 in a lost capacity case involves considerations that are both objective and subjective. The court’s focus is upon the nature of the facts and evidence in the particular case.
[citations omitted]
The applicant requires permission to bring this application. The purpose of a grant of permission to proceed is to provide a mechanism by which baseless or unmeritorious applications are screened out. In proceedings such as the present, where the application is not obviously without merit, the practice of the Court has been to hear and determine concurrently the question of permission with the substantive application. I adopted that practice in this case and, having heard the application, granted the necessary permission.
Who is entitled to be heard on the application?
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.
Mr Paoli has a wife, namely, the applicant. They have been married for 39 years. There are no children of the marriage. Mr Paoli has three children from an earlier marriage, Tania Di Fabio (Tania), David Paoli (David) and Sonia Paoli (Sonia). Mr Paoli is the stepfather of the applicant’s only child Ines Zvanut Fidel (Ines). David suffers from severe multiple sclerosis which has afflicted him since 2012. He is confined to a wheelchair. His mental capacity is unaffected. He makes his own medical and health decisions. For that past five years he has lived in assisted living accommodation at Park Holme. It is likely that he will be able to remain there in the future even if his physical condition deteriorates. His only income is a Centrelink disability pension. Half of the pension pays for the accommodation. NDIS funding meets the major part of the cost of carers. He pays his own private health cover. He is 52 years of age. He has no significant assets or savings. Tania has three adult children, Mark, Sophie and Jake Di Fabio.
I was told Tania, David, Mark, Sophie, Jake, Ines and her children, were served with proceedings, have had the benefit of legal advice and have indicated they do not wish to be heard on the making of the orders sought. I have inferred they were content for the Court to make the proposed will.
Sonia
Sonia has not been served with the proceedings.
There has been no contact or communication between Sonia and Mr Paoli for a period of approximately 30 years. Extensive efforts have been made to find Sonia in order to effect service of the proceedings upon her.[3] Those efforts have not been successful. However, the making of the orders sought would not prejudice Sonia’s interest. She would receive a greater benefit from the proposed will than she stands to inherit under the 2007 will. In the circumstances I dispense with service of the proceedings upon her.
[3] Affidavit of Gregory Neil Welden deposed 2 December 2020; and Affidavits of Dijana Poletan deposed 16 December 2020 and 18 December 2020.
Lost capacity
I am satisfied on the evidence of Mr Jackson and the medical report of Dr Thanuja de Silva of 16 December 2020 that Mr Paoli has lost testamentary capacity in the sense described in the authorities and is unlikely to recover it. Mr Paoli suffers from vascular dementia following a right-sided ischaemic stroke. He does not have mental capacity for decisions with regard to financial, lifestyle and medical decisions. His mental incapacity is likely to be permanent.
The 2007 will
Pursuant to the will made by Mr Paoli on 8 June 2007 the applicant was appointed as his executor and trustee, and in the event that she was to not survive Mr Paoli, he appointed his solicitor John Russell Jamison as his executor and trustee. The will made specific bequests of five shares in the company Adelaide Hydraulics Pty Ltd to David; of 10 shares in Adelaide Hydraulics Pty Ltd to Mr Paoli’s son-in-law John Di Fabio, the husband of Tania; and the remaining shares in Adelaide Hydraulics Pty Ltd to Tania. The will left the residuary estate to the applicant. If the applicant did not survive him the residue was to be distributed on the basis that property at 17 Hobbs Street, Findon was left to Ines and the balance of the residue was to be divided as to 15 per cent to Sonia; 15 per cent to Ines; 35 per cent to David and 35 per cent to Tania.
Proposed will pursuant to s 7 of the Act
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.
Under the proposed will Sonia’s interests will be affected. Under the 2007 will, if the applicant does not survive Mr Paoli, Sonia will receive 15 per cent of the residuary estate. Under the proposed will, in that event, she will receive the sum of $200,000 and 10 per cent of the residuary estate. I will return to consider her position later in these reasons.
Under the proposed will David’s interests will be affected. Under the 2007 will, if the applicant does not survive Mr Paoli, David receives 35 per cent of the residuary estate. Under the proposed will, in that event, he will receive 20 per cent of the residuary estate via a special disability trust established for his benefit. I will return to consider his position later in these reasons.
Under the proposed will Tania’s interests will be affected. Under the 2007 will, if the applicant does not survive the Mr Paoli, Tania will receive 35 per cent of the residuary estate, as well as the remaining shares in Adelaide Hydraulics Pty Ltd. As I have observed, those shares are worthless. Under the proposed will Tania will receive 60 per cent of the residuary estate via a discretionary testamentary trust established for her benefit, in the event that the applicant does not survive Mr Paoli. Tania will benefit from the Court making the proposed will.
Under the 2007 will it is possible that Ines’ two children would take the property at Findon and 15 per cent of the residuary estate. That would depend on Ines and the applicant predeceasing Mr Paoli. Ines is their guardian and has not sought to be heard on the application to make the proposed will. Both of them indicated that they had the benefit of legal advice and did not wish to be heard on the application. I inferred that they were satisfied with the Court making the proposed will.
Under the proposed will John Di Fabio will not receive the gift of shares in Adelaide Hydraulics Pty Ltd which has been bequested to him under the 2007 will. However, those shares are worthless.
It was unnecessary to consider the position of any person who would take in the event of intestacy because the 2007 will means that Mr Paoli will not die intestate. I was not in a position to make a finding that the proposed will makes adequate provision for any person who would be entitled to claim the benefit of the Inheritance (Family Provision) Act 1972 (SA) (Family Provision Act) when Mr Paoli dies. As there was no application of this kind before the Court it was not appropriate for the Court to make or not make such a finding. However, as I was required to do by s 7(4)(d)(iii) of the Act, I took account of the interests of any person who would be entitled to claim the benefit conferred by the Family Provision Act.In that regard, I directed particular attention to the interests of David and Sonia. Having regard to David’s circumstances I was satisfied that the proposed will made provision for his proper maintenance and advancement in life by the establishment of the special disability trust. Given his circumstances, I did not consider that any provision needed to be made for his education. I was satisfied that provision had been made for his proper future accommodation and care. I inferred from the fact he did not wish to be heard on the application that he was content for the Court to make the proposed will.
There was little evidence before the Court in relation to Sonia’s circumstances. However, given the nature of her relationship with Mr Paoli over the past 30 years, whereby there has been no communication between them, if the applicant does not survive Mr Paoli, Sonia stands to take a substantial financial benefit under the proposed will.[7] As I have noted, Sonia’s position will be advantaged by the making of the proposed will. In the circumstances, insofar as the proposed will affected her interests, I considered its terms to be reasonable.
[7] Present estimate suggests a sum in the vicinity of $360,000.
There was no evidence that there is any other person who has cared for or provided emotional support to Mr Paoli who has not been provided for in his will.
Finally, there is no reason to think that Mr Paoli might reasonably be expected to have given any gift for a charitable or other purpose in his will. There is no evidence that in giving instructions for a new will in 2019 that he made any charitable bequest. This is consistent with the position when he made the 2007 will.
For these reasons I made the following orders:
1.Permission to make the application is granted to the Applicant.
2.Service of the summons on Sonia Ann Paoli otherwise known as Anica Cedermaz be dispensed.
3.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.
4.The will is to be signed by the Registrar of Probates and to be sealed with the seal of the Court.
5.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.
6.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.