Re Savio
[2018] VSC 676
•8 November 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY & PROBATE LIST
S PRB 2017 13589
IN THE MATTER of the estate of LUIGIA SAVIO deceased
| ANDREW DOMINIC SAVIO | Plaintiff |
| v | |
| LUISA MARY SAVIO | Defendant |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 April 2018 |
DATE OF JUDGMENT: | 8 November 2018 |
CASE MAY BE CITED AS: | Re Savio |
MEDIUM NEUTRAL CITATION: | [2018] VSC 676 |
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PROBATE — Where defendant seeks to amend grounds of objection to include testamentary undue influence — Whether proposed grounds of testamentary undue influence establish a prima facie case — Re Kouvakas; Lucas v Konakas [2014] NSWSC 786.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms U Stanisich | Aitken Partners |
| For the Defendant | Mr S Newton | Scomparin and Bernardi Lawyers |
HER HONOUR:
Introduction
Luigia Savio died on 19 January 2017. She was survived by her three children, Andrew Savio (‘the plaintiff’), John Savio (‘John’) and Luisa Savio (‘the defendant’).
The testatrix’s last will is dated 27 February 2008. The testatrix appointed the plaintiff as her executor, with John as substitute executor should the plaintiff predecease her or be unable to act and, as further substitute, the defendant should both sons predecease her or be unable to act. The testatrix left her jewellery equally to her three children, her property in Clematis to John, her property in Noble Park to the plaintiff, and the residue of her estate to the plaintiff, John and the defendant in equal shares, with a gift over to their respective children, should any of her children predecease her. The inventory of assets and liabilities filed with the plaintiff’s application for a grant of probate values the gross value of the estate at $1,790,659.87.
The plaintiff‘s application for a grant of probate of the testatrix’s last will was filed on 23 August 2017. By an affidavit of due execution sworn 1 September 2017, Mr Thomas Francis Portelli, solicitor, deposes that the testatrix executed her will in his presence and in the presence of Rebecca Baguley. The execution clause of the will included the recital that as the testatrix was unable to read or speak English fluently, Mr Portelli read the will to the testatrix in Italian. The recital includes the phrase ‘after the Will had been translated into the Italian language she [the testatrix] had expressed that she understood and approved of its contents’. Mr Portelli deposes to his qualifications, that he is fluent in English and Italian, had no interest in the appointments or dispositions under the testatrix’s will and, to his knowledge, was not related to the testatrix.
Caveator’s objection to grant of probate
On 20 September 2017, the defendant, as caveator, filed grounds of objection to the plaintiff’s application alleging that the testatrix lacked testamentary capacity to make a will on the basis that ‘the testatrix had been diagnosed by Dr Despina Parathira on 28 August 2007 as suffering from paranoid dementia and prescribed Risperdal Quicklet orally disintegrating tablets (0.5mg x 2)’ and stated that further particulars would be provided after discovery.
By consent, orders were made on 26 October 2017 adding the caveator as a defendant, discovery by the parties, referring the proceeding to mediation and adjourning the proceeding to 2 February 2018.
On 24 January 2018, the defendant filed a summons seeking, inter alia, that the trial of the proceeding include the determination of the validity of the testatrix’s last three wills, including wills dated 22 March 2006 (‘the 2006 will’) and 6 July 2005 (‘the 2005 will’), in addition to the last will. The proceeding was further adjourned by consent on the papers to 23 February 2018.
Prior to the hearing on 23 February 2018, the defendant provided draft amended grounds of objection and written submissions seeking to include an additional ground of objection alleging testamentary undue influence of the testatrix by the plaintiff, as well as impugning the validity of the 2005 and 2006 wills.
On 23 February 2018, orders were made for the defendant to file and serve amended grounds of objection and provide full particulars of her claim confined to the last will and adjourned the proceeding to 16 March 2018.
On 2 March 2018, the defendant filed her amended grounds of objection that alleged lack of testamentary capacity and undue influence.
On 16 March 2018, the Court informed the parties it was satisfied the defendant had demonstrated a prima facie case for the ground of lack of testamentary capacity at the time of making the last will but was not satisfied there was a prima facie case for the ground of testamentary undue influence of the testatrix by the plaintiff. This latter ground was particularised as follows:
2. Undue influence exerted by her son Andrew, the plaintiff which involved:
a. after the death of the testator’s husband on 12th February 2003, the plaintiff took control of the testator’s financial and personal affairs to the extent that the testator, in relation to her finances, including the making of her said will, acted in accordance with the wishes of Andrew and not her own wishes;
b. from 2005 onwards creating in the mind of the testator a false belief that the defendant had wrongfully acted adversely to the interests of the testator and her brothers, namely the plaintiff and John Savio, and by creating this false belief influencing her to alter her will.
Orders were made granting leave to the defendant to file and serve amended particulars of this ground by 23 March 2018 and the proceeding was adjourned to 13 April 2018.
On 4 April 2018, the defendant filed amended particulars for the ground of testamentary undue influence, which state as follows:
2. Undue influence exerted by her son Andrew, the plaintiff which involved:
a. after the death of the testator’s husband on 12th February 2003, the plaintiff took control of the testator’s financial and personal affairs to the extent that the testator, in relation to her finances, including the making of her said will, acted in accordance with the wishes of Andrew and not her own wishes. In particular the defendant relies upon the matters deposed to by her in paragraphs 10, 11, 32 and 34 of her affidavit sworn in this proceeding on 23rd January 2018;
b. from 2005 onwards creating in the mind of the testator a false belief that the defendant had wrongfully acted adversely to the interests of the testator and her brothers, namely the plaintiff and John Savio, and by creating this false belief influencing her to alter her will. In particular the defendant relies upon the matters deposed to by her in paragraphs 36 (a) – (p) of her affidavit sworn in this proceeding on 23rd January 2018.
The relevant paragraphs referred to in paragraph 2a. and 2b. of the amended grounds of objection state, in summary, as follows:
(a) Paragraph 10 and 11—the last three wills of the testatrix set out detailed directions given as to the treatment of the testatrix’s body upon her death and those directions reflect the religious beliefs of the plaintiff, not the testatrix, who was Catholic and continued to observe that religion until her death;
(b) Paragraphs 32 and 34—disputes between the defendant, the plaintiff, John and the testatrix concerning financial matters including:
(i) an amount of $188,000 held by the defendant in a separate account in her name on behalf of her parents. Allegations were made by the plaintiff and John in 2005 that the defendant was misusing these funds. In December 2007, the testatrix commenced a proceeding against the defendant. The defendant believes the proceeding was instigated by the plaintiff and states that the testatrix’s solicitors also acted for the plaintiff and John and relies on a letter dated 17 February 2007 from the testatrix’s solicitors that states:
we are receiving instructions directly from [the testatrix] and at the same time we are receiving instructions to act on behalf of John Savio and the Andrew Savio … we have been instructed to issue proceedings ...
When the defendant asked the testatrix about the proceeding she told the defendant she did not understand it and told her to speak to the plaintiff. The dispute was resolved in March 2008 whereby payment of $122,000 was made for the testatrix’s accommodation bond and the three children each received $22,000. The defendant states that she paid $20,000 for the costs of the plaintiff out of her share of $22,000 and also paid her own costs;
(ii) the sale of a property in Italy valued at $60,000 owned by the defendant’s father and left by him to the three children equally. The defendant wanted the property to be sold to a cousin [in Italy], Palmira, at a fair price rather than the highest possible valuation, so that it would be kept in the family and the plaintiff and John made allegations against the defendant in relation to this [proposal]; and
(iii) a term deposit in Italy held in the name of the cousin, Palmira. The plaintiff and John wanted the money paid into an account in Australia and the defendant alleges they made allegations against her in relation to these moneys.
(c) Paragraphs 36(a)–(p)—these sub-paragraphs refer to correspondence between 1 February 2005 to 7 February 2006 and are examples ‘of the things that were said in this correspondence’. The correspondence is primarily from the plaintiff and/or John to the defendant or her legal representatives, and/or her husband, or the cousin, Palmira, concerning the financial disputes, including allegations that the defendant’s conduct amounted to theft, caused the testatrix physical and emotional distress and ill health, and ‘tore the family apart’.
Applicable principles
In order to establish a prima facie case, an applicant must provide a sufficient factual basis for his or her grounds of objection.[1] Mere assertion of facts are insufficient —
a causal connection must be shown between the facts asserted and the grounds of revocation. The provision of a sufficient factual basis will define the questions for trial, provide an opposing side with a precise understanding of an applicant’s case and avoid surprise at the trial. Particulars based on mere inference, rather than direct evidence or circumstantial facts that are sufficiently particularised, will be insufficient to support a prima facie case.[2] For the purpose of establishing a prima facie case, the particulars must establish that there is a ‘case for investigation’ or raise a ‘doubt’ concerning the making of the will.
[1]See, eg, Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 (16 July 2014) [242]; Montalto v Sala [2016] VSCA 240 (7 October 2016) [29]–[32]; Re Watson [2017] VSC 322 (8 June 2017) [16].
[2]See, eg, Re Smith [1951] VLR 368, 377; Re Watson [2017] VSC 322 (8 June 2017) [17].
A will that has been the subject of undue influence, within the meaning recognised by the courts of probate, is invalid.[3] Testamentary undue influence is a serious claim of an equitable species of fraud, an essential component of which is an allegation of fraudulent conduct.[4] The onus of proof in such claims lies with the party who alleges undue influence.[5] Although the assessment of whether there has been an inappropriate degree of influence is a nuanced one:
To be undue influence in the eye of the law there must be — to sum it up in a word — coercion. It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she will make a will in a particular person’s favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue influence.
The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be, that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be so induced, for quietness’ sake, to do anything. This would equally be coercion, though not actual violence.[6]
[3]Hall v Hall (1865-69) LR 1 P & D 481, 482; Bridgewater v Leahy (1998) 194 CLR 457, 474–5.
[4]Re Montalto [2016] VSC 266 (23 May 2016) [27]; Re Anderson [2017] VSC 338 (16 June 2017).
[5]Boyse v Rossborough (1857) 6 HL Cas 48, 49; 10 ER 1192, 1211; McKinnon v Voigt [1998] 3 VR 543, 562 (Ormiston JA); Re Montalto [2016] VSC 266 (23 May 2016); Re Anderson [2017] VSC 338 (16 June 2017).
[6]Wingrove v Wingrove (1885) 11 PD 81, 82–3; Winter v Crichton [1991] 23 NSWLR 116. See also Bailey v Bailey (1924) 34 CLR 558; Bridgewater v Leahy (1998) 194 CLR 457, 474–5.
The issue in a claim of testamentary undue influence is whether the will made by the testatrix was a product of his or her free will or a product of coercion that overpowers the volition of a deceased.[7] Testamentary undue influence will not be presumed.[8] Particulars that are consistent only with the opportunity to influence a testator or testatrix are insufficient.[9]
[7]Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136 (15 June 2007) [63]–[64].
[8]John Ross Martyn and Nicholas Caddick QC (eds), Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (Sweet & Maxwell, 20th ed, 2013) 217. See also Veall v Veall (2015) 46 VR 123, 173 [166].
[9]Winter v Crichton (1991) 23 NSWLR 116, 121.
Consideration
The circumstances relied on by the defendant for her ground of testamentary undue influence primarily relate to the period after the death of the testatrix’s husband in February 2003 to March 2008 when the testatrix’s proceeding against the defendant was compromised. The first allegation by the defendant is that after the death of the testatrix’s husband in 2003, the plaintiff took control of the testatrix’s financial and personal affairs and she acted in accordance with his wishes, including in the making of the testatrix’s last will in February 2008.
The testatrix also made earlier wills being the 2006 will and the 2005 will respectively. The three wills were prepared on the testatrix’s instructions by her solicitor who speaks Italian who explained the wills to her, as evidenced by the attestation clause in the wills. The defendant says that before the death of the testatrix’s husband, the testatrix’s will dated 31 October 2000 left her estate equally between her, the plaintiff and John whereas the later wills progressively reduced her entitlements and increased the entitlements of the plaintiff and John. A copy of the 2000 will appoints the plaintiff and defendant as executors and the testatrix leaves her estate to her husband if he survives for 30 days and, if not, the estate is left to the three children in equal shares as tenants in common. The 2000 will is not drawn by the solicitor who prepared the last three wills. The execution clause includes a recital that as the testatrix was not able to read or speak English fluently, the will was read to her in Italian.
The first part of the defendant’s particulars in paragraphs 10 and 11 of her affidavit concern the testatrix’s directions in her last will as to the treatment of her body upon her death. These same directions were in her two earlier wills. The directions appoint her three children as her representatives responsible for her body after her death. She directs that her body should not be embalmed or subject to unnecessary autopsy or other disturbing examinations or alterations and no organs are to be removed for study or donation. The directions include that her body be placed in a wooden casket and moved to a place of rest lit only by candles, not being her residence, for a period of three days, and only viewed by the testatrix’s children. The defendant alleges that these directions are the religious beliefs of the plaintiff, not the testatrix, who was a Catholic. The defendant exhibits a page from a book entitled ‘Easy Death, Spiritual Wisdom on the Ultimate Transcending of Death and Everything Else’ by Ruchira Avatar, Adi De Samraj. On that page, there is reference to the body remaining undisturbed for a vigil of the three days. The directions in the will state that after the requisite period, the wooden casket is to be taken to a Catholic Church where a full mass service is to be conducted, and include some details for the conduct of the service. The 2000 will does not include any instructions as to the testatrix’s funeral or burial arrangements.
While these directions differ from what the defendant expects the testatrix would want as a person who observes Catholicism, the directions are repeated in the three wills made within the timeframe of the dispute between the defendant and the testatrix over the return of the testatrix’s assets. It is apparent that the deceased still maintained her Catholicism as her directions include that a full mass is to be held in the Catholic Church after her death. Given Mr Portelli’s evidence that the last will was read to the testatrix in Italian by him and that after the translation, the testatrix ‘expressed that she understood and approved of its contents’, there is no factual basis to support the allegation that these were not the arrangements that the testatrix wanted after her death. There is no suggestion that the plaintiff was present when the testatrix gave instructions for her last will to Mr Portelli. At its highest, this allegation does not speak of the testatrix being prevented from exercising her free will by persuasion, influence or importunity on the part of the plaintiff.
The second part of the particulars in paragraphs 32 and 34 of the defendant’s affidavit refers to the family disputes over the financial matters arising after the death of the testatrix’s husband in 2003. The defendant alleges that the plaintiff took control of the testatrix’s financial and personal affairs and acted in accordance with his wishes, not the wishes of the testatrix, as already stated above. The defendant places weight on a letter dated 17 February 2006 from the testatrix’s solicitor, the full text of which is as follows:
Re Savio – Property and Family Financial
We acknowledge receipt of your letter of the 2 February, 2006 and in this matter we confirm that we have receiving [sic] instructions directly from Mrs Luigia Savia [sic] and at the same time we are receiving instructions to act on behalf of John Savio and Andrew Savio.
Having regard to the fact that no positive approval has been made in relation to a round the table conference or in answering queries in relation to moneys presently held by Luisa, we have been instructed to issue proceedings, which we will be attending to in the immediate future.
Kindly inform us if you have instructions to accept service of proceedings on behalf of your client.
The defendant alleges this letter is relevant as ‘when I asked my mother about the court proceeding she told me she did not understand it and told me to speak to [the plaintiff] about it’. The testatrix issued her proceeding against the defendant in the County Court on 26 November 2007, just under two years from the date of the letter relied on by the defendant. Since August 2007, the testatrix had become a resident in San Carlo Homes, which required payment of an accommodation bond. The defendant had control of the testatrix’s money. In the County Court proceeding, the testatrix alleged that the defendant held the sum of $188,000 on an express trust for her benefit and future needs. The testatrix further alleged that when she requested payment of the capital amount and unpaid interest from the defendant, the defendant failed to pay that sum. The proceeding was compromised on terms set out in a letter dated 19 March 2008 from the defendant’s solicitors. The compromise includes a payment by the defendant to the testatrix of $20,000 for unpaid interest on the trust funds and resolves the dispute over the term deposit in Italy by division of the monies into three equal shares payable directly to the plaintiff, the defendant and John.
The testatrix’s solicitor in the County Court proceeding was the same solicitor who prepared and explained her last will to her. His letter dated 17 February 2006 confirms that he acts for the testatrix and obtains his instructions directly from her. The testatrix’s proceeding was not instituted by a litigation guardian for the testatrix and when the compromise was entered into there was no need for approval of the compromise. The defendant made no issue nor did she complain about the testatrix’s ability to give instructions for the proceeding or to compromise the proceeding at that time. The defendant’s allegations in this proceeding do not establish a basis to maintain that the plaintiff took control of the testatrix’s affairs and acted in his own interests or that he failed to act in accordance with the testatrix’ wishes. The reality of the disputes between the testatrix and the defendant that resulted in the County Court proceeding was that the interests of the plaintiff and John aligned with the interests of the testatrix so that the testatrix could utilise her own funds for her aged care accommodation. She could not do so while the defendant kept control of those funds.
The second allegation in the ground of testamentary undue influence alleges that the plaintiff created a false belief in the mind of the testatrix that the defendant had acted adversely to the interests of the testatrix and this false belief influenced her to change her will. In support of this allegation the defendant relies on paragraphs 36(a)–(p) of her affidavit, which refer to 16 letters between the period 1 February 2005 through to 7 February 2006. The letters set out some background concerning the financial disputes within the family, principally the defendant’s management of the testatrix’s funds and the failure to repay the funds that culminated in the County Court proceeding being issued. The communications are between the plaintiff, John and the defendant, and in some cases, involve the defendant’s husband, a cousin in Italy, or the defendant’s legal advisors. The testatrix is not involved in this correspondence. There is nothing in this correspondence to suggest that the testatrix had knowledge of these letters or was influenced by the way the siblings spoke to each other. The letters from the plaintiff and John clearly state the testatrix’s wishes to the defendant and her desire to deal with the financial disputes concerning her assets.
The defendant’s particulars of the ground of testamentary undue influence, at their highest, assert a belief that she holds, and when analysed, are circumstantial matters that do not establish a prima facie case. The circumstances asserted by the defendant establish that there is a reasonable contrary hypothesis to a claim of testamentary undue influence. That reasonable hypothesis is that the testatrix was in prolonged litigation with the defendant for the return of her funds to her and the testatrix provided instructions to her solicitor directly so that those funds would be returned, as they were eventually. The return of those funds were in accordance with the testatrix’s wishes and instructions to her solicitor. There is no factual basis to assert that the last will was not in accordance with the testatrix’s wishes or that the plaintiff imposed his own wishes in connection with the making of the testatrix’s last will.
The defendant has had a number of opportunities to particularise her ground of testamentary undue influence. No further opportunity should be granted in the circumstances.
Orders
The Court orders that the defendant’s summons filed 24 January 2018 in respect of the ground of objection of testamentary undue influence be struck out.
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