Romano v Romano

[2003] NSWSC 436

CITATION:	ROMANO v. ROMANO & ANOR [2003] NSWSC 436
HEARING DATE(S):	19 and 20 May 2003
JUDGMENT DATE:	30 May 2003
JURISDICTION:	PROBATE
JUDGMENT OF:	Bryson J at 1
DECISION:	Grant probate of will and codicil, pronounce against informal document [79]
CATCHWORDS:	WILLS - testamentary instruments - test of testamentary character - intention of testator - extrinsic evidence - deceased signed before 2 witnesses a document which contained directions for management of his estate when he became incapable by son who held Power of Attorney - expressions in the direction were claimed to show by implication testamentary intentions - on the construction of the document, it did not express any testamentary intention. - WILLS - testamentary capacity - soundness of mind memory and understanding - elderly (alleged) testator suffered stroke, expressed hostility to son & son's wife without rational basis - showed signs of deterioration in some respects and continuing competence in others - (as alternative ground) plaintiff had not shown sound mind memory and understanding.
LEGISLATION CITED:	s.7 of the Wills, Probate and Administration Act 1898 (NSW) Wills Act 1837 (UK) Income Tax Assessment Act 1936 (Cth) s66G of the Conveyancing Act 1919 (NSW)
CASES CITED:	Whyte or Hamilton v. Pollok or Whyte 7 App Cas 400 Methuen v. Methuen (1817) 2 Phillimore 416; (1817) 161 ER 1186 Rhodes v. Rhodes (1882) 7 App Cas 192 Meynell Deceased, Meynell v. Meynell & Ors [1949] English Weekly Notes 273 In Re Barnes (Deceased) Public Trustee v. Barnes & Ors [1954] NZLR 714 Banks v. Goodfellow (1870) LR5QB 549 Timbury v. Coffee (1941) 66 CLR 277 Bull v. Fullton (1942) 66 CLR 295 Re Hodges; Shorter v. Hodges (1988) 14 NSWLR 698 Re Estate Griffith deceased; Easter v. Griffith (unreported) 7 June 1995 Shaw & Anor v. Crichton (Unreported) 23 August 1995 Bird v. Perpetual Executors and Trustees Association (1946) 73 CLR 140 Russell v. Scott (1936) 55 CLR 440 In Re Resch's Will Trust [1969] 1 AC 514
PARTIES :	Edward Romano - Plaintiff Donna Romano and Louise Romano - Defendants
FILE NUMBER(S):	SC 104953/2002
COUNSEL:	J. Wilson - Plaintiff I.G. Harrison SC and L. Ellison - Defendants
SOLICITORS:	Michie, Shehadie & Co. - Plaintiff John Fisicaro & Co. - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

BRYSON J.

FRIDAY 30 MAY 2003

104953/2002 EDWARD ROMANO v. LOUISE MARIE ROMANO & ANOR
ESTATE OF THE LATE GIUSEPPE ROMANO

JUDGMENT

1 HIS HONOUR: Giacomo Giuseppe Romano late of Ryde New South Wales, died at Eastwood on 2 June 2001 aged 87 years. He was born in Belluno, Italy, and lived in Australia since his childhood. Giacomo Romano lived for many years at 341 Blaxland Road, Ryde. He described himself in his Will and Codicil as a company director. At the time of his death he had been retired for some years; earlier in life he carried on the occupation of flower farmer at Ryde and he also owned a number of residential properties and parcels of land. His only marriage was to Francesca Romano known as Franca who died on 19 January 1987. He had two sons, John Romano who died on 11 September 1995 and Edward Romano who is the plaintiff in these proceedings. The plaintiff claims probate of three documents. The first two are a will, prepared by a solicitor and witnessed by two solicitors, dated 6 December 1988; the second is a codicil, also clearly prepared by a solicitor and witnessed by a solicitor and a secretary, dated 28 August 1990. It is not disputed that these should be admitted to probate; the defendants contend that they should be. They are completely regular and were produced from a proper source, and all parties maintain that they are what they purport to be; so I have no doubt that they are. The third document is an informal document dated 5 April 1998 written out in the handwriting of the plaintiff Mr Edward Romano. The defendants dispute that the third document was intended by Giacomo Romano to be his Will, disputes that provisions in it are testamentary in character and denies that Giacomo Romano was of sound mind, memory and understanding on 5 April 1998.

2 The defendants are grand-daughters of Giacomo Romano and daughters of the late John Romano and of Mrs Jeanette Romano his widow. They filed caveats against grant on 20 June 2001 and on 27 November 2001, claiming to be beneficiaries under the Will and Codicil. They are not. The plaintiff by Summons in Common Form dated 2 November 2001 claimed probate of the Will, Codicil and the third document and claimed a declaration that appeared on its face to seek to establish that the third document was an amendment admissible to probate under s.18A. Proceedings in solemn form were commenced by Statement of Claim on 21 March 2002. The first defendant Louise Marie Romano or Armstrong obtained from this Court on 27 August 1996 probate of the Will dated 15 January 1994 of John James Romano; that Will gives the whole of the estate to Mrs Jeanette Romano, in the events which have happened to date. Under s.29 the gifts in the Will and Codicil to John Romano do not lapse but take effect as if the death of John Romano had happened immediately after the death of Giacomo Romano. In that hypothetical event the gift would have passed under John Romano’s Will to Mrs Jeanette Romano. No question of parties was raised and it appears to me that Louise Marie Romano is a proper party.

3 The Will of 6 December 1988 revoked all former wills (and evidence shows that there was at least one) and appointed Giacomo Romano’s sons John and Edward as executors. The Will gave seven home units at “Surf Rider” Avalon Parade Avalon, a house at 341 Blaxland Road Ryde and $200,000 cash to John, the house at 10 Regent Street Ryde, land in Walder Street Warringah and land in Laurel Road Warringah, a property at Ermington and one unit at Surf Rider Avalon and “my overseas loan” to Edward and gave the rest of the deceased’s estate to those two sons in equal shares as tenants in common. The Codicil contained provisions for equalising, out of the estate of the deceased, any disparity in amounts set aside for one son or the other as a beneficiary of the G. Romano Family Trust dated 31 October 1981, but otherwise confirmed the Will. Mr Edward Romano stated in Exhibit 4 on 9 September 1999 that the principal asset of the Trust was $854,000 invested with Mr Giacomo Romano’s solictors.

4 The third document is in these terms:

341 Blaxland Rd
Ryde

I have made my son Edward manager of my estate
as long as we both live.
If I become mentally/physically incapacitated, Ed
is to care for me in consultation with DR HANNAM or
his delegates.
Ed is to act as he sees fit to protect, consolidate
and expand my estate, so that it will be as fully
sheltered as possible from taxation both here &
abroad, when my estate passes to Ed & his heirs.
I exempt Ed & his family for the return of all
loan monies & interest, Ed accrues form Trust & Sales
Real Estate loan etc from my estate.
If Ed dies before me, I want Ed’s wife
Gwyneth & children to take over from Ed, my
health & estate care needs.
April 5 1998
GIACOMO. G. ROMANO
G. Romano
V. Chose
R. Chose

5 The third document contains no expression which identifies it as a will, and no expression showing that the operation of anything it says was postponed until the death of the deceased. It does not mention the earlier Will and Codicil, or any earlier Will, and does not revoke them or say, in any way, what effect they were to have, or that they were to have no effect. Giacomo Romano had had quite enough ordinary life experience, more than most people, to be aware that wills are usually prepared in a formal way by professional advisers; he had executed several prepared in that way. There was no practical or economic obstacle to his consulting a solicitor about preparation and execution of a Will; he was, in April 1998, engaged in selling several properties so as to raise some millions of dollars. He had ready access to professional and other expert advice in legal business, and also in accountancy and real estate, and there was no lack of sophistication and no inhibition against approaching professional persons in his circumstances, or in the circumstances of his family. If his intention was to prepare and execute a document which was to stand as his testament it is very unlikely that he would have done so in such an informal way and with such informal language.

6 If a document is intended to be a will, and is executed in accordance with formal requirements prescribed by s.7 of the Wills, Probate and Administration Act 1898, the law gives effect to the document. The Act does not comprehensively define a will. Section 3 in its definition of “Will” is not presently helpful, in its alphabetical arrangement or otherwise. For a document to operate as a will it must have been intended by the testator to be his will: to be his testament. What is necessary to give a disposition testamentary character is illustrated by the decision in Bird v. Perpetual Executors and Trustees Association (1946) 73 CLR 140 and by the judgment of Latham CJ at 143-144, Starke J at 144-145, Williams J at 153. See too Russell v. Scott (1936) 55 CLR 440, Starke J at 448, Dixon and Evatt JJ at 454. For the present purposes a will must be and must be intended to dispose of property or of rights of the testator in a disposition which is to take effect when the testator dies, but until then is not to take effect, but is to be revokable. (Other things which a will may do without disposing of property, including appointing an executor, revoking a will and appointing a guardian of an infant are not presently relevant.) If the third document has the effect contended for, the earlier will and codicil will not have any continuing effect except as to the appointment of Mr Edward Romano as executor.

7 The requirements for the form and manner of execution of wills specified in s.7 of the Wills, Probate and Administration Act 1898 were actually fulfilled for the third document; the evidence of Mr and Mrs Chose shows that the signature of Giacomo Romano was made by him in the presence of two witnesses present at the same time, and that Mr and Mrs Chose attested and signed the document in the presence of Giacomo Romano, and of each other. They attested it only by signing it; they did not state or certify in the document any statement that they attested it or that they were witnesses; but in my understanding by signing their signatures after the signature of Giacomo Romano they attested the document in the manner referred to in subs.7(1)(e).

8 It is not necessary that it should appear from the terms of a document that it was intended to be a will. In Whyte or Hamilton v. Pollok or Whyte 7 App Cas 400 Lord Selborne LC, in a Scottish case but referring to an English text, at 409 approved the following passage from Treatise on Wills, Jarman, 3rd ed p13:

The law has not made it requisite to the validity of a Will that it should assume any particular form, or be couched in language technically appropriate to its testamentary character. It is sufficient that the instrument, however irregular in form or inartificial in expression discloses the intention of the maker respecting the posthumous destination of his property; and if this appear to be the nature of its contents, any contrary title or designation which he may have given to it may be disregarded.

9 In that case the document was headed “Notes of intended settlement …” but everything else in it was expressed appropriately for a Will.

10 Although it is usual to find a clear statement identifying the document as a will, that is not legally essential, nor is it essential that expressing the testator’s will is the only subject with which the document should deal. See subs.7(1)(c); evidence extrinsic to the document itself is admissible. See too In Re Resch’s Will Trust [1969] 1 AC 514, Lord Wilberforce for the Judicial Committee at 547, citing Methuen v. Methuen (1817) 2 Phillimore 416; (1817) 161 ER 1186. If only part of a document expresses the will of the testator, while other parts deal with other matters, the Court may grant probate of the testamentary part only. Actual instances of this seem to be extremely rare. There is inconclusive discussion of the admission to probate of part of the document in Rhodes v. Rhodes (1882) 7 App Cas 192 at 198 (Lord Blackburn for the Privy Council); in that case none of the document was excluded from Probate.

11 The modern law with respect to testamentary capacity begins with Banks v. Goodfellow (1870) LR5QB 549, Cockburn CJ at 556. Testamentary capacity was considered in the High Court of Australia in Timbury v. Coffee (1941) 66 CLR 277 and Bull v. Fullton (1942) 66 CLR 295; see Latham CJ at 299. See too discussion and further authorities in Re Hodges; Shorter v. Hodges (1988) 14 NSWLR 698 at 706 (Powell J); and consideration in the Court of Appeal of New South Wales Re Estate Griffith deceased; Easter v. Griffith (unreported) 7 June 1995 and Shaw & Anor v. Crichton (Unreported) 23 August 1995. It is not essential that there be insanity or any disorder of the mind, or that there be delusions, for it to be shown that a person did not have testamentary capacity. For a person to have testamentary capacity he must be able to call to mind and consider the property that he has available to dispose of, and the persons who have natural claims for consideration as objects of his bounty; and he must be able to do that without his consideration being affected by hostility which is not rationally based.

12 The burden of proof of all issues is on the plaintiff. The plaintiff bears the onus of proving that the third document or some passages in it were intended by Giacomo Romano to be his Will, and that at the time of executing it he was of sound mind, memory and understanding. The defendants have put testamentary capacity in issue by denying it in the pleadings and by adducing evidence which shows that capacity is open to consideration; but the plaintiff must discharge the burden of proof if he is to succeed. A person who is of sound mind, memory and understanding can make any testamentary disposition he wishes, no matter how inofficious or eccentric; but if dispositions are eccentric or do not recognise obvious claims, those facts may be relevant to capacity. Where a document is expressed and executed in circumstances of regularity the person propounding it is usually taken to have discharged the onus of proof of capacity; but all relevant facts in evidence must be taken together.

13 Several circumstances of the preparation, execution and later treatment of the third document indicate to me that the Court should approach with care the question whether it truly expresses intentions of Giacomo Romano, and whether those intentions were testamentary. It is striking that the document was written out by the plaintiff himself, the only person who, according to his claim, could be benefited by it, and that there is no evidence about the circumstances of composing the document and writing it out apart from his own. The testator was familiar with property transactions, and with having wills prepared by solicitors and executing them, and with leaving wills for safekeeping in the office of his solicitor. He did not, according to any evidence, state comprehensively, or even in general outline, what his intended testamentary dispositions were to anybody apart from the plaintiff. He did not make the arrangements for safekeeping the document which were usual for him, which was to the third document in the custody of the solicitor who acted for him in various business and was familiar with his affairs. The Will and Codicil were kept in safe custody by Mr Shehadie, Giacomo Romano’s solicitor, and produced by Mr Shehadie for Edward Romano after Mr Giacomo Romano’s death. The evidence of the plaintiff is that the testator said that they would keep the document to themselves; no reason for keeping a testamentary document to themselves was given in evidence and none appears to me. If the third document was intended to be a will there is no reason that I can see why it should have been kept from Mr Shehadie, or, if he was not told its terms, why at least its existence should be kept from Mr Shehadie. I can understand why a document making arrangements for management of the testator’s affairs during his lifetime in the event that he lost capacity to manage them himself might be kept to themselves; but that would not be a prudent thing to do, even for such a document, and Giacomo Romano could well have confided his arrangements to the solicitor he repeatedly engaged, or at least told him the nature of the document and given it to him for safe-keeping. Giacomo Romano did not store the third document in a careful manner, in a place where he could rely on its being found, even by the plaintiff, after his death.

14 In Re Meynell Deceased, Meynell v. Meynell & Ors [1949] English Weekly Notes 273 the note includes a dictum by Barnard J to the effect that “… if since the passing of [the Wills Act 1837] a person troubled to comply with its formalities and had a document, whatever its form, duly executed, there was a very strong presumption that that document was intended to be a Will.” The note goes on to attribute to Barnard J that: “He could not find that any of his predecessors had said so …” and his Lordship did not act on that basis. This dictum was repeated, again as an obiter dictum, by Turner J in In Re Barnes (Deceased) Public Trustee v. Barnes & Ors [1954] NZLR 714 at 716. What is referred to in these dicta as a presumption is plainly not a presumption of law but an approach to the interpretation of evidence which is very much subject to consideration of the whole of the evidence in a particular case.

15 It was contended that in the third document the third sentence with its closing words “when my estate passes to Ed & his heirs” contains an implied gift of the whole of the testator’s estate to Edward Romano and his heirs. It is not possible to see clearly why passing of the estate to heirs was referred to. In the Will and Codicil the only beneficiaries named are John Romano and Edward Romano and there is no express provision for benefits to pass to any person traced through them. The reference to Edward Romano “and his family” in the fourth sentence is as difficult to understand as the reference to “& his heirs” in the third sentence. The fifth sentence shows contemplation that Edward Romano might predecease Giacomo Romano.

16 As a matter of language, the closing words of the third sentence do not refer to a gift, but to the time of an event or series of events in which the estate passes to the persons indicated. The time referred to is the time when all the authority conferred to manage the personal estate of the testator during incapacity will come to an end, and the need for action to shelter the estate from taxation will also come to an end. The language used shows an assumption that the estate was to pass at that time, but does not show the basis of the assumption. To speak in terms which show an assumption or a belief that in some unidentified way a testamentary disposition has been made is not to make that testamentary disposition; it is not a way of expressing an intention to make that disposition. If the assumption is wrong, there is no such disposition. The reading contended for is not assisted by the use of the word “estate”. That word is used five times throughout the document, and for three of those times it is altogether clear that the word “estate” refers to the property of the testator while he is still alive. This is quite clear in the first sentence, where “estate” first appears in the third sentence and in the last sentence. In the fourth sentence, which speaks of an exemption made at the present time and capable of operating within the lifetime of the testator as well as later, the word “estate” is capable of referring to the estate of Giacomo Romano in the same sense, that is during his lifetime, at least equally so capable as it is of referring to his estate after his death. In the fourth sentence “accrues” is used in the sense known as the “historic present” which refers to the event whenever it happens, not literally in the present, but in this case including future events of accrual of loans and interest. Nothing in the context of the third document gives the word “estate” in the third sentence the colour which it often has of reference to the estate of a deceased person.

17 In the course of cross-examination the plaintiff accepted a meaning of the word “estate” in the third sentence which was put to him by counsel; but the meaning of the document cannot be established by a concession by a party in evidence.

18 In view of the subject matter with which the third sentence deals the reference to passing of the estate is no more than a part of an explanation of the object with which authority to act is conferred on Edward Romano by the first part of the sentence. Statement of an object of sheltering the estate from taxation at a future time is not an occasion on which the maker of the document should be expected to expound fully everything he expects to happen at that future time, or the legal basis on which he expects it to happen. Why when dealing in the third sentence with conferral of present authority, and explaining the reason for doing so, was Giacomo Romano called on to explain or to state fully what his intentions were for dispositions after his death? This was not the occasion for a full statement. The implication which the plaintiff seeks involves not only that the estate is to pass to Ed and his heirs, but that no part of the estate is to pass to anybody else, notwithstanding any earlier disposition; this puts a heavy weight of implication on the word “estate”, a weight sufficient to overcome by implication the then existing state of Giacomo Romano’s formal dispositions, which were not stated to be revoked. The thought that it is possible that the testator supposed that with the death of John Romano all the estate would pass to the surviving beneficiary named in the Will and Codicil, and did not advert to preservation of gifts of predeceasing children in s.29, seems to be balanced out by the reference to Edward Romano’s heirs, whom it would be significant to mention only in contemplation that he might predecease Giacomo Romano.

19 If it had been the intention of Giacomo Romano to express by the third document a testamentary intention that his estate was to pass to the plaintiff and his heirs on the death of the testator, it would have been extremely simple for him to say so. It is very unlikely that Giacomo Romano intended or that anyone would intend to leave such an important matter to a difficult implication.

20 In my opinion, the third sentence, whether taken alone or with extrinsic evidence, does not convey an implication that the testator intended that it should be his will that on his death the whole of his estate should pass to the plaintiff, or should pass to the plaintiff and other persons referred to as his heirs.

21 If the third sentence had the implied testamentary effect contended for the fourth sentence could not have testamentary effect; it could only operate during Giacomo Romano’s lifetime as on his death Edward Romano would inherit all the estate and would not need any exemption.

22 There are no textual indications that the fourth sentence was intended to operate in the way in which a Will operates, upon the death of Giacomo Romano but not earlier. Its language indicates that it is to operate forthwith and in the future, the only possible indication that it might be testamentary would depend on the use of the word “estate”, and in the context of the third document as a whole that word is not used in a way which refers to the estate left by Giacomo Romano on his death.

23 In my opinion there is no reason to regard the fourth sentence as expressing a testamentary intention. It speaks to exempt “Ed & his family” at the time of speaking, and at that time there were loan moneys on which interest was accruing. Nothing in the third document suggests or supports the reading that the exemption was postponed and was to take effect only on the death of Giacomo Romano. Nothing else in the third document was expressed to take effect only on the death of Giacomo Romano; quite to the contrary what the document provided for was care of the testator and his property during his lifetime. It is improbable that, in the midst of provisions of that kind, a person would choose to say something which was intended to be testamentary, and it is even more improbable that, if he did choose to do that, he would do so in uncertain or doubtful language. It is further improbable that having done so he would revert to the previous subject. But in this case the language is not doubtful but purports to confer an exemption forthwith for everything which accrues from the estate. In the context “my estate” in the fourth sentence refers to the property of Giacomo Romano during his lifetime.

24 The third document does not do some things which persons making wills usually deal with, with which Giacomo Romano had dealt in other testaments, and which would very probably present themselves for the consideration of anybody who thought about making a will. It does not say in its terms that it was a Will or appoint an executor, it does not say in a clear way that it disposes of property upon death and it does not revoke or otherwise say what was to happen with the then extant written dispositions. None of these things is essential if the document was intended to be testamentary, but their absence is adverse to a finding that it was so intended.

25 In my opinion the third document does not express any testamentary intention, and does not make any testamentary disposition. The terms of the third document show that it was intended to deal with management of property in the event of incapacity, and that the mind of the person who composed the document was dominated by that subject. References to management occur, in various forms of words, throughout and show what references to “my estate” were intended to indicate. The principal object of the third document was to record Giacomo Romano’s wishes and authority conferred by him about what Edward Romano was to do, including what he was to do in exercise of the Power of Attorney. Its objects did not include expressing testamentary intention.

26 This is no less correct if it should be found that Giacomo Romano thought or spoke of the third document it as his will. No effect is produced if he thought of it that way unless it also contains a testamentary disposition. It would not avail the plaintiff to prove by extrinsic evidence that Giacomo Romano intended the third document to be testamentary unless in its terms it made a testamentary disposition.

27 On 5 April 1998 the plaintiff already had power to deal with Giacomo Romano’s property conferred by Power of Attorney dated 17 November 1997; but he had not acted on it. Later he did act on it; including action affecting property of very significant value, as when on 26 July 1999 he executed on behalf of Giacomo Romano as well as on his own behalf a written agreement relating to a loan to himself of $4,038,662.35. The Power of Attorney was an enduring power, expressed to continue to be effective notwithstanding loss of capacity through unsoundness of mind.

28 The evidence of Mr Victor Chose shows that he knew Giacomo Romano as a friend from about 1951 onwards and that with his wife he visited Giacomo Romano regularly and the visits were returned; there were meetings about once a week. He said that on the day the third document was signed Giacomo Romano telephoned him and asked Mr Chose and his wife to come over. They did so and he said “I would like you to witness my signature on a document” and showed them the third document which Mr Chose read. Giacomo Romano said “Eddy has gone back to America. I want to leave everything to him. I don’t want to leave everything to Jeanette”. He had previously said, on many occasions, to the effect of “Jeanette is only interested in my money.” After Mr Victor Chose read the document Giacomo Romano signed it, in the presence of Mrs Rima Chose and Mr Victor Chose, and of nobody else; Mr Victor Chose then signed the document so as to witness it, and Mrs Rima Chose then signed the document.

29 Mrs Rima Chose also gives evidence of knowing Giacomo Romano since about 1951, and regularly meeting him socially. She said that around the time the third document was signed Giacomo Romano was suffering from high blood pressure and had become upset with Mrs Jeanette Romano; he had said on a number of occasion to the effect of “Jeanette is just after my money” and he had been upset when Mrs Jeanette Romano had asked him to pay her for slippers she had bought for him when he was in hospital. He also said to thus effect: “Jeanette is trying to put me into a nursing home and get me out of the house.” On earlier occasions, which must have been during John Romano’s lifetime he had said: “John and Jeanette want to try to get me into a nursing home to get me out of this house. They want this house.” He had also said “John and Jeanette never helped me. If John cuts the grass here for me he charges me $250.00. He stole my money from under the house.” Mrs Chose’s evidence shows that with her husband she went to Giacomo Romano’s house at Blaxland Road on 5 April 1998; he said “I want you to witness my signature on the document”; she read the document and he said “I’m just going to leave everything to Eddy”; the document was then signed. She said that he appeared to understand the document.

30 Upon the evidence of Mr and Mrs Chose, Giacomo Romano did not speak of the third document as his will, or speak in terms of making a will; he spoke in terms of wanting to leave all his property to Edward Romano, and if that subject was so much on his mind that he spoke of it, it seems to me extremely unlikely that he would not have identified the document being signed as his will, if he had thought that it was. The words referring to leaving everything to Eddy probably, in the context including what was in the document, refer to leaving management of affairs to him. However they could have been intended to refer to leaving him property in a will. Mr and Mrs Chose were the only witnesses to Mr Romano’s signature.

31 There was no evidence that Giacomo Romano ever referred to the third document as his Will, or spoke of it in terms which had that effect, even to Mr Edward Romano. The closest approach is found in the evidence of Mr and Mrs Chose, and that is no more than an approach; there is no such actual reference even there.

32 In my opinion, the third document should be understood as containing provisions intended to operate during the lifetime of Mr Giacomo Romano, and only then. The first sentence is a strong statement on that subject, and the document never departs from this subject except, at the end of the third sentence, in a brief explanation of the reasons for one of the directions about conduct during Giacomo Romano’s lifetime.

33 The complexity of the examination and inquiry which is required for the possibility of expression of a testamentary intention to be perceived is in itself a warning against finding, by a complex examination, an intention which could be expressed readily and simply in a few words. Counsel for the defendants contended that as well as examining the words of the third document closely I should take a step back, form a general view of it and consider whether that showed whether or not it expresses Giacomo Romano’s will. I have done that and the exercise shows very decidedly that the third document does not appear to be a will. It does not look like a will, it does not read like a will and it does not say the things that people say in their wills. Only close lawyerlike attention to its words in meticulous detail could even raise the possibility for consideration. It is extremely unlikely that Giacomo Romano intended to act that way.

34 I do not have confidence in Edward Romano’s evidence. He is a witness with a very strong interest in the outcome in terms of value of the money lent to him and of the interest, and also in terms of exemption from examination of the transactions in detail. The opportunity to produce evidence bearing on whether or not the document was intended to be testamentary, and the circumstances in which it was produced, is almost entirely within his power, the defendants and any other persons are in a poor position to adduce evidence about those facts, or to investigate the events, find out grounds for challenge, or to challenge and test the veracity and completeness of his case. There was relatively little cross-examination, and the defendants were in a poor position to find source material from which to make any challenge. I do not regard the evidence of Edward Romano as significantly corroborated, and some of the circumstances had the reverse effect of corroboration; they tend to enhance the care to be applied before acceptation of his evidence. It is particularly strange, if the document were testamentary, that it was seen as a document which Giacomo Romano and Edward Romano should keep to themselves, that it was kept by Giacomo Romano and not put in the solicitor’s custody, even sealed up, and that when it was found by Edward Romano, during Giacomo Romano’s lifetime, but also during his incapacity, it was found in a place where it could not readily be located. Mr Edward Romano’s accounts in evidence of where it was found are not uniform, but it was not in a place where it could readily be located when Giacomo Romano was incapable or (if that had been important) when he was dead.

35 In his first affidavit Mr Edward Romano said to the effect that the third document was found by him at Giacomo Romano’s home amongst some of his personal papers and belongings, and Giacomo Romano told him that he had signed it. He said that the will and the codicil were found amongst other papers of Giacomo Romano held by his solicitors Mr Michi, Shehadie and Co. He named himself as the only person entitled in distribution and did not disclose loans to himself as assets in the estate: he did not disclose them because he regarded them as released by the third document. He also said that about 23 April 1998, in a telephone conversation, Giacomo Romano told Mr Edward Romano that he had signed the document and had Mr and Mrs Chose come and witness his signature. In June 1998, on occasion when they were about to go to the bank to have another loan agreement witnessed, Edward Romano asked Giacomo Romano “where is that document that I wrote out for you when I was last here? Giacomo Romano went away and came back with the document and said, “Here it is. I will keep it in a safe place.” Edward Romano saw that it was the document that he had written out, and that it was signed and witnessed. In his affidavit of 21 June 2002 he said “ I found the document which had then been signed among my mother’s funeral papers not long before I appeared before Mr Justice Young in this court in other proceedings in respect of the Guardianship of my father”. He said in his affidavit of 19 May 2003 “Sometime during 2000 I found the document in an envelope in a filing cabinet at 341 Blaxland Road, Ryde. It was in an envelope with medical reports relating to my late mother.”

36 The arrangements made, according to Edward Romano’s evidence, between Giacomo Romano and himself about interest are difficult to understand in relation to the expressed object of minimising taxation. (I refer to evidence about interest further at [50], [63] and [64]. Edward Romano’s evidence was that the moneys when advanced were placed in term deposits at a bank in the name of Edward Romano, so that the interest was credited to him, with low withholding tax as he was not an Australian resident. If minimising the incidence of taxation was the object it is difficult to understand why the loan agreements provided for interest. That provision, according to Edward Romano’s evidence, led to further discussion about the burden of interest on him, and it seems that that discussion led on to the fourth sentence. Giacomo Romano was not really in a position to exempt a borrower from loans or interest accruing to the trust. If the object was to minimise the burden of taxation there was no reason to provide for the loans to carry interest, while the accrual of a right to interest raised the possibility of liability of Giacomo Romano to income tax whether or not the interest was actually paid.

37 Two written loan agreements later in date than the third document expressly provided for interest, and I am unable to see why such provision was appropriate if Giacomo Romano regarded Edward Romano and his family as exempted from interest, and also from loans. The whole array of references to and dealings with interest do not form any pattern that I have observed. The form and function of the loan agreements before and after 5 April 1998 in providing for interest are difficult to understand, although the behaviour of Edward Romano in not paying interest is not.

38 In the third document the fourth sentence refers among other things to loan moneys and interest Edward Romano accrues from the Trust. There is as it happens no reference anywhere in evidence to a loan from the trust to Edward Romano. Evidence of Mr Thomas of what he said to Giacomo Romano towards the end of March 1998 appears to show that all the income from the trust (and distribution of trust income was discretionary) was paid to Edward Romano.

39 In 1994 Giacomo Romano accused John Romano of stealing a large amount of money from a safe at the house at Blaxland Road. Then for about 6 months he had no communication with John Romano and his wife. After John Romano’s death, Mrs Jeanette Romano succeeded to him as a co-owner with Giacomo Romano and Edward Romano of land at Ingleside. Giacomo Romano became aware that Mrs Jeanette Romano wanted to sell the land and he became very upset with Jeanette Romano and with Louise who was John’s executrix. After a meeting of family members with a solicitor and an accountant in August 1997 Giacomo Romano agreed to list the Ingleside properties for sale. He later told Edward Romano that he thought that Jeanette Romano would meet expenses associated with the sale including costs of obtaining a valuation, clearing and surveying; this led to a dispute. Giacomo Romano suffered a stroke on 22 October 1997. Later he said to Edward Romano “Jeanette killed my son and now she is trying to kill me.” Mrs Jeanette Romano commenced proceedings under s66G of the Conveyancing Act 1919 for the appointment of trustees for sale late in December 1997. Soon after the summons was served, the co-owners agreed that the land was to be sold and the money and the proceeds paid to the owners in their respective shares, and they joined in signing Sales Agreements which authorized a real estate agent to sell the land. The Ingleside land was sold at auction on 28 March 1998 and the sale was completed about June 1998. Each co-owner received approximately $600,000 from the sale.

40 Edward Romano’s principal place of residence has been the United States at most times since about 1960, although he has spent some periods living in Australian and in Europe. In the period 1997 to 1999 he visited Australia several times a year and stayed for periods of some weeks on each occasion. He was in Australia from 24 December 1997 to 15 January 1997 when arrangements for the sale were agreed, and from 13 March 1998 to 6 April 1998 when the auction of the Ingleside land was conducted and the third document was prepared. He had frequent contact with his father Giacomo Romano, and stayed in his house whilst visiting Australia (and also after Giacomo Romano lived in Nursing Homes). He telephoned his father, usually once a week but often more frequently when there was business to speak about.

41 Mr Edward Romano has stated that after Giacomo Romano had a stroke on 22 October 1997 he was admitted to Ryde Hospital for about five days, and on his next visit (which was from 29 October to 29 November 1997) Edward Romano took Giacomo Romano to see Dr Hannam. Dr Hannam has prepared a report, which is evidence. His next visit to Australia was the visit beginning on 24 December; then the visit beginning on 13 March; then the visit on 20 June 1998 and there were four more visits up to the time when he made the Witness Statement Exhibit 4 on 9 September 1999. In his Witness Statement Mr Edward Romano says:

20. On my subsequent trips I noticed a gradual decline in my father’s capacity to look after himself. He was confused from time to time, I became aware that he relied more on Maria Cella [his housekeeper] who was now coming virtually each day and preparing food for my father for those days when she did not come to his home.
23. In July 1998 I asked my father some questions about the payment of his accounts and happened to look in his cheque books. I noticed that his cheque butts were not properly completed and sometime completed inaccurately. For instance in his cheque stub he had written an amount of $7,000 but when I checked his bank statement the cheque paid was for $700. This was quite unusual because my father was meticulous in his bookkeeping and he was careful with writing up his cheque books and recording details of cheques. Further his handwriting had deteriorated to the point where it was difficult to read what he had written. In July 1998 I wrote out a series of cheques for my father to pay accounts which had not been paid. He signed these cheques. Thereafter I arranged a routine whereby he would not pay his accounts while I was away from Australia and when I returned I would write out cheques for all his unpaid accounts and have him sign those cheques. My father signed cheques up to the time of his admission to La Salette Nursing Home.

42 For several years a flat forming part of 341 Blaxland Road was leased to a husband and wife as tenants; by 1998 however the husband had left and the wife, who was a psychiatric nurse, was living in the flat by herself. In September 1998 the tenant told Edward Romano of an event which had happened about August 1998 in which, when she was attempting to pay the rent, Giacomo Romano had assaulted her, grabbed her from behind and put his hand on her breasts. Edward Romano said (Ex 4 para.26):

During my visit in September 1998 I noticed that my father was becoming more confused. He was blaming people for little incidents and accidents that happened to him.

43 During the visit in March 1999 Giacomo Romano’s behaviour showed marked signs of deterioration. When Edward Romano spoke to him about the possible sale of some home units in “Surf-Rider” at Avalon, on reasonable grounds relating to deterioration of the building, Giacomo Romano became extremely agitated and abusive, and attempted to punch Edward Romano. Edward Romano then decided that it would be difficult for Giacomo Romano to continue living by himself and he investigated opportunities for him to live in a nursing home. Giacomo Romano was then admitted to La Sallette Nursing Home near his own house on 10 April 1999, and for the rest his life he lived first in La Sallette and later in Bethany Nursing Home, Eastwood.

44 Several reports and some clinical notes of Dr D.B Hannam, General Practitioner are evidence. In clinical notes [Exhibit 1] Dr Hannam, wrote on 31 March 1998 to this effect: “Discussed with son 31-3-1998 has severe short term memory loss with paranoia/aggression???? GAT involvement” (GAT means Geriatric Assessment Team).

45 In the short report on 20 July 1998, prepared for Doctor Ernest Tam a Consultant Physician, Dr Hannam said “…Mr Giacomo Romano… has been essentially well” and among a number of things reported “main concern both deteriorating short term memory and behavioural problems.”

46 Dr Hannam made report for the Guardianship Tribunal on 19 August 1999 and said among other things: “Giacomo (Jimmy) Romano has been patient of mine since May 1996. During the last 3 years Mr Romano has become progressively demented and more dependent.” Dr Hannam went onto give an account of progressive short term memory loss, behavioural disturbances and plans for long term management and admission to a nursing home specializing in aged dementia care.

47 Dr Ernest Tam is a Consultant Physician who saw Giacomo Romano on 26 October 1998 and 15 February 1999. Dr Tam reported to Dr Hannam on 12 October 1998. On 26 October 1998 Dr Tam describing himself as Consultant Geriatrician gave a general certificate “to whom it may concern” saying, “This is to certify that Mr Romano is suffering from dementia and a recent minor stroke. He has no insight into his cognitive problems. At this stage he has no testamentary capacity.”

48 Dr Tam made a report for the Guardianship Tribunal on 13 September 1999- [Exhibit 1- page 23] When giving the history, furnished by Mr Edward Romano who attended at the first interview, Dr Ernest Tam said:

It was reported that Mr Romano was presenting with obvious short term memory problems; e.g. misplacing things, emotional [labilities], reversed sleep rhythms, nocturnal confusion, hallucination, e.g. birds talking to him, and delusion of theft e.g. accusing people of stealing [his] things and he locked up doors. He also had dysgraphia since October 1997. He could not write cheques properly and he might put more zeros on the numbers… He could be abusive to his care giver who visted 3 days a week. (Exhibit 1)

In giving his opinion Dr Tam said, among other things:


Mr Romano, aged 85, had a history of hypertension and hypercholesterolacimia and has been presenting with a typical history of multi-infarct (vascular) dementia with a symptomatic right CVA hemiparesis in October 1997 and step-wide clinical deterioration, predominantly mental disorders with progressive short term memory loss, loss of insight, hallucinations, delusion of theft, emotional liabilities, aggitative behaviour and sexual disinhibition and sexual assault to his tenant.

CT Scan (Brain) demonstrated significant cerebral atrophy with ischaemic changes and enlargement of ventricular system, consistent with his predominantly vascular dementia.

When I first saw him on 28 September 1998, he could not demonstrate competence in decision making. He did not have insight into his behavioural problems. (Exhibit 1)

Speaking as of 13 September 1999, Dr Tam reported:

In my opinion, he needs continuing care in a high level dementia specific aged care residential facility. He does not have insight and ability to make decision to manage his affairs in his interest. He could be physically and sexually aggressive to people. Staying at home supported by carers is not an option at this stage. (Exhibit 1)

49 Material from the second part of 1999, including reports in Exhibit 1 by Dr Rowan Chambers dated August 1999 appear to me have relatively less significance for an understanding of Giacomo Romano’s condition and capacity in April 1998. Mr Edward Romano sent a message to Dr Hannam on 7 October 1999 and passing on opinions of (the otherwise unidentified) Dr Knegsen on the then state of Giacomo Romano, his Alzheimer’s disease and other aspects of deterioration. This too is somewhat removed in time from the relevant period.

50 Evidence tendered by Edward Romano depicts Giacomo Romano acting in ways which appear to show understanding of business as about the time of executing the third document.

51 Mr Battersby, a financial planner gave evidence of handling personal banking business for Giacomo Romano at the Ryde Branch at the Commonwealth Bank in June 1998. He gave evidence of an occasion on 26 February 1998 when he witnessed the loan agreement in the presence of Giacomo Romano and Edward Romano; Edward Romano read from the document and asked Giacomo Romano “Dad do understand what this is about? Do you understand what they are doing” and Giacomo Romano replied in a fairly angry manner, “Yes of course I do.” In many banking transactions Mr Battersby saw no reason to believe Giacomo Romano did not have full understanding of his bank transactions.

52 Sonia Gardner, a legal secretary employed by Mr Michael Shahadie gave evidence of carrying out conveyancing work, and gave evidence based on a very detailed file note of conversations with Giacomo Romano on 27 March 1998 in which he gave every indication of having an appropriate grasp and understanding of arrangements in which he authorized. Relying on these instructions the firm handed a cheque for a very large sum to Edward Romano and made arrangements for its investment.

53 Mr Griffin, a real estate agent at Avalon, gave evidence of acting as letting agent and dealing with Giacomo Romano in various business relating to flats at Avalon till about April 1999, in which he saw no reason to doubt Mr Giacomo Romano’s understanding and competence.

54 Mr Lewis, solicitor acted for Giacomo Romano as executor of the late Giuseppe Secco who died in or about 1996. In attendances relating to obtaining probate up to 18 August 1998 when he swore Estate accounts, Mr Lewis saw no reason to believe that Giacomo Romano did not understand the business and the documents in hand.

55 Maria Sartor (referred to in some places as Maria Cella) gave evidence of her working as Giacomo Romano’s housekeeper for about five years until he went into a nursing home. She gave evidence about his way of life and moderate use of alcohol, the circumstances of his stroke, his low level of contact with some of his relatives and various other circumstances of his life.

56 Mr Smith, a tenant of part of the land at Ingleside, gave evidence of a conversation with Giacomo Romano on the day of the auction in the course of which Giacomo Romano said “I am not happy about selling the property but I haven’t got much choice, I am being pressured by the family to sell them”. In the conversation and a later meeting for tea after the auction, Giacomo Romano appeared to Mr Smith to be mentally alert and aware of the process and in control of his mental faculties.

57 Mr Shehadie solicitor gave evidence that he has known Giacomo Romano from about 1978 and began to take over his legal business from Mr Shehadie’s partner from about 1989. He gave evidence of conducting several matters for him including the sale of the Ermington property, execution of the loan agreement on 27 March 1998, sale of the land at Ingleside including the execution of the transfers and completion of sales, and a sale of a property at Regent Street, Ryde. Mr Shehadie said “During 1998 I observed that Jim Romano’s health appeared to me to be deteriorating however at no time did I have any reason to believe that he did not understand the nature or import of any document I had him execute in respect of the transaction that is referred to in the affidavit…at no time did I have any reason to believe that Jim Romano did not understand the nature of and effect of the conversation that I was having with him…”

58 Mr Stevens, real estate agent at Terrey Hills gave evidence of a number of attendances from August 1997 to March 1998 connected with sale of the Ingleside properties and arrangements leading to the auction. He said “As far as I am aware Giacomo Romano always appeared to understand and he also appeared to understand the effect of the sale agreements that he signed and the process of selling the blocks of land by auction”. There are two series of agency agreements, and three sale agency agreements in each series. Giacomo Romano also signed sales contracts.

59 Mr Thomas, chartered accountant gave evidence of a conversation with Mr Giacomo Romano towards the end of March 1998 and of advice given about the incidence of tax” You know that the income from the trust is paid to Ed and 10% withholding tax is paid on the trust income. You can arrange your affairs so that you lend the money that you get from the sale of the property to Ed, he can invest the money here and he will pay 10% tax on the income generated.” Giacomo Romano said, “ I would prefer to be paying 10% tax and Mr Thomas said, “I will send you the letter and a loan agreement.” This letter related to preparation and execution of the loan agreement of March 1998 relating to $1.4 million. Mr Thomas gives evidence of being present at a family discussion of the sale of the Ingleside land; Mr Thomas has mistaken the year of this discussion, which was in 1997, and gives evidence that “… I had no reason to believe that he did not fully understand what I was saying to him. I also had no reason to believe that he did not fully understand the actions that he was entering into disposing of the passage sale of his earnings and property.

60 The conversation as narrated by Mr Thomas appears to me to show some misunderstanding of Mr Thomas’ advice; it was Edward Romano who was to get the proceeds of interest on the moneys lent to him and lent out by him again, and Edward Romano who was to be paying 10% non-resident tax; the loan agreement provided for income tax to be payable to Giacomo Romano; Giacomo Romano said “I would prefer to be paying 10% tax” but it was not he who was to be paying 10% tax, and he was to become entitled to and arguably liable for taxation, on the interest on which the loan agreement had been provided. Mr Thomas’ evidence does not, in my view show any real understanding by Giacomo Romano of the taxation considerations involved.

61 Mr Edward Romano produced in evidence many documents containing notes and other written material which showed, in most cases at various times in 1998, that Mr Giacomo Romano attended to various matters of business and made businesslike notes, including notes of reconciliations of rent statements with bank statements and notes recording the payments of cheques on bank statements and other matters of business. These seem to show ordinary competence in attending to such matters; none of them are particularly complicated. This evidence must be taken with para [23] of the statement, Exhibit 4 about Mr Giacomo Romano’s competence in 1998.

62 As well as the Ingleside property, Mr Giacomo Romano sold other properties at Ermington and Ryde, apparently in 1998. Mr Edward Romano, exercising power of attorney sold several of the home units at Avalon and accumulated funds in the order of $4.3 million in September 1999, which were held in a term deposit in Edward Romano’s name in the Commonwealth Bank at Top Ryde; there were also funds of his own in the term deposit, and the loan agreement dated 26 July 1999 records the amount the subject of these dealings as loans, as recorded by Edward Romano, at the date of the deed. There were further transactions later.

63 Mr Edward Romano says that Giacomo Romano received over $1,350,000 less legal fees from the sale of the property at Ermington, and that led to a loan of $1 400,000 recorded in a loan agreement dated 27 March 1998 prepared by Mr Fred Thomas, Accountant and signed by Giacomo Romano and Edward Romano. It was his evidence that Giacomo Romano explained this to him by saying “I have been advised by Fred Thomas that the most tax effective way to deal with these funds is to lend them to you, a non-resident of Australia. We can have a similar arrangement in respect of these funds to the arrangement we have in respect of the monies invested by G Romano Family Trust”. After the loan agreement was signed on 27 March 1998 Edward Romano had a further conversation with Giacomo Romano on 4 April 1998, the day before the third document was signed. Edward Romano said that he was worried about the obligation of the loan agreement to pay 7% which was more than the bank term deposit interest and Giacomo Romano replied “that’s not a worry Ed. I will never ask you to pay the interest on this arrangement simply for tax purposes.” Edward Romano expressed concern about his possibly being pursued by Mrs Jeanette Romano and her daughters for the loan money and interest after Giacomo Romano died; this led to Giacomo Romano saying “I haven’t really thought of that. You’re quite right. I should never had put Ingleside in joint names. Jeanette Romano and her daughter hen pecked John to death and now they are trying to get me.” He also said “I don’t want that to happen, that money is really yours. I will sleep on it and we will work out something in the morning before you go home.”

64 The next day which was the day on which the third document was signed, in a conversation Giacomo Romano “again referred to working this out, said that he did not want to be paying the accountant and solicitor fees, that he wanted money from the sales put into loan arrangements as had been done with the money from the Ermington sale and “I want you write this down and leave it with me to get it witnessed. I want you to run things for me. All this money is confusing. You made more money for us on Ermington in a few weeks than Mum and I have made in years of slaving with flowers. As long as I am ok you won’t need the document. But until you do need it we will keep it to ourselves. It will confirm that I am leaving everything to you and that you are do as you see fit if I can’t.” (In the context the statement “I’ll confirm that I am leaving everything to you and that you are to do as you see fit if I can’t” did not refer to a testamentary disposition, but referred to leaving management responsibility to Edward Romano.) Then Giacomo Romano dictated and Edward Romano wrote down the words in the third document. Giacomo Romano read it “and he… wanted to sign it there and then”. Edward Romano advised him to speak to the solicitor about the wording. Giacomo Romano said “No. I know what I am doing. It is only going to cost more if I do that. Edward Romano then dated the document 5 April 1998 and said “ I will leave it with you. You can sign it in front of some witness you can trust. Giacomo Romano said, “As long as I am ok we won’t need it. I will keep hold of it and we will keep it to ourselves until it is needed”. Edward Romano left the document with him, unsigned, and did not see Giacomo Romano after leaving him that morning before he left for the United States on the following morning 6 April 1998.

65 Mr Jeanette Romano gave evidence dealing with events earlier in the family life. It was her observation that after Giacomo Romano’s wife Francesca referred to as “Franca” died, “Jimmy seemed unable to make decisions at this time.” She also gave evidence that he was drinking more wine than he used to and quite often by the afternoon was quite drunk. There is evidence to different effects on the subject of excessive alcohol consumption from various sources and the evidence of persons making these observations does not enable me to reach any clear conclusions. There is no reason to think that Giacomo Romano was relevantly affected by alcohol in relation to the preparation and signing of the third document. Medical evidence indicates however that alcohol consumption had some influence on his dementia.

66 Jeanette Romano gave evidence as follows:

In early 1994 there was a serious incident. Jimmy called John and I saying words to the effect:-
“Some of my money has been stolen.”
John went to see him and they both came back to our house. There was a conversation to this general effect:-
Jimmy “I had some money in a cardboard box under the house and it is missing. It was a lot of money, about $300.”
John “Let’s call the police.”
Jimmy “No. I do not want the police involved.”
The next day John and I went down to see Jimmy and there was a conversation something like this:-
Jimmy “There was $3000 in that tin and it is gone. The only people in the house at the time was me and John, Sue (the housekeeper) and her son. Who could have taken it?”
John “Dad. I do not think that you any money there any more. I think that you are remembering when we were young and you kept money in a tin[e]. Maybe you are confused and got it wrong.”
Over the following months Jimmy every now and then would raise the subject of the missing money again and say words to the effect”:-
“Someone stole my $13,000. It was in a paper bag.” (Paragraph 8, J. Romano affidavit)

Jimmy never actually actually accused John of stealing the money but often inferred it when discussing the incident with words to the effect:-
“There was only me, John and Sue in the house and I know that Sue did not steal the money so who could it be?” ([9] J Romano affidavit)

On Father’s Day 1995 we were celebrating at a restaurant. Jimmy again raised the issue of the ‘stolen money’. He said something like:-

“Someone took my $25,000 from the tin.” [11] J Romano affidavit.

67 This evidence was not challenged and indeed it seems to confirm other indications in evidence that Giacomo Romano made strange and improbable accusations against John Romano, and strange complaints about some other people, and that some of these events occurred before, even long before 5 April 1998.

68 Jeanette Romano’s evidence was that:

Jimmy had a stroke on the 27th October 1997. After that I observed that he seemed a little confused and that was a little slower in speech at first but this improved. I observed that he began to forget what he had told me. He began to confuse names. He told me one day “Ed visited me”. ([15] J Romano affidavit)
He was still drinking a lot of alcohol and by the afternoon he was fairly intoxicated. When I rang a few times I could not get much sense out of him. I made a point of telephoning him in the mornings if I could. ([16] J. Romano affidavit)

69 She gave evidence from a conversation with Giacomo Romano about the November 1997 about proposals to change his will in favour of Edward Romano when she suggested that he speak to his solicitor. She also gave evidence. She also gave evidence suggesting in conversations with him in March and June 1998 she observed some signs of confusion.

70 Louise Romano gave evidence of some relevant events. A passage in her affidavit which I regard as important is to the effect that, after being absent from Australia in 1998 until about September 1998 it was her observation that Giacomo Romano was much vaguer and unable to recognize her until she reminded him of who she was; it was her view that his memory of some things had deteriorated and he was not as alert as he had been when she had last seen him.

71 Denis Secco, a nephew of Giacomo Romano gave evidence of some events in the history of the family and his observations about the effects of alcohol on Giacomo Romano. He gave evidence (para 3):

3. Over the years, Uncle Jim told me that he kept cash collected from flower sales and rents in his house, under floorboards. In about June 1993, Uncle Jim told me words to the effect:-
A large sum of money has gone missing from my house.
In a later conversation in about early 1994, he said to me words to the effect:
I think my son John may have taken the money. He knew where the keys were and there was no forced entry.

72 Mr Secco also gave evidence of various observations which in his interpretation showed confusion and lack of complete understanding, and a conversation about granting the Power of Attorney on 2 April 1998. He says in paras 8 and 9:

8. In about April 1998, Uncle Jim phoned me and told me words to the effect:
Eddy wants me to give him a power of attorney. I am being pressured to sign a document. What should I do.
I said to him words to the effect:
I will get some advice from my accountant, Paul Dovico and let you know.

I obtained some advice from him. I then rang Uncle Jim back and said to him something like:
It is not good to give one person only a power of attorney. I would suggest you give this authority to 2 people. What about if you give it to your solicitor and accountant.
At the time, I made a short note of some of this in my 1998 diary on 2nd April 1998.
9. In about August 1998 I collected Uncle Jim from his home and brought him to Rodney Lewis’ office at West Ryde to sign documents in relation to my father’s estate since he was executor of the estate. I observed that Uncle Jim appeared weak and that his signatures were shaky and different to those in the past.

73 This is the event of making the affidavit of accounts of which Mr Lewis speaks.

74 Doctor James Maguire is a Consultant Psychiatrist now in practice in Balmain. He prepared a report for use in these proceedings at the request of the defendants’ solicitor. His report was based on documents, including Guardianship documents and reports and notes of Dr Tam and Dr Chambers, and copies of a number of affidavits in the proceedings, and was not based on treatment or knowledge of Giacomo Romano during his lifetime. Doctor Maguire made observations which showed that he had studied the documents very closely. In a passage based on Dr Maguire’s professional expertise he said:

Although someone may have dementia this does not mean that at the time they dictate, write or read a document that they do not understand its import, nor does it automatically mean they do not have testamentary capacity.

While I have received Dr Maguire’s evidence with respect, the restrictions on Dr Maguire’s opportunity to form conclusions are reflected in the narrow and careful conclusions which he expressed.

75 The evidence shows that Mr Giacomo Romano had had, for some years, even in the lifetime of his son John Romano, feelings of hostility towards John Romano and his family, and that he expressed beliefs, in various terms, about supposed misbehaviour including stealing large (but various) sums of money from himself, which are very unlikely to have had a reasonable basis. He also expressed himself in ways which showed that he did not have a rational view of Mrs Jeanette Romano’s position as a co-owner of the Ingleside property and of her wish to realise the value of her share, which was very much a matter for her own decision and not one in which she could reasonably be expected to accept control or delay from her co-owner. He suffered a stroke before he wrote the third document. There are in the evidence expressions of concern about his ability and judgment, even roughly contemporaneous with the third document, and becoming more intense later in the year, with an episode of inappropriate behaviour towards his tenant which seems to show a marked deterioration in judgment and appraisal of other people; or in any event, of her. His money transactions with Edward Romano, which began before the date of the third document, show him progressively resigning, eventually completely, his management of property and his control of his affairs to Mr Edward Romano. There are a number of instances in evidence in which persons dealt with him in matters of business in which he appeared to show an appropriate grasp of his interests and of his dealings, and did not give signs of a want of competence. For the most part this evidence shows Giacomo Romano dealing in business which was routine or which repeated business of kinds which he had conducted earlier and with which he was probably familiar, and performing acts which were in his own interests, and for the most part he was supported by professional or other business persons’ assistance; things which, while significant in their own ways, did not require the kind of advertence and consideration necessary for formulating a testamentary disposition.

76 If the third document is treated (contrary to my finding) as testamentary, it shows in its own terms a great deterioration of the quality of consideration which he had earlier given to making a will, as it does not mention or deal with earlier wills, revoke them or say whether they are to stand, it does not deal with or consider Mrs Jeanette Romano or her daughters, who were Giacomo Romano’s grand-children and naturally would come under consideration, and (on the plaintiff’s reading) it disposes of his property by implication and not by well-considered or clear statements. Making a will in this way and in these terms is of itself an indication of failure of powers of mind.

77 The onus of proof of testamentary capacity always remains upon the plaintiff, and in seeking to show that this onus has been discharged the plaintiff is not assisted by any circumstances of apparent regularity of the preparation or of the execution of document as a will. If the third document did in fact contain any testamentary disposition I would not have been prepared to grant probate of it because it has not, to my finding, been established on the balance of probabilities that Mr Giacomo Romano was of sound mind, memory and understanding when he signed the document.

78 For these reasons I propose to pronounce against the third document and to grant probate of the will and of the codicil only.

79 ORDERS:

(1) Grant to the plaintiff probate in solemn form of the will dated 6 December 1988 and of the codicil dated 28 August 1990 of the testator.

(2) Pronounce against and refuse probate of the document dated 5 April 1998 referred to in the Statement of Claim as an amendment to the testator’s said will and codicil.

(3) Order that the plaintiff’s costs of the proceedings be paid or retained by him out of the estate of the testator.

(4) Order that the defendants’ costs of the proceedings be paid by the plaintiff out of the estate of the testator.

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Last Modified: 06/12/2003