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Saeedi v Pastrello

Saeedi v Pastrello

Case [2025] ACTSC 26 12 February 2025

Testamentary Capacity

Knowledge and Approval

Wills, Probate and Administration

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Saeedi v Pastrello
Citation:	[2025] ACTSC 26
Hearing Dates:	5 – 6, 8 – 9, 12 August 2024
Decision Date:	12 February 2025
Before:	Mossop J
Decision:	See [206]
Catchwords:	SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – The making of a will – testamentary capacity – where testator elderly – where video recording existed of solicitors taking instructions – where defendant’s objections related to failure of testator to comprehend size of estate – where video evidence consistent with testator having capacity – where solicitors consider testator had capacity – competing expert evidence – either unresolved dementia or resolved depression with psychotic features – testamentary capacity established SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – The making of a will – knowledge and approval – whether suspicious circumstances – document duly executed by testator with capacity – no suspicious circumstances to displace presumption of knowledge and approval – lack of knowledge and approval not borne out by the facts upon enquiry without aid of presumptions SUCCESSION – EXECUTORS AND ADMINISTRATORS – Charging and commission clauses – where clause read out and explained to testator and acquiesced to as “understandable” – where Administration and Probate Act authorises a “just” commission for executor’s services – where prospects unlikely of court approving a commission or percentage in addition to the usual professional fees – no independent concern regarding lawfulness of charging clause or its effect on the testator’s knowledge and approval of their will
Legislation Cited:	Administration and Probate Act 1929 (ACT), s 70 Guardianship and Management of Property Act 1991 (ACT)
Cases Cited:	Astridge v Pepper [1970] 1 NSWR 542 Bailey v Bailey (1924) 34 CLR 558 Baker v Batt (1838) 2 Moo PC 317; 12 ER 1026 Banks v Goodfellow (1870) LR 5 QB 549 Boreham v Prince Henry Hospital (1955) 29 ALJ 179 Burns v Burns [2016] EWCA Civ 37 Carr v Homersham [2018] NSWCA 65; 97 NSWLR 328 Estate Cockell; Cole v Paisley [2016] NSWSC 349 D’Apice v Gutkovich, Re Estate of Abraham (No 2) [2010] NSWSC 1333 Estate Rofe [2021] NSWSC 257 Greaves v Stolkin [2013] EWHC 1140 (Ch) In the estate of Coonan [2023] ACTSC 320 In the estate of Ruimao Liu deceased [2019] ACTSC 49 In the matter of the estate of Jocelyn Heather Jones (deceased) [2014] ACTSC 200 King v Hudson [2009] NSWSC 1013 Lewis v Lewis [2021] NSWCA 168; 105 NSWLR 487 Mekhail v Hana [2019] NSWCA 197 Nock v Austin (1918) 25 CLR 519 Perpetual Trustee Co Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377 Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 Romascu v Manolache [2011] NSWSC 1362 Timbury v Coffee (1941) 66 CLR 277 Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 757 Tyrrell v Painton [1894] P 151 Vukotic v Vukotic [2013] VSC 718; 12 ASTLR 238 Wintle v Nye [1959] 1 WLR 284 Worth v Clasohm (1952) 86 CLR 439
Texts Cited:	AJ Mitchell, A meta-analysis of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Saeedi v Pastrello

Details

AGLC: Saeedi v Pastrello [2025] ACTSC 26
Case: [2025] ACTSC 26
Decision Date

CaseChat Overview and Summary

The case of Saeedi v Pastrello involved a dispute over the validity of a will executed by Lorenzo Pastrello on 18 December 2020. The plaintiffs, including Lorenzo's grandchildren, sought a grant of probate for the 2020 will, which distributed his estate among his children and grandchildren. The defendants, Lorenzo's children Eddy and Luisa, sought a grant of probate for an earlier 1988 will, which only named the children as beneficiaries. The court had to determine whether Lorenzo had the capacity to make the 2020 will and if he knew and approved its contents.

The court found that Lorenzo had the capacity to make the will. It relied on video recordings of the meeting where instructions for the will were taken, the opinions of expert witnesses, and the testimony of the lawyers present during the execution of the will. The court concluded that Lorenzo understood the nature and significance of making a will, the nature and extent of his assets, and was able to comprehend and weigh the claims of potential beneficiaries. The content of the will was also consistent with Lorenzo's previously expressed intentions.

The court further found that Lorenzo knew and approved the contents of the will. It noted that the will was properly executed and that Lorenzo had been informed of its contents before signing it. The court rejected the defendants' argument that Lorenzo lacked knowledge and approval due to suspicious circumstances, finding that the execution of the will was straightforward and that Lorenzo had understood the implications of the provisions, including the ability of the executors to charge fees.

The court granted probate of the 2020 will and dismissed the counterclaim for probate of the 1988 will. Costs were reserved for further consideration.

Orders