Saeedi v Pastrello
[2025] ACTSC 26
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 the accuracy of the mini-mental state examination in the detection of dementia and mild cognitive impairment” (2009) 43(4) Journal of Psychiatric Research 411 |
Parties: | Kamyar Saeedi (in his capacity as executor of the estate of the late Lorenzo Pastrello) ( First Plaintiff) Carl Lorenzo Pastrello (Second Plaintiff) Christian Ivan Pastrello (Third Plaintiff) Massimo Max Eddy Pastrello (Fourth Plaintiff) Luisa Sonia Pastrello (First Defendant) Eddy Louis Pastrello (Second Defendant) |
Representation: | Counsel Submitting appearance (First Plaintiff) S Chapple SC with D Yazdani ( Second, Third and Fourth Plaintiff) C Birch SC with G Blank ( First and Second Defendant) |
| Solicitors Aulich Civil Law (First Plaintiff) KJB Law ( Second, Third and Fourth Plaintiff) Thomson Geer ( First and Second Defendant) | |
File Number: | SC 286 of 2022 |
MOSSOP J:
Introduction
1․The late Lorenzo Antonio Pastrello died on 4 August 2021. This case involves a contest over the validity of a will that he signed on 18 December 2020. The plaintiffs seek a grant of probate for that will, which divides his estate amongst his children and grandchildren. There is also an earlier will, executed in 1988, which divides his estate amongst his children only. The defendants seek a grant of probate of that will. The net value of Lorenzo’s estate is substantial. The parties agree that the real property components of the estate had a value in 2020 of $43.570 million. Notwithstanding the privileged position of Lorenzo’s children and grandchildren as beneficiaries of his estate, they were unable to reach any compromise as to the distribution of his benevolence among them. As a consequence, it is for the court to rule on the parties’ claims.
2․The balance of these reasons is structured as follows:
(a)The family: [3].
(b)The wills: [9].
(c)Position of the parties: [12].
(d)The test for capacity: [14].
(e)The test for knowledge and approval: [22].
(f)Summary of the estate: [24].
(g)Chronology: [28].
(h)Expert opinions: [142].
(i)Oral evidence: [153].
(j)Conclusion – medical witnesses: [163].
(k)Conclusion – capacity: [168].
(l)Conclusion – knowledge and approval: [191].
(m)Result: [203].
(n)Costs: [205].
(o)Orders: [206].
The family
3․It is useful at this stage to identify Lorenzo’s children and grandchildren. Because most of the persons referred to in these reasons have the surname Pastrello, they will be identified by their first name.
4․Lorenzo died at the age of 86. His wife (Carla Lilliana Borella (“Carla”)) died in May 2011. Lorenzo was survived by his three children and five grandchildren. His children are:
(a)his son, Eddy Pastrello (“Eddy”), who was born in 1965;
(b)his son, Robert Pastrello (“Robert”), who was born in 1967; and
(c)his daughter, Luisa Pastrello (“Luisa”), who was born in 1969.
5․Eddy has two children:
(a)Daniel Pastrello (“Daniel”), who was born in 2004; and
(b)Matteo Pastrello (“Matteo”), who was born in 2007.
6․Robert has three children:
(a)Carl Pastrello (“Carl”), who was born in 2000;
(b)Christian Pastrello (“Christian”), who was born in 2002; and
(c)Massimo Pastrello (“Massimo”), who was born in 2003.
7․Luisa has no children.
8․Eddy and Robert have worked in the family businesses: a pub, a service station, and a caravan park for substantial periods. Luisa has had a career outside of those businesses.
The wills
9․Lorenzo made two wills. The will executed on 29 June 1988 appointed his wife Carla as executrix and gave the whole of his estate to his three children.
10․The will executed on 18 December 2020 appointed Kamy Saeedi (a lawyer) as his executor and divided the whole of his estate into 11 parts. Each of his three children got two parts and each of his five grandchildren got one part.
11․The obvious difference between the wills is that, under the 2020 will, the grandchildren were direct beneficiaries. Compared with the 1988 will, this had the effect of benefitting Robert’s and Eddy’s families over Luisa.
Position of the parties
12․The proceedings were commenced by the executor, Mr Saeedi, against Luisa and Eddy. The executor sought probate of the 2020 will in solemn form. A counter-claim by Luisa and Eddy sought probate of the 1988 will, or alternatively, severance of clauses 2.1-2.3 of the 2020 will. Robert’s three children, Carl, Christian and Massimo, who had an interest in proving the 2020 will, were joined as the third to fifth defendants in the proceedings. By the time of the hearing, the executor had ceased to be an active party. At the commencement of the hearing, Carl, Christian and Massimo were made plaintiffs and the executor was excused from appearing. The end result was:
(a)Three of the grandchildren, Carl, Christian and Massimo, sought to uphold the 2020 will and sought a grant of probate in relation to that will.
(b)Eddy and Luisa opposed a grant of probate of the 2020 will and sought probate of the 1988 will.
13․Eddy and Luisa’s opposition to a grant of probate for the 2020 will was based upon the contention that:
(a)Lorenzo did not have capacity to make the will;
(b)if he did have capacity, then it had not been proved that he knew and approved the contents of the will.
The test for capacity
14․The test for capacity to make a will is that articulated in Banks v Goodfellow (1870) LR 5 QB 549, where Cockburn CJ said (at 565):
It is essential to the exercise of such a [testamentary] power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
15․The case before the court in Banks v Goodfellow was one in which the testator had suffered mental illness. As to that, Cockburn CJ said at 565-566:
If therefore, though mental disease may exist, it presents itself in such a degree and form as not to interfere with the capacity to make a rational disposal of property, why, it may be asked, should it be held to take away the right? It cannot be the object of the legislator to aggravate an affliction in itself so great by the deprivation of a right the value of which is universally felt and acknowledged. If it be conceded, as we think it must be, that the only legitimate or rational ground for denying testamentary capacity to persons of unsound mind is the inability to take into account and give due effect to the considerations which ought to be present to the mind of a testator in making his will, and to influence his decision as to the disposal of his property, it follows that a degree or form of unsoundness which neither disturbs the exercise of the faculties necessary for such an act, nor is capable of influencing the result, ought not to take away the power of making a will, or place a person so circumstanced in a less advantageous position than others with regard to this right.
(See also at 569-570.)
16․In Bailey v Bailey (1924) 34 CLR 558, Isaacs J (with whom the two other members of the majority, Gavan Duffy J and Rich J, agreed) formulated a number of propositions drawn from the case law, including Banks v Goodfellow. These propositions (at 570-572) are, relevantly, as follows:
(1) The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument.
(2) This onus means the burden of establishing the issue. It continues during the whole case and must be determined upon the balance of the whole evidence.
(3) The proponent's duty is, in the first place, discharged by establishing a prima facie case.
(4) A prima facie case is one which, having regard to the circumstances so far established by the proponent's testimony, satisfies the Court judicially that the will propounded is the last will of a free and capable testator.
(5) A man may freely make his testament, how old soever he may be; for it is not the integrity of the body, but of the mind, that is requisite in testaments.
(6) The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the Court varies with the circumstances.
(7) As instances of such material circumstances may be mentioned: (a) the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries; (b) the exclusion of persons naturally having a claim upon the testator; (c) extreme age, sickness, the fact of the drawer of the will or any person having motive and opportunity and exercising undue influence taking a substantial benefit.
(8) Once the proponent establishes a prima facie case of sound mind, memory and understanding with reference to the particular will, for capacity may be either absolute or relative, then the onus probandi lies upon the party impeaching the will to show that it ought not to be admitted to proof.
(9) To displace a prima facie case of capacity and due execution mere proof of serious illness is not sufficient: there must be clear evidence that undue influence was in fact exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property.
(10) The opinion of witnesses as to the testamentary capacity of the alleged testator is usually for various reasons of little weight on the direct issue.
(11) While, for instance, the opinions of the attesting witnesses that the testator was competent are not without some weight, the Court must judge from the facts they state and not from their opinions.
(12) Where instructions for a will are given on a day antecedent to its execution, the former is by long established law the crucial date.
(Citations omitted)
17․In Timbury v Coffee (1941) 66 CLR 277 at 283, Dixon J quoted with approval three passages from reported cases:
“Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realize the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner” (per Hood J., In the Will of Wilson [(1897) 23 V.L.R. 197, at p. 199]). “If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding. But if there are circumstances in evidence which counterbalance that presumption, the decree of the court must be against its validity, unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it” (per Cresswell J., Symes v. Green [(1859) 1 Sw. & Tr. 401, at p. 402 [164 E.R. 785]])—Cf. per Holroyd J., In the Will of Key [(1892) 18 V.L.R. 640]. “In the end the tribunal—the court or jury—must be able, affirmatively, on a review of the whole evidence, to declare itself satisfied of the testator's competence at the time of the execution of the will (Smith v. Tebbitt [(1867) L.R. 1 P. & D. 398, at p. 436]; Sutton v. Sadler [(1857) 3 C.B. (N.S.) 87, at p. 97 [140 E.R. 671, at p. 675]]” (per Rich J., Landers v. Landers [(1914) 19 C.L.R. 222, at pp. 235, 236]).
18․In Worth v Clasohm (1952) 86 CLR 439, the Court (Dixon CJ, Webb and Kitto JJ) made the following statement in relation to the standard of proof at 453:
A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff’s claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution.
19․Finally, in Boreham v Prince Henry Hospital (1955) 29 ALJ 179 the Court (Williams, Fullagar and Kitto JJ) said at 180:
The proper approach of the Court to the question whether a testator has testamentary capacity is clear. Although proof that a will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator’s competency, the Court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it or, if instructions for the will preceded its execution, when the instructions were given.
20․The statement in Banks v Goodfellow is not to be read as if it were a statutory provision: Mekhail v Hana [2019] NSWCA 197 at [164]. The point made in Banks v Goodfellow has been described as requiring that the testator must have the capacity to remember, to reflect, and to reason: King v Hudson [2009] NSWSC 1013 at [51]; Romascu v Manolache [2011] NSWSC 1362 at [197]. That is, to remember the property at the disposal of the testator and those that have a claim upon the testator, to reflect upon the relative weight of those claims, and to reason having regard to the assets available how effect should be given to those claims.
21․Age and illness per se are not sufficient to warrant a conclusion that a testator lacks testamentary capacity: Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 707. The existence of a guardianship or financial management order does not of itself create any presumption of incapacity: Perpetual Trustee Co Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377; Estate Cockell; Cole v Paisley [2016] NSWSC 349 at [46]. Similarly, the fact that a testator has been diagnosed as suffering from some form of dementia does not determine that they lack testamentary capacity: D’Apice v Gutkovich, Re Estate of Abraham (No 2) [2010] NSWSC 1333 at [127]-[128]; Carr v Homersham [2018] NSWCA 65; 97 NSWLR 328 at [15], [121]; Estate Rofe [2021] NSWSC 257 at [551], [557].
The test for knowledge and approval
22․In the event that the court determined that Lorenzo possessed the capacity to make a will, the next issue would be whether or not he knew and approved the contents of his will. This is a discrete issue. It is possible to reach a conclusion that a testator had capacity but did not know of and approve the contents of the will. The requirement for knowledge and approval was described in Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 757 at [46]-[47] as follows:
Upon proof of testamentary capacity and due execution there is also a presumption of knowledge and approval of the contents of the Will at the time of execution. That presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator. In Thompson v Bella-Lewis [1997] 1 Qd R 429 McPherson JA (dissenting in the result) said (at 451) of the circumstances able to raise a suspicion concerning knowledge and approval that, except perhaps where the will is retained by someone who participated in its preparation or execution or who benefits under it, "a circumstance must, to be accounted 'suspicious', be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator's death". … Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved of the contents of the document.
Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be "the most satisfactory evidence" of actual knowledge of the contents of the will… What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example in Wintle v Nye [1959] 1 WLR 284 the relevant circumstances were described (at 291) as being such as to impose "as heavy a burden as can be imagined". Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non‑exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction… That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator…
23․Within the framework described above, a number of points about this issue can be made:
(a)This is “not an arduous requirement” as it requires only that he “actually know the substantive content of [the will] … and approve of that content”: Vukotic v Vukotic [2013] VSC 718; 12 ASTLR 238 at [132].
(b)It is not necessary to prove understanding of the legal terminology employed: Greaves v Stolkin [2013] EWHC 1140 (Ch) at [73].
(c)It is not essential that the testator read the actual document or be told precisely what was in it if he or she had given instructions for a will to be prepared in those terms: Astridge v Pepper [1970] 1 NSWR 542 at 548.
(d)The law has traditionally adopted a presumption of knowledge and approval arising, in the absence of suspicious circumstances, upon proof that a testator with testamentary capacity duly executed the will: Nock v Austin (1918) 25 CLR 519 at 528. There was then an evidentiary burden upon those impeaching the will to adduce evidence to displace the presumption. If such evidence was adduced, then the burden would shift to those propounding the will to establish knowledge and approval: Baker v Batt (1838) 2 Moo PC 317 at 321; 12 ER 1026 at 1027; Tyrrell v Painton [1894] P 151 at 157.
(e)However, the approach based upon shifting presumptions has been criticised on the basis that the issue is a purely factual one and will depend upon the nature of the particular matters raised that might suggest that a properly executed will has not in fact been made with knowledge and approval of its terms: Carr v Homersham at [46]; Mekhail v Hana at [167]-[168].
(f)What is required to dispel suspicious circumstances will vary depending upon the gravity of those circumstances. The degree of suspicion may be slight and so easily dispelled. On the other hand, it may be so grave that it can hardly be removed: Wintle v Nye [1959] 1 WLR 284 at 291. See also Mekhail v Hana [2019] NSWCA 197 at [139].
(g)Suspicious circumstances that might call into question whether or not a will was executed with knowledge and approval of its terms do not necessarily have to arise from any wrongdoing. Rather, they are circumstances that give rise to a suspicion that the testator may not have known and approved the contents: Burns v Burns [2016] EWCA Civ 37 at [52].
Summary of the estate
24․As at the date of the deceased’s death, the deceased’s estate in the Australian Capital Territory consisted largely of:
(a)a property located at Duyfken Place, Red Hill ACT (“Red Hill Property” or “Carla Apartments”);
(b)a property located at Garema Place, City ACT, also known as Bible House;
(c)a property located at State Circle, Deakin ACT (“Deakin Residence”);
(d)cash held in accounts with St George Bank and ANZ of $61,864.75; and
(e)310,000 shares in Gratory Pty Ltd ACN 066 004 180 (“Gratory”).
25․As at the date of the deceased’s death, the deceased’s estate in New South Wales consisted largely of:
(a)a property located at Eagle Creek Road, Werombi NSW (“Werombi Property”), used by the deceased and his family as a holiday home;
(b)a property located at Tallagandra Lane, Gundaroo NSW (“Prosper Stud”), a farm with approximately 50 cattle, several horses and small livestock including chickens;
(c)a property located at Monaro Street, Queanbeyan NSW (“Queanbeyan Property”); and
(d)a property located at Bidges Road, Sutton NSW, being more than 700 acres comprised of multiple titles, and including Lot 15 in DP246157 (known as Eaglehawk Hill)
26․The Eaglehawk Hill property was by far the most valuable component of the estate.
27․As at the date of his death, the deceased also owned shares in Gratory (Water Services) Pty Ltd and Eaglehawk Park ACT Pty Ltd, some gaming machine entitlements, an unregistered motor vehicle (a Rolls Royce), and cash in an Italian bank account valued at approximately $40,000.
Chronology
Why is this chronology significant?
28․The chronology that follows is significant in two respects. First, it describes the circumstances in which the 2020 will came to be made and its making. Second, the broader chronology is significant insofar as it indicates Lorenzo’s state of mental function at various times. That is significant because of the dispute between expert medical witnesses called by the parties as to whether or not Lorenzo was suffering from dementia at the time that he executed the 2020 will. A downward trajectory in mental function is more likely to support the opinion of the expert, Dr Ryan, called by the defendants, that Lorenzo was suffering from dementia. An improvement in mental functioning is more likely to support the opinions of Dr Chow and Prof Brew, called by the plaintiffs, that Lorenzo was not suffering from dementia at the time that he executed the 2020 will.
Life up to Carla’s death
29․Lorenzo was born in Italy in 1935. In around 1960, Lorenzo migrated to Australia at 25 years of age. In January 1965, Lorenzo married Carla.
30․Over a number of years, Lorenzo established many family businesses. Those family businesses included the following:
(a)an amusement machine business known as Golden Coin Amusements, which Lorenzo established in around 1976, that continued trading until about 1994.
(b)a pub known as Eaglehawk Hotel (“Pub”), which Lorenzo established in or around 1987 and which continues trading today. The Pub has been operated by Gratory since at least 2019.
(c)a holiday park located at Eaglehawk Hill (“Caravan Park”), which Lorenzo established in or around 1987 and which continues trading today. The Caravan Park has been operated by Gratory since around 2013.
(d)a service station and takeaway shop located on Eaglehawk Hill which Lorenzo established around six months after the Pub and Caravan Park had been opened, the premises of which are leased to a third party.
(e)the purchase, development and management of investment properties in the ACT and NSW, including Bible House, the Red Hill Property, the Queanbeyan Property, and Eaglehawk Hill;
(f)the farm known as Prosper Stud, located at Tallagandra Lane, Gundaroo NSW, which has approximately fifty cattle, several horses, and a number of other small livestock including chickens.
31․The takeaway shop and the service station, Bible House, the Red Hill Property and the Queanbeyan Property are all subject to residential or commercial lease agreements and are managed by an agent.
32․At the time of his death in 2021, the deceased was the sole shareholder in Gratory, the entity which owned and operated the Pub and the Caravan Park. The directors of Gratory at the time of the deceased’s death were Eddy, Luisa and Robert.
33․Both Robert and Eddy had built homes on part of the land at Eaglehawk Hill, at least in part from their own resources. Although the deceased had indicated an intention to subdivide the land and transfer to them blocks of 20 acres each, by the time of Lorenzo’s death, that had not occurred. There was some evidence from Luisa that this may have been intentional, but it is not necessary to determine whether this was the case. In February 2018, Robert and Eddy lodged caveats to protect their interests in the land upon which they had built their respective family homes. There is no evidence that the lodgement of the caveats was a source of tension between Lorenzo and his sons.
Carla’s death and Lorenzo’s decline
34․Lorenzo’s wife, Carla, died on 11 May 2011.
35․Robert observed that after this, his father’s health declined. In the months following her death, he observed that Lorenzo rarely got out of bed or showered. He believed his father was depressed. He observed him drink to excess. Lorenzo would sit for hours in the pub. Robert thought that Lorenzo was becoming increasingly paranoid.
36․Luisa’s evidence was that between Carla’s death and June 2014, she had observed that Lorenzo had no motivation, was sad, unhappy, and did not want to do anything. He said to her that “I just want to die”. He gave up his previous social life.
37․Eddy observed that he was suffering from “intense grief”, looked lost, had trouble sleeping, smelt of alcohol and was argumentative and combative.
38․Given the consistency of the evidence, the evidence of each of the children on this subject can be accepted.
39․In September 2014, Lorenzo travelled with Luisa to Italy for four weeks and stayed with one of his sisters near Venice. The trip was not a success. Luisa recalled that he would refuse to get out of bed for days, although with some medical treatment his condition improved. Luisa believed that he was still suffering from grief at the loss of his wife.
40․By 2015, Lorenzo was complaining about pain in his back and shoulder and that he thought he was going to have a heart attack. He started displaying memory loss. He was drinking heavily and would stay in a cabin at the Caravan Park. His behaviour also caused friction with staff.
41․In 2016, Robert observed his father becoming increasingly paranoid, asserting that people were stealing from him. Subsequent investigations indicated that his concerns that he was being stolen from were legitimate ones (see [61] below). However, at the time it was interpreted in the context of his other conduct as an indication of his declining mental health. He would carry large quantities of cash in public and behave oddly. In June 2017, he was caught drink driving and detained by police. This led to him seeing the geriatrician, Dr‑Mary Ann Kulh.
42․On 14 July 2017, Dr Kulh reported to Lorenzo’s GP. She recorded that there had been some deterioration in his cognitive function, that he appeared “unkempt and dishevelled”, that his recall of his medical history was sketchy, and that he was not trusting his family. He scored 27/30 in the Rowland Universal Dementia Assessment Scale (RUDAS). Her summary of the position was:
In summary, Lorenzo has evidence of cognitive impairment and frontal lobe features including self-neglect, lack of judgement and insight. This is most in keeping with a frontal lobe vascular dementia. He has also some paranoid delusions particularly surrounding his two sons which is making it difficult to proceed with arranging care for him which is desperately needed. He also has signs of severe aortic stenosis in the setting of chronic heart failure.
43․In August 2017, Lorenzo moved into a cabin at the Caravan Park. This followed the loss of his licence as a result of drink driving. Eddy observed empty bottles, food and clothes scattered around the cabin. Similarly, Luisa inspected the Deakin Residence and found it to be “a mess and … uninhabitable”.
44․In February 2018, there were difficulties with the ING Bank because Lorenzo was failing to pay instalments that were due to the bank. He also had a history of not paying staff, which was a source of problems in the business.
45․He was reviewed by Dr Kulh on 3 August 2018 and scored 22/30 on the RUDAS assessment. He scored 2/4 in judgement and 2/8 in memory recall. A brain MRI was booked.
46․Following the MRI, he was reviewed by Dr Kulh on 31 August 2018. The MRI showed “global cerebral atrophy with particular atrophy in the mesial temporal lobes”. That was said by Dr Kulh to be consistent with Alzheimer’s disease. There was also “extensive chronic small vessel disease indicative of underlying vascular dementia”.
47․During 2018, Robert observed Lorenzo, on a number of occasions, making allegations that his money was being stolen. Luisa noticed such allegations in 2017, and said these occurred “more frequently” as of early 2019. Luisa and Eddy noted that he drank more, appeared to be in pain from his knees and from his shoulder. His cabin was a mess, with obvious signs that he had been drinking too much. His personal care deteriorated. After Christmas 2018, he rarely left the cabin. He was resistant to medical treatment.
48․In January 2019, Lorenzo’s accountant Frank Gelonesi and his wife visited Lorenzo at the Caravan Park. (Mr Gelonesi’s affidavit says that this was in February, but the balance of the chronology in the affidavit and the fact that, in February, Lorenzo was in hospital indicate that it must have been in January 2019.) Mr Gelonesi found the cabin in a squalid and unhygienic state and Lorenzo dressed poorly and looking undignified. Lorenzo was not focussed on the accounting issues that Mr Gelonesi had hoped to deal with and brushed off his attempts to obtain relevant financial documents. Mr Gelonesi subsequently wrote to Robert, Eddy and Luisa describing Lorenzo’s state of paranoia, disorganisation in his business affairs and lack of insight into his condition.
49․On 7 February 2019, Dr Di Dio, a general practitioner, told Robert of concerns about metastasised prostate cancer and Lorenzo’s resistance to further medical investigation. On 8 February, Dr Kulh contacted New South Wales Health’s Southern Mental Health Services, referring Lorenzo for follow up by that service. New South Wales aged care workers visited Lorenzo in his cabin on 11 February 2019 and arranged for him to be transferred to Goulburn.
Hospitalisation February to May 2019
50․On 12 February 2019, Lorenzo was admitted to the Kenmore Psychogeriatric Unit at Goulburn Base Hospital (“Kenmore”) following an assessment by a nurse from Aged Care Services Goulburn. The initial assessment by Dr Annette Chen, a psychiatry registrar, was:
vascular dementia with behavioural disturbance – possible worsening of dementia (however there is probably more complicated family dynamic issues including vast financial issue).
51․While he was in hospital, Lorenzo was the subject of a variety of assessments and investigations. Pain in his shoulder led to imaging which showed a lesion consistent with metastatic prostate cancer. He also had pain in his right knee, sometimes walking with crutches and sometimes asking for a wheelchair. As at 26 February 2019, the diagnosis of his mental condition by Dr Chen, speaking for “the team” at Kenmore, was a “mixed type of dementia (Alzheimers and vascular) with deficiencies in his judgement and memory recall”. It was expected that the “dementia will likely progress with marked deterioration and further difficult behaviour”. When explaining the condition to Lorenzo’s children on 19 February 2019, she had referred to the “progressive [deterioration] in score of cognitive testing from 2017 to 2018”, which appears to be a reference to the testing undertaken by Dr Kulh.
52․From 26 February 2019, Luisa was making arrangements to have Lorenzo transferred back to the ACT. Upon review on 28 February 2019, the formulation of the psychiatrist at Kenmore, Dr Judith Raymond was:
Mixed Vascular/Alzheimerss [sic] dementia and associated issues, unable to manage his complex affairs and his self care including keeping appointments with his doctors despite serious health concerns.
ACAT proceedings
53․Following Lorenzo’s admission to Kenmore, an application was made by his case manager to the New South Wales Civil and Administrative Tribunal for orders appointing his children as guardians and financial managers.
54․Frank Gelonesi had stressed to the children that, based on his own experience, it was important that the three children take a united approach to the application. They did so and the application was dismissed on 12 March 2019 when Luisa submitted that Lorenzo was a resident of the ACT and proceedings would be brought in the ACT Civil and Administrative Tribunal (“ACAT”) instead.
55․Luisa had filed Eddy’s application to ACAT on 8 March 2019. The application sought that Eddy and Luisa be appointed jointly as Lorenzo’s financial manager and guardian. Robert filed an application seeking that he also be appointed financial manager and guardian on 15 March 2019. At the hearing on 29 March, all three children supported their joint appointment as guardians and financial managers. The ACAT made orders appointing Eddy, Luisa and Robert as Lorenzo’s guardians and financial managers. The ACAT orders were subsequently varied on 9 July 2019 so that, as Lorenzo’s financial managers, Eddy, Luisa and Robert could deal with lease agreements for Lorenzo’s investment properties without needing to obtain the prior endorsement of the Public Trustee and Guardian.
Transfer to Calvary
56․On 1 March 2019, Lorenzo was discharged from Kenmore and was admitted to Calvary Public Hospital. On 5 March, he was discharged from Calvary Public Hospital and admitted to Calvary Private Hospital, where he was a patient from 5 March 2019 to 7 May 2019. Dr Sivakumaran, a geriatrician, recorded that Lorenzo was suffering from mixed vascular Alzheimers Dementia. However, on 7 March 2019, Dr Sivakumaran reported to the psychologist at Kenmore that “so far, it appeared Lorenzo had mental capacity” and he “asked why Lorenzo had been scheduled, as he was currently not seeing anything of concern”. On 20 March 2019, he recorded a diagnosis of “mixed vascular Alzheimer type of dementia”, although this diagnosis appears to have involved the adoption of Dr Kulh’s earlier diagnosis. He expressed the opinion that Lorenzo did not have capacity to make informed decisions about his health and financial matters.
57․Luisa visited him often during this period, spending long periods with him and bringing him fresh food or clothes.
58․During his stay at Calvary Private Hospital, Dr Sivakumaran diagnosed him as suffering from conditions which included mixed vascular Alzheimer’s dementia with behavioural issues as well as depression. He prescribed two drugs which had not been given earlier, namely escitalopram (an anti‑depressant), and olanzapine (an anti-psychotic).
Return to Deakin
59․On 7 May 2019, Lorenzo was discharged from Calvary Private Hospital and returned to live in the Deakin Residence. Luisa stayed with him until the end of May, when she left to take up a job in Sydney. Full time carers were engaged to look after Lorenzo. He was in a wheelchair at that time and some modifications needed to be done to the house to make it suitable for him. He needed help with going to the toilet, preparing meals, showering, getting out of bed, getting changed, shaving and taking medications. Dr Sivakumaran reduced the level of olanzapine that Lorenzo was prescribed. By July 2019, Dr Sivakumaran was contemplating further reduction or elimination of the use of olanzapine “as he is now not exhibiting any behavioural issues”. He remained on anti-depressant medication.
60․Luisa came down from Sydney and stayed with him on weekends. She made the arrangements in relation to his carers. He saw a new general practitioner and his medication was adjusted. His health improved substantially. He was sleeping better, and was calmer, less agitated, more engaging and more optimistic. He was getting better treatment for his pain issues. Eddy said that he appeared to be in better health. Luisa described him as “starting to return to his normal self”. His sense of humour returned. He was grateful to be alive. His alcohol intake reduced substantially. He would have his carers drive to the Pub most days for lunch. He would speak to Robert and the employees about the business. However, he continued to have shoulder pain and pain in his knee.
61․In July and August 2019, Robert had begun investigating payments made by cheque from the trading account for the Caravan Park. He and Eddy took steps to obtain copies of the cheques drawn on the account from St George Bank. These cheques were drawn in favour of a long-term business associate of Lorenzo, who had assisted him and kept him company in the years since Carla’s death. The investigation by Robert and Eddy and, from February 2020, by Australian Federal Police, led to the business associate being charged with defrauding Lorenzo and Gratory of $4.1 million. The fact that there was substance to Lorenzo’s earlier concerns about people stealing from him cast a different light on his earlier behaviour which had, at the time, been seen by others as evidence of paranoia. After Lorenzo became aware of what Robert and Eddy had discovered, he ceased accusing people of stealing his money and regularly asked for updates on the case brought against the business associate.
62․In October 2019, he saw Dr Sivakumaran, who considered that he had improved in general health and was looking forward to upcoming knee surgery in Sydney.
63․On 19 December 2019, Lorenzo was admitted to the Prince of Wales Private Hospital in Sydney and underwent knee replacement surgery. A Mini-Mental State Examination (MMSE) conducted on 20 December 2019 gave a score of 20/30. He was then admitted to Eastern Suburbs Private Hospital from 27 December 2019 to 6 March 2020. There, a cognitive assessment (which appears to have been performed by a Dr Fulop) indicated a RUDAS score of 29/30. He was discharged from hospital on 6 March 2020 and returned to Canberra. In March 2020, in light of the potential for increased restrictions as a result of the COVID-19 pandemic, Luisa moved in with Lorenzo at the Deakin Residence. At around the time of the knee surgery, he had the idea of travelling to Italy again in May 2020, but this had to be postponed due to the COVID-19 pandemic.
Further ACAT proceedings
64․On 3 April 2020, Robert filed an application with ACAT seeking to vary the ACAT orders to remove Luisa from her appointment as one of Lorenzo’s financial managers. This arose because Robert alleged that Luisa had failed to allow refinancing of loans which were in default, failed to provide a letter of support for a development application to allow work to be undertaken at the Pub, and anticipated she would fail to respond to requests relating to a development at Yarralumla in which both Robert and Lorenzo had an interest. Lorenzo communicated that he wished to be involved in the ACAT process. At this time, Luisa recorded that “his improvement is significant”.
65․On 30 April 2020, a general practitioner, Dr Ratnasingham, referred Lorenzo to Dr Frank Chow, a consultant psychiatrist and psychogeriatrician, for his opinion and advice. On 11 May 2020, Lorenzo saw Dr Chow. Dr Chow’s report will be discussed later in these reasons.
66․On 14 May, Luisa reported to Mr Mascitti (a solicitor employed by Mr Saeedi’s law firm) the outcome of the consultation with Dr Chow. She said: “Apart from grammar it’s clear that Dad has no material issue with his cognition. He did really well on the day – for an early start, drive to [Sydney] and sit through a cognitive assessment – all for an 84-year-old, after a very challenging year”.
67․The submissions made by Luisa’s solicitor to the ACAT dated 21 May 2020 provided:
37. Our client believes that Lorenzo is capable of making and communicating decisions concerning his personal, financial and property affairs. Lorenzo has expressed to our client strong views about the future direction of his business ventures, and a desire to maintain involvement.
…
75. Our client considers that it is possible that by hearing from Lorenzo and reviewing current medical evidence, the Tribunal may very well determine that the Orders are no longer required, or that they can be altered to give Lorenzo more autonomy. Our client anticipates that Lorenzo’s solicitor may make submissions along these lines and our client is supportive of outcomes to that effect.
68․The primary position adopted in those submissions was that: “The Order should be revoked on the basis that Lorenzo can make decisions for himself with the support of family and professional advisers”.
69․On 5 June 2020, Luisa signed a statement for the purposes of the ACAT proceedings which included the following:
During this time [since 4 April 2020], I had the opportunity to observe my father every day and see the progress he has made since the surgery. Also, I could see that he is able to make decisions in relation to his care and financial matters.
70․On 5 June 2020, Lorenzo engaged the plaintiff’s law firm and Mr Mascitti to file an application with ACAT seeking to: (a) revoke appointment of Eddy, Luisa and Robert as guardians and financial managers; and (b) appoint Frank Lo Pilato, an insolvency practitioner, as Lorenzo’s financial manager. The proposed revocation of the guardianship order was put on the basis that “Mr Lorenzo Pastrello has capacity to make decisions in relation to his own health and wellbeing”. The application was supported by the report of Dr Chow of 11 May 2020.
71․These applications were ultimately resolved by consent on 30 June 2020, with Eddy, Luisa and Robert consenting to the orders that Mr Lo Pilato be appointed as Lorenzo’s financial manager, but that Eddy, Luisa and Robert would remain as his guardians. This arrangement remained in force until Lorenzo’s death.
Assessment by Dr Chow
72․On 11 May 2020, Lorenzo was assessed by Dr Frank Chow, a psychiatrist. Dr Chow undertook a psychiatric assessment of cognition and capacity. That included administering Addenbrooke’s Cognitive Examination – Revised (ACE-R), a test from which a Mini-Mental State Examination (MMSE) score can be derived. He scored 88/100 on the Addenbrooke’s test and 27/30 on the MMSE. Both of these scores were above the cutoff for dementia. Dr Chow reported that:
From today[’s] assessment, it is my opinion that he has gained improvement with his psychiatric condition and therefore his cognition has improved significantly.
From a capacity assessment point of view, he is able to understand the purpose of the assessment, guardianship, accommodation, care and financial arrangements. He is able to communicate his decision makings [sic] clearly. The decision is consistent [sic] and there is no other undue influence and his medical health appears stable.
I therefore consider he has now regained his cognitive capacity to make decision[s] for his lifestyle, accommodation, care and financial arrangements.
73․Dr Chow saw Lorenzo again on 8 July 2020. He assessed him again (and performed further cognitive testing). His MMSE score was 27/30. Dr Chow observed:
He remains well psychiatrically in this follow up assessment. With his improved psychiatric state, his cognition remains intact. There is no evidence of significant cognitive impairment on both assessments.
From a capacity assessment point of view, he is able to understand the purpose of the assessment, guardianship, accommodation, care and financial arrangements. He is able to retain and weigh up the pros and cons of the information given. He can communicate his decision makings clearly.
74․He also said that he agreed with Dr Fulop’s results of the RUDAS on 6 March 2020 of 29/30 (see [63] above). He said that Lorenzo did not have impaired decision-making ability as that term is defined in the Guardianship and Management of Property Act 1991 (ACT). When asked to comment on Dr Kulh’s report of 14 July 2017, he said:
It is important to note, delirium, depression and dementia are often presenting the same way to clinician. The underlying pathology is often revealed and confirmed only after treatment is given over a period of time.
Mr Pastrello has clearly improved now in term[s] of his mental state and cognition. He is no longer depressed and there is no psychotic symptom. There is no current evidence of self-neglect and he now has good insight and judgement.
These are all totally different compared to when he was assessed by Doctor Kulh on 14 July 2017.
75․He expressed the opinion that Lorenzo had suffered from a depressive illness with psychotic features and not a frontal lobe vascular dementia and that his psychiatric condition was now in remission.
Lay observations of Lorenzo’s improvement
76․Robert’s observations from his interactions with Lorenzo were that, following his discharge from hospital in March 2020, his health and behaviours had improved significantly:
(a)Lorenzo was no longer drinking heavily;
(b)his paranoia did not impact upon his social interactions as it had previously; and
(c)he would attend the Pub most days and would discuss the business and cashflow of the Pub with Robert and other employees of Gratory.
77․At the time of the ACAT application in June and July 2020, Robert observed that:
(a)Lorenzo was not drinking excessively and not drink driving;
(b)he was not acting aggressively or displaying signs of paranoia or confusion;
(c)his mobility was more limited than previously, although he would direct his carers to take him to visit the family businesses or attend medical appointments;
(d)he regularly spent time with Robert’s sons, who would visit him after school;
(e)he regularly discussed with Robert the Pub and its renovations, Prosper Stud, how Robert’s children were going, and the progress of the case against the fraudulent business associate.
78․Carl said that he was happier, more alert, and only drinking a limited amount of alcohol. Carl would play checkers with him and the games were competitive.
79․Luisa’s observations of Lorenzo were summarised in her statement made for the ACAT proceedings (see [67] above). In oral evidence, she said he could make decisions about what he wanted to do each day. In terms of financial decisions, he was able to convey to her that he wished to sell his share of the Yarralumla property, he was well aware of his property holdings, and he understood the business conducted for the Eaglehawk property and the role that Gratory played in the business.
Back to hospital in August 2020
80․In August 2020, Lorenzo began to complain increasingly of a sore back. That pain led him to be taken to Canberra Hospital on 27 August 2020.
81․Luisa described Lorenzo as being groggy due to medication and becoming disengaged from his businesses while at Canberra Hospital.
82․In order to improve Lorenzo’s prospects of rehabilitation, Luisa arranged to have him admitted to Eastern Suburbs Hospital. At that stage, “[t]he plan is for 2/3 weeks to get him stronger and then bring him back home again with the same goodwin support he had and with more rehab support at home”. The reference to “goodwin” was a reference to an aged care service provider. He was driven by Eddy to Eastern Suburbs Hospital on 13 November 2020. He was then transferred to Prince of Wales Hospital on 28 November 2020. He underwent surgery on 2 and 8 December 2020. The surgery on 2 December was to insert a stent and a pacemaker. The surgery on 8 December was on his spine.
83․In the first few weeks after being transferred to Sydney, Luisa visited him daily, often both morning and night. She reported on issues and progress to her brothers by text message. Luisa’s evidence emphasised that Robert had less contact with Lorenzo during this period than she or Eddy. Her evidence was that Lorenzo’s use of Italian increased in this period.
84․Eddy’s evidence of his observations of Lorenzo when in hospital during this period was directed towards describing a reduction in his memory and his interest in the business or the particular value of business assets. However, he remained aware of the operation of his businesses at Eaglehawk, the involvement of Gratory, Prosper Stud and Bible House.
85․Carl visited him in hospital on 12 December 2020. They talked for about an hour, generally about the business and what Mr Lo Pilato was doing in relation to the business. Carl observed him to be rational, asking and answering questions in a normal manner. He did not observe Lorenzo to be exhausted or sleepy by the end of the visit.
Previously expressed testamentary intentions
86․There was a variety of evidence as to Lorenzo’s previously expressed testamentary intentions.
87․Eddy said that when discussing what became the Carla Apartments in Red Hill, Lorenzo said to him “I am going to name the building after Carla and leave it to the boys. Robert, you and Luisa can have the rest.” He said this to him a number of times while the building was being constructed and then with less frequency subsequently.
88․Eddy also said that after Lorenzo got out of hospital in May 2019, the latter said to him, “I leave everything to you, Robert and Luisa except for the Red Hill Property. I give that to the grandkids.”
89․Robert’s evidence was that for as long as he could remember, his father had often said that “I am going to leave everything to my grandchildren” or “it’s all for my grandchildren”. He would regularly refer to his businesses as “the empire” and the “family business” being “for the boys”.
90․Robert agreed with Eddy that Lorenzo had said “this is for the boys” in relation to the Carla Apartments on multiple occasions during his life. Robert also said that he made similar statements in relation to all of his businesses and properties throughout his life.
91․On 13 December 2020, a few days prior to the execution of the 2020 will, Robert visited Lorenzo in hospital. His evidence was that he was told by Lorenzo of his plans to make a new will. During that discussion, Lorenzo said “Don’t worry, I will look after the boys”.
92․Carl, who was referred to by Lorenzo as “The Boss”, said that his grandfather would talk about the properties that he owned and say, “I have left you an empire”.
93․Massimo gave evidence that Lorenzo said many times that “It is all for you boys” and “You are Pastrello”. He described being able to have conversations with Lorenzo when he went back into hospital in late 2019 and that he was “still his old self”, able to tell jokes and talk to those visiting him.
94․Mr Saeedi said that, when speaking about significant assets such as Eaglehawk Hill, Lorenzo would say words to the effect of “this is not for sale, it is for my grandchildren”.
95․Luisa’s evidence was that her mother had used the expression “a third, a third, a third” when discussing her and her husband’s estate. In the six months after Carla died, Luisa said that in a discussion with his friends about wills Lorenzo had referred to “a third, a third, a third”. She described Lorenzo having referred to the Carla Apartments as being for his grandchildren and doing so 10 or 15 times per year.
96․She said that, on 17 December 2020, she had a conversation with Lorenzo about the will in which he asked what he should do. Luisa said that she said, “a third, a third, a third”, to which Lorenzo responded that she should get more, and that she then said a third each would make it easy for everybody.
97․Mariella Hamilton, who was a law clerk with a firm of solicitors that acted for Lorenzo over many years, said that on at least three occasions between 2010 and May 2016, he said to her, “I will leave Red Hill shops to my grandchildren in equal shares and the rest to my children.”
98․The evidence of Filomena Capezio, a long‑time friend of Carla’s, was to similar effect. She said that Lorenzo frequently told her that the Red Hill Property was for the grandchildren and the rest was in three equal parts between the three children.
99․So far as the reliability of the evidence of Robert, Luisa and Eddy as to statements made by Lorenzo are concerned, I treat that evidence with caution because of their interests in the proceedings, and the potential for their evidence of informal statements by Lorenzo which were not contemporaneously documented to be crafted to advance those interests. More generally, the significance or otherwise of informal statements of intention by Lorenzo is addressed below at [182].
Preparation and execution of the 2020 will
100․During 2019 and 2020, Lorenzo expressed to Mr Saeedi a desire to execute a new will. Mr Mascitti was also present during a number of conversations in which Lorenzo expressed that wish.
101․In June 2020, the possibility of Lorenzo making a will was raised in a meeting between Robert, Luisa, Eddy, and Mr Lo Pilato and his staff.
102․In about mid-August 2020, Mr Mascitti received a telephone call from Mr Lo Pilato in which Mr Lo Pilato said that Lorenzo “expressed a desire to make a will on a number of occasions”.
103․Mr Mascitti discussed that call with Mr Saeedi, who suggested that Mr Mascitti “get in touch with Meyer Vandenberg. They have a good wills and estates team.” Mr Mascitti emailed Archie Tsiromokos, a partner at MV Law (a firm formerly known as Meyer Vandenberg) on 31 August 2020.
104․On 7 September 2020, Mr Mascitti spoke with Tanya Herbertson, a partner in the firm MV Law, in which Mr Mascitti indicated that one of his firm’s long-term clients, Lorenzo, was interested in making a will. He described some of the background, including his view of Lorenzo’s mental state, his impression of Lorenzo’s likely testamentary intentions, and the size of the estate. Mr Mascitti told her that Lorenzo was in hospital due to shoulder cancer and that Lorenzo may require someone to visit him in hospital to take instructions in order to prepare a will. Ms Herbertson confirmed that she was happy to do a hospital visit if needed and said that it might be a “stop-gap” will to be put in place fairly urgently “just in case”. She awaited someone from Mr Mascitti’s office to make the arrangements for the visit.
105․At a meeting with Robert, Luisa and Eddy on 1 December 2020, Mr Lo Pilato was informed that Lorenzo had a very old will.
106․Mr Saeedi’s evidence was that he was contacted in November 2020 by Luisa in relation to Lorenzo drafting a new will and that he told Mr Mascitti to contact Ms Herbertson on 11 December 2020. Having regard to the evidence of Mr Mascitti and Ms Herbertson, this was not the contact which initiated the arrangements for the preparation of the new will.
107․For reasons which are not clear, it was only in December 2020 that an appointment to take instructions was arranged. As a result of communications on 11 and 14 December, arrangements were made for Ms Herbertson to travel to Sydney to take instructions from Lorenzo.
108․Shortly before travelling to Sydney to meet with Lorenzo, Ms Herbertson received a letter from a solicitor acting for Robert disclosing aspects of his medical history. The letter referred to Dr Kulh’s opinion indicating underlying vascular dementia on the one hand and Dr Chow’s opinion and the opinion expressed by Dr Fulop in a letter dated 11 May 2020 on the other. The thrust of the letter was to indicate Robert’s concern that Dr Chow and Dr Fulop may have misdiagnosed Lorenzo’s condition because of the absence of a further MRI scan.
109․On 17 December, Luisa had a conversation with Lorenzo about the appointment, scheduled for the next day, for the taking of instructions for the making of a will. During that conversation, Luisa urged her father to divide his estate “a third, a third, a third”. Although Luisa’s affidavit purported to set out a series of exchanges between her and her father about the will, I do not consider that a recollection of that level of detail of the conversation is, in the absence of any contemporaneous record, likely to be reliable. However, her recollection that, in response to a question from Lorenzo, she had urged him to make a will that divided his estate equally amongst his three children was not challenged and I accept that this key aspect of the interaction occurred.
110․On 18 December, Ms Herbertson travelled to Sydney with Mr Mascitti to meet with Lorenzo at the Prince of Wales Hospital. Ms Herbertson did not know about the 1988 will. She considered that what she was doing was preparing a “stopgap will”. Mr Mascitti provided some background information to Ms Herbertson, including expressing the opinion that he was completely satisfied that Lorenzo had decision-making capacity. Ms Herbertson told Mr Mascitti that if she was not satisfied that Lorenzo could provide proper instructions or that he appeared not to meet the Banks v Goodfellow test, then she would not be able to prepare a will at the appointment. They arrived at the hospital at around 11:00am. COVID-19 restrictions were in place requiring the lawyers to undergo temperature testing. It had originally been intended that Lorenzo’s appointed financial manager Mr Lo Pilato attend the meeting. However, he was unable to. Mr Saeedi was going to attend but became unable to attend when another client was arrested.
111․Upon their arrival, Ms Herbertson observed that Lorenzo was seated on a chair and dressed in a hospital gown, and his feet were bare, resting on a pillow. Mr Mascitti greeted Lorenzo. It appeared to Ms Herbertson that Lorenzo knew Mr Mascitti well. They spoke with each other in English and Italian in the first few minutes. After that, the meeting was conducted in English.
112․Lorenzo asked whether his daughter should be there. Ms Herbertson said that it was better if other family members were not present so that he could make his own decisions about what went into his will. Mr Mascitti offered to call her. Mr Mascitti rang her and passed Lorenzo the phone. The content of this phone call is described below (see [118]). Following the call, Lorenzo told Ms Herbertson that he wanted to make a will today to get things sorted and in place.
113․Ms Herbertson asked Lorenzo if he would allow her to record their conversation taking instructions to make his will, and Lorenzo consented. Ms Herbertson then used her mobile phone to record a video of their conversation. The video recording is 32:05 minutes in duration. The video was put into evidence. An agreed transcript of what was said on the video was also available. Early on in the video, in response to a call from Mr Mascitti, Mr Saeedi made a FaceTime call on Mr Mascitti’s computer and spoke to Lorenzo. He explained why he was unable to attend and chatted with Lorenzo in a manner designed to ensure that he was comfortable with what was going on.
114․The basic structure of the taking of instructions was as follows:
(a)Ms Herbertson commenced by getting Lorenzo’s name, address and date of birth, and then asked about his wife, children and grandchildren.
(b)She then turned to getting some information about his assets and liabilities and went through the different properties that he owned.
(c)She then asked about the companies that he was involved with.
(d)She asked questions about the appointment of Frank Lo Pilato as his financial manager.
(e)After about six minutes in the recording, Mr Saeedi made the FaceTime call to Lorenzo. Mr Saeedi explained why he was unable to attend, referring to a client that had been arrested. Mr Saeedi indicated that Lorenzo is doing a will now, but if he wanted anything changed, that could be done anytime he wanted. There was some discussion of members of Mr Saeedi’s family, as well as reference to Donald Trump and Benjamin Netanyahu.
(f)After the FaceTime conversation ended, Lorenzo made an enquiry of Mr Mascitti about who the arrested client was.
(g)Ms Herbertson then asked about banking arrangements, superannuation and life insurance. She referred to some of the real estate still being held jointly with his deceased wife.
(h)She then asked what he wanted his will to say. He indicated that he wished to leave it to all of his family. She made an enquiry as to who he included in his family. He described the three children and five grandchildren.
(i)There was then a discussion of whether to make it equal between the eight people or make some special gifts to particular people. Lorenzo contemplated making it equal with the possibility of changing it at a later date “when we get together”.
(j)There was then some discussion of the grandchildren and their ages.
(k)Ms Herbertson indicated that if they made it equal then his daughter would receive the same as everyone else. Lorenzo then asked Mr Mascitti what he thought about giving the three adults an amount and giving the grandchildren half of what they got. There was some discussion that makes clear that is what he intended, which included:
Tanya: Um, so you’re thinking that you want to divide the estate up, um with the result that each of your children will get a share, um and each of the grandchildren will get a lesser share, which is half of what the kids get, is that what you’re thinking?
Lorenzo: Or every every [sic] grandchildren will have a one share, and then my children will have a two share.
(l)There was then a discussion as to at what age the grandchildren should be allowed to have control of their inheritance. Lorenzo suggested that 21 is normal and said that 18 is definitely too young.
(m)There was then a discussion as to who should be the executor. Lorenzo indicated that he trusted Mr Saeedi. Mr Mascitti went to make a telephone call to see whether Mr Saeedi would be prepared to be executor and returned saying that he would be.
(n)A nurse arrived with lunch which was put on the bed.
(o)There was then a discussion of a backup executor and Lorenzo suggested Mr Mascitti, which he consented to.
(p)Ms Herbertson asked whether Lorenzo was happy for the fees of the executor to come out of the estate. He said “well, is understandable”.
(q)She then asked about any specific gifts that he wanted to make. Mr Mascitti asked about any jewellery or cars or art. Lorenzo indicated that they (the children) have already helped themselves.
(r)Ms Herbertson asked whether there were loans from other people that needed to be forgiven in the will. Lorenzo said that there were not.
(s)She asked about any family trusts. He said that there were none.
(t)She asked about any preference for burial or cremation and Lorenzo said that he had already got a place with his wife.
(u)There was then a discussion as to what should happen if one of the children died before him. Lorenzo indicated that the parent’s share would go to his children. In relation to Luisa, her share would go back to the grandchildren rather than her brothers.
(v)Ms Herbertson confirmed that the age of 21 was to be the age where the grandchildren got control of their assets.
(w)She then asked whether he wanted a standard will or whether he wanted a more complex will with testamentary trusts put into the will. There was some discussion of that and the possibility of putting in place a more complex will in the future. Ms Herbertson explained some of the benefits of a more complex will.
(x)She then went back and provided a summary of his instructions and Lorenzo indicated that he was comfortable with that.
(y)Ms Herbertson then indicated that she was going to go away and type up the will.
(z)Mr Mascitti then returned to the issue of whether or not they are establishing a testamentary trust or a standard will. Ms Herbertson said that the testamentary trust will is more complicated and Lorenzo indicated that his preference is for “The easy one. And then we see.”
(aa)Lorenzo indicated that he was calling the nurses in order to assist him back into bed and the video ended.
115․After the taking of instructions, Ms Herbertson and Mr Mascitti left the hospital room to draft the will based on the instructions provided. Ms Herbertson then requested hospital staff to print out two copies of the document. Once the documents were printed, Ms Herbertson and Mr Mascitti went back to Lorenzo’s hospital room. Their interaction was again recorded, the video being 15:23 minutes in duration. Once again, the video was in evidence and an agreed transcript was available. The basic structure of what occurred during this interaction was as follows:
(a)Ms Herbertson said that she was going to read through the will and then they were going to sign it. She said that she would be the first witness and that Mr Mascitti would be the second witness.
(b)They were then interrupted by a nurse who was just checking whether Lorenzo wanted to get back into bed. Lorenzo said that after he had finished with the will he would go back to bed and Ms Herbertson said the same thing.
(c)Ms Herbertson then explained that this was the last will and testament and commenced reading it.
(d)After she read the opening words, clause 1, clause 2.1, 2.2 and 2.3, she explained in summary form the effect of clause 2.3 namely that “they’re able to charge fees for acting in that role”. Lorenzo responds “Yep”.
(e)Ms Herbertson then summarised the effect of clause 2.4 and the definitions in clause 3, quoting the text of the clauses when appropriate. After her summary of the effect of the accumulation of income before the grandchildren reach the age of 21, Lorenzo responded in a manner consistent with him having followed the explanation. Similarly, he responded in a manner consistent with him having understood the exclusion of stepchildren from the will.
(f)Ms Herbertson then skipped over some technical definitions and summarised the effect of the definition of “digital assets”.
(g)She then summarised the effect of clause 4, which relates to the payments to be made from the estate.
(h)She then turned to clause 5, relating to the distribution of Lorenzo’s estate and accurately summarised the effect of clause (a). She then summarised the effect of clauses 5(b) and (c). In relation to clause 5(c), Ms Herbertson explained that if Luisa died and did not have any children that survived her, then her share of the estate would go to the other grandchildren. There was then a discussion of that issue. Lorenzo raised the possibility that if she was living with somebody she might want them to receive the money. Mr Mascitti reminded him that he had earlier said that he wished her share to go to Eddy’s and Robert’s kids. Lorenzo said that he had agreed that “to be the logical thing… But I don’t know if Luisa will be happy.” There was then a reference to the potential to discuss the issue with Luisa and make a change if he wished. Lorenzo asked whether he would get a copy of the will and Ms Herbertson and Mr Mascitti said that he would.
(i)Ms Herbertson then moved on to the powers of the executor and trustee described in clause 6 which she described as “all the standard powers that we put into a Will that your Executor might need to administer your estate”. She summarised the effect of those. In relation to the power to make a payment for the maintenance, education, support, advancement or benefit of a beneficiary, Lorenzo responded to the explanation by saying “fair enough”.
(j)Ms Herbertson then summarised the clause which was to the effect that Meyer Vandenberg had not given any taxation advice.
(k)There was then the following exchange:
Lorenzo: What do you reckon, Michael? It’s okay?
Michael: Yeah. I, I I think it goes over everything that you discussed. As long as you’re happy with it.
Lorenzo: I’m happy [unintelligible] you know, I trust you, and then Kamy.
Tanya: OK.
Lorenzo: Right, I’ll sign.
(l)Lorenzo then signed each page and Mr Mascitti did the same followed by Ms Herbertson. There was some general chat while this was occurring. Lorenzo asked Mr Mascitti whether he was still living in Queanbeyan and Mr Mascitti said that he was looking for a house in O’Connor. Ms Herbertson asked when his surgery was, and Lorenzo responded, “not long ago”. Mr Mascitti asked about physiotherapy and Lorenzo responded, “For them it’s a business, you know”.
(m)Ms Herbertson confirmed that there was another copy of the will that could be left with Lorenzo and that she could then organise to email through the signed one as well. Lorenzo examined Mr Mascitti’s signature and made reference to someone (possibly a relative of Mr Mascitti) who he described as “a very good businessman”.
(n)Mr Mascitti indicated that there was a copy of the will and there was then the following exchange:
Lorenzo: I’ll keep it here for Luisa.
Tanya: Yes, yes. And if at any stage you decide you want to update it or change it, um, you let Kamy or Michael know, and we can organise that for you.
(o)Lorenzo then thanks them, and the video is terminated.
116․Upon leaving the hospital room, Mr Mascitti phoned Luisa and told her that he had made a will. He did not tell her the contents of the will.
117․The evidence does not disclose what happened to the unsigned copy of the will left with Lorenzo or whether, and if so to whom, a copy of the executed will was emailed by Ms Herbertson after she returned to Canberra.
The telephone call to Luisa
118․Luisa’s evidence was that she received a telephone call at the time when Mr Mascitti and Ms Herbertson were with Lorenzo in hospital. She said that, in part of the conversation, her father said that “They said they want to do a will. What should I do?” and that she said, “We discussed yesterday, a third, a third, a third.” He then said “Ah I forgot, okay. Can you come please?” She explained that she couldn’t come because she was not supposed to be there but she would come after work. When she did see him later that day, she described him as being “quiet and vague” and tired. Luisa asked him whether he signed something and he said “I don’t know. I think I did but we’ll do another one.”
119․A file note prepared by Ms Herbertson shortly after the execution of the will makes reference to the telephone conversation as follows:
Laurie said perhaps his daughter Luisa should be there too. I explained it is better that I meet with him in the absence of his family members so no-one can later say he was not making his own decisions as to what he wants in his will and say he was being placed under pressure by someone else. Michael offered to phone Luisa for Laurie, which he did. Laurie spoke to Luisa on the phone and I could hear Luisa explaining to her father that it wasn’t appropriate for her to be at the hospital for two reasons - firstly because of the covid restrictions … and secondly so that nobody can suggest she was influencing him to make his will in a particular way. I could hear that as I was sitting fairly close to Laurie when he was speaking to Luisa on the mobile phone. Laurie appeared satisfied with what Luisa told him and indicated to me and to Michael that he wanted to make a will today to get things sorted and in place.
120․In cross-examination, it was put to Ms Herbertson that there had been conversation in which Luisa said the words (of which Luisa gave evidence) referring to “a third, a third, a third”. She said “It’s possible she said it, but I think if I heard that I would have noted it down in my file note. So I didn’t hear that.”
121․In re-examination, she explained that she would have put this part of the conversation in the file note because it was a clear indication about something that was directly relevant to how Lorenzo wanted his estate distributed. Had she heard that bit of the conversation, she would have asked him about it.
122․Mr Mascitti’s evidence was that his phone had been on speakerphone and he handed it to Laurie. Luisa’s version of the conversation was put to Mr Mascitti. It was suggested that she had said “we discussed yesterday a third, a third, a third”. He denied that was said. He did agree that she said “We have been through this. You know what to do” or “You know what you want to do”.
123․I accept that the conversation between Lorenzo and Luisa was overheard by the two lawyers either because it was loud enough to be audible or because it was on speakerphone. I accept the evidence of Ms Herbertson that, had there been a reference to “a third, a third, a third”, she would have noted it in her file note. It is likely that, had such a statement been made, then it would have been discussed during the taking of instructions for the will. I consider that the evidence of Ms Herbertson is more likely to be reliable having regard to the fact that she made a very detailed note later that day and that she would have made a note of such an issue relevant to testamentary intention had it been raised. Ms Herbertson’s evidence is corroborated by that of Mr Mascitti. I accept the evidence of Mr Mascitti that the words “a third, a third, a third” were not said. Mr Mascitti’s evidence is significant in that it is clear that he heard the relevant part of the conversation. In contrast to the file note of Ms Herbertson, Luisa made no equivalent contemporaneous record of the content of the telephone call. For these reasons, I conclude that the conversation with Luisa did not involve her reminding Lorenzo to divide his estate equally between his three children.
124․In relation to Luisa’s conversation with Lorenzo when she visited that evening, his vagueness as to what had occurred is not necessarily indicative of a lack of capacity earlier in the day. His reference to the potential to revisit the will is consistent with other evidence that indicated that this was a factor operating on his mind (see [186] below).
Features identified by the parties about the videos
125․The video recordings speak for themselves. However, both plaintiffs and defendants drew the court’s attention to particular matters shown on the videos relevant to their contentions about testamentary capacity and knowledge and approval. The plaintiffs drew attention to the following:
(a)At 0:39 in the first video, Lorenzo corrects Ms Herbertson when she incorrectly states his year of birth.
(b)Starting from 0:56, Lorenzo correctly identified his three children and that he has five grandchildren. He was unable to recall the name of his fifth grandchild, but explains his failure of memory because he usually refers to him as “bello” (beautiful).
(c)At 02:21 to 02:40, Lorenzo identified some of his longstanding properties, namely, the Deakin Residence, the Red Hill Property, the Queanbeyan Property, Eaglehawk Hill and Prosper Stud.
(d)At 5:28, when asked about Eaglehawk Park ACT Pty Ltd (a company that had only been incorporated by Mr Gelonesi in October 2019) he denied knowledge of that company, despite the leading question asked of him.
(e)At 11:59, Lorenzo recollects a conversation that took place five minutes earlier, asking Mr Mascitti who the arrested person was that Mr Saeedi was representing.
(f)At 12:35, notwithstanding a leading question about his banking with St George, Lorenzo offers additional information that he also has an account with ANZ.
157․He reconciled the improvement in mood relied upon by Dr Chow as also being consistent with there being underlying dementia, but the improvement in mood arising from the management of delusions with olanzapine.
Dr Chow
158․Dr Chow referred to the complexity of the presentation and the significance of its clinical evolution. He indicated that reaching a conclusion as to the underlying condition may take a long time. As each psychiatric condition is treated, the residual problem is exposed. He did not criticise the earlier diagnoses of dementia because, with complex cases, especially in the elderly, treatment may take between six months and two years. The ultimate diagnosis will be dependent upon the progress made in the treatment of the particular conditions that are apparent. He was asked about the treatment of psychosis making it easier to diagnose the underlying condition and said (Tcpt 198-199):
Mr Pastrello, there’s, you know, a lot of factors to suggest that he could have a vascular type of cognitive impairment, or especially with the – with the vascular condition he has reported, cardiovascular stenting and all that, that’s usually a risk of vascular type of, you know, cognitive decline or impairment. Also when we look at whether someone has – he was drinking a fair bit of alcohol. Those factors would have made people [think] the way he presented with all the exhibiting dysfunction and disinhibitions behaviour, aggressions, paranoia could be part of a frontotemporal, you know, type of dementia, especially with the cognitive functioning and testing score to be relatively low as well. But as we – as he recover, he did not present with any of the symptoms of, you know, frontotemporal lobe dementia. Like, he was well-behaved. He was, you know, appropriate in setting. He wasn’t disinhibiting. He wasn’t aggressive. You know, his behaviour has kind of settled down altogether. So, yes, there is definitely some degree of cognitive impairment, but, you know, for – for my view is not sufficient to – to call it a, you know, dementia level.
Prof Brew
159․Prof Brew was asked about Dr Kulh’s report in 2017 and the score of 27/30 in the RUDAS screening test. He pointed out that a diagnosis of dementia required there to be significant problems with the activities of daily living. He also said that such a score would be “most unusual” for a person with dementia unless they were of a significant educational background or intellect that might allow them to perform well notwithstanding the dementing illness. He did not see those qualifications as applying in relation to Lorenzo.
160․In relation to delirium, he repeated what he said in his report, namely that on 10 December 2020, Prof Gideon Caplan had only identified a “possible” delirium and that there were eight days from then until the day on which the will was executed.
161․His observations of Lorenzo on the video were that he was not delirious, that he was aware of his current surroundings and current events, and that a person who is delirious would not have that capacity.
162․So far as any influence of Endone given at 3pm or 8:14pm the day before, he said he would not expect it to have had any impact because it was short acting and would be “well and truly” out of the patient’s system by the following day.
Conclusion – medical witnesses
163․All were impressive witnesses. All well qualified and experienced. Each honestly held the views expressed. Their reports were clear. Assisted by competent and fair cross-examination and re-examination, they gave oral evidence in a manner that was consistent with their role as experts assisting the court. They recognised uncertainty where it appeared. They identified their views, and the reasons for their views, fairly.
164․In my view, the best available evidence is that of the doctor who saw Lorenzo and was able to assess him, Dr Chow. So far as his clinical conclusion was concerned, I consider that he was in the best position to reach a reliable judgment. That judgment is supported by the opinion of Prof Brew, and is not inconsistent with the other available evidence. To the extent that there was an inconsistency as to the ultimate diagnosis, I prefer the evidence of Dr Chow as to the condition suffered by Lorenzo to the evidence of Dr Ryan. I will state my reasons for this conclusion relatively briefly.
(a)Dr Chow saw Lorenzo twice, once in person and once via video. He did so outside the context of the present proceedings (although in the context of ACAT proceedings). In reaching a clinical conclusion as to which of two psychiatric conditions had been present in a complex case, the benefits of having seen the patient are likely to be significant.
(b)Although one or more of Lorenzo’s children were present (Luisa and Eddy on the first occasion, Luisa on the second occasion), having regard to his observations and impression of Lorenzo, Dr Chow was content that he did not need to interview Lorenzo alone in order to make a reliable assessment.
(c)Dr Chow did not criticise the earlier diagnoses of dementia because he recognised that psychosis may mask a depressive illness and that it may be necessary to treat individual psychiatric conditions in order to determine the nature of the residual or underlying problem. He was clearly aware of the need to distinguish between dementia and depression as the underlying problem. I accept his evidence about the need to treat conditions over a longer period in order to reveal the underlying problem.
(d)While it is true that Lorenzo had very significant paid and family support with his activities of daily living following his discharge from Calvary Private Hospital in May 2019, that was something of which Dr Chow was aware when he reached the conclusion that a diagnosis of dementia was not appropriate.
(e)While I accept Dr Ryan’s opinion that caution must be adopted in relation to any attempt to use scores on screening tests as a substitute for clinical evaluation, I also accept the evidence of Prof Brew that “a score of 27 out of 30 [on the RUDAS test] would be most unusual for a person with a diagnosis of dementia”.
(f)The observations of Prof Brew in relation to what can be seen on the video are consistent with the impressions that I drew from the video.
(g)The lay evidence is supportive of there being a significant improvement in Lorenzo’s state of mind and cognitive function over the period between May 2019 and December 2020.
165․The thrust of Dr Ryan’s contention was that he placed significant reliance upon all of those clinicians who had seen Lorenzo prior to Dr Chow and who had made a diagnosis of dementia. Neither Dr Chow nor Prof Brew made any criticism of the doctors for reaching that diagnosis. I accept also that those doctors would have been conscious of the need to differentiate in their diagnoses between depression and dementia. However, necessarily, the diagnoses that they made were not made in light of any knowledge of Lorenzo’s future progress as a result of treatment in hospital and a medication regime which addressed his delusions and depression. Because I accept Dr Chow’s opinion as to the need to take into account the clinical evolution of the condition over time and the length of time that treatment may take with a complex condition in an elderly patient, I do not consider that the earlier diagnoses of dementia indicate that Dr Chow reached an incorrect diagnosis in May and July 2020.
166․Insofar as Dr Ryan’s conclusion was affected by his opinion that Lorenzo would have been unable to examine “abstract results of dividing his estate into fractions and then multiplying some, but not all, of those fractions” (see [144] above) that involved an overstatement of the requirement for testamentary capacity.
167․So far as the suggestion that Lorenzo was suffering from delirium on 18 December 2020 is concerned, I accept Prof Brew’s evidence in preference to that of Dr Ryan. That is because, although Lorenzo was at risk of delirium, Prof Brew identified that none of the primary medical records from 10 December 2020 until at least 18 December 2020 were consistent with Lorenzo suffering from delirium. Further, Prof Brew did not see any signs on the video of Lorenzo suffering from delirium. It was therefore more likely than not he was not suffering from delirium at the time that he gave instructions for or executed the will.
Conclusion – capacity
168․So far as the formulation in Banks v Goodfellow was concerned, there was no dispute that Lorenzo understood the nature and significance of the act of making a will. There was a contest over Lorenzo’s understanding of the nature and extent of his assets and whether he was able to fully comprehend the claim of potential beneficiaries.
169․In my view, each of the three principal sources of evidence relating to the capacity of Lorenzo to make his will support the proposition that he did have capacity.
(a)The evidence captured in the video is consistent with Lorenzo having capacity to make a will.
(b)To the extent to which there might be a difference between what may be observed on the video and what occurred in the room, the opinion of both solicitors present was that he had capacity.
(c)I have accepted the evidence of Dr Chow and Prof Brew in preference to that of Dr Ryan in relation to his capacity and in relation to whether or not he was suffering from dementia at the time.
170․Further, the content of the will was not outside the scope of Lorenzo’s previously expressed intentions.
171․These conclusions require some explanation.
172․First, what can be seen on the video. There is no dispute that Lorenzo appreciated the nature and significance of the making of the will. He understood that he was making a will for the distribution of his estate after he died. He also understood that having made the will, it would be open for him to vary it in the future if he so wished.
173․Second, he also understood the nature and value of his estate, some of my conclusions in relation to which have been described earlier at [127]-[133]. Lorenzo’s understanding was in the context of him having a large portfolio of real property and several businesses. There was some contest as to the adequacy of his knowledge because he failed to make reference to the Bible House property when listing his real estate assets, and there was a contention that he did not remember his principal company, Gratory.
174․So far as the failure to recall Bible House is concerned, for a very wealthy man in his position with numerous properties, it is not necessary that he recall each individual aspect of his estate in order to be demonstrated to have testamentary capacity. That is particularly the case where, as here, the estate was to be dealt with as a whole and there were not intended to be specific gifts. It is notable that he was simply asked to list his properties and was never prompted in relation to having missed this asset. There is no doubt that, if prompted, he would have recalled that he owned Bible House and identified that it would form part of his estate.
175․In relation to the discussion of “Gratory” in the video, I do not accept that what is recorded on the video involved a failure to recognise Gratory Pty Ltd as the company involved in his main Eaglehawk businesses. Rather, the uncertainty about Gratory arose because of references to other companies with “Gratory” in the name. He was asked about a company incorporated in August 2020 (after the appointment of Mr Lo Pilato as his financial manager) Gratory (Water Services) Pty Ltd. In expressing confusion about “Gratory” following the reference to Gratory (Water Services) Pty Ltd, Lorenzo was not expressing any confusion about the existence or name of his principal operating company.
176․The other company referred to, “Gratory 2 Pty Ltd” (as distinct from Gratory Pty Ltd), is not shown by the evidence to be a company that existed or had any connection to Lorenzo. Therefore, some confusion at the mention of its name is understandable and not indicative of cognitive decline.
177․The position is the same in relation to his failure to recognise Eaglehawk Park ACT Pty Ltd, which was only registered in October 2019 with Robert as director and of which Lorenzo, Luisa and Eddy had only become directors in August 2020. It was registered by Mr Gelonesi in October 2019 for the purposes of a management agreement for the Caravan Park with Urban Stays Pty Ltd. This was done in consultation with Robert, not Lorenzo.
178․The absence of any reference to Robert’s and Eddy’s interests in the land upon which their houses were built is understandable and not of significance given the nature of the questions asked and the equitable nature of those interests.
179․Other aspects of the information provided to Ms Herbertson relied upon to suggest incapacity, an apparently incorrect answer about superannuation and a failure to refer to the value of poker machine entitlements, in the context of a large and complex estate, do not indicate a failure to appreciate the nature and value of his estate.
180․Third, in relation to his ability to call to mind and weigh competing claims, he identified the category of persons who were to be beneficiaries of the estate: “we are eight for Pastrello”. There is no argument about this. The inclusion of gifts directly to the grandchildren was consistent with his loving relationships with them. He then, following questioning, identified that each child should receive twice as much as each grandchild as described earlier (see [114(k)] above). At no point was there any mathematical analysis of the consequences of this having regard to the value of his estate. However, the nature of the disposition made is not such as to call into question his capacity to weigh the competing claims. He treated all of his children equally. He treated all of his grandchildren equally. He differentiated between the entitlement of each of his children and the lesser entitlement of each of his grandchildren. It is not essential in the circumstances that he engage in the exercise in mental arithmetic of the type contemplated in the evidence of Dr Ryan quoted at [144] above and calculate the quantum that his will would result in for each category of beneficiary.
181․Fourth, the conclusions reached by the lawyers in the room. In light of the existence of the video evidence, the conclusions reached by Ms Herbertson and Mr Mascitti are not as significant as they might have been had there been no recording of what had occurred. However, notwithstanding that neither engaged in any structured, non-leading questioning in order to make an assessment of capacity, to the extent that they had any advantage as a result of seeing Lorenzo before the recording started, or any advantage from being present in the room as distinct from watching the video, both of them considered that he had capacity to make a will.
182․Fifth, I have accepted the evidence of Dr Chow and Prof Brew that Lorenzo did not suffer from dementia at the time that he was seen by Dr Chow and that he was not suffering from delirium when he gave instructions for and executed the will.
183․Sixth, the content of the will was not inconsistent with Lorenzo’s previously expressed intentions. Insofar as the 2020 will, in contrast to the 1988 will, included Lorenzo’s grandchildren as beneficiaries, that was consistent with the fact that he now had grandchildren and also that he had expressed an intention to benefit those grandchildren in his will. There was substantial evidence as to statements that he had made prior to making the 2020 will as to his intention to benefit the grandchildren: (see [86]-[99]) above. The statements were in general terms or used figurative rather than literal language. The evidence led by the plaintiffs emphasised the generality of Lorenzo’s statements of his intention to benefit his grandchildren. The evidence led by the defendants sought to characterise the intention as more limited. In particular, Eddy and Luisa’s evidence was that Lorenzo had made specific reference to the Carla Apartments as being intended for the grandchildren in order to suggest that he intended only a specific part of his estate be made available for his grandchildren as distinct from his children.
184․Ultimately, it is not possible to interpret the statements made by Lorenzo as indicating any specifically formulated intention in relation either to his residual estate or in relation to any specific component of that estate. Rather, the statements are best interpreted as statements of general intention that his grandchildren would benefit from his estate. They were not so specific or made in such a context as to indicate any concluded view as to precisely how the grandchildren would benefit.
185․In that context, the terms of the will which give a substantial benefit to each of the grandchildren can be seen as consistent with his previously expressed intentions, and the existence of those substantial benefits under the will cannot be characterised as so anomalous as to be indicative of a lack of capacity to weigh the claims that beneficiaries might have for his benevolence. To the extent to which giving a share of the whole of the estate to the grandchildren was more generous than a share of a specific gift, that is explicable in circumstances where the grandchildren were not tainted by any of the tensions that existed between his children. The present case contrasts with cases such as In the estate of Ruimao Liu deceased [2019] ACTSC 49 at [91], In the matter of the estate of Jocelyn Heather Jones (deceased) [2014] ACTSC 200 at [24], In the estate of Coonan [2023] ACTSC 320 at [4], [37]-[38], in which the content of the will itself was, in the circumstances, so unusual as to be an indication that the deceased lacked capacity.
186․Seventh, it is significant that Lorenzo contemplated that the content of the will could be revisited in the future. He therefore appears to have treated the formulation of the manner in which his estate was to be divided with less gravity than would otherwise have been the case. That was consistent with Ms Herbertson’s understanding that the will was a “stopgap will”. However, Lorenzo clearly understood the nature of what he was signing and that it would be effective except to the extent to which it was later formally amended.
187․The potential to revisit his testamentary intentions in the future was recognised in statements that he made during the first video ([14:48] “Make it equal. Then we’re going to change it because, you know, when we get together”; [15:13] “If is there’s some change, we can do it, and that’s it in the meantime, you do that”.) That understanding was consistent with what Lorenzo had been told by Mr Saeedi during the FaceTime call earlier in the meeting.
Kamy: Yeah. OK. So Laurie, what I think you’re doing is two steps; you’re doing your Will now, and then if you want to change anything, you can change it again in two weeks, three weeks, any time you want.
Lorenzo: Yes.
Kamy: You can amend it. Um the idea is to protect your position, and write up a Will that protects you, and then if you want, if you think of something and you want to refine it or change anything about it, um, you just let us know, and we’ll organise another update anyway.
Lorenzo: Good man.
188․The potential for amendment of the will in the future provides some explanation of the tentative manner in which Lorenzo approached the fundamental issue of the division of his estate ([14:33] “What you suggest?”) and the willingness of Lorenzo to finalise a will without further or more detailed consideration of the method for division of his estate. It does not, however, undermine the fact that he knew and understood that he was making a will that would have effect according to its terms unless formally altered.
189․Eighth, although the defendants submitted that the prompts given to Lorenzo by Ms Herbertson influenced the ultimate form of the dispositions in the will, the lawyers were careful not to direct Lorenzo as to how he should divide his estate. Inevitably, he responded to questions as to how he wanted his estate divided. However, the manner in which he responded to the questions did not indicate that he was uncritically or unknowingly being led down a particular path by the manner of questioning in a way reflective of a lack of capacity. The shape of the will was determined by identifying eight Pastrellos as the beneficiaries and the decision that each child should receive twice the amount of each grandchild. The fact that a discussion with lawyers led to that result does not indicate a lack of capacity.
190․For these reasons, Lorenzo did have testamentary capacity when he made the will on 18 December 2020.
Conclusion – knowledge and approval
191․Having regard to my earlier conclusions about Lorenzo’s cognitive function at the time of the will and the contents of the will itself, if the matter is to be dealt with on the basis of presumptions, I am not satisfied that there are suspicious circumstances surrounding the execution of the will that would displace the presumption that Lorenzo knew and approved of its contents. It was a document duly executed by him in circumstances where he had testamentary capacity and where there are no features of the will which would give rise to a suspicion that its contents were not known to or approved by him. To the extent to which, contrary to my view, any suspicious circumstances exist, they would be slight and hence easily dispelled.
192․However, if, consistent with the approach identified in Mekhail v Hana (see [23](g) above), the issue is simply addressed on the basis of all of the evidence before the court and without regard to presumptions and shifting burdens, the result is the same.
193․My reasons for these conclusions are as follows. They are based upon my earlier conclusions about Lorenzo’s cognitive function and hence testamentary capacity.
194․In addition to the will being properly executed, because the process of taking instructions and the execution of the will was video recorded, it is possible to make an assessment of whether or not the will was executed with knowledge and approval of its contents. Having taken instructions, the will was prepared and then either read back or explained to the testator. While some of the provisions were read, some were explained and others were both read and explained. So far as the central component of the will was concerned, the manner in which the estate was to be distributed, Lorenzo knew and approved of the contents of the will. He knew that he was giving to each child double what he was giving to each grandchild. He knew that the grandchildren would only get their share upon turning 21.
195․The submissions of the defendants placed reliance upon the requirements that the testator understood “the effect” of its provisions. This is derived from the statement of principle in Tobin v Ezekiel at [55] that if the circumstances are such as to give rise to a doubt as to knowledge and approval “those propounding the will must dispel that doubt by proving affirmatively that the testator appreciated the effect of what he or she was doing”: see also Lewis v Lewis [2021] NSWCA 168; 105 NSWLR 487 at [186].
196․In large part, the submissions repeated the factual contentions as to Lorenzo’s cognitive capacity, which I have not accepted in relation to testamentary capacity. However, part of the submission was that knowledge of the “effect” of the will required at least a general understanding of the quantum of the gifts being made, particularly the gifts of several millions of dollars to each of the grandchildren.
197․Whether the matter is dealt with by shifting presumptions or on the whole of the evidence (see [23](e)(g) above), I do not consider that greater knowledge of the quantum of the gifts was required to be proved. At the time of the making of the will, Lorenzo was aware of his very substantial property empire. He was aware that the gifts were, therefore, very valuable ones. Given that the method of the apportionment of his estate was understood and the fact that the estate was a very valuable one, it is not necessary in order to establish knowledge and approval of the effect of the will to establish a greater appreciation of the actual quantum.
198․The presence of Mr Mascitti and the involvement of Mr Saeedi in the meeting on 18 December 2020 do not, in my view, amount to suspicious circumstances in relation to knowledge and approval of the will. That Mr Saeedi was nominated as executor and Mr Mascitti as an alternate executor was a product of Lorenzo’s surprise decision to nominate them as such. There is no evidence that indicates any untoward influence in that decision.
199․There is a distinct issue concerning clauses 2.1 to 2.3 of the will which were specifically challenged. These clauses provided:
2.1Appointment
I appoint Kamy Saeedi as my Executor.
2.2Alternate Executor
If Kamy Saeedi is unable or unwilling to act as my Executor then I appoint Michael Mascitti as my Executor.
2.3Payment of Professional Executors
Any of my Executors who practices a profession:
a) is entitled to be paid all usual and reasonable professional fees for work done by that Executor or her or his firm as executor, trustee or both, on the same basis as if he or she were not one of my Executors but employed to act on behalf of my Executors; and
b) may in addition apply to the court for commission for her or his pains and trouble.
200․So far as clause 2.3 is concerned, s 70 of the Administration and Probate Act 1929 (ACT) allows the Supreme Court to allow out of the estate a “commission or percentage for his or her services that is just”. After Lorenzo had suggested that Mr Saeedi be his executor, Ms Herbertson had specifically raised with him that Mr Saeedi or Mr Mascitti would wish to charge fees for doing so. Lorenzo said “Well, is understandable”. In the will that was then drafted, Clause 2.3 permits an application for commission in addition to all usual and reasonable professional fees.
201․This clause was read in full to Lorenzo. After it was read there was an appropriate explanation of the clause that allowed the charging of professional fees:
So basically that’s saying that if Kamy, or if Michael are acting as your Executor, they’re able to charge fees for acting in that role, OK? So they’d probably charge their hourly rates, um, for acting, um, as your Executor of your estate, and doing all the things that are necessary to administer your estate.
202․While that explanation does not separately address the potential for both professional fees and commission, it is sufficient to establish knowledge of the effect of the will, particularly in a context in which the Supreme Court has the power to allow a commission in any event, and the prospect of the Supreme Court approving a commission or percentage in addition to the usual professional fees must be low. I do not consider that the fact that Mr Mascitti or the firm by which he was employed may be a beneficiary of this provision in the will is sufficient to indicate that what occurred did not involve knowledge and approval of the clauses.
Result
203․I am satisfied on the balance of probabilities that Lorenzo had the capacity to make a will when he did on 18 December 2020. I am also satisfied on the balance of probabilities that he knew of and approved the terms of the will that he made.
204․For those reasons, there will be a grant of probate in relation to the 2020 will and the counterclaim will be dismissed.
Costs
205․The active parties agreed that it would be appropriate for them to be separately heard in relation to costs. The position of the executor also needs to be considered. At this stage, costs will be reserved.
Orders
206․The orders of the Court are:
(1)Probate in solemn form of the will dated 18 December 2020 of Lorenzo Antonio Pastrello be granted to Kamyar Saeedi.
(2)The counterclaim is dismissed.
(3)All questions of costs are reserved.
(4)The proceedings are listed for directions at 9:30am on 17 February 2025.
| I certify that the preceding two hundred and six [206] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: |
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Amendments
| 25 February 2025 | Omit “See [205]” and insert “See [206]” in the cover page. | Cover page |
| Omit “the Mr” and replace with “Mr”. | [66] |
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