Scaffidi v Scaffidi [No 2]
[2022] WASC 227
•4 OCTOBER 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: SCAFFIDI -v- SCAFFIDI [No 2] [2022] WASC 227
CORAM: HALL J
HEARD: 21-29 MARCH 2022
DELIVERED : 15 JULY 2022
FILE NO/S: CIV 2911 of 2015
BETWEEN: EUGENIO SCAFFIDI
Plaintiff
AND
GIUSEPPE DIEGO SCAFFIDI
Defendant
Catchwords:
Wills - Probate - Whether testatrix had testamentary capacity - Whether testatrix knew and approved of contents of will - Whether probate should be granted in solemn form for the 2008 will or the 2002 will
Legislation:
Nil
Result:
The 2008 Will is not valid
The 2002 Will is valid.
Representation:
Counsel:
| Plaintiff | : | Dr P MacMillan |
| Defendant | : | Mr M Sims |
Solicitors:
| Plaintiff | : | Eastwood Law |
| Defendant | : | Hotchkin Hanly |
Case(s) referred to in decision(s):
Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Brown v Guss [2014] VSC 251
Brown v Wade [2010] WASC 367
Earl of Longford v Purdon (1877) 1 LR Ir 75
Easter v Griffiths (1995) 217 ALR 284, 290
Fisher v Kay [2010] WASC 160
In the Will of Wilson (1897) 23 VLR 197
Jones v Dunkel (1959) 101 CLR 298
Nicholson v Knaggs [2009] VSC 64
Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268; (2003) 27 WAR 475
Romascu v Manolache [2011] NSWSC 1362
Saunders v The Public Trustee [2015] WASCA 203
Scaffidi v Scaffidi [2019] WASC 457
Starr v Miller [2021] NSWSC 426
Sutton v Saddler (1857) 3 CB (NS) 87; 140 ER 671
Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277
Tobin v Ezekiel [2021] NSWCA 285; (2021) 83 NSWLR 757
Veall v Veall [2015] VSCA 60
HALL J:
Introduction
This case concerns the validity of a will.
Maria Scaffidi died on 31 December 2014. The last will made by her prior to her death was executed in 2008 (the 2008 Will). The sole beneficiary and executor of the 2008 Will is Maria's son, Eugenio (Gino). No provision is made for Maria's other son, Giuseppe (Joe). In previous wills Maria had provided for both brothers equally. The 2008 Will contains a clause stating Maria's reason for not making any provision for Joe.
On 29 January 2015, Joe lodged a probate caveat in respect of Maria's estate alleging that the 2008 Will is invalid. On 1 December 2015, Gino commenced proceedings seeking orders that the 2008 Will be pronounced as valid and for there to be a grant of probate in solemn form in respect of that will. Joe opposes such an order and seeks, by way of counter‑claim, orders that the court pronounce the force and validity of an earlier will made by Maria in 2002 (the 2002 Will).
At issue is whether at the time of making the 2008 Will Maria was suffering from dementia or cognitive deficits to such a degree that she lacked testamentary capacity. Gino's case is that Maria did have capacity and had good reasons for wishing to exclude Joe as a beneficiary. Joe's case is that Maria did not have capacity, particularly because she did not understand the extent of the property of which she was disposing.
Further, and in the alternative, Joe claims that the 2008 Will is invalid because the court cannot be reasonably satisfied that Maria knew and approved of the contents of the will. That claim is based on Maria being elderly, with little ability to comprehend English, the will being a marked departure from previously expressed intentions and the circumstances in which the will was prepared, which are alleged to be suspicious.
There are, thus, two issues for determination:
1.Did Maria have testamentary capacity at the time she made the 2008 Will?
2.Did Maria know of and approve the contents of the 2008 Will at the time she executed it?
As the proponent of the will Gino bears the onus of establishing that Maria had testamentary capacity and that she knew and approved the contents of the will.
For the reasons that follow, I have concluded that it has not been established that as at the date of the execution of the 2008 Will Maria had testamentary capacity. On the contrary, the weight of the evidence favours a conclusion that she did not have capacity. That conclusion is sufficient to determine the question of validity. However, as the second issue was fully ventilated at trial, I have also considered it. I have concluded that it has not been established that Maria knew and approved the contents of the will.
As all the relevant parties in this matter have the same surname, I will continue to refer to them by their first names. No disrespect is intended.
The Background History
The general background facts are not contentious. It is useful to set them out first, before turning to the evidence. These facts have been drawn from undisputed evidence and the documents contained in the agreed trial bundle.
Maria was born in Italy on 14 June 1930. She married Antonino Abate Scaffidi (Nino) and they had two children, Joe and Gino. Gino is the plaintiff in these proceedings and Joe is the defendant.[1]
[1] Exhibit P1 [1] - [4].
Maria and Nino emigrated from Italy to Australia in August 1950. They built a house at 4 Waterloo Street, Joondanna (the Waterloo Street property) in about 1955 and continued to live there until 1986. They purchased land at 124 Chipping Road, City Beach, and built a house into which they moved in 1986 (the City Beach property). They retained ownership of the Waterloo Street property and it was rented out.[2]
[2] Exhibit P1 [11] - [15].
Maria's first languages were Italian and the Sicilian dialect of Italian. Although she learnt some basic English, Italian and Sicilian remained her primary languages and she used them when communicating with members of her family.[3]
[3] Exhibit P2 [27].
Gino married and had two children, Maree Scaffidi-Franchina (Maree) and Michael Scaffidi (Michael). Joe also married and had two children, Anthony Scaffidi (Anthony) and David Scaffidi (David).[4]
[4] Exhibit P1 [1] - [4].
The Scaffidi Family Trust (the Trust) was established on 2 May 1977. Nino was the appointer of the Trust and the original trustee was Scaffidi Nominees Pty Ltd (Scaffidi Nominees). The Trust was the operating entity for the family business of property development and building construction. Both Joe and Gino worked in this family business until about 1996. Gino then left to work in his own business.[5]
[5] TB - 001; Exhibit P1, [12] - [15].
In 1995, Scaffidi Holdings Pty Ltd (Scaffidi Holdings) replaced Scaffidi Nominees as the trustee of the Trust. In 2009 Montevento Holdings Pty Ltd (Montevento) replaced Scaffidi Holdings as the trustee. Maria and Nino were the original directors of the corporate trustee of the Trust. Nino retired in the 1980s but continued to take an interest in the business.[6]
[6] TB - 004.
In 2002, Maria and Nino made what were essentially mutual wills. Maria's will provided that Nino would receive the whole of her estate if he survived her by 28 days. If he did not survive her for that period then her estate was left to Joe and Gino as tenants in common in equal shares. Nino's will made a specific bequest to Joe of a house and land in Sicily, specific bequests of $10,000 to each of his four grandchildren and left the residue of his estate to Maria. In the event that Maria predeceased him his residuary estate was left to Joe and Gino as tenants in common in equal shares. Both wills provided that in the event that Joe or Gino predeceased their parents any share of the estate due to them would, respectively, pass in equal shares to such of their children who attained the age of 18 years.[7]
[7] TB - 009; TB - 010.
On 11 June 2003 a physician, Dr Michael McComish, wrote to Maria's general practitioner to report on a follow-up after Maria had been admitted to hospital (for an unstated condition). He reported that Maria was feeling better but that 'the family has been very concerned about memory lapses.' He suggested that it was worth arranging for a Mini Mental State Examination (MMSE). He noted that the dosage of Avanza, an antidepressant medication, would be increased and that Maria and Nino (who was then aged 80) were 'having some difficulty dealing with her dependence.' He recommended an Aged Care Assessment Team (ACAT) assessment and 'perhaps some home help or even day hospital if appropriate.'[8]
[8] TB - 013.
Patient records show that Maria saw her then General Practitioner, Dr Fiona Sluchniak, on 17 June 2003. She was suffering depression and it was noted that this condition had improved with medication (Avanza). An MMSE was booked for later the same day with another doctor at the clinic who spoke Italian, Dr Mel Genovese. An ACAT referral was discussed, and Maria was noted as being agreeable to this.[9]
[9] TB - 217.
The patient records also show that Dr Genovese saw Maria later the same day and conducted an MMSE. The notes state that the score of 18 out of 30 indicated that moderate cognitive impairment was present. Maria remembered three objects with difficulty, had 'no idea re season/year/date', wrongly thought the day was Monday, was oriented to place, but was poor at copying a diagram and could not read to perform a command. Dr Genovese noted that Maria 'seems quite impaired to me' and that language was no barrier.[10]
[10] TB - 015.
Nino died on 29 August 2004. Joe was granted probate of Nino's 2002 will. At the time of his death Nino held one share in Scaffidi Holdings, of the four shares then on issue. Maria held one share in her own right, Gino held one share and Joe held one share. Pursuant to the terms of the will, beneficial ownership of Nino's share passed to Maria. Maria also became the sole owner of the City Beach property as the surviving joint tenant.[11]
[11] TB - 028.
Maria continued to live in the City Beach property after Nino's death. Her grandson Anthony also lived at the house until 2006. Anthony had lived with his grandparents since 1991. After Anthony moved out in 2006, Maria lived at the house on her own.[12]
[12] Exhibit D4 [1] - [10].
Maria began seeing Dr Angelo Carbone as her regular general practitioner in October 2004. Dr Carbone was also Gino's doctor. On 15 October 2004 Maria saw Dr Carbone and he recorded in his notes that she had dementia. He noted that she did not know the date, her date of birth, her address or her age. She reported difficulty with sleeping, going to bed late and getting up at 11 am. A prescription for Avanza was provided.[13]
[13] TB - 014.
In March 2005, Maria slipped and fractured her hip. She was hospitalised for about 6 weeks. During this time Joe and Gino decided that they should obtain an enduring power of attorney (EPA) from Maria. A solicitor, John Benari, was retained for this purpose. Maria signed a power of attorney on 31 May 2005, by which Joe and Gino were appointed as her joint attorneys. There was a problem with the qualifications of the witness to this document and a new document in the same terms was executed on 19 July 2005. On that later occasion the document was translated into Italian. Mr Benari and another solicitor, Arthur Metaxas, who attended as a witness, satisfied themselves that Maria understood the effect of the document.[14]
[14] TB - 018; TB - 019; TB - 020; TB - 021; TB - 022; TB - 023; TB - 024; TB - 025; TB - 026; TB - 027.
On 4 July 2005, Dr Carbone prescribed Ebixa for Maria. Ebixa is a medication used to treat memory problems in patients with dementia. Further scripts, with repeats, were written in 2005 and 2007 and were filled by a pharmacist.[15]
[15] ts 282 - 283; TB - 060.
On 23 November 2005, Scaffidi Holdings sold a half share in a property at 25 Gladstone Street, Perth to Abvez Pty Ltd as trustee for the I Barker Superannuation Fund for $700,000. A transfer of land document dated 6 December 2005 was signed by Joe and Maria as directors of Scaffidi Holdings.[16]
[16] TB - 033.
On 16 January 2006, Maria signed a 'LoDoc Declaration of Financial Position' in connection with a loan for $480,000 from Perpetual Trustees Victoria Ltd (the Perpetual Trustees Loan). The document stated that Maria was an investor and that her total pre-tax income was $266,360. The document was also signed by Cornelis Van Maanen, Maria's accountant. On the same date Maria also signed a 'Declaration of Purpose' in which she declared that the loan was wholly or predominantly for business or investment purposes. She also signed a 'Loan Purpose Check List' which stated that $240,000 of the money was to be used to refinance a property and that the remaining $240,000 was to be used for investment purposes. The security for the loan was stated to be the Waterloo Street property. A mortgage document in favour of Perpetual Trustees Victoria Ltd was signed by Maria. Joe also signed the mortgage to acknowledge that, Maria being unable to read or write in the English language, he had read and explained the document to her in the Italian language.[17]
[17] TB - 037; TB - 038; TB - 039; TB - 040; TB - 041.
On 5 April 2007, Maria signed an 'Acceptance by Security Providers' in respect of a business overdraft of $200,000 that was provided by Bendigo Bank to Lisajoe Investments Pty Ltd (Lisajoe Investments), a company associated with Joe. That overdraft was secured by, amongst other assets, the City Beach property owned by Maria. Maria's signature was witnessed by Mr Van Maanen. The document was also signed by Joe and Gino in their capacities as directors of Scaffidi Holdings, which had also provided security.[18]
[18] TB - 055.
On 18 April 2007, Maria and Gino opened a term deposit account in joint names at BankWest Innaloo. The term deposit was in the sum of $67,000 for a three-month term. The letter confirming the term deposit was sent to Gino's home address. In the following months the term deposit was rolled over each time it matured and was still in existence, with accumulated interest, at the time of the making of the 2008 Will.[19]
[19] TB - 056.
In or about May 2007, Gino instructed Damian Cooper of Cooper Legal to write to Joe regarding the Scaffidi Family Trust. In a letter to Joe dated 5 May 2007 Mr Cooper stated that he had been instructed that Joe had not transferred Nino's share in Scaffidi Holdings to Maria, had refused to provide Gino with access to the books and records of the company, had failed to hold director's meetings, and that funds controlled by the trust had been used by Joe for his own benefit. There was also an allegation that signatures on various documents purporting to made by Maria were not made by her. The signatures in question were not identified in the letter. Demands were made regarding the production of books and records and management of the company's financial affairs.[20]
[20] TB - 057.
One of the properties owned by Scaffidi Holdings is a commercial property at 45 Gladstone Street, Perth. On 7 May 2007 Gino received a facsimile from BankWest advising that a loan to Scaffidi Holdings using that property as security was in arrears. The bank provided a copy of the relevant mortgage document and the loan facility document, both signed by Maria and Joe on 9 April 2006.[21]
[21] TB - 058.
On 14 May 2007, Dr Carbone saw Maria and noted that she needed a letter to ascertain if she was 'mentally capable of creating a will.' His notes also record that Maria was oriented as to the day, but not the month or year. She was able to provide an account of events leading to her wanting to change her will. Dr Carbone tested her abstract thinking and found it to be 'appropriate.' She was able to remember the names of her children and grandchildren and the time since her husband's death. She was upset at the family 'turn of events.' Dr Carbone noted that the family wanted Maria to have a general check from Dr McComish. His note concludes with the words 'fit to make a will.' He also wrote to Mr Martella (the solicitor who had prepared the previous will) stating that Maria had 'good cognition and abstract thinking' and 'the mental capacity to initiate and formulate her will.'[22]
[22] TB - 061; TB - 062.
Dr Carbone referred Maria to Dr McComish for a 'general check up, with hospitalisation if necessary.' Accompanying the referral letter was a patient history that recorded under 'Current Conditions' that Maria had '15/10/2004 - Dementia - Mild dementia.' The history also records under 'Current Medications' that Maria had been prescribed Ebixa, 10 milligram tablets twice daily.[23]
[23] TB - 060.
Dr Carbone saw Maria again on 29 May 2007. His notes on that day record that Maria needed an ACAT (Aged Care Assessment Team) check 'to ensure that she can change her will.' For this purpose, Dr Carbone referred Maria to Dr Barry Viera. In his referral letter, Dr Carbone stated that Maria had a history of depression and 'possibly memory disturbances.' He stated that Maria was in the process of changing her will and asked that her capacity to do so be assessed as the change 'may be controversial on her passing'.[24]
[24] TB - 067; TB - 068.
On 29 May 2007, Dr McComish wrote to Dr Carbone with a report on the review of Maria that he had undertaken that day. Dr McComish noted that despite the death of Nino and several other close family members since 2004 Maria had 'battled on admirably, and she still lives independently'. He noted that she had broken her left femur in 2005 but had made a good recovery and was mobile using a quadruped stick. She continued to cook and make bread for her family. Dr McComish noted that there had been a suggestion that Maria may have cognitive impairment, but he could find no evidence of that and that he had been told by Gino that Dr Carbone had conducted a mini mental state examination and that it was normal. The only concern raised in the letter was regarding high blood pressure.[25]
[25] TB - 071.
On or about 29 May 2007, Maria received two letters from Bendigo Bank advising that two accounts of which she was a guarantor were overdrawn. One account was a facility with a limit of $725,000[26] in the name of Lisajoe Investments and was $5,222.42 over the approved limit. The other account was a facility with a limit of $725,000 in the name of Premier Building Solutions Pty Ltd (Premier Building Solutions) and was $31,966.17 over the approved limit.[27]
[26] This appears to be an error as later correspondence refers to a facility limit of $200,000.
[27] TB - 069; TB - 070.
On 20 June 2007, Maria received two more letters from Bendigo Bank regarding the facility accounts. On this occasion the account in the name of Lisajoe Investments was referred to as a facility with a limit of $200,000 and was $1,649.62 over the approved limit. The Premier Building Solutions account was referred to as a facility with a limit of $725,000 and was $38,085.91 over the approved limit.[28]
[28] TB - 073; TB - 074.
On 29 June 2007, Joe's lawyers, Hammond Worthington, replied to a letter from Cooper Legal of 27 June 2007. The full context of this letter is not apparent from the available evidence, but it deals with loan facilities and a proposal to refinance them. There is a passing reference to Gino choosing to ignore 'his mother's level of understanding and legal capacity'.[29]
[29] TB - 075.
On 2 July 2007, Bendigo Bank wrote to Gino confirming that the bank required that the facility accounts in the names of Lisajoe Investments and Premier Building Solutions, together with another account in the name of Scaffidi Holdings, be cleared by 15 July 2007. On clearance of the accounts all securities would be released, including a guarantee from Maria and a mortgage over the City Beach property.[30]
[30] TB - 078.
On 13 July 2007, Maria signed a share transfer form to transfer her one share in Scaffidi Holdings to Gino. That transfer was approved at a meeting of the Directors of Scaffidi Holdings and a change of company details was filed with ASIC recording that Gino now held two shares in the company and Joe held one.[31]
[31] TB - 080.
Dr Viera was unable to do the assessment requested on 29 May 2007 and recommended that Maria be referred to Dr Roger Clarnette, a consultant geriatrician. Dr Carbone wrote a referral letter on 16 July 2007 to Dr Clarnette in the same terms as the one he had sent to Dr Viera. Gino faxed the referral letter to Dr Clarnette the following day, together with 'various correspondence' from Dr McComish and Dr Carbone. An appointment was confirmed for 9 August 2007 and Gino requested that an Italian interpreter be present.[32]
[32] TB - 082.
Maria saw Dr Clarnette on 9 August 2007. Gino and his wife also attended. An Italian interpreter was present by telephone. Maria was unable to answer questions regarding her assets, and it was not possible to complete a formal assessment as to capacity. She confirmed, however, that she wished to proceed with an assessment. Dr Clarnette told her that she would need to learn more about her affairs so that she would be in a position to answer questions the next time he saw her. He also asked Gino to ensure that Maria had a written record of the value of her properties and the amount in her bank account. He stated that he intended to have a Sicilian speaking interpreter present at the next appointment. He noted that there was some evidence of 'altered mental state' but that language and education difficulties precluded an optimal mental status assessment. He planned to see Maria again in a month. No further appointment was made.[33]
[33] TB - 087.
On 15 October 2007, Cooper Legal wrote to Maria advising that the mortgage on the City Beach property had been removed following refinancing of Scaffidi Holdings financial arrangements. The letter also enclosed the duplicate Certificate of Title for the property.[34]
[34] TB - 090.
In October or November 2007, Maria and Gino met with Mr Benari at the City Beach house. Maria instructed Mr Benari to prepare a revocation of the existing power of attorney and prepare a new one in favour of Gino solely. Further instructions were given to prepare a transfer of the City Beach property and, possibly, the Waterloo Street property, from Maria's sole name into joint names with Gino.[35]
[35] TB - 100.
On 5 November 2007, Maria and Gino attended Mr Benari's office for the purpose of executing documents that he had prepared. An Italian interpreter, Ms Luciana Russo, was present. The instructions previously given by Maria were confirmed in a written document, which she signed. The documents were then signed. In the case of the power of attorney it was executed in the presence of another solicitor, Mr Arthur Metaxas.[36]
[36] TB - 093; TB - 094; TB - 085.
On 27 November 2007, Gino met with Mr Benari and confirmed his instructions that the transfer in relation to Waterloo Street was not to be lodged 'at this point in time' as 'he did not want Joe alerted'. Further the power of attorney was not to be filed until the City Beach property transfer had been stamped and registered. Mr Benari arranged for the City Beach transfer to be stamped and it was registered on 11 January 2008. The power of attorney was registered on 21 January 2008.[37]
[37] TB - 107; TB - 116.
On 13 February 2008, Maria saw Dr Carbone. The notes of this consultation refer to Maria reporting dizzy spells, insomnia and a dry mouth. There is no reference to the report by Dr Clarnette or to the capacity issue.[38]
[38] TB - 124.
Mr Benari was also instructed to prepare a new will for Maria. On 13 March 2008 he spoke to Mr Cooper regarding what Maria wanted in relation to her will and 'how this would affect any litigation currently on foot or any strategy that had been formulated with Gino Scaffidi'. Mr Cooper suggested that the will include the reasons why Maria did not wish to make Joe a beneficiary. Mr Benari agreed to provide a copy of the will to Mr Cooper for his 'overview' before it was executed.[39]
[39] TB - 125.
On 26 March 2008, Mr Benari sent a copy of the draft will to Gino and to Mr Cooper. He invited Mr Cooper to provide comment on clause 5 of the will, which stated Maria's reasons for not making provision for Joe. The covering letter to Gino noted that arrangements had been made for the will to be executed at Mr Benari's office at 11 am the next day.[40]
[40] TB - 127; TB - 128.
On the same day, 26 March 2008, Joe wrote to Dr Carbone asking that Maria be referred to an ACAT assessment centre.[41]
[41] TB - 130.
On 27 March 2008, Maria and Gino attended at the offices of Mr Benari. Ms Russo, the Italian interpreter, was also present. Two errors in the draft were noted: Maria was referred to as a married woman rather than as a widow, and the name Giuseppe was misspelt in clause 5. The will was retyped to correct these errors. Maria then signed the will in the presence of Mr Benari and Ms Russo and they signed as witnesses.[42]
[42] TB - 132; TB - 133.
By the 2008 Will Maria left her entire estate to Gino and appointed him her sole executor. Clause 5 of the will stated:[43]
[43] TB - 134.
5. I DECLARE that I have made no provision in this my Last Will
and Testament for my Son GIUSEPPE DIEGO SCAFFIDI for
the reason that he has already received from the Estate of my late
Husband ANTONINO ABATE SCAFFIDI the property in
Sicily and has further benefited by gifts made to him by my late
Husband during his lifetime.
On 31 March 2008 Mr Cooper wrote to Gino confirming that, following a conference with Mr Metaxas and Mr Benari, Mr Metaxas had prepared a Deed of Appointment of New Trustee for the Scaffidi Family Trust. The new trustee was to be Montevento Holdings Pty Ltd, the principal place of which was Gino's home address. The letter also referred to the engagement of a handwriting expert to examine the signatures of Maria on three mortgage documents.[44]
[44] TB - 135.
On 4 April 2008 Dr Carbone replied to Joe's request for an ACAT assessment for Maria. Dr Carbone stated that his records showed that Joe did not have a power of attorney for Maria and that, accordingly, he could not comply with the request.[45]
[45] TB - 141.
On 9 April 2008 Maria saw Dr Carbone. He discussed the consultation Maria had with Dr Clarnette the previous year. His note states that Maria was 'aware of home value but did not want to disclose info to Dr Clarnette… would like to see someone for an opinion… does not want me to disclose any information to other parties'. At that consult Maria produced a handwritten note in Italian and signed by her, in which she stated her wish that Dr Carbone not provide any information from her medical records to anyone other than Gino.[46]
[46] TB - 143; TB - 144.
On 11 April 2008 Perpetual Trustees Victoria Ltd commenced proceedings against Maria by Writ of Summons. The Statement of Claim stated that there had been default on a loan for which a mortgage on the Waterloo Street property had been provided as security. In a Defence and Counterclaim prepared by Cooper Legal, Maria denied requesting a loan, receiving any loan monies or signing the mortgage document. A claim was made that the signature on the mortgage purporting to be hers was a forgery.[47]
[47] TB - 147.
On 14 May 2008 Dr Carbone wrote a letter referring Maria to Dr Sam Restifo, a consultant psychiatrist, for a mental state assessment. In the letter Dr Carbone stated that 'it has been found that Joe has misappropriated funds from the family trust' and that 'Gino has enlisted a forensic accountant and the results of this are apparently consistent with fraudulent behaviour.' He said that, as a result, Maria had removed Joe from her will. He asked that Dr Restifo assess Maria's mental state, in particular her ability to make a will.[48]
[48] TB - 153.
On 24 June 2008 Maria saw Dr Carbone. He recorded in his notes that Maria was upset 'about what Joe is doing' and had tried to ring him at work. She was 'aware that there were problems with the Joondanna property' and was able to say that the City Beach property was valued 'around 3 million' and the Joondanna property was worth 'about $900,000'. She referred to also having property in East Perth. Dr Carbone noted that Maria was seeing Dr Restifo soon and that she had 'sufficient insight to manage her own affairs'.[49]
[49] TB - 157.
On 14 July 2008 Cooper Legal wrote to Dr Restifo. In that letter Mr Cooper stated that his firm acted for Maria in the Supreme Court proceedings. He said that in those proceedings it was alleged that Maria's signature had been forged on a mortgage document by Joe. He also said that Joe had applied to the State Administrative Tribunal (SAT) for a declaration that Maria was not capable of managing her affairs and that an independent administrator should be appointed. In this context Mr Cooper asked for Dr Restifo's opinion as to Maria's capacity and, in particular, whether she was unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to her estate. Mr Cooper also asked that Dr Restifo's view be in a form that could be tendered at the SAT. Whilst the letter referred to the power of attorney made in November of the previous year, there was no reference to the will executed in March.[50]
[50] TB - 159.
Dr Restifo saw Maria on 30 July 2008 and prepared a letter to Dr Carbone of the same date. He noted in his letter that Maria was accompanied by Gino and that he (Dr Restifo) spoke to her initially in English and later in Italian. He stated that Maria's thinking was clear and orderly, notwithstanding some self-consciousness about seeing a psychiatrist. He said that she was able to speak coherently about her health and family issues. She was able to articulate some particular matters, including that her assets included her home in City Beach valued at $3 million and another property in Joondanna valued at $1 million. Dr Restifo also noted that Maria told him that 'she made a new Will approximately a year ago in which she left [the assets referred to] to her son Gino on the basis that her other son Joe had inherited the family home in Italy from her late husband's Will'. Dr Restifo concluded that he 'was unable to find any evidence of a morbid psychiatric disorder or of significant impairment with respect to her testamentary capacity or capacity to execute a Power of Attorney'.[51]
[51] TB - 158.
On 26 September 2008 Maria was seen by Dr Nick De Felice, a consultant psychiatrist, at the request of Joe's lawyers in respect of the SAT proceedings. The consultation was assisted by a Sicilian interpreter, but Dr De Felice was able to conduct almost all of the interview with Maria directly in Italian. Dr De Felice wrote a report of the consultation which is dated the same day. In it he recorded what Maria told him about her life and financial affairs. She said she owned the house that she lived in, but 'had no idea of its value'. She said that she had another house in Mount Hawthorn or Scarborough, which was rented out. She said that she also owned an office, the value of which she was uncertain. She thought the office was rented but did not know. She said that it was enough for her that she had sufficient money to pay her bills and eat and did not need any more. She was aware she had debts but could not say what these were or whether they were secured against her properties. She said she left all financial dealings to her sons, who she said got along well. Asked about her will, Maria said that 'she was leaving her properties to her two sons, equally, as her husband had said'.[52]
[52] TB - 178.
Dr De Felice undertook formal testing and noted that Maria gave the wrong day of the week, could not tell him the date and was unable to provide the month or year. She mistakenly believed the season was autumn. She was unable to provide her address, other than to say she lived in City Beach. There were other matters noted in the report indicating memory failings. Dr De Felice concluded that Maria 'has dementia, probably of a moderate severity' and that 'it is most likely that Alzheimer's disease is the underlying cause'. He stated that in his opinion cognitive problems arising from Maria's dementia meant that she was 'unable to make reasonable judgments in relation to any part of the administration of her estate. That is, she is incapable of managing her affairs. Because of this, because she is unable to recall details of any previous financial arrangements that might be pertinent, and because she is open to undue influence, in my opinion she lacks testamentary capacity.'[53]
[53] TB - 178.
On 2 October 2008 Maria was seen by Dr Clarnette, again at the request of Joe's lawyers for the purposes of the SAT proceedings. Dr Clarnette wrote a letter dated 4 October 2008 setting out his observations and opinion. Maria said that she lived in City Beach but could not provide the street address. She confirmed that her husband was deceased but could not say what year he died. She said that she owned her home and believed it was worth between one and two million dollars. She referred to another property in Joondalup, which she said was worth less than her home. She said that her sons made all decisions for her. She was asked about the transfer of a half interest in her home to Gino and responded by saying that she had given half to Gino and half to Joe. She denied any knowledge of the allegation of forgery in the Supreme Court proceedings. She had no recollection of a two million dollar facility secured over her home but said that if Gino did this she must have told him to do it. She did not know if she had a bank account or whether she had any money.[54]
[54] TB - 180.
Dr Clarnette undertook cognitive testing using the Rowland Universal Dementia Assessment Scale. This is a brief cognitive assessment developed for use in non-English speaking subjects and has more cultural sensitivity than other assessment tools. Maria scored 12 out of a possible 30 and a number of specific deficits in orientation, judgment and memory were noted. She performed better on a semantic fluency test. Dr Clarnette concluded that Maria was unable to accurately convey information about her financial affairs, 'displayed manifest cognitive deficits' and had a presentation that was consistent with Alzheimer's disease. In his view Maria was 'unable by reason of mental disability to make reasonable judgments in relation to the management of her financial affairs. It is likely that she has been unable to make these reasonable judgments for some time.'[55]
[55] TB - 180.
The SAT proceedings were heard from 28 to 30 October 2008. Dr De Felice, Dr Restifo and Dr Clarnette gave evidence that reflected the reports they had prepared. Dr Carbone also gave evidence. He said that Maria had had memory impairment since October 2004 'to varying degrees'. He said that there had been some improvement after being treated for depression but there had 'probably been some deterioration' in the past year. He agreed that Maria had dementia of mild to moderate severity, 'probably towards the moderate end of the spectrum'. He said that he did not disagree with Dr De Felice's view that the dementia was at least moderate. He said that dementia is a fluctuating illness and that anxiety can make the symptoms worse.[56]
[56] TB - 183.
On 7 November 2008 the SAT delivered its decision on the application to appoint an administrator: M [2008] WASAT 262. The tribunal noted that the ability to make reasonable judgments concerning financial affairs is relative to their complexity. The financial affairs at that time were essentially the same as those pertaining at the time of the execution of the March will. The tribunal concluded that Maria had a mental disability, namely dementia, probably of Alzheimer's type, by reason of which she was unable to make reasonable judgments about all of her estate. The Public Trustee was appointed as plenary administrator for Maria and the powers of attorney previously given by Maria were revoked.[57]
[57] TB - 185; TB - 186.
The Public Trustee subsequently commenced proceedings to set aside the transfer of the City Beach property into joint names with Gino on the grounds that Maria lacked the capacity to understand the nature and effect of the transaction. Gino's lawyers requested Mr Benari to swear an affidavit in support of Gino's defence to those proceedings. In that affidavit Mr Benari stated that when he attended Maria's home to take instructions from her in September or October 2007, he had been able to communicate with her, either in English or with the assistance of an interpreter. He stated that Maria told him that she wanted to gift the City Beach property to Gino as she was upset that Nino had gifted all the property in Italy to Joe and that Joe had placed a mortgage over the Waterloo Street property without her knowledge.[58]
[58] TB - 191; TB - 195.
Maria died on 31 December 2014.
The plaintiff's case
Gino claims that Maria knew and approved of the contents of the 2008 Will and had testamentary capacity as at that time.[59]
[59] Statement of Claim filed 1 December 2015 (Statement of Claim) [3] [6].
Gino claims that from at least 5 May 2006, Maria expressed an intention to exclude Joe and leave the whole of her estate to him (Gino), if he survived her. That intention is said to have crystalised as a result of being shown documents evidencing the sale by Scaffidi Holdings Pty Ltd of its interest in a property at 25 Gladstone Street, East Perth. That property had originally been purchased by Maria and Nino. The documents that she was shown indicated that Joe had taken an interest in that property. Gino claims that on being made aware of this transaction, Maria told her grandson, Michael (Gino's son), that she wanted to change her will. A few days later, on 14 May 2007, Maria told Dr Carbone that she intended to change her will to exclude Joe.[60]
[60] Plaintiff's Amended Substituted Reply and Defence to Counterclaim filed 5 February 2015 (Plaintiff's Reply) [2.1(a)].
Gino claims that early the following month, June 2007, he and Michael visited Maria at her home. During that visit, Gino showed Maria documents relating to a loan of $600,000 made to Scaffidi Holdings Pty Ltd which was secured by a mortgage against the Gladstone Street property. The mortgage documents purported to be signed by Maria, but she denied having done so and expressed dissatisfaction with Joe and the financial arrangements in respect of the Gladstone Street property.[61]
[61] Plaintiff's Reply [2.1(e)].
Gino claims that in or about early August 2007, he and Joe were involved in a physical altercation which resulted in each of them striking the other. Gino told Maria about this incident and she later told Michael that she did not want to see the brothers hit each other. Maria also said that she wanted Gino to take her to a lawyer in order to 'fix her will'. When Michael suggested that Joe may be unhappy if she changed her will Maria responded by saying that she could do what she liked with her will. She then said that Joe had not fixed up the problems he had caused but had created more, that Joe had funds he had received from her aunt's estate and had received property in Italy from her husband's estate, that Joe had not visited her or called her in a long time, that she did not want Joe to go to gaol, that Gino had worked with his father for a long time and had not received anything of value and had not done anything wrong like Joe, and that Joe was a shame to the family.[62]
[62] Plaintiff's Reply [2.1(l)-(o)].
Gino claims that in or about October 2007, Maria told her solicitor, Mr Benari, words to the effect that she intended to change her will to remove Joe from it. A will was prepared and an arrangement made for it to be executed at the offices of Mr Benari. On 27 March 2008, prior to executing her will, Mr Benari explained the effect of the will's terms and an interpreter read the will in its entirety to Maria in Italian. Maria then said words to the effect that she understood the effect of the will's terms and that she knew that Joe was excluded as a beneficiary and that all her estate would be gifted to Gino. The will was executed in the presence of Mr Benari and the interpreter.[63]
[63] Plaintiff's Reply [2.1 (p)-(r)].
Gino's case is that, at all material times, Maria knew and understood the property that she owned and that the Scaffidi family owned via the Scaffidi Family Trust. Although she was elderly and spoke only broken English, Gino claims that Maria was of sound, mind, memory and understanding as at 27 March 2008. In support of this, Gino relies on: the assessment by Dr Carbone on 14 May 2007; the letter of Dr McComish of 29 May 2007; the evidence that in October 2007 she gave instructions to her solicitor to revoke her will made in 2002 and make a new will and prepare a new Enduring Power of Attorney; the evidence that on 5 November 2007 she knew and understood the effect of an Enduring Power of Attorney that was prepared by her solicitor and explained to her by him; the evidence that on 27 March 2008 she knew and understood the effect of her will made on that day; and the assessment of Dr Restifo on 30 July 2018.[64]
[64] Plaintiff's Reply [3] - [4].
The defendant's case
Joe claims that at all material times Maria expressed an expectation, understanding or intention that her estate would be divided equally between him and Gino. Further, that upon her death, she intended that the trustee of the Scaffidi Family Trust would be controlled equally by him and Gino. This intention was reflected in wills made in 1993 and 2002.[65]
[65] Further re-amended defence and counterclaim filed 27 January 2022 (Defence and counterclaim) [8.1].
Joe's case is that Maria continued to have the intention that both her sons would benefit equally from her estate. That intention is said to be revealed by her telling Dr Clarnette on 9 August 2007 that her understanding of the nature of a will was that it was 'for the children, I have two sons, to leave property to those after you'. Further, on or about 17 September 2008, Maria informed the SAT during a hearing that her affairs were, and were expected to be, managed equally by both Joe and Gino. On or about 26 September 2008, Maria informed Dr De Felice that her estate was to be divided equally between Gino and Joe. On 3 October 2008, Maria informed Dr Clarnette that she had given half the City Beach property to Gino and half to Joe.[66]
[66] Defence and counterclaim [8.1(5)-(8)].
Joe claims that at all material times after about mid‑2003, Maria suffered from dementia or significant cognitive impairment. From about mid‑2003, if not before, Maria was suffering from problems with her memory. As at 17 June 2003, she had a moderate cognitive impairment. On or about 15 October 2004, she was diagnosed as suffering from dementia. On or about 4 July 2005, she was prescribed medication to treat dementia. On or about 9 August 2007, she was observed to have an altered mental state and was considered not fit to make a will. On or about 26 September 2008, she was again diagnosed with dementia, probably of a moderate severity. On or about 3 October 2008, she was reported as having a presentation that was consistent with Alzheimer's Disease.[67]
[67] Defence and counterclaim [8.3(1)-(7)].
Joe claims that after about mid-2006 Maria was almost entirely dependent on Gino in the management of her day-to-day affairs and her financial and commercial affairs and was therefore susceptible to influence and/or direction from him. From about June 2006 Maria had little contact with Joe but was in almost daily contact with Gino. She was almost entirely dependent on Gino to assist with the paying of her rates, utilities and other bills, attending to the purchasing of groceries and clothes, arranging and attending at medical appointments and any other activities that involved travel or speaking English or financial or commercial matters.[68]
[68] Defence and counterclaim [8.4(1)-(5)].
Joe claims that Gino knew that Maria had cognitive problems and had been prescribed medication for those problems but procured her execution of the 2008 Will, which was contrary to her expectations, understanding and intention.[69]
[69] Defence and counterclaim [8.5].
Joe's case is that as at the time of the execution of the 2008 Will, Maria did not have an understanding of her assets. In particular, she did not know that, due to the registration of the transfer of the City Beach property into joint names with Gino, that property would not form part of the estate to be disposed of under her will. Similarly, she did not know that a purported transfer of the Waterloo Street property into joint names would have the same effect. Further, she did not know the approximate value of either the City Beach property or the Waterloo Street property. She did not know that a Bankwest account in joint names would also not form part of her estate. She did not know the nature or the approximate value of debts owed by the trustee of the Scaffidi Family Trust to her and that would form part of her estate. She did not know the approximate value of the property in Italy that Joe had inherited from Nino, this being the stated reason why Joe was not a beneficiary of that will. She did not know that the one share in Scaffidi Holdings Pty Ltd held on trust for her under Nino's will formed part of the property to be disposed of under her will. Nor did she know that if this share was gifted to Gino that would in effect provide him with control over the family trust.[70]
[70] Defence and counterclaim [8.8].
In essence Joe's case is that Maria did not have testamentary capacity to make the 2008 Will. In the alternative, the terms of that document do not reflect her intention in that no provision is made for Joe and she did not have an understanding of the terms and effect of that will.[71]
[71] Defendant's opening submissions [3].
Relevant legal principles
The will of a deceased person will only be admitted to probate if it is proved that at the time of its execution the testator had testamentary capacity. This is always a question of fact. [72]
[72] Re The Full Board of the Guardianship and Administration Board [2003] WASCA 268; (2003) 27 WAR 475 [52]; Sutton v Saddler (1857) 3 CB (NS) 87; 140 ER 671; Earl of Longford v Purdon (1877) 1 LR Ir 75, 79.
The traditionally accepted test for determining testamentary capacity is that stated by Cockburn CJ in Banks v Goodfellow:[73]
It is essential to the exercise of [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.
[73] Banks v Goodfellow (1870) LR 5 QB 549, 565. See also Easter v Griffiths (1995) 217 ALR 284, 290; Saunders v The Public Trustee [2015] WASCA 203 [159].
The Banks v Goodfellow test has four essential components:
1.That the testator must understand the nature of the act of making a will and its effect.
2.That the testator must understand the nature of the property they are disposing of.
3.That the testator must understand and appreciate the nature of the claims to their property by those who will be excluded by the will.
4.That the testator should have no disorder of the mind that poisons their affections, perverts their sense of what is right or prevents the exercise of their natural faculties.
The Banks v Goodfellow test does not require perfect mental balance and clarity in the testator. The testator's mental power may be reduced below the ordinary standard provided that he or she retain sufficient cognitive ability to understand and appreciate the testamentary act in its different bearings.[74]
[74] Starr v Miller [2021] NSWSC 426 [434].
In Timbury v Coffee,[75]Dixon J cited, with apparent approval, the statement of the test for determining testamentary capacity made by Hood J in In the Will of Wilson:[76]
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...
[75] Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277, 283.
[76] In the Will of Wilson (1897) 23 VLR 197, 199.
The question is whether the testator had the capacity of sound judgment rather than whether he or she in fact made the judgment about the disposition of his or her estate soundly and for reasons which might appear to be to the observer to be good.[77] There is a critical distinction between harsh and unreasonable judgment, which is nevertheless the product of a sound mind, on the one hand, and a judgment so affected by unreason and prejudice indicating a lack of mental capacity to comprehend and appreciate the claims of a person who may deserve benefit, on the other. [78]
[77] Saunders v The Public Trustee [199]; Starr v Miller [422].
[78] Saunders v The Public Trustee [66].
The relevant time at which the existence of capacity is necessary is the time when the testator made the will, not years or decades earlier.[79] Evidence of earlier or later events will only be relevant to the extent that they are capable of supporting inferences as to the capacity of the testator at the relevant time.
[79] Saunders v The Public Trustee [199].
The question whether a person had testamentary capacity at the time of making a will is a legal rather than a medical question.[80] Accordingly, the question must be decided by the court, not experts.[81] Nonetheless the determination of the legal question can, and often will, be greatly assisted by the evidence of medical experts.
[80] Saunders v The Public Trustee [200].
[81] Romascu v Manolache [2011] NSWSC 1362 [200].
A conclusion that a person had a condition which may fit the diagnostic criteria used by psychiatrists to identify a mental disorder may inform consideration of the legal question whether the testator had testamentary capacity, but it does not itself deny testamentary capacity.[82] The question turns on the extent of the testator's capacity rather than the reason for any lack of capacity.[83]
[82] Banks v Goodfellow [561]; Saunders v The Public Trustee [200].
[83] Saunders v The Public Trustee [201].
There will be many persons who may meet the diagnostic criteria for a currently recognised psychiatric condition but who retain testamentary capacity.[84] The critical questions are always whether the testator understood the nature and effect of the will, whether the testator understood the nature of the property they were disposing of, and whether they understand the claims of those who are excluded from the will, not whether the testator meets the current criteria which a psychiatrist may employ to diagnose a mental disorder.[85]
[84] Saunders v The Public Trustee [202].
[85] Saunders v The Public Trustee [202].
As to the requirement that the testator understand the nature of what he or she is doing and its effects, it is not necessary to establish that the testator was capable of understanding all the clauses of the will. An appreciation of the legal effect of every clause in a will is not necessary. However, it does need to be shown that the testator was capable of understanding the nature of the act of making a will and of understanding the 'practical effect of the central clauses' of the will.[86]
[86] Nicholson v Knaggs [2009] VSC 64, [97] (Vickery J); Brown v Wade [2010] WASC 367, [95] (Simmonds J).
As to the onus and standard of proof, the party propounding the will bears the onus of satisfying the court on the balance of probabilities that the deceased had testamentary capacity at the time that the will was made. [87]
[87] Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, 570; Tobin v Ezekiel [2021] NSWCA 285; (2021) 83 NSWLR 757, 770-771.
If the propounder of a will proves that the will is regular on its face and has been duly executed (that is, signed by the testator and two witnesses) a presumption arises that the testator had testamentary capacity.[88] In these circumstances the evidentiary burden shifts to the party challenging the will to point to circumstances that raise a suspicion that the testator did not have testamentary capacity.[89] If suspicious circumstances are established the onus is put back on the propounder of the will to satisfy the court that the testator had testamentary capacity.[90] The position was summarised by Gleeson CJ in Easter v Griffiths in the following terms (citation omitted):[91]
Where the evidence in a suit for probate raises a doubt as to testamentary capacity, there rests upon the plaintiff the burden of satisfying the conscience of the court that the testatrix had such capacity at the relevant time. If, following a vigilant examination of the whole of the evidence, the doubt is felt to be substantial enough to preclude a belief that the testatrix was of sound mind, memory and understanding at the time of execution of the will, probate will not be granted.
[88] Fisher v Kay [2010] WASC 160 [83]; Veall v Veall [2015] VSCA 60 [168].
[89] Veall v Veall [168].
[90] Veall v Veall [168].
[91] Easter v Griffiths, 289 (cited with approval in Saunders v The Public Trustee [158]).
If testamentary capacity is proved, due execution of the will also raises a presumption that the testator knew and approved of the contents of that will at the time of execution. This presumption can be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the true intentions of the testator. Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved the contents of the will.[92]
[92] Tobin v Ezekiel 771.
Circumstances which may create a well-founded suspicion or doubt as to whether the will expresses the true intentions of the testator include:
1.A radical change in long adhered-to testamentary dispositions of the testator.[93]
2.The complexity of the will or the estate being disposed of.[94]
3.The mental acuity or sophistication of the testator (or lack thereof).[95]
4.The exclusion of persons naturally having a claim on the testator.[96]
5.Whether there has been an opportunity for reflection and independent advice regarding the terms of the will.[97]
[93] Veall v Veall [175], [199].
[94] Tobin v Ezekiel 771 [47].
[95] Tobin v Ezekiel 771 [47].
[96] Tobin v Ezekiel 771 [47].
[97] Tobin v Ezekiel 771 [47].
The courts have recognised that where a will has been professionally prepared on instructions and then explained by an independent and experienced solicitor to the maker of the will, it will be markedly more difficult to challenge its validity on the ground of lack of testamentary capacity (as well as on the ground of want of knowledge and approval).[98] However, there have been decisions in which courts have held that suspicious circumstances have not been dispelled notwithstanding that a will has been read over to a testator by a solicitor before its execution.[99]
[98] Veall v Veall [184].
[99] Veall v Veall [186].
Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In such circumstances it has been said that such a person has the onus of showing the righteousness of the transaction by affirmatively establishing that the testator knew the contents of the will and appreciated the effect of what they were doing, so it can be said that the will contains the real intention and reflects the true will of the testator.[100]
[100] Tobin v Ezekiel 771 [47].
Plaintiff's evidence
Prior to the trial it was determined that the witnesses would give oral evidence regarding any conversations with or involving Maria, but otherwise their witness statements would be received as their evidence in chief. What follows is a summary of the relevant witness statement (or statements) and the oral evidence given by the witness.
Eugenio Scaffidi - Evidence in Chief
Gino has one daughter, Maree and one son, Michael. Joe has two sons: Anthony and David. Gino qualified as a builder in 1976. He continued to work as a builder as at the time of the trial. [101]
[101] Exhibit P1 [1] - [4], [10].
Maria and Nino built their first home in Waterloo Street, Joondanna in around 1955. They lived there until 1986. They continued to rent the Waterloo Street Property to tenants, and it was Maria's main source of income after Nino's death in 2004. Gino maintained and managed the Waterloo Street property on behalf of Maria from mid-2004 until late 2012: he carried out general building maintenance and collected rent from the tenants and delivered it to Maria.[102]
[102] Exhibit P1 [11] - [21].
In 1986, the family moved to the City Beach property. The City Beach property was built by the Scaffidi family's construction business.[103]
[103] Exhibit P1 [17] - [18].
On 2 May 1977, the Trust was established. The Trust was used to develop real estate and to run the family construction business. The original trustee was Scaffidi Nominees. By Deed dated 16 August 1995, Scaffidi Holdings replaced Scaffidi Nominees as the trustee. By Deed dated 18 February 2009, Scaffidi Holdings was replaced by Montevento as the trustee. Gino worked in the Trust's construction business from 1977 until 1996, when he decided that he 'could no longer work with Joe'.[104]
[104] Exhibit P1 [12] - [15].
Nino was the appointor of the Trust. Upon his death on 29 August 2004 Maria become the appointor of the Trust. By Deed of Change of Appointor dated 30 June 2006, Maria appointed Gino as the appointor of the Trust.[105]
[105] Exhibit P1 [35].
Gino remained a director and shareholder of Scaffidi Holdings, while Joe ran the day-to-day affairs of both Scaffidi Holdings and the Trust. Joe and Gino remain directors of Scaffidi Holdings. Maria and Nino were previous directors of Scaffidi Holdings.[106]
[106] Exhibit P1 [22] - [26].
Gino currently holds two shares in Scaffidi Holdings. Joe holds one share in his own right and one share in his capacity as the executor of Nino's estate. Nino's will dated 16 August 2002 bequeathed his share in Scaffidi Holdings to Maria (as part of his residuary estate). This share was not transferred to Maria during her life.[107] Scaffidi Holdings has no present function because it was replaced by Montevento as trustee in 2009.[108]
[107] Exhibit P1 [28] - [36].
[108] Exhibit P1 [36].
In late 2003, Nino was diagnosed with cancer. Gino recalls that Maria appeared to be in disbelief that Nino had cancer and she thought that 'everything was going to be alright' after Nino's operation and treatment.[109] On 26 August 2004, three days before Nino died, Gino and his wife, Lina, went to visit Nino in hospital. Nino asked Gino and Lina to promise to look after Maria's health and financial affairs until the day she passed away. Both Gino and Lina said that they would.[110]
[109] Exhibit P1 [37] - [38].
[110] Exhibit P1 [39] - [43].
Nino died on 29 August 2004. Maria took it 'very badly' because Maria and Nino were very close and she had also lost her sister a few days earlier. Maria was sad for a long time after Nino's death. Gino knew this because he would visit Maria and talk to her every day, and she often spoke about Nino and their life together.[111]
[111] Exhibit P1 [44] - [46].
In March 2005, Maria slipped and fractured her hip. She was admitted to Sir Charles Gardiner Hospital for surgery. She was then transferred to Glengarry Hospital for rehabilitation. While Maria was at Glengarry Hospital, a staff member asked Gino if Maria had a power of attorney. This prompted Gino to approach Joe the next day and suggest that the brothers obtain a joint Power of Attorney from Maria. Joe agreed. Gino contacted a lawyer, Mr Benari. Mr Benari advised Gino that it was best for Gino and Joe to obtain an EPA from Maria.[112]
[112] Exhibit P1 [47] - [51].
In late May 2005, Mr Benari met Joe and Gino at Glengarry Hospital. Mr Benari's secretary, Ms Pullella, interpreted for Maria at this meeting. Ms Pullella spoke Italian to Maria and explained what the EPA was. Maria appeared to understand what the interpreter said to her. A joint EPA was signed and witnessed, appointing Joe and Gino as joint attorneys.[113]
[113] Exhibit P1 [52] - [54].
There was a problem with the EPA when it was lodged with the Registrar of Titles. A new EPA had to be drawn up and executed in July 2005. On this occasion Mr Benari and another lawyer, Mr Metaxas, met with Maria, Joe and Gino at the City Beach property. It had been proposed that Gino or Joe would interpret for Maria, but Mr Metaxas was uncomfortable with that. Tindaro Martella, the brother of Sam Martella (the lawyer who prepared the 2002 Will and acted for Nino's estate), acted as interpreter. Maria acknowledged that she understood and signed the document. Mr Martella also signed it, noting his role as interpreter.[114]
[114] TB - 025; TB - 026; TB - 027; Exhibit P1 [56] - [59].
Sometime between 12 December 2005 and 31 January 2006, the Waterloo Street property was transferred into Maria's sole name. In mid-April 2006, a letter addressed to Maria from a company called Interstar Wholesale Finance Pty Ltd (Interstar) arrived. Gino had not heard of Interstar before. When he contacted them, they informed him that they were a loan provider and that they would need authority from the loan holder (Maria) before providing Gino with any information. Michael and Gino looked at the letter together with Maria. Maria said that she had never heard of Interstar before.[115]
[115] Exhibit P1 [73] - [76].
On 17 April 2006, Gino faxed a copy of a signed authorisation from Maria to Interstar. When he received the relevant documents, Gino saw that a loan had been obtained against the security of the Waterloo Street property, and it had increased to $480,000. Gino showed these documents to Maria. Maria was 'pretty angry'. She said that she did not sign the documents and had never seen them. She said that she did not receive any of the money that was raised by the loan.[116]
[116] Exhibit P1 [77] - [80], [82].
On 5 May 2006, Gino went to the Department of Land Administration to check property transactions. While there, he discovered that a 50% interest in a property at 25 Gladstone Street, East Perth, owned by the Trust, had been sold for $700,000 to a company called Abvez Pty Ltd. The offer and acceptance for the sale showed Joe's signature. On the transfer of land document Joe's signature appeared next to Maria's. Gino showed these documents to Maria, who said that she had not seen any of them until Gino showed them to her.[117]
[117] Exhibit P1 [88] - [89], [91].
While Nino was alive, Joe had used the City Beach property as security for an overdraft in the amount of $525,000. Gino does not question that this transaction was authorised by his parents.[118] In late May 2007, letters from Bendigo Bank, addressed to Maria and Gino, arrived at the City Beach property. The letters set out overdraft facilities that Joe had taken out using the City Beach property as security.[119]
[118] Exhibit P1 [108].
[119] TB - 069; TB - 070; TB -073; TB - 074; TB - 078.
Around this time, Gino, together with his son Michael, went to see Maria to explain refinancing to her. In the course of that visit, Maria was 'pretty upset'. She stated that she wanted all of the debts taken off her property, and but when she spoke to Joe about it he said he would not 'take the debts off'.[120]
[120] ts 184.
Maria was upset that these borrowings were secured against her property and that Bendigo Bank was 'threatening to call up the debts'. She was waving her hands 'up and down in the air' and said, (in Italian) 'what the fuck is my son doing, borrowing all this money on my house?'[121] She slapped her hands on the table and said (again in Italian) that she 'won't forget this' and that she did not want Joe to have anything further to do with her affairs.[122]
[121] Unless otherwise specified, all direct quotes from Maria were made in Italian and have been translated by Gino.
[122] ts 185.
In July 2007, Gino contacted Joe about the Bendigo Bank letters. Maria was upset because she had also found out about the transaction relating to the Gladstone Street property. Gino said that the signature on a mortgage document relating to that property was not Maria's. According to Gino, Maria 'knew it was a forged document'. Maria said, (in Italian) 'why is Joe doing this to me?'[123]
[123] Exhibit P1, 20; ts 186.
In August 2007, Gino met with Joe at Joe's office. Gino raised issues about Joe's conduct and said that all Maria wanted was for Joe to 'put things right with all the borrowing, just as he had told her he would'. The two brothers had an argument, after which Joe slapped Gino on the side of his head.[124]
[124] Exhibit P1 [135] - [136].
The following day, Gino went to see Maria at the City Beach property. She noticed a bruise on Gino's face and a scratch on the side of his nose. Gino told Maria that Joe had hit him. Maria was 'pretty upset' that Joe had hit him.[125]
[125] Exhibit P1 [137].
By late 2007, the Bendigo Bank facilities and a Bankwest loan were refinanced, leaving the City Beach property unencumbered. In August 2007, Gino went to the City Beach property to tell Maria that all the debt secured against the City Beach property had been removed, and the debt was instead secured over a property that the Trust had in Gladstone Street in East Perth. [126]
[126] Exhibit P1 [138].
On this occasion, Maria stated that she wanted to change her will because she was not happy with what Joe was doing. Maria was very unhappy that loans had been secured against her property. She said she 'would have closed her legs instead of letting Joe come into the world.' She squeezed her legs together as she said this. While Gino was trying to talk to Maria, she was very upset and 'kept cutting in all the time'. She asked, 'why is Joe doing this to me'. She said that she did not want Joe to have anything to do with her financial affairs.[127]
[127] ts 187 - 188.
In May 2007, Gino arranged for Maria to see Dr Angelo Carbone. Dr Carbone was Maria's general practitioner from 2004 until her death in 2014. At this appointment, Maria told Dr Carbone that she wanted to change her will and that she wanted to go and see Sam Martella, who 'originally did the will when [Nino] was here.' Gino asked that Dr Carbone to address any letter to Mr Martella.[128]
[128] Exhibit P1 [115] - [118].
On 8 August 2007, Maria saw Dr Clarnette, on referral from Dr Carbone. Gino and his wife Lina took Maria to the appointment at the Hollywood Medical Centre in Nedlands. Gino explained to Maria that Dr Clarnette did not speak Italian but that there would be an interpreter present on the telephone. When Maria came out of the appointment, she 'looked really angry'. She said that the interpreter asked her questions about 'what she had and all that they were worth'. Maria did not want to talk to the interpreter or Dr Clarnette about any of her personal business.[129]
[129] ts 185 - 186.
Later in 2007, Gino called Sam Martella and spoke to him about Maria wanting to make a new will. Mr Martella said that he could not act on Maria's behalf in preparing a new will because it would be a conflict of interest as he was acting for Joe in his capacity as the executor of Nino's estate.[130]
[130] ts 187 - 188.
In October 2007, Gino contacted Mr Benari to see if he could assist Maria with a new will. This was after Maria had been to see Dr Clarnette. Gino said that Maria remembered Mr Benari as the lawyer that prepared the EPA and that he had an Italian-speaking person working for him who could interpret. Gino arranged for Mr Benari to meet Maria at the City Beach property, with a view to obtaining instructions about her will and other matters.[131]
[131] Exhibit P1 [151] - [152].
Mr Benari attended the City Beach property in October 2007. The people present at the time were Mr Benari, Maria, and Gino. Maria told Mr Benari that she wanted to execute another EPA with Gino as the sole attorney. She also told Mr Benari that she wanted to put the City Beach property into joint names with Gino. She also told Mr Benari that Joe had been signing bank documents without her knowledge and that she no longer trusted him and did not want him to have anything to do with her financial affairs.[132]
[132] Exhibit P1 [153]; ts 188.
On 5 November 2007, Gino drove Maria to Mr Benari's office in Brisbane Street, Perth. The purpose of this meeting was to sign a new EPA and a transfer document putting the City Beach property into joint names. Gino asked Maria whether she understood that, if she signed the EPA, he would be able to sell all of her properties. Maria said yes, and that Gino would 'only do it for the better of her'.[133]
[133] ts 188.
At the meeting with Mr Benari, Mr Metaxas was present as well as an interpreter, Luciana Russo. Mr Benari asked Gino to leave the room. He was then called back in for the signing of a transfer document and the acceptance by him of the EPA.[134]
[134] Exhibit P1 [160].
In the car on the way home, Maria told Gino that she wanted to leave the City Beach property to him because Nino had left property in Italy to Joe, and because she was not sure whether Joe was going to borrow money against the Waterloo Street property without her knowledge.[135]
[135] ts 188 - 189.
On 26 March 2008, Mr Benari sent Gino a facsimile of Maria's draft new will. Gino said that the draft was sent to him because Maria did not have a facsimile machine. When Gino received the draft, he went to the City Beach property to show Maria. Gino read the will to Maria in English, and then spoke to her in Sicilian to tell her what was in the will. He asked Maria whether the will was written in exactly the way she wanted it to be written. Maria said yes.[136]
[136] Exhibit P1 [167] - [171]; ts 189.
On 31 October 2007, Gino sent a letter to Mr Cooper about engaging a handwriting expert. Mr Cooper had acted for Maria in a Supreme Court action brought by Interstar regarding the loan over Waterloo Street. Gino told Maria that her signature needed to be tested so that the forensic analysis was available for other 'legal court cases that we were going to have'.[137]
[137] Exhibit P1 [172]; ts 189.
In late November 2007, a signature expert was engaged by Cooper Legal to give an opinion as to whether the signature on the Interstar documents was that of Maria. As part of that process, Gino obtained 20 samples of Maria's signatures: five signature samples per day on five pages (one signature per page). Gino watched her provide these sample signatures. Maria asked Gino why she was signing so many signatures and Gino replied, 'they want to see if your signature on them mortgage documents is - is like yours or not like yours'. In late December 2007, Gino provided the sample signatures and some other documents to Cooper Legal.[138]
[138] Exhibit P1 [174] - [178]; ts 189 - 190.
On 14 January 2008, Cooper Legal sent Gino a letter stating that it was likely that the signatures on the mortgage document were forgeries. Gino showed the letter to Maria and told her that the signatures on those documents were not hers. Maria replied 'I told you so, that - I didn't sign them. I didn't sign those documents.'[139]
[139] Exhibit P1 [179] - [180]; ts 190.
After Nino died, Gino asked Maria to come and live with him and his family. Maria did not want to, even though Gino and Maria were close: Maria 'reckoned her house was nice', she had plenty of space and she could do whatever she wanted to do. Maria would, however, call Gino two or three times a day on his home or mobile telephone to talk or to ask him to pick up groceries for her.[140]
[140] ts 190.
Gino would drive Maria when she needed to go somewhere. They would go out for lunch at least once a week. Every second weekend Gino would pick Maria up to come to his home for lunch or dinner with his children. Gino and his wife took Maria to see Dr Carbone on a regular basis, at least once per month, to have her blood pressure checked and medical prescriptions refilled. They would also take her to see her regular hairdresser in Mt Hawthorn.[141]
[141] Exhibit P1 [189] - [194].
Gino said that Maria remained independent until her death. She continued to wash her own clothes and prepare her own meals until the day before she died. Gino and his wife would do all the mopping and vacuuming at her house as she had limited mobility following her hip operation in 2005. She was able to bathe herself, make her own bed and dress herself. She continued to bake her own bread at least once a week and make tomato sauce with the family once a year.[142]
[142] Exhibit P1 [190] - [194].
Gino said that Maria would refer to her ownership of the City Beach property and the Waterloo Street property. She said that she wanted to knock down the old Waterloo Street house to build five units, one for each of her grandchildren and one for herself. According to Gino, she 'had a very good idea' of what other properties the family owned.[143]
[143] ts 190 - 191.
On 3 October 2008, Gino went to Maria's house. Maria told him that Joe had visited and told her he was going to take her to Fremantle for fish and chips, but that he actually took her to a doctor. She thought she was going to see a knee doctor, because Gino used to take her to see a knee specialist in Fremantle. Instead, Joe had taken her to a 'head doctor', who 'was asking her all these questions'.[144]
Eugenio Scaffidi - Cross-examination
[144] ts 191 - 192.
In cross-examination, it was put to Gino that the reason why he agreed to look after Maria's financial affairs (after the discussion with Nino before his death) was because she had little knowledge of financial affairs. He accepted that Nino had managed Maria's financial affairs while he was alive and that Maria did not manage her own financial affairs. He agreed that Maria had little knowledge of these things but 'she knew what she had and what she didn't have'.[145]
[145] ts 193 - 194.
Gino accepted that he or his wife would usually go to medical appointments with Maria.[146]
[146] ts 195.
Gino was shown a pharmacy receipt for purchase of Ebixa - a drug prescribed by Dr Carbone - and three Webster Paks.[147] He said that he had the impression that Dr Carbone had prescribed Ebixa to treat depression, not dementia. He said that Maria had been depressed after Nino's death. When asked if Dr Carbone had told Gino that he had diagnosed Maria with dementia, Gino said that Dr Carbone had told him that he thought Maria had had dementia 'at the beginning, when I brought her there the first time, and then after that, I think he realised that she didn't have dementia'.[148] He said that Dr Carbone told him that Maria might have dementia and then later on, in another consultation, he said that she did not have dementia.[149]
[147] TB - 227; ts 201.
[148] ts 202.
[149] ts 200 - 202.
Gino was shown a document, prepared by Mr Cooper, which stated that '[Maria] does not read or write, nor write nor speak the English language. [Maria] is elderly and/or [Maria] has no commercial background or commercial experience'. He did not agree that Maria did not write nor speak the English language; he said that she wrote a little bit and spoke a little bit of English and could make herself understood. He agreed that she was elderly and had no commercial background or experience.[150]
[150] ts 292.
Gino agreed that he had known Dr Carbone for 20 or 30 years - 'a long time'. Dr Carbone was also Gino's general practitioner, but Gino cannot recall how long Dr Carbone had been his GP. Dr Carbone became Maria's GP in 2004, after Nino passed away.[151]
[151] ts 200 - 202.
Gino said that in 2004 Maria was 'a little bit forgetful; but she 'didn't forget what she was doing or anything like that'. He said that Maria did not forget his name or the names of her family members, but she would sometimes forget strangers' names. He did not recall attending an appointment in October 2004 where Dr Carbone diagnosed her with dementia.[152]
[152] ts 201 - 202.
Gino remembered that Dr McComish was the specialist to whom Maria was referred by Dr Carbone. The purpose of the appointment with Dr McComish was to 'check if [Maria] was able to do a will'. Gino made the appointment with Dr McComish and accompanied Maria. He recalls Dr McComish physically examining Maria but does not recall any questions that Dr McComish asked Maria.[153]
[153] ts 213 - 214.
Gino also remembered taking Maria to see Dr Clarnette at his consulting rooms in the Hollywood Medical Centre. He said that Dr Carbone referred Maria to Dr Clarnette to 'see if she could write a will'. He could not recall exactly what Dr Clarnette said to him afterwards, although he did recall that Dr Clarnette said that 'Maria has to brush up on... what she had in her assets and what she didn't have in her assets'. He did not recall the precise words that Dr Clarnette used.[154]
[154] ts 215 - 217.
Gino did not take Maria to see Dr Clarnette again, nor did he take her to see any other specialist to determine whether she was capable of making a will. Gino said that this was because Maria did not want to see Dr Clarnette again because he did not have an interpreter present, and she complained about having an interpreter on the telephone. He did not think he asked Dr Carbone about any other specialist who could speak Italian. Gino was asked why, if it was thought necessary for Maria to see a specialist to confirm whether she had the capacity to make a will this was not done. He said he 'just didn't think about it at the time'.[155]
[155] ts 215 - 219.
Gino recalled being with Maria when she attended an appointment with Dr Carbone at which she handed him a handwritten note. The note was in Italian and stated that she did not wish Dr Carbone to provide information to Joe. Dr Carbone had told Gino that Joe had requested Maria's medical records. Gino told Maria this, and she 'got really upset about it'. Gino said that he did not suggest that Maria write the note, and that Maria had written it and brought it to the appointment of her own volition.[156]
[156] An assessment with the Aged Care Assessment Team.
Subsequently, Maria was referred to Dr Restifo. Gino recalled that Dr Restifo is a psychiatrist. Gino accompanied Maria to the appointment but cannot recall when the appointment was. Maria was told that she was going to see a psychiatrist and Gino says that she knew the purpose of the visit. Gino was shown a document with the heading 'Financial Position for Maria Scaffidi' that was provided to Dr Restifo at the appointment.[157] Gino said he prepared the document and his wife typed it out. He agreed that there was no reference in that document to the City Beach property being held in joint names, even though that change had occurred by that time. He conceded that there was also no reference in the document to the Bankwest term deposit account, to the share in Scaffidi Holdings beneficially owned by Maria or to any cash or other personal effects that Maria owned.[158]
[157] TB - 164; ts 218.
[158] ts 219 - 221.
Gino said that he thought he was present in the room throughout Maria's appointment with Dr Restifo. At the commencement of the appointment, he had a conversation with Dr Restifo, in which Dr Restifo asked him about a number of background matters. He told Dr Restifo about the family background, and 'might have' mentioned that there were financial and legal issues. He also told Dr Restifo that Maria had been born and raised in Italy, that her schooling was curtailed after two years because of health and social factors, that she had functioned very well in life and remained independent in her daily activities but that she got easily flustered when involved in formal legal processes.[159]
[159] ts 220 - 221.
Gino could not recall whether or not he told Dr Restifo that Maria had originally executed an EPA in favour of him and Joe, that Maria had revoked the joint EPA and had made a new one in Gino's favour only or that Maria had made a new will. He could not recall whether or not he told Dr Restifo that Maria had been diagnosed with dementia, that Maria had been prescribed and had been taking Ebixa, that Maria had been diagnosed with depression, or that Maria had been prescribed and had been taking Avanza. Gino said that he could not recall what Dr Restifo and Maria discussed, although he was in the room when the appointment took place.[160]
[160] ts 221 - 222.
In relation to Mr Cooper, Gino conceded that it is 'possible' that at one stage Mr Cooper was his lawyer only but later he became Maria's lawyer too. He said he knew Mr Benari because Mr Benari went to school with Joe. Mr Benari had also acted for Scaffidi Holdings and for Gino in relation to two motor vehicle accident claims. He could not recall whether this was before May 2007. In relation to the 2007 meeting between Maria and Mr Benari at Maria's house, Gino agreed that he had suggested Mr Benari to Maria and arranged for the meeting to take place. However, he denied giving instructions to Mr Benari about what needed to happen.[161]
[161] ts 224 - 226.
Dr De Felice noted that Dr Restifo had not commented on the value of the property in Italy, which Maria had considered as sufficient to exclude Joe, nor about what Maria intended for the Joondanna property, nor about any debts as later identified by Dr Clarnette. He was not aware if Dr Restifo considered whether Mrs Scaffidi was open to undue influence.[389]
[389] Exhibit D8, 9.
Dr De Felice noted that Dr Carbone did not indicate how he tested Maria's abstract thinking when he concluded that her abstract thinking was appropriate (in 14 May 2007). Further, Dr De Felice was not sure in all circumstances whether it was Maria who gave Dr Carbone the information on which he relied. He further noted that there were some cognitive deficits observed in the assessments of Dr Carbone, and in fact Dr Carbone made a diagnosis of dementia.[390]
[390] Exhibit D8, 9.
Dr De Felice said that, based on Dr Genovese's 2003 assessment, it is likely that Maria had some cognitive deficits, if not dementia, from 2003. It is very difficult to be precise about when such cognitive deficits might have affected Maria's capacity to make various appropriate judgments. Given the usual progress of dementia of the Alzheimer type, this incapacity would have been for at least many months if not a couple of years before Dr De Felice saw Maria in September 2008: it would not have been present for merely weeks or just a few months.[391]
Dr Nick De Felice - Cross-examination
[391] Exhibit D8, 10.
Dr De Felice said that he spent one hour and 45 minutes with Maria on 26 September 2008. Joe was in attendance for the final 30 minutes. He accepted that that consultation was directed to the question of whether Maria needed an administrator, not the question of whether or not Maria had testamentary capacity. However, he said that had he been assessing Maria for testamentary capacity he would not have asked anything different.[392]
[392] ts 517.
Dr De Felice accepted that his second report, dated 2 April 2018, expressed a view as to an interview he had conducted with Maria approximately 10 years earlier. He said that because he had already turned his mind to Maria's testamentary capacity at the 2008 appointment it was not difficult for him to reach a confident assessment about testamentary capacity in his 2018 report. However, he accepted that if he had specifically been asked to assess Maria's testamentary capacity in 2008, he would have expected to be provided with more information. Relevant information for these purposes might include what assets Maria actually owned, whether there were any complications relevant to the estate and a copy of the will so that he could understand what dispositions Maria had made. He accepted that he was not in a position to carry out a comprehensive assessment knowing all the facts and assumptions that had subsequently been put to him but said he did carry out an assessment of her testamentary capacity insofar as the information he had available to him allowed.[393]
[393] ts 518.
Dr De Felice accepted that a diagnosis of dementia does not preclude a person from having testamentary capacity. However, over time, it will come to affect a person's capacity.[394]
[394] ts 520.
Dr De Felice accepted that Maria's reticence with respect to the discord in her family could be attributed to her Sicilian cultural background and an intense wish to maintain family privacy. However, he did not think that this reticence extended to her financial affairs as Maria was not coy about owning a second house. He accepted that Maria misleading him about the family discord indicated some degree of cognitive capacity. However, the processing of an emotion like embarrassment is a 'pretty basic thing' and it does not take a lot of cognitive capacity to decide not to talk about a particular topic with someone. Other things in the interview led him to think that it was mainly her cognitive capacity that was impaired: for example, Maria repeated on a number of occasions that Nino had built police stations, and patients with dementia forget that they have already told their interviewer such information.[395]
[395] ts 522 - 524.
Dr De Felice accepted that Maria could well have had the cognitive capacity to have an emotional response to disinherit Joe. However, the cognitive ability to weigh that up is something that requires 'quite a bit' of cognitive capacity. He suggested that Maria did not have that cognitive capacity because she had low score on the MMSE and had moderately severe dementia.[396]
[396] ts 537.
Dr De Felice was shown the letter that Maria wrote to Dr Carbone, dated 9 April 2008, asking him not to provide information to Joe or to Joe's lawyer.[397] He accepted that Maria writing the letter, remembering to take it with her to the consultation and remembering to give it to Dr Carbone was indicative of some cognitive capacity on her part. However, he said that this does not confirm anything about her testamentary capacity: it just says that Maria had some capacity to express herself.[398]
[397] TB - 143.
[398] ts 540 - 541.
Dr De Felice accepted that the result of the MMSE may vary depending on who administers it and on the cultural and educational background of the person being tested.[399]
[399] ts 546.
In re-examination Dr De Felice said that the decision of Maria to disinherit one of her sons was complex from a cognitive point of view, involving the capacity to interpret information and weigh it up, and the ability to put things into perspective. He said that it is probable that Maria did not have sufficient cognitive function to undertake that task.[400]
[400] ts 547.
Findings
Maria was experiencing cognitive deficits from at least 2003. At this time family members had raised concerns about memory lapses and an MMSE was recommended. That MMSE was undertaken on 17 June 2003 by Dr Genovese and resulted in a score of 18 out of 30, indicating moderate cognitive impairment. That result is, in my view, significant because the examination was undertaken in Italian. That fact removes the possibility that the examination was unreliable due to language difficulties. It is also unlikely that depression was a factor, because although Maria had been diagnosed with depression before this time, she was being treated with medication and it was noted that that condition had improved as at the date of the MMSE.
After Nino died in 2004 Maria started seeing Dr Carbone. On 15 October 2004 Dr Carbone undertook an MMSE and concluded that Maria had dementia. That conclusion was supported by observations that she did not know the date, her date of birth, her address or her age. Although Dr Carbone has subsequently resiled from the opinion that Maria had dementia, in my view his impression at that time was likely correct. It accords with the 2003 MMSE result and with later observations and assessments. Furthermore, Dr Carbone prescribed Ebixa, a medication to assist with memory, on the basis of the dementia diagnosis and continued to prescribe that medication for several years. It is unlikely he would have done so unless he believed that there was real possibility that Maria was suffering from dementia. I also note that discharge notes from Sir Charles Gairdner Hospital of 6 May 2005 also state that Maria's dementia had been an active condition or problem during her admission there.
Up until 2006 Anthony lived with Maria. He was in a good position to observe her daily functioning. He impressed me as an honest witness who did not seek to exaggerate or embellish his evidence. He was able to give specific examples of behaviour that struck him as odd. Of course, a person may make mistakes of the type referred to by Anthony without having cognitive impairment, but this is evidence that is at least consistent with Maria having dementia.
Gino and Michael also gave evidence of Maria's functioning on a daily basis. The ability to dress, wash, cook and make a bed are tasks of a different order to the ability to make a will. In any event, it was accepted by Gino that he assisted Maria with tasks involving her financial affairs and that she had only a basic understanding of English. As to Gino's belief that Maria had capacity, this is based on his observations of her being able to live independently until her death and his interactions with her. These observations, whilst not irrelevant, are of limited assistance in determining the question of capacity. Furthermore, Gino cannot be considered independent and any conclusions that he drew from his observations must be viewed with a degree of caution.
Gino relies on the evidence of Maria's response when shown financial documents as providing a rational explanation of why she would want to disinherit Joe. According to Gino, in 2007 he became aware of financial transactions by which Joe had raised loan funds on the security of property belonging to Maria. He also claims that these transactions were done without the knowledge or approval of Maria. I accept the evidence of Gino and Michael that Maria expressed surprise and anger when told of the financial transactions relating to properties owned by her and the Trust. However, this evidence is relevant only in assessing her state of mind.[401] Where the truth of the allegations of forgery and fraud lies cannot be determined in these proceedings. What is relevant is that when Gino spoke to Maria about them it caused her to become angry and was, according to Gino, a catalyst for her wanting to re-arrange her financial affairs and, in particular, make a new will.
[401] Scaffidi v Scaffidi [2019] WASC 457.
The significance of this evidence is relatively limited. At best it neutralises any suggestion that the making of a new will was an act so contrary to Maria's previously expressed intentions as to indicate that she did not understand the nature of what she was doing. It provides a possible explanation for the making of a new will that excluded Joe as a beneficiary. Beyond that it says little about her testamentary capacity. A person may lack capacity but still have strong feelings of anger or disappointment about members of their family. I am also mindful that if Maria had cognitive impairment at this time, as I find that she did, her anger may have been fuelled by an inability to remember transactions she had undertaken or an inability to understand them.
Dr Carbone undertook a second MMSE on 14 May 2007, though he cannot find the results. In his view, Maria demonstrated a significant improvement in her results and he attributes this to treatment for depression and vitamin B12 deficiency. This improvement caused him to doubt the initial diagnosis of dementia. Whilst I do not doubt the honesty and sincerity of Dr Carbone, the reliability of this opinion must be doubted for several reasons. First, the uncontested evidence is that dementia is a fluctuating disease and thus an improvement in performance does not necessarily indicate that dementia is not present. Secondly, the absence of any record of the testing makes it difficult to form any independent assessment of the results. Thirdly, this testing cannot be viewed in isolation; when seen in the light of the testing done in 2003 and 2008 it is unlikely that there was, in fact, any marked improvement in Maria's cognitive impairment. Fourthly, Dr Carbone thought there was sufficient doubt as to Maria's impairment to refer her for a formal assessment of testamentary capacity.
Dr Clarnette was unable to conduct a formal assessment when he saw Maria on 9 August 2007, though he did note the appearance of impairment. The formal assessment could not be done because Maria was insufficiently prepared to answer questions about her assets. Although Dr Clarnette suggested another appointment and this was agreed to, it never occurred. It is inexplicable that Gino, knowing why an assessment was sought, did not arrange for the assessment to occur before the 2008 Will was executed. He sought to explain that Maria did not want to return to see Dr Clarnette because she did not like having an interpreter on the telephone and did not like having to discuss her financial affairs with a stranger. I found these explanations unconvincing given that he was able to arrange for Maria to later see Dr Restifo for an assessment. His failure to have Maria assessed prior to the execution of the will causes me to doubt his evidence that he believed that Maria was capable and in command of her faculties at this time.
The October/November meeting at the City Beach house and the 5 November 2007 meeting at Mr Benari's office provide little assistance in determining Maria's testamentary capacity. Those meetings were primarily concerned with revoking the joint power of attorney, executing a new one in favour of Gino solely and executing transfers into joint names of the City Beach and Waterloo Street properties. Any discussions with Maria about the will were of a general nature and only for the purpose of giving instructions for a will to be prepared. No questioning to establish the components of testamentary capacity was done, or at least adequately done.
The questions put to Maria by Mr Metaxas on 5 November 2007 were of a very general nature and not intended to address the issue of testamentary capacity. Although those present satisfied themselves that Maria understood the nature and effect of the power of attorney, there is no real similarity between that document and the 2008 Will. In particular, there is no evidence regarding this meeting that could support a conclusion that Maria had an adequate understanding of the nature and value of her assets and liabilities. Nor can the execution of the transfers support an inference that Maria had an understanding of her assets, given that, when later interviewed by Dr Restifo, Dr Clarnette and Dr De Felice for the purposes of the SAT proceedings, she showed no apparent understanding that she had already given Gino an interest in the properties and that he would acquire full ownership by survivorship on her death.
The fact that the will was prepared by a solicitor who also explained the nature and effect of the will to Maria might be thought to make a challenge to its validity more difficult. However, in this case I am unable to conclude that Mr Benari was an independent lawyer. I accept that he honestly believed that his client in the preparation of the will was Maria, but it is apparent that he was also acting for Gino at the time. He followed Gino's instructions as to the order of preparation of documents and their lodgement. He delayed the preparation of the will for several months on the instructions of Gino. It was Gino that made all the arrangements for the execution of the will and he was the sole beneficiary. Mr Benari consulted with Mr Cooper about clause 5 of the will without obtaining the consent of Maria and for the evident purpose of ensuring that this clause protected Gino's interests. Whilst I do not suggest deliberate impropriety on the part of Mr Benari, I cannot accept that he was sufficiently independent from Gino as to make any assessment by him of Maria's capacity an impartial one. Nor was he in a position to act as an independent advocate for the interests of an elderly and, likely vulnerable, woman.
As at 27 March 2008 Maria was an elderly woman of Italian heritage with limited formal education and who was largely dependent on others to assist her in the management of her affairs. Prior to the death of her husband, he managed their financial affairs. After his death Gino undertook that task. Her ability to understand and communicate in English was rudimentary. Her preferred languages were Italian and Sicilian. The uncontested evidence was that she needed the assistance of an interpreter to understand any documents written in English. She plainly would not have had the ability to understand the terms of the 2008 Will as written.
I accept that the impression of Mr Benari and Ms Russo was that Maria understood the terms of the will. However, nothing said at the time of the execution involved a comprehensive or adequate assessment of her competence. The 2003 and 2004 MMSEs and the other evidence referred to above at least raises a suspicion that as at the date of the execution of the will Maria did not have testamentary capacity. That is particularly so having regard to the relative complexity of Maria's assets, involving as it did interests in land, a share in the corporate trustee of the family trust and a term deposit, a number of which had been affected by transfers executed in the months prior to the preparation of the will.
Counsel for the plaintiff sought to draw an inference that Maria had capacity from the fact that she made corrections to the 2008 Will at the time of execution. The evidence is not entirely clear as to whether it was Maria who noticed the errors regarding her marital status and the spelling of Joe's name. However, even assuming it was, neither of these corrections reveal any understanding of the nature and effect of the will or of the assets of which Maria was disposing.
Because a formal assessment of capacity was not done at the time of the execution of the 2008 Will it is necessary to consider what inferences can be drawn from assessments that were done later that year. As noted earlier, Dr Carbone has changed his opinion as to whether Maria ever had dementia. He has said that change of view occurred in 2007 or 2008. He accepts that it is not reflected in the evidence that he gave in the SAT proceedings, but says that that evidence was, on reflection, incorrect. Whilst I accept that Dr Carbone was an honest witness, I have difficulty accepting that his evidence to the SAT was wrong. He knew in advance that he was to be called as a witness and the questions put to him were not difficult or ambiguous. The answers he gave did not reflect any confusion or uncertainty on his part. He was aware of the significance of what he was being asked. In these circumstances I have concluded that Dr Carbone continued to be of the view that Maria had dementia, of at least moderate severity, in late 2008. Furthermore, that view accords with other medical professionals who saw Maria at that time.
Dr Clarnette was an impressive witness. He has extensive experience in dealing with elderly patients and in making assessments as to testamentary capacity. Whilst he was unable to make an assessment when he saw Maria in 2007, he did undertake an assessment on 3 October 2008 for the purposes of the SAT proceedings. Although that assessment was not specifically to assess testamentary capacity, the results enable a conclusion about such capacity to be drawn. I accept Dr Clarnette's evidence that in October 2008 Maria was unable by reason of mental disability to make reasonable judgments in relation to the management of her financial affairs. I also accept his view that she did not have testamentary capacity at that time and it is likely that she did not have such capacity on 27 March 2008.
Dr De Felice was also an impressive witness. He undertook the most thorough testing and produced a comprehensive report following seeing Maria on 26 September 2008. His ability to communicate with Maria in Italian aided in his assessment process and removed an impediment that might have affected the reliability of test results. His evidence was detailed, thoughtful and measured. He carefully explained his conclusions and the reasoning process by which he had reached them. He was not shaken in cross-examination. I accept his conclusion that Maria had dementia, most likely Alzheimer's disease, when he saw her and that given the usual rate of decline it was likely that Maria did not have testamentary capacity, either when she gave instructions for the 2008 Will or when it was executed.
Dr De Felice's conclusion was that, whilst Maria may have been able to appreciate the nature and effect of a will and probably had the capacity to understand the nature of the property which was available to her to dispose of, she did not have the capacity to understand and appreciate the claims on her estate by those who would be excluded. This was a product of the nature of the will and the necessity to recall and understand the effect of past dispositions and transactions. That is, Maria did not have the third component required for testamentary capacity.
In closing submissions counsel for the plaintiff submitted that Dr De Felice conceded that Maria had a general appreciation of her assets. Counsel suggested that this general understanding was sufficient for the purposes of capacity. That submission does not accurately reflect Dr De Felice's evidence. In his view any assessment of Maria's capacity had to take into account the real nature of her assets and the effect of past transactions. It was clear that any general understanding that she had was so vague, incomplete and inaccurate as to not meet the test required for capacity. That is, she did not have the capacity to understand and appreciate the nature of the claims on her estate when seen in the light of other transactions that had occurred.
Dr Restifo gave his evidence carefully and I accept that he was doing his best to assist the court. He examined Maria on 31 July 2008, reasonably close in time to the making of the will and had the advantage of being able to communicate with her in the Sicilian dialect. I have taken into account his suggestion that cultural issues and pride may have influenced Maria to be more open with him than with others. That was not, however, a significant issue with Dr De Felice (who also was able to speak in Italian). Dr Restifo's assessment of Maria's capacity relied on information as to her assets that was derived from Gino, who was present in the room when the assessment was undertaken. It is apparent that the information regarding assets was incorrect and incomplete. It did not include all assets and made no reference to the transfers into joint names of the City Beach and Waterloo Street properties. This significantly undermines the reliability of the results. Furthermore, Dr Restifo did not have Maria's full medical history and, in particular, the past diagnosis of dementia and the prescribing of Ebixa. For these reasons I prefer the opinions of Dr De Felice and Dr Clarnette.
In my view, whether or not the diagnosis of dementia in 2004 was correct, Maria had significant cognitive impairments from at least 2003. In essence she was experiencing problems with her memory from that time. By 2008 those problems were such that she was no longer capable of managing her own financial affairs and was suffering at least moderate impairment, likely as a result of Alzheimer's disease. That is sufficient to raise a suspicion that she did not have testamentary capacity at the time of executing the 2008 Will.
The onus is on the plaintiff to establish that Maria did have capacity on 27 March 2008. Given the findings referred to above, the conclusion I have reached is that at the relevant time Maria probably did not understand the nature of the property she was disposing of under her will. She had no understanding of the nature of the interest that she held in the City Beach property and the Waterloo Street property and how that interest had been affected by the transfers into joint names. She had no understanding of the nature and extent of her other assets, including the term deposit, the share in the corporate trustee, any monies owed to her by the trust and any other personal assets. Those conclusions are not merely a consequence of Maria's dementia, they are drawn from the answers Maria gave to the medical witnesses regarding her assets and other evidence regarding her memory loss and functioning. This means that the second component of testamentary capacity was likely not present.
Even if, contrary to the conclusion just stated, Maria did understand the nature of the property she owned, I am satisfied that it has not been established that she had the capacity to understand and appreciate the claims of those who would be excluded. That capacity required an understanding of past gifts and dispositions by Nino and the effect of transactions that had occurred since his death. She also had to be able to appreciate the effect that the will would have on her grandchildren. This means that the third component of testamentary capacity was likely not present.
I have considered the possibility that Maria had a lucid period at the time of the execution of the will. That possibility is unlikely given that she had been suffering cognitive difficulties since 2003, that those difficulties were very marked by late 2008 and that the normal progression of dementia is a steady decline. Furthermore, the onus is on the plaintiff to establish that Maria had capacity at the relevant time and there was no adequate test of her capacity on 27 March 2008. The questions put by Mr Benari were not recorded and his account of them does not provide any proper basis for concluding that Maria had capacity on that date.
In closing submissions, counsel for the plaintiff submitted that a testator's memory maybe imperfect or impaired by age or disease and yet their understanding maybe sufficiently sound to direct the distribution of their property by will. He further submitted that testamentary capacity is a practical question which calls upon good sense and does not depend solely on scientific or legal definitions. Counsel referred to Brown v Guss[402] and Bailey v Bailey in support of this submission. I accept the need for caution in reaching a conclusion regarding incapacity and have applied that caution in my reasoning. Furthermore, I have not merely deferred to the medical experts, but have used their opinions to support my own conclusion as to capacity.
[402] Brown v Guss [2014] VSC 251.
The plaintiff has failed to establish that it is more likely than not that Maria had testamentary capacity as at the time of the execution of the 2008 Will. Indeed, the evidence supports a conclusion that it is strongly likely that she did not.
As to whether Maria knew of and approved the contents of the 2008 Will, I accept that the will was interpreted and explained to Maria at the time of execution. However, bearing in mind her age, limited education, the marked change in her testamentary dispositions, lack of experience in financial matters and reliance on Gino, there are good reasons to doubt that Maria truly understood the contents of the will. Her answers about the will when later questioned by Dr Clarnette and Dr De Felice also cast serious doubt as to her understanding of the will. She told Dr Clarnette that she had given half the City Beach property to Gino and half to Joe. She told Dr De Felice that she would leave her properties equally to her two sons. It is difficult to see what purpose she would have in deliberately lying about the effect of her will, particularly in circumstances where her capacity to manage her financial affairs was in issue. Her answers suggest that she had no real appreciation of the terms of the 2008 Will.
The plaintiff has failed to establish that it is more likely than not that Maria knew and approved the contents of the 2008 Will at the time of execution. Indeed, the evidence supports a conclusion that it is likely that she did not.
Conclusion
The plaintiff has failed to establish on the balance of probabilities that Maria had testamentary capacity at the time she made the 2008 Will. The plaintiff has also failed to establish on the balance of probabilities that Maria knew of and approved the contents of the 2008 Will at the time she executed it.
In the event, as I have found that the 2008 Will is invalid, the last will made by Maria becomes the 2002 Will. The plaintiff does not raise any issue with the validity of the 2002 Will. In those circumstances the force and validity of the 2002 Will will be pronounced.
Orders
1.There be a pronouncement of the force and validity of the last will and testament of Maria Scaffidi executed on 16 August 2002 (Will).
2.The Probate Registrar is directed to issue a grant of Probate of the copy of the Will, which is Exhibit TB - 009, in solemn form to the defendant Giuseppe Diego Scaffidi, reserving leave to the plaintiff Eugenio Scaffidi to come in and apply as a co-executor.
3.The said grant is limited until the original Will, or a more authentic copy of it, is brought into and left in the Probate Registry of this Court.
4.The defendant's probate caveat dated 29 January 2015 be removed.
5.The plaintiff's claim propounding the will dated 27 March 2008 be dismissed.
6.Within 14 days:
a.the defendant file and serve submissions on costs (limited to 4 pages in length); and
b.the defendant file and serve any application for special costs orders and any affidavits and submissions (limited to 3 pages in length) in support of any such application.
7.Within 28 days:
a.the plaintiff file and serve any response submissions on costs (limited to 4 pages in length); and
b.the plaintiff file and serve any affidavits and submissions (limited to 3 pages in length) in response to any application for special costs orders made by the other party.
8.The issue of costs and any application for special costs orders be determined on the papers.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Hall
15 JULY 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: SCAFFIDI -v- SCAFFIDI [No 2] [2022] WASC 227 (S)
CORAM: HALL J
HEARD: ON THE PAPERS
DELIVERED : 4 OCTOBER 2022
PUBLISHED : 4 OCTOBER 2022
FILE NO/S: CIV 2911 of 2015
BETWEEN: EUGENIO SCAFFIDI
Plaintiff
AND
GIUSEPPE DIEGO SCAFFIDI
Defendant
Catchwords:
Costs – deceased estate – where plaintiff unsuccessful in an application to propound a will – whether costs of both parties should be paid out of the estate
Legislation:
Supreme Court Act (WA) 1935, s 37
Rules of the Supreme Court 1971 (WA), Order 66 rule 1(1)
Category: B
Representation:
Counsel:
| Plaintiff | : | Dr P MacMillan |
| Defendant | : | Mr M Sims |
Solicitors:
| Plaintiff | : | Eastwood Law |
| Defendant | : | Hotchkin Hanly |
Case(s) referred to in decision(s):
Oreski v Ikac [2007] WASCA 195 (S)
Oreski v Ikac [2008] WASCA 220
Scaffidi v Scaffidi [No 2] [2022] WASC 227
Tarabini v Silvester (Unreported, WASC, Appeal FUL 64 of 1996, Library No 960684A)
HALL J:
This judgment concerns the issue of costs.
The plaintiff and the respondent are brothers. The plaintiff commenced proceedings seeking orders that the 2008 will of their mother be pronounced as valid and for there to be a grant of probate in solemn form in respect of that will. The respondent opposed such an order and sought, by way of counterclaim, orders that the court pronounce the force and validity of an earlier will made in 2002. The issue was whether the mother had testamentary capacity in 2008. There was no dispute that she did have such capacity in 2002.
After a trial I concluded that the parties’ mother did not have testamentary capacity at the time she made the 2008 will and did not know and approve of the contents of that will. Orders were made pronouncing the force and validity of the 2002 will. Accordingly, the defendant was successful in the proceedings.
The defendant seeks that his costs be paid from the estate on an indemnity basis and that there be no order as to the plaintiff's costs of the action. The plaintiff does not oppose an order that the defendant's costs be paid from the estate on an indemnity basis but seeks that his costs also be paid from the estate. Thus, the only issue remaining is whether the plaintiff should bear his own costs or have them paid from the estate.
The court has a general discretion in regard to costs and has full power to determine by whom or out of what estate, fund or property, and to what extent costs are paid: Supreme Court Act (WA) 1935, s 37. This discretion is subject to the rules of the court. The rules provide that, without limiting the general discretion conferred on the court by the Act, the Court will generally order that the successful party to any action or matter will recover his costs: Rules of the Supreme Court 1971 (WA), Order 66 rule 1(1).
In Tarabini v Silvester (Unreported, WASCA, Library No 960684, 6 December 1996) Malcolm CJ said (at 5 - 6):
It is the general rule in probate actions, as in other actions, that costs follow the event: Twist v Tye [1902] P92; Re Elmsley's Goods; Dyke v Williams [1871] LR 2 P & D 239. There are various exceptions to this rule. If an executor who is also a beneficiary elects to propound the will, he does so at his own risk as to costs: Re Scott; Huggett v Reichmann (1966) 110 Sol Jo 852. In that case, the court, not being satisfied that the suspicion aroused by the circumstances had been dispelled, or that the testator knew and approved of the contents of the will under which the executor was a beneficiary, ordered him to pay the costs. Even if the executor is not guilty of a breach of duty, the court may order him to pay costs: Re Jefferies, Hill v Jefferies (1916) 33 TLR 80.
As against that, if an executor had good reasons for supposing that a testator was of sound mind and capable of managing his own affairs, he would be allowed his costs out of the estate, even though the will be pronounced against on the ground of testator's incapacity: Boughton v Knight [1873] LR 3 P & D 64 at 79-80 per Hannon J. In that case the executor was honestly led into the litigation by the fact that the testator seemed to or outward appearance to be capable of managing his affairs and, in the absence of evidence to the contrary, was justified in propounding the will. It was found in that case that the testator himself was substantially the cause of the litigation which had occurred.
A detailed examination of the relevant principles, and summaries of numerous examples of their application, can be found in the decision in Oreski v Ikac [2007] WASC 195 (S) (which was upheld on appeal see Oreski v Ikac [2008] WASCA 220).
In the present case the plaintiff was the executor of the 2008 will and it was in that capacity that he sought to propound it. That is not to ignore the fact that he was the sole residuary beneficiary and had significant personal interest in that will being held to be valid. In contrast, in the earlier will both the plaintiff and the defendant were residuary beneficiaries in equal shares. In those circumstances the defendant had an interest in opposing the application to propound the 2008 will and seeking probate of the earlier will. Putting aside their personal interests, the essential issue between the parties is whether it was reasonable for the plaintiff as executor of the 2008 will to have its validity tested judicially.
On behalf of the defendant, it is submitted that the plaintiff pursued his case in circumstances where he had an opportunity to have his mother formally assessed by a medical expert prior to execution of the 2008 will and failed to do so. That failure led to me doubting the plaintiff's evidence that he believed that the testator was capable and in command of her faculties at the time of the execution of the 2008 will: see Scaffidi v Scaffidi [No 2] 2022 WASC 227 at 370. The defendant submits that the plaintiff also knew that his mother had been previously diagnosed with dementia. Having regard to these matters, it is said that there is reason to conclude that it was not reasonable for the plaintiff to commence the action and maintain his claims to trial, especially in the face of the detailed and compelling expert evidence produced by the defendant and accepted by the court.
On behalf of the plaintiff, it is submitted that whilst a doubt was expressed as to whether the plaintiff believed that the testator was competent at the relevant time, there was no pleading of fraud or undue influence. It is submitted that there was credible evidence to support the view that the testator was competent at the time of making the 2008 will and it was reasonable in those circumstances for the plaintiff to seek to have that will investigated. The plaintiff relied on the evidence of Dr Carbone and Dr Restifo, both medical practitioners who were found to be honest witnesses. Both were of the view that the deceased was competent at the relevant time. The plaintiff also relied on the evidence of an interpreter, Ms Russo, and the solicitor who prepared the will, Mr Benari. Whilst doubt was expressed as to Mr Benari's independence, both witnesses were accepted as honest. In these circumstances the plaintiff submits that it was reasonable for him to require a judicial investigation.
In my view, the course of action taken by the plaintiff was reasonable. Whilst I had reason to doubt his evidence, that prior to the execution of the will, he believed his mother to have capacity in circumstances where he had inexplicably failed to have this confirmed by an available expert, that does not necessarily mean that he was aware that his mother did not have capacity. A suspicion that a person is reluctant to confirm is not the same as positive knowledge.
Furthermore, whatever suspicions the plaintiff may have had in 2008, by the time his mother died there was evidence available from Dr Carbone, Dr Restifo, Ms Russo and Mr Benari which supported a conclusion that the testator was competent at the time of the execution of the 2008 will. This was not, therefore, a case where the plaintiff unreasonably maintained proceedings to pronounce the force and validity of a will. There was significant evidence that supported the validity of the 2008 will and the case ultimately turned on an assessment of the weight and reliability of the competing evidence.
In my view the appropriate order is that the costs of both parties should be paid out of the estate.
I will hear from the parties as to the form of the orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Hall
4 OCTOBER 2022
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