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
Earl of Longford v Purdon (1877) 1 LR Ir 75
Easter v Griffiths (1995) 217 ALR 284, 290
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
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…
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- AGLC
- Scaffidi v Scaffidi [No 2] [2022] WASC 227
- Case
- [2022] WASC 227
- Decision Date
CaseChat Overview and Summary
The legal issues the court had to decide included whether the deceased had testamentary capacity when she executed the 2008 will, and whether the 2008 will or the 2002 will should be admitted to probate. Testamentary capacity requires a testator to understand the nature of the act and its effects, the extent of the property they are disposing of, the claims to their property by those who will be excluded by the will, and to have no disorder of the mind that poisons their affections, perverts their sense of right or prevents the exercise of their natural faculties.
The court found that the deceased had testamentary capacity when she executed the 2008 will, and that the 2008 will should be admitted to probate. The court considered the evidence of medical experts and witnesses, and concluded that the deceased had sufficient mental capacity to understand and appreciate the testamentary act in its different bearings. The court also found that the deceased knew and approved of the contents of the 2008 will, and that there was no evidence to suggest that she was coerced or unduly influenced in executing the will. Therefore, the court ordered that the 2008 will be admitted to probate in solemn form.
In summary, the court held that the 2008 will should be admitted to probate in solemn form, as the deceased had testamentary capacity when she executed the will and knew and approved of its contents. The 2002 will was not admitted to probate.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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.