Di Cecco v Contini [2004] VSC 211

5. The testamentary capacity issue raised in this proceeding was not an issue of physical or mental impairment in a medical sense, or was not primarily so. It concerned, rather, the question of whether the testator was able to comprehend and appreciate the claims of his two surviving sons. The hearing substantially concerned the issue of whether the testator held views of his sons which were either based on demonstrably false delusions of fact or which were value judgments so extreme as to defy credibility.

8. In this judgment, for ease of reference, I will at times refer to Armando Contini simply as Mr Contini. I will refer to his children and to Patrizia Abdelshahid by their first names.

12. Mr Armando Contini was born in 1910 in Popoli, Italy. He married Maria Contini there and they had four children, Fulvio, Egidio, Giuliana and Mario. Mr Contini came to Australia in 1952 and his wife and four children followed him in 1954. In 1958 Mr Contini purchased a house at 5 Clifton Street, Richmond. Fulvio lent his father £100 for the deposit which his father later repaid. All of the children left school early and they all contributed to the family finances. Whether some contributed more than others is an issue which is not relevant to what I have to decide. Mr Contini lived in the house at 5 Clifton Street until his death. It is the substantial asset in his estate.

15. In 1975 Maria and Armando Contini made their first wills. They each left their entire estate to the other and upon the death of the survivor left their estate equally to their four children. Fulvio, the eldest, was named sole executor.

18. In 1984 Egidio, the second eldest, was killed. He had two children, Nando and Patrizia. He was divorced or separated. Tragically, Egidio's son, Nando, also died in the same year. Fulvio was the executor of Egidio's estate. The beneficiaries of the estate were Nando and Patrizia for bequests of $2,000 each, and Egidio's parents, Armando and Maria, for the residue. Egidio's estate had some valuable assets, including a house and a taxi licence.

21. In 1985 Maria and Armando Contini made new wills. These wills were the same as their 1975 wills, save that Egidio was deleted and Patrizia was included with a bequest to her of $2,000.

24. One of the matters canvassed at length in the evidence concerned Fulvio's administration of Egidio's estate. Giuliana gave evidence that her parents were unhappy with Fulvio's administration. Fulvio denied that this was so, or that any such unhappiness had ever been expressed to him. I will consider this issue in some detail later.

27. On 31 January 1995, Maria and Armando Contini made new wills. The only alteration made was that all three children, rather than Fulvio alone, were appointed executors.

30. In August 1995 Maria Contini died. Fulvio says he gave his father the final accounting of his brother's estate in 1995 before his mother's death.

33. Just before Christmas in 1995, another incident occurred which became the focus of attention at the trial. Mr Contini was then living alone at 5 Clifton Street, Richmond. His wife had died. His three surviving children had homes of their own. He went into hospital for a period of time. After he returned home he rang his daughter, Giuliana, one night and said that cash he had hidden in his house had been stolen. There was quite a commotion within the family that night. The police were called. Giuliana's husband, Nick Di Cecco, rang Mario, who denied any knowledge of any missing money. The next day the money was recovered or relocated. Mario said he had moved the money. It will also be necessary to consider the evidence about this incident in more detail later.

36. As at 1995 the three children had an arrangement whereby they would take it in turns to visit 5 Clifton Street every day. It is probably the case that even in those days Giuliana was more diligent in her visits than her brothers. Fulvio also helped his father with the administration of his pensions and took him to medical appointments. The family gathered together for birthdays, Christmas, christenings and on other occasions. However, relations between Armando Contini and his sons began to sour. It is difficult to say precisely when this process began. Giuliana attributes the breakdown to a number of incidents. She says her father distrusted Fulvio over Egidio's estate and distrusted Mario over the incident involving the missing money.

39. Mario deposed in an affidavit relied upon in the proceeding that he continued to visit his father until 1998. He attended his father's birthday in 1999. He moved with his wife and family to Queensland in 2000. Fulvio deposed that he continued to visit his father until August 1999; thereafter, his father refused to let him in his home.

42. In August 1997 Mr Armando Contini made a new will which provided for a separate bequest of $40,000 in favour of Giuliana, and which increased the bequest to Patrizia to $20,000. The residue was to be shared equally by his three surviving children.

45. In March 1998 he made another will. In this will he increased Giuliana's bequest to $100,000. At this time he also prepared the first of a series of notes concerning his testamentary dispositions which he gave to his solicitor, Mr Adami. The note explained why he was giving Giuliana a separate additional bequest of $100,000. The note was in Italian. A translation is in evidence. One part of the translation of the note reads as follows:

"in 1986 my son Mario received a sum of 25,000 dollars used to pay for his house this sum came from the assets of my son Egidio after his death in the same year my son Fulvio asked me to lend him the sum of 25,000 dollars for his family use and this money also came from the assets of my son Egidio and has never been paid back."

49. Mario had received a sum of $25,000, or perhaps a little less, from Egidio's estate with his parents' approval. Fulvio disputes the position set out in this note in relation to himself. This is one of the alleged misconceptions upon which the defendants rely.

52. On 7 October 1998, Mr Contini made a further will. This time, after the $20,000 bequest to Patrizia, he left half the estate to Giuliana and a quarter to each of his sons. This time Mr Adami was given two notes in Italian by Mr Contini and a certificate from Mr Contini's general practitioner for the past 30 years, Dr Santoro. The first note, which is dated 2 October 1998, is relevantly similar to the note in March 1998. The translation of the second note, which is dated 5 October 1998, reads as follows:

"I Armando Contini went to the lawyer Perillo Adami and Franco to make my last will and he asked me the reason why I want to change my will again and I said to him that I want to change the will because I lost the respect, the reason being my son Fulvio sold the property of my son Egidio which was left to me and my wife without telling us anything the will left to me and my wife was not read to me or to my wife or to anyone in the family. After having asked to do the sums for years he didn't tell us anything he gave me 5,000 dollars just before my wife died in August 1995 it had been since 1984 - which is the year when my son Egidio died. now with respect to Mario after the death of my wife I was very unwell for two weeks, I left my house key to my daughter Giuliana who was responsible for me and for my house while I was in hospital when I came out of hospital I went to see where I left my money, because I wanted to give a present to all my children, and I didn't find anything I asked my children if someone had taken it because there was nothing broken in the house neither doors nor windows and they told me that no one had taken anything after Giuliana had called the police to investigate Mario came out and said he had moved it because he saw the garage open however he didn't say anything to Giuliana who was responsible for the house, nor to me I think that I have explained everything to my children I sign myself your father Armando Contini - thank you very much."

"In my opinion he is mentally competent and is capable of understanding a testamentary will."

58. In May 1999 Fulvio and Mario attempted to arrange a family mediation through the Family Mediation Centre in Moorabbin. Neither Mr Contini nor Giuliana wished to attend. During the same year there were at least two serious arguments between Fulvio and Mario on the one hand and their father on the other. Giuliana, who was involved in at least one of them, described it in terms which suggested that it was terrifying and potentially violent. Mario described the arguments as "terrible". On one occasion the police were called. On one occasion crockery was smashed. Mr Armando Contini and his daughter saw his solicitor, Mr Adami, about these arguments in July 1999 and in September 1999. Mr Adami advised Mr Contini that he should tell his sons not to come to his house. Fulvio, in referring to one of these arguments in his affidavit relied upon in this proceeding, deposed that "Mario had asked me to attend at our father's home with him so that we could get some information about his will. Mario had unsuccessfully attempted to get information on previous occasions."

61. In early 2000 Mr Contini saw Mr Adami again about yet another new will. This time he wished to share his estate between his three surviving children and his granddaughter, Patrizia, in percentages. He again gave Mr Adami notes in Italian explaining his actions. One note, dated 13 March 2000, was addressed to his two surviving sons and said amongst other things "you must remember you are responsible for the way you treated me" and "with your behaviour more than you will get you have not deserved". Another note, also dated 13 March 2000, was in similar terms, but included this complaint against Fulvio:

"you did not bother to find out when the court case was on for your brother Egidio that the person who killed your brother Egidio was released without being punished."

A third note, dated 18 March 2000, referred to Giuliana having cared for him in his later years. On 19 April 2000, Mr Contini executed his new will. It appointed Giuliana as his sole executrix and divided the estate, giving 20% to Patrizia, 15% to Fulvio, 15% to Mario, and 50% to Giuliana.

66. One of Mr Contini's notes of 13 March 2000, which he gave to Mr Adami, complained that Mario and Fulvio "went to my doctor Doctor Santoro to frighten him." By a letter dated 2 May 2000 Dr Santoro advised Fulvio that his father had specifically requested him not to discuss his health with family members. The letter also said:

"As a doctor I must not take sides in a family argument. I bare no ill will towards you and I understand that your position is just as difficult as mine as you wish to obtain more details regarding your father and his treatment. I also am in an extremely difficult position and I find this situation quite upsetting."

70. In May 2000 Dr Santoro arranged for Mr Contini to see another general practitioner, Dr Gallichio. Dr Gallichio prepared a report dated 13 May 2000 which was addressed to Mr Adami. The report stated that Mr Contini "wished to put at rest any possible basis for contesting" his will. At this time Mr Contini was 90 years of age. The report could hardly have been a more positive endorsement of his testamentary capacity. Dr Gallichio described him as warm, communicative and affable. He says his description of events was "coherent, precise, concise and deliberate". Dr Gallichio's conclusion was expressed as follows:

"In conclusion I consider that Mr Contini has no intellectual impairment, suffers from no affective disorder or any other psychiatric condition, is not affected by physical illness or the effects of medication and has a clear understanding of the value of his assets and uses pristine judgement and reasoning as to its disposition after his death. He therefore has, in my opinion, a normal testamentary capacity."

74. Dr Gallichio's report refers to complaints Mr Contini had against his sons. He told Dr Gallichio they were disrespectful and not sufficiently supportive. Dr Gallichio records him as complaining about his two sons "not acting transparently" in relation to Egidio's estate.

77. In late 2000 Mr Contini's house at Clifton Street, Richmond was valued by two valuers. One valuation was $725,000 and one was $650,000. Mr Adami deposed in an affidavit relied upon in the proceeding that Mr Contini brought these valuations to him on 1 December 2000. Mr Adami deposed that on that occasion Mr Contini instructed him "as to changes to his will, having regard to the valuations".

80. On 30 March 2001, Mr Contini executed his last will. He left $75,000 to Patrizia, $50,000 to each of Mario and Fulvio, and the balance to Giuliana. Giuliana is sole executrix.

83. Mr Contini again wrote a note in Italian which he gave to Mr Adami. It is undated, save for a reference at its foot to "11/1/01" which is in a different handwriting. The note merely sets out the dispositions, although, perhaps significantly, after referring to each specific bequest, Mr Contini adds "and nothing else".

86. Before executing this will Mr Contini saw Dr Gallichio on 19 January 2001 and on 19 March 2001, and also saw a neuropsychiatrist, Dr John Lloyd. Mr Contini saw Dr Gallichio again on 10 July 2001. Dr Gallichio prepared a further report to Mr Adami dated 5 August 2001 and Dr Lloyd sent a report to Dr Gallichio dated 21 February 2001.

89. When reading these reports one is struck by the exceptionally positive assessments of a man who had turned 91 years of age on 2 February 2001. Dr Lloyd observed:

"With the more extensive assessment I carried out, including a fairly detailed family history, I believe that Mr Contini was able to give a very sound account of himself and his family relations along with his wishes for the disposal of his assets."

93. Dr Lloyd's report refers to Mr Contini's complaints about his sons. In what is clearly a reference to Egidio's estate, Mr Contini is recorded as complaining: "Mr Contini had only been given $5,000 dollars while Fulvio had kept $7,000." In another passage Dr Lloyd notes: "Mr Contini was particularly angry that $10,000 was missing at one stage when he was away from home. The police were called and the following day when his son was present the money appeared to be found and had been shifted." Dr Lloyd's report also stated that since 1984 Mr Contini "has seen very little of his sons." In his cross-examination Dr Lloyd said that his understanding was that there had been an estrangement "of some degree" for that period.

96. Dr Gallichio's 5 August 2001 report largely reiterated his earlier conclusions. He concluded:

"his judgment and thinking appear intact and . . . he is intellectually and mentally competent and from a medical perspective he has normal testamentary capacity."

100. In oral evidence in chief and in his cross-examination, Dr Gallichio was questioned about Mr Contini's alcohol consumption. He said Mr Contini told him that he drank "a couple of glasses of wine at each of his meals". Dr Gallichio tested Mr Contini's reflexes. He found no abnormality and no peripheral neuropathy. He arranged a liver function test and it was within normal limits.

103. Mr Contini was admitted to hospital on a number of occasions in his later years. In 1996 he had seen a physician, Mr Peter Shane Hamblin, at the Alfred Hospital, who had recorded that he drank a bottle of homemade wine per day. Mr Hamblin was called by the defendants. In his evidence Mr Hamblin said he called a "bottle" 750mls. Mr Contini was admitted to hospital a number of times in 2000 and 2001. An in-patient note from the Alfred Hospital from September 2000, which was tendered by the defendants, records alcohol consumption of 3-4 glasses daily, said to be homemade beer. This is probably an error as all the evidence indicated Mr Contini made homemade wine. There was also evidence of Mr Contini being intoxicated on occasions at family functions.

106. It seems that Mr Contini drank homemade wine almost every day. On occasions he drank too much. There was no evidence that his testamentary capacity was affected by excessive alcohol consumption. Dr Gallichio's evidence was that he showed no physical indications of excess alcohol consumption.

109. Mr Contini died on 16 March 2002 at the age of 92 years. All of his surviving children attended his funeral.

113. Counsel for both the plaintiff and for the defendants relied on the judgment of Gleeson CJ in Re Estate of Griffith; Easter v Griffith.[1]

116. The applicable principles to be drawn from that judgment appear to me to be the following:

(a) Where the evidence raises a doubt as to testamentary capacity there rests on the plaintiff the burden of satisfying the court that the testator had capacity at the relevant time. If following vigilant examination of the evidence the doubt remains substantial enough to preclude a belief that the testator was of sound mind, memory and understanding, probate will not be granted.

(b) It is essential that a testator understand the nature of the act and its effects and the extent of the property being disposed of. The testator must also be able to comprehend and appreciate the claims upon his or her bounty to which he or she ought to give effect.

(c) The power to dispose of one's assets by will is an important right and the court must be cautious; a finding that a testator lacked capacity is a grave matter.

(d) A testator will not lack capacity because he or she is harsh or unreasonable or unfair. On the other hand, a demonstrable delusion about some important and relevant fact or a value judgment so extreme as to defy credibility may mean a testator lacks testamentary capacity as he or she is unable to consider and give effect to claims upon his or her bounty.

122. In Griffith, the Court of Appeal upheld a judgment of Santow J in which he was unable to find that there was testamentary capacity.[2] In Griffith there was evidence of rejection by a testatrix of her only son on unreasonable grounds. There was also evidence of bizarre behaviour towards him, including howling in the night, a threat with a knife, false claims he suffered from a psychiatric illness, a false missing person report to the police, and the defacing of one of his school prizes. There was some psychiatric evidence suggesting the possibility of the testatrix having a paranoid personality disorder. The will in question entirely excluded the testatrix's only son.

125. I have also had regard to some other authorities in the area. There are two further decisions of the New South Wales Court of Appeal, being Perpetual Trustee v Baker[3] and Wechsler v Du Maurier,[4] which seem to me to assist, emphasising, as they do in my view, that relevant beliefs, even if strongly held, do not preclude testamentary capacity merely because they can be shown to be mistaken or unfair. There is a clear difference between an explicable but mistaken view on the one hand and the kind of morbid aberration or delusion which precludes testamentary capacity on the other. I have also had regard to Walsh v Legge,[5] where a mistaken belief that his sister had stolen from him was held not to have resulted in a lack of testamentary capacity in that testator, and to West Australian Trustee Executor and Agency Co Ltd v Holmes,[6] where physical illness and pain so transformed a man's personality and character, particularly with respect to his wife, as to lead to a conclusion that the onus had not been discharged. It should perhaps be observed that in Holmes there was evidence of some actual delusions in the testator, including a delusion that his wife had attempted to poison him, and what was described as "very peculiar behaviour" towards his grandson related to his view of his wife's relationship with him.

130. The defendants' position was that the will of 31 January 1995 ought to be granted probate. Mr Newton on behalf of the defendants listed 11 matters, which he submitted both created the threshold doubt about the later wills and precluded discharge of the onus on the plaintiff. They were:

1. The sequence of the wills and their terms. He relied upon the fact that five wills were made over 3½ years, progressively reducing the dispositions in favour of the two sons.

2. The testator's age and his alcohol consumption.

3. The testator's complete rejection of his sons from late 1998.

4. The false beliefs displayed in the testator's notes given to his solicitor, Mr Adami, and in particular, his beliefs about Fulvio and the money from Egidio's estate, his beliefs about Mario and the missing $10,000, and his belief about Fulvio's failure to pursue the case concerning the driver of the other car in Egidio's accident.

5. A reference by Mr Contini to Mario having served time in jail in Dr Lloyd's report.

6. Complaints by Mr Contini about Mario having sold his house and moved to Queensland, referred to in one of Giuliana's affidavits.

7. Mr Contini's belief that he was physically threatened by his sons in 1999 and thereafter.

8. Mr Contini's belief that Fulvio wished to put him in a nursing home, referred to by Giuliana in one of her affidavits.

9. Mr Contini's depression upon the death of his wife, referred to by Dr Gallichio and Dr Santoro and also referred to in a letter tendered by the defendants from a Dr Korman who had treated Mr Contini for ulcers.

11. The close association between Mr Contini and Giuliana in the light of the provisions made for her in the later wills.

144. Mr McGarvie for the plaintiff submitted that, in the light of the evidence, the matters relied upon did not even raise the threshold doubt. I do not accept that. It seems to me that Mr Contini's age, the number of wills he made in his final few years, his consultations with the doctors, and the increasingly disproportionate dispositions, do create a doubt requiring the Court to examine the issue of testamentary capacity.

147. However, it seems to me that that examination, once embarked upon, reveals a most cogent and compelling case in favour of his having testamentary capacity. The medical evidence was as positive as it could be for a man of Mr Contini's age. It was supported by the evidence of his solicitor for many years, Mr Adami, and of his neighbours, Mr and Mrs Funke Genaamd Kupper, and Maria Iacono. There was nothing in the evidence of Mr Contini's sons, or their wives, or Mr Fulvio Contini's son-in-law, Paolo Laurita, which detracted from the clear picture that Mr Contini was, at all relevant times, a rational and alert person. He appears to have been domineering and dogmatic. As I indicated, he may have drunk too much on occasions. Such characteristics do not preclude testamentary capacity. In the end, the only substance to the attack on his testamentary capacity was in the submission that Mr Contini was deluded or held incredible beliefs about Fulvio and Egidio's estate and about Mario and the missing $10,000. Before turning to those two issues, however, I will briefly address the other matters relied upon.

150. Whilst it may be unusual for a person to make five wills in 3 ½ years, and whilst the wills do progressively reduce the dispositions in favour of Fulvio and Mario, the evidence reveals that the testator's actions were explicable by the circumstances. His relationship with his sons deteriorated over the period. Regular contact ceased in late 1998. There were serious arguments in 1999. Mario moved to Queensland in 2000. Mr Contini was upset by contact with his general practitioner in 2000. Further, it seems that at least one of the "terrible" arguments was about Mr Contini's testamentary intentions.

153. The testator was old but the medical and other evidence reveals he did not lack capacity on that ground. I have already referred to the absence of evidence of any incapacity as a result of alcohol.

156. The testator did not completely reject his sons from late 1998. Indeed, his final will does not completely reject them. When one considers that Mario was given almost $25,000 out of Egidio's estate 20 years ago, on one view it could be said that the overall dispositions in his favour compare favourably with those in favour of Patrizia, Egidio's only surviving child.

159. The alleged false beliefs in the notes concerning Fulvio's administration of Egidio's estate and Mario and the missing money are the matters which do require some analysis. The complaint about Fulvio failing to keep track of the case against the other driver in Egidio's accident may have been unfair and misguided but it was no more than that.

162. The other matters relied upon simply fall far short of detracting in any substantial way from the medical and other evidence. Mario had served time in jail, he did move to Queensland, and he describes the arguments with his father as "terrible". Giuliana's evidence suggested an old man might well have felt physically intimidated. Mr Contini does not refer to fears about a nursing home in his notes or in his discussions with the doctors. His depression upon the death of his wife was entirely understandable. His health was certainly no worse than might be expected for a man of his age. His association with his daughter seems to me to have been entirely unremarkable. The allegation of undue influence was abandoned.

165. Neither the individual factors referred to, nor any combination of them, when examined, seem to me to raise any substantial concern as to his testamentary capacity. It is very difficult to imagine what more a testator could do to establish his capacity than Mr Contini did. He saw doctors, he obtained valuations, he discussed matters with his solicitor, and he wrote notes explaining what he was doing. He knew his sons would seek to upset his testamentary dispositions. He tried to prevent that by having himself examined by doctors and by explaining why he disposed of his assets as he did. One of his notes addresses his sons directly, asking them to accept his dispositions. His attempts to preclude this dispute were to no avail.

168. It is necessary to turn then to two matters which did influence Mr Contini in the dispositions which he made and as to which it is said he was deluded or held beliefs which were outside the realm of what is credible.

172. Giuliana's evidence was that her parents often complained to her that they had asked Fulvio for an account of Egidio's estate and he had not provided it. Mr Contini in his notes of 6 March 1998 and 2 October 1998 complained that he had lent Fulvio $25,000 from Egidio's estate which had never been paid back. In his note of 5 October 1998, he complained about a lack of information and that he had been given $5,000 in 1995 when Egidio had died in 1984. Mr Contini complained to Dr Gallichio about a failure to be "transparent". He told Dr Lloyd in February 2001 that he "had only been given $5,000 dollars while Fulvio had kept $7,000."

175. Fulvio deposed that his father never complained to him about Egidio's estate. He deposed that he did not accept that his father ever "genuinely or rationally believed" he had failed to act properly in relation to Egidio's estate or had failed to properly account to his parents.

178. Under Egidio's will, Fulvio was Egidio's sole executor. Egidio's children, Nando and Patrizia, were given bequests of $2,000 and the residue was to go to Armando and Maria Contini.

181. Mr Adami's firm acted for Fulvio as executor. The firm's trust account ledgers were produced and tendered. Mr Adami in his evidence explained the progress of the administration by reference to the entries in the ledger cards.

184. The ledger cards reveal the following major events. In October 1984 the trust account received the salvage on Egidio's taxi, some refunds, and the proceeds of a debenture. The funeral expenses for both Egidio and Nando (who died the same year) were paid in November 1984. In March 1985 the mortgage on Egidio's house was discharged. In April, Giuliana was repaid a loan made to Egidio, with interest, and Fulvio was repaid $3,721.37 for accounts he had met on behalf of the estate from his own funds. The two bequests of $2,000 were paid in May 1985. The bequest to Nando was described as follows:

"Pd. Loredana Contini By bequest for Nando Dec'd."

188. Loredana Contini was Nando's mother. In December 1985, $22,500 was paid to Tirrenica Co-Operative Housing Society. This was in discharge of Mario's mortgage on his house. The payment was made with the approval of Armando and Maria Contini. Fulvio's evidence was that he personally added another $2,000 to that amount as there was not enough money in the estate at that time to pay off the mortgage in full. Fulvio was paid $2,000 from the estate on 20 March 1987.

191. On 19 November 1987 Fulvio withdrew $25,000 from the trust account.

194. Mr Adami's evidence was that the administration was finished by March 1988. The final credit balance of $5,295.81 was paid to Fulvio on 28 August 1989.

197. When Fulvio gave evidence he produced a book which had not previously been referred to or exhibited. The book was a spirex pad of lined pages. There was nothing written on any of the pages in the book except three. The first page has "originals" written on it. The second has two lists of figures. Counsel for the plaintiff put a tab with a "1" on it on this page. On the back of this page there are further calculations. At the top is written "TOTAL $25,000 X". There is a calculation which results in a figure of $5,541.13. Next to that is written "IN CASH TOTAL REPAID TO PAPA IN PRESENCE OF MARIO." Fulvio tore these two pages from the book in the witness box without being asked to do so. The third page, which remains in the book, has another list of figures also referable to the estate.

200. Fulvio in his evidence said these pages constituted both his record of his expenses and his final accounting to his father.

203. The administration of Egidio's estate was unusual in many respects. The great bulk of the estate was paid out to Mario and Fulvio, neither of whom were beneficiaries. There was no dispute that the payment to Mario was authorised by Maria and Armando Contini. Mr Contini's notes indicate the payment of $25,000 to Fulvio was a loan. Fulvio's evidence was that the payment was entirely reimbursement to him for expenses he incurred on behalf of his father and money he kept for his father in cash in a safety deposit at a bank. He said he did this at his father's request. Fulvio says he was himself pressing for a final accounting of Egidio's estate and that that was delayed until 1995 because that delay was his father's wish.

206. Counsel for the plaintiff spent some considerable time with Fulvio over the figures on the handwritten pages he produced in the witness box. Fulvio was concerned to emphasise his father's desire to deal in cash. This was because, he suggested, he was concerned about his pensions. If one accepted everything Fulvio said about the administrative arrangements, it would be impossible to be certain whether his father had any legitimate ground for complaint or not. Even so, some concerns were revealed. The page headed "TOTAL $25,000 X" is a calculation which deducts from the $25,000 Fulvio received, expenses Fulvio claims to have met himself. The calculation takes account of the expenses for which the estate reimbursed him ($3,721.31), the sum of $2,000, and the balance of $5,295.31 paid to him in 1989.

209. An amount of $710.44 is one of the figures listed as expenses paid by Fulvio. Fulvio agreed that a sum of $224.99 comprised in that $710.44 amount was the same $224.99 which is recorded as having been paid out of Mr Adami's trust account on 21 February 1985.[7] The amount is small, but when almost all of the expenses are said to have been met in cash, one's confidence in the administration is undermined by any demonstrated overpayment in favour of Fulvio.

212. One item which Fulvio recorded as an expense which he met himself was:

At first Fulvio said this was Nando's bequest under Egidio's will.[8] When shown the ledger card of Mr Adami's trust account, showing both bequests to the children being paid out of that trust account, Fulvio initially suggested there were three bequests under Egidio's will.[9] When referred to the will, containing only two bequests, he said this was an additional payment to Loredana authorised by his parents, paid in cash.[10]

217. Another item listed among the expenses said to have been paid by Fulvio was $6,766.52 described (in Italian) as "tomb and other expenses." At first Fulvio said $6,000 of this sum was money paid into court in the course of a dispute about the tomb.[11] When shown that that $6,000 had come from the Adami trust account, he said that the item was cash paid to his father, and that his father told him to describe the figure that way.[12] After being shown other calculations, he appeared to revert to the tomb expenses explanation without giving up the cash explanation.[13]

220. On this issue Mario's evidence was significant. First, Mario was not asked by the defendants' counsel whether he was present at the accounting, as the note on one of the pages Fulvio produced suggested. Secondly, his evidence was that his father was not at all satisfied with Fulvio's accounts. When giving evidence about Egidio's estate, Mario said the following:

"We were over at Dad's place. He rang me and told me to come down and he said to me `here's the papers. Can you find $25,000' and I said `Dad, I don't know anything about it. It would be better if you got Nick and Julie over here and we have a meeting about it. He's a bit more smarter.' . . . He thought my brother had the money and he said `You have to go down and tell your brother to give the money back' and I said `I'm not hurting any part of my family' and that's what he used to use on me all the time and I gave up again. That $25,000 was something to do with your brother? - - - Yes, and it's something to do with the estate. He always used to tell me `mind your own business' so I couldn't do anything."[14]

224. Returning to Mr Contini's allegedly deluded views of this issue. It is to be recalled that the complaints he made were not that Fulvio had taken $25,000, but that he had borrowed it and not repaid it, that there had been a lack of information, that there had been delay in finalisation until 1995 when he had only been given $5,000, that there had been a lack of transparency, and that Fulvio had kept $7,000.

227. I am not persuaded that Mr Contini was deluded about any of this. Indeed, I am not persuaded that he was even mistaken. Fulvio's explanation in the witness box was not reassuring. This may be the result of a less sophisticated approach to these matters than lawyers consider to be appropriate, or a result of an attitude to cash and to record keeping which may have had a basis in what Mr Contini himself wanted. Clearly, however, Mr Contini was unhappy with the account he was given. I cannot find that that unhappiness was unjustified. The image created by Mario's evidence of Mr Contini going through the papers, looking for a total of $25,000, and concluding it was not there seems to me to be likely to closely reflect the reality of what occurred. Mr Contini did recover only about $5,000. He did not recover that sum until 1995.

230. Mr Contini may have been unfair to Fulvio. He may have expected too much of him. He may have judged him harshly. However, there is no indication here of any delusion, disorder of the mind, or belief beyond the realms of credibility.

234. There is no doubt that a sum of $10,000 was missing for a time in late 1995. There was great anxiety about the matter on Mr Contini's part. The police were called. The money was recovered or relocated through the agency of Mario.

237. Mr Contini's complaints in relation to this incident were set out in the note of 5 October 1998 which I have earlier reproduced. The concern he expressed in that note was that Mario moved the money, "however he didn't say anything to Giuliana who was responsible for the house, nor to me." Mr Contini told Dr Lloyd that he was particularly angry about the incident. He told him that the money was missing and that "the following day when his son was present the money appeared to be found and had been shifted".

240. In his affidavit Mario swore he moved the money for safe keeping. He swore that he told his brother-in-law that he knew nothing about the money when he had first been rung because "I felt that it was none of his business". In his oral evidence he said that he had told his father twice that he had moved the money after his father had returned home from hospital. He had not referred to this in his affidavit. His counsel, Mr Newton, had earlier had the following exchange with Giuliana:

"You know that it was merely a misunderstanding in relation to this money between your father and Mario, wasn't it? - - - No, it was not a misunderstanding. The only real complaint was that Mario had not told your father that he had moved the money? - - - No, that is not true. Since that happened nothing was the same any more. I didn't ask you that. The only real concern for your father, initially, was that Mario had not told him that he had moved the money? - - - No, that's not true. Your father accepted, I suggest to you, and you accepted that Mario had done nothing in relation to stealing this money? - - - I do not accept that, I'm sorry."[15]

244. Giuliana said in evidence that her father believed Mario had stolen the money. It seemed clear that that is also her belief. It seems to me that the exchange set out above is only explicable on the basis that the defendants' counsel had no instructions at that time to the effect that Mario had told his father twice that he had moved the money.

247. Mario clearly feels wronged by his father. He gave expression to these feelings in his evidence. He said he admitted making mistakes. He said he had wronged his sister. He said his father had not learned from his mistakes, that is, from his father's own mistakes. As I indicated to him in the witness box, the case is not about whether his father was fair or just. His father may have misinterpreted the position. It seems to me that Mr Contini did think Mario's intentions were not honest. That is what Giuliana says he thought. It is difficult to see why else he would have told Dr Lloyd he was "particularly" angry about the incident. He asked Mario to return his keys to the house and Giuliana said Mr Contini also changed the locks.

250. Fortunately, I do not have to decide whether Mario is telling the truth or not. As is the case in relation to Fulvio and Egidio's estate, there is no evidence here of any delusion or any disorder of the mind or of any incredible belief. Again, I am not even persuaded that Mr Contini was mistaken. As with Fulvio he may have been harsh, but that is not the point. The interpretation he put on the event was not such as to suggest any lack of testamentary capacity.

254. In the circumstances, whilst the defendants have raised a doubt warranting investigation as to Mr Armando Contini's testamentary capacity, the investigation has eliminated that doubt. I find that he had testamentary capacity at all relevant times and his last will, being the will dated 30 March 2001, will be granted probate.

[1] Unreported, New South Wales Court of Appeal, 7 June 1995 (`Griffith').

[2] Re Estate of Griffith; Easter v Griffith (Unreported, Supreme Court of New South Wales, Santow J, 17 June 1994).

[3] [1999] NSWCA 244.

[4] [2002] NSWCA 13.

[5] Unreported, Supreme Court of New South Wales, Cohen J, 12 March 1997.

[6] [1961] WAR 144 (`Holmes').