Konstantinou v Mazitelli [2010] NSWSC 576 | Case summary

2 The deceased left his estate, the main asset of which is a property in Enfield, to the plaintiffs who can be described as his friends and carers. There is also a gift of a piano and $10,000 to the granddaughter of the plaintiffs, Ilyssa. 3 The plaintiffs rely upon the evidence of Photios Vouroudis, the solicitor who drew the will and took instructions from the deceased, and on their own affidavit evidence annexing relevant documentation. 4 The defendants rely upon the affidavits of Russell Kenny of 12 February 2010, Leroy Alan Jones of 18 February 2010, John Fisicaro of 8 February 2010 and Damon Mazitelli sworn 9 February 2010. 5 Mr J Armfield, of counsel, appears for the plaintiffs and Mr R Wilson, of counsel, appears for the defendants. There is no issue that the caveators have an interest in the estate. The only issue that has been argued before me today is whether there is some matter occasioning doubt as to whether the grant ought to be made. 6 The defendants argue that the doubt should be entertained in respect of the deceased's capacity to make the will. The principles to be applied in an application such as this have been helpfully set out by Windeyer J in Weinstock v Beck in the Estate of Weinstock [2007] NSWSC 193, in particular at [13] where his Honour said: There is no doubt that Mrs Beck as caveator has an interest. In most cases, of course, the interest which a caveator asserts is an interest under an earlier will if capacity is attacked or under a later will if the last will is not propounded. There might also be an interest on intestacy in the event that the will propounded is held to be invalid. In such a case the law is quite clear. If the caveator adduces some evidence that may cast doubt upon the validity of the will propounded or whether it is the last will then orders will be made that the matter proceed as a contested suit on pleadings. There is no requirement on the caveator to establish a prima facie case or a serious question to be tried; what has to be established is that there is reason to allow the matter to proceed as a contested suit.

13 The answer to that question was "no". 14 The deceased was an inpatient of Royal Prince Alfred Hospital between 29 January and 4 February 2009. The summary of the admission as contained in the notes annexed to Mr Fisicaro's affidavit has a heading "Issues Whilst in Hospital". There is a heading as follows: "3. Episodes of reduced Sa 02". The summary indicates that during early admission the patient had several episodes of nocturnal drops in oxygen saturation with associated mild confusion. This was noted to be possibly due to a combination of opiates and other treatment. The records show that the deceased's analgesia was reduced and eventually stopped. The notes then record: "No episodes for several days before discharge". That material demonstrates that on admission there was no confusion in the deceased, and that during the admission, apparently by reason of the medication and the treatment provided to the deceased who was obviously at times in severe pain, some episodes of confusion occurred. However, it is clear that there were no episodes of confusion for "several days before discharge". 15 A mini mental state examination was conducted and the defendants rely upon that to suggest that the deceased was not capable of making his will. However, Mr Wilson concedes that on his submission the test could only be described as borderline at best. 16 There is in the material a consent form signed by the deceased on 2 December 2008. That is a consent form in which the deceased stated that he accepted the professional opinion of his treating doctor, that he understood certain aspects of his treatment and that he had the opportunity to ask questions and understood that his records may be used in a particular way. That was also signed by the medical practitioner who administered the treatment or who was in charge of the treatment at that time. 17 Mr Wilson also relied upon some plans noted in the hospital notes that there may be some respite care needed when the deceased went home. Mr Wilson accepts that this is the highest that he can put the case on a medical basis. There is no geriatrician or other expert opinion independent of those hospital notes tendered. Mr Vouroudis, the solicitor for the plaintiff, who also took instructions from the deceased for the will, gave affidavit evidence of detailed discussions with the deceased on 3 February 2010 when he went to see him at Royal Prince Alfred Hospital. There is a detailed conversation in which the deceased indicated that he had looked after his sister for 42 years with no help from anyone and that he had wiped his family altogether. Whilst giving instructions he indicated that he wanted to leave his estate to his friends and carers who had been very good to him and also to leave a gift to the plaintiffs' granddaughter, whom he described as having given him a lot of joy, indicating that she loved to tinker on the piano. He also gifted a piano to her. 18 The question about this piano is raised in the affidavit of Mr Mazitelli, who claims that it was his mother's piano and it was gifted to him or that he was to receive it after his mother's demise. There is no issue that there was a dispute in relation to the estate of his mother and that the parties entered into a deed in respect of that dispute, which is attached to the affidavit of Mr Mazitelli as Annexure M. Although the claim that Mr Mazitelli wished to make was somewhat larger than the amount that he accepted, it is clear that the parties were looking to the assets of the estate of his late mother at that time and there is no mention at all in that deed of the piano. Even assuming Mr Mazitelli understood or thought that this piano was to go to him, the question about it needs to be considered in light of the application here today. 19 It is necessary to be satisfied that there is something that would cast doubt upon the validity of the will that is propounded. Mr Wilson submits that it is clear that the deceased was confused about the piano, or at least there is a prima facie case that the deceased was confused about the piano and that he did not understand or perhaps he forgot that it did not really belong to him. Mr Armfield, on the other hand, submitts that one does not have to have a minute understanding of one's assets, but an understanding of a general nature and a capacity to deal with the assets in the way that the deceased did so. 20 Mr Jones deposes to some conversations in 2008 when the deceased was in Canterbury Hospital. He also refers to a conversation with the deceased on Christmas Eve in 2008 which together do not suggest anything other than appropriate responses. Indeed, Mr Jones indicated that he could see that the deceased was in "enormous pain", but notwithstanding that, he was able to have an exchange with Mr Jones in a lighthearted fashion. When Mr Jones asked him whether he would like him to get him a cup of tea, the deceased responded, "Well, what do you think you are here for?" That does not seem to me to be anything other than evidence of a person who was in enormous pain trying to deflect attention away from himself by a light-hearted discussion with the deponent. 21 The affidavit of Mr Jones does not suggest to me anything that would cast doubt on the deceased's capacity in respect of his will. 22 The evidence of Mr Kenny relates to the Enfield RSL, of which the deceased was the secretary for about fifteen years prior to his death. Mr Kenny went to the deceased's ninetieth birthday party in 2008 at the Croydon Park Ex Servicemens Club. The conversations between Mr Kenny and the deceased do not persuade me that there is anything that would cast doubt on the deceased's capacity. Indeed, there was a conversation in which the deceased was invited to tell Mr Kenny whether there was anything worrying him back in 2007. The deceased was able to tell him that there was nothing worrying him. 23 There was also a suggestion that the deceased had forgotten that he had received a letter from the RSL State Branch and that seems to have been tendered to suggest that his memory was poor. There is also evidence from Mr Kenny that he saw the deceased a little before he passed away and that he claims he was mumbling and "incoherent". It is clear that the deceased unfortunately suffered a great deal of pain in the last days of his life but that he was assisted with the administration of some morphine. 24 This brings me to the affidavit of the solicitor, Mr Vouroudis. Mr Wilson submitted that it is clear that if the solicitor is willing to file an affidavit there must be a prima facie case of doubt. I do not see it that way. It seems to me in a case such as this that in support of the Summons it is not inappropriate for the plaintiffs' solicitors to file evidence that would assist the Court in assessing whether there is doubt cast on the validity of the will. There may be cases where Mr Wilson's submission may have more force, but in this instance I am not satisfied that it does have force. 25 It seems to me that the medical evidence relied upon does not cast any doubt and that the deceased's discussion with the solicitor for the plaintiffs indicates coherence and capacity to understand that which was in his estate. I am not satisfied that he forgot about the piano or did not understand the ownership of the asset. It seems to me that when the parties settled their differences and entered into the Deed some mention might have been made of the piano, if that were truly an issue between them. The piano had been in the deceased's home for many years and there being no particular claim in the Deed to it, it seems to me a matter that would not cast doubt on the validity of the will. 26 There is nothing to support any doubt being cast on the deceased's capacity to make the will. There is also a question of whether the deceased had the ability to discriminate. In this regard Mr Wilson relies upon the conversation with the solicitor, in which the deceased said that he had wiped his family in contrast to the Christmas card sent to one of the defendants in 2008. 27 On one view of the evidence the deceased was in part a very private man, and to say to the solicitor for the plaintiffs that he had wiped his family is a matter for him. He had a view as to what he wished to do with his assets. It is quite clear that he wanted to ensure that his estate went to those who had cared for him over the years, in particular in more recent years when he was very ill. 28 It does not seem to me that there is any doubt about his ability to discriminate and there does not seem to me to be any evidence to establish any doubt as to his knowledge of what was in his estate. 29 Accordingly I make the order in the Summons.

Konstantinou v Mazitelli

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