Montalto v Sala [2016] VSCA 240

1 On 23 May 2015, Carmela Montalto ('the testatrix') died. She was aged 91 years. Her husband, Mauro Montalto, pre-deceased her on 28 September 2010. She is survived by her three adult sons, Antonino Montalto ('the applicant'), Tommaso Montalto and Giuseppe Montalto.

2 The testatrix executed a will dated 11 February 2013 ('the 2013 Will'). This was the last known will. Pursuant to the terms of the 2013 Will, she appointed the respondents, Giuseppe Sala, who is a family friend, and Giuseppe Montalto, her son, as the executors of her will and trustees of her estate. Her residuary estate is divided between her three sons, with 20 per cent to the applicant, 35 per cent to Giuseppe Montalto and 45 per cent to Tommaso Montalto. The 2013 Will purports to explain the testatrix's reasons for leaving her estate to her sons in those percentages.

3 The applicant wishes to contend that, in making the 2013 Will, the testatrix was under the undue influence of Tommaso Montalto and Giuseppe Montalto. The primary judge has struck out the proposed particulars of undue influence. The applicant has applied for leave to appeal her decision. For the reasons that follow, the application should be refused.

4 On 24 June 2015, the applicant filed a caveat with the Registrar of Probates requiring that notice be given to him of any application made in connection with the 2013 Will or estate of the testatrix.

5 On 14 October 2015, the respondents, in their capacity as executors, filed a proceeding in the Supreme Court against the applicant. In that proceeding, they have applied for the transfer of various properties and funds said to belong to the estate of the testatrix.[1]

6 By originating motion filed 13 November 2015, the respondents applied for grant of probate of the 2013 Will.

7 On 16 November 2015, the Registrar of Probates notified the applicant of the respondents' application and made requisitions on the respondents.

8 The respondents filed an affidavit, sworn 9 December 2015, deposing to the circumstances of the testatrix giving instructions for the execution of the 2013 Will.

9 On 11 December 2015, the applicant filed a summons for directions returnable on 12 February 2016 together with particulars of objection to the respondents' application for probate.

10 On 12 February 2016, the primary judge determined that the particulars filed on 11 December 2015 were deficient. She ordered the applicant to file amended particulars of the grounds of each objection in accordance with r 8.08(a)(iii) of the Supreme Court (Administration and Probate) Rules 2014 ('the Probate Rules').[2]

11 On 4 March 2016, the applicant filed further particulars of objection.

12 On 18 March 2016, at a directions hearing, the primary judge ordered the applicant to provide further amended particulars of the grounds of objection by 8 April 2016 as she was not satisfied that the applicant had provided proper particulars of objection.

13 On 8 April 2016, the applicant filed further amended particulars of the grounds of his objection to the grant of probate ('the particulars of objection'). By those particulars the applicant alleged that the 2013 Will was invalid because at the time of execution of the will:

(a) the testatrix lacked testamentary capacity;

(b) the 2013 Will was obtained as a result of the undue influence of Tommaso Montalto and Giuseppe Montalto (who, together with the applicant, are the testatrix's surviving children);

(c) the 2013 Will was executed in suspicious circumstances.

14 The particulars of objection take the following form: the first section sets out some historical matters relating to the testatrix and members of her family. The second section sets out details of the residential history of the testatrix. In short, it states that, in late 2008, the applicant and his wife lived part time with the testatrix and her husband to attend to their daily needs. After the husband's death on 28 September 2010, the applicant and his wife lived full time with the testatrix to care for her. In October 2012, the testatrix was placed in respite care for six weeks. During this time, Tommaso Montalto removed the testatrix from the respite care and she remained in his care and the care of Giuseppe Montalto until her death. The applicant alleges that he was substantially isolated from the deceased after she was removed from the respite care until her death.

15 The third section alleges that the testatrix lacked testamentary capacity shortly before the execution of the 2013 Will. In doing so, the section provides the following particulars:

3.3 By in or about October 2012, the Deceased:

(a) was incoherent;

(b) suffered from memory loss;

(c) was confused and disorientated about her affairs and circumstances;

(d) was totally reliant upon the [applicant] and the [applicant]'s wife for her daily needs;

(e) was not capable of making her own telephone calls and would ask someone to dial a number for her if she wanted to use the telephone so as to speak to family and friends;

(f) had visual hallucinations; and

(g) on each Monday, Wednesday and Friday a nurse would attend upon the Deceased for the purposes of washing her, washing her hair, and attending to her various personal needs.

3.4 Further, in mid-December 2012, the Deceased was examined for geriatric review at the Memory Clinic at the Bundoora Extended Care Centre due to a 12 month history of cognitive decline with issues including visual hallucinations, short term memory loss, confusion and disorientation.

3.5 On 25 June 2013, after VCAT considered a report from a neuropsychologist, who had examined the deceased and who advised VCAT that the Deceased had no capacity to appoint an enduring power of attorney or to make financial decisions, VCAT was satisfied that the Deceased, lacked the capacity to make an enduring power of attorney, and consequently appointed the Public Advocate, to be her limited guardian and appointed State Trustees as her administrator.

16 The fourth section alleges that the testatrix was acting under the undue influence of Tommaso Montalto and Giuseppe Montalto at the time of execution of the 2013 Will. The following particulars are provided:

4. Undue Influence

(1) The testatrix acted under the undue influence of Tommaso Montalto and Giuseppe Montalto at the time of executing the 2013 Will.

(2) The following are particulars in relation to the allegations under Part B in the [applicant]'s Grounds and Particulars of Objection to the grant of Probate:

(a) In or about October 2012 the [applicant] placed the Deceased in a residential care unit at Arcare, Knox City, for six weeks of respite care.

(b) Approximately four weeks into her stay, Tommaso Montalto and his daughter removed the Deceased from Arcare and thereafter the Deceased was under Tommaso Montalto's care and control.

(c) In late October 2012 Tommaso Montalto informed Frank Cernaz, the principal of the firm of solicitors, Frank J Sagaria & Associates, who had been retained in the past to act for the Deceased and Mauro Montalto that the Deceased was now in his care.

(d) Tommaso Montalto did not reveal to the [applicant] where he kept the Deceased.

(e) From the time of her removal, the [applicant] was unaware as to the whereabouts of the Deceased.

(f) From the time of her removal from Arcare, the [applicant] did not see the Deceased until approximately 12 March 2013.

(g) The 2013 Will was executed while the Deceased was in the care and control of Tommaso Montalto and Giuseppe Montalto and in circumstances where she was kept substantially isolated from the [applicant] until her death.

17 The fifth section alleges that the 2013 Will was executed in suspicious circumstances. The following particulars are provided:

5. Will Executed in suspicious circumstances

5.1 The [applicant] repeats the matters set out in the paragraphs 2, 3 and 4 hereof.

5.2 Further, in two prior Wills executed by the Deceased on 2 June 2007 and 12 September 2007 respectively, and prepared by Ferdinand Zito & Associates solicitors, the Deceased stated that she had excluded Tommaso Montalto from her Wills as he had already during his lifetime been gifted real and personal property and that she had made sufficient and substantial provision for him during her lifetime.

5.3 In a Will executed by the Deceased on 17 August 2010:

(a) She appointed the [applicant] as her sole Executor and Trustee;

(b) She provided a life interest for Mauro in respect of part of her estate; and

(c) The [applicant] was the sole residuary beneficiary of her estate;

(d) She made no provision for either Giuseppe Montalto or Tommaso Montalto and specifically explained in her said will why she excluded them and did not make any provision for them in her will.

5.4 In a Will executed by the Deceased on 24 August 2011:

(a) The [applicant] was appointment her sole Executor and Trustee;

(b) She devised and bequeathed her estate to the [applicant] and he was the sole beneficiary;

(a) She made no provision for either Giuseppe Montalto or Tommaso Montalto and specifically explained in her said will why she excluded them and did not make any provision for them in her said will.

5.5 In the 2013 Will, the Deceased:

(a) Appointed the [respondents] as her Executors and Trustees;

(b) Divided her estate in three parts, as follows

(i) 20% to the [applicant];

(ii) 20% to Giuseppe Montalto;

(iii) 40% to Tommaso Montalto.

5.6 The said provision for a distribution of part of the Deceased's estate to Giuseppe Montalto and Tommaso Montalto was in remarkable contrast to the previous refusal to provide anything for them in the wills of 17 August 2010 and 24 August 2011 and her explanations in the said wills for such refusal.

5.7 The 2013 Will was not intended by the Deceased to be her true will and did not express her wishes.

5.8 In the premises, the 2013 Will was executed in suspicious circumstances, while the Deceased was in the care and control of Tommaso Montalto and Giuseppe Montalto.

18 On 15 April 2016, at a directions hearing, the respondents sought removal of the caveat on the grounds that the Particulars of Objection filed on 8 April 2016 were inadequate.

19 On 23 May 2016, the primary judge gave reasons for judgment ('Reasons') in respect of the applicant's particulars of objection, dated 8 April 2016, to the grant of probate of the 2013 Will. The primary judge struck out the fourth section of the particulars of objection in respect of the objection to the grant of probate based on undue influence.[3] She struck out some but not all of the particulars relating to a lack of testamentary capacity and suspicious circumstances. In doing so, the primary judge said:

The purpose of the particulars and the grounds of objection is to define the questions for trial, to enable the propounder of the last will to understand the case put against making a grant with precision and particularity and so as to avoid surprise at the trial. Where the particulars of objection are imprecise, vague or inadequate, the Court may order that further particulars be provided within a certain time, as has happened twice in this proceeding. Where the particulars are ambiguous, obscure or inadequate the particulars may be struck out.[4]

...

The final ground asserted by the [applicant] is that the 2013 will was procured by undue influence. This is a serious claim of an equitable species of fraud, an essential component of which is an allegation of fraudulent conduct. Where undue influence is alleged, the onus of proof lies on the party who alleges it. Although the assessment of whether there has been an inappropriate degree of influence is a nuanced one, 'to be undue influence in the eye of the law there must be - to sum it up in a word - coercion'.[5]

...

The particulars relied on to assert undue influence of the deceased by the [Giuseppe Montalto] or Tommaso Montalto contain a narrative of the testatrix's whereabouts from October 2012, with the [applicant] not seeing the testatrix until mid-March 2013. These particulars do not provide any basis to assert undue influence on the part of [Giuseppe Montalto] or Tommaso Montalto. The assertions do not raise a reasonable suspicion that the testatrix was coerced in any way. Accordingly, this ground and the particulars are struck out.[6]

20 On 27 May 2016, the applicant filed further particulars of objection pursuant to the primary judge's ruling.

21 On 31 May 2016, the Court made orders giving effect to the Reasons and in respect of the further conduct of the matter.

22 The applicant contended that the primary judge erred in the exercise of her discretion by striking out the undue influence ground of objection as the particulars were sufficient to provide a basis to assert undue influence in law on the part of Tommaso Montalto and Giuseppe Montalto, in respect of the execution of the 2013 Will by the testatrix.

23 In his written submissions, the applicant advanced four proposed grounds of appeal. In substance, the applicant contended that the particulars of objection should not have been struck out as they provided a sufficient basis to assert undue influence. He contended that his particulars gave the respondents sufficient notice of the issues for determination at trial. Finally, he said the test or requirement for particulars under r 8.08 (a)(iii) of the Probate Rules is not different to the test applied in respect of any proceeding in the Supreme Court where parties are required to provide particulars of any allegation, namely whether the particulars define the issues for trial and enable the opposite party to know what material facts are alleged against them so that surprise is avoided at trial and the Court has no higher test to apply in carrying out its functions in the probate jurisdiction of the Supreme Court.

24 In his oral submissions, the applicant said that the primary judge had erred in so far as she had confined her consideration of the adequacy of the particulars to those contained in the fourth section of the particulars of objection. He said that the primary judge should have also considered the context of those particulars, a context supplied, he said, by the third and fifth sections of the particulars of objection. Undue influence, he said, was practically always an inference to be drawn from circumstantial evidence. Those particulars identified the infirmity of the testatrix and the changes in dispositions from her previous wills. Given the fourth section of the particulars of objection and the 'context' provided by the third and fifth sections, he defended the sufficiency of the particulars on the basis that, if they were established on the evidence, the Court would be compelled to draw the inference of undue influence if no other rational explanation for the change in testamentary dispositions were advanced. There was, the applicant said, no rational explanation for the disposition in favour of Tommaso given that, in earlier wills, he had been excluded. Similarly, there had been a disposition in favour of Giuseppe Montalto under the will in 2009. His exclusion as a beneficiary under the 2011 will could be explained by the legal proceedings he had commenced (and later settled on favourable terms) against the testatrix. His restoration as a beneficiary under the 2013 Will was unexplained. Accordingly, the applicant argued, the only inference that could be drawn was that Giuseppe Montalto had unduly influenced the making of the 2013 Will. Further, in so far as the applicant was permitted to contend that there were suspicious circumstances surrounding the making of the will and that the testatrix lacked testamentary capacity, the claim that she was unduly influenced ought to be allowed to proceed.

25 For their part, the respondents said that the particulars given in the fourth section were the basis of the decision below and that the application for leave to appeal should be confined to them. They also argued that the applicant had confused what was necessary to establish 'undue influence' with respect to inter vivos transactions and what was necessary to establish 'undue influence' with respect to testamentary transactions. The former was a doctrine of equity; the latter was traced back to the ecclesiastical jurisdiction.[7] Whereas the former could be established on the strength of presumptions that arise by reason of the relationship of the parties or the circumstances of the transaction, the latter could only be established if the party alleging it could demonstrate that the testatrix was coerced into doing something that she did not want to do.

26 In Hall v Hall,[8] Sir J P Wilde said:

To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affection or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like, - these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator's judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led but not driven; and his will must be the offspring of his own volition, and not the record of someone else's.[9]

27 In Trustee for the Salvation Army (NSW) Property Trust v Becker,[10] Ipp JA (with whom Mason P and McColl JA agreed) said:

Undue influence, in a probate context, is constituted by conduct that overbears the will of the testatrix so that she makes the will without intending and desiring the disposition made thereby. The circumstances must be such that the disposition is not regarded as the free and voluntary act of the testatrix. The volition of the testatrix must be overpowered so that her mind does not accompany her act in making the will. The point was put succinctly in Wingrove v Wingrove by Hannen P:

'[i]t is only when the will of a person who becomes a testator is coerced into doing that which he or she does not desire to do that it is undue influence.'

See also Hall v Hall where Sir J P Wilde described undue influence as the overpowering of the volition without convincing the judgment.

The basic point is that, to prove undue influence, it must be shown that the testatrix did not intend and desire the disposition. It must be shown that she has been coerced into making it.[11]

28 The primary judge has already decided that the propounders of the 2013 Will must establish that the testatrix knew and approved the contents of the 2013 Will.[12]

29 In the present case, the only question for determination is whether the claim of undue influence may proceed on the present particulars.

30 In our opinion, the primary judge was right to decide the case by asking whether the particulars contained in the fourth section of the particulars of objection were sufficient. The applicant's written submissions dated 14 April 2016 that were filed in support of his particulars of objection make it abundantly clear that it was '[t]he matters set out in [the fourth section] of the Objections' that gave rise 'to a presumption of undue influence sufficient to enable the Court to investigate the whole circumstances concerning those matters'. Accordingly, we accept the submission of the respondents that the argument and the decision below were confined to the particulars given in the fourth section.

31 The particulars in the fourth section allege nothing more than that (a) the applicant placed the testatrix in residential care in October 2012; (b) some four weeks into her stay in residential care, Tommaso removed her from residential care; (c) thereafter the testatrix was under Tommaso's 'care and control'; and (d) the testatrix executed her will when she was being kept substantially isolated from the applicant until her death. If the applicant were to adduce evidence at trial that supported these particulars, his allegation of undue influence would be dismissed. The allegations do not satisfy any test of undue influence such as that set out above. There is no allegation of influence let alone that the influence was undue. There is no allegation that, in making the dispositions under the 2013 Will, the testatrix was coerced or that her will was overborne in circumstances that her judgment was not convinced.

32 The fact that an allegation of undue influence is a serious allegation does not mean that, in an appropriate case, it should not be made. But, the respondents to any such allegation are entitled to be given notice of how the allegation is to be advanced. Fairness demands no less. Particulars which are consistent only with the opportunity to influence a testator or testatrix are insufficient.[13] Undue influence will not be presumed.[14]

33 During the hearing of the application, the applicant was given leave to refer to Re Demediuk.[15] In that case, there was an allegation that the plaintiff, who was one of four children, had unduly influenced her father in the making of what was said to be his last will. The particulars of undue influence that were provided in that case were much more comprehensive than those that have thus far been supplied in the present case. The plaintiff, who had applied that the relevant will should be admitted to probate, filed an application seeking summary dismissal of those grounds of objection to the grant that alleged that the will had been procured by her undue influence. The application was made pursuant to ss 62 and 63 of the Civil Procedure Act 2010 ('CP Act'), alternatively, r 23.03(2) of the Supreme Court (General Civil Procedure) Rules 2015, alternatively, the inherent jurisdiction of the Court on the ground that those grounds have no real prospect of success. Affidavits were filed in support of, and in opposition to, the allegation. In the event, the primary judge decided that the challenge to the relevant will on the grounds of testamentary undue influence on the part of the plaintiff has no real prospects of success.[16] However, pursuant to s 64 of the CP Act, she refused to order that there be summary dismissal 'because it is not in the interests of justice to do so and the dispute [was] of such a nature that only a full hearing on the merits is appropriate'.[17]

34 Particulars supporting an allegation of testamentary undue influence will vary considerably; comparisons between the particulars advanced in different cases will rarely be helpful.

35 In our opinion, the application for leave to appeal has no prospects of success and should be refused.

[2] Rule 8.08 provides: 'On the application for directions, any directions may be given relating to the application for the grant as the Judge of the Court thinks fit including - ... (iii) the filing and service of particulars of the grounds of the [applicant]'s objection'.

[4] Reasons [19], citing In re Smith (dec'd) [1951] VicLawRp 53; [1951] VLR 368.

[5] Reasons [27], citing Wingrove v Wingrove (1885) 11 PD 81 and Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558.

[7] He referred to Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136 [70]-[76].

[10] [2007] NSWCA 136.

[11] Ibid [63]-[64] (citations omitted).

[12] Reasons, [25], [35], [41], [43].

[13] Winter v Crichton (1991) 23 NSWLR 116, 121 (Powell J).

[14] John Ross Martyn and Nicholas Caddick QC (eds), Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (Sweet & Maxwell, 20th ed, 2013) 217. See also Veall v Veall (2015) 46 VR 123, 173 [166].

[15] [2016] VSC 587 (McMillan J).

[16] Ibid [151]. In that case, the primary judge said of the particulars and evidence that had been advanced: 'The principles of testamentary undue influence provide that pressure, persuasion, and appeals to affection are permissible. The defendants' evidence does not establish that the plaintiff made demands of the deceased in an "unrelenting, persistent and forceful" way to change his will or that the June will was the product of an "incessant and unrelenting campaign" by the plaintiff to force him to change his will, nor does it establish that the plaintiff's actions went beyond the permissible or that she exerted impermissible "coercion", nor can any impermissible "coercion" be inferred from any of the surrounding circumstances that has been detailed at length by the defendants': at [149].