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[2026] ACTCA 10
respondent. The appeal was dismissed. The appellants were ordered to pay the respondents' costs of the appeal. Any application for an alternative costs order was to be made by written submissions within 14...
The Court of Appeal upheld probate of Lorenzo Pastrello's 2020 will. Although he had previously been diagnosed with dementia and had serious health problems, the Court considered the evidence about his condition when he gave instructions and signed the will. It relied on a recording of the instructions, the solicitors' observations, lay evidence and medical evidence. It also concluded that not remembering every property or its value did not, in these circumstances, establish incapacity. The appeal, including the alternative challenge to the professional-executor clause, was dismissed.
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2,379 words · generated 07/10/2026
Pastrello v Saeedi (No 2) [2026] ACTCA 10 is an appeal about probate of Lorenzo Antonio Pastrello's will dated 18 December 2020. The ACT Court of Appeal, comprising McCallum CJ, Taylor J and Elkaim AJ, dismissed the appeal and ordered the appellants to pay the respondents' appeal costs. Its reasons conclude at [87]-[88].
1 cited instrument linked from this judgment.
The dispute was between two of the deceased's children, Luisa and Eddy Pastrello, and the executor, Kamyar Saeedi, together with three grandchildren, Carl, Christian and Massimo Pastrello. The 1988 will left the estate equally to the deceased's three children. The 2020 will divided it into 11 equal shares: two shares for each child and one share for each of five grandchildren. The deceased's estate was described as worth more than $50 million in 2020 and comprising mainly property in the ACT and New South Wales [10].
The executor and the grandchildren sought probate of the 2020 will. Luisa and Eddy alleged that the deceased lacked testamentary capacity and had not known and approved the will's contents. They sought probate of the 1988 will instead [3]-[5]. Their appeal challenged the primary judge's findings on capacity and knowledge and approval, and alternatively challenged a clause permitting professional executors to apply for commission [7]-[9].
The deceased had a long medical history. Records included observations of cognitive deterioration and possible vascular dementia in 2017, a 2018 MRI showing brain changes, and diagnoses of mixed dementia in 2019 [20]-[22]. The primary judge also considered evidence of improvement in 2020, including Dr Chow's view that the deceased had regained capacity to make decisions about lifestyle, care and financial arrangements [22]. Lay witnesses described improved behaviour and interactions, including conversations about businesses, properties and family [23]-[24].
On 18 December 2020, while in hospital, the deceased gave instructions for a new will to solicitors Tanya Herbertson and Michael Mascitti. Herbertson made a video recording of the conversation, and later read the completed will to him [25]-[38]. The appeal court examined the appellants' interpretation of parts of that recording and rejected it. It considered the deceased's statements consistent with a distribution in which each child received twice the share of each grandchild [32]-[35].
The Court treated testamentary capacity as a question for judicial evaluation based on all the evidence, not a question answered simply by a medical label. It adopted the familiar Banks v Goodfellow criteria and stressed that the relevant issue was whether the deceased had capacity when he executed the will, despite any cognitive or mental issues identified at other times [52]. The Court also referred to the general rule that capacity is assessed at execution, while recognising the cited authority that instructions given earlier may be relevant where the will is later executed [53].
The record of the will instructions was important. The Court described the deceased as appearing to state his views confidently, with moments of humour and challenge, rather than simply acquiescing to the solicitors' suggestions [29]-[35]. It rejected the appellants' proposed interpretation of two exchanges about how the estate should be divided. In particular, it read the deceased's statement that each child should receive two shares and each grandchild one share as confirmation of the 11-share approach in the will [34]. It also noted that, when the will was read to him and the distribution clause was discussed, he raised a point about his daughter Luisa rather than merely agreeing without engagement [34].
The Court also relied on the evidence of the solicitors who attended and the surrounding medical and lay evidence. The primary judge had preferred Dr Chow's treating evidence and Professor Brew's evidence to Dr Ryan's retrospective opinion on relevant issues [44]-[48]. In addressing delirium, the appeal court noted that Dr Ryan's opinion developed from an earlier record of “possible delirium” to an opinion of mild delirium on the date of execution. It also noted that the primary judge accepted Professor Brew's view that the contemporaneous medical records and video did not show delirium on 18 December 2020 [65]-[70]. The Court identified the medications administered before execution and found that the timing did not support the appellants' suggestion of extensive pre-execution painkiller use [71]-[72].
The Court rejected the argument that the deceased's imperfect recall of some assets showed incapacity. It stated that a testator need not readily identify each asset [58]. The estate was large, and the will distributed it as a whole rather than making specific gifts. The primary judge had found that the deceased understood the substantial nature of his estate and the distribution method, even if he did not name every property or identify its value [60], [80]. The Court also noted that the company name Gratory was recalled when the deceased was reminded of it, and that the confusion in the recording related to another company with a similar name [62].
On knowledge and approval, the Court addressed whether suspicious circumstances displaced the presumption or inference that a duly executed will made by a person with capacity was known and approved. It upheld the primary judge's finding that no such circumstances existed, or alternatively that any suspicion was slight and readily dispelled [79]. The recorded instructions and the reading of the completed will were significant evidence of the deceased's awareness of its terms [34]-[38]. The Court was also unpersuaded that the professional-executor clause justified the heightened scrutiny asserted by the appellants [76]-[78].
Finally, the challenge to the commission clause failed. Clause 2.3(b) allowed a professional executor to apply to the Court for commission for their “pains and trouble” [83]. The will had been read to the deceased, and the explanation given was that a professional executor could charge fees for work administering the estate [85]. The Court accepted the primary judge's conclusion that this explanation, in context, supported knowledge and approval, notwithstanding that it did not separately explain the possibility of commission in addition to professional fees [86].
The judgment does not announce a new testamentary-capacity test. It applies established principles, principally the Banks v Goodfellow criteria, as discussed through Australian decisions including Zorbas v Sidiropoulos (No 2) and Briton v Kipritidis [52]-[54]. It restates that capacity is a legal question, not one resolved solely by medical evidence, and that the court makes a commonsense assessment of the whole evidentiary record [54].
The decision also applies existing principles on knowledge and approval. The judgment recounts that due execution by a testator with capacity may support a presumption of knowledge and approval where suspicious circumstances are absent. If suspicion arises, the proponent must address it with evidence sufficient to satisfy the court, with the necessary strength of proof depending on the circumstances [13]-[15]. The appellate decision does not replace that framework. It applies it to the facts found by the primary judge and concludes that the asserted circumstances did not require a different result [77]-[82].
One practical point in the judgment's application of Banks v Goodfellow is its treatment of the estate's extent. The Court did not read the requirement to understand the extent of the property as demanding exact recollection of every asset or its value. It relied on Kerr v Badran and d’Apice v Gutkovich, and on the fact that this will dealt with the estate as a whole [58]-[60]. The point is contextual, not a general statement that awareness of an estate's assets is never important.
The judgment also confirms the importance it attached to evidence recorded close to the time of execution, as well as evidence from practitioners who treated or observed the testator. It cited Zorbas concerning recordings of detailed conversations and discussed the comparative value of treating evidence and retrospective expert opinions [37], [47]. Its reasoning remains fact-specific: the video, medical history, lay evidence, and contents of the will were considered together rather than as independent, conclusive tests.
Nothing in the supplied judgment establishes how the law stood after later appellate developments, or how subsequent courts have treated this decision. The decision date is 31 March 2026, and the text supplied contains no subsequent judgments applying or distinguishing it. Its stated effect is therefore limited here to the Court of Appeal's dismissal of this appeal and its application of the cited principles to this evidence.
At [52], the Court says the question is whether the deceased had capacity “at the time he executed the will”, even if cognitive issues had been identified at other times. In plain English, an earlier diagnosis matters, but the court's focus is the testator's abilities at the legally relevant time.
At [54], the Court describes the Banks v Goodfellow question as legal rather than medical and refers to “commonsense judicial judgment on the basis of the whole of the evidence”. That means medical evidence can be important, but the court must consider it alongside other evidence and decide the legal issue itself.
At [58], the Court states: “It is not a requirement that the testator can readily identify each component.” The passage addresses a wealthy testator who may know that he has substantial assets without remembering each property's address, value or name. The Court did not treat imperfect recall as automatically decisive.
At [79], the primary judge's conclusion, discussed by the appeal court, was that no suspicious circumstances displaced the presumption of knowledge and approval. Alternatively, any suspicion was “slight and hence easily dispelled”. In plain English, the court considered whether anything about how this will was prepared or executed created a real doubt that the deceased understood it, and found no doubt strong enough to change the result.
At [80], the primary judge reasoned that, because the deceased understood the way the estate was apportioned and knew it was very valuable, exact appreciation of its total value was not necessary to establish knowledge and approval of the will's effect. This passage distinguishes knowing the practical effect of a distribution from knowing a precise dollar figure.
At [87]-[88], the Court dismissed the appeal and made the costs orders. The operative result was that the probate decision remained in place, subject to the stated procedure for any alternative costs order.
The reasoning is most relevant to probate disputes where the testator had a cognitive diagnosis, but the parties dispute whether it impaired testamentary capacity at the time instructions were given or the will was executed. The judgment makes timing important: a diagnosis from another period does not, by itself, resolve capacity on the execution date [52]-[56].
It is also relevant where there is contemporaneous evidence of the testator discussing the intended beneficiaries and distribution. Here, a solicitor recorded the instructions, questioned the deceased about the allocation between children and grandchildren, and read the will to him [28]-[38]. The Court treated the recording as evidence to be assessed with the rest of the material, not as an automatic guarantee of capacity or approval.
The decision may be relevant where a challenge relies on the testator's failure to recall individual assets, their values, or company names. The Court's analysis turned on the size and nature of the estate, the whole-estate distribution, the deceased's general awareness, and the context in which a company name was discussed [57]-[62]. A different will involving specific gifts, unexplained omissions, or evidence that the testator misunderstood the overall estate may present different questions; the judgment does not decide those hypothetical situations.
The reasons also address allegations of delirium, medication effects, and suspicious circumstances. The Court considered the timing and quality of medical evidence, whether contemporaneous records supported the asserted condition, and whether the circumstances of the will's preparation raised a genuine doubt about knowledge and approval [64]-[78]. Its conclusions depended on the primary judge's evaluation of this particular evidence.
The supplied judgment does not report any later court's treatment of Pastrello v Saeedi (No 2). Its date is 31 March 2026, and the text contains no subsequent decisions applying, distinguishing, following or questioning it. Accordingly, no account of later treatment can be grounded in the provided material.
The judgment itself discusses earlier authorities. It applies or considers Banks v Goodfellow, Zorbas v Sidiropoulos (No 2), Briton v Kipritidis, Kerr v Badran, d’Apice v Gutkovich and Tobin v Ezekial, among others [13]-[15], [37]-[39], [52]-[60]. Those are authorities the Court used to explain the principles before it. They are not later treatment of this appeal decision.
For research purposes, the point that can be reported from this judgment is its own holding: the appeal court found no error in the primary judge's fact-sensitive assessment and dismissed the appeal [87]-[88]. The text alone cannot establish whether later courts have adopted that reasoning in other factual settings.
The decision leaves the application of its reasoning dependent on the facts of each will dispute. It does not specify how much knowledge of the estate is sufficient where the will makes individual gifts, where a testator omits a major asset, or where the testator's understanding of the estate is contradicted by other contemporaneous evidence. Its reasoning concerned a large estate distributed as a whole [60], [80].
The judgment also does not establish a fixed evidentiary hierarchy for all capacity disputes. It discusses treating practitioners, retrospective experts, lay witnesses and a solicitor's recording, but evaluates their contribution in this case [37], [41]-[48]. Questions about the weight of those sources will continue to depend on their reliability, proximity to the relevant time and consistency with the other evidence.
The commission issue is similarly narrow. The Court upheld the clause after considering the wording, its reading to the deceased, the explanation given, and the statutory reference to court approval [83]-[86]. It did not decide every possible form of commission clause, the adequacy of every explanation of such a clause, or the circumstances in which a court might approve commission.
Finally, the reasons do not provide subsequent treatment or address any legal developments after the decision. The available source supports analysis of the appeal and the authorities it cites, but not claims about how later courts, or different facts, would resolve similar disputes.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, get it checked by a qualified Australian lawyer.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Pastrello v Saeedi (No 2) Citation: [2026] ACTCA 10 Hearing Date: 12 November 2025 Decision Date: 31 March 2026 Before: McCallum CJ, Taylor J and Elkaim AJ Decision: (1) The appeal is dismissed. (2) The appellants are to pay the respondents’ costs of the appeal. (3) If any alternative costs order is sought, written submissions must be made within 14 days of the delivery of this judgment, with the issue to be decided on the papers. Catchwords: APPEAL – SUCCESSION – Wills, probate and administration – testamentary capacity – where solicitor recorded the making of the will – whether the primary judge erred in finding the testator had capacity and knowledge to approve the contents of the will – appeal dismissed Legislation Cited: Administration and Probate Act 1929 (ACT) s 70 Cases Cited: Banks v Goodfellow (1870) LR 5 QB 549 Briton v Kipritidis [2015] NSWSC 1499 Croft v Sanders [2019] NSWCA 303 d’Apice v Gutkovich - Estate of Abraham (No. 2) [2010] NSWSC 1333 Friesen and Holmberg v Friesen Estate (1985) 33 Man R (2d) 98 Kerr v Badran [2004] NSWSC 735 Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 Nock v Austin (1918) 25 CLR 519 Re: Estate of Griffith (Dec’d); Easter v Griffith (1995) 217 ALR 284 Robertson v Barker [2021] NSWSC 1682 Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007 Saeedi v Pastrello [2025] ACTSC 26 Saeedi v Pastrello (No 2) [2025] ACTSC 460 Starr v Miller [2021] NSWSC 426 Tobin v Ezekial [2012] NSWCA 285; 83 NSWLR 757 Zorbas v Sidiropoulos (No 2) [2009] NSWCA 197 Parties: Luisa Sonia Pastrello (First Appellant) Eddy Louis Pastrello (Second Appellant) Kamyar Saeedi (in his capacity as executor of the estate of the late Lorenzo Pastrello) (First Respondent) Carl Pastrello (Second Respondent) Christian Pastrello (Third Respondent) Massimo Pastrello (Fourth Respondent) Representation: Counsel C Birch SC with G Blank (First and Second Appellants) No appearance (First Respondent) S Chapple SC with D Yazdani (Second, Third and Fourth Respondents) Solicitors Thomson Geer (First and Second Appellants) Kamy Saeedi Law (First Respondent) KJB Law (Second, Third and Fourth Respondents) File Number: AC 3 of 2025 Decision Under Appeal: Court: ACT Supreme Court Before: Mossop J Date of Decision: 12 February 2025 Case Title: Saeedi v Pastrello Citation: [2025] ACTSC 26 Court File Number: SC 286 of 2022 THE COURT: Introduction
These proceedings were commenced with the filing of a statement of claim on 22 July 2022. The primary relief sought in the statement of claim was an order for probate in solemn form of a will dated 18 December 2020 (the 2020 will) of the late Mr Lorenzo Antonio Pastrello (the deceased).
The plaintiff is the executor of the will. Three other plaintiffs were added at the commencement of the original hearing. They were Carl Pastrello, Christian Pastrello and Massimo Pastrello.
The defendants to the statement of claim were Luisa Pastrello and Eddy Pastrello. The defendants filed a defence and counterclaim on 15 August 2022. In this defence they alleged that the deceased did not have the testamentary capacity to execute the above will and, by their counterclaim, they sought a grant of probate in respect of a will dated 29 June 1988 (the 1988 will). In addition to challenging testamentary capacity the defence asserted that it had not been established by the plaintiffs that the deceased knew and approved the contents of the will.
The onus of establishing testamentary capacity and knowledge and approval rested on the plaintiffs.
The matter came before the primary judge (Mossop J), initially on 5 August 2024, and was then heard over five days, the last being 12 August 2024. His Honour delivered judgment on 12 February 2025 (Saeedi v Pastrello [2025] ACTSC 26). His Honour found in favour of the plaintiffs and ordered that there be a grant of probate in solemn form of the 2020 will. A second judgment, concerning costs, was handed down on 15 October 2025 (Saeedi v Pastrello (No 2) [2025] ACTSC 460).
The defendants (now the appellants) filed a notice of appeal on 11 March 2025. The first plaintiff has submitted to the orders of the Court. The remaining plaintiffs (now the respondents) resist the appeal.
There are four grounds of appeal, each of which, through different avenues, effectively challenge the testamentary capacity of the deceased when the 2020 will was executed and his concurrent knowledge and approval of the contents of the will.
There is also, but only as an alternative, an attack on the clause in the will allowing for a commission to be earned by “professional executors”.
An amended notice of appeal was filed at the commencement of the hearing relating to costs. The amended notice of appeal only becomes applicable if the appeal is allowed.
Here are some basic facts: (1) The deceased died on 4 August 2021. He was 86 years of age. (2) Over his lifetime the deceased amassed a large estate, mostly made up of property in the ACT and New South Wales, valued in 2020 at over $50 million. (3) In August 1994 the deceased became the sole director and shareholder of a company called Gratory Pty Ltd. This company was the vehicle through which the deceased carried on a number of the businesses that he established. (4) When he died the deceased held 310,000 shares in the above company. (5) The deceased’s wife, Carla Pastrello, died in 2011. (6) There were three children of the marriage, Eddy, Robert and Luisa. Luisa and Eddy are the appellants. (7) Eddy has two children, Daniel and Matteo. (8) Robert has three children, Carl, Christian and Massimo. These three children are the respondents. (9) Luisa does not have any children. (10) The 1988 will appointed Carla as the executrix and left the whole of the estate to the deceased’s three children, Eddy, Robert and Luisa, in equal shares. (11) Under the 2020 will, the first respondent (Mr Saeedi) is the executor. This will is different from the 1988 will in that the estate is divided into 11 equal shares, six shares to the deceased’s children (two shares each) and the remaining 5 to the deceased’s grandchildren (one share each).
The primary judgment
His Honour first identified the test for capacity, beginning with the classical statement in the English case of Banks v Goodfellow (1870) LR 5 QB 549, at 565: It is essential to the exercise of such a [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.
His Honour then referred to the adoption, application and refinement of Banks in Australian courts.
After setting out the principles relating to testamentary capacity, his Honour turned to the test for knowledge and approval. He quoted from Tobin v Ezekial [2012] NSWCA 285; 83 NSWLR 757, at [46]-[47]: Upon proof of testamentary capacity and due execution there is also a presumption of knowledge and approval of the contents of the Will at the time of execution. That presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator. In Thompson v Bella-Lewis [1997] 1 Qd R 429 McPherson JA (dissenting in the result) said (at 451) of the circumstances able to raise a suspicion concerning knowledge and approval that, except perhaps where the will is retained by someone who participated in its preparation or execution or who benefits under it, “a circumstance must, to be accounted ‘suspicious’, be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator's death”. … Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved of the contents of the document. Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be “the most satisfactory evidence” of actual knowledge of the contents of the will… What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example in Wintle v Nye [1959] 1 WLR 284 the relevant circumstances were described (at 291) as being such as to impose “as heavy a burden as can be imagined”. Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction… That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator…
The first ground of appeal; testamentary capacity
The attack on testamentary capacity seems to be an attempt to impose an exact standard of competence upon the deceased.
The fact that the deceased had been diagnosed with dementia in 2017, or even had a degree of dementia in 2020, does not of itself exclude his testamentary capacity. The question to be asked is whether he had testamentary capacity at the time he executed the will, notwithstanding that there may have been underlying cognitive or other mental issues identified at another time. This point was made by the New South Wales Court of Appeal in Croft v Sanders [2019] NSWCA 303, at [128]: The lay evidence confirmed the contemporaneous medical evidence that Mr Croft’s underlying dementia did not deprive him of testamentary capacity. It also demonstrated that more probably than not his hallucinatory or delusional beliefs about his daughters were episodic rather than continuous. Had he held such beliefs when he gave instructions to Mr Miller for his will it is likely that he would have expressed them when they discussed the provision he proposed for his daughters other than Anna. The lay evidence discharged the respondents’ onus of establishing that the hallucinatory or delusional beliefs that Mr Croft expressed from time to time did not affect his testamentary dispositions.
As to when testamentary capacity should be measured, Ball J (as his Honour then was) said in Briton v Kipritidis [2015] NSWSC 1499, at [37]: Generally speaking, the relevant time at which mental capacity needs to be proven is the time of the will’s execution: Banks v Goodfellow (1870) LR5QB 549 at 568 per Cockburn CJ. However, where instructions for the drafting of the will were given to a solicitor prior to the day of its execution, as in the present case, it will be sufficient for the party propounding the will to establish that the testator had the requisite mental capacity at the time when he or she gave instructions: Parker v Felgate (1883) LR 8 PD 171; Re Crooks (Estate); Akerman v Brown (Supreme Court of NSW, Young J, 14 December 1994, unreported).
Briton was a case involving testamentary capacity. After discussing the test for such capacity his Honour was concerned to make two further points, both of which are relevant to this appeal at [45]-[46]: First, as the New South Wales Court of Appeal has made clear, the Banks v Goodfellow test poses a legal, rather than a medical question: Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197. That is to say, while medical evidence going to any of the requirements set out in the test may be highly relevant, it is not necessarily determinative. Rather, the question is one to be determined by “commonsense judicial judgment on the basis of the whole of the evidence”: Zorbas per Hodgson JA at [65]. Second, the principle of freedom of testation means that neither eccentricity nor capriciousness is a sufficient ground to conclude that the testator lacked capacity. As Gleeson CJ noted in Re Estate of Griffith; Easter v Griffith (1995) 217 ALR 284 (at 291), “[t]estamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards.”
The third ground of appeal; the existence of suspicious circumstances
The submission seems to be that the primary judge did not deal with suspicious circumstances that had been raised by the appellants in their written submissions. It is said that paragraph 191 of the judgment supports this conclusion. Paragraph 191 certainly deals with suspicious circumstances but the following paragraphs, up to at least paragraph 200, also deal with the same issue.
The appellants again raise the issue of the deceased having taken significant amounts of painkillers. As has already been stated there was not a definite diagnosis of delirium, the painkillers taken on the day were widely spaced on both sides of the execution of the will and the medical evidence accepted by the primary judge was against the existence of a delirium.
The appellants endeavoured to make use of this passage from the judgment of Leeming JA in Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 at [131]: Where as here those taking a benefit under a will have played a part in its preparation, it is for the propounder to show “the righteousness of the transaction”, namely, that the testator or testatrix knew the contents of the will and appreciated its effect, so that it can be said that the will contains the real intention and reflects the true will of the testator or testatrix. The same is true where there are “suspicious circumstances”, such as those mentioned by the primary judge, including the erroneous description of Georgette as Nadia’s daughter, and the erroneous belief of Mr Liondos. (I return below to what precisely are “suspicious circumstances”.)
The passage begins with a qualifying statement. The inclusion of a commission clause was said to be the trigger for the application of the matters put forward by Leeming JA. It was accepted that the commission issue was very minor. It certainly does not rise to the level which would invoke the scrutiny suggested by Leeming JA.
The third ground of appeal fails. The fourth ground of appeal; knowledge and approval of the will
This ground was effectively dealt with by his Honour under suspicious circumstances. As he said at [191]: Having regard to my earlier conclusions about Lorenzo’s cognitive function at the time of the will and the contents of the will itself, if the matter is to be dealt with on the basis of presumptions, I am not satisfied that there are suspicious circumstances surrounding the execution of the will that would displace the presumption that Lorenzo knew and approved of its contents. It was a document duly executed by him in circumstances where he had testamentary capacity and where there are no features of the will which would give rise to a suspicion that its contents were not known to or approved by him. To the extent to which, contrary to my view, any suspicious circumstances exist, they would be slight and hence easily dispelled.
The primary judge then went on to consider the position if Leeming JA’s test, as set out above from Mekhail, was applicable. His conclusions on testamentary capacity support his further conclusion as to the deceased’s knowledge and approval of the contents of the will. His Honour observed at [197]: At the time of the making of the will, Lorenzo was aware of his very substantial property empire. He was aware that the gifts were, therefore, very valuable ones. Given that the method of the apportionment of his estate was understood and the fact that the estate was a very valuable one, it is not necessary in order to establish knowledge and approval of the effect of the will to establish a greater appreciation of the actual quantum.
The commission clause
The clause of the will that is the subject of the alternative case put by the appellants is 2.3 (b). Clause 2.3 reads: 2.3 Payment of Professional Executors Any of my Executors who practices a profession: a) is entitled to be paid all usual and reasonable professional fees for work done by that Executor or her or his firm as executor, trustee or both, on the same basis as if he or she were not one of my Executors but employed to act on behalf of my Executors; and b) may in addition apply to the Court for commission for her or his pains and trouble.
The submission made by the appellants was that clause 2.3 had never been properly explained to the deceased and he had never expressed approval of it in the form that it materialised in the will.
After referring to s 70 of the Administration and Probate Act 1929 (ACT), which allows the Supreme Court to permit a commission out of an estate, the primary judge referred to the clause being read out in full to the deceased. He also quoted the explanation given of the clause at [201], as follows: So basically that’s saying that if Kamy, or if Michael are acting as your Executor, they’re able to charge fees for acting in that role, OK? So they’d probably charge their hourly rates, um, for acting, um, as your Executor of your estate, and doing all the things that are necessary to administer your estate.
The primary judge recognised that the explanation did not distinguish the possibility of there being both professional fees and commission. However, his Honour considered that the explanation was enough to satisfy the requirements of knowledge and approval. His Honour made the appropriate point that the commission clause required approval of the court and noted that “the prospect of the Supreme Court approving a commission or percentage in addition to the usual professional fees must be low.”
The attack on the commission clause accordingly fails. In so doing it joins all of the primary grounds of appeal. Accordingly, the appeal must be dismissed.
Orders
I certify that the preceding eight-eight [88] paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date:
Pastrello
Saeedi
(1918) 25 CLR 519
(1995) 217 ALR 284
(1952) 86 CLR 439
The appeal was dismissed. The appellants were ordered to pay the respondents' costs of the appeal. Any application for an alternative costs order was to be made by written submissions within 14 days, for decision on the papers.
His Honour also referred to Nock v Austin (1918) 25 CLR 519 where this relevant passage appears at page 528: (1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents (Barry v. Butlin; Fulton v. Andrew). (2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document (Baker v. Batt; Tyrrell v. Painton; Shama Churn Kundu v. Khettromoni Dasi). (3) If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the document does contain the real intention of the testator, the Court is bound to pronounce its opinion that the instrument is not entitled to probate (Baker v. Batt; Fulton v. Andrew). (4) The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the Court of the evidence as to the testator’s appreciation and approval of the contents of the will (Barry v. Butlin and Fulton v. Andrew; per Lord Shaw in Low v. Guthrie). (5) But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification (per Lord James in Low v. Guthrie). (6) Nor does the rule require as a matter of law any particular species of proof to satisfy the onus (Barry v. Butlin). (7) The doctrine that suspicion must be cleared away does not create “a screen” behind which fraud or dishonesty may be relied on without distinctly charging it (Lord Loreburn L.C. in Low v. Guthrie). (Citations omitted)
At [23] his Honour drew together a number of propositions concerning the approach he should take. He said: Within the framework described above, a number of points about this issue can be made: (a) This is “not an arduous requirement” as it requires only that he “actually know the substantive content of [the will] … and approve of that content”: Vukotic v Vukotic [2013] VSC 718; 12 ASTLR 238 at [132]. (b) It is not necessary to prove understanding of the legal terminology employed: Greaves v Stolkin [2013] EWHC 1140 (Ch) at [73]. (c) It is not essential that the testator read the actual document or be told precisely what was in it if he or she had given instructions for a will to be prepared in those terms: Astridge v Pepper [1970] 1 NSWR 542 at 548. (d) The law has traditionally adopted a presumption of knowledge and approval arising, in the absence of suspicious circumstances, upon proof that a testator with testamentary capacity duly executed the will: Nock v Austin (1918) 25 CLR 519 at 528. There was then an evidentiary burden upon those impeaching the will to adduce evidence to displace the presumption. If such evidence was adduced, then the burden would shift to those propounding the will to establish knowledge and approval: Baker v Batt (1838) 2 Moo PC 317 at 321; 12 ER 1026 at 1027; Tyrrell v Painton [1894] P 151 at 157. (e) However, the approach based upon shifting presumptions has been criticised on the basis that the issue is a purely factual one and will depend upon the nature of the particular matters raised that might suggest that a properly executed will has not in fact been made with knowledge and approval of its terms: Carr v Homersham at [46]; Mekhail v Hana at [167]-[168]. (f) What is required to dispel suspicious circumstances will vary depending upon the gravity of those circumstances. The degree of suspicion may be slight and so easily dispelled. On the other hand, it may be so grave that it can hardly be removed: Wintle v Nye [1959] 1 WLR 284 at 291. See also Mekhail v Hana [2019] NSWCA 197 at [139]. (g) Suspicious circumstances that might call into question whether or not a will was executed with knowledge and approval of its terms do not necessarily have to arise from any wrongdoing. Rather, they are circumstances that give rise to a suspicion that the testator may not have known and approved the contents: Burns v Burns [2016] EWCA Civ 37 at [52].
The appellants do not assert that the primary judge misstated or misquoted the relevant principles, but they submit that “this case was one which called for special vigilance by the Court in regard to the issue of capacity and knowledge and approval”. The following passage was relied upon from Re: Estate of Griffith (Dec’d); Easter v Griffith (1995) 217 ALR 284 at 289-290: 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: Worth v Clasohm (1952) 86 CLR 439.
After setting out the relevant principles and describing the estate, his Honour moved on to a chronology. His Honour regarded a chronology as “significant” because it set the scene for the making of the 2020 will and it helped in the assessment of the deceased’s state of mind in the years up to the signing of the 2020 will.
His Honour identified the issue of whether or not the deceased was suffering from dementia at the time he executed the 2020 will. The mere fact of suffering from dementia does not of itself prevent a finding of testamentary capacity but it can be a significant indicator of such capacity.
His Honour described the effect of the death of Mrs Pastrello, in 2011, on the deceased and in particular his decline into depression and the excessive consumption of alcohol. His Honour continued the narrative describing the trials and tribulations of the deceased through the years describing both his medical and physical problems.
The medical issues described by his Honour included: (1) On 14 July 2017 Dr Kulh, a geriatrician, wrote to the deceased’s general practitioner noting some deterioration in the deceased’s cognitive function and “frontal lobe features including self-neglect, lack of judgment and insight.” Dr Kulh observed that the symptoms were “in keeping with a frontal lobe vascular dementia.” (2) A review with Dr Kulh on 3 August 2018 appears to have prompted the doctor to order a brain MRI. The results of the MRI were said to illustrate atrophy in the brain consistent with Alzheimer’s disease and “extensive chronic small vessel disease indicative of underlying vascular dementia”. (3) Through 2018 and into 2019 the deceased seemed to be drinking more, allowed his personal care to deteriorate and did not wish to have medical treatment. (4) On 7 February 2019 the deceased’s general practitioner expressed concerns about the deceased’s prostate cancer and resistance to treatment. The following day Dr Kulh referred the deceased to New South Wales Health’s Southern Mental Health Services. (5) The deceased was assessed by a nurse from Aged Care Services and, on 12 February 2019, he was admitted to the Kenmore Psychogeriatric Unit in the Goulburn Base Hospital. The psychiatry registrar observed that the deceased was suffering from “vascular dementia with behavioural disturbance - possible worsening of dementia (however there is probably more complicated family dynamic issues including vast financial issue).” (6) On 28 February 2019 Dr Judith Raymond, a specialist old-age psychiatrist, wrote: “Mixed vascular/Alzheimer’s dementia and associated issues, unable to manage his complex affairs and his self-care including keeping appointments with his doctors despite serious health concerns.”
On 8 March 2019 an application was filed in the ACT Civil and Administrative Tribunal (ACAT) seeking the appointment of the deceased’s three children as his guardians and financial managers. Orders to this effect were made on 15 March 2019 and later varied, on 9 July 2019, allowing the “children” to deal with leases relating to the deceased’s property without prior approval from the Public Trustee and Guardian.
The deceased’s medical history, as recorded by his Honour, continued: (1) On 1 March 2019 the deceased was transferred from Kenmore to the Calvary Public Hospital. Four days later he moved to the Calvary Private Hospital where he remained until 7 May 2019. (2) During his stay at Calvary Private Hospital the deceased was under the care of Dr Sivakumaran, a geriatrician. Dr Sivakumaran diagnosed a “mixed vascular Alzheimer type of dementia” and also depression. The doctor prescribed an anti-depressant and an anti-psychotic medication. (3) The deceased was discharged from the Calvary Private Hospital on 7 May 2019. His daughter Luisa lived with him for a few weeks and was then replaced by full-time carers. (4) In July 2019 Dr Sivakumaran thought that “he is now not exhibiting any behavioural issues” and accordingly stopped prescribing the anti-psychotic drug. (5) On 19 December 2019 the deceased was admitted to the Prince of Wales Private Hospital for knee replacement surgery. A Mini-Mental State Examination while in hospital produced a score of 20/30. Following surgery, the deceased was admitted to Eastern Suburbs Private Hospital from 27 December 2019 to 6 March 2020. Following discharge, the deceased returned home. Luisa lived with him. Plans to travel to Italy were cancelled due to the COVID pandemic. (6) On 11 May 2020 the deceased saw a Dr Chow, a consultant psychiatrist and psychogeriatrician. He saw Dr Chow again in July 2020. From [72] the primary judge set out Dr Chow’s observations from each consultation. These observations essentially stated that there had been a significant improvement in the deceased’s cognition and that “he has now regained his cognitive capacity to make decision[s] for his lifestyle, accommodation, care and financial arrangements.” After the second consultation Dr Chow observed: “He is able to retain and weigh up the pros and cons of the information given. He can communicate his [decision-making] clearly.” Dr Chow specifically addressed the opinions expressed by Dr Kulh in July 2017 and said the deceased’s condition was “totally different”. He said: “There is no current evidence of self-neglect and he now has good insight and judgment.” (7) The deceased was taken to Canberra Hospital on 27 August 2020 complaining of a sore back and “being groggy due to medication and becoming disengaged from his businesses while at Canberra Hospital.” (8) In order to assist with rehabilitation, the deceased was admitted to Eastern Suburbs Hospital on 13 November 2020. On 28 November 2020 the deceased was transferred to the Prince of Wales Hospital. On 2 December 2020 a cardiac stent was inserted and a (probably temporary) pacemaker put in place. Then on 8 December 2020 the deceased underwent spinal surgery, in particular a thoracic decompression and posterior fixation. It is worth observing here that both the cardiac and the spinal surgery were significant operations which one would not have been expected to have been carried out on a person lacking cognitive capacity. (9) The 2020 will was executed while the deceased was in the Prince of Wales Hospital. (10) The deceased went back to Eastern Suburbs Hospital for rehabilitation on 8 January 2021 but returned to the Prince of Wales Hospital on 18 January 2021 due to a wound infection. On 27 April 2021 the deceased went back to Eastern Suburbs Hospital until 6 June 2021 when he returned to the Prince of Wales Hospital. The deceased had a short admission to Eastern Suburbs Hospital and another return to Prince of Wales Hospital before being discharged to Presbyterian Aged Care in Paddington on 16 July 2021. He was transferred to St Vincent’s Hospital on 4 August 2021 where he died on the same day.
The primary judge interspersed his comments about the deceased’s medical condition with lay observations of the deceased, in particular the improvements that had been noticed in 2020. His Honour stated, from [76]-[79]: Robert’s observations from his interactions with Lorenzo were that, following his discharge from hospital in March 2020, his health and behaviours had improved significantly: (a) Lorenzo was no longer drinking heavily; (b) his paranoia did not impact upon his social interactions as it had previously; and (c) he would attend the Pub most days and would discuss the business and cashflow of the Pub with Robert and other employees of Gratory. At the time of the ACAT application in June and July 2020, Robert observed that: (a) Lorenzo was not drinking excessively and not drink driving; (b) he was not acting aggressively or displaying signs of paranoia or confusion; (c) his mobility was more limited than previously, although he would direct his carers to take him to visit the family businesses or attend medical appointments; (d) he regularly spent time with Robert’s sons, who would visit him after school; (e) he regularly discussed with Robert the Pub and its renovations, Prosper Stud, how Robert’s children were going, and the progress of the case against the fraudulent business associate. Carl said that he was happier, more alert, and only drinking a limited amount of alcohol. Carl would play checkers with him and the games were competitive. Luisa’s observations of Lorenzo were summarised in her statement made for the ACAT proceedings (see [67] above). In oral evidence, she said he could make decisions about what he wanted to do each day. In terms of financial decisions, he was able to convey to her that he wished to sell his share of the Yarralumla property, he was well aware of his property holdings, and he understood the business conducted for the Eaglehawk property and the role that Gratory played in the business.
The above observations by lay persons are important because they confirm the significant medical improvement that had been identified by Dr Chow and seemed to continue until, and beyond, the execution of the 2020 will.
After setting out instances when the deceased had expressed a desire to change his will, the primary judge described the preparation and execution of the 2020 will. Various discussions led to a Ms Tanya Herbertson, from the firm of MV Law, being engaged to prepare a will. Ms Herbertson went to Sydney to take instructions from the deceased. She had been provided with a part of the deceased’s medical history which included Dr Kulh’s 2017 opinion about dementia and also the later opinion from Dr Chow. Ms Herbertson was clearly armed with information that would have led her to be very careful about the deceased’s testamentary capacity.
Ms Herbertson and a Mr Masscitti, also a solicitor, saw the deceased in hospital on 18 December 2020. The deceased asked if Luisa should be present. Ms Herbertson, consistent with the guidelines given by Kunc J in Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007 at [107] said Luisa ought not to be present. It is worth noting here that Ms Herbertson seems to have endeavoured to apply all of the guidelines in her efforts to ensure the unblemished execution of the will.
The primary judge at [114] set out a list of events that he described as the “basic structure” by which Ms Herbertson took instructions.
Ms Herbertson obtained the deceased’s consent to her recording, on video, their conversation. The video was played in evidence (32.05 minutes in length) and a transcript was tendered. The impression given by the video is one of Ms Herbertson seeking to obtain details from the deceased. There are examples of the deceased perhaps not being fully cognisant of his assets. For example, at one stage he says he does not have a company but when reminded of the name (Gratory) he does have a recollection.
His instructions have a definite air of understanding. For example: Tanya: Um, so you’re thinking that you want to divide the estate up, um with the result that each of your children will get a share, um and each of the grandchildren will get a lesser share, which is half of what the kids get, is that what you’re thinking? Lorenzo: Or every every grandchildren will have a one share, and then my children will have a two share.
And then a little later: Tanya: OK. What sort of age do you want the grandchildren to have attained before they can get um control of their inheritance? Lorenzo: Oh, they have to be over 21. That is normal, isn’t it?
Again, reflecting Ms Herbertson’s apparent appreciation of the guidelines in Ryan, Ms Herbertson did not overwhelmingly ask leading questions which might have given rise to an impression of the ‘Noddy’ Syndrome.
The appellants placed considerable significance upon two sets of questions and answers in the video. They occur from 16.36 and at 18.11 respectively. The first is: Lorenzo:C What do you reckon, Michael, could we give part of each to each children, a double to each son? Michael: So you – Lorenzo: Say for example if was 100, we get the three adults, so much. And the five young, one half of what they got, the big one got. Tanya: So giving a set amount for each of the three children. Is that what you’re saying? Lorenzo: Mm. Michael: I understand him to say the children get double what the grandchildren get. Tanya: Right, that’s what you were thinking? Lorenzo: it sounds a bit better, what do you reck… What do you think?
The second is: Tanya: Um, so you’re thinking that you want to divide the estate up, um with the result that each of your children will get a share, um and each of the grandchildren will get a lesser share, which is half of what the kids get, is that what you’re thinking? Lorenzo: Or every every grandchildren will have a one share, and then my children will have a two share
The appellants submitted that the first of the above statements by the deceased was a statement that the whole of the estate was to be divided into three parts with each of the deceased’s children receiving 1/3 of two of the parts and the third part being divided equally between the five grandchildren. The second statement was said to be consistent with this intention. There are a number of difficulties with this submission: (1) The first statement is equally consistent with an intention to divide the estate as it was ultimately divided in the will. (2) The second statement is perhaps consistent with both interpretations but is much more a direct statement that each child should get double the share of each grandchild. In other words this is a confirmatory statement of the 11 share approach included in the will. (3) After the will had been prepared and the deceased was taken through its contents he was specifically directed to the ‘11 share’ clause. He did not disagree, nor did he, perhaps consistent with an unthinking acquiescence, simply say ‘Yes’; rather he raised a legitimate point concerning his daughter Luisa. In other words there is a definite indication of agreement with the clause but a desire to ensure the interests of Luisa. (4) Watching the video does not raise any suspicion of an uncertain person. To the contrary he appears to be confidently stating his thoughts.
The video was heavily relied upon by the appellants, the depiction suggested to be of a frail old man struggling with understanding the two lawyers in his company and the matters they were discussing. The Court’s impression of the video is quite different. It is that there is an elderly gentleman fully aware of what he is discussing, sometimes serious, sometimes with humour and frequently, and most importantly, with a challenge to the subject under discussion.
The appellants referred to a hospital note later in the afternoon, prepared by a physiotherapist, that suggested the deceased could not be fully woken up at 2.50pm and was drowsy. This was said to confirm perhaps delirium or cognitive incapacity. It would be a very strange conclusion indeed to suggest that an 85-year-old person would not have a nap in the afternoon in particular after spending some hours in the company of two lawyers. It is also noted that Dr Caplan saw the deceased later in the day and observed that the deceased was “doing well with physio and in good spirits”.
The value of a recording was specifically referred to by Hodgson JA in Zorbas v Sidiropoulos (No 2) [2009] NSWCA 197, at [65]: The criteria in Banks v Goodfellow are not matters that are directly medical questions, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for commonsense judicial judgment on the basis of the whole of the evidence. Medical evidence as to the medical condition of a deceased may of course be highly relevant, and may sometimes directly support or deny a capacity in the deceased to have understanding of the matters in the Banks v Goodfellow criteria. However, evidence of such understanding may come from non-expert witnesses. Indeed, perhaps the most compelling evidence of understanding would be reliable evidence (for example, a tape recording) of a detailed conversation with the deceased at this time of the will displaying understanding of the deceased’s assets, the deceased’s family and the effect of the will. It is extremely unlikely that medical evidence that the deceased did not understand these things would overcome the effect of evidence of such a conversation. (Emphasis added.)
After drawing up the will from her instructions Ms Herbertson returned to the deceased and read the will to him. This is often seen as an important indicator of understanding. Repeating the passage from Tobin, at [47]: Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be “the most satisfactory evidence” of actual knowledge of the contents of the will: Barry v Butlin at 484; 1091; Gregson v Taylor [1917] P 256 at 261; Re Fenwick [1972] VR 646 at 652.
The care taken by Ms Herbertson is different to that referred to by Hallen J in Robertson v Barker [2021] NSWSC 1682 at [164] where his Honour quoted from the Canadian decision of Friesen and Holmberg v Friesen Estate (1985) 33 Man R (2d) 98 at 107: Neither the superficial appearance of lucidity nor the ability to answer simple questions in an apparently rational way are sufficient evidence of capacity. The duty upon a solicitor taking instructions for a will is always a heavy one. When the client is weak and ill, and particularly when the solicitor knows that he is revoking an existing will, the responsibility will be particularly onerous. A solicitor cannot discharge his duty by asking perfunctory questions, getting apparently rational answers, and then simply recording in legal form the words expressed by the client. He must first satisfy himself that true testamentary capacity exists, that the instructions are freely given, and that the effect of the will is understood.
Ms Herbertson obviously knew the deceased was “weak and ill”. She knew he was revoking an existing will. Nevertheless, she was at pains, as evidenced by her making of the video recording, to satisfy herself of the deceased’s “true testamentary capacity”.
The primary judge analysed the expert evidence. Prof Brew was retained by the plaintiffs. Dr Ryan provided reports for the defendants. The primary judge noted that Prof Brew had based his opinion on the video. He did not agree with Dr Kuhl’s findings of dementia. He analysed the various scoring techniques that had been applied and said that some atrophy in the brain was not unusual in elderly patients.
Dr Ryan’s view was that there had been a correct diagnosis of dementia in 2019 and that Dr Chow was wrong. The primary judge recorded the following summary of Dr Ryan’s opinion at [144]: He also expressed the opinion that, at the time of the preparation of the will, the deceased was suffering from a mild delirium. His ultimate opinion was that the cognitive impairments would not have compromised Lorenzo’s capacity to understand the significance of making a will or to understand the nature and effect of his will. However, it would have compromised his capacity to be aware of the nature and extent of his estate and would have compromised his awareness of those who might reasonably be thought to have a claim upon his estate. He also expressed the opinion that it would have compromised his capacity with respect to weighing up and discriminating between the respective claims of the potential beneficiaries.
It is important to remember that this is not a case where a testator has, for no apparent or logical reason, included random persons or entities as beneficiaries in a will. The deceased’s children are of course the persons most obviously to “reasonably be thought to have a claim” on the deceased’s estate. But the deceased’s grandchildren might also be thought of as persons a testator might consider as having a claim on the estate. They are the children of his children and are the anticipated recipients of the estate from their parents. They are not unrelated persons or persons of possible influence, such as a carer or a business partner, whose inclusion as a beneficiary might be seen as inappropriate or undeserved.
The plaintiffs also relied on the reports of Dr Chow that have been mentioned above. The primary judge stated his conclusions about the oral evidence that was given by Prof Brew and Drs Ryan and Chow.
His Honour was impressed by all of the experts. He said at [163]: Their reports were clear. Assisted by competent and fair cross-examination and re-examination, they gave oral evidence in a manner that was consistent with their role as experts assisting the court. They recognised uncertainty where it appeared. They identified their views, and the reasons for their views, fairly.
Ultimately his Honour favoured the opinion of Dr Chow, not only because his views were corroborated by Prof Brew, but also because Dr Chow had actually seen and treated the deceased.
It is to be remembered that Dr Ryan and Prof Brew were both ‘retrospective’ expert witnesses. Logically the value of their evidence must be regarded as less persuasive than that of an expert who actually saw and treated a testator. This point was made by Hallen J in Starr v Miller [2021] NSWSC 426 at [487]: I have paid close attention to the evidence of Dr Cetiner. Unlike some other probate cases in which experts called provide an opinion on the deceased's capacity based on a retrospective evaluation and review of the evidence, all of the medical evidence in the present case was given by doctors, and others, who had contact with the deceased. Each of Dr Cetiner, Dr Guerin and Ms Christopherson, whose evidence, or documents are relied upon, had the advantage of having personally carried out interviews, examinations and clinical assessments of the deceased. The evidence of each is important because it is generally recognised that the evidence of treating practitioners is of more assistance to the Court than that of medical experts who lack the opportunity to observe, and assess, the deceased first-hand: Nicholson v Knaggs, at [39] (Vickery J).
After completing his review of the expert evidence, the primary judge turned to the question of testamentary capacity. Before giving a detailed analysis, his Honour summarised his views at [169]-[170]: In my view, each of the three principal sources of evidence relating to the capacity of Lorenzo to make his will support the proposition that he did have capacity. (a) The evidence captured in the video is consistent with Lorenzo having capacity to make a will. (b) To the extent to which there might be a difference between what may be observed on the video and what occurred in the room, the opinion of both solicitors present was that he had capacity. (c) I have accepted the evidence of Dr Chow and Prof Brew in preference to that of Dr Ryan in relation to his capacity and in relation to whether or not he was suffering from dementia at the time. Further, the content of the will was not outside the scope of Lorenzo’s previously expressed intentions.
It should be obvious from the above description of the primary judge’s reasons that his Honour was careful to address all of the issues between the parties and reach a conclusion derived from the evidence before him, culminating in a “commonsense judicial judgment” as referred to by Hodgson JA in Zorbas, at [65] (quoted above).
A number of the complaints made by the appellants have been dealt with in the above analysis. Some further comments will be made in respect of each ground of appeal.
There was no lay evidence to suggest any cognitive disadvantage when the will was executed. To the contrary, the evidence of the witnesses and the video recording all suggest that the deceased was not having cognitive problems such that his testamentary capacity might have been compromised.
The primary judge was obviously impressed by the video which, together with the lay evidence and the medical evidence, satisfied his Honour that the deceased had testamentary capacity when he executed the will.
The essence of the attack on testamentary capacity seems to emanate from an assertion that the deceased was unaware of the detail and extent of his assets. For example, it is said that he could only identify a Sydney property as being near the new airport, he had no recollection of the Bible House property and he did not seem to remember anything about Gratory Pty Ltd.
It is not a requirement that the testator can readily identify each component. In Kerr v Badran [2004] NSWSC 735, Windeyer J said, at [49]: Older people living today may well be aware that they own substantial shareholdings or substantial real estate, but yet may not have an accurate understanding of the value of those assets, nor for that matter, the addresses of the real estate or the particular shareholdings which they have. Many people have handed over management of share portfolios and even real estate investments to advisers. They may be quite comfortable with what they have; they may understand that they have assets which can provide an acceptable income for them, but at the same time they may not have a proper understanding of the value of the assets which provide the income. They may however be well able to distribute those assets by will.
White J made this comment about Kerr in d’Apice v Gutkovich - Estate of Abraham (No. 2) [2010] NSWSC 1333, at [105]: Kerr v Badran establishes that the Banks v Goodfellow test may not require that older people know of each particular asset, let alone the value of each asset comprising the estate.
The primary judge, consistent with Kerr, specifically dealt with the deceased not recalling the Bible House property, at [174]: So far as the failure to recall Bible House is concerned, for a very wealthy man in his position with numerous properties, it is not necessary that he recall each individual aspect of his estate in order to be demonstrated to have testamentary capacity. That is particularly the case where, as here, the estate was to be dealt with as a whole and there were not intended to be specific gifts. It is notable that he was simply asked to list his properties and was never prompted in relation to having missed this asset. There is no doubt that, if prompted, he would have recalled that he owned Bible House and identified that it would form part of his estate.
It is also noteworthy that during the cross examination of Mr Eddy Pastrello, this exchange occurred: Did it surprise you that he asked less frequently about Bible House than the farm, Queanbeyan, the Pub and the park?--- No. Why didn’t it surprise you?--- Because he - he held his - it - the main properties that he - that he - the main properties that he wanted to look after was the - the farm and the Eaglehawk property.
Further, the identification of a property as being near the new Sydney airport was factually correct and it seems clear that once reminded of Gratory Pty Ltd, the deceased confidently said “Ah Gratory, yes”. In respect of this company, the primary judge said, at [175]: In relation to the discussion of “Gratory” in the video, I do not accept that what is recorded on the video involved a failure to recognise Gratory Pty Ltd as the company involved in his main Eaglehawk businesses. Rather, the uncertainty about Gratory arose because of references to other companies with “Gratory” in the name. He was asked about a company incorporated in August 2020 (after the appointment of Mr Lo Pilato as his financial manager) Gratory (Water Services) Pty Ltd. In expressing confusion about “Gratory” following the reference to Gratory (Water Services) Pty Ltd, Lorenzo was not expressing any confusion about the existence or name of his principal operating company.
The first ground of appeal must fail. The second ground of appeal; evidence of the medical experts
As noted in the respondents’ submissions, the appellant’s primary assertion is that the primary judge “failed to have proper regard to the fact that Lorenzo may have been suffering from delirium at the time that he executed his will.” A secondary point is that the deceased had taken a number of painkillers during the day which perhaps had affected his testamentary capacity.
The submission was put on the basis of Dr Ryan’s opinion that the deceased was probably suffering from delirium which in turn caused a reduced cognitive capacity. On 10 December 2020 a Dr Caplan had recorded “possible delirium” and “cognitive function varying with analgesia”.
In his synopsis Dr Ryan states: In my opinion at 18 December 2020, Mr Pastrello’s likely dementia was more likely than not complicated by a mild delirium related to his consumption of prescribed opioid pain relievers and the antipsychotic olanzapine. The delirium would have further compromised Mr Pastrello’s cognitive ability to make a will.
The presence of delirium continues through the opinions expressed by Dr Ryan.
Two matters arise from this conclusion. Firstly, Dr Ryan seems to have graduated a finding of a possible delirium on 10 December 2022 to a certain delirium, albeit mild, on 18 December 2020. Secondly, Dr Ryan’s comment on the deceased’s ability to make a will amounts to a medical opinion about testamentary capacity, a question which is legal, not medical (Briton at [45], quoted above).
It is also worth noting that Dr Caplan saw the deceased on occasions after 10 December 2020 and did not repeat his concerns about delirium.
Perhaps more importantly, the primary judge accepted as he was entitled to do, medical evidence to the contrary. He said at [167]: So far as the suggestion that Lorenzo was suffering from delirium on 18 December 2020 is concerned, I accept Prof Brew’s evidence in preference to that of Dr Ryan. That is because, although Lorenzo was at risk of delirium, Prof Brew identified that none of the primary medical records from 10 December 2020 until at least 18 December 2020 were consistent with Lorenzo suffering from delirium. Further, Prof Brew did not see any signs on the video of Lorenzo suffering from delirium. It was therefore more likely than not he was not suffering from delirium at the time that he gave instructions for or executed the will.
The appellants’ written submissions list the drugs referred to in the medical notes which were prescribed or administered on 18 December 2020, the day on which the will was executed. The suggestion seems to be that the necessity to have taken so many painkillers could be an indication of very severe pain or a dulling effect of the medication which might have influenced the deceased’s cognitive capacity.
The timing of the administration of the medication does not support the appellants’ submission. Endone was prescribed at 10:20am and 7:15pm. Palexia was prescribed at 9pm. Targin was administered at 8am and 8pm. It is clear therefore that the only medication taken before the execution of the will was Targin at 8am and Endone at 10.20am. The impression sought to be conveyed by the submission of the consumption of a large amount of painkillers can simply not be sustained.
This ground of appeal also fails.
The primary judge then went on to deal with the involvement of the first respondent and Mr Mascitti. They had played no part in the lead up to the will and in fact it was necessary for the first respondent to be contacted during the preparation of the will to see if he agreed to be the executor. There was no suggestion of undue influence.
Once again, the ground of appeal fails.