Succession - Making of a will - Testamentary capacity - Generally - Challenge by plaintiff against mother's will which bequeathed $10,000 to each of her 15 grandchildren and the residual to her six children - Plaintiffs claim that testatrix lacked testamentary capacity when making will unsupported by evidence - Plaintiff's claims of fraud, mistake of fact and undue influence unsupported by evidence - Claim dismissed - Counterclaim for probate granted.

Wills Act 2008 (Tas) s 8

Haberfield and Ors v Larsson [2023] VSC 161

Kantor v Vasahlo [2004] VSCA 234

Judgment Number: [2025] TASSC 8

GABRIELLA JEAN PISCIONERI v DAVID MILNE WHITEHOUSE, MATTHEW DOMINIC PISCIONERI and GENEVIEVE MARIA GATES

1. Marie Theresa Piscioneri ("the testatrix") was born on 16 October 1926. She passed away on 17 June 2021. Her husband Joseph Piscioneri pre-deceased her in 2008. The couple had six children. The first born child was a boy called Francis Walter. He was 73 years old at the time of his mother's death. The second born child was the third defendant, Genevieve Maria Gates. She was 68 years of age at the time of her mother's death. The third born child was Mark Peter Piscioneri. He was 65 years of age at the time of his mother's death. The fourth born child was the plaintiff. She was 62 years of age at the time of her mother's death. The fifth born child was Matthew Dominic Piscioneri, the second defendant. He was 59 years of age at the time of his mother's death. The sixth and last born child was Gioa Anna-Maria Piscioneri who was 56 years of age at the time of her mother's death.
2. The last will and testament signed by the testatrix was her will, dated 9 May 2019. In summary that will bequeathed $10,000 to each of her 15 grandchildren and the remainder to her six children in equal parts. It had long been an issue of contention between the testatrix and the plaintiff as to whether it was the right thing for the testatrix to do to leave money to her grandchildren before the rest of the estate was distributed amongst the testatrix's children. Greater detail of this conflict will be referred to later in these reasons. It is suffice to say, at the moment, that previous wills signed by Ms Piscioneri variously did or did not contain a bequest to the grandchildren.
3. Each of the defendants is named in the 8 May 2019 will as a trustee and executor. They are sued as defendants in their capacity as administrators of the estate of the testatrix. The first defendant, Mr Whitehouse, was the solicitor of the testatrix at the time of the making of her 2019 will and for several years beforehand.
4. On 6 December 2021, the plaintiff filed a writ in this Court's probate division seeking a decree pronouncing that the will of the testatrix dated 8 May 2019 is invalid. Earlier, on 3 August 2021, an intention to apply for probate was published on the Supreme Court's website by the first defendant. The plaintiff subsequently filed a caveat on 18 August 2021. She filed her statement of grounds of objection on 4 November 2021. The defendants filed a Notice of Appearance on 16 May 2022 and on 14 June 2022 the plaintiff filed her Statement of Claim in the proceedings.
5. The first issue raised by the Statement of Claim was that the will of May 2019 was affected by fraud, mistake or breach of contract. The plaintiff claimed that the testatrix acted fraudulently or in breach of her moral contract, or was mistaken in making a will that was different to the mutual wills she and her husband had agreed upon during their marriage. The second reason for challenging the will was that the plaintiff alleged that the testatrix lacked testamentary capacity on 8 May 2019 when making the will. It was also alleged that she was of unsound mind and did not approve or understand the contents of the will. An allegation of undue influence was also made in the Statement of Claim. However there was no cogent evidence to support that allegation. In written submission filed by the plaintiff, she asserted that the second and third defendants exercised undue influence over the testatrix. There is no evidence whatsoever to support this submission. The fact that the testatrix was more dependent on the second and third defendants for assistance than the plaintiff, was a matter of geography rather than anything else. This was because for the vast majority of the recent years of the testatrix's life, the plaintiff was resident in Canberra and rarely saw the testatrix.
6. The defendants deny that the will was affected by fraud, breach of moral contract, mistake or that there was an agreement between the testatrix and her husband, Joseph, for mutual wills. The defendants claim that the testatrix had testamentary capacity to make the 8 May 2019 will and that it is a valid will. The first aspect of the plaintiff's challenge to the will based on assertions of fraud, mistake of fact, and contract, were not supported by any cogent evidence.
7. The defendants have counterclaimed. In the counterclaim they note that the testatrix duly executed wills and codicils in accordance with instructions given to the first defendant on each of the following occasions:
   • 28 March 2013;
   • 6 April 2018;
   • 10 September 2018;
   • 30 September 2018;
   • 8 May 2019
8. The 8 May 2019 will, according to the defendants, was made in circumstances, when the testatrix had the capacity to comprehend the nature of what she was doing when she gave instructions for her will to be drawn and when she executed it. The defendants seek a grant of probate in solemn form in respect of the 8 May 2019 will.
9. Further, or in the alternative, if probate is not granted in respect of the 8 May 2019 will the defendants, in their counterclaim, seek that the will of 6 April 2018 and the codicils to that will, dated 10 September 2018 and 30 September 2018, be the subject of probate because they were made when the testatrix had testamentary capacity.
10. In her opening address, the plaintiff, who for several years was a lawyer conducting a sole practitioner's practice in Canberra, submitted that the will of 8 May 2019 was invalid because of lack of testamentary capacity. The plaintiff submitted that the testatrix did not understand the contents of the will. She claimed that the testatrix was unable to see the will, unable to read it and that it was not explained to her. The plaintiff claims that the 6 April 2018 will and codicils were also made when the testatrix lacked testamentary capacity. The plaintiff said that she challenged the 2018 will "more or less on the same basis" as the challenge to the 2019 will. The plaintiff also stated in her opening in that she had a conversation many years ago with her father, who told the plaintiff that he and his wife (the testatrix) had mutual wills where they left their estate to each other and after that, to each of the six children. There was no reliable evidence, in documentary form or otherwise, to show that the testatrix and her deceased husband, at all times, were to have mutual wills. In any event, the testatrix's husband was no longer alive at the time of the making of the 2018 will and codicils, and the 2019 will, which are central to this proceeding. The testatrix's husband's will of 22 February 1995 is in evidence. There is nothing on the face of it to suggest an agreement between him and the testatrix for mutual wills.
11. The plaintiff also raised the concern about the first defendant inserting a "charging clause" into the will whereby his firm of solicitors were able to charge for work done by him in his capacity as an executor. This matter is discussed below at [27].

1. In early 2013, the testatrix consulted the legal firm, Page Seager. She then signed a will drawn by that firm dated 6 February 2013. In that will the executors and trustees were the current second and third defendants. The will left a sum of money to each grandchild and then to the rest of her children who survived her. A provision was also made in relation to a gift to the Fred Hollows Foundation.
2. Not content with the will drawn by Page Seager, the testatrix consulted the first defendant, who was a former partner of the firm Murdoch Clarke, and had been working as a consultant with that firm. As a result of that consultation the testatrix signed a new will dated 28 March 2013. In that will the testatrix left her estate to her children. There was no mention of any bequest to grandchildren or to a charity.
3. The next will signed by the testatrix is dated 6 April 2018. It was also drawn by the first defendant on instructions from the testatrix. It makes no reference to a bequest to the grandchildren. It leaves the estate in equal parts to each of the testatrix's six children.
4. On 10 September 2018, the testatrix signed a codicil to her 6 April 2018 will in which she bequeathed $10,000 to each of her 15 grandchildren and thereafter desired that the remainder of her estate be divided equally amongst her six children. The codicil was handwritten by the testatrix. Absent any photocopying facilities at her home, the testatrix wrote out the codicil twice. She invited her neighbours, David and Michelle Baker, to come into her home to witness her signing the codicil. Each of them did so. Each of them gave evidence before the Court that there were two separate pieces of paper effectively saying the same thing, each written by the testatrix. That is, bequeathing $10,000 to each of the 15 grandchildren upfront prior to any distribution to the testatrix's children. The testatrix subsequently notified the first defendant as to what she had done. She sent a letter with a copy of the codicil to the first defendant, who at this stage was a consultant to the firm Murdoch Clarke. The first defendant replied to the testatrix in a letter dated 13 September 2018, saying as follows:

"I acknowledge receipt of your letter with the amendments to your will contained in it. Whilst it has been done informally, I think it is valid, but I also think it would be best to be on the safe side and do it formally. Accordingly I enclose a codicil with which you should do the following:

1. Assemble two witnesses Michelle Baker and David Baker will be fine;
2. Date the document where indicated;
3. Sign where indicated; and
4. Have Michelle and David Baker also sign where indicated. If they are not available then any other two independent people will suffice. If you will then return the document to me I will check to make sure it is in order and keep with your will.

1. The enclosed codicil in the 13 September 2018 letter from Murdoch Clarke became the signed codicil on 30 September 2018, which replaced the 10 September 2018 codicil. The codicil of 30 September 2018 said as follows, omitting formal parts:

"1 I give and bequeath the sum of ten thousand dollars ($10,000) to each of my grandchildren who survive me.

1. By codicil I herby revoke the first codicil to my will which I made on 10 September 2018 but in all other respects I confirm my said will."
2. On 8 May 2019, the testatrix made a further will. There is no evidence before the Court of any other or later will made by the testatrix. The relevant points to be made in respect of this will are as follows. First, it appointed the defendants as trustees and executors. Second, it bequeathed the sum of $10,000 to each grandchild of hers who survived her. Third, it bequeathed the rest and residue of her estate, both real and personal to her executors or trustees upon trust after payment of any just debts relating to funeral and testamentary expenses and all duties payable on her estate to each of her six children in equal shares.
3. In her written submission, the plaintiff asserts that there is no evidence that the testatrix read the 2018 codicils, or her will of 8 May 2019, or that the codicils of 10 September 2018 were written by her. The evidence of David and Michelle Baker is sufficient to show that the testatrix handwrote the two codicils of 10 September 2018. A discussion of the evidence below shows that the testatrix was aware of the contents of the 2018 codicils and her will of 8 May 2019, which was a tidying up exercise. It amalgamated the provisions of the 6 April 2018 will and codicil and produced them in a new will, which was a stand alone will, without a codicil.

1. The plaintiff has claimed that the testatrix lacked testamentary capacity to make the will of 8 May 2019. All the evidence before the Court on this topic points in the opposite direction. On the major bone of contention between the plaintiff and testatrix, that is, whether or not it was desirable for the testatrix to leave money to her grandchildren, the evidence of the plaintiff herself shows that this was a matter of serious discussion between the testatrix on the one hand and the plaintiff on the other, and between the testatrix on the one hand and the second defendant on the other, over a significant period of time. The evidence of discussions between the testatrix and those two of her children show that the testatrix waxed and waned as to whether she would make a provision for her grandchildren, culminating in a decision in September 2018 that she would, in the sum of $10,000 each. That was affirmed by her in the making of the will of 8 May 2019. At that time, the plaintiff was not in Hobart and she was not able to give any direct evidence of any discussions with the testatrix around that time in relation to her affirmation of her desire to bequeath money to her grandchildren. Earlier, in the February 2013 will, the testatrix had left $5,000 each to her grandchildren. That position was reversed in the will of 28 March 2013. The plaintiff, under cross-examination, gave evidence of a 2015 discussion with her mother, the testatrix, regarding the need to cater for grandchildren in the will. The position remained, between March 2013 and April 2018, that no such provision was made.
2. The second defendant gave evidence of discussions with his mother as to the desirability or otherwise of leaving money to the grandchildren and also concerning the fact that he had a view that it was a good idea and also that the plaintiff thought that it was a bad idea. The second defendant said that it was a matter that his mother, the testatrix, gave serious consideration to. The plaintiff gave evidence that when she last discussed the matter with her mother, the testatrix was of the view that it would assist the grandchildren because it would give them "a leg up". There is no evidence in the proceeding which indicates that the testatrix did not know what she was doing and did not give serious consideration to whether or not she should leave money to her grandchildren in advance of the estate being split up amongst her children. The testatrix had the testamentary capacity to make a decision in signing her May 2019 will as to whether she wanted to continue the position she had arrived at in September 2018 to make a bequest to her grandchildren. The first defendant gave evidence that he drew the 8 May 2019 will and mailed it out to the testatrix with instructions as to how the will should be executed, including placing crosses and notations where various people should sign, being the testatrix and the witnesses. The first defendant said that he had clear instructions from the testatrix as to the contents of her will. David Baker gave evidence that he was a neighbour of the testatrix and that he was asked to witness the signing of the 10 September 2018 codicil. He gave evidence that there were two documents in materially identical form, in the hand writing of the testatrix, which were designed by her to be a codicil to the will that she had made in April 2018. He gave evidence that the testatrix mentioned that she was bequeathing her grandchildren some money. He said the testatrix signed the codicil in his presence. He said the same occurred with the second copy of the document. He said that there was no sign that the testatrix was in any way impaired cognitively at the time of signing the codicil. Mr Baker came back to perform the same exercise in respect of the more formal 30 September 2018 codicil and did not notice any material change in the ability of the testatrix to understand what she was doing. Mr Baker returned to the premises occupied by the testatrix, next door to his, on 8 May 2019 and again witnessed the signing of that will by the testatrix. He said that there was no change in her cognitive status from the earlier occasions, being 10 and 30 September 2018, right through to the signing of the last will on 8 May 2019. Michelle Baker, the wife of David Baker, also gave evidence that she witnessed the signing of the September 2018 codicils and the 8 May 2019 will in the same manner as her husband David had done. She gave evidence of being closer to the testatrix than her husband was. She said that at the time of signing of the relevant documents, the testatrix was very conversational, that she was often the driver of conversation, and that she spoke about a wide range of topics in a coherent way. Mrs Baker said that the testatrix spoke very warmly about her grandchildren and showed her photos of them and was very aware what the grandchildren were up to and spoke about leaving them money in the will. The plaintiff submits that the Baker's gave untruthful evidence. At no time, did the plaintiff put to the Baker's, when they gave their evidence that they were being untruthful. The same may be said of the evidence of the second and third defendants and the plaintiff's criticism about them given untruthful evidence.
3. The Court also has before it evidence of other siblings of the testatrix other than the plaintiff. Each of them who gave evidence spoke of the mental acuity of the testatrix around about the time of the making of the will in April 2018, the codicils in September 2018, and the last will in May 2019. There was some evidence about the testatrix becoming frail towards the end of 2018 and early 2019 and onwards. There was no evidence about her lack of mental capacity to know what she was doing, especially in respect of her affairs regarding her will and her finances, including her property portfolio. There was a suggestion in some of the evidence that her eyesight was failing and that she often used a magnifying glass but there is no evidence to suggest that she had not understood what she was doing when she made her will and codicils in 2018 and her will in 2019. She was giving effect to an intention, well known and well expressed and well debated between her and at least two of her children, as to whether she should make provision for her grandchildren in her will, as she ultimately did.
4. The witnessing of the 2018 will on 6 April 2018 occurred at the premises of Murdoch Clarke. An executive assistant employed at the time at that firm, Ms Lynette Ellis, gave evidence that she was called into the boardroom to observe the testatrix sign her will and that she witnessed the signing of the will as indicated by the evidence of her signature on it, as well as that of the first defendant. The first defendant was also a witness to the signing of this will. He gave evidence that when the testatrix signed this will she appeared to him to be competent to do so. Formal requirements for the execution of the 2019 will and the 2018 will and codicils were complied with in accordance with s 8 of the Wills Act 2008. Therefore the wills and codicils are assumed to be valid in the absence of any evidence to the contrary. In this regard it is also important to note that the second defendant gave evidence that her mother's mental health was excellent in 2018 and 2019. The allegation of the plaintiff that the testatrix suffered from bi-polar disorder is not supported by any evidence, medical or otherwise.

General principles regarding testamentary capacity

1. In Kantor v Vasahlo [2004] VSCA 235 at [37], Buchanan and Phillips JJA (with whom Ormiston JA agreed) said:

"a propounder must show that at the relevant time a testatrix knows what she is doing and the effect of her dispositions; she must know what estate she has to dispose of and what persons might have a claim upon her bounty."

1. The evidence before the Court discloses that the testatrix was aware of, and appreciated the significance of what she was doing, when she was making her will in May 2019 and her April 2018 will and September 2018 codicils. There is no evidence that she was not, in general terms, aware of the character, extent and value of her estate or aware of those who might reasonably be thought to have claims on her estate and the nature and basis for those claims. From the discussions that she had with various children who gave evidence before the Court, she had the ability to evaluate and discriminate between the respective strength of those claims. She was involved in discussions in late 2018 with the second defendant in particular, about the desirability or otherwise of leaving money to her grandchildren. In those discussions she stated that she desired to do so. The second defendant agreed that it was a good idea. The discussions with the plaintiff on the topic included earlier ones in 2018 where she expressed a contrary view.
2. As Cavanough J said in Haberfield and Ors v Larsson [2023] VSC 161 at [21]:

"Once the proponent establishes a prima face case of sound mind, memory and understanding with reference to the particular will, for capacity may be either absolute or relative, then the onus probandi lies upon the party impeaching the will to show that it ought not to be admitted to proof.

To displace a prima facie case of capacity and due execution mere proof of serious illness is not sufficient; there must be clear evidence that undue influence was in fact exercised, or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property."

1. There is no doubt in my mind, having heard all the evidence before the Court in this matter, as well as the evidence of the plaintiff in the witness box and under cross-examination, that the testatrix knew what she was doing and had the testamentary capacity to make her April 2018 will and codicils and to make her May 2019 will. It is crystal clear that the testatrix understood the contents of each of those documents. In fact she herself wrote the codicil of 10 September 2018 and gave clear instructions as to what should be in the 8 May 2019 document as well as the previous will of 6 April 2018. It is incorrect to say that the testatrix did not understand the contents of her relevant wills and, in particular, the will of May 2019. It is erroneous to suggest that she was not able to see the will or that she could not read it or that she did not understand its contents. The same applies to the will of 6 April 2018 and the codicils to that will. In her written submissions, the plaintiff alleged that the testatrix suffered from delusions of the mind. There was absolutely no evidence before the Court to support that outrageous proposition. The plaintiff also, in her submissions, made a series of critical allegations about the testatrix, none of which bear on her testamentary capacity, other than the repetition of the unfounded allegation that the testatrix could not read or understand her wills and codicils.

Ancillary issues regarding lack of testamentary capacity

1. The plaintiff claims that the charging clause in the wills of 2018 and 2019 drawn by the first defendant to enable him to charge for work performed as an executor, were not read or explained to the testatrix. That submission is rejected. There is evidence that the testatrix was told by at least two of her children, who gave evidence before the Court, that the making of the first defendant as a trustee meant that he would have to be paid for his work. The testatrix understood this and accepted it and went ahead and made the first defendant a trustee. The first defendant did not obtain any personal benefit from doing so because at the time, he was an employee of the firm Murdoch Clarke. The plaintiff also raised an issue regarding the failure of the testatrix to get independent legal advice regarding a charging clause or in relation in to making a bequest to her grandchildren at the expense of her children who were allegedly living in poverty, according to the plaintiff. There was no evidence before the Court as to the financial circumstances of any grandchild or child as at 2018 or 2019. Further, there was no need for any legal advice to be obtained in relation to a charging clause.

1. Having regard to the foregoing the Court will order as follows:
   1. The plaintiff's claim is dismissed.
   2. On the counterclaim, a grant of probate in solemn form is to be made on the 8 May 2019 will of the testatrix.
   3. Liberty to apply is reserved to enable the parties to seek any further orders required to complete any grant of probate made and to give effect to that grant.
   4. The parties are to file and serve submissions on the question of costs regarding the plaintiff's claim and the defendants' counterclaim within 14 days of the date of these reasons for judgment.