Plaintiff v Applicant for Revocation

1 This proceeding commenced in 2020 as an application for the grant of probate of the will of Mr Francesco Pellettieri ('Frank'). Frank died on 2 February 2020, at the age of 54. Frank was born very prematurely, and suffered from an intellectual disability and epilepsy throughout his life. He had no brothers or sisters, and never married. Frank's father died in 1985, and his mother died in 1995. After the death of his parents, his closest blood relatives were his cousins, the plaintiff in this proceeding, Ms Maria Trinchi, and the applicant for the revocation of the grant of probate, Mr Mario Bernardo.

2 Maria and Mario are siblings, and each has a family of their own. It seems that both Maria and Mario provided assistance and support to Frank throughout his life, Maria more so. After his mother's death, Frank continued to live at the family home in Normanby Avenue, Thornbury ('Thornbury property'), but at some stage he moved to live with Maria and her late husband, Mr Francesco Trinchi ('Mr Trinchi'). In her will, Frank's mother Rosa left the Thornbury property to him, but it seems that he did not become the registered proprietor of the Thornbury property until about 2011.

3 In July 2011, Comito Iacovino & Co ('CIC'), a firm of solicitors, wrote to Mario saying that CIC acted for Frank, and requested that Mario provide them with Rosa's will and the title for the Thornbury property. Mario's then solicitor, Mr Frank Sanna, prepared a response to the effect that while Mario held the title to the Thornbury property, Maria held Rosa's original will. Mr Sanna then went on to say as follows:

In the will, Francesco Pellettieri is the sole beneficiary and executor.

I am instructed that [Frank] does not have the mental capacity to be an executor of his mother's will.

My client is concerned that Mrs Trinchi is unduly influencing [Frank] for her own gain.

Under the circumstances, my client seeks to have himself and his sister Mrs Trinchi be substituted as executors via a court order. I seek a response within seven days whether this is proposal is [sic] acceptable. Failing an acceptable response, my client will issue proceedings at the relevant Court or Tribunal to safe guard the interests of [Frank].

4 In response, CIC demanded that Mario deliver up the title to the Thornbury property within 7 days, failing which a proceeding would be issued, and went on to say as follows:

The question of Mr Francesco Pellettieri's Will is a separate matter and we note his specific instructions to this office to include your client's children as equal beneficiaries, as the children of Mrs Trinchi, following your client's representations to him on their behalf. This request has accordingly been carried out.

Any determination as to the incapability of Mr Francesco Pellettieri would need to be made by the Guardianship Board to which your client would need to refer where any question of undue influence can be determined and any attempts to cancel the existing Power of Attorney given to Mrs Trinchi by our client.

5 As will be seen from what follows, the statement above was not entirely accurate. On 27 July 2011, Frank executed a will, which had been drawn up by CIC, and which was witnessed by a partner and an employee of CIC ('will'). The will:

(a) appointed Maria and Mr Trinchi as the executors and trustees of his estate ('estate');

(b) directed that the estate be divided between Maria and Mr Trinchi as tenants in common in equal shares; and

(c) directed that, in the event that Maria and Mr Trinchi pre-deceased Frank,[1] then Maria's son, Alex Trinchi, be appointed as executor, and the estate be divided between Maria's three children and Mario's two children as tenants in common in equal shares.

6 As can be seen from the above, while it is correct to say that the will treats Maria's children equally with Mario's children, the passage of the letter from CIC extracted at paragraph 4 above omitted to mention that the will provided that Maria's and Mario's children were contingent beneficiaries of the estate, not the primary beneficiaries of Frank's estate. In any event, on 4 November 2011, Frank executed a codicil to the will ('codicil'), which was also drawn up and witnessed by CIC, which had the effect that Mario's two children were removed as contingent beneficiaries of the estate.

7 Also on 4 November 2011, Frank executed a number of documents appointing Alex Trinchi as his medical power of attorney, general power of attorney, and as his guardian in the event that Frank became incapacitated ('appointment documents'). The appointment documents superseded similar documents executed by Frank on 20 July 2011 appointing Maria as his power of attorney. All of the appointment documents contained a certificate from Mr Iacovino, a principal of CIC, and an employee of CIC to the effect that Frank was of sound mind when executing the appointment documents and that he understood their effect.

8 In December 2011, Mario's current solicitors, Davis Zucco, wrote to CIC as follows:

We are instructed that you have arranged for new Powers of Attorney and Wills for [Frank]. Kindly confirm if this is correct as our client had been his Power of Attorney but has not been informed that his appointment has been terminated.

Our client is the uncle of Francesco Pellettieri and as an interested party is concerned that Francesco may not be able to provide instructions and may be unduly influenced by his aunty Ms Maria Trinchi.

We request information of what steps have been taken to ensure Francesco understands the consequences of his actions, such as the obtaining of any medical report stating he has mental capacity.

If no medical report has been obtained, we are instructed that our client as an interested person may apply to VCAT for independent representation/guardianship of Francesco's affairs as he is genuinely concerned and may seek this information and costs if necessary.

9 Notwithstanding the above, it seems that Mario did not take any further action, save that in June 2013, Mario took Frank to see a neuropsychologist, Dr Diana Perre. In a letter addressed to Mario, Dr Perre stated, under the heading 'Presentation & Interview', as follows:

[Frank] was dressed casually, and appeared slightly unkempt. His speech was slightly pressured, and he had difficulty maintaining eye contact. Conversational pragmatics were poor, and [Frank] had some difficulty responding to open-ended questions.

[Frank] arrived at the assessment in a highly agitated state. He was not aware of the reason for his referral for neuropsychological evaluation, and appeared quite hostile toward his cousin. After the reason for the assessment was explained to [Frank], he agreed to participate in an interview, and was superficially cooperative. [Frank's] behaviour and comportment were childish, and he was somewhat impulsive.

[Frank] provided the following information on systematic questioning:

• He presently lives with his cousin (Maria) and her husband ([Mr Trinchi]) and son (Alex).
• [Frank] refers to all the aforementioned family members as his "carers", although [Frank] admitted that his cousin's husband is disabled from a stroke that he had many years ago. ...
• Maria has access to [Frank's] bank account, ATM card, and PIN numbers. Maria pays all bills for [Frank].
• [Frank] denied any knowledge of having signed Enduring Power of Attorney(s) to his cousin, however reported that he made a new will "sometime last year". He gave the name Tony Accovina [sic] as the solicitor who assisted him with this.
• [Frank] stated that he was fond of his cousin (Maria) and that he had no reason to doubt the assistance she provided him. He acknowledged that Maria had changed his mobile phone number and that he no longer had any contact with relatives both overseas in Italy, or in Melbourne. He was unable to elaborate on whether he was upset by this.
• Mr Pellettieri reported that he had significant difficulties with learning at school, and that he could not read, and can only write his name.
• In relation to his health, [Frank] reported that he had hade "nerves" since he was a "baby or little boy". On further questioning, it appears that [Frank] was referring to Epilepsy. He denied having depression, and could not recall any of the names of his medications. He reported that his cousin (Maria) assists/supervises his medication, and that it is dispensed from a Webster Pack.
• [Frank] has a carer from the City of Darebin, who he reports assists with personal care, and home help.
• [Frank] denied any recent hospitalisations, and could not recall the names of either his GP or Psychiatrist at the time of request.

10 Under the heading 'Opinion', Dr Perre stated as follows:

Based on limited formal neuropsychological evaluation, [Frank] presents with attentional, memory, and executive difficulties against a background of likely "borderline" intellectual functioning. [Frank] himself reports limited educational opportunities, and described himself as illiterate and innumerate. It is more than likely that he has had lifelong intellectual difficulties, which have been exacerbated in the context of lifelong epilepsy and mental health issues.

In order to make sound financial and legal decisions, a person should be capable of reading and understanding legal and financial material, be capable of novel problem solving, and have the capacity for remembering past decisions (and their consequences).

Given that [Frank's] baseline intellectual functioning is quite low, and he also demonstrated cognitive difficulties above and beyond this, I have concerns about his capacity to make informed decisions about complex legal and financial matters. I also have concerns about his vulnerability to persuasion given his low level of intellectual functioning.

11 However, it seems that Mario took no further action following his receipt of Dr Perre's report.

12 In his affidavit sworn on 3 May 2024 in support of his application for revocation, Mario deposed as follows:

I regularly kept in touch with Frank and I would often see him at the Thornbury property before Maria started isolating Frank from me and the rest of the family.

My children would see Frank when they drove past the Thornbury property. I had a close relationship with Frank as he highly regarded my father.

Frank's death

Frank died on 2 February 2020.

Maria did not tell me about Frank's death. I became aware of Frank's death when I visited the Thornbury property and saw a pack of tiles at the front of the property. I was met by a stranger at the door who informed me that Frank had passed away and the Thornbury property was sold. I was in disbelief when I heard this.

On 15 June 2020, Maria received a grant of probate of Frank's Will, dated 27 July 2011 (Frank's Will) ...

Frank's Will leaves his entire estate to Maria and her husband Francesco Trinchi.

County Court Proceedings

On 27 February 2023, as a self-litigant, I commenced County Court proceedings and filed a Writ in the Family Properly List seeking Family Maintenance of Frank's Estate and for equal division of Frank's Estate between Maria and myself as the only surviving family members of Frank.

After consultation with my solicitor, Mr Anthony Zucco of Davis Zucco and Counsel, I was advised that I had commenced incorrect proceedings in the County Court and that I should withdraw the proceedings. The County Court proceedings were dismissed on 11 October 2023 by consent with Maria.

13 As noted by Mario in his affidavit, probate of the will was granted to Maria in June 2020. On 28 March 2024, Mario filed a summons for revocation seeking the following relief:

(a) Mario be added as a defendant to this proceeding;

(b) the grant of probate made by this Court to Maria on 15 June 2020 be revoked; and

(c) an interim injunction restraining Maria from distributing the estate.

14 On 12 June 2024, in accordance with the directions of a judicial registrar, Mario filed grounds of revocation with particulars ('grounds'). In the grounds, Mario contended, among other things, that as an equal beneficiary (along with Maria) of the estate under the intestacy provisions of the Administration and Probate Act 1958 (Vic), Mario has standing to challenge the validity of the will and to bring the revocation application.

15 Under the heading 'Frank did not know and approve of the contents of the will', the grounds included the following contentions:

Mario contends that Frank did not know and approve of the contents of the Will.

In the absence of suspicious circumstances, if a testator had testamentary capacity and his or her will was properly executed, there is an assumption that the testator knew and approved of the contents of that will.

However where there are circumstances that excite the suspicion of the Court, the presumption of due execution does not arise and the plaintiff as the propounder must prove that the testator knew of and approved the contents of the will, thereby removing the suspicion.

It is submitted that there are several matters around the creation of the Will that ought to excite suspicion that Frank did not know and approve of its contents:

(a) Frank was intellectually disabled;

(b) Frank suffered from epilepsy;

(c) Frank suffered from depression;

(d) Frank lived at the Thornbury property with is parents until their deaths;

(e) Frank remained living at the Thornbury property alone after his mother's death;

(f) Maria was heavily involved in Frank's care and decision making when the Will was made;

(g) Maria was a person that possessed great influence and authority over Frank when the Will was made;

(h) Maria isolated Frank from Mario;

(i) Maria coached Frank as to how to make the Will;

(j) Maria is the major beneficiary named in the Will and she played a significant part in its preparation;

(k) Frank instructed his lawyer to include Mario and Maria's children as equal beneficiaries, and those instructions were not carried out for reasons unknown;

(l) the Will does not accord with Frank's close relationship with Mario;

(m) Frank received a grant of probate of Rosa's Will more than 16 years after her death and his own Will was prepared in the same year in 2011.

16 Under the heading 'Frank lacked testamentary capacity at the relevant times', the grounds included the following contentions:

Mario contends that Frank lacked testamentary capacity during the period shortly before and at the time of execution of the Will.

Frank was suffering from depression, epilepsy and intellectual disability around the time of the making of the Will.

17 Under the heading 'Delay', the grounds repeated the matters referred to by Mario in his affidavit extracted at paragraph 12 above.

18 On 26 June 2024, Maria issued a summons seeking the following relief:

1. In the inherent jurisdiction of the Court, alternatively pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015, the applicant for revocation's summons for revocation filed on 28 March 2024 (the Summons) and grounds for revocation filed on 11 June 2024 be struck out, on the ground that the defendant's grounds for revocation filed on 11 June 2024 do not disclose a prima facie case for investigation.
2. Alternatively, pursuant to ss 61 and 63 of the Civil Procedure Act 2010 and r 22.03 of the Supreme Court (General Civil Procedure) Rules 2015, the Summons be summarily dismissed.
3. Pursuant to r 2.04 of the Supreme Court (General Civil Procedure) Rules 2015, the requirement to file an affidavit under r 22.04 be dispensed with.

19 There was no challenge to Mario's standing to challenge the validity of the will. Rather, Maria contends that:

(a) the grounds do not disclose that there is a prima facie case for investigation that Frank did not know of or approve of the contents of the will;

(b) the grounds do not disclose that there is a prima facie case for investigation that Frank lacked testamentary capacity at the time he made the will; and

(c) the grounds do not adequately explain Mario's delay in bringing the application for revocation, which was made just over four years after Frank's death.

20 Mario relied upon an affidavit sworn by him on 3 May 2024, the salient parts of which have already been summarised or extracted earlier in these reasons, save for the following matters:

(a) Mario deposed that Frank always had 'learning difficulties and a very low level of intellectual functioning', being unable to read, and only able to write his own name, with assistance;

(b) while he and his family regularly visited Frank at the Thornbury property to help him where needed, over time, Maria isolated Frank from Mario and the rest of the family; and

(c) Mario deposed as follows:

In 2011 Maria began encouraging Frank to make a will for himself. Around this time, Frank would regularly tell me that Maria was coaching him about what to say to a solicitor when he went to make his will.

21 Mario also relied upon an affidavit sworn by his solicitor on 7 May 2024, which exhibited the letter from Dr Perre referred to at paragraph 10 above.

22 Maria's summons was originally returnable on 14 November 2024. However, shortly prior to the hearing, Maria's solicitors informed the Court that certain documents had come to their attention that might be of significance to Maria's application. What transpired was detailed in an affidavit sworn by Mr Ferdinand Zito on 12 December 2024, as follows:

On or about 23 June 2023, I requested that Mr Anthony Iacovino, the solicitor acting for the plaintiff in her application for a grant of probate, provide me with the relevant file material (the will file).

On or about 28 August 2023, the will file was delivered to my office.

On Thursday 7 November 2024, I saw references in the will file of Mr Iacovino to a codicil, although the file did not contain a copy of it. Prior to this, I was unaware that the deceased had made or executed a codicil.

23 Mr Zito exhibited to his affidavit a certified copy of the codicil, along with a copy of the documents received from CIC ('will file'). The will file appears to be incomplete, and some of the handwritten file notes (presumably made by Mr Iacovino) are very difficult, if not impossible, to decipher. The will file contained, among other things:

(a) a copy of the grant of probate to Maria;

(b) the appointment documents;

(c) a record of the documents held by CIC and a handwritten note of instructions given by Frank in relation to the will and the codicil, signed by Frank in the presence of a receptionist employed by CIC;

(d) an enduring power of attorney in favour of Maria executed by Frank on 20 July 2011;

(e) a draft will prepared in 2018 which was in substantially the same terms as the will (as modified by the codicil), with handwritten notations that could be interpreted as striking out Alex Trinchi as a contingent beneficiary, and adding in Mario's children as contingent beneficiaries;

(f) an undated electronic file note stating as follows:

WILL READY.

WAITING ON LETTER FROM GP THAT HE IS OK TO SIGN.

This file note also included an almost illegible handwritten notation, save that I can identify references to 'Dr Caroline' and 'Dr Sergio';

(g) a largely illegible handwritten file note of an attendance upon Maria on 29 January 2017 regarding Frank;

(h) a service ledger entry dated 5 September 2017 referring to the death of Mr Trinchi (which was presumably made around that time) and a note referring to Frank's death on 2 February 2020, which must have been made some years later;

(i) an undated file note of a telephone call with Frank regarding his will;

(j) a file note dated 17 January 2018 recording an attendance upon Maria regarding a new will, and a note of a telephone call with Frank where it was recorded that Frank wanted to 'resign' the will to incorporate the codicil, including a notation '+ 2 cousins to come out'; and

(k) what seems to be a record of documents held by CIC with respect to Frank's affairs.

24 Mr Zito deposed further, in summary, as follows:

(a) on 8 November 2024, after reviewing the will file, he spoke to Maria in order to enquire as to the existence of the codicil;

(b) later that day, he received a bundle of documents by email from Alex Trinchi, which included a certified copy of the codicil. He also spoke to Maria about the codicil, who said that she did not appreciate its significance to the current applications; and

(c) he deposed as follows:

In that context, I informed [Maria] that, if the codicil were to have been included and proved in an application for grant of probate, in my view, it would have made no difference to the eventual distribution of the estate, but it should have been submitted with the application, nonetheless.

25 On 19 December 2024, the day of the hearing, Mario affirmed an affidavit, in which he deposed, in part, as follows:

Frank received a compensation payout of around $50,000 following the death of his father Emilio Pellettieri. Emilio died of cancer in the mid 1980's after working at the foundry for either Ford or Holden. Frank's payout was held with State Trustees for many years.

In around 2008, Maria took Frank's money out of the State Trustees.

On 21 April 2008, Maria and I opened a term deposit with Frank's $50,000 at the Commonwealth Bank at Gladstone Park in our joint names.

...

Maria and I opened this term deposit to look after Frank's money for him.

...

26 Maria filed an affidavit in response to the above extract of Mario's affidavit on 31 January 2025. Maria deposed, in summary, as follows:

(a) while Frank did obtain compensation as a consequence of his father's death, the compensation was administered by State Trustees Ltd after Frank's mother's death in 1995. State Trustees Ltd paid Frank $200 per week between 2001 and 2007;

(b) the bank account referred to by Mario in his affidavit ('term deposit') contained funds belonging to their mother, not Frank; and

(c) Maria accounted to Mario for the funds in the term deposit after Mario issued a proceeding in the Guardianship List of the Victorian Civil and Administrative Tribunal in about 2017, in which Mario asserted that the funds in the term deposit belonged to their mother. The proceeding was dismissed with no adverse findings being made against Maria with respect to her dealings with the term deposit.

27 In my recent decision in Lehr v Matters,[2] I surveyed some of the relevant authorities regarding applications of the current kind. I shall not repeat that exercise here, but note the following matters of relevance to the analysis of whether an applicant in the position of Mario has established the existence of a prima facie case for investigation:

(a) the onus for establishing the existence of a prima facie case for investigation rests upon the party raising doubt as to the validity of the will;[3]

(b) however, that onus is relatively easy to discharge;[4]

(c) there may be cases where the evidence adduced in response to an application for revocation makes it clear that there is no case for investigation, but the evaluation of that question may proceed on the basis that additional evidence may arise during the course of pre-trial steps;[5]

(d) the task of the Court is to examine 'whether the particulars as a whole constituted a narrative warranting further investigation';[6]

(e) mere ill-health or cognitive decline is not necessarily sufficient to establish a lack of testamentary capacity. One needs to establish that the effect of the testator's illness, disorder, or disability '... so affected his mental faculties as to make them unequal to the task of disposing of his property';[7]

(f) in Rasheed,[8] Millhouse J referred to the following statement of Isaacs J in Nock v Austin:[9]

(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.

(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.

(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.

(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.[10]

(g) in relation to the question of delay, a long unexplained delay may be a bar to an application for revocation. However, mere delay is not of itself fatal to an application for revocation: it must be established that allowing the application to proceed would constitute an abuse of process.[11]

28 In relation to the question of whether there was a want of approval and knowledge of the contents of the will, in her written outline of submissions, Maria submitted, in summary, as follows:

(a) the will was executed in front of a solicitor, and is rational on its face, which 'gives rise to the presumption that [Frank] had testamentary capacity to make and knew and approved the contents of the will';

(b) certain of the matters relied upon by Mario tend to confirm that the will reflected Frank's intentions and instructions. For example, the will reflected Frank's instructions that the children of Mario and the children of Maria be treated equally;

(c) the allegations that Frank was intellectually disabled, suffered from epilepsy and depression, and lived with his parents while they were alive do not, of themselves, provide 'something to go on'; and

(d) the allegations to the effect that Maria exercised 'great influence' over Frank, isolated him from his family, and coached Frank as to how to make a will lack particularity, and in any event, these allegations are suggestive of undue influence, which is not alleged, rather than an allegation that Frank did not know what he was doing when he made the will.

29 As for the allegation that Frank lacked testamentary capacity at the time he made the will, Maria submitted that it is unclear how it is said that Frank's testamentary capacity was adversely affected by his depression and epilepsy. While Maria accepts that someone with a severe intellectual disability may not have testamentary capacity, an allegation of an unspecified intellectual disability, without more, does not found a case for investigation.

30 Maria submitted that Dr Perre's report should be given limited weight, as it was prepared two years after Frank executed the will, and Dr Perre's assessment was not directed at the question of testamentary capacity. Further, while Mario's solicitors have (impermissibly) issued subpoenas directed at medical practitioners and institutions, those subpoenas have not produced any documents that could add to the evidence about Frank's testamentary capacity or lack thereof.

31 In relation to the question of delay, Maria observed that Mario has not specified when he became aware of Frank's death.[12] Further, as is apparent from the correspondence exchanged between CIC and Mario's solicitors in 2011 that Mario knew that Frank had made a will. Maria submitted as follows:

The applicant never took those threatened proceedings. If he had done so while the deceased was still alive and able to give evidence, the issues of capacity and knowledge and approval could have been conclusively resolved. Rather, after first expressing a concern about the will in 2011, and foreshadowing the bringing of proceeding in respect of the will at that time, the applicant waited a further 13 years - including an unidentified period of time from whenever he found out about the deceased's death until 27 February 2023 - to bring any proceeding respecting the deceased's capacity and estate. In so standing by, the applicant by his conduct encouraged the plaintiff reasonably to believe that he would not challenge the will. In that time, the deceased has died, the plaintiff has obtained probate, and the estate has been distributed. For these reasons, it is submitted that, even if the Court were to find that there is a case for investigation, it would be unjust for the application to proceed, and accordingly the application has no real prospect of success.

32 In response, Mario submitted that the circumstances in which the will was made were suspicious, particularly given that Maria and her late husband were the primary beneficiaries of Frank's estate, and given that Maria played a significant part in the preparation of the will. Further, Frank was unable to read, and there is no evidence that the will was ever read to him before it was signed.

33 Mario submitted that the will was executed in suspicious circumstances, which raises the question of whether Frank knew and approved of the contents of the will. The contents of the will file raises more questions than answers, noting that a later draft will (prepared in 2018) ('draft will') was never executed. One might speculate that no medical report with respect to Frank's testamentary capacity was ever obtained by CIC, which a file note in the will file suggested was required before the draft will could be executed.

Frank's lifelong intellectual disability raises a case for investigation about his testamentary capacity. Mario's expressed concerns about Frank's testamentary capacity along with the report of Dr Perre referred to below, must also be taken into account. At this stage, it is unclear if Frank's intellectual disability prevented him from:

(a) understanding the nature and effect of making a Will;

(b) being aware of the general nature and value of his estate;

(c) being aware of those with a natural claim on his estate; and

(d) being able to evaluate and discriminate between the natural claims on his estate.

In addition, Frank has a long medical history and was a regular patient at the Austin Hospital. The medical records obtained from the Austin Hospital under subpoena show that Frank was consistently noted (both before and after Frank's Will was made) as a patient with an intellectual disability.

35 Mario referred to some of the observations made by Dr Perre and her opinion as raising issues for further investigation. While Dr Perre's report was prepared about two years after the execution of the will, it does not seem that Frank's intellectual functioning declined over time. Rather, it can be inferred that the issues with Frank's intellectual functioning referred to in Dr Perre's report subsisted at the time that the will was made, or at the very least, the issue of whether Frank had testamentary capacity requires further investigation.

36 Mario submitted that great caution must be exercised in granting summary judgment in an application of the current kind, given that the application for revocation invites the Court to exercise its discretion, not simply based upon the merits of the application, but having regard to all of the circumstances of the case.

37 Mario submitted that Maria's submission to the effect that summary judgment should be granted given the delay in making the revocation application should be rejected. Mario referred to the decisions in Re Hayes[13] and Rasheed v Rasheed[14] ('Rasheed'), and submitted that delay of itself does not justify shutting out Mario from pressing the revocation application. Mario has provided a reasonable explanation for his delay in bringing the application, and, in any event, the strength of the application for revocation means that a mere delay of some three and three-quarter years after the grant of probate is insufficient to justify summary dismissal.

38 In her written submissions in reply, Maria submitted that the evidence relied upon by Mario, of itself or in combination with the grounds, does not raise a case for investigation or show that Mario's application has any real prospects of success. In particular, the report of Dr Perre does not raise a case for investigation that Frank lacked testamentary capacity at the time the will was executed, because:

First, critically, Dr Perre examined the deceased in June 2013, almost two years after the will was made in July 2011. A lot can happen in two years. Dr Perre's examination does not shed any light on the deceased's capacity during the relevant period.

Secondly, Dr Perre's findings are inconclusive as to whether the deceased had capacity to make legal decisions in general (in June 2013), let alone whether he had testamentary capacity. Based on "limited formal neuropsychical evaluation", Dr Perre opined that: "Given that [Frank's] baseline intellectual functioning is quite low, and he also demonstrated cognitive difficulties above and beyond this, I have concerns about his capacity to make informed decisions about complex legal and financial matters". There is no reference to the Banks v Goodfellow criteria, or will-making at all, let alone the making of the will in June 2011.

Against the background where the making of the will was witnessed by an independent solicitor, none of the evidence relied on by the applicant, alone or in combination with the Grounds, can raise a sufficient doubt about whether the deceased had testamentary capacity at the time he made the will, or that he knew and approved of its contents.

39 Further, Maria submitted that it would be inappropriate to allow Mario to rely upon documents produced upon subpoena by the Austin Hospital in order to establish the existence of a prima facie case. In any event, the documents referred to by Mario in his submissions go no further than saying that Frank was reported to have an intellectual disability. Further, those documents suggest that '... the evidence "reasonably thought likely to be available" at trial on the question of testamentary capacity will be of no greater assistance to [Mario] than what he has already put forward in support of a prima facie case'.

40 Finally, Maria repeated her submission that the grounds, the evidence, and Mario's submissions do not explain, adequately or otherwise, the delay in bringing the application for revocation.

41 In my view, there is sufficient material in the grounds (which are taken for present purposes to be correct) and the evidence, in particular the report of Dr Perre, to raise a prima facie case for investigation as to whether, at the time of the execution of the will, Frank lacked testamentary capacity. I accept that it is a serious conclusion to reach that a person lacked testamentary capacity. I also accept that the presence of poor physical and mental health does not necessarily support a conclusion that a testator lacked testamentary capacity. Further, the will file discloses a number of attendances by lawyers and other staff of CIC upon Frank, which supports the presumption that Frank had testamentary capacity, and knew and approved of the contents of the will. That said, the file notes of attendances upon Maria in the will file also provides support for Mario's contention that Maria was quite involved in the preparation of the will.

42 However, Dr Perre's report paints a picture of a man with child-like characteristics and significant cognitive impairments. Again, the presence of an intellectual disability does not necessarily mean that Frank lacked testamentary capacity at the time he executed the will, given that the estate probably contained little more than the Thornbury property, and his extended family was small in number and known to him, such that his affairs were not complex, and the potential objects of his bounty were fairly obvious. However, there is at least a prima facie case for investigation.

43 I do not accept the submission advanced by Maria to the effect that I should have little regard to Dr Perre's report, given that it was prepared two years after the will was executed. From the contents of Dr Perre's report, and Mario's own evidence, Frank's cognitive shortfalls arose from the circumstances of his birth,[15] and were lifelong.

44 While Frank's physical and mental health conditions are not particularly relevant to the question of whether he had testamentary capacity, the existence of moderately severe chronic health conditions means that it is likely that there will be a reasonable volume of medical records available that may have the capacity to shed light on Frank's cognitive functioning, and by extension, his testamentary capacity, over and above what has already been produced upon subpoena.

45 I also consider that there is a prima facie case for investigation as to whether Frank knew and approved the contents of the will. In addition to the fact that Frank suffered from an intellectual disability, Mario's contention that Frank could not read was not contradicted. Therefore, he was dependent upon others to read and explain the contents of the will to him. There is nothing on the will file or any other evidence to establish that this in fact occurred.

46 In Rasheed,[16] Millhouse J referred to the following statement from Halsbury's Laws of Australia:

Where the testator is enfeebled, illiterate or blind the court may not admit the will to probate unless it is shown the testator knew and approved of the contents of the will. The court must be satisfied that the will was read to the testator, that the testator knew and approved the contents of the will at the time of execution.[17]

47 His Honour observed that whether the fact the testator in question was illiterate may be regarded as a suspicious circumstance would depend upon the view of the evidence taken by the trial judge. It seems to me that, for the purpose of clearing the reasonably low bar of establishing a prima facie case, the uncontested allegation that Frank was illiterate, along with the evidence of him having 'borderline' intellectual function, raises a case for investigation that Frank did not know or approve of the contents of the will.

48 It may well be that the will accurately reflected Frank's intentions, and that he deliberately preferred one cousin over another. But much remains unexplained. In particular, why it was that, Frank's mother's estate having remained unadministered for 16 years, there was a sudden flurry of activity to finalise the estate, prepare the appointment documents, and make the will? Further, and again, while there may be a simple explanation, why, after it seems both Maria and Mario and their families were responsible for supporting Frank, was Mario, and later, Mario's children, excluded from the will? And further, while CIC may have been instructed to write the letter extracted at paragraph 4 of these reasons in the way that it did, and strictly speaking, the letter was accurate, the letter certainly did not provide a complete picture as to the contents of the will, which in turn raises some suspicions, given Maria's apparent involvement in facilitating the preparation and execution of the will.

49 While there may be a simple explanation regarding these matters, and ample evidence available to support a finding that Frank did have testamentary capacity, and did know and understand the contents of the will, taking the narrative as a whole, there is sufficient cause for concern so as to give rise to a prima facie case for investigation.

50 I agree with the observations of counsel for Mario to the effect that the will file, which seems to be incomplete, raises more questions than it answers. To the extent that the will file contains file notes that record the instructions given to CIC and the actions taken to give effect to those instructions, the file notes are largely illegible to anyone save the author of the file notes and perhaps his closest associates. The will file shows that in 2018, consideration was being given to making a further will, which never proceeded, and where reference was made to getting a doctor's certificate, presumably to establish that Frank had the requisite testamentary capacity. Again, there is likely to be further evidence available at trial that could shed further light upon what occurred when the will and the appointment documents were prepared: not the least the evidence of the author of the file notes in the will file regarding his communications with Frank and Maria in 2011 and 2018.

51 The conflict in the evidence between Mario and Maria regarding the ownership of and dealings with the terms deposit does not seem to me to be of great moment, at least for present purposes. If Maria's evidence to the effect that the funds in the term deposit belonged to their mother, and that Mario always knew this is accepted, this would no doubt undermine the credibility of Mario's evidence at any trial of the revocation application. However, ultimately, the focus of the trial of the revocation action will be Frank's capacity and state of mind, not Mario's credibility and motivations for bringing the revocation application.

52 Finally, while I accept that Mario's evidence regarding the explanation for the delay in bringing the revocation application is scant and somewhat vague, especially regarding the critical period between the date Mario learned of Frank's death and the issue of the County Court proceeding,[18] I agree that the issue of delay may well not be fatal to the revocation application. Ultimately, the exercise of the Court's discretion will depend upon a range of matters, including the merits of the application, the delay, the explanation for the delay, and any prejudice occasioned by the delay, including when and how the estate has been distributed. It is difficult to strike an appropriate balance between these matters in the context of an interlocutory application, particularly in the absence of any evidence from Maria regarding the prejudice caused to her by reason of the delay.[19]

53 Further, it is clear from the discussion of the question of delay in Rasheed[20] that mere delay in bringing an application for revocation does not necessarily justify dismissal of the application. As noted by Duggan J in his reasons:

It follows from these authorities that the court has power to dismiss an action for revocation of probate if the pursuit of the application would amount to an abuse of the process of the court. The authorities suggest that mere delay is insufficient, but that a case for abuse of process may be made out if the delay exists in conjunction with other circumstances which make it unjust for the case to proceed. It must also be acknowledged that summary dismissal is exceptional and care must be taken before granting such an application.[21]

54 In that case, the lengthy delay in bringing the application for revocation of probate (some 12 years after the grant of probate, and 22 years after the death of the testator) was held to have caused significant forensic prejudice to the propounders of the will, because any trial of the proceeding would have required the examination of events which took place up to 38 years prior to the application for revocation, and the solicitor who had drawn up the testator's will had died. Further, the applicants for revocation had made a deliberate decision not to challenge the validity of the will after receiving legal advice many years prior to bringing the application. The Court held that the delay and acquiescence on the part of the applicants had created a situation whereby the application for revocation constituted an abuse of process of the Court.

55 The position of the parties in Rasheed[22] is to be contrasted with the current case, where the solicitor who drew and witnessed the will and the appointment documents has communicated with Maria's solicitors in recent months, and, apart from Mr Trinchi, all of Frank's family members are alive. Frank himself is of course deceased, but the prejudice arising from that is inevitable in an application of the current kind. The will file does appear to be incomplete, but Mr Zito's evidence suggests that Maria has relevant documents in her possession which are not yet in evidence.

56 Accordingly, the applications in the summons filed on 26 June 2024 will be dismissed. I shall hear further from the parties on the question of costs, and in relation to further directions for the conduct of the proceeding.

[1] Mr Trinchi did in fact predecease Frank, which does raise some issues regarding the proper construction of the will, but these issues are not relevant for the purpose of the current applications.

[2] [2024] VSC 640. While this decision concerned an application to remove a caveat, the principles are materially the same in an application for revocation.

[3] Gardiner v Hughes (No 2) [2019] VSCA 198 [42], citing Nicholson v Knaggs [2009] VSC 64 [78].

[4] Lynch v Perpetual Trustees Co Ltd [2022] VSC 702, [50].

[6] Gardiner v Hughes (No 2) [2019] VSCA 198 [82].

[7] Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, 571-2.

[8] [1999] SASC 88; (1999) 73 SASR 346 ('Rasheed').

[9] (1918) 25 CLR 519.

[10] Rasheed [34], citing Nock v Austin (1918) 25 CLR 579, 528.

[11] Ibid [48]-[49]. See also Photios v Photios [2019] NSWCA 158; (2019) 372 ALR 264 [63].

[12] Taking Mario's evidence at face value, it sems that Mario could not have become aware of Frank's death until late 2020 at the earliest. Probate of the will was granted to Maria on 15 June 2020. Assuming that the sale of the Thornbury property progressed and settled in the usual way, Mario's discovery that the Thornbury property had been sold and was now occupied by a stranger must have occurred at least four to six months after the grant of probate.

[13] [2016] VSC 778.

[14] [1999] SASC 88; (1999) 73 SASR 346.

[15] Mario's evidence was that Frank was born at 28 weeks' gestation, which would have been considered to be extremely premature in 1965.

[16] [1999] SASC 88; (1999) 73 SASR 346.

[17] Lexis Nexis, Halsbury's Laws of Australia Vol 24, ch 395 'Succession' [205].

[18] Mario was self-represented when he issued the County Court proceeding in 2023, which seemed to have been misconceived.

[19] Observations to a similar effect were recently made by Barrett AsJ in Re Gdanski (unreported, Supreme Court of Victoria, 29 October 2024) ('Re Gdanski') at [63], where his Honour also noted that in Photios v Photios [2019] NSWCA 158; (2019) 372 ALR 264, Bell P referred to a 19-month delay in bringing an application for revocation of probate as 'such a short period'. Here, I estimate that the period of delay between Mario's discovery of Frank's death and the issue of the summons for revocation is unlikely to exceed about 40 months, part of which can be explained by Mario's pursuit of the misconceived County Court proceeding. In Re Gdanski, the relevant period of delay was approximately 35 months.

[20] [1999] SASC 88; (1999) 73 SASR 346.