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[2025] VSC 55
General information, not legal advice.
Supreme Court of Victoria
2025-02-21
KEOGH J
Original judgment source is linked above.
PRACTICE AND PROCEDURE - Legal practitioners - Contested application for grant of probate - Testamentary capacity in issue - Application to restrain legal firm from acting where principal solicitor prepared will and witnessed its execution - Where likely that legal practitioner will be material witness about controversial matters - Where legal practitioner referred conduct of proceeding to another legal practitioner in same firm - Steps taken to isolate legal practitioner from conduct of proceeding do not mitigate conflict of interests - Makripoulias v Arhontovasilis [2022] VSC 53 - Veall v Veall [2015] VSCA 60; [2015] 46 VR 123 - Application granted.
1 The deceased, Angelo Giaimo, died in April 2024. The parties to this proceeding are his three sons.
2 In May 2024, the plaintiff Vincenzo Giaimo ('Vincenzo') applied for a grant of probate as the sole named executor in the deceased's final will, executed on 26 April 2023 ('final will'). The defendants, Vito and Joseph Giaimo ('Vito' and 'Joseph' respectively), lodged a caveat with the Registrar of Probates over the estate of the deceased and filed grounds of objection to Vincenzo's application for probate. Relevantly, the first ground of objection is that the deceased lacked testamentary capacity during the period shortly before and at the time he executed his final will.
3 Vincenzo was initially represented in the proceeding by a solicitor, Giulio Marra. Marra was also responsible for the drafting and witnessing of the deceased's final will. In October 2024, the defendants wrote to Marra inviting him to cease to act on the basis that he would be required to give evidence in the proceeding about the deceased's testamentary capacity, and was therefore in a position of conflict. Marra responded by transferring the conduct of the proceeding for the plaintiff to Nicholas Raso, another solicitor employed at his firm SGM Legal Pty Ltd ('SGM Legal'). The defendants do not accept that the conflict they identified has been resolved by transfer of the conduct of the proceeding to Raso, and have applied for orders that SGM Legal be restrained from acting for the plaintiff in this proceeding.
4 The deceased was 87 years of age when he died in April 2024. The cause of death recorded in the death certificate is 'Aspiration pneumonia 12 Days, Vascular dementia 5 Months'.
5 The deceased made his penultimate will in May 2000. In that will, he named the parties as co-executors and divided his estate equally between them.
6 In an affidavit sworn in this proceeding on 14 October 2024, Vito stated that:
(a) Vincenzo became estranged from his parents and the defendants in 2015;
(b) Vincenzo re-established contact with his family in 2019, though there continued to be friction between him and the deceased;
(c) from 2015, the defendants provided their parents substantial assistance with the payment of bills, purchasing groceries and clothing, running errands and taking them to medical appointments. The defendants had powers of attorney over their parents' affairs for this purpose;
(d) the deceased spoke a dialect of Italian that is difficult to understand, even for other Italian-speakers, and had only a very limited ability to communicate in English;
(e) in about May 2021, his parents moved into aged care accommodation;
(f) in April 2022, in the context of violent arguments that had commenced between his parents, a staff member at the aged care facility recommended that the deceased be referred to a geriatrician for review and assessment of his level of cognition;
(g) from mid-2022 after his wife's death, the deceased became increasingly forgetful, erratic, suspicious and paranoid;
(h) in late 2022, a GP referred the deceased for an appointment with a geriatrician scheduled for 24 April 2023, which the deceased did not attend;
(i) in January 2023, a doctor who saw the deceased regularly at the aged care facility told Vito that 'dementia [was] setting in and [that the deceased was] delusional but [that he was] stable and comfortable';
(j) from about early 2023, the deceased began to allege that the defendants had mismanaged or stolen his money. In May 2023 Marra wrote to the defendants, ostensibly on behalf of the deceased, setting out detailed allegations against them. The contents of the letter demonstrate that the deceased was profoundly confused about his affairs and recent events;
(k) when Vito visited the deceased in late May 2023, the deceased did not know that his wife had died or that it was the anniversary of her death;
(l) in November 2023, aged care GP Dr Adam Wade stated that following recent medical concerns, including a stroke, the deceased no longer had the capacity to understand medical, legal and financial issues.
7 On 24 July 2024, Vincenzo applied for summary judgment in the proceeding on the basis that the defendants' grounds of objection to the application for probate had no real prospect of success, or in the alternative for an order striking out the grounds of objection ('summary dismissal application'). An agreement was reached for the defendants to file amended grounds of objection before the summary dismissal application went to hearing.
8 Marra made an affidavit on 23 August 2024 in support of the summary dismissal application. Marra said that he conducted the first interview with the deceased on 19 April 2023. He said that during this conference, the deceased expressed various concerns about the defendants' conduct while they were acting as his attorneys and gave instructions that he wished to appoint Vincenzo as his sole attorney and sole beneficiary of his will. Marra said:
The deceased spoke Italian, and the interview was conducted in the Italian language. I also speak Italian. His son Vincenzo was present during the interview. As the deceased would occasionally speak in his native dialect, Vincenzo would assist where I was unclear on anything. I would then confirm these instructions back to the deceased in the Italian language.
9 Marra said that while Vincenzo was present during the consultation, he 'remained silent' other than to assist with clarifications as described above and otherwise 'insisted that [the deceased] spoke directly with [Marra]'.
10 Marra said that the deceased's understanding of English was excellent and that he 'had an excellent ability to recall details of events and was fully appraised of his financial affairs'.
11 Marra said that the deceased subsequently telephoned his office several times to confirm his instructions to draw the final will and arrange an appointment to have it executed. Marra said that on 26 April 2023, he telephoned the deceased at the aged care facility to confirm his instructions for the will and whether he was certain about his intention that nothing be left to the defendants. Marra said that he wanted to ensure that Vincenzo 'was not putting pressure on [the deceased] to make the will and that he was making the decision of his own volition'. He said that the deceased advised him that Vincenzo 'did not want to know anything about this issue'. Marra said that later the same day, he and his associate solicitor Georgia Merkel attended the aged care facility for execution of the final will. He said that Vincenzo was present when they arrived 'but was never in the room when we discussed the will and waited outside until we left'. Marra said:
Before the deceased executed the will, he indicated to me and to my associate that he knew and approved the contents of the will and understood the nature and effect of it. I confirmed with Ms Merkel whether she was satisfied with the deceased's understanding of the document, and she confirmed to me that she was.
12 Marra gave the following evidence about the testamentary capacity of the deceased:
At the time that I took instructions for the will on 19 April 2023, and witnessed the execution of the will on 26 April 2023, I considered that the deceased had testamentary capacity. He understood that he was making a will which would dispose of his estate. He understood his estate to consist of the proceeds of sale of real property, and money in bank accounts. He knew that his wife, Ninfa, had predeceased him, and that he had three sons, Vito, Joseph and Vincenzo. At the attendance on 19 April 2023, he gave a detailed explanation as to why he wanted to leave his estate only to his son Vincenzo, and not to Vito and Joseph. He did not appear to me to be acting under any delusion in giving those reasons. At all times for both attendances, he was able to clearly express his wishes and displayed lucidness and understanding of how his assets would be disposed of under the will.
13 Marra said that he has practised as a solicitor for approximately 15 years and has regularly taken instructions from clients to prepare, witness and execute wills during this time. He said that he is well aware of the test for testamentary capacity and that:
It is my practice as a solicitor to consider this test both when I take instructions from a client to prepare a will, and when the client executes the will. If I have concerns about my client's capacity to make a will, it is my practice as a solicitor to refer my client to a medical practitioner to confirm that, in their view, they have testamentary capacity. I did not have any such concerns in this situation.
14 Later in 2023, Marra commenced VCAT proceedings on behalf of the deceased to pursue a claim for compensation against the defendants in relation to their conduct of the deceased's affairs. For the purposes of that proceeding, a GP who had treated the deceased for 40 years completed a VCAT Medical Report template and expressed the opinion that the deceased had capacity to make decisions regarding his financial and property affairs.
15 Marra has not produced contemporaneous file notes of his conferences with the deceased.
16 The defendants rely on an affidavit of solicitor Ivan Benjamin sworn on 4 February 2025. Benjamin states that he was the deceased's solicitor from 2000 to 14 April 2023. Benjamin gave the following evidence about his final consultation with the deceased:
On 13th April 2023 [Vincenzo] made an appointment for [the deceased] to see me. A meeting took place at my office on 14th April 2023 which was attended by [the deceased and Vincenzo]. In this meeting, [Vincenzo] accused Vito and [Joseph] of stealing from [the deceased] and advised that [the deceased] wanted to appoint [Vincenzo] as sole attorney. [Vincenzo] further advised that [the deceased] wanted to make a new will appointing him as sole executor and sole beneficiary. I expressed my concern about [the deceased's] capacity to make this decision as I could not understand his speech and recommended that they go to an Italian speaking lawyer as I was unwilling to rely on an interpreter to assess his capacity. [Vincenzo] then asked a friend of his, who could understand but not speak much Italian to act as interpreter. I asked [Vincenzo] to leave my office while his friend interpreted for [the deceased] as I was concerned that [Vincenzo] may be exerting undue coercion on [the deceased]. James Biviano who is an acquaintance who speaks Italian, then came into my office by chance and I asked him to act as interpreter for [the deceased]. James Biviano advised that he had some concerns as to whether [the deceased] had full capacity. [Vincenzo] then came back into my office and said that he suspected that I had a phone call from someone, the inference being that I was reluctant to alter [the deceased's] will due to the influence of his brothers. [Vincenzo] then became very abusive and threatened to make a complaint about my conduct. [Vincenzo] wanted his way and was very forceful and aggressive, to the point I felt concerned for my wellbeing, so I asked him to leave my office.
Benjamin said that the deceased may not have understood that Vincenzo was advising him to cut the defendants out of his will, leaving Vincenzo as the sole executor and sole beneficiary.
17 The defendants' principal ground of objection to the application for probate is that the deceased lacked testamentary capacity at the time of execution of the final will. The particulars of that ground include:
18 The defendants rely on an associated ground that the deceased did not know and approve the contents of the final will. The particulars of that ground emphasise Vincenzo's role in 'instigating the preparation of the Will by taking the Deceased to his solicitor, Giulio Marra, rather than the deceased's long-time solicitor, Ivan Benjamin'.
19 Marra is the principal solicitor and sole director of SGM Legal, the solicitors on record for the plaintiff in the proceeding. SGM Legal employs two or three solicitors, one of whom is Raso.
20 Paul Webster, the solicitor representing the defendants, first objected to Marra and SGM Legal acting for the plaintiff in correspondence dated 10 October 2024.
21 On about 29 October 2024, Marra transferred the conduct of the proceeding on behalf of the plaintiff to Raso.
22 In affidavits filed on this application, Raso said that:
(a) Marra told Raso that he last spoke to the plaintiff on 29 October 2024 to confirm transfer of the conduct of the proceeding;
(b) access to the electronic file for the plaintiff held by SGM Legal has been restricted, such that no staff member save for Raso has access to the file;
(c) since he assumed carriage of the proceeding for the plaintiff, Raso has not discussed the proceeding with Marra save for matters related to this application to restrain SGM Legal;
(d) Since 29 October 2024, all discussions with the plaintiff in relation to the proceeding have been conducted by him. In future, all discussions with the plaintiff will be conducted by him or counsel.
23 There was no real issue between the parties about the test applicable to the defendants' application. I recently summarised the position as follows:
An order may be made in the exercise of the inherent jurisdiction of the Court to restrain solicitors from acting in a case where a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that the solicitors should be prevented from acting to protect the integrity of the judicial process and the due administration of justice. The jurisdiction is exceptional and should be exercised with caution. The public interest in a litigant not being deprived of the lawyer of his or her choice without due cause is a relevant consideration. The lateness of an application and the cost, inconvenience or impracticality of requiring that solicitors cease to act may provide a reason for refusing to make such an order.
Gangemi Pty Ltd v Luppino Pty Ltd & Anor concerned a dispute over the terms of four contracts between the parties. The solicitors who prepared the contracts sought to appear for the plaintiff notwithstanding that the critical issue in the case was their alleged oversight in preparing the contracts in a way that did not give effect to the intention of the parties. On an application to restrain the solicitors from acting, Sifris J said:
In Mitchell v Burrell Brereton J at [20] said:
... the line is crossed only when the solicitor has a personal stake in the outcome of the proceedings or in their conduct, beyond the recovery of proper fees for acting, albeit that the relevant stake may not necessarily be financial, but involves the personal or reputational interest of the solicitor, as will be the case if his or her conduct and integrity come under attack and review in the proceedings. The presence of such circumstances will be a strong indication that the interests of justice - which in this field involve clients being represented by independent and objective lawyers unfettered by concerns about their own interests - require the lawyer to be restrained from continuing to act.
The point is illustrated, in Windeyer J's judgment in Scallan (at [10]), by his Honour's reference to the difference between the case where the (mere) interest of a solicitor is one that arises simply in supporting the success of his or her client (for example, in connection with advice about discovery or the commencement or continuation or abandonment of proceedings), and the case where the solicitor has an interest in the result of an action 'additional to his interest in doing his best for a client to have success in an action'.
Sifris J concluded the solicitors did have a conflict because their interest in succeeding with the claim for rectification of the contracts went beyond their desire to succeed as a solicitor acting for a client, and extended to avoiding liability if the claim failed.[1]
...Where the acts or omissions of the law firm, including situations where the actions of the client are based on advice given by the solicitors, are at the heart of the question in issue, the firm is, in a real sense, "defending" its actions or advice. There is, in such circumstances, a danger that the client will not be represented with the objectivity and independence which the client is entitled to and which the Court demands.[4]
One aspect of this principle is that, quite apart from clients, the courts and, again I would add, tribunals, are entitled to receive the assistance of solicitors and counsel who are observably independent.[7]
It is generally undesirable for a practitioner who is aware that he is likely to be called as a witness, other than in relation to formal or non-contentious issues, to continue to act. If a practitioner's credibility is at stake as a witness, his personal integrity may be put in issue and that may constitute a personal interest inconsistent with the practitioner's duty to the court or to the client. In those circumstances, it is relevant though far from decisive to note that the Revised Professional Conduct and Practice Rules 1995 provide as follows:-
"19. Practitioner a material witness in client's case
A practitioner must not appear as an advocate and, unless there are exceptional circumstances justifying the practitioner's continuing retainer by the practitioner's client, the practitioner must not act, or continue to act, in a case in which it is known, or becomes apparent, that the practitioner will be required to give evidence material to the determination of contested issues before the court."[10]
27 Moore J also referred to the conclusion of Santamaria JA in Veall v Veall ('Veall')[11] to the effect that while there may be a shifting evidentiary burden, the ultimate burden of proving 'that the instrument sought to be admitted to probate reflects the will of a free and capable testator lies on the propounder'.[12]
28 Moore J referred to the potential importance of the evidence of experienced lay witnesses to determination of the question of capacity. The view of a lay witness such as a solicitor 'as to the testator's capacity must be shown to be based on a proper assessment and accurate information or it is worthless'.[13]
29 Moore J said, discussing the duty of a solicitor who takes instructions and arranges execution of a will:
In two recent cases, Hallen J referred to the duty on solicitors to take particular care to gain reasonable assurance about a testator's capacity where capacity is potentially in doubt. His Honour also referred with approval to the following statement by the Court of Appeal in New Zealand in Loosley v Powell about the approach to be adopted to evidence given by solicitors about testamentary capacity:
The weight to be given to the solicitor's evidence will depend on her, or his, experience, training, and understanding of the test of testamentary capacity; her or his, ability to make an assessment of capacity, taken with the quality of the assessment made as appears from any contemporaneous notes and records; her or his, knowledge of, and familiarity, with the will-maker, including the age and state of health of the will-maker; and her or his, independence; the will-maker's presentation to the solicitor, and whether there are any "red flags" suggesting a possible challenge to capacity. It will also depend on "the level of enquiry and discussion on the part of the lawyer of, and with, the deceased".[14]
30 His Honour concluded that an order should be made restraining the solicitor who prepared the deceased's will from acting in the proceeding. Moore J said:
I am also satisfied that Mr Koutsoupias has a personal stake in the outcome of the proceeding beyond the recovery of his legal fees and the ordinary interest a solicitor has in seeing a client's claims being vindicated in court. This is because, analogously to Mitchell v Burell, it is readily apparent from the submissions advanced on behalf of Ms Arhontovasilis that he will be called upon to defend his actions and advice in this matter concerning what evidence is relevant and admissible to determining the deceased's testamentary capacity. In doing so, Mr Koutsoupias' personal and reputational interests as a solicitor of long standing will be enlivened.[15]
31 It is not seriously in issue that Marra will likely be a witness at the trial of this proceeding, or that he will be required to give evidence about the testamentary capacity of the deceased. While I accept the plaintiff's submission that this does not inevitably lead to the conclusion that Marra should be restrained from continuing to act,[16] the authorities show that it is clearly a relevant consideration.
32 The plaintiff submitted that Marra's evidence is unlikely to be controversial or subject to significant challenge. He submitted that this was because the case made by the defendants is based on the deceased allegedly being 'confused' about the defendants' conduct in the management of his affairs, which are matters outside Marra's knowledge. He submitted that Marra could only give evidence about his observations and views about the deceased's testamentary capacity and understanding of the final will, and that it was unlikely he would be exposed to the risk of inconsistent evidence or an attack on his integrity about those matters. The plaintiff submitted that while the defendants have suggested that Marra did not act properly as a solicitor by failing to obtain a doctor's medical assessment before the final will was executed, the fact that no assessment was obtained is not controversial.
33 I reject the plaintiff's submissions. The critical issue in this case is whether the deceased had testamentary capacity at the time he provided instructions to Marra and, in particular, at the time the final will was executed.[17] There are four associated matters: first, the relevance of the plaintiff's attendance and the role he played when the deceased gave instructions to Marra and again when the will was executed; second, the capacity of the deceased to give instructions and whether he understood the will when it was executed by him; third, Marra's knowledge of the recent family disputation and the very significant and controversial change being made by the deceased to his will; and fourth, Marra's failure to arrange a medical assessment of the deceased before the final will was executed.
34 In Veall, Santamaria JA relevantly said, in relation to the professional duties owed by a solicitor who prepares a will:
In Kenward v Adams, and Re Simpson, Templeman J said that, where a solicitor is making a will for an old or infirm testator, the solicitor should ensure that the making of the will is witnessed by a medical practitioner who satisfies himself as to the capacity and understanding of the testator and makes a record of his examination and findings. Needless to say, this is a counsel of prudence that must be subject to the circumstances of the case. The exigencies of the situation may make it impracticable; nor would it need to be followed where, despite the age of the testator, he is obviously well and is proposing to make a will that distributes his estate in a manner which is uncontroversial.[18]
35 The defendants have already filed evidence in the proceeding putting in question the deceased's testamentary capacity. The material indicates it is at least possible, if not likely, that further evidence will be filed in support of the notice of objection, including from the deceased's GP and other workers at the aged care facility in relation to their observations of the deceased around the relevant time.
36 The plaintiff bears the onus of proving the final will. He has already shown an intention to rely upon Marra's relatively emphatic evidence to the effect that the deceased had testamentary capacity. It will very likely be necessary for the defendants to strongly challenge Marra's evidence on this critical issue, including on each of the matters raised above.
37 The plaintiff submitted that there is no justification for restraining Raso and SGM Legal from continuing to act for him because of the steps that have been taken to isolate Marra from the conduct of the proceeding. It was submitted that any conflict that Marra may face when giving evidence between his duty to the Court and his client on the one hand, and any concern for the protection of his reputation on the other, would not infect Raso and SGM Legal in continuing to have the conduct of the proceeding for the plaintiff. For the following reasons, I reject this submission. First, the potential for adverse reputational issues to arise extends beyond Marra to his firm, SGM Legal, who are the solicitors on record for the plaintiff. Second, Raso is an employee solicitor of SGM Legal. Marra is the sole director and principal of the firm. Third, Raso will have an unavoidable interest in defending the firm and Marra's conduct so that potential adverse reputational issues do not arise. I accept the defendants' submission that a fair-minded observer is likely to conclude that it would be only natural for Raso to feel reluctant in giving independent advice or taking steps in this proceeding that might put him in conflict with the interests of, or which may implicitly criticise, his principal. This interest is at odds with Raso's duty to the Court and to his client to bring an independent and objective mind to the proceeding unfettered by concerns about the personal interests of Marra and the firm in the outcome of the proceeding, and in that regard his own position in the firm. As the defendants submitted, Raso might feel this conflict even more acutely than Marra. The conflict of interest is not resolved by the steps that have been taken to isolate Marra from the conduct of the proceeding.
38 I take into account that the inherent jurisdiction of the Court to restrain solicitors from acting in a proceeding is exceptional and should be exercised with caution, and the public interest in a litigant not being deprived of the lawyer of their choice without due cause.[19] However, I am comfortably satisfied that in the circumstances of this case, the integrity of the judicial process and the due administration of justice require that an order be made to restrain SGM Legal from continuing to act for the plaintiff.
39 I will hear from the parties as to the appropriate form of order.
[1] The Father (a pseudonym) v Trustees of Edmund Rice Education Australia t/as Parade College [2025] VSC 17, [48]-[49] (citations omitted).
[2] [2012] VSC 168 ('Gangemi').
[3] [1994] I NZLR 587 ('Kooky Garments Ltd').
[4] Gangemi (n 2) [9], quoting Kooky Garments Ltd (n 3) 589-90.
[7] Ibid [43], citing Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446, 452.
[8] [2022] VSC 53 ('Makripoulias').
[9] [2005] NSWSC 1181; (2005) 64 NSWLR 561 ('Kallinicos').
[10] Makripoulias (n 8) [11], quoting Kallinicos (n 9) 584-5 [87] (citations omitted).
[11] [2015] VSCA 60; [2015] 46 VR 123 ('Veall').
[12] Makripoulias (n 8) [27], quoting Veall (n 11) 175 [170] (Santamaria JA).
[13] Makripoulias (n 8) [28], quoting Veall (n 11) 183 [192] (Santamaria JA).
[14] Makripoulias (n 8) [32], quoting Loosley v Powell [2018] NZLR 618, [51] (citations omitted).
[15] Makripoulias (n 8) [41] (citations omitted).
[16] Spincode Pty Ltd v Look Software Pty Ltd [2001] VSCA 248; [2001] 4 VR 501, 508 [24].
[17] Veall (n 11) 125 [5], 178 [179] (Santamaria JA).
[18] Ibid 183 [192] (citations omitted).
[19] Lee & Anor v MK Trading Co Aust Pty Ltd [2021] VSC 343, [60].
Plaintiff
VITO GIAIMO
(2005) 64 NSWLR 561