Plaintiff v ELENA RICCIUTI and ORS

1. Relevantly for the caveators' case, clause 10 of the 2009 will states:

I DIRECT that no monies, chattels or real property forming part of my estate shall pass to my sisters DONNA NISIFOROU or ANDREA ZANNIS or any of their children or partners. I DECLARE that I make no provision for my said sisters under this Will as a result of the breakdown of our relationship.[1]

1. A letter accompanying the 2009 will explained the deceased's rationale for gifting his entire estate to Terry, excluding his sisters and including the five charities as gift over beneficiaries.[2] The letter states:

I am addressing this letter to the Executors of my Will, to clarify my reasons for distributing my estate in the way that I have. In the event of my partner, Terence John Quinn living beyond my death, I have directed that my whole estate should be given, devised and bequeathed to him. My reasons for doing that are that Terence Quinn and I have been mutually supportive life-long personal partners for a long period - a period of 32 years at the time of this statement. During that time, we have provided to each other all the personal, emotional, financial and other support that each one needed. No other person in my life has ever done this, and this is the reason for the nature of my will.

I have excluded my two sisters - Mrs Donna Nisiforou and Mrs Andrea Zannis - from any benefit from my Will, for quite specific reasons. Both of my sisters have totally excluded me from their lives and those of their families since the year 2000. The reason for their doing this was the fact that I am gay, and share my life with a gay partner. Ever since that time, they have never invited me to their homes or family occasions, and, in fact, I have not seen or spoken to either of them since the year 2000.

If Terence Quinn should pre-decease me, I have directed that my estate should be equally divided between a number of specified charities. These are charities which Terence Quinn and I have admired and supported for a long time, and we have agreed that they would be worthy beneficiaries of our estate once we are both deceased.

1. The letter makes no mention of the caveators, other than implicitly by reference to the 'families' of the deceased's sisters.

1. A person who has standing may lodge a caveat against the making of a grant of probate.[3] As beneficiaries pursuant to the gift over clause under the penultimate will in circumstances where Terry predeceased the deceased, the caveators have standing.
2. A caveator must particularise the grounds of objection to the grant. The sole ground of objection relied upon by the caveators in the amended grounds of objection is that the deceased lacked testamentary capacity as at 15 April 2009, being the day on which he made his 2009 will some 15 years prior to his death.
3. The grounds of objection must identify a prima facie case to proceed to trial, otherwise the caveat will be liable to be struck out.[4] A caveator will have a prima facie case where the matters particularised in the grounds identify a 'case for investigation', or 'something to go on'.[5] In Gardiner v Hughes (No 2),[6] the Victorian Court of Appeal approached the task, albeit in the context of an application for revocation, as follows:

The task for the party seeking to have a grant of probate revoked is therefore to show that there is a 'case for investigation' or 'something to go on'. Such a case will, by definition, not be frivolous or vexatious. However, mere speculation will not suffice. Decisions in New South Wales capture a similar notion using the expression 'reasonably arguable' or perhaps less commonly 'substantial issue to be tried'. Consistently with the notion of 'investigation', New South Wales authorities permit regard to be had to the evidence 'reasonably thought likely to be available'.[7]

1. In determining whether there is a 'case for investigation' or 'something to go on', the allegations made by a caveator in their grounds are taken to be true, and the question asked whether those allegations call for further investigation.[8] Mere speculation will not suffice.[9] If evidence has been filed, it is not the role of the Court at this early stage to make findings in respect of that evidence, or about the credibility of those who give it.[10] The onus of establishing a prima facie case rests with the party raising doubt as to the validity of the will, namely, the caveators.[11]

1. Having regard to the sole ground of objection raised by the caveators, the case warranting investigation must be one that is directed to the deceased's testamentary capacity. For that reason, and even though that issue will only be determined conclusively at trial if there is to be one, the principles drawn from the leading authorities relevant to proving testamentary capacity, although not in contest, deserve brief recitation.
2. A testator will have testamentary capacity if they understand:

(a) the nature and effect of their will;

(b) the extent of the property to be disposed of under their will; and

(c) the claims on their estate to which they ought give effect.[12]

To set aside a will for invalidity on this ground, it must be established that the deceased lacked capacity at the time of execution of the will, not at some later time.[13]

1. The bar for testamentary capacity is relatively low so as to give primacy to testamentary freedom.[14] In this regard the law tolerates the slowness and feebleness of old age, as well as illness and eccentricity.[15] Even extreme ill-health is not enough to deny capacity, there must be clear evidence:

the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property.[16]

For similar reasons, if a testator has a mental illness, that alone is not enough to deny testamentary capacity and invalidate a will.[17] Drawing from the description in Banks v Goodfellow,[18] in order to undermine testamentary capacity, the 'disorder of mind', 'insane delusion' or 'mental disease' must operate to 'prevent the exercise of [the testator's] natural faculties' at the time the will is made.[19]

1. There is also a presumption of validity where a will is duly executed and is rational on its face.[20] As McMillan J held in Re Matthews, where the presumption applies:

The caveator has the evidentiary burden to point to circumstances that raise a suspicion that the deceased lacked testamentary capacity so as to require an investigation of the will. In that event, the force of the presumption is reduced and shifts the evidentiary burden to the propounder of the will, such as to provide further or independent evidence of testamentary capacity.[21]

1. The caveators contend that, when he made his testamentary disposition in 2009, the deceased was affected by a delusion of the mind by reason of his long standing mental illness, which operated to prevent the exercise of his natural faculties and caused him to exclude them from his will. The caveators submit that they have 'something to go on' to establish lack of capacity because the reasons the deceased gave for their exclusion from the 2009 will are inconsistent with the objective facts established by their amended grounds, and so belie his delusional thinking at the time. They say this contention is reinforced by the deceased having self-reported his 20-year history of mental illness, poor medication compliance, paranoia and suspicion, when being assessed by a neuropsychologist in 2019. They say his objectively delusional thinking in 2009 would have been a product of this operative mental illness.

1. The 2009 will was drawn by an experienced solicitor from a firm with which the deceased had a pre-existing association. The 2009 will is rational on its face, leaving the deceased's entire estate to his partner of 32 years, being the only person to whom he owed a moral duty. In the event the deceased's partner predeceased him, which he did, the gift over clause names five charities as the secondary beneficiaries. The letter executed with the will describes these as 'charities which [Terry] and I have admired and supported for a long time.'[22] The 2009 will was duly executed, with the solicitor and the firm's receptionist witnessing its execution. The 2009 will, therefore, enjoys the presumption of validity.[23]
2. The 2009 will specifically excludes the deceased's sisters and their families, including their children and partners. That is not, on its face, an irrational decision. Neither the siblings, nor the nieces and nephews of a deceased person, are included within the classes of beneficiary to whom the law deems a testator owes a moral responsibility. There is no other duty owed to siblings or their children under general law, and the caveators would not be eligible claimants under Part IV of the Administration and Probate Act 1958 (Vic). The deceased was not, therefore, obliged to provide any explanation for excluding them, though by clause 10 of the 2009 will he refers to the breakdown in their relationship. The deceased elaborated on that explanation in the accompanying letter. It is that explanation which the caveators describe as delusional and which they contend, given his history of mental illness, gives rise to a case for investigation regarding his testamentary capacity.

Assertion that statement 'no other person in my life' provided support was delusional

1. The grounds of objection state that 'there was no basis in reality for the deceased to rationally believe that... no one had ever provided [him] with personal, emotional or financial support'.[24] The caveators particularise facts in the grounds, and give evidence in their affidavits, to the effect that his sisters had supported him as a young man. They rely on these facts to establish that the deceased was, therefore, delusional when he made his will, that the delusion impacted his ability to exercise his testamentary power and so he excluded his sisters and their families under clause 10.
2. In my view, the caveators have misdescribed this part of the deceased's explanation as given in the letter. The letter does not assert that the sisters never supported the deceased. Rather, and quite logically within the paragraph explaining why he has left his entire estate to Terry as his primary beneficiary, the letter calls attention to the mutual support the deceased and Terry provided to each other during the course of their then 32 year relationship. In stating 'no other person in my life has ever done this'[25] the deceased does not say that no one else ever provided him with support of any kind, but rather, that no one has provided the comprehensive combination of 'personal, emotional, financial and other support'[26] he had received from his life partner over that decades long close relationship. Even accepting, as I am bound to do, that his sisters supported him as a young man and provided practical support and reassurance later when he moved out of home, those facts do not render the statement in the letter about the unique support provided by his life partner to be untrue, contrary to reality, irrational or delusional. I am not satisfied that the facts particularised and in evidence in relation to this part of the grounds of objection raise any case for investigation into the deceased's testamentary capacity.

Assertion that statement to the effect that sisters had excluded the deceased from their lives and those of their families since 2000 because he is gay was delusional

1. The grounds of objection state that 'there was no basis in reality for the deceased to rationally believe that... the [d]eceased's sisters had totally excluded him from their lives and those of their families since the year 2000 due to the fact he was gay and shared his life with a gay partner.'[27] The caveators contend that this statement was delusional, particularising in their grounds and deposing in their affidavits to instances when they or other family members conveyed their support for the deceased being homosexual by words or conduct, and to instances of familial contact, particularly after the year 2000. Without referring to every instance that is particularised in the grounds or raised by the evidence, the caveators give the following examples of their family members' acceptance of his homosexuality dating back to the 1980s.

(a) The deceased's mother and sister Andrea met Terry in 1981, attending the deceased's graduation from Deakin University with him.

(b) The deceased's sister Donna discussed the deceased's sexuality with one of the caveators, Elena Ricciuti, prior to 1995, expressing the view she was 'okay' with it.

(c) In October 1988, the deceased and Terry attended Chris Nisiforou's 21st birthday, and in 1990, Terry hosted a family dinner to celebrate Chris's graduation from university. These occasions, and other social interactions on other unspecified dates between the families and Terry and the deceased, were warm and friendly at a time when it was apparent that they were co-habiting and in a relationship, marking the family's acceptance of that relationship.

(d) In 1995, the deceased sent a letter to his sisters, niece and nephews stating that he was gay. After the 1995 letter:

• (A) Chris Nisiforou, the deceased's nephew, told the deceased words to the effect 'no one in the family has a problem with this';[28]
• (B) the deceased's sister Andrea and her family saw the deceased about once a month when he visited his mother who was living with them;
• (C) the deceased's sisters, niece and nephews continued to have contact with the deceased, speaking by phone and attending family events together;
• (D) Donna told the deceased in relation to his letter, that it was 'OK'.[29]

(e) In 1999, the deceased and Terry were invited to, and attended, Elena's 21st birthday.

(f) In 2000, the caveator Nick Zannis invited the deceased and Terry to his 21st birthday party. The deceased declined the invitation but sent a present.

1. The caveators contend that nothing happened in 2000 which would justify the statement that the deceased's sisters had excluded him from their lives since that year. By the amended grounds and by the evidence given by affidavit, they maintain that:

(a) after 2000, each of the deceased's sisters, and the caveators, tried to call him but he did not answer the phone;

(b) in the early 2000s, the deceased's nephew Sam Nisiforou regularly visited him up until about 2003;

(c) in 2005, Chris bumped into the deceased and Terry and had a coffee with them, inviting them to Elena's wedding, an invitation they ultimately declined;

(d) subsequent to the wedding invitation in 2005, 'family members' arranged a family meeting with them, but the day before the scheduled meeting, the deceased telephoned Chris to cancel;

(e) in 2005, Elena wrote a Christmas card to the deceased giving him her contact details and offering help if needed;

(f) in 2006, Nick invited the deceased and Terry to his wedding, but they politely declined;

(g) '[a]fter 2000' the deceased telephoned his sister Donna to discuss his health issues (and his nephew Sam deposes that she asked him about his medication and offered help);

(h) in around 2009, the deceased called his sister Donna to discuss a recent prostate cancer diagnosis.

1. The caveators address an event in the year 2000 when the deceased believed that his sister Donna was trying to take his share of their mother's estate. Donna had asked him to sign a document giving her authority to deal with the estate on his behalf and on behalf of Andrea. Sam Nisiforou deposes that the deceased's reaction was out of character, but that there was no breakdown in relationship between the deceased and his sisters at this time. The caveators say there was no other event in the year 2000 that is relevant to that being the year the deceased identifies as the starting point of the breakdown in his relationship with his sisters.
2. The plaintiff submits that the descriptions given of the deceased's family's support for his homosexuality cannot be described as 'warm, supportive or encouraging'. I do not agree. I anticipate that it is difficult to convey such feelings on affidavit in a natural sounding way. In addition to the instances of express support deposed to, I accept that the family members' support for the deceased and his relationship with Terry was expressed more by their conduct, that is, by their continuing to invite him and Terry to family events, and to those events being warm and convivial gatherings whenever they did attend. However, it is clear that the deceased formed a different view about the extent or genuineness of that support, and perceived that he was being excluded by his sisters, at least from about 2000. That he may have formed a view that was inconsistent with what they intended to demonstrate does not make him delusional, without more.
3. Despite their support for his relationship, the evidence filed by the caveators and the facts particularised in their grounds show that neither they, nor other family members, had meaningful engagement with the deceased from about 2000. The interactions described between the deceased, his sisters and the caveators were extremely sparse and perfunctory. The deceased did not accept any invitations for organised meetings, to attend weddings or other family gatherings after 2000. He gave no reasons. The deceased did not appear to be answering or responding to anyone's calls. The last interaction before the 2009 will was signed appears to be the sending of a Christmas card to the deceased by one caveator in 2005 and an invitation to the wedding of another in 2006, which was declined. Sam Nisiforou does not depose to having any contact with the deceased after 2003, and Chris Nisiforou, who has sworn an affidavit, does not depose to any contact with him, save that the grounds assert that he had a chance encounter with the deceased in 2005. The evidence shows the caveators had nothing much to do with the deceased in the nine years preceding the execution of his will in 2009, nor did they have interactions with him in the years that followed until Terry died. I accept the plaintiff's submission that there was simply no real relationship between the deceased and the caveators so as to colour as delusional his decision to change the gift over clause in his 2009 will to remove them.

Assertion that the deceased suffered from mental illness which affected his testamentary disposition

1. The caveators contend that the deceased suffered mental illness including bipolar disorder and depression, that he had been treated with psychotropic medications and his mental illness had been poorly managed. They contend that the deceased's delusions as expressed in the 2009 will and the letter about the fact of, and reasons, for his relationship breakdown with his sisters, were formed in the context of this mental illness. The caveators do not have any medically based evidence to support the assertions that his mental illness impacted his mental faculties in 2009, though they contend they will be able to obtain that evidence after discovery and prior to a final hearing if joined as defendants.
2. The caveators assert that the deceased showed symptoms of mental illness 'particularly and increasingly'[30] after the year 2000, citing instances where they observed paranoia and his making irrational decisions. There are no dates, nor any details, given in the amended grounds or in the evidence for these alleged instances of paranoia or irrational decision making. In particular because of the sparsity of the caveators' interactions with the deceased from this time, the evidence, accepted at its highest, says nothing about the state of the deceased's mental wellbeing in 2009 (up to nine years later) when he executed his will. The assertion that he was delusional in the general context of his mental illness, and that his mental illness was operating in 2009 so as to interfere with his testamentary disposition is nothing but speculation. It supposes that there will always be a case for investigation as to the testamentary capacity of any testator who suffers, or has suffered, mental illness. These speculations of the caveators do not support a case for investigation, especially given the will was duly executed with his solicitor of long standing as one witness.
3. The caveators append to the amended grounds of objection the report, dated 21 February 2019, prepared by neuropsychologist Dr Monica Williams. The report was obtained for the purposes of a VCAT proceeding in which the caveators unsuccessfully sought to be appointed as the inter vivos administrators for the deceased. The caveators seek to rely on the report to bolster their assertions that the deceased had a 20 year history of psychiatric illness, was prone to paranoia and distrusted his nieces and nephews. They rely, in particular, on a comment in the report about the deceased appearing to Dr Williams to be more capable than he in fact was at the time of its preparation to support the bare assertion that the deceased was able to disguise his mental health symptoms.[31]
4. I accept the plaintiff's submission that, taken at its highest, the neuropsychology report does no more than establish that, in 2019 when it was prepared, the deceased lacked capacity to execute a power of attorney. Given when and why it was prepared, it contains no findings about the deceased's mental capacity in 2009. The report can have no bearing on the question of the deceased's testamentary capacity ten years prior, in 2009, when the will was executed. In so far as the caveators rely on the report's noting that the deceased self-reported a history of mental illness, for the reasons addressed in the paragraph above, even accepting that to be the case does not advance their case any further than speculation as to the deceased's testamentary capacity at the time the will was executed.

1. I am not satisfied, accepting all of the facts raised by the grounds and in the evidence as to the state of the relationship between the deceased, his sisters and the caveators, that the caveators' material discloses a narrative that the reasons given by the deceased for excluding his sisters and their families from his 2009 will were so obviously untrue, irrational and delusional that there is a case for investigation that he lacked testamentary capacity. By the 2009 will, the deceased gave the entirety of his estate to his life partner, who, as he explained, he felt had provided him with unparalleled love, emotional, financial and other support throughout their long relationship. That decision could not be impugned. The deceased then exercised his testamentary freedom to gift over his estate to five charities whom he and Terry had long admired and supported in the event Terry predeceased him, rather than his niece and nephews, as was the case in the penultimate will.
2. Whilst there are instances of interaction between the deceased and the caveators or his sisters in the accounts given in the particulars to the grounds and in the evidence, they are sparse and none of those interactions appears to have been substantial or meaningful. None of the accepted facts suggest there was much of a relationship, let alone a warm and loving one, between the deceased and the caveators, or his sisters after 2000. The deceased did not owe any moral duty to provide for his niece or nephews and, given the state of their relationship, it was not irrational that he failed to do so.
3. The assertion that the mental ill-health of the deceased affected the exercise of his mental faculties in making his testamentary disposition in 2009 is nothing more than speculation and does not raise a case for investigation. There are no facts raised by the grounds or in the evidence which shed any light on the deceased's mental health (i.e. something to go on) at the time he made his will in 2009.
4. I will order that the caveat be struck out and the caveators pay the plaintiff's costs of and incidental to the caveat, including of the prima facie case hearing, such costs to be taxed in default of agreement.

[1] Originating Motion for Grant of Probate with attached Copy of Will filed 4 December 2024 ('2009 will').

[2] Affidavit of Chris Nisiforou sworn 24 April 2024, [7], Exhibit CN-1, 6-7 ('Chris Nisiforou affidavit').

[3] Administration and Probate Act 1958 (Vic) s 58.

[4] Re Przychodski [2016] VSC 781, [16].

[5] Gardiner v Hughes (No 2) [2019] VSCA 198, [41] ('Hughes'); Re Robustelle (No 2) [2023] VSC 72, [15] ('Re Robustelle'); Lehr v Matters [2024] VSC 640, [13].

[10] Cartledge v Bryan [2023] VSC 195, [9].

[11] Hughes [42]; Re Pellettieri [2025] VSC 20, [27].

[12] Re Robustelle [18], citing Banks v Goodfellow (1870) LR 5QB 549, 565_._

[13] Re the Estate of Kaczmarski [2025] VSC 530, [19].

[14] Re Matthews [2022] VSC 15, [67] ('Re Matthews').

[16] Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, 571-2 (Isaacs J, with whom Gavan Duffy and Rich JJ agreed), cited with approval in Re Matthews [67].

[17] Tipper v Moore [1911] HCA 42; (1911) 13 CLR 248; Willis v McKenzie [2018] VSC 325, [24].

[20] Veall v Veall [2015] VSCA 60; (2015) 46 VR 123, [168].

[22] Chris Nisiforou affidavit [7], Exhibit CN-1, 6-7.

[23] Muir v Laycock [2025] VSC 287, [264].

[24] Amended grounds of objection filed 24 April 2025, [10(b)(i)] ('amended grounds of objection').

[25] Chris Nisiforou affidavit [7], Exhibit CN-1, 6-7.

[26] Chris Nisiforou affidavit [7], Exhibit CN-1, 6-7.

[27] Amended grounds of objection [10(b)(ii)].

[28] Affidavit of Sam Nisiforou sworn 23 April 2025, [29]-[32] ('Sam Nisiforou affidavit'); Amended grounds of objection [8(g)].

[29] Sam Nisiforou affidavit [33]; Affidavit of Paraskevas Nisiforou sworn 23 April 2025 [8]; Amended grounds of objection [8(i2)].

[30] Amended grounds of objection [8(u)].

[31] Amended grounds of objection [8(v)].