Plaintiff v PETER TARQUINIO

2 Mrs Tarquinio is aged 63 years. She was married to her late husband, Mario Tarquinio (Mr Tarquinio) for some 43 years. Mr Tarquinio died on 20 December 2015. They had two children, Robert Tarquinio (Robert) and Peter Tarquinio (Peter), the latter being the defendant in this proceeding.

3 Mrs Tarquinio has suffered from poor health since 2010, when she suffered a stroke. Since that time she has had approximately 6 more strokes, including one in June 2017. Her health has deteriorated further since that time. She is bed ridden and requires full-time care, which she receives as a permanent resident of the Bupa Aged Care Facility in Donvale. It is common ground that Mrs Tarquinio lacks testamentary capacity.

4 No will made by Mrs Tarquinio has been uncovered.

5 The proposed will appoints Robert as the Executor and Trustee of Mrs Tarquinio's estate and provides that the whole estate is to be bequeathed to him. In the event that Robert predeceases Mrs Tarquinio, the proposed will provides that Mrs Tarquinio's whole estate be bequeathed to Peter.

6 Peter submits that the proposed will does not reflect Mrs Tarquinio's wishes. He believes her wishes are to leave her estate to both of her sons in equal parts.

7 Mrs Tarquinio suffers from poor health and requires full-time care. On 20 April 2016, the Victorian Civil and Administrative Tribunal (VCAT) made an order appointing Robert as Mrs Tarquinio's guardian for the limited purpose of making decisions concerning her accommodation and as sole administrator of her estate with all the powers and duties conferred by Part 5 Divisions 3 and 3A of the Guardianship and Administration Act 1986.

8 On 12 April 2016, this Court granted Peter probate of Mr Tarquinio's will dated 22 October 2015. Under the terms of his will, Mr Tarquinio divided the residue of his estate between Peter and Robert as tenants in common and made no provision for Mrs Tarquinio. Mr Tarquinio's estate comprises a number of properties, cash, bank balances, and his beneficial interest in two family trusts.

9 In September 2016, Robert engaged Antonino Cavoli, a solicitor, seeking assistance regarding Mrs Tarquinio's affairs.

10 On 10 October 2016, Mrs Tarquinio commenced a proceeding in this Court seeking an order under Part IV of the Administration and Probate Act 1958 that provision be made for her proper maintenance and support out of Mr Tarquinio's estate. That proceeding remains on foot.

11 In November 2016, Mr Cavoli engaged Dr Judy Tang, a clinical neuropsychologist, to examine and report on Mrs Tarquinio's ability to make decisions and give instructions. In a report dated 21 December 2016, Dr Tang concluded that Mrs Tarquinio provided reliable, reasonably accurate and sensible accounts of her financial and legal circumstances and was aware of the effects of her decisions, but that her reduced cognitive abilities meant that she would not be able to make complex decisions regarding her finances and/or legal circumstances.

12 On 29 March 2017, an application was made to appoint Mr Beckwith as Mrs Tarquinio's litigation guardian in her proceeding commenced under Part IV of the Administration and Probate Act 1958 in relation to her late husband's estate. That application was granted by order of Judicial Registrar Englefield on 2 May 2017.

13 In November 2017, Mr Cavoli requested a further report from Dr Tang on Mrs Tarquinio's condition. In a report dated 20 November 2017, Dr Tang stated that Mrs Tarquinio's cognitive functioning had deteriorated significantly since the previous assessment, and that her current clinical and cognitive presentation would interfere with her capacity to make informed and reasoned decisions regarding her will.

14 On 12 December 2017, an application was made to VCAT for an order that Mr Beckwith replace Robert as administrator of Mrs Tarquinio's estate. Robert consented to that application. On 2 February 2018, Mr Beckwith was appointed administrator of Mrs Tarquinio's estate with all the powers and duties conferred by Part 5 Divisions 3 and 3A of the Guardianship and Administration Act 1986.

15 On 31 July 2018, Peter commenced a proceeding in this Court seeking an order under Part IV of the Administration and Probate Act 1958 that provision be made for his proper maintenance support out of Mr Tarquinio's estate. That proceeding remains on foot.

16 On 21 September 2018, on application by Mr Beckwith, this Court made an order pursuant to s 21D of the Act that Howard Jones, a solicitor of Septimus, Jones & Lee, be appointed to represent Mrs Tarquinio in this proceeding.

17 On 23 October 2018, Mr Cavoli once again wrote to Dr Tang requesting a follow up report on Mrs Tarquinio's testamentary capacity, and specifically:

whether she has sufficient capacity to comprehend the nature and effects of a Will, to be able to realise the extent and character of her estate, to understand her responsibility to make provision for certain persons and be able to weight the claims that may be made on her estate.

18 On 15 November 2018, Dr Tang and Ms Amanda Niu produced a Neuropsychological Assessment Report which contained the following conclusions:

• Mrs Tarquinio is unable to participate in any legal proceeding and reports being unaware of any of the proceedings currently taking place;

• It is unlikely that Mrs Tarquinio has the ability to make informed or reasoned decisions regarding her will, and it is unlikely that she will regain testamentary capacity;

• Mrs Tarquinio has a basic understanding of what constitutes a will;

• Mrs Tarquinio is unable to articulate her current assets accurately, and requires significant prompting;

was consistent regarding her wishes for both of her sons, Robert, and Peter to be the recipients of her will. When further questioned, she reported that she felt closer to Robert and wanted to give him a greater proportion of her will than Peter as she does not see Peter frequently. She also indicated that she wanted to give her estate to her husband, not realising that her husband has since passed away. She was noted as consistent in these wishes across both days of the assessment. In all, Maria was consistent in her knowledge to whom she owed a moral duty, however, this is earmarked with the continued belief that her husband is currently living;

• Mrs Tarquinio's significant cognitive impairment impedes her ability to comprehend the consequences of her decisions, potentially making it difficult for her to weigh up the claims of the people around her effectively and efficiently;

• Mrs Tarquinio experiences significant lethargy, drowsiness, poor attention, and was disoriented, indicating that she is likely in hypoactive delirium.

Section 21B of the Act & Mr Beckwith's submissions

19 Pursuant to s 21B of the Act, before making an order authorising the making of a statutory will, the Court must be satisfied of three matters:

(a) that the person on whose behalf the will is proposed to be made does not have testamentary capacity (s 21B(a));

(b) that the proposed will reflects what the intentions of the person would be likely to be, or what the intentions of the person might reasonably be expected to be, if the person had testamentary capacity (s 21B(b)); and

(c) that it is reasonable in all the circumstances for the Court, by order, to authorise the making of the will for the person (s 21B(c)).

20 With respect to s 21B(a), the parties are agreed that Mrs Tarquinio no longer has testamentary capacity. I am satisfied that this is established on the evidence before the Court.

21 The requirement imposed by s 21B(b) has two limbs. The first focuses on what will the person would be likely to make if the person had testamentary capacity. Under the second, the Court may be satisfied that a proposed will reflects what the intentions of the person might reasonably be expected to be, if the person had testamentary capacity. In considering these matters, as stated by McMillan J in Re Gillam,[1] the test is not whether the proposed will would be preferable to the result on an intestacy or to an existing will. The Court does not engage in an exercise of comparing the proposed will to what may happen if the Court declines to exercise its jurisdiction under s 21, and deciding which alternative the incapacitated person would prefer.

22 Mr Beckwith's submissions on this requirement focused wholly on the first limb; no separate submission was advanced as to how the evidence might enable the Court to be satisfied of the second limb.

23 In addressing the first limb of s 21B(b), Mr Beckwith submits that no previous will made by Mrs Tarquinio has been located. This is consistent with Robert's evidence that, based on his conversations with Mrs Tarquinio and various searches made of her belongings and by her solicitors, she has never made a will. It is also consistent with Mr Cavoli's evidence about unsuccessful enquiries he has made of three legal practices that have previously acted for Mrs Tarquinio regarding whether they hold any will made by her.

24 Mr Beckwith then submits that, as 'there is no yardstick as to what [Mrs Tarquinio's] testamentary intentions were when she had capacity ... the plaintiff does not have the obstacle of overcoming previous wills.' He therefore relies on what is said to be other available evidence as to what will Mrs Tarquinio would be likely to make, if she had testamentary capacity. In that regard he relies on his own affidavit dated 20 March 2018 and affidavits sworn by:

(a) Antonino Cavoli on 22 March 2018;

(b) Robert Tarquinio on 16 March 2018;

(c) Howard Jones on 12 October 2018;

(d) Howard Jones on 16 November 2018; and

(e) Amanda Niu on 18 December 2018.

25 Mr Beckwith deposes that he visited Mrs Tarquinio on 25 October 2017 and she said to him that she does not presently have a will, but that she wishes to leave her entire estate to her son Robert.

26 Mr Cavoli deposes that, over the course of conversations with Mrs Tarquinio on 5 and 10 October 2016, she appeared to have a good understanding of her late husband's estate and of her role in the acquisition and management of Mr Tarquinio's assets. He also states that she apparently had a good understanding of the need to act expeditiously in the commencement of this proceeding and the nature and risks of the proceeding, but that he had concerns about her ongoing capacity, which prompted him to seek a neuropsychological report from Dr Tang.

27 Robert deposes that he has a very good relationship with his mother, and has cared for and visited her very regularly over the course of her illness. He states that Peter has been estranged from Mrs Tarquinio for some 12 years, and that Peter offers no support in her care and to Robert's knowledge does not visit her. Robert further states that Mrs Tarquinio has told him that she wishes to bequeath to him her entire estate, to the exclusion of Peter.

28 Mr Jones deposes that he has visited Mrs Tarquinio on four occasions, being 25 September, 26 September, 3 October and 1 November 2018. On the second of these visits, Mr Jones states that he asked Mrs Tarquinio who she wanted to leave her estate to, and she replied, "Robert only." When prompted further as to whether she wished to leave anything to Peter and whether she wanted Robert to be the executor and beneficiary of her will, she reportedly repeated that she wished to leave her entire estate to Robert alone. On the third visit, Mr Jones prepared a draft will in largely the same terms as the proposed will. When Mr Jones read the draft to Mrs Tarquinio, she commented, "That's right." On the fourth occasion, Mr Jones deposes that Mrs Tarquinio repeated her wishes to leave her estate to Robert and, in the event that he predeceases her, to Peter.

29 Ms Niu and Dr Tang's neuropsychological report dated 15 November 2018 is summarised in paragraph [18] above. In that report, the assessors note that Mrs Tarquinio was consistently able to express her wish that Robert receive a substantial portion of her estate. They also note that Mrs Tarquinio was consistent in the expression of her wish to leave her assets to both of her sons. They further note that Mrs Tarquinio expressed a desire to leave her estate to her husband, not remembering that Mr Tarquinio is deceased. Dr Tang also refers to her December 2016 report on Mrs Tarquinio's condition referred to above at [11], in which she noted that at that time Mrs Tarquinio demonstrated no awareness that her husband had passed away, and that Mrs Tarquinio reported that Robert visited her regularly, but that Peter did not.

30 On the basis of the evidence summarised above, Mr Beckwith submits that the evidence of all the legal practitioners who have spoken to Mrs Tarquinio about her wishes in respect of her estate is that she unequivocally wants to leave all her estate to Robert. This evidence is said to be compelling and evidence which the Court should accept.

Section 21B(c) - reasonable in all the circumstances

31 Mr Beckwith submits that the Court can be satisfied that the proposed will reflects what Mrs Tarquinio's intentions might reasonably be expected to be because of: (a) the absence of any evidence of any other gift that Mrs Tarquinio might reasonably be expected to make by will; and (b) her estrangement from Peter.

32 Peter submits that, if Mr Beckwith's application succeeds, he will seek an order under Part IV of the Administration and Probate Act 1958 that provision be made for his proper maintenance and support out of Mrs Tarquinio's estate. He submits that he is without assets, unemployed and not capable of employment, whereas Robert is wealthy. Mr Beckwith contends that this submission is not sustainable because, while the Court may consider the likelihood of a Part IV claim being made, its task in this proceeding is different from the task of assessing a Part IV application.

33 Mr Beckwith's application is rejected for the reasons which follow.

34 In relation to the requirement in s 21B(b), central to Mr Beckwith's application is the proposition that the proposed will reflects what the intentions of Mrs Tarquinio would be likely to be if she had testamentary capacity. There are at least two flaws in this proposition. First, and most favourably to Mr Beckwith, because there is no evidence that Mrs Tarquinio ever made a previous will, there is simply no evidence of her testamentary intentions from when she had capacity. However, the fact that no will by Mrs Tarquinio has been located, despite various searches and enquiries, is consistent with the conclusion that she did not intend to make any will.

35 Secondly, Mr Beckwith's attempt to fill this gap by relying on the evidence of the various persons referred to above about their communications with Mrs Tarquinio at various times in the period between April 2016 and November 2018 cannot be accepted. At least in relation to the evidence about Mrs Tarquinio's apparent wishes expressed towards the end of that period,[2] I am satisfied that that evidence is in respect of a period during which Mrs Tarquinio lacked testamentary capacity.

36 The most recent neuropsychological assessment of Mrs Tarquinio, summarised in the report of Ms Niu and Dr Tang dated 15 November 2018, provides a detailed summary of Mrs Tarquinio's cognitive difficulties. In addition to being unable to answer various questions about her current living situation, including the name of the facility in which she is living, she was reportedly consistent in her desire to leave her assets to both of her sons, and that "she wanted to give her estate to her husband, not realising that her husband has since passed away." Mrs Tarquinio was at the time of assessment reportedly unaware of any proceedings and was unaware that she had an administrator. Overall, the report concluded that Mrs Tarquinio's:

current cognitive profile is largely consistent with her neuropsychological performances approximately 12 months ago. She continued to demonstrate significant impairment across all aspects of her cognition, including her auditory attention, working memory capacity, processing speed and verbal abstract reasoning skills.

37 Unsurprisingly, there is no evidence which would enable the Court to determine precisely when Mrs Tarquinio lost capacity. However, the evidence before the Court does lead me to conclude on the balance of probabilities that Mrs Tarquinio did not have capacity when she communicated with Mr Beckwith, Mr Cavoli, Mr Jones and Ms Niu as deposed to in their evidence summarised above. The parties' acceptance that Mrs Tarquinio does not presently have testamentary capacity is entirely consistent with Ms Niu and Dr Tang's report dated 15 November 2018 which may be taken to be an opinion as to Mrs Tarquinio's capacity at the time of assessment on 12 and 13 December 2018. However, as noted in the previous paragraph, at that time Dr Tang expressed the opinion that Mrs Tarquinio's then cognitive profile was largely consistent with her neuropsychological condition approximately 12 months earlier. Further, a neuropsychological report of Dr Emilie Tijs dated 8 April 2016 which is before the Court indicates that Mrs Tarquinio suffered at that time from "behavioural disturbance" and that "her delusions well [sic] be longstanding." The report notes that Mrs Tarquinio's reasoning was clearly affected by ongoing delusional beliefs that her husband had faked his death and was hiding money from the sale of their properties, and concludes that Mrs Tarquinio's "cognitive and psychiatric disability has already been well established ... [s]he has very poor insight into her care needs and her financial situation."

38 The earliest evidence from legal practitioners relied upon by Mr Beckwith is the evidence of Mr Cavoli's conversations with Mrs Tarquinio in October 2016 and Mr Beckwith's conversations with her in October 2017. The evidence of those conversations must be seen in light of the evidence referred to above about Mrs Tarquinio's psychological condition. I consider that it is more likely than not that at those times Mrs Tarquinio did not have capacity and as such Mr Beckwith's reliance upon this evidence and evidence of later conversations between legal practitioners and Mrs Tarquinio is misplaced.

39 To the extent that Mr Beckwith relies on evidence from Robert, that evidence is not properly directed to ascertaining whether the proposed will reflects Mrs Tarquinio's likely intentions if she had testamentary capacity. In any event, however, as the sole beneficiary under the proposed will, I am unwilling to give significant weight to Robert's evidence in the absence of other evidence as to Mrs Tarquinio's likely testamentary intentions. For reasons I have outlined above, the evidence from the legal practitioners relied upon by Mr Beckwith does not provide that support because it is evidence of statements made by Mrs Tarquinio at times when it is more likely than not that she did not have capacity.

40 For the above reasons, Mr Beckwith's submissions on the first limb of s 21B(b) are rejected.

41 It has been observed by McMillan J that the second limb of s 21B(b) requires the Court to be satisfied on the balance of probabilities that the proposed will reflects what a person's:[3]

intentions would be likely to be, or what her intentions might reasonably be expected to be, or that there was a fairly good chance that it reflected what her intentions might be, or that some reasonable people could think that it reflected what might be her intentions, or that some reasonable people could think that there was a fairly good chance that it reflected what might be her intentions, if she had testamentary capacity.[4]

42 Mr Beckwith did not develop a submission as to how the evidence would enable the Court to be satisfied of this limb of s 21B(b). For completeness, however, I consider that the paucity of evidence before the Court which relates to any period when Mrs Tarquinio had capacity necessarily means that the Court is unable to be satisfied of this limb, applying the approach referred to in the above extract. It is not for the Court to speculate about what may have been Mrs Tarquinio's intentions.

43 In light of my conclusion above in relation to s 21B(b), it is unnecessary for me to consider whether it is reasonable in all the circumstances for the Court to authorise the making of the proposed will.

44 Mr Beckwith's application is accordingly dismissed. Within 7 days, the parties are to file orders giving effect to this judgment and, in the absence of agreement, any submissions on costs.

[1] [2016] VSC 5, [24].

[2] In particular the evidence of Ms Niu, Mr Beckwith and Mr Jones referred to above.

[3] Re Gillam [2016] VSC 5, [31].

[4] Applying the principles stated by Palmer J: Re Fenwick [2009] NSWSC 530 (12 June 2009) [150]-[153]. See also, Saunders v Pedemont [2012] VSC 574 (28 November 2012) [93] (Habersberger J); Bailey v Richardson [2015] VSC 255 (5 June 2015) [170] (McMillan J).