PUBLIC TRUSTEE v ROSA ALVARO No. SCGRG 93/1905 Judgment No. 5183 Number of pages - 42 Wills, probate and letters of administration - the making of a will - testamentary capacity [1995] SASC 5183 - SASC 1995 case summary

PUBLIC TRUSTEE v ROSA ALVARO No. SCGRG 93/1905 Judgment No. 5183 Number of pages - 42 Wills, probate and letters of administration - the making of a will - testamentary capacity [1995] SASC 5183 - SASC 1995 case summary — Zoe

[139]

to the use of a listening device by a person (including a member of the police force) where the listening device is used

(a) to overhear, record, monitor or listen to any private
conversation to which that person is a party; and
(b) in

the course of duty of that person, in the public interest or for the protection of lawful interests of that person."

[210]

The axe and gun incident occurred shortly after the purchase of 26 Rugby Street. Tony said that the deceased behaved erratically between January and July of 1991, although he did initially quieten down after the visit to Woodleigh House. Apparently, bank books were produced by the deceased in order to show that he had not robbed his wife which arose out of an argument that they had apparently had. There was then an argument between the deceased, Tony and Mid. The deceased suddenly went berserk and went to Tony's bedroom and came back with a gun. He said he would get the gun and kill everyone and then himself. Tony and Mid followed him. They wrestled the gun from the deceased. Mid left the house with the gun and threw it over the fence. The doors were locked by people inside and the deceased took an axe and approached the door. The deceased was saying that he couldn't be stopped from getting into his own house. Tony stood in front of the deceased with the axe. The police were called and came to the house. The deceased calmed down. Connie and Julie were not at the house on this occasion. The deceased's behaviour after this incident was variously described, such as, he was not trusting, very distant, he barely talked to the family and lived almost like a hermit. It was not long after this incident that the deceased must have gone to the office of the Public Trustee. The evidence strongly indicates that the deceased was suffering delusions concerning his family and a lack of trust of them arising out of the gun and axe incident. It is to be noted that he told Mr Nikotra, at the Public Trustee's office, that they (meaning all his children) "tried to kick me out of my house". As stated above, Connie and her family were not present and Julie was away on a retreat with her school. So far as the allegation of lacking in respect is concerned, it is significant that both Tony and Orsolina were, in Peter's opinion, respectful, although Peter agreed that perhaps Julie and Enza were less so. The allegation that his wife tried to rob him really escapes rationality. It may be that the allegation of robbery arose out of the fact that he was compelled to register the property at 26 Rugby Avenue in the joint names of himself and his wife, whereas he intended to purchase it only in his name. It is not without significance that the handwritten document, which in all probability was written by the deceased, as it is apparently in his handwriting (being exhibit D5), refers to the exclusion of his family after a reference to 26 Rugby Avenue, Croydon.

[211]

The next significant incident was on Christmas Day 1991. Connie, Peter, the defendant, Orsolina and Mid all say that the deceased read a script to the family indicating that he loved them, including his wife, and broke down while reading it so that Orsolina had to complete reading the letter. This behaviour is quite contrary to the behaviour that he displayed earlier in the year. The next incident is the shed incident. That happened within a week of Christmas Day 1991. It appears from the evidence that the relationship between Mid and the deceased before the purchase of 26 Rugby Street had been good. The deceased called Mid on Sundays to ask him to help at Houghton. However, after the purchase of 26 Rugby Street, that ceased because, as Mid later learned, the deceased did not trust him. Within days of reading the letter, the deceased alleged that the defendant had had sexual relations with Mid. In Peter's evidence he said that the deceased called him shortly after Dominic was born on 27th December 1991 and told him that Mid was sleeping with the defendant. Tony responded that that was bullshit and said "You've lost it, you're gone, that's crazy, its not true, it can't be true". Clearly this allegation was totally disruptive to the family relationship. There was already conflict within the family. The shed incident may be summarised when Tony brought his father into contact with Mid and Peter. He asked his father to repeat what he had said about Mid. The deceased said no, not in front of them. The deceased was agitated, but he did say and made the allegation in front of Mid. Mid said it could not be true. Julie's name was mentioned to the affect that the deceased had overheard a conversation between Julie and Enza that the defendant had slept with Mid. There was some inconsistency as it was also said that Julie had seen them in bed together. Julie was brought to the shed. She was asked if she had told her father that Mum had slept with Mid and she denied that she had said anything like that, because it didn't happen. It was said that the deceased really wanted to believe that they had slept together, no matter what Julie or anyone else said. After Julie left the shed the deceased continued to maintain the truth of the allegation. He called Mid a bastard and a pig. He said Mid should be ashamed of himself. Mid asked his father-in-law if he realised what he was saying, but the deceased kept going on and on.

[216]

THE MEDICAL EVIDENCE 123. The defendant called Professor Goldney, an experienced forensic psychiatrist. Professor Goldney read a lot of medical reports and listened to the tape, as well as reading some of the evidence. Prior to the trial, Professor Goldney submitted his report dated 4th March 1994 in which he stated in summary that he was quite "confident that Mr. Alvaro suffered from a paranoid disorder. Although one cannot be absolutely sure of the nature of the illness leading to this paranoid disorder, it is probable that he had a depressive condition." He noted that paranoid ideation and symptoms of depression can fluctuate. He further stated "it can be asserted with confidence that the description provided by the late Mr. Alvaro's family is quite consistent with him having had a paranoid disorder with fixed delusions about his view of what was happening within his family. It would be unexpected to me if that disorder had not influenced him in the preparation of his will in September 1991." Although he had no reason to doubt that the late Mr Alvaro was aware of the nature of a will and that he had a grasp of the extent of his estate, nevertheless said "I am firmly of the view that his paranoid delusions would have influenced his capacity to act in a rational and reasonable manner in regard to who he would normally feel an obligation to favour with his Will or, put another way, who would reasonably be considered to have a claim upon his estate." After mentioning the allegations that he made about his wife and son-in-law, Professor Goldney continued "I consider it is probable that he changed his will for delusional reasons, unless one accepts as reality the late Mr. Alvaro's assertions that his wife was a devil, that she wished to poison him, and that she was having an affair with her son and with her sons-in-law." He thought that the will of September 1991 was significantly influenced by his paranoid delusional thinking. He described that paranoid delusional thinking as being quite enduring in nature and it coloured his relationship with his family over a period of many months.

PUBLIC TRUSTEE v ROSA ALVARO No. SCGRG 93/1905 Judgment No. 5183 Number of pages - 42 Wills, probate and letters of administration - the making of a will - testamentary capacity [1995] SASC 5183

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Judgment (241 paragraphs)

PUBLIC TRUSTEE v ROSA ALVARO No. SCGRG 93/1905 Judgment No. 5183 Number of pages - 42 Wills, probate and letters of administration - the making of a will - testamentary capacity [1995] SASC 5183 (19 July 1995)

to the use of a listening device by a person (including a member of the police force) where the listening device is used

Parties

Legislation Cited (16)

Cases Cited (6)