Order dispensing with the necessity for citations rescinded. Admissability of taperecording of a conversation with the deceased and his son in civil proceedings.

Wills Act 1996; Inheritance (Family Provision Act) 1972-1975; Court of Probate Act (1957), Administration and Probate Act 1919 s27, s28; Listening Devices Act 1972ss3,4,5,6 and 7, referred to. Re Hodges; Shorter v Hodges (1988)14 NSWLR 698; Cleare and Forster v Cleare (1869) LR 1 SASR 394, applied. T v Medical Board of South Australia (1992)58 SASR 382, distinguished. Re Munn [1943] SAStRp 44; (1943) SASR 304, discussed.

HRNG ADELAIDE, 1-12, 16-18 May 1995 #DATE 19:7:1995 #ADD 11:9:1995

JUDGE1 LEGOE AJ The plaintiff claims, as the sole executor, that a last will dated 17 September 1991 of NICOLA ALVARO late of 35 Payne Street, Hope Valley in the State of South Australia, retired metal polisher, who died on 21 February 1993, be established as his last will. The plaintiff claims that the court should decree probate of the said will in solemn form of law.

The affidavit of Rodney Colin Brook, Deputy Public Trustee, sworn on 25 October 1993 states that the deceased made and duly executed his last will and testament on 17 September 1991, appointing the Public Trustee as sole executor and trustee. A caveat was entered by the deceased's widow ROSA ALVARO in the Probate Registry of this court on 31 August 1993. The caveat was duly warned on 15 September 1993. An appearance to the said warning was entered at the Probate Registry on 24 September 1993 on behalf of ROSA ALVARO by solicitors acting for her (the defendant to these proceedings).

Rosa Alvaro is described as the sole executrix and residuary devisee and legatee named in an alleged will made by the deceased dated 27 January 1981. Both the will of 17 September 1991 and 27 january 1981 affect land and property situated within the State of South Australia.

Probate action and the proceedings: On 25 October 1993, the plaintiff commenced the action by issuing the summons seeking the relief referred to above. An appearance was entered to the summons by the defendant Rosa Alvaro. The defendant filed her first defence and counterclaim on 10 December 1993. The defendant put the plaintiff to proof that the deceased knew and approved the contents of the will dated 17 September 1991. By her defence, she set up affirmatively, the allegation that the deceased often said to the defendant and other members of the family, that he wished certain land at Houghton, which is described in the particulars, to be preserved and reserved as a memorial of himself to his children, grandchildren and great-grandchildren. The will of 17 September 1991 provides for the calling in, sale and conversion of all real estate of the deceased.

By counterclaim, the defendant alleges that the deceased was not of sound mind, memory and understanding at the time that he executed the will of 17 September 1991. It is further alleged that he was suffering from or harbouring a delusion or delusions about the defendant and/or members of her family. At the time of the execution of that will, the deceased was alleged to be in such a condition of mind and memory as to be unable to understand the nature of the act and its effects or the extent of the property of which he was disposing, or to comprehend and appreciate the claims to which he ought to have given effect. Lengthy particulars to these affirmative allegations in the defence and counterclaim were filed with the defence and counterclaim dated 10 September 1993.

The more explicit defence and counterclaim and amendment.

On 4 March 1994, the defendant filed a more explicit defence and counterclaim. In that further pleading, the defendant in addition to the above, alleged that the deceased had said to the defendant and other members of the family on various dates unknown to the defendant, that he wished his son, Francesco Antonio Alvaro to marry and to build a home on a portion of the land at 25-29 Payne Street, Hope Valley. This was to ensure that the "Alvaro" name remained associated with that land and that the "Alvaro" name be physically placed on that land by plaque. Further, it is alleged that the deceased told the defendant that if he died she was to ensure that his son married and produced a son who was to be named after the deceased. The will of 17 September 1991 provided for the residue of the estate of the deceased to be divided between those grandchildren of the deceased as would survive him.

It is further alleged in the more explicit defence, that the deceased had difficulty in hearing and in keeping his attention on matters, and that this fact and habit was observed by the defendant and members of her family on various occasions, and by a Dr Dean Beaumont, a legally qualified medical practitioner on 18 November 1988. It is alleged that in September 1991, the deceased was in such a condition of mind and memory as to be unable to understand the nature of the act and its effects or the extent of the property to which he was disposing,or to comprehend and appreciate the claims to which he ought to have given effect. The more explicit counterclaim contains a repetition of the previous particulars of the above allegations, including certain further and more explicit particulars.

These allegations were repeated in an amended more explicit defence and counterclaim which was filed on 22 March 1995. Certain further and more explicit particulars were added to this last pleading. The defendant counterclaimed: "1. That the court do pronounce against the alleged will

2. that the court do pronounce in solemn form of law for the will of the deceased dated 27th January 1981;

3. or, in the alternative, a declaration that the will executed without formality in or about January 1993, revives the will executed on 27th January 1981, pursuant to ss25 and 12 of the Wills Act 1936;

The more explicit reply and defence to counterclaim: The more explicit reply filed by the plaintiff as amended and filed on 3rd June 1994 denies the defendant's allegations as to incapacity and alleges that the testator was interviewed by an officer of the plaintiff on two occasions, 26 August 1991 and 17 September 1991. The testator's original wish, as expressed to the officer of the plaintiff, at the first conference, was to leave the whole of the estate to charitable beneficiaries. The testator expressed the view to the officer of the plaintiff that he did not wish to benefit his wife or children in any way. The said officer invited the testator to consider that even if he did not wish to leave anything to his wife or children, that he might wish to leave some part of his estate to his grandchildren. The testator, at the time of the original conference, indicated that he wished to leave a legacy of $50,000 to each of his grandchildren with the residue of his estate to be equally divided between the Anti-Cancer Foundation of the Universities of South Australia and the Asthma Foundation of South Australian Inc.

By its amended reply, the plaintiff further states that at the conclusion of the first interview, the testator was to return within a few days to execute a will which was to have been drawn up by the plaintiff in accordance with the instructions provided on 26th August 1991. The testator returned on 17th September 1991, when he was again interviewed by the same officer of the plaintiff. The testator indicated to the said officer that he had been considering the discussions which had taken place between the officer of the plaintiff and the testator on 26th August 1991. The testator indicated, that having considered the comments made by the officer of the plaintiff, the testator now wished to leave the whole of his estate to his grandchildren. Accordingly, a will was prepared in accordance with those instructions by the plaintiff. That will was executed a short time later on 17th September 1991, in accordance with the testator's instructions given on that day.

The plaintiff, in the amended reply, further alleges that throughout the course of the two interviews, the testator both heard and listened to advice provided to him by the officer. Further, the plaintiff alleges that at the time of giving the instructions on both occasions, the deceased: (a) gave full and accurate details of all assets held either in his name or in the joint names of himself and his wife; and (b) accurate details of his date of birth, marital state and numbers and genders of his children. The plaintiff then alleges that the testator appeared to give due consideration to the advice of the officer of the plaintiff in respect of the inclusion of his grandchildren as beneficiaries in the estate. The testator had proffered reasons as to why he did not wish to benefit his wife or his children. The amended reply reads: "The reasons proffered were partly in writing and partly oral. The written reasons were contained in a document

titled 'Re my will' signed by the deceased and dated 26th August 1991. The oral reasons proffered by the testator were in conversation held on 26th August and 17th September. These conversations were between the testator and the said officer. In the conversation on 26th August the testator instructed the officer that he wished to leave the whole of his estate to two charities. He instructed that he did not wish to leave anything to his wife or his children because they did not respect him. The testator also said that his wife had tried to rob him and that the children had tried to kick him out of his own house. The said officer suggested that he should consider leaving something to his grandchildren. The testator indicated that he wished to leave them a legacy of $50,000. The will was drawn up by the said officer in accordance with these instructions. In the conversation on 17th September he instructed the said officer that he wished his estate to be divided equally

between his grandchildren. The will was amended in accordance with these instructions."

On both occasions it is alleged that the testator appeared to have testamentary capacity.

The plaintiff said in its amended more explicit reply that the plaintiff did not know and could not admit the allegations relating to the deceased's delusion or delusions, which it was alleged he harboured against his wife and his family.

Having pleaded expressly to the clauses in the counterclaim, the plaintiff denied that the defendant was entitled to the remedies sought.

THE AFFIDAVITS OF SCRIPTS 16. The affidavit of RODNEY COLIN BROOK states: "1. That I am the Deputy Public Trustee in and for the State of South Australia and I am authorised to swear this affidavit on behalf of Public Trustee, the plaintiff in this action.

2. No paper, parchment, writing or other document being or purporting to be or having the form of or effect of a will or codicil or other testamentary disposition of the abovenamed deceased, or being or purporting to be instructions for, or the draft, of any will, codicil or other testamentary disposition of the said deceased have any time save before or since come into my hands, possession or is known to me save and except; (a) the last will of NICOLA ALVARO bearing date the 17th day of September 1991 which said will is in the clear plastic envelope which is now produced and shown to me and marked "A". (b) the original instructions for the will referred to in sub-paragraph (a) which are now produced and shown to me and marked "B". (c) a photocopy of a will bearing date the 27th day of January 1981 which is now produced and shown to me and marked "C". The original will is under the control possession and custody of the defendant. (d) a will bearing date the 18th of December 1964 which is now produced and shown to me and marked "D". (e) a photocopy of an unexecuted and undated typed paper writing alleged to be a will of the deceased which is now produced and shown to me and marked "E". The original of the document is in the custody possession or power of the defendants. (f) a photocopy of an unexecuted and undated hand written paper writing alleged to be a will of the deceased which is now produced and shown to me and marked "F". The original of this document is in the possession custody or power of the defendant.

3. I know the facts herein deposed to partly from my own knowledge and partly from information conveyed to me by my officers and Public Trustee's solicitor which information I believe to be true by virtue of the fact that I regard such officers and solicitor as credible persons."

"THIS IS THE LAST WILL AND TESTAMENT of me NICOLA ALVARO of 15 Payne Street Hope Valley in the State of South Australia Retired Metal Polisher

1. I REVOKE all former Wills and Codicils made by me.

2. I APPOINT the PUBLIC TRUSTEE of Adelaide in the said State (hereinafter referred to as "my trustee") to be sole executor and trustee of this my Will.

3. I GIVE DEVISE AND BEQUEATH the whole of my real and personal estate to my trustee upon trust to call in or sell and convert into money all such parts thereof as shall not consist of money with power to postpone such conversion for so long as my trustee shall think fit and pay thereout my funeral and testamentary expenses and debts and stand possessed of the residue upon trust for such of my grandchildren as survive me and if more than one in equal shares.

IN WITNESS whereof I have hereunto set my hand this 17th day of September 1991 N. Alvaro

SIGNED by the abovenamed Testator as and for his last Will in the presence of us both being present at the same time who at his request in his presence and in the presence of each other have hereunto subscribed our names as witnesses".

18. Document "B" reads:- READ BY Wills Officer NICOTRA LETTER TO BE SENT Yes/No DRAFTED 26/8/91 TO BE TELEPHONED Yes/No CHECKED @? 26/8/91 BANK LETTER TYPED Aug 91/ A.H. BRANCH TYPED WILL certified by (initialed)

Marital Status M Occupation Retired Metal Polisher

Is Public Trustee as present holding a Will for your? YES

Is a Co-executor to be appointed with Public Trustee? NO

1. R/E above (J) 2. R/E 24 and 22 Rugby Ave Croydon Park (H) 3. R/E 26 Rugby " " " (J) 4. R/E Churchett Rd Houghton (H) 5. R/E 29 Payne St Hope Valley (H) 6. H/F/E (J) 7. CAR (H) 8. State A/C's (J) 9. Coop A/C (H) 10. National A/C (H) 11.

The Beneficiaries under the Will are: Anti Cancer Foundation 24 Brougham Pl of the Universities of Nth Adel South Australia

Asthma Foundation of 33 Pirie St SA Inc City

To be buried in the Hope Valley Cemetery and a suitably inscribed headstone to be erected and Peter Elberg F/Director 280 Grange Rd Flinders Park and Tillett SD Memorials Pty Ltd of 162 Est Tce City to be engaged.

Note (1) client advised any sickness he had has was skin cancer and was not under any medication as at my interview. (2) answered all questions correctly (3) in my opinion client is sui juris (4) extremely hurt by wife and his children - see TFM.

I hereby acknowledge that the abovewritten instructions have been given by me with my full knowledge, approval and understanding and that such instructions correctly state my

testamentary intentions. I further acknowledge that such instructions do not constitute a Will but that a Will shall be prepared in accordance with these instructions for subsequent execution."

19. The deceased signed these instructions on the bottom of page 2.

20. On page 3 at the top appear in handwriting "SF5a" and the following: "3. I DESIRE that my remains be interred in the Hope Valley Cemetery at Hope Valley and that Peter Elberg Funeral Director of 280 Grange Road Flinders Park be engaged to conduct my funeral and I FURTHER DESIRE that S.D. Tillett Memorials Pty Ltd of 162 West Tce Adelaide be engaged to carry out any monumental work and I DIRECT my trustee at the expense of my estate to cause a slab and a suitable inscribed headstone to be erected over my plot.

4. a pecuniary legacy of $50,000 each and the respective interest accrued thereon to such of my grandchildren as shall survive me and shall have attained or shall attain the age of - (21) years and S/P of the residue of my estate C/T equally between the Anti-Cancer Foundation of the Universities of South Australia of 24 Brougham Place North Adelaide and the Asthma Foundation of South Australia Incorporated of 33 Pirie Street Adelaide."

21. The date "26-8-91" is recorded under two sets of initials.

22. On page 4 of document "B" appears the following attachment "RE MY WILL The existence of the "Inheritance (Family Provision) Act 1972-1975" has been made known to me and I am now aware that

such Act contains the following provisions: "(1) Where - (a) a person has died domiciled in the State or owning real or personal property in the State: and (b) by reason of his testamentary dispositions or the operation of the laws of intestacy or both, a person entitled to claim the benefit of this Act is left without adequate provisions for his proper maintenance, education or advancement in life, the Court may in its discretion, upon application by or on behalf of a person so entitled, order that such provision as the Court thinks fit be made out of the estate of the deceased person for the maintenance, education or advancement of the person so entitled.

(2) Notice of an application under subsection (1) of this Section shall be served by the applicant on the administrator of the estate of the deceased person, and on such other persons as the Court may direct.

The following persons are, in respect of the estate of a deceased person, entitled to claim the benefit of this Act; (a) The spouse of the deceased person ("Spouse" in relation to a deceased person includes a person adjudged under the Family Relationship Act 1975 to have been a putative spouse of the deceased either on the date of his death, or at some

earlier date) (b) a person who has been divorced from the deceased person (c) a child of the deceased person ("child" in relation to a deceased person includes a person who is recognised as a child of that person by virtue of the Family Relationships Act 1975 and "parent" has a correlative meaning) (d) a child of a spouse of the deceased person being a child who was maintained wholly or party or who was legally entitled to be maintained wholly or partly by the deceased person immediately before his death (e) a child of a child of the deceased person (f) a parent of the deceased person who satisfied the Court that he cared for or contributed to the maintenance of the deceased person

The reasons why I wish to exclude from my will the following person(s) namely my son Francesco Alvaro and my daughters Ursulina Tarzia, Concetta Federico, Enza Alvaro and Julietta Alvaro are:

(2) they have tried to "kick me out", of my own house.

The above explanation is not to be included in my Will as the purpose thereof is to show what actuated me in deciding upon the disposition of my estate and I am fully aware that the aforesaid explanation and the signing of this form by me does not preclude any person from making a claim against my estate.

Dated this 26 day of 8 1991. X N. Alvaro" Signature

23. On page 5 there is an identical type written form headed "RE MY WILL" except the handwritten portion which reads:- (1) she has tried to rob me

24. The same signature appears at the bottom of page 5 under the same date as page 4.

25. On page 2 of document "B" referred to in the affidavit of RODNEY COLIN BROOK there is a separate sheet attached by adhesive which is in form the same as the bottom part of page 2 of the form, with the same printed details. Under the printed words "Disposition of Assets and other directions", there is the following handwriting in ink:- "AGAIN 17/9/91

(1) No funeral directions (2) All to g/chn equally (3) No power of Ate."

26. I shall discuss this attached sheet on page 2 of document "B" later when analysing the evidence of Mr Nicotra, presently the business development person for Public Trustee who took instructions from the deceased on 26 August and 17 September 1991 at the offices of the Public Trustee.

27. Document "C" referred to in paragraph 2(c) of the affidavit of RODNEY COLIN BROOK reads:- "C"

"THIS IS THE LAST WILL AND TESTAMENT of me NICOLA ALVARO of 35 Payne Street, Hope Valley, 5090 in the State of South Australia, metal Inspector.

1. I REVOKE all wills and testamentary dispositions heretofore made by me.

2. If my wife ROSA ALVARO survives me for a period of twenty eight clear days but not otherwise I GIVE DEVISE AND BEQUEATH the whole of my estate both real and personal including therein all property over which I may at my death have a general power of appointment or disposition by will unto my said wife for her own use and benefit absolutely and I appoint her to be Executrix and Trustee of this my will.

3. If my wife does not survive me for the period aforesaid then and in that event I DIRECT that the subsequent clauses of this my will shall take effect but otherwise that such

4. I APPOINT LUIGI PARGALITI of Marni Street, Pooraka 5095 in the said State to be the Executor and Trustee of this my will and I DECLARE that the expression "my Trustee" throughout this my will shall include (where the context so admits) the said LUIGI PARGALITI as the Trustee for the time being of this my will.

5. I GIVE DEVISE AND BEQUEATH the whole of my estate to my Trustee UPON TRUST to sell call in and convert into money such part or parts thereof as shall not consist of money and to get in the other parts thereof and out of the proceeds thereof arising from such sale calling in conversion and getting IN THE FIRST PLACE to pay all my just debts and funeral and testamentary expenses and IN THE SECOND PLACE to pay all estate succession and other duties payable in respect of any gifts devises or bequests under this my will or any codicil hereto TO THE INTENT that there shall be no subsequent adjustment as between any of the beneficiaries under this my will or any codicil hereto and IN THE THIRD PLACE to STAND POSSESSED of the balance then remaining UPON TRUST for such of my children as shall survive me and attain the age of twenty one years and if more than one in equal shares as tenants in common.

6. I DECLARE that if any child of mine shall predecease me or shall survive me and die before attaining a vested interest in my estate leaving a child or children who shall survive me such issue shall take and if more than one equally between them the share that his her or their parent would have taken had he or she survived me and lived to attain a vested interest in my estate.

7. I EMPOWER my Trustee in his absolute discretion to apply the whole or any part of the income and up to but not exceeding one moiety of the capital of the expectant contingent or vested share of any infant beneficiary taking under the trusts of this my will in or towards the maintenance education or advancement or otherwise for the benefit in life for such infant beneficiary and for the time being of such infant beneficiary being bound to see to the application thereof.

IN WITNESS whereof I have hereunto and to the preceding sheets of paper signed my name this 21st day of January One thousand nine hundred and eighty one.

SIGNED by the Testator the said NICOLA ALVARO as and for his last will and testament after same had been read over to him in the Italian Language by Laurie Carbone and he appeared perfectly to understand and approve same in the presence of us both being present at the same time who at his request and in his presence and in the presence of each other have hereunto and to the preceding sheets of paper subscribed our names as witnesses."

Sgd. L Carbone
Sgd N. (illegible) Solicitor Secretary Hectorville Hectorville"

28. Document "D" referred to in paragraph 2 (d) of the affidavit of RODNEY COLIN BROOK reads:- "D"

"THIS IS THE LAST WILL AND TESTAMENT of me NICOLA ALVARO of Payne Street Hope Valley in the State of South Australia Metal Polisher

1. I REVOKE all wills and testamentary dispositions heretofore made by me.

2. I APPOINT PUBLIC TRUSTEE of 49 Hindmarsh Square Adelaide in the said State (hereinafter called "my Trustee") to be Executor and Trustee of this my will AND I DECLARE that the expression "my Trustee" used by me in this my Will shall where the context so admits mean and include my Executor and Trustee hereby appointed or other the Trustee or Trustees for the time being of this my Will.

3. I GIVE DEVISE AND BEQUEATH all my real and personal estate of whatsoever kind and wheresoever situate unto my Trustee UPON TRUST to pay thereout my funeral and testamentary expenses and debts and the duties referred to in Paragraph 6 hereof and subject thereto I DIRECT that my Trustee shall stand possessed of the balance of my said real and personal estate UPON TRUST to pay the net annual income to arise therefrom to my wife ROSA ALVARO during her life until she shall remarry for her own use and benefit and subject thereto UPON TRUST for such of them my child or children as shall be living at my death and shall attain the age of twenty one years if more than one in equal shares absolutely and if there shall be only one such child the whole to be in trust for that one.

I DECLARE that my Trustee (in addition to all statutory and implied powers) shall have the following powers:- (a) at any time and from time to time in the discretion of my Trustee to sell at such price and upon such terms as my Trustee may think fit the whole or any portion of my estate; (b) to lease any real or personal property at such rent or rents and for such period of periods and upon such terms and conditions and in all aspects as my Trustee shall think fit; (c) to do all or any of the following acts and things viz:- (i) to fix apportion and determine the share in my estate to which any beneficiary or beneficiaries is or may be entitled or contingently entitled under this my Will or any Codicil hereto; (ii) to effect a partition or apportionment of my estate or any part or parts thereof in the condition or state of investment in which the same may be for the time being;

(iii) to set aside any part or parts of my estate as the share or contingent share of any beneficiary or beneficiaries; and (iv) to allot or appropriate as part of the share of any beneficiary any part or parts of my estate; with full

discretionary power to determine or assume for any of the aforesaid purposes the value of any and every part of my

estate AND I DECLARE that any decision or determination made by my Trustee under this clause shall be final and binding on all beneficiaries under this my Will; (d) at any time and from time to time to sell any portion of the share which shall be allocated to any infant beneficiary at such price and upon such terms as my Trustee may think fit AND I DIRECT that the proceeds of any such sale shall form part and parcel of the share to which the property sold may have been allotted.

5. I DECLARE that all moneys liable to be invested under this my Will may be invested by my Trustee in and upon any of the following forms of investment that is to say:- (a) in or upon any of the investments for the time being authorised by the laws of the Commonwealth of Australia or any State or States thereof for the investment of trust funds; (b) in the purchase or acquisition of shares in or bonds or debentures or stock of any company or companies in which I may be a shareholder or bondholder or debenture holder or stockholder at the time of my death or in the purchase or acquisition of shares in or bonds or debentures or stock of any other company limited by shares which at the time of purchase or acquisition of such shares or bonds or debentures or stock by my Trustee is carrying on business or its operations in the Commonwealth of Australia (whether or not it carries on its business or its operations elsewhere) and has during each of the three years immediately preceding such lastmentioned time paid a dividend on its paid up ordinary capital;

AND I DIRECT that my Trustee may from time to time vary alter and transpose investments.

6. I DIRECT that all estate probate legacy succession or other death duties which may become payable in respect of my estate or any part thereof or any devise legacy bequest or benefit contained in or conferred by this my Will or any Codicil hereto shall be paid out of and borne by my general estate in the same manner as debts are payable and to be borne and that there shall be no subsequent adjustment or apportionment thereof between any of the beneficiaries under this my Will or any Codicil hereto.

IN WITNESS whereof I have to this my last Will and Testament contained on this and the three preceding sheets of paper set my hand this 18 day of December One thousand nine hundred and sixty four.

SIGNED by the said NICOLA ALVARO as and for his last Will and Testament in the presence of us both present at the same time who at his request in N.Alvaro his presence and in the presence of each other have hereunto subscribed our names as witnesses:"

Sgd Ian Grieve D Piper Solicitor Clerk Adelaide Adelaide"

The Affidavit of Scripts of Rosa Alvaro (the defendant) reads: "1 No paper, parchment, writing or other document being our purporting to be or having the form of or effect of a will or codicil or other testamentary disposition of the abovenamed deceased, or being or purporting to be instructions for, or the draft of, any will, codicil or other testamentary disposition of the said deceased has at any time either before or since his death come into my hands, possession or is known to me, save and except:-

(a) A copy of the will of NICOLA ALVARO bearing date 17th September 1991, now in my possession, which is now shown to

me and exhibited hereto and marked with the letters "RA1"; (b) An original will of NICOLA ALVARO bearing date 27th January 1981, now in my possession, which is now shown to me and exhibited hereto and marked with the letters "RA2"; (c) An original undated document handwritten by NICOLA ALVARO, now in my possession, which is now shown to me and exhibited hereto and marked with the letters "RA3"; (d) An original undated typed document, now in my possession, which is now shown to me and exhibited hereto and marked with the letters "RA4";

2 I know the facts deposed to herein of my own knowledge to be true."

RA3 referred to in paragraph 1(c) above reads:- "26 Rugby Ave Croydon Park 1 $100000 for funeral and monument $50000 EACH for grandchildren when 21 Birthday 5 present and one coming plus the interest accumulate till then What left to Be in benefit to the ASMAH and CANCER foundation."

RA4 referred to in paragraph 1(9d) above reads:- "me nicola alvaro this is my last will and testament . ichange bec ause i thought the kids always listen to there mum but not true now isee enza and julie pushing mum around and i cant stand to see mum to cry all day and night for you julie and fighting in middle of city for you now i make up my mind to leave everything to mum to get out of her troubles because i cant stand to her sffer lleave everthig for mum to share to orsolina connie tony"

The plaintiff's case: In evidence the plaintiff tendered, by consent, the affidavit of Rodney Colin Brook, referred to above (Exhibit P1). The plaintiff further tendered the affidavit of Sandra Marie Williams, sworn on 17 April 1995. Mrs Williams was employed as a clerk by Public Trustee at the time the deceased made his will. Her duties included the witnessing the execution of wills. She produced and exhibited a copy of the last will and testament of the deceased dated 17 September 1991. She identified the handwriting at the bottom left hand corner of the will as her own and in the bottom right hand corner, the handwriting of Mr J D Nicotra, the officer of the Public Trustee, who took the instructions and who gave evidence for the plaintiff in these proceedings. She stated in her affidavit, that prior to the execution of the will, it was read to the deceased for him to confirm his instructions and approve it contents. The will was then handed to the testator for signing in the presence of herself and the other subscribing witness. Both the witnesses signed in the presence of the testator. This affidavit established the due execution of the will on that date, in accordance with the formalities prescribed by the Wills Act. Counsel for the defendant later indicated that he did not require Mrs Williams to be called to be cross-examined.

The plaintiff witnesses were Mr Nicotra, mentioned above, and secondly, Mr William Pinkerton, who gave evidence relating to certain mortgages taken out by the deceased in respect of some of the properties, and, thirdly, Mr Danny Mele, a bank officer of the State Bank, Modbury branch, relating to an overdraft arrangement made by the deceased and the defendant and finally, Dr Munro, who was the family's GP. I shall return to this evidence later, but first I should clear up some procedural matters that arose during the hearing.

Representation order made on 17 December 1993: At the commencement of the hearing, Mr Roder, of counsel for Mr Lionel Treloar, a solicitor, appointed to represent the interests of the grandchildren, drew my attention to the terms of the order made in these proceedings. By an order dated 17 December 1993, Mr Treloar was appointed "as the person to represent the interests of the grandchildren of the deceased in this action and that a copy of the documents filed in these proceedings be served upon him by the defendant's solicitors and that such service be deemed to be service upon the grandchildren". Service of the order was to be effected by 22 December 1993. After some discussion and reference to R 29.01 of the Rules of Court, and a short adjournment to enable the parties to consider the position, I was asked to discharge that order, which I did. Further, I made an order for Mr Treloar's costs up to and including the first day of the hearing of this action. Mr Roder then withdrew from the proceedings. On the application of Mr Haines, of counsel for the defendant, I was asked to make an order dispensing with the requirement for citation pursuant to s27 of the Administration and Probate Act 1919. As this application was not opposed by counsel for the Public Trustee, I made the order.

Later in the proceedings when Mrs Frederico, a daughter of the deceased, was called by the defendant to give evidence, I had cause to reconsider the order dispensing with citations. Section 27 of the Administration and Probate Act 1919 provides: "27(1) Where proceedings are taken under this Act for proving a will in solemn form ... or where in any contentious cause or matter under this Act, the validity of a will is disputed, except where the will affects only personal estate, the devisees, and other persons having or pretending interest in the real estate affected by the will, shall, unless the court otherwise directs, be cited to see proceedings or otherwise summoned, and, subject to the rules under this Act or under the Supreme Court Act 1935, may be permitted to become parties or intervene for their respective interests in such real estate, in like manner as the next of kin, or others having or pretending interest in personal estate affected by a will are cited or summoned."

Section 28 makes certain provision for persons interested in certain cases not to be cited and when not cited not to be affected by probate. Under sub-section (2)of s.28, the proviso states: "Provided that the probate decree, or order of the court shall not in any case affect any person in respect of his interest in real estate, unless such person has been cited or made party to the proceedings, or derives title under or through a person so cited or made party."

Having considered the matter further during an adjournment, I referred counsel to certain authorities, namely, In Re Kuhl Khul and Anor v Liebcheschel [1933] SAStRp 41; (1933) SASR 394, where Napier J, (as he then was), considered whether the court has a discretion to require the next of kin to be cited where a caveat is lodged or to dispense with such citation where no caveat is lodged. His Honour also discussed generally as to the binding effect of orders on parties in probate actions. At p397, His Honour said: "The provisions of secs. 27 and 28 of the Administration and Probate Act 1919 (Cf 61-63 of Court of Probate Act (1857)) may be summarised by saying that in proceedings for proof in solemn form, the persons having or pretending interest in any real estate that may be affected, shall, unless the

Court otherwise directs, be cited to see proceedings or otherwise summons, in the like manner as the next of kin, and may be permitted to become parties or intervene; provided that it is unnecessary to cite any such person where the Court is not satisfied that any real estate is in dispute, or, if the Court thinks fit, to proceed without citing them. But the probate decree or order is not to affect the interest in real estate of any person, who has not been cited, or made party to the proceedings, unless he derives title under or through a party or person cited." At p398, his Honour observed that the grant of probate is a judicial act: "It is in the nature of a judgment in rem, ie, while unrepealed it is conclusive against all the world. See Allen v Dundas (1789) 3 Term. Rep. 125. On the other hand, the decree is subject to a review at the suit of any person who can show, firstly, that he was ignorant of the proceedings; secondly, due diligence; and thirdly, that

justice requires the proceedings to be reopened (In Re Robinson, (1821) 3 Phill. Ecc. 511). The fact that a citation has been issued is almost immaterial for this purpose. The relevant considerations are (1) knowledge of the proceedings, and (2) opportunity to intervene. It follows that if the applicant has not been cited he is nevertheless bound by the result of the previous proceedings if - being entitled to intervene - he had knowledge of them and stood by (Newell v Weeks, (1814) 2 Phill. Ecc. 224)."

His Honour then went on to consider the joinder of parties and at p399 quoted from the second edition of Mortimer on Probate at p544 to the effect that: "It is a matter of the utmost importance that all parties who are entitled to be parties to the action should be bound by the decree. Each party will therefore, cite to see proceedings all persons not already parties to the action who have a contrary interest ... to that of the party citing. If he omits to do so he runs the risk of the suit being ineffectual to bind some necessary person."

His Honour expresses the opinion at the top of p402, that the solution depends upon the distinction between the different modes of proceeding in the prerogative court and refers to Coote's Practice at p439 (NB Coote's Practice of the Ecclesiastical Court (1847) see pp 442-460 and 439). As to the modern practice in the Probate Court, see In Re Emery, deceased; Emery v Emery (1923) PD 184 at 188 per the President, who there discusses the effect of entering a caveat and that once a caveat has been entered the person who wishes to prove the will has to warn the person who entered the caveat. And if such person, ie the caveator, intends to make any real objection, he enters an appearance. Then, if the litigation goes on, the person who wants to prove the will, issues a writ and serves it on the caveator. I would refer further to Mortimer on Probate (supra) at p514 where the learned author stresses the fact that: "When an action is instituted in the probate division, only the parties to the action, or those persons who have an opportunity of taking part in the contest, are bound by the decree therein. Both parties should, therefore, see to it that all persons whose interests are or may be adversely affected by the decree should have notice of the proceedings. This is effected by the issue of a citation against such persons to appear in the action, should they think it for their interest so to do, at any time during the dependence of the action."

Citation does not, however, make the persons cited parties to the action, ibid. But if they appear and take part or allow the action to be determined in their absence they are bound by the decree. Reference in support of this may be made to Kennaway v Kennaway (1876) 1 PD 148 at 149 in the judgment of the President, Sir J Hannen and In re Kuhl (supra) at 398.

In Elder's Trustee and Executor Co Ltd. v Walker (1977) 15 SASR 62 at 65, Bray CJ referred to In Re Kuhl, stating that it was held that where a caveat has been entered, an executor propounding a will need only make the caveator a defendant, though other interested parties who had no notice of the proceedings would not be bound by the result. In that case, Bray CJ was prepared to dispense with citation as he considered "it would be farcical to require the widow or the two sons who are beneficiaries to be cited".

Finally, In the Estate of Yeo, deceased; Hicks v Webb (1978) 17 SASR 545 at 546, Jacobs J dispensed with citation on one residuary beneficiary who had not been cited, notwithstanding the order made by a Master for citation of all the children of the testatrix, other than the defendant, because the interest of the non-cited beneficiary is to support the will and referred to Elder's Trustee and Executor Co Ltd v Walker (supra).

Rule 29.01 provides inter alia that in any proceedings concerning - "(a) the administration of the estate of a deceased person ... the court may appoint one or more persons to represent any person ... who may have a relevant interest or who may be affected by the proceedings ..."

In my judgment, a representation order under Rule 29.01 is not an order which falls within the mandatory provisions of s27(1) of the Administration and Probate Act, nor does it bind the persons who are represented by the person appointed under that rule so as to lead to a final determination of the matter between the parties to the contentious cause or matter under the Administration and Probate Act on the one hand, and the devisees and other persons having an interest in real estate affected by the will on the other hand - cf Re Hunter, deceased (1957) SASR 194 at 195-196 per Napier CJ and In the Estate of Martin, deceased (1958) SASR 365 at 379-381 per Piper AJ (as he then was), where the judges in those two cases discuss and explain the difference between an application under the Supreme Court Act and Rules being a proceeding inter partes and a application for advice and directions pursuant to s69 of the Administration and Probate Act. That application is not binding on absent parties and is primarily given for the protection of the trustees only, see In re Martin (supra) at 380 per Piper AJ.

Accordingly, I rescinded my order dispensing with the necessity for citations pursuant to s27 of the Administration and Probate Act. Citations were drawn up and served so that on the resumption of the hearing of this matter on the following morning, Mr Roder of counsel, once again appeared for Mr Treloar, who was appointed as the guardian ad item pursuant to the Rules of Court for the grandchildren of the deceased cited in these proceedings were was and are still all minors. Consequently, the final determination of this matter will be binding on not only the plaintiff and the defendant but the persons (grandchildren) cited and represented by their guardian ad litem.

The defendant's filed the following affidavit: "I, ROSA ALVARO of 35 Payne Street Hope Valley in the State of South Australia, Widow, MAKE OATH AND SAY AS FOLLOWS:-

1. That there is now depending in this Court a probate action entitled "South Australia In the Supreme Court No. 1905 of 1993 In the Estate of Nicola Alvaro deceased Between Public Trustee plaintiff and Rosa Alvaro defendant" wherein Public Trustee as plaintiff is proceeding to prove in solemn form of law an alleged last will bearing date the 17th day of September 1991 of Nicola Alvaro late of 35 Payne Street Hope Valley aforesaid Retired Metal Polisher deceased who died at Modbury in the said State on the 21st day of February 1993.

2. That I am the defendant in the said action and am proceeding by counterclaim to have the said alleged last will pronounced against and to prove in solemn form of law the alleged last will of the said deceased bearing date the 27th day of January 1981 or in the alternative a declaration that a certain document purporting to be a will executed without formality in or about the month of January 1993 revives the will executed on the 27th day of January 1981 pursuant to sections 25 and 12 of the Wills Act 1936.

3. That the beneficiaries under the said alleged will by the plaintiff are the following grandchildren of the deceased:- (a) Nicolas Tarzia born on the 12th day of September, 1985 (b) Lisa Grace Tarzia born on the 7th day of October, 1987 (c) Natalie Rose Tarzia born on the 13th day of July 1989 (d) Andrew Tarzia born on the 8th day of January 1993 (e) Anita Federico born on the 21st day of April 1985

(f) Stefanie Federico born on the 18th day of March 1987 (g) Domenic Federico born on the 27th day of December 1991.

That the interests of the said grandchildren in the last preceding paragraph named are adversely affected by the proceedings taken by me.

5. That I am informed and verily believe that on the 10th day of May, 1995, the Honourable Acting Justice Legoe ordered that Lionel Hammond Treloar a practitioner of this Court be appointed guardian ad item of the persons named in

paragraph 3 hereof for the purpose of the proceedings in the said action.

6. I know the facts deposed to herein of my own knowledge and belief.

The notice made by the Acting Deputy Registrar of Probates is as follows: "To DOMENIC FEDERICO of 38 Flinders Street Bulleen in the State of Victoria

WHEREAS it appears by the affidavit of ROSA ALVARO sworn on the tenth day of May, 1995 that there is now depending in Our Supreme Court of South Australia a probate action entitled "South Australia In the Supreme Court No. 1905 of 1993 In the Estate of Nicola Alvaro deceased Between Public Trustee plaintiff and Rosa Alvaro defendant" wherein the plaintiff is proceeding to prove in solemn form of law the alleged last will dated the 17th day of September 1991 of Nicola Alvaro late of 35 Payne Street Hope Valley in the State of South Australia Retired Metal Polisher deceased who died on the 21st day of February 1993 at Modbury in the said State and the defendant is proceeding by counterclaim to have the alleged last will pronounced against and to prove in solemn form of law an alleged will of the said deceased dated the 27th day of January 1981 or in the alternative a declaration that a certain document purporting to be a will

executed without formality in or about the month of January 1993 revives the will executed on the 27th day of January 1981 pursuant to sections 25 and 12 of the Wills Act 1936 AND WHEREAS it further appears from the said deceased and as such one of the residuary legatees under the alleged last will of the said deceased dated the 17th day of September 1991 and that your interest are adversely affected by the proceedings taken by the defendant AND WHEREAS it further appears by the said affidavit that you are an infant of the age of 3 years and upwards but under the age of 18 years NOW this is to give notice to you the said Domenic Federico to appear in the said action either personally or by your solicitor, should you think it for your interest so to do, at any time during the dependence of the said action and before final judgment shall be given therein. AND TAKE NOTICE that, in default of your so doing, our said Court will proceed to hear the said action and pronounce judgment therein, your absence notwithstanding.

The prima facie case: At the conclusion of the plaintiff's evidence, Mr Haines, of counsel for the defendant, submitted that the plaintiff must convince the court that it has made out a prima facie case. Reference was made to Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, in particular at 704-705, where Powell J set out the principles of law to be borne in mind in such a case as this, and in particular, principle number 5, where his Honour stated that the first step in establishing a prima facie case is proof that the will was duly executed. In my opinion, the plaintiff had, at the close of the plaintiff's case, proved due execution. I accepted this proposition but counsel for the defendant went on to submit that the cases establish that the court must be satisfied before turning to the next stage in the proceedings that the plaintiff had established a prima facie case on the evidence that the deceased had sufficient knowledge of and approved the will of 1991.

I ruled that there was a prima facie case, calling upon the defendant to answer.

Cleare and Forster v Cleare (1869) LR I PandD 655, it was held that the testator had knowledge and approved of the contents of the will. Part of the burden of proof is assumed by the person who propounds it. Consequently, the next of kin who oppose a will may cross-examine the witnesses produced in its support on that matter, as well as upon the capacity of the testator, or the execution of the will, without exposing themselves to costs, provided they give notice required by the rules. Lord Penzance said at pp657-658: "That the testator did know and approve of the contents of the alleged will is therefore part of the burden of proof assumed by everyone who propounds it as a will. This burden is satisfied, prima facie, in the case of a competent testator by proving that he executed it. But if those who oppose it succeed by a cross-examination of the witnesses, or otherwise, in meeting the prima facie case, the party propounding must satisfy the tribunal affirmatively that the testator did really know and approve of the contents of the will in question before it can be admitted to probate."

The cross-examination of the plaintiff's witnesses by the defendant's counsel had left me of the view that I should direct the defendant to answer the prima facie case. I did so in this case because on the pleadings there were a substantial number of factual issues which had not and could not be raised in cross-examination with the plaintiff's witnesses. Clearly, I had not, at the close of the plaintiff's case, heard anything of the background which led the deceased to exclude his wife and children from his testamentary dispositions in August and September 1991.

The defendant's evidence: The defence called a number of witnesses who may be grouped. First, the family witnesses: the defendant and widow, Mrs Alvaro; the deceased's only son Mr Tony Alvaro; and the deceased's four daughters, Orsolina Tarzia, Maria Conchetta Frederico (Connie), Vincenza Messina (Enza) and Julie Alvaro, the deceased's two sons-in-law, Emidio Tarzia and Peter Frederico also gave evidence. Claude Messina, another son-in-law who married Enza shortly before the deceased's death did not give evidence but nothing turns on that. The only other family member to give evidence was Mr Martini, a brother-in-law of the deceased, who went to the house after the deceased's death and discovered one of the documents referred to in the affidavit of scripts. Secondly, evidence was given by a neighbour and tenant of the deceased, Mrs Patiniott, who lives at 10 Lagonik Drive, Hope Valley, a property registered in the joint names of the deceased and the defendant in these proceedings. Thirdly, the deceased's accountant, a Mr Bowman, was called by the defendant. Fourthly and finally, Professor Goldney, an experienced clinical psychiatrist, gave evidence expressing expert opinion views about the deceased's state of mind during the latter years of his life.

During the course of evidence given by the deceased's son, Mr Tony Alvaro, a tape recording of a conversation, which Tony had recorded without the knowledge of his late father some time early in January of 1992, was produced and tendered without objection from counsel for the plaintiff.

Subsequently, when Mr Roder of counsel, appeared for the guardian ad litem of the grandchildren, the question of the admissibility of this tape recording and the transcript with translations of those parts of the transcript which were spoken in the Calabrian dialect of the Italian, language was raised.

I turn then to deal with the admissibility of this tape recording without at this stage commenting on the weight to be attached to that evidence.

The Admissibility of Tape Recordings in Civil Proceedings: A tape recorder is by s3 of the Listening Devices Act 1972 a "listening device". The definition given in that section reads:- "... means any electronic or mechanical instrument ... capable of being used to overhear, record, ... or listen to a private conversation or words spoken to or by any person in private conversation ..."

The exception in the definition does not apply here. By s4 of the Act: "Except as is provided in this Act, a person shall not intentionally use any listening device to overhear, record ... or listen to any private conversation, whether or not he is a party thereto, without the consent, express or implied, of the parties to that conversation."

For a breach of this prohibition, a penalty of a fine or imprisonment is specified in the section. S5 prohibits the knowing communication or publication of any information or material derived from the use of a listening device in contravention of s4 of the Act. A similar penalty is specified by a breach of s5.

S6 specifies certain lawful uses of a listening device, inter alia, by members of the police force while acting in the performance of a duty. Any knowing communication or publication of information or material derived from the use of such listening device must likewise be in the course of that duty.

S7 is important in relation to the facts of this case. "7(i) Section 4 of this Act does not apply to or in relation

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."

By ss(2) of s7, any publication or communication of information derived from using such a listening device under ss(1) must likewise be restricted to the course of the duty, either in the public interest or for the protection of the person communicating or publishing such information in his or her lawful interests.

The other sections of the Act are not relevant for the purpose of the question arising in these proceedings. Substantial amendments were made to the Act in 1989 whereby the penalties were increased, and in particular the use of listening devices by the police force was substantially altered by the repeal of s6. A system whereby a warrant authorising the use of listening devices by the police force was substituted. This led to minor consequential amendments to s7, but those are not relevant to these proceedings either.

The question that arises in this case is whether the listening device was used by Tony Alvaro in the course of a duty that he had "for the protection of the lawful interests of" Tony Alvaro. This question was argued in a different context in T v The Medical Board of South Australia (1992) 58 SASR 382 where, at page 399-400, Matheson J dealt with an argument that had been put to the Full Court in that case that the recorded telephone conversation by one of the parties to the conversation was within the protection afforded by s7(1)(b). His Honour said that on the facts of that case: "Mrs H was either seeking to compromise Dr T by telling him indecent jokes and suggesting an assignation, or trying thereby to woo him. I am not prepared to hold that the tape-recorder was used by Mrs H 'in the public interest' or 'for the protection of the lawful interests' of Mrs H."

His Honour concluded that the recording was unlawful and that s7 gave no protection to the person who made the recording and sought to use it at the hearing. Debelle J agreed with the orders proposed by Matheson J in that case at page 423. Olsson J at page 421 also rejected the argument that the recording in that case came within the protection of s7. His Honour, Olsson J, said: "There was no basis put forward on the hearing before the

Tribunal which could remotely bring the circumstances within the factual parameters of s7. The action of the complainant

being unlawful, then it became incumbent upon the Tribunal to give careful consideration to the question as to whether or not a discretion should be exercised to exclude the material unlawfully obtained. The proceedings were, essentially, of a criminal nature, both as to the inherent processes involved and their ultimate potential outcome."

Having considered some of the cases on unlawful obtaining of evidence and the principles to be applied in the criminal jurisdiction, His Honour held that it would be a travesty to suggest that it would be a proper exercise of discretion to admit the material in question (page 422).

The present case is very different from the decision referred to above. The evidence discloses that Tony Alvaro was concerned to confront his father with allegations that he had made about the alleged sexual misconduct of his mother with one of his brothers-in-law. This accusation was clearly disruptive to the family unity and to the family loyalties. Tony Alvaro was the only son. The evidence disclosed that the family background, particularly the background of the parents and their upbringing, was one in which such accusations were very important in the maintenance of family relationships. I am satisfied that in the whole of the circumstances Tony Alvaro operated the listening device, without his father's knowledge on the occasion when he recorded the conversation transcribed in exhibit D1, "for the protection of the lawful interests" of himself (s7(1)(b) of the Act). It was Tony to whom the deceased made the first allegations relating to the defendant's alleged misconduct with her son-in-law, and it was Tony who was attempting to restore some family peace and harmony by clearing up misconceptions or unjustified allegations against his mother.

In my opinion, the publication of the material obtained by the use of the listening device on that occasion was a publication which fell within the provisions of s7(1) and (2). In my opinion, it was not an unlawful communication or publication of this information by leading the fact of this recording in evidence in these proceedings. It was clearly a relevant issue on the pleadings before this Court.

Furthermore, it was relevant material for the consideration of the expert psychiatric evidence available to the parties at the time of the hearing. I do not understand, nor was it suggested by counsel, that I have any discretion in the matter. I ruled that the tape recording and the publication of the transcript of the material contained in that tape recording is admissible in these proceedings.

I turn now to review the evidence of first the plaintiff and then the defendant and finally the plaintiff's evidence in defence to the Counterclaim.

The plaintiff's evidence to support the will signed on 17 September 1991: The evidence submitted by the Public Trustee was within a comparatively short compass. The plaintiff relied heavily on the evidence of a Mr Nicotra, an experienced officer in the employment of the Public Trustee, who has been preparing an executing wills for some 15 years. Mr Nicotra explained the practice and procedure adopted in the Public Trustee's office for the preparation and execution of wills, in particular the form of questionnaire, which is some 4 pages. In this matter exhibit "B" to the affidavit of Rodney Colin Brook, sworn on 24th March 1995, is the exhibit P1 in these proceedings. The questionnaire form has a box of specific items to be answered, in some cases, yes or no, with spaces for dates and initialled certification. Below the box at the top of page 1, are a number of printed questions, including surname, christian names, address, etc. At the bottom of page 1 there is space for the assets presently comprised in the deceased's estate. On page 2 there is a space with lined columns to specify the beneficiaries and in the second half of page 2 there is a space for disposition of assets and other directions. At the bottom of page 2 there is printed acknowledgment to be signed by the person giving the instructions to Public Trustee, which reads:- "I hereby acknowledge that the abovewritten instructions have been given by me with my full knowledge, approval and understanding and that such instructions correctly state my testamentary intentions. I further acknowledge that such instructions do not constitute a Will but that a Will shall be prepared in accordance with these instructions for subsequent execution."

Mr Nikotra speaks Italian. Apparently he often interviews persons of European origin who come to the Public Trustee's office. Invariably, Italians are interviewed by him. Mr Nikotra speaks dialect. His dialect is Abruzzi. Mr Alvaro comes from the very southern part of Italy and his dialect is Calabrese. There was a considerable amount of debate throughout this case and in particular in the cross-examination of Mr Nikotra as to whether a person like Mr Alvaro, the deceased, who spoke in Calabrese could understand an Italian speaking in another dialect or in what is called in some parts of the evidence, official Italian.

Mr Nikotra gave evidence that he interviewed Mr Nicola Alvaro, the deceased, on 26th August 1991. The interview lasted about 60 minutes. Mr Nikotra filled out the questionnaire form referred to above, giving the details of Mr Alvaro's name, address, postcode, telephone number, marital status and other details recorded on the document. He then proceeded to list Mr Alvaro's assets, which he did in abbreviated form referring to real estate as "R/E" and household furniture and effects as "H/F/E" and bank accounts as "State, Co-op or National". He listed five items of real estate, item 2 including both 24 and 22 Rugby Avenue, Croydon Park. In relation to all of these assets he noted whether they were jointly held or only in the name of the deceased by a bracket after the asset. In the case of joint tenancy "(J)" and in the case of property held only in the name of the deceased "(H)".

The deceased instructed Mr Nikotra that he wanted to leave his entire estate to two named charities. Mr Nikotra listed these on the top of page 2 under the heading beneficiaries. The charities were Anti-Cancer Foundation of the Universities of South Australia, 24 Brougham Place, North Adelaide and, secondly, Asthma Foundation of SA Inc., 33 Pirie Street, Adelaide.

He took specific details of the disposition of assets and other directions as follows:- "1. To be buried in the Hope Valley cemetery, and a suitably inscribed headstone to be erected and Peter Elberg, F/Director, 280 Grange Road Flinders Park and Tillett SD Memorials Pty Ltd 162 Est Tce City to be engaged.

Below this Mr Nikotra noted that the client had advised that he had had skin cancer and was not under any medication as at the interview. He further noted "(2) answered all questions correctly. (3)In my opinion client is sui juris (4) Extremely hurt by wife and his children/see TFM." He got the deceased, Mr Alvaro, to sign at the bottom of page 2, underneath the acknowledgment set out above.

Mr Nikotra noted further details relating to the funeral arrangements on page 3 underneath a heading SF5 a. Further directions appeared on page 4 to the effect that the pecuniary legacy of $50,000 to each and the respective interest accrued to such of his grandchildren as shall survive him and shall have attained the age of 21 years. The residue to be equally divided between the two charities mentioned above.

Mr Nikotra said that the deceased mentioned problems that he had with his wife and children. Mr Nikotra said that the deceased was led to leave his estate to charities because of the problems that he had with his wife and children. Mr Nikotra made the remark that the grandchildren had nothing to do with the hurt that he suffered from his wife and children and that the deceased should give consideration to the grandchildren. At some stage during the interview, as I understand Mr Nikotra's evidence, the deceased agreed to leave the $50,000 to each of the grandchildren, with the residue to the charities. Although initially his instructions were that the whole estate was to go to the two charities, as mentioned on the top of page 2 of the memorandum.

The reasons the deceased gave for not leaving anything to his wife and children were recorded on a separate sheet which has been attached to exhibit 29B and there is one sheet relating to his wife and another sheet separately relating to his children. Both sheets which are in a typewritten form with a space about two thirds of the way down the page for reasons to be inserted as to why the person who signed that sheet, either excludes persons who may have an interest under the Inheritance (Family Provision) Act or why a smaller benefit is to be given to those persons. The main body of the separate sheet includes a quotation from the Inheritance (Family Provision) Act relating to the powers of the Court upon application to order provision out of the estate of a deceased person for the maintenance, education or advancement of the applicant so entitled. At the top of the document it is stated that the existence of the Act has been made known to the person who signs the document and that that person is now aware that such Act contains the provision which is set out on that sheet. Mr Nikotra recorded the reasons given to him by the deceased as to why he wished to exclude from his will, firstly his wife. The deceased said "she's tried to rob me and two, she does not care or respect me." In the case of his children, Mr Nikotra has recorded that the deceased said he wished to exclude from his will "my son Francesco Alvaro and my daughters Orsolina Tarzia, Concetta Frederico, Enza Alvaro and Julietta Alvaro, as one they do not care or respect me, and two, they have tried to "kick me out" of my own house." Both of these separate sheets are dated 26th August 1991.

Mr Nikotra said that the deceased presented himself well, and answered all questions appropriately. But he did describe the deceased as "very very hurt" right from the beginning of the interview. He described the deceased as wanting to focus on that hurt during the whole interview.

In relation to the joint properties, Mr Nikotra said that he suggested to the deceased that he see a solicitor and "perhaps having the joint tenancy and his assets placed as tenants in common".

Mr Nikotra also asked the deceased about his health which he recorded as mentioned above on page 2 of the form. Mr Nikotra added in his evidence in chief the following: "I was looking at this and considering what he had told me. Considering the assets that he held and the gravity of his decision, I verily believed that the matter would in fact present itself in terms of litigation." The deceased told Mr Nikotra that there was to be "no communication" with him at all. This was duly noted by Mr Nikotra with the letters NB in red ink in the box at the top of page 1 and a large red ink asterisk with the words alongside the asterisk "no communication at all", which was heavily underlined.

He arranged with the deceased that the deceased would return to sign the will on the 2nd September. The deceased did not return on that day. He did come in on the 17th September when he had no appointment. On the 17th September he changed his instructions, saying to Mr Nikotra that he wished to leave his entire estate to his grandchildren. Mr Nikotra maintained that a draft will had been prepared after the 26th August visit but he made a fresh will and had it typed immediately and checked. The deceased executed that will and it was witnessed in the Public Trustee's office as mentioned above in the affidavit of Sandra Marie Williams, sworn on 17th April 1995.

In cross-examination, Mr Nikotra became somewhat defensive when pressed about details of the interviews and the changes that were made when the deceased returned on 17th September. Often Mr Nikotra answered questions by stating "I would have known" and words to that affect. Frequent reference was made to his previous practice over many years in interviewing persons for the purpose of making a will. Mr Nikotra did not consider it "odd" that the deceased alleged his wife had tried to rob him. He could not remember how that issue arose. He thought the allegation of "rob" was something to do with real estate or with the transfer of property. Eventually he stated "I can't remember any more than what I wrote down there." When asked whether he read out parts of the form "re my will" in Italian, he said "It wouldn't have been an exact translation." In examination in chief, when he was asked whether he had read the typewritten part of the document "re my will" to the deceased, Mr Nikotra said "I would not have read the document in its entirety. I would have advised Mr Alvaro that there were certain classes under the act who were able to bring an action against his estate in his particular circumstances involved his wife and his children". He also said that "apart from telling the deceased that he would have said that these particular forms "re my will" would not be included in his will and they would only surface should the matter end up at the point that we are at today."

Mr Nikotra did not consider there was anything that required Mr Alvaro to see a doctor. When asked in cross-examination how Mr Nikotra assessed the capacity of a person to make a will, he answered that "the answering of this particular sheet correctly, - sometimes you don't even get to that particular stage because someone will tell you that they have danced with the fairies and all sorts of things, so you stop there before you get any further." He added the deportment and the way a person looks at you and what they say, how the conduct themselves "the overall issue, and where I'm not sure, I get them to bring in a doctor's certificate."

Mr Nikotra was asked a number of questions about what had happened to the draft will that he prepared after the interview on 26th August 1991. He made a search for a copy of the draft will but was unable to produce it on the following day. He thought it had been destroyed. He was also asked questions about why he had not included the detailed funeral arrangements which were on the questionnaire form "B" attached to the affidavit of Mr Brook in the will that he prepared on 17th September 1991. Mr Nikotra said that the deceased was to come in and give him further instructions on that matter. The deceased never returned to the Public Trustee's office. There was also a change in relation to the age at which the grandchildren should take, namely 21 years specified in the questionnaire form and that was reduced to 18 years in the document that the deceased signed on 17th September 1991, which is the will the plaintiff seeks to propound.

I did not find Mr Nikotra a very satisfactory witness. In my view, his recollection of this interview was largely taken from his own notes. When pressed for details his recollection faded. His assessment of the deceased was necessarily brief during the one hour interview on 26th August 1991 and even briefer on the 17th September 1991 when the deceased came in without an appointment. However, his evidence was sufficient to establish a prima facie case that the deceased had knowledge and had given approval to the document of 17th September 1991.

Two witnesses called by the plaintiff, namely a Mr Mele, who was an officer of the State Bank employed at the Modbury Branch in January 1991. His evidence was confined to his certification on a Memorandum of Mortgage dated the 16th August 1991 signed by the deceased, Mr N Alvaro on that date at Modbury, when Mr Mele verified the deceased's signature and signed the certificate on the last page of exhibit P4. He also referred to a letter from the Bank to Mr and Mrs Alvaro dated 2nd July 1991, exhibit P7. Mr Mele said that he had explained the terms of this loan to Mr Alvaro in English. He described from his recollection Mr Alvaro as speaking "English but every so often he threw in a few Italian words." He couldn't remember Mr Alvaro's exact words but he said in effect "I've done this sort of transaction before". He also recorded an occasion when he heard Mr and Mrs Alvaro arguing between themselves in Italian. He recalled that after leaving the banking chambers Mrs Alvaro had come back by herself and specifically asked him not to tell Mr Alvaro how much money she had in her bank account at the Modbury branch. Mr Mele assured her that that was part of banking practice.

Mr Pinkerton is the Manager of a real estate company. He had had dealings over the years with Mr Nicola Alvaro. From his file, he referred to a mortgage which had been taken out over a property purchased by Mr and Mrs Alvaro in 1979. In giving more details, he extracted from his file a mortgage dated 26th March 1980. He says that as he understood it, both Mr and Mrs Alvaro understood English. He was not sure whether they understood the written word but they certainly understood English to the best of his knowledge. The 1980 mortgage is exhibit P3. Mr Pinkerton gave some details of the repayment on this mortgage.

Mr Pinkerton saw the deceased again on 11th June 1991. He believes that the deceased had purchased a property and was seeking to borrow some money to assist with the purchase. Mr Pinkerton gave details of the arrangement about this mortgage as security for a loan in the sum of $22,900. He said during these negotiations he had no difficulty in communicating with Mr Alvaro nor with his hearing. Mr Pinkerton does not speak Italian and communicated with the deceased in English. Mr Pinkerton spoke to the deceased about interest rates between the years 1980 and the 1991 mortgage. He also received calls from Mrs Alvaro on a number of occasions. As far as he could recall, Mrs Alvaro was concerned as to what happened to the money and who had it been paid to and generally the arrangements about the mortgage. Mr Pinkerton said because they were dealing with Mr Alvaro he wasn't able to shed any light on it and referred her to Mr Alvaro. He said that the funds had been paid to Mr Alvaro. When asked whether Mr Alvaro appeared to have changed between 1979 and 1991, Mr Pinkerton said he seemed to be exactly the same. He considered Mr Alvaro to be careful and asked a number of questions as in dealing with the loan, he had asked about interest rates and the terms and so on.

The plaintiff's last witness was Dr Munro who was the general practitioner for the Alvaro family in the course of his general practice at Campbelltown. He has been practising at Campbelltown since 1964. His notes relating to the Alvaro family go back to January of 1984. Dr Munro gave detailed evidence of his attendances with Mr Alvaro over the years, right up until the date of death. In summary, as stated in Dr Munro's report of 4th February 1994 (exhibit P8) "He had a history of asthma, bilateral high frequency neurosensory hearing loss and tinnitus. He had had retinal horseshoe tears in his retina in 1991 and a previous retinal tear in his right eye in 1988. In December 1990 he was diagnosed as having an impaired glucose tolerance test; ie a pre-diabetic state."

Dr Munro also referred to the period from January 1991 until November 1991 when he said Mr Alvaro was seen on many occasions. This was in relation to his pre-heightened diabetic state. Dr Munro instructed him on the use of a "low carbohydrate diet." He also referred to an occasion on 8th January 1991 "when I had a long discussion with him regarding family strife, during which he agreed to see a psychiatrist at least once, although reluctantly." He was also seen that year in February 1991 for pruritus ani, which is an itchy complaint around the anal area and with chronic pruritus or itchiness all over his body. Dr Munro added "it was thought that stress may have played some part in producing this". He was referred to a ear nose and throat surgeon, as he had some troubles with breathing through his nose. From September to November 1991 he had nasal surgery to alleviate the symptoms. He noted that on 29th July 1991 he had further itchy problems which were persisting with comment that "stress was a problem at that stage". On 14th August 1991 he complained he was tired and unable to sleep well and having abdominal pains which lasted only a few minutes. General examination revealed no abnormality. He had an endoscopy in 1990 but the endoscopy at that time was normal. Dr Munro prescribed both Panamax and Murelax. Murelax is a mild tranquiliser. On 5th September 1991 he referred Mr Alvaro to Dr Beaumont regarding his nasal blockages and checked him generally with regard to his diabetic state. On 23rd September 1991 Dr Munro saw him with complaints of irritations in his eyes after he placed some insulation in the ceiling of the house. On 13th November 1991 he complained of a probable viral infection and he was checked again for his diabetic state. When the blood sugar level was checked two days later it was quite normal.

During the period of January to November 1991 Mr Alvaro was taking intermittent medication including antibiotics, mild tranquillisers (Murelax 15mg) and anti-inflammatory agents (Naprosyn), an occasional analgesic such as Panadeine Forte. In July 1992 Dr Munro commenced him on Tolbutamide 0.15mg twice a day. This was to control his diabetic state. He was already on a diabetic diet.

Dr Munro did not consider that any of these medications would have an adverse affect on his mental capacity. He believed he was only taking a small dose of Murelax at night. His records only showed receiving Murelax on two occasions from March through to the end of June 1992.

Dr Munro did not believe that, as at 17th September 1991, there was any incapacity to comprehend the nature of what he was doing and its affects. Further, he thought Mr Alvaro would be well aware of the nature of the assets that he had at the time. He did not notice much fluctuation in his mental capacity. However, he added in his report of February 1994 that he was aware that Mr Alvaro's attitudes were "a little strange at times". He also learned from other family members there was family friction. There was ongoing stress within the family and he understood tht Mr Alvaro's opinions and attitudes were at variance with the wider family opinion. Nevertheless, Dr Munro stated in his report "I would not classify him as not knowing what he was doing. There may have even been an element of vindictiveness in his actions. I cannot, however, support this from my dealings with Nicola Alvaro and the above are impressions I gained from dealings with the whole family." Although he thought Mr Alvaro had the required capacity to make a will, he added that he was not aware of "his motives for making his will in the way he did at that time."

In his evidence, Dr Munro added some further observations, including the following:- On 17th June 1989, when the deceased was on Serepax, he noticed that Mr Alvaro was very up tight and could not relax at night.

In the period from December 1989 to December 1990 there were about 16 occasions when he had skin cancer on his face, throat infection and pain on the right side. The probable diabetic condition was first detected on 24th December 1990. On the 24th December 1990 he referred to a stress related condition when he referred Mr Alvaro to a skin specialist, Dr Neil Burry. At that time he further noticed that there were many arguments, particularly with the three children at home, as well as multiple physical complaints.

On 23rd December 1990 he gave him a mild sedative to help him sleep at night. On 4th January 1991 there was a follow up for glucose tolerance.

On 8th January 1991 was the occasion referred to above when he had a long discussion with Mr Alvaro about family strife. Dr Munro gave more details of the discussion on this occasion. On the following day, 9th January 1991, he saw Mrs Alvaro.

Dr Munro gave further details relating to the particular visits during 1991 which are referred to in general terms in his report above.

On 6th January 1992 he again saw Mr Alvaro who was complaining of insomnia and headaches. He told Dr Munro that his wife had attempted to commit suicide. There was a discussion relating to his wife who he said screamed at him. He also complained to Dr Munro that his wife accuses him and that she has poisoned him.

On 8th January 1992 Dr Munro saw Mrs Alvaro who he described as in a very distressed condition. Dr Munro had her on anti-depressive tablets.

During the period from late February 1992 to December 1992 Dr Munro saw Mr Alvaro on 18 occasions, some of these were for physical injuries, but on the 24th April 1992 he observed that Mr Alvaro was still up tight. On 20th March 1992 he had prescribed Uralax for insomnia.

On 1st May 1992 he had a long consultation with Mrs Alvaro relating to planning problems and Julia's departure. Mr Alvaro had discussions about his wife and daughter leaving home. However, Dr Munro thought that Mrs Alvaro was more intense than her husband.

In cross-examination, Dr Munro agreed that the main period of family discord observed by him as recorded in his notes was during the period from about 1990 until April 1992. There was a lot of disharmony during that period. He agreed that there was substantial complaints made by Mr Alvaro about his wife during that same period as compared to earlier times and the period from April 1992 until his death in 1993. Dr Munro agreed that Mr Alvaro was also making many complaints about his children during that same period. He did not, however, recollect that Tony was the main person reporting to him about the family discord. He did agree that Tony was very concerned to speak to him (Dr Munro). He certainly agreed that they were a caring family.

Dr Munro was asked in detail about the axe incident in January 1991 but he could not recall any reference to that, although he agreed that he saw the deceased on 8th January and recommended him to see a psychiatrist. Dr Munro said that he recommended that the deceased see a psychiatrist to try and "resolve differences between the deceased and the defendant rather than as a psychiatric problem". The more serious incident which took place in July of 1991 relating to a gun and an axe was not apparently appreciated by Dr Munro as a real problem. He did not insist that the deceased attend a psychiatrist. He said he could not make him go. Dr Munro had no recollection about the gun and axe incident. When the deceased told him that the defendant was poisoning him, Dr Munro apparently disbelieved this and did not see that allegation as sounding any warning bells. Dr Munro did recollect that there were serious incidents involving violence during the period in the first six months of 1991. Indeed there was a recollection that a gun had been taken from Mr Alvaro. That was subsequent to the recommendation that Mr Alvaro see Dr DePasquale. Although he had a report from Mrs Alvaro and some of the children about the gun incident, he could not recollect whether he had spoken to Mr Alvaro about it. He could not recall what response Mr Alvaro had made to these allegations. He did remember discussing Mrs Alvaro's safety with her. He was not sure whether he advised her to seek police advice or legal advice. He was then asked:- "Q. Now that you've had time to think of that relationship between the source of complaints and the denials, does that now make you wonder about the deceased's mental attitudes?

A number of other serious incidents in relation to the family discord were put to Dr Munro, most of which he could not recall and had no notes of those incidents. He considered that it was fair to say that he really directed his attention to the salvation of the family rather than looking at Mr Alvaro individually as far as his problems were concerned. Certainly Mr Alvaro was hard to penetrate. He was then asked with the benefit of hindsight and the evidence that he had given and the matters that have been put to him, whether he had any concern about the mental capacity of Mr Alvaro, to which he answered "Yes, I am concerned about his mental state, yes, but perhaps I have missed something here that I should have picked up on."

These concessions in cross-examination are relevant and important when considering the evidence of the two psychiatrists who gave evidence much later.

THE EVIDENCE FOR THE DEFENCE 105. The defendant called a large number of witnesses. The defence evidence is lengthy. However, I have been able to condense the defence case because (a) the stories given by the defendant's family are basically consistent and (b) not all members of the family have been present at the same time to witness the same incident and (c) consequently, I have been able to put together a basic chronology of events which is consistent with all the evidence.

106. From this evidence I am able to summarise the following background which is not disputed. 1. The deceased, Nicola Alvaro, was born in Isnopoli, in the calabria of southern Italy on 15th November, 1927. He died in South Australia on 21st February 1993, aged 65 years. He migrated to Australia in 1952, aged 25 years.

2. The defendant, Rosa Alvaro, was also born in Isnopoli on 17th February
3. She is now aged 54 years.

3. The deceased and the defendant were married by proxy on 10th September 1962 and they co-habited for 30 years until the deceased died in 1993.

5. Orsolina born on 30th August 1963 married Emidio Tarzia in 1982.

6. Maria Concetta (Connie) born on 26th September 1964 married to Peter Frederico.

7. Francesco Antonio (Tony) the only son who was born 5th April 1966 and is unmarried.

8. Vincenza (Enza) Messina born on 16th February 1971 who married about 6 months before the deceased died.

9. Juilietta (Julie) born on 4th July 1974 who is unmarried.

10. Orsolina has four children, Nicholas who was aged 7 in February 1993 when the deceased died, Lisa who was aged 5 at that time, Natalia who was aged 3 and Andrew who was then aged 5 weeks.

11. Connie has three children; Anita who is aged 7 at the date of the deceased's death, Stephanie who was aged 5 and Dominic who was 7 weeks at that time.

107. The family owned the following properties: The deceased purchased the properties at 25/29 Payne Street, Hope Valley which, after their marriage, remained their matrimonial home for some 15 years. Rosa Alvaro emigrated to Australia in 1962. After Orsolina and Connie were born the deceased executed a will with the Public Trustee on 18th December 1964 which is referred to in the affidavit of scripts set out above. The property at 24 Rugby Street, Croydon was purchased after Tony was born. Both of these properties remained in the name of the deceased at all relevant times. On the 19th April 1974 the property at 33 Payne Street, Hope Valley was purchased in the joint names of the deceased and his wife. A mortgage was registered over the properties at 24/29 Payne Street, Hope Valley in January of 1977. In March of 1977 the property at 10 Lagonik Drive, Hope Valley was purchased in the joint names of the deceased and his wife. The land at Churchett Street, Houghton was purchased later that year in the name of the deceased only. The other properties were purchased in subsequent years as shown in the schedule above. The property at 31 Payne Street, Hope Valley was purchased in the name of the deceased, the defendant and their only son, Tony.

108. The deceased was a hard worker throughout his life. Until he retired in about 1983 he was employed at General Motors Holden (GMH). The deceased saved up money for the purchase of real estate which brought in a return from rentals, which in turn was reinvested in further real estate. In the collection of these rentals he was assisted by his wife. It appears that the deceased always kept control of financial matters.

109. The evidence discloses that the deceased was a traditional Italian patriarch. He worked hard, saved money and expected the same of the defendant and his family. He gave his children a good education. He clearly loved his children but did not manifest physical affection towards them to any great degree. Although the deceased may have physically assaulted his wife upon occasions prior to about 1990, this was unknown to the children. The children described in their evidence their family life prior to 1990 as relatively harmonious. As well as working at GMH, the deceased worked on the "farms" at 25/29 Payne Street and on the land at Houghton on weekends and after work. The defendant raised her five children. She discharged all home duties and at one stage, in about 1969, she operated a delicatessen business for 5 years. The deceased retired from GMH in September of 1983.

110. The children gave various descriptions of the relationship between their parents, namely that they loved each other but they had arguments similar to normal disagreements. Tony said, that after his father's retirement in 1983 the relationship between his father and mother was quite good. He had quite a good relationship with his father who he helped at Houghton on the land. He too stated that there were arguments prior to 1990 but they were more frequent thereafter. The defendant said that her husband ruled the house. She showed him respect during marriage. She did the housework and cooked for him. Peter Frederico, Connie's husband, described the deceased as a good man who was proud of his family and said how hard Mrs Alvaro worked in the deli. He thought that the deceased's children were his pride and joy. Mrs Patiniott, a neighbour of the deceased and the defendant, described the deceased as a good man but then he changed "he was not the same man I could talk to."

PERIOD FROM ABOUT 1989 OR 1990 THROUGH TO APRIL 1992 111. The whole family, including the two eldest girl's husbands, and Mrs Patiniott and Mr Bowman, the deceased's accountant, noted changes in the deceased's behaviour in 1990 or 1991. They were able to identify aspects of that particular behaviour but significant events which play an important part in the determination of these proceedings. Those events which appear to be variously described but with a reasonable amount of consistency in the evidence are:- (a) The incident when the deceased threatened to decapitate his wife (known as the "axe incident") and the deceased was subsequently taken to Woodleigh House on 7th January 1991; (b) The purchase of 26 Rugby Avenue, Croydon in about July of 1991 (known as the "26 Rugby Avenue incident"); (c) The gun and axe incident at 35 Payne Street, Hope Valley (that is the matrimonial home at that time) in July 1991 (known as "gun and axe incident"); (d) Christmas Day, 1991; (e) Incident when deceased confronted with allegations relating to Emidio (known as "Mid") in shed (known as the "shed incident"); (f) Julie's departure from home in March of 1992;

112. All the witnesses say that the deceased's behaviour before the axe incident in January 1991 was quite different. The defendant said that the deceased seemed to change in 1990. She said he seemed ill, and went to the doctor and he changed from one moment to the next. Sometimes they would get along quite well and talk about the children and grandchildren and in the next moment he became upset and uptight. Connie noticed this change from 1990. It was worse until 1992 and then he seemed to get a bit better. Peter noticed the change in 1990, describing "the air was tense". Orsolina said there was a definite change in 1990. Her husband Mid said he noticed changes before the axe incident in January 1991. Tony, their son, said his father commenced a pattern of unreasonableness in about 1990, so that he could not talk to his father, and that he was strange. Enza put it around 1991 when her father would have mood swings, one day staying calm and the next aggressive and argumentative.

113. The axe incident was the first significant indication of any change. On that day the deceased was out in the garden. The defendant went and asked him for some housekeeping money. The deceased said to her "if you don't go away, I'll chop your head off with this axe". He also used offensive language. He called her a prostitute. He said he would kill her. That was the first time, she said, that he had called her those names or threatened her in that way. He continued to use that language up to the date of Enza's wedding. Mrs Alvaro fled. The deceased telephone Orsolina and said to her that her mother had intended killing herself and that she was mad. He said to her "your mum is going mad, and I can't control her". Orsolina telephoned her brother Tony. Tony called his brothers-in-law, Mr Frederico and Mr Tarzia. Tony spoke to Dr Munro and asked for help. Dr Munro did not seem to know what to do. He suggested that the deceased be taken to Hillcrest. That upset Tony. He did not want his father locked up. Eventually, Tony took advice from Dr Munro to take the deceased to Woodleigh House. Mr Frederico corroborates all of this. Mr Tarzia says that he thought Tony mentioned that he would take the deceased to Modbury during conversation on the telephone when he called him. However, the balance of the evidence suggests that the decision to take the deceased to Modbury Hospital arose after Tony looked for help from Dr Munro and, upon that advice, took him there.

114. They went to Modbury Hospital and waited there for 4 hours. The deceased did not want to be there. They agreed to leave Modbury Hospital on the basis that the deceased see a psychiatrist. The deceased saw Dr Munro the following day, that is on 8th January 1991, and agreed to see a psychiatrist upon his advice with the defendant. Connie made the arrangements for her parents to see Dr DePasquale. However, time for the appointment came closer, the deceased said he did not want to go, there was no need for him to go and that it was his wife who needed psychiatric treatment.

115. The next incident of any significance was when 26 Rugby Avenue came on the market in June 1991. According to the family witnesses, the deceased was determined to purchase that property. He wanted in his sole name. The defendant did not want to purchase any more properties. The deceased involved his whole family in the discussion. Mrs Alvaro did not agree because (a) it was too much work with tenants and maintenance, and (b) she did not want more debt, and (c) she thought they should take life easier. On the rental income and other incidentals that the family had at that stage, it appeared that the borrowing of a further amount to purchase this property was contrary to commercial good sense. However, the deceased would not listen to reason and insisted on its purchase. It was about this time that Mr Bowman, the accountant, noticed a change in the deceased when he became more secretive about money. It appears from the evidence that Mrs Alvaro did not know of the loan of $22,900 from Mr Pinkerton, referred to in Mr Pinkerton's evidence. The deceased tried to get the children to convince their mother to provide the cash for the purchase. However, the children were by then opposed to the idea and tried to persuade their father not to purchase the property.

116. It appears that it was about this time when the deceased started visiting his two elder daughters at their respective matrimonial homes to try and get them to convince their mother to agree to the purchase. He said horrible things about their mother.

117. 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.

118. 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.

119. It was some time after that that Tony made the tape recording of the conversation between his father and himself. I ruled that the tape recording was admissible and I have set out my reasons for that ruling above. The defendant says that the deceased continued to make this allegation until about the time of Enza's wedding in October of 1992. Mrs Patiniott said that she was told by the deceased about six months prior to his death, about this allegation and said that he had told her that he had photographs.

120. There was a great deal of evidence about the deceased's relationship with his two youngest daughters, Enza and Julie. In brief, it appears that the deceased disapproved of their freedom in going out and attempted to prevent them. The defendant agreed with the deceased on this matter and basically supported him in his objections to the girls going out. However, Enza supported her younger sister Julie and that culminated in Julie's departure, which the deceased apparently regarded as a scandal. It appears that the deceased's behaviour improved at the time of Enza's wedding, although the relationship was still strained as is apparently supported by the typewritten note, exhibit D7. The typewritten note is undated but it would appear that it was written after the defendant had assaulted Julie's male friend, Gary Friedman, on 4th January 1993. The reference in the typewritten note is about Mum fighting in the middle of the city for Julie. This note was found in about July 1993 after the deceased's death in an old suitcase which was kept by the deceased in the shed at the rear of 35 Payne Street.

THE CREDIBILITY OF THE DEFENCE WITNESSES 121. It was difficult to assess the credibility of the defendant as she gave her evidence through an interpreter. However, I felt that she answered questions to the best of her ability and memory, bearing in mind that in relation to many of these incidents there was considerable family trauma. Her basic account of her relationship with the deceased and the incidents in 1991 to 1992 in particular, are largely supported by the children when the children were present. I was impressed by all the children, although I felt that Orsolina and her sister Connie were particularly impressive. Tony was somewhat emotional, which is perfectly understandable, and had some difficulties in giving a clear picture of various traumatic incidents, particularly the incident when he took the tape recording. Tony, as the only son, perhaps felt it his responsibility to try and clear up the matter. He does not appear to have done so. However, his effort in msaking the tape recording does confirm the evidence of the other defence witnesses that the accused made this devastating allegation about his wife and his son-in-law sleeping together. He persisted in that allegation, despite the denials of the rest of the family. The tape recording also shows a number of inconsistencies in the deceased's account, particularly in relation to the allegation about his wife and Mid. There were a number of other allegations made by the deceased, both in relation to sexual matters and monetary matters, which indicated his paranoid delusional behaviour during that period, stemming from some form of depression.

122. Accordingly, I accept the evidence of the defendant and her children and sons-in-law from which the above overall picture has been drawn.

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.

Professor Goldney gave subsequent reports on the 28th March 1994 and the 22nd June 1994.

125. In his evidence, Professor Goldney confirmed the opinions that he formed and substantiated his opinions by particulars from the evidence, the tape recording and the medical reports that were available to him.

126. The plaintiff called Dr John Clayer, who also read a number of medical reports, including the reports of Professor Goldney on the 4th of March and 28th April 1994. Dr Clayer's report is dated 1st June 1994. He concluded his report as follows:- "I have read the excellent report by Dr. Goldney, dated 4/3/94, and I would agree almost entirely with the opinions expressed therein, including the likelihood that Mr. Alvaro had developed a delusional (paranoid) psychosis. I have some reservations, however, in that a person who develops a paranoid psychosis, whether it be an isolated circumscribed psychosis or part of another disorder such as paraphrenia, depression, or schizophrenia, tends to develop the disorder so that it gradually becomes more and more intense and widespread if untreated."

127. He thought to some extent that Mr Alvaro's history supported that possibility. However, he was struck by the fact that as early as 1977 Mr Alvaro was clearly aggressive and hostile to his wife. In 1991 his family commented that he would be sitting with them, talking quite rationally and coherently and then suddenly he would become quite unreal in his behaviour towards them. Having reviewed further details, Dr Clayer concluded that it was a very confused picture of uncertain diagnosis and somewhat inconsistent behaviour. He felt that one could not "rule out entirely the possibility that at the time Mr. Alvaro sat down with Mr. Joseph Nikotra and wrote and signed his Will he may have been in a period of at least comparative lucidity and, although he may have brought into his Will-making the hostility he had apparently felt towards his wife at times from 1977, did not incorporate delusional thinking. Having said that, I would have to reiterate again that I would agree with Dr. Goldney in his overall report and his specific comment that in the light of the delusional nature of his attitude and beliefs towards his family it would be very likely that Mr. Alvaro's Will-making decisions were influenced by delusional thoughts."

128. In my opinion, Dr Clayer is in substantial agreement with Professor Goldney that the deceased did suffer from a paranoid delusion. Dr Clayer, in his evidence, suggested that there was insufficient material to enable him to say that, as at 17th September 1991, the deceased was suffering from those delusions. He was extensively cross-examined on the incidents which I have outlined above from the evidence given by the members of the family. This was to the effect that the axe incident in January 1991, the 26 Payne Street incident in June or July of 1991 and the gun and axe incident in particular in July of 1991 were explained by the previous conduct of the deceased to his wife over a period of many years. He tended to consider the axe incident of January 1991 as something which could be described as almost normal for an Italian family. But what Dr Clayer appears to have toned down in his assessment, is the fact that the deceased was displaying similar behaviour towards his children and, in particular, his son-in-law Mid when he made the serious allegations which obviously were completely unfounded in fact. Dr Clayer appeared to consider that these types of delusions did not manifest themselves until late in 1991 or early 1992. He agreed at this time the deceased was in such a state that it would have affected his capacity to have full knowledge and give proper approval to his testamentary dispositions and obligations. Obviously the deceased was harbouring those delusional thoughts, although not expressing them at an earlier period, is apparent from the fact that the handwritten note starts off with a reference to 26 Payne Street and clearly indicates his intention to exclude, not only his wife, but his children from his will.

129. For these reasons I prefer to act on the evidence of Professor Goldney and, insofar as Dr Clayer may disagree with Professor Goldney, I prefer the opinion of Professor Goldney.

WHAT THEN IS THE EFFECT IN LAW OF THIS EVIDENCE? 130. In Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558 Isaacs J, at page 569 - 570 said that there were three questions which remained after argument before the primary Judge for determination, namely (1) whether the testator knew and approved of the contents of the will and (2) whether he had testamentary capacity and (3) whether undue influence was exercised by two named persons. As the primary Judge had found against testamentary capacity, he had ruled that it was unnecessary to determine the other two questions. On appeal, Isaacs J indicated that nothing was said about the first point "it being obviously, in the circumstances, concluded by the decision upon either of the other two points." Both the other points were vigorously contested. His Honour then proceeded to collect, in the form of working propositions, the affect of the authorities which he summarised at page 570 as (1) The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument.

(2) This onus means the burden of establishing the issue continues during the whole case and must be determined upon the balance of the whole evidence.

(3) The proponent's duty is, in the first place, discharged by establishing a prima facie case.

(4) A prima facie case is one which, having regard to the circumstances, so far established by the proponents testimony, satisfies the Court judicially that the will propounded is the last will of a free and capable testator.

(5) A man or woman may freely make their testament, how old soever they may be.

(6) It is not the integrity of the body, but of the mind

(7) The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case, because the degree of vigilance to be exercised by the Court varies with the circumstances.

(8) As instances of such material circumstances may be mentioned: (included amongst these incidents are the exclusion of persons naturally having a claim upon the testator).

(9) Once the proponent establishes a prima facie case of sound mind, memory and understanding with reference to the particular will, for capacity may be either absolute or

relative, then the onus prombandi lies upon the party impeaching the will to show that it ought not to be admitted to proof.

(10) To displace a prima facie case of capacity and due execution mere proof of serious illness is not sufficient: there must be clear evidence that undue influence was in fact exercised, or that the illness of the testator so affected his or her mental faculties as to make them unequal to the task of disposing of their property.

(11) The opinion of witnesses as to the testamentary capacity of the alleged testator is usually for various reasons of little weight on the direct issue.

(12) While, for instance, the opinions of a attesting witnesses that the testator was competent are not without some weight, the Court must judge from the facts they state and not from their opinions.

(13) Where instructions for a will are given on a day antecedent to its execution, the former is by long established law the crucial date.

131. His Honour cited propositions for each and every one of these working rules.

132. In the present case there was a great deal of argument relating to the relevant tests to be applied in the case of proof of wills which have been challenged on the grounds that the testator did not have sufficient knowledge and approval to make a will. The rules as propounded by Isaacs J in Bailey v Bailey (supra) and it is clear law that the proponent of a will must establish that the testator knew and approves the contents at the time of execution. See Guardhouse v Blackburn (1866) LR 1 P and D 109 at 116-117; Atter v Atkinson (1869) LR 1 P and D 665 at 670 and Cleare (supra) at 657. Knowledge and approval is part of the burden of proof by anyone propounding a will.

133. Where a will has been read over to the deceased who appears to follow and understand the contents of the document, there are a line of cases following from the propositions in Guardhouse v Blackburn (supra) which suggest that there is a very heavy burden of proof thrown upon the other party once that has been established. These cases were extensively reviewed In re Morris deceased (1971) PD 62, particularly at pages 76 - 79. Latey J applied dicta of Sachs J in an unreported decision of Crerar v Crerar noted in 1956, 106 Law Journal 694. What Sachs J said is in my opinion consistent with the propositions stated by Isaacs J, namely that the Court has to consider all the relevant evidence available and then:- "drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption of law". Page 78 of In re Morris (supra). (See also the discussion in the unreported decision of Eames J in the will of Alice May Ivory, delivered on 14th February 1995 at pages 59-62).

134. In the present case there has been a considerable amount of factual evidence relating to the deceased's behaviour towards his wife and children which, in the opinion, of the two expert psychiatrists, constitutes delusional behaviour or depressive delusional behaviour. In Ponder and Anor v Burmeister and Others [1910] SALawRp 4; (1909) SALR 62 at 84, Way CJ referred to the two definitions of delusion given in the case of Dew v Clark and Clark (1826) 162 ER 410 namely "it is only the belief of facts which no rational person would have believed that is insane delusion". See also the textbooks on medical definitions for similar terms and In re McCaffrey [1938] SAStRp 62; (1938) SASR 403 at 408. But insane delusions are only material to the question of testamentary capacity if they are connected with dispositions of the will. See Tipper v Moore and Anor [1911] HCA 42; (1911) 13 CLR 248 at 250 per Griffith CJ. Thus a testator suffering from insane delusions of a relevant nature can still make a valid will of the necessary capacity, if it is established that the testator exercised that power during a lucid interval and that, at the relevant time, his general condition had subsided temporarily and had ceased to influence the testator. See Re Munn [1943] SAStRp 44; (1943) SASR 304 and Re Worth (1951) SASR 188.

135. In my opinion, on the evidence as a whole, I am satisfied that, as at September of 1991, the testator was suffering delusions of such a nature as to be classified by the psychiatrist as paranoid delusional behvaiour which, as Professor Goldney put it, would, in all probability, have affected his ability to have the necessary knowledge and approval to dispose of his assets in an appropriate way. It may be that his capacity fluctuated. It is unlikely that during any part of 1991 in between periods of extraordinary and bizarre delusional behaviour as I find the evidence establishes in this case, that the testator was in possession and in exercise of his mental faculties sufficient to state that he had the necessary knowledge and approval to make the will on 17th September 1991. In the circumstances it is impossible for me to say that I am satisfied that the document that he executed on 17th September 1991, which the plaintiff seeks to propound, expresses the true will of the testator. I find that the evidence lead by the defendant and the supporting witnesses of Professor Goldney and even Dr Clayer are sufficient to destroy the plaintiff's claim to propound the document of 17th September 1991. Accordingly, I dismiss the plaintiff's claim. I understand that I am unable to make an order on the counterclaim as there is, at present, no proof before the Court in solemn form in relation to the earlier document which is the subject of the counterclaim. I give liberty to the parties to speak about the minutes and to advise on such further and other orders as should be made in the circumstances.