Saeedi v Pastrello [2025] ACTSC 26

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: Saeedi v Pastrello Citation: [2025] ACTSC 26 Hearing Dates: 5 – 6, 8 – 9, 12 August 2024 Decision Date: 12 February 2025 Before: Mossop J Decision: See [206] Catchwords: SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – The making of a will – testamentary capacity – where testator elderly – where video recording existed of solicitors taking instructions – where defendant’s objections related to failure of testator to comprehend size of estate – where video evidence consistent with testator having capacity – where solicitors consider testator had capacity – competing expert evidence – either unresolved dementia or resolved depression with psychotic features – testamentary capacity established SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – The making of a will – knowledge and approval – whether suspicious circumstances – document duly executed by testator with capacity – no suspicious circumstances to displace presumption of knowledge and approval – lack of knowledge and approval not borne out by the facts upon enquiry without aid of presumptions SUCCESSION – EXECUTORS AND ADMINISTRATORS – Charging and commission clauses – where clause read out and explained to testator and acquiesced to as “understandable” – where Administration and Probate Act authorises a “just” commission for executor’s services – where prospects unlikely of court approving a commission or percentage in addition to the usual professional fees – no independent concern regarding lawfulness of charging clause or its effect on the testator’s knowledge and approval of their will Legislation Cited: Administration and Probate Act 1929 (ACT), s 70 Guardianship and Management of Property Act 1991 (ACT) Cases Cited: Astridge v Pepper [1970] 1 NSWR 542 Bailey v Bailey (1924) 34 CLR 558 Baker v Batt (1838) 2 Moo PC 317; 12 ER 1026 Banks v Goodfellow (1870) LR 5 QB 549 Boreham v Prince Henry Hospital (1955) 29 ALJ 179 Burns v Burns [2016] EWCA Civ 37 Carr v Homersham [2018] NSWCA 65; 97 NSWLR 328 Estate Cockell; Cole v Paisley [2016] NSWSC 349 D’Apice v Gutkovich, Re Estate of Abraham (No 2) [2010] NSWSC 1333 Estate Rofe [2021] NSWSC 257 Greaves v Stolkin [2013] EWHC 1140 (Ch) In the estate of Coonan [2023] ACTSC 320 In the estate of Ruimao Liu deceased [2019] ACTSC 49 In the matter of the estate of Jocelyn Heather Jones (deceased) [2014] ACTSC 200 King v Hudson [2009] NSWSC 1013 Lewis v Lewis [2021] NSWCA 168; 105 NSWLR 487 Mekhail v Hana [2019] NSWCA 197 Nock v Austin (1918) 25 CLR 519 Perpetual Trustee Co Ltd v Fairlie-Cunninghame (1993) 32 NSWLR 377 Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 Romascu v Manolache [2011] NSWSC 1362 Timbury v Coffee (1941) 66 CLR 277 Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 757 Tyrrell v Painton [1894] P 151 Vukotic v Vukotic [2013] VSC 718; 12 ASTLR 238 Wintle v Nye [1959] 1 WLR 284 Worth v Clasohm (1952) 86 CLR 439 Texts Cited: AJ Mitchell, A meta-analysis of the accuracy of the mini-mental state examination in the detection of dementia and mild cognitive impairment” (2009) 43(4) Journal of Psychiatric Research 411 Parties: Kamyar Saeedi (in his capacity as executor of the estate of the late Lorenzo Pastrello) (First Plaintiff) Carl Lorenzo Pastrello (Second Plaintiff) Christian Ivan Pastrello (Third Plaintiff) Massimo Max Eddy Pastrello (Fourth Plaintiff) Luisa Sonia Pastrello (First Defendant) Eddy Louis Pastrello (Second Defendant) Representation: Counsel Submitting appearance (First Plaintiff) S Chapple SC with D Yazdani (Second, Third and Fourth Plaintiff) C Birch SC with G Blank (First and Second Defendant) Solicitors Aulich Civil Law (First Plaintiff) KJB Law (Second, Third and Fourth Plaintiff) Thomson Geer (First and Second Defendant) File Number: SC 286 of 2022 MOSSOP J: Introduction

1. The late Lorenzo Antonio Pastrello died on 4 August 2021. This case involves a contest over the validity of a will that he signed on 18 December 2020. The plaintiffs seek a grant of probate for that will, which divides his estate amongst his children and grandchildren. There is also an earlier will, executed in 1988, which divides his estate amongst his children only. The defendants seek a grant of probate of that will. The net value of Lorenzo’s estate is substantial. The parties agree that the real property components of the estate had a value in 2020 of $43.570 million. Notwithstanding the privileged position of Lorenzo’s children and grandchildren as beneficiaries of his estate, they were unable to reach any compromise as to the distribution of his benevolence among them. As a consequence, it is for the court to rule on the parties’ claims.

2. The balance of these reasons is structured as follows: (a) The family: [3]. (b) The wills: [9]. (c) Position of the parties: [12]. (d) The test for capacity: [14]. (e) The test for knowledge and approval: [22]. (f) Summary of the estate: [24]. (g) Chronology: [28]. (h) Expert opinions: [142]. (i) Oral evidence: [153]. (j) Conclusion – medical witnesses: [163]. (k) Conclusion – capacity: [168]. (l) Conclusion – knowledge and approval: [191]. (m) Result: [203]. (n) Costs: [205]. (o) Orders: [206]. The family

3. It is useful at this stage to identify Lorenzo’s children and grandchildren. Because most of the persons referred to in these reasons have the surname Pastrello, they will be identified by their first name.

4. Lorenzo died at the age of 86. His wife (Carla Lilliana Borella (“Carla”)) died in May 2011. Lorenzo was survived by his three children and five grandchildren. His children are: (a) his son, Eddy Pastrello (“Eddy”), who was born in 1965; (b) his son, Robert Pastrello (“Robert”), who was born in 1967; and (c) his daughter, Luisa Pastrello (“Luisa”), who was born in 1969.

5. Eddy has two children: (a) Daniel Pastrello (“Daniel”), who was born in 2004; and (b) Matteo Pastrello (“Matteo”), who was born in 2007.

6. Robert has three children: (a) Carl Pastrello (“Carl”), who was born in 2000; (b) Christian Pastrello (“Christian”), who was born in 2002; and (c) Massimo Pastrello (“Massimo”), who was born in 2003.

7. Luisa has no children.

8. Eddy and Robert have worked in the family businesses: a pub, a service station, and a caravan park for substantial periods. Luisa has had a career outside of those businesses.

The wills

9. Lorenzo made two wills. The will executed on 29 June 1988 appointed his wife Carla as executrix and gave the whole of his estate to his three children.

10. The will executed on 18 December 2020 appointed Kamy Saeedi (a lawyer) as his executor and divided the whole of his estate into 11 parts. Each of his three children got two parts and each of his five grandchildren got one part.

11. The obvious difference between the wills is that, under the 2020 will, the grandchildren were direct beneficiaries. Compared with the 1988 will, this had the effect of benefitting Robert’s and Eddy’s families over Luisa. Position of the parties

12. The proceedings were commenced by the executor, Mr Saeedi, against Luisa and Eddy. The executor sought probate of the 2020 will in solemn form. A counter-claim by Luisa and Eddy sought probate of the 1988 will, or alternatively, severance of clauses 2.1-2.3 of the 2020 will. Robert’s three children, Carl, Christian and Massimo, who had an interest in proving the 2020 will, were joined as the third to fifth defendants in the proceedings. By the time of the hearing, the executor had ceased to be an active party. At the commencement of the hearing, Carl, Christian and Massimo were made plaintiffs and the executor was excused from appearing. The end result was: (a) Three of the grandchildren, Carl, Christian and Massimo, sought to uphold the 2020 will and sought a grant of probate in relation to that will. (b) Eddy and Luisa opposed a grant of probate of the 2020 will and sought probate of the 1988 will.

13. Eddy and Luisa’s opposition to a grant of probate for the 2020 will was based upon the contention that: (a) Lorenzo did not have capacity to make the will; (b) if he did have capacity, then it had not been proved that he knew and approved the contents of the will.

The test for capacity

14. The test for capacity to make a will is that articulated in Banks v Goodfellow (1870) LR 5 QB 549, where Cockburn CJ said (at 565): It is essential to the exercise of such a [testamentary] power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

15. The case before the court in Banks v Goodfellow was one in which the testator had suffered mental illness. As to that, Cockburn CJ said at 565-566: If therefore, though mental disease may exist, it presents itself in such a degree and form as not to interfere with the capacity to make a rational disposal of property, why, it may be asked, should it be held to take away the right? It cannot be the object of the legislator to aggravate an affliction in itself so great by the deprivation of a right the value of which is universally felt and acknowledged. If it be conceded, as we think it must be, that the only legitimate or rational ground for denying testamentary capacity to persons of unsound mind is the inability to take into account and give due effect to the considerations which ought to be present to the mind of a testator in making his will, and to influence his decision as to the disposal of his property, it follows that a degree or form of unsoundness which neither disturbs the exercise of the faculties necessary for such an act, nor is capable of influencing the result, ought not to take away the power of making a will, or place a person so circumstanced in a less advantageous position than others with regard to this right. (See also at 569-570.)

16. In Bailey v Bailey (1924) 34 CLR 558, Isaacs J (with whom the two other members of the majority, Gavan Duffy J and Rich J, agreed) formulated a number of propositions drawn from the case law, including Banks v Goodfellow. These propositions (at 570-572) are, relevantly, as follows: (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. It 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 proponent's testimony, satisfies the Court judicially that the will propounded is the last will of a free and capable testator. (5) A man may freely make his testament, how old soever he may be; for it is not the integrity of the body, but of the mind, that is requisite in testaments. (6) 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. (7) As instances of such material circumstances may be mentioned: (a) the nature of the will itself regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries; (b) the exclusion of persons naturally having a claim upon the testator; (c) extreme age, sickness, the fact of the drawer of the will or any person having motive and opportunity and exercising undue influence taking a substantial benefit. (8) 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 probandi lies upon the party impeaching the will to show that it ought not to be admitted to proof. (9) 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 mental faculties as to make them unequal to the task of disposing of his property. (10) 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. (11) While, for instance, the opinions of the 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. (12) Where instructions for a will are given on a day antecedent to its execution, the former is by long established law the crucial date. (Citations omitted)

The test for knowledge and approval

22. In the event that the court determined that Lorenzo possessed the capacity to make a will, the next issue would be whether or not he knew and approved the contents of his will. This is a discrete issue. It is possible to reach a conclusion that a testator had capacity but did not know of and approve the contents of the will. The requirement for knowledge and approval was described in Tobin v Ezekiel [2012] NSWCA 285; 83 NSWLR 757 at [46]-[47] as follows: Upon proof of testamentary capacity and due execution there is also a presumption of knowledge and approval of the contents of the Will at the time of execution. That presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator. In Thompson v Bella-Lewis [1997] 1 Qd R 429 McPherson JA (dissenting in the result) said (at 451) of the circumstances able to raise a suspicion concerning knowledge and approval that, except perhaps where the will is retained by someone who participated in its preparation or execution or who benefits under it, "a circumstance must, to be accounted 'suspicious', be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator's death". … Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved of the contents of the document. Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be "the most satisfactory evidence" of actual knowledge of the contents of the will… What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example in Wintle v Nye [1959] 1 WLR 284 the relevant circumstances were described (at 291) as being such as to impose "as heavy a burden as can be imagined". Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction… That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator…

23. Within the framework described above, a number of points about this issue can be made: (a) This is “not an arduous requirement” as it requires only that he “actually know the substantive content of [the will] … and approve of that content”: Vukotic v Vukotic [2013] VSC 718; 12 ASTLR 238 at [132]. (b) It is not necessary to prove understanding of the legal terminology employed: Greaves v Stolkin [2013] EWHC 1140 (Ch) at [73]. (c) It is not essential that the testator read the actual document or be told precisely what was in it if he or she had given instructions for a will to be prepared in those terms: Astridge v Pepper [1970] 1 NSWR 542 at 548. (d) The law has traditionally adopted a presumption of knowledge and approval arising, in the absence of suspicious circumstances, upon proof that a testator with testamentary capacity duly executed the will: Nock v Austin (1918) 25 CLR 519 at 528. There was then an evidentiary burden upon those impeaching the will to adduce evidence to displace the presumption. If such evidence was adduced, then the burden would shift to those propounding the will to establish knowledge and approval: Baker v Batt (1838) 2 Moo PC 317 at 321; 12 ER 1026 at 1027; Tyrrell v Painton [1894] P 151 at 157. (e) However, the approach based upon shifting presumptions has been criticised on the basis that the issue is a purely factual one and will depend upon the nature of the particular matters raised that might suggest that a properly executed will has not in fact been made with knowledge and approval of its terms: Carr v Homersham at [46]; Mekhail v Hana at [167]-[168]. (f) What is required to dispel suspicious circumstances will vary depending upon the gravity of those circumstances. The degree of suspicion may be slight and so easily dispelled. On the other hand, it may be so grave that it can hardly be removed: Wintle v Nye [1959] 1 WLR 284 at 291. See also Mekhail v Hana [2019] NSWCA 197 at [139]. (g) Suspicious circumstances that might call into question whether or not a will was executed with knowledge and approval of its terms do not necessarily have to arise from any wrongdoing. Rather, they are circumstances that give rise to a suspicion that the testator may not have known and approved the contents: Burns v Burns [2016] EWCA Civ 37 at [52].

Summary of the estate

24. As at the date of the deceased’s death, the deceased’s estate in the Australian Capital Territory consisted largely of: (a) a property located at Duyfken Place, Red Hill ACT (“Red Hill Property” or “Carla Apartments”); (b) a property located at Garema Place, City ACT, also known as Bible House; (c) a property located at State Circle, Deakin ACT (“Deakin Residence”); (d) cash held in accounts with St George Bank and ANZ of $61,864.75; and (e) 310,000 shares in Gratory Pty Ltd ACN 066 004 180 (“Gratory”).

25. As at the date of the deceased’s death, the deceased’s estate in New South Wales consisted largely of: (a) a property located at Eagle Creek Road, Werombi NSW (“Werombi Property”), used by the deceased and his family as a holiday home; (b) a property located at Tallagandra Lane, Gundaroo NSW (“Prosper Stud”), a farm with approximately 50 cattle, several horses and small livestock including chickens; (c) a property located at Monaro Street, Queanbeyan NSW (“Queanbeyan Property”); and (d) a property located at Bidges Road, Sutton NSW, being more than 700 acres comprised of multiple titles, and including Lot 15 in DP246157 (known as Eaglehawk Hill)

26. The Eaglehawk Hill property was by far the most valuable component of the estate.

27. As at the date of his death, the deceased also owned shares in Gratory (Water Services) Pty Ltd and Eaglehawk Park ACT Pty Ltd, some gaming machine entitlements, an unregistered motor vehicle (a Rolls Royce), and cash in an Italian bank account valued at approximately $40,000.

Chronology

Why is this chronology significant?

28. The chronology that follows is significant in two respects. First, it describes the circumstances in which the 2020 will came to be made and its making. Second, the broader chronology is significant insofar as it indicates Lorenzo’s state of mental function at various times. That is significant because of the dispute between expert medical witnesses called by the parties as to whether or not Lorenzo was suffering from dementia at the time that he executed the 2020 will. A downward trajectory in mental function is more likely to support the opinion of the expert, Dr Ryan, called by the defendants, that Lorenzo was suffering from dementia. An improvement in mental functioning is more likely to support the opinions of Dr Chow and Prof Brew, called by the plaintiffs, that Lorenzo was not suffering from dementia at the time that he executed the 2020 will.

Life up to Carla’s death

29. Lorenzo was born in Italy in 1935. In around 1960, Lorenzo migrated to Australia at 25 years of age. In January 1965, Lorenzo married Carla.

30. Over a number of years, Lorenzo established many family businesses. Those family businesses included the following: (a) an amusement machine business known as Golden Coin Amusements, which Lorenzo established in around 1976, that continued trading until about 1994. (b) a pub known as Eaglehawk Hotel (“Pub”), which Lorenzo established in or around 1987 and which continues trading today. The Pub has been operated by Gratory since at least 2019. (c) a holiday park located at Eaglehawk Hill (“Caravan Park”), which Lorenzo established in or around 1987 and which continues trading today. The Caravan Park has been operated by Gratory since around 2013. (d) a service station and takeaway shop located on Eaglehawk Hill which Lorenzo established around six months after the Pub and Caravan Park had been opened, the premises of which are leased to a third party. (e) the purchase, development and management of investment properties in the ACT and NSW, including Bible House, the Red Hill Property, the Queanbeyan Property, and Eaglehawk Hill; (f) the farm known as Prosper Stud, located at Tallagandra Lane, Gundaroo NSW, which has approximately fifty cattle, several horses, and a number of other small livestock including chickens.

31. The takeaway shop and the service station, Bible House, the Red Hill Property and the Queanbeyan Property are all subject to residential or commercial lease agreements and are managed by an agent.

32. At the time of his death in 2021, the deceased was the sole shareholder in Gratory, the entity which owned and operated the Pub and the Caravan Park. The directors of Gratory at the time of the deceased’s death were Eddy, Luisa and Robert.

33. Both Robert and Eddy had built homes on part of the land at Eaglehawk Hill, at least in part from their own resources. Although the deceased had indicated an intention to subdivide the land and transfer to them blocks of 20 acres each, by the time of Lorenzo’s death, that had not occurred. There was some evidence from Luisa that this may have been intentional, but it is not necessary to determine whether this was the case. In February 2018, Robert and Eddy lodged caveats to protect their interests in the land upon which they had built their respective family homes. There is no evidence that the lodgement of the caveats was a source of tension between Lorenzo and his sons.

Carla’s death and Lorenzo’s decline

34. Lorenzo’s wife, Carla, died on 11 May 2011.

35. Robert observed that after this, his father’s health declined. In the months following her death, he observed that Lorenzo rarely got out of bed or showered. He believed his father was depressed. He observed him drink to excess. Lorenzo would sit for hours in the pub. Robert thought that Lorenzo was becoming increasingly paranoid.

36. Luisa’s evidence was that between Carla’s death and June 2014, she had observed that Lorenzo had no motivation, was sad, unhappy, and did not want to do anything. He said to her that “I just want to die”. He gave up his previous social life.

37. Eddy observed that he was suffering from “intense grief”, looked lost, had trouble sleeping, smelt of alcohol and was argumentative and combative.

38. Given the consistency of the evidence, the evidence of each of the children on this subject can be accepted.

39. In September 2014, Lorenzo travelled with Luisa to Italy for four weeks and stayed with one of his sisters near Venice. The trip was not a success. Luisa recalled that he would refuse to get out of bed for days, although with some medical treatment his condition improved. Luisa believed that he was still suffering from grief at the loss of his wife.

40. By 2015, Lorenzo was complaining about pain in his back and shoulder and that he thought he was going to have a heart attack. He started displaying memory loss. He was drinking heavily and would stay in a cabin at the Caravan Park. His behaviour also caused friction with staff.

41. In 2016, Robert observed his father becoming increasingly paranoid, asserting that people were stealing from him. Subsequent investigations indicated that his concerns that he was being stolen from were legitimate ones (see [61] below). However, at the time it was interpreted in the context of his other conduct as an indication of his declining mental health. He would carry large quantities of cash in public and behave oddly. In June 2017, he was caught drink driving and detained by police. This led to him seeing the geriatrician, Dr-Mary Ann Kulh.

42. On 14 July 2017, Dr Kulh reported to Lorenzo’s GP. She recorded that there had been some deterioration in his cognitive function, that he appeared “unkempt and dishevelled”, that his recall of his medical history was sketchy, and that he was not trusting his family. He scored 27/30 in the Rowland Universal Dementia Assessment Scale (RUDAS). Her summary of the position was: In summary, Lorenzo has evidence of cognitive impairment and frontal lobe features including self-neglect, lack of judgement and insight. This is most in keeping with a frontal lobe vascular dementia. He has also some paranoid delusions particularly surrounding his two sons which is making it difficult to proceed with arranging care for him which is desperately needed. He also has signs of severe aortic stenosis in the setting of chronic heart failure.

Hospitalisation February to May 2019

50. On 12 February 2019, Lorenzo was admitted to the Kenmore Psychogeriatric Unit at Goulburn Base Hospital (“Kenmore”) following an assessment by a nurse from Aged Care Services Goulburn. The initial assessment by Dr Annette Chen, a psychiatry registrar, was: vascular dementia with behavioural disturbance – possible worsening of dementia (however there is probably more complicated family dynamic issues including vast financial issue).

51. While he was in hospital, Lorenzo was the subject of a variety of assessments and investigations. Pain in his shoulder led to imaging which showed a lesion consistent with metastatic prostate cancer. He also had pain in his right knee, sometimes walking with crutches and sometimes asking for a wheelchair. As at 26 February 2019, the diagnosis of his mental condition by Dr Chen, speaking for “the team” at Kenmore, was a “mixed type of dementia (Alzheimers and vascular) with deficiencies in his judgement and memory recall”. It was expected that the “dementia will likely progress with marked deterioration and further difficult behaviour”. When explaining the condition to Lorenzo’s children on 19 February 2019, she had referred to the “progressive [deterioration] in score of cognitive testing from 2017 to 2018”, which appears to be a reference to the testing undertaken by Dr Kulh.

52. From 26 February 2019, Luisa was making arrangements to have Lorenzo transferred back to the ACT. Upon review on 28 February 2019, the formulation of the psychiatrist at Kenmore, Dr Judith Raymond was: Mixed Vascular/Alzheimerss [sic] dementia and associated issues, unable to manage his complex affairs and his self care including keeping appointments with his doctors despite serious health concerns. ACAT proceedings

53. Following Lorenzo’s admission to Kenmore, an application was made by his case manager to the New South Wales Civil and Administrative Tribunal for orders appointing his children as guardians and financial managers.

54. Frank Gelonesi had stressed to the children that, based on his own experience, it was important that the three children take a united approach to the application. They did so and the application was dismissed on 12 March 2019 when Luisa submitted that Lorenzo was a resident of the ACT and proceedings would be brought in the ACT Civil and Administrative Tribunal (“ACAT”) instead.

55. Luisa had filed Eddy’s application to ACAT on 8 March 2019. The application sought that Eddy and Luisa be appointed jointly as Lorenzo’s financial manager and guardian. Robert filed an application seeking that he also be appointed financial manager and guardian on 15 March 2019. At the hearing on 29 March, all three children supported their joint appointment as guardians and financial managers. The ACAT made orders appointing Eddy, Luisa and Robert as Lorenzo’s guardians and financial managers. The ACAT orders were subsequently varied on 9 July 2019 so that, as Lorenzo’s financial managers, Eddy, Luisa and Robert could deal with lease agreements for Lorenzo’s investment properties without needing to obtain the prior endorsement of the Public Trustee and Guardian.

Transfer to Calvary

56. On 1 March 2019, Lorenzo was discharged from Kenmore and was admitted to Calvary Public Hospital. On 5 March, he was discharged from Calvary Public Hospital and admitted to Calvary Private Hospital, where he was a patient from 5 March 2019 to 7 May 2019. Dr Sivakumaran, a geriatrician, recorded that Lorenzo was suffering from mixed vascular Alzheimers Dementia. However, on 7 March 2019, Dr Sivakumaran reported to the psychologist at Kenmore that “so far, it appeared Lorenzo had mental capacity” and he “asked why Lorenzo had been scheduled, as he was currently not seeing anything of concern”. On 20 March 2019, he recorded a diagnosis of “mixed vascular Alzheimer type of dementia”, although this diagnosis appears to have involved the adoption of Dr Kulh’s earlier diagnosis. He expressed the opinion that Lorenzo did not have capacity to make informed decisions about his health and financial matters.

57. Luisa visited him often during this period, spending long periods with him and bringing him fresh food or clothes.

58. During his stay at Calvary Private Hospital, Dr Sivakumaran diagnosed him as suffering from conditions which included mixed vascular Alzheimer’s dementia with behavioural issues as well as depression. He prescribed two drugs which had not been given earlier, namely escitalopram (an anti-depressant), and olanzapine (an anti-psychotic).

Return to Deakin

59. On 7 May 2019, Lorenzo was discharged from Calvary Private Hospital and returned to live in the Deakin Residence. Luisa stayed with him until the end of May, when she left to take up a job in Sydney. Full time carers were engaged to look after Lorenzo. He was in a wheelchair at that time and some modifications needed to be done to the house to make it suitable for him. He needed help with going to the toilet, preparing meals, showering, getting out of bed, getting changed, shaving and taking medications. Dr Sivakumaran reduced the level of olanzapine that Lorenzo was prescribed. By July 2019, Dr Sivakumaran was contemplating further reduction or elimination of the use of olanzapine “as he is now not exhibiting any behavioural issues”. He remained on anti-depressant medication.

60. Luisa came down from Sydney and stayed with him on weekends. She made the arrangements in relation to his carers. He saw a new general practitioner and his medication was adjusted. His health improved substantially. He was sleeping better, and was calmer, less agitated, more engaging and more optimistic. He was getting better treatment for his pain issues. Eddy said that he appeared to be in better health. Luisa described him as “starting to return to his normal self”. His sense of humour returned. He was grateful to be alive. His alcohol intake reduced substantially. He would have his carers drive to the Pub most days for lunch. He would speak to Robert and the employees about the business. However, he continued to have shoulder pain and pain in his knee.

61. In July and August 2019, Robert had begun investigating payments made by cheque from the trading account for the Caravan Park. He and Eddy took steps to obtain copies of the cheques drawn on the account from St George Bank. These cheques were drawn in favour of a long-term business associate of Lorenzo, who had assisted him and kept him company in the years since Carla’s death. The investigation by Robert and Eddy and, from February 2020, by Australian Federal Police, led to the business associate being charged with defrauding Lorenzo and Gratory of $4.1 million. The fact that there was substance to Lorenzo’s earlier concerns about people stealing from him cast a different light on his earlier behaviour which had, at the time, been seen by others as evidence of paranoia. After Lorenzo became aware of what Robert and Eddy had discovered, he ceased accusing people of stealing his money and regularly asked for updates on the case brought against the business associate.

62. In October 2019, he saw Dr Sivakumaran, who considered that he had improved in general health and was looking forward to upcoming knee surgery in Sydney.

63. On 19 December 2019, Lorenzo was admitted to the Prince of Wales Private Hospital in Sydney and underwent knee replacement surgery. A Mini-Mental State Examination (MMSE) conducted on 20 December 2019 gave a score of 20/30. He was then admitted to Eastern Suburbs Private Hospital from 27 December 2019 to 6 March 2020. There, a cognitive assessment (which appears to have been performed by a Dr Fulop) indicated a RUDAS score of 29/30. He was discharged from hospital on 6 March 2020 and returned to Canberra. In March 2020, in light of the potential for increased restrictions as a result of the COVID-19 pandemic, Luisa moved in with Lorenzo at the Deakin Residence. At around the time of the knee surgery, he had the idea of travelling to Italy again in May 2020, but this had to be postponed due to the COVID-19 pandemic.

Further ACAT proceedings

64. On 3 April 2020, Robert filed an application with ACAT seeking to vary the ACAT orders to remove Luisa from her appointment as one of Lorenzo’s financial managers. This arose because Robert alleged that Luisa had failed to allow refinancing of loans which were in default, failed to provide a letter of support for a development application to allow work to be undertaken at the Pub, and anticipated she would fail to respond to requests relating to a development at Yarralumla in which both Robert and Lorenzo had an interest. Lorenzo communicated that he wished to be involved in the ACAT process. At this time, Luisa recorded that “his improvement is significant”.

65. On 30 April 2020, a general practitioner, Dr Ratnasingham, referred Lorenzo to Dr Frank Chow, a consultant psychiatrist and psychogeriatrician, for his opinion and advice. On 11 May 2020, Lorenzo saw Dr Chow. Dr Chow’s report will be discussed later in these reasons.

66. On 14 May, Luisa reported to Mr Mascitti (a solicitor employed by Mr Saeedi’s law firm) the outcome of the consultation with Dr Chow. She said: “Apart from grammar it’s clear that Dad has no material issue with his cognition. He did really well on the day – for an early start, drive to [Sydney] and sit through a cognitive assessment – all for an 84-year-old, after a very challenging year”.

67. The submissions made by Luisa’s solicitor to the ACAT dated 21 May 2020 provided: 37. Our client believes that Lorenzo is capable of making and communicating decisions concerning his personal, financial and property affairs. Lorenzo has expressed to our client strong views about the future direction of his business ventures, and a desire to maintain involvement. … 75. Our client considers that it is possible that by hearing from Lorenzo and reviewing current medical evidence, the Tribunal may very well determine that the Orders are no longer required, or that they can be altered to give Lorenzo more autonomy. Our client anticipates that Lorenzo’s solicitor may make submissions along these lines and our client is supportive of outcomes to that effect.

68. The primary position adopted in those submissions was that: “The Order should be revoked on the basis that Lorenzo can make decisions for himself with the support of family and professional advisers”.

69. On 5 June 2020, Luisa signed a statement for the purposes of the ACAT proceedings which included the following: During this time [since 4 April 2020], I had the opportunity to observe my father every day and see the progress he has made since the surgery. Also, I could see that he is able to make decisions in relation to his care and financial matters.

70. On 5 June 2020, Lorenzo engaged the plaintiff’s law firm and Mr Mascitti to file an application with ACAT seeking to: (a) revoke appointment of Eddy, Luisa and Robert as guardians and financial managers; and (b) appoint Frank Lo Pilato, an insolvency practitioner, as Lorenzo’s financial manager. The proposed revocation of the guardianship order was put on the basis that “Mr Lorenzo Pastrello has capacity to make decisions in relation to his own health and wellbeing”. The application was supported by the report of Dr Chow of 11 May 2020.

Assessment by Dr Chow

72. On 11 May 2020, Lorenzo was assessed by Dr Frank Chow, a psychiatrist. Dr Chow undertook a psychiatric assessment of cognition and capacity. That included administering Addenbrooke’s Cognitive Examination – Revised (ACE-R), a test from which a Mini-Mental State Examination (MMSE) score can be derived. He scored 88/100 on the Addenbrooke’s test and 27/30 on the MMSE. Both of these scores were above the cutoff for dementia. Dr Chow reported that: From today[’s] assessment, it is my opinion that he has gained improvement with his psychiatric condition and therefore his cognition has improved significantly. From a capacity assessment point of view, he is able to understand the purpose of the assessment, guardianship, accommodation, care and financial arrangements. He is able to communicate his decision makings [sic] clearly. The decision is consistent [sic] and there is no other undue influence and his medical health appears stable. I therefore consider he has now regained his cognitive capacity to make decision[s] for his lifestyle, accommodation, care and financial arrangements.

73. Dr Chow saw Lorenzo again on 8 July 2020. He assessed him again (and performed further cognitive testing). His MMSE score was 27/30. Dr Chow observed: He remains well psychiatrically in this follow up assessment. With his improved psychiatric state, his cognition remains intact. There is no evidence of significant cognitive impairment on both assessments. From a capacity assessment point of view, he is able to understand the purpose of the assessment, guardianship, accommodation, care and financial arrangements. He is able to retain and weigh up the pros and cons of the information given. He can communicate his decision makings clearly.

74. He also said that he agreed with Dr Fulop’s results of the RUDAS on 6 March 2020 of 29/30 (see [63] above). He said that Lorenzo did not have impaired decision-making ability as that term is defined in the Guardianship and Management of Property Act 1991 (ACT). When asked to comment on Dr Kulh’s report of 14 July 2017, he said: It is important to note, delirium, depression and dementia are often presenting the same way to clinician. The underlying pathology is often revealed and confirmed only after treatment is given over a period of time. Mr Pastrello has clearly improved now in term[s] of his mental state and cognition. He is no longer depressed and there is no psychotic symptom. There is no current evidence of self-neglect and he now has good insight and judgement. These are all totally different compared to when he was assessed by Doctor Kulh on 14 July 2017.

75. He expressed the opinion that Lorenzo had suffered from a depressive illness with psychotic features and not a frontal lobe vascular dementia and that his psychiatric condition was now in remission.

Lay observations of Lorenzo’s improvement

76. Robert’s observations from his interactions with Lorenzo were that, following his discharge from hospital in March 2020, his health and behaviours had improved significantly: (a) Lorenzo was no longer drinking heavily; (b) his paranoia did not impact upon his social interactions as it had previously; and (c) he would attend the Pub most days and would discuss the business and cashflow of the Pub with Robert and other employees of Gratory.

77. At the time of the ACAT application in June and July 2020, Robert observed that: (a) Lorenzo was not drinking excessively and not drink driving; (b) he was not acting aggressively or displaying signs of paranoia or confusion; (c) his mobility was more limited than previously, although he would direct his carers to take him to visit the family businesses or attend medical appointments; (d) he regularly spent time with Robert’s sons, who would visit him after school; (e) he regularly discussed with Robert the Pub and its renovations, Prosper Stud, how Robert’s children were going, and the progress of the case against the fraudulent business associate.

78. Carl said that he was happier, more alert, and only drinking a limited amount of alcohol. Carl would play checkers with him and the games were competitive.

79. Luisa’s observations of Lorenzo were summarised in her statement made for the ACAT proceedings (see [67] above). In oral evidence, she said he could make decisions about what he wanted to do each day. In terms of financial decisions, he was able to convey to her that he wished to sell his share of the Yarralumla property, he was well aware of his property holdings, and he understood the business conducted for the Eaglehawk property and the role that Gratory played in the business.

Back to hospital in August 2020

80. In August 2020, Lorenzo began to complain increasingly of a sore back. That pain led him to be taken to Canberra Hospital on 27 August 2020.

81. Luisa described Lorenzo as being groggy due to medication and becoming disengaged from his businesses while at Canberra Hospital.

82. In order to improve Lorenzo’s prospects of rehabilitation, Luisa arranged to have him admitted to Eastern Suburbs Hospital. At that stage, “[t]he plan is for 2/3 weeks to get him stronger and then bring him back home again with the same goodwin support he had and with more rehab support at home”. The reference to “goodwin” was a reference to an aged care service provider. He was driven by Eddy to Eastern Suburbs Hospital on 13 November 2020. He was then transferred to Prince of Wales Hospital on 28 November 2020. He underwent surgery on 2 and 8 December 2020. The surgery on 2 December was to insert a stent and a pacemaker. The surgery on 8 December was on his spine.

83. In the first few weeks after being transferred to Sydney, Luisa visited him daily, often both morning and night. She reported on issues and progress to her brothers by text message. Luisa’s evidence emphasised that Robert had less contact with Lorenzo during this period than she or Eddy. Her evidence was that Lorenzo’s use of Italian increased in this period.

84. Eddy’s evidence of his observations of Lorenzo when in hospital during this period was directed towards describing a reduction in his memory and his interest in the business or the particular value of business assets. However, he remained aware of the operation of his businesses at Eaglehawk, the involvement of Gratory, Prosper Stud and Bible House.

85. Carl visited him in hospital on 12 December 2020. They talked for about an hour, generally about the business and what Mr Lo Pilato was doing in relation to the business. Carl observed him to be rational, asking and answering questions in a normal manner. He did not observe Lorenzo to be exhausted or sleepy by the end of the visit.

Previously expressed testamentary intentions

86. There was a variety of evidence as to Lorenzo’s previously expressed testamentary intentions.

87. Eddy said that when discussing what became the Carla Apartments in Red Hill, Lorenzo said to him “I am going to name the building after Carla and leave it to the boys. Robert, you and Luisa can have the rest.” He said this to him a number of times while the building was being constructed and then with less frequency subsequently.

88. Eddy also said that after Lorenzo got out of hospital in May 2019, the latter said to him, “I leave everything to you, Robert and Luisa except for the Red Hill Property. I give that to the grandkids.”

89. Robert’s evidence was that for as long as he could remember, his father had often said that “I am going to leave everything to my grandchildren” or “it’s all for my grandchildren”. He would regularly refer to his businesses as “the empire” and the “family business” being “for the boys”.

90. Robert agreed with Eddy that Lorenzo had said “this is for the boys” in relation to the Carla Apartments on multiple occasions during his life. Robert also said that he made similar statements in relation to all of his businesses and properties throughout his life.

91. On 13 December 2020, a few days prior to the execution of the 2020 will, Robert visited Lorenzo in hospital. His evidence was that he was told by Lorenzo of his plans to make a new will. During that discussion, Lorenzo said “Don’t worry, I will look after the boys”.

92. Carl, who was referred to by Lorenzo as “The Boss”, said that his grandfather would talk about the properties that he owned and say, “I have left you an empire”.

93. Massimo gave evidence that Lorenzo said many times that “It is all for you boys” and “You are Pastrello”. He described being able to have conversations with Lorenzo when he went back into hospital in late 2019 and that he was “still his old self”, able to tell jokes and talk to those visiting him.

94. Mr Saeedi said that, when speaking about significant assets such as Eaglehawk Hill, Lorenzo would say words to the effect of “this is not for sale, it is for my grandchildren”.

95. Luisa’s evidence was that her mother had used the expression “a third, a third, a third” when discussing her and her husband’s estate. In the six months after Carla died, Luisa said that in a discussion with his friends about wills Lorenzo had referred to “a third, a third, a third”. She described Lorenzo having referred to the Carla Apartments as being for his grandchildren and doing so 10 or 15 times per year.

96. She said that, on 17 December 2020, she had a conversation with Lorenzo about the will in which he asked what he should do. Luisa said that she said, “a third, a third, a third”, to which Lorenzo responded that she should get more, and that she then said a third each would make it easy for everybody.

Preparation and execution of the 2020 will

100. During 2019 and 2020, Lorenzo expressed to Mr Saeedi a desire to execute a new will. Mr Mascitti was also present during a number of conversations in which Lorenzo expressed that wish.

101. In June 2020, the possibility of Lorenzo making a will was raised in a meeting between Robert, Luisa, Eddy, and Mr Lo Pilato and his staff.

102. In about mid-August 2020, Mr Mascitti received a telephone call from Mr Lo Pilato in which Mr Lo Pilato said that Lorenzo “expressed a desire to make a will on a number of occasions”.

103. Mr Mascitti discussed that call with Mr Saeedi, who suggested that Mr Mascitti “get in touch with Meyer Vandenberg. They have a good wills and estates team.” Mr Mascitti emailed Archie Tsiromokos, a partner at MV Law (a firm formerly known as Meyer Vandenberg) on 31 August 2020.

104. On 7 September 2020, Mr Mascitti spoke with Tanya Herbertson, a partner in the firm MV Law, in which Mr Mascitti indicated that one of his firm’s long-term clients, Lorenzo, was interested in making a will. He described some of the background, including his view of Lorenzo’s mental state, his impression of Lorenzo’s likely testamentary intentions, and the size of the estate. Mr Mascitti told her that Lorenzo was in hospital due to shoulder cancer and that Lorenzo may require someone to visit him in hospital to take instructions in order to prepare a will. Ms Herbertson confirmed that she was happy to do a hospital visit if needed and said that it might be a “stop-gap” will to be put in place fairly urgently “just in case”. She awaited someone from Mr Mascitti’s office to make the arrangements for the visit.

105. At a meeting with Robert, Luisa and Eddy on 1 December 2020, Mr Lo Pilato was informed that Lorenzo had a very old will.

106. Mr Saeedi’s evidence was that he was contacted in November 2020 by Luisa in relation to Lorenzo drafting a new will and that he told Mr Mascitti to contact Ms Herbertson on 11 December 2020. Having regard to the evidence of Mr Mascitti and Ms Herbertson, this was not the contact which initiated the arrangements for the preparation of the new will.

107. For reasons which are not clear, it was only in December 2020 that an appointment to take instructions was arranged. As a result of communications on 11 and 14 December, arrangements were made for Ms Herbertson to travel to Sydney to take instructions from Lorenzo.

108. Shortly before travelling to Sydney to meet with Lorenzo, Ms Herbertson received a letter from a solicitor acting for Robert disclosing aspects of his medical history. The letter referred to Dr Kulh’s opinion indicating underlying vascular dementia on the one hand and Dr Chow’s opinion and the opinion expressed by Dr Fulop in a letter dated 11 May 2020 on the other. The thrust of the letter was to indicate Robert’s concern that Dr Chow and Dr Fulop may have misdiagnosed Lorenzo’s condition because of the absence of a further MRI scan.

The telephone call to Luisa

118. Luisa’s evidence was that she received a telephone call at the time when Mr Mascitti and Ms Herbertson were with Lorenzo in hospital. She said that, in part of the conversation, her father said that “They said they want to do a will. What should I do?” and that she said, “We discussed yesterday, a third, a third, a third.” He then said “Ah I forgot, okay. Can you come please?” She explained that she couldn’t come because she was not supposed to be there but she would come after work. When she did see him later that day, she described him as being “quiet and vague” and tired. Luisa asked him whether he signed something and he said “I don’t know. I think I did but we’ll do another one.”

119. A file note prepared by Ms Herbertson shortly after the execution of the will makes reference to the telephone conversation as follows: Laurie said perhaps his daughter Luisa should be there too. I explained it is better that I meet with him in the absence of his family members so no-one can later say he was not making his own decisions as to what he wants in his will and say he was being placed under pressure by someone else. Michael offered to phone Luisa for Laurie, which he did. Laurie spoke to Luisa on the phone and I could hear Luisa explaining to her father that it wasn’t appropriate for her to be at the hospital for two reasons - firstly because of the covid restrictions … and secondly so that nobody can suggest she was influencing him to make his will in a particular way. I could hear that as I was sitting fairly close to Laurie when he was speaking to Luisa on the mobile phone. Laurie appeared satisfied with what Luisa told him and indicated to me and to Michael that he wanted to make a will today to get things sorted and in place.

120. In cross-examination, it was put to Ms Herbertson that there had been conversation in which Luisa said the words (of which Luisa gave evidence) referring to “a third, a third, a third”. She said “It’s possible she said it, but I think if I heard that I would have noted it down in my file note. So I didn’t hear that.”

121. In re-examination, she explained that she would have put this part of the conversation in the file note because it was a clear indication about something that was directly relevant to how Lorenzo wanted his estate distributed. Had she heard that bit of the conversation, she would have asked him about it.

122. Mr Mascitti’s evidence was that his phone had been on speakerphone and he handed it to Laurie. Luisa’s version of the conversation was put to Mr Mascitti. It was suggested that she had said “we discussed yesterday a third, a third, a third”. He denied that was said. He did agree that she said “We have been through this. You know what to do” or “You know what you want to do”.

123. I accept that the conversation between Lorenzo and Luisa was overheard by the two lawyers either because it was loud enough to be audible or because it was on speakerphone. I accept the evidence of Ms Herbertson that, had there been a reference to “a third, a third, a third”, she would have noted it in her file note. It is likely that, had such a statement been made, then it would have been discussed during the taking of instructions for the will. I consider that the evidence of Ms Herbertson is more likely to be reliable having regard to the fact that she made a very detailed note later that day and that she would have made a note of such an issue relevant to testamentary intention had it been raised. Ms Herbertson’s evidence is corroborated by that of Mr Mascitti. I accept the evidence of Mr Mascitti that the words “a third, a third, a third” were not said. Mr Mascitti’s evidence is significant in that it is clear that he heard the relevant part of the conversation. In contrast to the file note of Ms Herbertson, Luisa made no equivalent contemporaneous record of the content of the telephone call. For these reasons, I conclude that the conversation with Luisa did not involve her reminding Lorenzo to divide his estate equally between his three children.

Features identified by the parties about the videos

125. The video recordings speak for themselves. However, both plaintiffs and defendants drew the court’s attention to particular matters shown on the videos relevant to their contentions about testamentary capacity and knowledge and approval. The plaintiffs drew attention to the following: (a) At 0:39 in the first video, Lorenzo corrects Ms Herbertson when she incorrectly states his year of birth. (b) Starting from 0:56, Lorenzo correctly identified his three children and that he has five grandchildren. He was unable to recall the name of his fifth grandchild, but explains his failure of memory because he usually refers to him as “bello” (beautiful). (c) At 02:21 to 02:40, Lorenzo identified some of his longstanding properties, namely, the Deakin Residence, the Red Hill Property, the Queanbeyan Property, Eaglehawk Hill and Prosper Stud. (d) At 5:28, when asked about Eaglehawk Park ACT Pty Ltd (a company that had only been incorporated by Mr Gelonesi in October 2019) he denied knowledge of that company, despite the leading question asked of him. (e) At 11:59, Lorenzo recollects a conversation that took place five minutes earlier, asking Mr Mascitti who the arrested person was that Mr Saeedi was representing. (f) At 12:35, notwithstanding a leading question about his banking with St George, Lorenzo offers additional information that he also has an account with ANZ. (g) At 14:04 to 14:20, Lorenzo says that he wants to leave his estate “to all my family”. When asked to whom in his family he would like to give his estate, he responds “we are eight for Pastrello” (being his three children and five grandchildren). (h) At 16:36, Lorenzo generates a solution himself, without prompting, to give his grandchildren a share of his estate that is half the value of his children’s shares. (i) At 17:21, Lorenzo says that his desire for his children to get double the share of the grandchildren was “common sense”. (j) At 18:11, Ms Herbertson repeats back to Lorenzo his instructions, and Lorenzo responds, confirming those instructions, but with simpler and clearer language. (k) At 18:43 in the video, Lorenzo decided that his grandchildren should not get their share of his estate until they are 21 years of age and concludes that 18 years of age is “too young”. (l) At 20:08 to 20:19, Lorenzo says that the boys are “super workers” and says (in reference to Carl) “even the oldest is running the pub now” and “everybody loves him”. (m) At 20:55 in the video, Lorenzo himself offers, without prompting, Mr Saeedi as an appropriate executor, saying, “I trust very much Kamy”. (n) At 25:15 to 25:29 in the video, when asked whether the will should provide for his body to be cremated, Lorenzo tells Ms Herbertson that he already has a plot next to Carla in Woden. (o) At 26:28, in response to a leading question that in the event of the death of a beneficiary, their share goes back to everyone, Lorenzo does not adopt the proposition, but instead responds “no no no”. (p) At 27:36, Lorenzo listens to the advice given by Ms Herbertson about the options available to him but decides that he wants a simple will and does not want a testamentary trust, stating “No, a standard Will will be all right.”

Findings in relation to the videos

127. The videos of the giving of instructions for, and the making of, the will are generally supportive of a finding of capacity. Lorenzo is demonstrated to be attentive to what he is being told and able to engage in a discussion with the lawyers about what should be put in his will. Although, as noted by Ms Herbertson in her contemporaneous file note, Lorenzo gave the impression that he had not “put too much thought into what he might like to do in his will”, contrary to the submissions on behalf of the defendants, he did not merely acquiesce to suggestions made to him by the lawyers.

128. So far as his memory is concerned, for the reasons given later, his memory of his assets is, having regard to his substantial portfolio and the relatively limited discussion of its details, not significantly defective. Indeed, as explained below (at [174]-[176]), the apparent failures of recollection of his companies relied upon by the defendants, when properly examined, tend to prove that he was alert and careful about the propositions with which he agreed.

129. In relation to the manner of distribution of his assets, he proposed the method of division which gave each child two parts and each grandchild one part. He was able to explain the method of division accurately and in a manner that was more straightforward than it was explained to him by Ms Herbertson (at 18:11).

130. He clearly engaged with other significant issues about his estate, making decisions about: (a) the age at which it would be appropriate that the grandchildren access their share; (b) the distribution of Luisa’s share if she predeceased him; and (c) whether to include testamentary trusts.

131. At times he is clearly open to advice from the lawyers, saying things such as “I want to be guide too you know” (16:29), “what do you think” (17:15), and “What do you suggest” (31:00). The lawyers clearly take care to avoid influencing the process by making suggestions not derived from what Lorenzo, himself, has said.

132. The statement that he did not own shares, while inconsistent with owning shares in the companies associated with his “empire”, effectively conveyed that he did not have a share portfolio which needed to be separately addressed in the will.

133. The fact that, during the course of the meeting with Lorenzo, both he and the lawyers contemplated that Lorenzo may wish to alter the terms of his will in the future is significant and is discussed later in these reasons (see [187] below), but is not something which casts doubt upon his testamentary capacity.

Events following the making of the will

134. Lorenzo got a urinary tract infection after 18 December 2020. On 8 January 2021, he was transferred from Prince of Wales Hospital to Eastern Suburbs Hospital.

135. Lorenzo was readmitted to Prince of Wales Hospital on 18 January 2021 to address an infection at the wound site caused by the prior surgery on his back. He was discharged to the Eastern Suburbs Hospital on 27 April 2021 but readmitted to Prince of Wales twice in June.

136. When Eddy and his sons visited on 30 January 2021, Lorenzo told him about the making of the will but not the content of it. Lorenzo said “We have to change it” but the issue was not discussed further.

137. During the period from November 2020 until Lorenzo’s death, Robert and his wife and children kept contemporaneous notes and records of some of the occasions when they visited Lorenzo in their shared family diary. With the exception of the note entered for 9 June 2021, which was added after Lorenzo’s death, the notes in the diary were made on the day that those events occurred.

138. Robert and/or his children visited Lorenzo in hospital on approximately 20 occasions between 25 November 2020 and 14 June 2021, the day prior (13 June) being the last time Robert saw Lorenzo.

139. With the exception of the visit of 3 March 2021, each time that he visited Lorenzo in the hospital, Lorenzo would ask about the family business and his properties, including, in respect of the Pub, Lorenzo would regularly ask, “how is the pub?”, and in respect of Prosper Stud, Lorenzo would regularly ask, “how is the farm?”, “Is there much grass?” and “Is there much water?”. He would ask about how the renovations to the Pub were progressing, including the extension of the poker machine room and the new woodfired pizza section.

140. When Robert visited on 3 March 2021, a police officer was also present with a view to taking a statement from Lorenzo in relation to the criminal case against his former business associate. Lorenzo appeared to be heavily medicated, tired and drowsy. He was unable to stay engaged or focused. The police officer subsequently attended again on 7 April 2021, and was able to take a statement from Lorenzo on that date.

141. Lorenzo’s health deteriorated in July 2021. He said that he wanted to go home to Canberra. However, on 26 July 2021, Lorenzo was transferred to Paddington Aged Care Facility. Luisa was making arrangements for him to be transferred back to Canberra by air ambulance. However, he was readmitted to St Vincent’s Hospital on 4 August 2021 and died that day.

Expert opinions

142. The following expert reports were tendered by the parties: (a) 23 June 2023: Expert report of Prof Bruce Brew, a neurologist; (b) 8 October 2023: Expert report of Dr Christopher Ryan, a psychiatrist; (c) 7 November 2023: Supplementary expert report of Dr Christopher Ryan; (d) 20 May 2024: Expert report of Dr Frank Chow, a psychiatrist; (e) 5 June 2024: Supplementary expert report of Prof Bruce Brew;

143. Prof Brew’s report of 23 June 2023 was six pages long. His curriculum vitae was 60 pages long. His opinion was that, as at 18 December 2020, Lorenzo was not suffering from a mental condition or any medical condition that could be associated with mental dysfunction. He based that opinion upon what he saw in the video. He did not agree with Dr Kulh’s earlier diagnosis in 2017 of dementia. He based this upon his assessment of test results on the RUDAS and MMSE screening tests in 2017, 2018, and 2020. He said that the 2017 RUDAS score of 27/30 (see [42] above) was not consistent with vascular dementia. The 2018 score of 22/30 (see [45] above) “almost certainly” related to ongoing depression and alcohol use. The score of 29/30 (see [63] above) was inconsistent with vascular dementia because “[v]ascular dementia does not improve”. He concluded that the change in cognitive scoring from 2017 through to 2020 was inconsistent with vascular dementia because one would expect progressive decline, not fluctuation into the normal range. He referred to the results of the MRI scan of Lorenzo’s brain and said that it was not uncommon for elderly patients to have a degree of atrophy.

144. Dr Ryan described himself as a consultation-liaison psychiatrist. Dr Ryan’s report could not be criticised for brevity. The body of his report was 102 pages long. The approach taken by Dr Ryan was to engage in a detailed assessment of, and commentary in relation to, the available medical records before reaching his conclusion. He then turned to provide commentary upon Prof Brew’s report. His essential contention was that the diagnosis of dementia made when the deceased went into Kenmore in 2019 was correct and that the opinion of Dr Chow to the contrary in May and July 2020 was incorrect. He also expressed the opinion that, at the time of the preparation of the will, the deceased was suffering from a mild delirium. His ultimate opinion was that the cognitive impairments would not have compromised Lorenzo’s capacity to understand the significance of making a will or to understand the nature and effect of his will. However, it would have compromised his capacity to be aware of the nature and extent of his estate and would have compromised his awareness of those who might reasonably be thought to have a claim upon his estate. He also expressed the opinion that it would have compromised his capacity with respect to weighing up and discriminating between the respective claims of the potential beneficiaries. He considered that it was significant that he had access to a much larger range of medical records than were available to Prof Brew when he prepared his report. His opinion was that on 18 December 2020, in addition to suffering from dementia, his condition was complicated by “a mild delirium related to his consumption of opioid pain relievers and the antipsychotic olanzapine”. So far as his capacity to weigh up and discriminate between beneficiaries was concerned, he said: In my opinion, Mr Pastrello’s impaired capacity for abstract thought arising as a result of both his likely dementia and delirium would have compromised his ability to formulate a means by which he could divide his estate among the eight potential beneficiaries that would match his testamentary intentions. Additionally, in my opinion, his impairment of concentration arising as a result of both his likely dementia and delirium would have compromised his ability to hold in mind his testamentary intentions while simultaneously examining the abstract results of dividing his estate into fractions and then multiplying some, but not all, of these fractions. Further, in my opinion, this impairment of concentration would have impaired his ability to take in and weigh all the information provided to him while he was providing instructions with respect to his Will.

Oral evidence

153. Each of Dr Ryan, Dr Chow and Prof Brew were required for cross-examination and gave oral evidence. There was no attempt to challenge the qualifications and experience or honesty of the evidence given by the witnesses. Rather, the nature of their opinions were explored and propositions were put to them based upon particular assumptions about the ultimate facts to be found. Each side attempted to lay the groundwork for the court to prefer the expert opinion that it relied upon to that relied upon by the other side. None of the witnesses departed to any significant extent from the opinions that they had expressed in their written reports.

154. It is not necessary to describe in any detail the oral evidence that was given. Only the most significant points that were made during the course of the oral evidence will be referred to.

Dr Ryan

155. Dr Ryan placed significant reliance upon the upon clinical judgment of those doctors prior to Dr Chow who had assessed Lorenzo and reached the conclusion that he suffered from dementia. He said (Tcpt 171): So I guess I’ve been most influenced, and this is really the case for the whole report, of a whole bunch of experts who had suggested on their - on the basis of their assessment that Mr Pastrello was demented and - and they came to that in various - for various reasons and that included the structured cognitive testing that they did, although none of them were using it as a screening tool.

156. He said that the results of the screening test, which he had analysed in some detail, provided an insecure foundation for disagreeing with the diagnosis reached by each of the doctors. That was because the screening tests were designed to operate as simple tests which would screen for referral for diagnosis by a doctor rather than as stand-alone assessments of capacity. He did, however, accept that the MMSE was a “pretty good” negative screen for dementia and that it was difficult to accidently score high on the MMSE or RUDAS. He appeared to accept the accuracy of the study prepared by Prof Mitchell (A meta-analysis of the accuracy of the mini-mental state examination in the detection of dementia and mild cognitive impairment (2009) 43(4) Journal of Psychiatric Research 411). He pointed out, however, that the RUDAS test had not been assessed in that way. He also pointed out that the Mitchell study was not specific to frontotemporal dementia.

157. He reconciled the improvement in mood relied upon by Dr Chow as also being consistent with there being underlying dementia, but the improvement in mood arising from the management of delusions with olanzapine.

Dr Chow

158. Dr Chow referred to the complexity of the presentation and the significance of its clinical evolution. He indicated that reaching a conclusion as to the underlying condition may take a long time. As each psychiatric condition is treated, the residual problem is exposed. He did not criticise the earlier diagnoses of dementia because, with complex cases, especially in the elderly, treatment may take between six months and two years. The ultimate diagnosis will be dependent upon the progress made in the treatment of the particular conditions that are apparent. He was asked about the treatment of psychosis making it easier to diagnose the underlying condition and said (Tcpt 198-199): Mr Pastrello, there’s, you know, a lot of factors to suggest that he could have a vascular type of cognitive impairment, or especially with the – with the vascular condition he has reported, cardiovascular stenting and all that, that’s usually a risk of vascular type of, you know, cognitive decline or impairment. Also when we look at whether someone has – he was drinking a fair bit of alcohol. Those factors would have made people [think] the way he presented with all the exhibiting dysfunction and disinhibitions behaviour, aggressions, paranoia could be part of a frontotemporal, you know, type of dementia, especially with the cognitive functioning and testing score to be relatively low as well. But as we – as he recover, he did not present with any of the symptoms of, you know, frontotemporal lobe dementia. Like, he was well-behaved. He was, you know, appropriate in setting. He wasn’t disinhibiting. He wasn’t aggressive. You know, his behaviour has kind of settled down altogether. So, yes, there is definitely some degree of cognitive impairment, but, you know, for – for my view is not sufficient to – to call it a, you know, dementia level. Prof Brew

159. Prof Brew was asked about Dr Kulh’s report in 2017 and the score of 27/30 in the RUDAS screening test. He pointed out that a diagnosis of dementia required there to be significant problems with the activities of daily living. He also said that such a score would be “most unusual” for a person with dementia unless they were of a significant educational background or intellect that might allow them to perform well notwithstanding the dementing illness. He did not see those qualifications as applying in relation to Lorenzo.

160. In relation to delirium, he repeated what he said in his report, namely that on 10 December 2020, Prof Gideon Caplan had only identified a “possible” delirium and that there were eight days from then until the day on which the will was executed.

161. His observations of Lorenzo on the video were that he was not delirious, that he was aware of his current surroundings and current events, and that a person who is delirious would not have that capacity.

162. So far as any influence of Endone given at 3pm or 8:14pm the day before, he said he would not expect it to have had any impact because it was short acting and would be “well and truly” out of the patient’s system by the following day.

Conclusion – medical witnesses

163. All were impressive witnesses. All well qualified and experienced. Each honestly held the views expressed. Their reports were clear. Assisted by competent and fair cross-examination and re-examination, they gave oral evidence in a manner that was consistent with their role as experts assisting the court. They recognised uncertainty where it appeared. They identified their views, and the reasons for their views, fairly.

164. In my view, the best available evidence is that of the doctor who saw Lorenzo and was able to assess him, Dr Chow. So far as his clinical conclusion was concerned, I consider that he was in the best position to reach a reliable judgment. That judgment is supported by the opinion of Prof Brew, and is not inconsistent with the other available evidence. To the extent that there was an inconsistency as to the ultimate diagnosis, I prefer the evidence of Dr Chow as to the condition suffered by Lorenzo to the evidence of Dr Ryan. I will state my reasons for this conclusion relatively briefly. (a) Dr Chow saw Lorenzo twice, once in person and once via video. He did so outside the context of the present proceedings (although in the context of ACAT proceedings). In reaching a clinical conclusion as to which of two psychiatric conditions had been present in a complex case, the benefits of having seen the patient are likely to be significant. (b) Although one or more of Lorenzo’s children were present (Luisa and Eddy on the first occasion, Luisa on the second occasion), having regard to his observations and impression of Lorenzo, Dr Chow was content that he did not need to interview Lorenzo alone in order to make a reliable assessment. (c) Dr Chow did not criticise the earlier diagnoses of dementia because he recognised that psychosis may mask a depressive illness and that it may be necessary to treat individual psychiatric conditions in order to determine the nature of the residual or underlying problem. He was clearly aware of the need to distinguish between dementia and depression as the underlying problem. I accept his evidence about the need to treat conditions over a longer period in order to reveal the underlying problem. (d) While it is true that Lorenzo had very significant paid and family support with his activities of daily living following his discharge from Calvary Private Hospital in May 2019, that was something of which Dr Chow was aware when he reached the conclusion that a diagnosis of dementia was not appropriate. (e) While I accept Dr Ryan’s opinion that caution must be adopted in relation to any attempt to use scores on screening tests as a substitute for clinical evaluation, I also accept the evidence of Prof Brew that “a score of 27 out of 30 [on the RUDAS test] would be most unusual for a person with a diagnosis of dementia”. (f) The observations of Prof Brew in relation to what can be seen on the video are consistent with the impressions that I drew from the video. (g) The lay evidence is supportive of there being a significant improvement in Lorenzo’s state of mind and cognitive function over the period between May 2019 and December 2020.

Conclusion – knowledge and approval

191. Having regard to my earlier conclusions about Lorenzo’s cognitive function at the time of the will and the contents of the will itself, if the matter is to be dealt with on the basis of presumptions, I am not satisfied that there are suspicious circumstances surrounding the execution of the will that would displace the presumption that Lorenzo knew and approved of its contents. It was a document duly executed by him in circumstances where he had testamentary capacity and where there are no features of the will which would give rise to a suspicion that its contents were not known to or approved by him. To the extent to which, contrary to my view, any suspicious circumstances exist, they would be slight and hence easily dispelled.

192. However, if, consistent with the approach identified in Mekhail v Hana (see [23](g) above), the issue is simply addressed on the basis of all of the evidence before the court and without regard to presumptions and shifting burdens, the result is the same.

193. My reasons for these conclusions are as follows. They are based upon my earlier conclusions about Lorenzo’s cognitive function and hence testamentary capacity.

194. In addition to the will being properly executed, because the process of taking instructions and the execution of the will was video recorded, it is possible to make an assessment of whether or not the will was executed with knowledge and approval of its contents. Having taken instructions, the will was prepared and then either read back or explained to the testator. While some of the provisions were read, some were explained and others were both read and explained. So far as the central component of the will was concerned, the manner in which the estate was to be distributed, Lorenzo knew and approved of the contents of the will. He knew that he was giving to each child double what he was giving to each grandchild. He knew that the grandchildren would only get their share upon turning 21.

195. The submissions of the defendants placed reliance upon the requirements that the testator understood “the effect” of its provisions. This is derived from the statement of principle in Tobin v Ezekiel at [55] that if the circumstances are such as to give rise to a doubt as to knowledge and approval “those propounding the will must dispel that doubt by proving affirmatively that the testator appreciated the effect of what he or she was doing”: see also Lewis v Lewis [2021] NSWCA 168; 105 NSWLR 487 at [186].

196. In large part, the submissions repeated the factual contentions as to Lorenzo’s cognitive capacity, which I have not accepted in relation to testamentary capacity. However, part of the submission was that knowledge of the “effect” of the will required at least a general understanding of the quantum of the gifts being made, particularly the gifts of several millions of dollars to each of the grandchildren.

197. Whether the matter is dealt with by shifting presumptions or on the whole of the evidence (see [23](e)(g) above), I do not consider that greater knowledge of the quantum of the gifts was required to be proved. At the time of the making of the will, Lorenzo was aware of his very substantial property empire. He was aware that the gifts were, therefore, very valuable ones. Given that the method of the apportionment of his estate was understood and the fact that the estate was a very valuable one, it is not necessary in order to establish knowledge and approval of the effect of the will to establish a greater appreciation of the actual quantum.

Costs

205. The active parties agreed that it would be appropriate for them to be separately heard in relation to costs. The position of the executor also needs to be considered. At this stage, costs will be reserved.

Orders

206. The orders of the Court are: (1) Probate in solemn form of the will dated 18 December 2020 of Lorenzo Antonio Pastrello be granted to Kamyar Saeedi. (2) The counterclaim is dismissed. (3) All questions of costs are reserved. (4) The proceedings are listed for directions at 9:30am on 17 February 2025.

I certify that the preceding two hundred and six [206] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date:

**************

Amendments 25 February 2025 Omit “See [205]” and insert “See [206]” in the cover page. Cover page Omit “the Mr” and replace with “Mr”. [66]