Bertoldo v Cordenos [2010] QSC 79

SUPREME COURT OF QUEENSLAND CITATION: Bertoldo v Cordenos [2010] QSC 79 PARTIES: JAMES BERTOLDO (Applicant) v GIULIANO CORDENOS (Respondent) FILE NO/S: 223 of 2008 DIVISION: Trial PROCEEDING: Claim ORIGINATING COURT: Supreme Court, Cairns DELIVERED ON: 19 March 2010 DELIVERED AT: Cairns HEARING DATE: 18 November 2009 JUDGE: Jones J ORDER: 1. Probate of the will of Natalina Bertoldo (also known as Natalina Bertoldo Ruga) dated 15 August 2005 be admitted to probate in solemn form of law subject to the formal requirements of the Registrar. 2. Adjourn consideration of the question of costs, allowing each party to make submissions in writing within 28 days from the date hereof. CATCHWORDS: SUCCESSION – WILLS, PROBATE AND ADMINISTRATION – THE MAKING OF A WILL – TESTAMENTARY CAPACITY – Evidence – whether summary judgment is available where the possibility of conflicting evidence as to capacity exists – where application refused COUNSEL: Mr C Ryall for the applicant Mr M Jonsson for the respondent SOLICITORS: W P Montgomery & Montgomery Solicitors for the applicant Apels Solicitors for the respondent [1] The plaintiff is the executor of the will of Natalina Bertoldo Ruga who died on 11 July 2007. She was born on 11 December 1910 and was thus aged 96 years at the time of her death. By this action, the plaintiff seeks a grant of probate of the will made on 15 August 2005 (“the 2005 will”) in solemn form of law. -- 1 of 8 -- 2 [2] The defendant denies that the will was validly made or of lawful effect. He counterclaims for a declaration as to the force and validity of an earlier will made on 11 August 1999 (“the 1999 will”) in which he is named as the executor. [3] At the time of executing the 2005 will, the testator was 94 years of age. She had, for the preceding four years, resided in a care facility, the Mareeba Garden Settlement. She was at the time suffering from a number of illnesses but in particular from dementia and depression. This has given rise to concerns that she lacked testamentary capacity or that she understood the true nature of her act. The execution of the will was on its face regular, it was signed by the testator in the presence of her solicitor Mr Anthony and her medical general practitioner Dr Panter. Dr Panter expressed his medical opinion that the testator did have testamentary capacity at that time. [4] The testator’s estate is not large. It consists of a residence in Mareeba, unofficially valued at between $260,000 - $280,000, the contents of the residence and cash in the sum of $183,609. The principal beneficiaries under the 2005 will are the plaintiff, the testator’s nephew, and his wife Elaine Bertoldo who is a niece of the testator and who was her principal carer in the period before she was admitted to the Garden Settlement and while she was a resident there. [5] Both the plaintiff and Elaine Bertoldo were significant beneficiaries under the 1999 will also. Under that will the residuary estate was shared equally between six beneficiaries as follows:- (a) James Bertoldo and Elaine Bertoldo (b) Dino Bertoldo – a nephew – now deceased (c) Roberto Bertoldo – a nephew – now deceased (d) Gaston Bertoldo – a nephew – living in Mourenx, France (e) Angela Berlato – a carer to the testator’s late sister - Vincenza, Italy (f) The Watch Tower Society of the Jehovah’s Witness Church In this will the plaintiff also provided for personal items (paintings, photos, French clock and dressing table) to be given to named relatives and friends. [6] By the 2005 will all but two of the gifts of personal items were deleted and the residuary estate was to be shared between the plaintiff and Elaine Bertoldo. [7] Counsel for the defendant described this as “a dramatic change” in the testator’s distribution of her property. When taking instructions for the 2005 will, her solicitor, Mr Anthony, said the testator gave reasons for these changes which appeared to him to be rational. At the time the testator provided him with a copy of the 1999 will. He went through each bequest clause of the previous will and asked the testator whether she would like that clause to be included in the new will. [8] At that time Mr Anthony had noticed the clause at the end of the 1999 will informing that the will had been prepared by a different solicitor who was fluent in the Italian language and who had interpreted for the testator the terms of the written will in the Italian language. That clause stated that the testator understands the Italian language, but has an imperfect knowledge of and cannot read the English language. Confronted with this information, Mr Anthony informed the testator that he did not speak Italian and he offered to arrange for Mr Schlippa, the solicitor who prepared the earlier will to attend upon her. Mr Anthony expressed some surprise at -- 2 of 8 -- 3 the presence of that clause because prior to reading it he believed that he and the testator were communicating satisfactorily. He claims to have experience dealing with clients where English is not their first language. Documents from the Tablelands’ Health Service obtained since, noted the testator’s first language as Italian with “limited understanding of English”. 1 [9] Mr Anthony was not contacted directly by the testator to prepare a new will. He had been approached by Dr Panter on the testator’s behalf. In the course of his discussions with the testator he made a rudimentary note of his instructions (ex 6) for the new will. He did this by reference to the terms of the 1999 will but otherwise made no note of any changes in the circumstances, nor of the testator’s reasons why changes were required. Nor in evidence, could Mr Anthony recall any discussion of these matters which ought to have attracted his attention. The extent of his recall was expressed in the following terms:- “Did you at any time explore with the deceased why it was that she wanted to make those changes? – She said – my recollection is that she said that she’d changed her mind, that she didn’t want to leave those things to those people anymore. She may have said about the two – I think they were her nephews in Italy, that they’re in Italy so don’t worry about them. But I didn’t press her on saying, “I’m not leaving anything.” She didn’t give me any information that I can understand – that I can recall to the extent, “I’m not leaving anything to him because he didn’t come to my birthday party” or something like that. Those are triggers where you – I mean they’re obvious triggers whereby you canvass those. But she – my recollection is that she had – she knew what she was doing, she knew what she wanted to leave to whom. She understood who the people were, and she just said, “No, I’ve changed my mind. I don’t want to leave anything to them anymore.” And I recall I specifically mentioned Mr Cordenos, because it seemed like Mr Cordenos was a large part of the previous will and wasn’t in this will at all, and she just said, “I don’t want to anymore.” That’s my recollection”.2 [10] Mr Anthony’s recollection is that Dr Panter was with him when he discussed the will with the testator and he made a contemporaneous note to this effect (ex 7). There is uncertainty as to whether Dr Panter was present when instructions for the new will were being given or when the new will was signed. There is inconsistency between these two witnesses as to whether the will was executed in Mr Anthony’s office or at Garden Settlement. The note taking by Mr Anthony falls far short of the standard required of solicitors dealing with the preparation of wills for aged, enfeebled or ill clients. Mr Anthony was obviously relying on the expertise of Dr Panter on the question of the testator’s capacity and understanding but this does not relieve him of the obligation of making his own inquiries nor of the obligation to make a record of those inquiries. Mr Anthony admitted that he was not aware that for some time prior to the testator giving him instruction that she had suffered from dementia and depression. [11] Dr Panter was well aware of the testator’s physical and mental capacity. She had been a patient of the medical practice of which he was a member since 1991. 1 Ex 2 at p 21 2 Transcript 1-20/45-21/10 -- 3 of 8 -- 4 Certainly by year 2000 Dr Panter was identified as her general practitioner when she was admitted to fulltime residential care at Garden Settlement on 12 April 2000. She had been previously admitted in March 2000 but did not settle down and she returned home. She could not cope at home on her own and she returned to Garden Settlement. 3 Dr Panter in conjunction with Elaine Bertoldo were involved in the process of the testator’s admission. [12] As mentioned above the plaintiff had a number of physical problems – a heart condition requiring pacemaker insertion, congestive cardiac failure, macular degeneration and arthritis – and as well, mild to moderate dementia and depression. As a background to her depression, her husband died in 1986 and this was a traumatic time for her. She visited Italy in 1989 and apparently had an emotional breakdown and was treated with anti-depressant medication. 4 She was admitted to hospital for 12 days in January 2000.5 Her medications were changed on the advice of Dr Pia Iacovela, geriatrician. Between that time and August 2005 the notes of the Garden Settlement Nursing Home detail frequent strange behaviour by the testator. This included asking staff to telephone her husband6 and enquiring why her husband did not visit her 7 and becoming angry when told he was not alive. She also asked staff to phone her mother 8 . She was often unsettled or agitated and wanting to go to her own home. The testator periodically underwent many mini mental state assessments which on some occasions showed poor short term memory and her not being orientated in time or place.9 [13] These mental state assessments and notes of her behaviour monitoring were known to Dr Panter who saw her every week or at least fortnightly over many years.10 He described her cognitive deficits as being due to the combination of dementia and depression. Her dementia was not “global”. It was variable. He said:- “Dementia isn’t an illness that is the same day in day out, and there are lots of things that can contribute to making it worse or better. She suffered concomitantly from depression, and when she was severely depressed her dementia tended to grow worse and she was less aware of events in the past, but when her depression was treated and she took her medications regularly then her dementia was not, I believe, nearly so bad. And that was my experience.”11 [14] Dr Panter said that “there were certain areas of her understanding that still retained a rationality which hardly varied at all”. 12 She had suffered those conditions for about 12 years prior to her death. She always able to identify him and she always remembered that she had a home which demonstrated memory capacity but she did have a short term memory problem. Dr Panter agreed with the assessment of Dr Iacovala of the testator’s memory deficit and said:- “From 2000 onwards she was continuously depressed, despite treatment. The problem is, if people are not improving with 3 Ex 2 pp 8-14 4 Affidavit Juliano Cordenos filed 28 October 2008 5 Ex 2 p 15 6 Ex 3 p 25 7 Ibid p 8 8 Ibid p 37 9 Ibid p 41 10 Transcript 1-28/30 11 Transcript 1-27/1-10 12 Transcript 1-30/45 -- 4 of 8 -- 5 antidepressant treatment, what do you do?...She was continuously o treatment for depression from then on and certainly her depression, as with many illnesses and medicine, fluctuated. Some days and even some weeks she was bright and cheerful and communicative, others – days and weeks she was quite uncommunicative, was unmotivated, didn’t want to talk, cried a lot and that was basically the progress of it. In terms of her dementia, I don’t believe her dementia substantially changed from 2000 onwards. It might’ve got marginally worse, but it remained pretty constant and unvarying. …probably a few weeks before she died, she did become substantially worse as a prelude to her death, but right up until early 2007 there was not really a substantial change.”13 [15] Dr Panter pointed to the fact that the testator lived in the independent nursing wing where she provided for own personal needs but had her meals provided in a communal dining room. She did not require dependency nursing care. [16] Dr Panter told of how he came to be involved in the making of the new will. He said:- “About a couple of weeks before, she said she wanted to see the solicitor. It was completely spontaneous. I didn’t suggest it to her. I asked her why and she said something about changing her will and an appointment was made to seek Mr Anthony. She forgot about it a few days later and had to be reminded of it, but once she was reminded of it her mind was made up and she decided to go and did not waiver at all. And so we actually met together in Mr Anthony’s office on 15 August.” 14 [17] Dr Panter was adamant that on each occasion he was present and the testator was engaged in discussions about her will she had “sufficient cognitive ability to understand what she was giving away in her will and to whom she was giving it”.15 [18] Mr Jonsson of counsel for the defendant suggested that this opinion was in the nature of an ipse dixit. He argued that the comment was devoid of any substrata of fact and it did not have regard to the concerning behaviour that was described by her close friends, Mr and Mrs Cordenos, Carmela de Battista – and the nursing home staff who made the nursing home records. [19] I do not accept this suggestion. Dr Panter has explained that the testator’s dementia is partial and variable. This is supported by independent evidence of some retained memory. He has explained the impact of concomitant dementia and depression. His opinion is not challenged by any expert evidence to the contrary. [20] Ultimately, my decision must depend upon the view I take of Dr Panter’s evidence and his opinions. He has practised in general practice since 1968 in various parts of the world but particularly, in Mareeba for some 27 years prior to the testator’s death. He has wide experience of looking after elderly patients and in fact said his practice was skewed very much towards the elderly and his interest in geriatric 13 Transcript 1-27/60-1-28/20 14 Transcript 1-28/50 15 Transcript 1-26/28 -- 5 of 8 -- 6 medicine.16 I accept his evidence that the plaintiff’s cognitive capacity fluctuated and varied depending on the state of depression and other factors. He saw her at times when her capacities were good and times when they were bad. He, probably more than any other observer, was best positioned to assess when her capacity was sufficient to understand the process of her making a will. [21] The evidence of Mr Anthony’s own inquiries of the testator’s cognitive capacities, her ability to understand and to read English was shallow, to say the least. He evidently was content to rely upon Dr Panter’s assessment of each of those matters. [22] The changes made by the 2005 will do, in my opinion, have an underlying rationality or justification. I accept that Elaine Bertoldo was the constant unofficial carer for the testator in the last years of her living at her home. Elaine Bertoldo remained responsible for the testator’s care when difficulties occurred in the nursing home. It is evident from the records (ex 3) that she was the first point of contact. The moral obligation on the testator to make provision for her was obvious. Equally obvious was the lack of any such obligation to the nephews living in France or to the carer living in Italy from neither of whom is there any evidence of contact. The changes made by the 2005 will excluded nephews who had died. The cancellation of gifts of property to certain individual were of little consequence. Mr Cordenos, who took upon himself to defend this claim, I am sure, did so in a genuine belief that the testator had lost the capacity to make a new will. I am equally sure that he was not motivated by the fact that the intended bequest to him and his wife of an antique lamp, a clock, photos and chandeliers was removed from the 2005 will. [23] Mr Cordenos did acknowledge that the testator was always able to recognise him by sight and later by his voice which bespeaks some retained memory on the part of the testator. He also provided an explanation for the testator’s wanting to remove her intended bequest to the Watch Tower Society of the Jehovah’s Witness Church. At the same time I do not accept his evidence that the testator never learnt English at all. She was fluent in Italian and French. She came to Australia when she was 46 years old and obviously interacted with community and with the church. [24] I am satisfied that the testator had sufficient command of both spoken and written English to know the contents of both the 1999 will and the 2005 will which was in any event read over to her in the presence of Dr Panter. [25] I am satisfied that the testator initiated the process of making the new will out of a desire to make changes which seem to me to be rational and appropriate in the circumstances. [26] Counsel for the respective parties have referred me to the relevant principles to be applied when approaching a determination of whether a testator had testamentary capacity. The following concepts are adopted from the well known decision in Banks v Goodfellow 17 and identified in the judgment of Powell JA in Read v 16 Transcript 1-24/55 17 [1870] LR 5 QB 4 549 -- 6 of 8 -- 7 Carmody18 and cited with approval in Conroy v Unsworth-Smith 19 and Challen v Pitt 20, they are:- 1. That the testator is aware, and appreciates the significance of, the act in law which he or she, is about to embark upon; 2. That the testator is aware, at least in general terms, of the nature, and extent, and value of the estate over which he/she has a disposing power; 3. That the testator is aware of those or (as I see) may be reasonably thought to have a claim upon his/her testamentary bounty, and the basis for, and the nature of, the claims of such persons; 4. That the testator has the ability to evaluate, and to discriminate between, the respective strengths of the claims of such persons. [27] Further to those concepts I was referred to the remarks of Isaac J (Gavin Duffy and Rich JJ agreeing) in Bailey v Bailey 21 where he said:- “(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 (Kinleside v Harrison). (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 (Durnell v Corfield).” 22 [28] The plaintiff bears the onus of proving that the 2005 will is indeed the will of the testator. That onus continues during the whole case there must be determined upon the balance on the whole of the evidence. Bailey v Bailey (supra).23 In Easter v Griffith 24 Gleeson CJ said:- “Where the evidence in a suit for probate raises a doubt as to testamentary capacity, there rests upon the plaintiff the burden of satisfying the conscience of the court that the testatrix had such capacity at the relevant time. If, following a vigilant examination of the whole of the evidence, the doubt is felt to be substantial enough to preclude a belief that the testatrix was of sound mind, memory and understanding at the time of the execution of the will, probate will not be granted…This formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. The power freely to dispose of one’s assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter.”25 [29] Having regard to these principles, and relying particularly on the evidence of Dr Panter and the fact that it was the testator herself who initiated the process for the change in her earlier will, I am satisfied that she did have an understanding of the 18 (unreported) NSWCA – 28 July 1998 19 (2004) QSC 81 20 (2004) QSC 365 21 [1924] 34 CLR 558 22 Ibid at p 572 23 Ibid at p 570 24 (unreported) NSWCA – 7 June 1995 25 See also Whiteside v Smyth [2003] QSC 374 -- 7 of 8 -- 8 nature of the instrument which she executed. I am satisfied also that despite the well-documented concerns about the testator’s cognitive capacity that Dr Panter’s evidence as to her mental state at the time of giving instructions and executing the 2005 will, that she did, on the balance of probabilities, have testamentary capacity. The plaintiff has discharged the onus of proof upon him and is accordingly entitled to a grant of probate in the solemn form of law. Costs [30] Each of the parties have asked that the question of costs (including reserved costs) arising in respect of this claim be adjourned until after the delivery of the reasons for judgment on the principal relief. Orders 1. Probate of the will of Natalina Bertoldo (also known as Natalina Bertoldo Ruga) dated 15 August 2005 be admitted to probate in solemn form of law subject to the formal requirements of the Registrar. 2. I adjourn consideration of the question of costs, allowing each party to make submissions in writing within 28 days from the date hereof. -- 8 of 8 --