The party who seeks to propound a will must establish that the will maker had the requisite legal capacity at the time the will was made and knew and approved the contents of the will.

Consider the case of Maria Scaffidi – who died in December 2014 – where both of these issues were hotly contested.

Brothers do battle over legal capacity at the time the will was madeMaria’s last will – executed in March 2008 – appointed her son Gino as sole beneficiary and stated why she had made no provision for his brother, Joe.

Joe opposed Gino’s application to approve the will in solemn form, contending that their mother suffered cognitive deficits thereby lacking testamentary capacity and did not understand the extent of her estate with which the will dealt.

Differences had arisen between the brothers over Joe’s administration of the estate of their father Nino who died in 2004.

Gino alleged Joe had gained a personal benefit by using Maria’s property to secure loans and had delayed the transfer of Nino’s one quarter share in their family company – Scaffidi Holdings – to Maria.

Maria – who was furious about this turn of events – had little contact with Joe from 2006 and for that reason made the new will excluding him as a beneficiary.

Joe argued a contrary position – that because Maria was almost entirely dependent on Gino for her day-to-day and financial affairs – the new will was made in the context of her susceptibility to his influence.

Justice Stephen Hall in the W.A. Supreme Court examined the medical evidence both parties produced.

Tests administered in 2003 by GP Carmelo Genovese in Italian – so as to eliminate any unreliability due to language difficulties – and the diagnosis of Dr Angelo Carbone in October 2004 when she could not recall her date of birth, address or age, all suggested a cognitive deficit.

They were reinforced by the observations from Geriatrician Roger Clarnette who noted impairments in a consultation she attended with Gino in August 2007.

Dr Clarnette was unable to make a formal diagnosis of dementia until October 2008 because – despite his request that he do so – Gino did not bring her back for a formal assessment 12 months earlier.

The 2008 will was made in the intervening period.

Justice Hall was not impressed by Gino’s failure to arrange the further earlier assessment that the specialist had sought.

“His failure to have Maria assessed prior to the execution of the will causes me to doubt his evidence that Maria was in command of her faculties,” he observed.

The judge agreed that Maria’s anger over Joe’s conduct provided a possible explanation for making a new will excluding him as a beneficiary but ruled it was not evidence of testamentary capacity.

He accepted that Maria had dementia in October 2008 and that on Dr Clarnette’s evidence “it was likely that Maria did not have testamentary capacity, either when she gave instructions for the 2008 Will or when it was executed”.

Joe also claimed that the 2008 will was invalid because the court could not – given her advancing years and poor comprehension of English and it departed so markedly from her previously expressed intentions – be reasonably satisfied that Maria knew and approved of its contents.

The refute this argument, Gino relied on the evidence of John Benari, the lawyer who had prepared the will and attended on Maria for its execution.

This proved to be of no assistance to Gino’s case.

“I am unable to conclude that Mr Benari was an independent lawyer [as] he was also acting for Gino at the time and delayed the preparation of the will for several months on the instructions of Gino,” Justice Hall stated.

“Nor was he in a position to act as an independent advocate for the interests of an elderly and, likely vulnerable, woman”.

In any event, there was no evidence – given the “relative complexity” of her asset situation and the absence of any explanations to her at the time of the execution – that she understood the nature and effect of the will or of the assets of which she was disposing.

Joe won both issues in dispute and the 2002 will – that provided equally for Gino and Joe – was admitted to probate.

Scaffidi -v- Scaffidi [2022] WASC 227 Hall J, 15 July 2022