On 5 August 2021, Renato Sorati (the deceased) used a “Will Kit” to document his intentions to distribute his estate. The central issue in this case is whether the deceased had the necessary testamentary capacity on that date.
The deceased married Robyn Sorati (the plaintiff) in 1991. He had two sons, Paul (the defendant) and Andrew, from a previous marriage, while the plaintiff had three daughters—Deborah, Belinda, and Michelle—from her prior marriage.
On 20 October 2017, the deceased and the plaintiff made new Wills. As they had done previously, they sought legal assistance, engaging Milburn Guttridge Lawyers in 2000, 2001, and again in 2009. Their solicitor, Trinity McGarvie, later established McGarvie Family Law, which drafted the deceased’s 2017 Will.
The 2017 Will account for two possible scenarios:
(1) If the plaintiff outlived the deceased, his sons, Paul and Andrew, would inherit his share of the property on Islander Road, Hervey Bay (or its sale proceeds), along with any funds held in his sole investment accounts. The remainder of his estate would go to the plaintiff.
(2) If the plaintiff predeceased the deceased, his sons would still receive the Islander Road property. At the same time, the plaintiff’s daughters would share the proceeds from a separate property on the Esplanade in Hervey Bay. The remainder of the estate would then be divided equally among the deceased’s seven grandchildren.
After the Attorney General appointed their solicitor to the bench, the deceased and the plaintiff took possession of their Wills. The plaintiff was unsure whether they had been stored or discarded, but last knew the Wills were in the deceased’s office and considered them lost.
On 5 August 2021, the deceased executed a new Will (the 2021 Will) without legal assistance. Under the 2021 Will, Paul and Andrew received a specific gift of $50,000, while the plaintiff was named the sole residuary beneficiary. Unlike the 2017 Will, if the plaintiff predeceased the deceased, the 2021 Will did not provide for the plaintiff ‘s daughters.
The deceased passed away on 17 January 2023.
Sorati & Anor v Sorati [2025] QSC 14
The plaintiff and Rhiann Isobel Millane, the executors named in the 2021 Will, applied for probate. The defendant objected and lodged a caveat, arguing that the deceased lacked testamentary capacity when making the 2021 Will.
Testamentary Capacity
There was no dispute about the legal test for determining testamentary capacity. The Court needed to be satisfied that, on 5 August 2021, the deceased:
(a) Understood and appreciated the legal significance of making a Will;
(b) Had a general awareness of the nature, extent, and value of his estate;
(c) Recognised those who could reasonably be expected to have a claim on his estate and understood the nature and basis of their claims; and
(d) Possessed the mental ability, free from impairment, to assess and differentiate between the competing claims.
It was also agreed that:
- The burden of proof rested on the plaintiffs;
- A duly executed will that appears rational on its face carries a presumption of validity in favour of the plaintiffs;
- This presumption could be rebutted by clear and compelling evidence and
- While the deceased’s advanced age did not automatically indicate incapacity, it warranted closer scrutiny.
- If concerns arose concerning the deceased’s cognitive state, the Court was required to assess whether the deceased was of sound mind when executing the 2021 Will.
- While medical evidence could be relevant, it was not necessarily decisive; the determination of testamentary capacity had to be made based on the entirety of the evidence.
- The Court could consider expert opinions but was not bound to give them overriding weight.
- The matter would be determined on the balance of probabilities, considering all available evidence.
The 2021 Will was created using a “Will Kit” and witnessed by three individuals. The 2021 Will is presumed valid unless evidence raises doubt about the testator’s testamentary capacity. In this case, such a doubt exists.
The Witnesses
A retired nurse and Justice of the Peace, Lenore Adam, has witnessed “two or three wills being signed”. Her recollection of 5 August 2021 was broadly consistent with the plaintiff’s account but contained further and essential details. She was invited to assist the plaintiff and the deceased draft their Wills. The deceased seemed hesitant to proceed at first. Lenore stated that she “explained to [the deceased] that if he died without a Will, then he would die intestate, and that the government could take over his estate and he’d have no say in his estate”.
Kathleen Smith, a retired pharmacist and a close friend of the plaintiff for over 20 years, frequently visited her home. At the plaintiff’s invitation, she went there on the afternoon of August 5, 2021.
Initially, she noticed that the deceased was “refusing to sign” his Will. Kathleen recalls that during her visit, either the plaintiff or Lenore informed the deceased “that if he didn’t sign his Will, he’d die intestate and the State could claim his assets,” which prompted an adverse reaction from him.
Following the plaintiff’s suggestion, Kathleen went home but was called back later that evening. The deceased said, “I don’t want the State to get my money,” and affirmed, “Yes, let’s sign.”
Kathleen felt that the deceased “knew what he was doing” when he signed, although she acknowledged during cross-examination that the deceased was “cranky” when told that not signing the Will would result in dying intestate. He was adamant that “the State” should not receive his money, and Ms. Smith confirmed that no one present indicated to him that his existing will would prevent this from happening.
Heather Weir, an accountant, had assisted the plaintiff and the deceased with their tax returns since 2018, meeting with them twice a year. The deceased primarily handled their finances, demonstrating strong knowledge and often debating tax matters with Heather. While she found him challenging at times, she viewed him as insightful and determined. He provided her with necessary financial information, including a handwritten spreadsheet detailing financial records for himself, the plaintiff, and his businesses.
On 11 August 2021, shortly after the “Will Kit” was finalised, Heather observed no changes in the deceased’s mental state. He remained knowledgeable about their finances, having prepared the 2020/21 spreadsheet as in previous years. Heather detected no signs of confusion, memory issues, or coercion by the plaintiff. The spreadsheet, submitted as evidence, indicated the deceased’s awareness of his estate’s nature and value.
Heather revisited the deceased on 15 September 2021 and noted no differences in demeanour. Acknowledging the spreadsheet used in the 11 August meeting may have been prepared over time and closely resembled those from prior years. However, Heather was unaware of the deceased’s exact process for compiling it. The final adjustments to the spreadsheet were made after 30 June 2021, within five weeks of signing the Will.
There are conflicting bodies of evidence leading to different conclusions.
On the one hand, the “observational” evidence portrays a 94-year-old man who, despite being physically frail, appeared to possess the necessary mental faculties to make a valid will. However, the Court must examine this type of evidence with caution.
A Mini-Mental State Examination (MMSE) and CAT scan conducted on 27 October 2021 support this conclusion, as do relevant legal authorities, including Bailey v Bailey (1924) 34 CLR 558 (per Isaacs J).
James Bailey, who passed away on 17 May 1923, created several Wills over the years, with significant ones dated 13 November 1914 and 14 May 1923. In the 1914 Will, he appointed his sons Charles, James, and Samuel as executors, provided for his wife and children, and left the bulk of his estate to his three sons. A codicil in 1920 added provisions for his daughter, Mrs. Bacon. The 1923 Will revoked all previous Wills and divided his property equally among all his children, designating Charles and James as executors.
The executors from 1914 Will seek probate, leading William Henry Bailey and two daughters, Mrs Johansen and Mrs Hobbs, to appeal the decision made in favour of the original executors. The High Court of Australia discussed the essential criteria for establishing a valid will;
(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.
Bailey v Bailey (1924) 34 CLR 558 per Issacs CJ
Deborah Millane, the plaintiff’s daughter and the deceased’s stepdaughter, lived nearby, observed the deceased’s condition and noted physical deterioration around 2020 but did not witness any decline in the deceased’s mental health, stating his mental acuity remained intact. Although Deborah was not present when the deceased created the 2021 Will, she had seen the deceased around August 5, 2021, without noticing changes in his mental state. During cross-examination, she indicated that mental health issues did not arise until late 2021, and her concerns in mid-2021 were focused on the deceased’s aggressive and controlling behaviour. Deborah asserted that significant changes were not observed until early 2022 despite evidence suggesting earlier signs of decline.
Heather’s testimony indicates that, on 11 August 2021, the deceased retained an impressive understanding of a specific financial matter. However, this was a task he had repeatedly performed over time, and the conditions under which the deceased prepared the relevant spreadsheet remain uncertain. Even if the deceased created part of the document after 30 June 2021, the lack of clarity surrounding its preparation diminishes its evidentiary weight in assessing the deceased’s mental state.
Nonetheless, Heather’s evidence substantially supports the second limb of the testamentary capacity test and is also relevant to the other limbs. Renato may have had the capacity to understand, in general terms, the nature, extent, and value of his estate and may have retained other requisite capacities as of 11 August 2021.
However, given that cognitive decline can fluctuate, this evidence does not reliably establish the deceased’s capacity on 5 August 2021. In other words, proving that the deceased had testamentary capacity on 11 August is insufficient to satisfy the plaintiff’s burden of proof.
The decision
Callaghan J found that the plaintif, Lenore, and Kathleen may have genuinely believed that the deceased had capacity. Still, their focus was likely on ensuring the 2021 Will was completed rather than evaluating the deceased’s testamentary capacity. While Deborah’s recollections were undoubtedly honest, she could not provide direct evidence of the deceased’s condition on 5 August 2021.
Additionally, the medical evidence, including expert opinions, lacks temporal specificity. It confirms a pattern of cognitive decline between May 2021 and January 2022 but does not accurately assess the deceased’s condition on 5 August. His decline was unlikely to have been linear, making it difficult to pinpoint his mental state on that particular date.
No sufficiently contemporaneous medical observation or assessment definitively resolves the issue of the deceased’s capacity on 5 August 2021.
However, the overall body of evidence provides a context that supports an inference of incapacity, provided primary circumstances justify such a conclusion.
In this case, there are three key indicators:
- 1. Using a “Will Kit” was a sharp departure from the deceased’s usual practice of drafting wills with a solicitor. While not conclusive on its own, this deviation suggests something was amiss.
- 2. The Will signed on 5 August 2021 did not reflect the deceased’s stated intentions from that same day. Ms Adam’s unchallenged testimony confirms that the deceased instructed his estate to go to the plaintiff, with her daughters as alternate beneficiaries, if she predeceased him. Yet, the Will made no mention of the plaintiff’s daughters. The fact that such an explicit instruction was either forgotten or ignored in such a short period strongly indicates that the plaintiff did not fully comprehend what he was doing. While he was likely aware of the plaintiff’s daughters’ existence, he did not seem to recognise them as potential beneficiaries—despite his recent clear expression of that desire.
- 3. The deceased was informed—without any objection from him or others—that if he did not sign the Will, he would die intestate, and the state could claim his assets. His apparent acceptance of this statement demonstrates that he had forgotten about his 2017 Will, which he was reminded of as recently as 2020, suggesting he did not fully grasp the legal consequences of signing the “Will Kit.”
Furthermore, the evidence indicates that the deceased was unaware of those with a legitimate claim to his estate. The state is not entitled to his assets under intestacy. Had he retained any memory of his previous Will or possessed the necessary legal understanding, he would have challenged the assertion that the government could claim his estate. His failure to do so suggests a lack of testamentary capacity.
The deceased may have understood he was signing a Will but did not comprehend its legal significance. If he believed that failing to complete the document would result in his assets going to the state, he lacked the necessary understanding of its effect.
Additionally, his inability to recognise those with a rightful claim on his estate—let alone differentiate between their entitlements—further supports the conclusion that he lacked capacity.
Given the level of control the deceased typically exercised over his affairs when mentally competent, the Court can attribute these misunderstandings to cognitive decline.
Medically, the deceased’s cognitive decline may have been classified as “mild” or “moderate” rather than “severe,” with such labels of limited relevance. The key issue is how the deceased’s cognitive decline impacted the legal test for testamentary capacity.
Under cross-examination, the defendant heavily emphasised this aspect of the evidence critical in the defendant’s written submissions and closing arguments. The plaintiff did not address it in written submissions or oral arguments. Similarly, there were no counterarguments when Callaghan J invited senior counsel to comment beyond clarifying the evidence, suggesting that, from the plaintiff’s perspective, there was little to refute its significance. For the defendant, however, it formed part of a compelling argument.
The plaintiff has failed to discharge the burden of proof. The evidence does not sufficiently dispel doubts about the deceased’s testamentary capacity in quantity and quality. These doubts are not merely residual; they are substantial enough to preclude a finding that the deceased had the requisite capacity when signing the Will on 5 August 2021.
Accordingly, Callaghan J was not prepared to grant probate of that Will.
The Orders
On 31 January 2025, the Court invited the parties to make further submissions concerning appropriate orders and costs. The Court now orders:
1. The plaintiffs’ claim is dismissed.
2. The plaintiffs must pay the defendant’s costs of the proceeding.
3. The Court upholds the validity of the copy of the deceased’s Will dated 20 October 2017, marked as Exhibit RS6 in the affidavit of scripts of the plaintiff.
4. Subject to formal requirements, the plaintiff is granted probate of the 2017 Will (as contained in Exhibit RS6) as sole executor unless and until the production of the original Will or more authenticated evidence.
5. The Court declares that the 2017 Will wholly revokes all prior Wills made by the deceased.
6. Compliance with rule 598 of the Uniform Civil Procedure Rules 1999 (Qld) is dispensed with.
598 General notice of intention to apply for grant
(1) A person, other than the public trustee, proposing to apply for a grant must, at least 14 days before filing the application, give notice in the approved form of intention to apply for a grant.
(2) At least 7 days before filing the application, the person must also give to the public trustee a copy of the notice.
(3) The copy may be given by post or fax.
(4) If the court considers urgent circumstances exist that justify making a grant without giving notice under subrule (1) , the court may dispense with compliance with the subrule.