Saeedi v Pastrello[2026] ACTCA 10: Probate Dispute Insights and Video Evidence

Disputes over the validity of a Will often turn on two closely connected questions: whether the testator had the necessary mental capacity, and whether they truly understood and approved the document they signed. The courts continue to approach these issues through the enduring framework established in Banks v Goodfellow LR 5 QB 549, at 565, which emphasises a practical, functional assessment of the testator’s understanding—rather than a rigid medical diagnosis.

Yet capacity alone is not enough. Even where a capable testator duly executes a Will, the law recognises that concerns may arise about whether the document genuinely reflects the deceased’s intentions. In such cases, a presumption of knowledge and approval may be displaced by “suspicious circumstances”, shifting the evidentiary burden onto those seeking to uphold the Will. The authorities—from Tobin v Ezekial [2012] NSWCA 285; 83 NSWLR 757, at [46]-[47] to Nock v Austin(1918) 25 CLR 519 at 528—demonstrate that this inquiry is highly fact-specific, requiring scrutiny of the Will’s preparation, execution, and surrounding context.

Testamentary capacity reveals a careful balancing act. On one hand, courts seek to uphold testamentary freedom and avoid imposing overly demanding standards on testators. On the other hand, they remain vigilant against circumstances that might cast doubt on whether a Will reflects the true intentions of the deceased. It is within this tension—between autonomy and protection—that modern Will disputes continue to be resolved.

Saeedi v Pastrello [2025] ACTSC 26 concerned an application for probate in solemn form of a Will dated 18 December 2020. Two of the deceased’s children contested the application, alleging a lack of testamentary capacity and the absence of knowledge and approval regarding the 2020 Will. They sought probate of an earlier Will executed in 1988.

Three grandchildren subsequently joined the proceedings as plaintiffs. The 1988 Will left the estate to the deceased’s three children, while the 2020 Will divided the estate between the children and grandchildren.

The deceased died in 2021 at age 86, leaving a substantial estate primarily consisting of real property. While hospitalised in 2020, the deceased executed a new Will, dividing the estate into 11 equal shares: 2 shares for each child and 1 share for each grandchild.

Saeedi v Pastrello [2025] ACTSC 26

Two of the deceased’s children challenged the validity of the 2020 Will, alleging:

• Lack of testamentary capacity; and
• That the deceased did not know or approve of its contents.
• They sought probate of the 1988 Will.

Key Evidence: Hospital Video

The solicitor recorded the deceased’s consent to the meeting and to the reading and execution of the Will. These recordings became central evidence, demonstrating that the deceased:

• Correcting errors, including his birth year;
• Rejecting suggestions and leading questions;
• Proposing how his estate should be divided;
• Identifying trusted individuals; and
• Engaging actively, not just agreeing.

Mossop J examined whether the deceased had testamentary capacity by applying the principles from Banks v Goodfellow. Mossop J considered whether the deceased understood

1. the nature of making a Will,
2. the extent of his property,
3. the potential claims on his estate, and
4. was free from any mental disorder.

The hospital video showed the deceased correcting errors, making decisions, and providing clear instructions. Mossop J concluded that these actions demonstrated independent judgment and understanding. On the totality of the evidence, the Court was satisfied that the deceased had capacity and that the 2020 Will was approved at the relevant time.

The plaintiffs, relying on the deceased’s age and declining health, submitted that the deceased lacked testamentary capacity and did not know or approve the contents of the 2020 Will. They relied on the claim that his condition at the time meant he could not fully understand or approve the testamentary provisions. The evidence showed that the deceased was fully aware of the discussions, especially when asked questions. The Court dismissed all grounds of appeal and upheld the 2020 Will. Mossop J confirmed that testamentary capacity is a legal question determined on all available evidence. In this case, the recordings were particularly persuasive, providing direct evidence of:

• His reasoning process.
• His understanding of family and assets; and
• His grasp of tl’sl’sl’s effects.

The Court endorsed the use of recordings as highly persuasive evidence in capacity disputes. Practitioners should adopt protocols to ensure the effectiveness of video evidence, including:

making clear introductions with date, time, and names of those present;

confirming the testator’s willingness to be recorded; and

capturing the testator’s independent decision-making.

Recording the reading of the Will, any corrections or clarifications, and the testator’s acknowledgment of their wishes is also recommended. Careful storage and secure retention of recordings are essential to preserve evidentiary integrity.

To ensure video evidence remains reliable and admissible, maintain the reliability and admissibility of video evidence, practitioners should implement best practices for storage and retention:

• Store recordings in secure, access-controlled digital formats.
• Maintain backup copies in separate physical or cloud locations.
• Catalogue each recording with clear labels, including case name, date, and participants.
• Keep access logs documenting who has viewed or handled the files.
• Retain original, unedited recordings where possible.
• Maintain an index or register of all testamentary video evidence with the testator’s file.
• Regularly review storage protocols to prevent accidental loss or unauthorised access.be determinative.

1. Capacity must be assessed at the relevant time.
2. Evidence of independent judgment is significant.
3. Adherence to careful procedures supports the validity of testamentary instruments.

The 1988 Will left the estate to the three children. The 2020 Will divided the estate into 11 shares: 2 for each child and 1 for each grandchild. The executor applied for probate of the 2020 Will in solemn form but did not participate in the proceedings. Courts permit this neutral approach in contested probate cases to avoid any appearance of bias, particularly where beneficiaries have competing interests. Neutrality is generally appropriate where the executor has no financial interest in the outcome or where beneficiaries are actively disputing which Will should prevail. In such cases, the executor’s role is limited to placing relevant material before the Court, without advocating for a particular outcome.

Estate planners advise executors to consider neutrality if participation compromises their impartiality or appears to favour certain beneficiaries. However, an executor’s active involvement may be necessary if they stand to benefit personally, face allegations of wrongdoing, or if the Court requests assistance beyond procedural matters. If no interested party can present essential evidence regarding the execution of the Will, the executor may also need to participate. In this case, two children sought probate of the 1988 Will, while three grandchildren supported the 2020 Will.

The Court applied the test for testamentary capacity from Banks v Goodfellow (1870) LR 5 QB 549, requiring a Will maker to:

• Understand the nature and effects of creating a Will;
• Know the extent of his property;
• Appreciate claims of beneficiaries; and
• Not be under a mental disorder affecting his judgment, including no influence from insane delusions.
  Age or illness alone does not establish incapacity. Knowledge and approval are distinct considerations. In this case, the Court considered both video recordings and medical evidence. Medical reports noted teased’sd’sd’s age and some cognitive decline, but the video demonstrated capacity on the day the Will was made. The Court found medical evidence important but not determinative. The video, showing the deceased engaging, making corrections, and expressing his wishes, was more persuasive. After weighing both sources, the Court concluded that teased’sd’sd’s actions in the recordings outweighed concerns raised in the medical reports. The Court granted probate to the executor named in the 2020 Will.

Practitioners should recognise that both medical assessments and recording evidence are important in establishing testamentary capacity. Neither is determinative in isolation; each must be weighed in the context of tividual’sl’sl’s circumstances. Where medical opinions conflict, further expert input may be required, or greater weight may be given to contemporaneous evidence such as video recordings. Estate planners are encouraged to obtain comprehensive medical reports and document the testamentary process with clear, detailed recordings. This approach enhances the persuasiveness of the evidence and reduces the risk of challenge.

Pastrello v Saeedi (No 2) [2026] ACTCA 10

The appeal challenged the validity of a Will on four principal grounds: lack of testamentary capacity, improper reliance on medical evidence, existence of suspicious circumstances, and lack of knowledge and approval.

1. Testamentary Capacity
   The Court rejected the argument that the deceased lacked capacity. A diagnosis of dementia does not automatically negate testamentary capacity; the critical issue is ttator’sr’sr’s mental state at the time of giving instructions or executing the Will. Consistent with authority such as Croft v Sanders and Briton v Kipritidis, capacity is a legal, not purely medical, question assessed holistically. Evidence—including witness testimony, medical records, and a video recording—supported the finding that the deceased understood the nature of the Will, his assets in a general sense, and the distribution being made. Importantly, precise recall of every asset was not required.
2. Medical Evidence and Alleged Delirium
   The appellants argued that the deceased was suffering from delirium due to medication. The Court found this unpersuasive. The primary judge preferred competing medical evidence indicating that no delirium occurred at the relevant time, supported by contemporaneous records and video evidence. Additionally, the timing and quantity of medication did not support the claim that cognitive function was impaired.
3. Suspicious Circumstances
   The Court held that no meaningful suspicious circumstances arose. Although beneficiaries sometimes participated in Will preparation (which can raise scrutiny), the involvement here was minimal and did not justify heightened suspicion. The alleged concerns—such as medication use—were insufficient to displace the presumption of validity.
4. Knowledge and Approval
   The Court found that the deceased knew and approved the contents of the Will. The document was properly executed, and there was no evidence of undue influence. Even if minor concerns existed, they were easily dispelled by the overall evidence of capacity and understanding.
5. Commission Clause
   The challenge to the executor’s commission clause also failed. Although the explanation given to the deceased was not perfectly detailed, it was sufficient to establish understanding and approval. The clause was also subject to court oversight, further reducing concern.

Practical lessons

Pastrello v Saeedi (No 2) [2026] ACTCA 10 highlights several practical lessons for estate planners. Recording the Will execution, as was done with the hospital video, offers powerful evidence of thetestator’ss understanding and independent judgment. Estate planners taking clear steps to document capacity at the time of making a Will, such as asking the testator to explain decisions in their own words, confirm their understanding of the Will, and identify key individuals and assets. Careful documentation and the use of video or audio recordings can help safeguard the validity of testamentary instruments and provide compelling evidence if disputes arise later.

It is important to note that approaches to video evidence and capacity documentation can differ across Australian jurisdictions. While courts in the ACT and some other states have accepted such recordings as persuasive evidence, practices and evidentiary weight may vary in jurisdictions such as New South Wales or Victoria. Internationally, the recognition and use of video evidence in probate matters are also subject to different legal standards and local requirements. Estate planners should be aware of these jurisdictional differences and ensure that their procedures align with the rules governing wills and probate in the relevant location.

The Court of Appeal unanimously dismissed the appeal, agreeing with MossopJ’ss conclusions concerning capacity, knowledge and approval.