Sorati v Sorati[2025] QSC 14

20. [20]
    In fact, handwritten notes were made on Robyn’s 2017 will which was then provided to Lewis & McNamara.^[10]
21. [21]
    Robyn eventually admitted to the possibility that the amendments to her 2017 will were made either by her or upon her instruction.^[11] This confirms that the 2017 wills were not lost and forgotten, but were instead found, amended, and provided for use as the basis for the drafting of new wills in 2020.

22. [22]
    However, in the course of drafting, Robyn and Renato believed that several errors of both substance and form were made. They were also confused by the “legal jargon”. Renato decided to not proceed at that time, and to find someone else to prepare their wills.

23. [23]
    Robyn, concerned to ensure her daughters were provided for, maintains notwithstanding their reappearance in 2020 that she had forgotten about the 2017 wills. She therefore decided to prepare her own will, and to use a “Will Kit” rather than going to a solicitor without Renato.

24. [24]
    Robyn then became concerned that if Renato did not change his will, his wishes would not be carried out. She therefore bought another “Will Kit” and showed it to him. He said he was happy to do his will at home using the “Will Kit”.

25. [25]
    On 5 August 2021, Robyn invited a friend – Lenore Adam (“Lee”) to come over and assist with the preparation of Renato’s new will.

26. [26]
    Robyn recalled that Ms Adam explained the process to Renato, who “seemed to follow and understand what Lee was saying”. Renato indicated his intention to leave his entire estate to Robyn. When asked about whether he wanted to make provision for his sons, Renato said “no I don’t want to give them anything, they’ve had enough”.

27. [27]
    Subsequently, Ms Adam explained the Will again, and Renato “became a bit uncertain about what to leave his sons, and said he needed more time to think about it,” so Ms Adam departed. However, a few hours later, Renato told Robyn he was ready to sign the Will. Ms Adam returned and, in the presence of their friend and neighbour (Kathleen “Kay” Smith), Renato signed the Will.

Lenore Adam (Lee)

28. [28]
    Ms Adam is a retired nurse, and a Justice of the Peace who has witnessed “two or three wills being signed”. Her recollection of 5 August 2021 was broadly consistent with Robyn’s account, but contained further and important details.

29. [29]
    She was invited to help Renato and Robyn prepare their Wills. Renato appeared initially reluctant to do so. Ms Adam testified that she “explained to Renato 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”.

30. [30]
    Of course, this was inaccurate – the 2017 will was still operative.^[12] Ms Adam says, however, that she was not told and did not ask about any previous wills.

31. [31]
    She also said that Renato wanted to leave everything to Robyn. Importantly, when asked what he wanted if Robyn predeceased him, Renato indicated he wanted his estate to go to Robyn’s three daughters. He specifically rejected the direction of money to his sons because “[he] never [sees] them” and “they don’t care”.

32. [32]
    He then changed his mind, however, and suggested leaving his sons a property in Islander Road, Hervey Bay. Robyn expressed reservations about this, and suggested he leave them each $50,000.^[13] This suggestion proved persuasive, and he instructed accordingly.

33. [33]
    The Will was then prepared, although Ms Adam says that Renato was initially reluctant to sign it. She left but, a few hours later, was told by Robyn that Renato was ready to sign it. Upon her return, he did so.

Kathleen Smith

34. [34]
    Kathleen Smith, a retired pharmacist who had been a good friend of Robyn for more than 20 years, was a frequent visitor to the Sorati residence. At Robyn’s request, she attended there on the afternoon of 5 August 2021.

35. [35]
    Initially, she observed that Renato was “refusing to sign” his Will.

36. [36]
    Ms Smith believes that when she was there, either Robyn or Lee told Renato “that if he didn’t sign his Will, he’d die intestate and the State could get his assets”; Renato reacted poorly to this.

37. [37]
    At Robyn’s suggestion, Ms Smith returned home, but was recalled later that evening. Renato said to her “I don’t want the State to get my money”, and “Yes, let’s sign”.

38. [38]
    Ms Smith was of the view that Renato “knew what he was doing” when he signed, but allowed during cross-examination that he was “cranky” when told that if he did not sign the Will, he would die intestate. He was insistent that “the State” should not get his money, and Ms Smith confirmed that no one present suggested to him that, given that he already had a will, this would not happen.

Cognitive decline of Renato – observational evidence

39. [39]
    Observational evidence about Renato’s mental state was given by five witnesses, including the three who saw him on 5 August 2021.

Robyn Sorati

40. [40]
    As noted,^[14] Robyn says that although Renato’s physical health began to deteriorate rapidly in early 2020, “his mind was still sharp”.

41. [41]
    In particular, Robyn believes that Renato had no issues with his mental state on the day he signed his Will. She swore that he was “mentally sharp most of the time and he was sharp and alert on that day. She allowed that on occasions [Renato] had moments when he lost concentration or couldn’t remember something, and that would sometimes make him angry, but it didn’t last long, however that did not happen on the day he signed his Will”.

42. [42]
    More obvious symptoms of mental decline did not begin, according to Robyn, until some months later.

Deborah Millane

43. [43]
    Ms Millane is Robyn’s daughter; Renato’s stepdaughter. She lived nearby and enjoyed both opportunity and proximity to make regular observations of Renato. She observed that he began to physically decline “around 2020” but did not observe any decline in his mental health and awareness. His mind appeared to be as sharp as ever, and he did not appear to have any problems with his memory or concentration.

44. [44]
    Ms Millane was not physically present for the making of the 2021 will, but provided evidence about Renato’s condition around that time. She said that she “would have seen Renato either on or within a day of 5 August 2021”, and did not observe any change or deterioration in Renato’s mental health. In cross-examination, she insisted that particular issues with Renato’s mental health did not begin manifesting until late 2021,^[15] and that as of mid-2021, the only issues that she and Robyn discussed were ongoing issues relating to Renato’s aggressive and controlling behaviours.^[16]
45. [45]
    Notwithstanding evidence which suggests there may have been clues at a much earlier stage, Ms Millane said she did not notice significant changes until early 2022.^[17]

Lenore Adam

46. [46]
    In an affidavit drafted by a solicitor, Ms Adam expressed her belief that at the time of providing instructions for his Will, and at the time of signing, Renato had testamentary capacity, knew the nature and effect of his Will, knew the extent of his estate, appeared to comprehend and appreciate the claims on his estate, and did not appear to suffer from any disorder of the mind affecting his decision.

47. [47]
    In other words, Ms Adam purported in effect, to swear the issue. It is difficult to give weight to evidence adduced in this form.

48. [48]
    I can, however, appreciate the potential significance of other evidence given by Ms Adam. She said that at the time Renato made his Will, “as far as [she] could tell he was still mentally quite sharp.” He appeared to be “mentally alert” and didn’t have “any issues with his memory or concentration”. He “seemed happy” to sign the Will.

Kathleen Smith

49. [49]
    Kathleen observed that over the 20 years she knew Renato, he became “frail physically”, but “as far as [she] could tell he was still (as at August 2021) mentally quite sharp”.

Heather Weir

50. [50]
    Ms Weir is an accountant who had done work for Renato and Robyn since 2018. She met with them twice a year and prepared their tax returns. She said that most of her dealings were with Renato, and that it was clear he was in charge of their finances. About those he was well-informed, and would often argue with Ms Weir over her advice on his tax obligations. Ms Weir said Renato could be difficult at times but described him as a very switched on, strong-minded client. She reported that Renato was primarily responsible for providing the information and records she needed each year. To that end, the prepared a handwritten spreadsheet of relevant information for him, Robyn, and his businesses.

51. [51]
    Ms Weir met with Renato and Robyn on 11 August 2021, less than a week after the “Will Kit” was signed. She did not observe anything unusual with respect to Renato’s mental condition. He still had “complete knowledge of their finances, and he had prepared the spreadsheet for 2020/21…. the same as he had in previous years”. She did not observe any signs of confusion, memory loss, disorientation or delusions. It did not appear to her that he was under any sort of pressure or duress from Robyn.

52. [52]
    The spreadsheet was tendered. It supports the proposition that Renato would have known the nature, value and extent of his estate.

53. [53]
    Ms Weir also visited Renato on 15 September 2021, and did not observe any differences with his presentation.

54. [54]
    Ms Weir did acknowledge that the spreadsheet she and Renato used on the 11 August 2021 could have been progressively prepared over the preceding 12 months.^[18] She also acknowledged that the document prepared for their 11 August 2021 meeting was very similar to documents prepared for previous meetings.^[19] She agreed that she did not know Renato’s routine for preparing the document nor whether that routine was followed on this or previous occasions.^[20]
55. [55]
    It must be allowed that the final touches to the document were added after 30 June 2021, nor more than five weeks prior to the signing of the Will.

Cognitive decline of Renato – medical evidence

56. [56]
    Renato had consulted with four doctors who gave evidence about their observations.

Dr Nicholas Yim

57. [57]
    Dr Yim treated Renato on 31 August 2020. The notes from that visit indicate that Robyn raised the following concerns: “memory, can’t be left alone, poor sleep, hearing… cyclical conversation”.

58. [58]
    The note also identifies: “MMSE 22 last year – cognitive impairment”.

59. [59]
    The reason for visit is stated as “memory loss”.

60. [60]
    Dr Yim noted that the plan going forward was to have a “review with me or Dr Goldston in 4-6 weeks – Renato appears to lack insight with his potential diagnosis of dementia”.^[21]

Dr Kenneth Goldston

61. [61]
    Dr Goldston saw Renato for many years. On 30^th September 2020, Dr Goldston recorded that Renato “gets and angry and a little confused. Serious difficulties in his marriage”.

62. [62]
    On this date, a Mini Mental State Examination (MMSE) score was recorded of 24/30, which was described in the note as “mild cognitive decline”.^[22]

Dr Tobias Wade

63. [63]
    On 12 February 2021, Dr Wade was visited by Renato and Robyn. Renato had a wound and the doctor was reviewing its recovery. The consultation note prepared on that occasion indicates that the “wife worried about declining cognition”.

Dr Christopher Woollard

64. [64]
    Dr Woollard was the Renato’s General Practitioner from 24 October 2019 to 16 March 2022. As of 24 October 2019, Dr Woollard’s opinion is that Renato had no neurological issues. In “early 2021”, he could hold a conversation and he had no apparent issues with short-term memory.

65. [65]
    However, on 12 May 2021, Dr Woollard had a consultation with Renato. The clinical notes indicate that he was highly anxious when left home alone, was dreadful with time and “[did] not cope”. Renato presented as incoordinate, disorientated and confused. A MMSE was conducted, and Renato scored 24 which indicated that “mild cognitive impairment was present”.

66. [66]
    There were consultations on 18 June, 4 August and 17 August 2021. No record relevant to his cognition was made. On 31 August, when treated for constipation, he was noted, ambiguously, to be “confused”.

67. [67]
    Dr Woollard saw Renato again in October 2021.

68. [68]
    By that stage he was unable to complete a simple “clock face” exercise, and clearly was showing “signs of behavioural and psychological symptoms of dementia”.^[23]
69. [69]
    On 20 January 2022, Dr Woollard wrote a medical certificate declaring that Renato lacked decision-making capacity.

Cognitive decline of Renato - Opinion evidence

Dr Yelland

70. [70]
    Dr Yelland is a retired geriatrician with over 30 years’ experience. On 2 September 2024, she provided a report, giving her expert opinion into Renato’s cognitive state.

71. [71]
    Dr Yelland did not ever meet Renato; the report was based on a review of his medical history. She noted that there was “declining cognition and then significant behaviour problems associated with dementia from 2017 to 2022”. Extrapolating from the records, the doctor opined that it was reasonable to assume that by August 2021, Renato had cognitive impairment which impacted on his ability to function.

72. [72]
    Whilst noting that there were several difficulties with deducing testamentary capacity at the relevant time due to the paucity of evidence, Dr Yelland concluded that “there is valid concern about the validity of the Will and it is not clear whether Mr Sorati had full testamentary capacity, was fully aware of the claims that may have been made on his estate, nor of the extent of his estate”.

Dr Woollard

73. [73]
    Dr Woollard’s opinion is that there was a rapid decline in Renato’s cognitive capacity from around mid-2021, and accelerating from August 2021. Dr Woollard noted that cognition often fluctuates throughout the day.

74. [74]
    His opinion is that “it is questionable that [Renato] had testamentary capacity on 5^th August 2021”.

Resolution

75. [75]
    The Will, being rational on its face, enjoys a presumption of validity unless I find that the evidence establishes a doubt as to the existence of testamentary capacity. I do find that the evidence establishes such a doubt.

76. [76]
    The different bodies of evidence compete for different conclusions.

77. [77]
    The “observational” evidence depicts a 94 year old man who, although frail, was functioning, mentally, at a level which meant he enjoyed all of the characteristics necessary^[24] in order to demonstrate testamentary capacity.
78. [78]
    This evidence is, however, to be scrutinised with “vigilance”.^[25]

79. [79]
    That requirement arises by reason of Renato’s advanced age, declining cognition, and the fact that a person who would substantially benefit from the drawing of the Will (Robyn) had both the motive and the opportunity to exercise undue influence on him.

80. [80]
    Further, the Will did alter, to their material disadvantage, the position of the testator’s sons, who “naturally” had a claim upon his estate. The combination of these circumstances does affect the quantum of evidence necessary to establish a testamentary paper.^[26]
81. [81]
    Against that background, the limitations of the “observational” evidence are exposed.

82. [82]
    Ms Weir’s evidence does show that, when she saw Renato on 11 August 2021, he retained an important and even impressive capacity to understand a certain aspect of his finances. This was demonstrated by performance of an exercise he had undertaken repetitively over a sustained period. The import of this, however, is diluted by the impossibility of knowing the conditions under which the spreadsheet was prepared. Even allowing for the fact that part of the spreadsheet could only have been completed after 30 June, this uncertainty – about when or how the rest of it was created – limits the inferences that can be drawn about Renato’s mental state from its existence.

83. [83]
    Nevertheless, Ms Weir’s evidence goes a long way to satisfying the requirements of the second limb of the test and is relevant to the other limbs, in that it shows that Renato was functioning at a level which leaves open the possibility that, along with the capacity to understand in general terms the nature, extent and value of the estate over which he had dispositive power, he retained the other requisite capacities – and may well have done so on 11 August 2021.

84. [84]
    However, when the outward manifestations of his decline may have been fluctuating, there are difficulties with inferring, from this evidence, anything about his condition six days earlier.

85. [85]
    In other words, establishing circumstances that point to the existence of capacity on 11 August will, of itself, be insufficient for the purposes of the plaintiff.

86. [86]
    Robyn, Ms Adam and Ms Smith may well have had an honest belief about Renato’s capacity. However, it is likely that their focus was on completing a task they thought necessary, and not deferable. And whilst Ms Millane’s evidence was also, no doubt, an honest recollection as to her assessments at the time, she was not present on 5 August 2021, and could not speak to the circumstances that might have reflected Renato’s capacity on that particular date.

87. [87]
    The medical (including opinion) evidence is similarly lacking in temporal specificity.

88. [88]
    This evidence establishes a pattern of cognitive decline between May 2021 and January 2022. However, any attempt to calibrate the trajectory so as to reach a conclusion about Renato’s mental state on 5 August 2021 is made difficult by the fact that this descent was unlikely to have tracked a strict lineal path. By this stage, there is likely to have been fluctuation in his condition.

89. [89]
    There is no sufficiently contemporaneous medical observation or assessment that can, of itself, lay to rest the issue about Renato’s capacity on 5 August 2021.

90. [90]
    What this evidence does do, when viewed as a whole, is to provide a context within which it is safer to draw an inference about the absence of testamentary capacity. Such an inference can, however, be drawn only if primary circumstances justify it.

91. [91]
    And they do. Regard can be had to three in particular.

92. [92]
    There is first the fact that the use of the “Will Kit” was such a sharp departure from Renato’s standard method (involving a solicitor) of preparing a will. Of itself this is not decisive, but it is a clue that not all was as it ought to have been.

93. [93]
    Secondly, the Will that was signed on 5 August 2021 did not reflect intentions that Renato had expressed on that same day. There is no basis on which to question Ms Adam’s evidence about Renato’s instruction to the effect that his estate should go to Robyn, with her three daughters as beneficiaries if she passed away before him.^[27] The Will made no mention of Robyn’s daughters at all. The fact that such an explicit and important instruction could have been forgotten or forsaken in such a short space of time is a strong indication that Renato did not appreciate the significance of what he was doing. Whilst on one level he was no doubt aware as to the existence of Robyn’s daughters, he could not, when signing, have had an awareness of them as candidates for a claim to his estate, even though he had so recently expressed an understandable desire that they might be.

94. [94]
    Thirdly, important consequences flow from the established fact that Renato was told – without any demurrer being by expressed him, or anyone – that if he did not sign the Will he would die intestate and the State could get his assets.

95. [95]
    Renato’s apparent acceptance of this proposition demonstrates that he had forgotten about his 2017 will, even though he must have been reminded about its existence at some stage in 2020. He could not, therefore, have appreciated the real legal significance attaching to the execution of the “Will Kit”.

96. [96]
    This evidence also establishes that Renato was not, in truth, aware of those who had a claim on his estate. Even in intestacy, the State was never going to get his assets, but had Renato possessed any memory at all of his earlier will, or anything resembling true capacity, he would surely have challenged the right of the State to any such claim. The fact that he seemingly allowed its possibility tells against the proposition that capacity had been retained.

97. [97]
    It also demonstrates that when signing the Will, Renato did not “appreciate the significance of the act in law”. It can be accepted that he understood the nature of what he was doing (that is, signing a will), but if he thought that his omission to complete the exercise might send his money to the government he plainly did not understand its significance.

98. [98]
    Further, he betrayed an ignorance as to those who could have been thought to have any sort of a claim upon his estate. At the very least, he was not able to discriminate between the respective strength of the claim that the State might have as opposed to that which might have been enjoyed by his family.

99. [99]
    Given the degree of control he liked to exercise when functioning at full capacity, these failures of understanding can be attributed to his general cognitive decline.

100. [100]
     It can be accepted that, medically, the level of decline might be described as having been “mild” or “moderate” rather than “severe”. However, the attribution of such labels is of limited utility when the focus must be on the effect of the impairment when considered in the context of the test to be applied (see [12] – [14] above).

101. [101]
     This part of the evidence was self-evidently significant, and in any case was flagged strongly in cross-examination, in the written submissions of the defendant and in his closing argument presented today. The plaintiff’s written submissions did not mention it, nor was its significance addressed directly in closing argument. Upon completion of submissions, I invited senior counsel’s attention to this item, but beyond clarifying the terms of the relevant evidence, there was really nothing proffered to counter the defendant’s arguments about its potential importance. That may be because from the plaintiff’s perspective, there was little to be said about it. But for the defendant, it formed part of a powerful argument.

102. [102]
     Its presence is a bar in the way of the onus being discharged by the plaintiff, whose evidence is insufficient in quantum and quality to allay doubts about Renato’s capacity. Those doubts go beyond the “residual”, and are substantial enough to preclude a belief that, at the time the Will was signed, Renato possessed the requisite testamentary capacity. I am therefore not prepared to grant probate of the Will signed on 5 August 2021.

103. [103]
     On 31 January 2025 the parties were invited to make further submissions as to the form of orders that would reflect these reasons, and as to costs. In the result, the orders of the court will be that:

1. The Plaintiffs’ claim is dismissed.
2. The Plaintiffs are ordered to pay the Defendant’s costs of the proceeding.
3. The court pronounces for the force and validity of the copy Will of Renato Sorati made on 20 October 2017, and being Exhibit RS6 to the affidavit of scripts of Robyn Jean Sorati, which is Exhibit 3 tendered in the proceeding.
4. Subject to the formal requirements of the Registrar, the court orders that probate of the Will of Renato Sorati made on 20 October 2017 as contained in the copy of the Will that is Exhibit “RS6” to the affidavit of scripts of Robyn Jean Sorati filed on 24 October 2024 be granted to Robyn Jean Sorati as sole executor until the original Will or more authenticated evidence thereof be brought into and left in the Registry of this Court.
5. The court declares that, upon a proper construction of the 2017 Will, the 2017 Will wholly revokes all previous Wills made by the said Renato Sorati.
6. Further compliance with the requirements of r 598 of the Uniform Civil Procedure Rules 1999 (Qld) be dispensed with.