A 32-minute hospital video has become the decisive piece of evidence in a highly contested probate dispute involving a $50 million estate. In Saeedi v Pastrello and Pastrello v Saeedi (No 2), the Court placed significant weight on real-time footage of a testator giving instructions and executing his Will. The decision highlights a growing trend in succession law: where testamentary capacity is in dispute, contemporaneous video evidence can be more persuasive than retrospective medical opinions.
Background to the Dispute
Lorenzo Pastrello died in 2021 at the age of 86, leaving behind a substantial estate largely comprised of property.
While a patient in hospital in 2020, he executed a new Will. This Will marked a clear departure from his earlier 1988 Will. Instead of leaving his estate solely to his children, the 2020 will divided it into 11 equal shares:
- Two shares to each of his three children; and
- One share to each of his five grandchildren.
Two of his children challenged the validity of this Will, alleging:
- A lack of testamentary capacity; and
- That the deceased did not have knowledge and approval of its contents.
They sought instead to rely on the earlier Will.
The Critical Evidence: Hospital Video
Before taking instructions, the solicitor obtained the deceased’s consent to record their conversation. A second recording captured the Will being read back and executed.
These recordings became central to the proceedings.
The footage showed the deceased:
- Correcting factual errors, including his year of birth;
- Rejecting suggestions and leading questions;
- Independently proposing how his estate should be divided;
- Clearly identifying individuals he trusted; and
- Engaging actively in the discussion, rather than simply agreeing.
The Court considered this behaviour consistent with a person exercising independent judgment and understanding the decisions being made.
First Instance Decision
At first instance, the Court accepted that the video evidence supported a finding of testamentary capacity.
Applying the established principles from Banks v Goodfellow, the leading case concerning the test for mental capacity to make a valid Will, the Court considered whether the deceased:
- Understood the nature and effect of making a Will;
- Had a general understanding of the extent of his estate; and
- Appreciated the claims of those who might expect to benefit.
Despite a history of cognitive issues, the Court found that at the relevant time, the deceased met the legal threshold. Probate of the 2020 Will was granted.
Appeal: Capacity Confirmed
On appeal, the challengers argued the video depicted a frail and confused man.
The Court of Appeal rejected that submission. Instead, it formed the view that the deceased was:
“an elderly gentleman fully aware of what he is discussing… frequently, and most importantly, with a challenge to the subject under discussion.”
All grounds of appeal were dismissed, and the validity of the 2020 Will was upheld.
Why the Video Was So Persuasive
The Court reaffirmed that testamentary capacity is ultimately a legal question determined by evaluating all of the evidence.
However, this case demonstrates the particular strength of contemporaneous recordings. The video provided direct insight into:
- The deceased’s reasoning process;
- His understanding of his family and assets; and
- His appreciation of the effect of the will.
The Court also endorsed the principle that such recordings may be among the most compelling forms of evidence in capacity disputes.
Key Takeaways for Estate Planning
1. Video evidence can be decisive
In cases where capacity may later be challenged, a recording of the Will-making process can significantly strengthen the validity of the document.
2. Capacity is time-specific
The relevant question is whether the testator had capacity at the time instructions were given and also when the Will was signed, even if there is evidence of prior mental impairment.
3. Independent thinking is critical
Courts will closely assess whether the testator was making decisions freely and understood their consequences.
4. Process matters
The solicitor’s careful approach—avoiding leading questions, excluding beneficiaries, and reading the Will back—was influential in supporting the outcome.
A Practical Shift in Probate Evidence
The Pastrello decisions highlight a broader shift in how courts assess contested Wills. Traditional medical evidence remains important, but it may be outweighed by clear, contemporaneous evidence of a testator’s understanding.
The message is clear: where there is any doubt about capacity, taking additional steps—such as recording instructions—may help avoid lengthy and costly disputes.
DISCLAIMER
This article reflects the current law at the time of publication. It is intended for informational purposes only and does not constitute legal advice. The actual decisions in each case are summarised for general understanding. For specific legal guidance in relation to your situation, please consult with a qualified legal professional.