Brady v Mikan

[2022] NSWSC 956

Supreme Court

New South Wales

Medium Neutral Citation:

Brady v Mikan [2022] NSWSC 956

Hearing dates:

16–20 August, 8 September 2021

Decision date:

19 July 2022

Jurisdiction:

Equity - Probate List

Before:

Kunc J

Decision:

Probate to be granted of 2014 will

Catchwords:

SUCCESSION — Contested probate — Testamentary capacity — Lack of knowledge and approval — Utility of retrospective diagnosis in absence of having examined testatrix — No issues of principle

Legislation Cited:

Evidence Act 1995 (NSW)

Cases Cited:

Banks v Goodfellow (1870) LR 5 QB 549

Blendell v Byrne [2019] NSWSC 583

Boughton v Knight (1873) LR 3 P&D 64

Boyce v Bunce [2015] NSWSC 1924

Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13

Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65

Craig v Lamoureux [1920] AC 349

Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84

Estate of Griffith; Easter v Griffith (1995) 217 ALR 284

Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698

Estate Rofe [2021] NSWSC 257

Estate of Voros; Cooney v Cherry [2016] NSWSC 1603

Kerr v Badran [2004] NSWSC 735

King v Hudson [2009] NSWSC 1013

Mekhail v Hana [2019] NSWCA 197

Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275

Public Trustee v Stretch [2002] WASC 147

Romascu v Manolache [2011] NSWSC 1362

Trustee for the Salvation Army (NSW) Property Trust v Becker (2007) 14 BPR 26867; [2007] NSWCA 136

Tyrrell v Painton [1894] P 151

Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7

Watson v Foxman (2000) 49 NSWLR 315

Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116

Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67

Category:

Principal judgment

Parties:

Belinda Brady (First Plaintiff/Cross Defendant)
Vesna Crnjak (Second Plaintiff/Cross Defendant)
Tony Ilijanic (Third Plaintiff/Cross Defendant)
John Mikan (Defendant/Cross Claimant)

Representation:

Counsel:

G Smith (Plaintiffs/Cross Defendants)
S Chapple (Defendant/Cross Claimant)

Solicitors:

Shead Lawyers (Plaintiffs/Cross Defendants)
Keypoint Law (Defendant/Cross Claimant)

File Number(s):

2019/326535

Publication restriction:

Nil

Judgment

Summary

1. This judgment resolves proceedings about the estate of the late Kata Grguric (the Estate). Without intending any disrespect, in these reasons I will refer to the parties and some others by their given names.

2. Kata died on 20 March 2019. Kata had no children and was not married when she died. Kata’s family members included:

1. The Ilijanics: Barka Ilijanic was Kata’s half-sister. Barka died before Kata, on 9 February 2003. Barka was married to Vladimir (Vlado) Ilijanic. They had three children, Tony Ilijanic, Vesna Crnjak and Belinda Brady, who are the Plaintiffs and cross defendants in these proceedings (together, the Plaintiffs).

2. The Mikans: Josip Mikan was Kata’s brother. Josip died before Kata, on 1 June 2016. Josip was married to Katy Mikan. They had three children, John Mikan, Robert Mikan and Paul Mikan. John is the defendant and cross claimant in these proceedings.

3. Kata made at least eight wills between 1998 and 2014, including on:

1. 31 March 1998;

2. 22 October 2003;

3. 24 November 2009;

4. 16 March 2010;

5. 27 October 2011;

6. 10 January 2012;

7. 12 February 2013; and

8. 18 August 2014.

4. As will become apparent in what follows, those wills demonstrate an overall pattern of Kata moving the focus of her testamentary bounty from the Ilijanics to both families and finally to John Mikan alone.

5. The Plaintiffs’ Further Amended Statement of Claim filed on 24 August 2020 sought:

“1 An order that probate of the Will dated 12 February 2013 of the late Kata Grguric who died on 20 March 2019, late of Chatswood (“the deceased”) be granted to the Defendant in solemn form, the other instituted executor Josip Mikan having predeceased on 1 June 2016.

2 Order, that in the alternative, the Defendant is estopped from denying the Plaintiffs’ claims that they are entitled to the net proceeds of the sale of the deceased’s interest in each of the properties the deceased co-owned with them.

2 [sic] Order that the Defendant file and verify his accounts in respect of his ‘inter vivos’ administration and management of the estate of the deceased.

…”

6. By an Amended Cross Claim filed on 25 September 2020, John sought:

“1 Order that probate in solemn form of the will dated 18 August 2014 of the late Kata Grguric (the “deceased”) be granted to the Cross-Claimant, John Mikan.

2 In the alternative, order that probate in solemn form of the will dated 12 February 2013 of the deceased be granted to the Cross-Claimant, John Mikan. …”

7. It was common ground between the parties that if the will of 18 August 2014 (the 2014 Will) is not admitted to probate, the Court should admit the will of 12 February 2013 (the 2013 Will). The 2014 Will leaves everything to John. The 2013 Will leave 60% of her estate to be divided between her 6 nephews and nieces (i.e. both the Ilijanic and Mikan sides of the family) with the balance to her brothers (5% to each of Juraj and Iva in Croatia and the residue to Josip).

8. The Plaintiffs impugn the 2014 Will on the basis of:

1. Lack of capacity;

2. Lack of knowledge and approval;

3. Undue influence (in both the probate and equitable senses); and

4. Proprietary estoppel.

9. For the reasons set out below the 2014 Will should be admitted to probate. The Court’s reasons can be summarised as:

1. Primarily by reference to the attesting solicitor’s contemporaneous file note, but fortified by his and his paralegal’s other evidence, Kata had testamentary capacity when she made the 2014 Will.

2. Although some suspicious circumstances were present, the evidence referred to in the preceding paragraph satisfies the Court that Kata knew and approved the contents of the 2014 Will and that she had not been the subject of undue influence.

3. The Plaintiffs have not made out any proprietary estoppel. If any relevant representation was made, there was no relevant reliance or detriment. The Plaintiffs accepted in their evidence that Kata was always free to sell the relevant properties and to change her will.

10. Mr G Smith of Counsel appeared for the Plaintiffs. Dr S Chapple of Counsel appeared for John.

The facts

11. I begin by setting out the Court’s chronological findings of fact. While there were many matters about which the parties disagreed, the essential facts were for the most part not in dispute, not least because much appeared from contemporaneous documents that could not be seriously disputed. To the extent that any other facts set out below were not agreed by the parties, I am satisfied that they could not be sensibly disputed.

12. I gratefully acknowledge that some of what follows reproduces the extensive history conveniently set out in Dr Chapple’s written submissions.

Kata’s move to Australia

13. Kata was born in 1931 in Croatia. She had four siblings who lived to adulthood:

1. Josip Mikan, Kata’s brother, who moved to Australia in 1960.

2. Juraj Mikan, Kata’s half-brother, who lives in Croatia.

3. Iva Mikan, Kata’ half-brother, who lives in Serbia.

4. Barka Ilijanic, Kata’s half-sister, who moved to Australia in 1968.

14. In 1970, Kata moved to Australia. After her arrival in Australia, Kata lived with Josip and his young family for around 10 years.

15. Kata was a hard worker and worked more than one job at a time. Among other things, she worked in a sewing factory in Willoughby, as a cook at Willowood Nursing Home, and at North Sydney Memorial Club.

16. In around 1980, Kata moved to live with Barka and Barka’s husband Vlado, shortly after their youngest child, Belinda, was born. Kata did not pay rent or board initially. Barka and Vlado worked full time, and Kata was responsible for caring for the children, preparing their meals, taking them to school, cleaning, gardening, and making dinner during the week. When she was not assisting in the Ilijanic household, she worked as a cleaner each weekday evening, and on Saturdays.

Kata’s properties

17. Kata did not spend much money on herself. Kata saved and liked to invest her savings in real estate. She avidly followed the real estate section of the local paper each week. During the time that Kata was living with the Ilijanics, she purchased and sold various properties with them, including:

1. Eddystone Road, Bexley. This property was purchased in 1979. In 1988, Barka and Vlado purchased Kata’s share for $61,000.

2. Inverness Avenue, Penshurst. This property was purchased in 1980 and sold in 1994.

3. Milsop Street, Bexley. This property was purchased in 1987 and sold in 1998.

18. Each of these properties was purchased in partnership between Vlado, Barka, and Kata and there were no restrictions on Kata’s ability to deal with those properties. Vlado’s evidence was that Kata was entitled absolutely to her share of the proceeds of sale of each property, and was free to use that money as she wished.

19. Kata purchased other properties as the sole owner, including at Tasman Road, St Georges Basin.

20. While Kata lived in the Ilijanic home, Vlado had a degree of oversight over Kata and her finances. Vlado managed each of the properties that Kata purchased and collected the rent. He kept the books of the partnership, and was responsible for filing the partnership return each year. He assisted Kata with the preparation of her tax returns, but insisted he was not qualified to give her tax advice. He would pay Kata’s bills from money she gave him.

21. In addition, Vlado was responsible for safeguarding Kata’s important documents, including her wills, her passport and Certificates of Title, which he kept in a secure metal box in a locked cellar. When Kata wished to access a document, she would generally ask Vlado to get it for her. Similarly when she wished to deposit a document, she would provide it to Vlado to store.

22. In the early-mid 1990s, Kata purchased three properties in partnership with the Plaintiffs (the Three Properties).

23. In 1991, Kata and Tony purchased Iliffe Street, Bexley (Kata and Tony’s Property) for approximately $161,000. Tony was then about 20 years old. Kata and Tony were registered proprietors as tenants in common in equal shares. Vlado and Tony shared the collection of rent from Kata and Tony’s Property. When Tony qualified as a Chartered Accountant, he took over the management of the property from Vlado. Tony’s evidence was that while he could not recall any specific conversations, there had always been a “family understanding” that Kata’s interest in any co-owned property would pass to the co-owner.

24. In 1995, Kata and Vesna purchased St Vincents Road, Bexley (Kata and Vesna’s Property) for $230,000. Vesna was then about 21 years old. Her evidence was that Kata had said “I will leave my share of the property to you when I pass”. Kata and Vesna were registered proprietors as tenants in common in equal shares. From 1995 to around 2008, Vlado collected all the rent from Kata and Vesna’s Property on behalf of Kata and Vesna. When Vlado was on holidays, Vesna collected the rent. Vesna (also a Chartered Accountant) prepared the partnership tax return each year, and provided the relevant figures to Vlado, who prepared Kata’s tax return. From 2009, an agent collected the rent.

25. Tony and Vesna’s evidence was that they paid their share of the purchase price for the properties they owned with Kata. Dara Ilijanic’s evidence was that from the time of purchase, Kata complained that she had contributed more than her share. Dara is Vlado’s sister-in-law and was the only member of the Ilijanic family to give evidence in John’s case (i.e. on the Mikan side of the dispute).

26. In 1995, Kata, Vlado, Barka and Belinda purchased the property at Gloucester Street, Bexley (Kata and Belinda’s Property) for $212,000. Belinda’s evidence was that Kata had said “I’ll leave my shares of the properties to each of you after I die”. Kata, Belinda, and Vlado and Barka were registered proprietors as tenants in common as to 50 per cent, 30 per cent and 20 per cent, respectively. At the time, Belinda was 15 years old. Belinda’s $60,000 portion of the purchase price was paid by her parents. Belinda later acquired her parents’ 20 per cent interest.

27. In May 1993, Kata also purchased a villa located at Eddystone Road, Bexley (the Villa). Kata was the sole registered proprietor of the Villa.

The 1998 Will

28. On 31 March 1998, Kata made a will with the assistance of Needs, Chan & Monahan and witnessed by Mr Cyril Chan (the 1998 Will). She appointed Josip, Barka and Vlado as her executors and trustees. The 1998 Will gave:

1. Kata’s interest in Kata and Belinda’s Property to Belinda;

2. Kata’s interest in Kata and Vesna’s Property to Vesna;

3. Kata’s interest in Kata and Tony’s Property to Tony; and

4. The residue of the Estate to Josip, Iva, Juraj, Barka, and Vlado in equal shares.

29. In 1999, Barka was diagnosed with cancer and stopped working. Kata began contributing $100 each fortnight to the household expenses.

Barka’s death and the 2003 Will

30. Barka died on 9 February 2003. In or around August 2003, Vlado began a new relationship with Barka Knez. Ms Knez was a family friend who came from the same village in Croatia as Kata and Vlado. It seemed to Vlado and the Plaintiffs that Kata got along with Ms Knez. However, Kata’s attitude towards Vlado — at least as she presented it to the Mikans — appears to have deteriorated. The evidence of various family members to this effect (John, Katy Mikan (Josip’s widow), Dara Ilijanic) is consistent with the instructions that Kata provided to Mr Chan on 17 October 2003, when she met with him to make a new will.

31. Mr Chan’s file note of the meeting records:

“Attended Ms Grguric

Her sister Barka died on 9.2.03

She no longer trusts her brother in law Vlado as he already has a new girlfriend

She is still residing in … Eddystone Rd (owned by Vlado + Barka) only to keep her niece company

She has place[d] her name on a waiting list for a unit in Croatian retirement village in the St George area

We to prepare new will excluding Barka + Vlado”

32. Kata executed the new will on 22 October 2003 (the 2003 Will). She appointed Josip and Belinda as her executors and trustees. She devised the same properties to each of the Plaintiffs, but removed Vlado and Barka as residuary beneficiaries of the Estate. Her three brothers, Josip, Iva and Juraj, remained residuary beneficiaries.

Kata’s move into the Villa

33. Early in 2005, Kata moved out of the Ilijanic home and into her Villa. From that point onwards, she saw and spoke with Josip, Katy and John more frequently.

34. After Kata moved into the Villa, Vlado returned to Kata the documents that he had been storing for her, including a copy of her will (presumably this was the 1998 will), her passport and the Certificates of Title to her properties in her sole name. Vlado retained custody of the Certificates of Title relating to the properties that she owned with Vesna, Belinda and Tony.

The 2009 Will

35. A medical record dated 18 June 2008 from Kata’s GP at the time, Dr Verma, mentions Kata being “very forgetful … otherwise ok”. A record from 10 July 2009 states “Very dizzy, legs improving. Dementia … otherwise ok”. Subsequent entries on 15 and 17 July 2009 record that “Brain Scan shows age related changes … otherwise ok” and that Kata was “[w]orried about the Brain, explained to her … otherwise ok.” However, matters such as “dementia” and “brain” are not mentioned in notes for her visit in July and August 2009.

36. There is a suggestion in a file note of Mr Chan that Kata executed a new will on 17 November 2009, but no copy of that will has been found. Kata executed a further will on 24 November 2009 prepared by Needs, Chan & Monahan (the 2009 Will). The 2009 Will was in the same terms as the 2003 Will. Mr Chan’s file note records:

“Attended Ms Grguric.

Her brother Josip Mikan took her to an office in the city and got her to sign some document on 17-11-2009. He said the document was a will but it was not explained to her.

She does not wish to change the will held by us and has instructed us to prepare the same will so that she could sign it again.”

37. Vlado’s affidavit evidence was that Kata gave him a copy of the 2009 Will (although why she should do so was unclear) and that he was disappointed with her. In cross-examination he said he told Kata that he felt she had “cheated” his late wife (Tcpt, 16 August 2021, p 72(43)).

The 2010 Will

38. By 2009 or early 2010, Kata began speaking to the Mikans about her desire to sell the Three Properties.

39. A medical record for Kata from Dr Verma’s practice as at 11 March 2013 records under “past medical history” that an active condition of Kata’s in 2010 was: “Cognitive impairment – Likely Vascular”. For 2011 it records “osteoporosis”.

40. On 16 March 2010, Josip drove Kata to meet with a new solicitor, David Alexander, a partner in Goldrick Farrell Mullan. Kata and Mr Alexander met alone. Kata made a new will at the meeting which was witnessed by Mr Alexander (the 2010 Will). Kata appointed Josip alone as her executor, and divided the Estate:

1. 10 per cent to each of the three Ilijanic children (the Plaintiffs), Iva and Juraj.

2. 50 per cent to Josip.

41. Kata also executed a Power of Attorney appointing Josip as her attorney. Josip signed his acceptance on the same date.

42. In February 2011, Kata and Belinda attended the offices of John Orford, solicitor. Mr Orford was Vlado’s solicitor. Kata executed a Power of Attorney in favour of Belinda and appointing her as an Enduring Guardian. There was a suggestion that she may also have executed a will, but no copy of any such will was found. John’s evidence was that Kata complained to him that she had been “forced” to sign those documents.

43. In early April 2011, Kata met again with Mr Orford and gave instructions that she wished to revoke the appointments that she had previously made. Kata ultimately withdrew those instructions after a lengthy meeting on 12 April 2011. A letter from Mr Orford to Kata of that day confirms that Kata took with her that day the signed Power of Attorney and appointment of Enduring Guardian.

44. While Belinda and Vlado were on holidays overseas, Kata attempted to visit Mr Orford again on 29 April 2011. On her way there, she was involved in a car accident as a pedestrian. She suffered serious injuries, including a fractured tibia and fibula. These injuries led to long-lasting leg pain. Kata was in hospital (including for rehabilitation) until 18 July 2011. A report from St George Hospital printed on 3 August 2011 records “dementia” as part of her background history without further comment. It recommends she have “a period of rehab to get back to her usual self … mental health review in rehab for her temporary low mood”.

The family meeting of 29 September 2011 and proposed sale of Kata’s joint properties with the Plaintiffs

45. On 12 August 2011, Kata underwent a Calvary Rehabilitation and Geriatric Services (CRAGS) ACAT assessment. The CRAGS assessment records that Kata had been diagnosed with anxiety, short term memory problems, hearing loss, heart disease, high cholesterol and leg pain. No diagnosis of dementia is referred to and the possibility of a dementia care package has not been checked on the form. The options that were approved were for low level residential and respite care and for a community aged care package at home. Checked boxes in the cognitive behaviour section indicate that Kata “regularly” has short term memory problems, “never” has long term memory problems, and “occasionally” has disturbed sleep or insomnia and confusion. The assessment notes that Kata is “alert and responsive”.

46. On 31 August 2011, Kata underwent a rehabilitation review. The doctor wrote a letter to Dr Verma on 5 September 2011, which included:

“… She has Meals on Wheels seven days a week. Her niece helps her with housework, e.g. cleaning and laundry.

She is not able to remember what medications she takes, but apparently there has not been any significant change since discharge from hospital.

On examination, the MMSE score is 18/29. She is not able to write a sentence in English due to her Croatian background. She has significant impairment in orientation to time and place, as well as short-term memory. … [the doctor then summarises Kata’s leg injury and mobility issues] …

Impression: Cognitive impairment, # L tibia and fibula as well as degloving injury of R ankle.

Management Plan:

1.   Continue Transitional Aged Care Service;

2.   Could you kindly refer her to the Cognition Clinic at Calvary Hospital for cognitive assessment and she may benefit treatment [sic] for dementia?

3.   I shall arrange for her to have a neuropsychology assessment at CRAGS;

4.   She will require community service and Meals on Wheels after TACS finishes;

5.   I would like to review her in November 2011.”

47. Following her accident, Kata asked John to help her to negotiate with the Plaintiffs to sell the Three Properties. She told John she wanted her money in the bank.

48. John raised this issue with Belinda and Vesna after a carer’s meeting at Kata’s Villa on 29 September 2011. Belinda and Vesna were opposed to the sale of the Three Properties. Both Belinda and John’s evidence was that during the discussion, Kata nodded at John to continue. The conversation ended when John said: “If you don’t do what Teta Kata wants I will end up selling her half for her and you will be stuck with a strange owner after that.”

49. After that meeting, on the same day, Belinda called Needs, Chan & Monahan and made an appointment for Kata to attend the following day. The appointment was cancelled after Kata told Belinda she did not want to go because she felt unwell. These facts are corroborated by brief notes in the Needs, Chan & Monahan file

50. Belinda had a conversation with Kata the following day (30 September 2011). Belinda stated that it was not clear to her from that conversation whether or not Kata actually wished to sell the properties.

51. Shortly after that meeting, Belinda contacted Tony. He then had a telephone conversation with Kata about her intention to sell the Three Properties. Kata explained that she wanted to sell the Three Properties because she needed “cash for the nursing home”. Tony’s evidence is that he tried to explain to her that she did not need to sell the Three Properties.

52. On 1 October 2011, Tony sent an email to Belinda and Vesna, which enclosed a draft email to John. Tony’s email to his sisters read:

“Dear sisters

Based on the recent discussions I think it is necessary for me to send the below email directly to John Mikan to clarify my position. I think you should also approach him individually to clarify your position, and make it clear that if he wants to get involved, he is not dealing collectively as one with us, but there are three different people that he has to deal with and spend time on, separately, if at all. Please review, discuss between ourselves and Teta before I send to him. I will send a separate email on how I think proceeds should be handled if there is an eventual sale of property to you (not John)”

53. The draft email to John was never sent, on advice from Vesna and Belinda that it would only inflame the situation. The draft email included:

“… as I believe you are aware of, I own a property with Teta Kata. I understand that you have initiated and entered into discussions on the transfer in ownership of this property.

As an owner in this property, I am not aware of any immediate intention to transfer this property, nor have I received any communication or agreed as such.

I also do not quite understand in what capacity you are acting in initiating and involvement in this discussion on my property.

I believe it is necessary to clarify the situation. This property was acquired some time ago with Teta Kata. A mutual agreement at the time of purchase and which is still enforce [sic] is that in the case of any unforeseen event related to Teta Kata, her share of the property or proceeds from the sale of property would revert to me. I believe, Teta Kata, if she is still of sound mind, will also be able to confirm this arrangement and agreement. …”

54. After his telephone conversation with Kata, Tony drafted a document (Tony’s Document). His evidence was that he did not discuss it specifically with Kata. Vesna’s evidence was she also did not discuss it with Kata. Tony’s affidavit evidence was he drafted the document “to try and understand and confirm what had been the family understanding all along, and my understanding of that and as to what should be done if the properties were going to be sold contrary to that agreement and understanding”.

55. The document was written in parallel columns in English and Croatian and provided (the text appears as translated with grammatical and other errors included):

“My statement related to my property with shared ownership.

1.   I, Kata Grguric, wish below is clear to all who may question me. I allow my nieces; Belinda Brady (maiden name Ilijanic), Vesna Crnjak (Maiden name Ilijanic) or nephew Tony Ilijanic, to show this document to anyone whom they believe needs to be explained my decision.

2.   I Kata Grguric, immediately want documents and contracts made or changed by a solicitor to complete my wishes below and for my signing.

3.   If possible, the documents and contracts should be made so nothing can be changed in the future or complained against by any other third persons.

4.   My wish is that upon my death, my whole share in each of the three properties that I jointly own with Belinda Brady (Maiden name Ilijanic), Vesna Crnjak (maiden name Ilijanic) and Tony Ilijanic, is given totally to them.

5.   Belinda, Vesna and Tony would get my whole share of the property I jointly own with each of them.

Belinda gets my share in … Gloucestser St Bexley, NSW, Australia;

Vesna gets my share in … St. Vincent St. Bexley, NSW, Australia;

Tony gets my share in … Iliffe st Bexley NSW, Australia.

6.   Before going into the partnership for purchase of each of these three properties, I promised and made a commitment to Belinda, Vesna, and Tony, and their parents, that when I die, my share of each property would be left to Belinda, Vesna, and Tony.

7.   I have on many times repeated this promise and wish, to each of Belinda, Vesna, and Tony, their parents and especially to their mother (my sister, Barka) while she was alive.

8.   I wish for this paper to make sure that this promise of long time standing is clear to anyone that may question it now or in the future.

9.   This is a promise I have made to each of them and I do not plan to break this promise for any reason.

10.   Should my share in any of the above properties be sold at any point during my life, I want the net proceeds from my share of the sale to be save and to be given proportionately to Belinda, Vesna and Tony upon my death.

11.   During my life, I want the net proceeds from any sale of my share in the above property to be put into a special separate account for Belinda, Vesna and Tony.

12.   I want the account to be made to ensure Belinda, Vesna and Tony are protected from anyone else.

13.   I want the net interest earned (after taxes, fees and all other costs related to the operation of this account) on this special separate account, to be given to me, Kata Grguric, during my lifetime.

14.   I want to be able to withdraw and borrow cash from this account, if I need to pay for medical costs and nursing home costs, and only if I do not have enough other cash and assets to pay for these costs.

a.   I would take money out of the account and return it back to the account when able to.

b.   At the end of my life, all amounts taken out of the account and not returned during my lifetime would be returned to the account from my remaining estate assets and cash upon my death.

15.   During my lifetime, no other amounts can be withdrawn, by anyone including me, except for my share of net interest (after taxes, costs, and fees related to the operation of this account), and my borrowing of monies which I will and want to return during my life or upon my death.

16.   Upon my death all remaining amounts in this account and including rights to amounts borrowed out of the account by me, are to become only the ownership of Belinda, Vesna and Tony, shared proportionately among them, and will be immediately freely available to Belinda, Vesna and Tony, to access their proportional share of the amounts and rights.”

56. The document also contained an execution clause for Kata to sign.

57. Belinda’s evidence was that she went through the document with Kata, but that (Tcpt, 16 August 2021, p 99(4–7):

“… I thought this document was far too complicated for her. Like, it was so much detail, and while it was professional and probably well put together, I don’t actually – I think it was just far too detailed and complicated for what she was actually intending.”

58. Following that discussion, Belinda made an appointment for Kata to attend Needs, Chan & Monahan on 5 October 2011. Notwithstanding her evidence in the preceding paragraph, Belinda took Tony’s Document to that appointment.

59. An undated handwritten note was tendered by Dr Chapple during his cross-examination of Vlado. Vlado identified it as being in Kata’s handwriting. I include the English translation of it at this point in the narrative because it appears to deal with her wish to sell the Three Properties. It was written in Croatian with phonetic references to the Villa and the Three Properties:

“Kata Grguric

Vila 1/11/15 Ediston Rod

Bekslt/ [phonetic spelling for Eddystone Road, Bexley]

I arrived in Australia on 17/7/1970

came to my brother Joza and was living at his place

and working from dawn until 7 days a week

from early in the morning until late in the evening

I always thought better to have

so that no-one has difficulties with me

and now the end is near and death needs to be fixed too

while still able

to make it easier for myself and my brothers and Family.

Kata

I would like to sell the houses

and put in the bank in my account

to keep everything in bank’

have everything ready when I need

when I need to go to hospital

or a nursing home=

2

Vlado says where are you going

to put the money from the houses

I said in the bank in my account

he says that the house money needs now’

to be made out to Vesna Belinda Tony

and Tony and me to spend the money

that I have from before

ken please rent

from Ajlef glosta sanvinces [phonetic references to Ilife St, Gloucester St and St Vincents Rd]

half in my account in my bank /

and Vesna’s

half to Tony Ajlef

half to Vesna sanvices /

half to Belina glosta

ken please my money

in my name and address please my

please ken”

The 2011 Will

60. On 5 October 2011, Belinda and Kata attended a meeting with Mr Chan and Paul Lee, another solicitor at Needs, Chan & Monahan who was preparing to take over Mr Chan’s clients.

61. Mr Lee recorded in a file note:

“- Mrs Kata Grguric & niece Belinda Brady came to office

- produced a document in English & Croatian language which Belinda said was prepared according to wishes of Mrs Grguric. Doc. was to confirm her wishes re will and 3 properties that Grguric had promised to give

- we need to consider the document (the part in English), then to arrange another meeting with client.

Also to re-draft will (previous 24 Nov 2009) for client approval.”

62. Following that meeting, either Mr Lee or Mr Chan prepared a draft will. On 14 October 2011, Mr Lee emailed to Belinda a letter to Kata enclosing the draft will. On 16 October 2011, Belinda responded:

“Hi Paul,

I have printed and highlighted the changes made to points 3, 4 and 5.

I gave a copy to Kata and explained the changes to her and she said she is happy with it.

Her concern is that if the properties are sold she wants to be able to access the money if she needs it in her lifetime. I have reassured her that nothing in this will prevents her from doing so but I think she may need further reassurance before she signs it.

Something which I noticed is that it says “amount equal to the price or value they are sold or disposed”. I think it may be worth stating that it should be the net value of proceeds i.e. after selling costs and associated taxes. I don’t think that this is implied by what is written. I anticipate that there will be agent commissions and capital gains taxes relating to these properties so it does not seem right that they can be taken from the other part of her estate left to other beneficiaries. I explained this to Kata and she also agreed.

Regards,

Belinda”

63. Kata had a further meeting with Mr Chan and Mr Lee on 27 October 2011. Mr Lee’s file note indicates the meeting went from 12.10pm to 1.05pm and records:

“- Attend meeting K. Grguric & niece Belinda

- Read draft Will

and Document of ppty share & payment

- Kata can read Croatian/some English

Document prepared by Belinda’s brother — O.K.

- Will, [Cyril Chan] explained amended draft again

v. long discussion

- Signed Will

Witness Cyril Chan & Paul Lee

N.B. Document of explanation NOT signed

- We kept Will

Copy to client + Belinda”

64. Mr Lee’s evidence in cross-examination was that Belinda would have been present for the entire meeting, because she was required to interpret. Belinda’s evidence was that she drove Kata to the meeting, but that she had her young daughter with her that day and did not recall sitting in on a lengthy meeting.

65. The will Kata signed during the meeting on 27 October 2011 (the 2011 Will) was in similar terms to the 2009 Will. It appointed Josip and Belinda as executors, gave Kata’s share in the properties she owned with each of the Plaintiffs to the co-owner, and left the residue to Josip, Iva and Juraj. Unlike the 2009 Will, the 2011 Will provided that if the properties Kata owned with the Plaintiffs had been sold, the co-owner would receive a cash legacy equivalent to her share of the properties.

66. Kata did not execute Tony’s Document, which was in both English and Croatian. Mr Lee’s evidence was that he and Mr Chan did not ask Kata to sign the document because they had not explained it to her.

67. Kata was seen by a specialist in geriatric medicine on 31 October 2011, who wrote a letter to Dr Verma which included:

“Kata was complaining of persisting mild right ankle pain however she mobilised with four wheel frame independently and without significant distress or discomfort. It was unclear what analgesics she is taking as she did not bring her medications with her today.

The second issue was cognitive impairment. Her MMSE was 20/30. I noted that she had a diagnosis of dementia in 2010. It was unclear whether she had seen a specialist, had any investigation to her memory impairment and progression. Today Kata displayed lack of insight to her memory impairment, was unable to tell me her medical background apart from her car accident and was unable to tell me what medications she takes. She reported being independent with her ADLs [Activities of Daily Living] and reported managing “without” the assistance of community services. She reported managing her bills, cooks and shops on her own. …

Plans:

1.   I would like to contact her niece to obtain history regarding her cognition.

2.   I would like to review Kata in the clinic in January with her medications and her niece

3.   Await neuropsychiatric assessment.”

68. The Court was not taken to any evidence to show whether or not any of the “plans” were acted upon.

69. Kata had a further appointment to see Mr Chan and Mr Lee on 3 November 2011. On 1 November 2011, Vlado called the offices of Needs, Chan & Monahan and left a message that Kata would be unable to attend the appointment. He also stated that he had a question that he needed to ask. Mr Lee returned Vlado’s call. Mr Lee made a note of the call and agreed in cross-examination that the conversation was, in substance, that Vlado had a question about whether Kata had a Power of Attorney, how to find out if she had a Power of Attorney and, if she did, how that Power of Attorney could be cancelled or revoked. Following that call, Mr Lee arranged for the relevant searches to be performed.

70. On 15 December 2011, Kata attended the offices of Needs, Chan & Monahan without an appointment. Kata told Mr Chan that she wanted to talk to him about changing her will but Mr Chan was unavailable to meet with her. Mr Chan asked her to come back at 12.00pm the following day. Mr Chan’s handwritten file note records that Kata did not attend on 16 December 2011.

71. On 3 January 2012 Kata called Needs, Chan & Monahan and made an appointment with Mr Chan for 11 January 2012.

72. In December 2011 or early 2012, Kata and Tony’s Property was sold and Kata received half of the net proceeds of sale.

The 2012 Will

73. On 10 January 2012, the day before her appointment with Mr Chan, Kata met with Mr Alexander of Goldrick Farrell and Mullan again. There was no specific evidence as to whether Kata came by herself or whether a family member brought her. Kata said to him that “[a]nother lawyer did a will for me but it is not what I want”. She instructed him to prepare a will that was in the same form as the 2010 Will: appointing Josip as sole executor, giving 10 per cent of the Estate to each of the Plaintiffs, Iva and Juraj, and 50 per cent to Josip. Kata then executed that will (the 2012 Will) which was witnessed by Mr Alexander and his Croation speaking paralegal Ms Fran Music.

74. It is likely that Kata did not keep her appointment with Mr Chan on 11 January 2012. No file note of any such meeting was produced by Needs, Chan & Monahan.

The meeting between Belinda and Paul Lee on 27 February 2012

75. On 27 February 2012, Belinda attended the offices of Needs, Chan & Monahan without Kata, to meet with Mr Lee. Belinda’s evidence was that she was concerned about Kata’s mental state and that she wanted to warn Mr Lee that if Kata came to see him again, a capacity test may be required. Mr Lee’s file note of the meeting records:

“- Meeting with Belinda Brady

- Kata seems unstable emotionally

Sold investment ppty (through J Orford)

- [Kata and Tony’s Property] – sold – divided

[Kata and Vesna’s Property], for auction – auction

[Kata and Belinda’s Property] – with Brady not sold yet

- Belinda concerned Kata may act out of emotion/give away money/asset

- Need medical assessment

PA authority/tell bank

Caveat on title”

76. At some point following that meeting, Belinda and Vesna must have agreed to sell the properties they owned with Kata. Kata and Vesna’s Property was sold in March 2012 for $735,000. Kata and Vesna each received half of the net proceeds of sale. Kata and Belinda’s Property was sold in October 2012 for $685,000. Kata and Belinda each received half of the net proceeds of sale.

The 2013 Will

77. On 12 February 2013, Kata again met with Mr Alexander. Josip and Katy took Kata to the appointment, but Mr Alexander took instructions from Kata in their absence. Mr Alexander recorded in a file note:

“Attending on client in consultation with her brother and her sister-in-law.

Discussed the Will. She said she had sold the properties mentioned in her old Will and had invested all the money.

She said she wanted to change the Will to make provision for all her nephews and nieces and to leave the residue of her estate to her brother. She said she still wanted to leave 5% to her two half brothers who live in Croatia and Serbia

Discussed and read the Will with her.

Will prepared and signed.

She informed me that she was now looking at some retirement villages in Willoughby and Chatswood to enable her to be closer to her brother who is helping her with her every day affairs. She also informed me that she had a Power of Attorney with her niece Belinda and that she may want to cancel that when she eventually moves into the retirement village.”

78. In addition to his file note, Mr Alexander’s independent recollection was that Kata told him that she had sold the properties mentioned in her previous will and invested the money. She also said that Josip was helping her with whatever she needed, so she wanted to move into aged care closer to him and cancel Belinda’s power of attorney.

78. The will Kata executed on 12 February 2013 (the 2013 Will) appointed Josip as her executor with John in substitution and divided the Estate:

1. 10 per cent to each of the three Ilijanic children (the Plaintiffs) and the three Mikan children (John, Robert, and Paul);

2. 5 per cent each to Iva and Juraj; and

3. Residue to Josip.

80. Around March 2013, Kata underwent a medical assessment for a personal injury claim relating to her accident in 2011. The letter written by the assessing physician to the insurer dated 12 March 2013 includes:

“I note a letter from Dr Verma dated 20 April 2013 noting that CT scan of the head on 8 February 2013 demonstrated chronic small vessel diseased.”

81. The letter records that the physician saw Kata in the presence of Josip, Katy and an interpreter. It sets out her history and states “the following history is as related to me by Ms Grguric unless otherwise stated”. It also states “Ms Grguric was cooperative with the examination. There was no embellishment of complaints”. While it may be assumed Kata recounted her medical history through the interpreter, the letter gives no suggestion that Kata was inhibited by any mental impairment, notwithstanding that the author lists “cognitive impairment – likely vascular” under her past medical history.

Kata’s move to St Paul’s

82. In about mid-2013, Kata was finding it difficult living by herself. On 10 September 2013, Kata moved to St Paul’s in Northbridge, a low care residential aged care facility. Belinda, John and other family members visited Kata regularly at St Paul’s.

83. Progress notes from St Paul’s record:

13 September 2013, 2.30pm: “Resident was showered buy [sic] herself at 6am, assiste[d] her with bed making and changing towels.”

14 September 2013, 6.20am: “Alert but bit confused. Awake since 5.10am. Wandering in room. Room temperature adjusted with the air con. Refused having any tea or coffee but had a banana. Overall nil issues.”

21 September 2013, 6.30am: “Awake early @ 4.30 in the morning and trying to organise her room as well as take shower. Resident seems quite confused.”

21 September 2013, 10.00pm: “Resident was supervised and prompted this evening when required

27 September 2013: “Kata was showered in the evening. Only assistance given is [support].”

84. On 19 September 2013, John emailed Belinda to say: “I think Teta Kata is apparently trying to contact you to tell you that she doesn’t have enough clothes with her.” Belinda replied:

“How frustrating, I speak to her every day and she’s never mentioned it, said everything is fine. I just got back from spending the afternoon with her so I’ll pick some up when I’m in the area next.”

85. An ACAT assessment was completed on 1 October 2013, which identified Kata as “an alert and communicative lady”. It records that Kata had been diagnosed with leg pain, heart disease, high cholesterol, anxiety and hearing loss, but does not include short term memory loss or dementia on her list of diagnosed disorders. Checked boxes record that Kata “regularly” had short term memory problems and “occasionally” had disturbed sleep, depressive symptoms, confusion and disorientation about places and other people. The accompanying comments state:

“Mrs Grguric has difficulty with recall when anxious. She has disturbed sleep when in pain. Pain medication is required. She may have low mood when socially isolated. Her pain level and level of tiredness impacts on her potential for confusion. She responds to encouragement to reduce anxiety.”

86. The assessment also records that Kata requires “standby assistance” for personal care but that she attends to her personal hygiene herself. She requires encouragement “to reduce the potential for anxiety” and would benefit from mobilisation assistance when away from home. Kata was recommended for entry to low level residential respite care and low level residential permanent care.

87. On 4 October 2013, Belinda emailed John about Kata’s ACAT assessment. She included:

“I will ask for your help and suggest that we both be there with Teta [Kata] to finalise the paperwork and funds. She seems to give a different story to each member of the family and it creates unnecessary stress on us all when we are trying to help her.”

88. Subsequent progress notes from St Paul’s record:

9 October 2013, 12.15pm: ““Resident was supervised for her ADLs this morning. Went to dining for her breakfast. Resident seemed confused most of the time. Difficulty in finding her way back to her room, needs to be assisted every time to the dining + then back to her room. Reassurance given most of the time.”

13 October 2013, 2.45pm: “Resident was supervised this morning for the shower and dressing. Very confused and forgetful all the time. Reminded her all the time what need to do next after breakfast. Reassurance given most of the time. Need assistant [sic] to dining room and walk back to her room.”

89. An Aged Care Funding Instrument (ACFI) cognitive skills checklist from 15 November 2013 records Kata’s level of impairment as “mild”, defined as “may appear normal but on investigation has some problems in every day activities”. Her Catholic Healthcare assessment and care plan from November 2013 states that Kata requires supervision due to her “unsteady gait and history of falls”. It also notes that she may get confused when she is anxious and that she sometimes wanders.

90. Kata’s care plan dated 21 November 2013 includes:

“Kata requires the assistance of care staff to manage behaviours including:

Misunderstanding conversations. Often nods and smiles inappropriately when staff ask her questions.

Physical agitation: Kata doesn’t want to be a trouble to anyone. When staff attend to her she does not sit still and gets up and down from her chair whilst they are in the room. She gets confused easily.

Kata has heart disease and right foot pain. Due to this she has been assessed as requiring supervision with undressing, dressing, washing, drying and grooming. She, however, verbally refuses to accept necessary supervision and will often wear the same clothes.

The behaviours usually occur:

Daily”

91. The care plan also lists the intervention for misunderstanding conversations to be “ask her family to act as translators if Kata doesn’t understand”. It also states that Kata requires assistance with taking medication, mobility, and maintaining eating and drinking due to short term memory loss, anxiety and confusion. It states that Kata’s communication and comprehension is impaired by short term memory loss and English as a second language. It records that Kata experiences pain from her leg injury which she displays verbally and by becoming restless and agitated.

92. Entries from November 2013 to April 2014 record that Kata regularly refused assistance with showering and aspects of personal hygiene, but that she was checked regularly or supervised by staff to ensure all was well. Entries on 13 September 2013 and 22 November 2013 state that she refused a shower because she had already showered herself. An entry on 4 December 2013 notes that she was already dressed when the staff went to check on her.

93. Over the same period, Kata was often agitated about her leg pain and her level of English when trying to explain to staff what she wanted.

94. On several occasions, the records note that Kata was found walking around the corridors of St Paul’s, including in the early hours of the morning. She explained to staff that walking helped to relieve her leg pain. On one occasion she was found wandering in other residents’ rooms. She said that she had gone to meet friends.

95. On 4 March 2014, John notified Kata’s treating GP, Dr Lawrence Chan, that he was concerned Kata may have depression. Dr Chan’s handwritten notes record that Kata felt well, was energised, talkative, motivated and doing exercises twice daily by herself, and that she said that she was happy at St Paul’s. However, she reported a low mood due to her leg injury limiting her abilities. Dr Chan noted his impression: “Not major depression”.

96. Two incidents are recorded in progress notes in early March 2014:

6 March 2014, 2.10pm: “Staff found the resident hiding 20 facewashers, 20 bath towels (40 towels), 10 unused toilet rolls in her wardrobe & cupboard. Her two drawers were found full of paper towels from the facility. …”

7 March 2014, 2:30pm: “Resident was seen wrapping the fish from the lunch & keeping it in her frame to take to her room. Explained to her its [sic] not hygienic to take the leftover fish and ask with the staff for food if she feels hungry. But, resident did not agree & took the fish to her room …”

97. A further Catholic Healthcare assessment for Kata was undertaken on 30 April 2014. The pain inventory records that Kata’s leg pain was interfering significantly with her general activity, mood, sleep, enjoyment of life and ability to concentrate.

Sale of Kata’s Villa

98. Following her move to St Paul’s, Kata asked John to arrange for the sale of her villa in Bexley. John contacted a Croatian speaking solicitor, Robert Djundja, to assist with the sale. John provided Mr Djundja with a copy of Kata’s ACAT Assessment and Mr Djundja requested a certificate of capacity from Kata’s treating doctor.

99. In accordance with this request, John made an appointment for Kata with Dr Chan on 2 May 2014. The consultation went for almost an hour. Dr Chan recorded in his notes:

“Subjective:

Reason for visit:

Assessing testamentary capacity

Her brother’s wife and brother’s son (John) present.

Bothered by constant burning pain at right foot (surgical site from 3 yrs ago). Sleep affected – difficult to sleep after 0100.

She said that she was previously forced to sign documents by Belinda (niece) to make her the power of attorney and do a will that she does not agree with. She said she didn’t know what she was reading since she could not read and was pressured to sign the documents. She now strongly regrets this after finding out what the documents were and wants to change it.

We discussed today at length about her plan to sell her current property (villa), change her will and change her power of attorney and enduring guardianship.

She understands the role of will, what she wants to happen to her property and who she can give her property to.

She expressed that she wants her brother and John (nephew) to be in charge of her finances and her medical care as enduring guardians.

She does not have a disorder of mind that would influence her decisions.

Objective:

Has some hearing difficulty (going to audiologist next week), however understands questions and able to give coherent and sensible answers.

She is clear on what she wants and able to express them.

There was not evidence of confusion.

Relatives present helped explain questions in plain English and occasional interpretation of questions into Croatian. Kata was able to give full sentence answers in English showing full understanding of her own wishes without needing interpretation from Croatian.

Assessment:

Has testamentary capacity

? neuropathic pain at right ankle”

100. Following the consultation, Dr Chan provided a letter which read:

“This is to certify that I am the general practitioner looking after Kata Grguric. I have assessed her today and find that she is competent with testamentary capacity.

She has expressed her wishes to change the will, sell her property and change her powers of attorney and enduring guardianship. She has expressed understanding of these and does not have a disorder of mind that would influence her decisions.”

101. Mr Djundja subsequently met with Kata in early May 2014. He spoke with her alone, in a mixture of Croatian and English. Mr Djundja was satisfied from their conversation that Kata had capacity to give instructions, and he proceeded to take instructions from her for the sale of her Villa.

102. A progress note from St Paul’s records on 25 May 2014:

6.10am: “Multiple times i.e. @ 1.30hrs, 2.20hrs; 4.30hrs found walking in the corridor and trying to open all the windows. Was suggested to try to sleep. Nil any issues identified by resident for reason to open windows. Alert, but quite confused.”

103. On 13 June 2014, Kata was taken to hospital due to bleeding from her ankle. She was discharged shortly thereafter.

104. In late June 2014, after Kata had signed the contract of sale but before contracts had been exchanged, Mr Djundja spoke with Kata on the telephone. Mr Djundja explained the basic terms of the sale and was satisfied that Kata understood and was willing to proceed.

The 2014 Will

105. Progress notes on 16 July 2014 record that Kata was agitated when St Paul’s staff were fixing her bed, but settled afterwards. She told the staff she had a headache.

106. On two occasions in late July 2014, staff saw Kata taking towels from the linen trolley.

107. On 2 August 2014, nursing staff at St Paul’s tried to take Kata to hospital as her ankle was bleeding again. Kata was unwilling to go. Progress notes record that Kata was conscious, alert and not in pain. Kata rang her family and John came to assist. Kata was eventually taken to hospital and returned later that day, with instructions to keep her leg elevated.

108. Progress notes on 3 August 2014 record that Kata was alert and oriented, but quite anxious and worried about her leg. The bleeding from her ankle had stopped but she was worried that it would happen again, and so requested breakfast in her room.

109. On 4 August 2014, the progress notes record:

“Kata has ‘an episode’ in the dining room at lunch time. The other residents said they were talking to her and noticed her left hand was shaking. She then repeatedly went stiff and blacked out for a few seconds. She soon regained consciousness. Dr [L] Chan was notified and he directed us to send her to hospital for assessment. …”

110. Kata was taken to hospital. She returned to St Paul’s later that day. The hospital discharge note records:

“… Feels well now

Can’t r[e]member events

Time Y Place Y Year N, Month N, Age Y, DOB Y, Residencey [sic] Y, Person Y …”

111. On 18 August 2014, Kata met with Mr Alexander. Josip, Katy and John accompanied her. Mr Alexander had an initial discussion with the family in the reception area, and then spoke with Kata in his office, without Josip, Katy or John present. He asked his bilingual paralegal, Ms Fran Music, to sit in on the meeting to assist with any translation that might be required.

112. Mr Alexander’s file note of the meeting records:

“Attending on Kata Grguric in consultation with her brother Josip Mikan, his wife and his son John Mikan. I was informed that there had been many family discussions and that she had made a decision to make some changes. I was informed that the property that she owned with [words were plainly omitted here when the file note was typed from Mr Alexander’s dictation] her nephew John as her Attorney as he had been attending to her affairs for approximately the past two years whilst she had been living at Eastern Valley Way. I said I thought it was normal for this to be to her brother and failing her brother to the son. I said I would see her alone.

Met with Kata and Fran Music who helped with the translation when these matters were all discussed again and when she confirmed that she wanted to revoke the Power of Attorney in favour of her niece with whom she previously owned the property which was now sold and wished to appoint her nephew John Mikan under the Power of Attorney and Enduring Guardian and make him the sole beneficiary under his [sic] Will.

Also discussed with client Family Provisions and the right of the nephews and nieces to bring a claim. I said I did not think that they had good grounds if they were never dependent members of her household and as in any event there had been financial arrangements between them.

Client also informed me that her other brother had attended to maintenance work for her for twenty five years approximately over a number of properties that she owned with her nephews and nieces and her nephew John Mikan informed me that as far as they were aware the brother was getting paid through the estate agents and also cash from Kata Grguric. I said this was not really a matter for the Will and that that would need to be a claim. I pointed out however that any claim be time barred after six years and that there would need to be some evidence of work. He said the properties had already been sold two years ago and in any event did not appear to be a problem.”

113. I accept that Mr Alexander asked her to explain why she wanted to remove the other beneficiaries. His evidence was that (Tcpt, 17 August 2021, p 178(1–3)):

“… there's no way I would not have raised this with her and to the best of my recollection, she felt that they are the ones who are caring and looking after her and that she felt that that is what she wanted to do.”

114. Kata did not tell Mr Alexander that the Plaintiffs had been part of her household for many years (Tcpt, 17 August 2021, p 180(17–20)):

“Q. Did she tell you that the two nieces in Australia and one of the nephews were a member of her household for very many years?

A. No, she didn't, because I would have made a note or been conscious of that. But she - she would have told me that they weren't, and hence my view.”

115. Mr Alexander then prepared the draft documents and had a further meeting with Kata later that day. Again, only Mr Alexander and Ms Music were present. Mr Alexander read and explained the operative clauses to Kata, and she confirmed that was what she wanted. Ms Music then read parts of the document to Kata in Croatian. Kata confirmed to Ms Music in Croatian that she understood and was happy with it. Kata then executed the 2014 Will in the presence of Mr Alexander and Ms Music.

116. John and Katy’s evidence was that Kata did not tell them John would be the beneficiary under the 2014 Will. She told them they would “find out when I am dead” (Tcpt, 20 August 2021, p 333(47)–334(6)).

117. As at 18 August 2014, the Estate comprised cash (in bank accounts and invested), Kata’s accommodation bond at St Paul’s, and the funds Kata was waiting to receive upon settlement of the sale of the Villa.

118. After the meeting, Mr Alexander’s firm sent a letter to Belinda informing her that Kata had revoked the power of attorney in her favour. Belinda’s evidence was that she visited Kata shortly afterwards and showed her the revocation. Belinda explained to Kata that the revocation “means that you can no longer ask me to do anything for you that involves forms or banking.” Kata responded: “oh yeah, you’re busy with the kids and Josip and John have the time to help me now”.

119. The Catholic Healthcare social profile for Kata from September 2014 lists Kata’s arrival in Australia as “approx. 2003” and records only “Joseph Mikan” under Kata’s siblings. For “Family and/or friends likely to be involved with resident” it states “Not many. Some infrequently”. Some sections appear to have been left blank. There is no indication of who completed the form or the source of the information.

120. On 7 November 2014, Kata has a sudden onset of dizziness, unsteadiness and a headache, which rendered her unable to walk. She was taken to hospital, by which time her symptoms appear to have resolved and she reported feeling very well. Dr Chan referred Kata to a stroke specialist. The specialist wrote a letter dated 12 November 2014 which included:

“Neurologic Examination: On examination, Ms Grguric was fully oriented with no aphasia, no dysarthria, normal cranial nerve function, no sensory deficit and normal coordination …

Conclusion & Recommendation: The MRI did not show an acute ischaemia. Therefore we can exclude a neurovascular event as a cause for her symptoms. Multiple small micro-bleeds were seen as well as chronic microvascular changes and general brain atrophy …”

Kata’s move to Willowood Nursing Home

121. On 5 June 2015 Kata was again taken to hospital with syncope. On 24 June 2015, an updated ACFI cognitive skills checklist records Kata’s level of impairment as “moderate”, in contrast to the same assessment in November 2013 which rated her level of impairment as “mild” (see [89] above).

242. What that “family arrangement” did not contemplate was what was to occur if Kata wanted to have access to her interest in the Three Properties during her lifetime. It is unsurprising that was something the parties would not have contemplated at the time. It was not in prospect, given that Kata was in employment and living with the Ilijanics.

243. It seems to me that Tony’s evidence casts useful light on this. In the draft email to John that Tony sent to his sisters on 1 October 2011 (see [53] above) he wrote that “A mutual agreement at the time of purchase and which is still enforce [sic] is that in the case of any unforeseen event related to Teta Kata, her share of the property or proceeds from the sale of property would revert to me” (emphasis added). It is entirely probable that there had been discussion at the time the properties were purchased about what would occur in the event of Kata’s unexpected death.

244. However, that there was no representation about, or consideration of, what would happen if she needed to realise her investment is also consistent with Tony’s description of his document (see [55] above) as being in part directed to “what should be done if the properties were going to be sold contrary to that agreement and understanding”. Tony’s Document, which was so onerous on Kata, was an attempt to set out the terms on which the Plaintiffs would agree to Kata having access to the proceeds of her investments because that topic had not been the subject of any prior representation or agreement. Its very onerousness in relation to Kata and its complexity demonstrate the unlikelihood that Kata, not “an educated woman, but she was far from stupid” (to use Mr Alexander’s words set out in [171] above), would ever have made representations that could reasonably have been taken to give rise to the consequences which Tony sought to impose in his document.

Conclusion

248. The Plaintiffs’ further amended statement of claim will be dismissed. There will be a grant in solemn form of the August 2014 Will to John. The parties will be given an opportunity to bring in short minutes to give effect to these reasons and to agree, if they can, how costs should be awarded.

**********

Decision last updated: 19 July 2022