Chalik v Chalik

[2024] NSWSC 117

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Chalik v Chalik [2024] NSWSC 117

Hearing dates:

24, 26, 27 April, 24 May, 6 and 26 July 2023

Date of orders:

16 February 2024

Decision date:

16 February 2024

Jurisdiction:

Equity

Before:

Henry J

Decision:

See at [536]

Catchwords:

SUCCESSION – Contested probate – validity of will excluding second of two sons – Testamentary capacity – deceased struggled with memory and taking care of herself – whether evidence showed significant cognitive decline in deceased – what weight to give expert report on capacity – what weight to give evidence of solicitor who made will –consideration of statement of reasons – Lack knowledge and approval – brief and simple will – where solicitor and deceased spoke neither English nor deceased’s native language when making will – Undue influence – where first son was deceased’s live-in carer – dominant and controlling – whether circumstances allowed inference of pressure or coercion – distinction between undue influence in probate and equity

SUCCESSION – Probate and administration – extent of estate – whether either son owes debt to deceased’s estate – unattested deed of loan between deceased and second son – whether enforceable as contract – whether consideration present – whether loan actually paid – whether intention to create legal relations – limitation period – where first son was deceased’s guardian and power of attorney and withdrew funds for his own use – whether funds were loans or improper withdrawals

SUCCESSION – Family provision – Claim by adult child in case will found invalid – moderate estate entirely in cash – last valid will divided estate equally between sons – interim provision to first son – where first son deceased’s long-term carer – close relationship – poor employment prospects – 60 years old – dominant and controlling during deceased’s old age – whether to make order for final provision – whether proceedings commenced within time

Legislation Cited:

Conveyancing Act 1919 (NSW) s 38

Civil Procedure Act 2005 (NSW) ss 56, 98

Evidence Act 1995 (NSW) s 140

Limitation Act 1969 (NSW) s 14(1)(a)

Succession Act2006 (NSW) ss 58, 59(1)(c), 60(1)(b), 60(2), 61(1)

Uniform Civil Procedure Rules 2005 (NSW) rr 42.1, 42.2 and 42.20

Cases Cited:

Alexakis v Masters (No 2) [2023] NSWSC 509

Antov v Bokan [2018] NSWSC 1474

Ballam v Ferro (No 2) [2022] NSWSC 1358

Bear v Bear; Jordan v Bear [2022] NSWSC 1687

Blendell v Blendell [2020] NSWCA 154

Blendell v Byrne [2019] NSWSC 583

Bracher v Jones [2020] NSWSC 1024

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

Burns v Burns [2016] WTLR 755; [216] EWCA Civ 37

Chan v Chan [2016] NSWCA 222

Chant v Curcuruto [2021] NSWSC 751

Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392

Chidiac v Maatouk [2010] NSWSC 386

Croft v Sanders [2019] NSWCA 303

Dickman v Holley; Estate of Simpson [2013] NSWSC 18

Estate of Janakievska [2011] NSWSC 1275

Estate of Simpson [2013] NSWSC 18

Estate of Guamani; Guamani v De Cruzado [2023] NSWSC 502

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Goldberg v Landerer [2010] NSWSC 1431

Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843

Hall v Hall (1868) LR1P&D 481

Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep)

Hoff v Atherton [2003] EWCA Civ 1554

Kalaf v Grimanes [2013] WASC 327

Lewis v Condon [2013] NSWCA 204

Lim v Lim [2022] NSWSC 454

Lim v Lim [2023] NSWCA 84

Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474

Ling v Beyond Development Group Pty Ltd [2022] NSWSC 685

Megerditchian v Khatchadourian [2020] NSWCA 229

Mekhail v Hana; Mekail v Hana [2019] NSWCA 197

Mendonca v Legal Services Commissioner [2020] NSWCA 84

Meres v Meres [2017] NSWSC 285

Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235

Nicholson v Knaggs [2009] VSC 64

Nock v Austin (1918) 25 CLR 519; [1918] HCA 73

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Page v Page [2017] NSWCA 141; (2017) 16 ASTLR 331

Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14

Quek v Beggs (1990) 5 BPR 11,761

Re Estate Rofe [2021] NSWSC 257

Re the Estate of Hodges Deceased: Shorter v Hodges (1988) 14 NSWLR 698

Romascu v Manolache [2011] NSWSC 1362

Roscorla v Thomas (1842) 114 ER 496

Salvation Army v Becker [2007] NSWCA 136

Schrader v Schrader [2013] All ER (D) 89 (Mar)

Schrader v Schrader [2013] All ER (D) 89 (Mar); [2013] EWHC 466

Sgro v Thompson [2017] NSWCA 326

Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40

Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522

Squire v Squire [2019] NSWCA 90

Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114

Stone v Stone [2019] NSWSC 233

Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285

Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52

Underwood v Gaudron [2015] NSWCA 269

Veall v Veall (2015) 46 VR 123; [2015] VSCA 60

Vigolo v Bostin (2005) 221 CLR 191

Walker v Walker [1996] NSWSC 188

Watson v Foxman (1995) 49 NSWLR 315

Wingrove v Wingrove (1885) 11 PB 81

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

Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197

Texts Cited:

Nicholas Seddon, Seddon on Deeds (2nd ed, 2022, Federation Press) at [1.6] and [2.9]

Category:

Principal judgment

Parties:

Proceedings 2021/296823

Gregory Roman Chalik (Plaintiff/Cross-Defendant)
Igor Chalik (First Defendant/Cross-Claimant)
NSW Trustee & Guardian (Second Defendant/Cross-Defendant)

Proceedings 2021/326779

Gregory Roman Chalik (Plaintiff)
Igor Chalik (First Defendant)
NSW Trustee & Guardian (Second Defendant)

Representation:

Counsel:

Mr N Allan (First Defendant/Cross-Claimant)

Solicitors:

Chris Adamson, Solicitor (Plaintiff/Cross-Defendant until 19 May 2023)
Ziman & Ziman Solicitors (First Defendant/Cross-Claimant)

Gregory Roman Chalik, self-represented (from 19 May 2023)

File Number(s):

2021/296823
2021/326779

Publication restriction:

Nil

JUDGMENT

1. These two proceedings concern the estate of the late Margaret Chalik, who died on 20 July 2021, aged 85.

2. Margaret Chalik was survived by her two adult sons, Gregory Roman Chalik and Igor (now known as Isaac) Chalik, the protagonists in these proceedings, her husband Roman Chalik having predeceased her in 1995.

3. Without any disrespect intended, in these reasons, I refer to the parties and other members of the Chalik family by their first names and to Margaret Chalik as the deceased.

4. At the time of her death, the deceased had dementia, was residing in a nursing home and her estate was managed by the NSW Trustee and Guardian (NSW Trustee). The deceased’s estate is now valued at $1,652,231.89, consisting entirely of cash.

5. The deceased made a series of wills over her life. The deceased’s penultimate will, made on 29 October 1998 (1998 Will), left her estate equally to Gregory and Isaac and appointed the NSW Public Trustee (now known as the NSW Trustee and Guardian) as the executor and trustee of her estate.

6. The deceased’s last will, made on 23 April 2013 (2013 Will), leaves everything to Gregory and appoints him as sole executor. It was prepared by Mr Mourice Wermut, a solicitor, who Gregory had arranged for the deceased to meet with.

7. In these proceedings, Isaac challenges the validity of the 2013 Will on various grounds, including lack of testamentary capacity, and Gregory seeks further provision in the event the 2013 Will is held to be invalid. In addition, they each make claims that the other owes money to the deceased’s estate.

The proceedings

8. Gregory is the plaintiff in both sets of proceedings. He commenced proceedings (2021/296823) (Probate Proceedings) by statement of claim filed on 13 October 2021 seeking probate in solemn form of the 2013 Will and revocation of a caveat lodged by Isaac.

9. Gregory commenced the other proceedings (2021/326779) (Succession Proceedings) by summons filed on 15 November 2021 seeking an order for interim provision pursuant to s 59 of the Succession Act2006 (NSW) (Succession Act) and liberty to apply for a final order under that section.

10. Gregory has amended his claims on a number of occasions.

11. The primary relief Gregory seeks in the Probate Proceedings by his third further amended statement of claim filed 27 April 2023 (TFASC) is a declaration that the 2013 Will is the last valid will of the deceased, an order that probate in solemn form of the 2013 Will be granted to him or such as person as the Court appoints, and a declaration and order that Isaac is indebted and should pay to the deceased’s estate the sum of $150,000 (plus interest) pursuant to a Deed of Loan entered into between Isaac and the deceased in August 1996 about a loan made in August 1991.

12. In the Succession Proceedings, Gregory was granted the initial relief he sought by way of an interim distribution of $250,000 from the deceased’s estate pursuant to orders made by Hallen J on 24 February 2022, the parties having agreed that Gregory would be entitled to at least that sum whichever is the last valid will.

13. The relief Gregory now seeks in the Succession Proceedings is a final order pursuant to s 59 of the Succession Act for further provision from the deceased’s estate in the event that the 2013 Will is not found to be the deceased’s last valid will. This claim was included in Gregory’s amended summons which was filed on 25 November 2022 pursuant to leave granted on 15 November 2022.

14. By his defence and further amended statement of cross-claim in the Probate Proceedings (both filed on 9 November 2022), Isaac challenges the validity of the 2013 Will on the grounds that the deceased lacked testamentary capacity, lack of knowledge and approval and/or undue influence on the part of Gregory. Isaac seeks probate in solemn form of the 1998 Will to be granted to him or such person as the Court appoints. Isaac also denies that the Deed of Loan is enforceable or that he has any liability to the estate in the amount claimed of $150,000.

15. In the Succession Proceedings, Isaac contests Gregory’s claim for further provision beyond an equal share of the deceased’s estate and says that the interim distribution already made should be deducted from that equal share. Isaac also says that Gregory’s application for further provision was made out of time and as such, an extension of time will be required.

16. Both Gregory and Isaac’s pleadings included claims that were abandoned or revised prior to and during the course of the hearing.

17. Gregory’s pleadings in the Probate Proceedings included another monetary claim that Isaac owed the deceased’s estate a further sum of $75,507.22 and an alternative claim for probate in relation to a will made by the deceased in 1997. The further monetary claim was withdrawn in the TFASC (it was deleted). During the course of the hearing, Gregory’s solicitor, Mr Adamson, did not press Gregory’s alternative claim for probate in relation to the 1997 will (T358.49-50). He also accepted that the 1998 Will was a valid and binding will when it was made but contended it had been revoked by the 2013 Will (T366.46).

18. Isaac’s cross-claim sought an order that Gregory provide a full accounting of his dealings with the deceased’s funds under a purported power of attorney in Gregory’s favour and an alternative claim for further provision under s 59 of the Succession Act. Isaac abandoned his alternative claim for further provision on 15 November 2022 and did not press for the order for full accounting at the hearing. Ultimately, Isaac only pressed for an order to recover on behalf of the deceased’s estate the amount of $15,000, which he says was taken by Gregory from his mother’s account and has not been repaid (Isaac’s Closing Submissions (ICS) at [77] – [79]).

19. The NSW Trustee is the second defendant in both proceedings and has filed submitting appearances. On 15 December 2021, the NSW Trustee renounced any right to probate and to all trusts, powers and authorities expressed under the 1998 Will and the earlier 1997 will which had also appointed the NSW Trustee as executor and trustee.

20. Ms Monika Ross-Maranik, solicitor, is the interim administrator of the deceased’s estate, having been appointed to that position on 24 February 2022 by Hallen J. Ms Ross-Maranik’s appointment as interim administrator has been extended until further order of the Court. Ms Ross-Maranik has provided written consent to be executor of the deceased’s estate on a final basis.

The hearing and submissions

21. The two proceedings were heard concurrently with evidence in one proceeding being evidence in the other.

22. The hearing was listed for three days in April 2023 but did not finish within that time. The evidence was completed, a timetable was set for written closing submissions and the hearing was adjourned to 24 May for oral closing submissions.

23. Prior to and during the April hearing, Mr Adamson, solicitor, appeared for Gregory. Mr Allan, instructed by Ziman & Ziman, solicitors, appeared for Isaac.

24. Prior to the resumed hearing on 24 May, Gregory terminated Mr Adamson’s retainer and commenced acting for himself.

25. On 19 May, Gregory filed a notice of motion seeking to adjourn and vacate the timetable and hearing for final submissions for at least three months, to strike out the expert report from Dr Jane Lonie (an expert jointly appointed by the parties and whose report was adduced into evidence without objection at the hearing) and other orders in relation to costs and Mr Adamson.

26. At the hearing on 24 May, I dismissed Gregory’s notice of motion, with ex tempore reasons given that day. Gregory was directed to file and serve any further written submissions he sought to rely on by 28 June, with the Court noting that it had already received from him partial written submissions on 23 May 2023 and a document at Annexure B to his affidavit dated 10 May 2023 as part of his closing written submissions.

27. On 28 June, the Court received further written submissions and a chronology from Gregory.

28. Gregory’s further written submissions attached a document (referred to as the notation by a Commonwealth Bank clerk) that had not been adduced into evidence, to which objection was taken by Isaac. On 6 July 2023, Gregory notified the Court that he withdrew the CBA document from being admitted into evidence and sought to rely on another document, described as a bank clerk’s handwritten note about a term deposit held by the Commonwealth bank. On 11 July, the Court made directions for Gregory to file and serve a notice of motion seeking leave to re-open, an affidavit in support and short submissions in relation to the handwritten note and listed the proceedings on 26 July 2023 to determine that application.

29. Gregory did not appear on at the hearing on 26 July, despite dial in details having been provided to him so he could appear by telephone. A notice of motion and other documents had not been filed by Gregory in accordance with the Court’s directions and no explanation was provided by him for not appearing on 26 July. Accordingly, the Court proceeded in Gregory’s absence, noted that there was nothing before the Court to determine and confirmed that the status of the proceedings was that judgment was reserved. Gregory was informed of the outcome by email sent from my chambers that day. No further application was made by Gregory to re-open. Thus, the Court has not had regard to the handwritten document.

30. The Court received written closing submissions from Isaac on 19 May 2023, that were supplemented by oral submissions on 23 May, and a case note received on 8 June 2023 which had been served in response to an issue raised at the hearing on 23 May.

Evidence and witnesses

31. The evidence comprised affidavit and oral evidence from the parties and non-party witnesses and a range of documents produced on subpoena, including medical records and doctors’ notes in relation to the deceased’s medical condition from 2011 and her bank accounts.

32. Gregory relied on six of his own affidavits and an affidavit from Mr Adamson that attached an English translation (by a translator, Benjamin Perkis) of a typed document written in Russian and dated 17 September 2013 that is signed by the deceased. Gregory says that the document was prepared by the deceased and represents her reasons for excluding Isaac from the 2013 Will. Isaac disputes this.

33. Gregory also relied on two affidavits from Mr Wermut, the first of which was filed pursuant to an order by Hallen J on 24 February 2022 that Mr Wermut serve an affidavit deposing to the circumstances in which the 2013 Will was prepared and executed.

34. Isaac relied on six of his own affidavits and affidavits from each of his sons, Richard and Nathan. He also relied on an affidavit from his solicitor, Mr Derek Ziman, and Mr Achilles Paffas, a solicitor, who did legal work for Isaac in the 1990s and gave evidence that he did not prepare the Deed of Loan.

35. Isaac also read an affidavit of attesting witness in relation to the 1998 Will from Ms Lidia Zin, solicitor, that had been filed by the NSW Trustee in the Probate Proceedings on 27 January 2022, and subpoenaed Ms Zin to give oral evidence. Ms Zin was employed at the NSW Trustee and prepared and witnessed the 1998 Will.

36. As already noted, there was also expert evidence from Dr Jane Lonie, a clinical neuropsychologist, whose report dated 14 March 2023 was tendered (Exhibit A). The parties jointly engaged and instructed Dr Lonie to report on the deceased’s testamentary capacity in 2013 and her vulnerability to undue influence.

37. The parties also read two affidavits from Ms Ross-Maranik that set out her estimates of the value of the deceased’s estate as at 4 November 2022 and 14 April 2023.

38. Gregory, Mr Wermut, Isaac, Richard, Nathan, Ms Zin and Dr Lonie were cross-examined.

Approach and assessment of witnesses

39. I have considered all of the evidence and the facts and arguments contended for in the parties’ submissions.

40. However, I should record that aspects of Gregory’s written submissions were not easy to follow. They raised matters that had no apparent relevance to the issues in dispute (for example, referring to Aristotle’s discussion of “equity”, the principles of contempt of court and details of the recent history of income tax in Australia) and made assertions that were not the subject of evidence (for example, that Isaac operated a company and a superannuation fund in the deceased’s name, Isaac purchased a two-bedroom unit in North Bondi in September 1991 and the $10,000 term deposit). They also included complaints about the conduct of his solicitor, Mr Adamson, such as that he included matters in Gregory’s affidavit against instruction, colluded with Isaac’s legal team and filed a chronology that Gregory did not consent to and which contained false and misleading information. It is not, in my view, necessary or appropriate for this Court to consider and deal with those complaints.

41. I am mindful that Gregory was unrepresented when he prepared the submissions. Nevertheless, the Court is not required to undertake an analysis of and deal with every aspect of lengthy submissions that contain unstructured and unsupported assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point: Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21]; Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [42].

42. Accordingly, these reasons do not address every matter raised by Gregory’s submissions. Rather, they focus on the matters and evidence referred to by both parties at the hearing and in their oral and written submissions which I consider are relevant to the issues and necessary to understand the parties’ respective positions and why I have made my factual findings and reached my conclusions on the issues for determination.

43. In assessing the evidence and making my findings, I have had regard to the parties’ apparent self-interest and the frailty of human memory and placed more weight on the contemporaneous documents (to the extent they are available), the objective surrounding facts and the inherent probabilities and improbabilities of events: Watson v Foxman (1995) 49 NSWLR 315 at 319; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [30]–[31].

39. I have also carefully considered the evidence of statements said to have been made by the deceased, particularly where they are disputed, and treated them with caution and where possible, looked for some corroboration: Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14; Chant v Curcuruto [2021] NSWSC 751 (Chant v Curcuruto) at [263]–[264].

40. As to the witnesses, overall, I formed the impression that Gregory’s evidence and submissions were influenced by his own self-interest and the view that Isaac was undeserving of anything as he had been financially successful and taken no steps to look after the deceased.

41. Gregory’s evidence about statements made to him by the deceased about wanting to change her will in 2013 and the circumstances in which the statement of reasons document was created was based on his own testimony. I found his evidence about the creation of the statement of reasons document to be inherently unlikely having regard to the objective evidence.

42. There were also inconsistences in Gregory’s evidence and he came across as willing to change his evidence to advance his own case; see for example, his evidence about his knowledge of the deceased’s prior wills and how the deceased came to make the 2013 Will (at [165]-[169]); his evidence about the deceased’s mental and physical state and that of the Bondi Unit when he came back to Sydney in 2011 (at [135]-[136]); his evidence about his knowledge that Mr Wermut spoke Yiddish (at [168]]); and his evidence that he insisted and arranged for the deceased to take her medications (which was inconsistent with the contemporaneous documents at [181]). Gregory’s credit was also undermined by the evidence of withdrawals he made from the deceased’s bank account at a time when he acknowledged that she had dementia and when the NSW Trustee was the financial manager of her estate.

43. There was another aspect of Gregory’s evidence and submissions that I considered to be unsatisfactory, namely his attempt to resile from aspects of his 7 March 2023 affidavit (which he did not consider suited his case) on the basis that part of the affidavit was included by Mr Adamson and had not been approved by Gregory despite him having affirmed the affidavit.

44. On the other hand, and while also likely impacted by self-interest, Isaac’s evidence was, in my view, generally more consistent with the objective evidence and his evidence about his ongoing contact with the deceased was corroborated by Richard and Nathan, whose evidence was credible and I generally accept.

45. As to Mr Wermut, I am satisfied that he endeavoured to give evidence honestly and to the best of his recollection of what took place in connection with the making of the 2013 Will and other events. However, the passage of time and the fact that Mr Wermut did not have any file notes of his attendances on the deceased in relation to the making of the 2013 Will when assessing his evidence raised some doubts about the reliability of his evidence.

46. Ms Zin candidly acknowledged that she could not recall the deceased and her evidence about the making of the 1998 Will was based on her standard practice at the time. The 1998 Will reflected the contents of the Will Information Form in evidence and Ms Zin had no personal interest in the proceedings. Other than noting her lack of direct recall, I have no issue with Ms Zin’s evidence and generally accept it.

47. Dr Lonie was an impressive witness. She maintained her opinions in cross-examination and clearly articulated her reasons for them. I deal further with Dr Lonie’s report later in these reasons. At this stage, I simply note that I have seen no basis for Gregory’s submission suggesting that Dr Lonie was asked and agreed to write an unscientific report and her remuneration was based on convincing the Court that the deceased lacked testamentary capacity when the 2013 Will was executed and reject that submission. I have no reason to doubt that Dr Lonie complied with the Expert Witness Code of Conduct in Schedule 7 of Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that she had read and agreed to bound by, and that she provided her expert opinion acting as an impartial witness based on her assessment of all of the evidence provided to her. There was also no foundation for Gregory’s submission that Dr Lonie’s evidence is inadmissible because the notice of the half-paid report fee to Mr Ziman was received 14 days after the hearing and I reject that submission also.

48. The following section sets out a chronological narrative of events drawn from the documentary, affidavit and oral evidence. I then deal with the issues relating to the validity of the 2013 Will. Next, I deal with the money claims made by each of Gregory and Isaac. Lastly, I deal with Gregory’s claim for further provision, which is dependent on the outcome of the probate claims.

Factual background and summary of evidence

54. Unless otherwise indicated, I am satisfied of the following matters.

Early background

55. The deceased was born on 11 January 1936 in Odessa, Ukraine where she married Roman. Gregory and Isaac were born in Odessa on 31 May 1963 and 1 August 1970 respectively.

56. While in Odessa, the deceased worked as a bookkeeper.

57. On 11 January 1978, after spending a short period of time living in a refugee transit facility in Italy, the deceased, Roman, Gregory and Isaac and the deceased’s mother, Ethel Leibovich (Ethel), migrated to Australia. The deceased’s sister had migrated to Sydney about two years prior.

58. When the family arrived in Australia, none of them could speak, read or write in English, apart from a “smattering” they had learnt from fellow refugees.

59. After arriving in Australia, the Chalik family initially lived in rented accommodation in Bondi.

60. In the 1980s, the deceased completed a TAFE cooking certification and commenced work as a cook at St Vincent’s Hospital. Roman worked as a carpenter and as a designer/machinist at a furniture factory.

61. The family spoke Russian at home, although the deceased had sufficient English for everyday communication by the 1980s. There is a dispute on the evidence about whether the deceased also spoke Yiddish.

62. Gregory recalls the deceased speaking Yiddish with her mother, sister, aunt and best friend when they lived in Odessa and also says that Yiddish was a commonly used language in Odessa when they left in 1978. Isaac says he never knew his mother to speak Yiddish, apart from a few well-used exclamatory or expletive words which were not uncommon among Ukrainian Jews. Gregory says that Isaac was never present when their mother spoke in Yiddish and that the family did not speak it at home because his grandfather and father did not speak it.

63. Gregory also gave evidence that while living in the Bondi Unit in 1997 or 1998, the deceased spoke Yiddish with one of their neighbours, Mrs Werthiemer. Mr Ziman, Isaac’s solicitor, deposed that a historical electoral roll search of the name “Werthiemer” conducted at the State Library of New South Wales for the period between 1996 and 2008 produced no results for that, or any similar, name in Bondi.

64. On 4 October 1980, the deceased made a will that appears to have been prepared by the Public Trustee. Under the 1980 will, the deceased left her estate to Roman and, if he did not survive her, to Gregory and Isaac and appointed the Public Trustee as executor and trustee.

65. In 1985, the deceased and Roman sold a unit they owned in Waverley (Waverley Unit) and purchased a unit in Wellington Street, Bondi NSW (Bondi Unit). The family and Ethel lived in the Bondi Unit from this time.

66. On 10 July 1995, Roman died following a stroke. The deceased became the sole registered proprietor of the Bondi Unit after Roman’s death and remained living there until she moved to a nursing home in October 2019. As described below, Gregory lived with the deceased in the Bondi Unit at various times from 1995.

Gregory and Isaac: schooling, work, help to buy units

67. Isaac and Gregory both attended Randwick Boys High School. Isaac had previously attended Bondi Beach Primary School.

68. Gregory left school in 1980 when he was in Year 11. He says that he struggled at school and with fitting into the Australian culture. After Gregory left school, he worked as a storeman in a book warehouse. He gave evidence that from the time he left school until he was 21, he banked all monies earned into his parent’s account and the funds were used to repay the mortgages on the Waverley and Bondi Units. Isaac recalls Gregory being asked to contribute towards the cost of groceries for the family once he started working.

69. Isaac left school in 1988, having completed Year 12 in 1988. He subsequently obtained a Bachelor of Economics at Macquarie University in 1993. Whilst studying, Isaac lived at home at the Bondi Unit and worked as a carpark supervisor at Bondi Beach. After he left university, Isaac was employed as an investment portfolio manager for Westpac and later for Chase Bank.

70. The deceased and Roman assisted both Gregory and Isaac financially to purchase properties.

71. Isaac deposes that the deceased and Roman gave him $50,000 in 1993 towards the purchase of an investment unit in Dutruc St, Randwick. Isaac says that the money was a gift for being the first Chalik to graduate university, he borrowed the remainder to cover the purchase and rented out the unit to cover mortgage repayments, which he later sold in 1997. In 1995, Isaac purchased another unit in Frances St, Randwick using the equity from the Dutruc property, which he says he sold in 1999. I refer to these units as the Randwick Units.

72. Gregory says that on 9 January 1994, the deceased and Roman gave him $46,432.71 towards the purchase of a unit to live in Coogee. Gregory says that this sum included about $38,000 of his own share from his parents’ bank account and recalled that his parents owed him a further sum of money which was repaid to him, although he could not recall how much.

73. Gregory moved into and lived at the Coogee unit in 1994, at which time he was working as a taxi driver.

74. It appears that Gregory’s relationship with the deceased may have been tumultuous at this time, as evidenced by a letter he wrote to the deceased on 27 April 1995, while Roman was hospitalised, in which he referred to himself as, “your loving but unloved son”. Isaac gives evidence that prior to Roman’s death, Gregory frequently argued with his parents about his lifestyle, particularly his increasing involvement with his orthodox Jewish faith and elaborate tabletop war-gaming.

75. In 1995, following Roman’s death, Gregory moved back in with the deceased and lived with her in the Bondi Unit. Gregory says he did so as his mother was deeply depressed following Roman’s death. He also says that he was responsible for caring for her and that Isaac did not regularly visit the deceased or participate in her care during this period of time. In 1996, Gregory started studying at the University of Sydney, although he did not complete his degree.

76. Isaac gave evidence that after 1995, he observed regular arguing and bickering between the deceased and Gregory, usually about Gregory's lifestyle, and that although the deceased was grieving the loss of Roman, she was healthy and did not need Gregory’s help around the house.

77. Gregory says that although he and his mother had disagreements during this period of time, they largely got on very well.

Isaac’s first marriage and the Deed of Loan

78. On 1 September 1996, Isaac married his first wife, Marina, and moved out of the Bondi Unit. The wedding was paid for by Marina’s family. Isaac says that, at his mother’s request, he asked Gregory to be his best man at the wedding.

79. On 31 August 1996, the day before Isaac was due to be married to Marina, he and the deceased signed a document styled “Deed of Loan”.

80. The Deed of Loan is a nine-page typed document between Igor Chalik as Borrower and Margaret Chalik as Lender dated in 1996 (the actual date is unclear) for the Principal Sium of $150,000 and is signed by Isaac and the deceased in the execution clauses. There are no other signatures on the Deed of Loan.

81. The Deed of Loan relevantly provides that:

1. the Borrower requests the Lender to advance the Principal Sum on the conditions stated in the Deed: Recital D;

2. in consideration of the Principal Sum “this day paid” by the Lender to the Borrower, the Borrower will repay the Principal Sum on the terms and in the manner set out in the Deed and Schedule: cl 1;

3. the Principal Repayment date is 30 August 2016: Schedule;

4. notwithstanding the date of the Deed, the Principal Sum was advanced by the Lender to the Borrower on 29 August 1991: cl 4;

5. on default of any payment, interest will be payable at 5% per annum: cls 2.1, 3 and Schedule; and

6. the Borrower will provide security for the obligations under the deed by granting a second mortgage on both of Isaac’s Randwick Units: cl 5 and Schedule.

82. Gregory’s claim that Isaac owes $150,000 to the deceased’s estate is based on the Deed of Loan. Further evidence and my findings in relation to the Deed of Loan are set out later in these reasons. At this point, I simply note that Isaac does not deny he signed the document and says that he did not receive a loan from the deceased for $150,000 on 29 August 1995 or at any other time.

83. Following the wedding, Isaac and Marina went on a honeymoon which was paid for by Marina’s family. Upon their return, Isaac commenced working for his father-in-law as an investment manager for a medical clinics business. In 1998, Isaac ceased working for his father-in-law and commenced work as a mortgage broker for his own business.

84. By all accounts, Marina and the deceased did not have a close and amicable relationship. However, Isaac gave evidence that the deceased regularly visited him at work if she was doing shopping nearby. Gregory’s recollection was that he and the deceased had very limited contact with Isaac after the wedding.

1997 and 1998: new wills

85. On 17 January 1997, Isaac’s eldest son, Nathan, was born.

86. On 2 April 1997, the deceased made a new will (1997 Will), which appears to have been prepared by the NSW Trustee. Under the 1997 Will, the deceased made Gregory the sole beneficiary of her estate and appointed the NSW Trustee as executor.

87. Gregory gave evidence that the deceased had told him she intended to exclude Isaac from her will but he was not aware that she had actually done so. His belief was that the deceased went to the NSW Trustee and made the 1997 Will on the basis that Isaac had “abandoned her and would not give access to her grandchildren”.

88. Isaac gave evidence that following Nathan’s birth, Marina experienced a difficult period of post-natal depression which contributed to her conflict with the deceased, but that the deceased was never barred from their home or from seeing her grandchildren.

89. On 29 October 1998, the deceased went to the NSW Trustee and made the 1998 Will. Under the 1998 Will, the deceased gave all her property after payment of estate liabilities to Gregory and Isaac (cl 1), appointed the NSW Trustee as executor and trustee of the will (cl 3) and cancelled all earlier wills and codicils (cl 4).

90. Gregory and Isaac were not aware that the deceased made the 1998 Will at the time. Isaac believed that it may have reflected some stabilisation of relations with Marina in 1998.

Evidence and findings in relation to the 1998 Will

91. Ms Zin’s affidavit confirms that the 1998 Will was signed by the deceased in her presence and the presence of the other witness, Tuaine Taoro (a secretary at the NSW Trustee) at the same time and that, at the deceased’s request, they attested and subscribed to the 1998 Will in her presence. 

92. Ms Zin was cross-examined. Unsurprisingly, given the time that had passed, Ms Zin did not remember the deceased, taking instructions from her or whether anyone accompanied her to the appointment. She gave evidence about the usual practice of NSW Trustee employees at that time, as follows: they would generally see clients on their own unless they became distressed and wanted another person in the appointment; they would ask various questions regarding their name, ID, assets, who they wanted to give their estate to and whether they were excluding anyone from the will; if someone appeared to speak more than one language, they would talk to them in English and if they could respond to questions they would proceed; there were others within the office who could assist if needed; clients could come in and make a will without the need to make an appointment.

93. Ms Zin also gave evidence that: neither she nor the secretary who was also present at the execution of the 1998 Will spoke either Russian or Yiddish; if a translator had been required in relation to the preparation of a will, that would typically have been a matter recorded in a memo attached to the will; she would have read the will out to the deceased in English; if she had had any concerns about the deceased’s understanding of the will when she read it out, she would not have proceeded.

94. In evidence is a Will Information Form in relation to the deceased’s 1998 Will that has Ms Zin’s signature on it. The Will Information Form (Exhibit B) was admitted into evidence over Mr Adamson’s objection. (The document was not included in the Court Book but was produced by Ms Zin in response to Isaac’s 30 October 2022 subpoena (to which all parties were granted access) and was provided to Mr Adamson in advance of the hearing).

95. The notes on the Will Information Form record that: the deceased was a pensioner; her address was the Bondi Unit; she had two sons, Gregory who lived with her, and Igor who lived in Bronte; she wanted “All to her sons” with “no substitution at this stage”; the public trustee was to be appointed executor and trustee; her husband had died in 1995. On the third page, in the section headed “Family Provision Act”, Gregory, who is described as “lives with mother – eldest son”, is identified as a possible claimant and under the heading “reason for exclusion” (although Gregory was not “excluded” from the 1998 Will) states:

Gregory is very dominant and has been very difficult with t/trix. Does not want her to go on with her life and meet another man for fear of losing out on his mother’s estate. T/trix wants Igor to share

96. As already noted, at the hearing Mr Adamson did not challenge the validity of the 1998 Will. I consider that to have been an appropriate concession. I am satisfied and find that the 1998 Will is a valid will, subject to being revoked by the 2013 Will.

97. Based on Ms Zin’s evidence, I am satisfied that the 1998 Will was duly executed. The 1998 Will is rational on its face and in the absence of evidence to suggest otherwise, I am satisfied that the deceased had testamentary capacity as the time. I do not consider there to be any grounds for suspicion or doubt as to whether the 1998 Will expressed the mind of the deceased at this time such as to displace the presumption of knowledge and approval on her part. The 1998 Will reflects the contents of the Will Information Form, the deceased was experienced in making wills and the evidence does not suggest that she could not communicate in or understand English at this time.

98. I do not accept Gregory’s submission that Ms Zin’s testimony was given in breach of UCPR r 14.14 (which requires matters to be specifically pleaded). I also see no basis for his assertion that Isaac accompanied the deceased to the meeting in 1998 and misinformed Ms Zin about Gregory and reject his contention that suggests the Court should not accept Ms Zin’s evidence as she seemed to be in her early twenties “at an event that took place 25 years ago and was not under regulatory and ethical constraints of the legal profession”.

2001-2001: Gregory moves to the USA and the 2001 “repay” document

99. On 30 March 2000, Isaac’s second son, Richard, was born.

99. Gregory gave evidence that there continued to be substantial conflict between the deceased and Isaac because Marina denied the deceased access to Richard and Nathan. Isaac disputes this.

100. In May 2000, Gregory sold the Coogee unit and relocated to the United States to pursue education in relation to his Jewish faith. He gave evidence that he informed the deceased of his plans to relocate overseas in 1998 but that it took some time to organise.

101. Isaac gave evidence that in the period when Gregory was in the US, he was in more frequent contact with the deceased and visited her frequently, who told him that she thought Gregory was wasting his time in the US and the money that she and Roman had given him to purchase a home.

102. Gregory gave evidence was that while he was overseas, he spoke to the deceased over the phone frequently and that she told him that she had not seen or spoken to Isaac in weeks.

103. In 2001, Isaac sold a further investment unit which he had substantially renovated for $610,000.

104. In evidence is a document dated “7.7.01” (2001 Repay Document) which Isaac signed under a statement that he accepts he wrote, which says:

I Igor Chalik will repay Margaret Chalik the sum of $130,000 by November 2001

106. On the same document below the statement written by Isaac are a series of handwritten dates, descriptions and amounts listed (partially in Russian). The translation of the document identifies five entries described as “debt” with payments of amounts of $3000, $5000 and $82,[x] [1] 00, the latter with a date of 1/1/2003.

     1. This number is indecipherable.

107. The 2001 document was the basis for Gregory’s other money claim which alleged Isaac owed the deceased’s estate a further sum of $75,507.22. That claim was deleted from the TFASC. I say more about the 2001 document when considering the Deed of Loan.

2002- 2010: Gregory returns to Sydney, moves to Melbourne and returns to live with the deceased

108. On 16 April 2002, Gregory wrote to the deceased from Seattle indicating his intention to return to Australia on the basis of the breakdown of a relationship in the U.S, which stated as follows:

It is very hard for me to write you about it, but I feel that two years of my life have been wasted and, of course, about the loss of such an amount of money … On the other hand, I keep believing that I had no other choice, and these years would be wasted in Australia anyway. Furthermore, I recall my life with you, and I want to cry because you would drive me nuts with your rebukes and I would have no life either.

109. In late 2002, Gregory returned to Sydney and lived with the deceased in the Bondi Unit. He soon relocated to Melbourne and was married there in November 2002. Not long afterwards, he separated from his wife.

110. In July of 2003, Gregory returned to Sydney and again lived with the deceased in the Bondi Unit. He says he did so to care for the deceased who had separated from a de facto partner.

111. Isaac disputes this. He says the deceased did not have a de facto partner with whom she cohabited but described her as having become close friends with a man named Volodya, and that she ended her friendship with him on account of his drinking.

112. In May 2003, Isaac separated from Marina and moved to live alone in Bondi Junction. They formally divorced in 2006. Isaac received about $120,000 and a unit in Botany (which he says he had paid for from his savings) and he used the proceeds of the settlement, in addition to bank loans, to fund the purchase of a house in Matraville in 2007. Nathan and Richard continued to live with Marina but stayed with Isaac on the weekends. Isaac and his children had contact with the deceased most weekends. Following his divorce from Marina, Isaac purchased two takeaway food shops in the Sydney CBD with his fiancée, Hanh Dao (Hannah). In 2010, Isaac renovated the Matraville house into a duplex and sold half. He also sold both takeaway shops in 2012.

113. Between 2004 and 2005, Gregory was employed in a call centre administrative role by Isaac’s former father-in-law.

114. In 2007, Ethel passed away.

115. In October 2009, Gregory returned to Melbourne.

116. On 14 February 2010, Isaac married Hannah. He did not invite Gregory to the wedding. The deceased was invited but did not attend because, according to Isaac, she told him that Gregory had threatened to renounce her if she did. Gregory denies having made any such threats.

2010: potential sale of Bondi Unit

117. In May 2010, Gregory visited Sydney from Melbourne. Gregory says that the deceased was at that time hoping to sell the Bondi Unit so that she could move to Melbourne to live with him. Gregory gave evidence that upon his return to Sydney, the deceased told him she had entered into a contract to sell the Bondi Unit. He deposed that an accountant, Mr Michael Meyer, recommended that she speak to Mr Wermut (a Yiddish speaking solicitor) and recalled he and his mother attending a meeting with Mr Wermut in relation to the prospective sale and Mr Wermut recommended that the unit not be sold.

118. Gregory says that he engaged Mr Wermut because it was not the right time for the deceased to relocate on account of their lack of funds and he sought Mr Wermut’s advice in order to confirm that the contract was not enforceable.

119. Mr Wermut ‘s recollection is different to Gregory’s and I prefer his account. He gave evidence that Gregory (not with the deceased) came to see him with a suggestion of selling the Bondi Unit which his mother owned. Mr Wermut recalls that when he asked Gregory why he wanted to sell, Gregory said, “I want to free up a little bit of money” and told Mr Wermut the rough figure he hoped to realise (a figure Mr Wermut could not remember). Mr Wermut said that he raised the issue of stamp duty and agents’ commission, and queried what was going to be achieved if the Unit was sold. That, according to Mr Wermut, was the end of it and the sale did not proceed.

120. Isaac says that by early 2010, he observed that the deceased was experiencing memory issues. He referred to an agreement that she had signed with a real estate agent to sell her unit, her overdue bills and that she was missing arrangements to meet.

121. In relation to the sale of the Bondi Unit, Isaac says that on an occasion when he visited, the deceased told him she had found a piece of paper with her signature on it but did not recall signing it, thought it might have something to do with Gregory’s friend and when he told her it was a sales agent agreement to sell the unit, she said that she never wanted to sell it. Isaac says he called the sales agency, told them his mother had memory issues and the agreement was unenforceable and they never heard from the agency again.

122. Isaac also gave evidence that, from around this time, he and Hannah repeatedly invited the deceased to move in with them due to their concern about her ability to live independently. Isaac says the deceased refused on account of Gregory wanting to relocate back to Sydney, at which point he would require accommodation in the Bondi Unit and financial support.

2011: noticeable decline in deceased’s health and Gregory moves back to Sydney

123. On 30 August 2011, the deceased was taken to St Vincent’s Hospital by paramedics.

124. The St Vincent’s hospital admissions form and progress notes from 30 August 2011 record that Isaac was listed as the emergency contact. They record a diagnosis of “confusion” and the presenting problem as “headache/trouble urinating” and also state:

Pt confused at time of interview. Cannot remember why she was brought to hospital or how. Very distressing – paranoid re friend + son colluding to harm her/take her home away. They want to kill me.’ Denying any symptoms however states she feels awful and is sick.

125. The notes record that the hospital spoke to her son who stated that the deceased went to her GP that day and spoke to another son in Melbourne, who was concerned and then called an ambulance. They also refer to the following: “deteriorating cognition (?dementia) over last 12-18 months”, the family was considering placement or home services but the patient was resisting; the deceased was “alert, orientated to place/person/time” but “confused re event of today”; “impression/UTI + ? acute confusion – worsening dementia”; patient “rambling + pacing and wants to talk to son”.

126. The notes also state: at 11.30 pm “..refusing Cxr…PVC + treatment…any intervention…her family have done this to her + she wants to give up. Refusing tablets…”; at 2 am, she now remembered her son called an ambulance and “no longer paranoid”, “1 son in Sydney married to Vietnamese woman who she does not get on with and other son in Melbourne who she does not see regularly anymore”, “able to talk in sentences…alert – surprisingly oriented to time and place…. does display some tangentialism [sic]…often returns to previous topics which she has forgotten – paranoid delusions expressed….not allowing further examination”. The notes also include a list of “issues” which include the following:

? Acute deterioration in mental state. Do not have a grasp of baseline”, Acute exacerbation of asthma, likely related to viral UTI, long term deterioration in cognition? Dementia, depending on baseline ? this lady is safe to live at home by self; and she will require more rigorous investigation and treatment but not appropriate to escalate at 0300 in the morning.

127. The deceased left the hospital without waiting to be discharged or picked up by Isaac. The hospital completed an “Absconded Patient Report to Police” that records her mental state as “confused”.

128. Isaac says he had spoken to the deceased earlier on 30 August and she told him she was short of breath and they made arrangements for to see her general practitioner (GP) at that time, Dr Trosman. Isaac says he was listed as the deceased’s emergency contact following an earlier admission to St Vincent’s Hospital on 11 May 2011, and that his mother had agreed to wait for him to collect her from the hospital on 31 August 2011 but instead discharged herself and caught the bus home.

129. According to Gregory, he had called the deceased on 30 August, found himself talking to a paramedic who explained that his mother was experiencing abdominal pains and was suspected of having a urinary tract infection and he gave them Isaac’s name as an emergency contact on account of him being in Melbourne. He also gave evidence that he spoke with Isaac over the phone on 30 August 2011 to inform him that the deceased had been hospitalised and, at this time, Isaac suggested that the deceased was not taking her medication and should be put into an aged care facility. Gregory refused and committed to returning to Sydney to care for Margaret. Gregory gave evidence that he called the hospital on several occasions prior to the deceased’s release and was informed that she was being kept in the hospital due to her persistent coughing and asthma, conditions of which he was not previously aware. Gregory’s evidence was that the deceased discharged herself and had waited for Isaac to collect her but he did not arrive so she caught the bus home.

130. On 31 August 2011, Gregory contacted an organisation, JewishCare, and referred the deceased to them.

131. JewishCare’s notes from 31 August record that Gregory told them that: the deceased spoke and understood English but preferred to speak in Russian; she lives alone in a unit in Bondi; he used to provide care for her until he moved to Melbourne three years ago; he telephones her every other day; she seemed to cope well at first but he noticed she was missing taking her medications for high blood pressure and asthma; she manages and is independent but noticed out of date food in fridge; she is active and goes out each day; Gregory requested assistance with “socialisation”, “monitoring medication compliance and freshness of foodstuffs”; and he would like to be the first point of contact. The notes from 5 September record that the deceased was referred for assessment and intervention and assigned to Ms Assia Zinder.

132. On 8 September 2011, Ms Zinder met with the deceased at the Bondi Unit. JewishCare’s notes record that Ms Zinder called Gregory and told him that the deceased had a problem with personal care and looked very untidy; the deceased said she was never hungry but was not able to say what she eats and when; there was smelly rotten food and the benchtops were full of old bags and dirty; the deceased did not know who paid the bills and was aware she did not receive them for months; the deceased did not do regular shopping and was not able to explain what she bought; she avoided direct questions about managing her daily life and there was a feeling she did not know what to answer; the deceased was repetitive and talked about her late husband and mentioned going to Macquarie University many times for an outing; her bedroom and shower looked tidy but it was impossible to get to the other rooms as they were full of dirty clothes and papers; the deceased did not have any medication at all; and the way the deceased presented herself and answered questions raised Ms Zinder’s concerns.

133. Isaac says that the deceased attended Macquarie University when he graduated from there in 1994 but he had not taken her back there and was unaware of any reason why she would have gone back.

134. Shortly after 8 September 2011, Gregory returned to Sydney to live with the deceased in the Bondi Unit. He says that his mother had frequently asked him to relocate back to Sydney prior to her hospitalisation in August 2011 due to her loneliness. He says that when he moved back, he did not pay rent or utilities but paid for his own living expenses.

135. Gregory deposed that when he got back he found the deceased in a poor state; her hair was unkempt; her nails needed cutting; her clothes were shabby; her bedclothes needed washing; the unit was dirty and messy and it did not appear that she had had a shower for quite some time. Gregory gave evidence that the deceased was capable of taking care of herself when he returned although she was not capable of taking care of her medical conditions and described her as “reclusive”, “obese”, “very unhappy” and “eating unhealthy foods”.

136. In cross-examination, Gregory’s evidence changed somewhat. He resiled from statements made in proceedings in the New South Wales Civil and Administrative Tribunal (NCAT) where he described that when he returned to the unit in 2011 there was a “stench so bad that he had to take action then and there”, the fridge was “just a nightmare, literally black” and he had two weeks or three weeks of cleaning. In cross-examination, Gregory gave oral evidence that: the stench had nothing to do with the state of the unit physically or the deceased’s personal care but rather, was caused by her phlegmy asthma cough; there was some mouldy food in the fridge but could not recall it as black; the unit was in pretty good condition and the reason why it took two weeks to clean was not because of the unit’s general uncleanliness but because of clutter created by items he had left in two of the bedrooms when he was last living in the unit before relocating to Melbourne; the unit could not have been unclean and did not require much maintenance because his mother was barely there. Gregory did not recall making statements in submissions in the NCAT proceedings that her “behaviour in September 2011 was evidence of dementia” and that “In hindsight, Mum had dementia in January 2011, or maybe even January [2010] but was not obvious to me in September 2011” and explained that they were based on later statements made by other doctors about the progressive nature of dementia.

137. Gregory says that, on the day after his arrival, he met with Dr Beresford, who was the deceased’s treating doctor at St Vincent’s in the carpark in front of St Vincent’s Hospital. He recalled that Dr Beresford told him that the deceased required an urgent change in lifestyle to treat her weight, high blood pressure and asthma. I consider it unlikely that discussion took place in the absence of any contemporaneous notes from Dr Beresford to corroborate Gregory’s evidence.

138. On 12 September 2011, Gregory spoke with Mr Wermut to arrange for Gregory to be the deceased’s power of attorney and guardian. Gregory said that he did so at Dr Beresford’s recommendation after their conversation in the St Vincent’s Hospital carpark and having spoken to the deceased more than once about getting a power of attorney or guardianship in the context of broader conversations about her medical conditions. He says he did not pressure her to enter into these arrangements.

139. Mr Wermut made a file note of a discussion with Gregory and the deceased on 12 September 2011 which records that Mr Wermut “explained to her [the deceased] what it [the power of attorney] means” and that she also wanted to give Gregory a power of guardianship. Mr Wermut could not recall whether he met with Gregory and the deceased in person that day or spoke over the phone and the file note does not say.

140. Around this time, Gregory attended the Commonwealth Bank with the deceased in order for him to be granted third-party authorisation to conduct banking for the deceased. By letter dated 12 September 2011, the Commonwealth Bank notified Gregory that he was registered for NetBanking.

141. On 16 September 2011, the deceased signed Power of Attorney and Enduring Guardianship documents in favour of Gregory that had been prepared by Mr Wermut. There is no file note of that event but Mr Wermut’s evidence was that Gregory and the deceased must have come to his office to sign the documents that day. Mr Wermut gave evidence that he explained the documents to the deceased but did not ask the deceased to explain back to him what a power of attorney does after doing so. He also gave evidence that, to his recollection, nothing had indicated to him that the deceased’s capacity was an issue when he met with her and Gregory in September 2011. Mr Wermut says that it was during this meeting that he learnt the deceased spoke Yiddish, although it was unclear from his evidence whether he conducted the September 2011 meeting in that language.

142. Records of the deceased’s Commonwealth Bank account (deceased’s CBA Account) indicate that on 26 October 2011, a transfer of $250, recorded as a “loan” was made to Gregory’s NetBank account.

143. After Gregory arrived in Sydney, he arranged for the deceased to be seen by a new GP, Dr Maria Opacic, rather than Dr Trosman He says that he lost confidence in Dr Trosman as he did not receive a response when he tried to call him in early September.

144. On 26 September 2011, Dr Opacic saw the deceased. Her notes for that day record the following in relation to the deceased: “forgets things in the fridge, forgets taking medications, ? short term memory, asking same questions …”.

145. Gregory says that after he moved back to Sydney, he assisted the deceased in taking her medication and altered her diet to facilitate weight loss and rectify a vitamin D deficiency. He says that they agreed on what foods she liked and what he would cook, they went shopping together and they kept kosher when he lived with her. As to the deceased’s activities, Gregory gave evidence when the deceased left the unit she spent most of the day at Bondi Junction “eating junk food”, sitting on a bench at both a bus stop and at Bondi Junction near the Coles chatting with people or not talking to anybody and watching people, and would return in the afternoons.

146. Gregory gave evidence that he tried to facilitate activities for the deceased as much as possible to prevent her social isolation, included shopping and going to the local club, and that he facilitated her reconnecting with her sister Kalya by telephone after they had been estranged for 20 years. There is no corroborating evidence of this and Isaac disputes it, noting that Kalya did not attend Margaret’s funeral.

127. Isaac says that sometime in 2011, he observed that a padlock had been placed on the kitchen door. Gregory’s evidence was that he did so a few weeks after his return to the Bondi Unit in 2011 because the deceased would forget to turn the stove off.

128. There was also evidence that the door to the deceased’s bedroom has been damaged, including the lock on it. Gregory gave evidence that he raised his voice at the deceased when he discovered she was eating McDonalds because he was “very insistent that she follow Dr Opacic’s medical opinion”. Gregory recalled two occasions in either 2011 or 2012 when the deceased responded to these arguments by locking herself in her bedroom and she broke the lock such that she could not get out. He says that on the first occasion, he had to “kick” open the door and that he replaced it two or three weeks later, and on the second occasion he did not replace the handle. Gregory denied that he had broken through the deceased’s door out of anger or that he applied the lock so she could not get away.

129. In November 2011, there was a conflict between Isaac and Gregory in relation to items stored by Isaac in the garage of the Bondi Unit. A typed letter in both Russian and English signed by the deceased was sent to Isaac in November 2011 requesting the removal of that property. Gregory gave evidence that he had discussed sending this letter with his mother for months and that it was typed in two languages so that she could also read it before it was sent to Isaac. Isaac says he had never known his mother to type letters prior to this time and that the signature on the letter did not look like his mother’s. I find it likely that Gregory typed the letter and arranged for the deceased to sign it.

130. On 20 December 2011, bank records indicate that the deceased attended the Bondi Junction Commonwealth Bank branch to request that her statements be sent to the branch to prevent her son opening her mail. On 14 March 2012, the deceased’s record of interactions with Commonwealth Bank states: “3rd party authority cancelled”.

2012: Gregory becomes deceased’s carer, medical issues and visits by Isaac and his sons

151. On or about 16 March 2012, Dr Opacic completed a Centrelink Carer Payment and/or Carer Allowance Medical Report for Gregory to receive a carer allowance for the deceased. That report ticks the box indicating the deceased was “cognitively impaired” and, under the section entitled “Abbreviated Mental Test (AMT), ticks four boxes as correct and three boxes as incorrect (incorrect as being not recognise two people in the room, name the Prime Minister or recall and address minutes later). The report identifies the deceased’s disability and health conditions as asthma, hypertension and “poor short term memory” (see AMT) and ticked the box that the conditions started more than 12 weeks ago.

152. Dr Opacic’s notes from 2012 record that the deceased was regularly non-compliant with her medications and was advised repeatedly to take them and Dr Opacic told Gregory that he would have to ensure that they were.

153. On 1 May 2012, $10,000 in cash was withdrawn from the deceased’s CBA Account. Gregory says that he did not know why the deceased withdrew $10,000 or what she had done with it and said that he had noticed her in possession of large sums of cash previously. There are other transactions on the deceased’s CBA Account around this time which were facilitated by Gregory: on 27 June 2012, a transfer of $864 for “Ulpan Tuition fees”, which Gregory says was for a course he was taking and that the money was withdrawn with his mother’s permission and repaid in instalments over the “next couple of years”; and on 5 July 2012, a transfer of $147.40 was made for “Melbourne kosher”, which Gregory gave evidence was done with his mother’s permission in order to purchase kosher meat.

154. Gregory gave evidence that following his relocation to Sydney from Melbourne in September 2011, Isaac and his children were largely estranged from the deceased, although he accepted that Isaac visited her usually once a month.

155. Isaac disputes this. He says that during the period when Gregory was living with the deceased from 2011, he visited his mother sometimes weekly and sometimes fortnightly and described picked his mother up on several occasions to take her to a park to spend time together. He says that Gregory made his visits very unpleasant and he believed that Gregory tried to influence the deceased against him and tried to keep Isaac and his boys away from the deceased, which Gregory denies.

156. Richard and Nathan both gave evidence that during this period of time, they spoke Russian with their grandmother and that she knew only limited English. They gave evidence that prior to 2013, they would see their grandmother every fortnight or so on a weekend when they would go with their father to visit her in the Bondi Unit.

157. Isaac gave evidence that sometimes when he collected the deceased to come to his sons’ tennis games during this period, she would be unable to recall where they were going once she was in the car. He also recalled that by this time, she did not write birthday cards or remember family occasions.

158. Nathan recalls that in 2012, the deceased seemed mentally unwell and would sit in the living room watching television or in the corner not watching anything. He and Richard both gave evidence that by 2013, the deceased was unable to remember the rules of tennis or checkers, make decisions or remember the answer to questions discussed earlier in the same conversation, like Richard’s age or whether he still played the piano. Richard gave evidence that from around 2013, the deceased’s conversations became repetitive and she could understand only simple detail. He described how the deceased would drift from one topic of conversation to another. Nathan also described her rapid weight loss and unkempt appearance during this period.

159. Gregory says that in early 2013, and for years afterwards, although the deceased was forgetful and absent minded, this was only in relation to trivial matters and she was able to talk sensibly and without difficulty about matters like her husband, relatives and family history. His evidence was that the deceased’s failing memory in relation to games and tennis was likely because of lack of interest or an inability to relate to Richard and Nathan on the basis of their limited contact rather than cognitive impairment.

160. Gregory gave evidence that by 2013, his mother could not cook or shop but that they had conversations together “all the time at home” and that she was able to relay conversations she had with Isaac.

161. By April 2013, the deceased had had some falls. Gregory refers to three falls. The first was in a fast-food restaurant and an ambulance was called. The second was tripping on the street and Gregory caught her. On the third occasion, the deceased tripped on 30 April 2013 and was hospitalised in St Vincent’s with two fractures in her arm and then for a week at the War Memorial Hospital. These admissions are described below.

17 – 23 April 2013: preparation and making of 2013 Will

162. On 23 April 2013, the deceased made the 2013 Will, which was prepared by Mr Wermut. The 2013 Will is three pages long (including a back page). Under the 2013 Will, the deceased:

1. revoked all previous wills and testamentary dispositions: cl 1;

2. appointed Gregory as sole executor of her estate and gave him the whole of her estate both real and personal: cl 2; and

3. if Gregory did not survive the deceased for one month, appointed Isaac as sole executor and gave him the whole of her estate: cl 3.

163. Clauses 4, 5 and 6 are boilerplate provisions regarding the powers of the executor.

164. The 2013 Will is witnessed by Mr Wermut and Anette Craig, a secretary.

165. Gregory deposed that, at some point after he moved in with the deceased in 2011, he found two wills, one made in 1996 or 1997 (Gregory gave different years in different affidavits) and one in 1999. It is unclear whether the first of the two wills Gregory says he found was the 1997 Will or a different document. Gregory never produced the 1999 will to the Court. In cross-examination, Gregory was less precise about the years of the two wills, saying they dated to the 1990s, were made with the NSW Public Guardian and were “identical”. He gave evidence that both wills he found were missing from the deceased’s papers after she went into the nursing home.

166. In his written evidence, Gregory deposed that both of the wills he found named him as the sole beneficiary. In cross-examination, he gave inconsistent evidence, stating that he had not read either will.

167. Gregory deposed that he showed the “last” of the two wills to his mother and they had a conversation to the following effect:

Me:    Are you happy with the last Will?

Mum:    No. I want you to have my property. Igor has deserted me and you have taken care of me.

Me:    Do you want me to arrange for you to make a new will?

Mum:    Yes.

Me:    How about Mr Wermut the solicitor who acted for you when you wanted to sell the unit and talked you out of it?

Mum:    Yes, I liked him as he spoke Yiddish.

168. In cross-examination, Gregory denied knowing that Mr Wermut spoke Yiddish, denied that his mother spoke Yiddish with Mr Wermut when executing the power of attorney and guardianship in 2011, and denied deliberately selecting a Yiddish speaking solicitor for the making of the 2013 Will.

169. Gregory says he rang Mr Wermut to make an appointment for the deceased to make a new will. Gregory says he took the deceased to see Mr Wermut on 23 April 2013, Mr Wermut spoke to him for a couple of minutes before seeing the deceased on her own and at the conclusion of the meeting, Mr Wermut said something like, “she left everything to you again”, and that this surprised him. Gregory denied that he suggested to his mother that she should make a new will in his favour alone or exclude Isaac and said it was an impossibility for him to have suggested this to his mother because Jewish law prohibits leaving the entirety of an estate to one child.

170. According to Mr Wermut, he had two meetings with the deceased. The first was on 17 May, when he met with the deceased on her own with Gregory waiting at reception and took instructions from her, and the second on 23 May, when he met with the deceased and Gregory together and the deceased signed the 2013 Will.

171. Mr Wermut did not have his handwritten file notes of these meetings (he closed his practice in June 2019) and his evidence was given based only on his recollection of the events.

172. As to the meeting on 17 April, Mr Wermut deposed that:

1. Gregory was with the deceased in the reception area. Mr Wermut told Gregory that he wished to speak with the deceased alone and, when he said that, he detected “some unease or discomfort” on the part of deceased and that she was “psychologically … quite dependent” on Gregory. Mr Wermut discerned as much from her body language when they were both in the reception area, including her tendency to look to Gregory for reassurance;

2. he met with the deceased alone and conducted the appointment in Yiddish and was satisfied that they were able to understand each other in that language;

3. because of her age and his perception that she was not of “robust health”, he spent some time talking about general matters to satisfy himself that she was capable of making a will;

4. he recalled asking if she knew who he was and she said he was a lawyer but when he asked whether she knew why she was there, she could not reply. Mr Wermut says he told her it was to make a will and this “appeared to jog her memory as though she now recalled the purpose of the meeting”;

5. the deceased told him she did not work now, but used to work either preparing or delivering food and said she had enjoyed her work;

6. he did not recall any other details of the conversation but formed the view she could have a sensible and lucid conversation;

7. the deceased gave him instructions that she wanted everything to go to Gregory and when he asked her what would happen if Gregory died, she said that everything should go to her other son, Igor who was also known as Isaac;

8. he said that as the deceased had two sons, she should think about leaving something to both of them and “she immediately and ….very firmly told me that what she wanted was for everything to go to Gregory”. Mr Wermut says he felt uncomfortable about this and he said again that she should think about leaving something to Isaac. The deceased again said that everything was to go to Gregory and not to Isaac, stating that Isaac has very little to do with her, that she saw him only rarely and Gregory was the only who was looking after her; and

9. he told the deceased that there was a strong possibility that Isaac would make an application to court after her death for some part of her assets, to which she expressed some surprise and seemed upset since that was not what she wanted.

173. Mr Wermut said that the deceased and Gregory returned to his office on 23 April 2013 to sign the will and the deceased wanted Gregory present for the signing, which he was. Mr Wermut deposes that he summarised the will to the deceased and asked her if she was happy with what he had summarised and she said she was and she then proceeded to sign the will.

174. Mr Wermut deposed that he said to the deceased and Gregory that there was a good chance Isaac would go to court after her death and ask for something from the estate. He said that, although he did not have all the information, he thought there was a good chance this would happen since she was cutting him out altogether. Gregory said that he was confident the court would not give Isaac anything once they heard all the facts and understood the history of the relationship between Isaac and the deceased. Mr Wermut says that he advised the deceased to set out in detail the reasons why she was cutting Isaac out of her will. Gregory replied she was not good at writing things down and her native language was Russian. Mr Wermut then told Gregory that it was fine if the statement as in Russian as it could be translated if needed and if she was not good at writing, she could tell Gregory her reasons and he could write it down for her, but it had to be her statement and signed be her.

175. In cross-examination, Mr Wermut said that he took instructions from the deceased in Yiddish, describing his Yiddish as “rusty but conversant”. He said that he and the deceased had a conversation at a basic level of Yiddish and he had no doubt the deceased understood because she was responsive to things he was saying. He said the deceased “didn’t have a very agile sort of mind” and that he “got the feeling that she thought more slowly”, described her as lucid, intelligible, responsive and very adamant about what she wanted in her will, and said that she cut the conversation off when he raised leaving something to her other son.

176. In cross-examination, Mr Wermut agreed that the deceased not knowing why she was there “raised a flag” in his mind as to her capacity but described what he observed in the deceased as a “fleeting memory loss”. He recalled that the deceased did not say anything about the Bondi Unit being a principal asset of her estate (he said he was aware from previous contact with Gregory that she owned the Bondi Unit), anything about her having $65,000 cash in the bank or that she had previously made other wills. Mr Wermut could not say whether the deceased had considered her estate but said that there was no indication of any cognitive impairment which put him on notice that she might not be aware of what she was doing and Mr Wermut agreed that he did not at any point ask the deceased to repeat back her understanding of what the 2013 Will said.

177. As events transpired, there was a document created in Russian (dated 17 September 2013) that Gregory brought to Mr Wermut’s office, which Mr Wermut could not understand but he kept with the 2013 Will for safekeeping, which is referred to below.

30 April to July 2013 – deceased’s hospital admissions and health assessments

178. On 30 April 2013, following her fall, the deceased was admitted to St Vincent’s hospital and discharged later that day.

179. The hospital records of the admission record that: the deceased had a mechanical trip and fall from a gutter and a “recollection of events”; she was unsure if left or right-handed; she became teary and emotional, increasingly agitated, refused plaster initially and X-ray and threatened to discharge. They also record the following: previous medical history of asthma, UTI and deterioration in cognition; deceased was not taking any medications since late 2021 (sic, sc. 2012) and not seeing GP at all (this was incorrect as she had seen Dr Opacic throughout 2011 and 2012); she was unlikely to manage personal care, already unkempt; she claimed to have never fallen before but records showed she had; she said she did all the cooking, housework, shopping and was independent with finances and bills; “Action plan: MMSE = 8/10 but pt increasingly agitated re pain and previous medical notes + decline cognition, poor judgment”; the deceased could not give her date of birth or an address minutes later; cognitive status marked as mildly impaired on an AMTS score of 8; cooperation/insight or judgement is noted as severely impacted; very vague historian and difficult to assess; “son does not help with care (?? She cares of him)”; and long history of refusing services.

180. A CT brain scan was performed at the hospital, which found an “8mm calcified lesion arising from the anterior flax” thought likely to represent a calcified meningioma.

181. On 1 May 2013, Ms Amanda Klahr from the Geriatric Flying Squad conducted a home visit at the Bondi Unit, having been referred by the St Vincent’s emergency department. Ms Klahr’s Initial Assessment report records that:

Son has stopped BP meds and cholesterol as he states BP is always high and that all she needs is diet and exercise not tablets to manage medications…

Carer son is on a disability pension

Showering/dressing/grooming: Son reports independent with prompting. However, she was unkempt and unwashed. Will not be able to shower now. She was repetitive in particular in regards to her husband and her son …

Nutrition: Very poor nutrition. Eats a lot of junk food, Sounds like she wilt eat too much and not know when to stop. Kosher diet.

Cognition: She was repetitive in particular to her husband and her son and difficulties of the relationship with her son. Deferred to her son to answer questions for her.

Behavioural issues: Paces, moves objects around the apartment, constant need to keep moving

General inspection: Patient was unwashed and unkempt, her PJs were filthy and she was not wearing any pants. Grazes on her nose, chin, fingers and the palms of her hands … Fingers swollen with bruising present …

Plan: Rehab admissions would be best option but client unsure…. Review of cognition and give dementia diagnosis….Son declined geriatrician review at home feels it is unnecessary.

182. On 2 May 2013, the deceased was admitted to the War Memorial Hospital. The War Memorial Hospital notes of the deceased’s admission record the following:

unspecified fall, unspecified place of occurrence, other and unspecified symptoms and signs involving cognitive function and awareness, unspecified dementia, disorientation unspecified, anxiety disorder unspecified.

183. The War Memorial Hospital progress notes for 2 May record the issues affecting the deceased’s care, which include:

2. Confusion + dementia → needs formal diagnosis

….

→ MMSE

3. Anxiety

→ worried someone will break in whilst in hospital

→ reassurance

…

7. Social situation → unsuitable for him

…

9. Poor nutrition + junk food++

→ dietician (Kosher)

11. Poor self-care

12. Medication non-compliance

184. Hospital progress notes during the deceased’s admission record the following:

2 May: “Alert and orientated place person month but not day, time date or year” and confusion and dementia needs formal diagnosis;

474. Isaac disputed many of Gregory’s contentions. He denied that he kept the deceased from her grandchildren, explaining that while married to Marina, he preferred to meet the deceased in public places with his children rather than visit her in the deceased’s apartment, so that he could spend time with her without Gregory.

475. Isaac admitted that there was conflict between Marina and the deceased but denied the deceased was not invited to his second wedding. According to Isaac, the deceased did not attend because of a threat from Gregory who was not invited to the second wedding.

476. Isaac says that he visited the deceased frequently when Gregory was in America and Melbourne, took her to medical or social engagements and otherwise looked after her. He says he took on greater caring responsibilities during those periods, had a good relationship with her and that he and his sons continued to visit and see her, despite the difficulties they encountered from Gregory.

477. It is neither possible nor necessary to resolve all of the factual disputes raised by the parties’ submissions. Whether or not Isaac invited Gregory to his second wedding is not significant in my view. Isaac’s evidence that he invited his mother and she declined to come seems plausible as it was possibly due to Gregory’s absence although I also note the hospital records suggested that the deceased did not get on with Hannah.

478. In general, I am satisfied that Isaac maintained a familial relationship with the deceased throughout her life and accept that he provided her with care and assistance, such as taking her to medical appointments and the like, more often when Gregory was not around. I also accept his evidence that he spent time with her later in life, when she was a resident at the nursing home closer to where he lived.

479. However, what is clear from the evidence is that the relationship between Gregory and Isaac was strained (and continues to be so) and it was that relationship which likely impacted the extent to which Isaac saw the deceased and the closeness of their bonds.

480. Gregory also alleged that Isaac seized the deceased’s personal property while admitted to the Bondi Unit while Gregory was in Tamworth. Gregory seeks the return of the property or damages in the amount of $20,000 from Isaac or the NSW Trustee as the property has sentimental value and remains estate assets.

481. Leaving to one side that I have seen nothing in the evidence to support that allegation, as it was not pleaded and Gregory did not identify what personal property was taken, I do not deal it. 

Any other matter considered relevant: s 60(2)(p)

483. In his further written submissions, Gregory alleges that his parents miscalculated in deciding to immigrate during his early teenage years (a decision Gregory says was dominated by the deceased) and this led to his failure to adjust in Australia and to pursue a normal education and career paths as Isaac did. He submits that his attempts to rectify his failure to integrate into the community and commence a family of his own were interspersed by the need to support the deceased in her time of grief after Roman died and he was finally impacted by her self-imposed health issues from 2009 to 2014, which required him to ultimately commit nearly a decade of his life to her care.

484. I accept that the move to Australia was likely challenging for Gregory. However, the facts in this case do not, in my view, demonstrate that the deceased’s conduct in that regard was somehow to blame for Gregory’s current circumstances or that his role as carer was thrust upon him by the deceased, such that he had no choice to undertake it. That is not to say that Gregory’s role as carer is unimportant in this case. Rather, it is to explain why I am not persuaded by the thrust of Gregory’s contention outlined above.

Consideration and determination

485. There is no dispute that Gregory is an eligible person to make an application for further provision from the deceased’s estate: Succession Act s 57(1)(c).

486. There is, however, a threshold issue concerning the time Gregory commenced the proceedings.

487. An application for a family provision order must be made not later than 12 months after the date of the death of the deceased person unless the Court otherwise orders, on sufficient cause being shown or the parties to the proceedings consent to the application being made out of time: Succession Act s 58(2).

488. The Court may decide to extend time under s 58(2), which is a discretionary decision. Sufficient cause must be shown for bringing a late claim. The Court will look to factors such as whether the beneficiaries’ interests would or might be affected by the making of an order to extend the time or prejudiced because of the delay; whether there has been conduct on the part of parties which might justify the grant or refusal of the application to extend time; and the strength of applicant’s case: Verzar v Verzar [2014] NSWCA 45 at [23], [24] and [25] (Meagher JA).

489. Gregory commenced the Succession Proceedings on 15 November 2021 which, as noted above, sought an interim distribution from the deceased’s estate. His claim for an order for final further provision was included in his amended summons filed on 25 November 2022. Prior to this, Gregory’s summons had only sought liberty to apply for final provision, upon giving seven days’ notice.

490. Isaac contends that this means that Gregory’s application has been brought out of time because the application for final relief was made more than 12 months after the deceased’s death. He does not consent to an extension of time and says that Gregory has not shown sufficient cause why he should be allowed to say he needs further provisions beyond his expected half share under the 1998 Will.

491. In my view, Isaac’s position and submissions on this issue raise a matter of form and fail to take into account the substance of what happened in the case. It may be correct that the prayer for relief seeking final provision was not included in the amended summons until 25 November 2022, but the parties (and the Court) had to that time proceeded on the basis that Gregory’s claims included a claim for further provision in the event that the 2013 Will was held to be invalid, as was apparent from the pre-trial directions and affidavits filed before October 2022, the date on which the hearing was originally listed to take place (and which hearing date was vacated). The late amendment to include a prayer for relief seeking final further provision simply regularised what the parties had themselves prepared for and was necessitated by what appears to have been a pleading oversight by Mr Adamson. There was no prejudice to Isaac when the Court allowed the amendment to be made and none when the hearing was conducted and no late change of mind on the part of Gregory to pursue a case which he had delayed commencing.

492. For these reasons, and leaving to one side whether such an order is strictly necessary having regard to s 65(2)(c) of the Civil Procedure Act 2005 (NSW) (CPA), I am satisfied that it is appropriate to exercise my discretion and grant Gregory an extension of time to bring the application for a family provision order, even though for reasons which I will come to, I have ultimately decided that Gregory is not entitled to final relief for provision in this case.

493. The remaining issue for determination is whether the Court is satisfied, at the time of considering Gregory’s application, that the deceased’s will failed to make adequate provision in life for his proper maintenance or advancement and, if so, what provision ought to be made.

494. Gregory submits that based on the facts as presented to the Court, he is the only person eligible to benefit from the deceased’s estate and is entitled to the full value of the estate. He relies, in particular, on his consistent and long-term commitment to the deceased’s welfare since Roman’s death. In support of his claim to the totality of the deceased’s estate, Gregory also says he needs the rest of the deceased’s estate to live, and that Isaac has failed to adduce any relevant factual evidence of his close and personal relationship with the deceased except for the palliative part of her life and also failed to adduce evidence that he is lacking in means to support and educate himself.

495. Isaac submits that Gregory is not entitled to any more than an equal share of the deceased’s estate as provided for under the 1998 Will, which is a substantial distribution and is adequate provision for Gregory as it would allow him to buy a property mortgage free. Isaac submits that Gregory’s stated needs, mostly relating to his planned 3D printing business, are unmeritorious and reflect a desire to start a business “risk-free”, rather than a genuine need. He also maintains that the deceased was consistent, in the 1980 and 1988 wills, in balancing her two sons’ entitlements and the Court should not depart from that balanced position.

496. Isaac’s submissions also contended that Gregory’s application is “one of the most unmeritorious and solipsistic claims one could imagine” and that Gregory’s conduct has done nothing to advance it. Isaac says that the deceased was conscious of Gregory’s dominant behaviour and “in good conscience” gave him an ample half of her estate, and it is not proper for him to now be allocated more. In that regard, Gregory contends that the interim distribution already made should be deducted from that equal share.

497. Whether the deceased made adequate provision for Gregory is a question of objective fact to be determined as at the date of hearing. In making that determination, the role of the Court is not to achieve an overall fair disposition of the deceased's estate, seek to rewrite the will based on notions of equality or engage in an exercise of addressing any sense of wrong, hurt feelings or disappointed expectations. The Court's role goes no further than determining whether “adequate” provision for Gregory’s “proper” maintenance, education and advancement in life has been made by the deceased’s 1998 Will and, if not, the making of provision taking into account all the circumstances of the case: Steinmetz v Shannon at [95]–[97] (Brereton JA); Meres v Meres [2017] NSWSC 285 at [114]; Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) at [8].

498. Applying those principles, I do not accept that Gregory’s submission that the fact his financial position is worse than Isaac’s or his feelings that Isaac has had better opportunities in life are significant to or greatly assist in a consideration of the issues  for determination.

499. The question whether the deceased’s 1998 Will made adequate provision for Gregory’s proper maintenance or advancement in life must be considered in the context of the totality of the relationship between the deceased and Gregory, the relationship between the deceased and Isaac, the size of the deceased’s estate, Gregory’s needs and the Isaac’s position as the other beneficiary, having regard to the evidence summarised above concerning their financial and all the other circumstances.

500. Having undertaken an evaluative assessment of the circumstances and weighed all of the evidence and submissions, I do not consider they justify a conclusion that inadequate provision has been made for Gregory’s proper maintenance and advancement in life or that further provision for Gregory should be made in addition to the half share that he can presently expect to receive.

501. The deceased considered the claims of Gregory and Isaac when she made the 1998 Will and due consideration and weight to her wishes should be given, although they are not determinative: Sgro v Thompson at [6] and [86]; Slack v Rogan at [127].

502. At the time the deceased made the 1998 Will, Gregory was 35 years old, living with the deceased in the Bondi Unit in Sydney and, I infer, working in paid employment (possibly driving a taxi or working as a bank clerk), and he also owned the Coogee unit.

503. However, what is relevant is the position Gregory was in at the hearing, which is different to that in 1998. As outlined above, by 2023, Gregory was in a precarious financial position and had significant needs. His only regular income is unemployment benefits and he lives in a van located on a vacant block of land in Tamworth with five dogs. Although Gregory failed to establish that his physical impairments limit his ability to work, having regard to Gregory’s age, the fact that he has not been in paid employment for many years (since at least 2011 when he came back to Sydney to live with the deceased), and was the deceased’s carer for at least six years, satisfies me that Geoffrey’s prospect of gaining future paid employment is low, even noting the long list of jobs available in the Tamworth area.

504. As to Isaac’s position, as he has not put his financial circumstances before the Court, I proceed on the basis that he is financially secure and can provide for himself and is in a better financial position than Gregory.

505. However, the assessment of whether Gregory was left with adequate provision and what is proper for his maintenance and advancement is not made only on his financial position, including when compared to that of Isaac, as the other relevant party whose interest must be taken into account as a named beneficiary under the 1998 Will: Megerditchian at [33], quoting Sgro v Thompson at [6] (White JA). The Court must consider all the circumstances.

506. I have described and made findings about the relationship between the deceased and Gregory and between the deceased and Isaac, the contributions made by Gregory to the deceased and what provision she made for him over her lifetime.

507. I am satisfied that Gregory had a long-standing familial relationship with the deceased. He provided companionship for the deceased and made significant long-term contributions to her welfare and care over the years. There is no doubt that the deceased’s needs increased substantially over the years and Gregory bore the day-to-day burden of that, particularly when providing full-time care to her from 2011.

508. Isaac had a continuing mother son relationship with the deceased. Viewed objectively, Isaac’s relationship with the deceased was less close than the one she had with Gregory and Isaac’s contributions to her care and welfare were more limited over the years, no doubt driven by the tension and difficulty in the brothers’ relationship rather than that between Isaac and the deceased.

509. That said, Gregory benefitted financially from living in the Bondi Unit rent-free for many years and there are legitimate questions about the quality of aspects of the care that Gregory provided to the deceased later in life. He was recognised to be difficult and controlling by the deceased and others, and I am satisfied that the evidence establishes those matters.

510. There are other matters which, in my view, are relevant to a consideration of whether the adequate provision for Gregory’s proper maintenance and advancement in life and how a competent and informed testator would make the decision regarding the deceased’s estate as at the date of the hearing. Those matters are the facets of Gregory’s conduct and character outlined above, in particular, the manner in which the 2013 Will came about, the creation of the Sept 2013 Statement and the access to and withdrawals of money by Gregory from the deceased’s bank account for his own benefit, all of which in my view, demonstrate that Gregory took advantage of the deceased’s declining cognitive capacity.

511. In making a determination whether to interfere with freedom of testation, the Court should consider the “moral duty” of a testator to make provision. There may not be much difference between what “community standards” expect a person in the position of the deceased to do by way of provision for the plaintiff and what the deceased is morally obliged to do in that respect: Steinmetz v Shannon at [44], [46] and [109].

512. Gregory’s conduct from 2011 did not impact the deceased’s will making in 1998. However, the relevance of his conduct is whether, in all the circumstances and particularly having regard to those matters, it would be expected by members of the community, when considering the position at the date of the hearing, that the deceased should have made greater provision for Gregory that she did under the 1998 Will: Walker v Walker [1996] NSWSC 188; Goldberg v Landerer [2010] NSWSC 1431. Put another way, was the deceased under a moral duty to make further provision for Gregory that a half share of her estate? In my view, the answer to those questions is no.

513. In this case, I am not persuaded that the deceased was morally obliged or required by community standards to provide more to Gregory than she did by way of her testamentary disposition under the 1998 Will having regard to the circumstances of the case as at the date of the hearing, particularly those matters referred to at [509] and [510] above. In coming to that conclusion, I take into account the size of the deceased’s estate and the legacy Gregory will receive.

514. This is not a case where Gregory has been left nothing and the size of the estate, while not large, is not insubstantial. The provision made for Gregory, which is estimated to be $826,115.95, should provide him with sufficient funds to buy suitable accommodation in Tamworth mortgage-free, undertake his dental treatment, acquire furniture, a ride-on mower and a later model second hand car and leave him with a buffer for contingencies in life (which he may use to set up a business if he desires) of around $220,000, even assuming that he has already spent the entirely of the interim distribution made to him ($250,000) on his daily needs and his legal expenses. (This calculation assumes Gregory spends $300,000 on a house, $3000 on dental care, $5,000 of a ride on mower, $10,000 on furniture and $20,000 on a later model second hand car and returns $15,000 to the estate).

515. Having regards to all the facts known at the date of the hearing of the application, I consider that the provision made for Gregory under the 1998 Will is adequate provision for Gregory’s proper maintenance and advancement in life.

516. If I am wrong to conclude that adequate provision had not been made by the deceased’s 1998 Will for Gregory’s proper maintenance and advancement in life, I would not have accepted that the amount of provision sought by Gregory, namely the entirety of the deceased’s estate, would be appropriate.

517. In the event the 2013 Will is invalid (which is the circumstances on which Gregory’s family provision claim is to be determined), I consider that for Gregory to receive an additional amount of $826,115.95 (giving him over $1.6 million) is more than required for adequate provision for his proper maintenance and advancement in life. Nor do I consider that the circumstances of this case warrant Isaac being excluded from the deceased’s estate entirely.

518. In my view, if I am wrong, the better approach would be to allow Gregory to retain the interim distribution of $250,000 and divide the remainder of the estate (of $1,402,231.89) in half, thereby providing Gregory with total provision of $951,115.95 and Isaac with around $700,000 before taking into account Isaac's legal costs.

519. However, as I have explained, the better view is that Gregory’s claim for further provision from the deceased’s estate should fail.

Conclusion, costs and orders

520. I have concluded that the deceased did not have testamentary capacity when she made the 2013 Will. Accordingly, Gregory’s claim for probate in solemn form in respect of that will fails.

521. I have also concluded that the 1998 Will is a valid will. It follows that probate in solemn form of the 1998 Will should be granted in accordance with the orders sought in Isaac’s cross-claim.

522. As to whom probate should be granted, I am satisfied that it is appropriate to appoint Ms Ross-Maranik as executor, noting that the NSW Trustee has renounced any right to probate under the 1998 Will. Ms Ross-Maranik has consented to being appointed as executor of the deceased’s estate, has some knowledge of the estate from her court appointment as interim administrator and has agreed to charge the legislative scale fees (based on the gross value of the estate).

520. As to the money claims, I have concluded that Gregory has not established that Isaac has an existing liability to pay the deceased’s estate the amount of $150,000 based on the Deed of Loan but Gregory is liable to the estate in the amount of $15,000.

521. As to Gregory’s claim for further provision under s 59 of the Succession Act, I was satisfied that Gregory should be granted an extension of time to make his claim but concluded that the provision made for Gregory under the 1998 Will was adequate provision for Gregory’s proper maintenance and advancement in life and thus, refuse his application for further provision.

522. As for costs, Isaac submits that Gregory should be ordered to pay Isaac’s costs without any indemnity from the deceased’s estate.

523. Gregory’s submissions seek for Isaac to pay his costs on an indemnity basis, including full disbursements to Dr Lonie, referring to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 31.45. Gregory also says that the Court should direct that his costs be paid out of Isaac’s disclosed assets and the Court should deny costs payments to Isaac from the deceased’s estate in an amount greater than $1.

524. The general rules applicable to the award of costs apply in probate and family provision litigation: Ballam v Ferro (No 2) [2022] NSWSC 1358 at [77]–[80]; Estate of Guamani; Guamani v De Cruzado [2023] NSWSC 502 (Estate of Guamani) at [185]–[190]; Rofe at [652]–[658]. 

525. The Court therefore has a broad discretion to award costs under s 98 of the CPA and the UCPR, which provide that costs follow the event and are calculated on the ordinary basis unless the Court considers that some other costs order should apply: UCPR, rr 42.1, 42.2 and 42.20.

526. The Court’s discretion is unfettered but must be exercised judicially and with regard to the principle that the award of costs is compensatory in nature, not punitive: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [44].

527. The Court has also recognised that it may be appropriate to make costs orders in family provision proceedings which deviate from the usual course in accordance with the rules referred to above. As noted by Gaudron J in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, at [522] :

Family provision cases stand apart from cases in which costs follow the event. Leaving aside cases under the Succession Act which, in s.33, makes special provision in that regard, costs in family provision cases generally depend on the overall justice of the case. It is not uncommon, in the case of unsuccessful applications, for no order to be made as to costs, particularly if it would have a detrimental effect on the applicant's financial position. And there may even be circumstances in which it is appropriate for an unsuccessful party to have his or her costs paid out of the estate. (citations omitted)

531. Given the outcome of the claims, I see no basis for making the costs orders sought by Gregory.

532. ln coming to my decision on Gregory’s application for family provision, I have taken into account Gregory’s own legal costs (as covered by the amount already received by way of interim distribution) but did not take into account the payment of Isaac’s costs of $132,220 which, if ordered on an ordinary basis, would presumably be closer to $100,000.

533. If Isaac were to receive an order that Gregory pays Isaac’s costs out of Gregory’s entitlement in the estate, it would reduce the value of Gregory’s entitlement from the deceased’s estate by an amount that would have impacted my ultimate decision, given it would have reduced the buffer for contingencies by half.

534. In all of the circumstances, I am of the view that the overall justice of the case is best served by not applying the usual rule that costs follow the event and that no order should be made for Gregory to bear the burden of Isaac’s legal costs, with the practical outcome that each party should bear their own costs from the amount they receive from the deceased’s estate.

535. Accordingly, I will make no order as to costs with the intent that each party bear their own costs of both sets of proceedings.

536. For these reasons, I make the following orders:

In proceedings 2021/296823:

1. The will dated 29 October 1998 of the late Margaret Chalik (deceased), who died on 20 July 2021, be admitted to probate in solemn form.

2. Probate in solemn form of the will made on 29 October 1998 of the deceased be granted to Ms Monica Ross-Maranik.

3. Dispense with the requirement to publish notice of this grant.

4. The proceedings be remitted to the Probate Registrar to complete the grant in accordance with the Rules.

5. The third further amended statement of claim filed by the plaintiff on 27 April 2023 be dismissed.

6. Dismiss the first defendant’s/cross-claimant’s claim for a full accounting (which was not pressed) and in lieu thereof declare that the plaintiff is liable to pay the amount of $15,000 to the estate’s executor as monies owing to deceased’s estate.

7. Order (6) may be satisfied by the executor’s application of a set-off of any of the plaintiff’s entitlements in the deceased’s estate.

In proceedings 2021/326779:

8. Pursuant to s 58(2) of Succession Act 2006 (NSW), the time for the making of the plaintiff’s application for a family provision order be extended to 25 November 2022.

9. Otherwise dismiss the plaintiff’s claim for further provision from the deceased’s estate.

In both proceedings:

10. As between the plaintiff and the first defendant, no order as to costs in relation to both proceedings with the intent that each party bears their own costs.

********

Endnotes

Amendments

16 February 2024 - Formatting fixed.

19 February 2024 - Typographical corrections and other minor clarifications.

Decision last updated: 19 February 2024