Chisak v Presot

Case •

[2021] NSWSC 597

•

27 May 2021

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: Chisak v Presot [2021] NSWSC 597
Hearing dates: 23 – 25 March 2021 and 30 March 2021
Date of orders: 27 May 2021
Decision date: 27 May 2021
Jurisdiction:Equity
Before: Hallen J
Decision:

The Court:

(1) Orders that the amended Statement of Claim filed by the Plaintiff on 11 December 2019 be dismissed.

(2) Orders that probate in solemn form of the Will dated 26 April 2017 be granted to the Defendants.

(3) Orders that the matter be remitted to the Senior Deputy Registrar in Probate to attach a copy of the final orders, as made and entered, to the original grant of Probate and, thereafter, to return that original to the Defendants.

(4) Stands over the proceedings to 9:00 a.m. on 10 June 2021 for the determination of costs.

Catchwords:

SUCCESSION — Contested probate – Alleged lack of testamentary capacity - Lack of knowledge and approval - Suspicious circumstances - Whether deceased knew and approved the contents of the 2017 Will - Whether onus on the propounders of the 2017 Will has been discharged

SUCCESSION - FAMILY PROVISION - Alternative claim for family provision order under the Succession Act 2006 (NSW), Ch 3 by Plaintiff - Claim by adult grandchild of the deceased - Whether wholly or partly dependent upon deceased at any particular time - Whether factors warranting the making of the application - Lack of any contact with the Plaintiff for some years - Limited telephone contact but it stopped about 9 years before death of the deceased - Some provision made for Plaintiff in the Will - Whether adequate and proper provision not made in the Will of the deceased for the Plaintiff and, if not, the nature and quantum of the provision to be made for her - Claim for relief dismissed

Legislation Cited:

Civil Liability Act 2002 (NSW)

Civil Procedure Act 2005 (NSW)

Evidence Act 1995 (NSW)

Succession Act 2006 (NSW)

Cases Cited:

Alexander v Jansson [2010] NSWCA 176

Amaca Pty Ltd v Novek [2009] NSWCA 50

Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17

Bayssari v Bazouni [2014] NSWSC 910

Blendell v Byrne & Ors; the Estate of Noeline Joan Blendell [2019] NSWSC 583

Bowditch v NSW Trustee & Guardian [2012] NSWSC 275

Bracher v Jones [2020] NSWSC 1024

Briginshaw v Briginshaw (1938) 60 CLR 336

Brown v Faggoter [1998] NSWCA 44

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

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

Churton v Christian (1988) 13 NSWLR 241

Coshott v Prentice (2014) 221 FCR 450; [2014] FCAFC 88

Croft v Sanders [2019] NSWCA 303

Diver v Neal [2009] NSWCA 54

Doulaveras v Daher (2009) 253 ALR 267; [2009] NSWCA 58

Evans v Levy [2011] NSWCA 125

Foley v Ellis [2008] NSWCA 288

Glynne v NSW Trustee and Guardian; Lindsay v NSW Trustee and Guardian [2011] NSWSC 535

Gorton v Parks (1989) 17 NSWLR 1

Gould v Gould [2005] NSWSC 914

Hawes v Burgess [2013] EWCA Civ 74

Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168

In the Estate of Muirhead, Deceased [1971] P 263

Jones v Dunkel (1959) 101 CLR 298

Kleinig v Neal (No 2) [1981] 2 NSWLR 532

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361

Leahey & Trescowthick [1999] VSC 409

Lodin v Lodin [2017] NSWCA 327

MacEwan Shaw v Shaw (2003) 11 VR 95; [2003] VSC 318

Manly Council v Byrne [2004] NSWCA 123

Mayfield v Lloyd-Williams [2004] NSWSC 419

McKenzie v Baddeley [1991] NSWCA 197

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

Morley v ASIC [2010] NSWCA 331

Musa v Alzreaiawi [2021] NSWCA 12

Payne v Parker [1976] 1 NSWLR 191

Pearson v Jones (supra) and Simons v Permanent Trustee Co Ltd [2005] NSWSC 223

Petrohilos v Hunter (1991) 25 NSWLR 343

Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107

Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19

Porthouse v Bridge [2007] NSWSC 686

Power v Smart [2018] WASC 168

Re Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284

Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223

Re Fulop Dec'd (1987) 8 NSWLR 679

Sammut v Kleemann [2012] NSWSC 1030

Sherborne Estate: Vanvalen & Anor v Neaves & Anor; Gilroy v Neaves & Anor [2005] NSWSC 593

Simonetto v Dick (2014) 10 ASTLR 231; [2014] NTCA 4

Singer v Berghouse (1993) 114 ALR 521; [1993] HCA 35

Skinner v Frappell [2008] NSWCA 296

Smart v Power [2019] WASCA 106

Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17

Starr v Miller; Starr v Miller [2021] NSWSC 426

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

Tramantana v Harborne; Clarke v Harborne; Midson v Harborne [2011] NSWSC 1129

Tsivinsky v Tsivinsky [1991] NSWCA 269

Vigolo v Bostin (2005) 213 ALR 692; [2005] HCA 11

Wharton v Bancroft [2011] EWHC 3250

Yee v Yee [2017] NSWCA 305

Category:Principal judgment
Parties: Ivy Hope Chisak (Plaintiff)
Emanuela Presot (first Defendant)
Adelina Presot (second Defendant)
Representation:

Counsel:
M W Sneddon (Plaintiff)
Dr J Lucy (Defendants)

Solicitors:
Fox & Staniland Lawyers (Plaintiff)
Berala Law Group (Defendants)
File Number(s): 2018/227413
Publication restriction: Nil

Judgment

Introduction

  1. HIS HONOUR: Almost 50 years ago, in In the Estate of Muirhead, Deceased [1971] P 263, Cairns J wrote, at 265:

“I approach the matter with the conviction that it is the duty of a Court of Probate to give effect, if it can, to the wishes of the testator as expressed in testamentary documents.”

  1. More recently, in Wharton v Bancroft [2011] EWHC 3250 (Ch), Norris J wrote at [9]:

“The task of the probate court is to ascertain what (if anything) was the last true will of a free and capable testator. The focus of the enquiry is upon the process by which the document which it is sought to admit to proof was produced. Other matters are relevant only insofar as they illuminate some material part of that process. Probate actions become unnecessarily discursive and expensive and absorb disproportionate resources if this focus is lost."

  1. Finally, by way of introduction, I repeat what was written in Hawes v Burgess [2013] EWCA Civ 74, by Mummery LJ (with whom Patten LJ and Sir Scott Baker agreed), at [14]:

“I should add a statement of the obvious in order to dispel any notion that some mysterious wisdom is at work in this area of the law: the freedom of testation allowed by English Law means that people can make a valid will, even if they are old or infirm or in receipt of help from those whom they wish to benefit, and even if the terms of the will are hurtful, ungrateful or unfair to those whose legitimate expectations of testamentary benefit are disappointed. The basic legal requirements for validity are that people are mentally capable of understanding what they are doing when they make their will and that what is in the will truly reflects what they freely wish to be done with their estate on their death.”

  1. Lily Savransky ("the deceased") died on 8 September 2017. At the date of her death, she was 87 years old, having been born in January 1930. These are bitterly fought Succession List proceedings brought by the Plaintiff, Ivy Hope Chisak, the only biological grandchild of the deceased. The matter was listed for four days, and was completed, within that time.

  2. It is not difficult to appreciate, when one reads what follows, how expensive, and self-destructive, this litigation must be to the financial health of the parties, particularly the Plaintiff. However, every suggestion to resolve the proceedings, made to the legal representatives of the parties, both before, and during, the hearing, appears to have fallen on the deaf ears of the parties. In saying that, I do not doubt that the legal representatives appreciated, and explained to the party or parties represented, the commercial folly of the litigation. The matter, however, was not able to be resolved and continued with oral submissions being made on the last day of the hearing.

  3. The deceased left three duly executed Wills, the last in time dated 26 April 2017 (“the 2017 Will”); the second last in time, dated 3 June 2009 (“the 2009 Will”), which was tendered as Ex P1; and the earliest in time dated 20 September 1999 (“the 1999 Will”), the original of which was not tendered as neither party sought Probate of that Will. I shall refer to the relevant Wills, although there is a dispute about the validity of the 2017 Will, as “the 2017 Will” and “the 2009 Will”, respectively, only for convenience and without any prejudgment.

  4. On 15 November 2017, this Court granted Probate in common form of the 2017 Will to Emanuela Presot and Adelina Presot, who are the first and second Defendants, respectively, and the executors appointed under that Will. The original grant of Probate was delivered to the Court and was marked Ex D1. It will remain in the Court file subject to the orders made.

  5. Without intending to convey undue familiarity or disrespect, and for clarity and convenience, I shall refer, hereafter, to the parties, and the beneficiaries, after introduction, by her first name as a number of them have a common surname.

  6. By agreement of the parties, and with the approval of the Chief Justice, the hearing proceeded as a live hearing.

  7. The parties had discussed the order of witnesses before the hearing commenced. It was agreed that the Defendants’ witnesses would be called first, then the Plaintiff, and then the two medical experts. This necessitated some flexibility in the conduct of the proceedings but was able to be achieved in an orderly manner and with the co-operation of the legal representatives.

  8. I am grateful to counsel for the detailed submissions provided before, and during, the hearing, which has assisted the Court in the preparation of these reasons.

  9. Finally, I should mention that the Court followed the Supreme Court’s then updated Coronavirus (COVID-19) announcement of 12 February 2021, and did not require the parties, the lawyers, or the witnesses, to wear masks whilst in the precincts of the Court (although those who wished to were able to do so). Naturally, the physical distancing rules remained in operation.

The nature of the proceedings

  1. Ivy commenced the proceedings by Statement of Claim filed on 24 July 2018. The proceedings concern, amongst other things, a claim by her that the grant of Probate in common form of the 2017 Will should be revoked and that probate of the 2009 Will should be granted to her. She filed an amended Statement of Claim on 11 December 2019. The only amendment was the addition of the following paragraph:

“A declaration that the deceased did not have testamentary capacity at the time of her purporting to make a new Will on 26 April 2019 [sic].”

  1. At the commencement of the hearing, counsel for the Plaintiff noted the typographical error, and the Court was asked to read “2019” as “2017”. Without objection, this was amended in handwriting on the amended Statement of Claim, although it was pointed out that there was no need for the declaration if the Court came to the view that the 2017 Will was not the last valid Will of the deceased as the Court would revoke the grant.

  2. It is clear that the Plaintiff is not entitled to the relief she seeks even if successful in her Probate claim as she is not the executrix named in the 2009 Will. There is no evidence that the Defendants, who are the executors named in the 2009 Will, have renounced Probate, or that they intend to renounce Probate of that Will.

  3. Ivy’s probate claim was based upon allegations that (a) the deceased lacked testamentary capacity; (b) that she did not know and approve the 2017 Will; and (c) that suspicious circumstances existed at the time she made that Will.

  4. The basis of the contest referred to in (c) above, relates to what has been described, in probate law, as the doctrine commonly invoked by the use of the expression “suspicious circumstances”.

  5. In Power v Smart [2018] WASC 168 (not challenged on appeal in Smart v Power [2019] WASCA 106), Derrick J observed at [663]:

“When considering if there are circumstances that give rise to a suspicion that the testator might not have known and approved of the contents of a will, the court looks at a number of factors including the circumstances surrounding the preparation of the will, whether a beneficiary was too involved in the preparation of the will, the extent of the physical and mental impairment, if any, of the deceased, whether the will in question constitutes a significant change from a prior will, whether the lawyer or person who prepared the will takes a benefit, and whether the propounded will generally seems to make testamentary sense: Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81 [96] ‑ [111]; Veall v Veall [173]; The Estate of Juliana Voros; Cooney & Ors v Cherry [2016] NSWSC 1603 [135].”

  1. At the commencement of his oral submissions, counsel for the Plaintiff stated that the Plaintiff did not wish to rely on this ground. The withdrawal of this assertion was appropriately made as there was no evidence of involvement of any of the beneficiaries in the deceased making the 2017 Will. Indeed, Emanuela, Adelina, and Anna, each gave evidence that she did not know of the contents of the deceased’s Will: Affidavit, Emanuela Presot, 19 March 2019 at par 13; Tcpt, 23 March 2021, p 101(02-03); Affidavit, Adelina Presot, 19 March 2019 at par 21; Tcpt, 23 March 2021, p 81(46-48) and p 82(06); Affidavit, Anna Savateev, 15 March 2019 at par 17. (Whilst Linda did not expressly say so in her affidavits, there is no evidence that she knew about the contents of the 2017 Will.)

  2. The Defendants opposed the revocation of the grant of Probate of the 2017 Will. As written, they did not dispute the validity of the 2009 Will but stated that it had been revoked by the 2017 Will. They did not file a Cross-Claim seeking a grant of Probate in solemn form of the 2017 Will. There was no dispute that, even though Probate in common form of the deceased’s Will has been granted, the case was one requiring the Defendants to prove, affirmatively, that the deceased had testamentary capacity and that she knew and approved the contents of the 2017 Will.

  3. During the hearing, the Court raised with counsel the question whether, if the Probate proceedings were dismissed, it was necessary to revoke the grant in common form of Probate of the 2017 Will and to make a grant of Probate in solemn form of that Will.

  4. I confirmed that the practice of the Court, where Probate in solemn form is granted after Probate in common form has been granted, is not to revoke the original grant of Probate, but to make an order that the original grant be delivered up to the Court so that the grant in common form and the newly made grant in solemn form are bound together and issued as one document. In this way, any person who wishes to see the original of the grant of Probate will be presented with a document which accurately states what has occurred: Starr v Miller; Starr v Miller [2021] NSWSC 426 at [21].

  5. There was also no dispute that, in the event that Probate of the 2017 Will was revoked, there should be a grant of Probate in solemn form of the 2009 Will to the Defendants, who are also the executors named in that Will. Although the parties had agreed, the Court, independently, would still have to be satisfied of the due execution of the 2009 Will. Thus, if the Defendants did not succeed in establishing the validity of the 2017 Will, there would have been a grant of Probate, in solemn form, of the 2009 Will.

  6. If the Plaintiff did not obtain an order revoking Probate of the 2017 Will, she sought a family provision order under Ch 3 of the Succession Act 2006 (NSW) (the Act). A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Relevantly, the Act applies in respect of the estate or notional estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009.

  7. If a family provision order is made in favour of the Plaintiff, it is important to remind the legal representatives that a certified copy of any order made under the Act must be copied onto the grant of Probate as such an order operates, unless the Court otherwise orders, as if the provision was made in a codicil to the Will of the deceased person, if the deceased made a Will: s 72(1)(a) of the Act). It is only if the order is actually endorsed on the grant of Probate that the grant can correctly represent what are the dispositive provisions of the Will of which Probate has been granted: Gould v Gould [2005] NSWSC 914 at [6] (Campbell J). Also see paragraph 23(a) of Practice Note SC Eq 7.

The Wills of the deceased

  1. The 2017 Will was a professionally drawn Will comprising one page with only the attestation Clause on the second page. It provided:

  1. For the revocation of all former wills and testamentary dispositions, and declared it to be the deceased’s last Will: Clause 1;

  2. Appointed “my friends”, Emanuela Presot and Adelina Presot to be the Executors and Trustees of the Will: Clause 2;

  3. Directed the Trustees to pay all debts, funeral and testamentary expenses: Clause 3;

  4. Gave directions for her funeral service and burial: Clause 4;

  5. Directed the Trustees to sell her property at Lidcombe: Clause 5;

  6. Gave “the whole of my estate both real and personal of whatsoever kind and nature and wheresoever the same may be situate to EMANUELA PRESOT, ADELINA PRESOT, my friend LINDA PRESOT, my friend ANNA SAVATEEV…and my granddaughter IVY HOPE CHISAK for their own use and benefit absolutely in equal shares as tenants in common”: Clause 6; and

  7. Empowered the Trustees in their absolute discretion to do certain things: Clause 7.

  1. The 2009 Will was a professionally drawn Will comprising several pages with only the attestation Clause on the third page. It provided:

  1. For the revocation of all former Wills and Testamentary dispositions, and declared it to be the deceased’s last Will: Clause 1;

  2. Appointed “my friends” Emanuela Presot and Adelina Presot to be the Executors and Trustees of the Will: Clause 2;

  3. Directed the Trustees to pay all debts funeral and testamentary expenses: Clause 3;

  4. Directed the Trustees that there was to be “a simple funeral” and burial at Rookwood Cemetery: Clause 4;

  5. Directed the Trustees to sell her property at Lidcombe: Clause 5;

  6. Gave a pecuniary legacy of $7,500 to “my friend”, Emanuela Presot: Clause 6;   

  7. Gave a pecuniary legacy of $7,500 to “my friend”, Adelina Presot: Clause 7;

  8. Gave a pecuniary legacy of $5,000 to “my friend”, Irene Onis: Clause 8;

  9. Gave a pecuniary legacy of $5,000 to “my friend”, Anna Savateev: Clause 9; and

  10. Left the residue of her estate to the Plaintiff upon attaining the age of 25: Clause 10.

  1. It can be seen that each of the 2017 Will and the 2009 Will is in relatively simple terms.

Some formal matters not in dispute

  1. The 2009 Will was prepared by a solicitor, Jihad Shahrouk, who gave evidence and who was cross-examined.

  2. I am satisfied, that the 2009 Will had been duly executed in accordance with s 6 of the Act, and that it appeared, at the time it was made, to be a rational Will. In addition, the affidavit of one of the attesting witnesses to prove due execution, in relation to the signature of the deceased, was read, in order to obtain a grant of Probate in solemn form of that Will: Blendell v Byrne & Ors; The Estate of Noeline Joan Blendell [2019] NSWSC 583 at [422]. The requirements of testamentary capacity, and of knowledge and approval, had also been satisfied in relation to that Will.

  3. There was no dispute that the 2017 Will satisfied the statutory requirements of s 6 of the Act, relating to how a will should be executed, namely that (a) it was in writing and signed by the deceased respectively, in the presence of, and at the direction, of her; (b) the signature was made by the deceased, in the presence of two or more witnesses present at the same time; and (c) two of those witnesses attested and signed the 2017 Will in the presence of the deceased. In other words, the 2017 Will was duly executed.

  1. There was an affidavit of one attesting witness of the 2017 Will. It was also prepared by Mr Shahrouk and sworn on 22 August 2018.

  2. The proceedings, so far as they relate to Ivy’s claim for a family provision order, were filed within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased).

  3. Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order in respect of the estate of a deceased person. One category of eligible persons is "a person who was, at any particular time, wholly or partly dependent on the deceased person, and who is a grandchild of the deceased person" (s 57(1)(e) of the Act). There is no age limit prescribed by the Act in the case of a claim by a grandchild.

  4. In the case of an applicant who, relevantly, falls within s 57(1)(e) of the Act, the Court must be satisfied, having regard to all the circumstances of the case (whether past or present) that there are factors which warrant the making of the application (s 59(1)(b)).

  5. Whilst there was no dispute that the Plaintiff is a grandchild of the deceased, the Defendants denied that she was, at any particular time, wholly, or partly, dependent upon the deceased. They also asserted that, even if the Plaintiff were an eligible person, there were no factors warranting the making of her application. Finally, they submitted that even if she is an eligible person, and there were factors warranting the making of the application, the provision made for her in the 2017 Will was adequate and proper in the circumstances of the case. They submitted that the proceedings should be dismissed in their entirety.

  6. The parties also accepted that if the grant of Probate of the 2017 Will was revoked, there was no need to make a family provision order as Ivy would receive the whole of the deceased’s estate under the 2009 Will.

  7. The parties agreed that, as the deceased had dealt with all of her estate in whichever was her last Will, there is no scope for the operation of the rules of intestacy, with the result that it is only necessary, hereafter, to refer to the Will of the deceased.

  8. There is no dispute that each of the other beneficiaries named in the Will is not an eligible person. However, the Act specifically provides that the interests of a beneficiary cannot be disregarded, even though she, or he, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased’s Will and her, or his, competing claim, respectively, as a chosen object of the deceased’s testamentary bounty.

  9. In the family provision proceedings, it will be necessary to consider the interests of each, respectively, as a beneficiary, later in these reasons, when the claim for a family provision order is determined.

  10. None of the other beneficiaries advanced her financial circumstances, as a competing claimant, on the bounty of the deceased. In Sammut v Kleemann [2012] NSWSC 1030 at [136]-[140], I set out the principles that apply in a case where a beneficiary does not disclose her, or his, financial resources. The Court of Appeal, in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [94], per Meagher JA (Basten and Campbell JJA agreeing), stated the principle, far more succinctly:

“The fact that an executor has not led evidence as to the financial position of any beneficiary or beneficiaries will often provide a basis for the court to infer that each has sufficient income and resources to meet his or her needs: see, for example, Anderson v Teboneras [1990] VR 527 at 535-536; Mason v Permanent Trustee Co Ltd (unreported, Macready M, 5 December 1996 at 6). The justification for that inference is an assumption that the executor has acted in accordance with his or her duty to lead such evidence, if relevant.”

  1. Also see Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107 at [23].

  2. Even if the Court may infer that each of the other beneficiaries has no competing financial need for provision from the estate of the deceased, and that, on a comparative basis, each is better off than Ivy, her silence does not mean that her competing claim, as a beneficiary, should not be evaluated. As will be read, what is “proper” requires an evaluative judgement that has regard to all relevant circumstances, not merely the financial circumstances of the applicant and of the other beneficiaries.

  3. As stated above, the consequences of not disclosing the beneficiary’s financial resources and needs simply means that the Court, in considering those resources and needs, may draw the inference to which I have referred above. Thus, in reaching the conclusion in regard to the family provision order sought by Ivy, the Court will not disregard the competing interest of each beneficiary who has a claim upon the bounty of the deceased as a chosen object of the deceased’s bounty. In this way, the Court will give due regard to "what the testator regarded as superior claims or preferable dispositions" as demonstrated by her, or his, Will: Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 19 (Dixon CJ); [1962] HCA 19.

  4. In Foley v Ellis [2008] NSWCA 288, at [88], Sackville AJA (Beazley and Basten JJA agreeing) noted that Singer v Berghouse (1993) 114 ALR 521; [1993] HCA 35:

“… strongly suggests that the court cannot consider the propriety and adequacy (or inadequacy) of any testamentary provision for an applicant in isolation from the resources and needs of other claimants on the deceased’s bounty. These claimants include other beneficiaries entitled to a share of the deceased’s estate, whether or not they themselves have made a claim under the Family Provision Act.”

  1. However, none of the other beneficiaries named in the deceased’s Will has to prove an entitlement to the provision made for her or justify such provision. Nor does each have to explain the decision by the deceased to make the provision that she did for each in the Will.

  2. Each of the beneficiaries did give evidence of the close relationship that she had with the deceased to demonstrate that the 2017 Will was a rational one, and to confirm the moral claim that she had and the basis of her entitlement as a chosen object of testamentary bounty. Each of them also, briefly, gave evidence of her personal circumstances which would suggest a need for her entitlement under the Will not to be disturbed, for example, carer’s responsibilities and state of health.

  3. A family provision order may be made in relation to property that is not part of the deceased’s estate but is designated as “notional estate” of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. “Notional estate” of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. “Notional estate order” means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

  4. There is no property that is able, or sought, to be designated as notional estate of the deceased. In the circumstances, despite the form of the relief claimed by Ivy, she did not seek an order for any property of the deceased to be designated as notional estate. Importantly, there is no part of the deceased’s estate that has been distributed, other than amounts that have been paid on account of the costs of Ivy and the Defendants (as executors to whom Probate was granted). Accordingly, it is only necessary to refer, hereafter, to the estate of the deceased.

A summary of the issues and the Court’s conclusions

  1. The issues formally before the Court for consideration, and the conclusions reached, are:

  1. Did the deceased have testamentary capacity at the time she made the 2017 Will? I conclude that she did.

  2. Did the deceased know and approve the contents of the 2017 Will? I conclude that she did.

  3. Having found that the 2017 Will is a valid Will, is Ivy an eligible person within the meaning of s 57(1)(e) of the Act? Whilst I am satisfied that she is a grandchild of the deceased, I am not satisfied that she was, at any particular time, wholly, or partly, dependent on the deceased.

  1. Although having reached the above conclusions, it is unnecessary to decide the additional issues, for completeness, I record, in case I am wrong about the conclusion in (c) above:

  1. If Ivy is an eligible person within s 57(1)(e) of the Act, having regard to all the circumstances of the case (whether past or present), are there factors which warrant the making of the application? I am satisfied that there are factors which would warrant the making of the application.

  2. If Ivy is an eligible person, and if there are factors that warrant the making of the application, should a family provision order be made for her out of the deceased’s estate? I conclude that an order for additional provision out of the estate of the deceased, should not be made, upon the basis that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has been made by the 2017 Will of the deceased.

The nature and value of the deceased’s estate

  1. On 17 November 2020, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contains:

“a) The assets and liabilities of the estate at the date of death;

b) The assets and liabilities of the estate at the date of the schedule;

c) The estimated costs and expenses of any property that is to be sold;

d) The estimated costs of each party calculated on the ordinary and on the indemnity basis inclusive of GST;

e) Any costs of any party that have been paid, and in relation to either party, whether those costs have been paid out of the estate of the deceased.”

  1. During the hearing the parties tendered the Agreed Schedule as Ex JS1.  I have taken what follows from the Agreed Schedule and from discussions with counsel during the course of the hearing. (I have omitted, and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.)

  2. The gross value of the deceased’s estate, at the date of death, was $1,267,038. After paying some liabilities ($6,181) the gross value of the estate was $1,260,857.

  3. At the time of the hearing, the gross value of the deceased’s estate was agreed to be $921,128.

  4. At the date of the hearing the deceased’s estate consisted of:

  1. One parcel of real estate on Beatrice St, Lidcombe ($850,000); and

  2. Cash held in a trust account by the deceased’s solicitors ($71,128).

  1. (Mr Joseph Daidone, a licensed real estate agent, was requested by the Defendants to provide his opinion on the market value of the property at XX Beatrice St, Berala. A copy of his written report is found at Ex JB2/847. In view of the location of the property and past sales in the area, he estimated the Berala property to be worth between $750,000 to $800,000. This estimate remained unchanged at the time of the commencement of the hearing. However, in cross-examination, Mr Daidone explained the reason for the lack of change in his valuation between June 2019 and March 2021 was due to a market downfall when COVID-19 occurred in 2020 and the slow recovery that has occurred towards the start of 2021: Tcpt, 23 March 2021, p 78(05-10). He then highlighted that the increase in demand for properties due to low interest rates did not pick up until the end of 2020 and beginning of 2021, noting that in the month after he had written his updating affidavit in February 2021, the market had picked up further: Tcpt, 23 March 2021, p 78(30-31). Due to this increase, Mr Daidone stated, in cross-examination, that he would value the Berala property at the time of hearing at around $850,000: Tcpt, 23 March 2021, p 79(17).)

  2. In the Agreed Schedule, the liabilities of the estate, and the estimated costs of sale of the Lidcombe property, were shown to total $38,376.

  3. The estimated net value of the estate, excluding the costs of the proceedings, was, therefore, $882,752.

The costs of the proceedings

  1. In relation to the proceedings, the total costs for Ivy were estimated, on the ordinary basis, including GST, to be $133,000. Calculated on the indemnity basis, including GST, they were $181,605: Affidavit, Andrew Gordon Cameron, 29 March 2021 at par 3-4. Ivy has already paid $20,070 of these costs (presumably from her share of the deceased’s estate), leaving a balance of $112,930, of costs calculated on the ordinary basis, to be paid.

  2. The total costs of the Defendants, calculated on the indemnity basis, in relation to the proceedings, were estimated to be $183,693. The Defendants have paid $45,884 of these costs from the deceased’s estate, leaving a balance of $137,809 yet to be paid.

  3. Noting, without deciding, that if the estimates for the costs and disbursements are accurate, and assuming that all of the balance of the costs ($250,739) will be payable out of the estate ($882,752), the total amount of the available estate out of which an order for provision could be made for Ivy is $632,013.

  4. At this point, reference must be made to s 60 of the Civil Procedure Act 2005 (NSW) which provides that in any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute. In my view, the total of the estimated costs and disbursements, calculated on the ordinary basis for the Plaintiff and on the indemnity basis for the Defendants, being almost $316,693 (and $365,298 for both calculated on the indemnity basis), or more than one-third of the estate, are disproportionate to the value of the estate. They are even more disproportionate to the value of any order for additional provision, that could have realistically been made in favour of Ivy if she were successful in her claim for a family provision order.

  5. Furthermore, if the 2017 Will is the last valid Will, the estate will be divided into five equal parts, one of which parts would be distributed to the Plaintiff (now, using the above estimates, $126,402). Her share would have been more ($176,550), had the costs of the proceedings not been incurred.

  6. I should note that the Defendants seek an order for costs against Ivy. However, I was informed that it would not be possible to determine the issue of costs as part of these reasons, as there may be a document, or documents, that may be relevant. Regrettably, this is likely to involve further costs being incurred, unless the parties agree on the costs orders, and if possible, the quantum of any costs ordered to be paid.

The Witnesses

  1. Ivy, is the only grandchild of the deceased. Ivy was born in 1994 and is currently 26 years old.

  2. Emanuela Presot is the first Defendant in these proceedings. She is the daughter of Adelina Presot and has known the deceased for over 40 years. Emanuela works full time as a teacher and lives with her parents in Lidcombe to assist in taking care of her father.

  3. Adelina Presot is the second Defendant in these proceedings. Adelina and her husband, Luciano, purchased a home on the same street as the deceased in Lidcombe in 1965. Adelina knew the deceased from that time and they became good friends, and even better friends, after Adelina retired in 1990. For the last 15 years of the deceased’s life, Adelina had been assisting the deceased with shopping and other errands. In Court, Adelina gave evidence with the assistance of an interpreter.

  4. Linda Presot is the daughter of Adelina and the sister of Emanuela. She is one of the named beneficiaries in the 2017 Will. Linda works as an administration clerk for a pharmaceutical company. She had known the deceased for almost 40 years and along with her mother and sister, would assist the deceased with general tasks over the last 15 years. Linda resides with her parents in Lidcombe and also assists in the care of her parents.

  5. Anna Savateev is one of the beneficiaries named in the 2017 Will. Anna has been widowed for 40 years and, at the date of hearing, lived in Auburn. She first met the deceased in around 1977. Anna and the deceased’s children grew up, and went to school, together. During this time, she and the deceased would meet about once a week and would often meet for coffee and other social activities. They also spoke on the telephone frequently. In Court, Anna gave evidence with the assistance of an interpreter.

  6. Jihad Shahrouk has been a solicitor at Berala Law Group since 2008. He drafted both the 2009 Will and 2017 Will for the deceased. Mr Shahrouk lived across the road from the deceased’s property and has known her since 1992. Whilst living with his parents he would often see the deceased outside her house or around the neighbourhood. Mr Shahrouk has also sworn an affidavit of attesting witness.

  7. Dr Chanaka Wijeratne is a consultant psychiatrist and an Associate Professor (Adjunct) at the School of Medicine Sydney, Notre Dame University. Dr Wijeratne was engaged by the Plaintiff to provide an expert opinion on the testamentary capacity of the deceased at the time of the 2017 Will. Dr Wijeratne provided two reports dated 8 October 2019 and 12 March 2020.

  8. Associate Professor Rosenfeld is a consultant geriatrician and physician in private practice in New South Wales. He is also a former Director of Geriatric Medicine and Senior Specialist in Geriatric Medicine at Prince of Wales Hospital. Associate Professor Rosenfeld was engaged by the Defendants to provide an expert opinion on the testamentary capacity of the deceased at the time of the 2017 Will. Associate Professor Rosenfeld provided a report dated 31 January 2020.

  9. Neither of the two experts had met the deceased. Of course, as will be read, it is not for experts to determine whether the will-maker has testamentary capacity. That is a matter solely for the Court’s determination.

  10. Joseph Daidone has been a licensed real estate agent for over 10 years and is currently employed by Daidone reality in Berala. He was requested by the Defendants to provide a valuation of the property at XX Beatrice St, Berala.

  11. Importantly, there was one person who Ivy did not call as a witness, namely her father. The Defendants submitted that the failure to do so should lead to a Jones v Dunkel inference. No evidence was given of his unavailability and there was no explanation for his absence.

  12. Undoubtedly, her father is in Ivy’s camp and is not an independent person who could easily have been approached by the Defendants. There was every reason to expect Ivy to have called him rather than the Defendants.

  13. Counsel for Ivy failed to make any written submissions on the failure to call Ivy’s father. In oral submissions, he accepted that there was no direct evidence to negate a Jones v Dunkel inference (Tcpt, 30 March 2021, p 241(30-31)). However, later in his oral submissions, he directed the Court’s attention to various paragraphs in Ivy’s evidence and submitted (Tcpt, 30 March 2021, p 243(10-12)) that:

“True it is, certain things could’ve been done to prove things better, but that doesn’t negative the suggestion that what she says is false or otherwise ought not be accepted”.

  1. Counsel for the Defendants drew my attention to Morley v ASIC (2010) 274 ALR 205; [2010] NSWCA 331 at 634 and Manly Council v Byrne [2004] NSWCA 123 at [51], and submitted that Ivy’s evidence, as an interested party, should be viewed with some caution in circumstances where her father could have given direct evidence on the topic but did not: Tcpt, 30 March 2021, p 263(49) - 264(05).

  2. As a matter of general principle, the unexplained failure by a party to call a witness, in appropriate circumstances, may give rise to an inference that the evidence of that witness would not have assisted the case sought to be advanced by that party. An inference may be drawn where an available witness is not called.

  1. In Jones v Dunkel (1959) 101 CLR 298, Kitto J observed, at 308, that:

“… any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence.”

  1. Also, the failure to call a witness may permit the Court, with greater confidence, to draw any inference that is unfavourable to the party that failed to call the witness, if that inference is open on the evidence and the uncalled witness appears to be in a position to cast light on whether the inference should be drawn: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at 384–385; [2011] HCA 11 at [63]. In either case, it is not a mandatory rule.

  2. In Payne v Parker [1976] 1 NSWLR 191, Glass JA, (although in dissent as to the application of the principles to the facts), wrote, at 201, that whether the Jones v Dunkel principle can, or should, be applied depends upon whether the conditions for its operation exist. His Honour then identified three conditions: (i) the missing witness would be expected to be called by one party, rather than the other; (ii) his evidence would elucidate a particular matter; and (iii) his absence is unexplained.

  3. Even where an inference is drawn from the failure to call a witness, or produce a document, the inference is only that the uncalled evidence would not have assisted a party’s case; it cannot be inferred that the uncalled evidence would have been positively damaging to the party’s case: Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [165] – [168] and [232]. The failure cannot fill gaps in the evidence or allow the Court to conjecture as to what evidence would, or should, have been, as distinct from enabling an available inference to be drawn more comfortably.

  4. These principles were referred to in Musa v Alzreaiawi [2021] NSWCA 12 at [77] – [80] (Gleeson JA, with whom Bell P and Macfarlan JA agreed).

  5. In Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168, Hodgson JA (Beazley JA agreeing) wrote, at [15]

“…it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so...”

  1. In Coshott v Prentice (2014) 221 FCR 450 at 469; [2014] FCAFC 88, the Court held at [81], that:

“… where the evidence relied upon by a party bearing the onus of proof does not itself clearly discharge the onus, the failure by that party to call or give evidence that could cast light on a matter in dispute is relevant to determining whether the onus is being discharged: Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 at 371 (Dixon CJ); Shalhoub v Buchanan [2004] NSWSC 99 at [71] (Campbell J). This principle is therefore wider than that in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. As Austin J in Australian Securities and Investments Commission v Rich [2009] NSWSC 1229; (2009) 236 FLR 1 explained at 93 [440], ‘[w]hereas Jones v Dunkel reinforces an inference drawn against the party who has not called evidence, to the effect that the evidence would not have assisted that party’s case, Blatch v Archer leads either to the drawing of such an inference, or to some other assessment of the weight of evidence, unfavourable to the party against whom the principle is applied.’”

  1. In short, Ivy asserted that her failure to be in contact with the deceased after about 2003, other than by telephone, until about 2007 or 2008, and then not thereafter, was as a result of her father forbidding her to do so. She failed to call him or give evidence explaining why she did not do so. He was in the best position to explain what had occurred and the reasons why.

  2. I am of the view that the failure by Ivy to call her father is a matter which should be borne in mind. He could have given evidence about matters which Ivy asserted based on what she had been told. As importantly, they were unable to cross-examine him on matters that were fundamental to Ivy’s case, namely her dependence upon him, rather than upon the deceased.

  3. This cannot be ignored when weighing the limited evidence Ivy relied upon to support her case with all the other evidence and the deceased’s statements to others about Ivy and the personal effect upon the deceased of the lack of contact with her.

  4. I am satisfied that I should draw the inference that the evidence of Ivy’s father would not have assisted Ivy’s case.

  5. Finally, in relation to Ivy’s case generally, consistently with s 140 of the Evidence Act 1995 (NSW), when the law requires proof of any fact, the tribunal of fact “must feel an actual persuasion of its occurrence or existence before it can be found”: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361; [1938] HCA 34.

Background

  1. I am satisfied that the following matters have been established.

  2. The deceased was born in January 1930, in China, and grew up in the Ukraine.

  3. The deceased was married to Boris Savransky. Boris and the deceased were divorced when he died on 30 September 2008.

  4. The deceased had one child, Lana Cross, who was Ivy’s mother. Sadly, Lana took her own life in September 1996, following unsuccessful neurosurgery for a congenital condition known as Arnold Chiari Syndrome.

  5. Ivy lived with her mother and father in Brisbane after her birth. Ivy was about 18 months old at the time of her mother’s death. She continued to live, at all times thereafter, with her father (in various locations in Brisbane and regional New South Wales), although there were two or three occasions, between 2000 and 2003, when she visited the deceased and stayed with her for short periods of time. (There was a dispute about the number of occasions that Ivy had visited the deceased.)

  6. Ivy did not see the deceased at any time after 2003.

  7. In 2009, Mr Shahrouk, the deceased’s lawyer, took instructions and drafted the deceased’s Will. The Will was executed on 3 June 2009.

  8. On 16 March 2017, the deceased was admitted to Westmead Hospital having suffered a stroke. She remained in hospital for a little over two weeks. She was discharged on 4 April 2017.

  9. The deceased returned home after she was discharged where she continued to live alone, albeit with some assistance from Meals on Wheels, her friends and a community service to assist her with showering twice a week.

  10. On 26 April 2017, the deceased attended the offices of Berala Law Group, without an appointment, on her own, and told Mr Shahrouk that she wished to change her Will. She instructed him to prepare a Power of Attorney and an Appointment of Enduring Guardianship in favour of Emanuela and Adelina.

  11. Later, on the same day, the deceased returned to the offices of Berala Law Group with Adelina and Emanuela. The deceased executed the 2017 Will. Afterwards, the Defendants agreed and signed the Power of Attorney and Appointment of Enduring Guardianship.

  12. On 28 April 2017, the deceased collapsed at home and was taken to Concord Hospital. Records from that Hospital reveal that, on this occasion, the deceased had suffered a cardiac arrest.

  13. On 19 May 2017, the deceased was discharged from Concord Hospital and was transferred to St Joseph’s Hospital for end of life care.

  14. On 2 June 2017, the deceased was transferred to IRT Berala on the Park, an aged care centre and nursing home.

  15. The deceased died on 8 September 2017.

Ivy’s claim

  1. Ivy stated that she was partially dependant on the deceased at various times in her lifetime.

  2. Between 2000 and 2003, Ivy travelled to Sydney on three or four occasions to stay with the deceased. Ivy would fly to Sydney and the deceased would meet her at the airport. Each visit would be of between three weeks to a month duration. During these visits, the deceased, naturally, would look after Ivy. They would garden, play music, go the park, cook together, and go to the shops. During this time the deceased bought Ivy a pet rabbit and several goldfish on different visits. Photographs from this period are found in Exhibit IHC-1.

  3. Ivy recalled at least three visits to Sydney and possibly a fourth, all of which occurred before 2003: Tcpt, 24 March 2021, p 138(39) - 139(07).

  4. The Defendants submitted that Ivy’s evidence about her visits to the deceased between 2000 and 2003 should be viewed with caution given her age at the time and that she had relied upon her father, who did not give evidence, for information. Ivy acknowledged difficulties in remembering specific aspects of her visits.

  5. The Defendants submitted that the Court should conclude, having regard to the entirety of the evidence, that Ivy only stayed with the deceased twice. Ultimately, I do not think it matters whether the visits were two, three or four in number. She did not have very much contact with the deceased.

  6. Ivy stated that during her visits to the deceased’s house, the deceased would start calling her Lana. Ivy also noticed the deceased would cry frequently. Ivy stated the deceased would replicate memories and experiences of Ivy’s mother with her. For example, she dressed Ivy in her mother’s old clothes and completed the same bed time routine that Ivy’s mother had completed. Whilst Ivy stated that this sometimes confused her, overall, the deceased was very loving and Ivy enjoyed spending time with her.

  7. Ivy remembered meeting neighbours during these visits but could not recall who they were. She admitted that it was possible that she had met the Defendants during one of her visits: Tcpt, 24 March 2021, p 134(18-19).

  8. In around 2001, Ivy’s father caught chicken pox and the deceased came to Brisbane to take care of Ivy. Ivy’s father had told her the deceased stayed for a period of three weeks.

  9. The Defendants submitted there was nothing in the evidence regarding the deceased’s visit to Brisbane in 2001 which established any dependency of Ivy on the deceased.

  10. On one visit to Sydney, the deceased took Ivy to get a haircut. When Ivy returned to Brisbane, her father was upset about the length of the haircut. She recalled that her father spoke angrily to the deceased about the haircut and he had subsequently informed Ivy that this had led to a falling-out between himself and the deceased.

  11. It was after this incident, that Ivy’s father was said to have not permitted Ivy to visit Sydney to stay with the deceased again. That visit was the last time Ivy saw the deceased.

  12. Ivy maintained that whilst she did not see the deceased after 2003, they maintained a close relationship through letters, cards at Christmas and Easter, and regularly speaking on the telephone about once every second month. No letters, cards, or any record of telephone calls were produced in Ivy’s case.

  13. In re-examination, Ivy stated that her father first forbade her from contacting the deceased in 2003: Tcpt, 24 March 2021, p 145(35-38). Despite this, in an affidavit sworn 21 December 2018, Ivy had stated that, while growing up, she would regularly speak to the deceased by telephone. This involved Ivy’s great aunt, Eliza (the deceased’s sister, who lived in Brisbane), telephoning the deceased from a public phone box and passing the phone to Ivy.

  14. The deceased and Ivy would usually speak for around 5 minutes. Ivy stated the deceased was always very affectionate during these telephone calls and often she would hear the deceased crying.

  15. Ivy stated, in cross-examination, that after about 2007, her father, again, forbade her from telephoning the deceased (Tcpt, 24 March 2021, p 140(06-15)) and that as a result she did not do so after 2007 until 2017.

  16. Despite no longer being a minor for the last five years of the deceased’s life, Ivy did not telephone the deceased. She said she did not do so because she did not want to lose her relationship with her father. In cross-examination, she said that she could not telephone the deceased without affecting her relationship with her father: Tcpt, 24 March 2021, p 140(29).

  17. Ivy also said that she had been unable to make telephone calls when her father was not present because she was completing her studies online at home and her social anxiety prevented her from attending the shops alone. She described her father as “always there”: Tcpt, 24 March 2021, p 140(31-40).

  18. When asked if she considered asking her father to allow her to have contact with the deceased, Ivy said her father “made it very clear that this was not an issue he was going to be moved on”: Tcpt, 24 March 2021, p 146(07-10).

  19. In 2007, Ivy and her father moved to Jindabyne in NSW. After the move, Ivy did not visit her aunt Eliza again, and, as a result, Ivy no longer made regular telephone calls to the deceased. Eliza died in 2008. However, Ivy stated that the deceased and she continued to send birthday and Christmas cards, flowers, and other small gifts, to each other, on special occasions. The deceased was also said to have sent Ivy regular food packages with biscuits, cakes and clothing three to four times a year. The deceased also sent money orders, usually of $300, about three to four times a year. Again, this evidence is difficult to accept. There is no evidence of how the deceased would have known where to send the cards and letters, although Ivy stated that she usually tried to let the deceased know her new address within a few months of each move (Affidavit, Ivy Hope Chisak, 21 December 2018 at par 49). Her evidence is inconsistent with the evidence of statements made by the deceased to other witnesses about not knowing Ivy’s whereabouts and the general lack of contact between them.

  20. The last package and money order Ivy received from the deceased was said to be just before Christmas in 2016: Affidavit, Ivy Hope Chisak, 21 December 2018 at par 43.

  21. In January 2017, Ivy and her father became homeless and began living in their car in the Jindabyne area.

  22. In January 2017, Ivy’s father informed her that he had heard rumours the deceased was unwell and had moved to a nursing home. Ivy then attempted to contact the deceased by calling her home telephone number, but the deceased did not answer. She then tried to contact the local Russian Orthodox Church, multiple hospitals and nursing homes to locate the deceased, without success. Ivy stated that after she could not make contact with the deceased at the time and “there was not much more that I could do and waited for the deceased to call me”: Affidavit, Ivy Hope Chisak, 21 December 2018 at par 136.

  23. In answer to a question from the Bench, Ivy stated that, on that occasion, she had telephoned the deceased using her father’s mobile telephone, that he was aware she was using it to contact the deceased, and that he did not attempt to stop her from doing so, despite not being happy about it: Tcpt, 24 March 2021, p 154(39) - 155(01).

  24. In September 2017, Ivy received a call, on her father’s mobile telephone (which, by then, she shared with him), from a lady whose voice she did not recognise. The woman informed Ivy that her grandmother had died and provided details of the deceased’s funeral. Ivy stated that, as she was suffering from pneumonia at the time, her father was unwilling to drive her to Sydney, and she had been unable to attend the funeral.

  25. Ivy did arrange to send flowers to the funeral at Rookwood Cemetery. A receipt of this transaction can be found at Ex D2. Ivy called Rookwood cemetery sometime afterwards to confirm the flowers had been delivered. She stated she continues to feel upset by the fact that she did not attend the deceased’s funeral.

  26. Ivy was unaware about much of the deceased’s life. She did not know about the existence of the Defendants, or any beneficiaries named in the 2009 Will and the 2017 Will, despite them being active participants in the deceased’s life for many years.

  27. It is extremely difficult to, and I do not, accept some of Ivy’s evidence. In parts, it is inconsistent. For example, it is said that Ivy’s father forbade her from having contact with the deceased, but she says that she did so with the assistance of Ivy’s great aunt who assisted Ivy in making telephone calls to her. This does not seem to have affected Ivy’s relationship with her father.

  28. Then, after Ivy became an adult, it is impossible to believe that there were no occasions when she would have been able to contact the deceased, by telephone, or otherwise. She justified this by stating that between 2012 and 2017 there had been no occasion when she had not been out of the presence of her father: Tcpt, 24 March 2021, p 140(44-48). This hardly seems plausible.

The Beneficiaries

  1. I turn next to the beneficiaries named in the 2017 Will. Whilst counsel for Ivy did not invite any adverse credit findings against the Defendants, or other witnesses who were close to the deceased, she submitted that the evidence of the Defendants and other lay witnesses regarding the deceased’s “quick” recovery after the stroke should be viewed with caution in light of the speech pathologist’s report and their fiscal interests in the 2017 Will.

  2. The evidence of all of the witnesses who were close to the deceased and who had close contact with the deceased, both before, and after, she suffered her stroke, was consistent. I was very impressed with each of them, even remembering that she is a beneficiary named in the 2017 Will. I am satisfied that each of them gave a truthful account of her interaction, respectively, with the deceased, and that each gave accurate evidence about her observations of, and conversations with, the deceased, both before and after she suffered her stroke. None of the evidence was seriously challenged in cross-examination. In any event, it had the ring of truth to it. I accept the evidence of each of the beneficiaries.

  3. Over the years, the deceased would come over to the Presot home regularly and join the Presot family for special occasions such as Christmas, Easter and Mother’s Day.

  4. For the last 15 years of her life, the deceased was assisted by Emanuela with general tasks. Emanuela would also take the deceased shopping and to medical appointments.

  5. Emanuela stated that over the years the deceased spoke to her about Ivy, usually saying that she was disappointed that Ivy did not contact, or visit, her.

  6. Emanuela met Ivy once, when Ivy was about four or five years old. The deceased and Ivy were walking past the Presot home and stopped in when they saw Adelina.

  7. In March 2017, Emanuela visited the deceased in hospital on the afternoon she had her stroke. She noticed the deceased’s mouth was slightly drooped to the side and her speech was slurred: Tcpt, 23 March 2021, p 99(03-04); Affidavit, Emanuela Presot, 1 July 2019 at par 2.

  8. Emanuela stated that the deceased recognised her and smiled. She also noted that the deceased appeared to understand her questions and would respond by nodding her head.

  9. Emanuela visited the deceased in hospital nearly every day after work.

  10. Emanuela drove the deceased home from Westmead Hospital after her stroke. She arranged a medical alert button for the deceased and assisted her with the paperwork for her ongoing medical care.

  11. On her return home, the deceased continued to live alone, with some assistance from others. Emanuela visited the deceased after work nearly every day and would assist with groceries and shopping.

  12. Emanuela and Adelina then organised for the deceased to receive Meals on Wheels for a short time. In cross-examination, Emanuela stated “We had spoken with her about that and she was happy for that to occur because, just to give her a chance to settle back into home”: Tcpt, 23 March 2021, p 99(28-29).

  13. During April 2017, once the deceased had returned home, Emanuela found the deceased’s speech improved to the extent they could have proper conversations in which the deceased was capable of expressing her feelings, needs and wants: Affidavit, Emanuela Presot, 1 July 2019 at par 8.

  1. My reasons in Bowditch v NSW Trustee & Guardian [2012] NSWSC 275, where I had set out other general principles in relation to a claim by a grandchild attracted the approval of the Court of Appeal in Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [21] (Basten JA); see also at [65]-[67] (Barrett JA). I wrote:

“[113]

…

(a) As a general rule, a grandparent does not have a responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild. Nor is a grandchild, normally, regarded as a natural object of the deceased’s testamentary recognition.

(b) Where a grandchild has lost his, or her, parents at an early age, or when he, or she, has been taken in by the grandparent in circumstances where the grandparent becomes in loco parentis, these factors would, prima facie, give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandparent. The fact that the grandchild resided with one, or more, of his, or her, grandparents is a significant factor. Even then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild’s life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild’s support and welfare, or else that the deceased has undertaken a continuing and substantial responsibility to support the applicant grandchild  financially or emotionally.

(c) The mere fact of a family relationship between grandparent and grandchild  does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. A moral obligation may be created in a particular case by reason, for example, of the care and affection provided by a grandchild to his, or her, grandparent.

(d) Generosity by the grandparent to the grandchild, including contribution to the education of the child, does not convert the grandparental relationship into one of obligation to provide for the grandchild upon the death of the grandparent. It has been said that a pattern of significant generosity by a grandparent, including contributions to education, does not convert the grandparental relationship into one of obligation to the recipients, as distinct from one of voluntary support, generosity and indulgence.

(e) The fact that the deceased occasionally, or even frequently, made gifts to, or for, the benefit of the grandchild does not, in itself, make the grandchild wholly, or partially, dependent on the deceased for the purposes of the Act.

(f) It is relevant to consider what inheritance, or financial support, a grandchild might fairly expect from his, or her, parents.

[114] The authorities that provide the basis for the above summary, in relation to grandchildren, include Tsivinsky v Tsivinsky; Sayer v Sayer [1999] NSWCA 340; MacEwan Shaw v Shaw [2003] VSC 318; O’Dea v O’Dea [2005] NSWSC 46; Simons v Permanent Trustee Co Ltd: Estate D Hakim [2005] NSWSC 223.

….

[117] I make it clear that I do not intend what I have described as “applicable legal principles” or other “general principles”, to be elevated into rules of law or the discretion, at the second stage, to be constrained by statements of principle found in dicta in decisions on similar facts. I identify them merely as providing useful assistance in considering the statutory provisions the terms of which must remain firmly in mind.”

  1. Basten JA, in Chapple v Wilcox, wrote, at [14]:

“There may be circumstances in which widely held community standards
might expect a grandfather to make some provision for his grandchildren, for
example where they had maintained a strong relationship and where there was reason to doubt the willingness or the ability of the parents to make adequate provision for their children. However, such considerations will always be influenced by the fact that the grandchildren are themselves mature adults.”

  1. In Chapple v Wilcox, the Court confirmed that something more than the existence of normal family relations and affections is required in order to enliven the obligation to make provision for a grandchild. The conferral of particular care and affection by a grandchild and her or his legitimate expectations of inheritance may be relevant to determining whether such an obligation exists: at [65]-[67], [96]-[99] (Barrett JA with Gleeson JA agreeing) and at [17]-[21] (Basten JA, with Gleeson JA agreeing).

  2. In Simonetto v Dick [2013] NTSC 77, at [182], Hiley J, took into consideration against the making of a family provision order in favour of adult grandchildren “that the obvious and unfortunate estrangement between [the deceased] and [his wife] and the plaintiffs also negates the existence of a moral duty on the part of [the deceased] to provide for them in his will.” This was confirmed in Simonetto v Dick (2014) 10 ASTLR 231; [2014] NTCA 4.

  3. I have dealt with the fact that the contact between Ivy and the deceased for the last 14 years of the deceased’s life was minimal. Whatever its cause, and having concluded that I find Ivy’s explanation about the lack of contact, particularly after about 2012, when she was an adult, difficult to accept, there cannot be any doubt that it restrains the amplitude of the provision that ought to have been made for her by the deceased.

Additional Principles

  1. The Court’s discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased’s freedom of testation: Pontifical Society for the Propagation of the Faith v Scales at [19] (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63] (Nettle J).

  2. Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1 , at 6, that it is not appropriate to endeavour to achieve “an overall fair” division of the deceased’s estate. It is not part of the Court’s function to achieve some kind of equity between the various claimants.

  3.  In Vigolo v Bostin (2005) 213 ALR 692; [2005] HCA 11, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained:

“It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification.”

  1. I have discussed the nature of the relationship between Ivy and the deceased earlier in these reasons.

  2. Ivy stated that the deceased owed her an obligation because:

  1. When they were together the deceased treated Ivy as if she was her daughter;

  2. The deceased made Ivy a major beneficiary under her 1999 and 2009 Wills;

  3. Ivy is the closest living relative of the deceased and only child of the deceased’s only child, who predeceased the deceased;

  4. Whilst the deceased and Ivy did not see each other in person they “love(d) each other very much and had a strong common bond with each other”. Ivy believed her and the deceased to have a “close and loving relationship with each other up until the time of her death”. In oral submissions, counsel for Ivy admits that the deceased was not acting as a “loco parentis” in the typical sense but submitted that to the Plaintiff the love and affection given by the deceased makes her the closest thing to the Plaintiff’s mother or a “mother figure”: Tcpt, 30 March 2021, p 238(27-38) and p 239(06-07);

  5. Under the 1999 and 2009 Wills, Ivy was entitled to receive all of the deceased’s personal property, including items owned by Ivy’s late mother which remain the “last connection I have to my late mother”; and

  6. Between 2000-2003, when Ivy would visit the Lidcombe property the deceased would say words to the effect “one day all of this will be yours. With your mother gone, you are all I have”: Affidavit, Ivy Hope Chisak, 21 December 2018 at par 96.

  1. These are important matters of which it is clear that the deceased appreciated and seemed to have taken into consideration in making the 2017 Will.

  2. I have already noted the size of the deceased’s estate, before deductions of any costs, to be $882,752. It is almost $632,013 after costs. It is not a large estate.

  3. In an affidavit made on 21 December 2018, Ivy summarised her financial situation. The only assets that she then owned were personal belongings, a second hand laptop computer and a camera. She has never worked and has no superannuation entitlements. In her updating affidavit dated 23 February 2021, she stated she now has $1,500 in savings.

  4. Ivy received $40,000 from her grandfather’s estate. These funds were held on trust for Ivy and she received payments from time to time. These funds have since been expended in paying for accommodation for Ivy and her father.

  5. Ivy is currently a full-time student. As at 23 February 2021, Ivy was receiving Youth Allowance payments of $1,364 per month from Centrelink. She asserted that after 31 March 2021, her youth allowance will be reduced to $1,064 per month, being the amount received before the payments were increased by Covid supplements.

  6. Ivy uses her income to contribute to her, and her father’s, household expenses and rent. She stated that, without her contribution, she and her father would not be able to afford to live at their current rental address: Affidavit, Ivy Hope Chisak, 21 December 2018 at par 46.

  7. Ivy stated that as at 21 December 2018, she has the following monthly expenses (combined with her father’s expenditure) (Ex IHC-1/16):

Expenses

Amounts

Rent

$1,320

Food

$ 800

Bills

$ 200

Petrol

$ 250

Storage

$ 155

Internet Connection Fees

$ 75

Telephone

$ 10

Total

$2,810

  1. Ivy attended a total of 11 schools from preschool to the end of year 11. From mid-2007, she began home schooling and completed her education until the end of year 11 through the Brisbane School of Distance Education. She is proposing to study her HSC through TAFE NSW.

  2. Ivy is currently enrolled in a Certificate 3 in Travel at TAFE through the online campus. She stated that she is hoping to use this as a stepping stone to complete an architecture, or engineering, degree at university.

  3. Ivy has not resided in any stable long-term accommodation during her lifetime. Ivy and her father have lived in a large number of short term housing, including with family members, emergency accommodation and periods of homelessness.

  4. At the time of her updating affidavit dated 23 February 2021, Ivy and her father had moved into a granny flat in Pullenvale, Queensland. She stated that this is temporary accommodation. She is hoping to secure more permanent accommodation as a result of additional provision that is made for her by way of an order of the Court.

  5. Ivy has had previous negative experiences with neighbours including receiving death threats from neighbours and witnessing a domestic violence incident. In her 21 December 2018 affidavit, she stated that due to these experiences and her agoraphobia, she is seeking to have the Lidcombe property transferred to her to act as a principle form of residence or additional funds from the deceased’s estate to purchase a two bedroom property in Jindabyne or some other semi-rural area. (There was no medical evidence to substantiate her claims, except for Exhibit P2 which appear to contain a medical request form and a referral letter for Ivy).

  6. Ivy estimated that she will require between $575,000 and $650,000 to purchase a two bedroom house in the Jindabyne area or surrounding localities (Ex IHC-1/17-20). Based on an estimate of receiving interest of 2.5% per annum on funds deposited in a fixed term deposit account, she estimated that she would require a further $275,000 to provide sufficient net income to cover estimated expenses such for stamp duty, bills, council rates and other outgoings in respect of a two bedroom house in the Jindabyne area. In addition she is seeking a lump sum of $75,000 to cover her living expenses whilst she attends university. Of course, the total of these alleged needs exceeds the value of the estate, after the payment of costs.

  7. Ivy stated that her father has no savings and currently lives off a disability pension of $2,104 per month (Ex IHC-1/16). His only asset is a 2006 Ford Focus which she estimates to have a value of less than $1500: Affidavit, Ivy Hope Chisak, 23 February 2021 at par 16. (As stated, no evidence was given by her father about this, or any other matter. In any event, the Act does not permit orders to be made to provide for the support of third persons who the applicant, however reasonably, wishes to support, where there is no obligation of the deceased to have made provision for such persons: Re Buckland, Deceased [1966] VR 404 at 411; Kleinig v Neal (No 2) [1981] 2 NSWLR 532 at 537; Mayfield v Lloyd-Williams [2004] NSWSC 419 at [86].

  8. Ivy is said to have a number of mental health issues which impact her ability to work and impacted her relationship with the deceased.

  9. In oral submissions, counsel for the Plaintiff submitted that this is not a case where Ivy did not want to contact the deceased but felt “psychologically otherwise an inhibition or inability to freely to [sic] be able to contact the grandmother”: Tcpt, 30 March 2021, p 251(36-40).

  10. In her principal affidavit, Ivy stated she suffered from ongoing mental illnesses since she was 9 years-old. These include depression, chronic anxiety disorder, chronic obsessive compulsive disorder, episodic panic disorder, insomnia and agoraphobia. Ivy has been prescribed anti-depressants which have marginally improved her condition.

  11. Counsel for the Plaintiff tendered, on the second day of the hearing, documents containing medical record requests for Ivy as Exhibit P2.

  12. As a result of the period of homelessness Ivy and her father experienced, Ivy became sick on numerous occasions and contracted pneumonia. This has caused difficulty sleeping and regular panic attacks (3-4 times a week).

  13. Ivy stated that the instability of her living arrangements has caused her to suffer from ongoing stress, anxiety and impacted her mental health. The constant change in living arrangements impacted Ivy’s ability to keep in contact with the deceased. She stated she would usually ensure she made contact with the deceased and let her know their new address within a few months of moving.

  14. Ivy acts as a support person and carer for her father in an unpaid capacity and a result stated her education has suffered. In her principal affidavit, Ivy noted that in recent years she has observed her father having increasing difficulty particularly with regard to panic attacks and other mental health issues: Affidavit, Ivy Hope Chisak, 21 December 2018 at par 33.

  15. Ivy stated that she has always experienced difficulties in making friends and having social contact with other children. Ivy has effectively been living as a recluse since 12 years-old. She currently has no friends and her only social contact is her father, who she assists with care: Affidavit, Ivy Hope Chisak, 21 December 2018 at par 45.

  16. Ivy also experienced bullying at several schools. The bullying, in addition to her father’s mental health condition, caused deterioration in Ivy’s mental health and her studies.

  17. Ivy made no contributions, direct or indirect, financial or non-financial, to the estate of the deceased.

  18. I have already dealt with the competing claims of the other beneficiaries.

  19. Under the deceased’s 2017 Will, Ivy is entitled to a 20% share in the deceased’s estate.

  20. Under the deceased’s 2009 Will, subject to specific pecuniary bequests to others totalling $25,000, Ivy is entitled to the residue of the deceased’s estate.

  21. Ivy was not being maintained by the deceased.

  22. As she is an adult, there is no other person liable to support Ivy.

  23. The character and conduct of Ivy before and after the death of the deceased has been discussed earlier in these reasons.

  24. Having considered all of the matters to which reference has been made, I am of the view that the deceased in the 2017 Will, did make adequate provision for the proper maintenance, education or advancement in life of Ivy. The provision may not have been overly generous, but it was commensurate with what the deceased considered to be referable to her relationship with Ivy and also her relationship with her close friends who she identified as beneficiaries. The deceased gave consideration to the obligations that she had to Ivy.

  25. The Act was never intended to enable the freedom of testamentary disposition to be so encroached upon that a will-maker’s decisions expressed in her Will should have only a prima facie effect, the real dispositive power being vested in the Court.

  26. Furthermore, had the proceedings not been commenced, Ivy’s 20 per cent share of the estate would have yielded about $175,000. That is a substantial legacy for a grandchild in the circumstances of this case. A lump sum of that size would have provided her with a reasonable deposit for a home, or a capital sum for the exigencies of life, or perhaps, both.

  27. It is clear, on the evidence, that apart from the blood relationship, the totality of Ivy’s relationship with the deceased was a substantially, and significantly, less close relationship than the deceased’s relationship with any of the other beneficiaries. Their relationship with her was akin to a family relationship, which the deceased herself recognised by giving each an equal share of her estate. (This is not to suggest that the deceased did not love Ivy. That she did was not the subject of dispute).

  28. In reaching this conclusion, I have taken into account the alleged animosity between Ivy’s father and the deceased. However, as stated, I am of the view that his failure to give evidence allows me to infer that his evidence would not have assisted Ivy. Nevertheless, I have not regarded the lack of contact and who caused, or contributed, to it, as determinative of Ivy’s claim. I have simply taken the fact of the lack of contact into account.

  29. In my view, Ivy’s claim for a family provision order should also be dismissed.

  30. It will be necessary to determine costs unless the parties are able to reach agreement.

  31. Meantime, the Court:

  1. Orders that the amended Statement of Claim, filed by the Plaintiff on 11 December 2019, be dismissed.

  2. Orders that probate in solemn form of the Will dated 26 April 2017 be granted to the Defendants.

  3. Orders that the matter be remitted to the Senior Deputy Registrar in Probate to attach a copy of the final orders, as made and entered, to the original grant of Probate and, thereafter, to return that original to the Defendants.

  4. Stands over the proceedings to 9:00 a.m. on 10 June 2021 for the determination of costs.

**********

Decision last updated: 28 May 2021

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

7

Chisak v Presot [2022] NSWCA 100
Plummer v Montgomery [2023] NSWSC 175
Wild v Meduri & Ors; Meduri & Anor v Neal & Anor; Meduri v Meduri & Ors [2023] NSWSC 113
Cases Cited

68

Statutory Material Cited

4

Alexander v Jansson [2010] NSWCA 176
Amaca Pty Ltd v Novek [2009] NSWCA 50
Australian Securities and Investments Commission v Hellicar [2012] HCA 17