Chronis v Karan

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
CHRONIS v KARAN & ORS
[2021] SASC 87
Judgment of the Honourable Justice Parker

SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - LOSS OR LACK OF CAPACITY AND STATUTORY WILLS
SUCCESSION - MAKING OF A WILL - TESTAMENTARY CAPACITY - SOUNDNESS OF MIND, MEMORY AND UNDERSTANDING
The applicant seeks an order from the Court pronouncing the force and validity of the will made by the deceased, Efstathia Birbas (known as Stathoula), who died on 31 December 2017. The applicant also seeks an order that the will be admitted to probate in solemn form. The will was made on 17 December 2007 after instructions for its preparation were provided on 12 December 2007. The respondents contend that Stathoula lacked testamentary capacity at that time. Alternatively, they contend that she did not have the requisite knowledge of, or did not approve of, the contents of the will. The respondents are included amongst the persons whom would take on an intestacy if the will was found to be invalid.
Stathoula was aged 82 years when she made her will on 17 December 2007. Her husband, Stefanos, had passed away 25 days before that event. The will appointed the applicant, Stathoula’s nephew, as the sole executor and trustee and also the sole beneficiary.
Various family members, including the applicant and respondents gave evidence concerning the circumstances of Stathoula in 2007. However, due to either credibility issues or the limited extent of each witness’s interaction with Stathoula at the relevant time, their evidence throws very little light on her testamentary capacity in December 2007.
According to the evidence of Stathoula’s solicitor, Mr William Niarchos, who took instructions for and witnessed the execution of the will made by Stathoula on 17 December 2007, she appeared to be alert, aware and was very determined that all of her estate was to pass to the applicant. Mr Niarchos gave evidence that he held no doubts about the capacity of Stathoula.
The experts briefed by the parties disagreed as to whether Stathoula had testamentary capacity in December 2007. While the experts agreed that Stathoula was likely to have had some cerebrovascular disease in December 2007 and that by mid-September 2009 she was significantly impaired by dementia, they disagreed as to whether the effect of that condition on her testamentary capacity in December 2007 could be determined.
Held, per Parker J, allowing the application:
1.The contemporaneous and direct evidence of Mr Niarchos, as a legal practitioner with very extensive experience in taking instructions for wills, establishes that Stathoula had the necessary testamentary capacity under the Banks v Goodfellow test at the time she provided instructions to him and also when she executed her will.
2.Stathoula’s response to Mr Niarchos’ explanations of the will and the effect of its provisions establishes that she knew and approved the contents of her will.
3.The force and validity of the will made by Stathoula dated 17 December 2007 is pronounced and it is ordered that the said will be admitted to probate in solemn form.

Inheritance (Family Provision) Act 1972 (SA); Wills Act 1936 (SA) s 8, referred to.
Bailey v Bailey (1924) 34 CLR 558; Banks v Goodfellow (1870) LR 5 QB 549; Hawes v Burgess [2013] EWCA Civ 74; Re Estate of Griffith (1995) 217 ALR 284; Roche v Roche [2017] SASC 8; Tobin v Ezekiel (2012) 83 NSWLR 757; Veall v Veall [2015] VSCA 60; Vukotic v Vukotic [2013] VSC 718; Worth v Clasohm (1952) 86 CLR 439, applied.
Gray v Hart [2012] NSWSC 1435; Green v Green [2015] NZHC 1218; In the Will of Mary Wilson (1897) 23 VLR 197; Read v Carmody [1998] NSWCA 182; Revie v Druitt [2005] NSWSC 902; Symes v Green (1859) 1 Sw & Tr 401; The Estate of Stanislaw Budniak [2015] NSWSC 934; Thomas v Nash (2010) 107 SASR 309, discussed.
Boreham v Prince Henry Hospital (1955) 29 ALJ 179; Brown v Wade [2010] WASC 367; Browne v Dunn (1893) 6 R 67; Kantor v Vosalho [2004] VSCA 235; King v Hudson [2009] NSWSC 1013; Wade v Frost [2014] SASC 162, considered.

CHRONIS v KARAN & ORS
[2021] SASC 87
Civil

PARKER J: The applicant seeks an order from the Court pronouncing the force and validity of the will made by the deceased, Efstathia Birbas, who died on 31 December 2017. The applicant also seeks an order that the will be admitted to probate in solemn form.
The will was made on 17 December 2007 after instructions for its preparation were provided on 12 December 2007. The applicant was appointed as executor and sole beneficiary.
The respondents contend that Mrs Birbas lacked testamentary capacity in December 2007. Alternatively, they contend that she did not have the requisite knowledge of, or approve of, the contents of the will. The respondents are included amongst the persons whom would take on an intestacy should the will be found to be invalid. An allegation of undue influence has not been pleaded.
Mrs Birbas was known as Stathoula by her family. Without intending any disrespect to her and her husband, it is convenient to refer to them as Stathoula and Stefanos. Because several of the witnesses share the surname of Chronis (Stathoula’s maiden name), I have also referred to the family members by their first name.
Background
Stathoula was born in Greece in 1925. Thus, she was aged 82 years when she made her will on 17 December 2007 and 92 years when she died on 31 December 2017. Prior to the death of her husband, Stefanos Birbas, on 22 November 2007 they had been married for some 55 years. Her first language was Greek and she always used that language with family members. She only had a very limited education in Greece although she could read and write in Greek. At least in the later years of her life, she had at best, only a minimal command of English.[1] Before her retirement, she had worked in a factory and, more recently, as a cleaner.
[1] The medical records of the Royal Adelaide Hospital indicate that Stathoula had “moderate” English in 1998 but by 2009 the same source recorded her as speaking no English.
The applicant, Peter Chronis, is the son of Andreas Chronis, a deceased brother of Stathoula, and thus her nephew. He is the first born of her nieces and nephews.
The relationship of the respondents to Stathoula is as follows:
·Vicki Karan (formerly Karanastasis) is the daughter of Andreas Chronis, and thus a niece of Stathoula, and also a sister of the applicant. She is the first respondent.
·Theodora (or Dora) Chronis, also a daughter of Andreas Chronis and therefore a niece of Stathoula, and also a sister of the applicant. She is the second respondent.
·Dina Pashalidis, the surviving sister of Stathoula. She is the third respondent.
·Peter Chronis, the son of George Chronis, a deceased brother of Stathoula, and hence a nephew. He is the fourth respondent.
·Vicki Stravinski, the daughter of George Chronis, and thus a niece of Stathoula. She is the fifth respondent.
The witnesses
The applicant, his wife, Stavroula (or Sally) Chronis and the applicant’s mother, Elli Chronis, gave evidence. The applicant also called Mr William Niarchos, the solicitor who had prepared the will and was one of the witnesses to its execution. Dr Sarah Lucas, a clinical neuropsychologist, gave expert evidence in support of the contention that Stathoula was not shown to have lacked testamentary capacity at the relevant time.
Each of the respondents also gave evidence, with the exception of the third respondent, Dina Pashalidis, the 90-year-old sister of Stathoula. However, Thelma Pashalidis, the daughter of Dina Pashalidis, did give evidence. She is a niece of Stathoula and a first cousin of the applicant. Milton Karan, the husband of the first respondent, also gave some brief evidence about a particular incident when he was called upon to rescue Stathoula when she became caught in a fence while picking lemons. The respondents also called Dr Jane Hecker, a consultant physician practising in aged care and rehabilitation, with a special interest in memory disorders.
The parties had filed affidavits from the proposed witnesses prior to trial. The expert witnesses were instructed to accept the correctness of the factual contentions advanced in those affidavits. However, the affidavits were not “read” or tendered at the trial and the parties relied entirely upon the oral evidence of the deponents.
The will
Stathoula was aged 82 years when she made her will on 17 December 2007. Her husband, Stefanos, had passed away 25 days before that event, following a period of ill health caused by cancer.
The will is not complex. The applicant was appointed as the sole executor and trustee and also the sole beneficiary. The value of the estate has been declared for probate purposes at approximately $500,000. The assets consist of the family home and moneys held in a bank account.
The evidence of Mr Niarchos
The will was prepared and witnessed by William Niarchos, a solicitor. The other witness was his wife, Helen Niarchos. He is fluent in the Greek language, as is his wife. He stated that he has practiced in South Australia since 1978. He has prepared several thousand wills and practices predominantly on behalf of members of the Greek community. He has been active in the Greek Orthodox community for many years.
Mr Niarchos stated that he had known Stathoula and Stefanos since he was a child. They had been friends of his parents since they had migrated from Greece in the 1950’s. He had met and spoken with them, particularly at Greek community events, on many occasions. The applicant, Peter Chronis, and his wife Stavroula (Sally) Chronis, and other members of the extended family, were also well known to him. His brother’s firm, where he had worked for a long period, had acted for Stathoula’s brothers in workers compensation claims many years ago and he thought that they may have also acted for her in a personal injury claim in the 1980’s or early 1990’s.
In early December 2007, Mr Niarchos had been contacted by the applicant who informed him that because Stefanos had recently passed away Stathoula was reviewing her affairs and wanted to consult him. He arranged with the applicant to meet at the applicant’s mother’s house on 12 December 2007 and to follow him to Stathoula’s house. Mr Niarchos stated that they arrived at about lunch time or sometime after lunch. She warmly welcomed them and prepared and served coffee and Greek cakes.
Mr Niarchos considered that Stathoula was alert and aware and her demeanour seemed entirely normal. She was also well groomed and presented. She commenced to speak to him about the making of a will but he advised her that it was necessary to discuss first the grant of an enduring power of attorney and an enduring power of guardianship. He explained the purpose and effect of these instruments. The applicant remained in a nearby area within earshot while these matters were discussed.
Mr Niarchos asked Stathoula to gather documents such as Centrelink and Medicare papers, rates notices, bank documents and general accounts. Stathoula gathered those documents and provided them to him. The purpose of this request was to enable Mr Niarchos to check her precise name, its correct spelling, the extent of her assets and other relevant details. However, Mr Niarchos also stated that because he was satisfied with the response of Stathoula to these requests, and the way in which she was speaking to him, he did not wish to insult her by asking questions to test her mental capacity, such as asking her what year it was. He had taken instructions to prepare a great many wills and his practice was to require a medical report if, after talking to the person, he held any doubt about their capacity. He held no doubts about the capacity of Stathoula. Mr Niarchos also stated that he had taken instructions on other occasions for the preparation of a will soon after the death of a spouse.
After Mr Niarchos had explained the purpose of the enduring powers of attorney and guardianship, and advised that the appointee must be somebody that she could trust and unhesitatingly believed would do the right thing, Stathoula was adamant that the applicant was to be appointed to attend to her affairs. She indicated that the applicant and his wife were already very significantly involved in helping to manage her affairs. The applicant indicated his willingness to accept these appointments.
Mr Niarchos then asked the applicant to leave prior to commencing his discussion with Stathoula about her will. The applicant left the house at that point. The discussion about the powers of attorney and guardianship had taken about 45 minutes each, including the gathering of documents. On that basis, the applicant would have been present for about 90 minutes. Mr Niarchos said that he spent about two to three hours in total with Stathoula. The applicant’s evidence as to the timing and duration of the meeting was somewhat different. I will consider that issue in the context of the applicant’s evidence.
Mr Niarchos stated that Stathoula had a very direct and assertive manner of speaking that sometimes could be abrasive. He explained to her the role of the executor and asked her to make a nomination. According to Mr Niarchos, she unhesitatingly nominated the applicant. As she had said in relation to the powers of attorney and guardianship, she indicated that the applicant and his wife were already helping with her affairs. Mr Niarchos had ascertained the extent of Stathoula’s assets when discussing the enduring powers of guardianship and attorney.
When asked whom were to be her beneficiaries, Stathoula nominated the applicant as the sole beneficiary. As Mr Niarchos was aware that Stathoula had other nephews and nieces, and that the applicant had two sisters, he asked her “what about the other members of the family?” He also asked about the sisters of her late husband. She was very determined that all of her estate was to pass to the applicant. Mr Niarchos recorded in file notes that Stathoula was “determined only for him, no one else” and had stated “he only has looked out for her with his wife”. He also stated that she had said “I haven’t seen any of my other nephews and nieces come to do anything for me. I haven’t seen them when my husband was here coming to do anything for me, or us. It was Peter and his wife who would do this running around and attending to me and attending to us.” She had glared at Mr Niarchos when he asked why the applicant was to be the sole beneficiary and he understood her to be affronted by the question.
Mr Niarchos also asked Stathoula whom she wanted to inherit if the applicant predeceased her. She nominated the children of the applicant. She also nominated the applicant’s wife, Stavroula (Sally), to act as executor and trustee and also attorney and guardian if the applicant was deceased or unable to act.
Mr Niarchos returned to see Stathoula on 17 December 2007 with his wife after making the necessary arrangements through the applicant. However, the applicant did not attend. Mr Niarchos stated that prior to the execution of the will, he read it out each provision in English and explained their effect in Greek as he went along.
Stathoula had confirmed that she wanted the applicant to be her executor and trustee and sole beneficiary. She had said “Bill I understand what you’re saying to me, I understand that this is what I said to you this is what I wanted and you have confirmed to me what my wishes are, you have confirmed to me what I indicated to you that Mr Chronis was to be my executor and trustee, that it is my wish that he be my sole beneficiary”. The two witnesses included a declaration on the face of the will that it had been translated to Stathoula in Greek and she seemed fully to understand its nature and effect.
Mr Niarchos was challenged in cross-examination about his use of the phrases “I would have said” or “that is my practice” at some points when recounting his interview with Stathoula. It was not directly put to Mr Niarchos that his evidence was a reconstruction. Mr Niarchos stated that he had a clear memory of his two meetings with Stathoula, albeit they had occurred some 13 years earlier. He prepared only a brief file note. However, that note recorded the essential elements of the instructions he had received as to the terms of the will together with the entries I have quoted above at [21]. He was able to recount much surrounding detail. His evidence was not in any way shaken or weakened in cross examination.
I find that the evidence of Mr Niarchos was truthful and reliable. I will consider later whether he took sufficient steps to satisfy himself as to the capacity of Stathoula to provide instructions and whether she knew and approved of the contents of her will.
Lay evidence concerning the testator’s condition
There was substantial evidence from lay witnesses concerning the presentation of Stathoula during 2007 and also after the making of her will until her admission to a nursing home in 2009.
Most of the nieces and nephews who gave evidence stated that their aunt, Stathoula, had been part of a close extended family and they saw much of her as they grew up. I accept that evidence and it is unnecessary to refer to it in detail.
The evidence of the applicant
The applicant is a teacher by training but has been in business for a long time. He stated that he had helped Stathoula and Stefanos over many years by completing forms, doing their tax returns, interpreting and translating and providing like assistance. He saw them every few weeks, on some occasions for a meal and on others for coffee. This contact was maintained during 2007, although I note that Stefanos was hospitalised for part of that year until his death on 22 November 2007.
The applicant further stated that during the course of 2007 he had not noticed any change in the personality of Stathoula. She had remained family oriented and close to the family. She always knew what she wanted. Over the course of 2007 she became sad as her husband’s illness progressed. He noted that she did not recover from this state during the remainder of her life. Apart from that, her presentation and appearance had not changed during 2007. She remained well dressed and her hair was well done. He had also not noticed any change during 2007 in her capacity to care for her garden and her chickens and to perform the housework. The house was clean and tidy and no different to earlier times. He thought that his wife was seeing Stathoula every few days at that time.
The applicant and his wife had arranged the funeral of Stefanos in conjunction with Chris Birbas, a nephew on Stefanos’ side of the family. That had been done at the request of Stathoula. After the death of Stefanos, the applicant had seen Stathoula every day or two, she was very upset at that time. However, he had not noticed any difference in the way that she presented herself.
The applicant stated that about one or two weeks after the funeral of Stefanos, Stathoula had asked to arrange for her to meet with Mr Niarchos so as, in his words, “to help get her affairs all sorted”. While he had known Mr Niarchos for many years through their respective families, he had never socialised with him alone or in small groups. He had never engaged Mr Niarchos as his solicitor although other family members had done so.

Although the applicant was uncertain as to whether the preparation of a will was specifically mentioned, at the time he had felt that this would be one of the matters to be dealt with when Stathoula referred to “sorting out her affairs”. He arranged for Mr Niarchos to meet with Stathoula. They met first at his mother’s home and Mr Niarchos followed him to Stathoula’s home.
I accept the evidence of the applicant concerning the request that he had received from his aunt that led him to contact Mr Niarchos on her behalf as being truthful and reliable.
The description of events when the applicant and Mr Niarchos attended at Stathoula’s home given by the applicant was entirely consistent with the account given by Mr Niarchos save for matters of timing and duration. The applicant suggested that the visit occurred in the late afternoon although he was not definite about that. He also said that he had spent “an hour at tops” at Stathoula’s home. Given that the applicant was not certain as to the correctness of his recollection as to the timing of the meeting, I reject the contention that his evidence on this point was inconsistent with that of Mr Niarchos. While the latter’s evidence suggested that the applicant would have been present for 90 minutes, rather than one hour, the difference is not significant.
The applicant stated that he had placed the original and duplicate of Stathoula’s will in his safe after they were provided to him by Mr Niarchos and had not looked at these documents until after her death. However, he had looked at the powers of attorney and guardianship.
The applicant also stated that, together with Chris Birbas, he had organised the 40-day events following the death of Stefanos, which comprised a church service, attendance at the cemetery with a priest and a gathering at the Olympic Hall.
The applicant continued to see Stathoula regularly during 2008. He noticed that her legs were not functioning as well as they used to and she was anxious. For that reason, he and his wife saw her more often. He organised for her to have a personal alarm. Over the course of the year she became frailer and was not eating as much. As Sally was taking her to medical appointments, he was less aware of the details of Stathoula’s decline.
During 2008 Sally arranged for the Burnside Council and later the Greek Orthodox community to provide assistance to Stathoula with housekeeping and bathing. Sally had arranged for Stathoula to have an ACAT assessment during 2008 to support the application for personal care.[2]
[2] Aged Care Assessment Team.
The applicant stated that during 2008 and 2009 Stathoula continued to do her own shopping and to look after her gardens and her chickens. She continued to show interest in family events, such as the marriages of two of the applicant’s daughters. However, by late 2008 she was suffering falls more regularly. In 2009, she had fallen outside her house and was rescued by a passer-by and then admitted to the Royal Adelaide Hospital (RAH). While she was a patient at the RAH, a further ACAT report was undertaken which eventually resulted in her admission into the Ridleyton Greek Home for the Aged in November 2009. By that stage she was unable to care for herself properly and nor could she look after her chickens and her cat. During 2009 she was also forgetful and had forgotten how to prepare various foods and how to bake bread.
The applicant suggested that the deterioration in Stathoula’s behaviour had become noticeable by about late 2008. His mother, and also Stathoula’s sister Dina, had also participated in the decision that Stathoula should enter the nursing home. However, the applicant had not discussed this issue with his sisters Vicki Karan and Dora Chronis, i.e. the first and second respondents. He stated that he had not done so because they had not shown any interest in his aunt previously. He stated that he had also not discussed the issue with his cousins for the same reason.
After Stathoula entered the nursing home in November 2009, the applicant and his wife continued to manage her affairs under the power of attorney and power of guardianship until her death.
The applicant said that he was not aware that Stathoula was suffering from urinary incontinence in 2007 and also said that he had not observed that she was losing interest in household matters at that time and not eating regularly.
The applicant stated that he had organised Stathoula to sign the application to register Stefanos’ death on the title to her home on 27 August 2009 even though by that time she was suffering from severe dementia. He said that he had not been aware that he could have signed the document as the holder of an enduring power of attorney.
Evidence of Elli Chronis
The mother of the applicant, Elli Chronis, gave evidence in support of the application. Her late husband, Andreas, was the brother of Stathoula. She was aged 90 years. She gave evidence through a Greek interpreter, although she does speak some English and at times answered in English despite being told to wait for the interpreter. That fact, combined with the hearing problems suffered by both the interpreter and by Elli, complicated the task of giving evidence. It was also evident that Elli had a much better recall of the more distant past than she did of recent events.
Elli seemed to state that she was present during what has been described as “the lemon tree incident” when Stathoula became trapped in a fence while picking lemons and was rescued after some time by Milton Karan. However, his evidence left me in no doubt that she was not present. It was unclear whether there was a problem with the interpreting or if Elli was confused.
Elli stated that Stathoula had not been forgetful before the death of her husband. She said that after his death the house had been clean and tidy but she was receiving assistance from the council. She did not recall Stathoula being unable to care for her garden and chickens or being unable to cook. She said that Stathoula had been assisted by the applicant and his wife, although she also received assistance from a carer with her shopping, cleaning the house and showering. Neither of her daughters had suggested to her that there had been anything wrong with Stathoula after the death of Stefanos. She had not observed any sign of incontinence but she was aware that Stathoula sometimes had falls and would sometimes hide that fact. She had opened the fridge but had never seen old food. During 2007 she visited Stathoula once or twice a week and when she did not visit they would telephone each other each day. Elli also said that Stathoula had not forgotten to turn off the gas on occasions prior to the death of her husband but had done so subsequently.
Because of the difficulties to which I have referred, I did not find the evidence of Elli Chronis to be of any real assistance.
Evidence of Stavroula (Sally) Chronis
Stavroula Chronis (generally known as Sally Chronis) is the wife of the applicant. They have been married since 1973. She said that Stathoula and her husband, Stefanos, had been godparents to one of their daughters. Sally stated that she believed that Stathoula and Stefanos had a warm affection for all of their nieces and nephews but they were especially fond of the applicant as he was the eldest and had shown them affection and interest. Stathoula and Stefanos had said that they had migrated to Australia because they missed their first-born nephew so much that they wished to be reunited with him and his family. I have reservations about this particular evidence as it seemed to me to have been rehearsed.
Sally also stated that she and the applicant saw Stathoula and Stefanos on about a monthly basis from the time of their marriage. Stathoula and Stefanos had sought the applicant’s assistance to translate documents, complete forms and provide advice on anything business related. They had also sought Sally’s assistance with such matters when she visited. This had continued during the 2000’s. At that time Stathoula was paying bills at the post office, doing the shopping and the bulk of the housework. She was consulting her GP, Dr Varoneckas, who practiced a couple of doors away from her home.
Sally stated that in in about late October or November 2007 Stathoula and Stefanos had asked Sally to arrange for some household assistance as he was unable to do much by that time. The Burnside Council had commenced to provide fortnightly assistance to Stathoula with such matters as cleaning and shopping from the beginning of November 2007. From mid-2008 Sally had organised for the Greek Welfare Association to provide assistance on a weekly basis using Greek speaking staff.
Sally had not noticed any difference in Stathoula at this time other than that she appeared frailer. She also did not notice any difficulties with Stathoula’s memory. She had first noticed Stathoula becoming a little forgetful in mid-2008. She was not aware whether Stathoula had suffered any falls prior to the death of Stefanos. However, she had falls in 2008.
After the death of Stefanos, the applicant and Sally saw Stathoula more regularly. She would seek their help with matters she was not able to deal with. As Stathoula was on her own and isolated, they would invite her to their house and also visit her. That was often left to Sally to deal with. She would also arrange visits to Stathoula with the applicant’s mother. This continued into 2008. Stathoula had celebrated Christmas 2007 with the applicant and Sally and their family. She had celebrated Christmas 2008 with Vicki Stravinski.
Following the death of Stefanos, Sally stated that Stathoula had asked the applicant to contact Mr Niarchos. Stathoula said that she had had a relationship with the parents of Mr Niarchos. Stathoula felt comfortable to speak with him for that reason.
During the months following the death of Stefanos, and before Stathoula moved into the Ridleyton Greek Home for the Aged in 2009, she had relied on the applicant and Sally to help her with various matters. Initially, Stathoula was still quite independent. While she was having falls, she was still able to look after herself. She travelled by bus to go shopping and walked to a local pharmacy. She looked after her house, did some of the housework and gardening and was continuing to do the shopping and cooking.
Throughout early 2008, Sally continued to see Stathoula from time to time. Sally stated that, at the request of Stathoula, she had arranged for her to see a new general practitioner, Dr Colls, at the Arkaba Medical Centre, following the retirement of Dr Varoneckas in about early 2008. Thereafter, Stathoula had asked Sally to attend appointments with her to translate. She had also assisted by taking Stathoula to see Dr Colls following falls. She had also collected her prescription medicine.
Sally additionally stated that in mid-2008 she and the applicant had arranged a review and assessment by Stathoula’s general practitioner and also an ACAT assessment to determine her entitlement for household assistance. They had also arranged for Stathoula to have a personal alarm with the applicant being recorded as being the first point of call if she needed assistance. They also arranged for Stathoula to obtain a walker and to have household modifications made. Following the ACAT assessment, the Greek Welfare Association had provided assistance with house cleaning and shopping.
Evidence of Thelma Pashalidis
Thelma Pashalidis is the daughter of the third respondent, Dina Pashalidis. She is the niece of Stathoula and the first cousin of the applicant. She is not a party to these proceedings. She does not stand to gain any benefit if the respondents are successful. However, her mother aged 90 years, would benefit.
Thelma stated that during 2007 she dropped her mother at Stathoula’s home on most Tuesdays as she did not work that day. Her mother cooked food for Stathoula and Stefanos so she would take her mother to their home with the food, go inside and drop the food off and then return later to pick up her mother. She would then stay for up to one hour. As Stefanos was not well, and Stathoula had become very quiet, confused and depressed, it was not a happy atmosphere. Stathoula did not show the same interest as she had in the past about her family and had not told stories. Thus, for example, Stathoula had not asked about Thelma’s daughter, Olivia, in 2007. This was contrary to her previous interest. Stathoula also did not seem to realise the gravity of Stefanos’ illness. She became more and more unkempt each time Thelma saw her in contrast to her past neat and tidy appearance.
Thelma also referred to an incident soon after the death of Stefanos when she and her mother and a family friend visited Stathoula. When they arrived, Stathoula was sweeping the footpath outside her house. While the sweeping was consistent with her past practice, she continued with that activity and did not go inside with them despite Thelma asking her to do so. It was necessary for her mother to bring Stathoula into the house after the visitors had made coffee for her.
Thelma also gave evidence that during 2007 it had not been possible to engage Stathoula in conversation when she visited with her mother including an occasion when her daughter Olivia, who was then a teenager, also attended. As her evidence progressed, she went on to suggest that the failure of Stathoula to speak to visitors had been apparent in 2006. This matter had not been mentioned in her affidavit even though she had deposed to detailed evidence of Stathoula’s decline from 2007. She was extensively cross‑examined about the timing of Stathoula’s decline. Ultimately, I upheld an objection based on the nature and extent of the cross‑examination but when doing so I indicated that I had formed a clear impression as to the reliability of her evidence on this particular point.
Having closely observed Thelma as she gave evidence and listened carefully to her answers, I concluded that she tended to overstate the unwillingness or inability of Stathoula to engage in conversation with visitors. I also do not accept her evidence that this issue had become apparent in 2006. The clear impression I formed was that her assertion that Stathoula’s decline was manifest in 2006 was an ill-judged response to the suggestion by cross examining counsel that the difficulties she was describing had occurred later. Moreover, Dora Chronis and Vicki Karan specifically denied having seen Stathoula not respond to visitors in 2006. Thelma also conceded that she had not visited Stathoula regularly in 2006 as she was working full time.
Thelma also stated that Stathoula became more and more unkempt during 2007. It appeared that she did not really care about how she appeared. She also smelt as if she was not washing frequently. She was also incontinent. There was also an unpleasant smell in the toilet and laundry area of her house. Whilst Stathoula had previously been very proud of her garden she had stopped producing beautiful flowers and vegetables. Thelma had raised her concern with her mother who had responded that the applicant and his wife were dealing with these matters and she should not get involved.
Thelma generally painted Stathoula’s situation in 2007 in a worse light than other witnesses called by the respondents. I consider that, to a material extent, Thelma may have been describing Stathoula’s situation as it existed in 2008 and 2009 rather than earlier. I hold this view for several reasons. Firstly, counsel for the respondents conceded in his closing submissions that she may have been confused about timing. Second, I closely observed Thelma as she gave evidence and formed the strong view that she was overstating the position. Third, her evidence differed as to both the extent and timing of Stathoula’s mental and physical decline when compared with that given by her cousin, Vicki Stravinski. I consider the evidence of Vicki to be more reliable and prefer it to that of Thelma to the extent that there are inconsistencies. In that respect, I also draw some support from the evidence of Dora Chronis and Vicki Karan.
Evidence of Theodora (or Dora) Chronis
While Dora had seen Stathoula about once every couple of weeks at the time of her marriage breakdown in 2004 and 2005, due to her poor relationship with Stefanos and her own illness she had only visited Stathoula on a small number of occasions between sometime in 2006 and his death in November 2007. On these occasions Stathoula had been quiet but would speak to her. The house was neat and tidy.
After the death of Stefanos, Dora had seen Stathoula about once a month when she would stay for about half an hour. She stated that Stathoula was very quiet during 2008 and 2009. Because of her long experience working in a pharmacy, Dora would ask whether Stathoula was taking her medication but she did not answer. Dora would not eat or drink anything as Stathoula’s kitchen was very dirty. She also stated that Stathoula had a smell, which she associated with incontinence due to her pharmacy experience.
Dora was also asked about her knowledge of the observance of a 40-day mourning period in the Greek community. She stated that a widow would receive visitors in this period but not go out and “would not do anything”.
I do not doubt the reliability and accuracy of the evidence given by Dora Chronis. To the extent that her evidence differs from that of Thelma Pashalidis, I prefer that of Dora. In particular, although Dora only visited Stathoula at her home on a small number of occasions during 2007, I prefer her evidence that Stathoula would speak to her and also that, in her opinion, the house was neat and tidy. However, the evidence of Thelma and Dora about the deterioration in Stathoula’s situation in 2008 and 2009 is broadly consistent.
Evidence of Vicki Stravinski
Vicki had maintained contact with Stathoula and Stefanos as an adult. She had visited them fairly regularly in 2005 and 2006 as she shared a love of cooking with Stathoula. However, she had always found Stefanos to be antagonistic and aggressive. These matters came to a head in about January 2007 and thereafter Vicki had not visited Stathoula until Stefanos died. However, she had maintained telephone contact with Stathoula about once a month over this period. While Stathoula had asked her to resume visiting so as to provide support against the ridiculing and humiliation she received from Stefanos, she had not done so.
After the death of Stefanos, Vicki resumed her regular contact with Stathoula. Initially, she and her mother would visit every Saturday or second Saturday and either cook for her or take prepared food. From time to time she also took Stathoula to her mother’s home for lunch. The frequency of her visits declined to a frequency of fortnightly to monthly once she resumed work as a school principal in early February 2008 and further declined in 2009.
Vicki stated that after she had resumed contact with Stathoula in late 2007, she had noticed that she showed a lack of interest in the upkeep of her home. While she was unable to comment on the maintenance of the garden, she observed that there were always crumbs on the kitchen benches and other surfaces and on the floor. She also observed that the coffee cups and glasses were not well cleaned. Vicki attended to these issues when she visited. Vicki was also aware that Stathoula was using incontinence pads in late 2007, as she obtained these for her.
Vicki observed that Stathoula appeared to be quite depressed in the period after the death of Stefanos. She was eating very little. Food that other members of the family had previously provided was left in the fridge untouched. Vicki disposed of that food where necessary. By the latter part of 2008, Stathoula had become forgetful.

I accept the reliability and accuracy of the evidence given by Vicki Stravinski. In particular, I considered her evidence to be more measured and reliable than that of her cousin, Thelma Pashalidis, and the timing of events was dated more reliably.
Evidence of Peter Chronis (the fourth respondent)
The fourth respondent, Peter Chronis, stated that he had had regular contact with Stathoula and Stefanos in the 1990s at the time of his marriage breakdown. He did not see much of them in 2007 because of his work commitments. On one occasion not long after the death of Stefanos he did visit Stathoula with his young daughter. On that occasion, Stathoula was vague. She made them breakfast but it was not like her earlier cooking and his daughter refused to eat the food.
Apparently because of his crash repair business, Stathoula had asked him to get rid of the family car. However, because he was busy he did not go to Stathoula’s house to collect the car until two or three weeks later. Stathoula was rather vague but said that somebody had taken the car. He presumed that the applicant had done so.
Because the fourth respondent had such limited contact with Stathoula, I did not find his evidence to be of much assistance.
Evidence of Vicki Karan
Vicki Karan is the sister of the applicant and of Dora Chronis. She stated that from the age of nine she had acted as an interpreter for her aunt, Stathoula, and had continued that role for close to three decades. She was born in 1953 and indicated that she had continued with this role until 1991. However, she and her husband, Milton, had lived in Sydney from 1982 to 1984 and then in Sydney and Melbourne from 1995 to 2001. It appears from her evidence that much of this assistance involved the translation of correspondence. When Stathoula had suffered from breast cancer in 1980, Vicki had taken her to the various medical appointments. Stathoula had also confided in her about the difficulties she had experienced with her husband, Stefanos.
From the beginning of 2007 until December 2008 Vicki Karan’s husband, Milton, was very ill with heart disease. This required Vicki and one of their daughters to take on much of the responsibility for the management of their substantial business. Vicki stated that she had visited Stathoula about every seven to 10 days in 2006 but due to the pressure of Milton’s illness and the demands of the business she had seen her less frequently in 2007. However, she had seen Stathoula about twice in December 2007 and about four times during January 2008.
During 2007 Stathoula was much less chatty than previously and had “lost her glow”. However, Vicki specifically stated that she had not observed any occasion in 2006 when Stathoula had not spoken to visitors.
Stathoula had appeared sad from about 2006 onwards and was getting sadder. She did not appear to realise the severity of Stefanos’ illness and seemed to need help to get through the day of his funeral.
Vicki also stated that Stathoula’s house was always tidy during 2006 and 2007 but it was not as clean as it used to be. She was not cooking much and it seemed like others were bringing food. Vicki also noticed that Stathoula was suffering from urinary incontinence in 2007. Vicki had also observed one occasion in 2008 when Stathoula had left the gas burner alight and another occasion when she had left the kitchen tap running.
Vicki stated that she had not provided any help to Stathoula and Stefanos in 2007 but was aware that Peter and Sally were providing assistance, as were others. She had taken Stathoula to Flinders Medical Centre to visit Stefanos on two occasions in 2007.
The evidence of Vicki concerning the 40 day mourning period was similar to that of Dora Chronis. She stated that a widow receives visitors but “they don’t carry out their normal duties” and “they virtually almost have a lockdown”. She commented that this practice was not really observed by her generation but would have been by Stathoula’s generation.
Evidence of Milton Karan
Milton Karan is the husband of the first respondent, Vicki Karan. Milton had referred in an affidavit sworn shortly prior to trial to an incident when Stathoula caught her hand in a fence while picking lemons in her backyard and could not free herself. He had been contacted by the applicant, who was interstate at the time, after the latter had been alerted by Stathoula activating her personal alarm. Milton had attended at the house and freed Stathoula from the fence. He noted that she had wet herself during the time she was trapped.
An issue at trial was the timing of the event described by Milton. He had stated in his affidavit that the lemon tree event had occurred in November 2007. However, he acknowledged in evidence that the incident had actually occurred in December 2008, as the applicant had alleged. Milton attended alone to rescue Stathoula, and not with Elli Chronis, as she had suggested in her evidence.
I am not persuaded that Milton intentionally provided a false date for the lemon tree incident. In any event, even if this incident had occurred in December 2007 rather than December 2008, when viewed in isolation, it would provide no assistance in determining the testamentary capacity of Stathoula at the relevant time. Entrapment in the fence may possibly have resulted from physical frailty and a lack of mobility rather than dementia. Moreover, other evidence establishes that by late 2008 Stathoula was suffering from some level of dementia and urinary incontinence, thus, Milton’s evidence adds nothing.
Medical, hospital and allied health records
The applicant tendered the medical records of Dr Roma Varoneckas, the general practitioner who had treated Stathoula for many years until about late 2007 or early 2008. The respondents tendered the records of the Arkaba Medical Centre where she was treated primarily by Dr Lisa Colls from February 2008 onwards.
The records of Dr Varoneckas consisted largely of electronic records of prescriptions without any comments or observations. However, a health assessment undertaken by Dr Varoneckas on 16 May 2007 recorded that Stathoula suffered from hypertension and depression. Dr Varoneckas also stated “review multiple falls - use walking stick at all times for safety” and suggested removal of loose floor mats or rubberisation of their backs for safety. Dr Varoneckas also recorded that there were indications of impairment in ambulation and housework but there was normal functioning in all other areas including managing finances, home maintenance, shopping, home safety, transport, phone use and meal preparation. Stathoula was also not taking the blood pressure medication, Hydrene, that had been prescribed for her.[3]
[3] Hydrene is a diuretic used to treat oedema in certain cases of mild to moderate hypertension – see the Australian Government Health Direct website: Dr Hecker also stated in evidence that Hydrene was used to treat blood pressure.
Stathoula had been prescribed the antidepressant, Lovan, by Dr Varoneckas in December 2004 and thereafter at intervals of approximately six months until November 2007. I infer that these intervals were likely to have reflected the need to obtain repeat prescriptions.
On 5 November 2007 Dr Varoneckas noted that Stathoula was upset as her husband was dying in the Flinders Medical Centre. She also recorded that Stathoula could only walk 100 metres without rest. There was no mention by Dr Varoneckas of her cognition being impaired.
On 25 February 2008 Stathoula attended her first consultation at the Arkaba Medical Centre. There was no reference at this time to her cognitive state. On 5 May 2008, Dr Colls noted that Stathoula had suffered about five falls in the last six months and needed more help with domestic chores. An ACAT assessment was organised. Dr Colls recorded that on 28 May 2008 Stathoula had suffered a dizzy turn at home the previous day with the diagnosis being labyrinthitis with no neurological deficit. Dr Hecker suggested in her oral evidence that this was likely to be a misdiagnosis, with the cause of the falls and dizziness being cerebrovascular impairment. Given her specialist expertise and the explanation she provided, I accept her opinion in preference to that of Dr Colls on this question.
The Arkaba Medical Centre records include a letter from Emma Millsteed, an occupational therapist with the ACH Group dated 29 May 2008. Ms Millsteed had reviewed Stathoula at her home in relation to concerns about falls. She noted a significant history of falls, including two the previous day, and advised that various changes needed to be made within the home to reduce the risk of falls but there was no reference to any cognition issues. Ms Millsteed also considered that Stathoula required additional support with activities of daily living.
An ACAT assessment was conducted by Cathy Kelly on 4 June 2008. At that time Stathoula was receiving assistance with self-care, domestic assistance and home maintenance as well as some informal assistance with transport, being “out of home” and social/community activities. The identified conditions included depression, falls, hypertension, sciatica and dizziness. There was no reference to dementia. The report noted escalating depression due to Stathoula’s social isolation and the death of her husband. She required assistance with showering due to poor balance and dizziness. She walked with a stick but would benefit from the use of a walker. She required assistance with shopping, heavy laundry, cleaning and bed changing. Her nephew was managing her finances and her niece was taking her to appointments. Other evidence leaves no doubt that these references were to the applicant and his wife, Sally Chronis.
On 25 August 2008 Dr Colls conducted a health assessment. Dr Colls described the cognitive status of Stathoula as “abnormal” and noted that she was “slightly impaired” with respect to ambulation, managing finances, dressing, shopping, reading, housework and transport and “impaired” in relation to home maintenance. Dr Colls also noted that Stathoula was unable to draw a clock face and did not know the year. A formal MMSE was not done due to language difficulties. Dr Colls concluded that Stathoula “probably has a degree of cognitive impairment”. However, on 8 September 2008 Dr Colls completed a health care plan where the only problems identified were the care of Stathoula’s feet, arthritic pain and problems with balance.
On 26 March 2009 Stathoula was reported by Dr Colls as having increasing problems with short term memory loss and was on the waiting list for a Greek nursing home. She was still doing her own cooking at times but does not eat much.
A final separation summary from the RAH relating to an admission date of 8 July 2009 reported that Stathoula had been admitted following a fall. She had refused residential care. Although she had a four-wheel walker she did not use it. She was noted to be “quite independent at home”. She was discharged to “her niece’s house” for a few days. At that time, she was receiving a CACP through the Greek community.[4]
[4] A CACP is a community aged care package.
A radiology report from the RAH dated 24 August 2009 indicated that Stathoula displayed “extensive periventricular and subcortical white matter hypodensity, the appearing is in keeping with small vessel ischaemic change”. A further radiological report from the Queen Elizabeth Hospital dated 4 December 2009 identified “[e]xtensive white matter low attenuations due to small vessel ischaemic changes”.
A RAH final separation summary relating to an admission date of 28 August 2009 recorded that Stathoula was still living alone and receiving carer assistance twice a week and with meals provided by her niece. She had presented with hip pain following an unwitnessed fall. Her carer was concerned about frequent falls and poor self-care with increasing confusion. Examination did not reveal any obvious neurological deficits. A formal MMSE was conducted with a Greek interpreter.[5] This resulted in a score of seven out of 30. A FAB was also conducted which resulted in a score of zero out of 18.[6]
[5] A MMSE is a mini mental state examination.
[6] A FAB is a frontal assessment battery test.
A request for a further ACAT assessment dated 28 August 2009 was signed by the applicant as Stathoula was unable to sign due to confusion. The author of the report noted that Stathoula had “good family support” from her niece and nephew. She was receiving more assistance with many aspects of daily living but was still living at home. Her diagnosis included depression, falls and dementia/confusion. She was recommended for low level residential aged care. The author noted that she “occasionally” had short term memory problems, wandering, disturbed sleep, depressive symptoms, confusion and disorientation from time‑to‑time but “never” had long term memory problems, at risk behaviour, aggression or hallucinations/delusions. She relied upon others for shopping and meal preparation and required assistance with eating, drinking and oral hygiene. She was continent. She was independent with mobility and transfers but required assistance with personal hygiene and was unable to manage her own medications.
A medical certificate was issued on 2 September 2009 by Dr Colls which stated that Stathoula had recently been diagnosed with dementia and was experiencing falls which were getting worse. She suffered from urinary incontinence and the presence of Alzheimer’s disease was queried. Dr Colls also noted “very little English – exacerbated by dementia”.
The respondents also tendered the complete medical file of Stathoula from the RAH. The greater part of this file relates to the periods Stathoula spent as an inpatient during 2009. The records are consistent with two final separation summaries and the ACAT assessment of 28 August 2009. For that reason, it is not necessary to refer in detail to the RAH records.
Expert evidence
The applicant relied upon expert reports prepared by Dr Sara Lucas, a clinical neuropsychologist. The respondents tendered expert reports compiled by Dr Jane Hecker, a consultant physician practicing in the areas of aged care and rehabilitation with a special interest in memory disorders. Both experts gave oral evidence and were subjected to extensive cross-examination. Dr Lucas was recalled for further oral evidence so as to deal with a Browne v Dunn point.
Neither Dr Lucas nor Dr Hecker had examined Stathoula before her death. Their opinions were based upon the records and reports referred to above. Both of the experts had also been provided with copies of the affidavits prepared by the proposed witnesses prior to trial. They were instructed to accept the correctness of the factual contentions advanced in those affidavits. As I have previously noted, those affidavits were not received as evidence at the trial and the parties relied entirely upon the oral evidence of the deponents. To the extent that the findings of fact I make based upon the oral evidence of the lay witnesses does not accord with the affidavit evidence relied upon by the experts, that necessarily affects the weight that I may give to the particular expert opinion.
Points of agreement and disagreement
Dr Hecker and Dr Lucas conducted a telephone conference on 29 January 2021 where they summarised the points on which they agreed and disagreed:
Agree:
·    that there is a relative dearth of objective, independent information about her level of function in December 2007;
·    that she was significantly impaired by mid-2009 from dementia, likely of a cerebrovascular type given the symptoms and also the CT brain scan performed in August 2009;
·    that she was a vulnerable elderly lady in December 2007 who had just lost her husband, had no children, limited education and primarily spoke Greek – it is for the courts to decide in relation to the support she is alleged to have received from various family members;
·    that most of the affidavits we have provided with (Dr Lucas notes that Dr Hecker had not been provided with the affidavits of Ms Elli Chronis) could contain potential bias.
Partially agree:
·    that there was likely some cerebrovascular disease (CVD) at the time of December 2007 (we agree this is a progressive condition), although we disagree about whether the potential cognitive impact of that CVD can be determined in relation to testamentary capacity;
Disagree:
·    that her level of dementia and the clear cognitive impairment evident in mid‑2009 can be extrapolated back to determine if she had cognitive deficits that would have impacted on testamentary capacity in December 2007;
·    that the medical notes from around that time can be relied upon in any way to indicate whether or not there may have been any cognitive or functional concerns.
Evidence of Dr Lucas
Dr Lucas provided reports dated 21 October 2020 and 26 January 2021. She also supplied a short letter dated 25 October 2020 in which she stated that her mistaken reference to Elli Chronis as the sister of Stathoula, rather than her sister‑in‑law, did not alter the conclusions she had expressed in her report dated 21 October 2020. As previously noted, in response to a Browne v Dunn objection, Dr Lucas was recalled to give further oral evidence.
Dr Lucas holds a doctorate of clinical neuropsychology and a graduate diploma in health law. She is a registered psychologist with an endorsement in clinical neuropsychology. She has 20 years’ experience as a clinical neuropsychologist specialising in the neuropsychological assessment of brain injury, psychiatric conditions and dementia. She has performed many assessments of capacity, including many specific to the issue of testamentary incapacity, including a number of posthumous capacity cases. About one third of her patients are geriatric patients and of those about one third have vascular dementia. She stated that a clinical neuropsychologist has expertise in brain behaviour relationships and how any impairment may affect various areas of function, including capacity to make certain decisions. They also have expertise in cognitive tests, including screening tests used by medical practitioners, and the limitations of those measures and what they may imply about a person’s capacity and functioning.
Dr Lucas stated that the matters recorded by Dr Varoneckas on 16 May 2007 supported the notion of Stathoula having a physical condition but not a cognitive condition at this time.
Dr Lucas summarised her opinion as follows:
It is my opinion that there is no medical evidence to suggest that she was cognitively impaired in December 2007. While she may have been understandably depressed and experiencing a grief reaction following the recent death of her husband, there are no concerns in the contemporaneous GP notes about potential cognitive impairment, even when she was seen the day after his death, and there are no indications that any family member sought medical attention due to similar concerns around cognitive impairment. Whilst she clearly had regular falls due to dizziness (diagnosed as labyrinthitis – an inner ear disorder - in the notes) and there was a degree of associated difficulty managing day‑to‑day activities as a result of this, there are no indications of risk factors for cognitive impairment besides occasionally high blood pressure.
…
Given that I do not see any evidence to suggest Mrs Birbas was significantly cognitively impaired around December 2007, I consider it more probable than not that she did not lack testamentary capacity on 17 December 2007.
(Emphasis in original)
After having been provided a copy of the medical records of the RAH relating to Stathoula, Dr Lucas provided a supplementary report dated 26 January 2021. Dr Lucas noted that once again there was no significant medical evidence documented prior to December 2007 to suggest that there was any sign of cognitive impairment. However, she did observe that Stathoula had previously been diagnosed with hypertension and stated that this “is a risk factor for cerebrovascular change which may result in cognitive deficits over the years, although many people have high blood pressure with no cognitive deficits”.[7]
[7] Emphasis in original.

Dr Lucas also stated that by July 2009 there is no doubt that Stathoula had moderate to severe dementia. In that respect, she noted the findings of the CT brain scan as well as the extremely poor cognition shown on the screening conducted with an interpreter in August 2009.
Dr Lucas then stated:
The timeline for deterioration in cognition related to dementia is extremely variable, and I do not believe it is possible in Mrs Birbas’ case to extrapolate back 19 months prior to the July‑September 2009 medical records from the RAH to determine how severe any possible cognitive impairment may have been in December 2007 – all other medical information indicates that cognition was not a concern around December 2007.
I stand by my opinion from my previous report, and do not believe there is contemporaneous evidence that suggests that Mrs Birbas had cognitive impairment of sufficient severity to affect testamentary capacity in December 2007.
Dr Lucas accepted that in August 2009 Stathoula was suffering from vascular cognitive impairment. There was no evidence that she had suffered from a stroke but the radiology report from the RAH dated 24 August 2009 indicated changes to the small vessels within her brain.
Dr Lucas did not consider that the contemporaneous evidence supported a conclusion that Stathoula was suffering from dementia in December 2007. Dr Lucas also specifically disagreed with the view of Dr Hecker that it was possible to retrospectively determine from the formal diagnosis of dementia in 2009 and the ordinary rate of progression of this condition that Stathoula lacked testamentary capacity in December 2007. In the opinion of Dr Lucas the rate of progression of this form of dementia was too variable to make such a determination retrospectively.
Dr Lucas also stated that the MMSE and the FAB were not properly described as formal tests of cognitive impairment. They were screening tools so as to provide a brief overall assessment of cognition. They were more susceptible to error rate and to the effects of other issues such as a lack of education, a non-English speaking background and the like. They were a “bedside test” administered quickly to determine whether further cognitive testing was required.
Dr Lucas also stated that the rate of progression of small ischaemic change is extremely variable. A brain scan of most people aged in their 80s or 90s would reveal small vessel disease as that is part of the normal ageing process. The question is when those changes cross the clinical threshold. For a diagnosis of dementia to be made there also needs to be an indication of significant impairment of day-to-day function. For that reason, Dr Lucas had placed particular importance on the contemporaneous medical evidence as it stood in December 2007. If a diagnosis of dementia was to be made at that time she would have expected to see some evidence of cognitive impairment demonstrated by a lack of decision making ability.
Upon Dr Lucas being recalled, she was cross-examined at some length in relation to the evidence of Dr Hecker concerning the existence of what she described as a triad, i.e. problems with falls, gait and incontinence. Dr Lucas did not accept that the existence of the triad combined with the diagnosis of dementia in mid-2009 based upon two screening tests and a brain scan permitted a retrospective diagnosis of dementia to December 2007. While Dr Lucas accepted that Stathoula had significant cognitive impairment by mid‑2009, because of the lack of information as to how fast had been the progression in cognitive difficulties between December 2007 and 2009 and also because of the variability of screening tests it was not possible to determine the degree of cognitive impairment in the absence of any functional issues. Dr Lucas also observed that problems with falls, gait and incontinence can arise with older people. For example, Stathoula had labyrinthitis at one point. She also noted that the pre-clinical phase of dementia can be quite variable.
Dr Lucas also stated that even if Stathoula did have mild cognitive changes in December 2007 that did not necessarily mean that she did not have testamentary capacity.
Dr Lucas did not accept that if Stathoula was suffering from the onset of dementia in December 2007, even when combined with the major upheaval in her life caused by the death of her husband, that would necessarily have made her vulnerable to suggestion. Some people with dementia become less inclined to do what others want although it is also possible that they become more suggestible and dependent upon others.
Dr Lucas conceded that if in fact Stathoula did have dementia in December 2007 it was possible that she did not have testamentary capacity but she did not consider that there was any evidence that she actually had dementia at that time.
Evidence of Dr Hecker
Dr Jane Hecker graduated in medicine in 1982 and has held specialist qualifications as a physician in general internal medicine and geriatric medicine since 1992. She stated that she has experience in all areas of the medical care of the elderly over the past 30 years. She is currently a part-time senior consultant physician/geriatrician at the RAH and also has a private practice at the Calvary Rehabilitation Hospital dealing with inpatient rehabilitation and geriatric assessment. She also runs a private outpatient memory assessment service. She has extensive experience in the assessment and management of memory disorders, cognitive impairment and dementia. She has been involved in medico‑legal assessments and opinions over the past 15 years, assessing testamentary and other legal capacity and providing expert opinion in relation to disputed wills.
Dr Hecker provided reports dated 29 July 2019 and 22 January 2021. The second report was prepared after she had been provided with Stathoula’s medical notes from the RAH. The second report substantially repeats the contents of the earlier report but with some additional observations based on the contents of the RAH records.
In her second report Dr Hecker stated “the RAH notes support my previous opinion and provide evidence of the background pathology resulting in the testator’s clinic (sic) decline in cognition, mobility, continence and daily function”. She observed in both reports that:
It is clear that over the period from 2006 to 2009 when Mrs Birbas moved to residential care she underwent deterioration in her cognitive function and in her ability to manage independently at home. This included deterioration in her ability to manage household maintenance; personal care; shopping, cooking and nutrition; medication compliance; financial management in addition to decline in mobility with frequent falls and urinary urgency and incontinence. The only formal objective cognitive testing was conducted in RAH in August 2009 with the assistance of a Greek interpreter. At that point her scores showed very severe impairment with 7/30 on the MMSE and 0/18 on the Frontal assessment Battery. Some allowance needs to be made for background lack of education but even accounting for this, the level of impairment at that point is very severe. There was some cognitive questioning almost exactly 12 months earlier during the GP health assessment in August 2008 when Mrs Birbas was unable to give the year or draw a clockface.
The summary of the CT brain scan refers to small vessel ischaemia which does fit with her symptoms including the cognitive impairment, particularly confusion and executive dysfunction; the gait changes and falls; the urinary urgency and incontinence and the depressive features. This is very common pathology in an elderly person with cognitive decline and is often seen combined with neurodegenerative pathology (most commonly Alzheimer’s disease).
After making those observations Dr Hecker stated in her second report that:
The CT brain report supports this statement in my earlier report. The subcortical small vessel ischaemia is a common cause of dementia and has a gradual and progressive time course over 10 years, similar to that of Alzheimer’s disease. It is not a sudden event and does not result in sudden decline which can occur with an infarct (not demonstrated on the CT scan in 2009). The RAH records do support the gradual decline over years as summarised above. The RAH notes suggest falls began as far back as 1997. One of the most common reasons for recurrent falls in older individuals is subcortical small vessel ischaemia. The notes also support quite severe hypertension during this period as documented above, one of the main risk factors for this pathology.
Dr Hecker also stated in both reports:
I believe the significant impairment suggested by Dr Colls assessment in August 2008 is likely to have been associated with significant executive impairment 8 months earlier. Also, of note in August 2009 (20 months following the Will document) the MMSE with a Greek interpreter to assist was 7/30 and Frontal assessment battery 0/18 – very severe impairment. Decline in MMSE in dementia averages 3-4 points per year. Based on this the MMSE in Dec 2007 is likely to have been approx. 6 points higher – this would be 13/30 – this represents moderately severe dementia. The very poor FAB is consistent with severe frontal and executive impairment. This fits both with the vascular pathology demonstrated on CT brain in 2009 and also with the documented problems identified in the affidavits of various family members in the months before and surrounding the December 2007 Will. As frontal and executive function is central to decision making and reasoning capacity, impairment in this cognitive domain is strongly associated with lack of capacity to provide testamentary instructions, to weigh up differing options for division and to comprehend the implications of those options.
Dr Hecker further stated:
… It is not impossible for a person who is diagnosed with dementia in 2009 to have had capacity in 2007 (or even in 2009) but the severity of the dementia as formally assessed and documented in both the formal objective testing at RAH and also in the functional assessment conducted by ACAT at about the same time, all point to quite severe levels of impairment and lack of ability to cope at home despite assistance from both a Community Aged Care Package and also significant family help. It is important to note that the time of diagnosis in the course of dementia varies greatly in different situations. …
At a later stage in both reports Dr Hecker stated that the variations in the behaviour of Stathoula referred to in the affidavits prepared before trial could have several potential explanations. She stated that with small vessel ischaemia, which was found on the CT brain scan, “there can be significant apparent fluctuations in the level of confusion and particularly in the associated behavioural features of dementia. Individuals who have more frequent contact are more likely to be aware of the deficits”. She added that the most likely causes of the variation in perception of different witnesses can arise from how much questioning and interrogation is undertaken and patients “can appear reasonably well until their executive function is put to the test”. Detailed questioning and testing which specifically looks at frontal/executive function is required to identify executive impairment. This is not commonly done in general practice. Dr Hecker stated that it was not satisfactory to simply ask a person whether they understood a document and to accept “yes” as a meaningful acknowledgement. More detailed questioning is required.
In her second report Dr Hecker summarised her opinion in light of the RAH records as follows:
In summary I believe the RAH records support my previous report and hypotheses. They support my belief that in 2 December 2007 the testator had significant executive impairment and did not fully comprehend the implications of the legal documents she signed, nor did she have the ability to reason regarding the pros and cons of differing decisions in my opinion.
Dr Hecker also stated in both reports:
In summary I believe there is very significant doubt that Mrs Birbas understood the nature and the intention of the Will document she signed on 17 December 2007. She was extremely vulnerable to influence with multiple red flags to raise the alarm with relation to undue influence …
Dr Hecker then referred in her reports to a series of factual matters (some of which are disputed) that, in her opinion, made Stathoula vulnerable to undue influence or demonstrated its presence. However, the basis upon which these proceedings are being conducted is that Stathoula lacked testamentary capacity rather than that she was subject to undue influence. Nevertheless, the respondents rely on many of the “red flags” identified by Dr Hecker in support of their contentions that Stathoula lacked capacity and that Mr Niarchos should have adopted a more rigorous approach to that question. I have referred to the “red flags” at [167] and [205] below.
Dr Hecker stated that although the MMSE and the FAB are correctly described as screening tools, they are probably the most detailed testing performed in a clinical setting. In that sense, they are a formal assessment in the absence of a referral to a neuropsychologist. They are an objective test. A score is not a black and white answer as to whether a person has dementia as it is necessary to weigh up a person’s level of education, whether they speak English, whether an interpreter was used, whether they can see and hear properly and so forth. Dr Hecker considered that the scores recorded by Stathoula were so poor, recognising that an interpreter was used and allowing for her lack of education, that it was quite clear that there were major issues with her cognition. Further testing was not required. The MMSE score indicated a very marked impairment.
Dr Hecker stated that the extrapolation back from 2009 was not based upon the scans performed on Stathoula but on her clinical presentation. Her history of falls would have been due to small vessel disease because it causes gait changes that lead to falls. Dr Hecker suggested that if a CT scan had been performed five years earlier it would have found quite a lot of small vessel disease. This occurs over a long period before clinical symptoms appear. Once the clinical symptoms appear the pattern of progression is predictable. Dr Hecker described the combination of urinary incontinence associated with urinary urgency, gait apraxia and falls and cognitive impairment, particularly executive dysfunction that is often associated with changes in mood and behaviour, as constituting a triad of clinical symptoms of vascular dementia.
Dr Hecker stated that the two screening assessments performed in 2009 were an important component of her opinion that Stathoula would have been significantly impaired in December 2007. However, the testing in mid‑2008 when she was unable to identify the year or draw a clock face also indicated a significant level of disorientation. The RAH nursing notes from 2009 also indicated Stathoula’s level of confusion. This information, combined with the uniform progression of small vessel ischaemic change, enabled Dr Hecker to extrapolate that there was a high likelihood that Stathoula lacked testamentary capacity in December 2007. Her significant impairment of executive functioning, her limited education and lack of knowledge of legal situations indicated to Dr Hecker that there was highly likely to be doubt as to whether Stathoula had initiated the will and understood what she was doing.
Dr Hecker stated that one of the classic features of this brain pathology is apathy and a failure to initiate things, including day-to-day activities, so it was unlikely that she would have thought of initiating a will. Even if the Court were to find that Stathoula had initiated the will making process that would not provide any evidence about her ability to decide between the various options. It also would not mean that she was not under the influence of people she was with at the time. She added that frail, elderly dependent persons are very vulnerable to the need to continue the support they have been receiving. For that reason, they are likely to do things that will please those who are helping them and who are there at the time.
Dr Hecker was cross-examined at some length as to whether a finding by the Court that Stathoula had initiated the will making process and had responded to questioning as to why she wanted to leave her entire estate to the applicant with the explanation that only he and his wife had looked out for her and her husband would be inconsistent with her view. Her response was that there was no evidence of any pathology in the period from December 2007 until August 2009 that could account for a sudden cognitive impairment. It was also commonplace that cognitive impairment was not detected by general practitioners unless they were proactive. That is because people maintain language skills and memory to a degree and the loss of higher function is not apparent unless it is tested or enquiry is made in the areas that may be affected. It would not be detected on a routine visit to a GP for the checking of blood pressure and renewal of prescriptions.
In the opinion of Dr Hecker, the main issue in the early stages of vascular dementia was executive dysfunction. As Stathoula was leading a simple life she would not have needed to use a lot of executive function but she may have found difficulty with managing finances and bills, remembering to take her medication and initiating social contact unless she was receiving help. Dr Hecker also stated that members of the Greek and Italian communities revere their elderly and unless there are behavioural problems they tend not to pick up on behavioural changes and cognitive issues as early as people of an Anglo‑Saxon background.
Dr Hecker also observed that Dr Varoneckas did not appear to have done anything to assess cognition in the health assessment that she conducted in May 2007. As noted at [91], Dr Hecker also expressed the opinion that the diagnosis of labyrinthitis as the cause of dizziness and falls was not correct in circumstances where there were recurrent falls as distinct from an acute episode.
Dr Hecker also suggested that Stathoula would have lacked testamentary capacity for about three years prior to 2009, i.e. from about 2006. The basis for her opinion was the severity of Stathoula’s illness, its expected course which would normally progress over 10 years and the history of her falls and how far back they went.
The applicant’s submissions
The applicant agrees with the respondents that the test in Banks v Goodfellow[8] as applied by Kourakis CJ in Roche v Roche[9] consist of four elements. The applicant submits that the Court should accept that the first element has been established by the evidence of Mr Niarchos. He explained to Stathoula what a will was and she accepted his explanation.
[8] (1870) LR 5 QB 549.
[9] [2017] SASC 8.
While the respondents have not put any submission in relation to the second element, the applicant submits that the threshold to be satisfied is quite low. Stathoula knew that she had a house and a bank account and something needed to happen to those assets when she died. That was sufficient to satisfy the second element.
The applicant submits in relation to the third element that the usage of the term “claim” does not refer to something akin to a claim under the Inheritance (Family Provision) Act 1972 (SA). The expression simply refers to those people in a person’s life who might ordinarily be expected to receive an inheritance. As Stathoula was a widow without children, the persons who might be expected to receive an inheritance were her sister and nieces and nephews. All that was required was that she knew whom these people were. That was clearly the case.

The applicant’s action in procuring Stahoula’s signature certainly showed a lack of a proper understanding of the powers that had been granted to him by Stathoula and, more importantly, an apparently cavalier attitude to the issue of mental capacity in a legal context. However, I am not persuaded that this should have a significant adverse effect upon his credit. Stathoula unquestionably had a legal right to have her late husband’s interest transmitted into her sole name. The signing of the application did not call for the exercise of any judgment or discretion on her part but was simply a formal notification to the Registrar-General of the death of her husband as joint owner. Moreover, the applicant did not gain any benefit from the execution of the document by Stathoula. Nevertheless, given that Stathoula’s incapacity was apparent by August 2009, he should have signed the document himself as the holder of her power of attorney.
The second matter to which counsel referred in relation to the applicant’s credit were his admissions in cross examination that he had falsely told a cousin at Stathoula’s funeral that he did not know the terms of her will and had later stated to family members that he intended to divide the estate equally. His reasons for making these statements were not explained. Nevertheless, it seems to me that a person might deny knowledge of the contents of a will at a funeral so as to avoid embarrassment or causing distress or conflict on such an occasion. In the particular circumstances, the fact that the applicant was untruthful in conversations with family members, does not cause me to reject his evidence in all respects. However, I do approach his evidence with some caution.
Quite independently of that note of caution, having watched and listened carefully as the applicant and his wife gave evidence, I consider that they both tended to understate the decline that Stathoula was displaying during 2007.
I turn to the evidence of the family members who gave evidence in support of the respondents’ case. As I have previously noted, I did not find the evidence of Elli Chronis or Milton Karan to be of any real assistance in determining Stathoula’s mental capacity in December 2007. Similarly, the evidence of Peter Chronis (i.e. the fourth respondent rather that the applicant) showed that in about December 2007 or January 2008 Stathoula was vague and her cooking skills had deteriorated. That is not inconsistent with the agreement by Dr Hecker and Dr Lucas that she likely had some cerebrovascular disease in December 2007. However, of itself, it is of limited value in determining her testamentary capacity and her ability to know and approve of the contents of her will, particularly when measured against other evidence.
I have found at [62] that Thelma Pashalidis was not correct in her evidence that Stathoula had stopped speaking to visitors as early as 2006. For the reason given at that point, I also do not accept that Stathoula’s appearance, demeanour, personal hygiene, household cleanliness and general engagement with life had deteriorated in 2007 to anywhere near the extent suggested by Thelma. In my view, her evidence about these matters tended to relate to the situation later in 2008 and 2009.
Due to conflict with Stefanos, Vicki Stravinski did not visit Stathoula during most of 2007. However, she maintained monthly telephone contact. When she resumed personal contact in late 2007, after the death of Stefanos, she observed that there were crumbs on the kitchen benches and that the floor, cups and glasses were not well cleaned. Food brought by other family members had been left in the fridge and Stathoula was eating very little. She also appeared to be quite depressed.
I consider that Vicki Stravinski was a reliable witness. The matters she described relating to the situation in late 2007 are generally consistent with the diagnosis of depression and the presence of some cerebrovascular disease. However, that evidence does not go beyond the agreement of the expert witnesses that Stathoula was suffering from some cerebrovascular disease by December 2007. Thus, it does not provide any additional assistance in determining testamentary capacity.
While Dora only visited Stathoula at her home infrequently during 2007, she stated that Stathoula would speak to her and she considered the house to be neat and tidy. Although the weight that can be given to Dora’s evidence about Stathoula’s situation during 2007 is necessarily reduced by her limited contact, it does provide some support for my rejection of the evidence given by Thelma Pashalidis concerning Stathoula’s condition during 2007. Dora’s evidence does not throw any light upon Stathoula’s testamentary capacity in December 2007.
For the preceding reasons, I consider that the evidence given by the various family members concerning the circumstances of Stathoula in 2007 throws very little light on her testamentary capacity in December 2007.
Against that background I turn to the medical and allied health reports. The assessment performed by Dr Varoneckas on 16 May 2007 had recorded that Stathoula was suffering from hypertension and depression. She had apparently suffered multiple falls and there were indications of impairment in ambulation and housework. Importantly, Dr Varoneckas found her functioning to be normal in all other areas. However, what level of scrutiny was applied by Dr Varoneckas in reaching this conclusion is not known. There is no indication that Dr Varoneckas administered any form of screening test. The observations by Dr Varoneckas had been made some seven months before instructions were provided to Mr Niarchos for the preparation of the will.
On 5 November 2007 Dr Varoneckas had recorded that Stahoula was upset by the approaching death of Stefanos and could only walk 100 metres without rest. However, Dr Varoneckas made no mention of any cognitive impairment. This was only some five weeks before Stathoula instructed Mr Niarchos on 12 December 2007.
Stathoula first consulted with Dr Colls on 25 February 2008. Dr Colls did not make any observation about her cognitive state at that time. In two file notes compiled in May 2008 Dr Colls referred to falls, dizziness and a need for more help with domestic tasks. The report from the occupational therapist, Ms Millsteed, dated 29 May 2008, as may be expected, focused on the latter issues. However, her report did not make any mention of cognitive problems. That might have been mentioned if it was an obvious or pressing issue.
It is clear from the records of Dr Varoneckas and the note of Dr Colls dated 5 May 2008 that Stathoula was then suffering from periodic falls. The records of those two GPs and the evidence of Vicki Stravinski establish that she was not performing ordinary household tasks to her former high standards. She was also suffering from depression and the evidence of Vicki Stravinski establishes that Stathoula suffered from urinary incontinence by late 2007.
The ACAT assessment conducted on 4 June 2008 identified a need for assistance with a range of self-care, social and domestic activities. Once again, there was no specific reference to any form of cognitive impairment. However, I accept that some, if not many, of the difficulties referred to in the report may have been symptomatic of cerebrovascular disease and a level of cognitive impairment.
It was not until 25 August 2008 that the first formal diagnosis of cognitive abnormality was made by Dr Colls. At that time Dr Colls indicated that Stathoula was “impaired” in relation to a wide range of functions and activities.
The effect of the preceding reports is that Stathoula’s ability to care for herself was declining over the course of 2008 until the point was reached on 25 August 2008 when Stathoula was unable to complete a clock face or identify the current year. That lead Dr Colls to conclude that there “was a degree of cognitive impairment”. This evidence is generally consistent with that of the lay witnesses called by both the applicant and the respondents testifying to Stathoula’s significant decline during 2008.
In the absence of a screening test prior to August 2008, the degree of any cognitive impairment may have been made less obvious by the fact that Stathoula was leading a simple and routine life in a familiar environment and receiving substantial support from the applicant and his wife and also, to some extent, from other family members.
Notwithstanding the evidence to which I have referred, and apart from the evidence of Mr Niarchos, there is no contemporaneous evidence as to Stathoula’s cognitive capacity in December 2007, or more particularly, as at 12 December 2007 when she provided instructions for the preparation of her will. The evidence of Dr Hecker to the effect that Stathoula lacked testamentary capacity in December 2007 is based upon a retrospective opinion formed by reference to evidence of her cognitive capacity in August 2009.
The earlier evidence contained in the report of Dr Colls dated 25 August 2008, indicates that Stathoula was “slightly” impaired in a number of areas but did not directly deal with the fundamental question of whether her capacity at that time was such that she could not have satisfied the Banks v Goodfellow test.
Dr Lucas has expressed a contrary opinion to Dr Hecker and adhered strongly in her written and oral evidence to her view that the available information was not sufficient to establish that Stathoula lacked cognitive capacity in December 2007.
In assessing whether the opinion of Dr Hecker should be preferred to that of Dr Lucas it is necessary to consider the level of understanding required of a testator under the Banks v Goodfellow test, and also the application of the burden of proof, in circumstances such as those of the present matter where the respondents have raised some doubt as to the testamentary capacity of Stathoula in December 2007.
The High Court observed in Worth v Clasohm,[52] and Gleeson CJ also stated in Griffith,[53] in a case where the evidence has raised a doubt as to testamentary capacity, probate will not be granted if, following a vigilant examination of the whole of the evidence, the doubt is substantial enough to preclude a belief that the testator was of sound mind, memory and understanding. Gleeson CJ further observed in Griffith, that the application of this test must be approached cautiously.[54] This is because the power to freely dispose of one’s estate by will is an important right.
[52] (1952) 86 CLR 439 at 453.
[53] (1995) 217 ALR 284 at 289.
[54] Ibid at 290.
A determination that a person lacked, or has not been proven to have possessed a sound disposing mind, memory and understanding is a grave matter. The degree of vigilance to be exercised by the Court in assessing testamentary capacity must vary with the circumstances.[55] The circumstances of relevance will include the simplicity or complexity of the will, the rationality or irrationality of its provisions, the exclusion or non-exclusion of beneficiaries, the exclusion of persons naturally having a claim upon the testator and extreme age or sickness.[56] To displace a prima facie case of capacity by due execution, mere proof of serious illness will not suffice. There must be clear evidence that the illness of the testator so affected their mental faculties as to make them unequal to the task of disposing of their property.[57] Kirby P made clear in Griffith that slowness, illness, feebleness and eccentricity will not ordinarily be sufficient to establish testamentary incapacity.[58]
[55] Bailey v Bailey (1924) 34 CLR 558 (Isaacs J, with Duffy and Rich JJ agreeing).
[56] Ibid.
[57] Ibid.
[58] (1995) 217 ALR 284 at 295.
While the evidence does establish that as at December 2007 Stathoula suffered from a cerebrovascular impairment, the question is whether this disability affected her testamentary capacity in the sense that she did not have a sound disposing mind, memory and understanding. The only evidence dealing with that point, being the evidence of Mr Niarchos, points to a contrary conclusion. Before turning to his evidence relating to the question of capacity, I repeat my earlier observation that I found Mr Niarchos to be a truthful and reliable witness.
Counsel for the respondents has submitted that Mr Niarchos failed to take adequate steps to satisfy himself of Stathoula’s testamentary capacity before accepting instructions for the preparation of her will. In his submission, the “red flags” referred to by Dr Hecker (see [167] and [205] above) should have alerted Mr Niarchos that it was necessary to obtain confirmation from a medical practitioner as to her capacity. Furthermore, counsel also submitted that the file notes prepared by Mr Niarchos were inadequate to establish that he made sufficient enquiry concerning Stathoula’s capacity.
Mr Niarchos has a great deal of experience in the preparation of wills and, in particular, preparation of wills for the Greek community. While his notes were brief, for the reasons which follow, I am satisfied that he sufficiently addressed each of the four elements in the Banks v Goodfellow test.
The evidence of Mr Niarchos was that Stathoula had started to talk about making a will at the outset of their conversation. However, he had advised her that they should first discuss the making of a power of attorney and a power of guardianship. That fact that she initiated the discussion by referring to a will suggests that she knew what a will was. Her subsequent very specific instructions about her choice of beneficiary and executor, leaves me in no doubt that she understood the purpose of the will making exercise. Thus, I accept that the first element of the Banks v Goodfellow test is plainly satisfied.
The respondents have not contended that the second element of the Banks v Goodfellow test is not satisfied. Moreover, I accept that there is no possible doubt about this issue. Stathoula’s only assets were her house, of which she had become the sole owner upon the death of Stefanos, and a moderate sum held in a bank account. The evidence of Mr Niarchos indicates that he had confirmed the nature and extent of her assets while discussing the proposed powers of attorney and guardianship. To that end, he had sighted various relevant documents that she had produced upon his request. As the applicant has submitted, Stathoula clearly understood that something needed to happen to her assets upon her passing and made clear her intentions in that respect. The steps taken by Mr Niarchos were sufficient to persuade me that this element of the test was met.
Because of his personal knowledge of the family, Mr Niarchos had the advantage of being in a position to ask questions as to whether Stathoula intended to confer any benefit upon the other members of her extended family, and her late husband’s family, in addition to the applicant. It is clear from the very firm negative response provided by Stathoula to Mr Niarchos’ question about this issue that she had turned her mind to the matter. I consider that her observation that other family members had not provided assistance to her or Stefanos demonstrated a keen awareness that there were other family members who might ordinarily have expected to receive a benefit under her will. I find that Stathoula’s response to Mr Niarchos’ question was sufficient to demonstrate satisfaction of the third element of the Banks v Goodfellow test.
The crucial issue in these proceedings is the application of the fourth element of the Banks v Goodfellow test. Thus, the question is whether Stathoula was capable of evaluating and assessing the respective strengths of the claims of those persons who might have expected to benefit from her estate.
The preceding discussion concerning the third element in the Banks v Goodfellow test is also relevant to the fourth element. Stathoula indicated that it was only the applicant and his wife, Sally, who had provided assistance to her and Stefanos. In that respect, I note that the applicant and Sally provided assistance to Stathoula and Stefanos by way of interpreting and the like over many years, visited Stathoula regularly in 2007, arranged the funeral of Stefanos (in conjunction with Chris Birbas) and arranged council assistance with domestic tasks. While family members in addition to the applicant and Sally provided some assistance to Stathoula, for the reasons that follow, she was not incorrect in considering that the primary source of help during 2007 had been the applicant and his wife.
During the course of 2007 Vicki Stravinski had not visited Stathoula because of the hostile attitude of Stefanos. Although she had maintained telephone contact, Vicki had not resumed visiting despite a specific request from Stathoula that she do so, to provide support against Stefanos. Dora Chronis had only visited Stathoula on a small number of occasions in 2006 and 2007 due to her own health issues and her poor relationship with Stefanos. While Thelma Pashalidis did take her mother to visit Stathoula on a regular basis, she had not provided any support or assistance to Stathoula, as distinct from her mother who brought cooked food. Peter Chronis (the fourth respondent) had seen little of Stathoula and Stefanos in 2007 because of his work commitments. While Dina Pashalidis did not give evidence, the testimony of Thelma establishes that she did visit Stathoula regularly during 2007 and took prepared food. Beyond that, the evidence does not show what support or assistance she may have provided to her older sister.
Even if Stathoula had incorrectly assessed the level of support and assistance provided to her and Stefanos by the various family members, whether in 2007 or more generally, she was entitled to hold that view. That is apparent from the observations made by Gleeson CJ (with Handley JA agreeing) in Griffith to which I have referred at [187] above. However, as I have said, the explanation provided by Stathoula for preferring the applicant to all other relatives who might reasonably have expected to benefit under her will was generally consistent with the evidence. Most importantly, the reason she provided in answer to the enquiry by Mr Niarchos was not irrational or based on a delusion. While others in the same circumstances might well have recognised that the personal circumstances of some of her family members did not permit them to provide the same level of support as the applicant and Sally were able to provide, and also that Stefanos had inhibited visiting by some of her nieces, these matters do not demonstrate an inability on the part of Stathoula to evaluate and assess the claims of those who might have expected to benefit.
The respondents have also submitted that because of the red flags identified by Dr Hecker, Mr Niarchos should have referred Stathoula for medical assessment before proceeding to accept instructions. He directly addressed that issue in his evidence. First, he observed that he has a great deal of experience in taking instructions for wills, particularly from members of the Greek community. Secondly, he indicated that it is his practice to seek medical assessment if he has any doubts about capacity. Thirdly, there was nothing whatsoever about the presentation of Stathoula that caused him to have any doubt about her capacity. Prior to her commencing to give instructions about the will, they had discussed the grant of powers of attorney and guardianship. She had located and presented the documents requested by Mr Niarchos. She was also able to give coherent answers to his questions concerning the terms of her will. In light of her responses, Mr Niarchos indicated that he did not wish to insult her by asking her such questions as what year it was.
While it may have been preferable for Mr Niarchos to follow the guidelines published by the Law Society to be used by solicitors when accepting instructions for the preparation of a will, I consider that the practical effect of the approach adopted by Mr Niarchos was that Stathoula’s capacity was sufficiently tested. He had a very long experience as a solicitor in the preparation of wills and spent something in the order of two hours with Stathoula in relation to not only her will but also the powers of attorney and guardianship. He was quite satisfied that she understood the necessary matters to an appropriate extent and that is borne out by the answers she provided to his specific questions about the terms of her will. Most importantly, she provided a coherent answer to the question as to why the applicant was to be the sole beneficiary. Her glare simply confirmed the strength of her view about the issue. Moreover, that answer was not inconsistent with the evidence. I accept the evidence of Mr Niarchos that he did not find any proper basis to refer Stathoula for medical assessment prior to taking instructions for her will.

The respondents have also suggested that the role of the applicant in arranging the attendance of Mr Niarchos calls for the exercise of caution by the Court. It is to be noted that the respondents have not contended that Stathoula was subject to undue influence by the applicant. The contention is simply that his involvement in the engagement of Mr Niarchos is one of the matters that raises a “red flag”.
While the applicant was present at Stathoula’s home and in earshot when she provided instructions for the powers of attorney and guardianship, Mr Niarchos quite properly requested that he leave the house as soon as the discussion turned to the making of Stathoula’s will. The fact that Mr Niarchos then took instructions in the absence of the applicant and asked why other family members were not to benefit under the will, and received a coherent response to that question, satisfies me that Stathoula had evaluated and assessed the potential claims upon her estate.
Because the respondents have raised a doubt as to the testamentary capacity of Stathoula, the presumption created by due execution of her will does not alone suffice and the applicant carries the burden of establishing to the satisfaction of the court after conducting a diligent examination in light of all the evidence that she did have capacity at the time she provided instructions to Mr Niarchos.
While there is no question that Dr Hecker is eminently qualified in her field as a gerontologist, for the reasons that follow, I am not persuaded by her evidence that Stathoula would have lacked testamentary capacity in December 2007. In reaching that conclusion I recognise the evidence of Dr Hecker that small vessel ischaemic change has a uniform and steady progression thereby providing a basis for a retrospective diagnosis. However, I also recognise the contrary evidence of Dr Lucas that the cognitive decline arising from cerebral vascular disease is not always as predictable as suggested by Dr Hecker. I also take into account the recognition by both Dr Hecker and by Dr Lucas that there was a lack of independent evidence (apart from the evidence of Mr Niarchos) addressing Stathoula’s cognitive capacity in the period around the making of the will.
There are also some matters relating to the evidence of Dr Hecker that lead me to give it less weight than I might otherwise do. First, I note that she relied upon the facts stated in the affidavit evidence of the family members called by the respondents and some others. I have found that the oral evidence given in support of the respondents’ case, tended to overstate the severity of Stathoula’s cognitive decline in 2007. Secondly, Dr Hecker did not have the benefit of having examined Stathoula at a time proximate to the making of the will (and nor did Dr Lucas). Thirdly, at times she appeared to approach the matter on the basis that this was an undue influence case although this was never part of the respondents’ case. Fourthly, while I agree with her warning against relying upon “yes” answers to leading questions given by a person whose capacity is in doubt, the evidence of Mr Niarchos was that Stathoula gave specific and responsive answers to his open‑ended questions.
Ultimately, for the reasons I have set out at paragraphs [243] to [245], I am persuaded by the evidence of Mr Niarchos that Stathoula had the necessary testamentary capacity under the Banks v Goodfellow test at the time she provided instructions to him and also when she executed her will. I prefer his contemporaneous and direct evidence as a legal practitioner with very extensive experience in taking instructions for wills concerning the level of capacity and understanding displayed to him by Stathoula to the retrospective evidence of Dr Hecker. In reaching that conclusion I am fortified by the observation made in the Court of Appeal for England and Wales in Hawes v Burgess by Mummery LJ (with Patten LJ and Sir Scott Baker agreeing):[59]
My concern is that the courts should not too readily upset, on the grounds of lack of mental capacity, a will that has been drafted by an experienced independent lawyer. If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity. The court should be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when that expert has neither met nor medically examined the testatrix.
[59] [2013] EWCA Civ 74 at [60].
That observation was approved and applied by Winkelmann J (as her Honour then was)[60] in Green v Green.[61] Observations to like effect were also made by Windeyer J of the Supreme Court of New South Wales in Revie v Druitt.[62]
[60] Now the Chief Justice of New Zealand.
[61] [2015] NZHC 1218 at [89].
[62] [2005] NSWSC 902 at [34].
I now turn to the question as to whether Stathoula knew and approved of the contents of her will.
As the Victorian Court of Appeal observed in Veall v Veall, testamentary capacity and knowledge and approval of the contents of a will are different concepts.[63] Because a well-grounded suspicion has arisen as to the testamentary capacity of Stathoula, the Court can only find her will to be valid if it is persuaded of that fact by the applicant on the ordinary civil standard.
[63] [2015] VSCA 60 at [173].
The requirement that a testator must know and approve of the contents of their will has been described by McMillan J in Vukotic v Vukotic as “not an arduous requirement” being simply that they “actually know the substantive content of their will, and approve of that content.”[64]
[64] [2013] VSC 718 at [132].
The evidence of Mr Niarchos establishes that he translated the will into Greek and explained the effect of its provisions to Stathoula in that language. Her response (see [24] above) to his explanations is persuasive evidence that she knew and approved the contents of her will and I so find.
Conclusion
For the preceding reasons, I pronounce the force and validity of the will made by Efstathia (known as Stathoula) Birbas dated 17 December 2007 and order that the said will be admitted to probate in solemn form.
I will hear the parties as to costs.

[2021] SASC 87

20 July 2021