Drivas v Jakopovic

[2018] NSWSC 1803

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Drivas v Jakopovic [2018] NSWSC 1803

Hearing dates:

19, 20, 21, 22 March 2018; further written submissions ending 13 April 2018

Date of orders:

23 November 2018

Decision date:

23 November 2018

Jurisdiction:

Equity

Before:

Parker J

Decision:

(1) The plaintiff’s Amended Statement of Claim dated 27 July 2016 is dismissed.
(2) The defendant’s Statement of Cross-Claim dated 6 April 2016 is dismissed.

Catchwords:

SUCCESSION – testamentary capacity – where the deceased excluded her granddaughter from the will – where the deceased suffered from a progressive neurological condition at the time of the will’s execution – exclusion based on possible mistaken assumption or false belief – Carr v Homersham [2018] NSWCA 65 considered

 

SUCCESSION – testamentary capacity – assessment of evidence – expert evidence – weight of expert reports giving evidence on the legal issue of whether the deceased had testamentary capacity

 

PRACTICE AND PROCEDURE – pleadings and particulars – application to amend statement of claim – proposed claim contingent on the success of the main claim in the proceeding – where proposed claim potentially affects parties not joined in the proceedings – where the relief sought for the proposed claim is narrow – application refused

 

EVIDENCE – affidavit evidence – Uniform Civil Procedure Rules 2005 (NSW), r 35.2 – leave to rely on affidavit where deponent could not attend for examination – where deponent hospitalised – opposing party not informed of deponent’s unavailability until the commencement of the hearing

  EVIDENCE – opinion evidence – expert opinion evidence – doctor’s opinion expressed in a medical certificate – basis of the opinion – resort to surrounding evidence to show basis – admissibility

Legislation Cited:

Evidence Act 1995 (NSW), ss 64, 79, 80
Guardianship Act 1987 (NSW), Part 5
Succession Act 2006 (NSW), s 41, Chapter 3
Uniform Civil Procedure Act 2005 (NSW), r 35.2

Cases Cited:

Banks v Goodfellow (1870) LR 5 QB 549
Carr v Homersham [2018] NSWCA 65
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51
Grey v Australian Motorists & General Insurance Co Pty Ltd [1976] 1 NSWLR 669
Hamilton v Nelson [2012] SASC 219
Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Ministry of Health v Simpson [1951] AC 251
Pachkovski v Australian Executor Trustees Ltd [2011] NSWCA 94
Parslow v NSW Land & Housing Corporation; NSW Land & Housing Corporation v Parslow [2018] NSWSC 843
Re Crooks Estate (Unreported, Supreme Court of New South Wales, Young J, 14 December 1994)
Re Griffith (decd); Easter v Griffith (1995) 217 ALR 284
Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67

Category:

Principal judgment

Parties:

Anita Drivas (Plaintiff)
Boris Jakopovic (Defendant)

Representation:

Counsel:
J Brown (Plaintiff)
R Tregenza (Defendant)

  Solicitors:
Sydney Law Practice Pty Ltd (Plaintiff)
Webb Law (Defendant)

File Number(s):

2016/108097

Publication restriction:

Nil

Judgment

1. These proceedings concern the estate of the late Marija Jakopovic who died in September 2015 at the age of 82. For convenience and without disrespect I will refer to the members of the deceased’s family by their first names.

2. The deceased was born in Croatia (then part of Yugoslavia) in January 1933. She married Josip Jakopovic. They had two children together, Branka and Boris. The family migrated to Australia in January 1965. Branka married Luis Uribe and together they had one child, a daughter, Anita Drivas.

3. In June 1998 the deceased made a will. The deceased appointed Branka as her executrix and left the whole of her estate to Branka and Boris in equal shares. The will provided that in the event of either Branka or Boris predeceasing the deceased but leaving children, then those children would take the share that their parent would have received had he or she survived the deceased. There is no dispute as to the validity of this will.

4. In May 2007 the deceased executed a power of attorney in favour of Branka and an appointment of Branka as her enduring guardian, with Anita as alternative enduring guardian. At the same time she made a new will. Under that will Branka was appointed as the deceased’s executrix but, in the event of her refusal or inability to act, Anita was to act as executrix. The will provided for Branka to receive sixty per cent and Boris forty per cent of the deceased’s estate. The will contained a provision for children to take the share of their deceased parent to the same effect as that in the 1998 will.

5. The issues in the proceedings now centre on two documents executed by the deceased in June and September 2007. In June 2007 the deceased revoked the power of attorney in favour of Branka and executed a general power of attorney in favour of Boris. In September 2007, the deceased appointed Boris as her enduring guardian and made a further will. This will appointed Boris as her executor, and in the event of his being unable or unwilling to act, Michael Taylor, solicitor. If he was unable to act, the partners of the firm of Watson Stafford solicitors were to be executors. Watson Stafford was Mr Taylor’s firm and he was responsible for the preparation of the will. The will left the whole of the deceased’s estate to be divided equally between Branka and Boris. It provided that should Boris predecease the deceased, leaving children surviving him, then those children would take their father’s share, but it contained no comparable provision in favour of Branka’s children. This proved to be the deceased’s last will.

6. In June 2011, Branka died suddenly. The deceased died in September 2015. In February 2016 Boris obtained probate of the September 2007 will.

Issues for determination

7. Section 41 of the Succession Act 2006 (NSW) relevantly provides:

41 Dispositions not to fail because issue have died before testator

(1)   This section applies if:

(a)   a testator makes a disposition of property to a person, whether as an individual or as a member of a class, who is issue of the testator (the original beneficiary), and

(b)   under the will, the interest of the original beneficiary in the property does not come to an end on or before the original beneficiary’s death, and

(c)   the disposition is not a disposition of property to the testator’s issue, without limitation as to remoteness, and

(d)   the original beneficiary does not survive the testator for 30 days or, if that or another period for survival appears in the will, for the period appearing in the will.

(2)   The issue of the original beneficiary who survive the testator for 30 days or, if that or another period for survival appears in the will, for the period appearing in the will, take the original beneficiary’s share of the property in place of the original beneficiary as if the original beneficiary had died intestate leaving only issue surviving.

(3)   Subsection (2) does not apply if a contrary intention appears in the will.

…

8. It is common ground that by expressly making provision that Boris’ children should take his share but not making a comparable provision for Branka’s children, the September 2007 will excludes s 41. Consequently, as a result of Branka predeceasing the deceased, her share under the will lapses and falls into residue with the result that Boris will take the entire estate and Anita will receive nothing.

9. In these proceedings, Anita is the plaintiff and Boris the defendant. Anita challenges the September 2007 will on the basis that the deceased lacked testamentary capacity. It is common ground that the onus lies on Boris, as the party propounding the will, to demonstrate that the deceased had testamentary capacity when it was made. This is the principal issue between the parties. No question of rectification arises.

10. If the September 2007 will is found to be invalid, the deceased’s last will would become her May 2007 will. Initially Anita sought an order for probate of that will in place of the September 2007 will. Boris cross-claimed, contending that if the September 2007 will were invalid the May 2007 will would also be invalid for want of testamentary capacity. Anita does not now seek to support that will.

11. Thus, if the deceased is found to have lacked testamentary capacity at the time of making the May and September 2007 wills, then her estate will be dealt with in accordance with an earlier will, executed in 1998. In that event, a result of the death of the named executrix, Branka, it would be necessary for an administrator to be appointed. There are competing applications by Anita and Boris for appointment as administrator.

12. As well as challenging the September 2007 will, Anita seeks to have Boris provide an account of his dealings on behalf of the deceased under the June 2007 power of attorney. Boris resists the making of any such order.

Amendment application

13. On the first day of the hearing, an application was made on behalf of Anita to amend her Statement of Claim. After hearing argument, I ordered that the application be dismissed and indicated I would give my reasons in my judgment. Those reasons now follow.

14. The current version of the Statement of Claim includes the following prayers for relief concerning Boris’ role as attorney:

7.   An order that the defendant render accounts to the Court and/or to the plaintiff in relation to his dealings with assets of the late Marija Jakopovic (the “deceased”) for the period of 9 June 2007 to 28 September 2015, when he was the power of attorney for the deceased.

8.   A declaration that the defendant as power of attorney or otherwise of the late Marija Jakopovic who died on 28 September 2015 is liable to account to the plaintiff in her capacity as executor of the estate of the deceased in respect of moneys received or paid out by him as the attorney of the deceased.

9.   An order that the defendant pay to the plaintiff in her capacity as executor of the estate or to the estate of the deceased the amount which might be found to be due by him on the taking of accounts together with interest.

10.   Judgement against the first defendant for such amounts found to be owing after a proper accounting with interest.

15. The proposed amendments to the Statement of Claim included the following additional prayers for relief:

7. An order that there be a Review of the Power of Attorney dated 9 June 2007 executed by the deceased to Boris Jakopovic pursuant to section 36 of the Powers of Attorney Act 2003 (NSW).

8.   A declaration that the Power of Attorney dated 9 June 2007 purportedly executed by the deceased to Boris Jakopovic is invalid.

9.   An order that the defendant render accounts to the Court and/or to the plaintiff in relation to his dealings with the assets of the late Marija Jakopovic (the “deceased”) for the period of 9 June 2007 to 28 September 2015.

10.   An order that the defendant pay to the plaintiff in her capacity as executor of the estate or to the estate of the deceased an amount which might be found to be due by him for dealings with the deceased’s property for the period of 9 June 2007 to 28 September 2015.

16. These additional prayers for relief were supported by additional pleaded allegations which included the following:

18.   The Power of Attorney Document is void by reason of the deceased’s incapacity to make it.

19.   All transactions undertaken by the defendant in relation to the deceased’s estate between 9 June 2007 and 28 September 2015 in reliance on the Power of Attorney Document are void.

20.   The deceased lacked the capacity to acquiesce, and did not acquiesce or otherwise approve, the defendant’s dealings with her property between 9 June 2007 and 28 September 2015.

…

20.   At all times when the defendant was the Attorney for the deceased under the Power of Attorney Document, he owed fiduciary duties and obligations to the deceased.

21.       At all times when the defendant was the financial manager for the deceased, he owed fiduciary duties and obligations to the deceased.

17. Counsel for Anita emphasised in his submissions that the circumstances surrounding the execution of the general power of attorney in June 2007 were part of the background to the issues which arise in the case as to the validity of the September 2007 will. Counsel also emphasised that Anita is already claiming an account against Boris for dealings under the power of attorney. Counsel’s submission was that it would be convenient to deal with the issues of capacity which arose with respect to the June 2007 power of attorney will at the same time as dealing with the issues of capacity which arise with respect to the September 2007 will.

18. Superficially that course appeared attractive. But I think that counsel’s submissions overlooked three considerations.

19. First, any claim for the recoupment of monies paid pursuant to the power of attorney, whether against the attorney or against the recipient of the monies, would be a claim on behalf of the estate, not a personal claim by Anita. At this point, Anita is not a beneficiary of the estate; she would only become a beneficiary of the estate if she were successful in having probate of the September 2007 will revoked. The proposed claim was thus a contingent one, and the Court’s decision on it, should Anita fail, would have no binding consequence for anyone.

20. The second important consideration was that the relief sought in the proposed Amended Statement of Claim would potentially affect the position of other parties. Should the Court be persuaded to make a declaration that the power of attorney is “void” then any of the transactions effected by Boris under that power of attorney between 2007 and the date of the deceased’s death could, on Anita’s case, be attacked. Counsel for Anita did not identify the precise basis on which monies could be recouped to the estate in the event that the power of attorney was “void”. Counsel seemed to assume that it would follow automatically that any monies paid away could be recovered from Boris. I am not sure that assumption is correct and in any event it is quite clear that, if there can be recovery, it is not limited to making a claim against Boris. There would seem no reason in principle why, if the power of attorney was “void”, monies could not be recovered from the other party to the various transactions as money had and received; or perhaps on the principle in Ministry of Health v Simpson [1951] AC 251.

21. Counsel disclaimed any intention to upset all of the transactions which might have been entered into by Boris in the exercise of the power. Counsel said that the claim was aimed at monies which had allegedly been paid by Boris to his son. I do not think that a finding, followed by a formal declaration, that the power of attorney was “void” can be so limited in effect; but even if it were limited to the transactions involving Boris’ son, his son would still have an interest in resisting that claim. He is not a party to the proceedings and his interests would be adversely affected by the relief being claimed by Anita.

22. Third, even if the claim were confined to one against Boris it would still not necessarily dispose of all of the potential issues which might arise. The proposed claim proceeds on the basis of the power of attorney being void for want of capacity. But even if the grant of the power was valid, it would still be possible that a claim could be made against Boris or against the other party for the transaction for abuse of the power in equity, for instance, by exercising it otherwise than in the deceased’s interests. It would obviously be completely unsatisfactory if Anita’s claim based on the validity of the power of attorney were rejected in these proceedings, only to be followed in later proceedings by an attempt to pursue a claim for breach of fiduciary duty.

23. In my opinion, these considerations are sufficient to show that any allegation that the power of attorney was “void” for want of capacity had to be left to be determined, if it ever arises, in the ordinary course as part of the administration of the deceased’s estate. This was sufficient reason to refuse the application.

24. As I have mentioned, the application was made on the very first day of the hearing, without (so far as I can see) being foreshadowed. It was not even referred to in the written submissions provided in advance of the hearing. The affidavit in support of the application contained no explanation for why it was only coming forward at that point. Had I concluded that the amendment was otherwise appropriate, this would have been a powerful discretionary factor in favour of refusing the application in any event.

Summary and analysis of evidence

Witness evidence

25. Affidavit evidence was given by four witnesses in Anita’s case giving their recollection of the deceased’s behaviour and mental state over the last ten years or so of her life. Those witnesses were: Anita herself; Luis Uribe, Branka’s husband, and the father of Anita; Francesco Di Girolamo, the deceased’s neighbour; and Meri Hardi, the daughter of a friend of the deceased. Evidence was also given in Anita’s case by Dr Mao, the deceased’s general practitioner, and by Dr Beran, the treating specialist.

26. Anita was cross-examined at some length. I discuss some of her evidence on disputed issues below. Luis was not required for cross-examination and Mr Di Girolamo and Ms Hardi were very briefly cross-examined. Counsel for Boris did not attack the credit of any of these three witnesses and I accept that each of them was doing her or his best to assist the Court. But even where it was not contested, the witness evidence is of limited use in resolving the issues before the Court.

27. The critical period of time so far as determining the deceased’s testamentary capacity is concerned is the period from April to September 2007. That is more than eight years before the proceedings were commenced and more than ten years before the trial took place. The deceased’s mental capacity undoubtedly declined between 2006 and when she was placed in a nursing home in 2009, and it declined further thereafter. The evidence of the witnesses, not surprisingly, tended to speak in general terms. Such evidence is of limited value in determining precisely what the deceased’s mental state was during the critical five month period starting in April 2007.

28. In April 2007 Anita already had two young children, aged four and two. Her third child was born by caesarean section on 17 April. From April 2007 onwards, she had heavy demands on her time from pregnancy, child birth, and looking after her young children (including her newborn). It is clear that even before this, most of the burden of caring for her grandmother fell on her mother, Branka. Branka’s premature death means that the person best placed to give direct evidence of the deceased’s condition is not available.

29. Evidence of a hearsay nature was given by Anita of what she had been told by Branka about conversations with the deceased. Some of this evidence was objected to by counsel for Boris, but not all of it. Counsel presumably took the pragmatic view that, even if objected to, the other evidence would probably be admitted pursuant to the Evidence Act 1995 (NSW), s 64. But even though that evidence has been admitted, its weight is limited. Similar considerations affect the evidence of Luis about what Branka was doing for the deceased.

30. It is also clear that there was a degree of estrangement between Boris on the one hand and Branka and Anita on the other. The evidence does not identify what the source of this ill-feeling was but it apparently predated April 2007. The ill-feeling became worse as a result of the events in May and June 2007 which will be described below. The amount which Anita stands to gain, and Boris stands to lose, in this litigation is significant. These factors combined also have the potential to interfere, even if subconsciously, with the accuracy and completeness of the evidence of the protagonists.

25. In Boris’ case, affidavits were filed by Boris himself; Karen Jakopovic, his wife (they have subsequently been divorced); Mrs Bernada Blazina, a friend of the deceased; and Mr Taylor. Each of Boris, Mrs Blazina and Mr Taylor was cross-examined. Expert evidence was given by Dr Tuly Rosenfeld, a consultant geriatrician.

26. Boris’ affidavit evidence involved the same difficulties of recollection, precision of date and involvement of personal interest as were involved in Anita’s evidence. Counsel for Anita also attacked his credit generally, based on some of the evidence he gave in cross-examination. I deal further with the credibility of Boris’ evidence below.

27. There was no challenge to the credit of Mrs Blazina and I accept her evidence. Mr Taylor did not profess to have any recollection of the circumstances in which he prepared the June 2007 power of attorney or the September 2007 will. His evidence was confined to the description of his usual practice at the time. I deal with the weight of that evidence when making my findings concerning the preparation of those two documents.

Affidavit of Karen Jakopovic

34. Notice was given requiring Karen to be cross-examined, but she was not available to give evidence at the hearing. Counsel for Boris sought an order under the Uniform Civil Procedure Act 2005 (NSW), r 35.2, that her affidavit evidence be received nonetheless. At the hearing I acceded to this application and said I would give reasons for doing so in my judgment. These are those reasons.

35. In support of the application to read Karen’s affidavit, evidence was given by Ms Sharee Webb, the solicitor with the conduct of Boris’ case. The affidavit had been sworn in August 2017. On 2 March 2018, seventeen days before the trial was due to commence, Ms Webb was told by Boris that Karen was unwell and might not be able to give evidence. On 12 March, Anita’s solicitors served formal notice requiring Karen to attend for cross-examination. Ms Webb did not immediately respond. Instead, the same day, Ms Webb spoke to Boris to obtain further instructions and was told that Karen had been hospitalised with severe depression and was “not looking like” she would be discharged.

36. Two days later, on 14 March, Ms Webb called Boris seeking further instructions. Boris’ phone was answered by his daughter. She told Ms Webb that Karen “definitely” would not be able to attend. Ms Webb then sent an email to Boris confirming that Karen was “unlikely to be able to attend” and advising that a medical certificate should be obtained. The following day Ms Webb received a medical certificate on the letterhead of the Royal Brisbane and Women’s Hospital. The certificate did not address whether Karen was fit to attend Court and Ms Webb sought further clarification. The following day, 16 March, Ms Webb received a revised certificate.

37. The certificate dated 16 March was produced and tendered. It was signed by Dr Laura McDade, a resident medical officer at the Hospital, and Vivian Deng, a social worker. It stated:

I am writing this letter to support and confirm that Mrs Karen Jakopovic was admitted to the Royal Brisbane and Women’s Hospital (RBWH) on Tuesday 6th March 2018.

Mrs Karen Jakopovic remains as an inpatient in our hospital and is currently undergoing medical treatment and is planned for a further period of inpatient treatment. As a result of this, Ms. Jakopovic is unfit to travel to Sydney from Brisbane for the period of 19-22 of March. Specifically, given her current medical condition, she is unfit to appear before the Supreme Court of NSW for the purpose of giving evidence during the period of 19-22 of March.

38. Ms Webb did not tell Anita’s solicitors anything about this. The notice requiring Karen to attend for cross-examination was left unanswered until counsel for Boris foreshadowed the application to rely on Karen’s affidavit on the second day of the hearing, Tuesday 20 March.

39. On 20 March, Ms Webb tried to speak to Dr McDade. At 6.10 pm that evening she was telephoned by Dr Emily Martin, the treating psychiatry registrar at the Hospital. Ms Webb sought clarification about the condition which had caused Karen’s admission and asked for another letter. Dr Martin professed concerns about Karen’s privacy and said she needed to speak to Karen’s treating psychiatrist who had already left for the day. No further clarification was obtained before the application was made, at the end of Boris’ lay evidence, on the morning of Wednesday 21 March.

40. Objection was taken to the opinion expressed in the letter by counsel for Anita. Counsel’s objection was that the lack of explanation and reasoning in support of the opinion meant that the Court could not be satisfied that the evidence was based in whole or part on specialist knowledge for the purpose of the Evidence Act s 79: see Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305; Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21.

41. Counsel for Anita referred in support of his submission to the Court of Appeal decision in Pachkovski v Australian Executor Trustees Ltd [2011] NSWCA 94 where a late application was made for an adjournment by the applicants in an application for leave to appeal. Three medical certificates were produced in support of the adjournment application. Hodgson JA said of the certificates (at [4]):

Those medical certificates are not in a satisfactory form. They are not supported by any appropriately verified evidence from the doctor. They do not identify the symptoms or the degree of the alleged problem, so as to justify the assertion that the person would be unfit to attend court. They provide a wholly inadequate basis on which the court could be satisfied that there is a compelling reason why this matter, which has for some time been fixed for this date, should not proceed.

42. The form of the certificate in this case had some similar problems. It did not identify the condition that led to Karen’s admission nor was the opinion that Karen would be unfit to give evidence supported by any reasoning. But in determining the admissibility of an opinion for the purpose of s 79, the Court is not confined to the report or other document in which the opinion is stated. It is open to the Court in a proper case to draw inferences as to the basis for the opinion from other circumstances established by the evidence. In this case, I thought there was a sufficient basis for inferring that Dr McDade was one of the doctors treating Karen, and that the opinion that she would be unable to give evidence was based on clinical observations made by Dr McDade or recorded in hospital records available to her. Accordingly, I concluded that the lack of explanation and reasoning did not render the letter inadmissible although it certainly reduced its weight.

43. The circumstances in which the application came to be made in this case were most unsatisfactory. The Court expects the legal representatives of the parties to be candid with each other. Ms Webb should have advised the solicitors for Anita of the potential problem, at the latest, once the notice requiring Karen for cross-examination was received. It was a serious error of judgment on her part to keep them in the dark right up to the beginning of the hearing. The lack of detail in the medical certificate, coupled with the suggestion that in some way unexplained “privacy” considerations prevented any more detail being given, meant that Anita’s legal representatives (and the Court) had been treated in a rather high-handed way.

44. Nonetheless I think this case is distinguishable from Pachkovski. In that case, the applicants had dispensed, shortly before the hearing, with the services of a barrister who had been prepared to represent them. The circumstances were such as to give rise to the suspicion that the applicants were trying to avoid a hearing of the application. That was not the case here. There was no reason to doubt that Karen was in fact an in-patient in hospital. That would not have happened unless a diagnosis had been made and there was a perceived need for her to be placed in a medical facility. The fact that she was unable to give evidence would inevitably mean that the contents of her affidavit would have a lesser weight. For this reason, her inability to give evidence was as much a misfortunate for Boris’ case as it was a source of potential disadvantage for Anita’s case. I did not think that the misjudgment by Ms Webb in failing to give proper notification to Anita’s solicitors should be permitted to compound the misfortune.

Undisputed background

45. Anita’s evidence, which was not disputed, was that in about 1983 Luis and Branka moved to an address in Tallowood Crescent, Bossley Park, where they built a house. Anita, who was then about ten years old, moved with them.

46. A few years later, Josip and the deceased bought a block of land two doors down from Louis and Branka’s house in Tallowood Crescent, intending to build their own house and live there. Before this could happen, Josip died. That was in June 1986. The house was subsequently built and the deceased moved there in about 1988.

47. Thereafter the deceased lived at her house in Tallowood Crescent. Anita lived with her parents until she moved out in 1999 but thereafter she was only about a ten minute drive away. Boris had lived in Queensland from 1975 or 1976 but maintained contact with his parents, and after his father’s death, the deceased. He said they spoke on the telephone once or twice a week.

48. Anita’s evidence was that while she lived with her parents in Tallowood Crescent her mother would spend considerable time helping her grandmother with shopping, cooking and the like. Anita’s evidence was that she helped also, although to a lesser extent. Anita’s evidence was that this continued after she (Anita) had moved out.

49. Anita gave evidence that from about 2005 the deceased started to become forgetful. Anita recounted various occasions on which the deceased mislaid things around the house. This evidence was not contested and Boris’ evidence confirmed it. He said he became concerned about his mother’s loss of short-term memory in April 2007 and visited Sydney to see for himself how she was. He recounted an experiment in which he put objects on the kitchen table and removed them; the deceased was unable to remember what the objects had been after only about five minutes.

Diagnosis of dementia: April 2007

50. Dr Mao’s notes are in evidence. Those notes refer to a number of consultations starting towards the end of 2006 referring to the deceased’s forgetfulness or similar symptoms. Reference to forgetfulness appears in the notes on 24 November 2006, and 21 December 2006. On 2 April 2007 Dr Mao referred the deceased to Dr Roy Beran, a neurologist. The notes record that by 12 April Dr Mao concluded that the deceased needed an ACAT assessment. ACAT is the Aged Care Assessment Team and is responsible for certifying placements in nursing homes. The deceased was registered with ACAT on 17 April.

51. In evidence are “event notes” made by officers of the NSW Police from the Fairfield police station concerning the deceased. The first refers to an event on 18 April and carries a time of 8.00 am. It records:

At the above time and date the victim contacted police and requested they attend her home address as she had been locked inside the premises by the NOK [next-of-kin, apparently Branka]. Upon arrival, police spoke with the victim through a side gate. Whilst speaking with the victim, police formed the opinion that the victim was suffering from a mild case of dementia. The victim repeatedly stated that the NOK had stolen her house keys and locked her inside the premises. Police utilised another side gate and gained access through the rear door of the premises. Police then conducted a quick search of the surrounding area of the last known location of the keys and upon doing so police located a set of house keys. The victim advised the keys were not at the location moment earlier. Police spoke to the NOK who lived two doors up from the victim. The NOK advised police that she had noticed the victim’s decline in mental health over the past six months. The NOK stated she was unable to care for the victim on a full time basis. Police returned to the victim’s residence and whilst at the location police contacted Fairfield Mental Health Team and spoke to [redacted]. [Redacted] informed police she would arrange for a Mental Health Case Worker to attend the location later in the day to complete an assessment of the victim’s state of mind. As the victim did not appear to be a threat to herself or anyone else, [redacted] stated the victim should be ok to stay at the premises by herself. For police record only.

52. This record was admitted without objection, presumably as a business record. It is clear from the record, not only that the deceased had lost her keys but that she had falsely blamed Branka for locking her in the house. Neither party made any submission on the extent to which, if at all, the record was evidence of matters which were not within the personal knowledge of the police officers: cf Parslow v NSW Land & Housing Corporation; NSW Land & Housing Corporation v Parslow [2018] NSWSC 843 at [66]-[67]. Nor was there any submission on the admissibility of the opinions formed by the police: cf, generally, Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36.

53. On 19 April the deceased, accompanied by Branka, was seen by Dr Beran. Dr Beran administered a standard test known as the mini-mental state examination (“MMSE”) under which the deceased scored only eighteen out of a possible thirty. I discuss the results and their implications in more detail below when considering the expert evidence concerning the deceased’s mental state. Dr Beran prescribed Aricept, a drug used in the treatment of Alzheimer’s Disease.

54. Branka had been planning for some time to take an overseas holiday with Luis for about six weeks, starting in late May. On 24 April, ACAT began its assessment. The deceased was visited at home. Over the following two weeks information was collected from the deceased’s GP and others, including Branka, by the ACAT officer responsible, Ms Georgina Kennedy, and recorded in an application form to access residential aged care and residential respite care. The application was ultimately signed by the deceased on 2 May 2007. The deceased was then approved both for residence generally and for respite care, both at “low” rather than “high” level. The evidence does not identify what “low” and “high” level care means in this context.

New will and power of attorney: May 2007

55. The power of attorney, appointment of enduring guardian and will of May 2007 to which I have already referred were all dated 3 May. They were apparently prepared by Marta Vukmirica, a solicitor in practice at Fairfield. Ms Vukmirica witnessed the deceased’s signature on the power of attorney and appointment of enduring guardian, and also the endorsement of Branka’s acceptance on the same date. Ms Vukmirica and her secretary in her office witnessed the will. I have already described the main provisions of the will, and in particular the 60/40 division of the estate between Branka and Boris. Clause 3 (incorrectly numbered as a second clause 2) contained nine subparagraphs conferring specific powers on the trustees of the estate.

56. Clause 4 of the will stated:

I WISH to state that I loved my children equally but have given a greater share to my daughter BRANKA URIBE out my estate as she daily attended to my needs for the last 20 years and not my son. My daughter deserves the greater share.

57. Ms Vukmirica certified that she had explained the effect of each of the power of attorney and the enduring guardian appointment to the deceased before it was signed and that the deceased “appeared to understand the effect of” the document. Ms Vukmirica also witnessed Anita’s acceptance of her appointment as an alternate attorney and enduring guardian on 8 May.

58. A formal affidavit from Ms Vukmirica as attesting witness was filed in support of Anita’s initial claim for probate of the May 2007 will, but as a result of the abandonment of that claim, was not read. Ms Vukmirica did not give evidence.

59. There was no other evidence as to the circumstances in which the documents were prepared. The power of attorney and appointment of enduring guardian may well have been prepared in order to facilitate the deceased’s admission to a nursing home while Branka was to be overseas (see [60]-[63] below). There is no evidence as to how the fresh will came to be executed.

Admission to nursing home

60. On 4 May a further event was recorded by Fairfield Police. The next of kin was recorded as Anita. The note recorded:

At the stated time and date the victim contacted police a number of times stating that she was locked inside the house and that her daughter had taken her keys from her. Police attended and gained access to the rear yard through the side gate and spoke to the victim through the locked rear screen door. She stated that her daughter had the keys and she was locked inside. Police attempted to contact the daughter but she was not home. As a result police had to contact the Firies to gain entry to the victim. A short time later police were able to contact the granddaughter who told her mum her [sic] attended a short time later. The NOK opened the door for police. A search of the house was conducted but police were unable to locate the keys. The NOK explained to police that the victim was suffering from dementia and that she kept losing her keys and saying that her family was locking in her house. The NOK told police that since the last incident she had contacted Community Care. Police contacted Community Care Respite and spoke to [redacted] who stated that they has [sic] found short term respite care for the victim and the NOK just had to agree with it. No further action. Record only.

61. The “short term respite care” referred to in the police record was at a nursing home operated by the South Western Sydney Italian Australia Association (“SWIAA”) and known as “SWIAA Gardens”. Ms Kennedy of ACAT faxed a copy of the application form, as approved, to SWIAA on 3 May and again on 4 May. The SWIAA Gardens admission form was signed by Branka on 11 May.

62. On 17 May the deceased had a follow up consultation with Dr Beran. In a report to Dr Mao he recorded that the deceased had not been taking the Aricept which he had prescribed in April. He performed an EEG which he found to be “essentially normal” and concluded that, given that the deceased was not taking her medication, there was nothing further that he could do.

63. On 21 May the deceased was admitted to SWIAA Gardens. Progress notes made during her stay are in evidence. The initial entry reads:

New admission this morning, Resident is unsettled and is emotionally distressed. Reassurance provided by staff, her daughter is refusing to spend time with Resident right now claiming previous incidents, that have occurred between Resident and daughter. Staff has reminded daughter that medications need to be brought in, as resident’s daughter didn’t have any medications of Resident on her. Dr Mao has been notified for admission on site to be done, this was confirmed for this evening anytime after 7pm…

64. This entry was timed at 1.20 pm. The next entry on the progress notes has no time noted but it must have been after 9:30pm and before the following entry which was timed at 10.30 pm. The untimed entry reads:

Managed to finally get [the deceased] settled and stop crying went to bed around 21.30. Doctor came to admit her and was shocked to see her hear [sic]. Told resident that she would see what she could do to find her a way out maybe call her son.

65. Separate from the progress notes are running medical practitioner’s notes maintained for the deceased. The first entry, dated 21 May, reads:

Medically fit and well for years until recent loss of memory. Seen by Dr Beran and put on Aricept. Daughter and son-in-law going away for holiday for five weeks. Nobody at home to look after her. Son in Queensland. Cognition – ok, gets very agitated and upset because of being placed in [unintelligible, perhaps “hostel”]. Movements – ok. Can look after self. Just need general care. Has good reasoning power.

66. From a comparison with other samples of Dr Mao’s handwriting and signature, this appears to have been written by Dr Mao. Presumably Dr Mao was the doctor referred to in the untimed progress note entry.

67. The progress notes contain frequent references to the deceased’s distress about having been put into the nursing home. She is recorded as crying, asking why she was in the nursing home, and wanting to go home. Notes also record the deceased expressing anger towards her daughter Branka for having her admitted.

68. A note by Ms Jenny Forrest, one of the staff at SWIAA Gardens, records that on 22 May Ms Forrest rang Dr Mao. Ms Forrest’s note stated that Dr Mao was “now aware of [the deceased’s] threats to go home & her inability to self care – [therefore] danger to herself”. The note records that Dr Mao was also “now aware of [Branka’s] concern for her mother’s safety, that is risk to leave facility”. I infer that these are things which Ms Forrest put to Dr Mao, based on Ms Forrest’s and Branka’s views. Dr Mao is recorded as having agreed for the deceased to remain in the dementia unit and to reassess the situation when Branka returned from her holiday.

69. Branka visited the nursing home on the following day, 23 May. She had a case conference with Ms Forrest and provided a copy of the power of attorney in her favour which had been prepared by Ms Vukmirica. Ms Forrest’s note recorded Branka as wanting her mother to remain in a “safe environment” and voicing concerns her mother might abscond.

70. A letter from Dr Mao confirming her agreement with Ms Forrest for the deceased to remain in the dementia unit until Branka’s return is in evidence. It is dated 23 May 2007 and reads:

Marija should stay in the present accommodation until her daughter returns from holiday. This is to make sure that no harm will happen to her during her daughter’s absence.

71. The progress notes record that the deceased was upset when Branka left on 22 May. A note later on 22 May 2007 from Ms Forrest records family friends voicing concerns about the deceased’s placement in the dementia unit.

72. Thereafter the progress notes record continuing distress and anger on the part of the deceased with being placed in the nursing home. They also record requests by the deceased to go home and make telephone calls, requests which were deflected by the nursing home staff.

73. Mrs Blazina gave evidence that over the weeks prior to being admitted to the nursing home in May 2007 she received calls from the deceased who was upset and said that Branka and Anita were telling her she was going into a nursing home. The deceased did not want to go and asked whether she could come and live with Mrs Blazina and her husband. Mrs Blazina replied that she could not act against the deceased’s son and daughter.

74. According to Mrs Blazina the calls stopped for a period of time and then the deceased rang her from the nursing home. The deceased asked if she could live with Mrs Blazina and her husband but Mrs Blazina said this was not possible. The deceased then said she had been put in the nursing home and Branka was on holiday and asked her to ring Boris. Mrs Blazina did so and told Boris he needed to come down from Brisbane and see his mother.

75. According to Boris’ evidence, during his visit to Sydney in April 2007 he had a meeting with Branka, Luis and the deceased to discuss the deceased’s care. He said there was a conversation to the following effect:

Branka:   I am going overseas for six weeks and mother needs help while I’m away. Anita has children and is not willing to help.

Boris:   We can get in-house care, an emergency pendant and grocery deliveries.

Branka:   I will look into it and find out what government assistance is available. I’ll get back to you in a little while about what options I discover. I will speak to you before making any decisions.

Boris:      I will phone mum on a daily basis while you’re away.

Branka:   Okay, that’s a good idea.

Deceased:   I probably won’t need much help, but it’s probably better to do it, just in case.

76. Boris stated that after he returned to Brisbane he had a telephone conversation with the deceased in which she said words to the following effect:

Branka is trying to get me to sign papers and I don’t understand them. She said they will let her sign things on my behalf in the future. She’s being aggressive and domineering. She is telling me to sign papers but she’s not telling me what they are. She said she won’t be able to help me unless I sign those papers. She hasn’t explained what I’m signing.

Boris said he took this up with Branka and was told that the documents were simply for assessing old age care.

77. Boris stated that in May 2007 he telephoned the deceased at home but she did not answer. He then rang Branka and was told that she (the deceased) was probably just out of the house. Boris said that he then learned from Mrs Blazina that his mother was in a nursing home. Boris said that he telephoned Branka and they had the following conversation:

Boris:   What’s happening with Mum? We agreed to find ways to help her stay in her own house as long as possible because that’s what she made clear she wanted. I would like a copy of the relevant papers.

Branka:   It’s none of your concern now. I’m taking care of it. I have taken control of her finances. I’ve got the legal right to make decisions, to take charge of her life and finances and make decisions for her. You’re not entitled to papers or anything else now.

78. According to Boris he then contacted the nursing home and spoke to the deceased. They had a conversation to the following effect:

Deceased:   Branka and Anita brought me here. They told me it was just to find out more information about the place in case I would like to stay there in the future as it was close to where they were living. Then they left me here. They brought my suitcase later. I haven’t unpacked it. I want to go home. They’ve locked me up. I don’t want to be here. I want to go home.

Boris:   I will speak to a solicitor. I will come down and see you.

79. Boris said that he then telephoned Branka again asking for a copy of the power of attorney but was refused. Branka then left to go overseas.

80. In Anita’s affidavit, she gave a different account based on what she said she was told by Branka. Anita said she was told by Branka that she talked to Boris about caring for the deceased. He said he could not care for the deceased as he would himself be overseas for part of the time but suggested that the deceased go and live with his son on his son’s farm. Branka said she did not think this would be suitable. Instead, she had been told by people from ACAT that she was entitled to respite care of six weeks per year and that SWIAA had a dementia unit.

81. Anita said that the deceased entered respite care at SWIAA “around the middle of May 2007”. She said that Branka decided to place her there around a fortnight before she left for her overseas trip. The next thing Anita mentioned was when the SWIAA management contacted her after the deceased was discharged on 9 June (see below).

Discharge from nursing home

82. Boris said that Karen found the solicitor, Mr Taylor, in an online search. Boris spoke to Mr Taylor and arranged to come down a week or so later. He and Karen drove from Brisbane.

83. On 9 June Mr Taylor visited the deceased in the nursing home. According to Boris, he and Mr Taylor were accompanied by Karen, Mrs Blazina and Mr Blazina.

84. Boris said in his affidavit that when he arrived the deceased said:

Oh Boris! How could Branka do this to me? She knew I wanted to live in my own home where I felt safe and comfortable. I don’t need much and I like spending time with my friends. She didn’t tell me what the papers really meant. She pretended it was for her to look after me more easily and that it was all for my benefit.

85. According to Boris, Karen and Mrs Blazina, Mr Taylor saw the deceased alone. The deceased executed three documents which Mr Taylor had previously prepared. The first was a revocation of Branka’s power of attorney. The second was a power of attorney in favour of Boris. The power of attorney was a general one which was expressed to endure if the deceased lost mental capacity. The third was a statement addressed to Mr Taylor’s firm, Watson Stafford. The statement recorded that before signing the power of attorney, Mr Taylor had explained to the deceased that she was placing great trust in Boris. It recorded the deceased’s understanding of the powers conferred on Boris under the power of attorney, including that it would endure and continue to operate if the deceased suffered incapacity by way of unsoundness of mind.

86. In the face of the power of attorney, the management of SWIAA Gardens reluctantly discharged the deceased. She went back to her house at Bossley Park with Boris and Karen for a few days and then they took her with them to Brisbane where she stayed for three or four weeks.

87. When Boris and Karen returned to Brisbane with the deceased, they took her to a local medical centre where she was seen on 13 June by Dr Steinohrt. Dr Steinohrt prescribed Risperdal which is a psychotropic medication used to treat behavioural symptoms, such as paranoia and aggression, associated with dementia. According to Boris, it took the deceased approximately a week after arrival in Brisbane to settle down.

88. On 18 June Boris wrote a letter to Branka and Anita. The letter stated:

By now you should be aware that I hold the enduring power of attorney for mum. Our solicitor organized for a certified copy to be sent to you. While in Sydney on 9th to 11th June I made many attempts to contact you by leaving messages on Anita’s answering machine. You failed to respond, I also left a message on Branka’s answering machine for when you return from overseas.

I request that you return all of mum’s belongings which are in your possession. This includes medical records, bank books, bank statements, Medicare Card, her will, my will, etc. You no longer have the legal right to hold them.

If you do not send this material to the above address within two weeks of the date of this letter you will receive a summons to appear in court. As you are acting illegally you will be liable for all the court costs.

I am interested only in the welfare of mum who clearly is not well. We took her to two doctors and she has had pathology tests and a head scan. She is now taking the correct medication for her, which is called Risperidone [Risperdal]. It stops her paranoia as long as it is taken religiously every 24 hours. If that does not occur she immediately reverts to her paranoid state, including verbal abuse and frequent crying.

Please consider this a letter of demand for all of mum’s possessions which you hold.

89. In cross-examination, Boris denied having made some of the statements in the letter. He was then confronted with the letter and had to accept that his denials had been incorrect. Counsel for Anita submitted that this was damaging to Boris’ credit. I accept that it diminishes his credit generally, to some degree. But I do not think it is of great importance in resolving the issues in this case.

90. On 13 June Mr Taylor wrote to Branka, notifying her of the revocation of her power of attorney. Branka would have been overseas when this letter, and Boris’ letter of 18 June, was sent. There is no evidence of any response to either letter. In particular, there is no evidence that Branka or Anita did anything to comply with Boris’ requests.

Conclusions on deceased’s admission to nursing home

91. Anita was challenged in cross-examination about her ability to recollect the details of the conversations with Branka accurately. Anita insisted she was able to do so, but I did not find her responses convincing.

92. There were also gaps in Anita’s evidence. Anita must have had some involvement with Ms Vukmirica, if only to accept her appointment as alternate attorney and enduring guardian. The deceased told Mrs Blazina that both Branka and Anita wanted to put her in a nursing home. Anita did not refer to this in her evidence. Nor did she respond to the suggestion in Boris’ evidence that she refused to help with the proposal to care for the deceased at home while Branka was away.

93. One thing is clear. The progress notes do not record Anita making any visit to the deceased during the period between 21 May and 9 June when she was in the nursing home. Anita did not in her evidence claim to have had any contact at all with the deceased over that period.

94. As well as saying nothing about her own involvement, Anita’s evidence contained some surprising omissions about Branka’s role. It is clear from the evidence of Mrs Blazina (which was not contested) that the deceased was resisting being put in the nursing home. The progress notes confirm that the deceased was placed there against her wishes and, on admission, Branka was refusing to spend time with her as a result of previous conflict. These details were completely absent from Anita’s account. There was also nothing about the will, power of attorney and enduring guardianship appointment prepared by Ms Vukmirica . This may not be Anita’s fault; Branka may not have told her about these events. But on any view, even if Anita’s recollection of what she was told by Branka is reliable (and I do not think that it is) it would be seriously incomplete.

95. I accept that Boris was not aware of the deceased’s admission to SWIAA Gardens until told about it by Mrs Blazina. Mrs Blazina did say that she told the deceased, before the deceased’s admission, that she (Mrs Blazina) could not go against the wishes of the deceased’s son and daughter. But I think this does no more than reflect the assumption which Mrs Blazina would have made at that stage that the decision to put the deceased in the nursing home was a decision made by her children jointly. Boris’ reaction to what he was told by Mrs Blazina is entirely consistent with his being unaware of the deceased having being placed in the nursing home.

96. In retaining Mr Taylor and procuring the deceased’s release from the nursing home Boris was acting in good faith. The fact that Mr and Mrs Blazina were present on the occasion when Boris brought Mr Taylor to visit the deceased and she was released supports this. Mr and Mrs Blazina evidently had their own concerns about what had happened. Mrs Blazina may well be one of the concerned friends referred to in Ms Forrest’s note of 22 May.

97. That does not mean that I accept all of Boris’ evidence. His account of being told by Mrs Blazina that the deceased was in the nursing home and then having a conversation with Branka before she went overseas is inconsistent with the evidence of Mrs Blazina, who placed her initial contact with Boris after Branka had already left. Nor do I accept that Branka deceived the deceased about going into the nursing home as Boris’ account suggested. It is not consistent with the fact, recorded in Mrs Blazina’s evidence, that the deceased was aware of, and was resisting, going into the nursing home before she even went there. There is also no trace of any such deceit in the progress notes which record the deceased’s admission.

98. I also do not accept the suggestion in Boris’ evidence that he was actively deceived by Branka when he tried to contact the deceased. I think it is more likely that Boris exaggerated the regularity of his contacts with her.

99. The circumstances in which the deceased was admitted to SWIAA Gardens, as revealed by the evidence, are troubling. It appears that the availability of respite care through ACAT was the catalyst for what happened. The ACAT notes themselves refer to the admission in the context of Branka taking what was described in the notes as a “well deserved” holiday. It is difficult to resist the suspicion that it was Branka’s needs or wishes as a carer which drove the process, rather than those of the deceased.

100. It is quite clear from the evidence that from the beginning to the end the deceased was being detained in the nursing home against her will. The fact that the deceased had given a power of attorney to Branka, who had made the arrangements, did not of itself justify the deceased’s detention. If the deceased had capacity, it was open to her at any time to countermand any instruction which Branka had given under the power of attorney. Admission against the deceased’s will, relying on the power of attorney, would only be justified if the deceased had lost capacity before admission. But on that view the execution of the power of attorney itself would be called in to question, as it was executed only eighteen days beforehand. If the deceased had lacked capacity to grant the power of attorney in the first place, an order from the Guardianship Tribunal would have been required. There is no sign in the evidence that these legalities were considered by anyone.

101. Dr Mao’s conduct is difficult to understand. As the deceased’s doctor, Dr Mao was supposed to act in her interests. It might be thought that, in view of the deceased’s evident wish not to be admitted to the nursing home, Dr Mao should have been looking for ways in which that could be achieved. The evidence suggests that this may have been Dr Mao’s initial approach (when she was “shocked” about the deceased being in the dementia unit and indicated that she would try to get the deceased out) but that she allowed herself to be persuaded to sign the necessary papers to keep her there.

102. Dr Mao was not questioned about any of this and it is neither necessary nor possible to make final findings about it. But although there may have been a degree of exaggeration in Boris’ account, it is easy to see where he got the idea that the deceased was put in the nursing home by his sister and his niece for their benefit rather than hers.

Deceased’s return to Sydney and execution of September 2007 will

103. According to Karen’s affidavit, once in Brisbane the deceased expressed concern about returning to Sydney. She said she did not trust Branka and Anita anymore. Karen’s affidavit states that she and Boris reassured the deceased by reminding her that Boris held her power of attorney and that Branka and Anita could not put her back in a nursing home against her will. Karen’s affidavit also stated that the deceased said she missed her home.

104. Prior to going to the nursing home, the deceased had developed a casual relationship with an Italian man named Vittorio or “Vic”. He came to Brisbane and visited her while she was staying with Boris and Karen. About a week after he arrived, he drove her back to Sydney.

105. Anita said that in late June, soon after her mother returned from overseas, they went shopping together. As they returned to Branka’s house, they went past Vic and the deceased getting out of Vic’s car at the deceased’s house. Vic and the deceased saw them and came over to Branka’s house. Anita said that Branka asked the deceased where she had been, and the following conversation ensued:

Deceased:   I have been at Vic’s. Boris told me not to come home and to stay away from you and Anita as you will put me back in a home.

Anita:   We cannot do that now because Boris is your Power of Attorney. He is the only one who has the power to put you into a home; we can’t.

Deceased:   What’s a Power of Attorney?

Branka:   It is a legal document that you signed to allow someone to make decisions for you that you cannot make yourself.

Deceased:   I didn’t sign anything. He doesn’t have that. How can he have that?

Branka:   Well, you signed those papers.

Deceased:   No, I didn’t, when did I do that?

Branka:   You did that while you were at SWIAA. That is how Boris was able to take you out of SWIAA.

Deceased:   Well, I didn’t sign anything.

Anita:   It’s okay Marija, we are just glad that you are safe.

106. In September 2007, Boris and Karen returned to Sydney. According to both Boris and Karen, Mr Taylor had suggested an enduring guardianship in favour of Boris once the deceased settled down.

107. The deceased’s will is dated 10 September. On the same day, the deceased executed an instrument appointing Boris as her enduring guardian in accordance with the Guardianship Act 1987 (NSW), Part 5. Boris subscribed his acceptance and Mr Taylor certified he witnessed both signatures and that each of the deceased and Boris “appeared to understand” the effect of the instrument.

106. The deceased’s will was witnessed by Tina Skaros and Sara Losurdo, who were both secretaries employed by Watson Stafford. Ms Skaros swore an affidavit in conventional form as attesting witness. There was no affidavit from Ms Losurdo. No point was taken about this and Ms Skaros was not required for cross-examination.

107. The deceased’s September 2007 will is a simple one-and-a-half page document with a third cover page. A time stamp appears on each of the pages. The cover page is time stamped 11.00 am. The first page of the will itself is time stamped 12.42 pm and the second page 12.46 pm. The cover page for the Appointment of Enduring Guardian is time stamped 11.03 am.

108. The will consisted of six clauses. Clause 1 revoked all former wills and declared the will to be the deceased’s last will and testament. Clause 2 appointed Boris as executor or failing him, Mr Taylor, or failing him, the partners of the firm of Watson Stafford. Clause 3 gave the whole of the deceased’s estate to be divided equally between Branka and Boris. Clause 4 provided that if the deceased was predeceased by Boris his children would take equally the share that he would have taken. Clause 5 conferred powers on the executors the powers of trustees for sale with respect to all of the property of the estate and the power to apply the whole or any part of the capital of the estate for the maintenance, education or advancement of any minor beneficiary. Clause 6 provided that any executor who practised a profession should be entitled to be paid usual professional fees.

109. The will and the enduring guardianship appointment were both entered in Watson Stafford’s safe custody register two days later on 12 September. On the same date, the previous will drawn by Ms Vukmirica in early May was entered in the register. Mr Taylor presumably received the previous will on 10 September, when the new will was executed.

110. According to Boris, he recommended to the deceased that she should make him her enduring guardian for protection against Branka and she agreed. Boris took her to Watson Stafford’s offices accompanied by Karen and Vic. Boris said that Mr Taylor saw the deceased on her own and they waited for some time. When the deceased eventually returned to the reception, they were told that everything was done and the documents were being sent in due course. But while they were in the car on their way to lunch, the deceased said that she wanted to get copies of “the papers and the will”. They returned to Watson Stafford’s offices, the deceased and Karen got out and then returned to the car with papers. The deceased asked Karen to read the papers to make sure that they were correct.

111. Karen’s affidavit was to similar effect. Karen said she was surprised to find that the deceased made a new will, as this had not been mentioned beforehand. Her affidavit continued:

I read the Will aloud in the car. The Will excluded Anita in the event of Branka dying first. I was not very surprised to read this because of many things I had heard Marija say in regards to her granddaughter over the two decades I’d known the family. For example, “Whenever Branka and Luis go away on holidays, Anita rarely visits me”. On one occasion, Marija said to me, referring to Anita, “I thought she loved me more than that”.

114. Boris said that because he was driving, he did not take in what the will said. When they got home, Karen told him about Anita being left out of the will and he asked the deceased why. He said the deceased replied:

Anita is not helping me and is not nice. I feel that Anita thinks I’m a burden.

Anita was spoilt and never appreciated what was given to her. She wasn’t nice to me. She didn’t help me. I used to think she loved me, but not anymore.

115. Neither Boris nor Karen mentioned the May 2007 will. Boris however said he recalled that the deceased took a large handbag with her. Although Boris did not claim to have seen what was in the handbag, counsel submitted that I should infer the suggestion that the deceased took the May 2007 will in it for the appointment with Mr Taylor.

116. On balance, I think I should accept this submission. Someone must have taken the May 2007 will to Mr Taylor. Accepting, as I do, that the deceased would have seen Mr Taylor alone, she is the most likely person to have done so. Counsel for Anita pointed to the request in Boris’ letter of 18 June to Branka and Anita (see [88] above) for the production of the deceased’s will. But there is no evidence that the will (or anything else) was produced in response to this request. In any event, it does not matter whether the deceased had the will herself or obtained it from Boris. The deceased must still have given it to Mr Taylor.

117. Counsel for Anita submitted that the September 2007 will was the work of Boris. There is no independent evidence to support this and I think it is inherently unlikely. Boris would not have expected in September 2007 that Branka would predecease her mother. If Boris controlled his mother’s testamentary dispositions and wished to ensure that he would obtain her estate, he would surely have done so directly by persuading the deceased to leave him the whole estate outright. I see no reason not to accept his evidence, and that of Karen, that the making of the new will came as a surprise to them.

118. After changing her will and appointing Boris her enduring guardian, the deceased continued to live at the Tallowood Crescent property for a further two years. An Area Health Service record for the deceased from October 2008 recorded that she:

… is currently being cared for by her partner however he tends to disappear from time to time … daughter resides one house down and visits regularly … needs close supervision as tends to be vulnerable when left alone …

119. The reference to the deceased’s partner is obviously to Vic, and other evidence indicates that their casual relationship continued for some time. Mrs Blazina gave evidence that she continued to see the deceased during this period; indeed the deceased would from time to time drive herself from her home at Bossley Park to the Blazinas’ house at Rosebery, a drive of more than an hour through Sydney traffic. Mrs Blazina said that the deceased appeared to be living happily and independently. She spoke of seeing Vic and going to the Marconi Club. Mrs Blazina said she behaved normally, as she always had.

120. Anita’s evidence was that Branka looked after the deceased during this period, visiting her daily and attending to her care. Anita returned to full-time work in September 2007. Her husband moved to Queensland for work in October 2007 and Anita joined him with her children in January 2008. Anita’s evidence of what Branka was doing during this period cannot have come from first-hand knowledge. The fact that Branka was helping is confirmed by the Area Health Service note, but there is no independent evidence to confirm what Anita said about the frequency of Branka’s visits and what care she provided to the deceased.

Guardianship Tribunal proceedings and institutionalisation of deceased

121. Anita said that once she moved to Queensland she remained in touch with the deceased via telephone and returned to Sydney for school holiday visits. She described the decline in the deceased’s mental faculties, with increasing forgetfulness and lack of care for her grooming. This aspect of the evidence was not challenged.

122. In late July 2009, Dr Beran saw the deceased again at the request of Dr Konstantin Bosnic, who is said to have been another GP occasionally consulted by the deceased. This was the first time Dr Beran had seen the deceased since May 2007 (see [62] above). On 23 September, Dr Beran saw the deceased again and the following day, he prepared a report addressed to Branka. I infer that this report was produced for the purposes of the Guardianship Tribunal proceedings which were commenced by Branka at around this time. Branka sought a guardianship order for the deceased and also a financial management order.

123. The proceedings came before the Tribunal on 12 October. In the meantime, in early October, the deceased had a fall which led to her being admitted to hospital and then transferred to a nursing home, Heiden Park Lodge, at Carramar. There was no time to deal with the financial management order, and the Tribunal considered that the arrangements made for respite care at Heiden Park Lodge, which both Boris and Branka were happy with, were satisfactory. The Tribunal therefore adjourned both applications.

124. Subsequently, a permanent place became available at another nursing home, Ruby Lodge, at Carramar. In November 2009 Boris opened a bank account in the name of the deceased. The deceased’s pension was paid into the bank account. Boris used the funds in the bank account to pay expenses of the deceased. Boris arranged to rent out the Tallowood Crescent property. He organised for tax returns to be prepared for the deceased.

125. The proceedings returned to the Tribunal in late April 2010. The Tribunal appointed a solicitor as a separate representative for the deceased. The deceased participated in the hearing. According to the Tribunal’s reasons for decision, the deceased told the Tribunal that she trusted Branka and wished for Branka to take care of her, and she also made some negative comments about Boris. The Tribunal, however, found it difficult to assess the extent to which these represented the deceased’s independent views.

126. The Tribunal was provided with Dr Beran’s report of September 2009 which raised questions about whether the deceased had capacity when she executed the power of attorney in June 2007 and the enduring guardianship in September 2007. But the Tribunal noted that no application had been made to review those grants of power to Boris. Broadly speaking, the Tribunal concluded that the arrangements under which the deceased was living at Ruby Lodge and under which her financial affairs were being managed by Boris, were satisfactory. The Tribunal dismissed Branka’s applications.

127. Anita returned to Sydney in December 2010. She said that she helped Branka support the deceased and frequently visited the deceased at Ruby Manor. She said that the deceased did not understand where she was or why she was in the nursing home and would try to leave with her visitors. When the deceased went to her daughter’s funeral at the end of June 2011, she had to ask who was in the coffin. In around July 2011, Anita and her family moved back to Queensland in accordance with arrangements that had previously been made. She continues to live in Queensland. Anita said that up until the deceased’s death in September 2015, she continued to telephone her and visit her but her mental faculties continued to decline.

Dealings with rent and other monies of the deceased

128. From September 2011 onwards, Boris made arrangements for rent from the Tallowood Crescent property to be paid into an account in the name of his son with another bank. These arrangements ceased at the end of February 2016. Boris’ evidence was that his son led him to believe that it would earn six per cent interest. Boris said he relied on his son’s advice and superior computer skills. Subsequently some re-payments were made by his son back to the account maintained by Boris in the deceased’s name. Boris said that these re-payments totalled approximately $34,000.

129. It appears that in some way not fully explained in the evidence, Boris may have been misled by his son. Boris said he thought his son had received in total more than had been repaid. He said he did not know how much was involved although he denied the suggestion it would be anything like $100,000. Boris has taken no steps to recoup these monies; of course, so long as the September 2007 will stands and Boris is the sole beneficiary of the estate, he has no obligation to do so.

130. On behalf of Anita, it was also suggested that monies had been withdrawn from the account maintained by Boris in the deceased’s name for Boris’ personal purposes. Boris denied this. He said, however, that there were accounting difficulties because he had sent some of the deceased’s financial records to Centrelink and to the Guardianship Tribunal and those records had not been returned.

131. At the hearing, counsel for Anita produced a “schedule for unaccounted funds” identifying challenge to transaction. The transactions from the deceased’s bank account up to 2015 totalled about $45,000. There were payments from the rental account between September 2011 and October 2013 totalling approximately $110,000. There were also payments and rent receipts in 2016 (after the deceased had died) totalling approximately $14,000.

132. In his affidavit, Boris apologised for mixing the rent receipts which belonged to his mother and her estate with his son’s monies. In cross-examination, Boris said that if the Court accepted Anita’s challenge to the September 2007 will, so that Anita became a beneficiary of the estate, he would follow his solicitor’s advice and cause any monies wrongfully paid out to be repaid.

Mr Taylor’s evidence

133. Mr Taylor’s affidavit was sworn in March 2017. At the time he prepared the deceased’s will in September 2007, he had been in practice for more than thirty years, having been admitted in 1974. He retired from practice in 2013.

134. In his affidavit, Mr Taylor said that he had no independent recollection of conferring with the deceased or drawing or engrossing any of the documents which he prepared for her to sign. He said he did recall attending a nursing home to confer with a resident of the nursing home and met with the resident’s son who had travelled from Brisbane to be present. He recalled that there were other people present, but did not recall who they were. He did not recall anything more about that meeting. Mr Taylor may have been recalling his visit to the deceased at the SWIAA Gardens nursing home, but if so, the recollection does not add to the evidence.

135. Mr Taylor said that he received instructions from many elderly clients to draw powers of attorney, appointments of enduring guardian and wills and had done so on numerous occasions. He said that it was his practice to attend on the client alone (or, if the instructions concerned wills being prepared for a couple, with the other member of the couple only). He said that in attending a hospital or nursing home, he would ordinarily draw documents in advance but only arrange for them to be executed if instructed to do so and satisfied that the client was properly able to give instructions.

136. Mr Taylor said that he was aware of the test of testamentary capacity in Banks v Goodfellow (1870) LR 5 QB 549. The relevant passage is set out in full at [174] below. It is sufficient for present purposes to say that the test includes three elements, which can be summarised as:

(1)   the capacity to understand the nature of the act of making a will and its effects;

(2)   an understanding of the extent of the property the subject of the will; and

(3)   the capacity to comprehend the moral claims of potential beneficiaries.

137. Mr Taylor said that he had regard to these elements, particularly in taking instructions from elderly clients. He said that his practice, if he had any reservations about whether a client satisfied the test in Banks v Goodfellow, was to make detailed notes of his discussions with the client. Occasionally, he would make a statutory declaration as well. The notes and any statutory declaration would be kept in safe custody with the will. No such documents were included in the safe custody packet with the deceased’s will.

138. Mr Taylor also said that it was his practice, if he thought there was a risk of a family provision claim being made against the client’s estate, to advise the client of the risk, and have the client sign a document acknowledging the advice provided and setting out as fully as possible the reasons for making the gifts or exclusions made in the will, which would also be retained in the safe custody packet. Again, no such document was prepared in this case.

139. Mr Taylor referred to the provision in the deceased’s will under which if Boris predeceased the testator, his children would receive his share, but there was no equivalent provision with respect to Branka. He said this was contrary to the clause he would normally include in the will. He said that, consistently with his practice, he would only have included the clause in the form in which it appears if specifically instructed by the deceased that she wished to exclude Branka’s child or children from sharing in the estate.

140. Mr Taylor’s evidence was challenged in cross-examination. But in my view it was unshaken, so far as it goes. I accept that Mr Taylor would have followed his usual practice in dealing with the deceased. There is nothing to suggest that Mr Taylor acted otherwise than in good faith and with proper vigilance for the deceased’s interests. In particular, I accept that Mr Taylor would have seen the deceased on her own to obtain instructions. The time stamps on the different pages of the will showed that it was prepared over a period of at least an hour and a half. That supports the view that proper instructions were received, and advice given, on its terms.

Medical evidence

141. The deceased underwent a CT scan of her brain in October 2006. It is common ground that the CT showed significant vascular disease in the brain consistent with dementia.

142. In his affidavit, Dr Beran described in detail the questions and answers in the MMSE which he conducted on 19 April 2007. He said:

7.   I said to the deceased, “What is the year, season, date, day, month?” The deceased was only able to tell me that it was “April” and was unable to tell me what the year, season, date or day it was. Accordingly, she scored 1 out of 5. This is an indication that she was disoriented in time.

Me:   Where are we? Name the state, country, town or city, suburb and number?

Deceased:   New South Wales, Australia, Sydney, Fairfield.

She was unable to tell me the number she was at and accordingly scored 4 out of 5.

8.   I then asked the deceased to name three basic objects on my desk. I cannot recall exactly what they were at the time as it could’ve been anything from a pen to a desk. The deceased scored 2 out of 3. We then carried out of the serial 7 test and the deceased’s response was, “100, 93, 86” but could not go any further and as a result she scored 3 out of 5. I said to the deceased, “Marija can you recall the objects that I pointed to a few minutes ago”. Marija said, “No” and accordingly she scored 0 out of 3.

9.   I asked the deceased to pick up a book in her right hand, pass it to her left hand and only using her left hand replace it on the desk. She was able to carry out this 3-stage command; however, when I asked her to read “Close your eyes” set out in bold type – and to follow the instructions she was unable to do so.

143. Although not referred to in Dr Beran’s affidavit, it appears from the note of the test result in evidence that the deceased was also able to repeat the sentence: “No ifs, ands or buts”. She was then asked to write a sentence. Although the interview was conducted in English, what she wrote was in Croatian. Translated, it means “I go home” or “I want to go home”. The deceased was then asked to copy a design of two overlapping pentagons which she did successfully.

144. The ACAT assessment contained information about the deceased’s mental state. This took the form of a list of various symptoms which could be marked “unable to determine”, “never”, “occasionally”, “regularly” and “always”. The deceased was reported as regularly having short term memory problems. She was reported as occasionally having long term memory problems; at risk behaviour; aggressive behaviour – verbal; delusions; depressive symptoms; confusion; and disorientation – time. She was recorded as never exhibiting aggressive behaviour – physical; wandering; disturbed sleep/insomnia; disorientation – place; and disorientation – people.

175. After I had reserved judgment, the Court of Appeal delivered its decision in Carr v Homersham [2018] NSWCA 65, a testamentary capacity case with some similarities to this one. Counsel for the parties lodged supplementary written submissions dealing with the effects of that decision.

176. The testatrix in Carr v Homersham was an elderly woman with no immediate family. She changed her will and cut out her niece in favour of a friend. When asked by her solicitor why she wished to make this change, she said that her niece had disgraced herself by making unfeeling comments about the death of the niece’s mother, the testatrix’s sister. According to what the testatrix told the friend whom she made her beneficiary, the niece said that her mother had been sick before her death and that she (the niece) had had to look after her. According to the testatrix, the niece said this had ruined her life. The testatrix told her friend that she had spoken to her niece about these comments and had had no further contact with her since. She also said that her niece did not need the money. There was also evidence of the testatrix’s beliefs, apparently unjustified, that the testatrix’s husband had been a paedophile and that another friend was trying to steal from her.

177. It was true that the testatrix’s niece was independently wealthy and a conflict had arisen following which there had been no contact between her and the deceased. But the trial judge found that there was no substance to the testatrix’s idea that her niece had made unfeeling comments about her mother. Rather, the conflict arose over enquiries the niece made on the deceased’s behalf about euthanasia. The testatrix’s niece told her that the Euthanasia Society could not help, and the deceased reacted angrily, saying that the niece should not have stood in her way.

178. There are a number of points of similarity between Carr v Homersham in the present case. A couple of months before making her will, the testatrix in Carr v Homersham recorded an MMSE test result of nineteen out of thirty, although the actual test results were not in evidence in that case; this compares with the results recorded by the deceased in this case of eighteen out of thirty in April 2007 and twenty-one out of thirty in June. As in this case, the testatrix in Carr v Homersham underwent an ACAT assessment which recorded frequent difficulties with memory and approved her for “low” level respite care. The testatrix had also, as in this case, been diagnosed with dementia, but, as in this case, the expert evidence was that this did not necessarily exclude testamentary capacity.

179. The Court of Appeal upheld the testatrix’s will. Separate judgments were given by Basten JA, Macfarlan JA and Leeming JA. There was no issue in the case about the first and second elements of the Banks v Goodfellow test; the case was argued around the third element. All of the members of the Court of Appeal agreed that it was not enough that the reason the deceased gave for excluding her niece was unjustified in fact. For the will to fail on the third element, the exclusion had to be attributable to a mental condition being suffered by the deceased, rather than a mistake or misunderstanding (at [14], [115]-[117] and [143]).

180. It is sometimes said, based on the decision of the High Court in Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67, that once a doubt is raised as to the existence of testamentary capacity it is necessary for the party propounding the will (in this case, Boris), to prove the testator’s mental capacity affirmatively. The question of onus was discussed by Basten JA in Carr v Homersham. His Honour said (at [47]):

To speak of there being a “doubt” as to testamentary capacity is to say little more than that a real issue has been raised on the evidence, which requires the resolution of the court. Unless such an issue has been raised, testamentary capacity need not be addressed; its existence will be presumed. Once the issue is raised, the court must resolve it; that must be done by a consideration of all the evidence and the inferences which may be drawn from it. It is true that the court must be affirmatively satisfied as to testamentary capacity, but in doing so, it should be alert to the fact that to find incapacity and thus invalidate a formally valid will is, in the words of Gleeson CJ, “a grave matter.” A doubt which does not preclude the probability that the testator enjoyed testamentary capacity cannot warrant a finding of invalidity.

181. Macfarlan JA, in the course of his judgment (at [119]), quoted the following passages from Banks v Goodfellow:

(at 567)   By the terms ‘a sound and disposing mind and memory’ [a phrase used in an earlier case] it has not been understood that a testator must possess these qualities of the mind in the highest degree; otherwise, very few would make testaments at all; neither has it been understood that he must possess them in as great a degree as he may have formerly done; for even this would disable most men in the decline of life; the mind may have been in some degree debilitated, the memory may have become in some degree enfeebled; and yet there may be enough left clearly to discern and discreetly to judge, of all those things, and all those circumstances, which enter into the nature of a rational, fair, and just testament.

(at 568)   [The testator] must have memory; a man in whom the faculty is totally extinguished cannot be said to possess understanding to any degree whatever, or for any purpose. But his memory may be very imperfect; it may be greatly impaired by age or disease; he may not be able at all times to recollect the names, the persons, or the families of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had before been asked and answered, and yet his understanding may be sufficiently sound for many of the ordinary transactions of life.

182. The members of the Court of Appeal also quoted different parts from a long passage in the judgment of Gleeson CJ in Re Griffith (decd); Easter v Griffith (1995) 217 ALR 284 at 290-291. Among other things, Gleeson CJ said (at 290):

This formulation of the onus of proof [in Worth v Clasholm], well established by authority and not in dispute in the present case, invites caution. The power freely to dispose of one’s asset by will is an important right, and a determination that a person lacked (or has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter. Where a testatrix exhibits florid symptoms of psychotic disturbance, such a conclusion may be reached relatively easily. However where, as in the present case, what is claimed is that a woman, who presented to the world an appearance of intelligence and rationality, had formed an aversion to her child so unfounded and unreasoning that it evidences an unsoundness of mind, the decision may be very difficult. … Nevertheless, difficult though its application may be in individual cases, the law treats as critical the distinction between mere antipathy, albeit unreasonable, towards one who has a claim, and a judgment which is affected by a disorder of the mind.

183. And at 291:

Where an alleged delusion concerns a fact, or state of affairs, bearing upon a judgment as to the moral claim one person has upon another’s bounty, and the question of its falsity is capable of objective determination, the task of the court is relatively straightforward. However, there may be cases in which one person’s estimation of another’s claims may seem harsh and unwarranted, and perhaps even unnatural, but it is impossible to assign a reason for that, or to point to any false belief. Testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of most ordinary members of the community, but that does not make the will invalid.

184. And also at 291:

In this area of discourse the concept of delusion is not restricted to false beliefs about objective facts (such as a husband’s belief that his wife is unfaithful). Delusion may also consist in, or involve, a value judgment where “the judgment is so extreme as to defy credibility”. …

In practice, however, it may be much easier to characterise a belief about a matter of objective fact as irrational and the product of a disorder of the mind than it is to characterise a value judgment as so extreme as to warrant the description of a delusion. The scope of difference of opinion about the character of other people, in particular, is so wide that great care needs to be exercised before concluding that a harsh or unreasonable judgment of another amounts to a delusion.

185. As I have stated, I accept that Mr Taylor followed his usual practice in dealing with the deceased when he prepared the will for her to execute on 10 September 2007. This means that the deceased would have seen Mr Taylor alone and Mr Taylor would have been sufficiently satisfied of her capacity not to make any note of his dealings with her. I also accept that the deceased must have taken the May will to Mr Taylor when she visited him on that occasion. I think it is clear that the deceased’s request to change the will came from her. The deceased must also have given specific instructions to Mr Taylor that Boris’ children would take his share if he predeceased her but that Anita was not to receive Branka’s share if Branka pre-deceased her.

186. Mr Taylor was an experienced solicitor who apparently detected no difficulties with the deceased’s testamentary capacity when he prepared her will. That, in itself, is valuable evidence which favours a finding upholding the will: Re Crooks Estate (Unreported, Supreme Court of New South Wales, Young J, 14 December 1994) at 29; Hamilton v Nelson [2012] SASC 219 at [13].

187. Given these considerations, I am satisfied that the deceased knew that she was making a will and knew what the effect of doing so would be. The first element of the Banks v Goodfellow test is satisfied. I am also satisfied of the second element. The deceased’s estate was simple; it consisted essentially of the Bossley Park property. The deceased exhibited disorientation in time, but not in place. She knew she had a home, and where it was. She appears to have operated her bank account and paid her bills without any assistance. There was nothing in the evidence to suggest that the deceased was unaware of the nature and extent of her property. As in Carr v Homersham, the case depends on the third element of the Banks v Goodfellow test.

188. The provision of the will which has led to the challenge to it was not a complicated one. All the deceased was required to do was contemplate the possibility that her children could predecease her, and to decide that Boris’ children would get his share but Anita would not get Branka’s. It cannot be suggested that the deceased was unaware of who Anita was and what the effect of the will would be on her, should Branka predecease the deceased. As in Carr v Homersham, the challenge must be based on the supposed irrationality of leaving Anita out.

189. Unlike Carr v Homersham, there is no direct evidence from the solicitor who prepared the will of the reasons given by the deceased for not including Anita. But the fact that the new will also reduced Branka’s share from sixty per cent to fifty per cent, as well as the events of the four months leading up to the making of the will, strongly suggests that the deceased reacted against the conduct of Branka and Anita in putting her into SWIAA Gardens against her wishes.

190. The only evidence directly concerning the deceased’s attitude towards Anita comes from Karen and Boris (above at [113] and [114] respectively). That evidence is limited in weight. Boris’ is self-serving and Karen could not be cross-examined on hers. The evidence is plausible but not decisive.

191. There was nothing unreasonable about Branka wanting to go away on a holiday. And, on the face of it, there was nothing unreasonable about Anita wanting to give priority to looking after her children, especially her newborn. But the reasonableness of Anita’s conduct is not completely clear on the evidence. Boris may have been correct in his perception that Anita refused to do anything at all, even refusing to act as a contact point, to allow the deceased to stay in her home while Branka was away. But even if that was not actually the case, and Anita’s position was misunderstood, this may be what the deceased thought. This is the way Boris presented it in his affidavit. Given the antipathy between Boris and Branka and Anita, he may well have given the deceased the same story.

192. The deceased’s wish to stay in her home may have been unreasonable and she may have overreacted to being placed at SWIAA Gardens. But the deceased was not wrong in perceiving that she had been placed there for the convenience of Branka and Anita, and that this had been done contrary to her wishes. The deceased would also have known that Anita had done nothing to help her, or, apparently, even to contact her, while she was there. On the evidence before the Court it would have been open to the deceased to think that if Anita had been prepared to help, she would have been able to stay at home. On that view, Anita could have been seen as more to blame than Branka. Whether this would have been fair, or even correct, does not matter. The decision to exclude Anita was not so irrational as to bespeak some form of animus against Anita which amounted to a “delusion” in the relevant sense.

193. There are also some general considerations which support the conclusion that the deceased had testamentary capacity. The deceased was also able to function in her own home for two years after she made the will. I do not doubt that she had episodes of forgetfulness but the fact remains that she was able to care for herself (with assistance from Vic and also, apparently, from Branka) and that included cooking, cleaning, shopping and driving a car.

194. There is also the absence of any evidence about the preparation of the May 2007 will. Initially Anita sought to propound that will, but it is easy to see the tactical difficulties which would be created for her position by trying to contend that her grandmother had testamentary capacity in May but had lost it by September. Proper solicitor’s practice would have required Ms Vukmirica, like Mr Taylor, to satisfy herself when she prepared the will that the deceased possessed testamentary capacity. As I have mentioned, an affidavit from Ms Vukmirica was in fact filed and she could have been asked about this had she given evidence. In my view it can be inferred that Ms Vukmirica’s evidence would not have assisted Anita’s case.

195. I have already set out at [153]-[163] above the opinion evidence from Dr Beran and Dr Rosenfeld on the third element of the Banks v Goodfellow test. Both doctors expressed the opinion that the element was not satisfied. Dr Rosenfeld in effect expressed that opinion twice. He first said, in answer to a question concerning the deceased’s likely appreciation of the merits of the claims on her estate, that she was unlikely to have been able to do so. Then when asked to consider specifically the relative merits of Boris and Branka, he expressed the view that she was likely to be able to appreciate their merits, but not those of her grandchildren. All of this evidence was admitted without objection.

196. In Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51, in discussing the evidentiary force of an admission of mixed fact and law, Gummow J quoted with approval (at [70]) the following statement by Glass JA in Grey v Australian Motorists & General Insurance Co Pty Ltd [1976] 1 NSWLR 669 at 676:

By extorting from a party an admission that he was negligent, or that he was not provoked, or that his grandfather possessed testamentary capacity, there is added to the record something which is, not merely of dubious value, but by definition valueless, owing to the witness' unfamiliarity with the standard governing his answer.

197. In my opinion, a similar problem arises for the purposes of s 79 where an expert witness is asked to express an opinion by reference to a legal test as it applies to the facts of the case. And it is not just a question of the witness not being familiar with the legal standard. Dr Beran apparently has a law degree. But it is not just the fact he gave his evidence as an expert psychiatrist rather than as a lawyer. Even if Dr Beran were a law professor, he cannot be an expert for the purposes of s 79 on the application of the law to the facts of this case. That is the Court’s task.

198. The only factual observation made or referred to by Dr Beran in support of his opinion on the third element in the Banks v Goodfellow was that he observed a good relationship between the patient and her daughter, Branka. How could Dr Beran’s four brief consultations between April 2007 and September 2009 possibly provide a proper foundation for this? But even if Dr Beran was right, this said nothing about whether the deceased might be suffering from some mental condition which lead to an animus against Anita.

199. For his part, Dr Rosenfeld saw Mr Taylor’s general practice, as described in his affidavit, as being “suggestive but not definitive” of the deceased having had testamentary capacity. The decisive matter for Dr Rosenfeld appears to be that the deceased did not refer to her grandchildren by names in their wills as well as the generalised evidence of cognitive impairment, memory dysfunction and “likely executive thinking impairment”. In his supplementary report Dr Rosenfeld also relied on the previous wills of the deceased which provided in conventional form for her children’s children to take their parents’ share in the event that they predeceased her. He said that “the significant change in distribution to her grandchildren in the event of her children predeceasing her was more likely than not a higher level reach that she would not have obtained”.

200. I acknowledge that there is room for debate about the issue. But I have already explained why I do not agree with these views. To my mind, the very fact that the deceased made a distinction between Boris’ children and Branka’s child, Anita, in writing her will suggests that she did bring reasoning to bear on the question. The fact that previous wills did not make the distinction is meaningless if, as I have suggested, the decision to exclude Anita could have been a reaction to the way she had behaved, or was supposed by the deceased to have behaved, in connection with the deceased’s involuntary admission to SWIAA Gardens. The events surrounding the admission were not the subject of instructions to Dr Rosenfeld. This was quite understandable but it underlines the point that Dr Rosenfeld’s conclusion was not a matter of scientific reasoning.

201. The difficulty with an expert expressing a conclusion on a mixed question of fact and law is that the expert’s opinion may ultimately depend upon an understanding of the legal principle, perhaps unstated, which is incorrect; or upon a view of the facts which is not congruent with the findings ultimately made by the Court; or both. In my view, the opinions in this case are prime examples of this. I have seen and analysed the whole of the evidence in this case, which Dr Beran and Dr Rosenfeld have not. I have also had the advantage of the decision in Carr v Homersham which had not even been delivered at the time they wrote their reports and gave evidence. I have also had the assistance of submissions from both counsel on the legal and factual issues in the case. In my view, the opinions of Dr Beran and Dr Rosenfeld do not assist in resolving the question of the deceased’s testamentary capacity.

202. To say this is not to reintroduce the “ultimate issue” rule which was abolished by the Evidence Act, s 80. Section 80 only provides that evidence otherwise admissible is not rejected because it goes to the ultimate issue. It does not make opinion evidence on the ultimate issue admissible if it does not otherwise satisfy the requirements of s 79. In any event, the evidence in the present case was admitted; it is just that I think that it has no weight in the circumstances of the case.

197. This is not to say that expert evidence is of no use in a case such as this. On the contrary. Scientific evidence of a general nature as to the workings of the human mind may be very useful to the Court in applying the legal test of testamentary capacity to the particular facts of the case. But that evidence needs to be carefully confined to factual matters on which the Court may draw to resolve the dispute, rather than offering the expert’s own conclusion on what the answer should be. There was some evidence in this case of that character but there could have been more. For instance, evidence which explained in general terms, what cognitive processes and what memory functions were needed to make a valid distinction between competing beneficiaries, and evidence as to the deceased’s particular mental difficulties based on specific answers given in her MMSE tests, might well have been of considerable assistance to the Court.

198. I have considered whether it is unfair to Anita for the Court not to accept a conclusion which was effectively common ground between the experts in the case. But I do not think the Court can be required to act on a basis that it thinks is incorrect simply because the parties’ experts have agreed. Had an admission been made on the pleadings that the deceased lacked testamentary capacity at the time, the Court may have acted on it (cf Dovuro v Wilkins at [69]). But no such admission was made. At the end of the case counsel for Boris maintained, despite Dr Rosenfeld’s opinion, that testamentary capacity was established. In those circumstances, I think the Court must act on its own view of the law and facts.

199. For these reasons, I find that there is insufficient doubt that the exclusion of Anita resulted from some form of mental incapacity. Boris has established that the deceased had sufficient mental capacity when she signed the September 2007 will.

200. The result in the case exposes what might be thought to be a gap in the law. A will is not invalidated even if the testamentary decision was based on a misunderstanding or mistake which the Court is satisfied was clearly wrong. It is only invalidated if the testator’s mental state was such that the mistake or misunderstanding could not have been corrected by rational argument. Many mistakes and misunderstandings which arise in family life are ones which could be corrected, but there may never be an opportunity to correct them while the testator is alive and has testamentary capacity. Where relief by way of family provision is available under Chapter 3 of the Succession Act, such a mistake or misunderstanding on the part of the testator could readily be used as a basis for challenge. But that is not this case. Anita may feel that she was unreasonably treated by her grandmother, but if so, the law of testamentary capacity does not provide the answer.

Failure to account for rent

207. My conclusion on testamentary capacity means that the will stands and Anita has no standing to seek an account from Boris concerning his dealings with his son over the rental income paid to Boris’ son.

208. If I am wrong in this view, I still would not order an account at this stage. Boris indicated that should he be unsuccessful in the proceedings he would take appropriate steps to account for the rent, to the extent it had not been properly accounted for already. It is not clear how much is involved. In a case such as this, the Court should allow the lay executor an opportunity to fix up the administration before imposing expensive formal accounting procedures.

Conclusions and orders

209. I have concluded that Anita’s challenge to the will fails. Anita’s claim will be dismissed and in consequence Boris’ cross-claim will also be dismissed. I will hear the parties on costs if that is necessary.

210. The orders of the Court are:

1.   Order that the plaintiff’s claim be dismissed.

2.   Order that the cross-claim be dismissed.

3.   Direct that the defendant, within 21 days, bring in proposed orders dealing with the costs of the proceedings. If the orders are not agreed, there is to be a further hearing on the question of costs on a date, and in accordance with directions, to be arranged with my Associate.

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Amendments

23 November 2018 - Corrected minor typographical errors.

24 November 2018 - Fixed formatting issues.

04 April 2019 - correct minor typographical errors

Decision last updated: 04 April 2019