Erem v Moussa - [2024] NSWSC 641

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Erem v Moussa [2024] NSWSC 641
Hearing dates: 5–15 and 21 March 2024
Date of orders: 15 October 2024
Decision date: 15 October 2024
Jurisdiction: Equity - Succession & Probate List - Probate
Before: Richmond J
Decision:
See [301]–[304]

Catchwords:
SUCCESSION — Contested probate — Testamentary capacity — Application of test in Banks v Goodfellow — Whether deceased suffering from delusions that affected the provisions of the will
SUCCESSION — Probate and administration — Rectification of wills
SUCCESSION — Family provision — Claim by de facto partner of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether inadequate and proper provision made for the plaintiff and, if so, the nature and quantum of the provision to be made
LAND LAW — Co-ownership — Severance of joint tenancy
EQUITY — Trusts and trustees — Resulting trusts
ESTOPPEL — Proprietary estoppel — Encouragement

Legislation Cited:
Evidence Act 1995 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)
Real Property Act 1900 (NSW)
Succession Act 2006 (NSW)

Cases Cited:
Banks v Goodfellow (1870) LR 5 QB 549
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13
Calverley v Green (1984) 155 CLR 242; [1984] HCA 81
Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65
Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392
Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 886
Crago v McIntyre [1976] 1 NSWLR 729
Crouch v Hooper (1852) 16 Beav 182; 51 ER 747
Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84
Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218
Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15
Et-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24
Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17
Gooley v Gooley [2020] NSWSC 798
Gooley v Gooley [2021] NSWSC 56
Goyal v Chandra [2006] NSWSC 239; (2006) 68 NSWLR 313
Hamill v Wright [2018] QSC 197
Henderson v Executor Trustee Australia Ltd (2005) 93 SASR 337; [2005] SASC 477
John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451
Jones v Dunkel (1959) 101 CLR 298
Kramer v Stone (2023) 112 NSWLR 564; [2023] NSWCA 220
Moore v Aubusson [2020] NSWSC 1466
Perochinsky v Kirschner [2013] NSWSC 400
Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275
Priestley v Priestley [2017] NSWCA 155
Q(a pseudonym)v E Co (a pseudonym) (2020) 383 ALR 469; [2020] NSWCA 220
Re Estate of Griffith; Easter v Griffith (1995) 217 ALR 284
Re Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547
Re O’Neil, (dec’d) [1972] VR 327
Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19
Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17
Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114
Sutton v Sutton [2009] EWHC 2576
Tarbes v Taleb [2023] NSWSC 565
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Watson v Foxman (1995) 49 NSWLR 315
Zorbas v Sidiropoulous(No 2) [2009] NSWCA 197

Texts Cited:
B Edgeworth, Butt’s Land Law (7th ed, 2017, Lawbook Co)
J D Heydon, Cross on Evidence (13th ed, 2021, LexisNexis),

Category: Principal judgment
Parties: Ali Erem (Plaintiff/Cross-defendant)
Marcel Aziz Moussa (also known as Marcel Aziz Alnabulsi) (First Defendant/Cross-claimant)
NSW Trustee and Guardian (Second Defendant)
Representation:
Counsel:
K Morrissey / M Short (Plaintiff)
P Bates (First Defendant)
Solicitors:
Turner Freeman (Plaintiff)
City Lawyers and Consultants (First Defendant)

File Number(s): 2016/00313069
Publication restriction: Nil

JUDGMENT

These proceedings concern a dispute between the plaintiff, Mr Ali Erem (the plaintiff or Ali) the de facto spouse of the late Ms Mary Moussa (the deceased or Mary), who died on 23 October 2015, and the first defendant, Ms Marcel Aziz Moussa (Marcel), a sister of the deceased and a beneficiary under each of the deceased’s wills made in 1993, 2014 and 2015. Ali challenges the validity of the wills made in 2014 and 2015, on the basis that the deceased did not have testamentary capacity. He initially challenged the 1993 will but abandoned that claim during the hearing.
Ali also contends that the deceased did not have the mental capacity as at 30 October 2014 to sever the joint tenancy of a property at 6 McPherson Street, Carlton, New South Wales (McPherson St property), which she jointly owned with him, and brings a claim that if the severance was effective the deceased, and her estate, are precluded under the principles of equitable estoppel from severing it. Ali also brings, in the alternative, claims for a resulting trust in respect of the property and a claim under s 59 of the Succession Act 2006 (NSW) that whichever will is admitted to probate, it does not make adequate provision for him.
On 13 December 2017, the Court appointed the plaintiff as administrator pendente lite of the personal estate and receiver of the real estate of the deceased until a grant of administration is made or further order of the Court, with limited powers.
The NSW Trustee and Guardian, which is named as the executor and trustee under the 1993 will, has filed a submitting appearance and took no part in the proceedings. It has indicated its willingness to act as executor if the 1993 will is the only valid will.
During the hearing the parties referred to the plaintiff, the deceased and members of her family by their first names, and I will mostly do so in these reasons, without meaning any disrespect or overfamiliarity.

Issues

The issues for determination are as follows:

Whether Mary had the requisite testamentary capacity at the time she signed the 2015 will or the 2014 will;

Whether Mary lacked the requisite mental capacity to sever the joint tenancy with Ali of the McPherson St property;

If the joint tenancy was severed, whether the defendants are estopped by the conduct of Mary from denying that Ali is the legal owner of the McPherson St property;

If the defendants are not estopped, whether Ali has a resulting trust over Mary’s share of the McPherson St property;

If the 2014 will is held to be valid, should it be rectified pursuant to s 27(1) of the Succession Act;

In the alternative, whether an order for provision pursuant to s 59 of the Succession Act should be made in favour of Ali.

Witnesses

Plaintiff’s witnesses

Ali, the plaintiff, made eight affidavits and was cross-examined for a little over two days. No challenge was made to his credit. I formed the view that Ali had a good recollection of the key events, and sought to give truthful and accurate evidence. While I recognise that he has a degree of self-interest, particularly in relation to his evidence of his conversations with Mary, I regard him as a reliable and honest witness.
Ali called the following lay witnesses who had been friends of the deceased who each made one affidavit: (a) Dule Baturan and his wife, Velenka Vanovac, each of whom had known Mary since around 2008; (b) Birsen Erem, the sister of Ali, who had known Mary since 1987; (c) Laurette Refalo who knew Mary in the period from around 1993 to late 2013; (d) Julie Knox (Ms Knox), who had known Ali and Mary since the early stages of their relationship being a close friend of Ali’s family and was the manager of the nursing home where Mary resided at the end of her life. Of these witnesses, only Birsen Erem and Laurette Refalo were cross-examined and then only briefly. They gave uncontroversial evidence regarding their relationship with Mary. I accept them as reliable and honest witnesses.
Ms Knox had passed away on 18 October 2020 and therefore was unavailable to give evidence. As a notice was given under s 67 of the Evidence Act 1995 (NSW), it was not in dispute that Ms Knox’s affidavit was admissible hearsay evidence pursuant to s 63 of the Evidence Act.
In addition, the following medical practitioners were called by Ali, each of whom was cross-examined:

Dr Elizabeth Hovey (Dr Hovey), Senior Staff Specialist in the Department of Medical Oncology at the Prince of Wales Hospital, who was Mary’s treating oncologist from July 2014 to August 2015,

Dr Brindha Shivalingam (Dr Shivalingam), neurosurgeon, who treated Mary from March to July 2015.

They each gave careful and truthful evidence.

First defendant’s witnesses

Marcel gave evidence by her two affidavits. She was not cross-examined.
Marcel has three children, Sandra Alnabulsi, Anmar Nabolsy and Nawras Alnabulsi. They each gave evidence by affidavit, but none was cross-examined.
These witnesses gave evidence about their relationship with Mary over many years. None of them has visited Australia and all had limited dealings with Mary in the critical period from May 2014 to her death. While I have carefully considered their evidence, I have found it to be of limited assistance in determining the issues in this case.
Mr Timothy Young (Mr Young), the solicitor who prepared Mary’s 2014 will and Mr Robert Windeyer (Mr Windeyer), the solicitor who prepared Mary’s 2015 will, each gave evidence by affidavit and was cross-examined. Also, the two other attesting witnesses for these wills made affidavits, one of whom, Ms Scholtz, was cross-examined. They each gave careful and truthful evidence.

Jointly appointed experts

Pursuant to orders of the Court made on 24 February 2022, the following experts were jointly engaged by the parties (neither of whom had met Mary):

Dr Noel Saines, a consultant neurologist; and

Dr Robert Fisher, a consultant psychiatrist.

Each of them provided an expert report and was cross-examined.

Approach to evidence

Much of the evidence in this case comprised the recollection of the plaintiff and other witnesses of conversations and dealings which occurred many years ago, including with Mary who obviously is not available to give her version of those events. I have borne in mind the well-known observations of McLelland CJ in Eq regarding the fallibility of human memory in Watson v Foxman (1995) 49 NSWLR 315 at 318:

… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

The fallibility of human memory and the risk of reconstruction rather than recollection of past conversations, is particularly acute in circumstances where the relevant witnesses have been in litigation on the matters about which they give evidence. In Crouch v Hooper (1852) 16 Beav 182 at 184-185; 51 ER 747 at 748, Sir John Romilly MR said:

It is matter of frequent observation that persons dwelling for a long time on facts, which they believe must have occurred, and trying to remember whether they did so or not, come at last to persuade themselves that they do actually recollect the occurrence of circumstances of which, at first, they only begin by believing must have happened. What was originally the result of imagination becomes in time the result of recollection…

Black J referred to the need to bear in mind a witness’ motives and the overall probabilities in Re Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7] as follows:

I have had regard, in assessing the evidence, to the fact that witnesses were giving evidence (and in the case of Mr Conomos, a director of Gestion, setting out lengthy conversations in direct speech) of discussions in late 2010 and 2011. It is important in this context to have regard to the fallibility of human memory which increases with the passage of time, particularly where disputes or litigation intervene: Watson v Foxman (1995) 49 NSWLR 315 at 318-319 per McLelland CJ in Eq; Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) [2008] FCA 810 at [41] per Rares J; Varma v Varma [2010] NSWSC 786 at [424]-[425] per Ward J. To the extent that credit issues need to be determined in respect of particular conversations, I have also had regard to the fact that objective evidence is likely to be the most reliable basis for determining them. I summarised the relevant principles in Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 at [10], where I noted that the credibility of a witness and his or her veracity may be tested by reference to the objective facts proved independently of the testimony given, in particular by reference to the documents in the case, by paying particular regard to the witness’s motives and the overall probabilities: Armagas Ltd v Mundogas SA [1985] 1 Ll R 1 at 57; Camden v McKenzie [2007] QCA 136 ; [2008] 1 Qd R 39 at [34]; Craig v Silverbrook [2013] NSWSC 1687 at [141]; State of New South Wales v Hunt [2014] NSWCA 47 at [56].

The following observations of Hammerschlag J (as his Honour then was) in John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 at [94]-[95] are of particular relevance to the plaintiff’s estoppel claim:

Where a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence. … Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences …
The sensation of feeling an actual persuasion, after a contest, that an event has happened or that something exists is one which is well known and recognised by experienced trial judges for what it is.

I have also borne in mind that:

Reliable contemporaneous documents generally furnish the most reliable source of evidence as to what occurred or, at the very least, provide a generally reliable reference point from which to assess the reliability of witness testimony: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15 at [15]-[16]; Et-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24 at [25]-[29] (and cases there cited);

In a claim based on communications with a deceased person the Court will treat uncorroborated evidence of such communications with considerable caution, and will regard of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available: see Eggins v Robinson [2000] NSWCA 61 at [26].

When the law requires the proof of any fact the Court must feel an actual persuasion of its occurrence or existence before it can be found, and ‘it cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality’: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, per Dixon J at 361.

While the affidavit of Ms Knox, who died before the hearing, was read without objection, it needs to be discounted to take into account the fact that she was not cross examined. The degree to which it will be discounted depends on various factors, including the circumstances that lead to cross-examination being dispensed with, the nature of the evidence and its centrality and degree of significance to the case. The degree of discount appropriate will be judged according to all the circumstances of the case: Re O’Neil, (dec’d) [1972] VR 327 at 333; Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 886 at [5]; Fulton v Fulton [2014] NSWSC 619 at [111].

Having regard to these principles, I will give greatest weight to the contemporaneous documents, other objective factual surrounding material and the inherent probabilities and improbabilities.

Factual Chronology

The deceased was born in Cairo, Egypt on 15 December 1948 (as recorded on her Australian passport). She had two sisters, Marcel (the first defendant, who is also known as Marcel Aziz Alnabulsi) and Ms Madeline Moussa (Madeline). Each was named as a beneficiary under Mary’s 1993, 2014 and 2015 wills. At all relevant times, Marcel has lived in Damascus, Syria, which is her place of residence. Madeline emigrated to Australia in 1973 and lives in Sydney.
The deceased emigrated to Australia in 1970 with her then husband, Mr Tadros Helmi. The deceased and Mr Helmi were divorced by the time she met Ali in 1986. Ali was born in Cyprus on 14 August 1950 and emigrated to Australia in April 1970. He had a previous marriage that commenced in 1982 and ended in divorce in 1987 following a separation in 1985. In 1986, he obtained accreditation as a Turkish/English language interpreter. He has in the past been employed in a number of positions with the Department of Social Security and the Department of Immigration, and at the time of the hearing was working part-time as an interpreter.
Ali and the deceased commenced living together in around May or June 1990 partly at his home at 47 Veron Street, Wentworthville and partly at her unit located at 14/22-26 Garfield Street, Carlton NSW, where he still resides (Garfield St property). They commenced living full time together at the Garfield St property in 1998. There is no dispute that the plaintiff and the deceased were living together in a de facto relationship from around 1990 until her death in October 2015 with the Garfield St property as their home since 1998. In around 1991 Mary became pregnant but she suffered a miscarriage. Ali was the father.
Ali’s evidence is that he lived with the deceased for the majority of their relationship in the Garfield St property and for most of their relationship, he paid most of their living expenses. Mary had difficulties with English, and could not read or write English well, especially when the language was technical. She did not complete any tertiary education in Egypt or Australia and the roles she had in the workforce were unskilled (initially at Kodak as an operator packing prints of photographs for around 10 years, and later as a sales assistant in retail, including latterly at Target). Ali’s evidence is that throughout their relationship he dealt with anything complex that needed writing on her behalf.
Mary executed a will on 30 June 1993 (the 1993 will) in the presence of two witnesses. Under that will she revokes her previous wills, appoints the Public Trustee as the executor and trustee of her estate and makes the following dispositive gifts:

gives the Garfield St property to her sister Marcel with a gift over, if Marcel does not survive her by one calendar month, to Marcel’s children, Sandra, Nawrasa and Enmar (cl 1);

gives another property, 18/42 President Avenue, Kogarah, New South Wales (Kogarah unit) to her sister Madeline (which property was sold by the deceased in 2006) with a gift over if Madeline does not survive her by one month, to Madeline’s children, Sharon (or Sherin) and Steven (cl 2);

gives the residue of her estate to Madeline with a gift over, if Madeline does not survive her by one month, to Marcel (cl 3).

The reference in this will to the appointment of the Public Trustee is to be read as a reference to the NSW Trustee and Guardian: see paragraph 3(1)(d) of Schedule 1 to the NSW Trustee and Guardian Act 2009 (NSW). By paragraph 11 of Schedule 1 to that Act, the NSW Trustee and Guardian is to be taken, for all purposes, to be a continuation of the Public Trustee. The NSW Trustee and Guardian is constituted as a corporation by s 5 and has the status of a NSW government agency by s 6 of the NSW Trustee and Guardian Act.

There is no clear explanation in the evidence for why Mary made no provision for Ali in this will, but the likely explanation is that their relationship was in its early stages at that time, and she wished to benefit her sisters. Ali did not know about this will until after Mary’s death and had during their relationship assumed that Mary did not have a will.
In August 1993 Mary went to Egypt and the Middle East for a holiday, without Ali. She stayed in Damascus with her sister, Marcel, for around three months. Marcel deposes that she and Mary had a ‘special relationship’, as Mary was the only member of her family who kept in contact with her after she married her husband, Mamoun Analbusi, who was from a different religion. Mr Analbusi died in 2017.
Mary visited Marcel’s family again in 2002, staying for around two months, in order to support Marcel who was having treatment for breast cancer and to attend the university graduation of Marcel’s daughter, Sandra. She remained in regular contact with Marcel and members of her family (principally Sandra) for the rest of her life, by telephone and short emails as she did not visit them again. The war in Syria, which commenced in 2011, made it impractical for her to visit Marcel or for Marcel to come to Australia from that time. Sandra deposed that the first time she or Marcel became aware that Mary was in a relationship with Ali was when Mary told Sandra that in late 2014. Mary made some financial contributions towards the education of two of Marcel’s children, Sandra and Anmar. There are a number of emails in evidence from Mary to Marcel and Sandra in the period 2010 to 2014 which display Mary’s affection for them both. Ali deposed that he sent these emails after typing them on his computer to record what Mary told him to say, as Mary did not have the English language or typing skills to do so herself. I accept Ali’s evidence on this.
In around 2001, Mary was diagnosed with breast cancer, resulting in surgery and chemotherapy.
Throughout her relationship with the plaintiff, the deceased had a number of workers compensation claims against Kodak, her previous employer, and subsequently against Target where she worked from around 1995 until 2010 when she was dismissed. Her solicitor for the latter matter was Mr Timothy Young, who later prepared a will for Mary in 2014.
Ali deposed that in 2001 Mary expressed an interest in buying jointly with Ali a house at 25 McPherson Street, Carlton to be their permanent home. They inspected the property and liked it, but due to her treatment for her breast cancer decided not to pursue it. Over the next six years they continued to look for properties in the same area and had discussions about how they would fund the purchase. Mary told him that she would sell her unit at 18/42 President Avenue, Kogarah (the Kogarah unit referred to in her 1993 will) and use the sale proceeds as her contribution and he would have to pay the rest of the purchase price and the expenses. Ali deposed that he undertook various repair and maintenance work to upgrade the Kogarah unit which was ultimately sold in April 2006.
In early November 2007 Ali had a heart attack requiring hospitalisation for four or five days.
On 17 November 2007, Ali and Mary attended the auction of the McPherson St property which was close to the Garfield St property where they lived. They both wanted to buy it. Ali deposes to a conversation with Mary before the auction started in which they discussed the maximum they could pay, which was $650,000, with Mary saying that all that she could contribute was $290,000. They then had a conversation to the following effect:

Ali: This will be our permanent home. I will have to sell my house in Wentworthville. So if we buy this its forever.
Mary: Yes, its forever. I want it. This will be yours and mine. I put money in, you put money in, we fix it up because it’s old. If you die its mine, if I die its yours.

Ali bid at the auction but was unsuccessful. An hour later he was contacted by the agent and told that the first buyer had reneged and was offered the property. After discussing it again with Mary who said that she wanted it, Ali paid the deposit in part that day and the balance by bank cheque on the following Monday, 19 November 2007. The purchase price under the contract, which is dated 19 November 2007, was $700,500. Settlement occurred on 10 March 2008, at which time title to the property was transferred to them as joint tenants.
I am satisfied on the evidence that:

Ali paid the deposit of $70,050.

Mary contributed a total amount of $287,000 towards the purchase price and stamp duty on the contract of $27,014.50 (most likely sourced from her sale of the Kogarah unit). Ali subsequently reimbursed Mary for the stamp duty in January 2010 by a payment to her of $30,000 by bank cheque (which was slightly more than the amount she had originally paid to take account of interest in the interim).

Ali and Mary entered into a loan agreement with Citigroup Pty Ltd (Citibank) under which Citibank lent to them as joint borrowers the amount of $375,000 to pay the balance of the purchase price, and other costs associated with settlement of the mortgage.

Ali paid the costs and disbursements of Willis & Bowring, the solicitors acting for him and Mary on the purchase, amounting to $2,040.10.

All interest on the Citibank loan was paid by direct debit to Ali’s bank account with St George Bank, totalling $43,937.10. In November 2009, after Ali had sold another property he owned at 45 Veron St, Wentworthville, he paid $378,761.40 to Citibank from the proceeds of sale to discharge the loan in full. In addition Ali paid other amounts in respect of the property: $510.34 for insurance, $1,438.10 for land tax and $1,580 for the cost of renovations and maintenance.
The decision that Mary and Ali made that they would hold title to the McPherson St property as joint tenants was a considered one. Ali deposed to a meeting (in around late November 2007) with Ms Sharon Edwards, a licensed conveyancer who was employed by Willis & Bowring, their solicitors, at which she explained to them both the difference between tenants in common and joint tenants. She also sent to them for their signature a document entitled ‘Instructions on Tenancy’ in which they elected which alternative was to apply. They subsequently signed that document on around 2 December 2007, electing to take the title as joint tenants.
The ‘Instructions on Tenancy’ document describes the two different forms of co-ownership as follows:

JOINT TENANTS own the property jointly and equally and if one dies the property automatically passes to the remaining owners. It is usual for couples to own property in this manner. There can be any number of owners of the property holding in this manner, however, if it is not a couple owning the property you may consider holding as tenants in common.
TENANTS IN COMMON is usually by people buying investment property or if for some reason they want to own the property in equal or unequal shares. If any of the owners should die their share goes to whoever inherits their estate. There can be any number of owners and the shares may be divided however the owners require.

And then goes on:

To: Sharon Edwards
Willis & Bowring
575 Kings way
MIRANDA NSW 2228
We acknowledge that we have read the above and understand the nature and effect of the manner in which we wish to hold the property at 6 McPherson Street, Carlton being the land held in Certificate of Title Folio Identifier 55/2818 and instruct you to draw the transfer to the land in our names as joint tenants/tenants in common in equal shares (if unequal shares please specify).

Their signatures appear underneath that paragraph. The words ‘joint tenants’ are circled.
Ali deposes to conversations with Ms Edwards in the meeting and then with the deceased subsequently in which they discussed which form of co-ownership would apply. I am satisfied from this evidence, and her signature on the Instructions on Tenancy document that Mary understood the significance of acquiring title as a joint tenant and intended to do so.
I also accept Ali’s evidence that at the time of the purchase, both he and the deceased intended that the McPherson St property would become their home after some renovations were done to it. On 3 January 2008, they each signed an application for exemption from mortgage duty which stated that ‘we [live/proposes to live] in the property’. Ali deposes to conversations from around 2006 in which they each said they would sell other properties which they owned (in her case, the Kogarah unit and in his, his home in Veron Street, Wentworthville) to fund the cost of purchasing a property to be their home. Also, Laurette Refalo gave evidence that Mary told her about the purchase of the property in November 2007 and took her and her husband to see it in April 2008, from which I infer that, at that time, she still contemplated living there with Ali.
Ali’s affidavit evidence, on which he was not cross-examined, was that he had several conversations with Mary at this time, in which she said words to the effect that the McPherson St property would pass to Ali upon her death: see [37] and [250]. This was the foundation of his case on estoppel.
Ali also gave evidence from the time of its acquisition, that he paid most of the outgoings of the McPherson St property and also undertook repairs and maintenance on the property, including repairs to the ceilings, cornices, walls, windows and floors, painting the walls, at various times.
In 2010, the deceased was dismissed from her employment at Target. She brought an unfair dismissal claim against Target, and also made a workers compensation claim arising out of an injury she suffered as a result of a fall on the way to work in 2009. Mr Timothy Young was the solicitor who acted for her in relation to these matters. She was unsuccessful in her unfair dismissal claim but did receive payments from WorkCover and under her insurance policy for her injury. She did not work again after 2010.
On 29 May 2014, Mary was diagnosed with stage four glioblastoma, a form of brain cancer and was told by her surgeon, Dr Bernard Kwok, that her life expectancy was likely to be between 18 months and three years. Prior to this diagnosis, Ali viewed Mary as fit and healthy, and expected her to outlive him. On 4 and 11 June 2014, the deceased underwent two operations performed by Dr Kwok to remove the tumour and from that time commenced a course of chemotherapy. Mary’s treating oncologist was Dr Elizabeth Hovey, who gave evidence in these proceedings and provided a report on 10 November 2016.
On 11 July 2014, Mary had her first consultation with Dr Hovey who reported that:

Mary appeared to be very agitated and frustrated about the diagnosis. She worried about her life and became quite emotional and teary when she was unable to perform calculations. She was repetitively asking why she has developed this disease as she has ‘done nothing wrong, never been bad to others’. Her partner (Ali) stated Mary is having problems with sleep.

Dr Hovey’s report summarised her physical examination of Mary as follows:

Her immediate recall was 3/3 and short term recall was 2/3 (but with prompting 3/3). She was unable to count the months of the year backwards correctly with three attempts. Calculations of serial 7 were incorrect with two attempts. With three step commands, the first attempt with folding paper was 2/3; second attempt with pointing direction was 3/3. There was no evidence of nominal dysphasia. Her cranial nerve neurological examination was unremarkable. Her upper limb neurological examination showed normal tone, power, reflexes and tactile sensation. But there was evidence of tactile sensory neglect. As Mary became quite distressed during the examination, the rest of the examination was stopped.

Later in the report is an addendum which states that on 15 July 2014, Mary was reviewed by the consultation liaison psychiatry team, during which it was observed that Mary ‘appeared to be using defensive strategy of repression or possible denial as her coping mechanism.’
On 13 August 2014, Mary had her next consultation with Dr Hovey, who recorded in her report that (emphasis added):

She has very unusual ideation and has also been very aggressive to her husband, Ali, including abusing him publicly and blaming the entire fact of developing a brain tumour on him (telling him that his anxiety disorder caused her stress, which caused her cancer).

Dr Hovey reports on her physical examination of Mary relevantly as follows:

Only able to list three months sequentially when going backwards from December; able to list the months of the year forwards without problem; unable to perform any serial 7 calculations; able to perform one serial 3 calculation after making one error (which she self corrected).

On 22 August 2014, Mary had another consultation with Dr Hovey, who reported on her physical examination of Mary relevantly as follows:

… able to complete one serial 7, able to complete four months backwards, but 12 months forwards, power, reflexes and sensation were unremarkable. No diplopia, no neglect.

Dr Hovey’s report of this consultation includes an addendum which refers to an incident occurring on 27 August 2014 in the radiotherapy department of Price of Wales Hospital as follows (emphasis added):

Dr Hovey and I were called to see Mary on 27 August 2014 in the radiotherapy department after she had a violent altercation with her husband (Ali), culminating in her scratching him. She feels that the episode was only partly her fault but was very embarrassed and apologetic for her actions. She agrees that her behaviour was very out of character. There was no evidence of disordered thoughts or psychosis on mental state examination. Mary and Ali were able to resolve their dispute. Mary has agreed to start Pregabalin as suggested by Dr Sharma, and will follow up with him in the coming weeks.

On 22 August 2014, Mary met with Dr Swapnil Sharma, a psychiatrist at Prince of Wales Hospital together with Ali. Dr Sharma reported on the consultation in an email to Dr Hovey (who had requested the review by Dr Sharma), including the following observations regarding Mary (emphasis added):

Mary is currently presenting with anxiety symptoms that commenced a month or so following her diagnosis. She appears to hypervigilant to adverse cues in her environment, gets easily upset and at times agitated and struggles to sleep at times. These physiological symptoms of anxiety appear to be fairly constant though Mary reports noticeable improvement since she stepper Kepra last week.
There are a number of reasons for Mary’s anxiety. From a biological perspective, Kepra was a contributory factor and has now been ceased. Low dose corticosteroids could be perpetuating this state of hyperarousal. In addition, Mary’s cognitive reserves have been depleted as a result of her disease and treatment effect. This would also impact on her ability to process and cope with difficult emotions and situations.
Psychologically, Mary presents as someone who strongly focussed on being ‘always resilient and strong’ and perhaps relied on manic defensive manoeuvres. Vulnerable emotional states was usually dismissed and denial and avoidance were deployed during difficult periods. Unfortunately, her current situation does not allow her to use her usually defensive structures.
Socially, Mary and Ali’s relationship appear to be fairly strained at this stage. Mary describes Ali as ‘completely different person from me’. The significant role change in the dyad appears to have caused emotional misattunement and Mary often feels invalidated in the relationship. Having said that, she finds Ali to be fairly supportive and appreciates his ongoing support.
Other important aspects of Mary’s history that might be predisposing factors include work-related injury 4 years back resulting in loss of employment, loss of parent at a young age and being a first generation migrant.
Impression: Adjustment disorder with anxiety symptoms of multifactorial etiology.

The reference to an ‘adjustment disorder’ was to the fact that Mary was adjusting to her diagnosis of an incurable illness with a short prognosis by displaying grief and anxiety. Dr Fisher explained in cross-examination that to qualify as a ‘disorder’, the condition had to be out of proportion to the nature of the stress which caused it.
Dr Sharma saw Mary twice again in September 2014, with Ali present, and recorded his observations on Mary’s mood and behaviour in emails to Dr Hovey as follows (emphasis added):

on 5 September 2014:

I met with Mary and Ali today for around 60 minutes.
Overall, Mary’s mental state appears to have worsened in the last 2 weeks.
Mary acknowledged feeling more dysphoric and anxious though appeared to be blaming Ali for this deterioration. She was more irritable and teary during our session. She was fairly concrete in the interview and lost temper on Ali on several occasions. Mary seemed to be clearly overwhelmed with her situation and limited capacity to manage it and was utilizing fairly primitive defence mechanisms like projection and denial ‘only if he leaves me alone…I would be OK’ ‘All I need is to be happy and he keeps nagging me’.
Ali reported an increase in Mary’s irritability and emotional lability. He described episodes of verbal aggression and at least episode where he had to physically contain Mary resulting in violence.

on 26 September 2014:

Both Mary and Ali reported an improvement in Mary’s mood over the last two weeks though she has been fairly tearful for the last two days. Prior to this recent decline in her mood, Mary had noticed a reduction in her anxiety levels and improvement in mood, sleep and appetite. Ali has returned back to work on a part-time basis and this seems to be helping both of them.
Mary feels that this deterioration in her mood was a result of a difficult interaction with her GP where she felt invalidated. I suspect that Mary’s fragile mental state and associated utilization of primitive defence mechanisms might be the reason for Mary’s perception.
Perhaps as a result of her current state, Mary was ambivalent regarding continuing Escitalopram. We discussed the importance of being mindful for her emotional tone and its impact on her decision making capacity. In the end, Mary agreed to continue Escitalopram.
I would recommend continuing Escitalopram 10 mgs and would consider increasing the dose if Mary’s mood worsens.

In September 2014, Mary had two consultations with Associate Professor Robert Smee, a radiation oncologist at Prince of Wales Hospital, attended by Ali. He reported to Mary’s GP on each occasion with the following observations regarding Mary’s mood and behaviour (emphasis added):

on 8 September 2014:

This patient’s anxieties fluctuate. There is certainly a dynamic reaction with her partner, who she blames for the current way that she feels. She is seeking peace, happiness and being able to dance and blames her partner if those events can’t take place. There is an interaction between the two that was quite evidence in simple conversation.
Mary is still highly stressed, it may be related to the Dexamethasone which she is still on, has no symptoms of raised intracranial pressure, thus giving the scheme to come off that.

On 15 September 2014:

This patient has concluded a course of radiation to a left parietal GBM.
A dose of 5500 cGy in 25 fractions was delivered with concurrent Temodal chemotherapy. There were significant problems during the course of this treatment. Early on there was increasing headaches, nausea, vomiting and major word finding problems. As a consequence of this she was admitted to hospital, Dexamethasone was introduced and along with rehydration her condition progressively improved. There was certainly a dynamic between Mary and her partner which complicated the circumstance, this interaction as a negative (but at times positive) situation continued. The patient was convinced that Keppra was contributing to her anxiety features, and thus given the fact that this patient had only a single seizure the medication was ceased. It may however be that the Dexamethasone was a contributor to her anxiety status, however that could not be suddenly ceased.

When Mary was well there was no memory of the major episode with headaches, nausea and word finding problems.
The anxiety and interactions certainly continued, it was predominantly words and very occasional physical. Mary recognised that she needs support from someone, however there was certainly exasperation on occasions.

On 22 September 2014, Mary had another consultation with Dr Hovey. Dr Hovey’s report records that Mary’s mood had stabilised, and referred to a change of her medication for depression from Pregabalin to Lexapro (Escitalopram). Dr Hovey also records her physical examination relevantly as follows:

She was able to walk heel to toe, they were occasionally imprecise. She occasionally misinterpreted instructions. She was able to balance on toes and transiently on heels. Romberg’s negative. Able to list months of the year from December back for (sic) through to August with two errors. She was unable to perform any serial 7 or serial 3 calculations. Immediate recall 3/3. Short term recall 2/3. Able to know date of birth and address, but could not recall her post code.

On 3 October 2014, Mary and Ali met again with Mr Timothy Young, who had previously acted in her workers compensation cases. He estimates that he met with her on over 25 occasions during the period 2010 to mid-2012 in connection with that matter. Ali had telephoned Mr Young on 3 June 2014 to inform Mr Young that Mary had a brain tumour for which she was to have surgery and had been told by staff at the hospital to make a power of attorney and various care documents and a will. Ali was not aware at this stage that Mary had previously made a will, and it appears that Mr Young was never informed of this either. The delay in arranging the conference with Mr Young was caused by Mary’s ongoing radiotherapy and chemotherapy treatment.
Prior to the meeting, Mr Young provided to Ali drafts of a power of attorney, a power of enduring guardian and an advanced care directive. They were signed by Mary at the meeting on 3 October 2014. Mr Young’s evidence is that he explained the documents to her before she signed them, but she did not read the documents before she signed them. During the meeting Mr Young asked Mary about her assets and the persons who were to be named as beneficiaries in her will. She told him that her assets were bank accounts with the Commonwealth Bank, Westpac Bank and St George Bank, a superannuation account with REST, the Garfield St property and the McPherson St property which she owned with Ali.
As to her will, Mr Young’s file note of the meeting on 3 October 2014 records, in his handwriting, that her instructions to him were:

(1) revoke all prior wills; (2) I appoint my husband Ali Erem to be my executor and trustee; (3) I direct my unit at 14/22-26 Garfield Street Carlton be sold and the proceeds of the sale to be given to my sister Marcell Moussa wife of Mamoon Nabulsi; (4) I give the sum of $100,000 to my nephew Steven Ibrahim; (5) I give my sister Madeline Moussa $50,000 to be paid in equal sums of $10,000 per year for 10 years to be distributed by my trustee; (6) I give my husband Ali Erem the rest and residue; (7) trustee clauses.

There is no mention in the file note of the McPherson St property. However, there was a discussion at the meeting of severance of the joint tenancy. Mr Young’s evidence is that he explained the significance of the severance to Mary during the meeting on 3 October 2014 and said that to achieve it, it would be necessary for them both to sign a ‘Land Title form’ which would then need to be lodged with the Land Titles Office together with the title deed. He accepted in cross examination that he has no file note that he explained the significance of the severance to Mary or that she acknowledged that she understood it. However, I accept his evidence that he did do so (see [144] below).
The meeting concluded on the basis that Mary and Ali would come back for a further meeting in the following week to finalise the will.
Mr Young deposed that between 6 and 7 October 2014 he emailed a draft will to Ali for Mary to review. Ali cannot recall seeing a copy of a draft will before 10 October 2014, and neither of them has a copy of any email in the period 3 to 10 October 2014.
Mr Young’s file contains a copy of a draft of the will which reflects Mary’s instructions recorded in Mr Young’s file note and set out at [64] above, together with handwriting on it which is explained at [146]-[147] below.
Mr Young has a file note dated 7 October 2014, which records that ‘Mary advised/requested change of title deed to tenants in common in equal shares’.
On 10 October 2014, Mr Young had a second meeting with Ali and Mary. Both Ali and Mr Young gave evidence about the meeting. Prior to the meeting, Ali says that he had talked with Mary about her will outside in a coffee store. It seems likely that this was a discussion regarding the draft will referred to above under which Ali would take the residue of the estate including Mary’s interest in the McPherson St property following severance of the joint tenancy.
At this meeting, Mary and Ali both signed a document severing the joint tenancy over the McPherson St property (the Severance) and Mary signed a new will dated 10 October 2014 (the 2014 will) in the presence of Mr Young and Tina Song. The Severance was registered on 17 October 2014.
Under the 2014 will, Mary revokes all her previous wills, appoints Ali as the executor and trustee of the will and makes the following dispositive gifts:

Directs that the Garfield Street property be sold and the proceeds given to ‘my sister Marcel Aziz Moussa, wife of Mamoon Nabulsi’ (cl 2).

Gives $200,000 to ‘my nephew Steven Ibrahim’ and by cl 4 she gives ‘my share of my house at 6 McPherson Street Carlton to my nephew Steven Ibrahim’ (cl 3).

Gives $100,000 to ‘my sister Madeline Moussa’, to be paid in equal instalments of $10,000 over ten years (cl 5).

Gives the residue of her estate to ‘my husband Marcel Aziz Moussa for his use and benefit absolutely’ (cl 6).

On 13 October 2014, Dr Sarah Bishop, a radiation oncology registrar at Prince of Wales Hospital, reviewed Mary and recorded in a letter to Dr Hovey as follows (emphasis added):

I reviewed Mary Moussa in clinic this afternoon on behalf of Associate Professor Smee. Two months have passed since she completed adjuvant radiotherapy for treatment of high-grade glioma. Attempts to fully wean dexamethasone have failed, with recurrence of her word-finding difficulty at doses below 2 mg. She Is currently on 5mg with an improvement in symptoms. She describes some generalised difficulty with concentration and certainly not able to perform serial seven calculations or follow 3-step commands today at review.

Dr Hovey’s evidence in cross-examination was that Dr Bishop’s observation that Mary could not perform a 3-step command indicates that Mary was not able to think in a sophisticated manner at that time. Dr Hovey explained the significance of the dosage of dexamethasone, a steroid to reduce the swelling around the tumour, is that it was a necessary drug to treat the tumour but one of its side effects was that it adversely affected her mood and increased her insomnia and anxiety with a detrimental effect on her relationships.
On 18 October 2014, Mary had a further MRI brain scan which showed an increased volume of solid tissue in the critical area of her brain which was stated in the report to be ‘suspicious for tumour progression’. Mary went to see Dr Hovey on 21 October 2014, during which Dr Hovey discussed the results of the scan with her after conducting a physical examination. Dr Hovey’s report of the consultation records in relation to the physical examination relevantly:

Oriented to person, day of the week, year, month, home and address and place. Unable to perform any serial 3 or serial 7 calculations. No visual field deficits. Romberg’s negative. Difficulty following instructions when walking heel to toe. Difficulty following other complex instructions.

Dr Hovey’s report then continued:

I conveyed the result of the MRI to Mary. Though this is the classic timing for pseudo progression, the consensus at our recent MDT Meeting was that this was far more likely to be progressive disease, given how solid the lesion appeared and the fact that it was associated with so much mass affect. She wept throughout most of the appointment. We talked about various possibilities in moving forward.
Dr Kwok, her neurosurgeon has retired and so she can either see a neurosurgeon here at the Prince of Wales, or one at St George or elsewhere should she choose, to consider whether or not more would be wise.

Dr Hovey’s report included an addendum which states that: ‘Mary was reviewed by Dr Reddy, Neurosurgeon. In the interim, we have decided to give her the benefit of the doubt and treat this change as pseudoprogression and continue with the standard Stupp protocol and reimage her in December (or sooner if there is symptomatic deterioration)’.
On 21 November 2014, Mary had her next consultation with Dr Hovey, whose report states the results of her physical examination relevantly as follows:

Difficulty in general following instructions, particularly two-step instructions. … only able to list two months backward when listing the months of year backwards. She kept going forwards rather than backwards. Unable to perform serial 3 or serial 7 calculations. …

On 17 December 2014, Mary met again with Dr Hovey who records in her report the following about her mood:

Mary returned to the Medical Oncology Clinic today accompanied by her husband. I understand from the Clinical Care Co-ordinator, Alex, that things have been labile again between Mary and her husband, Ali. She is very irritable with him and often loses her temper.
…
According to her, her mood is ‘good’, although she added a disclaimer ‘if nobody upsets me I am OK’. She feels as though she is able to stop herself getting upset, but according to her husband and the nursing staff that this is not the case … I am also concerned to hear that she has stopped taking her anti-depressant (Lexapro). She apparently tapered it herself because she “didn’t like it”. She tells me that subjectively she feels better with out it (again my understanding is that her husband does not agree). She had apparently blamed the Lexapro for feeling “bloated”, despite the fact that her husband and other medical staff have been explaining to her that that is far more likely to be the Dexamethasone that the Lexapro…

Dr Hovey’s report describes her physical examination of Mary relevantly as follows:

Transient left sided neglect, on this occasion she stumbled again when listing the month of the years backward, was able to make it from December to August but not any further. She was unable to perform either serial 7 or serial 3 calculations. She is imprecise walking heel to toe. She able to balance on heels and toes.

Around Christmas Day 2014, Mary and Ali had an argument in which she became aggressive towards Ali and required him to leave the apartment. He went to stay with his sister Askin until Mary finally allowed him to return on 19 or 20 January 2015. Ali deposes that the cause of the argument was that Ali had received a text from Mary’s niece, Sharon (who is Madeline’s daughter), sending Christmas greetings and had responded thanking her and wishing greetings to her and her husband. Mary discovered this a few days later when she looked at his phone, and she said to Ali ‘You have spoken to my worst enemy. Get out of my house. I have told you not to contact Sharon’ and ‘You are evil you bastard. Get out.’ It was true that Mary had previously told him not to contact Sharon, although he did not know why Mary had taken objection to Sharon. Mary then became violent, throwing things around the apartment and when he tried to calm her down, she physically attacked him by trying to scratch his face and hitting him with a shoe. Despite this, Ali maintained daily contact with Mary on the telephone in an endeavour to check that she was continuing to take her medications and looking after herself properly. Ali deposed to Mary’s poor compliance with, and inability to manage, her medications without assistance from him. The incident, and Ali’s patience and care for Mary over the ensuing period until he was able to return to live with Mary, is corroborated by the evidence of several other witnesses.
For example, Dr Hovey refers to this incident in her notes of her consultations with Mary at Prince of Wales Hospital on 7 and 13 January 2015 (which Ali also attended). Dr Hovey’s report of the consultation on 7 January 2015 records:

Mary returned to clinic today (07/01/15). This was a special scheduled visit with Dr Swapnil Sharma from psychiatry and we also arranged for her husband, Ali to attend. Currently they are estranged after an argument around Christmas time. She acknowledges she has had an emotional rollercoaster over the past few weeks. It seems that she became extremely angry at her husband for texting one of her relatives whom she specifically told him not to make contact with. She asked her husband to leave around the time of Christmas. He is currently staying with his sister. She says that she feels betrayed and Dr Sharma expressed to her that she has a significant amount of internal turmoil. Dr Sharma believes she has issues of anger and abandonment. She feels persecuted, most likely by her body, but can only express this by being angry at others, like her relative and her husband.
She is a little bit inconsistent in terms of her history. At one point in time she told me she was having headaches every day and taking Panadol or panadeine every couple of hours, but then when I explained to her that I thought it would be a good idea to start her on some dexamethasone she then denied she had been having headaches and said it was only the week she was feeling emotional. She also tells me that during the week she was having the argument with Ally that her blood pressure was very high, but now has improved.
When I went through her medication list (entecavir, Nexium and amlodipine and dexamethasone), she seemed confused about which table was for which condition. Possibly she was even more emotional than usual because she suspects she took 2 Dexamethasone tablets today instead of 1.
According to Ali, there had been a few episodes where she has phoned him and has been incoherent and confused and was yelling on the phone. He has sent the police and an ambulance over to her on a few occasions. Dr Sharma does not feel it is appropriate to schedule her because there is no strong evidence of risk of self harm at this time.
We have agreed to meet again next Tuesday. Hopefully she will reconsider and allow her husband back into the home with her.

Mary had her next consultation with Dr Hovey on the following Tuesday, 13 January 2015 as planned. Dr Hovey’s report again referred to the breakdown of the relationship between Mary and Ali as follows:

Mary returned to the Medical Oncology Clinic this afternoon. We had organised a session with her, her husband (he was currently staying with his sister) and the psychiatrist, Dr Swapnil Sharma at 10:00am this morning, but initially she forgot about the appointment and then when she was reminded, it transpired she locked herself inside her apartment and could not get here in time. Dr Sharma and I spent some time with her husband, Ali, to try and get a sense of what was happening. According to him, she remains angry and labile and has not yet agreed for him to come back home. He has been mostly calling her every second day. There are a couple of friends that are popping in to keep an eye on her, but essentially has been independent. He has been going in and out of the apartment to collect items and tells me that the apartment is very well kept. …
With regards to allowing Ali back in the house – she said that she finds “his energy very difficult to be around” because he is always “defensive and frowning”. She continues to perseverate including in getting upset about an event which happened around Christmas time when Ali replied to an SMS to one of her relatives that she did not want him to have contact with. Mary kept saying that Ali has “ruined her life”; however, at other times during this visit she seemed more open to having him home.

Dr Hovey’s report of that consultation describes her physical examination of Mary relevantly as follows:

… Able to walk heel-to-toe. Able to balance on heels and toes; Romberg negative; full extra-ocular movements; no diplopia or neglect; only able to list two months of the year when she was listing the months of the year backwards; unable to perform serial 7 or serial 3 calculations; she has ongoing distress about these issues.

The report goes on to state that Dr Hovey had ‘strongly encouraged [Mary] to consider for her husband to move back in not only for the emotional support but also for the supervision of her complex medications’.
Dr Hovey next saw Mary on 10 February 2015. Her report of that consultation records Mary’s relationship with Ali as having improved, noting:

I am pleased to see that the issues with her husband, Ali, have somewhat thawed and he is spending more and more time in the house, including staying overnight a few nights a week.
…
She reports mild anxiety, depression, irritability and trouble concentrating. Her husband believes that her depression is more marked and reports that she is often crying in the early hours of the morning. According to her husband she still becomes very stressed about her cushingoid face and her loss of energy, and small events and incidents can become ‘magnified in her head’.

Dr Hovey records her observations of the results of her physical examination of Mary relevantly as follows:

… Able to walk heel to toe and balance on heels and toes. Romberg’s negative. Unable to list the months of the year backwards, with only one sequence correct. Able to list the months of the year forwards (from January to December). Unable to perform serial 7 or serial 3 calculations. Immediate recall 3/3. Short term recall 2/3. Knew her address and date of birth, but did not know her own postcode.

On 16 March 2015, Mary had an appointment with Dr Brindha Shivalingam, a Neurologist who was now advising her in relation to the treatment of her tumour (in place of Dr Reddy who had assisted previously following the retirement of Dr Kwok).
Dr Shivalingam’s report of this consultation records that she had looked at all of Mary’s MRI brain scans and noted that ‘since about October 2014 there seems to be a definite recurrence which has largely remained stable’ and continues with the observation that:

Mary has not experienced any speech disturbance as such. However, she does feel that her cognitive function and her memory is poorer than originally. This is not unusual given the fact that she has had two surgeries as well as radiation and chemotherapy.

Dr Shivalingam states in her report that there were two pathways under consideration, the first being further surgery and the second further chemotherapy. After a subsequent consultation with Dr Hovey, they decided to embark on further surgery.
At a further consultation with Mary on 30 March 2015, at which Dr Shivalingam advised about the nature of the proposed surgery and the risks, Mary decided to proceed, and the further operation took place on 7 April 2015.
Mary was seen by Dr Hovey on 14 April 2015, shortly after the operation and Dr Hovey’s report records the following:

Mary returned to the Medical Oncology Clinic today (14/04/15) with her husband. She has recently had a resection for her recurrent glioblastoma and had a relatively uncomplicated stay in hospital. Unfortunately she has a component of receptive and expressive dysphasia evident post-operatively. Otherwise she has been well. Physical examination: able to tell me the correct date and day of the week with much hesitation. Able to say months forwards with one mistake, but unable to recite months backwards beyond November. Registration 3/3. Recall 2/3. …

On 12 May 2015, Mary had a consultation with Dr Siobhan O’Neill at the Prince of Wales Oncology Clinic (on behalf of Dr Hovey who was not available). Dr O’Neill’s report relevantly states:

Neurologically it is clear that Mary is still struggling with a mild receptive and moderate expressive dysphasia. Her husband feels that this has now plateaued since her recent operation. Unfortunately, Mary is finding her speech difficulty very frustrating and they are still awaiting an appointment with speech therapy at St George Hospital. I have contacted the department today and they have assured me they will track down the referral from RPA.
Examination: Mary was able to name the months of the year however when asked to do this in reverse she was only able to name December and November. She was unable to perform serial 7’s and could not name the current month of May. On several occasions she was not able to understand the concept of nausea and needed this explained. Mary could heel-tow walk although was a little unsteady. Romberg’s negative. Power in both upper and lower limbs was 5 out of 5 in all muscle groups.

On 18 May 2015, Mary returned to see Dr Shivalingam, who recorded the following:

Mary returned to see me today. It has been roughly six weeks since her surgery for redo craniotomy and resection of recurrent glioblastoma. After surgery she did experience worsening expressive dysphasia. However today she was certainly able to have a conversation with me and describe a lot of what she has been feeling. However her husband does state that expressing thoughts and word finding has been a challenge.

On 5 June 2015, Mary, with Ali, attended an appointment with Dr Hovey, who recorded that her expressive dysphasia was worsening. In her record of the physical examination, Dr Hovey recorded ‘[Mary] was unable to tell me the days of the week backwards and struggled even with prompting… There was some receptive dysphasia evident during our examination as she found it difficult to follow instructions for the neurological exam’.
Mary and Ali attended an appointment with Dr O’Neill (again on behalf of Dr Hovey who was unavailable) on 26 June 2015, and they were scheduled to return on 30 June 2015, however Mary refused to come, and Ali attended alone. Mary’s MRI imaging showed a recurrence of her cancer. In her record of the examination on 26 June 2015, Dr O’Neill stated (emphasis added):

Clinically, Mary’s expressive dysphasia has worsened and she is increasingly emotionally labile. Ali reports that she is having frequent outbursts, expressing marked anger, frustration and tears, and at times is quite abusive towards him. Mary is refusing input from psychology and has declined input from the Palliative Care Team. She vehemently denied nausea however, Ali reports that she is having recurrent vomiting, sometimes several times a day and overnight, but refuses to take antiemetics for this. She denies headaches and has no limb weakness.
Physical Examination: Mary was unable to perform serial 7’s or name the months of the year backwards and became visibly distressed and frustrated. Gross power was 5/5 in all groups. There was evidence of a burn on the dorsum of her right hand and Mary reported having an accident with hot oil in the kitchen. One area had blistered and the skin was broken and I provided a dressing for this today.
Results: Her scans have been reviewed at the brain MDT, where the consensus was that further surgery would not be helpful and was likely to produce more neurological deficit, and that further palliative radiotherapy would not change outcome. The recommendation was for palliative management of Mary’s symptoms.

On 6 July 2015, Mary attended the offices of a law firm in Chatswood, Atkinson Vinden, without an appointment. She met with Mr Frank Windeyer. Mr Windeyer’s account of this meeting is outlined in his evidence below.
On 8 July 2015, Mary had an appointment with Dr Shivalingam. Dr Shivalingam set out her observations of Mary at this meeting in her report as follows (emphasis added):

Mary returned to see me today. As you know this lady had surgery in April 2015 for recurrent glioblastoma. She has been on lomustine after surgery. Unfortunately scans performed late in June 2015 revealed recurrence anterior to the surgical cavity. Mary's condition has certainly deteriorated. Her speech is worse but also her capacity to understand and rationalise is completely gone. She has no control of her emotions at present and was tending to be very snappy and irritable with her husband.
Given her poor quality of life at present and the fact that this is a very quick recurrence after surgery and also the fact that there is no further drug treatment or chemotherapy agent available I feel that we should take a palliative course. I have had a very blunt conversation with Mary today in order to get her to understand. However rational conversation and thought is not something that is possible for Mary anymore. Her husband understands that her life expectancy is now quite limited. I have strongly recommended that he discuss with you and perhaps the palliative care team about how best to control some of her symptoms. She may well need stronger antidepressants or even perhaps some sedation in order to help things along. I know that she was reviewed by a psychiatrist earlier on in the year and that might be an option as well. My feeling is that she is probably going to need to be institutionalised very soon.

On 13 July 2015, Mary executed a handwritten will (the 2015 will) in the presence of Mr Windeyer and Ms Carmel Scholtz. She did so in a meeting with Mr Windeyer which Ali attended (for part). Both Ali and Mr Windeyer gave evidence regarding the meeting. The 2015 will:

Revokes Mary’s previous wills (cl 1).

Appoints Ali as executor and trustee, with Marcel to be her executor if Ali is unable or unwilling to act as trustee (cl 2).

Gives the Garfield Street Property to her trustee to be sold and the net proceeds paid to Marcel (cl 3).

Gives Steven Ibrahim $400,000 (cl 4).

Gives $150,000 to her trustee on trust to be paid to Madeline in fortnightly instalments (cl 5).

Gives her share in the McPherson St property to Marcel (cl 6).

Gives any superannuation benefit received by her estate and her Telstra shares to Ali (cl 7 and 8).

Gives the residue of her estate to Marcel (cl 9).

On 18 July 2015, Mary was admitted to Prince of Wales Hospital. The reason for her admission is recorded by Dr Hovey on 31 August 2015 in her report regarding her last appointment with Mary on 17 August 2015, which records (emphasis added):

Mary returned to the medical oncology clinic today accompanied by her estranged husband Aly whom she would not allow in the room but then she relented. You will recall that Mary was admitted to Prince of Wales Hospital from 18 July (admitted in my absence while I was on leave) and was discharged on 29 July 2015. The main reason for admission was that she was agitated and her husband felt unable to continue caring for her. On the day of admission she apparently grabbed the steering wheel while he was driving and then tried to get out of the car, reportedly narrowing avoiding oncoming traffic. She was supervised during the admission with 1:1 nursing special.
Physically she remained well throughout the admission. A nursing home was found to accommodate her (luckily the director of the nursing home is a family friend).
Unfortunately, on this occasion, Mary remained emotionally labile with intermittent yelling and crying. I was unable to calm her down and for a prolonged period of time I was unable to examine her. It has unfortunately become clear that I will no longer be able to offer her any further lines of chemotherapy given her lack of insights and her extreme behavioural issues.
At the end of the appointment I actually needed the help of a male nurse to remove her from the facility. This is obviously very distressing fort her and her husband Aly [sic]. Given the difficulties I have not arranged for a further appointment at the medical oncology clinic.

On 29 July 2015, Mary was transferred to a nursing home in Croydon. This was organised by Ms Knox, who was the residential manager of the nursing home, where one of Ali’s sisters worked and Mary lived there until her death.
Ali had one or two conversations with Mr Windeyer on the telephone after Mary’s hospitalisation but does not recall the dates.
On 23 October 2015, Mary died. On 30 October 2015 her body was cremated.

Mary’s delusions

The evidence regarding Mary’s delusions needs to be considered in the context of the background of the evidence regarding her mental health.
Mary had a long history of clinical depression and anxiety which is recorded in various medical reports prepared in connection with claims she made for workplace injuries. She worked for Kodak for around 10 years until 1984 and suffered a repetitive strain injury in her arms, shoulders and neck. In relation to her treatment for that injury, Dr Monir Younan, Consultant Psychiatrist, expressed the opinion in a psychiatric report dated 14 April 1989 that Mary was ‘suffering from severe anxiety state complicated by depressive symptoms’ and noted that she had frequent uncontrollable crying spells during the interviews he had with her. Dr Younan saw her on nine occasions over the period from July 1985 to April 1989.
In a report made on 12 July 1989, Associate Professor Richard Jones, Director, Rehabilitation Medicine at Prince Henry Hospital, said that his physical examination of Mary confirmed ‘a very intense woman apparently overwhelmed by her multiple disabilities’ and that while he accepted she had muscular and ligamentous abnormalities which are perceived by her as being disabling, she had ‘apparent signs which are not organically based and are due to psychological reaction to her perceived disabilities’.
In a report dated 26 March 1990, Dr James Bodell, an Orthopaedic Surgeon, issued a report in which he opined that Mary ‘undoubtedly has a very serious psychological problem, but there is no clinical evidence of any organic muscular-skeletal disorder which could account for her claimed level of disability’.
In a report dated 29 May 1990, Dr Susan Spence, a Psychologist with the Badham Clinic, University of Sydney, opined that Mary ‘remains severely depressed and anxious’ and that treatment had been offered to her to deal with ‘depression and high levels of anxiety’.
Ali gave evidence that when he first met Mary in around 1986, he found her to be attractive, highly sociable and to have a zest for life. Later, as he got to know her better, he found that while she appeared jovial, she had a lot of nervous energy, issues with pain and discomfort related to her workplace injury and she was very nervous. He gives examples in his evidence of occasions where she showed an inability to make any decision about even minor matters, such as purchasing furniture for her apartment which was almost bare when they first started their relationship, and would often become hysterical when she became agitated by something which disturbed her.
He deposed that she regularly threw herself on the floor rolling like a child yelling in anger while she kicked her legs in the air, and that this continued for many years through their relationship. After this she would sit in a darkened room or lie in bed for hours in silence, with her knees draw up to her chest in a foetal position. His perception was that she never believed that anything was her fault and insisted that all bad things, as she perceived them were caused by others. Ali was not cross-examined on any of this evidence.
Ali also deposed that from around mid-2013, Mary started to have difficulty expressing herself and this led to arguments with Ali in which she became angry because, as he put it, ‘she expected me to read her mind when she had difficulty in expressing herself’. He recalls one incident in May 2013 when she threw a coffee cup she was holding against the wall and started to cry. After the incident, Ali took his clothes and went to visit his sister for three weeks. Ali’s evidence regarding Mary’s change in behaviour from around 2012, including headaches, mood swings and aggression towards Ali is corroborated by Dale Baturan, Velenka Vanovac, Birsen Erem, Laurette Refalo and Ms Knox.
In December 2013, she physically attacked Ali at their home. She also attacked him on 4 August 2014 in the early hours of the morning when she had a fit of rage and hit and scratched him on the hands and face and pulled his hair. On 27 August 2014, she had a violent altercation with him at Prince of Wales Hospital which is corroborated by Dr Hovey (see [56] above).
On 18 July 2015, she attacked him while he was driving her to hospital for her final admission, narrowly avoiding oncoming traffic, which is corroborated by Dr Hovey’s report of her appointment with Mary on 17 August 2015.
Ali gave evidence that Mary suffered a number of delusions from 2012 until she died. The one which is relevant for present purposes is that from mid-2014 following her diagnosis of a brain tumour, Mary started to blame Ali for her illness. He deposed that she said to him on many occasions from mid-2014 until her death ‘you put the cancer in my head’. That Mary blamed Ali for her brain cancer is corroborated by Dr Hovey’s report of 13 August 2014, Associate Professor Smee’s report of 8 September 2014 and the affidavit evidence of Ms Vanovac (mid-2014 and Christmas 2014) and Ms Knox (in July 2014 and many times in the period from 29 July to 23 October 2015 while Mary resided in the nursing home). Mary also said at various times that ‘Ali was after her money’ (corroborated by Ms Knox), ‘Ali had ruined her life’ (corroborated by Ms Vanovac), ‘Ali was conspiring with lawyers and doctors to deprive Mary of her assets’ (corroborated by Ms Knox), and she ‘had given Ali $1 million’ (Mr Windeyer’s file note).
Ali gave evidence that Dr Hovey (and others) explained to Mary that it was not possible for Ali to have ‘put the cancer in her head’. There was no cross-examination on any of this evidence. The evidence that Mary still had the belief at the end of her life that Ali caused her cancer indicates that it was a belief which she could not be reasoned out of.
Ali also deposed to other delusions from which Mary suffered from around 2012 which demonstrate that she was suffering from a degree of cognitive impairment: (a) that she was an interior decorator; (b) that she spoke French; (c) that she was a good swimmer when she could not swim; (d) that she was about to be kidnapped for her money when in a branch of the Commonwealth Bank.

Assets and liabilities of the estate

The parties provided to the Court an agreed schedule setting out the assets and liabilities of the estate at the date of death, and at the date of the hearing.
At death, Mary owned:

Bank deposits and term deposits totalling $762,402.95;

The Garfield St property with an estimated value of $660,000;

A half share in the McPherson St property (subject to the plaintiff’s claim in this proceeding) with an estimated value of $650,000;

Personal effects with an estimated value of $2,230.

In addition, jointly held assets of Ali and the deceased, and any asset that might be considered to be notional estate, comprised an account with St George Bank with a balance of $3,384.79, shares in Telstra with a value of approximately $3,000.00 the deceased’s account with a superannuation fund with a value $107,114.00.
The liabilities of the deceased at death totalled $21,947.25.
Accordingly, the net value of the estate at the date of Mary’s death was $2,166,184.49.
At the date of the hearing, assets of the estate comprised a term deposit and an account with St George Bank in a total amount of $264,314.84, the Garfield St property with an estimated value of $660,000.00, the deceased’s half share in the McPherson St property (subject to the plaintiff’s claim in this proceeding) with an estimated value of $825,000.00, and personal effects with an estimated value of $2,230.00. After taking into account the actual and estimated liabilities of the estate, the net distributable estate at the date of the hearing (excluding legal costs not yet paid from the estate) is $1,559,826.02 (Ex K).
In addition, the estate has potential liabilities for costs and expenses on the sale of the Garfield St property and the McPherson St property, the costs of the NSW Trustee and Guardian and for costs in relation to these proceedings.
The following settlement sums have been paid out of the estate pursuant to orders made by the Court on 21 December 2021: (a) $125,000 to Steven (the third defendant); and (b) $150,000 to Madeline (fourth defendant).

Ali’s financial position

The plaintiff’s financial position is relevant to the first defendant’s case on Ali’s exclusion from the 2014 and 2015 wills that Mary had made an assessment that Ali ‘had enough’ money and therefore did not need provision, and to the quantum of the plaintiff’s claim for provision under the Succession Act.
Ali was cross-examined on his property portfolio. He gave evidence that he had owned the following properties: (a) 45 Veron St, Wentworthville which he purchased in 1997 and sold in 2009 to enable him to repay the loan from Citibank taken out to fund the purchase of the McPherson St property; (b) 47 Veron St, Wentworthville (which was next door to 45 Veron St and was his home before he moved into the Garfield St property with Mary) which was purchased with his former wife in 1984 and sold in 2014; (c) 7/22-26 Garfield St which he purchased in August 2015 (Unit 7); and (d) a half share in the McPherson St property (subject to his claim in these proceedings).
Ali did not have a will, and viewed this as protecting Mary as he understood that she would inherit his property if he was to die under the laws of intestacy (Ali having no other family or dependents to make a claim on his estate).
Ali’s total assets at the date of the hearing had a value of between $2,360,065 and $2,430,065, comprising:

his half share of the McPherson St property (in which he claims a 100% interest in these proceedings) of between $800,000 to $850,000;

Unit 7 with a value estimated at between $630,000 to $650,000;

cash at bank of $796,928;

a motor vehicle with a value estimated at $7,500;

superannuation (as at 30 June 2023) of $125,637.90.

The figures for the value of Ali’s real property interests are estimates. The one for his interest in the McPherson St property is based on an opinion provided by a real estate agent dated 8 February 2024 that the McPherson St property would obtain a price of between $1.6m and $1.7m at that time. The same agent gave an opinion that the Garfield St property would sell for $640,000 to $680,000 at that time and it appears that this has been used as the basis for Ali’s estimate of the value of Unit 7 which is also a two-bedroom unit in the same building.
Ali’s sources of income at the date of the hearing were as follows:

monthly income as an interpreter of around $995 per month (but this will cease this year as he will be retiring from that role);

a monthly superannuation pension of $2,492.12 from the Commonwealth Superannuation Corporation;

rental income from the lease of Unit 7 of approximately $1,700 per month;

50% of the net rent from leasing the McPherson St property of $720 per week (approximately $2,880 per month); and

interest on his bank deposits.

Excluding the interpreter income (which will not continue) and the interest income, this comes to $7,072 per month.
Ali estimates his monthly expenditure at the date of the hearing to be $4,800, including the costs associated with Unit 7 of $692 per month and the costs associated with his half share of the McPherson St property of $536 per month.
If Ali succeeds in his claim that he is entitled to 100% of the McPherson St property, his monthly income (excluding the interpreter income and interest) will increase by approximately $2,880 per month and his monthly expenses will increase by approximately $536.

For these reasons, I am satisfied that Mary encouraged an expectation on the part of Ali that she would not without his prior agreement, sever the joint tenancy on which he relied and it would now be unconscionable for Mary, through her estate, to resile from it. Ali’s prima facie entitlement is to relief which makes good his expectation that he would take the full interest by survivorship. In my view that relief would not be wholly disproportionate to the detriment he has suffered and no innocent third party is affected by doing so. The appropriate relief is a declaration that the NSW Trustee and Guardian holds Mary’s 50% share of the McPherson St property on constructive trust for Ali, and an order for the transfer of that interest to him.

Issue 4: The plaintiff’s resulting trust claim

Ali relied in the alternative on a resulting trust on the principles stated in Calverley v Green (1984) 155 CLR 242; [1984] HCA 81. In that case, Deane J said (at 266-267) that:

Where two or more persons advance the purchase price of property in different shares, it is presumed that the person or persons to whom the legal title is transferred holds or hold the property upon resulting trust in favour of those who provided the purchase price in the shares in which they provided it.

See also Gibbs CJ at 246-247 and Mason and Brennan JJ at 258.

The relevant contributions must have the character of purchase price (including incidental costs of the purchase such as legal expenses, stamp duty and registration fees). Incurring a liability under a mortgage will constitute a contribution to the purchase price, but if the parties borrow jointly in order to make the acquisition they will be treated as having borrowed in equal shares, and no account will be taken of the parties’ different contributions to repayment of the loan unless the evidence establishes that the parties intended to acquire ‘not the title to land subject to mortgage, but the land freed of the mortgage’, in which case contributions to the discharge of the mortgage will be taken into account: Calverley v Green at 262-263.
The presumption of a resulting trust may be rebutted by evidence showing that the common intention of the parties at the time of the acquisition was for equality of interests despite inequality of contributions to the purchase price. It can also be rebutted if they are in a relationship which gives rise to a presumption of advancement, although I note there is some uncertainty whether the presumption of advancement applies to de facto relationships.
In the present case, had the issue arisen, I would have concluded that Mary and Ali had the common intention at the time of the purchase that they would hold the McPherson St property in equal shares despite their unequal contributions to the purchase price because they each signed the ‘Instructions on Tenancy’ document stating that as joint tenants they would hold the property ‘jointly and equally’. They did so after being advised about what it meant. In addition, it is relevant that at the time of the purchase they had been in a committed and loving de facto relationship for some 17 years and intended to live together for the foreseeable future as a couple in the property. It is also significant that the rental income from the property was shared by them equally throughout their joint ownership.
I am satisfied on all the evidence that at the time of the purchase of the McPherson St property, Mary and Ali intended to share the beneficial interest equally. Accordingly, Ali’s resulting trust claim fails.

Issue 5: Rectification of the 2014 will

In light of my conclusion that Marcel has not established that Mary had testamentary capacity at the time she signed the 2014 will, this issue does not arise. However, in case the matter goes further I will deal with it briefly.
The rectification claim is made pursuant to s 27(1) of the Succession Act which provides:

The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied the will does not carry out the testator’s intentions because –
(a) a clerical error was made, or
(b) the will does not give effect to the testator’s instructions

The application for an order under s 27(1) must be made within 12 months after the date of the testator’s death, or such longer period as the Court allows for such an application: s 27(2) and s 27(3). In the present case, the application was made in Marcel’s cross-claim filed after 12 months from the date of Mary’s death. In all the circumstances, in my view it is appropriate to grant an extension of time and I would, if needed, have done so.
I have had regard to the summary of the authorities on s 27(1) set out by Meek J in Reeves v Reeves [2024] NSWSC 134 at [419]-[436].
I am satisfied that the reference to ‘my husband’ in cl 6 is a typographical error, resulting from the fact that the change of name of the residuary beneficiary required a consequential change of ‘my husband’ to ‘my sister’. The making of the error is explained by Mr Young’s evidence that after the various changes were made by his secretary, he did not read the 2014 will to Mary before she signed it, and I infer that he did not read it thoroughly himself and for that reason did not pick up the error.
It follows that had the 2014 will been valid, cl 6 did not carry out Mary’s intentions because a clerical error was made by Mr Young, and it would have been appropriate to rectify that clause by replacing ‘my husband’ with ‘my sister’.

Issue 6: The plaintiff’s family provision claim

Ali brought as an alternative to each of his other claims for relief, a family provision claim under s 59 of the Succession Act. As I have found in his favour on his estoppel claim, this alternative claim does not strictly arise, but it can be dealt with relatively briefly.
It is not in dispute that Ali was living in a de facto relationship with Mary at the time of her death. Accordingly, he is an eligible person who may apply for a family provision order under Ch 3 of the Succession Act: s 57(1)(b). His application was made within 12 months of Mary’s death.
Under s 59(1)(c) of the Succession Act, the Court may make a family provision order in favour of Ali if at the time when the Court is considering the application, the Court is satisfied that adequate provision for the proper maintenance, education or advancement in life of Ali has not been made by the will of the deceased. If that requirement is met, the Court may make such order for provision out of estate as it thinks ought to be made for the maintenance, education or advancement in life of Ali, having regard to the facts known to the Court at the time the order is made: s 59(2). Each of these questions requires an evaluative judgment taking into account the matters identified in s 60(2).
In Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 at [112]-[115], Payne JA (Macfarlan JA and Sackville AJA agreeing) said:

In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [74] Gummow and Hayne JJ cited the plurality in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, for the proposition that:
[T]he words ‘adequate’ and ‘proper’ are always relative. There are no fixed standards, and the Court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards.

What is “proper” requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties’ financial circumstances. The Court’s assessment of what is proper maintenance, education and advancement in life must be made at the time when the Court is considering the application. This does not, however, mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate.
In Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [12] Allsop P stated:
Accepted and acceptable social and community values permeate or underpin many, if not most, of the individual factors in s 60(2) and are embedded in the words of s 59, in particular ‘proper’ and ‘ought’. That such values may be contestable from time to time in the assessment of an individual circumstance, or that they may change over time as society changes and grows can be readily accepted.

Allsop P acknowledged that orders made by reference to “perceived prevailing community standards of what is right and appropriate” referred to an imprecise, variable and contestable standard. See also White J in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [125] – [127].

In relation to the evaluation of what is ‘proper’ by reference to ‘perceived community standards of what is right and appropriate’ (or ‘moral duty’ which was the preferred way of expressing the same concept in in Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [44] and [109]), these are to be ascertained according to the circumstances of the particular case, including the relationships between the applicant and the deceased and other persons who have legitimate claims upon his or her bounty and the circumstances and needs of those other persons: Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [64]. Importantly, as White JA said in Steinmetzv Shannon at [59], ‘the court does not ask whether the will was fair and does not have the power to adjust entitlements under the will according to what it considers to be fair’.
In Lalic v Lalic [2022] NSWSC 31 at [48]-[54], Henry J summarised the authorities on the correct approach to the evaluative task required when determining whether the provision in a will is adequate and, if not, whether a family provision order should be made, as follows:

Pursuant to s 60(1)(b) of the Succession Act, the Court may have regard to the matters set out in s 60(2) for the purpose of determining whether to make a family provision order and the nature of any such order. Those matters may be relevant both to the question of any inadequacy of provision and, if the provision is found to be inadequate, whether an order for provision should be made and if so to what amount: Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [7]; Chan v Chan [2016] NSWCA 222 at [21].
The Succession Act does not prescribe the circumstances that constitute adequate provision for the proper maintenance, education or advancement in life of a person, nor does it allocate relative weight to any of the various matters set out in s 60(2) to which the Court may have regard.
While adequacy is concerned with quantum and the word “proper” prescribes the standard of the maintenance and advancement in life, they are relative concepts with no fixed standards. The Court is left to form opinions on those matters on the basis of its own general knowledge and experience of current social conditions: Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [74] (Gummow and Hayne JJ), [114] (Callinan and Heydon JJ); Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 (Limberger v Limberger) at [423].
A multifaceted evaluative approach that takes account of all the factual circumstances relevant to the application is required in order to determine whether adequate provision was made for the claimant’s proper maintenance, education or advancement in life: Sgro v Thompson [2017] NSWCA 326 (Sgro v Thompson) at [6] (Payne JA), [86] (White JA, McColl JA agreeing). The relevant circumstances will include a claimant’s needs, although there is a distinction between needs and adequate provision. Whether or not adequate provision has been made is not to be determined simply by a calculation of financial needs. Any assessment of a claimant’s needs also requires consideration of the size of the estate and others’ claims on it: Chan v Chan [2016] NSWCA 222 at [22].
Thus, the concepts of adequate provision and the proper level of maintenance and advancement are to be assessed in the context of all of the circumstances of the case, including the claimant’s financial position, the size and nature of the deceased’s estate, the totality of the relationship between the claimant and the deceased, and the relationship between the deceased and other persons who have legitimate claims on the deceased’s estate. Attention may also be given to how the claimant lived and might reasonably expected to have lived in the future: Blendell v Blendell [2020] NSWCA 154 at [7]–[8]; Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [114].
The determination of what is adequate provision for the proper maintenance, education and advancement in life of a claimant is to be guided by applying the Court’s assessment of what is considered to be right and proper according to contemporary accepted community standards or what is considered to be the moral duty of the deceased: Squire v Squire [2019] NSWCA 90 at [10]; Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 (Steinmetz v Shannon) at [44] (White JA), [109] (Brereton JA).
In appropriate cases, if the deceased was capable of and did give due consideration to what provision for a claimant’s maintenance, education or advancement is proper, the Court should give considerable weight to the deceased’s testamentary wishes. This approach recognises that a testator or testatrix is in a better position than the Court to make such an assessment, although the application of s 59 of the Succession Act is not confined by notions of reluctance to interfere with freedom of testation. The Court’s assessment of whether there has been adequate provision for the claimant’s proper maintenance and advancement in life must be made when the Court is considering the application, rather than at the time of the deceased’s death or will, and requires an evaluative judgment of all of the circumstances: Megerditchian v Khatchadourian [2020] NSWCA 229 (Megerditchian) at [33], [35] (Payne JA, Macfarlan JA and Emmett AJA agreeing); Steinmetz v Shannon at [52]–[54] (White JA), [96] (Brereton JA); Sgro v Thompson at [86]; Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [126]–[127].

Meek J in Tarbes v Taleb [2023] NSWSC 565 at [195]-[222] set out a comprehensive summary of the relevant principles to apply in undertaking that evaluative task to which I have also had regard.
I will now discuss the matters referred to in s 60(2), on the hypothetical basis that Ali had failed on his estoppel claim. I will then deal briefly with the position, as I have found, that his estoppel claim is successful.
In relation to the relationship between Ali and the deceased (s 60(2)(a)), the evidence establishes that Ali had a close and loving de facto relationship with Mary for around 25 years, living together for most of that time at the Garfield St property. While the relationship was difficult during the last two years following her diagnosis of a brain tumour, he was loyal and supportive of her throughout despite the considerable toll her sometimes aggressive and erratic behaviour had on him.
As to the nature and extent of any obligations or responsibilities owed by the deceased to Ali or to any other claimant or to any beneficiary (s 60(2)(b)), Mary did have a moral obligation to make some provision for Ali reflecting the length and nature of their de facto relationship. She recognised her moral obligation to him by including him in her 2015 will and also in what she said to Mr Windeyer when she met with him on 14 July 2015 that she ‘thought she should give more to Ali’ (said with the knowledge that she had signed a severance of the joint tenancy).
The evidence also establishes that Mary had a moral obligation to her sisters, Marcel and Madeline, who are natural testamentary objects and this was recognised her by in each of her wills. In particular, the evidence establishes that Mary had a close and loving relationship with Marcel throughout her life.
In relation to the nature and extent of the deceased’s estate (s 60(2)(c)), the net distributable estate (before taking into account the conclusion above regarding the estoppel claim) is $1,559,826 (excluding legal costs of the proceedings).
In relation to Ali’s financial resources and needs (including earning capacity) and age (s 60(2)(d), (e) and (g)), he is currently 74 years of age with limited earning capacity. His principal assets are his interest in the McPherson St property and Unit 7. Had he failed on his estoppel claim, he would be required to make Unit 7 his home (or purchase another property with the proceeds of his half share of the McPherson St property) with a commensurate reduction in his income.
Ali suffers from a number of medical conditions: post-traumatic stress disorder, depression, anxiety, systemic arthritis, spinal stenosis, bulging disc in the lower back and neck, dental issues, severe tinnitus and cataracts requiring surgery.
Ali’s family provision claim, as set out in his affidavit evidence, is that he remain in and retain the Garfield St property as his home, which requires renovation work to the kitchen and bathroom, repainting and carpeting which he estimates will cost around $50,000, medications for his various medical conditions which he estimates have a cost of $40 per week and a new car which he estimates will cost approximately $36,000.
In relation to Marcel’s financial resources and needs, she lives with her daughter Sandra who inherited the flat which Marcel and her husband lived in together until her husband’s death. She owns land in Egypt with an estimated value (at the date of her affidavit) of US$7,000 which she is unable to sell (which is subject to a mortgage). She is 73 years of age and does not have an income, and had monthly expenses (at that time) of $730. She would like to relocate her family to Cairo but does not have the financial sources to do so.
In relation to contributions by Ali to the deceased’s estate (s 60(1)(h)) the evidence establishes that Ali made financial contributions Mary’s estate or her welfare during her lifetime in the sense that he paid for many of the costs of their shared lifestyle as well as paying more than 50% of the cost of acquiring and maintaining the McPherson St property (by which she benefitted through receiving 50% of the income).
In relation to provision made by the deceased for Ali (s 60(1)(i)), the evidence does not suggest that Mary provided any material benefits to Ali during her life, except for contributing 35% of the overall cost of the acquisition of the McPherson St property.
In relation to the testamentary intentions of the deceased (s 60(1)(j)), I have referred above to the limited recognition by Mary of her moral obligation to Ali in her 2015 will and what she said to Mr Windeyer after signing it. There is an explanation for this limited recognition of her moral obligation to him in her delusions about him referred to earlier in these reasons.
Ali was not maintained by Mary (s 60(1)(k)) and no other person is liable to support him (s 60(1)(l)).
The evidence does not raise any matter relevant under the other paragraphs of s 60(2).
Taking all of these matter into account, had Ali failed in his estoppel claim, I would have concluded that the 1993 will failed to make adequate provision for the proper maintenance, education or advancement in life of Ali. As a general guideline, it may be said that if the size of the estate is sufficient, a testator has a moral duty to provide to the surviving spouse of a long standing harmonious relationship, provision of a secure home, an income sufficient for him or her to live in a reasonable degree of comfort and a fund for modest luxuries: Steinmetz v Shannon at [98]-[109]. However, where there are competing claims on an estate which is insufficient to meet all of them, the claim of the surviving spouse cannot be regarded as paramount: Steinmetz v Shannon at [100]. In the present case, the estate is not large and there is a competing moral claim to Marcel which needs to be recognised, and was consistently viewed by the deceased in all her wills as conferring an entitlement on Marcel to the Garfield St property (which Mary had acquired prior to her relationship with Ali).

Given that the nature and size of the estate means that each of these moral claims could not be met in full, I would have found (had the estoppel claim not been successful) that the appropriate provision for Ali was the transfer to him of Mary’s 50% share of the McPherson St property. That would allow some effect to be given to Mary’s gift of the Garfield St property to Marcel, and recognise both Ali’s moral claim and his disproportionate contributions to the acquisition of the McPherson St property.
As noted, it follows from the way Ali’s case was put at the hearing that the family provision claim is not pressed in light of the conclusion I have reached that his estoppel claim should succeed. I regard that as a correct concession as, in my view, given the success of his estoppel claim, the 1993 will does not fail to make adequate provision for Ali’s proper maintenance, education or advancement in life.
I reach that conclusion because of the need to recognise the competing moral claim of Marcel, which Mary recognised in all her wills, and that Ali will (as a result of success of the estoppel claim) be able to use either the McPherson St property or Unit 7 as his home and the other to derive rental income. I note that the size of the deceased’s net estate following success of the estoppel claim is only $734,826 (before taking into account legal costs) (Ex K).

Conclusion

For the above reasons, I have concluded that:

The first defendant has succeeded in propounding the 1993 will which is the deceased’s only valid will, and probate of that will should be granted to the NSW Trustee and Guardian.

The plaintiff has succeeded in his claim that the defendants are estopped by the conduct of the deceased from denying that the plaintiff is entitled to the deceased’s half share in the McPherson St property. The appropriate relief is a declaration that the plaintiff is the legal owner of the whole of the McPherson St property and an order that the interest registered in the name of the deceased in that property be transferred to the plaintiff.

The plaintiff has failed on the resulting trust and the family provision claims.

Subject to anything which the parties wish to say regarding the form of the orders, the orders I propose to make to deal with the substantive issues are as follows:

Order that probate of the deceased’s will dated 30 June 1993 in solemn form be granted to the NSW Trustee and Guardian.

Order that the proceedings be remitted to the Registrar to complete the grant.

A declaration that the defendants are estopped by the conduct of the late Mary Moussa from denying that the plaintiff is the legal and beneficial owner of the real property known as 6 McPherson Street, Carlton, New South Wales (McPherson St property).

A declaration that the NSW Trustee and Guardian, as executor, holds any title and interest in the McPherson St property in trust for the plaintiff.

Order that the interest registered in the name of the late Mary Moussa, or the NSW Trustee and Guardian as executor, in the McPherson St property be transferred to the plaintiff.

This leaves an outstanding issue of costs. The parties have requested the opportunity to make submissions on costs after these reasons are published. I will make orders for submissions on costs, and note that the parties will need to address the extent to which it is appropriate for the deceased’s estate to bear costs in circumstances where the costs incurred by the plaintiff and the first defendant appear to be out of proportion to the amount which each could have expected to recover if successful.
I direct the parties, within 14 days of these reasons being delivered, to provide to my associate short minutes of order which reflect these reasons, which should allow the parties sufficient time to agree on orders to reflect these reasons and a timetable for submissions on costs.

**********

Amendments

19 November 2024 - [232] and [253] minor typographical corrections.

28 April 2025 - [99](5) typographical correction.

Decision last updated: 28 April 2025

Medium Neutral Citation:	Erem v Moussa [2024] NSWSC 641
Hearing dates:	5–15 and 21 March 2024
Date of orders:	15 October 2024
Decision date:	15 October 2024
Jurisdiction:	Equity - Succession & Probate List - Probate
Before:	Richmond J
Decision:	See [301]–[304]
Catchwords:	SUCCESSION — Contested probate — Testamentary capacity — Application of test in Banks v Goodfellow — Whether deceased suffering from delusions that affected the provisions of the will SUCCESSION — Probate and administration — Rectification of wills SUCCESSION — Family provision — Claim by de facto partner of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — Whether inadequate and proper provision made for the plaintiff and, if so, the nature and quantum of the provision to be made LAND LAW — Co-ownership — Severance of joint tenancy EQUITY — Trusts and trustees — Resulting trusts ESTOPPEL — Proprietary estoppel — Encouragement
Legislation Cited:	Evidence Act 1995 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Real Property Act 1900 (NSW) Succession Act 2006 (NSW)
Cases Cited:	Banks v Goodfellow (1870) LR 5 QB 549 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13 Calverley v Green (1984) 155 CLR 242; [1984] HCA 81 Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 886 Crago v McIntyre [1976] 1 NSWLR 729 Crouch v Hooper (1852) 16 Beav 182; 51 ER 747 Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218 Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15 Et-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24 Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17 Gooley v Gooley [2020] NSWSC 798 Gooley v Gooley [2021] NSWSC 56 Goyal v Chandra [2006] NSWSC 239; (2006) 68 NSWLR 313 Hamill v Wright [2018] QSC 197 Henderson v Executor Trustee Australia Ltd (2005) 93 SASR 337; [2005] SASC 477 John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 Jones v Dunkel (1959) 101 CLR 298 Kramer v Stone (2023) 112 NSWLR 564; [2023] NSWCA 220 Moore v Aubusson [2020] NSWSC 1466 Perochinsky v Kirschner [2013] NSWSC 400 Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 Priestley v Priestley [2017] NSWCA 155 Q(a pseudonym)v E Co (a pseudonym) (2020) 383 ALR 469; [2020] NSWCA 220 Re Estate of Griffith; Easter v Griffith (1995) 217 ALR 284 Re Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 Re O’Neil, (dec’d) [1972] VR 327 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Sutton v Sutton [2009] EWHC 2576 Tarbes v Taleb [2023] NSWSC 565 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Watson v Foxman (1995) 49 NSWLR 315 Zorbas v Sidiropoulous(No 2) [2009] NSWCA 197
Texts Cited:	B Edgeworth, Butt’s Land Law (7th ed, 2017, Lawbook Co) J D Heydon, Cross on Evidence (13th ed, 2021, LexisNexis),
Category:	Principal judgment
Parties:	Ali Erem (Plaintiff/Cross-defendant) Marcel Aziz Moussa (also known as Marcel Aziz Alnabulsi) (First Defendant/Cross-claimant) NSW Trustee and Guardian (Second Defendant)
Representation:	Counsel: K Morrissey / M Short (Plaintiff) P Bates (First Defendant) Solicitors: Turner Freeman (Plaintiff) City Lawyers and Consultants (First Defendant)
File Number(s):	2016/00313069
Publication restriction:	Nil