Estate of the late Genevieve Bryan

[2022] NSWSC 965

Supreme Court

New South Wales

Medium Neutral Citation:

Estate of the late Genevieve Bryan [2022] NSWSC 965

Hearing dates:

7 – 10 February 2022

Date of orders:

21 July 2022

Decision date:

21 July 2022

Jurisdiction:

Equity

Before:

Ward CJ in Eq

Decision:

1.   Dismiss the plaintiff’s claim with costs.

2.   Order that probate in solemn form of the Will dated 23 December 2014 of the late Genevieve Bryan be granted to George Daniel.

3.   Order that the costs of the cross-claim be paid out of the estate of the late Genevieve Bryan on an indemnity basis.

4. Order that, subject to compliance with the Uniform Civil Procedure Rules, the matter be remitted to the Registrar for the completion of the grant.

5.   Remit file to the Probate Registrar for completion of the grant of probate.

Catchwords:

SUCCESSION — Contested probate — Testamentary capacity — Application of test in Banks v Goodfellow — Where deceased suffered from mild cognitive impairment and various physical ailments

SUCCESSION — Family provision — Claim by alleged member of household and dependant of the deceased for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3

Legislation Cited:

Probate and Administration Act 1898 (NSW), Sch 3, Pt 2

Succession Act 2006 (NSW), ss 57, 59, 60

Cases Cited:

Astridge v Pepper [1970] 1 NSWR 542

Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21

Banks v Goodfellow (1870) LR 5 QB 549

Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089

Battenberg v Phillips [2020] NSWCA 249

Bosch v Perpetual Trustee Company [1938] AC 463

Boyce v Bunce [2015] NSWSC 1924

Boyse v Rossborough (1857) 6 HLC 2

Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13

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

Chant v Curcuruto [2021] NSWSC 751

Clocchiatti v Pierobon [2014] NSWSC 488

Cong v Shen (No 3) [2021] NSWSC 947

Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197

Croft v Sanders [2019] NSWCA 303

Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235

Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218

Estate of Park [1954] P 112; [1953] 3 WLR 1012

Estate of Rofe [2021] NSWSC 257

Fincham v Edwards (1842) 163 ER 656

Fulton v Andrew (1875) LR 7 HL 448

Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17

Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430

Hall v Hall (1868) LR 1 P & D 481

Hawes v Burgess [2013] EWCA Civ 74

Hobhouse v Macarthur-Onslow [2016] NSWSC 1831

Hoff v Atherton [2004] EWCA Civ 1554

Hunter v Hunter (1987) 8 NSWLR 573

In Re Horrocks (deceased) [1939] P 198

In the Matter of the Estate of Eva Burns (deceased); Burns v Burns [2016] EWCA Civ 37

In the Will of Steward (deceased) [1964] VR 179

Kerr v Badran [2004] NSWSC 735

Lewis v Lewis (2021) 105 NSWLR 487; [2021] NSWCA 168

McKenzie v Topp [2004] VSC 90

Mekhail v Hana [2019] NSWCA 197

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

Paraskov v Paraskos [2002] WASC 109

Pates v Craig (Supreme Court (NSW), Santow J, as his Honour then was, 28 August 1995, unrep)

Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275

Phillips v Phillips [2017] NSWSC 280

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

Re Estates Brooker-Pain and Soulos [2019] NSWSC 671

Re Fulop (Deceased) (1987) 8 NSWLR 679

Re Nickson, Deceased [1916] VLR 274

Re Proud (1922) 18 Tas LR 10

Revie v Druitt [2005] NSWSC 902

Scott v Scott [2012] NSWSC 1541; 7 ASTLR 299

Sgro v Thompson [2017] NSWCA 326

Simon v Byford [2014] EWCA Civ 280

Stone v Stone [2016] NSWSC 605

The Estate of Genevieve Bryan [2021] NSWSC 567

Thompson v Bella-Lewis [1997] 1 Qd R 429

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

Trustee for the Salvation Army (NSW) Property Trust v Becker (2007) 14 BPR 26,867; [2007] NSWCA 136

Tyrrell v Painton [1894] P 151

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

Vernon v Watson; Estate Clarice Isabel Quigley Dec’d [2002] NSWSC 600

Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11

Weiss v Weiss [2020] NSWSC 1064

Williams v Goude (1821) 1 Hag Ecc 577

Wingrove v Wingrove (1885) 11 PD 81

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

Woodley-Page v Simmons (1987) 217 ALR 25

Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67

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

Texts Cited:

GE Dal Pont, The Law of Succession (3rd ed, 2021, LexisNexis Butterworths)

Justice Lindsay, “The Why and What of Suspicious Circumstances in Probate Litigation”, (paper delivered to Law Society of South Australia Succession Law Conference, Adelaide, 16 November 2018)

Justice Myers, “Testamentary Capacity” (1967) 2(2) Aust Bar Gaz 3

Category:

Principal judgment

Parties:

Elias Chakty (Plaintiff)
George Daniel (Defendant)

Representation:

Counsel:
A Cheema (Plaintiff)
LJ Ellison SC with AE Maroya (Defendant)

Solicitors:
Auburn Lawyers (Plaintiff)
Danny Eid Lawyers (Defendant)

File Number(s):

2019/00373291

Publication restriction:

Nil

Judgment

1. HER HONOUR: This matter involves a dispute as to the estate of the late Mrs Genevieve Bryan, a widow with no children who died on 13 November 2019 aged 93. The deceased’s estate is worth approximately $4 million, comprised largely of two unencumbered residential properties in Hurlstone Park, New South Wales, together with cash of approximately $190,000 in various bank accounts. One of the residential properties (the Dunstaffenage Street Property) was rented at the time of the deceased’s death. The deceased resided in the other property (the Starkey Street Property) for many years prior to her death.

2. The deceased had made a number of Wills. There were in evidence two earlier Wills, made on 7 June 2005 (the 2005 Will) and 6 May 2009 (the 2009 Will) respectively, which neither party here propounds; and two later Wills, one dated 23 December 2014 (the 2014 Will) and one dated 31 October 2019 (the 2019 Will). The present proceeding primarily involves a contest as to whether the last of those Wills should be admitted to probate. There is no challenge to the validity of the 2014 Will.

3. Under the 2014 Will, which was prepared by Mr George Khoury of George Khoury & Co solicitors, and is propounded by the defendant (Mr George Daniel), the deceased appointed her “dear friend” Mr Daniel as her executor and trustee, leaving Mr Daniel the Starkey Street Property (and also the residue of her estate), making bequests to two charities, and dividing the proceeds of sale of the Dunstaffenage Street Property in differing percentages among various named family members and godchildren (one of whom was the plaintiff, her nephew, Mr Elias Chakty – whose name was there misspelt as “Elie Shakty”). If Mr Daniel predeceased the testatrix, then the gifts in his favour passed to his son, Frederick George Daniel, on attaining the age of 25. The 2014 Will was witnessed by two secretaries of Khoury Taxation Services Pty Ltd (a taxation services firm in the adjoining office to that of Mr Khoury’s law firm). Relevantly, the gift in favour or Mr Daniel in respect of the Starkey Street Property was on condition that “he has not moved [the deceased] to a nursing home, retirement village or a similar establishment during [her] lifetime” (see cl 3).

4. The 2019 Will was prepared by Mr Hasan Aziz, the principal of Dot Legal Pty Limited, solicitors, (Dot Legal) and is propounded by Mr Chakty. Under the 2019 Will, the deceased appointed Mr Chakty as her executor and trustee, leaving Mr Chakty the Starkey Street Property. Under the 2019 Will, the deceased again left the Dunstaffenage Street Property to a number of named beneficiaries (including Mr Chakty and Mr Daniel) in varying percentages. The 2019 Will does not contain a clause as to the residue of the estate. Nor does it contain any bequests to charities (something that Mr Chakty said the deceased had told him but to which there was no reference in his affidavit evidence – see T 93). The 2019 Will was witnessed by a then newly qualified solicitor at Dot Legal (Mr Namatullah Husseini) and paralegal (Mr Michael Conti) who was employed by Dot Legal (and other firms) at the time. An accredited Arabic interpreter (Mr Mohamad Nahas) was present on that occasion and gave evidence as to his “interpretation” of the Will in Arabic to the deceased (I refer below to Mr Nahas’ explanation of the difference between translation and interpretation in this context.) Mr Conti speaks Arabic and English fluently. Mr Husseini does not speak or understand Arabic.

5. On 27 November 2019, Mr Daniel (whose evidence is that he was the carer of the deceased for a number of years before her death, and who had lived at the Starkey Street Property with the deceased since around 2014) filed a caveat against a grant of Probate.

6. Mr Chakty then commenced the present proceeding and, by amended statement of claim filed on 3 December 2021, Mr Chakty seeks a grant of probate in solemn form in his favour of the 2019 Will.

7. By his further amended defence filed in Court on 7 February 2022, Mr Daniel alleges that: the deceased was induced to execute the 2019 Will by undue pressure or influence on the part of Mr Chakty (see at [7]); the deceased was not of sound mind, memory and understanding at the time of making the 2019 Will (see at [8], thus raising a lack of capacity); and the deceased did not know and approve of the contents of the 2019 Will at the time it was made (see at [9], raising the issue of suspicious circumstances calling for the need for Mr Chakty to prove the righteousness of the transaction – see the particular added to [9] of the further amended defence at [9](e)). By cross-claim filed on 3 April 2020 and amended on 27 April 2020, Mr Daniel seeks probate in solemn form in his favour of the 2014 Will. Alternatively, he seeks a family provision order in his favour pursuant to s 59 of the Succession Act 2006 (NSW) (Succession Act).

8. Although in his defence to the cross-claim filed on 6 May 2022, Mr Chakty does not admit the validity of the 2014 Will. On 10 August 2020 when the matter was before Hallen J there was an admission by Mr Chakty’s legal representative, on Mr Chakty’s behalf, as to the validity of the 2014 Will. Mr Chakty does not resile from that position.

Testamentary instruments

9. Before turning to the relevant chronology of events, it is convenient to summarise the history of the deceased’s successive testamentary instruments.

The deceased’s earlier Wills

10. I have referred above to the fact that the deceased executed Wills in 2005, 2009, 2014 and 2019, each on its face having been drafted by a solicitor and each on its face having been properly witnessed and executed.

11. The 2005 Will appointed the Public Trustee of New South Wales as executor and trustee (now the NSW Trustee and Guardian) and divided most of the estate between the deceased’s siblings, nieces and nephews in eight equal parts (including a share to Mr Chakty) and including one part for a friend, Mr Joseph O’beid. There was some provision for another friend (Mr Georges Haifa) and for the St Charbelis Church, Order of the Lebanese Maronite in Punchbowl (although I note in the 2014 Will the deceased made a bequest to the St Charbel’s Church, and thus presumably this is a typographical error). Mr Daniel was not named as a beneficiary in the 2005 Will. There was a notation in this Will as to the deceased’s lack of fluency in English and it was there recorded that the Will was read out in the Arabic language and that the deceased had “indicated that she understood it and approved its content”.

12. Mr Chakty points out that this notation is inconsistent with Mr Daniel’s evidence as to the deceased being “fully fluent” in English (see Mr Daniel’s second affidavit sworn 12 May 2020 at [35]; see also Mr Daniel’s evidence at T 218.19-28 that the deceased was fluent both in Arabic and English). Mr Daniel’s evidence is that he was not aware of the 2005 Will until this proceeding (T 217.31-38).

13. Mr Chakty’s evidence (in his affidavit affirmed 27 March 2020 at [2]) is that the deceased understood English and some Greek but that her main language was Arabic and that this was the language in which she communicated with him and his family (see also [28] of Mr Chakty’s paragraph 9.3 affidavit affirmed 17 June 2020). Nevertheless, Mr Chakty has also deposed that the deceased and her late husband (who died in 1999) communicated with each other in English and there is other (independent) evidence (to which I refer in due course) that amply confirms the ability of the deceased to speak English. Mr Chakty has also deposed that the deceased was illiterate. Mr Chakty reiterated this in his oral evidence at T 85-86, there saying that the deceased could only read “some alphabet” but could not put the alphabet together to make a word (see T 85.10-16); and could not read either English or Arabic (see T 85.24-31). Again, there is independent evidence to the contrary (which I address in due course and on which I place more reliance).

14. The 2009 Will (drafted by Mr Khoury) appointed Mr Tony Youssef Hayek (one of the deceased’s nephews) as executor and trustee. Under the 2009 Will, the deceased gave Mr Hayek a life estate in the Starkey Street Property and thereafter gave the property to Mr Hayek’s son, Mr Joseph Hayek. Half of the residual estate was left to Mr Hayek’s brother, Habib; and the other half was to be distributed (in unequal shares) among the deceased’s siblings and nieces and nephews (including Mr Chakty). There was also provision for various of the deceased’s godchildren and named friends. There was a gift of $10,000 to Mr Daniel. (Mr Chakty points out that the 2009 Will appears to favour the children of the deceased’s brother, Mr Youssef Hayek (also known as Joseph).)

The 2014 Will

15. As noted above, the 2014 Will (which Mr Daniel propounds in his cross-claim) appointed Mr Daniel as the deceased’s executor and trustee, giving him the Starkey Street Property (provided he had not “moved [the deceased] into a nursing home, retirement village or a similar establishment during [her] lifetime”) and (after bequests to two charities) divided the residue among named family members (including Mr Chakty) and godchildren. (Mr Chakty says that this marks a shift in testamentary disposition in that a non-relative, Mr Daniel, was the largest beneficiary and named as the executor and trustee.) As noted above, under the 2014 Will, the gifts in favour of Mr Daniel went to his son if Mr Daniel died before the deceased. (As I explain in due course, on one view of the evidence the concern expressed by the deceased as to her 2014 Will was as to the gift over in favour of Mr Daniel’s son, as opposed to Mr Daniel, and Mr Chakty himself was unsure as to the meaning of one of his conversations with the deceased in this regard – see T 56.16-28. However, there is other evidence relied upon by Mr Chakty to the effect that the deceased did not want to leave “everything” to Mr Daniel.)

16. In the 2014 Will, there was provision in cl 12 as follows:

I have not given my nephews Tony Youssef Hayek and Habib Youssef Hayek or my nieces Marie Hayek and Georgetta Katia (nee Hayek) as they have inherited the whole estate of my late brothers Youssef Hayek and Michele (Michael) Hayek and have abandoned contact with me and never visit me nor do their children. They do not consider me as “Family” and I have reached the conclusion that I must not consider them family as well. They never had the courtesy of showing me or sending me a copy of my late Brothers’ Wills.

17. Mr Chakty relies on this clause (see his submissions in due course) as indicating that there was a similar and rational reason for the deceased to change her disposition of the Starkey Street Property in her last Will, suggesting that the deceased’s perception may have been that Mr Daniel was working too much and not caring for her at home in the period leading up to her death.

18. On the same day that the 2014 Will was executed, the deceased executed an Enduring Power of Attorney which appointed Mr Daniel as Enduring Attorney and came into force upon execution of the document and an Enduring Guardian document that appointed Mr Daniel as her Enduring Guardian in case of partial or total incapacitation.

19. Mr Chakty points out that the 2014 Will specifically excludes the main beneficiaries of the 2009 Will (Tony and Habib Hayek, and their sisters Marie Hayek and Georgette Katia). As noted above, cl 12 of the 2014 Will set out the deceased’s reason for excluding various members of the Hayek family from the Will. However, Mr Chakty notes that one daughter from this part of the family remained included in the 2014 Will (namely, Ms Minerva Sourouni (née Hayek)), who was to receive 6% of the sale proceeds of the Dunstaffenage Street Property (which was the same provision as made for her in the later 2019 Will).

The 2019 Will

20. Under the 2019 Will, again as noted earlier, the deceased appointed Mr Chakty as her executor and trustee; and Mr Chakty was the main beneficiary, being left the Starkey Street Property. The Dunstaffenage Street Property was divided between the deceased’s siblings, nieces, nephews and godchildren (including a share for Mr Chakty); as well as a 6% share being left to Mr Daniel). The Hayek family members remained excluded as beneficiaries under the 2019 Will (with the exception of Ms Sourouni, whose share from the 2014 Will was not altered). I explain in more detail below the circumstances surrounding the execution of the 2019 Will.

Chronology of events

21. The deceased emigrated to Sydney from Lebanon in about 1955, then in her late twenties. The deceased’s husband was of Scottish extraction (T 47.21-25) (a matter of some relevance when considering the unlikelihood that the deceased was incapable of communicating in English – see below). The deceased’s husband died in 1999 and the deceased did not remarry. The couple did not have any children. The deceased’s closest relatives were her various nieces and nephews (of whom Mr Chakty was one, as was another of the witnesses in the proceeding, Ms Sonia Tawk).

22. Mr Daniel, though not a biological member of the deceased’s family, had been associated with the deceased for many years (and, as noted above, was described in the 2014 Will as the deceased’s “dear friend”). Mr Daniel’s affidavit evidence was that his parents were close friends of the deceased and that he treated the deceased for the whole of his life as if she were his parent (see at [7] of his affidavit sworn 12 May 2020). Mr Daniel deposed that he was born at the Starkey Street Property in 1970 (though in oral evidence he said that it was at the Dunstaffenage Street Property – see T 188.1-10).

23. Although Mr Chakty, in his submissions, appears to cast some doubt on the evidence that Mr Daniel was born at one of the deceased’s properties (as being, as it is, merely Mr Daniel’s assertion) and discounts the significance of this on the basis that it was not unusual for the deceased to permit persons, such as Mr Daniel’s parents, to occupy her properties from time to time rent-free, there is no doubt that Mr Daniel was sufficiently connected with the deceased for him to have moved into the Starkey Street Property from around 2015 and to have assumed, at least to some extent, the role of the deceased’s carer for some time prior to the deceased’s death (see below). Mr Chakty suggests that Mr Daniel moved into the Starkey Street Property after his marriage broke up but, whether or not that is the case, there is no doubt that Mr Daniel was living in the property for a number of years before the deceased’s death.

24. As adverted to above, there was a suggestion by Mr Chakty (see, for example at [84] of the Plaintiff’s Outline Submissions) that the deceased was not fluent in the English language; and Mr Chakty further deposed that the deceased was illiterate. There is no dispute that the deceased’s native language was Lebanese (or Arabic Lebanese as it was referred to in the course of the hearing – see T 69.23-24). However, there can also be no doubt that the deceased was able to speak English (and indeed Mr Chakty in his affidavit evidence deposed that the deceased had communicated with her husband in English) and I so find.

21. Relevantly, Mr Khoury, the solicitor who had acted for the deceased from 2009 and who prepared the 2014 Will, deposed in his affidavit sworn 31 July 2020 (on which he was not cross-examined) that the deceased had been a client of his firm since 2009, that during that period he spoke to the deceased on numerous occasions in English and in Lebanese, and that he considered that the deceased was fluent in both languages (see [3] and [12] of Mr Khoury’s 31 July 2020 affidavit). Mr Khoury drafted a number of documents for the deceased in 2009 and 2014. As to the 2014 Will, Mr Khoury deposed that he spoke mainly to the deceased in English and that he did not consider that the deceased was in need of the services of an interpreter when making the 2014 Will (see at [12] of his affidavit).

22. The deceased’s orthoptist from 2010 to November 2016, Mr Pierre Elmurr, who also was not cross-examined on his affidavit, gave evidence to similar effect. Mr Elmurr’s evidence (see his affidavit sworn 15 July 2020 at [3]) was that (although he is fluent in Arabic) his experience with, and observations of, the deceased were that he did not have to explain things to her in Arabic during any of his consultations with her, and it was his habit to speak to her in English. In addition, and significantly insofar as the illiteracy assertion is concerned, Mr Elmurr gave evidence that in June 2016 he tested the deceased’s ability to use bifocal lenses prescribed to her (see at [5]) and that the deceased was able to read small fine print and magazines, and that the deceased “read and responded fluently in English”. Mr Elmurr said that it was clear to him from this that the deceased was able to read English.

23. Further, Mr Daniel points to the fact that the hospital notes and medical records do not record that the deceased had difficulties in communicating in English with the hospital staff (and, as noted above, the deceased was married for many years to her husband who Mr Chakty confirmed did not speak Arabic or Lebanese). Mr Chakty’s own evidence is that the deceased and her husband had communicated in English.

24. I place weight on the uncontested evidence of Mr Khoury and Mr Elmurr, each of whom is an independent witness, and I find that during her lifetime the deceased was able to converse in English and that (contrary to Mr Chakty’s assertion) she was not illiterate.

Mr Daniel commences to care for the deceased

29. Mr Daniel’s evidence is that in 2013 he commenced to care for the deceased part-time at the Starkey Street Property and that between 2013 and 2015 he would regularly stay overnight at the Starkey Street Property for at least two to three times a week. Mr Daniel’s evidence was that he would drive the deceased to various medical appointments and that he would assist the deceased with finances and daily living chores (see his 12 May 2020 affidavit at [8]). Mr Daniel agreed that he did not arrange an assessment of the deceased as to her need for full-time care from any medical professional – T 192.14-22; but maintained that the deceased needed full time care by 2018 or 2019 because she had had some issues with falling.

30. Mr Daniel has deposed that he took the deceased to the solicitor (Mr Khoury) in December 2014 when she signed the 2014 Will but that he did not know the terms of the 2014 Will until after it had been signed by her (see T 189.33-39).

31. Mr Daniel has deposed that in mid-2015 he commenced living full time at the Starkey Street Property as the deceased’s full-time carer (see at [13] and [58] of his affidavit sworn 12 May 2020; T 188.37-50). Thus, it may be noted that, on Mr Daniel’s evidence, Mr Daniel had commenced to care for the deceased by the time of the 2014 Will (and the execution of the enduring power of attorney and guardianship instruments) but was not caring for the deceased or living full-time at the Starkey Street Property at that stage.

32. Mr Daniel worked during the relevant period for a medical practitioner (as his personal assistant or driver). In cross-examination, Mr Daniel said that he was working full time in 2009 (30-40 hours a week with occasional weekend work) for a limousine company; and by the time of the events in question Mr Daniel was working for a doctor during the weekdays but never on the weekend (T 192.24-43). Mr Daniel’s evidence was that he ordinarily left for work early in the morning on weekdays to drive the doctor to his office; that he would often return to the Starkey Street Property during the day; and that he would then drive the doctor home later in the afternoon. Mr Daniel gave evidence that from late 2018 he occasionally assisted a friend who owned a nightclub in Wollongong on weekends (effectively as an unpaid barman) but did that for less than one year (until probably February 2019) (T 193.24-50, 194.1-32, 195.26-28).

Deceased’s ill-health

33. In 2017, the deceased was diagnosed with breast cancer; and by June 2018 the cancer had spread to the deceased’s lungs.

34. Mr Daniel has deposed that in January 2019 the deceased was prescribed morphine due to the deceased’s pain issues and that between that time and the date of the deceased’s death he would orally administer a morphine medication and a sedative to the deceased (see at [14] of his 12 May 2020 affidavit).

35. Mr Daniel has deposed that in April 2019 he purchased a Livelife Alarm which the deceased wore around her neck and which she could activate in the event of an emergency (this alarm being equipped with “GPS tracking”) (see at [15] of his 12 May 2020 affidavit).

36. On 13 May 2019, the deceased suffered acute myocardial infarction and was admitted to hospital (see Professor Carmelle Peisah’s report dated 23 January 2021 at line 205).

37. Pausing here, there was in evidence a video taken of the deceased in May 2019 during the deceased’s admission to hospital following the heart attack, the relevance of which is that it provides a useful comparison of the deceased’s demeanour or “affect” at that time compared with the appearance and affect of the deceased in videos taken of her later (in September and October 2019) on which Mr Chakty relies (inexplicably) in support of his contention that the deceased had capacity (a sound memory or understanding) at the time of the making of the 2019 Will. I consider this issue in due course below.

May 2019 – gift of moneys to Mr Daniel

38. In May 2019, the deceased had approximately $234,966.35 in an interest-bearing term deposit account that was solely in her name. Mr Daniel’s evidence is that on 22 May 2019 he attended the Dulwich Hill branch of the Commonwealth Bank with the deceased as she wanted to set up a new joint term deposit account with him. There was in evidence a copy of the application or account confirmation form in respect of that joint account (to which I refer below). The deceased’s signature on that form comprised only her initials and, at least to my lay observation, the handwriting appeared very shaky. (Mr Daniel’s evidence was that the deceased had difficulty in signing by 31 October 2019 – see T 214.36-40).

39. Mr Daniel’s evidence is that, during this trip to the bank, the deceased confirmed a promise which she had first made in March 2019 to him that he could use her funds to repay $175,000 that he had borrowed from his father in order to purchase a unit in Wollongong. In cross-examination, Mr Daniel said that the property is not rented out as his son goes occasionally to Wollongong and his parents (T 219.10-15). Mr Daniel says that he did not transfer the gifted moneys until 22 October 2019 (see below) because he wanted the deceased to obtain the benefit of an interest-bearing account that was due to mature in October 2019.

40. Mr Chakty relies on the evidence of this “gift” for a number of purposes. First, he contends that if the deceased had capacity to make the gift in May 2019 then on Mr Daniel’s case she must have lost capacity some time between May 2019 and October 2019. Second, he says that the making of this gift may provide a rational explanation for the deceased’s change of her Will in relation to the disposition of the Starkey Street Property (i.e., that the deceased may rationally have considered that she had already made adequate provision during her lifetime for Mr Daniel). Third, reliance is placed on this in the context of Mr Daniel’s alternative family provision claim, the proposition being that even if Mr Daniel is an eligible person (which Mr Chakty disputes) there has been adequate provision made for him both in his lifetime and by the 6% share of the proceeds of sale of the Dunstaffenage Street Property.

The deceased’s hospitalisation in August 2019

41. On 2 August 2019, the deceased was admitted to Concord Repatriation General Hospital (Concord Hospital) with chest pain following a fall. The deceased remained in hospital there, under the care of a geriatrician (Professor David LeCouteur) until 14 August 2019. The hospital records note that on the day of admission a trainee specialist from the Geriatrics Aged Care Team, identified that the deceased had a mild cognitive impairment, and that the deceased was agitated and non-compliant with care during the admission. Professor Peisah concluded that this demonstrated that the deceased was at a high risk of delirium and falls on the background of mild cognitive impairment (see Professor Peisah’s report of 23 January 2021 at line 267-268).

42. This appears to be the first reference in hospital or medical records to “cognitive impairment” and Mr Chakty says that it appears from the notes that the source of the reference to mild cognitive impairment was information from Mr Daniel (who is referred to variously as “George”, “nephew” or “son”). Mr Chakty places emphasis in this regard on the entry in the hospital records on 2 August 2019 that states “Information from George – she is mentally sharp but can be vague when tired”. (Mr Daniel accepted at T 225.6-50 that he would have said this to the doctor at the time.)

43. On 2 August 2019, the deceased underwent an emergency department Aged Care Assessment with a registered nurse. The notes record the administration of what is referred to as a “Delirium Risk Assessment Tool” and a “Confusion Assessment Tool”; and that delirium was not found to be present and the deceased scored zero on the Delirium Risk Assessment Tool.

44. Mr Chakty says that, although there are some entries in hospital notes indicating “confusion” the vast majority of the nursing and midwifery notes recorded the assessment of the deceased’s cognition as “alert and oriented” as to time and place; and that, on examination, the deceased was responding to questions appropriately. It is relevant in this context to refer to the evidence given by Professor Peisah (the single Court appointed expert) as to the distinction between delirium and dementia; and the difficulty that is commonly experienced in diagnosing delirium. I refer to this in due course below.

45. Following the deceased’s discharge from hospital, an occupational therapist visited the deceased and Mr Daniel on 4 September 2019 and recorded the deceased’s cognitive status as follows “[s]ome forgetfulness, however nil major issues reported. Mrs Bryan is oriented and alert”.

20 October 2019

46. On Sunday, 20 October 2019, Mr Daniel took the deceased to visit her niece, Ms Tawk, and her family (on what turned out to be Ms Tawk’s last meeting with the deceased). Ms Tawk in her affidavit sworn on 11 May 2020 deposes to this last meeting with the deceased at Ms Tawk’s Punchbowl home. Ms Tawk deposed that the deceased complained that she was unwell and said words to the effect that she was becoming weak and tired and “I’m not going to last”. Ms Tawk also deposed that the deceased spoke “fondly” of Mr Daniel; told her to make sure that he was looked after; and said that Mr Daniel was responsible for all of her personal affairs after her death and that “I’ve given him everything I have after my death”.

Transfer of moneys into Mr Daniel’s account

47. On 22 October 2019, Mr Daniel transferred the sum of $187,231.68 from the joint term account into his personal account. Mr Daniel says that the additional $12,231.68 (over the amount of what he says was the gifted money sum of $175,000) was used to pay bills and expenses and land tax from his personal account. As noted above, Mr Daniel’s evidence is that this was a gift from the deceased.

Deceased’s cognitive ability as at October 2019

48. Before turning to the events that occurred between 23 October 2019 and 31 October 2019 in relation to the deceased’s final Will, it is relevant to note the position as to the deceased’s cognitive ability at this point.

49. Mr Daniel has deposed to his observations of the deceased from October 2019 becoming confused as to whether it was night or day (see at [16] of his affidavit of 12 May 2020) or what day of the week it was (see at [17]) and he has deposed that the deceased became more emotional and irritated in mood (see at [18] of his affidavit of 12 May 2020). See also his cross-examination at T 188ff. While not relevant to the deceased’s cognitive ability, nonetheless relevant to her health throughout the relevant period are hospital notes from the deceased’s admission to hospital on 4 September 2019 which record that the deceased had lost so much weight, was so fatigued and was spending so much time on the sofa that she was considered at risk of pressure sores.

50. Mr Chakty disputes the suggestion that the deceased was exhibiting signs of confusion at this stage (and adduced in evidence the so-called Arabic videos in support of his contention that the deceased was alert and oriented at that time, as to which I say more in due course). However, Mr Chakty’s evidence is that during his visits in 2019 (unspecified as to precise dates) the deceased would often say that she was worried she did not have long to live; and he has deposed that during September and October 2019 the deceased said “I am about to go” and asked him to call everyone to visit her (see his paragraph 9.3 affidavit, affirmed on 17 June 2020 at [22]; see also his evidence at T 66.19-20, and his acceptance that he knew the deceased was not very well). Pressed as to when the deceased had told him she was not going to “stay for long”, at T 66.25-26 Mr Chakty thought that the deceased had told him this on the Thursday (24 October 2019) (and then said that it was probably before the deceased met the interpreter at Mr Chakty’s house – which was on 26 October 2019). (At T 226.29-31, Mr Daniel gave evidence that in October 2019 the deceased said to him “George I’m very sick. I’m dying”.)

51. There is no evidence that Mr Chakty responded to the request that he says the deceased made to call everyone to visit her (say, by arranging any visits from the deceased’s relatives). Questioned in cross-examination about the frequency of his visits to the deceased, and noting that in his affidavit Mr Chakty had deposed to saying to the deceased that “we always visit you”, Mr Chakty’s evidence was that before 23 October 2019 they (he and his wife) were not visiting every day, nor every few days; but that it was every one or two weeks (see at T 39.10-49). Mr Chakty then said that he had seen the deceased once in September 2019 (and that his wife did not see the deceased in September 2019 nor in October 2019 before 23 October 2019) (see at T 39.31-49, T 40.1-20) and agreed that what he meant by saying to the deceased “we always visit you” was as to visiting on occasions such as Easter and Christmas or family birthdays and the like; and that he would sometimes visit her in between those times – say when he was passing by to or from work.

Chronology of events leading up to execution of 2019 Will

52. The chronology of events surrounding the execution of the 2019 Will needs to be set out in some detail.

Wednesday, 23 October 2019

53. Mr Chakty’s evidence (see [3] of his 27 March 2020 affidavit) is that on or about 23 October 2019 he received a call on his mobile phone from the deceased, while he was working on renovating what he referred to as his house at Colo Vale (though by this he seems to have been referring to his in-laws’ house since Mr Chakty’s residence with his wife, Juliette, is at Yagoona). Mr Chakty says that he asked the deceased “Are you okay? Is everything okay?” and the deceased said “I would like to see you. Why I don’t [sic] get to see anyone. Where is everyone?”. In re-examination he said that the deceased called him from a landline (see at T 94.34-47).

54. Mr Daniel’s evidence was that the deceased could not use the landline because she could not dial; that the deceased could only use the Livelife Alarm to call him – see T 207.4-9. Indeed, Mr Daniel says that he would dial the numbers for the deceased and that he was right beside her when the deceased called Mr Chakty on 23 October 2019. Pausing here, there is in Ex E a copy of the deceased’s telephone bill that records a telephone call at 10.04am on 23 October 2019 to Mr Chakty.

55. Pausing here, Mr Chakty places no little emphasis in submissions on the fact that it was the deceased who initiated the contact in relation to the change to her Will. However, in this conversation (on Mr Chakty’s own account) the deceased does not refer to anything about her Will (nor does she appear to exhibit any sense of urgency about seeing Mr Chakty). Rather, this conversation is consistent with the deceased’s apparently constant complaint around this time (at least according to Ms Tawk – see T 236.48-50, T 237.1-4; and supported it would seem by Mr Chakty’s own evidence) to the effect that she did not see anybody or that nobody came to visit her. Ms Tawk in her oral evidence said that the deceased complained about this (see at T 236.48-50, where Ms Tawk referred to a message sent to Juliette Chakty conveying that the deceased missed her).

56. Mr Chakty deposed that he went to his house in Yagoona later that morning; and that he and his wife, Juliette, then visited the deceased at her home (the Starkey Street Property) arriving at around midday.

57. Mr Chakty deposed in his first affidavit at [17] to a conversation with the deceased on this occasion about a visit from a Michael Haifa (a neighbour) who the deceased said had asked about her Will; and that he and a person named Frank were asking her if they were in the Will. Mr Chakty deposed that he asked the deceased if she had done her Will, which on one view is inconsistent with Ms Tawk’s account of conversations with Mr Chakty which presuppose that he knew there was a Will in existence.

58. In that regard, Ms Tawk deposed to conversations with Mr Chakty (which he denies) over several years before the deceased’s death in which she says that Mr Chakty would raise the subject of the deceased’s Will and query her (Ms Tawk) as to the identity of the beneficiary of her Will (see Ms Tawk’s affidavit sworn 11 May 2020 at [7]). Ms Tawk has deposed to Mr Chakty saying words to the effect that it was not fair for George to take everything and that the family should get it (see at [7]). In cross-examination, Ms Tawk said, with the ring of truth, that most people were trying to find out what was in the deceased’s Will (T 239.1-19) and that she (Ms Tawk) felt sorry for the deceased because the deceased thought that everybody was just using her for her money. (That sentiment is readily understandable given the circumstances of this case.)

59. Nevertheless, Mr Chakty was adamant that he did not know that the deceased had at that stage made a Will and said that he had not spoken to her before about this (see at T 42.24-28; T 86.46-50). Mr Chakty also denied (implausibly in my opinion) that he wanted to know what was in the deceased’s Will (see at T 87.1-21).

60. Mr Chakty deposed that the deceased did not respond straight away to his question whether she had done her Will but that the deceased then asked him and his wife to follow her to her bedroom (by which time he says that it was around 3.00pm and that it was the deceased’s bedtime) (see at [18]).

53. Mr Chakty deposed that in the bedroom the deceased showed him her passport and a bank book, asking him how much was in it (and he thought that there was over $9,000 recorded in it). Mr Chakty annexed to his affidavit some photographs that he said were taken at the time (including photographs of the deceased’s dressing table items). In oral evidence, it emerged that Mr Chakty took at least one of those photographs (the one of the deceased taking out her bank book); and that Juliette took others of the photographs (see T 43.41-49). Mr Chakty said that he was taking photographs in general to the bedroom and then when the deceased started showing the bank book and passport he asked his wife to take photographs – see at T 43.25-30).

54. The evidence as to why these photographs were taken is revealing. Questioned on this in cross-examination, Mr Chakty said, variously: “I thought maybe could be the opportunity” (see at T 43.19); he gave an answer about a watch of the deceased’s late husband that he said he had been promised and “its opportunity for me” (see at T 44.1-10); he did not know why photographs of perfume bottles were taken (see T 45.19-20); as to why there was a photograph of the bank book he said (see at T 45.30-32) “[i]ts opportunity to see how much inside the book for me and for her as her wish…” and “I don’t know maybe for the future. Maybe I don’t know” (T 45.34-39). There seems to me to be no obvious reason to take such a miscellany of photographs (including of an elderly woman in her pyjamas in her bedroom holding a bank passbook and then her Will) – and certainly none was proffered by Mr Chakty save that it was an opportunity for him to do so – other than that Mr Chakty wished to have some evidentiary record of the deceased’s appearance at the time. If indeed that was the reason for the photographs, then it is telling that they seem to have been taken before (on Mr Chakty’s account of events) the deceased had indicated a desire to change her Will.

55. Returning then to the chronology, Mr Chakty deposed that (after showing him the bank book) the deceased then handed him some papers and asked him to read them for her (as noted above, Mr Chakty had earlier in his affidavit deposed that the deceased was illiterate; and see [26]ff of his 17 June 2020 affidavit; see also T 46.8-18). Mr Chakty said that the document in question was a Will (the 2014 Will – see T 56.3-5) and that he read it to the deceased in English from the beginning to the end; that he read it slowly to the deceased; and that the deceased asked him to read it “all over again” as she would interrupt after he read a few sentences in English and ask her to explain it in Arabic.

56. In cross-examination, Mr Chakty said that he read every word of the 2014 Will (see at T 49.3-23) and that he read it twice in English, with explanation and then more explanation in Arabic) (T 49.22-23). Mr Chakty made clear that he explained the Will to the deceased again and again, while they were in the bedroom (see at T 49.28-31). He agreed that there was only one copy of the document, which he had; and he said that the deceased was listening and asking questions (see T 50.20-31).

57. Mr Chakty’s evidence is that they then went back again to the lounge room for coffee (see T 49.28-50) (though I note that earlier he had said it was the deceased’s bedtime in which case it is not clear why the deceased had not at that stage simply gone to bed). Mr Chakty deposed that he told the deceased that his name was “spelt wrong” (in the Will) and that the deceased had said “[y]es we will change that and I also want to do a couple of changes for Salim and Son[i]a”.

58. Mr Chakty deposed that the deceased also asked him “[w]hy did George put himself and his son after him”; and that the deceased further said that she did not ask him to do that and asked why had George done it (presumably the Will) like that. Mr Chakty said that he explained (this seemingly being the second time) that his name was spelt incorrectly and that he also told the deceased that she had left out one of the Kanaan family (Maggie).

59. Mr Chakty’s evidence was that he had been talking to the deceased about the 2014 Will by this stage for more than one hour (T 50.39-48).

60. Mr Chakty deposed that the deceased had asked him how much she gave to each of the beneficiaries under the Will and that he then “tried to explain the share of each person in percentages”. Mr Chakty deposed that the deceased asked him how much had been given to the Kanaan children and he said that they had each been given 12%; that the deceased asked what the 12% amounted to as a monetary figure and that he gave, as an example, the answer that, if Dunstaffenage Street was worth $1.5 million, then 12% of that figure was roughly $180,000 (in response to which Mr Chakty deposed that the deceased had said that this was too much). Mr Chakty deposed that he said to the deceased that “[s]ome people in the family are missing” and he gave, as an example, her sister (his mother) Warde’s other children.

61. In cross-examination, there was some confusion on the part of Mr Chakty as to what he meant when he deposed that he had tried to explain the percentage shares of the named beneficiaries (see T 51) – so, for example, he said that he explained to her the percentage of each one and how much percentage there was for each one but that he did not give an explanation for each of the nine named beneficiaries “probably – maybe because all same percentage” (see at T 52.13-15). The difficulty with that evidence is that there were different percentages specified for various of the beneficiaries. Mr Chakty agreed that in the Will that he read out in the bedroom to the deceased Mr Daniel was not in the list of beneficiaries who obtained a percentage share (see at T 55.39-50, T 56.1-8) and that there was no discussion about Mr Daniel in the explanation of percentages. At T 55.9-10, Mr Chakty agreed that the deceased did not say to him in that conversation what she wanted Mr Daniel to get under the Will and that her concern was in relation to fixing the percentage each of the nine beneficiaries was to receive (see T 55.12-18). However, Mr Chakty then said that the deceased did discuss the provision made for Mr Daniel and that “she did told [sic] me a different story”. Mr Chakty gave evidence that the deceased was upset about “why George put himself and special [sic] to his son after him” and that the deceased said she had not asked Mr Daniel to do that (see T 56.16-18). Mr Chakty said that he did not know if the problem was that Mr Daniel was in the Will or that his son was to benefit in the event of Mr Daniel’s death (see T 56.26-28). I interpose to note that there is no challenge to the 2014 Will and that Mr Khoury’s evidence as to its preparation and execution was not contested.

62. There was some inconsistency between Mr Chakty’s affidavit and oral evidence as to the time at which there was a conversation with the deceased in relation to her wanting to reduce the share for Ms Tawk (because they had not visited her for a long time and Ms Tawk had turned her phone off), i.e., whether that occurred before they went into the bedroom (as deposed to in his affidavit) or in the loungeroom before he left (as emerged in the chronology in his oral evidence – T 53.36-44).

63. Mr Chakty deposed that he offered to get the deceased an interpreter to “explain it all” to the deceased and that the deceased asked him “[d]o you know any good solicitor[s]” to which he responded that “I know some but what do you want to do”. Mr Chakty deposed that the deceased did not give him an answer to that question straight away but then said that she wanted “to make some changes. I want everyone to be as equal as possible. I do not want George to take the house with his son after him. I want you to take the house as I promised my sister”. Mr Chakty deposed that he told the deceased that “I will do a draft for you and come tomorrow and show you”.

64. The reference in the above conversation attributing to the deceased a promise made to the deceased’s sister is of some relevance because Mr Chakty deposed in a later affidavit to a promise made to him (not in terms to his mother, Warde) over the years (he says from as long ago as 1991 to 1992) that the deceased would give him one of her properties (see [8] of his affidavit affirmed 17 June 2020). Cross-examined about this promise, Mr Chakty gave inconsistent evidence as to the timing of the promise (see below).

65. Mr Chakty said in his oral evidence that by the time he left it was late afternoon and he estimated that he could have spent more than two or three hours with the deceased (see T 53.15-22). On the chronology emerging from his own evidence it must indeed have been a long afternoon for the deceased – Mr Chakty’s evidence is that he and his wife arrived around midday; that they went into the bedroom around 3.00pm; that he was talking with the deceased in the bedroom for (at least) around an hour; the conversation continued in the loungeroom; and that it could have been more than two or three hours, with him leaving in the late afternoon. In that time, on Mr Chakty’s evidence he had read the 2014 Will out (every word and number) slowly once in English, again in English with explanation, and then with more explanation in Arabic; and he said that there were “a lot of questions and answers” (T 52.40-42).

66. Asked why he had said he would come the following day (to show the deceased the draft he would do for her), Mr Chakty responded that “she asked me to come tomorrow. She don’t [sic] have to ask me”.

67. Pausing here, it is by no means clear how Mr Chakty thought he had any instructions as to the content of the new Will he was there saying he would draft himself – beyond changing the spelling of his name; making some undisclosed change to Salim’s (the deceased’s brother) share; perhaps adding the missing member of the Kanaan family (Maggie or Maguy); and making some change in relation to the provision for Mr Daniel (though it seems he was unsure whether that was to change Mr Daniel’s bequest or to remove the gift over in favour of Mr Daniel’s son).

68. When further pressed as to the timeline of the 23 October 2019 visit, Mr Chakty said that they got to the deceased’s home at about midday and that they left about 3.00pm or 4.00pm in the afternoon (see at T 57.43-49).

69. Mr Chakty’s evidence as to the 23 October 2019 visit to the deceased is broadly corroborated by his wife, Juliette. Mrs Chakty affirmed an affidavit on 14 July 2021 in which she deposed that, in or around October 2019, she and her husband visited the deceased; that the deceased asked them to come into her room as she wanted to clarify something with them; that the deceased showed them a Will and asked Mr Chakty to explain what was written; and that the deceased then asked Mr Chakty if he knew or could recommend any solicitors as she wished to change a few things in her Will. This must be a reference to the visit on 23 October 2019.

70. After Mr Chakty and his wife left the deceased’s house that afternoon they went to their home at Yagoona. Mr Chakty estimated that their house was about half an hour or three-quarters of an hour (depending on the traffic) from the deceased’s residence (see at T 58.40-41). Mr Chakty said that they got to Yagoona after 5.00pm (see T 58.46-50).

71. Mr Chakty deposed in his first affidavit that the same afternoon (i.e., 23 October 2019) he called a solicitor (Andrew Stewart) who had acted as conveyancer on the sale of his property; “explained the situation briefly” to him; and that Mr Stewart said that he (Mr Chakty) needed to take the deceased to her usual doctor and also to an interpreter (see at [27]). In his oral evidence Mr Chakty said that he called Mr Stewart on his mobile phone (initially it appeared from his evidence that this was after he arrived back at Yagoona – see at T 58.49-50; but then he said that he called Mr Stewart from a mobile phone in his car – see at T 59.1-6). Mr Chakty says that he told Mr Stewart that the deceased could speak English but not very well (which presumably would explain Mr Stewart’s reference to an interpreter). There is no suggestion that Mr Stewart had any previous knowledge or association with the deceased. Mr Chakty did not remember if he told Mr Stewart that the deceased had a Will in English from 2014 (T 57.24-25).

72. At [28] of his affidavit, Mr Chakty deposed that “I had spoken to some other solicitors as well. I recall some of them said that it would be good if she had a neurological assessment done as well because of her age”. In the witness box (see at T 60), Mr Chakty said that the only solicitors he spoke to at this time were Mr Stewart and Mr Anthony (Tony) Bazouni of Prominent Lawyers (a solicitor that Mr Chakty had not used before but who was from the same village in Lebanon and who he said he called for a second opinion) (see T 59.18-34). Mr Chakty could not recall if he called Mr Bazouni from home or from his car. Mr Chakty thought that it was Mr Stewart who had said that it would be good if the deceased had a neurological assessment. There is no evidence as to why Mr Chakty did not pursue a retainer with either of Mr Stewart or Mr Bazouni in relation to the matter.

73. Mr Chakty was adamant (see T 61.29-37) that the deceased told him that she did not want Mr Daniel to get the house. At T 62.10-13, Mr Chakty said that the deceased did not explain how the 2014 Will had been done – saying that the deceased “can’t read the Will” and that “she don’t [sic] know how to read and write”.

74. Relevantly, at this stage, on Mr Chakty’s own evidence, he was proposing to draft a new Will for the deceased and to bring it to her the following day. (There is no document in evidence to show what, if anything, was drafted by Mr Chakty but the evidence of Mr Conti suggests that Mr Chakty did indeed provide something by way of a draft to the solicitors at some stage – see below.) Pressed as to why he would not involve a solicitor straight away, Mr Chakty asked rhetorically why would he (see T 63.18-19) and said that he told the deceased “I better come next day just to double check she’s all right” (see T 63.11-13).

Thursday, 24 October 2019

83. Mr Chakty deposed that on 24 October 2019 he went again to the deceased’s house (at around 10.00am); and that he explained to the deceased that if she wanted to continue with the changes to her Will, she would need to see a doctor, an interpreter and a solicitor (see at [30] of Mr Chakty’s affidavit of 27 March 2020). (In oral evidence he confirmed that he went by himself to visit the deceased and said that he asked whether the deceased still wanted to change her Will or whether she still wanted to go to see a solicitor (see T 63.39-41)). Mr Chakty deposed that he asked the deceased how she wanted to change her Will and she said “[l]ike I promised your mum. To look after you and your family and the rest in our family”. (As noted above, Mr Chakty’s affidavit evidence as to this promise was that from around 1991 to 1992 the deceased had promised to leave a house to him – see at [8] of his paragraph 9.3 affidavit affirmed on 17 June 2020.)

84. Mr Chakty says that on the same day (24 October 2019) at around 11.30am he called Dr Victor Tadros (his family doctor, who had also been the deceased’s doctor for over ten years). Mr Chakty says that he spoke to Dr Tadros and explained that the deceased wanted to do her Will and he had been told that she had to see her doctor first. According to Mr Chakty, Dr Tadros said that she did not have to come and that she could tell him on the phone what she wanted to do; and Mr Chakty says that Dr Tadros asked Mr Chakty to call back later that afternoon. Mr Chakty says that he called Dr Tadros later that afternoon and he spoke to the deceased. Mr Chakty deposed that he tried to make an appointment that same day, but it was not possible; and that at around 3.30pm he left the deceased’s house.

85. Mr Chakty deposed that he then checked on the internet for some interpreters and remembered that he had met an interpreter (Mohamad Nahas) at community events on different occasions; and that he rang Mr Nahas and “explained the situation to him”. Mr Chakty deposed that Mr Nahas said he could assist with “explaining the 2014 [W]ill” to the deceased; and that he made an appointment with Mr Nahas for 9.30am on 26 October 2019.

86. Consistently with this, Mr Nahas’ evidence is that in around late October 2019 he was contacted by Mr Chakty to see if he could assist with the interpretation of a Will; that he knew Mr Chakty from the community; and that he remembered that Mr Chakty stated that the deceased wanted to change her Will. Mr Nahas remembered saying that he was happy to assist but that Mr Chakty also needed to organise a solicitor. Mr Nahas deposed that a few days after this he had booked a meeting with Mr Chakty and the deceased.

87. Ms Tawk, in her affidavit sworn on 11 May 2020, deposed to a conversation with Mr Chakty one day between 23 and 25 October 2019 at about 4.15pm, in which he called her on her mobile phone. Ms Tawk deposed that she believed it was either Thursday 24 October 2019 or Friday 25 October 2019. Ms Tawk deposed that Mr Chakty said he needed to see her urgently; that initially he did not tell her what about; and then that he said “Look I want to do something to get hold of [the deceased]’s will and change it. Do you want to get involved and help me?”. Mr Chakty denies that the conversation was to this effect (see his paragraph 9.3 affidavit affirmed 17 June 2020 at [63]ff).

88. Mr Chakty accepts that he had a conversation with Ms Tawk about the deceased wanting to change her Will (see T 87.30-35) and deposed that he asked her to help find a solicitor and organise to change it according to the deceased’s wishes. Of course, on Mr Chakty’s version of events he had already contacted two solicitors on the afternoon of 23 October 2019, which makes it somewhat unlikely (though not inconceivable) that he needed assistance from Ms Tawk on that account.

Friday, 25 October 2019

89. Mr Chakty deposed that on 25 October 2019, he rang Dr Tadros’ clinic at around 10.30am to make an appointment; and that the receptionist said that the doctor would come at 11.30am. Mr Chakty deposed that they went to the clinic and waited for about two hours before Dr Tadros saw them. It appears that the deceased was wearing her nightgown at the time and that Mrs Chakty was with them (having regard to the photographs annexed to Mr Chakty’s affidavit). According to Mr Chakty, Dr Tadros said “Elias told me you want to do the Will” and the deceased nodded her head; and Mr Chakty also said that the doctor made some light jokes with the deceased about her leaving everything in her Will to him and that she and everyone was laughing. Mr Chakty again took photographs on this occasion.

90. Mr Chakty deposed that Dr Tadros said to him that the deceased was fine but that he asked Dr Tadros for a referral to a neurologist; and that the doctor said he could make an appointment with Dr Basel Hassan in Campsie but the earliest appointment was on 23 January 2020 and Mr Chakty asked if an earlier date was available. Mr Chakty deposed that at some later stage he was informed that the earliest date was 21 November 2019. Mr Chakty’s affidavit does not make clear whether an appointment was actually made for that date.

Saturday, 26 October 2019

91. Mr Chakty deposed that on 26 October 2019 he called the deceased in the morning to check how she was “and to remind her that [he was] coming to pick her up” so that the interpreter could explain the 2014 Will to her. Mr Chakty deposed that he collected the deceased and took her to his house at Yagoona.

92. Mr Chakty’s evidence is that Mr Nahas went to Mr Chakty’s house at Yagoona at around 9.30am on 26 October 2019. In his affidavit affirmed 27 March 2020, Mr Chakty deposed that Mr Nahas was there for about an hour (see at [42]) and that Mr Nahas explained the 2014 Will to the deceased in detail. At T 68.23-31, Mr Chakty corrected that to be that Mr Nahas came “maybe one hour after we came home”. At T 68-69, Mr Chakty’s account was that he took the deceased from Hurlstone Park to Yagoona and the interpreter was not there until about an hour later; that before the interpreter came he (Mr Chakty) spoke to the deceased about the Will; and that the interpreter then came and spoke in Arabic; and that the interpreter was there for about an hour. Mr Chakty did not recall if he told the interpreter that the deceased could speak English.

91. Mr Chakty deposed that the deceased asked Mr Nahas whether he knew any good solicitors; and that Mr Nahas gave a few names, one of which was Dot Legal. Mr Chakty deposed that Mr Nahas then called Mr Michael Conti of Dot Legal and that he observed that Mr Nahas handed the phone to the deceased for a brief period. Mr Chakty says that, during the meeting, the deceased said “I want to change this will Elias. I want to leave this house to you” (which he said meant the Starkey Street Property) and that he responded “Thank you Aunty but that is up to you. I still remember you mentioned this all those years ago when I first came here”.

92. As referred to above, Mr Chakty deposed at [8] of his paragraph 9.3 affidavit, affirmed 17 June 2020 that on many occasions throughout the years the deceased would say to him that she wanted to leave one of her properties to him as she had promised his mother (her sister, Warde) before his mother died; and he deposed to a recollection that she first raised this some time in 1991 or 1992. In the witness box, Mr Chakty said that the deceased had talked about leaving him a house for a long time – 40 years ago (even before her husband died) (see T 70.24-37). Mr Chakty was adamant that he never forgot the deceased’s promise (see T 71.4-7).

93. Pausing here, Mr Chakty accepted that he came to Australia in 1991 (when he was 30), which was some 29 (not 40) years before the events of 2019. However, Mr Chakty then said that the promise was made to him before he came to Australia and before 1991 (in front of his family in Lebanon) – T 71.36-50. At T 72.1-28, Mr Chakty reverted to his evidence that there was no promise made to him about leaving him the house before he came to Australia. Then at T 84.45-48, Mr Chakty said “Not 40. Forget 40 years ago. Lets start from [1991]”. Mr Chakty was adamant, however, that the deceased had “always told him I will leave house for you” (see T 84.41-43).

94. Mr Nahas confirmed in his affidavit affirmed 26 March 2020 (at [7]) that a “few days” after the first contact (by Mr Chakty) he went to Mr Chakty’s house in Yagoona. Mr Nahas deposed that he “interpreted” the 2014 Will for the deceased on that day and that at the time “she kept wanting to confirm whether what I was saying was actually in the will” (see at [8]).

95. Mr Nahas says that during that meeting he was asked if he knew any solicitors; and he has deposed that he knew Mr Conti from the community and that he called him to ask if his firm could assist (see at [9]). Mr Nahas deposed that he “introduced” the deceased to Mr Conti (this can only have been over the phone) and that he handed the phone to the deceased to speak with Mr Conti and observed that she spoke with him (see at [10]).

96. Mr Conti’s evidence in his affidavit affirmed 27 March 2020 is that in late October 2019 he received a call on his mobile phone from Mr Nahas (who he said is well known in the Arabic speaking community); and that they had a conversation in which Mr Nahas asked the cost of preparing a will; that “these people are saying they have enquired with a few solicitors but [he thought] it would be easier if they went to Dot Legal”; and that Mr Conti asked to speak with the person who wanted to prepare the Will (see at [4]). Mr Conti deposed to a conversation with the deceased in which he says he asked “I am told that you want to change your Will” and she said “Yes I do. I want my nephew Elias to sort it out but you must show me the Will before I sign” and that the deceased asked how much he charged.

97. Mr Conti deposed that Mr Nahas told him that there was a draft that “her nephew can send to you” and that Mr Conti said that he would send it to the solicitor so that he could start drafting the Will (see at [6]). This is consistent with Mr Chakty preparing at least some draft document or notes in relation to the proposed new Will, though these are not in evidence.

98. In the context of the other evidence referred to above, this conversation must have been the 26 October 2019 conversation to which Mr Nahas and Mr Chakty have deposed.

99. Mr Chakty has deposed that, after this meeting with Mr Nahas, he took the deceased to see his in-laws at Colo Vale; and he says that the deceased there spoke about her wishes to change the Will. Mr Chakty deposed that, in the late afternoon he took the deceased back home (to the Starkey Street Property) as she wanted him to take her to Church the next day.

100. Mr Chakty’s mother-in-law, Mrs Souhailah Kanaan, affirmed an affidavit on 19 August 2020 in which she corroborated Mr Chakty’s evidence that he brought the deceased to her house in Colo Vale on 26 October 2019 (she says, for a barbeque). Mrs Kanaan deposed to a conversation with the deceased on that occasion in which she says the deceased said that she wanted to change her Will and that “the old Will, George done [sic] it the way he wanted. He put whatever he wanted for himself and distributed the rest”; and that the deceased said to her that she was upset.

101. Mrs Kanaan deposed that the deceased said that “he” (in context, meaning George) thought that the deceased was not in her right mind; that George was a good guy and she would like to give him some money but did not want to give him everything; that she did not want to give that much to Sonia because she blocked the deceased’s telephone number; and that she wanted “Elias to take care of it all and to see a smart lawyer to change it”. Mrs Kanaan then apparently offered the deceased some of her own testamentary advice, saying that “[y]our relations are more deserving than someone who is not family”, with which she says that the deceased agreed (see at [5]).

102. Pausing here, an affidavit prepared for Mr Aziz (but not formally attested by him as he was in Pakistan at the time) recounted a conversation that Mr Aziz had had “on or around 23 October 2019” with Mr Conti to the effect that Mr Conti had an Arabic speaking client, an elderly lady, who wanted to do her Will and that she may also need an interpreter. Mr Aziz said that he confirmed that this was fine and asked Mr Conti to send him the details. Logically, this conversation cannot have been before 26 October 2019. Given that 26 October 2019 was a Saturday, it might be more likely that this conversation between Mr Aziz and Mr Conti did not take place until the start of the next business week (28 October 2019) but this is not clear (and the evidence of Mr Conti – see below – suggests that the conversation with Mr Aziz might indeed have been on the Sunday). What is clear, however, is that it cannot have been on 23 October 2019 (and it is of passing interest that this is the date that Mr Aziz ascribed to it based – according to his affidavit – on his review of the files and recollection – see at [5]); particularly since what was in evidence of the content of the solicitors’ files was sparse in the extreme, it is not clear from what Mr Aziz’ recollection could have been refreshed.

103. Mr Husseini’s evidence (in his affidavit affirmed 17 April 2020) was that in around late October 2019 he received instructions from Mr Aziz to assist with a matter that involved an elderly lady who “wished to do her will” and that he understood that her family would be bringing her in to the office within the next few days (see at [4]). Mr Husseini deposed that Mr Aziz asked him to confirm the deceased’s instructions regarding her Will and to witness the Will when she came in for the execution. Mr Husseini deposed that his role was “to witness the Will and be satisfied that [the deceased] understood the contents of the Will” (see at [5]). (Mr Husseini also remembered that the Will was corrected a few times (see at [5]).)

Sunday, 27 October 2019

106. Mr Chakty has deposed that on 27 October 2019 he called the deceased to confirm that he was picking her up (to take her to Church as had been arranged) and that Mr Daniel answered the phone and told him that the plans had changed and she would be going to Wollongong with him (see at [46] of Mr Chakty’s affidavit affirmed 27 March 2020).

107. Mr Conti has deposed that the day after his conversation with Mr Nahas (in which Mr Nahas told him that there was a draft that the deceased’s nephew could send to him), he was provided with a draft Will (see at [7] of Mr Conti’s affidavit affirmed 27 March 2020). Thus, on Mr Conti’s account what he was given was a draft Will – and this can only have been one prepared by Mr Chakty. Mr Conti has deposed that “shortly after that” he had a conversation with Mr Aziz (see at [8]) who said that Dot Legal could assist with the drafting of the Will; and that he sent that draft Will to Mr Aziz. Thus, it is possible that on Mr Conti’s account of events Mr Aziz received a draft Will (that had been prepared by Mr Chakty) on 27 October 2019.

108. Mr Conti has further deposed that “[d]uring this time” (and it is unclear to what period he is there referring but it cannot have been before he received the draft Will on 27 October 2019 on his own account) the Will was sent to him on a number of occasions and he sent it to the “client” for review; that this “back and forth” continued a few times; that on one occasion he received instructions that the Will needed to be changed to add the words “my god child” after certain beneficiaries (and that this was because the deceased insisted that these beneficiaries be described as “my god child”) (see at [9]).

109. Mr Conti deposed that after the Will was “fixed up according to the client’s instructions” he arranged to have the client and Mr Nahas come in for an appointment at Dot Legal’s offices in Merrylands (see at [10]). On that account, the Will was “fixed up” before he arranged for the 31 October 2019 meeting.

Monday, 28 October 2019

110. Mr Chakty has deposed (at [47] of his affidavit affirmed 27 March 2020) that on 28 October 2019 he rang the deceased around 10.30am to see how she was and told her that they had an appointment with the solicitor on 31 October 2019, and that she should come the night before to sleep at his place.

111. At [48], Mr Chakty deposed that “during this time” (again the precise timeframe for this is unclear from his affidavit) he was “explaining” the value of the percentages for each relative and that this happened a few times over those days. Mr Chakty also said that he made some notes which he subsequently sent to the solicitor. It is not clear if these notes are the same as the draft Will that Mr Conti says he received on 27 October 2019 or amounts to some additional material. In any event, there is no copy of any such notes.

112. In his affidavit affirmed 27 April 2020, Mr Husseini has deposed (at [6]) that on or around 28 October 2019 he was contacted by Mr Aziz to arrange for the deceased to come in to confirm her instructions and to execute the Will; and that he understood that an interpreter would be made available to help with this (see at [6]).

113. Pausing here, if these instructions (of which there is no file note or other documentary evidence) came on 28 October 2019 then it is not clear what instructions Mr Aziz thought were to be confirmed because at that stage, at most, Mr Chakty had sent through a draft Will (and perhaps some additional notes) on 27 October 2019. Mr Aziz might have been very speedy in his drafting of the Will but this timeframe leaves little time for the alleged “back and forth” of drafts or the like.

114. Mr Aziz’ unexecuted affidavit recorded that after his conversation with Mr Conti (which he put as being on or around 23 October 2019 but which, as discussed above, is not likely to have been before 26 October 2019) he began drafting a basic Will using a template he had used before. Logically, preparation of a basic Will (even using a template that had been used before) would require instructions as to the deceased’s testamentary intentions. Therefore, it is unlikely that any substantive draft could have been prepared until after Mr Conti had received the draft Will (or notes) from Mr Chakty and after Mr Conti had sent those to Mr Aziz.

115. Mr Aziz’ unexecuted affidavit recounts that he sent a version back to Mr Conti. That suggests that Mr Aziz was working from the draft that Mr Chakty had provided to Mr Conti (and using whatever was on Mr Aziz’ previous template). The affidavit then recounts that there “would have been” at least three or four times when the Will was sent “back and forth” with changes being made. (The language of “back and forth” changes mirrors that of Mr Conti’s affidavit, which suggests that the wording is that of the draftsperson of the affidavit rather than necessarily that of the deponent.)

116. The affidavit of Mr Aziz also there recounts that, as he was [to be] overseas soon after that, Mr Aziz discussed the matter with his employed solicitor, Mr Husseini; and that he instructed Mr Husseini to read the Will and ensure that he confirmed the testatrix’ instructions in person and to explain the Will to the testatrix in the presence of an interpreter. There is no record of these instructions. (It should here be noted that Mr Husseini had by this time only recently been admitted to practice and would have been operating under a qualified practising certificate under the supervision of a solicitor with an unqualified practising certificate. Moreover, Mr Husseini’s evidence is that this was the first Will in which he had been involved – see below. Therefore, and I say this without criticism of Mr Husseini, there is much left to be desired in the manner in which Mr Husseini appears to have been left by his supervising solicitor to conduct his role in the matter.)

Wednesday, 30 October 2019

117. Mr Daniel’s affidavit evidence is that on 30 October 2019 he left the Starkey Street Property at around 5.40am (see T 203.35-39) (that being around his usual time to leave for work – see T 210.26-27) and at around 8.50am he received a notification from the deceased’s Livelife Alarm and he spoke to the deceased for approximately one minute (see Mr Daniel’s affidavit sworn 12 May 2020 at [15]).

118. Mr Daniel has deposed that he telephoned the deceased that day at around 9.23am and the deceased told him that Mr Chakty was going to pick her up that day to take her to his place. Mr Daniel has deposed that Mr Chakty called him “soon after” and said that it was his son’s birthday, and he would like the deceased to spend the night at his place and he would take her home to the Starkey Street Property the following day. Mr Daniel also deposed that he told Mr Chakty to come to the Starkey Street Property after 2.00pm because professional aged carers were scheduled to attend on the deceased between 11.30am and 1.30pm.

119. Mr Chakty confirms that on 30 October 2019 he told Mr Daniel that the deceased would be spending the day and night at his place. However, in Mr Chakty’s 17 June 2020 affidavit he places the telephone call to Mr Daniel as being in the afternoon at around 2.00pm, after which he says that he took the deceased to his place at Yagoona and he says that shortly after he arrived there the interpreter arrived at his place (see at [47]).

120. Mr Daniel has deposed that at 1.56pm on 30 October 2019 he again telephoned the deceased and that she said to him that “Elias is over” (which is broadly consistent with Mr Daniel having told Mr Chakty to come after 2.00pm). Mr Daniel deposes that he briefly spoke with Mr Chakty and told him what medications the deceased required.

121. Thus, it appears that there is consistency in the two men’s accounts at least to the extent that both place the deceased as being at the Starkey Street Property at about 2.00pm on 30 October 2019.

122. However, in his first affidavit, Mr Chakty deposed that on 30 October 2019 he went to the office of Dot Legal to pick up the final draft of the 2019 Will; that he had arranged for the interpreter Mr Nahas to arrive and explain the 2019 draft Will to her; and that at around midday that day Mr Nahas came to see the deceased at Mr Chakty’s house to explain the 2019 draft Will. The timing of Mr Nahas’ arrival at the house to “explain” the Will is therefore inconsistent as between the two affidavits.

123. Meanwhile, Mr Aziz’ unexecuted affidavit recounts that on 30 October 2019 he sent a final draft for approval to Mr Conti. There is no evidence as to how that draft was approved or by whom. It may well be that Mr Aziz sent a final draft for approval to Mr Conti (and Mr Conti obtained instructions for its approval) prior to Mr Chakty picking up the final draft from the office of Dot Legal (at some time before 2.00pm – and on one version of Mr Chakty’s affidavits before midday on 30 October 2019). However, it is wholly unclear how any final approval was communicated or when.

124. Mr Chakty said in cross-examination that he made some notes (in context, about the Will) and that those notes went to the solicitor; and he said, in that context, that he went to the solicitor’s office (see T 751-17). Mr Chakty’s evidence was confused as to when he went to the solicitor to give him his notes. Logically, one would think that that must have been before a final draft was sent by Mr Aziz for approval on 30 October 2019. However, initially Mr Chakty said that it was on 30 October 2019 that he visited the solicitor to give him the notes; and he did not remember how may pieces of paper he gave the solicitor (suggesting that it was two or three but then again saying that he did not remember). At T 76, Mr Chakty said that he picked up the final draft of the Will from Dot Legal on 30 October 2019 and that it was ready when he went to the solicitor’s office (saying “yes with a few explanation” – an answer that did not make sense to me – see T 76.34-48).

125. Mr Chakty then said that it was not on 30 October 2019 that he went to see Mr Conti with his notes – he said at T 77.39-42 that he gave Mr Conti the draft a couple of days before “maybe” 28 October 2019. Questioned about this, Mr Chakty said that he went to Mr Conti’s office only once then amended that to “only once to send the paper and twice” (see T 77.48-50). Confronted with [49] of his affidavit in which he deposed that he went to the office on 30 October to pick up the final draft (which in cross-examination he confirmed was ready when he went there), Mr Chakty was adamant that he had been to the office twice (and then said the third time was when they went to sign the Will). Mr Chakty said at T 77 he had dropped off the notes before; at T 78 that he probably went there twice; and that when he came back from Mr Conti’s office on 30 October 2019, he had the draft 2019 Will with him. At T 79.3-5, after initially having said that the draft Will he picked up from Mr Conti was on different paper and that the wording “wasn’t mention [sic] the godchild for her” (see at T 78.44-50), Mr Chakty seemed to accept that the draft Will he picked up from Mr Conti’s office was in the same words as the Will signed the following day (and said that the reference to the godchild was talking about the draft Will that he, Mr Chakty, had prepared from the internet.

126. Mr Chakty agreed that he did not tell Mr Daniel that he was going to take the deceased to a solicitor (see T 76.1-28; T 80.32-35) but said that “[t]hat was her wish. She didn’t want trouble” (see T 76.19-21) (I note there is nothing to this effect in his affidavit evidence).

127. At T 79-80, Mr Chakty seemed to accept that in the period from 23 October 2019 to 31 October 2019, he had talked to the deceased about the 2014 Will; talked to the deceased about the draft Will he had prepared from the internet; talked with the deceased about the draft picked up from Mr Conti; and talked to the deceased about the Will that she ultimately signed. Insofar as his affidavit had provided (see at [48]) that during this time Mr Chakty was explaining the value of the percentages for each relative (and that this happened a few times over these days), Mr Chakty agreed that the deceased did not understand his explanations (see at T 76.29-36) and he said that (although referring in his affidavit to him “explaining”) he was not trying to explain the provision made to each relative who was to obtain a percentage of the deceased’s estate but rather to confirm those percentages (see at T 77.38-40). At T 74.40-44, Mr Chakty said that “[i]ts not [sic] explain. I try to tell her everything going good, going well, as you wish”.

452. It is noted that at the date of hearing, the deceased’s estate comprised two parcels of residential realty at Hurlstone Park, each with a probable value of over $2 million together with moneys in bank accounts; probably between $100,000 and $200,000. Mr Daniel’s costs up to and including the conclusion of a five-day trial are $383,056 on the ordinary (80%) basis and $426,440 on the solicitor/client basis.

453. Mr Daniel receives a benefit pursuant to cl 8(c) of the 2019 Will. In respect of the Dunstaffenage Street Property, Mr Daniel receives a 6% share of the property, the proceeds of which are divided amongst 15 named persons. If that property is worth $2 million, 6% is $120,000. However, it is submitted that it can reasonably be assumed that the costs of the litigation may consume the estate cash and the two parcels of realty may need to bear some of the costs of the litigation, rateably, pursuant to the Probate and Administration Act 1898 (NSW), Schedule 3, Part 2. It is said that the entitlement can only be worked out with precision at the conclusion of the litigation and that it may well be that the entitlement does not exceed $100,000.

454. It is submitted that in the facts and circumstances of Mr Daniel’s financial and personal provision he is entitled to greater provision than that provided under the 2019 Will.

455. In his affidavit sworn 12 May 2020, Mr Daniel deposed to his financial circumstances. At [43] Mr Daniel deposed to his employment as a personal assistant for a doctor in Liverpool. Mr Daniel estimated his annual income to be approximately $36,000 (see at [43] of his affidavit of 12 May 2020). Mr Daniel’s assets comprise his vehicle, a unit in Wollongong (with an estimated value of $620,000, encumbered by a mortgage with $450,000 outstanding) and a modest amount of superannuation.

Plaintiff’s submissions as to the family provision claim

458. As to Mr Daniel’s alternative claim for provision pursuant to s 59(2) of the Succession Act, Mr Chakty submits as follows.

459. First, as to whether Mr Daniel is an eligible person under the definition in s 57(f) of the Succession Act, it is noted that Mr Daniel claims that he was in a close personal relationship with the deceased at the time of her death, that relationship being described by him (and Ms Tawk) as that of a carer. In determining whether Mr Daniel was in a close personal relationship with the deceased, consideration may be given to the matters set out in s 60(2)(a) of the Succession Act.

460. In that regard, insofar as Mr Daniel claims to have had an extended association with the deceased (including that he was born at the Starkey Street Property in 1970), Mr Chakty says that there are gaps in Mr Daniel’s evidence. Mr Chakty has deposed that the deceased was generous in offering her home at no or reduced rent for recent overseas arrivals (presumably from the Lebanese community) and says that it is in those circumstances that Mr Daniel’s father moved into the Starkey Street Property before subsequently moving out. (As noted above, in oral evidence Mr Daniel corrected this evidence to be a reference to being born at the Dunstaffenage Street Property but in any event nothing to my mind turns on this – it is clear that, wherever Mr Daniel was born, Mr Daniel had a long association with the deceased.)

461. Insofar as Mr Daniel’s evidence is that between 2013 and 2015 he would regularly stay, for at least two to three times a week, and care for the deceased by driving her to various medical appointments and assisting her with finances and daily living chores; and that at some point in 2015 he had commenced living full time at the Starkey Street Property, as her full-time carer and attended to the deceased’s daily assistance in all facets of her life, Mr Chakty cavils with the proposition that simply by moving in with the deceased in the Starkey Street Property Mr Daniel became her full-time carer. It is said that there is no evidence presented by Mr Daniel that the deceased required full time care from as early as 2015, or at any other time; and that nor is there any objective evidence that the deceased met any sort of criteria (or was ever assessed) to require full-time care.

462. Mr Chakty accepts that, since 2018, palliative care nurses visited the deceased on a weekly basis but says (noting that Mr Daniel arranged for that to occur) that this can hardly be relied upon as an example of care by Mr Daniel to the deceased (and Mr Chakty submits that it invites the contrary inference).

463. Mr Chakty says that the affidavit evidence is “thin on the detail, or level” of the care that Mr Daniel says he provided to the deceased over the years. Insofar as Mr Daniel states that the deceased’s medical appointments occurred once a fortnight and that he would primarily attend with the deceased, Mr Chakty said that taking her to various medical appointments and arranging for carers, cannot compare to the taxing and constant demands of a full-time carer.

464. Mr Chakty further argues that it is contradictory for Mr Daniel, on the one hand, to contend that he was the deceased’s full-time carer between 2015 and 2019 and at the same to admit in various parts of his main affidavit that he was working full-time (and also on weekends) from at least 2018 onwards. As noted earlier, Mr Chakty refers to the time spent by Mr Daniel in Wollongong in this context.

465. Mr Chakty submits that what is likely is that the nature of the relationship between Mr Daniel and the deceased benefited Mr Daniel a lot more than it did the deceased; noting that Mr Daniel moved in with a promise of caring for the deceased. It is said that, in return, Mr Daniel may have persuaded the deceased to reward him with a substantial part of her testamentary bounty, but that he soon became busy with his work commitments. Mr Chakty also maintains that Mr Daniel appears not to have paid any rent to the deceased and it is noted that Mr Daniel continues to reside in the Starkey Street Property.

466. Mr Chakty points out that the hospital records (though limited to the 12 months preceding death) indicate that the deceased was hospitalised on three separate occasions. It is accepted that it was Mr Daniel who spoke with staff and on occasion liaised with hospital staff on the deceased’s behalf but it is said that on most occasions this was not by being constantly by the deceased’s side (as Mr Chakty argues one would expect from a full-time carer) but, rather, by giving instructions over the telephone. Additionally, it is said that taking the deceased, whether on routine medical appointments or an urgent hospital visit, was a task shared by various members of the deceased’s extended family, including Mr Chakty and his wife.

467. Mr Chakty submits that, having regard to circumstances of the case, there are no “factors warranting” the making of the application.

468. Additionally, it is submitted that adequate provision for the proper maintenance, education or advancement in life of Mr Daniel has been made by the 2019 Will by reference to the 6% residual share in the Dunstaffenage Street Property.

469. It is said that Mr Daniel has not provided any documents (such as bank records or tax assessments) in support of his position, noting that an applicant for provision must make full and frank disclosure of his or her financial and material circumstances, at the time of hearing. Complaint is made that there is no objective evidence of the financial resources or needs of Mr Daniel.

470. If the jurisdictional question in s 59 of the Succession Act is met, Mr Chakty says that the above factors are also relevant to whether a family provision order ought to be made.

471. As to the provision made for Mr Daniel by the deceased in her lifetime and in 2019 Will, it is noted that Mr Daniel has deposed that the deceased in May 2019 had insisted that she would repay a $175,000 loan that he had taken from his father in order to purchase a property in Wollongong. It is said that this gift was, on any view, substantial and ought to be considered more than adequate consideration in the circumstances of this case (noting that it permitted Mr Daniel to purchase a property in Wollongong).

472. Further, as noted above, it is said that there has been significant provision made for Mr Daniel in the 2019 Will by reference to the 6% share of the Dunstaffenage Street Property (which it is said amounts to well over $100,000 based on a conservative estimate of total value and taking into account estate costs).

473. Thus, Mr Chakty submits that a family provision order ought not to be made in the circumstances of this case.

Determination

474. Section 59 of the Succession Act provides that:

59.   When family provision order may be made:

(1)   The Court may, on application of Division 1, make a family provision order in relation of a deceased person, if the Court is satisfied that:

(a)    the person in whose favour the order is to be made is an eligible person, and

(b)    in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of “eligible person” in section 57--having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and

(c)    at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both.

(2)    The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.

475. Section 57 of the Succession Act defines “eligible person”, relevantly, as follows:

57(1)   Eligible persons:

(definition of “eligible person”)

…

(e)   a person:

(i)   who was, at any particular time, wholly or partly dependent on the deceased person, and

(ii)   who … was at that particular time or at any other time, a member of the household of which the deceased person was a member.

476. In the present case, I accept that Mr Daniel was at least partly dependent on the deceased for accommodation and was a member of her household from around 2015. That leads to the question whether there are “factors warranting” the bringing of the application by Mr Daniel, He must prove that he is a “natural object of the deceased’s testamentary bounty” (see Re Fulop (Deceased) (1987) 8 NSWLR 679 at 681 where McLelland J, as his Honour then was, referred, inter alia, to “factors which when added to the facts which render the applicant an ‘eligible person’ give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased”). In the present case, the fact that Mr Daniel is a natural object of testamentary recognition can be seen by the fact that provision was indeed made for him in both the 2014 and 2019 Wills. In determining whether there are factors warranting, regard may be had to what the community might expect of a testator even if the claimant is an “eligible” person.

477. Section 59 of the Succession Act provides that the Court may make a family provision order if it is satisfied that, in addition to the applicant being an eligible person and there being factors warranting the making of the application, and, at the time when the Court is considering the application, adequate provision for the proper maintenance, education, or advancement in life of the person in whose favour the order is to be made has not been made by the Will of the deceased person.

478. The adequacy of provision has been considered in various decisions (see Sgro v Thompson [2017] NSWCA 326 and those set out below). The requirement of “adequate” provision concerns the quantum or amount of the maintenance, education, and advancement in life (see Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235 at [77] per Buss JA, as the President then was). In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 (Vigolo) at [122] per Callinan and Heydon JJ, the following was said as to the “adequacy” of provision:

Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and … changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.

479. In Hunter v Hunter (1987) 8 NSWLR 573, Kirby P said the following (at 575):

The adjectives “adequate” and “proper”, qualifying respectively the provision that is made and the purposes (“maintenance, education or advancement in life”) for which such provision is needed, emphasise the task of evaluation which is before the Court. It is an evaluation which necessarily takes the Court to the provision actually made by the will, on the one hand, and to the needs for maintenance, education and advancement in life of the claimant, at the date of death, on the other. It has conventionally been said that the test applied, to determine whether the provision made is “adequate” requires of the Court not only a scrutiny of the needs of the claimant for maintenance, education or advancement in life such as were reasonably foreseeable to the testator but also a consideration of the relationship between the testator, the claimant and the other relevant persons having similar claims for adequate provision to be made for them: Goodman v Windeyer (1980) 144 CLR 490 at 496 applying Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 477-479 (PC).

480. In Vigolo, Callinan and Heydon JJ said at [115] that:

‘Maintenance’ may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. ‘Support’ similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote ‘advancement’ would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education.

481. The statutory enquiry (being whether the deceased made adequate provision for an applicant’s proper maintenance) is determined from the perspective of a wise and just testator (aware of all the relevant circumstances) informed by accepted community standards (Bosch v Perpetual Trustee Company [1938] AC 463 at 478-479 per Lord Romer; see also McKenzie v Topp [2004] VSC 90 per Nettle J (his Honour then sitting in the Supreme Court of Victoria) and Stone v Stone [2016] NSWSC 605 per Brereton J, as his Honour then was).

482. Turning to the matters set out in s 60(2) of the Succession Act, I make the following brief observations.

(a)   any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship;

483. There is not a biological relationship in the present case but I accept that there was a close association over a long period of time and that from 2013 onwards Mr Daniel provided assistance to the deceased (whether as a formal carer or simply by way of companionship or the like is not determinative).

(b)   the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person’s estate

484. The deceased had no immediate family to whom she owed obligations or responsibilities and no other person has sought provision or put his or her circumstances in issue.

(c)   the nature and extent of the deceased person’s estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered

485. The deceased’s estate is in the order of around $4 million in property and cash.

(d)   the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person’s estate

486. In his 12 May 2020 affidavit, Mr Daniel deposes to his assets and liabilities including superannuation. In summary, his current gross monthly income is approximately $3,600 (working as a personal assistance for a doctor in Liverpool) and his current net monthly income was approximately $3,000. Mr Daniel has deposed to the purchase on 21 March 2019 of the Wollongong unit (for the sum of $645,000).

487. The beneficiaries under the deceased’s 2019 Will do not put forward their competing needs to be taken into account in considering Mr Daniel’s claim.

(e)   if the applicant is cohabiting with another person, the financial circumstances of the other person

488. Mr Daniel is not cohabitating with any other person.

(f)   any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person’s estate that is in existence when the application is being considered or that may reasonably be anticipated

489. Mr Daniel does not have any physical, intellectual or mental disability, nor could any such disability reasonably be anticipated.

(g)   the age of the applicant when the application is being considered

490. At the time of his 12 May 2020 affidavit, Mr Daniel was aged 49 years, so he was nearly 51 years old at the date of the hearing.

(h)   any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person’s family, whether made before or after the deceased person’s death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant

491. Mr Daniel has undoubtedly made a contribution to the well-being of the deceased in relation to his role as carer (whether or not that be properly described as a full-time role) and providing companionship and assistance to the deceased over a number of years – something that was clearly important to the deceased as is implicit in the proviso to the 2014 Will. Mr Daniel has also deposed to the payment of funeral costs of approximately $18,000 for the deceased out of his personal funds.

(i)   any provision made for the applicant by the deceased person, either during the deceased person’s lifetime or made from the deceased person’s estate

492. The deceased made provision for Mr Daniel during her lifetime in terms of accommodation at the Starkey Street Property apparently rent-free and the not insubstantial gift of $179,000 to Mr Daniel in relation to the Wollongong Unit; and made provision for him under the 2019 Will of a 6% share of the proceeds of sale of the Dunstaffenage Street Property.

(j)   any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

493. I have referred above to the various Wills made by the deceased in which her testamentary intentions were made clear. I have also referred to the statements attributed by various deponents as to what the deceased said about her Will. Relevantly, even on Mr Chakty’s case, the deceased wished to make provision for Mr Daniel in her Will.

(k)   whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so

494. Mr Daniel received the benefit of accommodation from 2013-2015 on an intermittent basis and full-time from mid-2015 onwards but otherwise was not being maintained in any way by the deceased.

(l)   whether any other person is liable to support the applicant

495. There is no evidence of any other person liable to support Mr Daniel although it appears that he has a son who would have filial obligations towards him.

(m)   the character and conduct of the applicant before and after the date of the death of the deceased person

496. There were no submissions directly addressed to this factor. Although criticism appears to be made of Mr Daniel’s professed role as a carer, there is no reason to doubt that Mr Daniel assisted the deceased in the years before her death. I find that there is compelling evidence that Mr Daniel did provide adequate care for the deceased, and, perhaps more importantly, provided the deceased with companionship, which she so clearly desired. I find that there is compelling evidence that there was a genuine affection shared by the deceased and Mr Daniel for one another.

(n)   the conduct of any other person before and after the date of the death of the deceased person

497. Again, there were no submissions directly addressed to this factor. The only person whose conduct would be of relevance in this context is Mr Chakty. On one view (which I hold) the conduct of, in effect, badgering the deceased about her Will in the last weeks of her life when she was clearly deteriorating physically and mentally does not reflect well on Mr Chakty. Nor does the conduct of photographing and videoing an elderly lady in her pyjamas as Mr Chakty did (because he thought this was an opportunity for the future) do him credit. However, the family provision claim arises only on the hypothesis that the 2019 Will is valid and admitted to probate; so that in those circumstances the premise would be that Mr Chakty was assisting (albeit from a self-interested position) the deceased to put into effect her testamentary intentions.

498. The only other conduct that might potentially be relevant in this context is the conduct of Mr Chakty in moving to change the locks on the afternoon of the deceased’s death (without apparently taking any role in the arrangements for the funeral). However, that is conduct towards Mr Daniel not the deceased (and Mr Daniel similarly sought to change the locks). I would have attached no weight to this factor.

(o)   any relevant Aboriginal or Torres Strait Islander customary law;

499. This factor is not relevant.

(p)   any other matter the Court considers relevant, including matters in existence at the time of the deceased person’s death or at the time the application is being considered.

500. No other factor is here raised by either party.

501. In conclusion on the family provision claim, had it arisen, I would have found that Mr Daniel was a member of the deceased’s household and that Mr Daniel was partly dependent on the deceased for a time; and hence (were I called upon to decide the question) that Mr Daniel would be an eligible person under s 57(1)(e) of the Succession Act.

502. I find that there are “factors warranting” the application, on the basis that Mr Daniel was a natural object of the deceased’s testamentary bounty (as is evidenced by the fact that the deceased included him in two of her Wills and spoke to others of her desire to provide for him under her Will).

503. As to the adequacy of provision, this is a finely balanced issue in circumstances where the deceased made a not insubstantial gift to Mr Daniel during her life and has left him a share of the Dunstaffenage Street Property. However, I accept that the costs Mr Daniel has incurred will erode the benefit of that provision significantly. In the circumstances where Mr Daniel lived with the deceased for the last years of her life and gave her assistance and support, I would have concluded that there was not adequate provision made for him and that the proper provision would be an additional bequest (to enable him to discharge the balance of the mortgage over the Wollongong property (Mr Daniel has deposed that he borrowed $470,000 from the National Australia Bank in addition to the loan of $175,000 from his father, which the deceased’s gift enabled him to repay). In all the circumstances I would have considered that a legacy in the form of a lump sum of $500,000 would be proper and adequate provision on top of the 6% share of the proceeds of sale of the Dunstaffenage Street Property. In the circumstances, however, this issue does not arise.

Orders

504. For the above reasons I make the following orders:

1. Dismiss the plaintiff’s claim with costs.

2. Order that probate in solemn form of the Will dated 23 December 2014 of the late Genevieve Bryan be granted to George Daniel.

3. Order that the costs of the cross-claim be paid out of the estate of the late Genevieve Bryan on an indemnity basis.

4. Order that, subject to compliance with the Uniform Civil Procedure Rules, the matter be remitted to the Registrar for the completion of the grant.

**********

Decision last updated: 21 July 2022