Kalaf v Panagiota Grimanes as Executor of the Will of Despina Kalaf - [2013] WASC 327

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: KALAF -v- PANAGIOTA GRIMANES As Executor of the Will of DESPINA KALAF [2013] WASC 327

CORAM: ALLANSON J

HEARD: 29-31 JULY, 1, 2 & 5 AUGUST 2013

DELIVERED : 30 AUGUST 2013

FILE NO/S: CIV 2895 of 2011

MATTER :The Estate of Despina Kalaf (Dec)

BETWEEN: PETER KALAF
Plaintiff
AND
PANAGIOTA GRIMANES As Executor of the Will of DESPINA KALAF
First Defendant
PANAGIOTA GRIMANES
Second Defendant
LEANNE MALLIS As Executor of the Will of EMANUEL KALAF
Third Defendant
ANGELINE DIAMOND
Fourth Defendant

Catchwords:

Wills - Probate - Testamentary capacity - Knowledge and approval of will - Turns on own facts

Legislation:

Evidence Act 1906 (WA), s 79C

Result:

Declaration that will invalid
Grant of probate revoked

Category: B

Representation:

Counsel:

Plaintiff:     Mr T Lampropoulos SC
First Defendant             :     No appearance
Second Defendant         :     Dr P R MacMillan
Third Defendant           :     Dr P R MacMillan
Fourth Defendant          :     No appearance

Solicitors:

Plaintiff:     Chris Biris
First Defendant             :     No appearance
Second Defendant         :     Havilah Legal
Third Defendant           :     Havilah Legal
Fourth Defendant          :     No appearance

Case(s) referred to in judgment(s):

Banks v Goodfellow (1870) LR5 QB 549
Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295
Fisher v Kay [2010] WASCA 160
Roebuck v Smoje [2000] WASC 312
Tipper v Moore [1911] HCA 42; (1911) 13 CLR 248
West Australian Trustee Executor and Agency Co Ltd v Holmes (1961) WAR 144
Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439

ALLANSON J: Despina Kalaf died on 11 November 2010. She had celebrated her 100th birthday in the month before her death. Mrs Kalaf left four children: two sons and two daughters.
On 10 August 2010 Mrs Kalaf executed a document as her will. Probate of that will was granted to her older daughter Panagiota (Poppy) Grimanes, as executor, on 10 January 2011. The will nominated Ms Grimanes and her brother Emanuel (Lucky) Kalaf as the primary beneficiaries and provided for a testamentary trust under which they would share the residue of the deceased's estate in equal shares as trustees as tenants in common. The will made no provision for Mrs Kalaf's other two children, her son Peter Kalaf and her daughter Angeline (Julie) Diamond.
Lucky Kalaf died in 2011. His estate is represented in these proceedings by his executor, his daughter Leanne Mallis.
Peter Kalaf brings these proceedings. He joins as defendants Poppy Grimanes in her capacity as executor of the will (as first defendant), and in her personal capacity (as second defendant), Leanne Mallis as executor of the estate of Emanuel Kalaf (as third defendant), and Julie Diamond (as fourth defendant). Thus all persons with an interest under the will, or under an earlier will made by Mrs Kalaf in 2009, are joined. The plaintiff seeks:
A.A declaration that the will is invalid as the deceased lacked testamentary capacity on 10 August 2010.
B.An order that the grant of probate dated 10 January 2011 be revoked.
C.An order that an earlier will, executed by the deceased on 19 November 2009, be pronounced as the last will and testament of the deceased.
D.An order that the will executed on 19 November 2009 be admitted to probate in solemn form.
The second and third defendants deny the plaintiff's claim and plead that the plaintiff has not rebutted the presumption of testamentary capacity. By counterclaim, they plead that Mrs Kalaf had testamentary capacity at the time of execution of the will, and also that she knew and approved the contents of the will. They seek a declaration that the will of 10 August 2010 is the last will of Mrs Kalaf, and an order for probate in solemn form.
The fourth defendant, Julie Diamond, gave notice that she intends to abide by the decision of the court and took no part in the proceedings. When I refer to the defendants in these reasons, it is to Poppy Grimanes (in her personal capacity) and Leanne Mallis that I refer.
In describing the events giving rise to these proceedings, I will often have to refer to different persons with the same surname in the one section of the judgment. For clarity, except for the deceased, I will refer to members of the Kalaf family - for consistency I include Poppy Grimanes and Julie Diamond ‑ by their first names only. I mean no disrespect by this practice.

The competing cases

The plaintiff pleads that at the time of executing the will, Mrs Kalaf was not of sound mind, memory and understanding as:
1.She suffered from severe aortic stenosis with associated renal failure and significant mental impairment.
2.She was 99 years and 10 months of age.
3.She was receiving treatment from Dr Helen Anstey, a general practitioner, for the above conditions.
4.She was in a confused state of mind so as to be unable to understand the nature and the act of execution and its effects.
5.Her state of confusion was such that she was unable to understand the nature or extent of the property of which she was disposing.
6.She did not understand the nature of making a will.
7.She was not fully aware of the assets she was disposing with the aforesaid will.
8.She was not able to give due consideration to those persons she wanted to benefit.
9.She did not understand the selection of appropriate beneficiaries.
10.She was not at the material time able to understand the extent of the benefit to each of the beneficiaries.
And by reason of those matters she lacked testamentary capacity.
The defendants deny the allegation relating to Mrs Kalaf's testamentary capacity. For present purposes, it is sufficient to note that the defendants assert:
1.That Mrs Kalaf well knew the effects of her dispositions and omitted her son Peter and her daughter Julie to effect her intention 'to settle her scores' with them in relation to other matters.
2.Mrs Kalaf employed her own solicitor to give effect to her intended testamentary dispositions.
3.The plaintiff was aware of the assets she owned or had a claim to, and claimed an interest in two particular properties: a property in Roy Street, Mount Lawley and a liquor store business in Bentley. She was in a dispute with Peter and Julie over these properties. In her dispositions, Mrs Kalaf intended or wished to right a perceived wrong committed against her by those two of her children.
Finally, the defendants say the court should not exercise its discretion to revoke the grant of probate.
The defendants also pleaded that the court should not revoke the grant because of delay by the plaintiff in bringing these proceedings. That part of the defence case was abandoned at trial.
In his reply and defence to counterclaim, the plaintiff asserts that the solicitor who prepared the will did not act independently. He denies that Mrs Kalaf had a beneficial interest in the Roy Street property or the Bentley Liquor Store business, and says that if she did have a belief to that effect it was a false belief as a result of her confused state of mind in 2010. He denies that Mrs Kalaf believed she had scores to settle, and says that if she did have such a belief it was a false belief as a result of her confused mental state and adverse comments made to her by Poppy, who had great animosity towards her brother, and who had arranged for Mrs Kalaf to execute the new will.
For the reasons which follow, I am not satisfied that Mrs Kalaf had testamentary capacity in August 2010. I am also not satisfied that she knew and approved the contents of that will. There should be a declaration that the will is invalid, and an order that the grant of probate in common form, dated 10 January 2011, be revoked.

Proof of the 2009 will

The order sought by the plaintiff that the will dated 19 November 2009 be admitted to probate in solemn form as the last will and testament of Mrs Kalaf adds a further dimension to this matter. Counsel for the defendants raised the appropriateness of this relief at the beginning of the trial and put the position, in effect, that the due execution of the 19 November 2009 will has not been pleaded, and the will should not be admitted unless it is formally proved.
The plaintiff tendered a copy of the 2009 will into evidence. On its face, it is properly executed. There was some evidence regarding testamentary capacity in November 2009, but no evidence about execution.
I am satisfied that all parties with a possible interest in the question are either before the court, or have given notice of their intention to abide the decision. I am in a position to make some factual findings on the question of testamentary capacity. In my opinion, however, the execution of the 2009 will should be pleaded and proved if it is to be admitted to probate in solemn form.

The deceased

Mrs Kalaf was born in Egypt, of Greek parents, in 1910. She came to Australia in her early twenties and married here. She was widowed in 1971. She had no formal education, but was able to speak Arabic, Greek, Italian and English. Mrs Kalaf ran her own business, a tea room and lunch bar, for many years until her retirement in about 1976.
There are two versions of the family name: Kalaf and Kalafatas. Some documents, and at least one witness, used Kalafatas. I will use Kalaf, the version in the court heading, except where directly quoting from a document that uses the alternative.
Mrs Kalaf was an active woman, strongly involved in her community. Her family, understandably, described her in complimentary terms. Their description was supported by others who knew her. In 1999 Mrs Kalaf was awarded the Medal of the Order of Australia. In 2005, she received the Premier's Australia Day Active Citizenship Award.
From when she retired, in about 1976, she regularly went on excursions with her church community, attended the Rod Evans Senior Citizens' Centre twice a week, and on one day a week would cook at the Migrant Resource Centre. Some of these activities eventually fell away, but she continued her visits to the Rod Evans Senior Citizens' Centre, and occasionally to the Migrant Resource Centre, well into her last year. Her last recorded visit to the Rod Evans Centre was in early July 2010, but she may have attended on another one or two occasions.
Mrs Kalaf required hearing aids in each ear. Her eyesight was also poor. The impairment of hearing and vision makes it difficult to assess her mental capacity from observations by those who did not see her regularly.
In her later years, Mrs Kalaf no longer drove a car, and needed help from her children with transport for shopping, appointments and attending church, and also in paying some bills. This degree of dependence on her children was not in contest.
Peter dated his mother's declining physical health from about 1983, when she had been fitted with a pacemaker. The most significant decline was around 2009. Mrs Kalaf was diagnosed with congestive heart failure, aortic stenosis, type II diabetes, chronic renal failure, and gout. In July 2009 she complained of chest pains, and was in hospital for about a week. In September 2009 she was again admitted to hospital, and on this occasion was in hospital for about five weeks. Mrs Kalaf was discharged from hospital on 22 October 2009, but re‑admitted on 26 October 2009. On 5 November 2009 she was admitted again, and was discharged on 16 November. On this last occasion, Mrs Kalaf was very sick and was never the same after she returned home.
On her discharge from hospital in November 2009, Mrs Kalaf could no longer cope living at home alone. She did not want to go into a nursing home, and arrangements were made under which she could receive help to enable her to stay at home. Mrs Kalaf had been self‑medicating before her hospitalisation but now needed help. A social worker suggested that Mrs Kalaf's general practitioner organise a Webster Pack for medications. From December 2009, Mrs Kalaf received assistance from Silver Chain.
In December 2009, Mrs Kalaf was diagnosed with end stage congestive heart failure. She was not expected to live for more than six months.
Mrs Kalaf no longer lived alone. Peter moved into her house at 31 Cleaver Street in about December 2009. He lived there with his mother until 29 July 2010, except for some weekends, and a longer period of some weeks around May and June of 2010 when Mrs Kalaf lived at the home of her daughter Julie.
On 29 July 2010, Poppy returned to Perth from Sydney, where she had been living since about 1960. She had earlier been in Perth for about three months up to November 2009. Peter left Cleaver Street and Poppy lived there with her mother.
From when Poppy returned, if not before, the relationship between Peter and the other members of the family was not a happy one.
Mrs Kalaf and Poppy remained in Cleaver Street until some time in late September or early October 2010 when they moved to Lucky's unit at Crawley. Mrs Kalaf lived at Crawley until her death.
On 24 October 2010, a party to celebrate Mrs Kalaf's 100th birthday was held at Kailis Brothers Restaurant in Leederville. On 28 October, a second function was held at the Migrant Resource Centre.
Mrs Kalaf died only weeks after her birthday.

The wills

The plaintiff tendered copies of four wills.
The first is dated 9 August 1991. There is no contest that this will was revoked. It was tendered to show the dispositions Mrs Kalaf then made, and the property she included in her bequests. After a specific bequest of jewellery, the residue of the estate, including the house at 31 Cleaver Street and its contents, was given to the four children as tenants in common in equal shares. The bequest included a condition that the children respected her desire that the house remain owned within the family and by her children for as long as possible, and that until such time as it was sold or subdivided for sale, any income from it was given to Poppy absolutely.
The second will is dated 1993, but no day and month appear in the document. It provides specific bequests of furniture, articles of personal use or adornment, articles of domestic or household use, and any money in bank accounts, to Mrs Kalaf's two daughters, Poppy and Julie. The residue, including the property at 31 Cleaver Street, is given to Poppy or, should she predecease Mrs Kalaf, to her children.
Clause 4 of the will is in these terms:
I have not included my sons Emmanuel Kalafatas and Paul Kalafatas as beneficiaries in this my will as I believe I that I have adequately provided for them in my lifetime.
The evidence does not explain why Peter is referred to as Paul.
The third will is dated 19 November 2009, so was executed within days of Mrs Kalaf leaving hospital. The document shows that it was prepared by a solicitor, Mr V Ozich. Mr Ozich also prepared an enduring power of attorney, appointing Poppy as her mother's agent. The enduring power of attorney was executed on 20 October 2009, while Mrs Kalaf was a patient in St John of God Hospital, Murdoch, and was witnessed by two doctors.
Poppy could not remember when the instructions were given for the will, or when or how it came to be executed. In the circumstances, particularly with the roughly contemporaneous power of attorney, it is likely that Poppy assisted her mother to meet with Mr Ozich and the instructions were given for both instruments at about the same time.
In this will, Poppy is appointed as sole executor and trustee. There are specific bequests to Poppy of jewellery and of all of the contents of the residence at 31 Cleaver Street. The residue of the estate, including 31 Cleaver Street, is bequeathed to the four children as tenants in common in equal shares absolutely. There is a condition that until such time as it may be sold, or subdivided and sold, any net income received from the residence at 31 Cleaver Street be given to Poppy absolutely. Poppy is given sole discretion as to when and on what terms the house should be sold.
The fourth will, the one in contention in these proceedings, is dated 10 August 2010. It was prepared by Ian Stewart McEwan, a solicitor. It is witnessed by Mr McEwan and Giuseppe Ravi, a real estate agent who operated from the same premises as Mr McEwan. The will is more complex than those which preceded it.
Again Poppy is named as the sole executor and trustee of the estate.
The will creates a testamentary trust, although a confusing one. Clause 3 contains definitions and interpretation. There is a definition of 'General Beneficiaries', which class includes the deceased and her kin, including her parents and grandparents. The term 'General Beneficiaries' is not used in any bequest and does not otherwise appear in the will.
The term 'Primary Beneficiary' is also defined. It means 'the person or persons who are or who become so nominated in this will from time to time'.
There is also a definition of Trust Fund in these terms:
'Trust Fund' means the residue of my estate both real and personal, any income of any description whatsoever or capital accretions arising from time to time from such residue, any capital and income added from time to time and all property from time to time contained in the above sub‑clauses, and includes any interest I may own at the date of my death in the properties known as and located at:
a.31 Cleaver Street, West Perth 6005, Western Australia;
b.107 Manning Road, Bentley, Western Australia (from which now operates the liquor store known as Cellarbrations Liquor Store, Current Licensee being Angeline (also known as Julie) Diamond); and
c.19 Roy Street, Mount Lawley 6050, Western Australia.
This is the first will in which Mrs Kalaf purported to dispose of any interest in the Bentley liquor store and 19 Roy Street.
Clause 4 provides that the executor holds the estate on trust, and suggests that she obtain advice concerning the administration of the estate from one or more of a lawyer, accountant and financial planner.
Clause 4B provides:
TRUST FUND FOR PRIMARY BENEFICIARIES: MY SON EMANUEL (also known as Lucky) KALAF AND MY DAUGHTER PANAGIOTA (also known as Poppy) GRIMANES IN EQUAL SHARES AS TENANTS IN COMMON.
If I am survived by my son Emanuel (also known as Lucky) Kalaf I direct my Executor to give the Residue of the Trust Fund whatsoever and wheresoever situate to such of my son Emanuel (also known as Lucky) Kalaf and my daughter Panagiota (also known as Poppy) Grimanes in equal shares as tenants in common (for the purposes of this clause each named person is a 'Primary Beneficiary' and each named person's share is referred to in this clause as their 'respective share'), in trust to hold and to pay all or part of the income, all or part of the capital and all or part of the capital accretions of the Trust Fund to any one or more of:
•themselves;
•their respective beneficiaries;
from such part of the capital and income of the Trust Property, in the shares and amounts at such times as the Primary Beneficiary exercising absolute discretion (in relation to her respective share) thinks fit. No Primary Beneficiary is obliged to make equal (or any) payment to any or all of the persons named above.
Clause 4C contains an alternate trust in favour of Leanne Mallis in the event that Emanuel Kalaf did not survive his mother. He did survive.
Clause 5 provides for the event of any primary beneficiary dying before the testator, leaving children. Clause 6 provides for bequests to minors and bankrupts and for protective trusts.
Clause 7 gives to the executor and each primary beneficiary, in respect of the primary beneficiary's trusts and gifts, specified powers. It is unnecessary to set them out.
Clause 9 is in these terms:
CONSIDERED BEQUESTS
I acknowledge that I have four children, namely Panagiota (also known as Poppy) Grimanes, Emanuel (also known as Lucky) Kalaf, Peter Kalaf and Angeline Diamond (also known as Julie Diamond). I have turned my mind to the matter of disproportionality in respect of the Gifts and bequests mentioned herein and after all due consideration I expressly declare myself completely satisfied that my wishes as stated herein adequately and properly make allowance for my monies used by my children during my lifetime and unpaid as at the date of this Will, AND FURTHER that the Gifts and payments and bequests as described herein otherwise cater adequately for the specific circumstances of each of my children Panagiota (also known as Poppy) Grimanes, Emanuel (also known as Lucky) Kalaf, Peter Kalaf and Angeline (also known as Julie) Diamond AND FURTHER that after all due consideration and in recognition of the varied contributions to my life by my children that those circumstances are all best met by the manner in which they have been stipulated in this Will. I expressly direct my Executor to make no further provision for any person other than the Gifts disbursements and bequests as enunciated in this Will.

The letter of demand

At about the same time that he prepared the will, Mr McEwan also prepared a letter of demand to Peter and a letter to Julie Diamond and her husband, Nicholas. The letter to the Diamonds has an attachment (although not referred to in the letter itself) addressed 'To Whom It May Concern' and to be signed by each of Nicholas and Julie Diamond. Mr McEwan said that the instructions for these letters were taken from Mrs Kalaf on 5 August 2010, in the same interview in which he took instructions for the will.
In pars 42 to 44 of his witness statement, Mr McEwan said:
I was also instructed by Mrs Kalaf to prepare some documents in relation to the Bentley property and business and the Roy Street property. In relation to the Bentley business Mrs Kalaf instructed me to write a letter to Mr and Mrs Diamond setting out her claim to ownership of part of the property and business and informing them that she intended to enforce her ownership rights …
I also prepared a letter from Mrs and Ms Diamond [sic] entitled 'To Whom It May Concern' setting out the circumstances of their dealings with property to which Mrs Kalaf was entitled and based on the instructions I had received from Mrs Kalaf. This letter was returned to me signed, I believe, by Mr and Mrs Diamond …
The other document I was instructed to prepare was a letter of demand to Peter Kalaf in respect of the Roy Street property. This letter did not refer to the Bentley property and business. I served the letter of demand on Peter Kalaf the next day.
I will deal with the contents and circumstances of the preparation of these documents, and the evidence of Mr McEwan, in greater detail below.

The evidence

The witnesses

All witnesses prepared witness statements that were tendered as their evidence‑in‑chief. Two of the plaintiff's witnesses were not required for cross‑examination. All other witnesses gave oral evidence.
Julie and Nicholas Diamond were not called by either party. I draw no inference for or against either party from this.

Family members

Evidence was given in support of the plaintiff's case by Peter, by his wife, Rosalind Basilica Kalaf (Rose), and by their daughter, Vanessa Perisse Kalaf. The plaintiff also called Sarah Anne Diamond, the daughter‑in‑law of Julie and Nicholas Diamond.
The principal witness was Peter Kalaf. Peter lived with his mother from his birth in 1938 until about 1980. From 1947 to 1975, they lived in his mother's house at 31 Cleaver Street, West Perth. From 1975 to 1980 they lived in Peter's house in Menora, where Peter still lives with Rose and their three children. Peter lived again with his mother at Cleaver Street from December 2009 (after her discharge from hospital) until 29 July 2010. In the first half of 2010, Mrs Kalaf spent some weekends, and then a period of several weeks in about May and June, at Julie's home.
Poppy and Leanne Mallis gave evidence for the defendants.
Poppy is the older of Mrs Kalaf's two daughters. She has lived in Sydney since 1960, although she visited Perth regularly. She had also been in Perth at the end of 2009, when Mrs Kalaf was discharged from hospital. She returned to Perth and lived with her mother from the end of July 2010 until her mother's death in November 2010.
Leanne Mallis is one of two daughters of Lucky Kalaf, and the executor of his will.

Friends and acquaintances

The next group of witnesses are the friends and acquaintances of Mrs Kalaf, who testified about their observations of her in the last months of her life. This evidence was largely confined to a particular event, the 100th birthday party for Mrs Kalaf on 24 October 2010 at Kailis Brothers Restaurant in Leederville.
The plaintiff tendered the statements of two witnesses who had been friends of Mrs Kalaf for many years, Margaret Valma Papadoulis and her husband Michael Emanuel Papadoulis, both of whom were at the birthday party. The defendants did not require either of them to attend for cross‑examination.
The plaintiff also called Katherine Patricia Ursich. Ms Ursich was involved in the management of the North Perth Migrant Resource Centre, and knew Mrs Kalaf from about the 1980s. Mrs Kalaf used to attend and later became a volunteer cook there. The centre put on a function for Mrs Kalaf's 100th birthday, and Ms Ursich saw Mrs Kalaf on that occasion.
The defendants called Barbara Spencer, a friend of Ms Grimanes from Sydney who came to Western Australia in late 2010 and attended Mrs Kalaf's birthday party.
The defendants also called Tina Swartz, the manager of the Rod Evans Centre.
During her last year, Mrs Kalaf received in‑home assistance from Silver Chain. Ms Judith Marilyn Dixon was one of the carers from Silver Chain who assisted Mrs Kalaf. She gave evidence on behalf of the defendants.

Witnesses to the preparation and execution of the will

The will was prepared by Ian Stuart McEwan, a solicitor. Mr McEwan was one of the witnesses to the will. The other was Giuseppe Ravi. Both were witnesses for the defendants.

Doctors

Two doctors who saw Mrs Kalaf in her lifetime gave evidence. Dr Archleigh Helen Anstey was Mrs Kalaf's general practitioner for nearly six years up until Mrs Kalaf's death. Dr Anstey was called by the plaintiff.
Mrs Kalaf was also seen by Dr Henrietta Bryan of Silver Chain in December 2009, and again near to her death the following year. Dr Bryan was called by the defendants.
Finally, two expert witnesses gave evidence: Dr Claudio Nick De Felice for the plaintiff, and Dr Richard Val Arenson for the defendants.
The credibility of the principle witnesses of fact for each party, including Dr Anstey and Mr McEwan, was strongly contested.

The exhibits

There were important documents in evidence, including the four wills described above. I will briefly outline those which can be discussed separately from the evidence of the witnesses.
Exhibit 1 was the Centrelink file relating to Mrs Kalaf from 1976 to her death in 2010. In 1976, Mrs Kalaf applied for the age pension. She was then living with Peter at his house in Menora. One of the questions Mrs Kalaf was required to answer in the application form was whether she owned houses or land other than the home in which she lived. She declared the house at 31 Cleaver Street, which was then rented. She answered 'no' to the question whether she owned any other property. In further support of her claim, on 24 August 1976, Mrs Kalaf signed a declaration that she owned the Cleaver Street house, and some cash in the bank. The declaration continued, 'I have no other assets or property at all. I have not been employed in the last 12 months. I have no income at all'.
A file note, dated 30 August 1976, records an inquiry made of Mrs Kalaf about the property at Roy Street, as she was on the title. Mrs Kalaf is recorded as stating that she had no interest in the house and was only guarantor for her son.
The statements referred to above are admissible under s 79C of the Evidence Act 1906 (WA). They are also declarations by Mrs Kalaf against interest.
The records of Silver Chain, for the period from December 2009 to Mrs Kalaf's death in November 2010, were exhibit 6. Mrs Kalaf was referred to Silver Chain by Dr J Harper in 2009 as a client with 'an active, progressive terminal illness requiring symptom control'.
The Silver Chain documents provide a continuous record of observations from her carers from December 2009 to the end of Mrs Kalaf's life. Unfortunately, it is hard to draw conclusions from them. Ms Dixon, who provided hygiene care to Mrs Kalaf for about four months in 2010, said that she was required or expected to record in the notes only the care that was done, and observations of matters affecting that care, such as skin tears or dressings that needed to be changed. With few exceptions, the notes are confined to observations of that kind.
The Silver Chain records include a Palliative Care Assessment and Management Plan. But there was no evidence about how the palliative care form was prepared, or its purpose. So that while the plan has boxes to record pre‑existing or new dementia, and neither is ticked, I cannot say whether Mrs Kalaf was assessed and no dementia found or, whether her mental state was not assessed. No witness was called from Silver Chain to shed any light on that question.
Mrs Kalaf attended the Rod Evans Senior Citizens' Centre into the last year of her life. The centre provided transport and kept a record of clients who used it. Exhibit 7 is a transport list from January 2010 to July 2010. The last recorded occasion when Mrs Kalaf used the centre's transport is the week 28 June to 2 July 2010, when she is recorded as attending on the Wednesday (30 June) and Friday (2 July). She also attended twice the week before, but not otherwise in June. Mrs Kalaf stayed for some of May and June at her daughter Julie's home in Success. That may account for her not going to the centre on at least some of those days in June.
Exhibit 31 is the Transfer of Land form for the transfer of 19 Roy Street from Despina Kalafatas and Peter Kalafatas 'to Despina Kalafatas and Peter Kalafatas … as joint tenants'. The document is dated 23 August 2006, and stamped 24 August 2006. It records consideration of natural love and affection and 'the desire of the transferees to hold the land as joint tenants'. On the face of the document it is signed by Mrs Kalaf (as D Kalafatas) in the presence of Nicholas Diamond.
The letter of demand to Peter Kalaf, the letter to the Diamonds, and the document headed 'To Whom It May Concern', were also admitted into evidence. The documents were admitted on a limited basis, and not as evidence of the truth of the statements recorded in them. The fact those claims were made, and the circumstances in which they were made, were relevant matters. It became unnecessary to determine the width of the purposes for which they could be used, for example, whether they could be used as evidence of the knowledge, intention, and mental state of Mrs Kalaf when they were made, because of my reservations about the circumstances in which the documents were prepared.

The documents prepared by Mr McEwan

Mr McEwan said that the instructions for all of these documents were given by Mrs Kalaf at her house at 31 Cleaver Street, on 5 August 2010.
I have already set out the substance of the will.
The letter to Peter Kalaf is dated 11 August 2010. In it, Mr McEwan stated that he was in possession of a copy of a land transfer document in respect of 19 Roy Street, by which the ownership of the property was changed from tenancy in common to a joint tenancy; his instructions were that Mrs Kalaf had not signed the transfer paper 'with full knowledge or consent or otherwise'; and that Mr Diamond had no recollection of witnessing Mrs Kalaf's signature.
The letter has a second part, headed 'Property at 107 Manning Road, Bentley, Western Australia'. That part commences by reciting Mr McEwan's instructions that Mrs Kalaf contributed one quarter of the funds used to purchase the land and buildings of the liquor store at 107 Manning Road, Bentley. The letter contains details of the business now operating, including that Julie Diamond is the licensee. It continues:
I am advised that the business, previously owned by the four persons, namely Mr and Mrs Diamond as to 50% and as to yourself and my client as to the remaining 50%, was sold for $500,000 (five hundred thousand dollars). My client's entitlement to one quarter of the after‑costs component of that sale price has never been forwarded to her, as is her right. A letter in support of that claim has been signed by Mr and Mrs Diamond, who between them now still own 50% of the freehold of that land and buildings which were, and at all material times were intended to be, reflective of the initial contributions made by the parties to the original purchase transaction.
The letter claims a constructive trust in respect of Mrs Kalaf's 25% ownership of the Manning Road property, and an entitlement to one quarter of the rental income from the date on which the property was purchased. Mr McEwan wrote that his instructions were that Mrs Kalaf had:
1.received no payment reflective of her 25% ownership of the liquor store business after that business was sold (estimated at $125,000 less a proportion of selling fees and costs);
2.received no rental income from her 50% interest in the Roy Street property (estimated at approximately $200,000);
3.received no rental income from the Manning Road property from the initial acquisition date to date (estimated at $200,000); and
4.not had her 25% interest in the freehold of the Manning Road property acknowledged, repaid or otherwise reflected in any funds to her benefit.
The letter proposes a commercial settlement, including that Peter would pay $525,000 to his mother in respect of the interest in 19 Roy Street, or transfer it to her as sole owner; declare her 25% interest in the freehold of the Manning Road property; enter into a formal agreement under which Mrs Kalaf or her estate would receive her 25% entitlement in respect of the sale price of the freehold of the premises should they be sold; and pay her, or her estate, 25% of the rent received for the premises until sold.
Mr McEwan prepared a letter addressed to Nicholas Diamond and Julie Diamond, dated 11 August 2010, relating to distribution of rental income derived from the property at 107 Manning Road, Bentley. In effect, he repeated his instructions that Mrs Kalaf was an owner as to 25% of that property, and that he had been instructed to request that the Diamonds distribute the rental income in respect of the property with 25% to Mrs Kalaf. In the letter he stated:
I am instructed to further investigate the application of the proceeds previously paid to Mr Peter Kalaf with particular reference to the legal requirement for him to discharge his obligation to forward certain monies to Mrs Despina Kalaf pursuant to her interest therein.
The letter does not allege a previous failure by the Diamonds to meet their obligations to Mrs Kalaf, or assert that she had contributed to or had any interest in their 50% share.
The third letter is also dated 11 August 2010. It is addressed To Whom It May Concern, and to be signed by Nicholas and Julie Diamond. It alleges that Mrs Kalaf contributed 25% to the purchase of the property and business of the liquor store, that she had a separate interest as a silent partner, and that it was the understanding of Nicholas and Julie Diamond that Peter would forward to Mrs Kalaf her entitlement to 25% of sale proceeds and rent.
Mr McEwan said that he prepared the letter based on the instructions he had received from Mrs Kalaf.

The Roy Street property and the Bentley Liquor Store

The will executed on 10 August 2010 disposes of any interest held by Mrs Kalaf in 19 Roy Street, Mount Lawley, and in the liquor store business at Manning Road in Bentley. There are other proceedings in this court, commenced by Poppy as executor of the will of Mrs Kalaf, to determine whether she had any interest in either property. There is some overlap in the issues.
The plaintiff argues that Mrs Kalaf's claim to 19 Roy Street and 107 Manning Road is evidence of delusional thinking, or influence from others in making the will. He says that she had not previously claimed any such interest. Mrs Kalaf did not list either property in her assets in any of her earlier wills. She denied that she owned any property other than her own home when she applied for the pension.
The defendants say that Mrs Kalaf expressly instructed Mr McEwan, and made other statements before her death, to the effect that she owned other properties, and that the will was to right past wrongs committed against her by Peter in his dealings in relation to those properties.
This case is not the proper vehicle to determine whether Mrs Kalaf did have an interest in either property, or whether Mrs Kalaf did execute the transfer of 19 Roy Street. The facts material to those questions are not pleaded. Peter gave oral evidence about the properties, but neither the titles for the land, nor the relevant documents for the purchase of 19 Roy Street, and 107 Manning Road and the business conducted on it, were produced. Neither party put on all of the evidence that would be necessary for the court to decide ownership.
Even were I to accept that Mrs Kalaf had no interest in the properties, there would be a degree of speculation in deciding whether her belief changed, and when and why it changed. On the way in which I think this matter should be determined, that speculation is not necessary, and I will avoid it.

Testamentary capacity, knowledge and approval

To make a valid will, a testator must have testamentary intention and testamentary capacity, and know and approve of the contents of the will.
The statement of claim directly challenges whether Mrs Kalaf had testamentary capacity at the time the will was executed. It does not plead any issue of knowledge and approval.
The counterclaim however, pleads that Mrs Kalaf knew and approved the contents of the will. In his reply and defence to counterclaim, the plaintiff denies this plea and denies that Mrs Kalaf 'gave instructions to prepare a Will in those terms or to that effect'. The plea is, to a degree, open ended. Knowledge and approval of the contents of the will, at least, are in issue.

The principles regarding testamentary capacity

The parties generally agreed about the principles that the court should apply in deciding this issue. Testamentary capacity refers to the mental capacity required to make a valid will. The instructions for the August 2010 will were given within a week of execution. There is no evidence that Mrs Kalaf suffered any acute illness, or of any other event that might affect her mental state around this time, so the evidence of capacity at the time of giving instructions is relevant and applies to the time of execution.
In this case, I must be satisfied that Mrs Kalaf:
1.understood the nature of the act of making a will and its effects;
2.understood, at least in general terms, the nature of the property of which she was disposing;
3.was able to understand and appreciate the claims of the members of her family to which she should give effect in making her will; and
4.suffered from no disorder of the mind that
shall poison [her] affections, pervert [her] sense of right, or prevent the exercise of [her] natural faculties ‑ that no insane delusion shall influence [her] will in disposing of [her] property and bring about a disposal of it which, if the mind had been sound, would not have been made.
Banks v Goodfellow (1870) LR5 QB 549 (565). It is not material to show some unsoundness of mind which does not affect a testator's ability to understand the effect of dispositions: Tipper v Moore [1911] HCA 42; (1911) 13 CLR 248.
Mrs Kalaf was not formally diagnosed with any mental illness or disorder during her life, and her death certificate does not identify dementia as a cause of death. It is not necessary to identify a disorder of the mind recognised by current medical science. But the absence of a diagnosis, and the reasons why no diagnosis was made, are matters I will take into account. Further, as the defendants correctly submitted, the evidence does not show a causal link between the physical ailments from which Mrs Kalaf was suffering and cognitive impairment. Again, I will take this into account.
Testamentary capacityis usually presumed where a will has been executed and attested in a normal manner: Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295, 343; West Australian Trustee Executor and Agency Co Ltd v Holmes (1961) WAR 144, 146. If there is evidence 'sufficient to throw a doubt upon the testator's competency' then the onus of persuasion is on the proponent of the will: Bull v Fulton (343). The question then becomes whether on the whole of the evidence the proponent of the will has discharged its onus as to the testator's capacity: Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439, 453. A residual doubt is not enough to defeat the claim for probate 'unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution': Worth v Clasohm (453).

The evidence of mental capacity

The medical evidence

If, on the evidence, I have a doubt or suspicion about whether Mrs Kalaf had testamentary capacity, I must then consider whether on the whole of the evidence I am satisfied that capacity has been proved. I will start with the medical evidence.
In a report dated 15 July 2009, Dr Andrew Granger, consultant physician, described Mrs Kalaf as 'cognitively intact'.
On 21 October 2009, clinical nurse consultant Debbie Paynter of the Aged Care Assessment Team, Fremantle Hospital, recorded a mental state assessment:
Mrs Kalafatas is very independent and capable of managing her finances. Unable to see to write things but is sharp mentally.
On its face, this assessment is very positive. I have some reservations. The report records that it follows a home visit on 13 October 2009. There is other evidence that Mrs Kalaf was then in St John of God Hospital, Murdoch, and was only discharged on 22 October 2009. Ms Paynter was not called as a witness. I do not know the source of her information, and whether she in fact saw Mrs Kalaf at home.
The documents tendered at trial included other health records and correspondence made around the end of 2009. They do not directly address cognitive function. But none express concern about Mrs Kalaf's mental state. The authors of these documents were not called.
Dr Henrietta Bryan is a general practitioner and provided services to Silver Chain as a support doctor. She saw Mrs Kalaf in December 2009. Dr Bryan said that she conducted a full examination of Mrs Kalaf, and asked about her history and symptoms. She described her as 'with it', which she explained as summarising her observation that Mrs Kalaf answered appropriately and was spontaneous in her speech. Their conversation was over a broad range, including local politics. Dr Bryan did not carry out any formal mental state examination because she had no cause to doubt Mrs Kalaf's cognitive functioning at that time.
The doctor who had the longest continuous association with Mrs Kalaf was her general practitioner, Dr Anstey. Dr Anstey has been in general practice since 1976. Mrs Kalaf was her patient from 28 January 2004 until about 28 September 2010, when Mrs Kalaf moved to Crawley.
The plaintiff tendered the progress notes made by Dr Anstey during the whole of the period that Mrs Kalaf was her patient. Each visit is recorded, generally in a note of one or two lines. Although the whole of the record was in evidence, most of it is illegible. The plaintiff did not ask Dr Anstey to decipher any particular entries. The dates, however, are legible. Visits appear to have been monthly during 2008 and 2009, save when specific matters arose, and then either weekly or fortnightly in 2010. There are some gaps. No visit is recorded between 18 September and 24 November 2009. Mrs Kalaf was in hospital for much of this period. Dr Anstey said that, in the last period in hospital, Mrs Kalaf was very sick.
I can read little of what is recorded in Dr Anstey's notes. The one clearly legible entry is that of 24 August 2010 when Dr Anstey wrote in block capitals the results of a Mini Mental State Examination (MMSE) she conducted with Mrs Kalaf. The MMSE was also recorded on an examination form. Dr Anstey agreed that, other than the record of the MMSE, she made no note regarding cognitive impairment. And she made no diagnosis of dementia during Mrs Kalaf's final years, even after the MMSE. She said, in effect, she could have seen no purpose to do so. She would record those matters only if it would alter the management of the patient or where there was some threat to the patient or others. Nothing constructive could be done for Mrs Kalaf.
Although she recorded no diagnosis, Dr Anstey said in evidence that she had noticed gradual deterioration in Mrs Kalaf's cognitive functioning from November 2009 to August 2010. In her opinion, Mrs Kalaf was never the same after she returned home from hospital in November 2009. She described the deterioration over the last nine months of Mrs Kalaf's life as moderate. It was not enough to prevent Mrs Kalaf staying in her own home, but she needed someone to stay with her.
Dr Anstey gave some examples. Mrs Kalaf had a bony growth on her foot. On 20 April 2010, Mrs Kalaf asked what it was, and was told. She asked again almost every visit after that. Dr Anstey interpreted the continuing questions as the result of memory loss, and said this behaviour was typical of those with memory loss. When referred to a Silver Chain entry, recording that Mrs Kalaf had forgotten events of a few days before, Dr Anstey said this was typical of Mrs Kalaf.
Dr Anstey wrote four letters regarding her opinion on Mrs Kalaf's testamentary capacity: dated 9 September 2010, 21 February 2011, 26 September 2011, and 21 January 2012. In the first of them, she commented on her assessment of Mrs Kalaf's capacity at two times: in August 2006 when the transfer document for 19 Roy Street was executed, and in August 2010. Dr Anstey expressed her view that Mrs Kalaf had full capacity in 2006, but lacked testamentary capacity from the end of November 2009, and probably lost that capacity during November 2009.
Dr Arenson questioned Dr Anstey's reasons for this view, and her conclusion. Quite apart from the expert opinion, which I will discuss separately, I do not accept the opinion about testamentary capacity in November 2009 that Dr Anstey expressed in these letters for two reasons. First, it was not clear that Dr Anstey was addressing the legal criteria for testamentary capacity, or indeed what criteria she was applying. Second, there were no sufficient observations recorded to support the conclusion.
While I cannot accept her opinion on testamentary capacity, I otherwise accept the evidence of Dr Anstey. Specifically, I accept her evidence about her observations during 2010 of Mrs Kalaf's deterioration, and of the behaviour that she described as typical of Mrs Kalaf at that time and typical of loss of memory.
Dr Anstey conducted the MMSE because she became aware, either from Peter or Poppy, that Mrs Kalaf had recently changed her will. Dr Anstey considered there should be an objective assessment of mental state. The test results sheet is dated 24 August 2010. The date on Dr Anstey's handwritten patient notes has been altered, and the patient record kept on her practice computer records the test on 23 August. The exact date of the test was not regarded by either party as material and Dr Anstey was not questioned about the date.
Dr Anstey carried out only a partial MMSE. She omitted some parts of the examination due to Mrs Kalaf's poor eyesight. The examination was conducted at 31 Cleaver Street, West Perth. Dr Anstey said that she conducted the examination sitting on a footstool at a distance of less than 1 m from Mrs Kalaf, and looking straight at her. Dr Anstey could not say with certainty whether Mrs Kalaf was wearing her hearing aids, and she made no record of it. Dr Anstey's assessment was that Mrs Kalaf heard and understood the questions, and answered or attempted to answer all of them. She commented that, had Mrs Kalaf not heard and understood the questions, she would have scored zero. Her actual score was 10 out of 24. Among the matters Mrs Kalaf could not answer was her age, despite the approach of her 100th birthday. She responded to that question by asking Poppy, who was present, to tell her how old she was.
Dr Anstey was cross‑examined thoroughly about the way in which she conducted the test. At the time she and Mrs Kalaf knew each other well. I am satisfied that Dr Anstey was familiar with Mrs Kalaf's communications, and her fluency in English, and that she was well able to judge whether Mrs Kalaf could hear and understand the questions. Subject to some further comments I will make in the light of the expert evidence, I am satisfied that Mrs Kalaf's performance on the test discloses impaired mental functioning, and her score cannot be attributed to either not hearing the questions, or to the fact that the test was done in English.
The test score does not itself enable the court to make a conclusion about testamentary capacity. I must look at it in the context of the other evidence. But it is an important fact.
In the defence and counterclaim, the defendants pleaded that Dr Anstey was not impartial, and questioned the quality of her care for Mrs Kalaf. These allegations were not pursued in cross‑examination. The evidence does not support them.

The other evidence

I will set out my findings on the events from Mrs Kalaf's release from hospital in November 2009, to her death in 2010. Poppy returned to Sydney sometime after her mother left hospital, probably in December 2009. From then until 29 July 2010, Mrs Kalaf lived with her son Peter or her daughter Julie.
The witnesses for the plaintiff gave instances of occasions when Mrs Kalaf showed forgetfulness or perhaps confusion. The defendants rigorously cross‑examined about some of these events, including the number of times these episodes occurred and when. There was an air of unreality about some of this. I accept that forgetful or confused behaviour (or behaviour so interpreted) was seen by each of the witnesses, although I cannot determine precisely how often. The witness statements may have suggested more often than the witnesses could recall in the witness box.
I cannot be satisfied when some of these events occurred, or if other factors may have been contributing to the behaviour observed at the time. The evidence was that there may be fluctuations in cognitive function. A patient suffering from an infection or other illness may develop more florid symptoms, including cognitive dysfunction, disorientation and other concentration deficits, on an acute basis, but improve back to their underlying level of cognitive function when the illness is treated. The observations made by the witnesses who saw Mrs Kalaf regularly over a period, rather than on isolated occasions, may be better evidence on which to make a judgment.
Peter lived with his mother for much of the period from December 2009 to 29 July 2010. He said that after November 2009, his mother showed difficulty in remembering where things were in the supermarket, and even in identifying basic foods. She would often not know what day of the week it was. She would leave the phone off the hook. She could no longer prepare meals. She needed assistance in showering and going to the toilet, and a nurse would visit each morning to assist with showering, dressing, and taking medication. She became confused about which medication to take and it was arranged for her medication to come in Webster packs. Conversation with her became difficult. She would lose interest and doze off. She no longer showed an interest in what her grandchildren were doing.
Some of these matters may have been the result of declining physical health. In particular, the defendants questioned whether the need for Webster packs was the result of failing memory or failing vision. But not all of them can be explained in that way.
Rose Kalaf said that in this period, Mrs Kalaf was forgetful and confused. At this time she was still regularly attending the Rod Evans Centre and the Migrant Resource Centre on set days of the week, but there were several occasions when she forgot what day it was. Rose said that she was there on occasions when Mrs Kalaf could not remember whether the nurse had been, and when she appeared vague and unable to participate in conversations. She gave specific examples: Mrs Kalaf could not remember the name of her grandson, Michael, at Christmas 2009; she said that she had come to Australia when she was only 16 (and not when she was 23); she said that Julie never rang her when, as Rose knew, Julie rang every morning.
Vanessa Kalaf also spoke of her grandmother being confused and repeating stories. She gave the same example as her mother, Mrs Kalaf forgetting how old she was when she came to Australia. Vanessa says that her grandmother showed little enthusiasm and was at times difficult to understand. Vanessa's evidence was very general, and she seemed hesitant and uncertain about details. I believe that she was a truthful witness, but with little recollection of the relevant time.
Sarah Diamond said that she saw Mrs Kalaf regularly while Mrs Kalaf was staying with Sarah's parents‑in‑law in 2010. On one occasion Mrs Kalaf appeared confused and asked for directions to the toilet. On another occasion, Mrs Kalaf appeared to have forgotten that Sarah's grandparents had died, and asked about their health. More generally, Mrs Kalaf was difficult to hold a conversation with, and responded to attempts to speak to her by singing in foreign languages, smiling and laughing. She could not accurately recall how often she observed this behaviour.
Ms Diamond's own recollection was unreliable in some respects. Most obviously, she recalled that Mrs Kalaf stayed at Julie's house for four months, including August 2010; it was a shorter period, and Mrs Kalaf was in Cleaver Street in August. I believe she was honest in her evidence. I could accept her evidence that she saw these things, but not when or how often they happened.
In general terms, I believed the plaintiff's witnesses were telling the truth about what they saw. But their evidence was often general, and witnesses had difficulty in recalling specific occasions, and in being able to say when and how often the events they remembered occurred.
Throughout 2010, Mrs Kalaf was receiving care from the Silver Chain service. One of the carers was called. Judith Dixon provided hygiene care to Mrs Kalaf for about four months in 2010. Ms Dixon said that Mrs Kalaf was lucid most of the time, but there were times when she was a little confused and would revert back to earlier times.
From the end of July 2010, Mrs Kalaf lived with Poppy. The evidence for the period after 29 July is largely from the defendants' witnesses, save for three occasions: when Peter and Rose came to 31 Cleaver Street on 11 August 2010; the birthday party at Kailis Brothers Restaurant on 24 October 2010; and the function at the Migrant Resource Centre on 28 October 2010.
Although Poppy had been living in Sydney since 1960, she had maintained regular contact with her mother. She visited Perth at least once a year. She was in Perth at the end of 2009 when Mrs Kalaf was discharged from hospital, and returned to Perth in late July 2010. She originally intended only to stay for a short time but remained until her mother's death.
Poppy has had serious health problems in the last few years, including open heart surgery. She said that she now has difficulty in remembering some things. Consistent with that difficulty, her witness statement was short on detail. In particular, her evidence was imprecise about the periods she was talking about.
For example, in her witness statement, as evidence of her mother's continuing mental acuity, Poppy said her mother sold bingo tickets every Wednesday and Friday at the Rod Evans Centre. Mrs Kalaf knew the names of all the ladies there, and remembered details of their lives. She continued going until a few weeks before she died. Poppy attended with her mother. They were picked up by 'Mike' from the centre.
But, in my opinion, it is likely that Poppy was recalling matters from an earlier time. The records provided by the centre show that Mrs Kalaf was last recorded as using transport provided by the centre on 2 July 2010, before Poppy came back from Sydney. When she returned, Poppy had no car. She said she borrowed a car and attended the centre with her mother, but only once or twice. Further, for about the last six weeks before she died, Mrs Kalaf was living in Lucky's unit in Crawley, where Poppy was looking after both her mother and brother (who was terminally ill).
On all of the evidence, I doubt that Poppy's recollection of her mother at the Rod Evans Centre relates to the period after July 2010.
Poppy said that, as a result of something Nicholas Diamond told her, she contacted Landgate and requested documents about 19 Roy Street. She had the documents sent to Cleaver Street, and they were there when she returned to Perth on 29 July 2010. She then told her mother that there had been a change of name on the title, and that her name had been taken off it altogether. It was after Poppy told her about the title that Mrs Kalaf spoke of Peter as a 'clefty' ‑ it seems to be agreed that 'clefty' is a Greek term for thief. Mrs Kalaf asked to see a solicitor. Poppy contacted Mr Ozich, but he had retired. She then approached Leanne Mallis, who recommended Mr McEwan.
The other witness who spoke of this period was Leanne Mallis. Leanne Mallis said that, in early July 2010, her grandmother told her that she needed a lawyer because there had been some 'funny business'. In her witness statement, she said that her grandmother told her, 'That clefty's taken my house. I don't remember signing my house to him'. This was, it seems, before Poppy had obtained the title documents, or at least before Poppy came to Perth. In oral evidence, Leanne Mallis said that the conversation about Peter taking the house took place many times, and was brought up by Mrs Kalaf a few times even before the demand letter was sent to Peter.
Leanne Mallis contacted Mr McEwan. She told Mr McEwan why the will was to be changed: her grandmother had said there had been some 'funny business'. Counsel for the plaintiff asked directly whether she provided any information to Mr McEwan about Roy Street or the Bentley Liquor Store before he spoke to Mrs Kalaf. She replied:
I said, 'There has been some funny business. Nana needs to take - and she needs you to do some documents for her, Ian.' Other than that, no.
Although a copy of the transfer of land form was included in the plaintiff's documents (on its face, a copy generated in October 2010), the defendants did not put forward any of the correspondence with, or the documents they obtained from, Landgate. I cannot resolve when Poppy requested or obtained the documents she referred to. There is a significant inconsistency between Poppy and Leanne Mallis about these events.

The events of 5 to 11 August 2010

On 5 August, Mr McEwan came to the house at Cleaver Street to take instructions. On 10 August he returned and the will was signed. On 11 August 2010, Mr McEwan served the letter of demand on Peter. Later that day, Peter went around to 31 Cleaver Street. Rose was with him. Poppy was at home with her mother.
Poppy had limited recollection of these events. She said that Peter called before he came to the house, and threatened to have her and her mother out of the house by the weekend. Peter denied that he made any such threat. As he claimed no interest in Cleaver Street, and given his previous care for his mother, I think it unlikely that he would make such a threat.
Poppy said that, when Peter and Rose arrived, she was talking to Leanne Mallis on the telephone. At Leanne's suggestion, she left the phone off the hook so that her niece could hear what was being said.
Leanne Mallis said that, when Peter arrived, she was talking on the phone to her grandmother, and asked her grandmother to leave the phone off the hook. In that way she heard what took place. Leanne Mallis said that, through the open phone line, she could hear Peter and Rose yelling, and her grandmother answering them. She heard her grandmother say in Greek words to the effect: 'This has been going on for far too long. I just want my money. You think I'm stupid. You have been robbing me for years Peter, you 'clefty'. I just want my money'. Leanne Mallis then asked Poppy to put Peter on the phone. She said that Peter then said he was sorry, in effect blamed his wife, and shouted at Rose to shut up.

There are difficulties with the account given by Leanne Mallis. First, it is inconsistent with the evidence of Poppy about who was speaking on the phone when Peter and Rose arrived. That, in itself, is a minor matter. Second, the account of leaving the phone line open, and being able in that way to not only hear, but to ask Poppy to put Peter on, is implausible. She did not explain how this was done through an open line, particularly if there was a heated discussion taking place at Cleaver Street. Third, in cross‑examination, Leanne Mallis agreed that she spoke only limited Greek, and was unable to give the Greek words for the conversation she said she had heard in that language.
Further, Leanne Mallis had sworn an affidavit on 3 December 2011 that differs in important matters. In that affidavit, Leanne said that Poppy rang her in a distressed state after Peter had arrived. She also said that she asked for the phone line to be left open so she could hear, but said this was after she had spoken to Peter and pleaded with him to leave his mother alone or he would kill her.
The evidence of Peter and Rose about this incident had its own shortcomings. The effect of their evidence is that, after exchanging pleasantries, Peter asked his mother about the letter from the lawyer and she said, 'What letter? What lawyer? What money are you talking about?' At that point Poppy 'screamed out' that Mrs Kalaf was not to say another word, was not allowed to speak. Despite that, everyone continued to speak. Poppy said something about the two men coming the day before – Mrs Kalaf did not remember them. Mrs Kalaf also said that she did not have an interest in the liquor store.
There was a level of guardedness and distrust in some of Peter's answers to cross‑examination, perhaps contributed to by the tone of some of the questions. Peter also gave the impression at times that he had fixed an account of this day in his memory and was repeating that account rather than responding to what he was asked.
In his witness statement, Peter set out in some detail what had been said by his mother, Poppy and himself, although he did accept that some other things may have been said that he had not recalled in his statement. Large parts of his witness statement regarding that meeting are identical to the statement made by his wife. Both described Poppy as being 'rude, aggressive and uncooperative'. The two accounts of what was said correspond, with very few and limited exceptions, word for word.
Peter and Rose denied discussing their evidence together, and explained the correspondence by the fact that they were both there and heard the same things. It is a poor explanation for such a degree of identity in the statements. I cannot say whether the similarity of the statements of Peter and Rose is because the evidence had been prepared together, or whether it is the result of the way in which the solicitor recorded the statements. Whatever the explanation, I am not satisfied that I can rely on the evidence of either Peter or Rose about that meeting as a wholly accurate account.
The competing versions of this event are far apart. Either Mrs Kalaf could not remember Mr McEwan's visit, did not know what letter Peter was talking about, and confirmed that she had no interest in the liquor store. Or she calmly withstood a verbal attack by her son and daughter‑in‑law, called him a thief, told him to marry off his children at a registry office, and later laughed at his threats and said 'Yeah right, let him try'.
Both accounts are beset with problems. The net effect is that I am not confident that I can find what occurred on that day. Fortunately, it is not crucial to the outcome of this matter.

The MMSE and later events

Dr Anstey conducted the MMSE on 24 August 2010, that is, about two weeks later. Poppy was present. Poppy said that, as far as she could remember, Mrs Kalaf was not wearing her hearing aids, and had a puzzled look and made gestures which Poppy interpreted as showing that her mother could not hear what was being said to her. In cross‑examination, she could not explain what it was that led her to believe her mother could not hear. On this event, I think the evidence of Dr Anstey is more reliable.
Peter said he saw his mother again around 28 September 2010. On that occasion her speech was mumbling, and she appeared confused and vague. In a phone conversation on 1 October 2010 she was again hard to understand, and complained of feeling tired.

The 100th birthday

Each party called evidence from witnesses about their observations of Mrs Kalaf's conduct and appearance at a function for her birthday at Kailis Brothers Restaurant on 24 October 2010. The defendants also tendered a compact disc containing four short video recordings that had been made on mobile phones by guests at the function.
Poppy took her mother to the function. She said that her mother interacted with guests, greeted them, addressed each by their correct name and asked them about things that were happening in their lives. She said, in very general terms, that these personal details were correct. She saw her mother hold sustained conversations with people. She did not mention in her witness statement that her mother was ill at the event.
Leanne Mallis said that Mrs Kalaf seemed happy and excited to see people as they came up to her, greeted each of them, and appeared to hold sustained conversations with them. In cross‑examination, Leanne showed some hesitancy about this evidence, accepting that with at least some of the guests, Mrs Kalaf was just smiling and nodding. She also agreed that Mrs Kalaf did not have batteries in her hearing aids, and did not have functioning hearing aids.
I believe that the evidence of the defendants is unlikely. About 60 people attended the event, and there was a high level of background noise. Mrs Kalaf did not have working hearing aids. Her vision was poor. These factors, in my opinion, are sufficient to make it improbable that Mrs Kalaf could have conducted sustained and lucid conversations with her guests in the way described by Poppy and Leanne Mallis.
Barbara Spencer also gave evidence of a conversation she had with Mrs Kalaf. She said that it took place when they, and quite a few other people, were outside on the balcony. It was a big balcony. Because Ms Spencer was smoking, they were not close while they were talking. When asked about Mrs Kalaf's hearing impairment, Ms Spencer dismissed it as a 'slight hearing thing'. I did not find this evidence plausible. Mrs Kalaf could hold a conversation without her hearing aids, but only if the other party was close and speaking directly to her. Otherwise, as Leanne Mallis said, she would just smile and nod, and say, 'Yes, dear'.
There is also uncontested evidence from Mr and Mrs Papadoulis. Each had known Mrs Kalaf for many years; Mr Papadoulis was her cousin. Mrs Papadoulis had not seen Mrs Kalaf for two years, and noted that she looked frail and aged. She was being assisted by others when she greeted the guests. During the meal, Mr Papadoulis saw Mrs Kalaf outside bent over and vomiting, and obviously ill and distressed. Mr Papadoulis described Mrs Kalaf as looking fragile and sick and said that she was not willing to enter into any type of conversation or exchange pleasantries with him.
Sarah Diamond attended the 100th birthday function. She approached Mrs Kalaf, and asked her a question, but got no response. Mrs Kalaf just smiled. Sarah said that she saw Mrs Kalaf introduced to some of the other guests. Mrs Kalaf did not engage in conversation with them, but simply smiled.
Peter Kalaf also attended, with his son Michael. He said that he when went to speak to his mother he was not sure if she recognised him. He described her as 'sitting at the table silent and was unresponsive to me or any conversation by me to her … at times she looked absent‑minded and gazing into space'.
This evidence regarding the birthday function is of limited relevance to the issues I must determine. That Mrs Kalaf appeared frail and ill, and was physically ill during the event, does not permit me to draw conclusions about her mental capacity either then or, more relevantly, two months earlier. More generally, I take into account that Mrs Kalaf suffered from impairment of her sight and hearing. Those physical limitations would themselves be sufficient to explain the conduct described by the plaintiff's witnesses.
The only evidence about the second birthday function at the Migrant Resource Centre on 28 October 2010 was from Ms Ursich. She said that she approached Mrs Kalaf, but Mrs Kalaf did not respond in her usual manner. This evidence is of limited relevance.

The expert evidence

Each party adduced expert evidence. Dr De Felice is a consultant psychiatrist, and Dr Arenson, a specialist geriatrician and endocrinologist. Each expert brought a slightly different perspective to the issues. The evidence of the experts has been valuable in interpreting and evaluating the material before the court, but is limited by the fact that neither ever met Mrs Kalaf. They had to rely on secondary evidence which, in some cases, I have not been able to accept.
Dr De Felice has a particular interest in psychiatry of old age and psychiatry in palliative care. He was asked by the plaintiff to give his opinion on three issues:
1.whether the MMSE generally assists in assessing testamentary capacity and, if so, in what way;
2.in the light of the MMSE test result in this case, and the statement of Dr Anstey, whether there was a real issue about Mrs Kalaf's testamentary capacity at 5 August 2010;
3.whether he could express an opinion on whether Mrs Kalaf did then have testamentary capacity.
Dr De Felice prepared two reports, dated 24 April 2013 and 14 May 2013, and gave oral evidence. The substance of his first report was that the MMSE does provide some guidance in assessing testamentary capacity. A person with a low score may be, at the time of the test, disoriented, have no capacity to recall matters, and be unable to concentrate. This may affect their testamentary capacity. A person with a low score on an MMSE may still have the capacity to make a will, depending on a range of facts, including the complexity of the task. The MMSE does not cover all of the matters that must be considered in assessing capacity, and cannot generally be used on its own for that purpose. But it may be a useful guide: a low score raises questions.
Dr De Felice did not only have regard to the test score, but referred particularly to Dr Anstey's evidence that she observed progressive deterioration since mid‑November 2009, and the evidence that Mrs Kalaf was unable to remember her age. Mrs Kalaf's inability to answer the questions about age and orientation in time (the day, month and season) indicated that she was struggling significantly with her memory.
In his first report, Dr De Felice recorded his reservations about the extent of the information available to him. For his second report, he was provided with the then available witness statements and, in particular, the capacity assessment worksheet completed by Mr McEwan when he took instructions for the will. Dr De Felice's conclusion remained essentially the same.
Dr De Felice had particular regard to the fact that Dr Anstey had a long term association with Mrs Kalaf and may have been best placed to notice changes in cognitive function. I agree with that approach.
Dr De Felice gave oral evidence and was cross‑examined. Nothing emerged which leads me to question what I regard as the most important part of his evidence in the context of this trial. The observations of Dr Anstey and the MMSE she conducted do not show that Mrs Kalaf lacked testamentary capacity, but are sufficient to raise a doubt about her cognitive functioning in August 2010. It would have been preferable for someone to conduct further investigations, but none were carried out. There is a doubt about Mrs Kalaf's cognitive state that needs to be evaluated and, if possible, resolved.
Dr Arenson provided a report dated 23 April 2013, and three short supplementary reports including a response to Dr De Felice. He also annexed source material which supported his views.
Dr Arenson commented, in particular, on aspects of the evidence of Dr Anstey. In important areas, he did not agree with her conclusions.
The first area is the evidence regarding Mrs Kalaf's state in mid to late 2009, and Dr Anstey's opinion that she lost capacity in November of that year. Dr Arenson reviewed the opinions expressed in the reports and correspondence of doctors and other health workers who saw Mrs Kalaf at that time. Those who did comment on her mental state reported that she was 'cognitively intact' and 'mentally sharp'. Others who saw her did not question her capacity to make decisions, such as her decision to remain at home and not to go into care, or question her insight.
There were also no medical reports which suggested or identified any neurological event or clinical signs to support a sudden loss of cognitive function in November 2009. Dr Arenson said that, unless they suffer a direct brain injury, such as a stroke, patients do not suddenly suffer a permanent loss of cognitive capacity. A patient may suffer delirium, and acute confusion, caused by an inter‑current illness. But that will not usually lead to a permanent impairment. Dr Arenson emphasised the importance of making a diagnosis, and finding out whether a patient has an underlying disorder that causes the lack of capacity. This also enables the doctor to understand the course of the underlying disease, and whether the patient may have capacity at some times and not others.
In his first report, Dr Arenson particularly noted that Mrs Kalaf was able to live alone for the months following her medical deterioration, a fact that did not support a finding of advanced cognitive impairment. When cross‑examined, he accepted that he had relied on his understanding that Mrs Kalaf was able to and did live alone after leaving hospital in November 2009. He was not aware that Mrs Kalaf did not live alone, and that one of her children lived with her from when she left hospital until her death.
Dr Arenson's report was, to a degree, critical of the way in which Dr Anstey administered the MMSE. He moderated that criticism significantly in his oral evidence. For example, he had suggested that with a patient like Mrs Kalaf for whom English was not her first language, the results may have been more reliable had she been assisted by an interpreter. He acknowledged, however, that Dr Anstey had a long familiarity with the patient, and that he had no specific knowledge of Mrs Kalaf's language skills.
Dr Arenson also questioned whether Mrs Kalaf could have suffered from the degree of cognitive impairment reflected in the MMSE results, when at her birthday party in October she was able to greet all guests, engage in lucid conversations, and thoroughly enjoy herself. Again his opinion depended on the accuracy and reliability of the statements given to him. In this area, he particularly referred to a statement of Leanne Mallis about the birthday party. For reasons set out above, I do not accept the evidence led on behalf of the defendants regarding Mrs Kalaf's conduct at the party.
The four short video recordings made at the function were played in court and viewed by Dr Arenson. He said that, from what he saw and heard, Mrs Kalaf did not appear to be suffering from severe dementia. She did, for example, understand and follow instructions for cutting the birthday cake. But the video did not assist him with regard to where Mrs Kalaf might lie in the middle range between severe dementia and cognitive normality.
More generally, Dr Arenson emphasised the limits of the MMSE, and the need for further cognitive testing. He said:
The mini‑mental state examination assesses global cognitive function and if you divide it into its categories, it assesses issues like orientation, language, attention and calculation, short-term memory. None of those things directly assess executive function, which is the higher function for making reasonable decisions, which is obviously the most important modality in terms of testamentary capacity.
There is a correlation between a low score (and 10 out of 24 was a significantly low score) and a patient no longer possessing testamentary capacity, so that a score like that recorded for Mrs Kalaf would guide you in a particular direction. The score indicates a mental or cognitive disorder. The task‑specific nature of testamentary capacity suggests that an impairment of cognitive capacity should be considered a suspicious circumstance but should not in itself lead the person making the assessment to a conclusion of incapacity.
I do not wish to oversimplify in such a complex area. But the result of the expert evidence, in my view, is that no conclusion can be drawn from the MMSE result about whether Mrs Kalaf retained testamentary capacity in August 2010. Neither expert had sufficient information to enable that judgment to be made. And as Dr Arenson said:
a patient with a MMSE of 10 out of 24 should have further assessment if one is to draw a conclusion about testamentary capacity, and there is ‑ there is doubt in ‑ in that circumstance, that is worth pursuing.
Finally, I will deal briefly with Dr Arenson's comments on the capacity assessment worksheet completed by Mr McEwan. Although he initially expressed the view that the worksheet had been 'competently and comprehensively' completed, Dr Arenson readily accepted that for many parts of the form he could make no assessment about the quality of what had been done. It is not necessary to set out this part of Dr Arenson's evidence in more detail. For reasons which I set out below, I have been unable to accept Mr McEwan's testimony. To the extent that his oral evidence might explain or supplement what is recorded in the worksheet, so as to permit some findings about the quality of the assessment that he carried out, I do not accept that evidence.

The evidence of Mr McEwan

The evidence of Mr McEwan is particularly important. The MMSE test results, in the context of the other evidence about Mrs Kalaf during her final year, are a sufficient basis for serious suspicion about whether Mrs Kalaf had the capacity to make a will in August 2010. Mr McEwan:
1.took instructions both for the will and for letters addressed to Peter Kalaf and to the Diamonds;
2.drafted the will in accordance with his instructions; and
3.prepared a worksheet on matters relating to testamentary capacity.
He offered the evidence of an independent professional man, experienced in taking will instructions, and alert to the issues requiring consideration should testamentary capacity be questioned. And, as the opening questions to Mr McEwan from counsel for the defendants noted, he is an officer of the court.
The plaintiff questioned Mr McEwan's independence. He had been a friend of Leanne Mallis over many years. In the context of drafting a will, the question of independence is of lesser concern. The use of a family friend in a non‑contentious will matter is probably not unusual. But there was a risk of litigation, and Mr McEwan recognised it at the time. Further, the will he prepared gave half of the estate to Leanne Mallis (with nothing to her sister) should her father not survive Mrs Kalaf. Her father was then gravely ill. A solicitor with no connection to the matter, even by friendship, would have been preferable. But I do not necessarily discount Mr McEwan's evidence simply because of this friendship.
There are other reasons why I am satisfied that I should not accept Mr McEwan's testimony.
First, there were two occasions when his witness statement and oral testimony in this matter was, in an important matter, inconsistent with an earlier statement or affidavit.

Mr McEwan gave evidence over two days, with a weekend intervening. His initial evidence was that he had not met Poppy before attending to take instructions from Mrs Kalaf. In cross‑examination, he agreed that he had done legal work for her. At first he said it was towards the end of 2010; then he agreed that it may have been before he did work for Mrs Kalaf. When reminded that Poppy came to Perth in late July 2010, he agreed that it may have been in June or July of 2010.
It is a significant enough matter in the context of this case that I would have expected a solicitor to remember, or to check, whether he had acted for Poppy. On the second day of his evidence Mr McEwan said that he had become confused when giving his earlier evidence. He said that he had checked his records the previous day, and that he had not done legal work for Poppy.
Mr McEwan made a witness statement on 10 February 2012 in other proceedings between these parties (CIV 1254 of 2011). In it, he said that in the course of doing some legal work for Poppy 'in about June or July 2010', she told him that her mother might want to talk to him to obtain some legal advice. When asked to explain this paragraph, he said:
Well, now that you’ve shown me this witness statement, I'm forced to remember what it was that went on, sir. I had a contact from a Mr Steven Penglis, I believe, in relation to - to the matter. And this is the witness statement that was created in response to that.
Counsel asked him again what the legal work was, and he could not recall. He could not recall whether he did any work for Poppy. The inconsistency is marked. There is no adequate explanation for it.
Mr McEwan testified that he took instructions from Mrs Kalaf on 5 August, and returned on 10 August for the execution of the will. He said that those were the only occasions when he saw Mrs Kalaf. Mr McEwan had sworn an affidavit in these proceedings on 28 November 2011. Exhibited to that affidavit was an email dated 14 December 2010, from Mr McEwan to Leanne Mallis. In the affidavit and email he stated that he took instructions from Mrs Kalaf 'during several visits to her home during the months of July 2010 and August 2010'. When asked about the affidavit, he said he could not recall any visits in July, and that he would have been speaking in generalities and not particular dates. He said the affidavit should have referred to two visits only, on 5 and 10 August.
The witness statement of 10 February 2012 and the affidavit of 28 November 2011 were both tendered. There are other things in them which are inconsistent with Mr McEwan's evidence in these proceedings. Because he was not cross‑examined on the documents generally, I will not now comment on those other matters.
Second, there were occasions when he contradicted evidence he had earlier given. It was not just the contradictions, but the manner in which he explained them, that lead me to reject his evidence.
Among the documents produced by Mr McEwan was a typed file note from his office computer system for 5 August 2010. It reads:
Subject: leave for 3.30 pm appointment with Leanne's aunty. Aunty Poppy will be there. Instructions for will only ‑ $330 total. 31 Cleaver Street, West Perth – 6005 off Newcastle. Auntie Poppy – Despene Kalaf. Nanna – 1ppy to Dad Aunty and other Aunty. Roy Street.
Start: Thu 5/08/2010 3:00PM
End: Thu 5/08/2010 5:00PM
Mr McEwan said that note was made following a phone call from Mrs Kalaf, and relates to his visit to take instruction from her. He did not explain why he recorded it as an appointment with 'Leanne's aunty', nor the references to 'Dad', 'aunty' and 'other aunty'. But he was clear the call was from Mrs Kalaf.
On the second day of his evidence, Mr McEwan volunteered that he had spent the previous day in his office retrieving documents from his system because he felt dissatisfied with his lack of clear recollection on the first day of his evidence. He now wished to correct his earlier evidence: the note from his computer was the result of a phone call from Leanne Mallis, not Mrs Kalaf. There had been a call from Mrs Kalaf, and he could now remember that this was when she rang to change the time of the appointment from 3:30 pm to 3:00 pm. He had made no file note of that phone call. The correction to his evidence was, it appears, the result of remembering a second phone call about which he had no record.
Even if I accept that explanation, the question remains why Leanne Mallis was telling him the distribution of property to be effected by Mrs Kalaf's will.
Mr McEwan gave evidence of the instructions he received to prepare the letter of demand to Peter, the letter addressed to Mr and Mrs Diamond, and the letter headed 'To Whom it May Concern'. All three documents were dated 11 August. Mr McEwan said he prepared these letters on the evening of 10 August 2010, after the will had been executed by Mrs Kalaf.
At first, he said the letter to the Diamonds (with the 'To Whom it May Concern' letter included) was sent to them. He agreed when counsel referred to the letter to the Diamonds as 'the one you posted on 11 August'.
Counsel put a series of questions regarding the terms of the letter of demand to Peter, which referred to Mrs Kalaf's claim for a 25% interest in the Bentley liquor store and said: 'A letter in support of that claim has been signed by Mr and Mrs Diamond'. On Mr McEwan's evidence, the letter in support had not yet been provided to the Diamonds when he drafted the letter to Peter. Mr McEwan accepted that. He said there was an error on his part, a mistake in drafting. He agreed that when he drafted the letter to Peter Kalaf, he had no basis to expect that the Diamonds would be signing this letter and returning it to him.
With the opportunity to reflect over the weekend, Mr McEwan offered another explanation: he had left a copy of the supporting letter with Mrs Kalaf on 10 August when he attended for the execution of the will, because he wanted to confirm that the detail in it was in accordance with his instructions before he sent it. On 11 August, in the morning, he received a phone call from Mrs Kalaf (another call he did not make a note of) advising him that the Diamonds had signed the letter he left the day before. When pressed about this matter, he said he recalled a phone call from someone, he had no clear recollection from whom, but he believed it was from Mrs Kalaf. After that phone call he changed the letter of demand to include the information that the Diamonds had signed the other letter. None of this appeared in any of his witness statements, or in his earlier testimony.
Mr McEwan was asked about his earlier evidence that he prepared the letters on the evening of 10 August, which did not permit him to have left a copy with Mrs Kalaf earlier that day. He replied that he had prepared the letter to Peter Kalaf on the evening of 10 August, but the others had been prepared beforehand. That was not his earlier evidence.
Third, there are matters within the contemporaneous notes of his interview with Mrs Kalaf, that cause me to doubt that they result from that interview as he described it.
Mr McEwan said that he had no discussions with Leanne or Poppy. He had been given no documents by them. No one else was present while he took instructions. He did not later amend the notes he took at the time.
Mrs Kalaf had a duplicate certificate of title and the land transfer document. Mr McEwan could recall no other documents. His notes refer to no documents. But the notes include:
1.the address for Mr and Mrs Diamond, including street name and number and postcode;
2.the street name and number for the liquor store at 107 Manning Road, Bentley;
3.Poppy's full address in New South Wales, including apartment and street number, but not postcode;
4.address details for Mr Ozich, including postcode;
5.the full address for Peter Kalaf's business and the name of that business;
6.details for a Commonwealth Bank branch, including its street address, and the name, phone number and email address for the branch manager.
It is not plausible that Mrs Kalaf gave these details to Mr McEwan orally.
The file notes have other odd features.
The notes refer on occasions to family members in terms which are not consistent with instructions coming from Mrs Kalaf: in relation to the liquor store, there is a note 'Peter + Mum: 25%'; referring to Roy Street, there are the words 'if the property was in Nanna's name', and later 'Roy Street → Nanna'.
Mr McEwan referred to the last page of his notes as his summary notes. It contains six numbered paragraphs, the fourth of which is:
Had coffee and cake whilst Despina, and Leanne and Poppy returned to room from outside, when they were called back in.
On its terms, it was made after the interview with Mrs Kalaf. The fifth paragraph contains the statement 'that Testatrix simply wants to use this debt recovery matter and her Will to RIGHT the WRONG she is completely convinced has been done to her'. Mr McEwan relied on this statement as evidence of his instructions to exclude Peter from the gifts in the will, and also to exclude Julie.
Fourth, the notes taken by Mr McEwan are not consistent with the disposition in the will.
The typed file note from Mr McEwan's computer system, which I have set out above, refers to one property 'to Dad, Aunty and other Aunty'. The instruction sheet records residue to Lucky, if he predeceases to Leanne, to Poppy, and to Angeline Diamond (Julie). Mr McEwan recorded in his capacity assessment that Mrs Kalaf was consistent throughout. Yet the will excludes Julie.
Mr McEwan conceded that there is no reference in any of his contemporaneous notes to the exclusion of Julie. The notes refer to the exclusion of Peter, but not his sister. Mr McEwan offered two explanations: that his contemporaneous notes recorded 'discussion points but not instructions'; and that the reference in his summary notes to the use of the will to right a wrong was a reference to the exclusion of Julie as well as Peter. Each explanation was a poor attempt to explain away a patent inconsistency. He also suggested that the exclusion of Julie appears in the letters that he drafted. But the letters allege no wrong to Mrs Kalaf by Julie or her husband.
I also take into account that on five occasions in his witness statement, Mr McEwan sets out statements he said were made by Mrs Kalaf about Peter's conduct, and her reason for excluding him from the will. Julie is not mentioned in any of them.
Finally, on his evidence, Mr McEwan's conduct falls well short of what I would have expected. In taking instructions from an elderly client, where he thought it necessary to complete a capacity assessment form, he relied on his own assessment and sought no medical advice. He asked no questions about Mrs Kalaf's medical condition or the medications she was taking. He made no inquiry about existing wills. He knew there was a serious property dispute, and potential for litigation, but he sought no documents or other information supporting the claims he recorded.
Mr McEwan gave his evidence without hesitation, in considerable detail, and with apparent confidence, all of which make the errors and inconsistencies more conspicuous and more troubling. As a result of all of these matters, I do not accept the evidence of Mr McEwan as to the circumstances in which he received instructions, or the instructions he received.
My doubts about Mr McEwan's evidence extend to the reliability of the documents he said he prepared at the time of his meetings with Mrs Kalaf, including his capacity assessment worksheet.
My findings about the taking of instructions by Mr McEwan affects my assessment of the evidence of Poppy and Leanne Mallis, at least with regard to the events of 5 and 10 August 2010. I do not believe Mr McEwan could have taken instructions from Mrs Kalaf in the way they described.

Conclusion on testamentary capacity

On the whole of the evidence, the defendants have not established that Mrs Kalaf had testamentary capacity when she gave instructions for, and executed the will dated 10 August 2010. There is very general evidence from family members that, by then, she was showing signs of confusion and loss of memory. More significantly, Dr Anstey had observed a moderate deterioration of cognitive function. Her testing provided objective evidence of loss of function. Together with the evidence of Dr De Felice and Dr Arenson, it leaves a doubt ‑ in my opinion, a very serious one, about capacity.
The defendants' evidence about the circumstances in which instructions were given, and the will prepared and executed, was entirely unconvincing.

The principles regarding knowledge and approval

Knowledge and approval of the contents of the will is also presumed on proof of due execution: Fisher v Kay [2010] WASCA 160 [85]. Evidence that Mrs Kalaf gave instructions for the will, or that it was read over by or to her, may be the most satisfactory evidence of actual knowledge of the contents of the will. But if, in the opinion of the court, circumstances exist which give rise to a suspicion that the terms of the will do not accord with her intention, the court will not admit the will to probate (or, in this case, will revoke the grant in common form) unless the party who seeks to prove the will removes the suspicion and affirmatively proves that she knew and approved its contents: Roebuck v Smoje [2000] WASC 312 [94] ‑ [95]; Fisher v Kay [86].
In the present case, I should take into account the general circumstances, such as Mrs Kalaf's advanced age and physical frailty, her impaired vision (where the evidence is that she read the will), the circumstances in which the instructions were taken and the will prepared, the complexity of the will itself, and the exclusion of two of her children who had been included as beneficiaries in the will made less than a year before. In my opinion, I should also take into account the discrepancy between the instructions recorded in the solicitor's notes and the final will.
If these matters create a relevant doubt, the defendants (as the parties seeking to prove this will) must affirmatively establish that Mrs Kalaf knew the contents of the will and appreciated the effect of what she was doing, so that it can be said that the will contains her real intention and reflects her true will. What is sufficient to dispel any doubt or suspicion engendered by these factors depends on the circumstances of the case.

Knowledge and approval of the contents of the will - the evidence and conclusions

I have discussed the evidence about how instructions were taken, and my concerns about that evidence. I will not repeat that discussion.
I also have concerns about the execution of the will.
Mr McEwan said that, on the day of signing the will, he went through the clauses of it with Mrs Kalaf to ensure that it was consistent with her instructions. He explained the various clauses to her, including the definitions, the notion of a testamentary trust, the principal powers given to the trustee executor and the primary beneficiaries, the clauses regarding severance, and the protective trusts. Counsel asked him how he would explain each of those matters. If they were explained in the terms that Mr McEwan said he used, I do not believe that Mrs Kalaf could have understood them.
Mrs Kalaf had no formal schooling. The evidence is that she was an intelligent and resourceful woman. I doubt that would be enough to overcome her lack of education in a task like understanding the effect of this will, in the terms Mr McEwan said that he explained it.
Mr McEwan said that, in the course of his explanation, Mrs Kalaf asked him if he could show her where in the document it showed her assets going through to Poppy and Lucky. He said that he showed her, and that she read that part of the will. Indeed, as far as he was aware, she was reading the whole document as he explained it to her. She appeared to have no difficulty reading it or seeing it. He could not recall, but did not believe that she was wearing glasses.
Mrs Kalaf had suffered from poor vision for many years. There is a lot of evidence on that point. For example, Dr Anstey administered only part of the MMSE because of Mrs Kalaf's poor eyesight. The Silver Chain notes record, on 12 April 2010, 'eyesight failing so finding it difficult to crochet'. It is highly unlikely that in August 2010 she could read. I do not believe the evidence that she read it.
Mr Ravi gave evidence about the actual signing of the will, but he was not present when it was explained to and read by Mrs Kalaf. Mr Ravi said that Mrs Kalaf took 15 to 20 minutes to sign the eight pages of the will.
Finally, there is the discrepancy between the notes recorded by Mr McEwan as to the distribution of the residue of the estate to Mrs Kalaf's three children, excluding only Peter, and the terms of the will. I have set the evidence on this matter out above.
Because of my overall doubts about Mr McEwan's evidence I am not satisfied that the will was executed in circumstances where Mrs Kalaf signed it as a free and capable testator. I doubt that Mrs Kalaf understood the contents of the document that is put forward as her last will, and that she approved the dispositions in it. Mr Ravi's evidence about its execution does not alleviate that doubt.
On the whole of the evidence, I am not satisfied that Mrs Kalaf knew and approved the content of the document she signed.

Conclusion

The evidence does not permit a positive finding that Mrs Kalaf lacked testamentary capacity in August 2010 when she gave instructions for and signed the will. But there are such doubts as to that issue, that have not been resolved on the evidence, that on the whole of the evidence I am not satisfied that the will has been proved. I make that finding aware of the importance of not denying the testamentary wishes expressed by a testator.
I have reached this conclusion without making any finding about whether Mrs Kalaf suffered from delusions about her ownership of 19 Roy Street and an interest in the Bentley liquor store. On the evidence presented in this trial, I could not resolve that issue.
The evidence about the taking of instructions and the execution of the will also leads me to doubt that Mrs Kalaf knew and approved the contents of the document that she signed.
I am satisfied that the grant of probate in common form dated 10 January 2011 should be revoked. I will hear the parties regarding whether my findings support any other orders or relief.
I am not satisfied, on the evidence led and the issues pleaded in this action, that I can order that the will of 19 November 2009 be admitted to probate in solemn form. I will hear the parties on whether or how the issues relating to that earlier will should proceed.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: KALAF -v- PANAGIOTA GRIMANES As Executor of the Will of DESPINA KALAF [2013] WASC 327 (S)

CORAM: ALLANSON J

HEARD: 31 OCTOBER 2013

DELIVERED : 15 NOVEMBER 2013

FILE NO/S: CIV 2895 of 2011

MATTER :The Estate of Despina Kalaf (Dec)

BETWEEN: PETER KALAF
Plaintiff
AND
PANAGIOTA GRIMANES As Executor of the Will of DESPINA KALAF
First Defendant
PANAGIOTA GRIMANES
Second Defendant
LEANNE MALLIS As Executor of the Will of EMANUEL KALAF
Third Defendant
ANGELINE DIAMOND
Fourth Defendant

Catchwords:

Costs - Application by unsuccessful defendants to have costs paid out of estate - Discretion of the court - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 66 r 1, O 66 r 9, O 73 r 15
Supreme Court Act 1935 (WA), s 37(1)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr T Lampropoulos SC
First Defendant : No appearance

Second Defendant         :     Dr P R MacMillan
Third Defendant           :     Dr P R MacMillan
Fourth Defendant          :     Mr S P Paonni

Solicitors:

Plaintiff:     Chris Biris
First Defendant             :     No appearance
Second Defendant         :     Havilah Legal
Third Defendant           :     Havilah Legal
Fourth Defendant          :     Vincent Partners

Case(s) referred to in judgment(s):

Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Tarabini v Silvester (Unreported, WASCA, Library No 960684S, 6 December 1996)

ALLANSON J: Following my decision in this matter on 30 August 2013, the second defendant (Ms Grimanes in her personal capacity) and third defendant (Ms Mallis as executor of her father's estate) have applied by chamber summons for an order that the costs of the action be paid out of the estate. The plaintiff (Mr Kalaf) opposes the order. The fourth defendant (Ms Diamond) did not participate in the trial, but gave notice that she would abide the decision of the court. She also opposes an order for costs out of the estate.
As a result of my decision declaring that the late Mrs Despina Kalaf lacked testamentary capacity, and revoking the grant of probate of the will dated 10 August 2010, it is likely that an earlier will, executed on 19 November 2009, will be proved and admitted to probate. That has not yet been done. Under the 2009 will, the parties to the current action would share the estate.
The costs of and incidental to all proceedings in court are in the discretion of the court: Supreme Court Act 1935 (WA) s 37(1). The discretion must be exercised judicially, but it is otherwise unconfined: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 [21] ‑ [22], [134]; Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 540, 558, 562, 568. While the discretion to award costs cannot be shackled, and considerations which might guide the exercise of the discretion cannot be rigidly applied, the authorities offer guidance on the proper exercise of the discretion. Consistency in the exercise of judicial discretion is important in the administration of justice. Giving proper consideration to the rules of court and decisions in other cases is an important measure in ensuring consistency.
The general rule in O 66 r 1 of the Rules of the Supreme Court 1971 (WA), while it is expressed not to limit the general discretion conferred on the court, is that the court will generally order that the successful party to any action or matter recover his costs. The general rule that costs follow the event applies in probate matters, although there are well recognised exceptions: Tarabini v Silvester (Unreported, WASCA, Library No 960684S, 6 December 1996). There are also rules relating to probate actions in O 66 r 9, which are in part repeated in O 73 r 15, but this case does not fall within r 9.
In the present matter I am satisfied that the costs of the action should not be paid out of the estate.
First, the costs incurred by the defendants in this litigation were not incurred in the administration of the estate of Mrs Kalaf, but in furtherance of their personal interests as beneficiaries under the 2010 will. In particular, Ms Grimanes did not participate as the executor or personal representative. In that capacity, she was separately represented and chose to abide the decision of the court.
Second, Mr Kalaf brought these proceedings to challenge the will after Ms Grimanes had obtained a grant of probate and had commenced the administration of the estate. The proceedings were, in essence, adversarial litigation between Mr Kalaf (who benefits under earlier wills) and Ms Grimanes and Ms Mallis. Although Ms Mallis appeared as executor of her father's estate, her conduct in the proceedings was more personal. The evidence was presented orally, and factual issues were strongly contested. Wider disputes between the parties bled into the contest over the will.
Third, the will was prepared during a period when Mrs Kalaf was living with Ms Grimanes. Both defendants had ample opportunity to observe and form an opinion about Mrs Kalaf's testamentary capacity. The will was prepared by a solicitor who has been a long‑time friend of Ms Mallis for many years, and who may have being doing legal work for Ms Grimanes around that time. As set out in my judgment, at [198] ‑ [200], Ms Mallis apparently gave some initial instructions to the solicitor regarding the disposition of Mrs Kalaf's property. The will was prepared in circumstances that excited very strong suspicion. Not all of that could be attributed to the conduct of the solicitor. I did not accept his evidence, but I also found that I did not believe that the solicitor could have taken instructions from Mrs Kalaf in the manner described by the two defendants.
These factors, in combination, led me to conclude that the proper exercise of discretion in this case is that the second and third defendants should pay the plaintiff's costs, and that the application for payment of the costs out of the estate should be dismissed.
The plaintiff, in addition, referred to the practical effect of the defendants' application. On the assumption that the will executed by Mrs Kalaf in 2009 will be proved, an order for costs to be paid out of the estate would be borne equally by the four beneficiaries under that will. The plaintiff submitted that he would, as a beneficiary, ultimately be paying part of his own costs and part of the costs incurred by the defendants. Ms Diamond, who did not participate in the trial, would end up paying a portion of those costs. While that is the practical effect of the orders sought, I am not satisfied that it is a factor that should affect the exercise of the discretion. Or, more accurately, were this otherwise a case where costs should be ordered out of the estate, the fact that it would diminish the estate and the plaintiff's share in it would not have led me to make a different order.
For these reasons, I dismiss the application of the second and third defendants by chamber summons.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: KALAF -v- GRIMANES [2013] WASC 327 (S2)

CORAM: ALLANSON J

HEARD: 3 FEBRUARY 2014

DELIVERED : 3 FEBRUARY 2014

PUBLISHED : 5 FEBRUARY 2014

FILE NO/S: CIV 2895 of 2011

MATTER :The Estate of Despina Kalaf (Dec)

BETWEEN: PETER KALAF
Plaintiff
AND
PANAGIOTA GRIMANES
Second Defendant
LEANNE MALLIS As Executor of the Will of EMANUEL KALAF
Third Defendant
ANGELINE DIAMOND
Fourth Defendant

Catchwords:

Wills - Probate - Application for proof of will in solemn form - Proof of due execution - Original will lost - Presumption of revocation rebutted - Turns on own facts

Legislation:

Wills Act 1970 (WA), s 8

Result:

Grant of probate in solemn form of will dated 19 November 2009

Category: B

Representation:

Counsel:

Plaintiff:     No appearance
Second Defendant         :     Dr P R MacMillan
Third Defendant           :     No appearance
Fourth Defendant          :     No appearance

Solicitors:

Plaintiff:     No appearance
Second Defendant         :     Havilah Legal
Third Defendant           :     No appearance
Fourth Defendant          :     No appearance

Case(s) referred to in judgment(s):

Kalaf v Panagiota Grimanes As Executor of the Will of Despina Kalaf [2013] WASC 327
ALLANSON J:

Introduction

On 3 February 2014, I made orders which should finalise this action. These are my reasons for making those orders.
These reasons follow my earlier decision, Kalaf v Panagiota Grimanes As Executor of the Will of Despina Kalaf [2013] WASC 327, delivered 30 August 2013, where I set out the facts in detail. I will not repeat them.
In the earlier decision, I declared the will of Despina Kalaf, dated 10 August 2010, to be invalid for want of testamentary capacity. The plaintiff, Peter Kalaf, sought orders that an earlier will, executed by the deceased on 19 November 2009 (the 2009 Will), be pronounced as the last will and testament of the deceased, and be admitted to probate in solemn form.
I was not prepared to make those orders on the pleadings and evidence then before me. The parties agreed that I should adjourn the matter, with leave to amend the pleadings to plead the due execution of the 2009 Will, and with leave to lead further evidence to formally prove that will.
Ms Grimanes is the executor named in the 2009 Will, and a beneficiary under it. She brought in a further re‑amended defence and counterclaim, filed 17 January 2014, in which she pleads the facts relating to the preparation and execution of the 2009 Will. She further pleads:
1.after the death of Mrs Kalaf the 2009 Will could not be found [30];
2.she has a copy of the 2009 Will [31]; and
3. in the circumstances it is just and appropriate that the court pronounce that the copy has force and effect as the will of Mrs Kalaf [32].
Ms Grimanes asks for the following orders:
1.An Order pronouncing that the Document pleaded in paragraph 32 hereof and being 'Annexure A' to the affidavit of Panagiota Grimanes sworn 1st January 2014 or a copy thereof has force and effect in solemn form of law as the Will of the late Despina Kalaf (the Will).
2.An Order directing the Probate Registry to settle a grant of probate of the Will until the original or a more authentic copy of the Will is brought into the Registry.
3.There be liberty to apply for directions.
4.The costs of the counterclaim insofar as they relate to obtaining probate of the Will dated 19 November 2009 action be paid from the estate of the late Despina Kalaf.
None of the other parties oppose the orders sought.

The additional evidence

Ms Grimanes made an affidavit sworn 1 January 2014. She attaches a as 'Annexure A' a photocopy of the 2009 Will, although she cannot recall how it came into her possession. She states that she does not have possession of the original of the 2009 Will, has never had possession of it, and has no knowledge of where it is. The copy is of the executed document.
In the 2009 Will, Mrs Kalaf:
1.revokes all former wills and testamentary dispositions;
2 appoints Ms Grimanes as sole executor and trustee;
3.makes specific bequests of personal property; and
4.leaves the residue of the estate, including her residence at 31 Cleaver Street, West Perth, to her four children as tenants in common in equal shares absolutely. There is a condition that until such time as it may be sold, or subdivided and sold, any net income received from the residence at 31 Cleaver Street be given to Ms Grimanes absolutely. Ms Grimanes is given sole discretion as to when and on what terms the house should be sold.
The will is attested by Vladimir Veselko Ozich, solicitor, and Judith Ann Buchanan.
In a short affidavit, sworn 5 December 2013, Mr Ozich deposes that:
1.In 2009, he was practising as a solicitor but has now retired.
2.Mrs Kalaf attended his office on 19 November 2009 for the purpose of giving instructions to prepare her will and to execute it once prepared.
3.He had known Mrs Kalaf for many years and had prepared the 1991 will.
4. He prepared the will in accordance with Mrs Kalaf's instructions. He carefully explained the contents to her to which she fully agreed, and she then signed the will in his presence and in the presence of Ms Buchanan.
5.Mr Ozich and his secretary, Ms Buchanan, then signed the will as witnesses in each other's presence and in the presence of Mrs Kalaf.
6.His usual practice was not to retain the original of wills, but to hand the original to the testator with at least one copy. He has no reason to believe he did not give Mrs Kalaf the original of the will.
7.He does not hold the original will.
On the evidence, I am satisfied that Despina Kalaf, also known as Despina Kalafatas, late of 31 Cleaver Street, West Perth, in the State of Western Australia, born on 28 October 1910, died on 11 November 2010 at Unit 3, 14 The Avenue, Crawley, and left real and personal property situated within the State. Mrs Kalaf made a will dated 19 November 2009 which revoked all earlier wills. Her daughter, Panagiota Grimanes, is named as the executor in the will. A later will, made on 10 August 2010, was not validly made as Mrs Kalaf then lacked testamentary capacity.
I am satisfied that the copy tendered by Ms Grimanes is a true copy of the 2009 Will. I am satisfied that due execution in accordance with s 8 of the Wills Act 1970 (WA) has been established in relation to the 2009 Will and that it is the will of the deceased, and that the names of the subscribing witnesses have been proved.
I am also satisfied that the 2009 Will revoked all earlier wills and testamentary dispositions. There is no later will or codicil. Due to the loss of the original, I need to determine whether there was any revocation of the 2009 Will. Having regard to the basis on which the 2010 will was declared invalid, I will also state my findings on testamentary capacity.

The evidence regarding capacity

I am satisfied on the evidence of Mr Ozich that the 2009 Will was executed and attested in a normal manner. Because there was evidence regarding testamentary capacity at and around the time of execution, I have considered whether, on the whole of the evidence, I am satisfied that Mrs Kalaf was of sound mind, memory and understanding at the time she executed the 2009 Will.
The evidence from the trial, in summary, is:
1Mrs Kalaf was not formally diagnosed with any mental illness or disorder during her life. She suffered from a number of physical ailments, but the evidence does not show a causal link between them and cognitive impairment.
2.On 15 July 2009, Dr Andrew Granger, consultant physician, described Mrs Kalaf as 'cognitively intact'.
3.On 21 October 2009, Debbie Paynter, a clinical nurse consultant of the Aged Care Assessment Team, Fremantle Hospital, assessed Mrs Kalaf as 'sharp mentally'.
4.None of the health records and correspondence between various practitioners, made around the end of 2009, express concern about Mrs Kalaf's mental state.
5.Dr Henrietta Bryan, a general practitioner who saw Mrs Kalaf in December 2009, had no cause to doubt Mrs Kalaf's cognitive functioning at that time.
6.Mrs Kalaf's cognitive functioning deteriorated gradually from November 2009 to August 2010. Her general practitioner since 2004, Dr Helen Anstey, noticed this decline, and in particular difficulty with memory.
7.There were no medical reports which suggested or identified any neurological event or clinical signs to support a sudden loss of cognitive function in November 2009.
8.A power of attorney was executed at about the same time, and was witnessed by two doctors.
9.Mr Ozich, an experienced solicitor who had known Mrs Kalaf for many years, expressed no misgivings about the capacity of Mrs Kalaf to give instructions and make her will.
On consideration of the whole of that evidence, I am satisfied that Mrs Kalaf had testamentary capacity when she executed the 2009 Will.

The lost original

I am satisfied that the copy pleaded in pars 31 and 32 of the further re‑amended defence and counterclaim and attached to the affidavit of Ms Grimanes is a true copy of the executed will, and that she has proved due execution. The 2009 Will revoked all previous wills. The original is lost.
Mr Ozich gave the original document to Mrs Kalaf. There is, in these circumstances, a rebuttable presumption that she destroyed it with the intent to revoke it. There is, however, evidence which supports an alternative inference.
Mrs Kalaf was 99 years old when she executed the will. In November 2009, Mrs Kalaf was very sick. She had been hospitalised for much of the period between 18 September and 24 November 2009. The will was executed, and Mrs Kalaf took possession of it, at about the time she left hospital.
Despite her advanced age, she had previously been able to live alone, with the assistance of her family. She could no longer do so. Until her death, she lived with one or the other of her children. Some of this time was in her own home in Cleaver Street, at first with her son Peter and then with Ms Grimanes. While living at Cleaver Street, Mrs Kalaf also spent time at the home of her daughter Julie Diamond. From about September 2010, she stayed at the home of her son Emanuel.
During her last year, Mrs Kalaf's physical health was declining. She was observed on occasion to be confused, and had failing memory. She had poor eyesight. By August 2010, Mrs Kalaf had significant memory deficit.
In those circumstances, I am satisfied that it is more likely that the will was lost than that it was destroyed, and the presumption has been rebutted.
For those reasons I made the orders sought.