Loupos v Demirgelis

[2008] NSWSC 1207

CITATION:	Loupos v Demirgelis [2008] NSWSC 1207
HEARING DATE(S):	18-21 August, 30 September, 1-3 and 7-9 October 2008.
JUDGMENT DATE :	19 November 2008
JURISDICTION:	Equity Division
JUDGMENT OF:	Windeyer J at 1
DECISION:	Claim for revocation dismissed.
CATCHWORDS:	WILLS, PROBATE AND ADMINISTRATION - Probate - Application for revocation of probate - whether testator had testamentary capacity
CATEGORY:	Principal judgment
CASES CITED:	Banks v Goodfellow (1870) LR 5 QB 549
PARTIES:	Maria Loupos (Plaintiff) Raphael Demirgelis (Defendant)
FILE NUMBER(S):	SC 121799/06
COUNSEL:	Kim Morrissey (Plaintiff) Ian Davidson (Defendant)
SOLICITORS:	Hunt and Hunt (Plaintiff) JSM Lawyers (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

WINDEYER J

Wednesday 19 November 2008

121799/06 Maria Loupos v Raphael Demirgelis in the Estate of John Gannelos (also known as Ioannis Gannelos)

JUDGMENT

1 John Gannelos (the deceased) died on 5 February 2006 aged 75. He left a will dated 6 January 2004, probate of which was granted in common form to the defendant Raphael Demirgelis on 28 March 2006. The plaintiff, Mrs Maria Loupos, seeks to revoke that grant and to obtain a grant of letters of administration with a will of the deceased dated 30 November 1979 annexed. The deceased made other wills on 10 June 2003 and 4 December 2003. The defendant by cross claim propounds the will of 10 June 2003 in the event that the present grant is revoked. No one seeks to propound the December 2003 will. The plaintiff, Mrs Loupos, claims that the deceased lacked testamentary capacity at the time of the will dated 6 January 2004 and the will 10 June 2003. If he did, then it is accepted that a grant should be made in favour of the 1979 will.

The Wills

2 Under the 2004 will (the 4th will) the deceased left all his estate to his nephew Raphael, who is the defendant, and appointed him sole executor.

3 Under the will of 4 December 2003 (the 3rd will), which is in the Greek language, the deceased dealt only with land on the island of Lesbos although that will purports to revoke all former wills. Under this will the deceased (a) gave separate parts of his orchard property in Agiasos to each of his nephews Efstratios and Haralambos; (b) gave two olive groves to his sister in law Spirathoula; (c) gave his real estate in the region of Plomario Lesbos to George Dallas; (d) gave his house at Kamboudi to Raphael Demirgelis. There was no residuary gift. I assume no one seeks to propound this will because it is accepted that if the deceased lacked capacity in January 2004 then he lacked capacity in December 2003 and if he had capacity at the time of the 4th will then the 3rd will is irrelevant as it was revoked by the 4th will.

4 The 2nd will was also made in the island of Lesbos and is also in the Greek language. In that will the deceased listed all his real estate assets in Lesbos and in Sydney and gave the whole of his estate to the defendant.

5 The 1st will was made in Sydney on 30 November 1979. It is written in English. It appointed Peter Demirgelis, the brother-in-law of the deceased and father of the defendant Raphael, and Bill Loupos, the husband of the plaintiff, as executors. The deceased gave the whole of the estate to his parents and if they both predeceased, which they did, then to such of his brothers and sisters who survived him, with the substitution of children in the event of a sibling predeceasing the deceased.

Family of Deceased

6 The brothers and sisters of the deceased were:

a) Maria Loupos, the plaintiff;

b) Dimitrios Ganellis who is married Spirathoula;

c) Joanne Demirgelis, who died in 2007 – mother of Raphael and married to Peter Demirgelis, the father of Raphael;

d) Almirsoutha, who died in 2000 without children;

e) Eleni Skoutelli, who lives in Lesbos and is a widow;

f) Kaliopy (Pashalia) – who lives in Athens.

7 There are some other relatives who feature namely George Dallas, who is married to the sister of Spirathoula, and some relatives of Raphael on his mother’s side to whom I will come in due course.

Assets in the Estate

8 The inventory of property annexed to the probate document lists the deceased’s assets at the date of death and their estimated values as follows:

Real Estate Estimated value

NSW estate
8 See Street, Kingsford $1 500 000
19-21 Figtree Avenue, Randwick $2 000 000

Greek estate

In Agiasos Lesbos $40 000

Two small ruins Agiasos $40 000

Bank Accounts $71 683

Shares (IAG) $2 519
Jewellery $2 200

Total $3 656 402

9 The Randwick property is subject to a mortgage to Perpetual Trustee Company Limited but that is a mortgage entered into by the defendant since the death of the deceased. The properties have been transferred to him presumably as devisee rather than as executor.

Family facts and background

10 The deceased was born in 1931 in Lesbos. He migrated to Australia in 1960. He was never married and his parents predeceased him. He had the five siblings to whom I have referred.

11 The plaintiff, Mrs Loupos, was born in Greece in 1935 and came to Australia in 1959. She was married to Bill Loupos who died in 1995. As I have said, he is one of the named executors of the first will. Mrs Loupos and her husband and the deceased lived together when they first came to Australia in a house at Surry Hills. Later the deceased went to Queensland to work. He saved what he could and was able to purchase the Randwick properties. He later purchased a property at Rosebery and then the Kingsford property. He borrowed money from Mr Loupos for this. At some stage he purchased an ice cream truck and did well from that. According to Mrs Loupos he promised to leave Kingsford to her as he was unable to repay the loan she and her husband had made to him for the purchase of that property.

12 In early 1996 the deceased returned to Greece and after a while went to live on a small farm he owned out of Agiasos on Lesbos. He told Mrs Loupos he was going there as his doctor had told him to “relax his nerves”. In any event the deceased decided to stay in Lesbos and remained there until December 2003. For the final six weeks or perhaps two months of his time in Greece he lived with his brother Dimitrios and sister-in-law Spirathoula in their small apartment in Mytilini Lesbos. I will return to this. He returned to Australia on 26 December 2003 with the defendant who had, at the request of the deceased, gone to Lesbos to bring him back to Australia. Mrs Loupos did not see her brother until late 2005 and in fact did not see him between 1995 and 2005. She did however speak to him on the telephone if that was arranged through friends as she was unable to dial Greece herself. By 2005 the deceased was living on a farm near Goulburn owned by Peter Demirgelis, the defendant’s father. It is accepted that by the time of his death he was physically ill and suffering from quite severe dementia.

Deceased’s Time in Lesbos

13 By 2000, and probably earlier, the deceased went to live on his small olive farm. He built without any planning approval a structure which has been described as an animal shelter and he lived there on the upstairs floor with the animals beneath. To say the least, the conditions were rustic, basic and unhygienic. The deceased appears to have been involved in various prosecution type proceedings at the Mytilini court relating to his unauthorised structures but nothing turns on that. He engaged itinerant workers to help with his construction and for work on his farm. Mr George Dallas assisted him with some of this and appears to have assisted him in his communications with his relations in Australia because he had a telephone whereas the deceased did not. His home also seems to have been the address to which letters for the deceased were sent. Again little turns on that. The deceased was a diabetic which required him to take medication and it seems that he was not very diligent about that. It is the case of the defendant that the deceased was attacked by one of his goats in the second half of 2003 and as a result sustained at least four fractured ribs, making it extremely difficult for him to move. After that attack his brother Dimitrios and sister-in-law Spirithoula agreed that he should go live with them in their small flat in Mytilini. This was in spite of the fact that the deceased and Dimitrios had not had a good relationship for many years.

14 There was a great deal of time spent on determining whether or not a goat attack really took place in 2003 or whether it took place earlier. The evidence of witnesses for the plaintiff was originally that the goat attack took place in 2001, but subsequently they changed that to 2002. The relevance of this from the point of view of the plaintiff is that if the deceased was complaining about a goat having attacked him and caused some serious injuries including the breaking of four ribs in the second half of 2003, whereas it had really happened earlier than that and probably in 2002 or as they originally said in 2001, then this would be a relevant matter on the question of mental capacity. It would of course have been only one matter which might have helped in such a finding of lack of capacity, but nonetheless it took up a considerable amount of time during the hearing. The plaintiff brought into evidence a document which is said to be a Certificate of Records held by the Ministry of Health or the General Hospital of Mytilini, or an English translation of it, which stated that the deceased was examined at the outpatients clinic of the Mytilini hospital on 12 August 2002 and that the duty doctor who examined him wrote in the relevant case book “injury to (right) haemophorax and right abdominal region as a result from a butt received from a goat. Weakness in raising left arm.” No version in the Greek language of this certificate was put into evidence and it is contrary to a document from the same hospital which was produced in compliance with an order from the Mytilini court requiring its production. That document stated that the deceased was examined at the outpatients clinic of the hospital on 12 August 2002, when the attending doctor wrote in the appropriate book “ear ache right”; (b) that he was examined again at that hospital on the 17 November 2003 when the attending duty doctor wrote “fracture of ribs from 10 days ago shoulder injury right”; and (c) that he was examined at the outpatients clinic on the 10 November 2003 when the attending doctor wrote in the book “injury to half of the chest right into the right abdominal area as he was hit by a goat. Weakness in lifting the left.” It is, I think, perfectly clear that the latter document is the authentic document. Whether the former was issued by mistake or purposely, I am unable to say. Mr Dallas, one of the witnesses for the plaintiff, who is the brother of Spirithoula, in giving oral evidence by video stated at first that the goat attack took place in 2003, but in re-examination he somehow changed that to 2002. I do not accept that evidence either. There is a video record taken of the deceased just prior to his leaving Greece to return to Australia when he constantly refers to a recent goat attack. At a late stage an x-ray film dated 19 December 2003 and a report of Dr Christie, a specialist radiologist, was put into evidence. The report supports a finding of fractures occurring in September to November 2003 rather than August 2002. Dr Rosenfeld inspected the x-ray film in Court and cast some doubt on this, but the other evidence is stronger. I find the goat attack took place in late 2003. The result of this finding is that I find that the deceased was not incorrect in his statements about and timing of the goat attack which brought about his fractured ribs.

The 2nd Will

15 As I have said, the deceased made a will in Mytilini on 10 June 2003. Mr Gillingham had written a letter explaining the formal requirements for this. This was then translated into Greek with the last sentence altered. Raphael did speak to Mr Gillingham about the deceased making a new will, but he was not responsible for the alteration. There is no evidence that anyone other than the deceased was involved in giving instructions for the preparation of this will. Mr Ballianos the notary who prepared that will has since died. The original of that will has been admitted to probate in the court of first instance at Mytilini as a public will, the deceased having died. Two witnesses to the will who are both lawyers namely Mr Glezellis and Mr Vamvourellis gave evidence by video link. That will listed the real estate owned by the deceased in Lesbos which consisted of three separate houses in different locations and three olive groves at different locations. It also set out correctly the deceased’s properties in Australia. This will gave all those properties and the rest of the assets of the deceased to the defendant, Raphael. The two lawyers were by chance attending the office of the notary Mr Ballianos for the purpose of executing a contract regarding the sale and purchase of land under which the deceased was purchaser. Mr Vamvourellis was acting for one party, Mr Glezellis was acting for the other, and another lawyer from the office of Mr Glezellis, namely Mr Grigorakis, had driven Mr Glezellis over to the notary. After they had done their business relating to the contract Mr Ballianos asked them if they would be witnesses to the will and they agreed. Mr Glezellis said that although he had not seen the deceased since 1984, the deceased recognised him immediately. His evidence was that Mr Ballianos had asked the deceased questions about his life, his assets and his proposed beneficiaries, that the deceased was able to answer these in a logical manner and that he saw no difference in mental capacity at that stage from what he had observed in 1984. Mr Vamvourellis gave somewhat similar evidence. He said that the deceased detailed the assets he owned one by one, said that he wanted to leave them to the defendant and said “I love my nephew”. Mr Grigorakis also made an affidavit. He said the deceased told him he had a good teacher in Mr Glezellis who was a good criminal lawyer, that Mr Vamvourellis was good too but he did more property work. He said that the deceased had said the only beneficiary he wanted was his nephew, and that the deceased described each of his assets, first the Greek assets and then the Australian assets, and signed after the will was read out aloud to him by Mr Ballianos.

16 There is in evidence a sheet of paper which contains a handwritten list of the Greek and Australian assets which came from the file of Mr Ballianos. The evidence was that it was normal for there to be more than one interview when making a will. The handwriting of the addresses of the properties in the Sydney suburbs is in different handwriting from that which lists the Greek assets. It is not possible for me to determine whose handwriting it is for the Australian addresses. The contract signed on that day was for the purchase by the deceased from his sister Joanne Demirgelis of a particular property. Mrs Irene Kalloniati acted as attorney for Mrs Demirgelis on this transaction. No suggestion is made that this transaction was invalid. While evidence by videolink is not as satisfactory as having the witness present in court, transmission was clear and I thought the evidence of all the three Greek lawyers was quite convincing.

The 3rd will

17 During the time the deceased was in his brother’s house there was some conversation with his brother Dimitrios, who suggested that he should make sure that property which he had in Lesbos and which he had inherited through his parents went to members of the family who still lived on Lesbos. I find that this conversation took place. According to Dimitrios, the deceased thought that a notary would call at the house to make a new will for him but he told the deceased that he would have to make the arrangements and go to the notary. The evidence does not make it clear how it happened but there is no doubt that the deceased made a will on the 4 December 2003 in the office of Maria Panayiotou, a public notary, before two witness who have not given evidence. This will deals only with the deceased’s property on Lesbos. One matter of some significance is that the deceased left to the defendant Raphael his house at Kamboudi, which was the property which he had purchased from Raphael’s mother Joanne in June 2003. Little attention was given to this December document. It purports to revoke all former wills. Nobody is seeking to propound it presumably for the reasons I have stated. Perhaps its only relevance is that those persons or those whose children would benefit under it and who had discussed the making of the will with the deceased had no hesitation in telling him it was a good idea and there was no suggestion of lack of capacity. The same position relates to Mr Dallas, who was a beneficiary under the December will, whose evidence was that the deceased had told him he would leave property to him. He did not suggest that at the time the deceased would not have been capable of doing so.

Further Facts

18 After the goat butting incident, the deceased was of course extremely weak. He had great difficult in walking with his fractured ribs. It was for that reason that his brother Dimitrios, with whom he was not on good terms, offered accommodation in his small flat in Mytilini to the deceased. He was there for about six weeks. According to Dimitrios and his wife the deceased was vague, kept talking about things that had happened in earlier life, said that he could not remember things, did not remember to urinate in the toilet and had a habit of urinating on a neighbour’s door. They said he was very dirty on arrival and that looking after him was very difficult. They said that as they each went out to work they were concerned that if they gave the deceased a key, he would leave the premises and not be able to get in again as he would forget where he was.

19 At some stage while the deceased was staying at his brother Dimitrios’ house he rang Raphael in Sydney, told him that he was ill, had been head butted by a goat and asked him to come to Lesbos to take him back to Sydney to live. His nephew agreed to do so. He purchased tickets and flew to Athens and then to Lesbos, arriving there on 11 December 2003. He had ascertained that the deceased’s passport had expired and knew that he would have to take the deceased to Athens to arrange the renewal. What happened when he arrived in Lesbos may not necessarily be to the credit of Raphael, but in the long run nothing turns on it so far as capacity is concerned. Raphael had purchased air tickets so that he and his uncle could go to Athens to sort out the passport problems and then return to Mytilini for a few days and then ultimately fly back to Australia. Raphael says that the deceased agreed with these plans and that is what he wanted. On the version of Dimitrios and his wife, the deceased was taken from the house without their knowledge and taken to the home of an aunt of Raphael in Mytilini who did not seem to be known to the other family members. There was an altercation at the Mytilini airport, Dimitrios having gone there when he was concerned that his brother had left his house without his knowledge and he met Raphael there. He, Dimitrios, grabbed Raphael’s passport, hit him and knocked him to the ground. There was some police interference, Raphael and the deceased boarded the plane and went to Athens, where they stayed with relatives of Raphael’s wife.

20 At this stage it became obvious to Raphael that his uncle was very ill and he took him to the hospital in Athens. He was admitted there under Dr Anousis who ascertained that his trouble arose from his low blood sugar levels relating to uncontrolled diabetes. He was in hospital for a week, although he was allowed out to go to attend to arrangements for a new passport. The doctor ultimately told Raphael that it was safe for his uncle to fly back to Australia as long as he was looked after and took his medicines, and according to hospital notes the deceased was released to the care of his nephew. They flew back to Australia. Raphael said that this is what the deceased wished and I accept that as correct. He would not necessarily have wished the departure to take place as it did and he may have wished to have returned to Lesbos to collect some more belongings. However the time spent in hospital in Athens would have made it difficult if not impossible as there would have to be a change of travel plans.

Return to Australia

21 The deceased and Raphael arrived back in Australia on 26 December 2003. They stayed with Raphael’s parents. Raphael said that after a few days the deceased said, “I want to rewrite my will and I want the phone number of my solicitor David Gillingham. And also give me a number of a good Greek solicitor.” Raphael gave him the number of Mr Gillingham and also the number of Constantine Vertzayas and Dion Vertzayas, solicitors who were of Greek origin, and father and son respectively. Raphael did not know them but they were recommended by his accountant. Raphael did not arrange an appointment which took place on 4 January. According to the evidence of Raphael’s father, Peter, the deceased telephoned himself to make the appointment.

The 4th Will

22 Detailed evidence was given by Mr Dion Vertzayas, who took instructions for the will. He said that he always took a file note of statements about assets and possible beneficiaries, that he did so on this occasion, but that it could not be found. I have no reason to doubt that evidence because apparently the probate file disappeared as well and Mr Dion Vertzayas has set up a practice separate from his father since the will was made. Dion Vertzayas said that the deceased was able to give details of his three properties then at Kingsford, Randwick and Rosebery; that they were his alone with no mortgages; that he wanted to give everything to Raphael and that Raphael was to be the executor. The deceased said that his siblings only wanted money. Mr Constantive Vertzayas was an attesting witness. He spoke to the deceased while the will was being prepared, they discussed Greek politics, parties and the Prime Minister. He thought that the deceased could discuss these matters quite sensibly. There was a lot of cross-examination of Dion directed to the address on the will of 8 See Street and the occupation being stated as pensioner. I do not think that anything turns on the address as the deceased did use it for his correspondence and had always done so. Why the description of ‘pensioner’ was used is not really clear. Mr Dion Vertzayas said that he read the will to the deceased in Greek and stopped to explain it and I accept that. Generally speaking I thought that the evidence of Mr Constantine Vertzayas was more reliable than that of Mr Dion Vertzayas as the latter appeared to be going to great lengths to establish his understanding of the requirements of will making but nevertheless so far as his evidence went I accept it.

23 I should say here that I have no doubt that the deceased in June 2003 and in January 2004 knew that he was making a will and what a will was. I am also satisfied that he knew the extent of his assets and that he had full knowledge of his properties in Lesbos and in Australia. The plaintiff accepts this to be the position in June 2003. In addition it is not really disputed that the deceased understood who were the persons who might have some claim on his bounty and perhaps those who would be hurt if left out. In some ways in the case of an unmarried bachelor that is not as significant as the case of a married man or a person with children or with parents surviving. On the evidence there is no doubt that Raphael did have a claim; he was close to his uncle when he was young and much closer to his uncle than were the deceased’s siblings; he spent a lot of time in See Street during his youth; he had acted as attorney for his uncle when Ms Gibson was no longer able to do so; he had gone to Greece to bring his uncle back to Australia in accordance with the request of the deceased. The evidence shows that the deceased was well aware of his siblings; the real question in this matter is whether or not the deceased had capacity to discriminate between those who had some claim upon him. It is important when considering this matter to understand that dispositions by will may be unfair and may appear to be unjustified or unreasonable. That is largely irrelevant as this deceased could have given his whole estate to charity had he wished to do so. In such a case no doubt the defendant and his siblings would have thought the will to be unfair, but that would not make the disposition invalid. The question is whether proper thought processes can be applied to decision making.

The deceased lived with the defendant’s parents for some time after his return. The defendant said that he had a key to the home and could come and go as he chose, which he did. He continued to be angry about his brother Dimitrios and for a time said that he wanted to go back to Greece to collect his belongings, including a gun, but the defendant said that he would not go with him. The defendant said that after Dr Kumaradeva prescribed Serenace the deceased settled down and stopped talking about wanting to return to Lesbos.

In late March or early April 2004 the deceased and Mr Peter Demirgelis moved to a farm in Goulburn owned it seems by Peter and perhaps others. In January 2005 he came under the care of Dr Kyaw, who was a general practitioner in Goulburn. On his first visit to Dr Kyaw it was clear that the deceased could not look after himself; he had poor personal hygiene; he was wearing a nappy because of poor bowel and bladder control and he needed assistance with walking and eating. Dr Kyaw said that his presentation was passive and that he generally sat without saying anything, that his diabetes control was almost satisfactory and that his psychotic condition had stabilised with the use Halopendol (Serenace). He saw him on a number of occasions after that and it seems that his health was generally deteriorating. The final paragraph of the letter from this doctor is as follows:
Thus it is fair to say that he has (sic) chronic psychotic illness with slightly impaired memory, concentration judgment during the period I had been looking after him. But how far it has been going on prior to this is hard to predict with reasonable accuracy.
I accept that as a reasonable statement and I accept that from at least early 2005 it is highly unlikely that the deceased would have had testamentary capacity.

Additional lay evidence as to capacity

For the plaintiff

24 The evidence of Dimitrios Ganellis and his wife Spirathoula was to the following effect: that the deceased and Dimitrios had fallen out in 1984 as a result of legal proceedings which ultimately resulted in Dimitrios’ share in a family farm being transferred to the deceased. Nevertheless, Dimitrios said that he and the deceased had made up and he abandoned some court proceedings against the deceased about damage to his car. Dimitrios said that the deceased did not understand the value of money; that he gave his bank book to a bank teller to look after; that he rented a warehouse in Agiasos in which he stored timber when he had abandoned houses where it could be stored without charge; that the deceased had attacked his car with an axe and was prosecuted for this; that the deceased said in 2003 that he owned 900 pigs when he had about 10; and that that the deceased was not caring for himself at the farm. Dimitrios said that the deceased after an admission to hospital had asked if he could live with him and his wife and they had agreed to this. He said that the deceased was filthy when he arrived, that conversation with him was difficult and that any logical conversation required patience. He said that the deceased told him that he had to return to Australia for a visit as otherwise the government would take his properties.

25 Spirathoula said that in 2000 the deceased told her he had heard that her daughter Aphrodite was married to an elderly wealthy man, which was quite untrue as she was still at school; that he had returned to Greece from Australia because the mafia were after him as he had killed a policeman; that he had spent 30,000 drachma on farm animals which he released to wander over the mountains; and that when he came to live in her apartment he thought that people were watching him. She said that he did not know how to keep himself clean, did not understand money, that he forgot to take his tablets and was often confused. She said that he liked to talk about the past and his time as a canecutter and the like. She knew of the conversation about the December will which was said to have taken place at The Wells in September. She said that her husband had refused to allow the notary to come to his house.

26 Eleni Skoutelli is a sibling of the deceased born in 1933. Her affidavit included much material about the behaviour of the deceased in early years which I think is of little relevance. The deceased had lived with her for some years after he returned to Lesbos in 1996. She visited the deceased regularly while he was on his farm during the last 3 years on Lesbos and she took meals for him. She said that on occasions he did not recognise her; that the deceased drank contaminated water, wore urine-stained clothes and washed in the open in front of people passing by. Her evidence of the goat attack was that it was in 2001. She said that the last time she saw the deceased was on his farm shortly before he moved in with Dimitrios, with whom she was not on good terms. She said that the deceased did not recognise her on that occasion and was obviously ill. She said however that the deceased had poor eyesight and seemed to agree that this would have borne upon his recognition.

27 George Dallas is the brother of Spirathoula. He is a farmer living in Mythou, a small village about 17 kilometres from Mytilini. He became friendly with the deceased when the latter moved into what he, Dallas, described as an animal shelter in 2000. He assisted the deceased with everyday life, with his mail and with his phone calls. He took him to buy a bed and bedclothes, to wash in hot springs and to buy clothes. He said that on one occasion he asked the deceased where his cow was and the deceased pointed to the ground floor. The cow there was dead and he said had been dead for some days but the deceased, who knew it was there, did not seem to know it was dead or if he did he did not care about this. His evidence was that the deceased did not care if his animals wandered, that he wore tattered clothes, that he left food to rot and that there was rubbish everywhere. I have already set out his evidence about the goat attack which commenced with his saying it was in 2001. There is no doubt they could converse with the deceased. Most of his evidence goes to strange behaviour but may indicate some cognitive decline.

28 The plaintiff herself could give no relevant evidence about the mental state of the deceased because, as I said, she did not see him between 1995 and 2005.

29 None of these witnesses could be said to be disinterested. The family has been beset by feuds for a long period of time, even if some have to some extent come together for the purposes of this action. There is no doubt some of this evidence points to strange and rather uncontrolled behaviour although some is explained by the defendant and some may be explained by the deceased’s blood sugar levels at the time. This applies particularly to the six weeks or so when he was living with Dimitrios and Spirathoula.

For the defendant

30 The defendant read in evidence affidavits of Margaret Gibson, Athanasia Petrellis, Dimitrios Galanos, Andrew Georgakopoulos, Panagiotis Petrellis, Andreas Tzoumanekas and Valentina Oustabasidi, Fabian Campagnolo, Irene Vetsikas and Joanne Demirgelis, the sister of the deceased who died after him, she being the mother of the defendant. None of these witnesses were cross-examined. Generally speaking they were related to or were friends of the defendant and therefore not entirely independent. As they were not cross-examined, unless their evidence on its face appears to be unacceptable it should be accepted.

31 Ms Gibson’s evidence was of her close relationship with the deceased and the close relationship between the deceased and the defendant. She also gave evidence of a visit to her in Queensland by the deceased and the defendant in January 2004, the deceased apparently having asked to see her. She said that he appeared well, knew her immediately and spoke of his health and her health and other matters.

32 Mrs Petrellis visited the deceased at Goulburn at Easter 2004 with her husband, the defendant and the defendant’s wife. She spoke with the deceased in Greek. He spoke about his earlier life, he criticised his brother Dimitrios for locking him up in his apartment in Mytilini and he said that he had left his whole estate to the defendant. She said that the defendant, having heard that, said “Really Uncle; don’t you wish to leave anything to anyone else” and that the deceased said “No I don’t wish to leave anything to anyone else I want to leave everything to you.”

33 Mr Dimitrios Galanos was a member of the New South Wales police force for 20 years and a friend of the defendant. He said that in 1997 (which may have been a mistake) the deceased asked him if he could obtain a shooters licence and he said he could not, having regard to his past history. He saw the deceased on his return in 2004. The deceased asked him if he was still in the police force and if he still lived at Rosebery, which he did. The deceased asked if he could apply for a shooters licence and he told him he would not succeed. He, Mr Galanos, visited the farm in April 2004 and thought the deceased healthy and well. Thirteen months later on a visit he said that the deceased had lost weight and spent most of his time in his room.

34 Mr Georgakopoulos met the deceased in 1995. In January 2004 the defendant and the deceased stayed with him in Brisbane. The deceased recognised him and reminded him of his iconography, spoke of his old girlfriend, meaning Margaret in Townsville, and his visit to her and remarked that she would not be able to leave the nursing home. Mr Petrellis was another one to visit the Goulburn property in Easter 2004, he and the deceased conversed together, the deceased spoke about his early life, his cane cutting, logging, the ice cream van and later the goat attack. He visited again in June 2004. The deceased on that occasion spoke of his houses in Agiasos, his farm and his warehouse. The deceased said on that occasion that he had left everything to Raphael whom he loved like a son.

35 Mr Tzoumanekas is a cousin of the defendant’s wife Voula. He lives in Athens and the defendant and the deceased stayed with him when they went there from Lesbos to make arrangements for the passport. He said that the deceased looked pale and tired when he arrived on 15 December 2003, but brightened up after a bath and putting on new clothes. They had dinner with his parents across the road when the defendant commenced a video recording of his visit. The recording was continued the next day. The deceased became ill during this visit and entered hospital in Athens. Valentina Oustabasidi is the wife of Mr Tzoumanekas. She talked with the deceased about his past life on the cane fields, his animals, the property at Kingsford and his problems with his brother Dimitrios.

36 The same sort of evidence was given by Mr Campagnolo and by Mr Peter Demirgelis, the father of the plaintiff. He, Peter, went with the deceased to make the 4th will but was not present when instructions were given. But afterwards the deceased said “I have just made my nephew a rich man but I have the right to change it at any time.” It was he who took the deceased to live on his farm in Goulburn saying that he, the deceased, was happy there. The defendant’s sister Irene deposed to conversations with the deceased about her children, her house and his clothes. Her mother Joanne (also the mother of the defendant), who was then alive, asked the deceased if he was giving anything to Irene and the deceased said he was giving everything to Raphael.

37 Raphael accepted the deceased was making strange statements and requests particularly about returning to Greece in January 2004 and he accepted the suggestion he would have liked to obtain a carer’s pension. Much of the cross examination of Raphael appeared to be directed to credit and was unconnected to the issue of capacity.

Video

38 The defendant made a video recording of the deceased with other people while he was in Athens on 15 and 16 December and later on the farm near Goulburn on 11 August 2004. It is important to remember that at the time the recordings in Athens were taken the defendant and the deceased were staying with relatives of the defendant’s wife and the videos were, I think, made as some record of their visit to take back to Australia. In other words there was nothing untoward or suspicious about the videos being made. A translation of the part of the conversation taking place on the video is in evidence, the conversation of course being in Greek, it being quite impossible to identify a lot of the conversation.

39 The video of 16 December 2003 commences so far as the transcription is concerned with criticism of Dimitrios and then proceeds to discussions of the new clothes in which the deceased had been dressed, his work as an ice cream vendor, the goat attack, the deceased being taken to the doctor by Dallas after the attack and stories about cane cutting and other events of the past. The video of 16 December 2003 again contains criticism of Dimitrios, discussions about the family, snakes and frogs. Perhaps more importantly it includes the following response of the deceased to a statement of Andrew Tzoumanekas “if you good God looks after you as well” to which the deceased response was “oh yes of course. When I go past the churches I always light the oil lamp. When I used to come down from the farm to go to Dallas’ house there was a little church St Blasio’s and I would light the oil lamp first and go to Dallas the church was outside his house. “ So far as geography was concerned this was correct. The church was a little chapel.

40 Without any assistance from medical practitioners, the conclusion that I would have come to on watching the video and listening to the Greek conversation taking place, but not understanding the words, was that this was a simple family occasion, amongst relatively simple people, remembering that the deceased was quite uneducated and had never been to school; that those present, being Mr and Mrs Tzoumanekas and Andreas Tzoumanekas, their son, the deceased and the defendant, were all taking part in the conversation around the dining table apparently drinking tea. The conversation was about very ordinary matters and about past recollections, but I would have not considered it supported some claim of testamentary incapacity at the date it was taken.

41 The impression I gained from another recording taken at the farm at Mummel on 11 August 2004 was somewhat different. The deceased looked different in it and did not appear to be so aware of what was going on around him. The translation of the conversation, or part of it, does not seem to be quite so innocent so far as the defendant is concerned as the following appears:

Raphael Dermirgelis: I’m going to ask you a question. To whom have you written your property to?
John Gannelos: Don’t you know who I’ve written it to?
Raphael Demirgelis: Say it here so we know.
John Gannelos: I have written it to you, everything to you.
Raphael Demirgelis: You want to give everything to me?
John Gannelos: But I’ve written everything to you.
Raphael Demirgelis: You don’t want to give anything to anyone else?
John Gannelos: No. I don’t want to give anything to anyone else. What, am I going to break the will and give it to someone else?
Raphael Demirgelis: You don’t want to?
John Gannelos: No I don’t.
Raphael Demirgelis: Don’t you want to give anything to your sister Maria?
John Gannelos: No. I’m not on good terms with Maria, I lived there close to them and they took my clothes and sent them to that poofter, (his brother James). I didn’t have any clothes and I found some clothes here. Do you know how many clothes I had. I had lots of clothes. What am I going to do with those people? Keep them away. She said she wanted to come and see me. I’m going to say to her pack your things and go away from me you ludicrous thing.

Raphael Demirgelis: All right uncle.
John Gannelos: What?
Raphael Demirgelis: Okay uncle it’s not good to hate.
John Gannelos: Why isn’t it good. I have left everything to you.
Raphael Demirgelis: Okay uncle.
John Gannelos: Now when he does the…
Raphael Demirgelis: The roof?
John Gannelos: Yes the roof and the door, you will take the keys and you go when you go. I am giving it all to you. Who I am going to give it to? Remember years ago, I was there and when you came and how I used to look after you, remember?
Raphael Demirgelis: Every day we used to keep each other company.
John Gannelos: Every day, yes. Gannelis (his brother James) is an evil man. There is nothing good about him. I was lucky I left (Greece) or otherwise he would have done me a lot of harm. They had me locked up inside and I said to them give me a key so I can go outside to shop, to see some friends, and they would not give me a key. I wanted to go to the toilet and their son would come home from work and stay in the toilet for so long that I would end up doing it on me. I have been through hell. Don’t talk about it.
Raphael Demirgelis: You are lucky you left there uncle.
John Gannelos: Lucky? Extremely lucky! Don’t mention it, I came here and I’m good. That’s why whatever I own I’m giving it to you. You do whatever you wish to do with it. Don’t you like what I’m saying?
Raphael Demirgelis: Whatever you want uncle. That’s what will happen.
John Gannelos: But I have written it all to you.
Raphael Demirgelis: That’s your wish?
John Gannelos: Yes I’ve written it all to you.

42 In cross examination the defendant was asked why he took this video. The answer was:

I took it because I wanted my uncle to record his wishes on tape because I thought what he did was quite strong in leaving everything to me and if anyone was to ever say anything, I would have him on tape and they can hear it from him. That’s why.

As I have said, the impression that I took from this video was that the deceased had deteriorated since the video taken in December 2003, but that impression must be taken together with the evidence of the witnesses who visited the deceased in April that year. The evidence is clear that by the middle of the following year the deceased was a relatively advanced stage of dementia; whether it was vascular Alzheimer’s or Lewy body dementia does not matter.

Medical evidence

43 Dr Anousis was the doctor who was in charge of internal medicine at the central clinic in Athens and he was the doctor who took charge of the deceased’s care during his time in hospital from 19 to 26 December 2003. Because he himself was ill in hospital, it was not possible to arrange for Dr Anousis to be cross-examined, which bears upon the weight to be given to his affidavit. His treatment of the deceased was to bring his diabetes under control. The deceased had unusually and dangerously high blood sugar levels when he was admitted to hospital, but when he was released the doctor said that he had improved considerably and would be able to return to Australia. He said that he was discharged on 26 December 2003 “into the charge of his nephew the defendant”. He was asked to view the video recordings and after that he said “my recollection of the deceased has been confirmed by the Athens video recording in that I recall that the deceased was of sound memory when he was under my care. The Athens video recordings also confirm my recollection that the deceased was of sound mind whilst under my care in December 2003. I also recall that the deceased had an accurate understanding of the procedures that were being undertaken in relation to his health and the reasons for his admission and the prescription of medication.” The doctor’s affidavit of 26 June 2007 continues in paragraph 18 and 19 as follows:

18. I specifically recall having a conversation with the Deceased where words to the following effect were spoken just prior to his being discharged from the hospital:-
Deceased: “Doctor, is there any danger for me going on this long plane trip back to Australia?”
Me: “No. You can go. Just be sure to take your medication.”

At all times during my interaction with the Deceased, the responses of the Deceased to my questions, his general alertness, and the nature of my conversations with the Deceased indicated to me that the mental functioning of the Deceased was within normal limits.
19. I confirm that at the time of his discharge from the Central Clinic of Athens on the 26th of December, the Deceased had sufficient mental capacity to understand the nature of events that surrounded him, the nature of his actions and their consequences.

44 The defendant took the deceased to Dr Kumaradeva, a general practitioner at Redfern, the first occasion being 29 December 2003 shortly after his arrival back in Australia. The defendant told the doctor about the diabetic problems and Dr Kumaradeva was given a list of the drugs being taken by the deceased. He said that he looked ill and tired on that occasion. He saw him again on 5 January 2004. This time the deceased’s diabetes or sugar levels were so out of proper range that he referred him to a diabetes specialist, although the deceased did not consult that specialist. He saw him again on 7 January and checked his sugar levels, blood pressure and heart rate, which were normal. There was then some confusion in the doctors letter as to the date of the next visit, but in fact the next time he saw the deceased was on 23 February 2004. The defendant Raphael had called to see the doctor on 5 February 2004 stating that his uncle was restless and confused. The doctor without seeing the deceased prescribed Serenace to calm him down. On 23 February 2004 the deceased came with the defendant who told the doctor that the deceased was still restless and his conversation was not sensible in that he was saying he wanted to go to Greece and to get a gun. Dr Kumaradeva referred the deceased to the Community Mental Health Centre at Bondi Junction for an assessment of his mental state. He saw the deceased again on 24 March and doubled the dose of Serenace. He saw him for the last time on 14 October 2004. The deceased may have told him on that occasion or perhaps the previous visit that he was going to live on the farm near Goulburn. He gave him new scripts; he said his diabetes was again out of control. Dr Kumaradeva said during the earlier visits the mental state of the deceased was such that he was “slow and quiet, he spoke only when asked questions”. He referred him to the Community Mental Health Centre as he could make no definite diagnosis. He was unable to say whether or not the deceased had delusions. He received a report from Dr Hay suggesting arrangements should be made for a full investigation but did not realise that it was he who was expected to discuss this with the deceased and arrange the follow-up.

45 Dr Hay saw the deceased as a result of the reference from Dr Kumaradeva. She wrote a letter to him on 19 March 2004 after she had seen the deceased, which unfortunately Dr Kumaradeva just filed away without taking any further action on it. Dr Hay felt the deceased was suffering from quite severe cognitive problems in that his orientation was poor as was his short term memory and he scored only 13/30 on a mini-mental state examination “which indicates severe cognitive impairment”. She thought that he was suffering from a significant dementing illness, that he should receive a full dementia screen and referral to appropriate agencies for treatment, support and follow-up. Interpreting during this examination was done for the deceased by Raphael. The deceased actually fell asleep during part of the interview. The medical opinions, apart from that of Dr Kumaradeva, support the view that Serenace causes sleepiness. There is no doubt that Dr Hay considered that the deceased was in cognitive decline and she considered that it was essential that he get further treatment. Her evidence however in itself does not satisfy me that at the date the deceased made the 4th will he lacked testamentary capacity and her evidence was in no way directed to the 2nd will in 2003. Dr Hay had in fact little recall of the deceased.

46 Three other medical practitioners gave evidence in the case: Dr Rosenfeld an experienced specialist geriatrician for the plaintiff; Professor Watson a specialist neurologist; and Dr Kokkinos a specialist neurologist for the defendant. None of these doctors had seen the deceased, their evidence being based on the accounts of other witnesses and certain hospital records, but in this case there was a difference because they had all seen the video and given attention to it. Dr Rosenfeld considered that at the time he was making the 4th will the deceased was suffering from a dementing illness likely to be vascular dementia and he considered that the deceased was likely to have some frontal lobe disease. He naturally placed considerable significance on the deceased’s wish to drive a car to Greece to get a gun and other comments said to have been made to Dr Kumaradeva. He thought that the video provided additional evidence of some sort of dementia, placing some emphasis on an incident where the deceased stood up and appeared to reach for Mrs Tzoumanekas’ right shoulder, the fact that the deceased wiped his mouth with an open hand after taking a drink of water even though he was looking directly at Mrs Tzoumanekas, and various other matters including talk of lighting candles in church and expressions of strong negative views about Dimitrios which he said gave some evidence of tangential thinking and executive dysfunction.

47 There are a number of matters Dr Rosenfeld thought were of some significance in building up a picture which he said in the long run pointed to lack of testamentary capacity. I think it unnecessary to go into all of these, but some of them were the persistent talk about the goat attack in 2001; the fact that the deceased had said he was going to Greece to relax his nerves, which he thought was an earlier manifestation of some dysfunction; the fact that he had engaged in eccentric behaviour while living at Kingsford; the fact that there was a lot of perseveration in his speech; and the matters on the video to which I have referred. He thought the fact that the deceased was capable of relating stories about the cane fields and his experiences with a crocodile might have been ‘old memory’ which did not assist the defendant on the capacity question. He considered the fact the deceased was discharged from hospital in Athens to the care of his nephew significant. Nevertheless he did agree in cross-examination that it was of some significance that the deceased could remember in December, when making the 3rd will, that he had purchased a property from his sister in June and was giving that back to her son Raphael. He also considered that it was of some bearing on the matter that the deceased had been talking about the general terms of his 3rd will in September or October and that this had not slipped his mind as he made a will along those general lines when he made the 3rd will. He also accepted that the evidence of Mr Galanos, the former policeman, about the application for a shooters licence, and the deceased’s recognition of Mr Georgakopoulos and his iconography were matters of some significance.

48 Dr Kokkinos is a specialist neurologist who has now been ordained as a priest in the Greek orthodox church. Dr Kokkinos provided two reports dated 27 August 2007 and 25 September 2008. His first report appears to have been given merely on the basis of the DVD. In that report he stated:-

Though I have listened intently to the conversation, I do need to conclude that I feel it is not possible for me to exclude mild dementia on the 15th and 16th December 2003. The conversation was low level, at no point were any high level intellectual issues discussed, so I really cannot comment on whether Mr Gannelos had mild dementia in December 2003. I do however feel that I can state that anyone listening to the December 2003 conversation would not have become suspicious that this man had any dementia. He comes across as a typical elderly Greek man. During the December 2003 conversation nothing pathological was evident. He demonstrates wit, a sense of humour, he could interact appropriately with the people around him, he could be engaged, demonstrated no language impairment, at no point did I note that he repeated himself, he demonstrated spontaneity. In general he was socially appropriate, not disinhibited, and really did not demonstrate any executive dysfunction that would suggest frontal lobe impairment, he demonstrate no memory, cognitive, or personality issues, and overall really there was no evidence in December 2003 recording that I witnessed that this man had dementia. I repeat however that thorough testing at the time would have been required to disclose mild dementia, but of course such testing did not occur.

49 Dr Kokkinos went on to say that he considered that the deceased was different at the time of the 2004 video recording and he wondered whether between the two he had developed some frontal lobe dysfunction. Dr Rosenfeld would say that he had that dysfunction earlier. Nevertheless he said that it was perfectly clear that in 2004 the deceased knew that he had made a will, he knew what was in it and he knew what he wanted to do with his estate. The report goes on to say:-

Between the 2003 and 2004 recordings there are some changes which are fairly obvious. Firstly of course he looks quite different, in August 2004 he had quite a long beard and long hair, and he looks somewhat untidy. He seemed generally quieter, more passive and to a degree demonstrated less spontaneity. All this leads me to wonder if between the two recordings he developed some frontal lobe dysfunction. Importantly however during the August 2004 recording he was asked about the will, and he convinced me that he clearly knew and understood that he had stated in his will that his estate was to go to Raphael, his nephew. During the recording Mr Gannelos mentions this several times he really leaves no doubt that he wanted his estate to go to Raphael. When he was asked whether he wanted some to go to his siblings, he made it obvious that he did not want this because they had upset him.

50 In his second report of 25 September 2008 Dr Kokkinos commented on Dr Rosenfeld’s supplementary report made after viewing the video. So far as the getting up and touching Mrs Tzoumanekas was concerned he pointed out that Mediterranean people behave differently; he accepted that the touching might have been a little inappropriate, but that nothing could really be read into it from a brain pathology point of view. In the same way he thought that the wiping of the face with the hand of no significance. I should say that in my view that must clearly be the position. His past life, the fact that the deceased was uneducated and lived a kind of peasant life would not make it reasonable to conclude that anything could be drawn from that behaviour. Dr Kokkinos said that comments about lighting candles on going past churches were normal things for a person of Greek origin to say. His general comments on the derogatory comments about Dimitrios were that unfortunately families fight from time to time and from time to time have negative views about other members of the family. His general view was that so far as the conversations on the video were concerned it was impossible to come to any certain conclusion without formal cognitive test. However he said “it is fairly clear to me that in December 2003 Mr Gannelis did not have severe dementia or severe frontal lobe dysfunction, what I see is consistent with him having virtually no organic impairment, or having mild or mild to moderate impairment.”

51 It is probably appropriate to point out that Dr Kokkinos had, I think, never appeared in court before and was not putting himself up as some expert in determining mental capacity questions on the Banks v Goodfellow tests. His evidence in cross-examination I considered to be quite convincing. He did not think the fact that the deceased was expressing derogatory comments about his brother when he was in Athens was particularly strange even though he had been cared for by his brother for at least six weeks up till that time; he did not think this indicated a neurological problem and his view was reinforced when in re-examination he was asked to consider this matter in relation to events at the Mytilini airport and the conversation which took place between Raphael, the deceased and Dimitrios on that occasion.

52 Dr Watson is a highly qualified neurologist. He gave two reports, the first before all the evidence which was subsequently admitted was available. He had the reports of Dr Kokkinos and of Dr Rosenfeld. In the second report he said that he was very struck with the change in the deceased from the video recordings taken in December 2003 and that in August 2004. he thought that the changes were best explained by the medication of Serenace which was used to treat psychosis and behavioural disturbance, but nevertheless thought that the underlying diagnosis was more likely to be Lewy Body Disease, which was a more rapidly progressing dementia than other types of dementia. There is no doubt, and it is accepted, that at the date of his death the deceased was suffering from relatively serious dementia and would not have had testamentary capacity at that time. Dr Watson considered that the deceased had suffered from a dementing illness leading up to his death but had sufficient cognitive capacity to make the 2nd and 4th wills.

53 Although this is a revocation suit the onus is on the defendant to establish the validity of the will admitted to probate in common form. To avoid any doubt there is no claim based on delusions or undue influence. The pleadings, evidence and submissions were directed to what are usually called the first, second and third requirements for testamentary capacity set out in Banks v Goodfellow (1870) LR 5 QB 549 at 565.

54 In a matter such as this it is important when considering the opposing medical opinions to have close regard to the evidence of lay witnesses, to a large extent unchallenged, and the evidence of medical practitioners who examined the deceased, and to consider the specialist opinions by those who had never seen the deceased bearing in mind the evidence of those other witnesses. When this is done I have come to the conclusion that the deceased had testamentary capacity at the time when he made the 4th will. I have reached this conclusion having regard to the unchallenged evidence of a large number of witnesses for the defendant, particularly those witnesses who gave evidence of the memory of the deceased after not having seen him for a long period of time; my conclusions about the timing of the goat attack, although it is of course possible there might have been an earlier attack; and a general view of the evidence on the DVD recording.

55 The strongest medical evidence from the plaintiff’s point of view was that of Dr Hay but it is fair to say that she had little recollection of her interview with the deceased. Cognitive failure does not of itself mean that there is no capacity to make a will. It is the extent of that failure which bears upon this. I prefer the evidence of Dr Watson to that of Dr Rosenfeld. My concern is that Dr Rosenfeld placed too much emphasis on events or pieces of evidence which did not necessarily point to incapacity. It is not disputed that at the time of the 4th will the deceased knew he was making a will. The overwhelming evidence is that he knew the nature and extent of his assets. I accept he discussed at least his Australian properties with the solicitors and he knew of his foreign assets at the time of the 3rd will. Dr Rosenfeld thought this unlikely but there is nothing to support that. He also thought the deceased was not able to consider and discriminate between those who had a claim on him. As I said on occasions during the hearing, no-one apart from Raphael had a strong claim. I give weight to the evidence of Dr Kokkinos here. In any event, as far as his brother Dimitrios is concerned it must be remembered that they had fallen into violent dispute and although Dimitrios agreed to take him into his home when he was seriously ill they fell into violent dispute again at the time of the parting at Mytilini airport. So far as the plaintiff was concerned, she may have remained in contact with the deceased, but they had not seen each other for 10 years and there had been some dispute at one stage between the plaintiff’s husband and the deceased. So far as the other members of the family were concerned, none of them had any particular claim on the bounty of the deceased and there can be no doubt that the defendant was the family member who might be thought to have the greatest claim. He had acted as attorney for the deceased, he had gone to Lesbos at his uncle’s request to bring him back to Australia, he had been a close companion of his uncle during his youth and within limits he had looked after his uncle when he returned to Australia. The deceased quite clearly knew that he was giving all his estate to the defendant, that he wished to do so and that he had no wish or intention of benefiting anyone else. I consider that the last will should be upheld.

56 If I was wrong in this I would have been even more convinced about the 2nd will. The deceased was in better health at the time, he made the arrangements himself, he was dealing with a purchase from his sister at the same time, and the evidence of the Greek lawyers was convincing. Very little attention was given to this will although the evidence of the Lesbos witnesses was of continuing conduct and therefore at least potentially relevant to capacity in relation to all of the later wills. Dr Rosenfeld expressed the view that in June 2003 the deceased suffered from a progressive dementing illness with cognitive impairment and impaired executive dysfunction which would not be apparent to untrained observer. He accepted that at the time of the 2nd will the deceased knew he was making a will and knew the extent of his assets. He thought the deceased would not have understood who might have a claim on his estate or been able to consider the strength of claims. I prefer the evidence of the Greek lawyers which suggests that the deceased had full capacity at this time. Their evidence is supported by the fact the deceased sought advice from his solicitors as to the requirements for a will and signed it at the same time as he was entering into another unchallenged legal agreement. Thus, even if I had found that the deceased lacked capacity at the time of the 4th will, I would have concluded that he had capacity in June 2003 when the 2nd will was made. This is the will propounded in the defendant’s cross claim, and also appoints Raphael as the sole beneficiary.

57 This has been a sad, difficult and I am afraid very expensive case. However the order I will make is that the Statement of Claim be dismissed. For some reason the cross claim did not seek a grant of the 4th will in solemn form but merely made a claim of a grant for the 2nd will if the 4th will was found to be invalid. It follows that the cross claim should be dismissed, but so far as costs are concerned a general order for costs should be made. There was evidence sufficient for a grant in solemn form and if the cross claimant seeks to amend I would allow that.

58 The orders I would propose are:

1. Statement of Claim be dismissed
2. Cross claim be dismissed
I will give my tentative view on costs when giving this judgment giving the parties an opportunity to make submissions if they wish.

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