Mekhail v Hana; Mekail v Hana - [2019] NSWCA 197

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Mekhail v Hana; Mekail v Hana [2019] NSWCA 197
Hearing dates: 18 July 2019
Decision date: 14 August 2019
Before: Basten JA at [1];
Leeming JA at [2];
Emmett AJA at [190]
Decision:
In each of proceedings 2018/328334 and 2018/335641:

1.   Appeal allowed.

2.   Set aside orders 1 (being the grant of probate of the will of the late Nadia Mekhail dated 12 December 2014 to Ms Georgette Hana), 2 and 6 made on 5 October 2018 and the costs orders made on 27 November 2018.

3.   In lieu thereof, (a) dismiss the cross-claim, (b) grant probate in solemn form of the will dated 27 March 2001 to the New South Wales Trustee & Guardian and (c) remit the matter to the Probate Registrar to complete the grant.

4.   Direct the parties to provide within 28 days (a) agreed short minutes of order or, in default of agreement, (b) short minutes of order for which they contend and short submissions in support of those orders, dealing with the title to the South Strathfield property and costs at first instance and any other orders they seek to propound.

5.   The respondent to pay the appellant’s costs of the appeal.
6.   Any dispute as to the final orders to be made to be determined by a single Judge of Appeal.
Catchwords:
PROBATE – contested grant – suspicious circumstances – whether proponent of will had discharged onus – will left whole estate to propounder – solicitor who explained and witnessed will believed propounder was testatrix's only daughter and next of kin – solicitor's erroneous beliefs caused by lies by those benefitting under will – inability to rely on solicitor's evidence to discharge onus – requirement to consider entirety of suspicious circumstances – appeal allowed and earlier will admitted to probate – consideration of merits of approach in Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430
SUCCESSION – application for provision – dependency – factors warranting – whether primary judge erred in failing to find nephew dependent on deceased – dependency conceded at trial – whether primary judge erred in failing to find primary facts on financial position and need
Legislation Cited: Evidence Act 1995 (Cth), s 128
Succession Act 2006 (NSW), ss 6, 57, 59
Cases Cited: Atter v Atkinson (1869) LR 1 P & D 665
Banks v Goodfellow (1870) LR 5 QB 549
Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089
Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66
Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65
Church v Mason [2013] NSWCA 481; 12 ASTLR 190
Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12
DJ Singh v DH Singh [2018] NSWCA 30
Food and Beverage Australia Ltd v Andrews [2017] VSCA 258
Fuller v Strum [2002] 1 WLR 1097; [2001] EWCA Civ 1879
Fulton v Andrew (1875) LR 7 HL 448
Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430
Greaves v Stolkin [2013] EWCA 1140; [2013] WTLR 1793
In the Estate of Fuld (decd) [1968] P 675
King v Australian Securities and Investments Commission [2018] QCA 352
Low v Guthrie [1909] AC 278
Marley v Rawlings [2015] AC 129; [2014] UKSC 2
McKinnon v Voight [1998] 3 VR 543
Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 2) [2017] NSWSC 1175
Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 3) [2018] NSWSC 1452
Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 4) [2018] NSWSC 1788
Monie v Commonwealth of Australia (2005) 63 NSWLR 729; [2005] NSWCA 25
Re Griffith; Easter v Griffith (1995) 217 ALR 284
Robertson v Smith [1998] 4 VR 165
Simon v Byford [2014] EWCA Civ 280; [2014] WTLR 1097
Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17
Thompson v Bella-Lewis [1997] 1 Qd R 429
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136; 14 BPR 26,867
Tyrrell v Painton [1894] P 151
Vaughan v Vaughan [2002] EWHC 699 (Ch); [2005] WTLR 401
Veall v Veall (2015) 46 VR 123; [2015] VSCA 60
Winter v Crichton (1991) 23 NSWLR 116
Wintle v Nye [1959] 1 WLR 284
Texts Cited: J Martyn and N Caddick, Williams, Mortimer and Sunnucks – Executors, Administrators and Probate (Sweet & Maxwell, 2008, 21st ed)
R Kerridge, “Undue influence and testamentary dispositions: a response” [2012] Conveyancer 129
R Kerridge, “Wills made in Suspicious Circumstances: The Problem of the Vulnerable Testator” (2000) 59 Cambridge Law Journal 310
G Lindsay, “The ‘Why’ and ‘What’ of ‘Suspicious Circumstances’ in Probate Litigation”, paper delivered to Law Society of South Australia Succession Law Conference, Adelaide, 16 November 2018
P Ridge, “Equitable Undue Influence and Wills” (2004) 120 Law Quarterly Review 617
B Sloan, “Burdens, Presumptions and Confusion in the Law on Want of Knowledge and Approval” [2017] Conveyancer & Property Lawyer 440
Category: Principal judgment
Parties:
In 2018/335641:

Magdy Mekhail (Appellant)
Georgette Hana (Respondent)

In 2018/328334:
Youssef Shoukry Wardakhan Mekail (Appellant)
Georgette Hana (Respondent)
Representation:
Counsel:

J E Thomson with J E Brown (Appellant in 2018/335641)
P R Glissan with C Street (Appellant in 2018/328334)
C Birch SC with D Allen (Respondent in both appeals)

Solicitors:
P K Simpson & Co (Appellant in 2018/335641)
Anderson Lawyers (Respondent in both appeals)

File Number(s): 2018/335641; 2018/328334
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity

Citation:

[2018] NSWSC 1452

Date of Decision:

05 October 2018

Before:

Slattery J

File Number(s):

2015/310332; 2015/186751

Judgment

BASTEN JA: I agree with Leeming JA. That agreement extends both to the dispositive reasoning and the preferred approach to such issues outlined at [164]ff.
LEEMING JA: Following a two week hearing in May 2017 and some other days or parts of days thereafter the primary judge granted probate of the will of the late Nadia Mekhail dated 12 December 2014 to the respondent, Ms Georgette Hana, and dismissed the appellants’ claims for provision pursuant to the Succession Act 2006 (NSW): Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 3) [2018] NSWSC 1452. Each appellant, Magdy and Youssef, is a nephew of the deceased’s husband Raghib who died in 2012. Both nephews have separately appealed. Without conveying any discourtesy, it will be convenient to follow the course adopted by the primary judge and refer to the parties and their family by their given names.
The 2014 will left the entirety of Nadia’s estate to “my daughter Georgette Hana” and appointed her sole executrix. In the event of Georgette predeceasing Nadia, it left the whole of Nadia’s estate to Georgette’s husband, “my son in law Adel Hana”, and appointed him sole executor. The descriptions in the will of Georgette as Nadia’s daughter and Adel as her son-in-law were wrong.
By a previous will executed in 2001, Nadia had left legacies of $10,000 to two Coptic churches, and her residuary estate to her husband and, if he predeceased her, to each of Raghib’s five nephews in equal shares, including Magdy and Youssef. At the time she executed the 2014 will, Nadia’s main asset was her home in South Strathfield, which was unencumbered and which she had formerly owned jointly with Raghib.

Overview of issues

Both appeals were heard concurrently. One appellant (Youssef) continued to maintain a claim, in the alternative, under the Succession Act. But the principal issue, to which almost the entirety of the parties’ written and oral submissions were directed, is whether, having found that the execution of the 2014 will was attended by “suspicious circumstances”, the primary judge erred in being satisfied that the deceased had testamentary capacity and knew and approved of the will.
The judgment at first instance is very long: 368 paragraphs over some 90 pages. However, the ultimate issue as to whether probate of the 2014 will should have been granted is narrow. As will be seen below, on any view the “suspicious circumstances” attending its execution are powerful. Georgette and her son Bishoy attended upon a solicitor in late 2014 together with Nadia, who had been released from palliative care, in the final stages of metastasised breast cancer. The solicitor had never previously met or spoken with Nadia. However, he had already drafted a will leaving the whole of her estate to Georgette and appointing her executrix. He had also already drafted an enduring power of attorney in favour of Georgette. Both documents were based on a series of lies made to him by Bishoy with (as the primary judge found) the full knowledge of Georgette. The most striking lie was that, contrary to what the solicitor was told and what appeared on the face of the will which the primary judge admitted to probate, Georgette was not Nadia’s daughter. Nor was Georgette Nadia’s next of kin. The two women were unrelated.
A few weeks after Nadia executed the 2014 will, Georgette purported to transfer Nadia’s only substantial asset, her home in Strathfield, to herself, for nominal consideration, pursuant to the power of attorney executed by Nadia at the same conference with the solicitor. The transfer was registered. The primary judge found this transaction to be in breach of duty, and would have set it aside but for admitting the 2014 will to probate. There was no contingent notice of contention seeking to uphold Georgette’s title on the basis of indefeasibility or otherwise seeking to defend that aspect of her conduct.
Georgette’s conduct in February and March 2015 needs to be mentioned because of a fact which, to my mind, is harder to understand than any of the foregoing. In April 2015, after the solicitor knew that (a) Georgette had (with his assistance) transferred Nadia’s house to herself for $1, (b) Nadia had died and (c) there was a dispute with the appellants about the validity of the will, the solicitor destroyed his file note of the 12 December 2014 conference during which Nadia executed the will. The solicitor created a new file note, backdating it with the effect that it conveyed an impression of contemporaneity.

Structure of this judgment

Enough has already been said to indicate that it will be necessary to examine the evidence bearing upon the execution of the 2014 will with some care. Affidavits from around 20 deponents were read at trial. Many are only peripherally relevant to the issues arising in this Court. The most important witnesses, for the purposes of considering the validity of the 2014 will, were the parties Magdy, Youssef and Georgette, her son Bishoy, and four people who were not financially affected by the outcome of the case. All four independent witnesses saw Nadia in December 2014:

Ms Mary Candotti, a childhood friend of Nadia’s, who had met her in Suez City in around 1955 and had separately emigrated to Australia in the 1960s;

Mr Thomas Liondos, the solicitor who drafted and witnessed the 2014 will;

Dr Joanne Toohey, a radiation oncologist; and

Dr Waseem Guirguis, Nadia’s general practitioner.

Ms Candotti was called by the appellants; Mr Liondos and Drs Toohey and Guirguis by Georgette. They gave divergent accounts of Nadia’s mental state in December 2014. It will be convenient to commence with the contemporaneous documentary evidence, before turning to the testimonial evidence, bearing in mind the primary judge’s credit-based findings of those witnesses.
The balance of this judgment is structured as follows:

Contemporaneous documentary evidence;

Testimonial evidence;

Reasons of the primary judge;

Magdy’s and Youssef’s appeals;

Should the 2014 will have been admitted to probate?

Failure to make provision for Youssef;

Orders.

Contemporaneous documentary evidence

The documentary evidence falls into three categories: the documents leading to the execution of the will on 12 December 2014, the documents bearing on the inter vivas transfer of Nadia’s home to Georgette and the medical records.

The solicitor’s file notes and correspondence concerning execution of the will

The events preceding the execution of the 2014 will took place between 25 November and 12 December 2014, a period of some two and a half weeks.
An email from an employed solicitor, Mr Thomas Liondos, dated 25 November 2014 referred to a telephone conversation between him and Bishoy that day, and listed eight items of information that would be required if he were to draft a power of attorney and a new will, including the identity of the attorney and the scope of his or her authority, and the identity of the executor and those who would take under the will. Bishoy responded to that email eight days later, on Wednesday 3 December 2014. The email warrants reproduction in full:

“Thomas,
Here is the information that will help you with the draft, can you please do the draft asap because she is in hospital.
Power of Attorney:
1. Nadia Mehail at xxxx Strathfield South NSW 2136. DOB xx/yy/1935
2. No. 1 Attorney; Georgette Hana DOB: xx/yy/1959 (Daughter and Next of Kin)
3. N/a
4. Georgette Hana has no limitations. 100% power.
In relation to the will:
5. Nadia Mehail at xxxx Strathfield South NSW 2136. DOB xx/yy/1935
6. No. 1 executor; Georgette Hana xx/yy/1959 (Daughter and Next of Kin) at xxxx Blakehurst NSW 2221
No. 2 alternative executor; Magdy Mehail DOB: xx/yy/1961 (Second in charge after Georgette Hana) at xxxx Belmore NSW 2207

7. Georgette Hana DOB xx/yy/1959 at xxxx Blakehurst, NSW 2221. Relationship: Daughter.
8. Georgette Hana share goes to Bishoy Adel Hana DOB: xx/yy/1989 at xxxx Blakehurst NSW 2221 (Georgette Hana’s son) and Magdy Mehail’s share goes to Bishoy Adel Hana.
Can you please register the will and the power of attorney and can not be contested [sic].
Thankyou,
Bishoy Hana.”

Bishoy’s email contained the false statements that Georgette was Nadia’s daughter in paragraphs 2, 6 and 7 and next of kin in paragraphs 2 and 6. The primary judge recorded that when he wrote this email, Bishoy well knew that he was not Nadia’s grandson: at [146]. Nadia was in Royal Prince Alfred Hospital at the time the email was sent, having palliative radiation treatment for a compressed spine (as will be seen below she was discharged on 5 December). The request to “do the draft asap” and, especially, to “register the will and the power of attorney and can not be contested [sic]” are suggestive.
A handwritten note on a printed copy of the email in evidence records a telephone conference on 3 December 2014 with Bishoy as follows:

“Nadia in RPAH. Will be out by Friday, will call on Monday 8/12 to make appointment later in the week.”

Another note on the email states:

“I quoted fees for will + P/A approx. $500 for both incl. rego fees.”

Another handwritten note, dated 11 December 2014, appears to refer to another telephone conversation with Bishoy. It relates both to the power of attorney and the will. It appears to describe the essence of what was an extremely simple will, leaving the entirety of Nadia’s estate to Georgette, and, in the event that Georgette predeceased her, to Georgette’s husband Adel Hana (contrary to Bishoy’s 3 December email, which had instructed Mr Liondos to draft a will leaving the estate to Bishoy in the event of Georgette’s predeceasing Nadia).
However, another printout of Bishoy’s 3 December email contains notes, apparently also in Mr Liondos’ hand, suggestive of a different instructions:

“Whole estate to Bishoy – Guardian
and appoint as executor
grandson
If predecease – then to daughter
Georgette Hana ...”

This file note is undated. There is little point speculating how the instructions relayed to Mr Liondos varied between 3 and 12 December 2014. It is somewhat odd that they appear to have been quite flexible, both as to beneficiary and as to executor, in such a short period.
At some stage an appointment was made for a conference, and Mr Liondos’ diary has an entry for 4pm on Friday 12 December 2014.
Mr Liondos prepared an extensive file note of that meeting. The file note was regarded by the primary judge as the best evidence of Nadia’s state of mind when she executed the 2014 will. The circumstances in which it came to be made are remarkable.
The file note was annexed to Mr Liondos’ affidavit sworn on 26 August 2016 as annexure D. Paragraph 13 read as follows:

“On 15 December 2014, I made a file note of the meeting referred to in paragraph 12. I recall that because the appointment finished fairly late in the afternoon and I had a lot of other work to do, that I gave myself a note (probably on a post-it note) to prepare the file note on the Monday 15 December. Annexed and marked ‘D’ is a true copy of that file note.”

During the course of his cross-examination, Mr Liondos was taken to his file note and asked whether he “routinely makes file notes of such meetings”. The cross-examiner sought and obtained access to the file, seemingly for the first time, over the lunch adjournment. After court resumed, Mr Liondos then sought and obtained a further short adjournment, and after speaking with his counsel, advised that in fact annexure D had been prepared by him on 30 April 2015, some 5 months after the conference, and that he had destroyed the file note he had originally made of that conference.
Understandably, there was discussion of a certificate under s 128 of the Evidence Act 1995 (Cth), although if a certificate in fact issued, it was not in the appeal books, and its terms are not known to me. The hearing seems to have proceeded on the basis (consistently with what was said in Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12 at [91]) that that was a formality which would be attended to subsequently. I proceed on the basis that Mr Liondos was entitled to a certificate in relation to his evidence concerning his file note
The opening lines of the file note are remarkable, having regard to when it was written. The file note commences as follows:

It is clear even from the copy that the original date, “12/12/14”, was overwritten so as to read “15/12/14”. It is difficult to be sure, but it appears that the abbreviation “Mon” in narrow handwriting, has been inserted between the words “File Note” and the date, after the date had been written. It may be that the concluding words “–re: appointment on Fri 12/12/14” were likewise written afterwards. But the next entry, “Appointment this afternoon with Nadia Mekhail”, falls to be assessed on the basis that it was written some five months after the events of that afternoon.
One possibility is that the document was drafted as if to appear that it was created on the Friday at or immediately after the conference (“this afternoon”), but then Mr Liondos appreciated that it should have been drafted as though it had been made on the following Monday. There are other possibilities. None was fully explored in the evidence.
Mr Liondos gave the following accounts of what occurred. First, in answer to the judge:

Q. ... [B]y what decision-making process did you decide to dispose of the other note, why couldn't you just keep both?
A. That’s difficult to explain. I just thought it, you know, if the matter was going to court, it was inadequate, it was something that was - how would I describe maybe hieroglyphics only meaningful to me and this matter was moving on to a - some - another level and I thought I’d better recap my memory whatever it was in April as close as possible to this day, but I regret I’ve mislabelled, left it as the note of the 15th of the twelfth which is not the case.”

Secondly, in cross-examination:

Q. ... If the sketchy notes were consistent with what you’ve got here what was the reason for throwing them away?
A. Very hard to explain. I just thought the notes in the circumstances it was very basic and perhaps time caught up with me, I didn’t get to elaborate on it but then I probably just thought it might suffice and time passed and when I realised there was a dispute I thought I'd better do something more – of greater substance in view of where this matter was heading.”

The most material aspects insofar as is relevant to these appeals are that Mr Liondos knew when he wrote the file note that:

Georgette, contrary to what he had been told orally and in writing, and contrary to what he had drafted in Nadia’s will, was neither Nadia’s daughter nor her next of kin;

Nadia had died;

Georgette had earlier sought to use the power of attorney; and

there was a dispute over the will.

The file note occupies four handwritten pages. The balance is as follows:

“I had some concerns noting:
- I had not previously met or had contact with Nadia Mekhail
- My only contact was primarily through Bishoy, who sent me email and whom I spoke to on the telephone.
- Mrs Mekhail apparently has a terminal illness and not long to live (her ailment is physical) and I was advised that mentally she is ok and understands what she is doing.
- The matter in general was rushed. Some pushing from Bishoy to deal with matter quickly as Mrs M. may pass away soon and his mother (Georgette) also wanting to have the Will signed asap.
(In this case I noted I should also consider whether Mrs M was also keen to sign the new Will or whether she was being pushed into it.
- I went through the pre-prepared power of att and Will with Mrs Mekhail.
- In relation to the POA, Mrs M confirmed she was happy with it.
- We also went through the Will.
- My general impression was that although apparently physically ill, Mrs Mekhail was very sprightly and forthright as to what she wanted.
- Her English was sufficient for us to communicate and I understood her and felt confident that she understood me.
- I asked if she’d made a previous Will. She said yes but didn’t have it with her but in any event, wanted to make this new Will.
- She confirmed the details of the Will including that she wanted to leave the whole of her estate to her daughter, Georgette Hana.
- Our general conversation was that she was aware that she did not have long to live and she wanted to do this Will so she could rest easy. She said her main asset was the ppty at xxxxx Strathfield South, she didn’t have much else.
- Georgette had looked after her and done everything for her and it was important that she made this Will before she passes to give everything to Georgette.
- She affirmed the alternate clause to Adel Hana if Georgette didn’t survive her.
- I noted that in Will, if there is someone else who may be entitled, they should be mentioned in the Will and why they should be excluded – especially close relatives such as husband or children.
- She said her husband had died and she had no other children. Didn’t want to mention anything else in the Will. She said there is no one else entitled.
- During the course of the appointment Mrs M was clear on what she wanted. Essentially to give the whole of her estate (main asset being the ppty) to Georgette.
- She said that, emphasised it and thanked me for seeing her.
- Georgette and Bishoy had little to say. Georgette gave some background details but left it up to Mrs Mekhail to discuss the Will with me.
- A couple of times when Georgette and especially Bishoy tried to intervene and say something, she told them to be quiet and stay out of it.
- In my opinion Mrs Mekhail was clear that she wanted to make a new Will, what she wanted it state [sic] and the extent of the ppty she was giving (whole estate).
- She was clear on what she wanted to do and in my opinion the matter was dealt with in haste as Mrs M knew herself that her time was limited and she wanted to make the Will before it was too late (ie. before she died).”

Parts of the file note highlight concerns Mr Liondos recorded himself as having, and how they were resolved. As will be seen below, what matters most are the facts that according to this backdated file note, Mr Liondos was told that Georgette was Nadia’s only child, and that her husband had predeceased her. He was told that there was another will but he did not make any attempt to ascertain what provision it made.
The 2014 will was a single page document. It is reproduced at Annexure “A”. The first clause revoked all former wills and declared this to be Nadia’s last will and testament. The remaining clauses provided:

“II. IN THE EVENT OF my daughter Georgette Hana surviving me for a period of not less than thirty (30) days and in such case I GIVE the whole of my real and personal estate of whatsoever kind and nature and wheresoever situate to my said daughter AND I APPOINT my said daughter sole Executrix hereof.
III. IN THE EVENT OF my said daughter failing [sic] and IN THE EVENT OF my son in law Adel Hana surviving me for a period of not less than thirty (30) days and in such case I GIVE the whole of my real and person estate of whatsoever kind and nature and wheresoever situate to my said son in law AND I APPOINT my said son in law sole Executor hereof.”

Presumably something like the words “to survive me for a period of thirty (30) days” were intended to have been included after the word “failing” in the third clause.
It would have taken rather less than a minute to read those clauses out loud. Nadia and Georgette spoke English as a second language, and documents in evidence suggest that Bishoy’s English was imperfect. Even so, it is difficult to accept that if the will had been read out loud, with a view to confirming that Nadia understood its import, the solicitor would not have noticed that words were missing from the third clause after “failing”. Mr Liondos said that he “explained” the will. He did not give clear evidence that he had read it out loud.
The will was witnessed by Mr Liondos and another employed solicitor of the firm, Mr David Shad.
On the same afternoon, Mr Liondos completed and witnessed Nadia’s signature on an enduring power of attorney, appointing Georgette as Nadia’s attorney. In accordance with Bishoy’s instruction in the email of 3 December 2014, there were “nil” conditions and limitations. However, rather than ticking the box whereby the donee authorised the attorney to confer benefits on himself or herself, that clause was crossed out, and clause 7(d) included an acknowledgment by the attorney that “I accept that unless expressly authorised, I cannot gain a benefit from being an attorney.”
Another document dated 12 December 2014 is a trust account invoice, with a handwritten file number “101” recording receipt of $400 in payment for “will & P/A” in cash signed by Mr Liondos.
The power of attorney was registered on 17 December 2014. There is a note apparently in Mr Liondos’ hand to “Eva” to prepare a tax invoice for $400 including the registration fee. A memorandum of fees dated 17 December 2014 in the amount of $400 addressed to Nadia and stamped “paid” was in evidence. Seemingly it was obtained from the solicitor’s file. The memorandum of fees also referred to file number “101”. The memorandum made no provision for GST and was not a compliant tax invoice (although that may have been an administrative error for which Mr Liondos was not responsible). This Court was told that no investigation had been made of Mr Liondos’ trust account records or accounting systems in relation to file “101”. It seems that rather than the $500 quoted, Mr Liondos was content to accept $400 cash.

The second power of attorney

It will be recalled that Nadia was discharged from hospital on Friday 5 December 2014, and that while Bishoy had made inquiries with Mr Liondos to draft a will and power of attorney on 3 December, he had said he would get back to the firm.
There is also a series of emails between Bishoy and Ms Julia Sattout, solicitor, of the firm Sattouts, on Tuesday 9 December 2014. The subject is “Power of Attorney for Nadia Mekhail”. The last in the sequence, so far as the evidence discloses, was at 6.10pm and stated “I have prepared the Power of Attorney. Please make an appointment for you and your grandmother to see [another member of the firm]”. It was accepted during the hearing that Sattouts’ office was only about 100m from Nadia’s home. It seems that Bishoy did not make any appointment for him and Nadia to execute the power of attorney.
Bishoy gave an account in his affidavit that Ms Mary Candotti (who also retained Sattouts) learned that Nadia was drafting a power of attorney, and had an argument with Nadia about it. Ms Candotti accepted that she used Sattouts, but denied any such argument. She said she did not know Nadia was going to change her will, that she had not been told by Nadia nor by anyone at Sattouts.

Georgette causes Nadia to transfer the property to Georgette for a dollar

Nadia returned to hospital by ambulance on 3 February 2015. She was discharged from hospital on 8 February, and was taken to Georgette’s house (where Bishoy lived with Georgette). The following day, Georgette and Bishoy commenced their efforts to transfer title to Georgette of Nadia’s (now empty) home.
A file note dated 9 February 2015 in Mr Liondos’ file appears to record a telephone conversation with Bishoy. The note states:

“Send letter re: “P/A to xxx Street Blakehurst 2221”.

The address is that of Georgette and Bishoy. A letter dated 10 February 2015 addressed to Nadia at the Blakehurst address provides:

“We refer to the above matter.
We note that you are already in possession of the original Registered General Power of Attorney.
Your attorney should sign on your behalf as follows:-
‘Nadia Mekhail, by her Attorney Georgette Hana pursuant to registered General Power of Attorney Book 4679 No. 642.’
We thank you for your instructions.”

For reasons that were not explained (although the time approximately coincides with Georgette’s attempts to transfer Nadia’s home to herself), Mr Liondos made a statutory declaration on 4 March 2015, recording that he had prepared and witnessed the power of attorney.
The transfer was not at arms’ length, so a valuation was required for stamp duty. Bishoy said in cross-examination that a valuation was obtained on 12 March. (A valuation of that date appears to have been tendered according to a document in the court’s file, although it was not reproduced in the appeal books.) An undated memorandum of transfer, which was lodged for ad valorem stamp duty on 24 March 2015, transferred Nadia’s South Strathfield home to Georgette when it was registered a fortnight later. The document was stamped with $28,115, based on a value of $725,000. The stated consideration was $1. The signatures of Georgette (as vendor’s attorney and as purchaser) were both witnessed by Bishoy.
Land and Property Information noted that the power of attorney executed by Nadia did not permit Georgette to confer a benefit upon herself, and wrote to her on 25 March 2015 stating that the transfer “needs to be justified as being in the best interests of Nadia Mekhail”. Bishoy provided a draft letter, in Georgette’s name, to Mr Liondos which Mr Liondos amended. It appears that, at least by this point, Mr Liondos was acting for Georgette and Bishoy, not Nadia. The amended letter was sent by Georgette to the LPI in the following terms:

“As we discussed in your office on Monday 30 of March 2015, I needed to write a letter to justify why we are transferring the house under my name.
I Georgette Hana am the next of kin to Nadia Mekhail, and her appointed attorney under registered power of attorney Book 4697 Number 642. I was instructed by Nadia Mekhail to finalise the transfer of her property (Folio C/309294) before she passed away. She was diagnosed with breast cancer in 2010 and her doctors have said that she does not have a long time to live.
Nadia Mekhail has told me it would give her great comfort to know that the property is in my name prior to her passing.
Nadia Mekhail is living with me until her last days and she said she has no need of her house anymore and she wishes to do every thing while she is alive to transfer the house under [sic] my name. She has already made a will leaving everything to me and there [sic] I attach a copy of her will with this letter.
If there is any more information about this matter please do not hesitate to call me at the above number.”

That response satisfied Land and Property Information and a certificate of title issued on 10 April 2015. It will not be necessary to consider either the truth of what Georgette wrote to LPI or the sufficiency of the steps taken by LPI before registering the transfer to an attorney who was not authorised to take a benefit.
On 30 March and 2 April 2015, there were two withdrawals of almost the entirety of funds in Nadia’s passbook account. For the previous two years the account had been largely inactive, save for quarterly deposits of modest amounts of interest. Withdrawals of $17,010 and $1,000 on those days left a balance of $0.92. The $1,000 withdrawn on the day of Nadia’s death was a cash withdrawal from a branch at Kogarah (according to a document produced in response to a subpoena to the bank). The large withdrawal three days before Nadia’s death was a bank cheque in favour of Bishoy. The bank’s internal documentation, which bears a stamp of the Mascot bank branch, has handwriting “Georgette Hanna POA” suggesting that Georgette purchased it using the power of attorney. At trial, it was said that “the explanation for this was that the money was to be used to pay for Nadia’s funeral”. Why a bank cheque to pay for Nadia’s funeral was (a) made out to Bishoy, and (b) purchased before Nadia had died, seems not to have been explored in the evidence.
There is a file note in Mr Liondos’ hand dated 7 April 2015 which commences “Bishoy” and recorded that Nadia had passed away on 2 April. It then records that Georgette re-submitted the documents to LPI, and continues:

“– I noted that Georgette was the only beneficiary under the will.
– can cancel progress via LPI. I recommended we act urgently before finalised. Should then be able to claim refund of s/duty.
– Tfer/transmit ppty via probate, don’t have to pay s/duty.
– He said don’t worry about the s/duty. It has been paid. We paid it about 3 wks ago. Just leave it.”

On 8 and 9 April Mr Liondos learned (by telephone call followed by a formal letter) that Sattouts Legal, acting for the appellants, were asking for a copy of Nadia’s will. On 10 April 2015, a file note records a telephone conversation with Bishoy as follows:

“Update re if we’d heard anything ....
I could hear Georgette in the background.
Told him we’d received a letter from Sattouts’ Legal.
Wanted a copy of the will.
I overheard Georgette say ‘no’ she was not agreeable to providing a copy.
I said I anticipated that answer.
In the first instance Matthew contacted Sattout’s yesterday – asked them to advise the solicitor on what [basis] they request to be provided with a copy.
If they have a legitimate basis under the law (Succession Act) then we will be obliged to provide a copy of the will.”

On 20 April 2015, a file note records an attendance with Bishoy:

“Wants contract prepared asap.
Has a purch[aser]. Wants to act urgently.”

At that stage, following a conversation with Mr Shad, Mr Liondos advised that he would prefer not to act on the sale. The on-sale by Georgette did not proceed.
A file note of a conversation with Bishoy dated 2:10pm on 30 April 2015 records the following:

“– Nadia was not forced to sign
– the P/A
– the will
– she said to cross out
– also that there were no limitations
– that she was alert”

As noted above, Mr Liondos accepted in his oral evidence that on around 30 April 2015 he destroyed the earlier file note and replaced it with that which was annexed to his affidavit.
The same affidavit which wrongly described the backdated April 2015 file note as having been prepared on 15 December 2014, also referred in detail to the telephone conversation he had had with Bishoy on 30 April 2015, which in fact was the occasion for his redrafting the file note and destroying the original. It is possible that by the time Mr Liondos came to swear his affidavit, in August 2016, he had forgotten the singular fact that he had destroyed his contemporaneous note of the 12 December 2014 conference and replaced it with that made the following April. That might account for the incorrect statement on oath in his affidavit. But it does not explain the destruction of the original or the backdating of the substitute.

Contemporaneous medical evidence

During the last four years of her life, Nadia suffered from bone-dominant metastatic breast cancer. By 2011, her oncologist advised her GP that metastases were noted throughout the axial skeleton, ribs, scapula and within the pelvis. Sadly, the medical records of a very unwell woman are voluminous.
It seems plain that Georgette regularly accompanied her to medical appointments and was often recorded as either her god-daughter or her actual daughter. It is easy to see how that might occur, with no deception on the part of anyone. It is no small thing for a family friend to accompany a dying woman to her medical appointments, and to care for her at the end of her life, even taking her into her own home, as Georgette and Bishoy did. In the facts of this case that ordinarily laudable conduct falls to be assessed against the unchallenged facts that Nadia’s oldest friend was kept away from Nadia, even from her funeral, and the transactions Bishoy and Georgette entered into on Nadia’s behalf.
The main significance of the medical records is not how Georgette is described. It is the extent to which they bear upon Nadia’s mental state on 12 December 2014. What follows is highly abbreviated, and focusses on the records closest to the critical date.
A report from a specialist dated 14 November 2014 to her GP recorded that Nadia was receiving chemotherapy once every three weeks. She was complaining of “upper limb pain and sensory disturbances” following a fall in her back yard, and the specialist suggested the use of a neuropathic medication such as pregabalin or gabapentin.
Nadia is recorded as presenting to the emergency department of Concord Hospital on 21 November 2014 with “gradually worsening sciatica and right shoulder pain on a background of complete rotator cuff tear and metastatic breast cancer”. She reported that “she was on the way to Strathfield Private for chemo and was unable to tolerate the pain”. She reported “a two week history of worsening pain from left hip down posterior leg”, which she described as “sharp in nature and exacerbated by movement”. On admission, she was described as “alert and oriented to time, person and place”. Another note on that day recorded “denies dizziness but observed unable to stand to enter triage. Nil distress, talking in full sentences”. An emergency department observation chart on the same day described Nadia as being neither confused nor disorientated nor agitated. Nadia was recorded as declining an x-ray so as to exclude a possible hip/femur pelvic fracture and “was given some analgesia with positive effect and advised to continue with regular pain relief and follow up with LMO and Dr Goodwin”. At that time, she was being treated with nebivol 1.25mg nocte, fentanyl patch 12 micrograms daily and sulfasalazine 500 milligrams tds.
Nadia was discharged that afternoon with a referral to her General Practitioner which stated “Oncology have suggested GP to consider commencement of Lyrica for sciatica”.
On 24 November, Dr Guirguis’s notes record that Nadia had been seen at Accident & Emergency, given endone as needed, and repeated a Duragesic patch and continued Lyrica.
Nadia was reassessed by an occupational therapist on 25 November 2014 reporting severe pain in her right shoulder and mild numbness in her right hand. The notes record “pain well controlled with increase in fent patch”. They also record “daughter lives in the st george area” and “grandson provides care for pt in her own home”.
Nadia was admitted to RPA on 28 November 2014, presenting with compression of her spinal cord at C6-C7. The notes state that “analgesia was increased from pre-existing fentanyl patch of 12.5 micrograms to 25 micrograms patch although Nadia did not complain of significant pain”.

Dr Toohey’s notes of 1 December 2014 include:

“long discussion with daughter Georgette on telephone
– outlined her mum has now consented for XRT
BUT family are adamant that they wish to take her home against my advice.
Will arrange for XRT tomorrow.
I have outlined that her weakness could worsen over the next few days.
Further discussion with Georgette (daughter).
Now wishes for mum to be [illegible] today and will take her home tomorrow.”

A nurse’s note on the afternoon of 1 December 2014 records:

“Does not ever want to use endone again stating it made her very dizzy in the past.
Son states fentanyl patch was started for torn tendons in her shoulder. He thought dose was 1.25.”

The notes by nurses over the first days of December frequently record Nadia being alert and orientated and speaking in sentences.
Although initially refusing radiotherapy, Nadia agreed to commence treatment between 1 and 5 December 2014 (this appears to have been palliative radiotherapy: 5 fractions to C5 to T9 on 1/12 to 5/12/14). The notes say that Nadia “has been advised if any ongoing pain at home, can use half tablet of endone (own supply) or fentanyl lozenges to aid with pain relief”. The document records a discharge plan including a “weaning plan for reducing dexamethozone (8mg until 9 December, 4mg until 14 December, 2mg until 19 December and 1mg until 24 December then cease”. She was also given fentanyl lozenges and endone, no more than six lozenges of fentanyl each day and between 2.5 and 5mg of endone up to 4 times a day, with a maximum of 20mg per day. Those notes were typed by a resident apparently under the supervision of Dr Toohey.
The notes record her being discharged on the afternoon of 5 December 2014, with “d/c meds to be picked up from discharge lounge”.
There seem to be no medical records between Nadia’s discharge on 5 December 2014 and 19 December 2014. The notes of Dr Guirguis record consultations on 8 and 19 December 2014, but the doctor confirmed that someone (probably Bishoy) came in on her behalf (he relied in part on the fact that his notes did not record her blood pressure). Dr Guirguis’ notes record a home visit on 22 December 2014.
On 19 December 2014, Dr Goodwin, a medical oncologist, reported to Dr Guirguis that Nadia attended in a wheelchair and stated “she is spending the majority of day resting in bed now due to lethargy”. Her letter is reproduced in full below.
I pass very lightly over the records in the first three months of 2015. Metastases in her brain showed on a scan taken in January, and it appears to have been accepted that they were present in December 2014. Nadia was admitted to a hospital emergency department on 9 January 2015; the notes shed no light on her mental state. By 15 January 2015, her cardiologist described her as unable to walk and wheelchair-bound. As earlier noted, Nadia continued to live at South Strathfield until she returned to hospital on 3 February 2015. On her discharge, on 8 February, she was taken to Georgette’s and Bishoy’s home at Blakehurst. By 19 February 2015, the cardiologist said that “her pain is well-controlled with endone”. Nadia died on 2 April 2015 at St George Public Hospital Kogarah.
Nadia executed her will on 12 December 2019, a week after being discharged from hospital, and a week before she saw Dr Goodwin. During the intervening fortnight, she did not attend on her GP, but rather her son attended on her behalf. It is clear that Nadia was taking painkilling prescription drugs throughout this time. The weight of the evidence (as will be seen below) is that the drugs of themselves did not impair her cognitive functions. However, it is also clear that Nadia’s alertness was declining, from what was recorded by Dr Toohey on discharge to the pain and lethargy recorded by Dr Goodwin a fortnight later. It is also significant that the next time after her discharge from hospital that Nadia saw her own general practitioner was when he attended on her at home.

Testimonial evidence

The primary judge regarded Georgette and Bishoy as unreliable. Georgette was “prepared to invent evidence to improve her case” (at [29]). One aspect may be mentioned: in connection with the lies told by Bishoy to Mr Liondos, the primary judge said at [30] that:

“somewhat surprisingly, Georgette says that she knew almost nothing of what was going on. She was the principal beneficiary and, in my view, her relationship with Bishoy was such that I infer she was well aware of what Bishoy was communicating to Mr Liondos on her behalf.”

Bishoy was “a guarded and perplexing” witness (at [32]). The difficulties with the evidence of both mother and son are numerous. They need not be summarised, because Mr Birch SC, who appeared for Georgette in this Court although not at first instance, candidly made no challenge to the finding by the primary judge, nor did he submit that the grant of probate could be sustained by the evidence of Georgette and her son.
The primary judge described Magdy, whose evidence was given in Arabic with the assistance of an interpreter, as “a generally creditable witness” while Youssef was “on the whole”, a “reliable witness”: at [22] and [25]. Both were in conflict with Georgette and Bishoy. However, their evidence was not central to the critical issue, namely Nadia’s state of mind on 12 December 2014.
The most important testimonial evidence came from Ms Mary Candotti, Mr Thomas Liondos, Dr Joanne Toohey and Dr Waseem Guirguis.

Nadia’s friend Mary Candotti

Nadia was godmother of one of Ms Mary Candotti’s children. The primary judge was evidently struck by her anguish at having been excluded from speaking with or being with Nadia in her final months. The primary judge said that Ms Candotti was falsely informed that Nadia did not wish to see her. She missed Nadia’s funeral.
The primary judge explained this at [3]:

“One event explains Nadia’s isolation from Mary. ... [F]rom early February 2015 Georgette and her son Bishoy sequestered Nadia from Mary and other family members. Neither Mary nor Nadia’s other family members had any further contact with Nadia throughout February and March 2015, or at any time before her death in early April.”

Ms Candotti was described thus at [34]:

“Mary was Nadia’s oldest friend in Australia. She had obvious, genuine and strong empathy for Nadia. She felt great regret in not being able to farewell Nadia at her funeral. She spoke firmly and accurately from her recollection. She was a reliable witness on almost all details.”

Ms Candotti gave evidence of having been excluded from contact with Nadia by Georgette. She also gave evidence that even after Raghib’s death, Nadia would say “The house is for Raghib’s nephews” and “The money is for Raghib’s nephews”. Specifically, she said that in or about late 2014, she recalled Nadia talking about her will, and said “I leave all my money and house to my nephews, Raghib nephews” [sic]. Her evidence was that when Nadia was diagnosed with cancer, before, during and after December 2014, she said “I start to forget things, my mind no very good” and “I cant think straight Mary”. She was cross-examined on the dates, with a view to suggesting that this was a recollection of her state of mind in early 2015, some two months before her death:

“Q. Did Nadia tell you in late 2014 that she was going to die?
A. Yeah.
Q. When did she tell you that she was going to die?
A. Was when - I know everything about Nadia, about her illness because my daughter-in-law took her to do the tests and found out she have cancer, so I know her illness how it was going all the time and I know before she said you have two month to live.
Q. When did Nadia tell you that she had two months to live?
A. When she come from the last time visiting the doctor and do the CT scan.
Q. Was that in December 2014 or some other date?
A. It was around, around the time before she died, I think that she died in 2015, she was around that time.
HIS HONOUR
Q. She died on 2 April 2015.
A. 15, yeah. So it was two months before that.
...
Q. Nadia first said to you the words to the effect, ‘I can’t remember what I was about to say,’ in the year 2015. That’s correct, isn’t it?
A. Yeah.
Q. In December 2014 Nadia had made no complaint to you about having
a poor memory. That’s correct, isn’t it?
A. I think so. I’m not - you know, I’m very, very sorry, because I, I can’t remember the, the times, you know, the, the, the, the years.
Q. In December 2014 you would see Nadia on a daily basis. Is that correct?
A. We see each other, we was going shopping together, we was walking.
She was coming in my house and everything.”

It is difficult to place the conversation to which Ms Candotti referred. Certainly, Nadia underwent an MRI scan on 28 November 2014, which disclosed that there was “extensive infiltration throughout the entire spinal column with multiple lesions seen in virtually every vertebral body”. On 19 December 2014, Dr Goodwin recommended not repeating CT scans unless there is a clinical indication that might affect her treatment”. That suggests a conversation in December 2014. It is possible that it was later. But it is to be borne in mind that Ms Candotti was excluded from seeing Nadia for the last two months before her death. And the medical evidence strongly suggests that Nadia was in no position to go shopping or walking with Mary after 5 December 2014 (she did not attend her own nearby doctor on 8 December; he made a home visit on 22 December; she was wheelchair bound on 19 December).
It is at least arguable (in fact, I think it is the better reading of Ms Candotti’s evidence) that the period during which she recalled Nadia as confused was the last two months that Ms Candotti saw Nadia rather than the two months before her death. If that is right, then it is the period after Nadia’s discharge from hospital on 5 December 2014.

The solicitor, Mr Thomas Liondos

Mr Liondos was described by the primary judge at [36] as follows:

“Mr Liondos was a difficult witness to assess. He had a reasonable recollection of relevant events, especially those at the will-making conference with Nadia on 12 December 2014. Some important parts of that recollection were quite firm. Some of his account from memory was compelling. But the Court does not regard him as a reliable witness in all respects, for several reasons. He re-wrote his notes of the conference of 12 December 2014 and disposed of the original notes for no clearly explicable reason. He could not remember some important conversations without reference to his notes. His final notes of 12 December 2014 could not be compared with the notes he disposed of. He had a poor capacity to remember some of the significant events and meetings the subject of the proceeding without notes. But he was entirely honest and tried to be as helpful as he could in giving his account.”

However, despite that finding of unreliability, in large measure the primary judge expressly accepted Mr Liondos’ evidence. His Honour accepted Mr Liondos’ evidence that he was unaware that Georgette was not Nadia’s biological or adopted daughter, that he would have drafted the will differently had he known the truth and, importantly, that he would have acted differently. The primary judge described this as “the Counterfactual” (at [163]-[168]). The primary judge said at [163]:

“Mr Liondos says, and the Court accepts, that if he had realised that Nadia was not the daughter and not even a blood relationship it would have ‘triggered a completely different scenario’. He would not have had the comfort that he had with the will as it was. As he said, in his mind, the situation ‘changes drastically’. He says, and the Court accepts, he would have appreciated that the ‘rationality of the will is less obvious’.”

The primary judge noted that in the absence of a close blood relation such as a child, the potential claims on Nadia’s testamentary bounty of other relatives such as siblings, nieces or nephews would need to be explored and considered: at [164]. His Honour also considered that Mr Liondos would have asked Georgette and Bishoy to leave the room had he known the truth: at [167]. Between those paragraphs is the following important passage as to the effect of this counterfactual reasoning: at [165]-[166]:

“An inquiry by Mr Liondos of Nadia in this direction that was conducted in the absence of Georgette and Bishoy was likely, in my view, to have revealed the truth about a number of related matters: the existence of Raghib’s and Nadia’s mutual 2001 wills; the benefits they had conferred on Raghib’s five nephews (Nadia’s nephews by marriage) by agreement between Nadia and Raghib; Nadia’s abiding respect for Raghib’s wishes; the gifts in the 2001 wills to the Coptic Orthodox churches in Sydney; and that Nadia’s relationships with her nephews were still affectionate. But because Mr Liondos was not told by Georgette and Bishoy, apparently with Nadia’s acquiescence, that Georgette was not actually her daughter, those lines of inquiry, advice and consideration were not pursued.
But this does not automatically mean that Nadia was therefore incapable of appreciating the various claims upon her testamentary bounty, from, for example her nephews. In my view, she is hardly likely to have forgotten her nephews as she had recently seen them and had the benefit of their support. And, as will be shortly seen, Mr Liondos did direct her attention, at least in general terms, to the possibility of someone else, other than Georgette being entitled to her estate and whether they should be excluded.”

The last sentence of [166] anticipates the finding based on Mr Liondos’ notes. The primary judge expressed the view at [184] that:

“But despite the unsatisfactory way that these notes were rewritten without retaining the originals the Court is confident that Mr Liondos’ final rewritten version of the notes was an honest undistorted account of his actual recollection of what passed at the 12 December 2014 meeting with Nadia. The Court infers this not only because Mr Liondos was genuinely trying to give his best account of the meeting. But some features of the notes show Nadia’s personality in much the same way as it had revealed itself to Dr Toohey.”

His Honour regarded the notes as “the most accurate available record of what passed between Mr Liondos, Nadia, Georgette and Bishoy at this consultation” and as “a faithful account of the meeting despite being a transcription of other earlier notes”: at [186]. In some circumstances, little might turn on that characterisation. Despite the self-evident problems flowing from the destruction of the original, the creation of a new backdated file note and Mr Liondos’ incorrect description in his affidavit, nevertheless the file note was the only documentary record of the meeting, and accordingly easily qualified as “the most accurate available record”.
But his Honour also relied upon the file note as being a “faithful account”. His Honour regarded it as significant that it was Nadia who was noted as describing Georgette as her daughter: at [188]. He regarded the note as “a contemporaneous record of Mr Liondos’ thoughts and concerns”, writing that Mr Liondos “was actually conscious that Bishoy and Georgette may be rushing Nadia into this” and that he focussed on “whether [Nadia] was being pushed into it”, and nevertheless proceeded: at [189].
Mr Liondos was not cross-examined on the basis that he was dishonest, and it was confirmed in this Court that no challenge was made to the finding by the primary judge that he was “entirely honest and tried to be as helpful as he could be”. I proceed accordingly.
Mr Liondos met Nadia on one Friday afternoon. The conference occurred about 2½ years before he gave evidence. He took a short note at the time, which he destroyed. He made a longer note five months later. It is exceedingly unlikely that he retained an independent recollection of what had occurred. Nothing in the transcript of Mr Liondos’ evidence suggests to my reading that he had a distinct memory of the conference 2½ years earlier. For example, returning to whether Mr Liondos recalled receiving instructions from Nadia or the younger people in the room, he said in answer to the primary judge:

“Q. Did you get any assistance from the other people in the room about translating things with her or not?
A. I, I cannot recall, I mean, I was - there wasn’t that much to the documents, they were straightforward and I think she - I was very clear what she was telling me, I mean, there, there wasn't that much to it, to communicate with each other.”

Further, I cannot accept that his back-dated file note could be a “faithful” account of the meeting, if by “faithful” it is intended to connote that it is a complete account.

The entirety of the file note has been reproduced above. It will be seen that precisely two lines were directed to the power of attorney. The rest was directed to the will.

It is now known that the file note was prepared at a time after Nadia had died. At that time, the efficacy of the power of attorney was of limited significance. At that time, there was a challenge to the validity of the will. Almost all file notes are selective; that is what distinguishes a note from a verbatim transcription. There is every reason to think that the ordinary process of selection would have applied in April 2015 so as to cause Mr Liondos to dwell upon the will, rather than the power of attorney.

If one returns to December 2014 when the conference actually took place, it is absurd to think that almost the entirety of the conference was devoted to the will to the exclusion of the power of attorney. The power of attorney was a five page document; the will was a single page. The power of attorney appears to have been initialled by Nadia’s shaky hand on at least pages 1, 2 and 3 and signed on page 4.

Further, the power of attorney was certified by Mr Liondos and dated 12 December 2014. It was an enduring power of attorney. The first thing he certified was:

“I explained the effect of this power of attorney to the principal before it was signed.”

Mr Liondos had never met Nadia. Either he explained its effect to Nadia at that conference in a way which was not documented in the back-dated file note, or his certification was false.

The memorandum of fees does not mention the will. It states:

“TO: Our professional costs of advising and acting for your [sic] in respect of taking instructions in this matter, preparation of Power of Attorney, attending upon your executions of same and attending to registration inclusive of GST.”

All this is obvious on the face of the documents. I allow for the fact that the primary judge heard Mr Liondos give evidence, including his endorsement of the accuracy of his file note. However, the primary judge mentioned none of those considerations which must surely cast doubt upon the completeness of the file note. The reason – or, at least, one reason – for this may have been the way the case was run. Mr Liondos seems not to have been confronted with the skewing in the filenote in favour of the will as opposed to the power of attorney. Mr Liondos appears to have accepted that he had no clear recollection of this aspect of the conference, and gave answers based on his usual practice.
Mr Liondos gave this evidence in chief concerning the accuracy of the backdated file note:

“I have no doubts. The matter was still quite fresh in my mind and that’s a – that’s a complete summary. I stand by everything that’s in that note.”

The primary judge made critical findings, which were central to Georgette’s submissions in this Court, seemingly based upon a combination of Mr Liondos’ testimonial evidence and his file note. Those findings were recorded at the conclusion of his Honour’s summary of Mr Liondos’ evidence at [171]-[174]:

“Mr Liondos communicated with Nadia in English. He is to be accepted when he says he judged her English as sufficient for adequate communication. He indicated that he was confident she understood him, and that he understood her.

Mr Liondos said, and the Court accepts, it was clear: that Nadia did want to make a new will; what she wanted in it; and the nature and extent of her estate that she was disposing of by will. I accept his evidence that Nadia wanted to make the will before it was ‘too late’ so that she could ‘rest easy’ knowing that it had been done.
Even though Georgette was in the room, the strong picture that emerges from the evidence of Mr Liondos was of a strong-willed Nadia who did want to make a will and knew what she wanted. The Court accepts that picture as a true description of what happened.
Mr Liondos explained the will to Nadia. She understood it and accepted it corresponded with her wishes. She then signed it in front of Mr Liondos and Mr David Shad.”

Earlier, his Honour had said that Mr Liondos had a “good memory” and a “clear recollection” of Nadia’s participation in the meeting. Even so, he did not recall how he explained the will to Nadia:

“Q. Then when it came to the will is it the case that you went through the will
line by line or provision by provision and asked Nadia to confirm whether that
was what she wanted to have in her will?
A. Look, I can’t recall exactly. It could be one that I may have gone through
line by line because there wasn't that much to it really. It wouldn’t have taken
long to - to just read it out.”

I must also observe that the primary judge saw Mr Liondos in May 2017 and delivered judgment almost 17 months later in October 2018. Delay is not of itself demonstrative of error. However, delay does permit an appellate court more readily to draw an inference that judicial function has miscarried: Monie v Commonwealth of Australia (2005) 63 NSWLR 729; [2005] NSWCA 25 at [43]. The primary judge did not suggest that he relied upon his own contemporaneous notes, which may alleviate some of the problems occasioned by delay (see for example Food and Beverage Australia Ltd v Andrews [2017] VSCA 258 at [208]; King v Australian Securities and Investments Commission [2018] QCA 352 at [46]).
The idea that the backdated file note was a faithful transcription of the earlier note, and therefore could be relied upon as an accurate account of what was said, is also not supported by the evidence of Mr Liondos himself. He said that his original note “was just a quick recap of some of the salient points but it wasn’t in an elaborate form like this file note here”. He repeatedly described the file note he had destroyed as “sketchy”, which word was then picked up in the judge’s question to him:

“HIS HONOUR: It may just be simpler and quicker, Mr Allen, if I just ask this question.
Q. There’s really two questions that interest me. One is, just for clarity’s sake, the sketchy note was thrown away.
A. Yeah.
Q. I'm interested in knowing how much of what's in the more detailed note of 15 April was in the sketchy note--
A. Right.
Q. --in other words how sketchy was the sketchy note compared to what's here. I suppose that’s the first question. Are you able to--
A. Look, it was - it would have been - there wouldn’t have been more than pertinent salient points about the meeting and so on. It wasn’t - there would have been significantly less notation than this note.”

And in cross-examination he was permitted to give the following answers:

“Q. Now, the file note you disposed of, was it one file note or more than one file note or was it one page or more than one page?
A. I think it was one with some scribbled notes on a page.
Q. One page with some scribbled notes.
A. I think so, yes.
Q. You can’t say which parts of that subsequent four page note that you prepared reflected the contents of the one page scribbled note.
A. Not absolutely. Well, if I can’t speculate, I don’t have anywhere to go with it. What - I might say the important points that I considered, yes.
Q. The important points were on your scribbled note, were they?
A. They’re – they’re regurgitated here, I mean, they’re redone but - but I’m saying, yes, they--
Q. What were the important points on your scribbled note?
A. I can’t recall, but basically that Nadia was, to me, that she was clear on what she was wanted, that she appeared to be clear in the evidence that there was no incapacity, maybe that the property was her main asset, just reaffirming a couple of the things in the will, that she had no other children or that her husband had died. The note that I’ve done, probably the kind of stuff that says – I’ve lost track of my note - probably that she had a terminal illness, you know, the stuff that I might have added is where I say that the matter was rushed, some pushing from Bishoy, that might not have been in my note but it was just a recollection later on, that we went through the - that she was politely and forthright, we communicated fine, that she had made a previous will. I mean, this stuff I remembered from this note—
Q. From the note you threw away.
A. I would have made those kind of points, just quickly wrote them down.”

Mr Liondos professed to having a clear recollection of aspects of the conference. There is much in Mr Liondos’ evidence, and much in ordinary experience, to cast doubt upon that conclusion. However, the judge’s finding may reflect the stance adopted in cross-examination. As Georgette emphasised in submissions in the appeals, the cross-examination proceeded on the basis that Mr Liondos’ recollection was accurate:

“Q. Now when Nadia, at the meeting on 12 December 2014, referred to Georgette as her daughter, she did that with similar assurance and vigour, as she told you, all the other things that she said at the conference, correct?
A. Similar assurance and vigour, I’m not quite sure. It was just a - it wasn’t the way she wanted the estate distributed. She was just saying, ‘That’s my daughter,’ you know. I can’t recall her body language or tone about that specific point.
HIS HONOUR
Q. About the point of being her daughter, you mean?
A. Saying, ‘She’s my daughter,’ but that was the understanding in the conference.
THOMSON
Q. She was adamant in the conference that she wanted the estate to go to her daughter, wasn’t she?
A. Yes.”

As was rightly emphasised by Georgette’s submissions in this Court, both the findings of the primary judge and the way the trial had been conducted circumscribe the approach to be taken on appeal.
Subject to considerations based on how the trial was conducted, I would have interfered with the evaluation of Mr Liondos and his file note. This Court is in no worse position than the primary judge in assessing the documents, and aspects of the assessment of Mr Liondos by the primary judge, as recorded 17 months after he gave evidence, cannot be reconciled with incontestable facts. I particularly have in mind the conclusion to the effect that the backdated file note is an “undistorted” account of what occurred. The conclusion does not attend to how that might have occurred, or what Mr Liondos himself said as to the limitations of his earlier “sketchy” note. However, on the view I take it is not necessary to pursue that course.
On the view I take it is not necessary to consider any further the primary judge’s acceptance of Mr Liondos’ evidence as to Nadia’s knowledge and approval of the 2014 will. That arises because of the further evidence given by Mr Liondos, which was also accepted by the primary judge.
Mr Liondos gave evidence that he was “probably feeling uncomfortable” with assisting Georgette obtain title to Nadia’s house. He gave this evidence in answer to the judge:

“Q. What was making you uncomfortable?
A. Well, the fact that they were just pushing this along in this manner when the will had left them the property.”

Mr Liondos also said, referring to the dealings with LIP in March 2015, that “I didn’t draw the distinction of who I was acting for at that point in time.”
For completeness, I note that Mr David Shad, solicitor, witnessed the execution of the will. He was not present when instructions were given, nor was he aware of the contents of the will. He claimed to have a recollection that when he entered the room to witness Nadia’s signature, everyone was relaxed. He said he was in the room for between 2 and 5 minutes. His evidence does not materially assist.

The radiation oncologist, Dr Joanne Toohey

The primary judge was evidently impressed by the evidence of Dr Joanne Toohey. His Honour found her to be “an excellent witness”, with “a clear recollection of Nadia; indeed rather more than would ordinarily be expected of such a busy senior doctor”. He ascribed two main reasons for her recollection: the severity of Nadia’s cancer diagnosis and Nadia’s personality. He regarded Dr Toohey as “a highly perceptive and intuitive observer of events around her” who was “brimming with recollections and information about her patient and her condition”. He concluded:

“Her professional detachment was a welcome source of reliable independent evidence for the Court, when so much else was in conflict.”

Dr Toohey saw no signs of confusion in Nadia while she was in hospital from 1-5 December 2014. True it is that Dr Toohey doubled the dose of fentanyl, an opiate pain relieving drug. The primary judge summarised her evidence on this as follows (at [103]-[104]):

“Upon discharge, Nadia was prescribed drugs for pain relief. The principal one that came under attention was an opioid, fentanyl, which was administered to Nadia in the form of a patch that slowly released the drug over a 72 hour period. Dr Toohey, in fact, increased Nadia’s fentanyl patch prescription when she was in hospital. The next increment to the patch dosage was to double it. But that doubling occurred under conditions that medical staff and pharmacists could monitor in hospital and had been decided upon before Nadia left hospital. In addition, she was prescribed fentanyl lozenges of 200 micrograms, a very short-acting dose, to assist her in dealing with more acute episodes of pain over and above those that were being managed through the patch. Dr Toohey’s opinion is that the Fentanyl patch does not usually affect a person’s ability to make decisions.
Fentanyl can cause drowsiness but upon waking, in Dr Toohey’s opinion, it has little effect upon a person’s understanding of what is going on in their immediate environment. Another drug Nadia was given was Lyrica, a neuropathic agent used to treat nerve pain. But Dr Toohey said it acted in much the same way as Fentanyl and was not seen as a threat to Nadia’s cognitive ability.”

The primary judge accepted Dr Toohey’s evidence that the dosage of drugs for Nadia had been assessed during her stay in hospital, and rejected the appellants’ case that the drugs were still being “road tested” after her discharge.
It turns out that Nadia’s cancer had metastasised to her brain. The brain metastases were evident on a scan on 8 January 2015, and Dr Toohey accepted that they had probably been present for some time. She accepted that the brain metastases could cause changes to personality and memory, but would not necessarily do so.
The primary judge said at [107]:

“[U]ltimately, Dr Toohey offered a holistic view, which the Court accepts as the best reliable evidence on this subject, that the best way to determine whether brain metastases are having any affect on a person’s cognitive functions is to observe how the person is behaving. And Dr Toohey saw no cognitive impairment in Nadia.”

His Honour’s conclusion, which was not sought to be challenged on appeal, was at [111]:

“In summary, I accept the overall effect of Dr Toohey’s evidence that, until 5 December, Nadia was showing no mental confusion or memory problems, she was alert and orientated at all times and indeed was behaving like something of a matriarch and could, in her interactions with family members and professional advisers, be quite stubborn. A number of these same characteristics were observed by other witnesses and indeed emerged again when Mr Liondos saw Nadia.”

The general practitioner, Dr Waseem Guirguis

The other important medical witness was Dr Guirguis. The primary judge regarded his observations of 21 November and 22 December 2014 as important. Of them, the primary judge found that “Nadia did not complain about memory loss or other impairment of her cognitive ability at either of those closest consultations before and after 12 December”: at [121]. Dr Guirguis’ notes record entries for Nadia on 8 and 19 December 2014. However, the primary judge found, in accordance with Dr Guirguis’ recollection, that Nadia did not attend personally on either day, but instead Bishoy came in on her behalf. On 8 December, his notes record “rpt all scripts given”.
It seems to me that little weight can be given to a statement by a general practitioner that his patient did not complain about cognitive ability. To be fair, I do not understand the primary judge to have placed much weight upon that part of the doctor’s evidence.
What is more significant to my mind is the fact that Nadia did not personally attend her doctor on 8 December 2014, 4 days before the will was executed, when he gave a repeat of all scripts, including the painkillers. And on 22 December 2014, Dr Guirguis’ notes contain “HV” reflecting the fact that he visited Nadia at home. She plainly was a patient who saw her doctor very regularly in 2014. His practice (on Homebush Road, Strathfield) was a very short walk from her home – less than 200 metres. The facts that (a) Nadia did not attend her own doctor on 8 December, but sent Bishoy to obtain prescription medicines, and (b) the doctor visited her at home on 22 December, suggest that she was very unwell. That does not necessarily mean that she was suffering from any cognitive impairment at those times.
The primary judge also stated that Dr Guirguis was “the doctor who made observations of Nadia closest in time to her making the will”: at [121]. That is not correct. In fact, Dr Annabel Goodwin, medical oncologist, saw her on 19 December 2014. Her letter of that day is as follows:

“Nadia returned to see me at Strathfield to review her progress.
Since her discharge from hospital, she still has residual weakness affecting the right hand side of her body. Today, she attended in a wheelchair. She has been linked to the palliative care services who are in frequent contact and she is adamant not to have any other additional services at home. She has family support with her 24 hours and no new problems have arisen since her discharge.
Today, I discussed with Nadia that her disease has progressed with the use of herceptin and I have not recommended continuing this any longer. She is spending the majority of day resting in bed now due to lethargy and I have not recommended not [sic] any further chemotherapy as it is likely to worsen her lethargy in addition to causing additional side effects such as nausea and alopecia.
Nadia was happy with this approach and we discussed the option of continuing the dexamethasone at 2mg per day to perhaps improve her lethargy in reducing any peritumoural swelling. I have not recommended repeating CT scans unless there is a clinical indication that might affect her treatment. Currently her pain is well controlled and would like to see her again in a couple of weeks’ time to review her progress. She is aware she can contact me sooner if any further problems arise. We also discussed the options of palliative care admission at Concord if her health deteriorates but her intention is to stay at home as long as possible.”

Reasons of the primary judge

The primary judge identified the applicable legal principles at [297]-[308]. He dealt with capacity at [297]-[303] and the duties of a solicitor at [304]-[305]. At [306] his Honour reproduced 12 paragraphs of Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [43]-[54], including the passage directed to the fact that what is sufficient to dispel the doubt or suspicion varies with the circumstances of the case (at [306]). Finally at [307] his Honour referred to mistaken beliefs and delusions.
His Honour then turned immediately to accept at [309] that:

“The plaintiffs have made out a case that suspicious circumstances attended the making of Nadia’s will of 12 December 2014. Although the will appears rational on its face and the Court accepts that it has been proved to be duly executed and there is therefore a presumption that Nadia was mentally competent, circumstances have been identified which raise a doubt as to the existence of testamentary capacity. In the Court’s view the evidential burden has shifted in this case to the defendant/cross-claimant, Georgette.”

His Honour also noted, at [313], that the plaintiffs had put in issue whether Nadia knew and approved the will. However, his Honour stated, at [312] and [314] that Georgette’s case had rebutted the doubts. His Honour then explained why he had reached those conclusions. Given the length of the judgment, the dispositive reasoning on the main issue is quite concise, and may be reproduced in full:

“314.   But Georgette’s case has rebutted the doubts that have been raised in my view. Here, Nadia did give instructions for the will. Although they were conveyed through Bishoy, which itself raised a doubt as to whether he or Georgette were their author, the instructions were clearly adopted by Nadia in the meeting with Mr Liondos, a matter about which he did not make any mistake in my view. Questions have been raised about the change of instruction about the gift over but the will is consistent with what is in Mr Liondos’ notes of what passed at the meeting.
315.   But when vigilance and careful scrutiny are applied many other circumstances show that Nadia had testamentary capacity and knew and approved the contents of the will.
316.   Nadia was informed about what was in the will and that Georgette was being described in it as her daughter. She knew and approved this. She did so, in my view, because she regarded that as a practical description of the relationship. She had acquiesced in such descriptions before as Mr Taylor, Dr Toohey and others have described. It ultimately was not that remarkable that she did so in front of Mr Liondos. Her doing so was not inherently suspicious because, in my view, she was comfortable with the description.
317.   Although Georgette did not go out of her way to disabuse Mr Liondos about the true relationship, in my view, Nadia was quite comfortable to have Georgette described that way. And because of Nadia’s assent to that description, the will, in substance, becomes rational. This testator was giving her property to someone that she regarded as a person in the role of a daughter.
318.   Even discounting any evidence from Bishoy and Georgette, there is nothing in what Mr Liondos says that gives the slightest basis for believing that Nadia was effected [sic] by the drugs that she was on or that she had no appreciation of the kind of document she was signing. Even the fact that Nadia had described other people in hospital documents as her daughter do not detract from this conclusion in my view.
319.   Even the Court’s findings that Mr Liondos would have taken a different path had he been aware of the true facts does not displace the Court’s confidence in the will. True at one level it is troubling that the Coptic Orthodox Church and Raghib’s nephews are left out of the will entirely. But in my view this is not evidence of lack of rationality or Nadia’s lack of comprehension. Mr Liondos drew the potential for other claims on her bounty to Nadia’s attention. He drew prior wills to her attention and there is some evidence that Nadia through personal gifts was trying to provide something for her two nephews in Australia, who she had seen recently and could not, in my view, have forgotten given that her memory was intact.”

The primary judge then addressed, concisely, why there was no fraud (in [322], why Nadia was not suffering from a delusion (in [323]) and why this was not a case of undue influence (at [324]-[326]). I shall deal with how his Honour dealt with the claims under the Succession Act when dealing with the balance of Youssef’s appeal.

Did Georgette succeed in establishing “the righteousness of the transaction”? She bore the onus to adduce “evidence calculated to exclude all reasonable doubt”, to use Lord Reid’s formulation. Plainly this is a case where the evidence must be considered with “particular vigilance”. I am conscious of Mr Liondos’ evidence as to the will being explained to Nadia. Contrary to the main thrust of Georgette’s submissions in this Court, Mr Liondos’ evidence is not sufficient. Even if it had not been the product of lies, it would not necessarily have been sufficient. “Proof that the will was read by or read to the testator before its execution may not be sufficient; nor will evidence that the will was explained to the testator”: Veall v Veall at [176]. Rather, for these purposes one looks at the evidence as a whole; as Gleeson CJ said in Re Griffith; Easter v Griffith (1995) 217 ALR 284 at 289-290, whether probate should be granted is determined on all the evidence.
The evidence of Georgette and Bishoy is not available to discharge Georgette’s onus. That leaves what was said on the face of the will about Georgette being Nadia’s daughter (on which the primary judge relied at [316]-[317]), the testimonial evidence of Ms Candotti, Mr Liondos, Dr Toohey and Dr Guirguis, and the documentary evidence as to Nadia’s mental state. The other evidence is peripheral.
The primary judge placed weight on the conclusion that Nadia was content for the will to refer to Georgette as her daughter. There was evidence at trial from sources other than Georgette and Bishoy that Nadia described Georgette as her daughter, which the primary judge accepted (see for example at [51], the evidence of Mr Soryal). However, that does not assist on the critical point, namely, the extent to which Mr Liondos’ evidence can sustain the 2014 will. If Mr Liondos had known that Georgette was not Nadia’s daughter, and had confirmed that she was nonetheless content with that description in her will, that would be one thing. But in circumstances where Georgette’s and Bishoy’s evidence was unreliable, and Mr Liondos had been lied to, no comfort can be obtained from the fact that the will described Georgette as Nadia’s daughter. The erroneous descriptions on the face of the will, which are known to have been a product of lies to the solicitor by Bishoy, can hardly be used to dispel the suspicion surrounding its execution.
Georgette placed understandable weight in her submissions in this Court on the proposition that it did not matter that Mr Liondos had been misled, because of his positive evidence, accepted by the primary judge, that Nadia knew and approved the will he had drafted. Thus it was submitted orally:

“One might imagine some cases where it could be pertinent but not in this case and that is because the fact was that Mr Liondos was as much misled by the testator herself as he was by anything said by Bishoy. Given the other evidence of her very clear knowledge and approval it simply falls away.”

But even taking the file note and Mr Liondos’ testimonial evidence at their highest, they are his conclusions about what occurred. Mr Liondos’ conclusions about the reality of Nadia’s understanding and assent were based on the lies told to him by Bishoy about Georgette being Nadia’s daughter. It follows that his evidence has much less weight than was given to it by the primary judge. His own evidence was that he would have made different inquiries and assessed the position differently had he known the truth – that this dying testatrix was not, contrary to what he had been told, leaving all of her estate to her only daughter. His evidence was that he did not distinguish between Georgette, Bishoy and Nadia as to who was his client.
Test the point this way. Those propounding the will lied to the solicitor who drafted and witnessed it, and yet seek to rely upon his opinion at the time that the will reflected Nadia’s real intention and true will. That cannot be sufficient. The solicitor gave evidence that he would have undertaken different inquiries had he appreciated that this was not the will of a dying woman leaving the entirety of her estate to her only daughter, but instead was leaving the entirety of her estate to an unrelated friend. His evidence is inherently plausible. The lies told to Mr Liondos by Bishoy prevented those inquiries from taking place. The lies prevented Mr Liondos from investigating why Nadia no longer wished to leave part of her property to the church, with the balance to her deceased husband’s nephews. The lies prevented Mr Liondos from being able to form an opinion that notwithstanding the errors on the face of the will, Nadia was freely leaving all of her property to her unrelated friend, and thereby assist in dispelling the suspicion associated with the execution of the will.
Santamaria JA has helpfully collected and considered decisions where suspicious circumstances have not been dispelled even where a solicitor has not been misled: Veall v Veall at [187]-[191]. The present case is a fortiori.
It may be accepted that the evidence of Drs Toohey and Guirguis assists Georgette to discharge the onus. However, it is of less weight than the trial judge accorded it, for reasons already elaborated, which may be summarised as follows:

Dr Guirguis was not the doctor who saw Nadia closest to the execution of the will, contrary to what the primary judge said at [121]. That was Dr Goodwin.

The trial judge failed to have regard to the facts that Nadia did not attend upon her own general practitioner on 8 December, and required a house visit on 22 December. This suggests a deterioration in her condition. So too does Dr Goodwin’s report of 19 December, which described Nadia as wheelchair bound, spending most of each day in bed due to lethargy, and whose cancer was no longer being treated with herceptin and chemotherapy.

Dr Toohey last saw Nadia on 5 December, after she had been cared for in hospital for a fortnight. Nadia was dying. It was expected that her condition would deteriorate, especially after being discharged from hospital into her own home, where (without any criticism to those who cared for her) the care was less continuous and less professional. It was accepted that Nadia had metastases in her brain which only became obvious on a scan the following month, and it is possible that they affected her cognition. Dr Toohey’s evidence would have had greater force had she seen Nadia after 12 December 2014, rather than a week beforehand.

Further, there is the evidence of Ms Candotti, both as to Nadia’s intentions and her cognitive capacity, which detracts from the opinions of Drs Toohey and Guirguis.

For those reasons, I have concluded that the main ground of these appeals is made out. Notwithstanding the advantages enjoyed by the primary judge, I am comfortably satisfied that Georgette has not discharged the onus borne by her so as to permit the 2014 will to be admitted to probate.
The foregoing resolves the appeals on the basis of the principles of law which were applied by the primary judge and were accepted by the parties. However, before turning to the remaining issues, I note the following matters, none of which were argued, but which suggest that there are some unsatisfactory aspects of this area of the law.

A preferred approach

First, I respectfully doubt the utility in adhering to the language of testamentary capacity as stated in Banks v Goodfellow (1870) LR 5 QB 549 at 565 as if that were a legislative text: cf Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [6] and [133]-[134].
Secondly, it is ironic that while reliance continues to be placed on nineteenth century English decisions such as Banks v Goodfellow and Barry v Butlin, the law in England and Wales appears to have moved on in cases such as the present. In Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430, Lord Neuberger MR approved a single stage approach, applicable to cases where as here there has been a lengthy trial on all issues. His Lordship said at [21]-[22]:

“The Judge approached the issue of knowledge and approval on a two stage basis. He first asked whether Dr Gill had established sufficient facts to ‘excite the suspicion of the court’, which really amounts to establishing a prima facie case that Mrs Gill did not in fact know of and approve the contents of the Will. Secondly, having held that Dr Gill had excited the suspicion of the court, he then turned to consider whether or not those suspicions were allayed by the RSPCA, who were of course supporting the Will. This approach accords with Parke B’s analysis in Butlin ... and it is reflected in the approach in a number of other cases.
Where a judge has heard evidence of fact and expert opinion over a period of many days relating to the character and state of mind and likely desires of the testatrix and the circumstances in which the will was drafted and executed, and other relevant matters, the value of such a two-stage approach to deciding the issue of the testatrix’s knowledge and approval appears to me to be questionable. In my view, the approach which it would, at least generally, be better to adopt is that summarised by Sachs LJ in In re Crerar (unreported) but see (1956) 106 LJ 694, 695, cited and followed by Latey J in In re Morris [1971] P 62, 78, namely, that the court should:
‘consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, it has to come to a conclusion whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document which is put forward as a valid testamentary disposition. The fact that the testatrix read the document, and the fact that she executed it, must be given the full weight apposite in the circumstances, but in law those facts are not conclusive, nor do they raise a presumption.’”

This has been reiterated in Greaves v Stolkin [2013] EWCA 1140; [2013] WTLR 1793 at [68]-[73]; and Simon v Byford [2014] EWCA Civ 280; [2014] WTLR 1097 at [47].
I respectfully agree that it is artificial and has the potential to lead to error for a judge who has heard the entirety of the evidence in a case, where the so-called suspicious circumstances “rule” is in play and where undue influence has been pleaded, to proceed on the basis of onus and presumptions. The “presumption” involved when a person who is to take under a will is involved in its preparation is a standardised inference which arises where “common experience is that the existence of one fact means that another fact also exists”, as explained in a similar context in Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49.
I respectfully agree with what Justice Lindsay has written, extra-judicially, on this point:

“Although conventional, this style of language does not sit comfortably with the way a modern probate suit is heard by a judge sitting alone, without a jury, receiving almost all the evidence on both sides of a question by affidavits, upon which deponents are selectively cross examined. In the modern form of ‘judge alone (case managed) trial’ it is generally artificial, at least at a final hearing, to analyse a case in terms of a ‘prima facie case’ or dispositive ‘presumptions’. By the time a judge is called upon to determine a case, it generally must be determined on all the evidence then before the Court, drawing whatever inferences may be available from that evidence.
What is perceived to be ‘law’ upon an exercise of probate jurisdiction is often no more than a reflection of ingrained attitudes of mind about case management based upon established practice. One needs to approach talk of ‘presumptions’ and shifting ‘burdens of proof’ with respect, but critically. When the language of the law does not sit comfortably with actual practice, a re-assessment of law, practice and their interaction may be called for in order to bring them into line. This might be done relatively easily with an appreciation that a ‘presumption’ is not, in the current context, so much a ‘legal rule’ as a common ‘inference’ drawn from particular types of evidence. It is, after all, a ‘rebuttable presumption of fact’ even if hedged about by formalistic reasoning”: G Lindsay, “The ‘Why’ and ‘What’ of ‘Suspicious Circumstances’ in Probate Litigation”, paper delivered to Law Society of South Australia Succession Law Conference, Adelaide, 16 November 2018.

The approach in Gill v Woodall is not without critics, notably B Sloan, “Burdens, Presumptions and Confusion in the Law on Want of Knowledge and Approval” [2017] Conveyancer & Property Lawyer 440. However, adopting it would also address some rather artificial rules concerning “suspicious circumstances”.
Just as “undue influence” bears an unexpected meaning in probate – of which Powell J almost thirty years ago said in Winter v Crichton (1991) 23 NSWLR 116 at 121 that there was considerable misapprehension on the part of the profession – so too “suspicious circumstances” is a term of art in this area. As explained by J Martyn and N Caddick, Williams, Mortimer and Sunnucks – Executors, Administrators and Probate (Sweet & Maxwell, 2008, 21st ed) at [10-38], Lindley LJ’s broad statement in Tyrrell v Painton [1894] P 151 at 157 that the rule in Barry v Butlin “extends to all cases in which circumstances exist which excite the suspicion of the Court” was sought to be narrowed in Re R Deceased [1951] P 10 to circumstances “attending, or at least relevant to, the preparation and execution of the will”. That seems to have been a curial response to a perceived misuse of the rules of pleading.
Consistently with this, there is also a deal of Australian authority to the effect that the limits are narrower than stated by Lindley LJ. However, precisely how much narrower seems to be uncertain. Without purporting to be exhaustive:

in Thompson v Bella-Lewis [1997] 1 Qd R 429 at 451, McPherson JA (dissenting in the result) distinguished circumstances “related to the preparation or execution of the will, or its intrinsic terms” as opposed to “events happening after the testator’s death”;

in Robertson v Smith [1998] 4 VR 165 at 174 it was said that the later payment of life assurance premiums by one of the propounders of the will (who was later convicted of murdering the testator), was “unlikely” to fall within the doctrine;

in McKinnon v Voight [1998] 3 VR 543 at 563, Ormiston JA, dealing with delay in disclosing a will, framed the test as being whether the failure of the propounders to disclose the will was “otherwise connected with some other suspicious circumstance relating to its execution”, and

there is also support for a rule which excludes from the scope of “suspicious circumstances” cases which directly raise fraud or undue influence; it is said that such an allegation cannot be made “under cover of a plea of want of knowledge and approval”: Low v Guthrie [1909] AC 278 at 281-282.

The point of the foregoing is only to observe that such limits as there are can scarcely be regarded as settled. There is a deal of criticism of the “suspicious circumstances” rules in the academic literature: see (without being exhaustive) R Kerridge, “Wills made in Suspicious Circumstances: The Problem of the Vulnerable Testator” (2000) 59 Cambridge Law Journal 310; P Ridge, “Equitable Undue Influence and Wills” (2004) 120 Law Quarterly Review 617 at 622-626 and R Kerridge, “Undue influence and testamentary dispositions: a response” [2012] Conveyancer 129. A further reason telling against the operation of presumptions and shifting onuses in this area is that there may be dispute even as to when the presumption applies.
None of the foregoing was argued in these appeals, and I express no concluded views on any of it. However, if I were to approach the task of determining whether on all of the evidence the propounder of Nadia’s 2014 will had demonstrated that it truly represented her testamentary intentions, I would conclude that she had not. Applying the vigilant and careful scrutiny appropriate given the way in which this will came to be prepared and executed, Georgette has not satisfied me that it should be admitted to probate.

Failure to make provision for Youssef

Given the appellants’ success on the main ground of the appeals, this ground does not arise. I will address it, but only briefly, because it does not affect the orders I propose.

Reasons of the primary judge

The primary judge dismissed Youssef’s claim in the alternative for provision under the Succession Act at [340]-[362]. His Honour dealt with the claims by Youssef and Magdy together, but in light of Magdy’s appeal not extending to this aspect of the judgment, I shall refer only to the findings insofar as they apply to Youssef.
The primary judge found that Youssef had been a member of Nadia’s household, but considered that he had not been shown to have been a dependant for the purposes of s 57(e)(i): at [348]-[351]. There were said to be three reasons for this. The first was that Youssef could not readily establish that he was dependent upon Nadia as opposed to Raghib. This was said to depend upon an analysis of Nadia’s and Raghib’s “relative financial resources in 2012, “which has not been done and could not be done at this stage”. The second was that “it is difficult to make an adequate judgment about dependency for periods as little as ... five to six months”: at [350]. The third was that bringing Youssef and his family out from Egypt did not qualify as dependency.
Secondly, the primary judge also found that there were no factors warranting the making of an application by Youssef within the meaning of s 59(1)(b) of the Succession Act: at [356]-[360]. His Honour gave three reasons for this conclusion: at [357]-[359]:

“First, although the Court prefers their account of the care and attention they and their wives gave to Nadia to the accounts of Georgette and Bishoy, Nadia gave much back to them during her lifetime, from which they benefitted immensely. She made concentrated efforts to have them migrate from Egypt when Raghib was ill. She and Raghib each provided them with accommodation for short periods in Sydney, which, in my view, was the substantial equal of any benefits their care conferred on Raghib and Nadia. And Nadia and Raghib helped them launch new lives in Australia.
Second, Georgette was instrumental in driving both Youssef and Magdy away from Raghib’s and Nadia’s home. It was not Youssef and Magdy’s fault that their direct household relationships with Nadia did not continue for longer. But the Court must assess the facts as they are and those periods of living in the same household with Raghib and Nadia were very brief.
Third, Youssef and Magdy were diligent and affectionate nephews, who tried to offer their assistance as much as possible to Nadia. And they did attend upon her at a number of hospitals and at her home in her last months of life. But that is just what would be expected of nephews in their position. In my view, none of that conduct satisfies the legislative requirement that there be factors warranting an award in their favour.”

Separately from the foregoing, the third factor enumerated by the judge, at [360]-[362], was the timing of the application. His Honour noted, correctly, that the application was only a few months out of time, but declined to extend time because the applications were so weak, for the reasons already stated. On a fair reading of those paragraphs, the timing was not a separate reason for rejecting the application, but a consequence of his Honour’s findings on dependency and factors warranting.

Consideration

Although the primary judge did not say so, dependency had in fact been conceded by Georgette in her written submissions. It is not sound to conclude that Youssef had not analysed the financial position in circumstances where the point was not in issue. In any event, as was emphasised on appeal, Youssef was living in the home jointly owned by Nadia and Raghib and was dependent upon both of them for accommodation. It is sufficient for Youssef to show that he was “wholly or partly dependent” upon Nadia.

Secondly, I see no reason why living in a household for five to six months gives rise to any difficulty in assessing dependency. Dependency is not to be given any restrictive meaning: Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 at [70]-[84]. I see no reason to preclude a finding that Youssef was partly dependent upon Nadia, in the five to six months in early 2008 after he had left his job in Egypt and migrated to Australia, with poor English skills, while he and his wife lived with her. Further, the primary judge found that Georgette was instrumental in driving both nephews away from Nadia’s home. Bearing all those matters in mind, Georgette’s concession as to dependency should not have been rejected by the primary judge.
Thirdly, the primary judge concluded at [362] as follows:

“the Court had evidence of Magdy and Youssef’s financial positions and that of the other three overseas nephews mentioned in the 2001 will. But in light of the conclusion the Court has reached in relation to the eligible person factors and time issues, it is not necessary to further explore that evidentiary material in these reasons. To do so would unnecessarily lengthen what is already a substantial judgment.”

This, with respect, erroneously bifurcates the reasoning process. Without making findings on Youssef’s financial position and need, it was not possible to conclude that there were no factors warranting the making of the application. In the absence of further findings of fact, it is not possible to advance this ground any further.

Orders

For those reasons, I propose that both appeals should be allowed, the grant of probate revoked, and that the 2001 will be admitted to probate. Georgette’s cross-claim seeking probate of the 2014 will must be dismissed.
This Court’s orders must also address the fact that Georgette is now the registered proprietor of the South Strathfield property. Georgette brought no challenge to the finding that the exercise of Nadia’s power of attorney by her to transfer the property to herself for one dollar could not stand. It follows that she must reconvey it to the estate. No submissions were made as to the precise form of orders by which the title presently registered in the name of Georgette and subject to various interlocutory orders is to be restored to the estate. That may not be free from difficulty. After Georgette succeeded in obtaining legal title to the South Strathfield property, she attempted to sell the property to a third party, notwithstanding the appellants’ challenge to the 2014 will. This seems to have been prevented by a caveat. Georgette subsequently caused a lapsing notice to issue, leading to an injunction being ordered on 26 July 2017. In September 2017, there appears to have been a further attempt by Georgette to sell, after much of the trial had been heard, leading to what was regarded as an application to vary the injunction, which was refused: Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 2) [2017] NSWSC 1175. The orders made on 27 November 2018 continue the existing injunction pending appeal.
Given the somewhat fraught history of this matter, it is best to leave in place the existing regime and permit the parties to supply agreed orders, or in the absence of agreement, the orders for which they contend, to achieve that.
As presently advised, those orders will also dismiss the claims made under the Succession Act (Magdy did not challenge the dismissal of his claim by the primary judge and I understood Youssef’s claim to have been made by way of fallback against the possibility that the appellants failed on the probate issue).
As presently advised, I see no reason for the costs of each appeal not to follow the event. However, a subsequent costs judgment by the primary judge suggests there may be a basis for a special order: Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 4) [2018] NSWSC 1788.
The discretion as to costs at first instance must be re-exercised. There has been a long trial, and settlement offers, and for the reasons already given the parties are to be heard separately on substantive relief. I think it is sensible to make orders permitting the parties to be heard in support of such orders as to costs at first instance as they may see fit to propound. Against the possibility that there are disputed questions of fact, this seems to be an appropriate case for one Judge of Appeal to be empowered to deal with any disputes as to the form of orders, and the directions I propose will accommodate that.
I propose these orders:

In each of proceedings 2018/328334 and 2018/335641:

1. Appeal allowed.

2. Set aside orders 1 (being the grant of probate of the will of the late Nadia Mekhail dated 12 December 2014 to Ms Georgette Hana), 2 and 6 made on 5 October 2018 and the costs orders made on 27 November 2018.

3. In lieu thereof, (a) dismiss the cross-claim, (b) grant probate in solemn form of the will dated 27 March 2001 to the New South Wales Trustee & Guardian and (c) remit the matter to the Probate Registrar to complete the grant.

4. Direct the parties to provide within 28 days (a) agreed short minutes of order or, in default of agreement, (b) short minutes of order for which they contend and short submissions in support of those orders, dealing with the title to the South Strathfield property and costs at first instance and any other orders they seek to propound.

5. The respondent to pay the appellant’s costs of the appeal.

6. Any dispute as to the final orders to be made to be determined by a single Judge of Appeal.

EMMETT AJA: The principal question in these proceedings is which of two competing wills of the late Nadia Mekhail (the Deceased) should be admitted to probate. On 5 October 2018, a judge of the Equity Division (the primary judge) granted probate of a will dated 12 December 2014 to the respondent, Ms Georgette Hana, and dismissed cross claims by the appellants, Magdy Mekhail and Youssef Mekail, that probate of a will dated 27 March 2001 be granted to New South Wales Trustee & Guardian. The primary judge also dismissed an application by the appellants for family provision orders under the Succession Act 2006 (NSW). A further question before his Honour concerned a transfer to Ms Hana of a property by the Deceased shortly before her death. As the appellants’ probate case had not succeeded, the primary judge found little reason to set aside the transfer. Nevertheless, his Honour made it clear that, in his view, there could be no conceivable argument to justify the transfer and, if required, the transaction would be set aside.
The appellants then appealed to this Court from the orders made by the primary judge. I have had the advantage of reading in draft form the proposed reasons of Leeming JA for upholding the appeal. I agree with the orders proposed by his Honour for the reasons proposed. In the absence of argument, I prefer not to express a view about the preferred approach suggested by his Honour.

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Annexure “A” [pdf of the 2014 will] (613 KB, pdf)

Decision last updated: 14 August 2019

Medium Neutral Citation:	Mekhail v Hana; Mekail v Hana [2019] NSWCA 197
Hearing dates:	18 July 2019
Decision date:	14 August 2019
Before:	Basten JA at [1]; Leeming JA at [2]; Emmett AJA at [190]
Decision:	In each of proceedings 2018/328334 and 2018/335641: 1. Appeal allowed. 2. Set aside orders 1 (being the grant of probate of the will of the late Nadia Mekhail dated 12 December 2014 to Ms Georgette Hana), 2 and 6 made on 5 October 2018 and the costs orders made on 27 November 2018. 3. In lieu thereof, (a) dismiss the cross-claim, (b) grant probate in solemn form of the will dated 27 March 2001 to the New South Wales Trustee & Guardian and (c) remit the matter to the Probate Registrar to complete the grant. 4. Direct the parties to provide within 28 days (a) agreed short minutes of order or, in default of agreement, (b) short minutes of order for which they contend and short submissions in support of those orders, dealing with the title to the South Strathfield property and costs at first instance and any other orders they seek to propound. 5. The respondent to pay the appellant’s costs of the appeal. 6. Any dispute as to the final orders to be made to be determined by a single Judge of Appeal.
Catchwords:	PROBATE – contested grant – suspicious circumstances – whether proponent of will had discharged onus – will left whole estate to propounder – solicitor who explained and witnessed will believed propounder was testatrix's only daughter and next of kin – solicitor's erroneous beliefs caused by lies by those benefitting under will – inability to rely on solicitor's evidence to discharge onus – requirement to consider entirety of suspicious circumstances – appeal allowed and earlier will admitted to probate – consideration of merits of approach in Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430 SUCCESSION – application for provision – dependency – factors warranting – whether primary judge erred in failing to find nephew dependent on deceased – dependency conceded at trial – whether primary judge erred in failing to find primary facts on financial position and need
Legislation Cited:	Evidence Act 1995 (Cth), s 128 Succession Act 2006 (NSW), ss 6, 57, 59
Cases Cited:	Atter v Atkinson (1869) LR 1 P & D 665 Banks v Goodfellow (1870) LR 5 QB 549 Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089 Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66 Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 Church v Mason [2013] NSWCA 481; 12 ASTLR 190 Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12 DJ Singh v DH Singh [2018] NSWCA 30 Food and Beverage Australia Ltd v Andrews [2017] VSCA 258 Fuller v Strum [2002] 1 WLR 1097; [2001] EWCA Civ 1879 Fulton v Andrew (1875) LR 7 HL 448 Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430 Greaves v Stolkin [2013] EWCA 1140; [2013] WTLR 1793 In the Estate of Fuld (decd) [1968] P 675 King v Australian Securities and Investments Commission [2018] QCA 352 Low v Guthrie [1909] AC 278 Marley v Rawlings [2015] AC 129; [2014] UKSC 2 McKinnon v Voight [1998] 3 VR 543 Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 2) [2017] NSWSC 1175 Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 3) [2018] NSWSC 1452 Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 4) [2018] NSWSC 1788 Monie v Commonwealth of Australia (2005) 63 NSWLR 729; [2005] NSWCA 25 Re Griffith; Easter v Griffith (1995) 217 ALR 284 Robertson v Smith [1998] 4 VR 165 Simon v Byford [2014] EWCA Civ 280; [2014] WTLR 1097 Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 Thompson v Bella-Lewis [1997] 1 Qd R 429 Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136; 14 BPR 26,867 Tyrrell v Painton [1894] P 151 Vaughan v Vaughan [2002] EWHC 699 (Ch); [2005] WTLR 401 Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 Winter v Crichton (1991) 23 NSWLR 116 Wintle v Nye [1959] 1 WLR 284
Texts Cited:	J Martyn and N Caddick, Williams, Mortimer and Sunnucks – Executors, Administrators and Probate (Sweet & Maxwell, 2008, 21st ed) R Kerridge, “Undue influence and testamentary dispositions: a response” [2012] Conveyancer 129 R Kerridge, “Wills made in Suspicious Circumstances: The Problem of the Vulnerable Testator” (2000) 59 Cambridge Law Journal 310 G Lindsay, “The ‘Why’ and ‘What’ of ‘Suspicious Circumstances’ in Probate Litigation”, paper delivered to Law Society of South Australia Succession Law Conference, Adelaide, 16 November 2018 P Ridge, “Equitable Undue Influence and Wills” (2004) 120 Law Quarterly Review 617 B Sloan, “Burdens, Presumptions and Confusion in the Law on Want of Knowledge and Approval” [2017] Conveyancer & Property Lawyer 440
Category:	Principal judgment
Parties:	In 2018/335641: Magdy Mekhail (Appellant) Georgette Hana (Respondent) In 2018/328334: Youssef Shoukry Wardakhan Mekail (Appellant) Georgette Hana (Respondent)
Representation:	Counsel: J E Thomson with J E Brown (Appellant in 2018/335641) P R Glissan with C Street (Appellant in 2018/328334) C Birch SC with D Allen (Respondent in both appeals) Solicitors: P K Simpson & Co (Appellant in 2018/335641) Anderson Lawyers (Respondent in both appeals)
File Number(s):	2018/335641; 2018/328334
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Citation: [2018] NSWSC 1452 Date of Decision: 05 October 2018 Before: Slattery J File Number(s): 2015/310332; 2015/186751