Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 3)

[2018] NSWSC 1452

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 3) [2018] NSWSC 1452

Hearing dates:

11, 20, 27 April, 10, 15 – 19, 22 – 26 May, 16 June, 26 July, 4 – 5 September 2017

Date of orders:

05 October 2018

Decision date:

05 October 2018

Jurisdiction:

Equity

Before:

Slattery J

Decision:

Finding that the testator had testamentary capacity at the time of making the 12 December 2014 will and did not suffer from delusions and was not coerced into making the will. Probate granted of the testators will of 12 December 2014. Family provision claims dismissed. Costs issues reserved for further argument.

Catchwords:

SUCCESSION – testamentary capacity – testator makes a will in December 2014 – will witnessed by two solicitors, one of whom took instructions for the drafting of the will – the principal beneficiary of the will was present throughout the taking of some instructions and the execution of the will – the testator has no children – incorrect representations made to the solicitor that the principal beneficiary was the daughter of the testator and that the alternative beneficiary under the will, the principal beneficiary’s husband, was the son-in-law of the testator – testator had nephews – nephews benefitted under testator’s previous 2001 will – nephews not mentioned in discussions with solicitor before December 2014 will – whether the testator knew and approved the contents of the December 2014 will – whether the testator appreciated the extent of her estate and the claims upon her bounty in December 2014 – whether the testator suffered from delusions that the principal beneficiary was her daughter and the alternative beneficiary was her son-in-law – shortly after the December 2014 will was made the principal beneficiary removed the testator away from friends and relatives – whether the principal beneficiary exercised undue influence over the testator at the time of the making of the will.

  FAMILY PROVISION – whether the plaintiffs were left without adequate provision from the estate of the testator for their proper maintenance, education or advancement in life – whether the plaintiffs are eligible persons able to claim for provision from the estate because they lived with the testator and were dependent upon her – what order for provision out of the estate should be made in the circumstances, if any.

Legislation Cited:

Evidence Act 1995, s 140
Real Property Act 1900
Powers of Attorney Act 2003, ss 11(2), 12(2), 19(2)
Succession Act 2006, ss 57, 59

Cases Cited:

Banks v Goodfellow (1870) LR 5 QB 549 at 565
Bailey v Bailey (1924) 34 CLR 558
Bull v Fulton (1942) 66 CLR 295
Carr v Homersham [2018] NSWCA 65
Churton v Christian (1988) 13 NSWLR 241
Drury v Smith [2012] NSWSC 1067
Evans v Levy [2011] NSWCA 125
Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail [2017] NSWSC 575
Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 2) [2017] NSWSC 1175
Pates v Craig; The Estate of Cole (28 August, 1995, unreported)
Petrohilos v Hunter (1991) 25 NSWLR 343
Re Fulop (deceased) (1987) 8 NSWLR 679
Re Estate of Griffith: Easter v Griffith (1995) 217 ALR 284
Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Romano v Romano & Anor [2004] NSWCA 37
Romascu v Manolache [2011] NSWSC 1362
Singer v Berghouse (1994) 181 CLR 201
Timbury v Coffee (1941) 66 CLR 227
Tobin & Anor v Ezekiel & Anor (2012) 83 NSWLR 757
Verzar v Verzar [2014] NSWCA 45
Williams v Legg (1993) 29 NSWLR 687
Worth v Casohm (1952) 86 CLR 439
Zang v Middleton; The estate of Keith Joseph Cook, late of Balgowlah [2011] NSWSC 881

Category:

Principal judgment

Parties:

In 2015/186751
Plaintiff: Magdy Mekhail
Defendant: Georgette Hana

In 2015/310332
Plaintiff: Youssef Shoukry Wardakhan Mekail
Defendant: Georgette Hana

Representation:

Counsel:

 

In 2015/186751
Plaintiff: J. Thomson; M. Hall
Defendant: D. Allen

 

In 2015/310332
Plaintiff: Youssef Mekail in person
Defendant: D. Allen

 

Solicitors:

 

In 2015/186751
Plaintiff: Australy Milo, P.K. Simpson & Co
Defendant: Richard Mitry, Mitry Lawyers (ceased to act on 8 August 2017);
Dante Aspite, Anderson Lawyers (notice of appearance filed 2 October 2018)

    In 2015/310332
Plaintiff: Youssef Mekail in person
Defendant: Richard Mitry, Mitry Lawyers (ceased to act on 8 August 2017);
Dante Aspite, Anderson Lawyers (notice of appearance filed 2 October 2018)

File Number(s):

2015/00186751; 2015/00310332

Publication restriction:

No

Judgment

1. Two teenage girls, Nadia Mekhail (“Nadia”) and Mary Candotti (“Mary”), met in Suez City, Egypt in about 1950 and became close friends. In the 1960s they each migrated to Australia separately along with their families. Nadia had no children of her own but became the godmother of one of Mary’s grandchildren. They chose to live near one another in the Sydney suburb of South Strathfield.

2. Nadia was diagnosed with terminal cancer in 2014. She died on 2 April 2015. In the last two months of Nadia’s life, Mary was prevented from visiting Nadia. Mary did not know where Nadia was and was falsely informed that Nadia did not want to see her. As a result, Mary could not comfort Nadia in her final weeks of life. Mary was not told that Nadia had died. She missed Nadia’s funeral. Mary’s anguish at these events was still evident when she gave testimony in May 2017.

3. One event explains Nadia’s isolation from Mary. On 12 December 2014, Nadia made a form of will giving the whole of her estate to a family friend, the defendant, Georgette Hana (“Georgette”), and appointing her executor. Thereafter, from 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.

4. Two of Nadia’s nephews, who live in Australia, the plaintiffs in related proceedings, now challenge Nadia’s December 2014 will. They claim Nadia lacked testamentary capacity, was suffering from delusions and that Georgette exercised undue influence over Nadia when the December 2014 will was made. Instead, they propound a 2001 will that Nadia made in favour of Nadia’s five nephews, including both of them. Georgette cross-claims for probate of the December 2014 will.

5. Georgette keeping Nadia incommunicado for this period is one controversial integer in the Court’s wider analysis whether or not Nadia had testamentary capacity at the time of the December 2014 will and whether that will was a valid testamentary act.

6. The parties and witnesses who were family members of parties, often referred to another by their first names during the hearing of the proceedings. The Court has generally taken the same course for convenience in these reasons, but does so without intending disrespect to any party.

Overview of the Proceedings

7. Nadia was born in November 1935 in Egypt and was 79 at the time of her death. In 1951, at the age of 16, she married Raghib Wardakahn Mekhail (“Raghib”), a man 18 years her senior.

8. Raghib worked as an industrial chemist in the Suez region of Egypt. He was dislocated from his place of employment during the 1967 Arab-Israeli war. Raghib and Nadia migrated to Australia in about 1969 or 1970. They did not have children. But they developed many friends here. One of their friends had a daughter, Georgette, who became close to them. In these proceedings, Georgette claims that Nadia even recognised her as Nadia’s de facto daughter.

9. Raghib left several siblings and five nephews behind in Egypt. Two of those nephews, Youssef Mekail (“Youssef”) and Magdy Mekhail (“Magdy”) migrated to Australia, with their respective wives and children, in 2008 and 2012. They each lived with Raghib and Nadia with their families for brief periods after their arrival. Youssef is married to Nermeen Poles. They have one child. Magdy and his wife Gihan also have one child. Their reasons for moving out of Raghib’s and Nadia’s home were in controversy in the proceedings.

10. Nadia and Raghib made mutual wills in 2001. In these matching 2001 wills, they each made gifts to the Coptic Orthodox Church and gave the residue of their estates to the other; but should the other not survive, their wills provided that Raghib’s five nephews would take the estate in equal shares. In 2001, all five nephews were then still residing in Egypt. But two years after Raghib’s death in 2012, Nadia made a new will on 12 December 2014, which changed this structure and gave the whole of her estate to Georgette, with a gift over to Georgette’s husband, Adel. The five nephews were entirely excluded.

11. Georgette seeks probate of Nadia’s December 2014 will. In separate proceedings, Magdy and Youssef contest Nadia’s testamentary capacity at the time of the December 2014 will. Magdy does so by proceedings numbered 2015/186751 (“Magdy’s proceedings”). Youssef also brings proceedings numbered 2015/310332 (“Youssef’s proceedings”).

12. Magdy and Youssef allege that suspicion attaches to the December 2014 will. It was drafted in a solicitors’ office and its two witnesses were both solicitors. But despite this, they allege that, in substance, Georgette’s son Bishoy, not Nadia, gave all the instructions for drafting this will. They allege that the solicitor retained to draft the will, Mr Thomas Liondos, was misled by Georgette and Bishoy into thinking Georgette was Nadia’s biological daughter and they allege that he otherwise failed to adhere to proper professional standards to verify that Nadia had testamentary capacity. They further allege that Mr Liondos was unaware that Nadia was suffering from operative delusions about Georgette being her daughter and that Nadia was suffering under undue influence from Georgette at the time of its execution. Georgette contests all these allegations.

13. There is a second group of issues. In addition to the will, Nadia executed an enduring power of attorney on 12 December 2014. Mr Liondos also witnessed this enduring power of attorney. Despite the fact the enduring power of attorney did not authorise the making of gifts, in March 2015, just before Nadia’s death, Georgette purported to use it to transfer to herself for nominal consideration (of $1.00) Nadia’s principal asset, her house in South Strathfield (“the March 2015 Transfer”).

14. Georgette claims that Nadia gave her the house. And Georgette says that she was entitled to use the power of attorney to effect the gift to herself through the March 2015 Transfer before Nadia’s death. Magdy and Youssef challenge this transaction as improvident and unconscionable, contending that at the time of the transfer, Georgette was holding Nadia incommunicado, preventing her friends and relatives from seeing her and denying her access to independent legal or other advice.

15. If Magdy and Youssef are successful in their challenge to the December 2014 will, and the Court upholds Nadia’s 2001 will, the principal asset in Nadia’s estate is now registered in Georgette’s name. In those circumstances, both plaintiffs seek, on behalf of Nadia’s estate, to set the March 2015 Transfer aside and restore the South Strathfield property to Nadia’s estate.

16. To protect the estate pending the outcome of these proceedings, on 26 July 2017 the Court granted an interim injunction restraining Georgette from further dealing as registered proprietor with the South Strathfield property. That injunction was necessary because there was evidence Georgette was attempting to sell the South Strathfield property before the Court gave judgment.

17. In yet a third group of issues, Magdy and Youssef each claim relief, in the alternative, seeking orders for family provision out of Nadia’s estate under Succession Act 2006. If they are unsuccessful in their challenge to the December 2014 will, they claim they are nevertheless eligible persons who can make a claim for provision out of Nadia’s estate under Succession Act 2006 on the basis of their residence with Nadia after their respective migrations from Egypt to Australia. As the South Strathfield property has been transferred to Georgette, they claim that it should be treated as notional estate on those family provision claims and is available for the making of a family provision order should they be entitled to one.

18. The proceedings were heard over a number of days on 11, 20, 27 April; 10, 15-19, 22-26 May; 16 June; 26 July; and 4-5 September 2017. In Madgy’s proceedings, Mr J. Thomson and Ms M. Hall, instructed by Australy Milo of P.K. Simpson & Co, appeared for Magdy. Youssef appeared in person in his proceedings.  In both proceedings, Mr D. Allen, instructed by Richard Mitry of Mitry Lawyers, appeared for the defendant until 8 August 2017. Mr Dante Aspite  of Anderson Lawyers filed a notice of appearance for the defendant on 2 October 2018.

19. This is my third judgment in these proceedings. Events, matters and persons are referred to in this judgment in the same way that they are in my previous two judgments. The first judgment, Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail [2017] NSWSC 575, concerned a procedural aspect of Youssef’s proceedings: the Court made orders for the hearing to be conducted using Court Reporters rather than Court Recorders. Youssef, who was self-represented throughout the whole hearing, was very difficult to understand due to his heavily accented English.

20. The second judgment, Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 2) [2017] NSWSC 1175, concerned an application brought by Georgette to vary the interim injunction granted against her on 26 July 2017, that restrained her from dealing with the Strathfield South Property before the delivery of judgment following the main hearing. The Court declined her application. The injunction remains in place. This third judgment is the Court’s principal judgment following the main hearing.

Credibility of the Parties

21. This section of these reasons deals with the Court’s assessment of the credibility of the major witnesses in the proceedings. The credibility of other witnesses is dealt with as findings are made and the evidence of those witnesses is dealt with in the narrative of facts. The case involved serious allegations by the parties against one another. The Court was mindful of the requirements of Evidence Act 1995, s 140 in determining whether those allegations were made out.

22. Magdy Mekhail. Magdy gave evidence in Arabic, with the assistance of an interpreter. He was a generally credible witness who was genuinely trying to tell the truth. Cross-examination did not substantially damage his credibility, although there are places in which the Court does not accept his evidence or prefers other evidence as more reliable. But he has his own strong views of his past dealings with Georgette and Bishoy. These views were tinged with antipathy to Georgette and Bishoy because of the way they had treated him.

23. Youssef Mekail. Youssef has a strong accent as his first language is Arabic, not English. His English is reasonably good but his inflections and the speed at which he speaks at times made him extremely difficult to understand.

24. Youssef Mekail spells his surname differently from Magdy Mekhail. The spelling of Youssef’s surname is missing an “H” after the “K”. He explained in evidence this is because the aspiration sound after the “K” in Arabic can be spelt by different people in English in different ways.

25. On the whole, Youssef was a reliable witness. He professed not to be a greedy person when such motives were attributed to him in cross-examination. I accept that his own self-characterisation is correct. He said “that is not my behaviour” in answer to many questions about his alleged greed to inherit Nadia’s house. But that was Georgette’s perspective on him.

26. Youssef painted a vivid picture of being harassed by Bishoy and of Bishoy and Georgette applying pressure to Nadia. The Court mostly accepts his evidence on these matters, although not all the details are correct. He had a tendency to overlook defects in his own care for Nadia, after he came out from Egypt to stay with her.

27. There was one feature of Youssef’s evidence which was disconcerting. With some witnesses it might be regarded as a badge of untruthfulness. But in his case, I do not think that it is. When asked a direct question, it was very difficult for Youssef to simply answer “yes” or “no”. He has a storytelling style of answering questions, in which in order to answer even a simple question, he liked to give background to why the question even arose. The Court needed to cut him off on many occasions to bring him to the point. But when brought to the issue he was generally prepared to answer the questions “yes” or “no”, and was reasonably clear in his answers, which were consistent with his affidavit evidence. I regard his storytelling style of responding as not designed to avoiding answering questions but as showing a propensity to see facts only in their historical context.

28. Youssef gave an account of Bishoy and Georgette as creators of conflict, particularly with him. The impression he gave was that they were highly territorial about Nadia and her house and that anyone who got close to occupying the house or occupying Nadia’s affections was treated with strong hostility, both directly and by applying pressure to Nadia to remove them from her life. The Court mostly accepts Youssef’s evidence about this, in part because it coincides with Mary Candotti’s evidence.

29. Georgette Hana. Georgette was generally an unreliable witness and at times was prepared to invent evidence to improve her case. She often was unable to give consistent contextual detail about important disputed conversations, context one would have expected her to be able to give if she had an actual recollection of the matters of which she was giving evidence. She had a tendency to give answers that jumped between the matter in hand and other conversations. So it was hard to follow the response she was giving to a question about a particular conversation. The Court often had to bring her back to the question that she was being asked about a particular conversation, so that she did not stray into several others. This, in my view, was an attempt on her part to distract attention from her lack of contextual knowledge about particular conversations. She also had a propensity to generalise in her answers rather than be specific. In certain critical areas, she was unable to give satisfactory explanations for her own conduct consistent with the course of events that she was propounding. This lack of capacity to explain her own motivation and actions came at critical times in the narrative.

30. Another feature of Georgette’s evidence was lengthy pauses in some of her answers. This was evident, for example, in relation to the questions asked of her regarding the funeral booklet prepared for Nadia. She was asked who drafted or approved it. It took her approximately a minute to give an answer to the effect that it was copied from Raghib’s funeral booklet. This was also typical of another common response from her: denying responsibility or involvement in certain matters in which she thought that admitting involvement may be to her disadvantage. An example of this was the giving of initial instructions for Nadia’s December 2014 will. There is certainly evidence that Bishoy was principally involved in this. But 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.

31. Georgette was invited in evidence to call the deceased using whatever name she felt comfortable to use. She was initially being formal and was calling her “Mrs Nadia Mekhail, the deceased” in evidence. When she was invited to call Nadia what she wished, she called her, “Mama Nadia”. But later in her evidence, she largely abandoned this and went back to calling the deceased by the formal title, “Mrs Mekhail”. She seemed more comfortable with this.

21. Bishoy Hana. Bishoy was a guarded and perplexing witness. He gave short, closely considered answers which contained the minimum of detail necessary to answer the question asked. Whilst, in one sense, this added to the efficiency of his evidence and made him seem to be a direct witness, it masked another problem with his evidence. When he was pressed for detail about conversations, he was often not able to say anything more than what was in his affidavit, and like his mother, was often unable to explain or reason through the sequence of events he was describing or his motivation for acting the way he did. When he was pressed about the consistency of his evidence, he became extremely guarded. Examples of the difficulties of his evidence appear in the narrative below.

22. Georgette and Bishoy’s approach to giving evidence is to be contrasted with that of Gihan, Nareen, Magdy and Youssef who were generally more expressive. They spoke quickly and added detail to their evidence. The contrast between the two sides was clear. One side was ready to keep giving factual detail. The other side provided guarded information on a “need-to-know” basis.

23. Mary Candotti. 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.

24. Renato Candotti. Mr Candotti was under stress because of his wife’s treatment for cancer. He was a clearly helpful and good-hearted person like his wife. Mr Candotti reacted with antipathy to Georgette and Bishoy. But his reactions were based on genuine experiences of them which he accurately recalls and explains.

25. Thomas Liondos. 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.

Nadia, Raghib, their Nephews, Georgette and Mary – 1935 to 2015

37. The following is a narrative of the history relevant to the matters in issue. This narrative represents the Court’s findings on the matters covered, except to the extent that the context indicates that only the parties’ allegations are being recorded. For reasons of economy, this narrative does not always include reference to versions of the facts that have been rejected.

Nadia and Raghib Settle in Australia

38. Nadia was devoted to her husband from the time of their marriage in 1951. After his death in 2012 she remained devoted to his memory.

39. Nadia was a devout follower of the Christian Coptic Orthodox faith. She had special reverence for Pope Saint Kyrillos VI, who held the Coptic papacy between 1959 and 1971, the period just before Raghib and Nadia left Egypt. She placed his picture in the hallway of her home and always referred to him to visitors as “the good pope”. She developed connections with the congregations of a number of Coptic Orthodox Churches in Sydney.

40. After migrating to Australia in 1969-1970, Raghib and Nadia settled into their new lives in Sydney. They made many friends. Nadia became proficient as an assistant in nursing and spent many years through the 1980s working in nursing homes, where her work received high praise. But she became so familiar with nursing homes that she expressed fixed views later in life that she never wished to be cared for in one in her declining years.

41. One of Nadia and Raghib’s friends was Mr Kevin Taylor who in 1995 moved into the property next door to Raghib’s and Nadia’s South Strathfield property. Over the years, he had numerous conversations with Nadia across their dividing fence. He was in a position to observe Nadia’s attitude towards Raghib and her wider family and friends until she moved away to live with Georgette in February 2015. He gave helpful evidence about Nadia’s character, personality and outlook.

Nadia, Georgette and Bishoy

42. Georgette also moved with her parents from Egypt to Australia in 1971. When Georgette was only 12, she was first introduced to Nadia, who took an early interest in her. Both families were Coptic Orthodox and were close.

43. Georgette says she would call Nadia “Mama Nadia”, even in the presence of Georgette’s own biological mother. She says she would introduce herself to others in front of Nadia and her own mother as Nadia’s “daughter”. Georgette says Nadia would also do the same. Georgette says this was quite acceptable to her biological mother, who passed away in 2007. I accept that Nadia did all this because of the numbers of reliable witnesses who attest to it.

Raghib and Nadia Engage a Migration Agent – 2007 to 2015

44. To help bring Youssef and then Magdy into the country, Raghib and Nadia engaged a migration agent, Mr Raefat Soryal. They first engaged Mr Soryal in 2007 for Youssef’s proposed migration on a carer’s visa. Mr Soryal did all the paperwork to facilitate this and for Magdy’s subsequent visa application and for another application in 2013.

45. Mr Raefat Soryal was a reliable witness. His contact with Raghib, Nadia and Georgette was limited to his professional engagements. He came across to the Court as having a sound, professional and thorough approach to his work as a migration agent. He was interested in his clients and had well-formed observations about them. Despite its professional limits, he formed a “warm” relationship with Raghib, Nadia and Georgette and dealt with Nadia on a relatively informal basis. He had little or nothing to do with Georgette’s husband, Adel, or with Bishoy.

46. The Court scrutinised Mr Soryal’s evidence closely for the possibility of bias because of his friendship with Georgette, but he did not show a tendency to favour Georgette’s side of the case.

47. Mr Soryal spoke of Georgette and Nadia having a mother-daughter relationship. Mr Soryal was aware that Nadia did not have children of her own. But he did notice that Nadia was very close to Georgette. In fact, Nadia first introduced him to Georgette saying, “This is my Georgette, I raised her since young, she is the daughter I never have.” To Mr Soryal’s observations, Georgette played an important role in organising documents and posting letters for Nadia.

48. Mr Soryal’s oral evidence reaffirmed that Nadia described Georgette as being “like a daughter”, rather than as “a daughter”. Mr Soryal inferred in the later years that Nadia and Georgette had something like a biological mother-daughter relationship, in part because he saw that there were “no secrets” between them and also because he understood that Nadia allowed Georgette to shower her as she became more infirm. I also accept Mr Soryal’s evidence that Nadia mentioned to him “a few times that she loved Georgette very, very much as if it’s (sic) her daughter and she considers Georgette’s husband as her son-in-law”. Mr Soryal remembered these statements in part because, as he said himself, “It doesn’t happen very often” that his clients say things like this to him.

49. Mr Soryal also observed Nadia place a great deal of trust in Georgette. To help prepare the immigration applications that Nadia wished to advance, Georgette was the one who obtained letters of support from members of Parliament and would often telephone Mr Soryal from Nadia’s home to follow up on progress with particular applications.

50. Mr Soryal’s evidence also showed that Nadia had signed a number of immigration forms to advance immigration applications that she was promoting. One that she signed on 7 May 2013 for a further application after Magdy’s migration shows that her signature was quite poorly constructed and infirm, not unlike the infirmities that appeared in her signature on the December 2014 will. But Mr Soryal’s evidence, which the Court generally accepts, shows that despite the poor quality of Nadia’s signatures, she was readily able to give him clear instructions which did not cause him to doubt her rationality. Mr Soryal’s evidence suggests that the Court should not doubt Nadia’s testamentary capacity merely from the form of her signature on the December 2014 will.

51. Mr Soryal’s evidence is important in showing that Nadia had called Georgette her “daughter” for many years before 2014. The Court’s acceptance of his evidence rebuts the plaintiffs’ case that this was only a more recent habit of Nadia’s under Georgette’s influence.

52. Other parts of Mr Soryal’s evidence in early 2015 are important in gaining a picture of Nadia’s mental state and competence shortly after making the December 2014 will. Those observations of Mr Soryal are dealt with later in these reasons.

Nadia and Raghib Make their 2001 Wills

53. Nadia and Raghib executed mutual wills on 27 March 2001. Georgette does not dispute the validity of Nadia’s 2001 will. If Magdy and Youssef’s challenge to the December 2014 will were to succeed, the parties do not contest that Nadia’s 2001 will should be admitted to probate.

54. The plaintiffs do not contend in these proceedings that Nadia and Raghib agreed that each would not revoke his or her will after the other died.

55. Nadia’s 2001 will made gifts towards several Coptic Orthodox churches in Sydney. The text of her 2001 will follows:

“WILL_________________________________________________________

MADE BY:    NADIA MEKHAIL

17 BARTON STREET SOUTH STRATHFIELD 2136

PENSIONER

DATED:   27th MARCH 2001

GIFTS

1.00   I give the following to ST MARK COPTIC CATHOLIC CHURCH, 533 Reservoir Road Prospect, if it still exists when I die.

- ten thousand dollars ($10 000)

- my Picture of the Sacred Heart of Jesus

- my Ceramic Vase with a Picture of Two Fish on it

- my Small Holy Statue of St Mary.

2.00    I give ten thousand dollars ($10 000) to ST MARY AND ST MINA COPTIC ORTHODOX CHURCH, 339 Forest Road Bexley, if it still exits when I die.

3.00    These Churches may use these gifts as they see fit in carrying on their charitable activities. I direct the Public Trustee to pay them to the persons authorised to receive money on their behalf. The responsibility to see that these gifts are properly applied will then belong to these Churches and not to the Public Trustee.

RESIDUE

4.00   I direct the rest of my estate be used first to pay my estate liabilities.

This includes:

- my funeral

- all debts I owe when I die

- all expenses my Trustee incurs in administering my estate

- all charges my Trustees makes for doing the work.

5.00   After payment of my estate liabilities, I give the remainder of my property to by husband RAGHIB WARDAKHAN MEKHAIL if he survives me.

5.01   If the gift to my husband Raghib does not take effect, I give the remainder of my property after payment of my estate liabilities to those of the following people who survive me:

- my nephew SAMIR SALEH WARDAKHAN MEKHAIL

- my nephew MAGDY SALEH WARDAKHAN MEKHAIL

- my nephew YOUSIF SHOUKRY WARDAKHAN MEKHAIL

- my nephew NADIR GERGE WARDAKHAN MEKHAIL

- my nephew SAMIH GEORGE WARDAKHAN MEKHAIL

EXECUTOR AND TRUSTEE

6.00   I appoint the Public Trustee of New South Wales the executor and trustee of this Will.

THIS IS MY ONLY WILL

7.00   This Will sets out completely how I want to leave my property after my death. I cancel any earlier Wills and Codicils.”

56. A curious feature of the will Nadia made on 12 December 2014 is that it not only omitted Raghib’s nephews entirely but it also omitted any reference to the Coptic Orthodox Church in Australia, to which she remained devoted.

Raghib’s Health Declines and Youssef Migrates to Australia – 2007 to 2010

57. Raghib’s health started to decline from 2007. As he deteriorated, Nadia thought Raghib required a supportive family member to keep him company. Youssef, one of Raghib’s nephews living in Egypt, was first offered this role. This task required Youssef and his wife, Nermeen Poles, to leave their respective jobs and their house in Egypt to come and live in Australia.

58. Youssef had tertiary education qualifications, including a Bachelor’s degree in engineering and an Advanced Diploma in engineering from Suez University, Egypt. In February – March 2008, Youssef and Nermeen arrived in Australia from Egypt. They commenced living with Nadia and Raghib in the two-storey house in South Strathfield. They stayed with Nadia and Raghib for approximately five to six months. But by July – August of that year, they had moved out of the South Strathfield house and had relocated to Melbourne.

59. The parties’ accounts differ markedly as to why Youssef and Nermeen moved out of Nadia and Raghib’s home to go and live in Melbourne. Youssef’s account was that Bishoy harassed him forcing them to move out. He says that when he and Nermeen moved out, they decided to go to Melbourne, rather than stay in Sydney, because he believed he had better employment prospects there. Youssef said that their reasons for moving out were connected with their disagreements with Georgette and Bishoy and that Nadia well understood this. I accept Youssef’s evidence that “the advice from Nadia [was that] I go away from Sydney because maybe I get hurt from Georgette or Bishoy”.

60. Georgette and Bishoy strongly contest this version of events. They say both Raghib and Nadia were unimpressed with the quality of the assistance Youssef gave them at home and wanted Youssef and Nermeen to leave.

61. Other evidence I accept supports the conclusion that Nadia and Raghib were not wholly satisfied with Youssef’s and Nermeen’s commitment to Raghib’s care. Mr Taylor, for example, gave evidence that, after Raghib died, Nadia said she was disappointed that Youssef and his wife seemed more interested in their new lives in Australia rather than in looking after their family. Although the Court does not accept Mr Taylor’s later evidence that Nadia told him she was giving the house to Georgette not Magdy and Youssef.

62. It is not in dispute that Youssef ceased contact with Nadia for a period from the time of his move to Melbourne in March 2008 until about June 2009. But they re-established contact after Nadia had been diagnosed with cancer.

63. By 2010, Raghib’s health was declining. He had progressive memory loss that had led to advanced dementia, and by then had acquired a shuffling gait and was often disorientated as to time and place. But Nadia did not want Raghib to go into a nursing home. In June 2010, Dr James Burrell, Raghib’s neurologist, noted Nadia’s determination to care for Raghib, “at home by herself”, and that she had not accepted in-home supports for his care.

Magdy Migrates to Australia Followed by Raghib’s Death – 2012

64. Despite the 2008 conflict over Youssef and Nermeen, Nadia in 2012 requested that Magdy, his wife Gihan, and their immediate family come to Australia. They arrived in February 2012 and moved in with Raghib and Nadia. But in circumstances that are controversial, within a month, they too moved out of the house. In my view, conflict with Georgette and Bishoy was one of the reasons they left.

65. Raghib’s health continued to decline. In August 2012, Nadia consulted Mr Liondos of Shad Partners about their financial affairs. On 31 August 2012, Nadia was appointed Raghib’s attorney under an enduring power of attorney prepared by Shad Partners. This instrument was witnessed by Mr Liondos, who later came to prepare Nadia’s December 2014 will. But he did not actually himself prepare the August 2012 power of attorney.

66. Mr Patrick Sattout of Sattouts, a suburban practice in Liverpool Road, Starthfield South, also recalls that he met once with Nadia Mekhail in October or November 2012. His record of those instructions is contained in a file note which he describes as “a very short attempt at taking instructions” about preparing a will. But Mr Sattout says that the instructions that Nadia was providing to him were confusing, so he undertook a title search of the South Strathfield property and discovered that the title was in the joint names of Nadia and her husband. The confusion on his part arose because she was instructing Mr Sattout on the basis that she owned the property outright, when in fact she did not. He apparently raised the inconsistency with her and that prompted her to go away and think about her instructions.

67. Nadia did not allow Raghib to go into a nursing home. She looked after him herself at the South Strathfield house. Nadia’s neighbour, Mr Taylor, accurately observed Nadia’s determination to look after Raghib at home. I accept Nadia said words to him to the effect, “he is my baby, I must look after him, it is my duty”. Nadia never wavered in her commitment to do everything she could for Raghib in his last days.

68. Raghib died on 23 December 2012. A period of 40 days of official mourning followed his death. Nadia’s own period of unofficial mourning lasted substantially longer.

Bishoy and Georgette Borrow from Nadia – 2013 and 2014

69. The Court had little direct evidence of Bishoy and Georgette’s financial dealings with Nadia in the period after Raghib’s death during 2013 and 2014. But there is some indirect evidence of such matters from one highly reliable source – Mary Candotti. Her evidence corroborates other evidence from Magdy and Youssef on the same subject. Her evidence also contains disturbing indications that Georgette was placing financial pressure on Nadia to lend her money. The absence of any evidence concerning actual financial transactions between Georgette and Nadia makes the Court cautious about drawing inferences in this area. But the Court accepts what Mary Candotti says about what Nadia said to her on this subject in early 2014:

“Bishoy and Georgette ask me so many times for money, I give it to them, but they don’t give it back for me. I want favour, can you please say that you lend me the money, because Georgette has to pay some taxes, can I say you lend me the money so that she pays back, because it is your money, I told Georgette I haven’t got any more money.”

70. The Court infers from this conversation: that Georgette had been asking Nadia for money and had not been repaying it; and that Nadia judged herself to be defenceless against these requests and that she wanted be able to cite her obligation to repay Mary Candotti to strengthen her case to have her money back from Georgette.

71. The Court’s acceptance of this conversation has importance at several levels. It does not just provide a basis to infer that Georgette was borrowing money from Nadia. It also shows that Nadia was vulnerable to Georgette’s requests for money and that Nadia perceived she needed to and could use Mary as a counter-weight to the financial pressure Georgette was placing on her. Mary never in fact lent money to Nadia.

72. The 2014 financial pressure came from both Bishoy and Georgette. I accept Mary’s evidence that, in early 2014, Nadia said to her, “I pay the fees for Bishoy to go for college to be a builder, I don’t know.” This does not depend on whether Bishoy actually did, or did not, go to college to be a builder. I infer that Bishoy or Georgette used this as a pretext to borrow money. And again, Nadia would often comment to Mary Candotti about Bishoy’s presence about the home saying, “You see he here because he want money from me.” I accept that Nadia said this to Mary in about 2013 and 2014.

73. But this conduct must also be seen in its proper context. Throughout these reasons, the Court accepts the evidence of a number of reliable witnesses that Nadia did present Georgette as a “daughter” to various third parties. It can be inferred from this evidence of public recognition of Georgette as a “daughter”, that Nadia was quite happy to have other people believe that her relationship with Georgette was very close and of a quasi-maternal nature; otherwise she is unlikely to have described Georgette in such terms to a number of these third parties.

70. Close or family relationships often generate informal financial arrangements. Sometimes these arrangements are accompanied by a degree of financial pressure but usually, they are underpinned by the assumed financial reliability of the borrower who claims to be so close to the lender and that the borrower will always look after the lender’s interests. It would be too simplistic to draw an inference from the Court’s findings on this subject that Georgette and Bishoy were exploiting Nadia after Raghib’s death.

71. This evidence actually assists Georgette’s case. Nadia perceived that Georgette was sufficiently close to her that she allowed Georgia to borrow money from her in this way. There is no evidence of this kind of deep financial interaction between Nadia and either Magdy or Youssef. What Magdy and Youssef’s case presents as potential financial exploitation, in my view, is some comparative evidence in Georgette’s favour of her closeness to Nadia.

Nadia’s Cancer Recurs – 2014

76. Nadia was first diagnosed with metastatic breast cancer in February 2009. Almost a year later, she underwent surgery to remove a lump from her breast. Thereafter, her cancer appeared to go into remission. But it re-emerged in 2014, a little over a year after Raghib’s death.

77. Nadia was re-admitted to hospital on 28 November 2014. Through Royal Prince Alfred Hospital (“RPA”), she came under the care of Dr Joanne Toohey, a radiation oncologist. By then, Nadia had long been treated by her general practitioner, Dr Waseem Guirguis. Both these doctors gave illuminating, objective and highly relevant evidence about Nadia’s capacities in late 2014. Their evidence was focussed upon the late 2014 period and was useful on both medical and non-medical matters.

78. Dr Toohey was an excellent witness. She had a clear recollection of Nadia; indeed rather more than would ordinarily be expected of such a busy senior doctor. But she remembered Nadia well for what can perhaps be distilled into two main reasons: the severity of Nadia’s cancer diagnosis and Nadia’s personality. Apart from her specialist medical expertise, Dr Toohey was a highly perceptive and intuitive observer of events around her. She was brimming with recollections and information about her patient and her condition. Her professional detachment was a welcome source of reliable independent evidence for the Court, when so much else was in conflict.

79. Dr Guirguis too was a very helpful witness to the Court with a good recollection of his patient. By 2014, Dr Guirguis had treated Nadia for 16 years. The Court’s factual narrative now deals with the important evidence of these two doctors in more detail.

Dr Toohey Treats Nadia – 28 November to 5 December 2014

80. Dr Toohey first encountered Nadia on Friday, 28 November 2014, when she was admitted to the Chris O’Brien Lifehouse (“Lifehouse”), a division of Royal Prince Alfred Hospital (“RPA”) in Camperdown. Dr Anabelle Goodwin, who practised from Concord, had been Nadia’s treating radiation oncologist for some time, on referral from Dr Guirgis. But Nadia’s symptoms had worsened by about 18 November. In discussion, Dr Guirgis and Dr Goodwin had suggested that Nadia present at Concord Hospital Emergency department. She did so on 21 November. Closer investigations of Nadia’s immediate condition then commenced.

81. Dr Toohey did not normally see patients over the weekend. Her first consultation with Nadia was on Friday, 28 November 2014. She would not have seen Nadia on Saturday and Sunday, but saw her each day of the following week through to her discharge on Friday, 5 December 2014.

82. Dr Toohey had been called in to treat Nadia at short notice, when Dr Goodwin was unavailable. She said, that “sadly and devastatingly” the investigations had led to Nadia having a scan, which revealed that she had symptoms of spinal cord compression in her upper cervical spine spreading down to her thoracic spine, indicating associated leptomeningeal disease. Dr Toohey outlined that leptomeningeal disease is the penetration of cancer cells into the lining of the spinal cord. It is extremely difficult to treat, either by chemotherapy or by radiation, and its prognosis is poor; usually only a matter of months.

83. Dr Toohey remembered Nadia “very well”, even though she was one of many patients. She explained this is because leptomeningeal disease is “actually very rare, so you remember your cases”. But Dr Toohey also remembered Nadia for another reason. She described Nadia’s personality as “quite stubborn, but she appeared to be sort of like a matriarch of her family” and Nadia “certainly…had a lot of family members around her, looking after her”.

84. On Nadia’s admission on the afternoon of 28 November, Dr Toohey had a “long and involved” conversation for about an hour with Nadia and other family members. Magdy, Gihan and Bishoy were present. Speaking in English and using diagrams to explain her message, Dr Toohey communicated the confronting news to Nadia that the course of this disease meant that she would probably become a paraplegic or quadriplegic and lose bodily functions, and that she only had months to live.

85. Dr Toohey directed her words to Nadia. Although English was Nadia’s second language, Dr Toohey had no trouble communicating with her. I accept Mr Liondos’ evidence (discussed later) to the same effect. Dr Toohey’s consultation practice is to inquire with whom her patient lives and to try and pick up who is present with the patient at the consultation. Dr Toohey was clear that Bishoy, who she says Nadia referred to as her “grandson”, was present and that Georgette was not present at this first meeting. This accords with other evidence about this consultation. Nadia, not Bishoy, was the main person with whom Dr Toohey spoke. Dr Toohey said that Bishoy and Nadia appeared to have “a good relationship” and that he later supported her, bringing her in for subsequent appointments. Dr Toohey had several conversations with Georgette afterwards.

86. But in identifying the people present on this first occasion, Dr Toohey erroneously thought that Nadia said to her that Nadia lived with “her husband”. That could not, of course, be correct in 2014. But this was not a matter on which Dr Toohey was particularly concentrating, and she thought that in some cultural environments, it can be difficult to get all the relationships correct. But that minor error apart, Dr Toohey’s evidence was striking for her sharp memory of Nadia. The Court accepts Dr Toohey’s evidence as a highly reliable description of Nadia’s contemporaneous cognition and memory.

87. Dr Toohey was given a history that Nadia had presented within the previous week to the Emergency Department at Concord Hospital. By the time Dr Toohey saw her, Nadia had identifiable weakness of her right leg, more than her left lower leg, and was in a wheelchair. Dr Toohey explains she was “pretty adamant” that Nadia should stay in hospital because spinal cord compression is regarded as a medical emergency.

88. Part of Dr Toohey’s craft is to assess the ability of a patient, like Nadia, to listen and comprehend what he or she is being told. Dr Toohey formed the judgment that Nadia “was understanding everything” and “she certainly understood the gravity of the situation and the fact that her prognosis was limited”.

89. Dr Toohey’s account was that her first consultation with Nadia on 28 November involved a detailed discussion with her about her consent to future treatment. Dr Toohey raised with Nadia the possibility of localised radiation treatment. Nadia was resistant to this but finally consented to the treatment on Monday, 1 December. Nadia said she was concerned about possible “memory impairment” from such treatment. There are references to Nadia’s concern about memory loss in medical notes made in RPA on 1 December 2014. Dr Toohey was convinced that this was merely a pre-emptive concern on Nadia’s part about what memory loss might happen if Nadia had radiation. This, in itself, is some indication that Nadia regarded preservation of her memory and cognitive functioning as most important to her. Over the course of the weekdays from 1 December until her discharge on 5 December 2014, Nadia underwent the radiation therapy. Dr Toohey believes, and the Court accepts, that she saw Nadia each day of the five further days that she was in hospital.

90. Dr Toohey had no doubt about Nadia’s capacity to give informed consent to her own radiation treatment. Dr Toohey noted that Nadia was resistant to taking strong drugs like opioids because they made her dizzy and sleepy. Dr Toohey agreed with the hospital notes about Nadia that, throughout her stay in hospital, Nadia was “alert and orientated at all times”.

91. The nursing notes of 1 December 2014 bear closer examination. They make clear that when Nadia was seen by Dr Toohey at 9.15am on Monday, 1 December, she consented to radiation therapy but that she wished to go home. It can be inferred from the notes that Dr Toohey was concerned about whether Nadia would be supported at home. The notes record that Dr Toohey “will talk to daughter”.

92. Georgette was not present for this 1 December morning discussion. Dr Toohey telephoned her shortly afterwards. Although Georgette was not present either on 28 November or 1 December, Dr Toohey had been told that Georgette was her daughter. This was not something that Georgette imposed directly upon the communications between Nadia and Dr Toohey. The strong inference from the nursing notes and from Dr Toohey’s evidence is that Nadia had told Dr Toohey that Georgette was her daughter. Alternatively, Bishoy may have said this and then Nadia acquiesced in and continued to acquiesce in the description.

93. The medical notes proceed to show that Dr Toohey and Georgette had a discussion commencing at 0938. The notes provide as follows [emphasis original]:

“JO TOOHEY

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.”

94. There is a further entry a short while later at 0940, implying Dr Toohey had another telephone conversation with Georgette:

“*Further discussion with Georgette (daughter).

Now wishes for mum to be treated today and will take her home tomorrow.”

95. Dr Toohey agreed that this was consistent with Georgette still being anxious to take Nadia home. But Georgette and the family ultimately changed their minds. Nadia remained at the Lifehouse until Friday, 5 December 2014.

96. Nadia’s acquiescence to Georgette being called her “daughter” with Dr Toohey is important in understanding her similar acquiescence in front of Mr Liondos a week after she left hospital. Dr Toohey never found out that Georgette was not Nadia’s daughter when treating her over a full week, and dealing with some of the most profound decisions of Nadia’s life. It is not surprising, therefore, that a week later Nadia should acquiesce in the same way with Mr Liondos.

97. What is the explanation for this? Despite the Court’s criticism, at times, of Georgette’s behaviour towards Nadia and towards other members of her family, the inference that arises from Nadia’s description (or repeated acquiescence in the description by others) of Georgette as her daughter to professional persons is a sign that that is what Nadia wanted.

98. Her decision to do this probably sprang from a complex of motivations. She clearly felt genuine affection for Georgette, given their long relationship. Regrettably, Nadia’s affection for Georgette was supported by Georgette’s conscious bad mouthing of Youssef, Magdy and Mary. But I infer Nadia did not want to face the daily burden of saying to professional and other people she encountered, “well she is not really my daughter; but we are very close; and she is just like a daughter to me”. Particularly as Dr Toohey was talking to Nadia about matters of life and death, explanations about Nadia’s precise relationship with Georgette probably hardly seemed front and centre to Nadia. In my view, Nadia probably ultimately applied the same logic when it came to Mr Liondos. But the implications of Mr Liondos not knowing their true relationship were more legally hazardous.

99. There was nothing wrong with Nadia’s memory or cognition in mid-December 2014. Mary’s evidence is to be accepted that Nadia was talking about her nephews and/or had seen her nephews in the fortnight before she went to make her will. The Court does not accept that she was not conscious of who Youssef and Magdy were, their presence in her life, and what they, and their spouses, were and had been doing for her. She would have remembered them. Nadia’s nephews and Mary were an integral part of Nadia’s family that Dr Toohey had observed giving her support in hospital.

100. Dr Toohey also examined the drugs that had been prescribed for Nadia in RPA under her care and also later on Nadia’s admission to Canterbury Hospital. Dr Toohey had available during her evidence the hospital notes preceding that later admission. Only a few of these drugs have direct effects or side effects that are potentially relevant to a patient’s memory or cognitive capacity.

101. One of Nadia’s medications was dexamethasone. This has the effect that if a patient has brain metastases, as Nadia did, and if the patient presents with confusion, then an increased alertness response to synthetic steroids, such as dexamethasone, can be used by a treating doctor to determine whether the patient is likely to respond to other treatments like radiation or surgery.

102. This was not an issue for Nadia. Dr Toohey was quite firm that she did not see any signs of confusion in Nadia at any stage whilst she was in hospital. Dr Toohey unequivocally said, “I didn’t think she was confused”. Dr Toohey made her observations on this subject right through until 5 December, only a week before the December 2014 will was made.

103. 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.

104. 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.

105. Nadia was taking this medication in hospital. I accept Dr Toohey’s evidence that Dr Toohey noticed no decrease in Nadia’s level of cognition or memory in interactions with her. Dr Toohey had an opportunity to assess the dosages of these drugs in a structured hospital environment with the advice of pharmacists and to see, over the course of a week, their effect on Nadia, so they could be adjusted to the right levels. Dr Toohey was well across the range of drugs Nadia was being given and was confident that doses had been properly calibrated to Nadia’s needs before she left hospital. The overall aim of the hospital treatment is to improve a patient’s quality of life in their last months of life. Cognitive functioning and access to memory are a central part of that quality of life.

106. The plaintiffs’ case was that these drugs were still being “road tested” after Nadia left hospital, especially in the week after she left hospital, leading up to the making of the will. It is true that Nadia was self-administering these drugs after 5 December. But several matters militate against the conclusion that these drugs adversely affected Nadia at the time she saw Mr Liondos a week later. First, Dr Toohey had seen no confusion or other adverse cognitive effects in Nadia after taking the drugs for a whole week. Second, Dr Toohey made clear and the Court accepts that adequate trials of the drugs had taken place before Nadia left hospital, so Dr Toohey could be sure that the dosages were apt for the less structured post-hospital environment. Third, Nadia was by nature reluctant to take opioids such as the additional fentanyl top up lozenges, and had rejected Endone medication. Fourth, there is no other medical evidence of a drug-related crisis involving Nadia’s cognition in the week between Nadia’s discharge on 5 December 2014 and the making of the will on 12 December 2014. And finally, Mr Liondos’ own observations are not consistent with Nadia suffering any drug-related confusion on the afternoon of 12 December 2014.

107. Brain scans were available when Nadia came under Dr Toohey’s care. These scans showed that she had metastases in the brain from her original breast cancer. The brain metastases were clearly identified on 8 January 2015 but Dr Toohey accepted that both they, and the leptomeningeal disease, had probably been present for quite some time. Dr Toohey said that depending on where brain metastases are located, they could cause changes in a person’s personality or memory impairment. But equally, she said they may have no impact upon a person’s cognitive functioning. The MRI evidence was not sufficiently specific to indicate where Nadia’s brain metastases were located. But ultimately, 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.

108. Dr Toohey believes she saw Nadia on another occasion at Lifehouse in January or February 2015 for a follow up. But the Lifehouse medical notes from this later period were not available for Dr Toohey to use in her testimony. Dr Toohey did not identify that Nadia had any major cognition issues, even then.

109. Although Nadia did not wish to take Endone, she ultimately took some, albeit on a PRN, or as required basis, some time after her discharge from RPA.

110. Just prior to her discharge on 5 December 2014, Nadia was given a document on RPA letterhead dated 3 December 2014 and signed by Dr Toohey’s oncology resident, to assist Nadia in pursuing a migration application on compassionate grounds for another relative. The 3 December 2014 document described Nadia as having “a terminal condition with poor prognosis” and seeking to expedite the immigration application in question “prior to any demise” of Nadia.

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 probelms, 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 advsiers, be quite stubborn. A number of these same characteristics were observed by other witnesses and indeed emerged again when Mr Liondos saw Nadia.

Dr Wassem Guirguis – November 2014 to March 2015

112. Dr Waseem Guirguis had been Nadia’s general practitioner from about 1998. Dr Guirguis is also the general practitioner for two parties to the proceedings, Magdy and Georgette. Dr Guirguis has notes covering his consultations with Nadia in November and December 2014 through to March 2015. Dr Guirguis appeared to the Court to be a very thorough and competent medical practitioner. He had a good memory of Nadia.

112. Dr Guirguis always spoke to Nadia in Arabic. He says, and I accept, that she was always able to report her symptoms and complaints to him and answered his questions and asked questions of him. This was true in particular of the occasions he saw her from November 2014 through to March 2015.

113. Dr Guirguis’ notes show that he saw Nadia, or had contact with others in relation to her, on 4, 5, 21, 25 and 26 November 2014, and 8, 19 and 21 December 2014 and 19 and 21 January 2015. His last face-to-face consultation with her was on 21 January 2015. But he had telephone contact about her on 2 March 2015 and a telephone conversation with her on 3 March 2015 after her discharge from Canterbury Hospital.

114. I accept Dr Guirguis’ evidence that if he had noticed any significant cognitive change in Nadia during this period, he would have made a note of that fact in his medical notes. There is no such note about his consultations with her in November or December 2014. Given how long she had been his patient, he was in an excellent position to observe such changes. I also accept his recollection that Nadia did not complain to him of any cognitive changes or memory loss in November or December 2014.

115. I accept that Dr Guiguis conversing with Nadia in Arabic allowed them to well understand each other. Had she any difficulty in understanding him, I accept that his usual practice would have been to make a note of that fact. But he made no such note from November 2014 to March 2015.

116. Nadia presented to Dr Guirguis personally on 18 and (probably also on) 21 November 2014, suffering from right arm pain. Dr Guirguis’ next two consultations about Nadia were not with her personally. His notes for 24 and 25 November are consistent with him speaking to Dr Goodwin, or others, about Nadia. On 24 November, Dr Guirguis discussed with Dr Goodwin referring Nadia to the accident and emergency department at Concord Hospital. That referral that ultimately led her to RPA.

117. Dr Guirguis believes he then saw Nadia personally on Wednesday, 26 November, when she complained of right leg pain. He is confident that after she left RPA, Bishoy came on Nadia’s behalf on 8 and 19 December 2014. On the first occasion, Bishoy was obtaining a referral for Dr Toohey. No doubt this had been requested for as soon as Nadia was discharged from RPA because Dr Toohey was not Nadia’s usual radiation oncologist.

118. Dr Guirguis regarded Bishoy presenting on behalf of Nadia as normal. Dr Guirguis appreciated that Nadia’s condition was worsening and she would need family members to pick up prescriptions for her.

119. Dr Guirguis is sure he made a home visit to Nadia on 22 December. He noted on that occasion, and the Court accepts, that she was not in any distress. She still had weakness in her right arm and right chest and leg and reduced mobility in the left leg. She was again referred to Dr Toohey.

120. In summary, Dr Guirguis saw Nadia face-to-face on 21 November before her admission to hospital and then on 22 December, a month afterwards. Dr Toohey was therefore the doctor who made observations of Nadia closest in time to her making the will. But Dr Guirguis’ observations of Nadia on 21 November and 22 December were also important. Dr Guirguis’ says, and the Court accepts, 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.

Nadia Talks to Mary About Her Will – 2014

122. Nadia opened up to Mary in 2014 about her testamentary intentions. Mary’s account of what Nadia said on this subject is almost the polar opposite of the account given by Georgette and Bishoy, and others from Georgette’s family. I accept Mary’s account of Nadia’s testamentary wishes in 2014 and I prefer it to the account which Georgette and her family members gave in their testimony about this period.

123. Mary says that, prior to her undergoing chemotherapy in 2014, Nadia did not discuss her testamentary intentions with her. But in late 2014, when the chemotherapy was well underway, she did confide in Mary about this subject. Nadia said to Mary on one occasion, “I’ll leave all my money and my house to my nephews, Raghibs nephews.” On several other occasions, in a more abbreviated form, Nadia simply said to Mary, “I leave money to my nephews.” I infer from such statements that Nadia was explaining to Mary her testamentary intentions based on her existing 2001 will.

124. But after Nadia’s last time in hospital, Mary also noticed a general decline in Nadia’s capacities. Mary recalls that, after Nadia was given a prognosis of only having months to live, Nadia became forgetful and changeable. Nadia acknowledged this herself and said to her friend Mary, “I can’t think straight, Mary”. I accept Mary’s account of this to the extent that it shows Mary was becoming drowsy at times. But in my view it does not mean that Nadia had lost capacity for clear and consistent thought. Mary recalls that Nadia was saying this kind of thing to her late in 2014 and through to early in 2015.

125. Mary’s evidence was that Nadia’s forgetfulness extended to Nadia’s medication. Nadia said to Mary, “I don’t think I remember if I take medicine or not”. But Nadia’s focus on the subject is some evidence she was keen to get the dosages right. And again, after Nadia was released from hospital in December 2014, she confessed to Mary, “I feel dizzy and feeling unwell.” Mary has recurrent memories of Nadia then declaring, “I start to forget”. This is not surprising given the fentanyl and other drugs that Nadia was taking. But these statements also show that Nadia was conscious of her declining capacities and the effect the drugs were actually having on her. The statements Mary recalls are often made after 12 December 2014 and are certainly not proof that any of these drugs had overwhelmed Nadia’s powers of reasoning.

126. Mary did not see Nadia after early February 2015. But I accept much of Mary’s description of her friend in the critical period between the December 2014 will and Nadia’s disappearance in early February 2015. The quality and depth of their friendship, and Mary’s selfless and disinterested care for her friend makes her a generally reliable witness of these matters. I accept her testimony that, from December 2014, Nadia became couch-bound and at times could hardly move, would regularly fall asleep during the day, and would only move for essential reasons, was sleeping for much of the time, and often appeared to be mentally weak, less talkative than her past habit, and tired and quite unlike “the person I knew from since I was 13 years old who had been full of energy”. But again this does not mean that when Nadia had to focus on what she wanted within a week of leaving RPA that she was not able to do so.

Bishoy’s Instructions to Sattouts – Early December 2014

127. Shortly after Nadia left hospital, she attended on Mr Liondos, at Shad Partners, for the making of the December 2014 will. Bishoy and Georgette arranged this attendance. Mr Liondos was not the only solicitor Bishoy had approached for this purpose.

128. Earlier in December 2014, Bishoy also approached Mr Sattout. As at December 2014, Sattouts had never acted previously on instructions from Nadia or Raghib and they did not know, or act for, Georgette.

129. Mr Sattout gave evidence about this contact with Bishoy, as did his daughter, Ms Julia Sattout, who works as a solicitor in the Sattouts practice. They were both excellent witnesses and I accept their evidence about their interaction with Bishoy. The Court’s findings about that interaction are largely based on their evidence.

130. At their meeting in December Bishoy instructed Mr Sattout to prepare a will and a power of attorney for Nadia: the same general instructions that he later gave to Mr Liondos.

131. But Mr Sattout made clear to Bishoy that he could not take instructions about a will unless the proposed testator came and met with him personally. He said he was able to do the will but, “only on the basis that he [Bishoy] would bring the lady back with him so that she could give us final instructions, executed the necessary documents and give us the instructions about the will”. That did not occur. Mr Sattout explained “we never prepared a will because we could not get definite instructions of what she wanted”. But the firm did prepare a power of attorney which was never executed, because Nadia never came in to see them.

132. After the meeting with Bishoy, Mr Sattout instructed his daughter, Julia, to prepare a draft power of attorney and to arrange a meeting with Nadia, so Mr Sattout could discuss both the will and the power of attorney personally with Nadia. Mr Sattout’s evidence of his meeting with Bishoy did not quite contain the overtone of urgency from Bishoy that were evident in Bishoy’s later instructions to Mr Liondos. Nor was there any demand from Bishoy to control the amount of contact, as solicitor, Mr Sattout should have with Nadia.

133. On 9 December 2014, Ms Julia Sattout prepared the draft power of attorney as requested and contacted Bishoy by email, requesting him to make an appointment to come and see Mr Sattout with Nadia. But no appointment was ever made. The power of attorney Julia Sattout had drafted was never executed either by Nadia or Bishoy.

134. So far as Mr Patrick Sattout is concerned, that is where the matter ended. He says he heard nothing more from either Bishoy or Nadia. Julia Sattout’s evidence was to a similar effect.

135. A side issue arose out of Bishoy’s December 2014 instructions to Sattouts. Youssef and Magdy visited Sattouts in April 2015, after Nadia’s death. The extent to which Sattouts had executed any instructions on Nadia’s behalf in early December 2014 became a point of contention about events during Youssef and Magdy’s April 2015 visit. The Court prefers the Sattouts’ evidence on this subject.

Preliminary Instructions to Mr Liondos – 25 November to 11 December 2014

136. Bishoy arranged for Mr Thomas Liondos to meet with Bishoy, Nadia and Georgette on 12 December 2014 at the office of Shad Partners. Nadia executed the December 2014 will and an enduring power of attorney on this occasion. Much of what happened during the meeting at Shad Partners is in contest.

137. Mr Liondos already knew Georgette. He had handled several matters for her previously, including a lease transaction for a property in Bexley, and a dispute arising out of that lease. Bishoy also had prior dealings with Mr David Shad, a senior solicitor at Shad Partners. But Georgette did not then have current instructions to Shad Partners to do legal work on her behalf. She was not a current client to whom he owed duties in other matters.

138. Bishoy’s contact with Shad Partners about Nadia’s will had started about 25 November 2014 when Bishoy left a message with Shad Partners. To give Mr Liondos some point of reference, Bishoy explained to Mr Liondos that he was Georgette’s son.

139. Acting upon Bishoy’s contact, Mr Liondos asked the solicitor in the firm who handled wills and estates matters, Ms Katherine Shad, to call Bishoy, as the subject matter of Bishoy’s inquiry to the firm seemed more relevant to her expertise. But the inquiry was referred back to Mr Liondos, who telephoned Bishoy back the same day.

140. Mr Liondos says, and I accept, that Bishoy explained to him on 25 November what Bishoy wanted Shad Partners to do, saying:

“I am Georgette Hana’s son. My grandmother is ill and she has limited time to live. She wants to make a will urgently. We cannot attend on multiple occasions because of her illness, and we want the matter finalised on one occasion.”

141. I accept this evidence as an accurate account of what Bishoy first said to Mr Liondos. Bishoy refers to Nadia as “my grandmother”, which, Bishoy knew she was not. This was the beginning of a range of conduct that misled Mr Liondos into believing Nadia and Georgette were mother and daughter. Bishoy specified just how he wanted the solicitor to discharge his professional duty: by holding just one single conference with Nadia. Bishoy’s opening “we” in “we cannot attend” includes Georgette and himself and appears to include Nadia. Bishoy was the source of the push for just one conference. Nadia did want to make a new will but never expressed a desire not to attend upon Mr Liondos on more than one occasion.

142. Mr Liondos acted quickly. Alert that he might have only one occasion to see someone who he could anticipate was very ill, he asked Bishoy for additional information, so that he could have a draft will and power of attorney ready when Nadia came into the office.

143. At 6:40pm on 25 November, Mr Liondos emailed Bishoy with a set of questions to give him information to help get him started with the drafting:

“Bishoy,

Further to our telephone conversation today, in relation to the Power of Attorney:

1   I require the full name and address of the principal;

2   The full name and address of the attorney or attorneys

3   If more than one attorney, will they have to act jointly or can they act separately

4   Are there to be any limitations on the power.

In relation to the will:

5   The full name and address of the person making the will;

6   The full name and address of any executors and any alternative executors;

7.   To whom is the estate to be distributed (names, addresses and relationship);

8.   If anyone dies before, who is to get their share.

This is a starting point. Following your reply I will contact you as regards my further requirements.

Regards,

Tom Liondos”

144. Bishoy responded on 3 December 2014, supplying information in answer to all Mr Liondos’ emailed questions of 25 November 2014:

“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 [address not published] Strathfield South NSW 2136. DOB [not published]

2. No. 1 Attorney; Georgette Hana DOB: [not published] (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 [address not published], Strathfield South NSW 2136. DOB [not published]

6. No. 1 executor; Georgette Hana DOB [not published] (Daughter and Next of Kin) at [address not published], Blakehurst NSW 2221

No. 2 alternative executor; Magdy Mehail DOB: [not published] (Second in charge after Georgette Hana) at [address not published], Belmore NSW 2207

7. Georgette Hana DOB [not published] at [address not published] Blakehurst, NSW 2221. Relationship: Daughter.

8. Georgette Hana share goes to Bishoy Adel Hana DOB: [not published] at [address not published], 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].

Thank you,

Bishoy Hana.”

145. This email continues to maintain the false assertion that Georgette was Nadia’s daughter, going so far as to describe her as “daughter and next of kin”. Curiously, with the words “and cannot be contested”, the email seems alive to the prospect of a future contest about the validity of the will and power of attorney.

146. When he wrote this email, Bishoy well knew he was not Nadia’s grandson. He was aware that Nadia sometimes referred to Georgette as her daughter. But this was a manner of speech in which Nadia engaged from time to time but which had never led to formal adoption.

147. Before the meeting on 12 December 2014, Mr Liondos had a further telephone conversation with Bishoy. The day before, on 11 December, Bishoy said to him on the phone, “I will be appointed as the attorney in Nadia’s power of attorney. In the will, leave the whole of the estate to Georgette Hana.”

148. Although the subject of a gift over to Mr Adel Hana had been dealt with in the 25 November – 3 December email exchange, in this conversation, when Mr Liondos returned to the subject, he received different instructions:

“Mr Liondos   What if Georgette predeceases Nadia?

Bishoy:   If Georgette predeceases, then leave the whole of the estate to her grandson.”

Bishoy then gave his full name to Mr Liondos as “Bishoy Adel Hana”. Mr Liondos agreed to proceed to prepare a will and power of attorney in accordance with those instructions.

149. Mr Liondos made a file note of this 11 December conversation with Bishoy.

The Friday 12 December 2014 Conference

150. Bishoy, Georgette and Mr Liondos gave evidence about what happened at the conference with Nadia on the afternoon of 12 December 2014. Their evidence diverged in important respects.

151. The principal contests were: (1) whether Georgette and Bishoy were in the room with Mr Liondos and Nadia when the will was discussed; and (2) whether Mr Liondos was ever told that Georgette was not Nadia’s biological daughter. On the first issue, Mr Liondos said, but Georgette denied, that they were in the room. On the second issue, Georgette said, and Mr Liondos denied, he was told Georgette was not Nadia’s biological daughter.

152. Georgette’s affidavit evidence covers these issues together. She says that she was in the room at the beginning of the conference but once the discussion moved to the will, she left the room and went to the bathroom. She says she did not feel comfortable being present for that discussion. Georgette also said that Bishoy left the room with her. But she says that just before she left, she reminded Mr Liondos she was not Nadia’s actual daughter. Georgette gives the following affidavit account of what she says happened:

“We then came to do the will:

Me:      I should not be here

Nadia:      Stay, I don't want you to leave

Me:      I have to go to the toilet.

I left and Bishoy came with me.

When I came back in I heard:

Nadia:      I don't have long to go, I want to finalise everything

Liondos:   Is there another will

Nadia:      Yes, but I want to leave everything to my daughter Georgette

Me:      Thomas, I am like her daughter

Nadia:      Shut up

Liondos:   Daughter, Daughter.

I did not take the matter any further. I did not occur to me that Mr Liondos could have believed that I was Nadia's biological daughter. I had previously said to Mr Liondos in 2007, ‘My mother has died’. I did this at the time I was renewing my lease for my childcare business. Nadia had also told me that she had met Mr Liondos previously.

Liondos:   What property do you have?

Nadia:      My home, [the South Strathfield property]

Liondos:   If Georgette dies

Nadia:      Her husband Adel.

David Shad then came into the room

Nadia:      Your George’s son, David.

David:      Yes, it’s been a while, good that you remember me.

The will was then signed.”

153. Was Georgette in the Room? Bishoy’s own evidence contradicts that of his mother on this first issue. He says they were both present in the room with the deceased as her will was discussed, and they did not leave. Bishoy is right on this. The Court accepts his version on this matter but only because Mr Liondos says the same.

154. The Court accepts Mr Liondos on the question of whether Georgette was in the room for several reasons. His recollection is generally clearer and more reliable than Georgette’s. Her strange account upon her alleged return of Mr Liondos asking about a prior will, getting an affirmative answer, and then proceeding no further on the subject makes little sense for the generally competent legal practitioner that Mr Liondos was. Mr Liondos’ memory that Nadia and Bishoy were in the room amounted to an admission against interest of less than ideal practice by a solicitor taking instructions for a will where the principal beneficiary was permitted to be present. Moreover, given what the Court elsewhere finds about Georgette’s determination a few weeks later to take control of all communications with Nadia, Georgette’s continued presence in the room is inherently likely.

155. Did Mr Liondos Believe Nadia was Georgette’s Mother? The Court finds that Mr Liondos believed Georgette was Nadia’s biological daughter. Nadia had introduced her to Mr Liondos as “my daughter” without explaining the true relationship any further. In my view, this was for much the same reason that she had acquiesced in Georgette being called her “daughter” with Dr Toohey. She did not want to have to explain the family history. Mr Liondos did not ask. And it reflected more or less how she saw Georgette.

327. But whether Nadia had capacity to make a will in late January, early February 2015 and what she might have done with that capacity can only be a matter of speculation, in which the Court need not engage. The pleaded issues relate to Nadia’s testamentary capacity on 12 December 2014 and related matters. Georgette’s wider conduct is not what this case is about.

The March 2015 Transfer

333. The Strathfield South property was the deceased’s principal asset. She held it as sole registered proprietor after her husband’s death in 2012. But in March 2015, only weeks before she died, Nadia is said to have sought to transfer the property to Georgette for nominal consideration. Georgette’s case was that Nadia expressly desired to make this gift to her in anticipation of the operation of the provisions of the December 2014 will upon the deceased’s death. Magdy and Youssef challenge the gift as improvident and as having been effected by an improper use of the deceased’s power of attorney. They claim in the proceedings that the Strathfield South property is now held on constructive trust for the estate and the transfer to Ms Hana should be set aside.

334. If the plaintiffs’ probate case had succeeded then, the Court concludes that the March 2015 Transfer would have been able to be set aside. But the plaintiffs’ probate case has not succeeded, so there may now be little point in setting aside the March 2015 Transfer. But some analysis of this part of the case is still useful.

335. The PA Act does not confer general authority on an attorney to give gifts or confer benefits to himself or herself and a power to confer such benefits must be expressly stipulated in the power of attorney: PA Act, ss 11 and 12. The enduring power of attorney that Nadia signed on 12 December 2014 and accepted by Georgette did not contain such a power of conferring benefits on the attorney. In my view, the power of attorney did not authorise Georgette to use the power to transfer the South Strathfield property to herself as she purported to do in the Real Property Act 1900 transfer lodged on 24 March 2015.

336. The Court has concluded that Nadia did not expressly authorise this gift to Georgette. Georgette’s case is that her evidence that there was a gift is supported by the fact that Nadia authorised her to have access to the safety deposit box where the Certificate of Title to the South Strathfield property was located. But in my view that does not prove a gift. It is quite logical that as Nadia as not able to leave her bed any longer that she would start to give instructions to Georgette as to where her valuables were located so that her estate could be properly administered after her death.

337. In my view, the transaction was improvident and unconscionable. Simply by reason of Nadia being in Georgette’s care and being a person wholly dependent upon her for communication with the outside world a relationship of high dependency and vulnerability was created which bespeaks a fiduciary relationship. There could be no conceivable argument to justify this gift transfer before Nadia’s death on the basis it would somehow benefit Nadia. No benefit to Nadia was sought to be identified, because one did not exist. If it is required this transaction would be set aside.

338. Other claims were made to set aside dealings with smaller amounts of estate property. But these too probably no longer need to be decided.

339. Finally, inferences can be drawn about what happened behind the scenes between Georgette and Nadia from Georgette’s behavior with respect to Nadia’s property during March 2015. Georgette seemed quite oblivious to the possibility that executing this transaction before Nadia’s death might not be in Nadia’s best interests. It shows an attitude of mind that, in my view, did not just suddenly appear in Georgette in March 2015, but an attitude which is likely to be indicative of her own dealings with Nadia in December 2014. The March 2015 Transfer shows that Georgette was prepared to ignore Nadia’s interests when they conflicted with Georgette’s self-interest. It is not difficult to infer that Georgette could have similarly disregarded Nadia’s interests by keeping Youssef, Magdy and Mary away from Nadia.

The Family Provision Claims

340. The alternative family provision claims that Magdy and Youssef bring may now be shortly considered. In my view, neither claim is persuasive and both should be dismissed.

341. The test of whether provision should be made in any case in favour of an eligible person is set out in Succession Act, s 59(1)(c):

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

…

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

342. There are many judicial statements summarising the operation of what is said to be a two-step provision. For example in Singer v Berghouse (1994) 181 CLR 201 at 209, the High Court of Australia said of the test under the previous legislation:

“The first question is, was the provision (if any) made for the applicant "inadequate for [his or her] proper maintenance, education and advancement in life"? The difference between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance" etc. were explained in Bosch v Perpetual Trustee Co8. The determination of the first stage in the twostage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty.

The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder9, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors.”

343. Whether the two-step test operated with the same full vigour in the current legislation has been recently discussed in the Court of Appeal: Evans v Levy [2011] NSWCA 125. But such considerations are not an issue in this case.

344. Other authorities have explained in more detail the meaning of the words in the legislation "adequate", "proper", and "advancement in life". Some of these authorities have been conveniently collected in the decision of Hallen AsJ in Drury v Smith [2012] NSWSC 1067 at [153] – [155], [158] and [160].

345. Magdy and Youssef’s family provision claims are founded upon a contention that they are each an “eligible person” within the meaning of Succession Act, s 57(e). They each claim that they were “a person…(i) who was at any particular time wholly or partly dependent on the deceased person…and (ii) who…at that particular time, or any other time, a member of the household at which the deceased person was a member”.

346. Only one of the elements of Succession Act, s 57(e) is seriously in issue. In my view, the Court’s previous findings sufficiently establish that both Youssef and Magdy were members of Nadia’s household respectively. Youssef and his family lived there with Nadia from about March to August 2008. Magdy and his family lived there with Nadia between February and April 2012. The Court’s findings above are sufficient for them to satisfy that element of Succession Act, s 57(e).

347. But three other issues stand in the way of the family provision claims succeeding. One is whether they were, at the time that they lived in Nadia’s household or at any other time, “dependent on” Nadia. A second is, even if Youssef and Magdy establish they are eligible persons, whether there are Succession Act, s 59(1)(b) factors warranting the making of their applications. A third is whether the applications were brought within time. The Court will deal with each of these in turn.

348. (1) Succession Act, s 57(e)(i) Dependence. Youssef and Magdy’s cases are that their residence with Nadia and Raghib shows their financial dependence upon Raghib and Nadia and their dependence is also to be inferred from the efforts that were made to bring them to Australia. There are a number of problems with this argument. First, both Youssef and Magdy and their wives had very warm relationships with Nadia and Raghib and did care for and support Nadia and Raghib when they were living in Raghib and Nadia’s household. It is difficult to characterise the relationship as one of “dependence” by Youssef or Magdy on Raghib or Nadia when there was an informal mutual exchange of accommodation for active care and support back by the younger couples to the older couple. Though not a legally binding arrangement, it was nevertheless mutually beneficial with each giving respectfully to the other to a common advantage. That was the purpose of the carer’s visas on which Magdy and Youssef came to Australia.

349. Succession Act, s 57(e)(i) requires that a person be “dependent on the deceased person”. Neither Youssef nor Magdy could readily establish that they were dependent upon Nadia, as distinct from Raghib. The inference is equally available that, if dependent on anyone, Youssef and Magdy were dependent upon Raghib. One would have to analyse Raghib and Nadia’s relative financial resources, in 2008 and 2012, which has not been done and could not be done at this stage, before inferring that they were dependent upon Nadia, rather than Raghib.

350. Moreover, it is difficult to make an adequate judgment about dependency for periods as little as one or two months (for Magdy) or five to six months (for Youssef), which are the maximum periods about which dependency can be debated in this case.

351. Finally, bringing Youssef and Magdy and their families out from Egypt does not, in my view, qualify as dependency. Magdy and Youssef and their families appear to have funded their own passages to Australia. Nadia’s assistance to them is better to be explained by Nadia’s pride in her new country and desire to assist other members of her extended family in Egypt to join her in Australia as an act of facilitation of Australian Government assistance to them, rather than creating a relationship of dependency.

352. In my view, neither Youssef nor Magdy qualify as “dependent” on Nadia, even within the broad scope given to those words by the Courts: see Petrohilos v Hunter (1991) 25 NSWLR 343 at 346-347 and Williams v Legg (1993) 29 NSWLR 687.

353. (2) Do Succession Act, s 59(1)(b) Factors Exist here? The Court has not found either Youssef or Magdy to be an “eligible person” on the basis that they cannot establish that they had been dependent members of Nadia’s household: Succession Act, s 57(1)(e).

354. But had that criterion of eligibility been made out, the requirements of Succession Act, s 59(1)(b) would be engaged in this case. It is useful for the Court briefly to examine whether, having regard to all the circumstances of the case (both past and present), there would, in this case, have been “factors which warrant the making of the application” by Youssef or Magdy. If there are no such factors, then the Court would, in any event, have had to refuse to proceed on this basis of eligibility.

355. Succession Act, s 59(1)(b) applies only to certain classes of eligible persons who are not generally regarded as natural objects of testamentary recognition of a deceased person. Eligible persons under Succession Act, s 57(e) are one of these classes. This suggests that the “factors” referred to are factors which, when added to facts which render the applicant an “eligible person”, also give the applicant the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased person: see Re Fulop (deceased) (1987) 8 NSWLR 679 at 681 per McLelland J and Churton v Christian (1988) 13 NSWLR 241; [1988] NSWCA 23; at 252E. Where persons affected by Succession Act, s 59(1)(b) have the circumstances of their relationship with the deceased set out, it can sometimes immediately be seen that they are persons who would be regarded by most observers as natural objects of testamentary recognition: Churton v Christian (1988) 13 NSWLR 241; [1988] NSWCA 23 at 252E.

356. Here, in my view, Succession Act, s 59(1)(b) “factors” do not exist to warrant giving Youssef or Magdy the status of a person who would generally be regarded as a natural object of testamentary recognition by the deceased. There are several reasons for this.

357. 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.

358. 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.

359. 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.

360. (3) Timing of the Applications. Succession Act, s 58(2) requires family provision applications to be filed within 12 months of the death of the deceased. Both Youssef’s and Magdy’s applications were out of time. But the Court has a discretion to extend time on the basis of commonly applied relevant considerations that have recently been restated in Verzar v Verzar [2014] NSWCA 45 at [23] – [25].

361. Here, the applications were only a few months over time and probate has not been granted. But the applications are so weak, for the reasons already stated, that the timing of the applications may be another reason to dismiss them, were they not otherwise to be dismissed.

362. Finally, 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 an already a substantial judgment.

Conclusions and Orders

363. This judgment does not address issues of costs. The Court’s findings will probably trigger argument about costs, and if they are to be awarded, how they should be borne.

364. The Court can perhaps anticipate Magdy and Youssef’s potential arguments that, based on the Court’s findings, Nadia’s (and Georgette’s) conduct in not telling Mr Liondos on 12 December 2014 that Georgette was not her biological daughter has helped occasion this litigation. Georgette may well dispute this.

365. The guiding principles that apply in such circumstances are well established. Where the testator has been the cause of probate litigation, the cost of unsuccessfully opposing a grant of probate as well as the costs of the successful party, may well be paid out of the estate: Re Hodges;Shorter v Hodges (1988) 14 NSWLR 698 at 705 per Powell J, and Zang v Middleton; The estate of Keith Joseph Cook, late of Balgowlah [2011] NSWSC 881. That guiding principle may need to be considered here in the exercise of the Court's costs discretion. Other competing principles may displace it and may need to be considered as well.

366. Another related issue will be from where any costs that one might be ordered would be paid, given that the principal asset in Nadia’s estate, the South Strathfield property, is now in Georgette’s name. The existing injunction against the sale of that property will, at some stage, have to be dissolved in other consequential orders.

367. I will therefore direct that both the plaintiffs and the defendant file submissions on costs and other matters within 28 days and that the issue of costs be argued at 9.30am on 14 November 2018 or such other date as is agreed with my Associate.

368. Accordingly, the Court makes the following orders and directions:

1. Grant probate of the will of the late Nadia Mekhail dated 12 December 2014 to the defendant/cross-claimant.

2. Remit the proceedings to the Registrar to complete the grant in accordance with the rules of Court.

3. Direct the parties to file submissions in relation to all issues of costs and other matters, including whether any party seeks a special costs order by Friday, 2 November 2018 at 4pm.

4. Direct the parties to file any submissions in reply by 4pm on Friday 9 November 2018.

5. List the proceedings for short argument in relation to costs and other matters at 9.30am on Wednesday, 14 November 2018 or as such other date as is arranged with my Associate.

6. Otherwise dismiss the Statement of Claim and the Cross Claim.

7. Grant liberty to apply until 14 November 2018, including as to the implementation or adjustment of these orders.

**********

Amendments

08 October 2018 - catchwords, "incorrect" before "representations"

[12] "Julian" to "Thomas"

[18] last line, add "for the defendant" after "appearance"

[30] "which the thought" changed to "which she"

[46] first line, after "scrutinised" add "Mr Soryal's"

[58] second last line, "three" to "five to six"

[82] first line, after "short notice" add, ", when Dr Goodwin was unavailable."

[98] last line, "was" to "were"

[108] second last line, "," after "issues"

[110] "migration compassionate application" changed to "migration on compassionate grounds"

[114] "and 21" after "19"

[125] "taking" replaced with "conscious of", delete "on" before "taking"

[128] second line, delete "for" and replace with "on instructions from"

[132] last line, "he" replaced with "Mr Sattout"

[144], [152] non publication of details

[174] "absconded" replaced to "corresponded"

[189] typo "she"

[191] delete "to" before continue

[202] second last line, delete "being"

[266], "and" between "Bishoy" and "Georgette" and comma after "credibility"

[271] "destined" to "desired", "issues" to "issued"

[286] "They" to "Youssef and Magdy"

[291] second last line, "estate" changed to "South Strathfield property"

[304] sub-paragraph numbering fixed, (4) added

[308] "analysis" to "statement"

[311] first line, "is" after "circumstances"

[312] second last line, "is" to "are"

[315] "are" after "scrutiny"

[316] first line, "that" after "and"

[319] fifth line, add "lack of" after "Nadia's"

[333] third line, "is said to have" after "Nadia"

[337] second line, "being" after "and"; replace "attempted" with "gift"

[338] longer typo

[339] April 2015 transaction to "March 2015 Transfer"

[348] first line, add (1) before "Succession Act"

[363] second line, delete "how" before "costs"

Decision last updated: 08 October 2018