orbas v Sidiropoulous - Estate of Kriezis

[2008] NSWSC 1041

CITATION:	Zorbas v Sidiropoulous - Estate of Kriezis [2008] NSWSC 1041
HEARING DATE(S):	24.09.08
JUDGMENT DATE :	3 October 2008
JUDGMENT OF:	Debelle AJ
DECISION:	Par 80
CATCHWORDS:	SUCCESSION - TESTAMENTARY CAPACITY - testatrix gravely ill in hospital - while in hospital will made changing previous will - whether testatrix had testamentary capacity
CATEGORY:	Principal judgment
CASES CITED:	Bailey v Bailey (1924) 34 CLR 558 Banks v Goodfellow (1870) LR 5 QB 549 Broughton v Knight (1873) LR 3 PD 64 Bull v Fulton (1942) 66 CLR 295 Estate of Dowling; Ridge v Rowden (Supreme Court of New South Wales, Santow J, 10 April 1996, unreported) Estate of Griffith; Easter v Griffith (Court of Appeal, 7 June 1995, unreported) Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698 Kerr v Badran [2004] NSWSC 735 Timbury v Coffee (1941) 66 CLR 277 Tipper v Moore (1911) 13 CLR 248 Waters v Waters (1848) 2 De G & Sm 591 Worth v Clasohm (1952) 86 CLR 439 Woodhead v Perpetual Trustee Co Ltd (1987) 11 NSWLR 267
PARTIES:	George Zorbas - plaintiff Stephen Sidiropoulous - defendant
FILE NUMBER(S):	SC 115307/06
COUNSEL:	D Grieve QC/M Southwick - plaintiff No appearance - defendant
SOLICITORS:	Macquarie Lawyers - plaintiff No appearance - defendant

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

Debelle AJ

3 October 2008

115307/06 George Zorbas v Stephen Sidiropoulous

JUDGMENT

1 His Honour: On 16 July 2004 Christina Kriezis, the testatrix, made a will. It is convenient to call it “the first will”. The plaintiff George Zorbas is the sole trustee and the only beneficiary under the first will. The will had been drafted by the plaintiff’s son who is not a solicitor.

2 On 14 December 2004 the testatrix made another will. I will call it “the second will”. The defendant Stephen Sidiropoulous is the sole executor and the only beneficiary under the second will. As I later find, it had been drafted by a solicitor.

3 On 18 February 2005 the testatrix died. She was aged 68 years. On 1 September 2006 the defendant obtained a grant of probate in common form of the second will.

4 In these proceedings the plaintiff seeks the following orders:

(1) that the grant of probate of the second will be revoked;

(2) that the defendant deposit the grant in the Registry; and

(3) that probate in solemn form of the first will be granted to the plaintiff.

It is the plaintiff’s case that the testatrix lacked testamentary capacity at the time she made the second will.

5 For a time, the defendant was represented in these proceedings by a solicitor. He filed an appearance and a defence and thereafter filed affidavits proving facts in support of the defence. I refer to those affidavits as a matter of record. I do not have any regard to them. The defendant is no longer represented by a solicitor. Although he attended some pre-trial hearings, he failed to attend the last pre-trial hearing on 19 September 2008. He also failed to attend at the hearing of this action notwithstanding that he was informed that he was required to attend and that if he did not, orders might be made in his absence. In a case of this kind, the absence of a contradictor leads to difficulty. As the court must be satisfied that the testator lacked testamentary capacity when she made the second will, I found it necessary to ask Dr Obeid, the only medical expert called, some questions so that I could clearly understand the purport of his report.

6 I set out the circumstances in which each will was made and then summarise the evidence as to the mental capacity of the testatrix when she made the second will.

7 When narrating the facts of this matter, I shall refer to the plaintiff as George Zorbas.

The first will

8 George Zorbas has known the testatrix since 1964. He met her at his parents’ home in Sydney shortly after she had migrated from Greece to Australia. In 1964 the testatrix married Jim Kriezis. Jim Kriezis is a cousin of the plaintiff. The mother of George Zorbas was the aunt of Jim Kriezis.

9 In about 1966 the testatrix and Jim Kriezis purchased a house in Drummoyne in which they lived. George Zorbas and his parents also lived in Drummoyne, a short distance from Mr and Mrs Kriezis. They saw each other frequently.

10 In 1965 George Zorbas married. In the mid 1970s he purchased a house in Drummoyne in which he lived with his wife and children. His house was not far distant from the house in which Mr and Mrs Kriezis lived. He continued to see Mr and Mrs Kriezis frequently including at family celebrations, name days, and at Easter, Christmas and New Year’s Eve.

11 In 1990 Jim Kriezis died. After his death George Zorbas saw the testatrix less frequently than before. He estimated that in the period from 1990 to 1998 he saw her on an average of about one to two times in each month. The testatrix would continue to attend festive occasions and celebrations with his extended family. After 1998 George Zorbas saw the testatrix more frequently.

12 The testatrix sold her matrimonial home in 1998 and purchased a home unit. She continued to reside in that unit until she died. The home unit was in Drummoyne a short distance from the house in which the plaintiff resided with his family. The evidence of George Zorbas is that after 1998 the visits to his house by the testatrix increased so that she saw one or more members of his family almost every day. George Zorbas would take the testatrix to church. From time to time he lent her money.

13 George Zorbas has a son called Nickolas Zorbas. He has a friend called Kristian Miller who is a retired funeral director and a Justice of the Peace. George Zorbas and Kristian Miller have known each other since 1967.

14 According to George Zorbas, in about April 2004 the testatrix asked him to act as his attorney. He agreed.

15 Nickolas Zorbas said that early in 2004, the testatrix spoke to him and told him that she wanted him to prepare a will for her. A few months later, in about the middle of 2004, the testatrix telephoned him and said that she wanted a will drawn that day. He suggested that she see a solicitor. His evidence is that she replied that she did not want to see her solicitor because she owed the solicitor money. Nickolas Zorbas then replied that he would download a will from the internet for her.

16 Nickolas Zorbas downloaded from the internet forms for a Power of Attorney and a will and then completed them. On 16 July 2004, the testatrix telephoned Nickolas Zorbas at home and asked if he had contacted Kristian Miller because she wanted to execute the will and Power of Attorney. Later on 16 July 2004, Nickolas Zorbas went to the home unit in which the testatrix resided. Also present at the home unit were George Zorbas and Kristian Miller. Nickolas Zorbas showed the testatrix the Power of Attorney which she then executed. The witness to the Power of Attorney was Kristian Miller. The Power of Attorney appointed the plaintiff as the sole attorney for the testatrix. The testatrix executed the Power of Attorney with a printed signature.

17 After the testratrix had executed the Power of Attorney, George Zorbas left her unit. After a brief conversation with Nickolas Zorbas about the unit, the testatrix then signed the will in the presence of both Nickolas Zorbas and Kristian Miller. She signed the will with a printed signature.

The testatrix is admitted to hospital

18 On 16 October 2004 the testatrix telephoned Nickolas Zorbas saying she was feeling very unwell. He went to her unit and then called an ambulance. The testatrix was admitted to Concord Repatriation General Hospital (Concord Hospital) on 16 October 2004. She was suffering from a kind of dermatitis. She had rashes all over her body. She constantly scratched her skin which was red and, on occasions, bleeding from her scratching. She was treated. It is not clear whether she remained in Concord Hospital for a short time. She was later admitted to Royal Prince Alfred Hospital on 20 October 2004. Her condition continued to deteriorate. She was re-admitted to Concord Hospital on 31 October 2004.

19 When re-admitted to Concord Hospital, the testatrix was still suffering from dermatitis. She was continuing to scratch herself to the point where she would cause bleeding. On 18 November 2004 she was diagnosed as suffering from a malignant form of lymphoma. She was treated with chemotherapy. She also contracted pneumonia. The medical records show that at that time she was in considerable distress and gravely ill.

20 On 21 November 2004 the testatrix was admitted to the intensive care unit at Concord Hospital with respiratory distress due to pneumonia. Treatment of that condition required intubation, that is to say, the introduction through the mouth of a tube designed to keep her air passage open. She remained in the intensive care unit until a little after midnight on 9 December 2004. At about 1.00am on 10 December 2004 she was returned to a general ward. It had been intended to discharge her from the intensive care unit on 30 November 2004 but her condition did not permit that.

The plaintiff visits the testatrix

21 According to George Zorbas, while the testatrix was in hospital, he visited her and spoke to the medical practitioners treating her to learn of her condition and treatment. He paid three accounts for her. They were for council rates, a Telstra account, and an electricity account. They totalled $748.43. He also sent a Medicare cheque for her to the Wales Day Centre. George Zorbas informed the staff at Concord Hospital that he was the next of kin of the testatrix whom the hospital should contact if necessary. Failing him, he asked that they contact his son Nickolas.

22 While the testatrix was in the intensive care unit at Concord Hospital, George Zorbas said that he visited her twice a day, on the way to work and on the way home from work. He said that her arms were restrained to prevent her scratching herself. She was intubated, she had tubes to her nostrils and a drip. She could neither move nor speak. She could only nod her head.

23 George Zorbas said that, after the testatrix had been diagnosed with malignant lymphoma, he had asked her if she wanted him to contact her brother John Sidiropoulous in Greece. She said “No” and shook her head. I do not attach any weight to that evidence. There could have been a number of reasons why the testatrix did not want him to contact her brother.

24 In November 2004, when he believed that the testatrix was very ill, George Zorbas telephoned John Sidiropoulous and told him that the testatrix was very ill in hospital and recommended that he come to Australia to see her before she died. John Sidiropoulous replied that he could not come because he was very ill himself.

The defendant visits the testatrix

25 On 3 December 2004 the defendant visited the testatrix at Concord Hospital. The defendant is the son of John Sidiropoulous. I infer that he had come to the hospital because he had been informed by his father that the testatrix was ill in hospital. That afternoon, George Zorbas went to Concord Hospital. He and the defendant had a conversation with the medical practitioners who were treating the testatrix. According to George Zorbas, the defendant informed the doctors that he was the next of kin of the deceased. He informed them that he was the nephew of the testatrix and asked the medical practitioners to contact him in respect of any decisions to be made concerning the testatrix. George Zorbas said that he then informed the medical practitioners that he had been making decisions for the testatrix and that he held a power of attorney executed by her. He said that he would continue to make any decision in respect of his aunt.

26 According to George Zorbas, he then went to see the testatrix in her room and spoke to her. He told her that her nephew Stephen had come and asked her if she wished to see him. She nodded but did not speak. George Zorbas then brought the defendant in to the room and left him with the testatrix. After about 10 minutes, George Zorbas returned to the room and said that he was leaving.

27 In the afternoon of 4 December 2004 George Zorbas went to the home unit of the testatrix to collect mail. The defendant was already at the home unit. According to George Zorbas, he was carrying a black garbage bag. George Zorbas asked the defendant how he had entered the unit and, according to George Zorbas, the defendant replied “I have my ways”. George Zorbas informed the defendant that he held a power of attorney and held a key to the unit. He and the defendant began arguing. Nickolas Zorbas called the police. The police came. However, no action was taken by the police.

28 On 5 December 2004 George Zorbas and the defendant both visited the testatrix. She was lying on a bed. Her arms were restrained. She had a tube in her mouth, and drips in her arms. The plaintiff said that on that occasion a nurse was present. She first asked the testatrix whether she recognised the defendant and the testatrix then nodded her head. The nurse then asked the testatrix whether she knew who George Zorbas is and the testatrix again nodded her head. The testatrix then tried to speak but was not able to do so.

29 The testatrix was transferred from the intensive care unit to a general ward late at night on 9 December 2004.

30 The second will was made on 14 December 2004, while the testatrix was still a patient at Concord Hospital. There was no evidence as to the circumstances in which the second will was made. I have examined the grant of probate. The will was duly executed, the witnesses being a solicitor and a law clerk. The will has the appearance of being professionally drawn. Given the matter in which the will has been drawn and the fact that a solicitor is one of the witnesses, I find that the will was drawn by a solicitor.

31 George Zorbas continued to visit the testatrix at Concord Hospital. He said that he then visited her at least once every second day.

32 The condition of the testatrix deteriorated. Whilst at Concord Hospital she had undertaken two cycles of chemotherapy. The second cycle commenced on 21 December 2004. It was decided to cease chemotherapy on 20 January 2005. On 16 February 2005 the testatrix was moved to Greenwich Hospital for palliative care. She died on 18 February 2005.

33 In his affidavit, George Zorbas deposed to a conversation at about 11.00pm on 18 February with Kristian Miller who informed him that the testatrix had died. He said that on 19 February he phoned Concord Hospital to ask when the testatrix had died. He was informed that she had been transferred to Greenwich Hospital on 16 February. This evidence casts some doubt over earlier paragraphs in his affidavit when he said that he visited the testatrix at least every second day.

34 George Zorbas deposed that he had endeavoured to make funeral arrangements for the testatrix. The defendant also made funeral arrangements and the testatrix was buried in accordance with the defendant’s arrangements. George Zorbas said that he was unaware when the funeral took place so that he and his family did not attend it.

The relevant law

35 The test for determining whether the testatrix was of testamentary capacity when she made the second will is expressed by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565 in these terms:

“It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

At 566 Cockburn CJ added:


“If it be conceded, as we think it must be, that the only legitimate or rational ground for denying testamentary capacity to persons of unsound mind is the inability to take into account and give due effect to the considerations which ought to be present to the mind of a testator in making his will, and to influence his decision as to the disposal of his property, it follows that a degree or form of unsoundness which neither disturbs the exercise of the faculties necessary for such an act, nor is capable of influencing the result, ought not to take away the power of making a will, or place a person so circumstanced in a less advantageous position than others with regard to this right.

It may be here not unimportant to advert to the law relating to unsoundness of mind arising from another cause – namely, from want of intelligence occasioned by defective organisation, or by supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement, such defect of intelligence being equally a cause of incapacity. In these cases it is admitted on all hands that though the mental power may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains. It is enough if, to use the words of Sir Edward Williams in his work on Executors, “the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done.”

The operation of that test in modern times was explained by Windeyer J in Kerr v Badran [2004] NSWSC 735 at [49].

36 The question of testamentary capacity is a question of fact: Tipper v Moore (1911) 13 CLR 248. It is a practical question, one in which the good sense of men of the world is called into action, and … it does not depend solely on a scientific or legal definition: Broughton v Knight (1873) LR 3 PD 64; Estate of Dowling; Ridge v Rowden (Supreme Court of New South Wales, Santow J, 10 April 1996, unreported). To like effect to the remarks of Kirby P in Re estate of Griffith deceased.

37 The onus of proof that the testatrix was of testamentary capacity at the time she made the second will lies upon the person propounding the will: Bailey v Bailey (1924) 34 CLR 558 at 570-571 per Isaacs J; Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 704-706 per Powell J. In this case, that is the defendant. The standard of proof is the ordinary civil standard: Bull v Fulton (1942) 66 CLR 295 at 299 per Latham CJ; Worth v Clasohm (1952) 86 CLR 439 at 452-453; Woodhead v Perpetual Trustee Co Ltd (1987) 11 NSWLR 267 at 273.

38 The burden of proof may shift in the course of the trial. That proposition was explained by Dixon J in Timbury v Coffee (1941) 66 CLR 277 at 283 in these terms:

“If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding. But if there are circumstances in evidence which counterbalance that presumption, the decree of the court must be against its validity, unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it”(per Cresswell J., Symes v Green ) – Cf. per Holroyd J., In the Will of Key.” In the end the tribunal – the court or jury – must be able, affirmatively, on a review of the whole evidence, to declare itself satisfied of the testator’s competence at the time of the execution of the will. ( Smith v Tebbitt ; Sutton v Sadler )” (per Rich J., Landers v Landers). ”

[Citations omitted]

The remarks of the High Court of Australia in Worth v Clasohm at 452-453 show how the evidential burden may shift. They also illustrate the care to be taken by the court when determining whether the testatrix had testamentary capacity when making a will:

“After anxious consideration of the whole case we are of opinion that there is no sufficient reason for denying that a testatrix who appeared to so many competent observers to be completely sane, and made a completely rational will, lacked a sound disposing mind. A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution. It appears to us that there is ample ground for that belief in this case.”


The need for caution was also noted by Gleeson CJ in Estate of Griffith; Easter v Griffith (Court of Appeal, 7 June 1995, u

nreported). He said:

“This formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. The power freely to dispose of one's assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter.”

Although he dissented in that case, Kirby P at par 8 of his reasons also emphasised the need for caution, adding that the court must carefully consider all relevant facts and must carefully examine the medical evidence so far as it bears on factors relevant to a determination of mental capacity rather than whether a particular condition such as delusions has been established. Windeyer J re-emphasised those issues in Kerr v Badran at [49].

A small estate

39 The testatrix was a pensioner. She had no income other than her pension. She had only one major asset, her home unit at Drummoyne. The plaintiff estimated the value of the home unit to be about $500,000.

40 There is no evidence that the testatrix had any close relative other than the defendant who was her nephew and her brother, the father of the defendant, who resided in Greece. The plaintiff is not as closely related to the testatrix as the defendant. He is the cousin of Jim Kreizis, the husband of the testatrix. Jim Kreizis had died in 1998. While friendship and service may give rise to just claims, they do not necessarily prevail over considerations favouring those who are close relatives of the testatrix: cf: Banks v Goodfellow (1870) LR 5 QB 549 at 563-564.

41 This was, therefore, a small estate with only one asset. The defendant is a close relative of the testatrix. There is no evidence that there is any other relative residing in Australia. On its face there is nothing untoward in the testatrix deciding to bequeath her only asset to the only close relative she had in Australia.

42 There is no evidence of any suspicious circumstances attending the making of the second will. It was duly executed. It was drawn by a solicitor and witnessed by a solicitor and a law clerk. The only other evidence concerning the making of the second will is to be found in the medical records of the testatrix while at Concord Hospital. The effect of that evidence is that the testatrix had seen a solicitor. The will had been typed. It comprises two pages. It is reasonable to infer and I find that the instructions for the will had been given either earlier in the same day or, as is more likely, on the day before or several days before. The will had then been typed at a solicitor’s office and brought to the hospital for execution. It is reasonable to infer and I find that the defendant arranged for the will to be prepared and executed. He is the only beneficiary. In some circumstances the fact that a will is prepared and executed at the request of the sole beneficiary of the will gives rise to suspicion as to the circumstances in which a will is made. In this case, I do not think that it a cause for suspicion. There is no evidence that the defendant knew that the testatrix had made an earlier will. The testatrix had been diagnosed with a malignant lymphoma. Given that that disease had the capacity to cause the early death of the testatrix, it was appropriate that she made a will. The fact that she had already made a will did not mean that she could not make a fresh will.

43 The second will is rational on its face. The testatrix appoints the defendant, who is her nephew, as the executor and gives the whole of her estate to him. There is no evidence that there is any claim upon the bounty of the testatrix by any relative of closer kinship to the testatrix than the defendant. The plaintiff is not as close in kinship to the testatrix as the defendant. Significantly, the will has been executed and attested in the manner prescribed by law. In addition, the witnesses are a solicitor and a law clerk. The will was drawn by a solicitor. In light of these circumstances, it is to be presumed that the testatrix was a person competent to make a will: Timbury v Coffee at 283.

44 However, the evidence of Dr Obeid, unopposed as it was by other medical evidence, raises a doubt as to the testamentary capacity of the testatrix. He unequivocally states that in his opinion the testatrix was suffering delirium and was not capable of making a will. I have regard to his evidence. His report requires me to make what the High Court in Worth v Clasohm called a “vigilant examination” of the whole of the evidence.

The medical evidence

45 The main body of evidence led as to the capacity of the testatrix to make a will is that of Dr Obeid who provided a report dated 11 June 2007. He is a consultant physician and geriatrician. He has completed specialist training in geriatric medicine. He had neither seen nor treated the testatrix. His report is grounded on affidavits sworn by the plaintiff. Not all of those affidavits have been read. His report is also grounded on the medical reports concerning the testatrix while she was being treated at Concord Hospital. As he said in his evidence, the primary basis for his opinion was those medical records. In his opinion the plaintiff was suffering from delirium. He believed she had been suffering from delirium for a period of one month prior to the date on which she made the second will and continued to suffer from delirium thereafter. In his view it is extremely unlikely that the testatrix was not delirious at the time of signing her second will. Parts of his report purport to state the conclusions on questions that are for this Court to determine.

46 In his report Dr Obeid noted medical issues which, he asserts, are relevant to the testamentary capacity of the testatrix.

47 The first is that the testatrix was gravely ill in the period leading up to 14 December 2004. There can be little doubt that the testatrix was gravely ill for a period of some two months before she made the second will. She was in the intensive care unit at Concord Hospital from 21 November to 9 December 2004 and consideration was being given to her being admitted for a third time on 13 December 2004.

48 The second is that the testatrix had documented structural abnormalities of the brain. He noted them in his report:

“2.2 The deceased had documented structural abnormalities of the brain.
2.2.1 Computerized tomography (CT) of the brain on 12 November 2004 was reported as showing cerebral atrophy, dilation of the ventricular system and subcortical white matter disease. This is indicative of cerebrovascular disease.
2.2.2 Nuclear Medicine SPECT scanning performed on 15 November 2004 demonstrated severe subcortical disease (particularly in the right temporal lobe) as well as some cortical disease. This was thought to be on the basis of a vascular aetiology. “

However, as Dr Obeid acknowledged in his evidence, the existence of those two conditions did not necessarily mean that the patient was suffering from delirium.

49 The third of the medical issues is delirium. Dr Obeid described the condition in these terms:

“2.4 Delirium is the commonest medical disorder present in hospitalised older patients. Despite this, various studies have shown that delirium is only recognised as being present in about 20% of cases. The commonest causes of delirium are infection (e.g. urinary tract infection, pneumonia, septicaemia), medications (especially anticholinergic drugs, benzodiazepines and antihistamines) and metabolic derangements (e.g. hypoxia, electrolyte imbalance, renal or hepatic impairment).
2.5 Delirium independently predicts death in a hospitalised older person, but because it is reversible if the underlying causes are diagnosed and treated it is critical that it be recognised and managed appropriately. in the case of the deceased, recognition of the problem, cessation of mediations exacerbating the problem and aggressive management of hypoxia and infection were required to alleviate or reduce the severity of the delirium.
2.6 Delirium is a disorder of cognition that primarily affects attentional abilities. It is due to medical not psychiatric causes. Its principal features are an acute or subacute onset, fluctuating course and altered attention or level of consciousness.
2.7 The "fluctuating course" of delirium means that the patient's level of consciousness may be seen to vary from time to time during the course of the day. Improvements or reductions in the level of consciousness during the course of a day or from hour to hour are a normal feature of the illness and in the underlying disease process or gravity of the state of ill-health of the patient. In particular, the patient suffering from delirium does not pass between being unconscious or hallucinating in one part of the day to being able to rationally ass the extent of their assets and able to carefully plan the making of Will in another part of the day. “

50 When Dr Obeid attended for questioning on his report, I referred to that description and asked him if disorientation and irrationally were fair descriptions of what he had described. The relevant questions and answers are were follows:

“Q: To the ordinary layman delirium would denote disorientation and irrationality, are they fair descriptions of what you describe as delirium in that report?

A: Loosely your Honour yes, delirium is a specific medical disorder which consists, it is primarily a disorder of the person's attentional level so their ability to focus attention shifts, appropriately determine what is going on. It is a medical problem, not a psychiatric problem. A person with a brain disorder such as dementia is more likely to have a delirium episode when they are subjected to a medical problem however dementia and delirium are not synonymous so it is a disorder, or acute or subacute onset characterised by a fluctuating level of consciousness and a disorder of attention. It is potentially reversible if the underlying medical causes can be reversed to, say it is characterised by irrationality, perhaps is one symptom of the disease of delirium.

Q: Would it be fair to summarise what you have just said as being an inability on the part of the patient to properly understand what is occurring around him or more?

A: It will be very difficult for the patient to do so due to the altered level of attention they have.

Q: Could it be characterised by what might be described as inadequate responses to questions?

A: Yes, absolutely.

Q: In that sense indicates a state of what might be called disorientation?

A: Orientation to a medical practitioner such as a geriatrician may mean knowing the day, date, time, place they are in so that is a specific medical understanding of orientation but to the lay persons what you are saying would be correct, that they may appear disoriented.

Q: With an understanding of date, time, place, where one is at, be indicated the person is not suffering from delirium, in other words if they are orientated in the medical use of that expression?

A: Yes.

Q: It would be reasonable to confer they are not suffering from delirium?

A: No your Honour a person may in fact have a delirium even if they are fully oriented and have a normal memory. If I may just quickly explain, the orientation and short-term memory are tests that one would do in order to diagnose a dementia, however, delirium is a specific and separate medical disorder where the primary problem is attention rather than memory or orientation so it is an attentional disorder. In its most extreme form the person would be comatose, if I could explain it that way … But it is possible to be in a delirium and still be orientated however most people who have a delirium have an underlying cognitive disorder such as a dementia or other brain disease and that disorder may be manifest as having problems with orientation and memory.”

I then asked Dr Obeid if a patient suffering from delirium was capable of having lucid intervals. He said that they were. The capacity to have lucid intervals might, he said, depend on the severity of the delirium.

51 The medical records relating to the testatrix do not suggest that she suffered from delirium. That is acknowledged by Dr Obeid. In his report he said:

“2.3 It is clear that the deceased had a delirium around the 14th December 2004 and for some weeks prior. This seems to have been missed by the treating medical teams and inappropriately she was referred to a psychiatrist. No mention was made of the diagnosis of delirium though it is clear from the medical records that this was present. “

Dr Obeid explained that assertion in his report and in his oral evidence by stating that delirium is diagnosed in about 20 per cent of cases. As will be seen from par 2.9.14 of his report quoted below, he repeated the assertion that the medical and nursing staff had failed to diagnose the condition. In his evidence, he acknowledged that the treating staff at the hospital were in a better position than he to diagnose whether the testatrix was in fact suffering from delirium. While making that acknowledgement, he repeated that he was in a better position to ascertain whether a patient had delirium because in most cases hospital staff failed to make the diagnosis.

52 I was not impressed with the evidence of Dr Obeid. It borders on the presumptuous for a medical practitioner who has not seen a patient but has read only medical records to assert that he is able to make a diagnosis that other medical practitioners have missed. In this case that is especially so given that the other medical practitioners constantly saw the testatrix for a period of at least three months. The medical records relating to the testatrix were proved. I have examined them. In my view they do not support Dr Obeid’s opinion. For the reasons that follow, I am not satisfied that the testatrix was suffering from delirium.

53 Dr Obeid’s report listed symptoms which he said were consistent with delirium and had been extracted from the medical records. His report listed what he called “other reports of relevance”:

“2.9 The first report of symptoms consistent with delirium is documented in the nursing notes of 08/11/2004 at 1240 hours: "Patient very lethargic today". Other reports of relevance in the medical record include:
2.9.1 10/11/2004: Dr Barrett (psychiatry registrar) noted that the deceased was "irritable" and that her "irritability appears to be unlike her usual self". An incorrect focus began on "cerebral involvement of her disease" and a diagnosis of delirium was not made.
2.9.2 11/11/2004: nursing staff noted that the deceased was "very lethargic".
2.9.3 16/11/2004: nursing staff reported she was "confused" and "weak on legs".
2.9.4 18/11/2004: Dr Russo and team noted that she was "very agitated today - not normally like this". Later in the same assessment she was reported to be "drowsy but easily rousable". Despite this classic description of delirium, still no diagnosis was made and later Dr Roxana (psychiatrist) felt that these were "possible mood changes".
2.9.5 22/11/204: Nursing report noted that she was "alert and responsive this shift". Note that it is typical for delirium to fluctuate and that the patient may appear to be alert and "back to normal" at times.
2.9.6 26/11/2004: Nursing report "stable, alert, obeys commands but sometimes very aggressive".
2.9.7 01/12/2004: "Pt very agitated, manical (sic) in the morning, trying to pull out ETT despite restraint. Propofol inf. stated to calm pt down".
2.9.8 07/12/2004: "Pt drowsy by rousable".
2.9.9 10/12/2004: "Pt drowsy this am, remained in bed".
2.9.10 13/12/2004: "Pt de-saturating - 84-88% on 40% O2". It should be noted that the 13th of December was the day before (or possibly the day of) the signing of the Will. The severity of the hypoxia the deceased was suffering on that day would be a significant contributor to delirium and impaired testamentary capacity. Hypoxia (or hypoxaemia) refers to reduced arterial oxygenation concentrations. This causes reduced delivery of oxygen to the brain resulting in impaired function of the brain.
2.9.11 14/12/2004: "Anxious, coherent and orientated". Note that as I mentioned earlier, clinical staff are generally very poor at diagnosing or detecting delirium and comments that the deceased was "oriented" do not indicated that she was not delirious. In addition, the deceased did not speak English very well and required an interpreter. I am therefore uncertain how nursing staff would have ascertained that the deceased was "oriented" or indeed what the staff member may have meant by "oriented".
2.9.12 16/12/2004: "became agitated and aggressive towards N/staff".
2.9.13 16/12/2004: Dr Roxanas notes "drowsy but can be aroused".
2.9.14 Because medical and nursing staff frequently miss delirium, and notation of its presence is highly significant and the absence of any comments on the mental status of the patient does not indicate that the mental status was normal. “

Given Dr Obeid’s definition that delirium is primarily a disorder of a person’s level of attention, characterised by an inability of a person properly to understand what is occurring around her and inadequate responses to questions, these extracts are not the only relevant extracts. Other relevant extracts are noted in the reasons that follow.

54 Dr Obeid’s evidence was that one of the symptoms that caused him to believe that the testatrix was suffering from delirium was “a fluctuating level of consciousness”. He defined that expression to mean a person’s ability to attend to what is going on in their environment and to be able to shift attention appropriately to take into account other factors that the person might need to be concerned about. Dr Obeid identified as examples of a fluctuating level of consiousness those extracts which refer the testatrix being “very lethargic”, “drowsy but easily rousable” and “very agitated today” or more like expressions. The note “very agitated today” is in the medical record for 18 November 2004 and is qualified by the comment “not normally like this”. Dr Obeid conceded that lethargy is consistent with causes other than delirium. One explanation might be the drugs the testatrix was taking. He conceded also that drowsiness is consistent with causes other than delirium. It might, for example, be explained by the hour of the day. Reference has already been made to one note of drowsiness being recorded at 05:15 hours.

55 In his report at par 2.9.9 (quoted above), Dr Obeid quotes part of a report at 10:00 hours on 10 December. His report described the testatrix as “drowsy”. He has failed to mention that at about midnight on 9 December 2004 the testatrix was transferred from the intensive care unit to a general ward at Concord Hospital. A note at 01:00 hours on 10 December records that the testatrix was “alert, awake, oriented”. The drowsiness at 10:00 might well be explained by an interrupted sleep that night.

56 Common experience also indicates that patients in hospital with little to do might be drowsy in a sense that they dose off from time to time but readily awake when approached. Dr Obeid’s reliance on drowsing does not I think rest on a sound foundation. While it may be indicative of delirium, it is consistent with a number of other explanations. When asked if it was not uncommon that patients in a hospital with little to do might catnap, Dr Obeid replied than in 50 per cent of cases an elderly patient would be delirious. Accepting that answer, it does not establish on the balance of probabilities that a patient of advanced years who is drowsy suffers from delirium.

57 An examination of the medical records discloses that, while there are occasions when the testatrix was irritable, very agitated, aggressive, and on 1 December maniacal, there are many other entries that describe her as being “alert”, “responsible”, “co-operative”, “alert and compliant”, “alert and co-operative”, “alert, obeys commands properly”, and the like. The most detailed observations as to the alertness or otherwise of the testatrix are to be found in the medical records made while the testatrix was in the intensive care unit, the period from 21 November to 9 December 2004, a period of 19 days. In that period there are at least 10 days when she is described as alert, co-operative and the like. There are also times in that period when she was irritable and uncooperative or aggressive. However, even on some of those latter occasions, she obeyed commands as, for example, on 26 November 2004, when she was described as stable and alert but sometimes very aggressive. Thus, for at least half of the time while the testatrix was in the intensive care unit, she was manifesting symptoms that indicated she was aware what was happening and was appropriately responsive to it. Dr Obeid conceded that some extracts show that the testatrix was aware of her situation and was responding appropriately. There are a sufficient number of those instances to call Dr Obeid’s diagnosis of delirium into question.

58 Furthermore, the extracts chosen by Dr Obeid do not always convey the whole picture on any one day. His extract from the medical records for 16 November quoted a report by nursing staff that the testatrix was “confused” and “weak on legs”. That entry is part of a more detailed entry that noted that the patient had come back from a bone scan “without a ward RN escort and left without handover”. I understand that expression to mean that the testatrix had not been properly escorted back to the ward and had been left somewhere without being handed over to the nursing staff on duty in the ward. That might well explain why the testatrix was confused.

59 Dr Obeid noted that on 7 December 2004 the hospital records include a note “Drowsy but rousable”. That is part of observations by nursing staff at 05:15 hours that morning. The early hour might well be one explanation for her drowsiness. Significantly, that is part only of the observations made by the nurse at that time. The whole of that relevant part of the report reads:

“Pt drowsy but rousable. Moving all limbs. Obeys commands. Very co-operative this shift”.

Other observations made on 7 December record the testatrix as being responsive to the situation around her. At 13:00 hours the nursing staff made this note:

“Pt drowsy but arousable. Obey the commands properly. Moving all limbs, alert … refused to wash mouth sometimes, explained to her and she agreed to wash mouth.”

In addition to the fact that the report describes the testatrix as alert, it indicates that, despite an initial unwillingness, she washed her mouth (part of the mouth care treatment for a sore mouth from which she was suffering) when the desirability of doing so was explained to her. All this indicates a person attentive to what is happening and making an appropriate response.

60 At 17:00 hours on 7 December a social worker made a note concerning a conference between hospital professional staff including an ICU specialist and specialist haematologist. The conference was conducted through a Greek interpreter. The whole of that note must be read. I note some relevant extracts:

“Mrs Kreizis was explained the dynamics of her illness, treatment plan and possible need for (indecipherable). Mrs Kreizis indicated that she understood all that was explained to her and asked appropriate questions. In regards to who she would like as person responsible pt indicated she wanted her nephew Stephen, However did not want neither he or George to know as she wants to make her own decisions. In the event however pt stated she wanted Stephen to be person responsible if she was unable to make decisions … Team happy that following assessment with interpreter Mrs Kreizis has the mental capacity to make decisions and understand the implications of her decisions.”

It is clear that the social worker believed that the testatrix was attentive and responded appropriately to what was being said. When his attention was directed to this note, Dr Obeid expressed the view that the social worker was not qualified to make that assessment. Dr Obeid had no basis for that comment. He did not know who the social worker was or the skills and experience of that social worker. For those reasons I reject the criticism. In my view, it was an attempt by Dr Obeid to explain away evidence that stood in the path of his conclusion. More importantly, the view of the social worker was confirmed by another assessment of the testatrix made that day.

61 The assessment of the social worker was supported by one of the psychiatrists at Concord Hospital. I have read the whole of the psychiatrist’s note. I will not quote it in its entirety. It is similar in effect to the report of the social worker. The report included the following:

“We discussed about who should be the “person responsible”. Christina mouthed that she wanted Stephen to be the person responsible and nodded when asked.
- She also indicated that she didn’t want George or Stephen to know this at the moment
- She appeared to be concerned about how George would feel …
- Christina nodded and shook her head appropriately, she also mouthed names and questions. That showed that she understood what was being discussed
- She responded appropriately to discussion about (indecipherable) and benefits of the tracheotomy including mouthing “will I die?” when the option of not having chemo was discussed.
- Christina made her wishes clear through nodding, pointing and mouthing words
- Christina has the capacity to make these decisions.”

That same report also records the result of a family conference that had been noted in the social worker’s report, though I have not quoted it. Both reports expressed the same conclusions. It noted that the family members agreed to respect her wishes. Those members of the family had visited the testatrix at hospital. They were in a position to assess her faculties and, relevantly, her capacity to be attentive and to respond appropriately. The fact that they were willing to respect her wishes does not necessarily mean that the testatrix was aware of what was occurring and was responding appropriately, but, when considered with all of the other evidence indicates that she was. When his attention was drawn to the psychiatrist’s observations, Dr Obeid responded that the testatrix was intubated and unwell, feverish and in the intensive care unit. He thought that it was unlikely that she was able to respond appropriately. However, Dr Obeid does not know all of the circumstances of the conference. He does not know how information was given to the testatrix nor how adequately she responded. A psychiatrist present at the conference is obviously qualified to make the assessment. In addition, Dr Obeid was not present at that conference, a fact to which considerable weight must be given. In my view Dr Obeid’s respnse was another attempt to explain away evidence which had not been referred to in his report and which stood in the path of his conclusions. In addition, it fails to have regard to the fact that the psychiatrist’s report repeatedly refers to appropriate responses by nodding as well as to occasions when the testatrix mouthed an answer.

62 The medical records indicate that, after 7 December, the testatrix continued to be aware of what was happening and responded appropriately. In the early part of 9 December she was not co-operative but was alert. The notes made at 06:45 hours that day read:

“Pt is awake, alert, selectively obeying commands, very uncooperative, refusing to be suctioned most of the time but I managed with persistence, moving all limbs and helps with turning.”

The fact that the testatrix was selectively obeying commands indicates an understanding of what is occurring and decisions as to which commands will be obeyed. Later that day at 15:30 hours, the physiotherapist described her as “alert, obeying”. More significantly, on the same day a psychiatrist had spoken to her in the Greek language. The note of that conversation record:

“She is in good spirits
- comfortable
- happy that she is being understood”

Dr Estell, a haematologist, also made a note that day after seeing the testatrix:

“Mrs Kriezis would like to defer chemo until Monday when she will tell me if she’s prepared to go ahead or not”.

These notes indicate that the testatrix was attentive to what was being said and responding appropriately. At 18:30 hours the same day she is described as “awake, alert, obeying commands” and at 21:00 as “cooperative”.

63 On 10 and 11 December it is noted that the testatrix is alert. The notes kept whilst the testatrix was in the general ward do not record in the same degree of detail the observations as to the alertness or otherwise of the testatrix. However, on 13 December, it is noted that she was “able to assist in turning”. The same day Dr Estell discussed her future with her. The note of that discussion reads:

“Discussion with patient in presence of Dr Foley. Patient temporarily declining chemo due to chest problem and sepsis and is prepared to consider it at a later date when more stable.”

Again, the note points to an ability of the testatrix to be attentive and respond appropriately even though her condition at this stage required “intensive one on one nursing care”.

64 In par 2.9.10 of his report Dr Obeid noted that on 13 December the testatrix was de-saturating. He quotes from a note in the records made at 14:45 hours and goes no to state that the severity of the hypoxia would be a significant contribution to delirium. Dr Obeid has referred to part only of the relevant note. It goes on to state the testatrix had been treated and was then saturating at 96 per cent. The note added “Pt appears comfortable”. Dr Obeid also failed to refer to a note in the medical records at 12:30 hours that day which stated that the testatrix was saturating at 94 – 98 per cent. No doubt the testatrix was having breathing difficulties but she was being treated for them. Other notes made that day and especially the note by Dr Estell show that she was attentive and making adequate responses.

65 On 14 December the testatrix was again described as “alert”. The medical records note that she had been stable overnight. At 10:00 hours she is described as “alert and co-operative”, although she was feeling unwell. There was a note at 10.45 hours of discussion with two medical practitioners to explain and then ask if she wished to receive further chemotherapy. An interpreter was present. The note includes the following:

“States her solicitor came to see her last night. Her nephew Stephen is the person she has elected to make decisions if she is unable”.

In his oral evidence Dr Obeid conceded that that note indicated that the testatrix was aware of what was occurring and had made an appropriate response. Having done so, Dr Obeid questioned whether the note was made on 15 December and not 14 December, suggesting that it might not have been a contemporaneous note. Although the note appears to be out of place, it is in the same hand as another made on 15 December 09:40 hours. I find that the note was made on 14 December.

66 The note made at 10:45 hours on 14 December goes on to state that the doctors explained to the testatrix that she had responded well to the first cycle of chemotherapy but that she had become very sick afterwards. She was told she had to decide whether or not she wanted further chemotherapy. The notes recorded that:

“She replied that she does want to proceed with chemotherapy, but not today”.

The note then recorded that, after further advice to the testatrix as to the desirability of more chemotherapy for a period as long as six months, that the type of lymphoma she had was aggressive, and that with more chemotherapy she may live another year but that, if she did not undertake that treatment, it was not expected that she would live for very long, perhaps only a few weeks, the testatrix responded:

“When asked if she wanted to proceed with chemotherapy she asked “Why? Why are you asking me? Explained it is her decision. Christina has indicated she would like some to time think about it.”

The two responses by the testatrix are not entirely inconsistent. But they are given at different stages in the course of the advice she had received. They indicate a person who is attentive to what has been said and is responding appropriately to what would obviously be a very difficult question. It is quite understandable that, on the second occasion, she should seek time to consider. These notes only serve to confirm that, that on 14 December, the date when she executed the will, the testatrix was alert, attentive and responding adequately to what was being put to her.

67 All of these criticisms cause me to question Dr Obeid’s conclusions. I find that his evidence is quite unsatisfactory. On occasions he sought to explain away a fact that stood in the path of his conclusion with an implausible answer. It is difficult to escape the conclusion that Dr Obeid has been guilty of failing to have regard to all relevant facts when reaching his conclusion. In my view, Dr Obeid was selective in the extracts he had made in his report. While it is obviously impracticable to include every extract, it is important that a balanced picture be presented. The extracts quoted by Dr Obeid made no reference to those occasions when the testatrix was conducting herself quite rationally. His brief note of the observations made by staff on 7 December 2004 (see par 2.9.8 of his report) is a stark instance. Some of those occasions were close to 14 December, the date when the testatrix made her second will. Dr Obeid conceded that the note made on 14 December and referred to in par 65 above indicated that the testatrix was aware of what was occurring and had made an appropriate response. He made like concessions in respect of other notes. His report contains nothing which conveys the effect of notes made occasions such as 7 December and 14 December.

68 In addition, as he has expressly acknowledged in his report, his opinions required acceptance of the proposition that over the period of more than three months while the testatrix was at Concord Hospital no member of the hospital medical staff and no member of the hospital nursing staff diagnosed delirium. As already noted, Dr Obeid acknowledged that the treating staff at the hospital were in a better position than he to determine whether the testatrix had suffered from delirium. They were seeing her constantly over a relatively long period. I do not overlook his evidence that, according to studies, the fact that a patient is suffering from delirium is diagnosed in only 15 to 20 per cent of cases. However, there is no gainsaying the fact that Dr Obeid had never seen the testatrix nor examined her. His conclusions are based on what he has read in the medical records. Given his acknowledgment that symptoms such as lethargy and drowsiness are equally consistent with causes other than delirium, given his failure to quote all relevant extracts, given what I find to be selective quotation, and, most importantly, given the frequency with which the testatrix is described in terms such as alert, obedient to commands and co-operative, I am not satisfied that the diagnosis of delirium is correct.

69 Dr Obeid gave evidence that on 10 November the testatrix had hallucinated, a symptom consistent with delirium and delusion. It is the only occasion on which he believed that she had hallucinated. Accepting that the testatrix had hallucinated on that occasion, it was more than one month before she made the second will. My view is that this is one of those occasions when the testatrix was so seriously affected by her illnesses that she became delirious on that occasion. There are too many instances thereafter when the plaintiff was behaving rationally that it is reasonable to treat it as an isolated event.

70 The medical records have several references to matters being explained to the testatrix with a Greek interpreter present. They appear to be occasions of some significance or importance in the course of her treatment. On most occasions, the staff at the hospital appear to have spoken to her in English. There is no evidence of the capacity of the testatrix to converse in English. She had migrated to Australia in 1964. It is reasonable to infer that, in the 40 years in which she had resided in Australia, she had become reasonably fluent in English. There is nothing in the affidavits of George Zorbas or Nickolas Zorbas to suggest otherwise. Indeed, a reading of those affidavits suggests that they conversed with the testatrix in English. In his evidence Dr Obeid seemed to place some reliance on the need for interpreters suggesting that the hospital records to the effect that the testatrix understood matters when no interpreter was present were inaccurate or could not be relied on. I disagree. I find that, in the 40 years in which she had resided in Australia, she had reached a reasonable degree of fluency in English, certainly sufficient for her to conduct rational conversations with hospital staff. Dr Obeid had no knowledge of the capacity of the testatrix to converse in English. In my view this was another occasions on which he sought to explain away a difficulty, in this case by an answer that had no foundation in fact.

71 The plaintiff could have obtained evidence from one or two of the doctors at Concord Hospital who had treated the testatrix. They could have given evidence of facts which might have provided a sounder basis for Dr Obeid’s opinion. It would have rested on a surer foundation than a mere reading of the medical records. The failure to call such evidence and the failure to call the general practitioner for the testatrix, medical practitioners who are in a much obviously in a better position than Dr Obeid to determine whether the testatrix was suffering from delirium, is another reason why I am not prepared to accept Dr Obeid’s conclusion.

72 There are other factors that cause me concern about Dr Obeid’s report. First, he referred to medication taken by the testatrix that, he said, “affected her ability to think rationally and clearly leading up to the time when the will was executed”. At the same time, he acknowledged that he had not seen her medication charts. Secondly, he referred to par 57 of an affidavit sworn by George Zorbas in which he said that on some occasions when he visited the testatrix in the hospital “she could not speak as she has sores in her mouth”. Dr Obeid commented that sores in the mouth would “not cause a fluctuating ability to speak. Delirium is the more likely explanation”. However, in his evidence, Dr Obeid acknowledged that he did not know the extent to which the testatrix suffered from sores in her mouth. He explained that by saying that there were other times when the testatrix could speak. If she had sores in her mouth, it would have limited her ability to speak at all times. The medical records for 25 November 2004 record that the mouth of the testatrix was ulcerated. There are a number of reports to the effect that the testatrix had to have her mouth washed to treat the condition. It is reasonable to infer the sores were worse on some occasions. There is no sound basis for Dr Obeid’s conclusion. Apart from that fact, George Zorbas saw the plaintiff and would have been aware of the reasons why she could not speak to him. I do not accept Dr Obeid’s explanation. It is but another instance of an to attempt to explain away a difficulty by an implausible answer not soundly based on fact.

73 Finally, when expressing his opinions as to the capacity of the testatrix to satisfy the four criteria in Banks v Goodfellow, Dr Obeid has made some conclusions that rest on inadequate evidence. I put to one side the question whether his conclusions in these matters are appropriate for him to draw. Dr Obeid fairly states that it was difficult for him to comment firmly on the question of whether the testatrix understood the purpose of making a will and whether she had an appreciation of the extent of her assets. He then commented:

“3.2 >From the records you have given me, the first two of the Banks-v-Goodfellow criteria are difficult to comment on firmly. However, in my experience it is highly unlikely that a person in delirium would be capable of the first two criteria. The medical records appear to only state whether the Deceased was oriented or cooperative and whether she seemed to understand issues relating to her disease and treatment but do not comment on specifically on any other capacity issues.”

Thus, he leaves those two issues open.

74 Dr Obeid then expressed the view that the testatrix was not capable of taking into account rightful claims on her estate. That conclusion is founded on the fact that the plaintiff was not a beneficiary under the second will and on the affidavits supplied on behalf of the plaintiff that stated that he had provided years of emotional, financial and other support to the testatrix. As I read his report, Dr Obeid was not supplied with any affidavits on behalf of the defendant. His conclusion is grounded on untested evidence in support of the plaintiff. I asked him whether he knew the relationship between the testatrix and the defendant. He answered that he could not recall if he did ever know that. After he had looked at the affidavits, he said that it appeared from reading them that the defendant was the nephew of the testatrix. I have serious doubts whether, when writing his report, Dr Obeid was aware that the defendant was the nephew of the testatrix. Even if he did, he has made no allowance for that fact when expressing his conclusion. His conclusion is grounded on an inadequate assessment of the facts.

75 As to the fourth criterion, namely, that the testatrix had to be free of disorders that were likely to effect her ability to make decisions Dr Obeid commented:

“3.4 Regarding the fourth criterion, it is clear to e that the deceased suffered from delirium. It is inappropriate for a Will to be made or a major decision to be undertaken by a delirious patient. Her fluctuating level of consciousness would draws (sic) serious doubt on her ability to be at an optimum state of attention to be able to appreciate the purpose of making a will, understanding the extent of her assets or recognising the reasonable claims upon her estate.”

It is apparent that Dr Obeid’s conclusion that the testatrix suffered delirium rests on what he called the fluctuating levels of consciousness of the testatrix. I have already expressed my concerns about Dr Obeid’s reliance on the fluctuating causes of consciousness.

76 Counsel for the plaintiff also tendered an earlier report made by Ms Farrelly, a clinical psychologist. The report is dated 19 December 2005. The plaintiff had initially relied on this report. It had been supplied to his son Nickolas Zorbas. I find that Nickolas Zorbas had given instructions to Ms Farrelly to prepare the report. Ms Farrelly had reviewed the medical records at Concord Hospital. She concluded that the testatrix did not have “the mental capacity to sign a new will on 13.12.05 or 14.12.05”. The reference to the two dates in December 2005 is obviously an error. Ms Farrelly does not mention delirium in her report. However, the report refers to the evidence of disorganisation at the home unit of the testatrix. She noted that the testatrix was gravely physically ill and in and out of fever and had at one time experienced hallucinations. On the basis of her reading of the medical records and the neuropathology, she reached her conclusion. At no stage does Ms Farrelly refer to the possibility of lucid intervals. She makes no reference to the relationship of the defendant to the testatrix nor, it seems, is she aware of the fact that the second will was prepared by a solicitor. Ms Farrelly’s report does not address a number of the concerns I have mentioned when dealing with Dr Obeid’s report. I find it unsatisfactory. It does not affect my conclusions. In any event, the plaintiff does not rely on it. Ms Farrelly concluded her report stating:

“A specialist physician could provide comments on the gravity of her illness, and the fevers and the effects that these could additional have on her mental capacity, given the established cerebral neuropathology”.

It is reasonable to infer in light of that paragraph the plaintiff decided that Dr Obeid should be instructed. The plaintiff now relies on his report. For all of these reasons, I place no reliance on the conclusions reached by Ms Farrelly.

Conclusion

77 When viewed as whole, I find the evidence of Dr Obeid to be unsatisfactory. While his conclusions as to delirium might have raised a doubt as to the testamentary capacity of the testatrix when making the second will, after careful consideration of the report and of his evidence I am satisfied on the balance of probabilities that the testatrix did in fact have testamentary capacity when making the second will. I do not think that Dr Obeid’s report is sufficiently reliable to call that conclusion into question. I am fortified in that conclusion by the absence of evidence from medical staff at Concord Hospital and the testatrix’s general practitioner.

78 It is appropriate to have regard also to the notes in the medical records for 7 December where the views of the testatrix as to who is to make decisions on her behalf are recorded. They disclose a preference that the defendant should act for her. That decision was made at a time when the testatrix was being visited by both the plaintiff and the defendant. However, as the notes record, the testatrix did not want either the plaintiff or the defendant to know her decision as she preferred to make her own decisions. The physiatrist’s note adds “she appeared to be concerned about how George would feel”. These notes are a clear indication that she was aware that her decisions might offend George. Given her preference for the defendant, it is not surprising that she should make a second will in which he is the sole beneficiary.

79 In addition, there is no evidence from those who best knew the testatrix suggesting any degree of irrationality, lack of attentiveness of any incapacity to make appropriate responses or to make appropriate decisions. George Zorbas had known the testatrix for some 40 years. He son Nickolas and his friend Kristian Miller had known her for many years. There is nothing in the evidence of any of them that points to any mental or intellectual incapacity on the part of the testatrix. The absence of such evidence only serves to reinforce my conclusion. I find that, although the testatrix may times have suffered delirium or at least severe distress because of the serious nature of her illness and the severity of the particular afflictions from which she suffered, she conducted herself on quite a number of occasions rationally. In particular, I find that on 14 December 2004 she was quite rational and had the capacity to understand the nature and effect of what she was doing. The testatrix had a small estate and she chose as her sole beneficiary a person whom the evidence indicates was her closest relative in Australia. I am satisfied that she had testamentary capacity when she made the second will.

80 For all of these reasons, I find that the testatrix had testamentary capacity when she made the second will. It follows that I dismiss the plaintiff’s claim.

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