Petrovski v Nasev; The Estate of Janakievska
[2011] NSWSC 1275
•17 November 2011
Supreme Court
New South Wales
Medium Neutral Citation: Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 Hearing dates: 24, 25, 26, 27, 28 October 2011 Decision date: 17 November 2011 Jurisdiction: Equity Division - Probate List Before: Hallen AsJ Decision: Order that:
(a) Subject to compliance with the rules of Court, Probate in solemn form of the deceased's Will made on 15 April 1999 be granted to the Plaintiffs;
(b) The matter be referred to the Registrar to complete the grant;
(c) The Cross-Claim be dismissed;
(d) If the parties are unable to agree on the burden of costs, the matter is adjourned to hear argument;
(e) The Exhibits, with the exception of each original Will, should be dealt with in accordance with the Uniform Civil Procedure Rules and the Court Books may be returned.
Catchwords: The deceased made two wills during her lifetime, the first in 1999 and the last in 2004 - No dispute that the 1999 Will was duly executed and otherwise valid - Sole issue whether 2004 Will valid and should be admitted to probate - If valid, it revoked the 1999 Will - Central questions concerning the validity of the 2004 Will, are whether the deceased validly executed the 2004 Will; whether she had testamentary capacity; and whether the Will was produced as a consequence of undue influence - Late amendment to assert also the deceased's lack of knowledge and approval of the 2004 Will Legislation Cited: Evidence Act 1995
Probate and Administration Act 1898
Succession Act 2006
Uniform Civil Procedure Rules 2005Cases Cited: Alvaro, In the Estate of; (deceased); Public Trustee v Alvaro (1995) 182 LSJS 383; [1995] SASC 5183
Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Bool v Bool [1941] St R Qd 26
Boughton v Knight (1873) LR3P&D 64
Boyse v Rossborough (1857) 6 HL Cas 2; 10 ER 1192
Bull v Fulton (1942) 66 CLR 295
Carey v Norton [1998] 1 NZLR 661; (1997) 16 FRNZ 686
Craig v Lamoureux [1920] AC 349
Du Maurier v Wechsler [2001] NSWSC 4
Edwards v Edwards [2007] WTLR 1387
England, In the Will of (1900) 22 ALT 86
Griffith, Re; Easter v Griffith (1995) 217 ALR 284
Hall v Hall (1868) LR 1 P & D 481; 32 JP 503
Hodges, Re; Shorter v Hodges (1988) 14 NSWLR 698
Hoff v Atherton [2005] WTLR 99
Jolley v Jarvis [1964] P 262
King v Hudson [2009] NSWSC 1013
Kuhl v Liebcheschel [1933] SASR 394
Levy, Re [1953] VLR 652
Miller v Jones [1999] NSWCA 467
Munn, In re [1943] SASR 304
Nicholson v Knaggs [2009] VSC 64
Nock v Austin (1918) 25 CLR 519
Oakes v Uzzell [1932]
Osborne v Smith [1960] HCA 89; (1960) 105 CLR 153
Palin v Ponting [1930] P 185
Pates v Craig & Anor; The Estate of Cole (NSWSC, Santow J, 28 August 1995, unreported)
Pemberton v Pemberton (1807) 13 Ves 301
Perrins v Holland [2009] EWHC 1945
Revie v Druitt [2005] NSWSC 902
R, In re (dec'd) 2 All ER 117 [1950]
Scarpuzza v Scarpuzza [2011] WASC 65
Sharp v Adam [2006] WTLR 1059
Schultz v Bailey [2007] NSWCA 110
Smith v Tebbitt (1867) L.R. 1 P&D 398
Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81
Trustee for the Salvation Army (NSW) Property Trust t/as the Salvation Army v Becker (2007) 14 BPR 26,867; [2007] NSWCA 136
Tsagouris v Bellairs [2010] SASC 147
Vernon v Watson; Estate Clarice Isabel Quigley dec'd [2002] NSWSC 600
Williams, formerly Cook v Goude and Bennett (1828) 1 Hag Ecc 577
Wingrove v Wingrove (1885) LR 11 PD 81
Winter v Crichton (1991) 23 NSWLR 116
Young v Holloway [1895] P 87
Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197Texts Cited: American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders ("DSM IV")
Hutley's Australian Wills Precedents, 7th ed, (2009) LexisNexis Butterworths
Jarman on Wills, London, Sweet and Maxwell, 8th ed, (1951), Vol. 3
Wills and Intestacy in Australia and New Zealand, Hardingham, Neave and Ford (1989) (2nd Ed)Category: Principal judgment Parties: Pavle Petrovski
(first Plaintiff/first Cross-Defendant)
Elli Stojanoska
(second Plaintiff/second Cross-Defendant)
Gordana Becvarov
(third Plaintiff/third Cross-Defendant)
Alek Nasev
(Defendant/Cross-Claimant)Representation: Counsel:
Mr L Ellison SC; Mr M Tanevski
(Plaintiffs/Cross-Defendants)
Mr M Meek SC; Dr H Bennett
(Defendant/Cross-Claimant)
Solicitors:
McGrath Dicembre & Co
(Plaintiffs/Cross-Defendants)
D Stanefska & Associates
(Defendant/Cross-Claimant)
File Number(s): 2009/310754
Judgment
The Claims
HIS HONOUR: Vasilka Janakievska (also known as "Vasa Janakievska") ("the deceased") died on 29 May 2009. At the date of her death, she was aged 87 years, having been born in August 1921. This is a probate action that arises following her death.
The evidence establishes that the deceased made two wills during her lifetime, the first being made on 15 April 1999 ("the 1999 Will") and the last being made on 17 December 2004 ("the 2004 Will"). There is no dispute that the 1999 Will was duly executed, and that, when made, it was a valid and effective Will. The sole issue is whether the 2004 Will is a valid will, and as such should be admitted to probate. If it is valid, then it revoked the 1999 Will. I shall return to each of the Wills later in these reasons.
The central questions concerning the validity of the 2004 Will, are whether the deceased validly executed the 2004 Will; whether she had testamentary capacity, and whether that Will was produced as a consequence of undue influence. The deceased's lack of knowledge and approval of the 2004 Will, although not alleged, initially, by way of defence to the validity of the 2004 Will, was relied upon as a result of a further amended Defence to Cross-Claim which was filed, in Court, without opposition, on the second last day of the hearing.
The first Plaintiff was named as one of the executors in each of the two Wills. Until the filing, on 13 October 2011, of an amended Defence to Cross-Claim, he did not seek a grant of Probate of the 2004 Will, or plead, that in the event the 2004 Will is valid, he would join, with the Defendant, in obtaining the grant. In fact, he asserted that, because of the matters alleged, he did not propound the 2004 Will.
The deceased's estate in New South Wales, at the date of death, comprised both movable, and immovable, property, being real estate in Rockdale ($555,000) and in Erskineville ($565,000), shares ($571) and cash in bank ($125,496). No liabilities were disclosed in the Plaintiffs' affidavit of executors sworn 11 July 2009. Thus, the estate, at the date of death, had an estimated total gross value of $1,246,067. (I have stated, and, hereafter, shall state, only the dollar amounts and shall omit a reference to the cents.)
At the date of hearing, the nature of the estate remained substantially the same, but its value has increased. There is no specific evidence of the current value of the real estate or the amount held in the bank account. However, the parties agreed, at the hearing, that the value of the estate is in the order of $1.5 million. No liabilities have been identified, although it may be that there are some. There are, of course, the costs of the proceedings.
The Proceedings
The Plaintiffs, Pavle Petrovski, Elli Stojanoska and Gordana Becvarov, commenced the proceedings by Summons filed on 13 July 2009 seeking a non-contentious grant of Probate in common form. Subsequently, there were directions that resulted in the matter proceeding by way of pleadings and the Defendant was joined as a party.
The Plaintiffs filed a Statement of Claim on 14 August 2009. They sought a grant of Probate in solemn form of the 1999 Will. (In fact, the Statement of Claim referred to the 2004 Will and asserted the reasons why it was not a valid will. This was not the form the pleading should have taken but nothing much really turns on this.)
The Defendant, Alek Nasev, filed his Defence on 28 September 2009. Apart from putting the Plaintiffs to proof of some of the formal facts asserted in the Statement of Claim, the Defendant stated that the 2004 Will was made by the deceased and that it is "the last will and testament of the deceased which revokes all previous testamentary instruments".
On the same day, the Defendant filed a Statement of Cross-Claim, in which he sought a grant of Probate in solemn form of the 2004 Will.
In the Defence to the Cross-Claim, which was filed by the Plaintiffs on 20 November 2009, the Plaintiffs put the Defendant to proof of the facts pleaded (other than the date of the deceased's death and that she left property in New South Wales). They did not assert, expressly, a lack of capacity, or undue influence, in this pleading. However, in the Statement of Claim, they had referred to the 2004 Will and had pleaded that the 2004 Will was not duly executed and/or valid.
In particulars relating to invalidity of the 2004 Will, they asserted:
"(a) The deceased at the time was 82 years of age and senile;
(b) At the time the deceased had been suffering from defective memory;
(c) The deceased in December 2003 suffered a stroke that caused her to be in poor health physically and mentally; defective memory and incapable of understanding the nature and effect of the act of execution of a will;
(d) The deceased did not speak, read or write in the English language and the document purporting to be a later will does not appear to have been translated into the Macedonian language;
(e) The execution of the document purporting to be a later will was obtained by undue influence on the part of the Defendant taking advantage of the deceased's ill health, poor memory and unfit mind to misrepresent and pressure the deceased to the point where the influence was such that the execution of the purported will was not of her own volition."
In a letter dated 18 August 2011, the Plaintiffs' solicitors provided further particulars of undue influence. At the hearing, the parties agreed that the contents of this letter should be treated as additional particulars relied upon, namely:
"(a) That the Defendant had threatened to take court action against the deceased if she refused to transfer her property at Erskineville to him;
(b) That the Defendant continually harassed and demanded that the deceased transfer to him the Erskineville property;
(c) That the Defendant instructed a solicitor as to the terms of the will of the deceased without the deceased's authority;
(d) That the Defendant took the deceased to a solicitor to sign the said will;
(e) That the Defendant instructed the solicitor in relation to the preparation of the will without the consent, understanding and/or knowledge of the deceased;
(f) That the Defendant through his instructions to the solicitor caused the solicitor to forward to the deceased a letter dated 28 October 2004 which letter it will be alleged the deceased believed to be the commencement of proceedings by the Defendant that the Defendant had threatened against the deceased;
(g) The Defendant was present with the deceased and the solicitor when the will was executed and as such no opportunity was afforded to the deceased to seek confidential and independent legal advice in the absence of the Defendant;
(h) That the Defendant was aware and/or ought to have been aware that the deceased was frail, unwell, and had difficulties with her memory and particularly was not of sound mind."
A copy of the letter was added to the tender bundle of documents. It was accepted that the letter was not admitted as evidence of the truth of its contents, but simply as additional particulars of the allegation of undue influence.
In the further amended Defence to the Cross-Claim to which I have referred, the Plaintiffs relied upon the following particulars in support of the defence of lack of knowledge and approval (amended in these reasons to follow the nomenclature used):
"(a) There is an absence of an appropriate translation clause in the 2004 Will.
(b) The 2004 Will did not reflect instructions given by the Defendant.
(c) The 2004 Will did not reflect instructions as were given by the deceased.
(d) To the extent the Defendant gave instructions consistent with the deceased's state of mind, he was not authorized to do so.
(e) The name of the deceased was spelt incorrectly in the introductory words of the 2004 Will.
(f) The Defendant was not authorised to give instructions as to the terms of the 2004 Will.
(g) The deceased did not provide instructions as to the terms of the 2004 Will.
(h) The deceased did not authorise the Defendant to give instructions for the 2004 Will.
(i) The deceased did not approve the 2004 Will.
(j) The terms of the will drafted and presented by solicitor, Dobrinka Zlatevska, did not reflect such instructions (or the tenor of those instructions) as may have been given to the solicitor by the deceased.
(k) The deceased did not understand the term 'executors and trustees' and the functions associated therewith.
(l) The deceased did not know she was signing a Will."
They added, as particulars of lack of testamentary capacity:
"(c) The deceased in August 2004 suffered a stroke that caused her; to be in poor health physically and mentally; defective memory and incapable of understanding the nature and effect of the act of execution of a will.
(d) The deceased was incapable of understanding the nature and effect of the act of execution of a will and/or lacked testamentary capacity."
and particulars of undue influence:
"(i) That the Will effected a substantial change to the deceased's long-standing testamentary intentions;
(j) That the Defendant was involved in procuring a will that substantially benefits him;
(k) That the Defendant had a motive for influencing the deceased to make a will in his favour;
(l) That the deceased was vulnerable and submissive to domineering behaviour;
(m) That there were irregularities in preparing the will;
(n) The Defendant attending the deceased's solicitor's office only days after the deceased attended the solicitor believing the Defendant had instituted legal proceedings against her and the Defendant making enquiries as to the testamentary intentions of the deceased at that time.
(o) The differences in the nature of relationships with the deceased between the Plaintiffs and the Defendant."
In a Reply, filed on 17 October 2011, the Defendant asserted that the first Plaintiff "has renounced, or lost, the right to seek to have with the Cross-Claimant, a joint grant of the Will of the deceased dated 17 December 2004" because he did not propound all testamentary documents, or renounce all testamentary documents, and because he has actively taken steps inconsistent with "claiming any right of executorship under the 2004 Will". The Defendant stated, in the alternative, that the Court, in its discretion, ought not grant Probate to the first Plaintiff, upon the basis that "there is little prospect that he will be both willing and able to co-operatively jointly administer the estate with the Cross-Claimant, and as such the due administration of the estate is likely to be jeopardized and his involvement is likely to unnecessarily add to the costs of administration of the estate". Thus, a supplementary question, regarding whether the first Plaintiff has renounced Probate of the 2004 Will, thereby resulting in a grant not being made to him and to the Defendant jointly, could have arisen.
At the commencement of the submissions, I was informed that the Defendant accepted, in the event he was successful, that there should be a grant of Probate, in solemn form, of the 2004 Will, to him and to the first Plaintiff.
Notice of the Plaintiffs' application for probate of the 1999 Will was published in the Sydney Morning Herald on 11 June 2009.
The Hearing
As there was no dispute about the validity of the 1999 Will, the Plaintiffs' case in chief was limited to tendering the original of the 1999 Will and to reading the affidavit of one of the attesting witnesses to the deceased's signature on that Will. The attesting witness, whose affidavit was read, had also translated the contents of the 1999 Will to the deceased. (There was no affidavit from either of the other two attesting witnesses, but this was unnecessary in the light of the agreement of the parties about the validity of this Will.)
The Plaintiffs also read what may be described as the executors' affidavit sworn by them, which, amongst other things, identified the 1999 Will, confirmed that the deceased had not remarried after that Will had been executed, asserted that each of them was over the age of 18 years and stated that if probate were granted to them, they would administer the estate according to law and, if necessary, verify and pass accounts.
The Defendant's case proceeded, then, with reading of the affidavits relied upon by the Defendant. These affidavits included an affidavit from the Defendant, his wife, the solicitor who prepared the 2004 Will, and various friends of the deceased who gave evidence about conversations each had with the deceased.
The second attesting witness to the deceased's signature on the 2004 Will was not required for cross-examination. She had sworn a formal affidavit of attesting witness and another affidavit stating that she did not have any recollection of the circumstances in which the 2004 Will was made.
Three other witnesses relied upon by the Defendant, to whom I shall refer later in these reasons, were cross-examined.
In their defence to the Cross-Claim, the first and second Plaintiffs, two solicitors who met with the deceased in 2004, and two medical witnesses called on the issue of the medical condition of the deceased, each gave evidence. Finally, an affidavit of a forensic document examiner was read. His evidence constitutes a small part in the determination of the proceedings, and I shall refer, briefly, to some of his evidence.
Although the matter was listed for 10 days, it was completed within 5 days. This was due to the diligence, and competence, of the legal representatives of the parties, who complied with all pre-trial directions (including compiling a bundle of agreed documents), took all reasonable steps to confine the issues, and did not spend a significant amount of time taking objections to the evidence, or cross-examining witnesses, who could not add very much to the mosaic of facts necessary to decide the case. Overall, the cross-examination of the principal witnesses was not unduly protracted.
In addition, the submissions provided by senior and junior Counsel for each of the parties were succinct and provided useful assistance. The original of each of the submissions will remain with the papers.
Dramatis Personae
The following persons play a part as a party, or a witness, or have been referred to, otherwise, in the proceedings. I identify each in no particular order, or priority, and state matters regarding her, or him, that are not in dispute, or which have clearly been established by the evidence. I have indicated, where necessary, the witnesses who were not cross-examined.
(a) Vasilka Janakievska is the deceased. She was born in 1921. She was married, but she and her husband had no children.
(b) Petar Janakievski was the husband of the deceased. He died in September 1993. Probate of his Will was granted to the deceased. The whole of his estate passed to her.
(c) Pavle Petrovski is the nephew of the deceased. His mother is a sister of the deceased. He is the first Plaintiff in these proceedings.
(d) Loza Petrovska is the wife of Pavle and the mother of Elli and Gordana. She was not cross-examined.
(e) Elli Stojanoska is the daughter of Pavle and Loza. She changed her first name from "Elica" to "Elli", which change was registered on 19 September 2002, in a Change of Name Certificate. She is referred to as "Elica" in the 1999 Will. She and her husband, Robert, lived with the deceased for a little over a year commencing in 1994, and then again, with their 3 children, for about 5 years, between about 2000 and 2005. She is the second Plaintiff in the proceedings.
Throughout her life, Elli referred to the deceased as her grandmother, although, of course, the deceased was not. The deceased was her great-aunt.
(f) Robert Stojanoski is the husband of Elli. He was not cross-examined.
(g) Gordana Becvarov is also a daughter of Pavle and Loza. Her married name is "Becvarov". She is the third Plaintiff in the proceedings. She was not cross-examined.
Throughout her life, she, also, referred to the deceased as her grandmother, although, of course, the deceased was not. The deceased was her great-aunt.
(h) Alek Nasev is the brother of the deceased's husband, Petar, and the brother-in-law of the deceased. He is the sole Defendant in the proceedings.
(i) Katia Nasev is the wife of Alek.
(j) Nick Pertsoulis is the solicitor employed at Edward Kassis & Associates and the solicitor to whom the deceased gave instructions for, and who prepared, the 1999 Will. He is also one of the attesting witnesses to the signature of the deceased on the 1999 Will. He did not swear an affidavit in the proceedings and was not cross-examined.
(k) Eva Harb was a secretary in the offices of Edward Kassis & Associates and one of the attesting witnesses to the signature of the deceased on the 1999 Will. She did not swear an affidavit in the proceedings and was not cross-examined.
(l) Alexander Attapallil is a solicitor who was admitted to practice in 1998. He purchased the firm Edward Kassis & Associates. The firm acted for the deceased, in about 1994, following the death of her husband, to obtain Probate of Petar's Will.
Mr Attapallil had been the principal of the firm when the 1999 Will was prepared by a solicitor in the firm, but had nothing to do with its preparation or execution. He did not meet the deceased until about 2004. By that time, the firm's name had been changed to Lexes Lawyers.
(m) Gordana Bozinovska is a solicitor who completed the Legal Practitioners Admission Board course in 2004 and was admitted to practice in February 2005. She is a lawyer formerly admitted, and practising, in Macedonia. She worked with Mr Attapallil. She is able to speak Macedonian and when the deceased attended upon Mr Attapallil, she translated for them.
(n) Dobrinka Zlatevska is a solicitor who was admitted to practice in 1975. She made the acquaintance of the deceased as a member of the same congregation of the Macedonian Orthodox Church. She had seen the deceased at Church on the main religious festivals over the years. She and the deceased were aware of one another. They exchanged greetings and customary pleasantries. They did not visit one another's homes. She had never acted for the deceased, in respect of any legal matters, prior to 2004.
Ms Zlatevska had been, and in 2004, was, one of the solicitors who had acted for Alek and Katia in relation to his, or their, legal matters. In fact, Alek had retained Ms Zlatevska's firm to act for him, at different times, from the early 1980s.
She is the author of the 2004 Will and one of the attesting witnesses of the deceased's signature on that Will. She met with the deceased and Alek on 17 December 2004, on which day the 2004 Will was executed by the deceased.
Ms Zlatevska's firm has continued to represent Alek in these proceedings, even though it must have been clear that it was very likely that she would be a witness in the case. (I make no criticism of her because it appears from the evidence that she has been astute to ensure that she has not participated in the conduct of the case on behalf of the Defendant. Another solicitor from her office was instructed and Ms Zlatevska did not attend the hearing until she was required.)
(o) Julie Bogdanovski is the other attesting witness of the deceased's signature on the 2004 Will. She is a paralegal who was employed in the offices of D Stanefska & Associates from March 1997. She was not cross-examined.
(p) John Stojcevski is a family friend of the deceased and of the Plaintiffs. The deceased requested him to attend, with her, upon her solicitors approximately a week or two prior to the 1999 Will being executed. He attended, with the deceased, and as Mr Pertsoulis read each paragraph of that Will out aloud, he translated what had been read out in English into the Macedonian language. He identifies who was present at the time the 1999 Will was executed and acknowledges his signature on that Will. He was not cross-examined.
(q) Krste Crkovski was a long-time friend of Petar, the deceased and Alek.
(r) Donka Crkovska is the wife of Mr Crkovski and was also a friend of Petar and of the deceased.
(s) Risto Johns was a long-time friend of Petar and of the deceased. He would attend Church with them.
(t) Rade Kocoski was a long-time friend of Petar and of the deceased. He would attend Church with them. He was not cross-examined.
(u) Jana Kocoska is the wife of Mr Kocoski and a long-time friend of Petar and of the deceased. She would attend Church with them. She was not cross-examined.
(v) Victoria Mabbutt met Pavle, the deceased, and Petar, in about 1974, when they moved into premises next door to where she lived. She was not cross-examined.
(w) Dr Mihajlo Mihajlov is a medical practitioner who has practised in Australia since 1972 and who, at the end of 2004, retired from practice. He was the general medical practitioner for the deceased and Petar for over 30 years. He spoke, in Macedonian, to the deceased when she attended his surgery.
(x) Professor Daniel Chan is a Geriatrician, who provided two expert reports relied upon on behalf of the Plaintiffs. He did not ever meet or treat the deceased.
(y) Stephen Dubedat is a forensic document examiner who examined a two-page file note dated 17 December 2004, in the handwriting of Ms Zlatevska, "with a view to determining when the note was prepared and if there were any handwritten insertions written with a different coloured black ink on the file note".
Without any undue familiarity, or disrespect intended, in these reasons I shall, hereafter, refer to each of the Plaintiffs, the Defendant, and the other family members by her, or his, given name. At times, where I am referring to the three Plaintiffs together, I may identify them as such.
Background Facts
I directed the parties to prepare a statement of agreed background facts and chronology. I have taken the facts that I set out below, with some amendments, principally, from the Outline of Submissions prepared by counsel for the Defendant.
The facts I set out in this paragraph are agreed or, where they are not, I am satisfied that the evidence clearly establishes them.
(a) The deceased was born in Macedonia. She was one of three children. Only her sister, Pandora Petrovska, is alive. She lives in Macedonia. Pavle is the son of Pandora.
(b) Alek was born in April 1931, in Macedonia. He arrived in Australia in about 1955. On arrival he worked as a mechanic. He later commenced a successful trucking business and was able to accumulate funds to purchase various properties. He sponsored the immigration of family members from Macedonia.
(c) The deceased and Petar arrived in Australia in about 1963, having been sponsored by Alek. Initially, they lived in a house at Croydon Park, which Alek had purchased and had registered in the name of Petar and his sister, Zaharia. Alek lived there with the deceased and Petar.
(d) Between 1964 and 1968, Alek worked overseas. In 1968, he married Katia. They have one child, Despina. (There is no evidence of the relationship between the deceased and Despina.)
(e) For some time between 1964 and 1968, the deceased and Petar lived at a house, in Enmore, whilst they were able to save enough money to purchase the property at Erskineville. They did this with the further assistance of funds from Petar's share of the sale of the house in Croydon Park.
(f) At about this time, the deceased and Petar worked as process workers at CSR.
(g) Pavle was born in May 1945 in Macedonia. He arrived in Australia in about November 1965. On arrival, he lived with the deceased and Petar in rented accommodation in Enmore. However, within a short time, they all moved to the property in Erskineville, where they remained living for a number of years. He assisted with repairs and maintenance of the Erskineville property and with general expenses.
(h) Petar made a will on 5 October 1971. In that Will, he appointed the deceased as his sole executrix and trustee, and, provided she survived him by 30 days, left her the whole of his estate. In the event that she predeceased Petar, or died before proving his Will, the deceased appointed Alek and Pavle to be the executors and trustees of the Will. His Will also provided:
"...
4. IF my wife should predecease me or die within thirty (30) days of my death THEN I GIVE DEVISE AND BEQUEATH all my real and personal estate as aforesaid and any property over which I may have a power of appointment unto my trustees UPON TRUST to sell call in collect and convert into money such part of my estate as shall not consist of money at such time or times and in such manner as they shall think fit with power to postpone the sale calling in or conversion of the whole or any part or parts of my real and personal property during such period as they shall think proper and to leave the same in its present form of investment without being responsible for loss and to stand possessed thereof whether converted or unconverted or reinvested UPON TRUST for themselves in equal shares as tenants in common absolutely. ..."
(i) There is no evidence that the deceased made a will at the same time as her husband, or if she did, what the terms of that will were.
(j) In about 1973, Pavle purchased a house at Tabrett Street, Rockdale, which he, initially, rented to third parties.
(k) In about 1974, the deceased and Petar purchased a house at Herbert Street, Rockdale. They moved into this house, together with Pavle, and then rented out the Erskineville house. All of them shared the household expenses.
(l) In 1974, Pavle married Loza, who joined the household with the deceased and Petar. Their daughters, Elli and Gordana, were born in April 1975 and April 1978 respectively. The adults continued to share the household expenses. The deceased assisted Loza in taking care of the children.
(m) In about 1984, Pavle and his family moved to a new home they had built on the Tabrett Street property. He continued to see the deceased and Petar almost every day and to assist them by, for example, delivering to them groceries and by taking them to medical appointments.
(n) From the time of their arrival in Australia, the deceased and Petar, maintained a strong connection with the Macedonian community through family and friends, and by regularly attending the Macedonian Church, in Rosebery. They did not drive and counted on others to provide assistance to enable them to attend.
(o) In 1993, Petar became sick, and, in September 1993, he died. The deceased and Petar had no children. There is no suggestion that they adopted any children.
(p) Probate of Petar's Will was granted to the deceased, in 1994.
(q) Upon her husband's death, the deceased became the sole legal owner of the Rockdale property and the Erskineville property.
(r) Following her husband's death, the deceased lived, alone, in the Rockdale property. She refused Pavle's invitation for her to come and live with him and Loza. However, Pavle assisted her with her financial affairs, as she had a very limited understanding of the English language, and could not read, or write, English. He assisted her in other ways as well, typically visiting her, morning and evening, to ensure she was well and to deliver groceries that he thought she might need.
(s) From about July 1994, until November 1995, Elli, and her husband, Robert, moved in to stay with the deceased (whilst they were saving to purchase a property for themselves). They were working full-time and helped the deceased as much as they could. Elli states that she observed Pavle continuing to assist the deceased as he had done previously.
(t) In 2000, Elli and Robert moved back to live with the deceased. They stayed with the deceased for five years.
(u) During the five years that Elli and Robert lived with the deceased at the Rockdale property, they assisted the deceased by often paying the utility expenses, working around the house, and in maintaining the garden. They changed the carpet in the whole house and replaced the floorboards. They replaced a number of the deceased's appliances.
(v) Mr Attapallil met the deceased, initially, in about September 2004, when she sought advice regarding converting the title of the Erskineville property from Old System to Torrens title. At that time, she had said to him words to the effect that a Torrens title is much easier to deal with than an Old System title and that that was the modern way of doing things.
(w) Mr Attapallil had previously had a conference with Pavle concerning a Power of Attorney for the deceased. Ultimately, no Power of Attorney was required.
(x) Following the making of the 2004 Will, Alek did not see the deceased again. He did not visit the deceased, at any time, whilst she lived with Pavle, he explained, because of the state of his relationship with Pavle's daughter. Katia last saw the deceased a few days prior to the making of the 2004 will (on 12 December 2004), at a christening, held in the Macedonian Church. They had lunch together and Alek and Katia drove the deceased home.
(y) In January 2005, the deceased suffered a stroke (to which I shall refer in more detail later). When she was released from hospital, she lived, for the rest of her life, with Pavle and his wife.
(z) From the time of her discharge from the hospital, the deceased was, essentially, chair bound and bed-ridden and required assistance with all activities of daily life, which assistance was provided by Pavle and Loza and members of their family. It seems clear that, following this stroke, the deceased lacked testamentary capacity.
The Deceased's Wills
In the 1999 Will, which is a one-page document (with a back page), the deceased appointed the Plaintiffs as executors. The essential terms of the Will provide:
(a) for a revocation of all former testamentary dispositions;
(b) a specific devise of the Rockdale property, as well as the furniture, furnishings and contents to Elli (referred to in the Will as Elica) absolutely;
(c) a specific devise of the Erskineville property, as well as the furniture, furnishings and contents, to Gordana absolutely;
(d) a bequest of the rest and residue of the estate, including the proceeds of any life insurance policy, after the payment of debts, funeral and testamentary expenses, to Pavle absolutely;
(e) in the event that any beneficiary died before the deceased leaving children, then those children, on attaining their respective majorities, would take equally the benefit that their parent would otherwise have taken.
The Will bears the following translation and attestation Clause:
"The Testatrix not being able to read or speak the English language this Will was read over to her translated into the Macedonian language by John Stojcevski of ... who then informed us that the Testatrix has said that she approved of the Will. It was then signed by the Testatrix in our presence and attested by us in the presence of her and each other"
The attesting Witnesses are identified as John Stojcevski, Nicholas Pertsoulis and Eva Harb. The back page identifies solicitors, Edward Kassis & Associates, of Rockdale.
The circumstances surrounding the preparation and execution of the 1999 Will are not in dispute. I shall return to these shortly.
In the 2004 Will, which is a two-page document (with a back page), the deceased revoked all former Wills and testamentary dispositions and appointed Alek and Pavle as joint executors and trustees. She left the whole of her estate to the executors, on trust, to pay debts, funeral and testamentary expenses, probate and estate duty, and any other duties payable in consequence of the deceased's death, and then provided:
(a) a specific devise of the Erskineville property, to Alek "because he helped me out and it was my husbands (sic) wish";
(b) a specific devise of the Rockdale property to Pavle;
(c) a gift of the rest and residue of the estate to Alek and Pavle "who shall survive me as tenants in common in equal shares";
(d) if either Alek or Pavle failed to survive the deceased, then the share to which he would have been entitled had he survived, passed to his surviving child, or children.
The Will then provided "I wish D Stanefska & Associates to be employed by my executors as their solicitor in connection with the execution of the provisions of this Will and any codocil (sic) to it".
The attestation Clause, in the 2004 Will, states:
"Signed by the Testatrix as and for her last Will and testament in our presence and attested by us in the presence of her and of each other."
The attesting Witnesses are Ms Zlatevska and Ms Bogdanovski. The deceased and each of the two attesting witnesses signed each page (except the back page).
The back page identifies solicitors, D Stanefska & Associates, of Rockdale.
The circumstances surrounding the preparation and execution of the 2004 Will are in dispute. I shall return to these shortly.
In each of the 1999 and 2004 Wills, the deceased's signature appears. In the 1999 Will, the deceased has signed both her first and last names, whilst in the 2004 Will, the initial of her first name is written, followed by the whole of her last name. The signature on the 2004 Will discloses a slight deterioration in her signature.
There was, ultimately, no dispute that each of the Wills is validly and formally executed in accordance with s 6 of the Succession Act 2006. (I note, in passing, that s 6(3) of the Succession Act , provides that it is not essential for a will to have an attestation clause.)
Circumstances surrounding the preparation of and execution of the Wills
I am satisfied that the circumstances surrounding the preparation, and the execution, of the 1999 Will, are as follows:
(a) The deceased requested Elli to make an appointment to see her (the deceased's) solicitor, who was a solicitor at the firm, Edward Kassis & Co, for the purpose of making a Will.
(b) After confirming the name of the deceased's solicitor, Elli organised the appointment for, and attended with, the deceased upon Mr Pertsoulis. She translated the instructions given by the deceased to Mr Pertsoulis. However, the Will was not prepared and executed immediately. Mr Pertsoulis stated that he "will need an independent witness and translator to go over the Will again".
(c) Elli took no further part in the making, or execution, of the 1999 Will.
(d) Following her meeting with the solicitor, the deceased telephoned John Stojcevski and informed him that she had given instructions for the preparation of a Will and of Mr Pertsoulis' request for an independent witness and translator. Mr Stojcevski agreed to attend, with the deceased, upon the solicitor.
(e) Mr Stojcevski did attend, with the deceased, at the offices of Edward Kassis & Associates, on 15 April 1999. The offices were situated above the Commonwealth Bank at Rockdale. He recollects that the 1999 Will had already been prepared when he arrived. Mr Pertsoulis read the contents of the Will, in English, paragraph by paragraph, and as each paragraph was read, Mr Stojcevski translated what he had heard read from the English language to the Macedonian language. The Will was then signed by the deceased and by each of the other persons whose signature appears on the Will.
(f) The deceased explained why she did not leave the whole of her estate to Pavle. She confirmed that since he had told her that he would probably have to pay "lots of taxes and you would leave everything you have to the girls anyway", she had left part of her estate to Gordana and Elli.
Even though there was some dispute as to the events, and I shall refer to some of the facts surrounding the creation and execution of the 2004 Will later in these reasons, I am satisfied that the basic facts surrounding the preparation, and the execution, of the 2004 Will, are as follows:
(a) In about October 2004, Alek went to the office of D Stanefska & Associates and had a conversation with Ms Zlatevska. (I shall return to this conversation later in these reasons.)
(b) Ms Zlatevska prepared a draft Will, which, at least in part, was based upon what she had been told by Alek.
(c) Ms Zlatevska caused a letter, dated 28 October 2004, addressed to the deceased, at the Rockdale address, to be sent, which stated, in English:
"... [Y]our Will has now been prepared in accordance with your instructions and awaits your signature.
Kindly arrange an appointment to attend our office at your early convenience for the purpose of completing this document."
(d) A copy of the Will that had been drafted by Ms Zlatevska was not enclosed with the letter.
(e) Subsequently, Elli telephoned Ms Zlatevska to discuss the contents of the letter and the draft Will, but Ms Zlatevska informed her that she could not speak to her, but only to the deceased, about these matters. The deceased did not speak to her at this time. (I shall return to the terms of the conversation between Elli and Ms Zlatevska later in these reasons.)
(f) In mid-to-late November 2004, Ms Zlatevska telephoned the deceased's home. She spoke to Robert saying that she wished to speak with the deceased who "has to come to my office to sign something". Robert did not allow Ms Zlatevska to speak with the deceased on this occasion referring to the deceased being "not a well person, old and scared", and a person who had her own solicitor. (Although Ms Zlatevska could not recollect this conversation, I am satisfied that it occurred.)
(g) Shortly after the conversation with Ms Zlatevska, Robert telephoned Ms Zlatevska's office to ascertain what the deceased was required to sign, but he was not able to speak with her.
(h) A few weeks later, on 17 December 2004, the deceased executed the 2004 Will.
(i) Alek went with the deceased to the appointment, at the offices of D Stanefska & Associates. He remained, and was present, whilst a conversation occurred between the deceased and Ms Zlatevska. Also present was Ms Zlatevska's secretary, Julie. She remained present in case amendments to the Will drafted by Ms Zlatevska were required.
(j) The deceased and the two attesting witnesses signed the 2004 Will at the conclusion of this conference, which was thought to have lasted at least 45 minutes.
(k) Following the execution of the Will, Ms Zlatevska sent a memorandum of costs for the work done to Alek and he paid the amount of those costs.
(l) The Plaintiffs did not know of the events of 17 December 2004, until after the death of the deceased. Whilst they were aware that a will had been prepared by Ms Zlatevska, they were never informed, during the lifetime of the deceased, that the deceased had executed the 2004 Will.
Statements by the Deceased
In this case, there are many statements made by the deceased to which I shall refer. There was no objection taken to any of the statements. There was no suggestion that the statements of the deceased were not made by her to the person who gave evidence of the statements. There was a dispute about the truth of some of the statements, particularly statements attributed, by the deceased, to Alek and by him to her.
It will be necessary to set out the statements said to have been made by the deceased as part of the mosaic of facts; to consider the reliability of the witness who gave evidence of those statements; and, if the statements of the deceased are found to have been made, to consider whether they prove the facts which they might evidence.
In the circumstances, I have proceeded upon the basis that such statements are properly characterised as original evidence of relevant matters sought to be established by the statements, namely the knowledge, intention, and mental state of the deceased at various times. I have not treated the evidence of conversations, with Alek, as repeated by the deceased to others, to prove the facts which they might evidence ( Nicholson v Knaggs [2009] VSC 64 at [37]), unless so stated.
Events of December 2004
There is no dispute about the following additional facts.
On 3 December 2004, the deceased went, with Pavle, to Lexes Lawyers, at Rockdale. She conferred with Mr Attapallil whilst Pavle waited for her outside his office. Ms Bozinovska was present and she translated the conversation from the Macedonian language into the English language, and vice versa, as Mr Attapallil did not speak Macedonian. There is no suggestion that she was not qualified to undertake this task appropriately.
In the conference, the deceased referred to, and showed, Mr Attapallil, the letter dated 28 October 2004 that she had received from D Stanefska & Associates. He gave the following evidence:
"6. I recall a few months later on 3 December 2004 I had a conference with the late Vasa Janakievska who attended my office with her nephew Pavle Petrovski. I took Mrs. Janakievska into my office and with the assistance of my employed Solicitor, Gordana Bozinovska who translated in the Macedonian Language I conferred with Mrs. Janakievska. Mrs Janakievska said to me:
"I got a letter from Stanefska, she's my brother-in-law's Solicitor. She is suing me for my house".
I said:
"Let me see".
I then read the letter which was translated by my employed Solicitor, Gordana Bozinovska. The letter was requesting Mrs. Janakievska attend Stanefska's offices to sign a Will that had been prepared by her. I said:
"This is not a Court document, no one is suing you, it's a letter from the Solicitor who wants you to go to her office to sign a Will. Did you ask her to make a Will for you?"
Mrs. Janakievska said:
"No I didn't, my brother-in-law is suing me over one of my houses. He said that if I don't give it to him he's going to get Stanefska to take me to Court".
I said:
"Do you have a Will and do you want to change your Will?"
Mrs. Janakievska said:
"I have a Will and I've let (sic) everything to my nephew. Pavle's family, they looked after me and they will get everything. I do not want to change any Will".
I said:
"Your houses are yours, you can leave them to whoever you like. In some cases people can make a claim on your Estate but if that was to happen you should come and see me straight away. Nobody is allowed to push you to make another Will. If he threatens you call the Police or call me".
I then escorted Mrs. Janakievska out and in the reception area Mr. Pavle Petrovski said to me:
"Did you tell her that her house is hers and she can do what she likes with it? can (sic) her brother-in-law take her to Court for the house?"
I said:
"As I've explained to your Aunty, her houses are hers and she can do what she likes with them. In some cases people can claim against an Estate but if that was to happen then you should come and see me immediately"."
There was no successful challenge to this evidence or the evidence of the conversation provided by Ms Bozinovska, which, because it was in similar terms, is unnecessary to repeat. There is no reason to doubt that what was said by the deceased was accurately recorded in the affidavit of each of these witnesses. No submission was made to the contrary.
I am also satisfied that, on about 6 December 2004, Alek and Katia attended, without an appointment, at Lexes Lawyers. They spoke, in the Macedonian language, with Ms Bozinovska first, as Mr Attapallil was not there. She gives the following evidence:
"12 .... Whilst Mr. Nasev and his Wife were waiting for Mr. Attapallil in reception I introduced myself and spoke to Mr. And Mrs. Nasev in the Macedonian Language.
During our discussions I became aware that Mr. Nasev and his Wife were there to see Mr. Attapallil in relation to Mrs. Janakievska who was in the office only a few days before. Mr. Nasev amongst other things said words to me to the effect:
"Vasa has been ringing us constantly saying that she wanted to change her Will and prepare a new Will leaving one of her properties to me".
I did not respond to this comment. He then said:
"I got Stanefska to prepare the Will. I don't like to deal with Stanefska anymore. She stuffed up some work for me which cost me over $30,000.00. She told me to make a Claim against her under her insurance but I didn't. Although I didn't want to have anything more to do with her there was no one else in Rockdale who I knew that spoke Macedonian and so I went to her. She agreed to prepare the Will. She has prepared it and now wants Vasa to come in to her office to sign the Will".
I did not make any comment or reply to what Mr. Nasev had said.
13 I recall Mrs. Nasev who was with him saying to me words to the effect:
"We just want this to be finalised. The other day we were having dinner with Family and we were contacted by Police. I don't want to have any further dealings with the Police, her or that Family anymore"."
After Mr Attapallil arrived, they conferred with him. Ms Bozinovska was also present. They showed Mr Attapallil the exemplification of Probate relating to Petar's Will, but refused to allow him to take a copy.
Mr Attapallil made a contemporaneous file note of their attendance on 6 December 2004. Its contents are instructive:
"6/12/04. Alek Nasev and Mrs Nasev came to see me. Says Vasa rings you constantly because she can't sleep because she wants to do a new will giving property to Alek Nasev, brother of her husband.
Alek and Mrs Nasev want the will to be original as her husbands (sic), i.e., they want one house to be given to Alex, and as he paid for it, or or give to it to the church."
There was no successful challenge to this evidence or to the evidence of Mr Attapallil, which was in similar terms. There is no reason to doubt that what was said by Alek and Katia was accurately recorded in the Affidavits of Mr Attapallil and of Ms Bozinovska. There is no reason to doubt the contemporaneity, or accuracy, of the file note.
Medical Evidence
The contemporaneous written medical records that were tendered are the clinical notes of Dr Mihajlov (with a typewritten transcript which is read as an aide memoire only, and which, in some respects, is clearly inaccurate), the clinical notes from Auburn Hospital and St George Hospital, clinical notes produced by Dr Blagoj Kuzmanovski (which indicate the deceased was seen in the general practice twice in 1999, and then more regularly after March 2005), and those of Dr Kenneth Chan (the deceased's rehabilitation physician from 2005).
Dr Mihajlov swore two affidavits that were read in the proceedings and he was cross-examined. At the date of the hearing, he had been retired for almost 7 years (since the end of 2004). He had been the deceased's treating doctor for many years before his retirement and he saw her reasonably regularly in his practice.
Apart from one aspect of his evidence which appeared confused (that relating to the deceased's brother-in-law to whom the deceased had referred as being in Macedonia), and which it was accepted was an obvious error, he gave his evidence coherently and to the best of his recollection. I am satisfied that he was doing his best to assist the Court.
The Plaintiffs also relied upon a expert medical opinion, as amended, provided by Professor Daniel Chan, who did not see the deceased in her lifetime. He was cross-examined.
It was not disputed that Dr Mihajlov and Professor Chan was each qualified to offer the opinions that he did on the basis of facts observed, or assumed, that were admissibly established, and that it had been shown how the field in which they were expert applied to those facts so as to produce those opinions.
However, in considering the evidence of Professor Chan, I respectfully adopt what Windeyer J said in Revie v Druitt [2005] NSWSC 902 at [34]:
"As I have pointed out quite recently in Kerr v Badran, lay evidence of the activities, conversations, family circumstances and relationships of the deceased and evidence from doctors, often general practitioners who were treating doctors during the lifetime of the deceased, usually is of far more value than reports of expert specialist medical practitioners who have never seen the deceased."
I also refer to the more recent statements of Hodgson JA (with whom Young JA and Bergin CJ in Eq agreed) in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197:
"65 The criteria in Banks v Goodfellow are not matters that are directly medical questions, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for commonsense judicial judgment on the basis of the whole of the evidence. Medical evidence as to the medical condition of a deceased may of course be highly relevant, and may sometimes directly support or deny a capacity in the deceased to have understanding of the matters in the Banks v Goodfellow criteria. However, evidence of such understanding may come from non-expert witnesses. Indeed, perhaps the most compelling evidence of understanding would be reliable evidence (for example, a tape recording) of a detailed conversation with the deceased at this time of the will displaying understanding of the deceased's assets, the deceased's family and the effect of the will. It is extremely unlikely that medical evidence that the deceased did not understand these things would overcome the effect of evidence of such a conversation."
Professor Chan, himself, acknowledged, the disadvantages of not having met with the deceased.
Alek did not call any specific medical evidence. He relied upon the substantial body of documentary evidence and the evidence elicited in cross-examination from the Plaintiffs' medical witnesses.
I am satisfied that the following medical evidence relating to the deceased is not the subject of dispute, or has been established:
(a) Whilst no major hospitalisations of the deceased were recorded in the period up to January 2005, the deceased regularly attended her general practitioner, Dr Mihajlo Mihajlov, for many years until the end of 2004.
(b) The deceased, following the death of Petar, was, generally, an unhappy person, who would sometimes come to Dr Mihajlov's surgery to talk and to unburden herself of her personal problems. She would attend to tell him what her grievances were and sometimes to discuss personal matters. However, her medical complaints were, generally, not very serious or life threatening.
(c) On 31 December 2003, the deceased attended a funeral at Rookwood Cemetery, during which she collapsed. She was taken to Auburn Hospital where she was diagnosed with "heat syncope" ("the 2003 syncope episode"), and was discharged later the same day. (Syncope is "fainting" associated with insufficient blood flow to the brain.)
(d) In a letter, dated 31 December 2003, from the Resident Medical Officer at Auburn Hospital to Dr Mihajlov, relating to this incident, the following appears:
"No chest pain, no SOB [ shortness of breath ], no focal weakness, no headache clinically, no focal neurological signs, no nystagmus BP 140/80 BSL [ blood sugar level ] 7.8
impression? viral? vasovagal
Please organise head CT to rule out any rare chance of TIA"
(e) Other medical records reveal that her blood pressure reading, at the hospital, was as high as 195/75. The ECG (electrocardiogram) indicated changes of left ventricular hypertrophy (the thickening of the myocardium (muscle) of the left ventricle of the heart). (Professor Chan gives evidence that this "usually implies long standing hypertension". (Hypertension is the term used to describe high blood pressure.))
(f) No head CT was organised subsequently by Dr Mihajlov. He suggested (because he was closing his practice) that she attend St George Hospital and that they would do it there.
(g) Following the 2003 syncope episode, the deceased stayed with Pavle and Loza, for about 6 to 8 weeks, whilst she recuperated.
(h) The deceased attended Dr Mihajlov's surgery, on several occasions, during 2004. Relevantly, she attended on 29 October 2004, at which time it was recorded that her blood pressure was 150/90 and there was an entry "Serepax". Serepax is an anti-anxiety drug. She also attended on 8 November 2004, when it was recorded that she had severe headaches, was severely depressed and not feeling well. There were "no other changes". Her chest, heart and abdomen were recorded as being normal and there was an entry again "Serepax".
(i) The deceased attended on the medical practice of Dr Mihajlov on the morning of 17 December 2004. This was the day on which the 2004 Will was executed. His medical notes, for this visit, stated verbatim, are:
" L otitis
L conjunctivitis
BP 150/90
Very depressed Serepax 30
chloromycetin eyes
Sofradex "
Dr Mihajlov provided this transcription of his medical note for that date and confirmed that it was written on the date it bears.
Dr Mihajlov and Professor Chan each confirmed that "L otitis" refers to the deceased as having "an infection in her left middle ear" and "L conjunctivitis" as the deceased having an infection in her left eye. Dr Mihajlov confirmed that chloromycetin was an eye ointment.
(j) Whilst still living at her own home, in January 2005, the deceased suffered a major and devastating stroke ("the 2005 stroke"). She was admitted to St George Hospital with left hemiparesis (weakness on one side of the body). The stroke was identified as being a right hemisphere intracerebral haemorrhage (ICH) with surrounding oedema. This is a bleed in the right side of the brain at the frontal area with swelling (of the brain).
(k) The deceased remained in hospital for some three weeks, during which time she had inpatient rehabilitation. Also, whilst in hospital, the deceased had an E.Coli urinary tract infection which was treated.
(l) The deceased was discharged to the home of Pavle on 15 February 2005.
In the Clinical Notes of the Auburn Hospital for the date 20 January 2005, the following also appears:
"B/G ("background") of deteriorating S/T (short term) memory and general functioning in past year
Has been "stressed" & low in mood and anxious for 2-3/12 over a family matter
Lost 5 kg over 2-3/12
L appetite"
The Death Certificate relating to the deceased, which was registered on 19 June 2009, disclosed as "Cause of Death and duration of last illness":
"(I)(a) Acute myocardial infarct 12 hours;
(b) Left anterior cerebral artery stroke;
(II) Right frontal intracerebral haemorrhage;
Hypertension
Paget's disease".
Turning to the contemporaneous medical records, I am satisfied that:
(a) Dr Mihajlov's patient notes do not reveal any notations depicting the presence, or suspicion, of any form, or degree, of cognitive impairment. However, he recollected that after the 2003 syncope episode, the deceased made complaints of memory loss, her speech was a bit slow and she was quieter than she had been in the past. There are several references to the deceased being "very depressed" in his contemporaneous progress notes. He confirmed that her anxiety and depression was increasing. He also commented upon her blood pressure. She was also taking Serepax medication regularly.
(b) The Clinical notes from Auburn Hospital, where the deceased was admitted for the 2003 syncope episode, do not reveal the presence, or suspicion, of any form, or degree, of cognitive impairment. The notes record, "Background: generally healthy", and specifically identifies no focal weakness and no focal signs which, otherwise, might have been suggestive of a vascular event.
(c) The Clinical notes from Dr Kuzmanovski do not reveal, on the two occasions, in 1999, when the deceased was seen, that there was the presence, or suspicion, of any form, or degree, of cognitive impairment.
(d) The next time the deceased was seen, in his practice, was in March 2005, after the 2005 stroke. The "Past Medical History" section of his notes state "15/08/2004 CVA (CEREBROVASCULAR ACCIDENT) (Right)", but this notation is not contemporaneous to the alleged event, as he had not seen the deceased at any time between 2000 and 2004 inclusive. The source of the information that enabled that note to be written was ambiguous. However, it was not in dispute that the deceased did not, in fact, suffer such an event in August 2004. (It is the agreement that this event did not, in fact, occur, that caused Professor Chan to provide an amended conclusion to his first report.)
(e) The medical records (from St George Hospital and Dr Kenneth Chan) relate to the period from the date of the deceased's stroke in 2005, and are of limited, if any, relevance in determining the deceased's capacity before that time.
Professor Daniel Chan's evidence, following cross-examination, is that the deceased had long standing hypertension that could cause amyloid angiopathy and intracerebral haemorrhages. These changes could occur subtly, resulting in cognitive impairment, which impairment may not have been noticed by lay persons. He accepted that on 17 December 2004, she was very depressed and physically unwell, with infections in the left middle ear and left eye. He said that having an eye and ear infection was likely to affect cognitive function of an elderly person who had some cognitive impairment. If she was a Serepax user (to which drug Dr Mihajlov had referred in his medical note of that date), this would be likely to have further impaired her capacity to understand the contents of the 2004 Will. Within 2 weeks or so, she suffered a significant stroke. He thought that this was probably preceded by a brain bleed, 1 or 2 days before the stroke.
Professor Chan also accepted there was no evidence that the deceased's mental capacity was actually clearly tested on 17 December 2004. When asked about her being "very depressed" on 17 December 2004, he answered that "a person who is very depressed can actually present with cognitive impairment that is sometimes very difficult to separate out from acute confusion or delirium ...". He thought that on that day, "there probably was acute delirium happening" but that another diagnosis might be that "she could be very depressed with all the stressors happening around her".
Finally, in cross-examination, he stated, upon the assumptions that for over a period of approximately one hour, or perhaps a bit shorter than an hour, the deceased was able to hold attention with the solicitor, listening to the solicitor read out things, and nodding in response and at times asking a question, he could not exclude the possibility that the deceased "may have been in a brighter moment" and "that she understands a few things more". However, he ended his answer by saying "It's a possibility thing."
I asked Professor Chan a number of questions based upon the events that had occurred on 3 December 2004, when she had attended upon Mr Attapallil and Ms Bozinovska. He gave the following evidence:
"Q. I will read you what the concerns were - she was still in a lot of apprehension and anguish and she was still frightened despite the explanation that had been given by the solicitor about that letter, she was still frightened about her brother-in-law suing her although the solicitor explained to her that that was not the case?
A. There are two possibilities, one is that she has been very depressed and personality wise she's a worrier and she keep on worrying although she fully understand the matter. The second explanation is people with cognitive impairment often forget what people have explained to them and so even though at one moment things are explained to her, she forgets and then, you know, she could remain worrying but again I'm not sort of - I haven't fully examined her or assessed her, that's only, you know, judging from circumstantial evidence.
Q. Would you assume also that she told a number of people that her brother-in-law had threatened to take her to court but he had not done so. Would you assume also that the solicitor had explained to her that in the circumstances that she told him the brother-in-law could not take her to court. If she continued to hold the belief that the brother-in-law was going to take her to court or could take her to court, does that say anything about her cognitive
ability?
A. I think it comes back to whether she's actually a worrier or not. If she is indeed a worrier all her life she may not believe what people has told her and still hold on to her own belief or not. On the other hand if she was not a worrier, then it does make one suspicious that, you know, there is some cognitive impairment."
Senior counsel for Alek then asked:
"Q. If she had a history of presenting with anxiety and depression, would that tend to suggest to you that she was more of the worrier type or someone with cognitive impairment having regard to the assumptions that have been put to you?
A. If she has a history of being anxious and being worrying (sic), then that may actually make me slightly sway towards the worrier type."
Senior Counsel for the Plaintiffs then asked:
"Q. If the letter was explained to her accurately but she didn't accept the explanation and if the motives of the brother were explained to her but she did not accept that explanation?
A. The motives of the brother-in-law you mean?
Q. The motive or intentions?
A. Yeah.
Q. Might it be that the belief that she held wrongly about the brother-in-law's intentions that wrong belief could constitute a delusion on her part?
A. The wrong belief that the brother-in-law may take her to court?
Q. Yes?
A. If a delusion is formed, that probably is in the area of what psychiatrists called it psychosis or, you know, and if a psychosis is formed that probably precludes her from forming good judgment.
...
Q. And I am asking in the context of this letter and the brother-in-law, are you saying that might constitute delusion?
A. That may - I emphasis word 'may' - again I haven't seen the person and I really, you know, cannot (sic) can only judge by what I was told."
I am unable to conclude, based on this evidence, that the deceased was suffering from a delusion. In the 4 th edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders ("DSM IV") at p 765, a delusion is defined as:
"A false belief based on incorrect inference about external reality that is firmly sustained despite what almost everyone else believes and despite what constitutes incontrovertible and obvious proof or evidence to the contrary. The belief is not one ordinarily accepted by other members of the person's culture or sub-culture (eg. it is not an article of religious faith). When a false belief involves a value judgment, it is regarded as a delusion only when the judgment is so extreme as to defy credibility."
Mere irrationality, even extreme irrationality, is not delusional if it has some connection with reality: Schultz v Bailey [2007] NSWCA 110. Nor is a mistaken belief a delusion: Du Maurier v Wechsler [2001] NSWSC 4 at [40].
I think Professor Chan's evidence, overall, raises, sufficiently, that the deceased had some cognitive impairment that is relevant to the determination of the question whether she had testamentary capacity.
The Lay Evidence about the Deceased ' s Condition
Pavle gives evidence that, following the 2003 syncope episode, he observed some changes in the deceased. He describes her as having difficulties with memory and what was described as "strange behaviour". In cross-examination, he referred to her face changing colour (yellow) and her expressing tiredness, following which she would lie down. He says that she would get upset over little things, but this seems to have been a reference to her becoming annoyed, at least according to him, as a result of the interaction between an elderly person and very young children. (Dr Mihajlov described her colour as "yellowish" or "pale" as a result of anaemia.)
Pavle also gave evidence that, in the last three months of 2004, the deceased appeared extremely stressed, nervous and anxious. He described this as being "put under pressure". (I have earlier referred to the reference in the medical notes taken in early 2005.)
There was also a reference by him to complaints made by the deceased of suffering headaches on the right side and back of the head.
Loza gives evidence of observing a change in the deceased following the 2003 syncope episode. She refers to the deceased becoming very forgetful, often repeating herself, and leaving the gas stove on.
Elli, who lived in the deceased's house in 2003 and 2004, also gives evidence of observing changes to the deceased after the 2003 syncope episode. She refers to noticing "a dramatic change" in the deceased's "ability to remember and understand". She gives evidence of the deceased's conversation being repetitive. She states that the deceased, on many occasions following its receipt, asked her to read the solicitors' letter several times on one day. She describes the deceased losing her concept of time. She refers to the deceased, on a handful of occasions, leaving the gas stove on.
Robert corroborates much of Elli's evidence about the deceased's condition. He describes, too, the change in the deceased, referring to her memory deteriorating, complaining of sore ears, "leaving the gas stove on and often being upset over very little, minor, insignificant matters". He also gives evidence of a conversation in late October 2004 where she referred to having been telephoned by her "boss" from the factory where she had worked 30 years earlier.
Each of the lay witnesses did confirm that, in 2004, the deceased was independent in all activities of daily living, which included being able to dress, feed, shower, toilet, and otherwise, generally look after, herself.
I do not accept the submission that the retrospective accounts of the deceased's cognitive difficulties, in 2004, are inconsistent with contemporaneous records. It is clear, as acknowledged in the Defendant's submissions, that there were cognitive difficulties being experienced by the deceased in the year before she suffered the stroke in 2005. It is likely that these cognitive difficulties were relatively mild, and if the question of the deceased's testamentary capacity were to be assessed on the basis of the medical records, without more, I may have found that Alek had satisfied me that she had testamentary capacity. All of the circumstances, including the conduct of the deceased in her dealings with other people, and what she said to them, must be considered. With other matters to which I shall refer, a "serious doubt" exists as to the deceased's testamentary capacity. There was no submission to the contrary, it being submitted that the court, ultimately, should be satisfied of testamentary capacity.
Solicitor's Duties in Will-Making
Because it played a major part in the submissions, it is necessary to say something about the duties of a solicitor who takes instructions for and who has a will executed.
In Jarman on Wills , 8th ed (1951) London, Sweet and Maxwell, Vol. 3, page 2073, it is said:
"Few of the duties which devolve upon a solicitor, more imperatively call for the exercise of a sound, discriminating, and well-informed judgment, than that of taking instructions for wills."
In Pates v Craig & Anor; The Estate of Cole (NSWSC, 28 August 1995, unreported), Santow J, made some general comments regarding circumstances where a legal practitioner receives instructions from an established client to prepare a will on behalf of another person, where that client is to be principal, or major, beneficiary under the proposed will and, in particular, where the client instigates that will. His Honour said:
"There do not appear to be rules of professional conduct specifically governing the first situation. Thus r 22 of the Professional Conduct and Practice Rules deals with situations where a solicitor receives instructions to prepare a will in which that solicitor or an associate of that solicitor is to receive a substantial benefit. Whatever 'associate' may mean, it probably falls short of including a conventional solicitor/client relationship. Reg 28 of the old Legal Profession Regulation 1987 is to a similar effect. That does not, however, mean that no ethical considerations arise in such circumstance. The essence of a solicitor's fiduciary obligations to a client is the unfettered service of that client's interests. This will require the solicitor to avoid acting for more than one party to a transaction where there is a likelihood of a real conflict of interest between the parties. As Wootten J stated in Thompson v Mikrelsen (Supreme Court of NSW, 3 October 1974, unreported), in the analogous context of conveyancing transactions: 'The reasonable expectations of a client instructing a solicitor [is] that the solicitor will be in a position to approach the matter concerned with nothing [in mind] but the protection of his client's interests against [those] of another party. [The client] should not have to depend on a person who had conflicting allegiances and who may be tempted either consciously or unconsciously to favour the other client, or simply to seek a resolution of the matter in a way which is least embarrassing to himself.'
The same considerations may arise in the context of preparation of wills. It is clear that a conflict of interest may arise between the interests of an intended principal beneficiary seeking to procure a will in his, or her, favour and the interests of the testator. The testator should be assisted by his legal or her legal adviser only in making a valid will. This means, inter alia, that the natural objects of the testator's bounty must be capable of being appreciated, by the testator, even though the testator may choose to exercise that capacity so as to omit such objects or disfavour them. In such circumstances, the legal practitioner would be expected to give advice to the intended testator on a number of matters. Some of these may be potentially contrary to the interests of the proposed beneficiary. The legal practitioner should take such steps as are reasonably practicable to enable that practitioner to give proper consideration to any matters going to the validity of the proposed will and then should advise and act in conformity with that consideration. Such a conflict will especially arise where there is a reason to fear lack of testamentary capacity on the part of the testator by reason such as fragility, illness or advanced age. Further, in such context, the solicitor could not prudently rely on the informed consent of both clients to act in such a transaction where their interests conflict, there being doubts about the capacity of the testator to give such informed consent...
There is an additional consideration, not dependent on the question of conflict of interest. That is, the duty of the solicitor taking instructions from an obviously enfeebled testator, where capacity is potentially in doubt, to take particular care to gain reasonable assurance as to the testamentary capacity of the testator. It is clearly undesirable to attempt to lay down precise and specific rules as to what that necessarily entails for every case. Such rules may lead to a perfunctory, mechanical checklist approach. What should be done in each case will depend on the apparent state of the testator at the time and other relevant surrounding circumstances. Any suggestion that someone, potentially interested, has instigated the will, whether or not a client of the will draftsperson, should particularly place the solicitor concerned, on the alert. At the least, a solicitor should ask the kind of questions designed to probe the testator's understanding of the basic matters which connote testamentary capacity... For this purpose, and subject to the earlier caveat concerning checklists, the advice concerning the taking of instructions contained in Mason & Handler's "Wills, Probate and Administration Service NSW (Butterworths) [at 10,019] is a useful guide:
'[10,019] TAKING OF INSTRUCTIONS - ISSUES OF TESTAMENTARY CAPACITY
If any doubts do rise as to the testator's capacity the following procedures on the taking of instructions will assist significantly in the avoidance of potential problems for the estate as well as for the solicitor in the discharge of his duties:
(i) The solicitor who is to draw the will should attend on the testator personally and fully question the testator to determine capacity - the questions should be directed to ascertain whether the testator understands that he is making a will and its effects, the extent of the property of which he is disposing and the claims to which he ought to give effect;
(ii) One or more persons should be present, selected by the solicitor having regard to their calibre as witnesses if required to testify whether the issue of capacity is raised. Where possible, one of the witnesses should be a medical practitioner, preferably the doctor who has been treating the testator and is familiar with him, who should in making a thorough examination of the testator's condition, question him in detail and advise the solicitor as to the capacity and understanding of the testator. The presence of other persons at this time would require the testator's consent;
(iii) A detailed written record should be made by the solicitor, the results of the examination recorded by the medical practitioner and notes made by those present.
If after careful consideration of all the circumstances the solicitor is not satisfied that the testator does not have testamentary capacity he should proceed and prepare the will. It is a good general practice for the solicitor who took instructions to draw the will and be present on execution and this practice should not be departed from in these circumstances. On execution, the attesting witnesses should, where possible, come from those persons (including the solicitor) referred to above who were present at the time of instructions and, again, as at every stage, detailed notes of the events and discussions taken.'
If those questions and the answers to them, leave the solicitor in real doubt as to what should be done, other steps may be desirable. This may include obtaining a more thorough medical appraisal or, if the testator declines, considering whether the will can be properly drawn, should assurance on testamentary capacity fail to satisfy the test just quoted."
In Nicholson v Knaggs , Vickery J, at [664], recommended a "considered and appropriately structured interview with the testatrix" and emphasized that "in order to establish knowledge and approval of a will by a testator, more is required than 'merely establishing that the testator executed it in the presence of a witness after it had been read to, or by, him' (at [387])". I respectfully agree.
The Witnesses of Fact
This case requires the application of established, and undisputed, principles to particular facts. Therefore, I have to assess the reliability of the evidence, which I have read, and heard, before I can make the necessary findings of fact on matters in dispute. I shall, where possible, identify my findings of fact as I proceed. Taken with the findings to which I have earlier referred which were not in dispute, or which I have already found, I shall be able to come to the ultimate conclusions necessary to determine the result of the case.
It is necessary to say something of the main witnesses who gave evidence. In relation to the principal witnesses called on behalf of the Defendant, there was a sustained attack on his, and her, credit. There was also a thorough attack on the evidence of Ms Zlatevska and her conduct in relation to the 2004 Will.
In reaching my conclusions, I have borne in mind that Alek is a significant beneficiary in the 2004 Will and that Elli and Gordana are the primary beneficiaries under the 1999 Will. Pavle receives more under the 2004 Will than he does under the 1999 Will, but Elli and Gordana are his daughters. Each, therefore, has a clear interest in the outcome of the proceedings.
I have also borne in mind, the evidence of Katia, that Alek had been involved in a motor vehicle accident in July 2011, that his memory was "failing him", that as "he is getting older, he begins to mix up events" and, that "although it is getting better, he lost the vision in one of his eyes about a month ago".
I shall deal separately with the evidence of the solicitors called by each of the parties also. I have already referred to the medical evidence.
As stated, there was no attestation clause similar to that appearing in the 1999 Will. However, Ms Zlatevska gave evidence that her conversation with the deceased on 17 December 2004 was in Macedonian. That evidence was not challenged.
Undue Influence
Undue influence in probate is to be distinguished from the equitable doctrine of undue influence. In order to render a will void, there must be influence which can justly be described by the court to have caused the execution of a testamentary document pretending to express the deceased's mind, but which really does not express her, or his, mind, but something else which she, or he, did not really mean: Boyse v Rossborough (1857) 6 HL Cas 2; 10 ER 1192, at page 1205; Craig v Lamoureux [1920] AC 349 at 357.
In probate, "persuasion, or influence, or importunity is not sufficient unless it amounts to coercion, that is, unless the testator is prevented by the persuasion, influence, or importunity from exercising free will". (See: "Wills and Intestacy in Australia and New Zealand", Hardingham, Neave and Ford (2nd Ed).)
Perhaps, in light of submissions made in this case, what was said by Sir John Nicholl in Williams, formerly Cook v Goude (1828) 1 Hag Ecc 577 (at 581) is relevant:
"The influence to vitiate an act must amount to force and coercion destroying free agency - it must not be the influence of affection and attachment - it must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground in support of a testamentary act. Further, there must be proof that the act was obtained by this coercion - by importunity which could not be resisted: that it was done merely for the sake of peace, so that the motive was tantamount to force and fear."
See also Hall v Hall (1868) LR 1 P & D 481; 32 JP 503 in which Sir J P Wilde, at 482, described undue influence as the overpowering of the volition without convincing the judgment: Trustee for the Salvation Army (NSW) Property Trust t/as the Salvation Army v Becker [2007] NSWCA 136 at [63]; (2007) 14 BPR 26,867.
In relation to the degree of coercion required, Hannen P stated in Wingrove v Wingrove (1885) LR 11 PD 81 at p 82-83, in a passage quoted in Winter v Crichton (1991) 23 NSWLR 116 at 122:
"The coercion may, of course, be of different kinds, it may be in the grossest forms such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain that the sick person may be induced, for quietness sake, to do anything. This would equally be coercion though not actual violence."
Coercion is pressure that overpowers the volition of the deceased. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes the deceased to succumb for the sake of a quiet life, if carried to an extent that overbears her or his free judgment, discretion or wishes, is enough to amount to coercion in this sense: see, for example, Miller v Jones [1999] NSWCA 467; Edwards v Edwards [2007] WTLR 1387 at [47].
Yet, it is important to remember that undue influence relates to impairment of judgment, rather than to improper conduct on the part of the person possessing influence: Carey v Norton [1998] 1 NZLR 661; (1997) 16 FRNZ 686.
Where, as in the present case, the Plaintiffs allege undue influence, the onus of proof lies upon them to prove the allegation. They must prove it on the balance of probabilities. However, an allegation of undue influence is a serious one, and it is necessary to remember s 140 of the Evidence Act 1995 which says that a Court may take account of the gravity of the matters alleged when deciding if a case has been proved.
Vickery J explained in Nicholson v Knaggs [at 130]:
"An allegation of testamentary undue influence is a serious matter with potentially significant consequences for the expression of the will of a testator and for the testamentary dispositions made under it. Further, the exercise of undue influence in a testamentary context may also be regarded as an inherently unlikely event in the circumstances of most cases. Expectant beneficiaries do not ordinarily put pressure on elderly testators in an endeavour to change their minds against their will. Bearing these matters in mind, in the assessment of the evidence which has been marshalled in support of the allegation made in this case, and in arriving at the ultimate conclusion, I adopt and apply the approach of Dixon J in Briginshaw v Briginshaw and the majority in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd ."
Following this reference to Nicholson v Knaggs , Brereton J in Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81, at [43], added:
"That said, undue influence need not be proved by direct evidence: the question must be decided upon all the circumstances of the case [ Callaghan v Myers (1880) 1 NSWLR 351 - a case which, incidentally, refutes the contention, frequently heard in probate circles, that the defence has never succeeded in New South Wales]. In the context of civil proceedings, it is of course not necessary that the circumstances admit of no rational hypothesis inconsistent with undue influence; but undue influence must more probably than not be the true explanation. This accords with well-established authority: in Craig v Lamoureux [1920] AC 349, Viscount Haldane explained (at 357):
As was said in the House of Lords when Boyse v Rossborough (1856) 6 HLC 2 (at 49) was decided, in order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been attained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis."
(In the present case, it was accepted, that had circumstantial evidence been relied upon, the Plaintiffs would have failed because they would not have been able to establish that the circumstances attending were inconsistent with a contrary hypothesis. That contrary hypothesis would be that the deceased wished to carry out the wishes of her husband.)
Sir James Hannen P in Wingrove v Wingrove at 83, said:
"... It is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It is necessary also to prove that in the particular case, that power was exercised and that it was by means of the exercise of that power that the will, such as it is, has been produced."
As the Plaintiffs' case is said not to be a circumstantial one, direct evidence of the exercise of undue influence by Alek is relied upon. In such a case, the question to be answered by the court is whether the will of the deceased was overborne, to the requisite degree, by the conduct of the influencer, proved by direct evidence: Nicholson v Knaggs at [116].
Although in many cases, it is said that undue influence is fraud, it is useful to remember that in probate, undue influence and fraud are different concepts. As was said in Trustee for the Salvation Army (NSW) Property Trust t/as the Salvation Army v Becker , at [64] - [65]:
"The basic point is that, to prove undue influence, it must be shown that the testatrix did not intend and desire the disposition. It must be shown that she has been coerced into making it. See, generally, Boyse v Rossborough ; Buckley v Maddocks (1891) 12 LR (NSW) Eq 277 at 282 per Stephen J; Winter v Crichton; Estate of Galieh .
On the other hand, fraud, sufficient to result in the invalidation of a testamentary instrument, is concerned with misleading or deceptive conduct. With fraud, there is no overpowering of the volition, no coercion. Whereas undue influence coerces a testatrix, fraud misleads her."
In looking at the question of undue influence, one must bear in mind the circumstances of the individual deceased. What may not constitute undue influence in the case of a person with a strong will and ordinary fortitude, may constitute undue influence in the case of a more susceptible individual.
I should mention that both parties referred to and relied upon Tobin v Ezekiel; Estate of Lily Ezekiel , in which Brereton J dealt with the principles of testamentary capacity, knowledge and approval and undue influence. It is unnecessary to otherwise repeat what his Honour said, which I have carefully considered.
Conclusions
I turn now to apply the above principles of law to the facts as I have found them.
The starting point is that the burden of proving testamentary capacity lies on Alek, who seeks to uphold the 2004 Will. Due execution of the 2004 Will was established. There was no dispute, then, that the Plaintiffs had discharged any evidentiary onus, and that the evidence, as a whole, raised doubts as to the deceased's testamentary capacity. It was conceded that Alek had to affirmatively establish that the deceased had testamentary capacity. The question argued was whether he had discharged that burden.
There is nothing very significant in the written medical evidence that has been read going to the mental state of the deceased. I consider the concession, made on behalf of Alek, to the effect that the deceased exhibited some mild cognitive difficulties, was appropriate, and those difficulties are evidenced by the medical records and by the lay evidence.
Furthermore, assuming I had accepted Alek's evidence about what the deceased said to him at, or about, the time of him giving instructions for the preparation of the 2004 Will, the deceased was obviously confused. Whilst she appears to have attended upon Mr Attapallil in September 2004, there is no suggestion that she had been asked to sign anything whilst she was with him.
To the contrary, the conversion of the title of the Erskineville property was simply discussed at that time. No steps were taken, as they were in 2007, to achieve the actual conversion of title. Mr Attapallil had simply advised her and she was to return when she was ready to proceed. There could be no suggestion that she would lose her home. There could be no suggestion that she had signed anything.
Yet, the deceased is said to have told Alek that she had signed something that would result in her house being lost. Thus, if she had said what he reported, she was quite confused about what had occurred and what the result would be.
Furthermore, if accepted, Alek's express denials about the deceased initiating the topic of her Will, making any requests to transfer the Erskineville property to him and the Rockdale property to Pavle, encouraging her to make a will in those terms, or otherwise, and threatening court action if she did not do so, suggest what the deceased told Mr Attapallil and Ms Bozinovska on 3 December 2004, and others at, or about that time, also demonstrates confusion in the mind of the deceased.
Senior counsel for Alek submitted that, perhaps, the deceased was simply mistaken, not confused. However, what the deceased said to different people, in December 2004, demonstrates, to my mind, something far more serious than statements based upon mistaken facts. These facts could not, legitimately, be mistaken in the way in which her conversations would suggest they were. The reasons the deceased was mistaken, to such a significant degree, requires explanation by Alek, which explanation has not been forthcoming.
Furthermore, it is extremely difficult, if not impossible, to explain the change of the deceased's position regarding her testamentary intentions within such a short period of time. She expressed a firm view about her testamentary intentions to Mr Attapallil and Ms Bozinovska on 3 December 2004. She did so in the context of having been informed by Mr Attapallil that another solicitor had prepared a draft Will.
Yet 14 days later, she is said to have come to a completely different view. Whilst a person may change her mind, the change did not appear to have an immediate cause, and it was one that altered testamentary dispositions that had existed, and remained in place, since 1999. Merely reflecting on what she and her husband had discussed (which, as stated, did not find reflection in his 1971 Will or her 1999 Will) does not, in my view, provide a sufficient, or satisfactory, explanation for this dramatic change to her testamentary dispositions.
There is nothing to suggest that anything had changed between the deceased and Pavle and/or his children, one of whom was then still living, with members of her family, in the deceased's home.
Furthermore, there was no suggestion that either of Pavle's daughters, who had been named as beneficiaries in the 1999 Will, had done anything to forfeit consideration as her beneficiaries.
Also, if the deceased simply had a change of mind, there does not appear to have been any reason to go to Ms Zlatevska to draft the new Will. She was not, and never had been, the deceased's solicitor. She was, at the highest, a mere acquaintance. The deceased had her own solicitor, who could have drafted a new Will. She could have returned to Mr Attapallil and Ms Bozinovska to effect the necessary changes to her Will. She could have telephoned them to provide instructions to do so. Alek could have taken her.
I have, of course, considered the terms of the 2004 Will. The terms are only rational, if the deceased continued to hold views that she had expressed many years before, and predominantly whilst her husband was alive. Those views had not prompted her to make a Will in the same terms in 1999. There was no evidence, other than Ms Zlatevska's, that establishes that the deceased held those views in 2004. To the contrary, the evidence of what the deceased said to Mr Attapallil and Ms Bozinovska, suggests that she did not hold those views then.
It is difficult to see how Alek could be regarded as having a claim on the deceased's bounty equal to that of Pavle. Any assistance he had provided to the deceased occurred about 40 years prior to the 2004 Will being executed. Furthermore, there is nothing to suggest, following Petar's death, that Alek and Katia had played a very significant role in the deceased's life. He, and they, might have visited her and spoken to her on the telephone, but that appears to have been as far as their relationship went.
Furthermore, there is no evidence, at all, that she gave the instructions regarding what was included in Clause 3(ii) of the 2004 Will. Those were clearly the views of Alek, not of the deceased. Interestingly, there is no record, in the Will, of what Pavle had done for the deceased and/or her husband, which warranted him being named as a beneficiary.
The ultimate question is: irrespective of whether the deceased was suffering from any medical condition on the day she executed the 2004 Will, did she have the requisite mental capacity, in terms of the test laid down in Banks v Goodfellow , to execute the Will? From the point of view of onus of proof, the ultimate question may be stated as whether, on the whole of the evidence in the case, the court is satisfied on the balance of probabilities, that the deceased had testamentary capacity?
I appreciate that one should not lose sight of the focus of the inquiry, namely, the deceased's testamentary capacity. Although it is helpful to determine whether the deceased was suffering from any medical condition that would detrimentally affect her capacity that is not the ultimate question. It is not necessary, in every case, for there to be a medical diagnosis which explains the deceased's state of mind. Medical evidence is relevant and admissible, but it is neither required nor conclusive.
Of course, in this case, there is some medical evidence. It is an interesting coincidence that on the morning of the day she signed the 2004 Will, Dr Mihajlov regarded the deceased as being "very depressed" and having infections, one in her left ear and one in her left eye that were likely to affect her cognitive abilities. Her depressed condition is consistent with the description of the deceased by those who saw her daily, and who described her, in the last 3 months of 2004, as having lost weight and being "under pressure". These matters shed some light on her likely level of her capacity. I have recited other parts of the medical evidence earlier.
I have, naturally, considered the weight to be accorded to Ms Zlatevska's evidence. The evidence of an experienced and impartial solicitor, who knew the deceased, would normally carry great weight. For the reasons set out previously, on the ultimate question, I do not gain any confidence from her evidence about what occurred between the deceased and Ms Zlatevska on 17 December 2004.
A solicitor, in preparing a will and then having it executed, has duties to perform, which duties vary with the condition of the deceased and the situation otherwise. In circumstances where, as here, initial instructions, at least in part, have come from a proposed beneficiary; other clauses have been added, apparently without instructions; where the solicitor has been informed by other persons that the deceased is elderly and is unwell; where the solicitor is informed that the deceased has a solicitor; where it has been suggested to the solicitor that the beneficiary is causing the deceased to make a will; where the beneficiary is a long-standing client of the solicitor and has brought the deceased to see her; and where the solicitor has never met the deceased in a professional capacity, the solicitor does not discharge her, or his, duty by simply reading the words of the will to her, whilst the beneficiary who has given initial instructions and who is said to be causing the will to be made, remains present, and by relying upon the deceased's nods, apparently affirmatively, to demonstrate an understanding of the terms of the Will.
I am not satisfied that from Ms Zlatevska's evidence that capacity existed and that it was being freely and intelligently exercised in the disposition of the deceased's property.
In this regard, it is notable that Ms Zlatevska's contemporaneous file note does not provide very much, if any, detail. Also notable, are the absence of Ms Bogdanovski who stated, in an untested affidavit, that she could not remember anything, and the failure of Alek to provide any details of what occurred at the meeting of 17 December 2004.
On the facts as found by me, I am not satisfied that Alek has discharged the burden of establishing that the deceased had testamentary capacity.
Having regard to my conclusion that Alek has not established that the deceased had testamentary capacity, it is not necessary for me to reach any conclusions about knowledge and approval and undue influence, but I will do so, on the basis that, contrary to my conclusion, there is sufficient evidence to conclude that the deceased had testamentary capacity to make the 2004 Will.
Even if Alek had satisfied me of the deceased's testamentary capacity, I would not have found that she knew and approved the terms of the 2004 Will. There are too many suspicious circumstances that cast on Alek the onus of removing such suspicion by clear and affirmative proof of knowledge and approval, which onus he has not satisfied.
I am far from convinced that the 2004 Will contained the "real intentions" of the deceased. Without intending to repeat all of the circumstances that cause suspicion, I note that the idea of the 2004 Will appears to have been conceived and implemented by Alek, and not by the deceased; in relation to, at least part of the 2004 Will (the substitute beneficiary clause and the wish to have D Stanefska & Associates appointed as solicitors), there is no evidence of any discussion between the solicitor and the deceased, about either clause. The same may be said about the revocation clause. There is no evidence, other than the global statement that the solicitor read each clause to the deceased at the time she signed the 2004 Will, who seemed to agree with them, but this evidence cannot be accepted uncritically. The 2004 Will was executed at a time when the deceased's cognitive difficulties were starting to become apparent; she was suffering from severe depression and had an eye and ear infection; I have also found that she appeared to be suffering some bouts of confusion in relation to what had occurred.
Whilst I appreciate that, in the 1999 Will, a similar substitute beneficiary clause exists, there is no dispute that the deceased knew and understood the contents of that Will and that she had testamentary capacity at that time. In relation to the 2004 Will, neither of those matters is agreed.
A solicitor may, in some perfunctory manner, go far enough to satisfy herself, or himself, as to capacity and knowledge and approval, but it is to be remembered that her, or his, duty is to go far enough to satisfy the court that the steps taken were sufficient to warrant her, or his, satisfaction. In this case, I am not so satisfied. Ms Zlatevska appeared not to ask non-leading, or open, questions, to ascertain whether the understood and whether she knew and approved, the terms of the 2004 Will. Further, since the instructions for part only of the Will had come from Alek, and the rest she had included herself, Ms Zlatevska needed to explain, in detail, the terms of the 2004 Will to the deceased and ensure that the deceased agreed with its terms. She ought to have sought detailed responses, not merely nodding approval.
It was accepted by senior counsel for Alek that unless I accepted Ms Zlatevska's evidence as to what had occurred on 17 December 2004, I could not be satisfied of the deceased's knowledge and approval. For the reasons I have set out, I am not so satisfied of her evidence.
Then, turning to undue influence, I remember, of course, that there is no evidence, by any witness, that he, or she, actually heard Alek making a threat to take the deceased to Court if she did not leave him the Erskineville property. In this respect, it is the deceased who conveyed what he said to her to a number of different people. She may, or may not, have been confused about what he had said.
Whilst I have some grave concerns that he may have done so, I cannot be satisfied, on the balance of probabilities, on such a serious matter, that Alek, in fact, threatened the deceased with court action if she did not make a will in the terms he was advocating.
However, even if he did not expressly threaten the deceased with court action, his requests, which in my view, were in the nature of demands, between September and December 2004, that she make a will in which there would be a gift of the Erskineville property to him, lead me to the view that it was his pressure which caused the deceased to succumb, for the sake of a quiet life, and, therefore, her free judgment, discretion and wishes were overborne.
The physical and mental strength of the deceased are relevant factors in determining how much pressure is necessary in order to overbear the will. I am satisfied that there was importunity that the deceased could not resist on or about 17 December 2004, and that she made the 2004 Will merely for the sake of peace. It was the product of his consistent, and repetitive, action that had commenced some time before but had become more pronounced from at least September 2004. During this period, his conduct was not merely an appeal to her sentiment or affection.
I am satisfied that because of his belief that he was entitled to the Erskineville property, Alek exerted pressure upon the deceased to make the 2004 Will which she did, the terms of which Will were contrary to the wishes she had expressed a few weeks earlier. What he did amounted to coercion. As a result, the deceased's mind was, in effect, a mere channel through which what Alek wanted, operated.
I am satisfied, as Sir James Wilde put it in Hall v Hall at 482, that the deceased was not led but driven; and that the 2004 Will was not the offspring of her own volition, but the record of Alek's.
Accordingly, I am satisfied that the Plaintiffs have established undue influence.
In all the circumstances, I make the following orders:
(a) Order that subject to compliance with the rules of Court, Probate in solemn form of the deceased's Will made on 15 April 1999 be granted to the Plaintiffs;
(b) Order that the matter be referred to the Registrar to complete the grant;
(c) Order that the Cross-Claim be dismissed;
(d) If the parties are unable to agree on the burden of costs, the matter is adjourned to hear argument;
(e) Order that the Exhibits, with the exception of each original Will, should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 and the Court Books may be returned.
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Decision last updated: 17 November 2011
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