Tu v Tu Estate of Tu

[2008] NSWSC 458

CITATION:	Tu v Tu Estate of Tu [2008] NSWSC 458
HEARING DATE(S):	21, 22, 23 and 24 April 2008
JUDGMENT DATE :	14 May 2008
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Windeyer J at 1
DECISION:	Order for grant of probate in solemn form of copy of 2003 will.
CATCHWORDS:	WILLS PROBATE AND ADMINISTRATION – Probate – Application for grant of probate – whether deceased had knowledge and approval of contents of will - suspicious circumstances not a defence - WILLS PROBATE AND ADMINISTRATION – Probate – Application for grant of probate – whether testator had testamentary capacity – where deceased suffered Parkinson’s disease, delusions and schizophrenia – onus remains with person propounding will
CATEGORY:	Principal judgment
CASES CITED:	Banks v Goodfellow (1870) LR 5 QB 549 Estate of Griffiths (deceased) Easter v Griffiths (unreported NSW Court of Appeal 7 June 1995) In the will of Hempel [1960] SR(NSW) 147 at 149 Jones v Dunkel (1959) 101 CLR 298. Kerr v Badran [2004] NSWSC 735 Nock v Austin (1918) 25 CLR 519 Rhodes v Rhodes (1882) 7 AC 192 at 198; Worth v Clasohm (1952) 86 CLR 439
PARTIES:	Margaret Sze Tu and Helen Sze Tu (Plaintiffs) Mary Sze Tu (Defendant)
FILE NUMBER(S):	SC 119303 of 2005
COUNSEL:	Mr L Ellison SC (Plaintiffs) Mr P Hallen SC with him Mr A R Zahra (Defendant)
SOLICITORS:	Derham Houston Lawyers (Plaintiffs) Colin Biggers and Paisley (Defendant)

- 33 -

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

WINDEYER J

WEDNESDAY 14 MAY 2008

119303/05 MARGARET SZE TU & ANOR V MARY SZE TU (ALSO KNOWN AS MARY LOWE) IN THE ESTATE OF TANG FUNG SZE TU

JUDGMENT

Issue

1 The question for decision is which of three wills made by the Tang Fung Sze Tu (Mrs Tu) should be admitted to probate.

Family matters

2 Mrs Tu died on 8 April 2004, aged 87. She was a widow. She had five children: Mary (the defendant); Janet McNamara; Margaret (the first plaintiff); John, and Helen (the second plaintiff). Helen was the youngest child and was born in 1954.

3 Mrs Tu and her husband lived in Honiara in the British Solomon Islands before moving to Sydney in the 1970s. They had however sent all their children to school in Sydney. Mrs Tu could speak only a little English. Her native Chinese dialect was Sze Yap and she spoke in that dialect to her family. She could also speak Cantonese and used that when to talking to other Chinese people.

Estate assets

4 The estate of the deceased was as follows:

Estimated Value
1/3 share as tenant in common of 3/2 Coogee Bay Road, Randwick (Randwick)	$ 158,333.33
25/168 share as tenant in common of 88 Harris Street, Fairfield (Fairfield)	$ 267,822.88
Rent received on Fairfield held in account in names of plaintiffs	$ 11,799.20
Proceeds of account with National Australia Bank	$ 106.58
Medical benefits refund	$ 82.20
Total	$ 438,144.19
The liabilities were for the most part hospital expenses paid for the deceased by the plaintiffs. The total liabilities were	$ 41,901.20
Net Estate	$ 396,242.99

Date	Executors	Prepared by	Distribution
30.04.03	Plaintiffs	Lewis Yee	Interest in Randwick to Helen; Interest in Fairfield to Helen and Margaret in equal shares; residue to Helen and Margaret in equal shares
Jan 1998	Plaintiffs	Lewis Yee	Interest in Randwick to Helen; residue to five children in equal shares
26.11.92	Plaintiffs	Heidtman & Co	Interest in Randwick to Helen if unmarried, otherwise in accordance with residue. Residue to five children in equal shares.

5 The will of 30 April 2003 was in existence at the death of Mrs Tu, but has since been lost in the office of Messrs. Holman Webb, Solicitors, who were at one stage acting for the plaintiff in this action. It is accepted that if the will were valid a copy should be admitted to probate.

6 The will made on some date in January 1998 has been destroyed. The evidence is that it was destroyed by direction of Mrs Tu after she had signed the 2003 document. No copy of it has been established to exist. If a grant is to be made in respect of this will it will have to be of a reconstituted document.

7 The original will of 26 November 1992 is in evidence. It is accepted that it is a valid document if not revoked by the later wills.

8 The 2003 document includes in clause 6 a provision substituting the children of Helen and Margaret to take their parents’ interests in the event of their predeceasing the testatrix. I will return to this.

Pleadings, particulars and issues

9 The plaintiffs propound the 2003 document and in the alternative the 1998 will. So far as the latter is concerned they say that if the deceased lacked capacity to make the 2003 will she lacked capacity to revoke the 1998 will by destruction.

10 The defences raised are lack of testamentary capacity, want of knowledge and approval and when the hearing commenced lack of due execution, this last being pleaded as follows “the signature on the 2003 document and the 1998 document purporting to be the signature of the deceased is not the signature of the deceased”.

11 As to this last defence Mr Hallen SC, senior counsel for the defendant stated that the defendant had no positive evidence to lead as to forgery, but that he wished to cross-examine the attesting witness as to execution. I should add that the defence to the amended statement of claim filed on 5 December 2006 did not raise, as defences to the 1998 document, lack of knowledge and approval and lack of due execution. This was done by amendment shortly after the proceedings commenced. The defence of lack of due execution was withdrawn after cross-examination of the relevant witnesses, presumably because it was clear it would not succeed.

12 The defendant by way of cross-claim propounds the 1992 will. While she seeks a grant herself or in the alternative to Perpetual Limited (stet) of administration with the will annexed, it is conceded that the plaintiffs, as nominated executors, would be entitled to a grant if they wished to take it.

13 There are reasonably detailed particulars given of the claim of lack of capacity. I will return to this but in general the allegations are that from 1976 Mrs Tu suffered from a psychiatric illness and chronic paranoid schizophrenia; that she suffered from delusions and hallucinations; that she was taking anti-psychotic medication; that she suffered from Parkinson’s disease; and that at least from 1999 she was unable to care for herself, had physical problems, behavioural problems, memory impairment, limited insight and limited executive function. These particulars, if established, give rise to a requirement that knowledge and approval be affirmed and proved rather than being discharged by proof of due execution and capacity.

14 The particulars of the claim of want of knowledge and approval given are (a) that Helen was responsible for the preparation and execution of the 1998 and 2003 documents; (b) that she retained Mr Yee, solicitor, to prepare those documents; (c) that she was present when the documents were executed and (d) that she was expected to take significant benefits under the documents.

Facts as to accommodation

15 Randwick was purchased by the deceased’s husband in 1969 in the name of himself, the deceased and John as tenants in common in equal shares. John subsequently transferred his share to his father.

16 On 1 April 1969 Mrs Tu executed a power of attorney in favour of Mary.

17 Mr Tu and the deceased apparently divorced in 1975. There is some evidence about his having two wives, which was said to be allowed in China, but that does not matter for the purposes of this case. The children of the other wife appeared to get on well with Mrs Tu. Mrs Tu lived in the Randwick unit with Helen and Margaret until Margaret married in 1989 and moved out to live close by. In 1995 Helen married and moved out also to a home nearby.

18 In February 1996 the deceased went to live with her son John at West Ryde. This was not successful as the deceased felt removed from her other children and in October 1996 she decided to move to care accommodation at Hoban House, Maroubra. She remained there for about ten months and in July or August 1997 moved to the Lochinvar Nursing Home in Coogee. It seems that was satisfactory as she had a room to herself, but Lochinvar closed down and the deceased moved again to Phillip House Nursing Home at Waverley where she was in a room with three other people until reasonably close to her death. She then moved to a room with one other person. On 5 December 2003 the deceased was admitted to Prince of Wales Hospital suffering from aspirated pneumonia. She was there until 12 December 2003 when she was transferred to the Roma Private Hospital at Randwick. She had told Helen and Margaret that she did not want to go back to Phillip House. She remained at the Roma Hospital and died there on 8 April 2004.

Facts surrounding the wills and revocation of power of attorney

1992 will

19 As there is no challenge to this will I will not consider it other than to say that as it was not shown to any of the parties for the purpose of identification of signature, then if neither the 1998 will nor the 2003 will is found to be valid the cross-claim in respect of the 1992 will should be dealt with by the Registrar for the purpose of making a grant in common form when the required evidence is available.

1998 will

20 The deceased called Helen “ArKin”. Helen, in an affidavit sworn on 31 August 2006 says in paragraph 23:

23. In about mid December 1997, I had a conversation with Mother to the following effect:
Mother- “ArKin my Randwick portion I give to you. You have been looking after me for so long and take such good care of me I want you to have it. I know you love me very much and I love you too”.
Me - “Ma, did you say you give that one-third portion to me?”
Mother - “Yes, I give it to you ArKin you take it”.
Me - “Thank you Ma”.
Mother - “No need to thank me, you take it”.
Me - “ If that is what you want, to give it to me, you will need to make a Will. I need to make an appointment for Lewis Yee so he can come out and prepare a Will for you”.
Mother - “Good. You ask him to come here”.

Helen then said in paragraph 24:

24. A few days after my discussion with Mother I telephoned Mr Yee and we had a conversation to the following effect:

Me - " Ma would like me to have her portion of Randwick".
Mr Yee - "Does she have any other property or other assets".
Me - "Yes, she has a small share in a property at Fairfield. Ma didn't mention that so I assume it stays as it is".
Mr Yee - " What is that?"
Me - "To be divided equally for Mary, Janet, John, Margaret and myself.
Mr Yee - "What about the residue".
Me - "The same five share equally".
Mr Yee - "You will need a witness".
Me - "Can I get Sunly to come along".
Mr Yee - "Yes that's ok, he is not a beneficiary you can ask him".

Paragraph 25 of that affidavit then continues:

25. Mr Yee made an appointment and Mr Yee came to visit Mother at Lochinvar in about early January 1998. I was present on that occasion. When Mr Yee arrived I said to the following effect "Ma this is Lewis Yee the Solicitor you want to see, he can speak Sze Yap". Mother replied "Oh that's very good". I then recall a conversation to the effect:
Mr Yee - "I got instructions through Helen telling me you want to give your Randwick portion to Helen."
Mother- "Yes that's correct."
Mr Yee- "You have other assets. Fairfield?"
Mother- "Yes, a small portion."
Mr Yee- "Is it your instruction to give your portion in Fairfield to your five children, Mary."
Me- "ArHeng"
Mr Yee- "Janet"
Me- "ArYuk"
Mr Yee- "John"
Me- "ArKain"
Mr Yee- "Margaret"
Me- "ArLing"
Mr Yee- "and Helen"
Me- "ArKin"
Mother- "Yes, that's correct"
Helen was again present when Mr Yee attended with the will he had prepared for signature. She said that the following conversation then took place:

Mr Yee - "Tell me exactly what you want to be written in the new Will.
Mother - "My portion of Randwick I give to Helen. Helen has been looking after me all these years and I know she loves me and I love her very much. I want her to have it".
Mr Yee - "You have a small portion of Fairfield. Are you giving that portion to your five children?"
Mother - "Yes that's right".
Lewis Yee then repeated what Mother had told him and then said
"So the portion of Randwick you give to Helen because she has been looking after you and your portion of Fairfield you give to your five children equally'.
Mother: "Yes that's right".

21 After this the will was signed by the deceased and witnessed by Mr Yee and Sunly Sze Tu the half brother of Helen.

22 Margaret said that she was shown a copy of this will and that it was dated early in 1998. In cross-examination she explained that what she referred to as a copy may have been the original will. It was not shown to Mary.

23 Margaret, in her affidavit of 4 September 2006, said she remembered the provisions of the will which she then summarised as:

A. Helen and I would be executrices.
B. Mother gave Helen her portion in the Randwick unit.
C. Mother gave her portion in the Fairfield to be shared equally between Helen and myself, Mary, Janet and John.
D. The rest and residue of mother’s property was to be divided equally between Helen and myself, Mary, Janet and John.

She had not been present when instructions for the will were given nor on the day it was executed.

24 To some extent the evidence of Helen is supported by Mr Yee. He said that the original contact came from Helen, he said that on his first visit to the nursing home he obtained instructions for the will from the deceased, but he did not remember the terms of the instructions. He said that when he went the second time, the deceased signed the will in his presence and in the presence of Sunly Sze Tu. He said he left the original will with the deceased. He gave evidence of his usual practice which he said was to read out each paragraph, in this case in the Sze Yap dialect, and then ask the person signing “Is that what you want”. If the answer was affirmative he then proceeded to the next clause. He had no file relating to this will but he explained that his practice had been sold shortly thereafter and he did not know what had happened to the file.

25 Mr Sunly Sze Tu was called to give oral evidence. He said he had been asked by Helen to attend at Lochinvar to witness, “a document to be signed and it is the will of Big Mum”. He called Mrs Tu “Big Mum”. He confirmed Mr Yee was there. He confirmed that he witnessed the will. He did not read the document.

26 I accept the evidence of Helen, Margaret, Mr Yee and Sunly as to the 1998 will, its execution and its contents. There was no real challenge to this, but of course a challenge was not easy. If the deceased had capacity to make it, I find it was a valid will when signed. The evidence of its contents is sufficient to allow a grant to be made.

Revocation of the power of attorney

27 As I have said the deceased signed a power of attorney in favour of Mary in 1969. In 2002, and perhaps before, there was litigation in this Court about the estate of Mr Tu. It seems the five children were split with Helen and Margaret on one side and John, Janet and Mary on the other. Helen says she told her mother about this on 27 June 2002 and said that Mary, Janet and John were challenging what Mr Tu had “ … written down in the floral notebook. There is a court case which they have commenced”. This was misleading, as the case had been settled on the basis there was an intestacy. Helen said that her mother had said Mr Tu’s wishes should have been accepted. Helen said the statement was made to explain her inability to visit through attendance at court.

28 Shortly thereafter Sunly told Helen that he had found the 1969 power of attorney and gave her a copy of it. Helen then told the deceased of this saying it would allow Mary to make decisions for her relevant to care, accommodation, savings and assets without her consent. She said that Mrs Tu expressed concern about this, saying she did not want that. Helen spoke to Mr Yee, who told her that the power of attorney could be revoked and that he could attend at Phillip House for that purpose. Under arrangements made by Helen he did attend at Phillip House and Mrs Tu signed a document headed “Revocation of Power of Attorney”. Mr Yee did not remember the conversation he had with the deceased but he again gave evidence of his usual practice to read the document, question as to whether it was what was wanted and if it was, have it signed. He forwarded the revocation notice to Mary, whose husband, Mr Lowe, telephoned him to enquire about it. Mr Lowe rang back a few days later, having been to see the deceased with his wife Mary. Mr Yee told Mr Lowe that he was satisfied that Mrs Tu knew what she was doing. Mr Lowe told him that Mrs Tu was talking about a “paddy field”. Mary in her affidavit said that she had asked her mother if Mr Yee has been to see her, to which Mrs Tu responded: “Yes. He was dressed casually and I signed some document in relation to some land in China, a rice paddy from my relatives in China”. Later Helen spoke to Mr Yee who told her about this. Helen said that after discussion with her mother, her mother had told her that she was being pressed by Mary and Mr Lowe and that she had said this to “put them off”. Helen, in her affidavit of 8 August 2007, set out what she said her mother had said about this to the effect that Mary and Geoff were hounding her with questions and she had to tell them something to make them go away. While this piece of evidence is a little difficult to accept after consideration I accept it as I accept the deceased was upset after the visit of Mary and Geoffrey.

29 Mary wrote to Mr Yee saying that she did not accept the revocation. The power of attorney had never been used. Evidence of Helen of some documents between banks said to indicate its use, did not do so. It is, I think, likely that, as a result of the fall out over the father’s estate, Helen was trying to influence her mother against Mary. This, however, is not a case about undue influence or fraud.

The 2003 will

30 In her affidavit of 31 August 2006, Helen said in paragraph 49:

49. On 12 April 2003 during the course of my afternoon visit to Mother we had a conversation to the following effect:

Me - "Do you and Mary talk much on her visits?".
Mother - "Not much, she feeds me, brushes my teeth then she waits out in the hallway, with arms folded impatiently, until the nurse comes to put me to bed, and then she leaves."
Me - "What about Janet?".
Mother - "Janet does talk a bit at times. The other day Janet asked me whether I had worn a cardigan she had bought for me and I told her that I had not, as it was too small and that I told her that before. Janet suggested that maybe I should wear one less of my spencers, but I told her I would not be warm enough and I told her that it would be better if she bought me a bigger cardigan, which she replied that she would".
Me - "What about John? I have not heard him addressing you when he arrives".
Mother - "Yes that's right, John only has a few words to say every now and again, feeding me and cleaning my teeth before he goes, unlike you and Margaret, who always stay for more than an hour. I love you and Margaret the most. You two really care about me".

31 Again it was put that this conversation was initiated by Helen for the purpose of putting Mary, Janet and John in a bad light. That is possibly true, but it does not take away from the force of the answers if they were given. I find they were.

32 Helen then deposed to having a conversation with her mother on 14 April 2003 which is set out in paragraph 50 which I set out together with paragraph 51 to 54 of the affidavit:

50. On 14 April 2003, I arrived to see Mother for my second visit of the day. Father Berry and another priest, whose name I cannot recall, were waiting to see Mother outside her room. Mother was waiting for the nurses to take her out of bed and put her in her chair. After exchanging pleasantries with Father Barry and the other priest Mother asked. “ Have you bought the box of chocolates for Father”. I said. “Yes” I handed the chocolates to Mother who in turn handed them to Father Barry. I, with Mother, Father Barry and the other priest all prayed together and we received Holy Communion. Father Barry then departed. I suggested to Mother we do our daily exercises, following which we had a conversation to the following effect:
Mother - “We can do that later. ArKin there is something I want to talk to you about".
Me - "What do you want to talk to me about mum"
Mother - "I remember that I have a small portion of Fairfield that belongs to me".
Me - "Yes that's right".
Mother - "Fairfield, my portion, I give to you and ArLing I know that both of you truly love me and I love you two very much. You two always take very good care of me and make sure everything is alright. Christmas, New Year, my birthday and Chinese New Year, you two always bring good food and celebrate with me. I give my portion of Fairfield to you two."
Me - " Ma if this is what you want, you need to make a Will. Would you like Mr Yee, your Solicitor, to prepare a Will for you as he speaks Sze Yap? Do you remember Mr Yee?"
Mother - "Yes, I remember.
Me - "Mr Yee has been here before".
Mother - "I remember".
Me - "I will make an appointment for him to come here".
Mother - "Yes, you ask him to come here".

51. On 27 April 2003 during my afternoon visit to Mother, Margaret arrived with Mother's dinner. After Mother had her dinner we had a conversation to the following effect:

Mother - "ArKin, I want to tell ArLing that I give you my share of Unit 3, because you come here twice a day and take very good care of me. ArLing, ArKin, my Fairfield portion I give to you two. Both of you truly love me and I love you two very much. You always care for my health and happiness. I am getting old, I have everything. Anything that I need you or ArLing always get it for me. I don't need to buy anything."
Me - "Ma I've told Mr Yee about how your wishes should be carried out and I will phone him tomorrow to see whether he could come to see you sometime next week."
Mother - "That's good, you two had better go home now. It is very dark outside".


52. My Chinese name, to which Mother referred, is ArKin. Margaret's Chinese name, to which Mother would refer, is ArLing.

53. On 28 April 2003 I telephoned Mr Yee. I said to him, to the effect:

Me: "Ma wants to make a new will':
Mr Yee: "What does she want to do".
Me: "She wants me to have her share of Randwick and for her shares of Fairfield to go to Margaret and myself”.
Mr Yee: "I will prepare a Will and come out. When is it convenient"?
Me: "Wednesday."
Mr Yee: "Is 11:30 ok".
54. On 30 April 2003 I arrived to see Mother at 11.10 am. She appeared to me to be very well and alert. She told me "I had a good sleep last night and ate all my porridge for breakfast". At 11.30 am Mr Yee arrived. Mother looked at him, smiled and exchanged pleasantries. Following that exchange, Mr Yee and Mother had a conversation in Sze Yap. Whilst I was present throughout the conversation, except when I left to look for a witness, I did not participate in the conversation. I recall words to the following effect were said:

Mr Yee - "You want to leave your interest in Randwick to Helen".
Mother - "Yes".
Mr Yee - "You want to leave your interest in Fairfield to Margaret and to Helen".
Mother: "That's right".

33 Mr Yee told Helen that another witness would be required and Helen went out and asked a lady, Agnes Githii, a nursing aide, if she would be prepared to witness the signature. Mrs Tu then signed the document which was witnessed by Ms Githii. Mr Yee also witnessed the document and probably signed last.

34 Mr Yee said that he was contacted by Helen about this will on 15 April 2003. He said that Helen told him that her mother wanted to make a new will, leaving Randwick to her because she had looked after her and visited her every day; she wanted to give the interest in Fairfield to Helen and Margaret because they were the children who visited most and they were to take the residue. This was admitted as evidence of what Helen had said to Mr Yee, but not as to the truth of the reason.

35 Mr Yee said he would prepare a draft will, which he did. He then made an appointment with Helen to see the deceased. On this occasion he produced the document in advance on instructions from Helen, rather than obtaining them from the deceased direct as he had done for the 1998 will. He said he was satisfied to do so in the light of his experience with the 1998 will and the revocation of the power of attorney. He must have been told by Helen of the references to title which appear in the will.

36 Mr Yee went to the nursing home on 30 April 2003. In his affidavit he said that Mrs Tu recognized him but it is likely this was because Helen had told her mother than he was coming. Paragraphs 30 to 32 of his affidavit are as follows:

30. I had a conversation with the Deceased to the following effect:
Me: “ I have prepared a Will on your behalf on the instructions I previously received through your daughter, Helen. Is it your instruction to make a Will?”
Deceased: “Yes”.
Me: "Who do you want to look after your affairs after your death?"
Deceased: "ArKin and ArLing"
Me: "What do you want to do with your share of the Randwick Unit?"
Deceased: "I want it to go to ArKin because of her devotion and because she visits me twice a day"
Deceased: "I give my share of Fairfield to ArKin and ArLing because they are the only two children who love me and I love them a lot."
Me: "If you have any other property, who do you want that to go to?"
Deceased: "ArKin and ArLing"

31. I understand ArKin and ArLing are the Chinese names for Helen and for Margaret Sze Tu ("Margaret") respectively.

32. I read the Will to the Deceased in the Sze Yap language clause by clause. At the end of each clause I said words to the effect:
"Is that what you want"
She said "Yes"

After I finished reading the will to her I said:

"Is that what you want to happen to your property"?
She said "Yes that's correct because ArKin visits me everyday and I am especially fond of ArKin and ArLing".

I then said to the Deceased
"I will get you to sign the Will but we must have a second witness".

37 I accept this evidence. It is supported by a note that Mr Yee says he made when he returned to his office. Mr Yee was asked in cross-examination about clause 6 which was the substitution of grandchildren clause. The following appears at page 51 of the transcript:

Q. Well, would you have a look at clause 6 of the will.
A. Oh that's a general clause I put in most wills any way.

Q. So you didn't discuss that clause with her?
A. No.

38 Agnes Githii was called. She said that Helen asked if she would witness Mrs Tu “signing her signature”. She agreed. She did not read the document. In her affidavit she said that after the deceased signed Mr Yee said “You have seen her signing so will you sign that you saw her sign” and that she agreed. She was not told that the document was a will. In cross-examination and in answer to a question from me, some doubt was cast upon whether Mr Yee had said anything at all, but it does not really matter. Again if the deceased had capacity the will was valid.

39 Mrs Tu asked Helen to take the original will home – meaning to the Randwick unit – which she did. She said that a few days later her mother asked her to tear up the last will. This, I think, is accepted as being the 1998 will. She took that will to the nursing home, identified it to the deceased, who tore it up.

40 Margaret, in an affidavit sworn on 4 September 2006, supported the account Helen had given about the 2003 will. In paragraph 41 of her affidavit she said that in late April 2003 she had a conversation with her mother as follows:

41. In about late April 2003 I was visiting mother. Helen was also present. Mother said to me, words to the following effect:
“ ArLing, I want you and ArKin to have my Fairfield share. When your father bought it, he said I have a small share in that property. I have no need for it. Whenever I need something, either you or ArKin would buy it. I want to give my Fairfield share to you and ArKin. It is you both that I love most. It is you two that are closest to me. My share of the Randwick unit I want ArKin to have it.”

41 She was aware that her mother had made a new will. She said that after Easter 2003 her mother said to her “I have made a will with Mr Yee. Now I feel very happy and assured in my heart”. I accept that evidence.

Transfer of interest in Randwick

42 Helen said that in June 2003 she told her mother that she would like to buy the two-thirds share of the unit which had belonged to her father, because she said that her father had wanted to give it to her, but that had not happened. Her mother had asked what could be done and she had said that she would like her mother to make an offer to purchase it, but that she, Helen, would buy it and pay for it. Helen said the administrators had told her it was not possible for her to purchase, as she had no interest in the unit. It is not necessary to go into this in any detail, but arrangements were made for an offer to be made by Mrs Tu to the administrators of the father’s estate to purchase the two-thirds share for $320,000. This was rejected but subsequently the administrators agreed to accept $350,000 for that interest. Mr Yee prepared a document acknowledging that the purchase moneys had been paid in whole by Helen and as a result of this, after the settlement by way of transfer from the administrators to Mrs Tu, the property was transferred into the name of Helen upon payment of nominal stamp duty. Mary was not told of this purchase. This transaction has no bearing on this action except that Mr Yee gave evidence of obtaining execution.

Knowledge and approval

43 While the part that Helen played in the bringing into being of the 2003 will and the 1998 will means that the matter must be looked at carefully, I conclude that this case must be decided on the basis of the finding as to whether or not the deceased had capacity to make a will when she did. It is not a case of the majority beneficiary preparing the will herself and taking it along to the deceased to be signed without any proper explanation of its contents. I accept the evidence of Mr Yee of what happened on the occasion of the signing of the 2003 will. I accept that he was able to communicate readily with the deceased in her native language. Thus while I accept that the words of the will were inserted in it, following what Helen had said to Mr Yee as to the reasons for the disposition, I am satisfied that if she was capable of doing so the deceased had a proper explanation of the contents of the will and approved those contents. The evidence of the conduct of Helen and of her conversations with her mother about visits of her siblings and her actions in accordance with the power of attorney, may not necessarily show her in a very favourable light, but in the long run have little bearing on the matter, there being no claim of fraud or undue influence. Where suspicious circumstances are raised then the requirement for the court is to look with great care to ensure that the document propounded accords with the wishes of the deceased and that she understood and approved its contents. Suspicious circumstances are not in themselves a defence, rather they are something which alerts the court to the importance of vigilance in determining that the deceased understood the document she was signing and its contents and that the dispositions in the document were in accordance with her stated wishes. Nock v Austin (1918) 25 CLR 519. The clear evidence however is that the deceased did not know and approve of clause 6. No instructions were given for it by Mrs Tu or for that matter, Helen. It was not discussed with her. It was probably not read to her. That clause cannot be admitted to probate. Rhodes v Rhodes (1882) 7 AC 192 at 198; In the will of Hempel [1960] SR(NSW) 147 at 149

Capacity

44 A valid will must be that of a free and competent testator. The test as to competency is laid down in Banks v Goodfellow (1870) LR 5 QB 549. Contrary to what some people seem to believe, I did not cast doubt on this in Kerr v Badran [2004] NSWSC 735.

45 In 1976, after some strange behaviour and admission to a mental hospital, the deceased was diagnosed with paranoid schizophrenia. She was prescribed Modecate Fluphenazine and the schizophrenia was brought under control.

46 The unchallenged evidence is that the deceased led a very simple life. She did not listen to the radio; she did not watch television; she did not read books or magazines. She was a committed Catholic and attended mass each day. Her only friendships and contacts were with members of her family.

47 Hoban House was a low care residential facility. It was a requirement that the residents be mobile. While the deceased was there Helen visited her every day, having stopped work to do this. In fact she usually visited twice a day for lunch and dinner and helped her mother into bed. In 1997, Mrs Tu had a back operation at Prince of Wales Hospital, after which she had difficulty in walking and so she could not return to Hoban House. She moved to Lochinvar and was then 81 years of age. She required assistance with going to the bathroom, showering and getting in and out of bed. She stayed in her room sitting in a chair or in bed.

48 After the move to Phillip House Helen continued visiting twice a day, usually taking her mother home cooked Chinese food which she preferred. The care required remained much the same. Margaret visited twice a week and Mary visited on Saturdays. There was some dispute about this, but I am satisfied that while Mary visited each fortnight while her mother was at Hoban House and Lochinvar, she did visit each week or at least nearly each week after Mrs Tu moved to Phillip House.

49 Helen said that on her visits her mother discussed the family, the nursing home, her health and what she would like to eat the next day. Mr Wong, who is Margaret’s husband, saw Mrs Tu occasionally at Phillip House and on at least on one occasion at the Roma Hospital. He spoke with the deceased in Cantonese. They discussed much the same mundane things. Mrs Tu always asked after his children and she knew their names. Margaret visited her mother at Phillip House on Friday and Sundays. She took her mother meals as Helen did. They spoke about much the same things as Helen did with the deceased, namely health, Margaret and her four siblings, Margaret’s children and people from the Solomon Islands whom Margaret had met in China Town. Margaret said that the deceased answered questions and she did not ask for the questions to be repeated and that she was not confused.

50 Mary’s evidence is somewhat different from this. She said that at Hoban House the deceased would say that her husband was trying to kill her and that he had married a European woman. There is no doubt this was delusional conduct which, on the medical evidence, was brought under control She said that on one occasion she did not recognise Margaret’s son Jason. She said the position was the same at Lochinvar. She said that the deceased deteriorated at Phillip House and often just sat staring into space, that she could not engage in conversation and made constant chanting sounds. As against this Helen said that she spent three hours a day with her mother, did not see her staring blankly or chanting unless she was praying and she said that after a medicine change to Risperdal there were no further complaints about strange voices.

51 One matter is of some significance. John was adopted. He was in fact “purchased” in Hong Kong. It was important for Chinese families to have a son. The deceased was able to give a clear account of this to Mary in August 2002. I appreciate that Mary said the deceased’s condition got worse in 2003 and she had fewer good days then and this must be taken into account with all the other evidence.

52 This a bitter family dispute over quite a small estate. I consider the evidence of both Helen and Mary as to their mother’s condition somewhat exaggerated. I found Margaret a reliable witness. I accept the evidence of Helen on her mother’s wishes for her will.

Medical evidence

53 Mrs Tu began to suffer Parkinson’s disease before 1994 and was quite severely afflicted by the time she died. This and her schizophrenia account for much of the material put into evidence.

54 Over 500 pages of nursing home and hospital notes and reports were put into evidence on the basis that it had been before Dr Phillips who referred to some parts of it in his report. It was admitted on the basis that unless counsel took me to a specific part that was referred to by Dr Phillips or another witness, it was not to be taken into account. I proceeded on that basis even though technically I should perhaps have insisted those parts not relied upon be removed from the exhibit.

55 Dr Michael Robertson was in 1994 a psychogeriatric registrar at Prince of Wales Hospital. He sent a report on Mrs Tu to Dr Chan on 23 May 1994. The relevant parts of that report are as follows:

Thank you for asking me to see this 78 year old divorced woman who lives with her daughter. Mrs. Szetu's daughter states that her mother has had increasing suspiciousness and odd behaviour, including making several vehement accusations towards her since July last year. Mrs. Szetu stated that she has heard voices commanding her to throw out her belongings as well as telling her that her daughter had destroyed her other daughter's marriage. Mrs. Szetu's daughter, stated that her mother has no impairment of short or long term memory, impairments to her ADLs or word finding difficulties. There appears to be no known precipitants to this illness.
Mrs. Szetu has a past history of paranoid schizophrenia which has been treated long term with depot fluphenazine, which has recently been increased to 25mg intramuscularly every fortnight. She has had one three to five month admission to Rozelle Hospital in the early 1970s after a suicide attempt. It appears that her illness at that time improved markedly after treatment with neuroleptics, and she has remained in the community; she has most recently been cared for by Dr. Patrick Toohey and her case manager Ngarie Watson at Bondi Junction Community Health Centre.

…


Mental state examination revealed an 78 year old woman who was neatly attired and markedly parkinsonian. She showed some abnormal involuntary movements of her neck muscles but demonstrated no other abnormal involuntary movements of her limbs or trunk. She was cooperative with the interview process and did not appear overtly suspicious or perplexed.

There was a seduction in spontaneous speech which was dysprosodic. She spoke no English and consequently assessment of thought form was made difficult. Her affect was restricted and her mood was described as "worried". She demonstrated persecutory beliefs that were delusional in intensity, as well as some passivity phenomena. She denied experiencing perceptual disturbances and did not appear distracted by internal phenomena during the interview. My cognitive assessment revealed no disorientation but impairment of short term memory and a degree of frontal lobe impairment as evidenced in concreteness, perseveration and poor planning in attempting assessment tasks, as well as an incapacity to shift sets. There was no evidence of parietal lobe impairment or of phasic difficulties. The degree of frontal lobe impairment appears to exceed that expected as a component of a schizophrenic illness.

Physical examination revealed no focal neurological deficits but it did reveal marked parkinsonism and primitive reflexes including bilateral palmar-mental responses and positive glabella
tap.

It appears that Mrs. Szetu is amidst an acute exacerbation of paranoid schizophrenia, however the presence of apparent cognitive impairment suggests that a dementing process may be present. The effect of neuroleptic as well as the presence of a psychotic process are obviously significant in producing this picture, and I am reluctant to pronounce the presence of a dementing process on the basis of one assessment. Despite this, I feel it is appropriate to proceed with an organic work up including measurement of biochemical and haematological parameters, estimation of serum B12 and folate levels, syphilis serology, HIV serology, TFT, chest x-ray, EEG and cerebral CT scan. I also feel that a neuropsychiatric assessment by a clinical psychologist would be warranted to quantify the degree of cognitive impairment, however this would ideally occur at the time when her dosage of neuroleptic was reduced and her psychosis resolved.

I feel this woman should be reviewed by a psychogeriatrician after her psychosis resolves and she is able to undergo neuropsychological assessment. I will therefore ask my successor, Dr. Worrall to review her at a later date. If you have any enquiries, feel free to contact me at the Psychogeriatric Unit at the Prince Henry Hospital, prior to June 27th 1994.

56 Dr McPherson, a consultant psychiatrist, saw the deceased on a number of occasions during 1995 and 1996 at the request of Dr Chan. On 6 May 1995 he noted that the deceased had had paranoid delusions about her husband and her medical attendants, but that having been persuaded to restart on Modecate, her symptoms gradually disappeared. He said that despite those symptoms her behaviour was well controlled. He did not make any suggestion of dementia. He noted that she had a slow parkinsonian tremor. In a report of 30 August 1996, Dr McPherson noted that Mrs Tu had changed from Modecate to Risperdal which had been a success as her paranoid psychosis was well controlled. A report dated 26 November 1996, includes the following in its first paragraph under the heading “Progress Note”:

Progress Note:

I reviewed Mrs. Sze-Tu on the 18th of November. I understand that she has now moved to a nursing home and that she has settled in relatively well, although she has perhaps had some exacerbation of her symptoms over the last month or so with increased frequency of hallucinations. However despite this her behaviour has been under control and I understand there is no concern about her at the nursing home. Her daughter asked me if she could increase the dose of Risperdal, to 4 mgs b.d. and carried this out, however she is still not quite satisfied with her mothers condition and would like to increase it further; On examination I felt Mrs. Sze-Tu was significantly improved. She was alert, smiling and there was no evidence of sedation. She walked quite well with no marked instability. She complained of headaches and heaviness in the head but wouldn't elaborate much further on her psychiatric symptoms. She was unable to answer the day and date correctly only knowing that it was 1996. Its hard to know whether this relates to her schizophrenia, however it may possibly reflect a dementing process as well. Cooperation and language difficulties make this difficult to assess.

57 In a report to Dr Chan of 18 June 1998, the following passages appear:

Thank you for discussing this patient by telephone this week. Just to reiterate, I visited the nursing home in Coogee at her daughter's request on the 4th of June. Her daughter said that she has generally been happy with her mother's state and that she has settled well into the nursing home. Unfortunately she is largely confined to her bed and chair in her own room due to her foot problem. The nursing staff reported Mrs. Sze-Tu was quiet and no trouble with no evidence of psychosis at present.

On examination Mrs. Sze-Tu seemed content and reasonably free of depression and she smiled warmly. She was awake but her cognitive function was impaired consistent with her previous diagnosis of dementia. She knew the day and the month but reported the year as 1988. Her short term memory was zero out of three at three minutes.

58 Dr Zabow was the deceased’s general practitioner from 1999 until she died. I found him to be a very reliable witness. He said that he saw the deceased on over 50 occasions during the time when she was under his care. Due to the language difficulty no psychiatric assessment was made by him and often a family member was present and was needed to interpret. Nevertheless, he said that he found no difficulty in understanding what the deceased was telling him. He had a number of Chinese patients and he had some very basic ability with Chinese. He said that sometimes Helen was there, who could interpret for him, and on other occasions there was no one else there. When there was somebody to interpret and he asked questions he thought that the answers were quite logical. He did not observe the Parkinson’s disease or schizophrenia affecting the deceased’s ability to communicate with him or affecting her thought processes. He said that the change of drug from Cogentin as advised by Dr Chan was of benefit to the deceased and she became more alert after that. He said that the neuroleptic drugs which the deceased was taking for her Parkinson’s disease were not drugs which blunted cognitive abilities. He did not agree with the suggestion that throughout the period during which the deceased was his patient she suffered from some cognitive impairment. In answer to that question he said, “I don’t think so. As far as I was concerned on all occasions when I saw her, with the limit of language difficulty, I thought that she seemed reasonably right mentally as far as I was concerned”. He said that on occasions when he saw the deceased when Helen was not present, he considered that she recognized him as she always smiled when he arrived.

59 Dr Chan is a well-qualified specialist physician and geriatrician. He has published many articles on subjects which include strokes, Parkinson’s disease, dementia and delirium. He saw the deceased at Phillip House on a number of occasions. Notes of his examinations appear in the medical assessment notes kept at the nursing home. He saw her on 2 August 2002 and 10 September 2002. He said that he had been asked to assess the cognitive status of Mrs Tu. He said that, on his first visit, Mrs Tu was taking the medication Cogentin. Dr Chan was not certain whether he had been requested by Helen or by Dr Zabow to test the deceased’s capacity to make a will. On the first occasion he changed the deceased medication from Cogentin to Madobar. When he saw her on 10 September 2002 and assessed her cognitive function he said that she was better meaning improved from the position on 2 August. His report included the following:

I again assessed her cognitive function today (10 September 2002). She is now better. She was orientated in place, stated the hour correctly and could state her correct age. She even remembered my name. When asked to memorise three things, she could only remember one out of three items after three minutes albeit her immediate recall was good (3 out of 3). She was unable to draw over-lapping pentagon and could not do serial seven due to her educational level. The assessment was difficult as her educational level might have biased her score to a lower level.

I have also asked her today (10 September 02) if she remembered when did she make the will. Initially she needed prompting but when asked if she had given her share of property in Randwick to her daughter Helen, she stated "yes" and could explain why she did it. She stated that it was because Helen has been taking care of her. The reasoning was quite consistent as I asked her on three different occasions, she came up with the same answer.

In my opinion, she is definitely impaired in cognitive function. It is difficult to assess the exact extent of her impairment due to her educational level. However, it does appear that she has retained insight into her decision-making as regarding her will and is consistent with her reasoning of making the will the way she did.

60 He saw Mrs Tu again in the nursing home on 31 May 2003 at the request of Dr. Zabow or because he was following up a patient. He said that the deceased’s mental state remained stable since he had seen her in September, but there was no doubt that Cogentin had had a blunting effect on her mental ability. The following passage appears in his report of 1 May 2003:

On examination today, she knew she was in a nursing home and recognised me. She knew it was Thursday afternoon and stated her age correctly. When her memory was tested, her immediate recall and short term memory was both 2 out of 3. When tested about arithmetic, she made 2 mistakes out of 5 in subtractions (taking 3 from 20 consecutively). She however found it hard to draw a clock and this may be related to her Parkinson’s disease more so than her mental status. In terms of ability to make decisions, she told me consistently the reasons for allocating her share of the Randwick flat to her daughter Helen and the Fairfield property to Helen and Margaret.

61 In June 2003, Dr Chan was asked by Mr Yee to give an expert medical opinion as to the ability of the deceased to give instructions as to the disposal of her estate. As a result of this he sent a copy of his report of 1 May 2003 to Mr Yee, but revisited the deceased on 3 July 2003, to review her capacity to make a will. A report of that date includes the following:

Her mental state remains stable since I saw her in May. On examination today, she knew she was in a nursing home. She knew it was Thursday afternoon and stated her age correctly. When her memory was tested her immediate recall was 3 out of 3 and short term memory was both [sic] 2 out of 3. She however found it hard to draw a clock and this may be related to her Parkinson’s disease. In terms of ability to make decisions, she told me consistently that she had changed her will in April this year. The reasons for allocating her share of the Randwick flat to her daughter Helen and that Helen has been dedicated to her and sees her twice a day. She also said that her share of the Fairfield property was given to Helen and Margaret because of their special loving care of her.
I am happy about her ability to decide her will as reflected by her consistency in reasoning and memory of the event in April.

62 Dr Chan was cross-examined for most of an afternoon by Mr Hallen SC, senior counsel for the defendant. He did not accept that dementia may have commenced in 1994. He said that when he first examined her, although there was some cognitive impairment he would not call it dementia. He said the two were different. Although he accepted that those who suffered from advanced or severe Parkinson’s disease were prone to develop dementia, he said that the deceased’s Parkinson’s condition had not reached that stage of severity. It is clear from the first report of Dr Chan that he had been told by somebody, presumably Helen, that the deceased had made a will and had given her share in Randwick to Helen, but he was clear she understood that she had done this and was able to explain why she had done so.

63 Dr Chan did not know how many children the deceased had, nor what property she had, apart from her interests in Randwick and Fairfield. In spite of the somewhat detailed cross-examination the effect of the doctor’s evidence remained the same. It was that he considered that Mrs Tu knew what she was doing in making a will, that she knew the persons to whom she wished to leave Randwick and Fairfield, and that she was able to articulate reasons for this.

64 The plaintiff put into evidence an affidavit of Dr David Bell, a well known psychiatrist. He had not seen the deceased during her lifetime and his evidence was given on the basis of the affidavits, the nursing home notes and other hospital reports which are in evidence. When discussing the 1994 report of Dr Robertson and his suggestion that the deceased had begun to dement he then said “as she was aged 78 years, she had senile rather than presenile dementia and could be expected to deteriorate at a pace to be expected of her age”. It is not clear from this that he accepted the suggestion of dementia. He discussed the comments of Professor Chan as to cognition and its improvement after medication was changed and he discussed what appeared to be the influence of the family members on the conduct of the deceased. After discussing various matters referred to by Dr Phillips in his report, to which I will come, Dr Bell gave his final opinion as follows:

59. The deceased had a considerable range of illnesses and degenerative conditions when she died. The three conditions that have relevance to the question of testamentary capacity are the long-standing schizophrenia present since about 1970, the senile deterioration of mental abilities diagnosed as dementia and the Parkinson’s disease. The information in the documents seems to establish that at the time the deceased executed wills in 1998 and 2003 she understood the nature and effects of making a will, she knew the extent of her property, she understood the claims of her children on her bounty and she was not affected by the delusions associated with her schizophrenia in relation to the disposal of her property.
60. The documents confirm that her daughter Helen exercised a level of care and attention well above the call of duty and well above the rest of the deceased’s children with the exception of Margaret, who played a somewhat less rigorous part in the care of their mother before and after she entered the nursing homes. In other words, the documents establish that the disposition Mrs Sze Tu made of her bounty had a rational and justifiable basis. Mrs Sze Tu did have delusions, but they appear to have become less significant as she grew older. This is the usual pattern of the condition, the psychosis diminishing as the fires of life die down.

Dr Bell was not called for cross-examination.

65 Dr Jonathan Phillips is also a well known qualified psychiatrist, whose report dated 20 February 2007 was put into evidence by the defendant. Dr Phillips had the same material as did Dr Bell and may have had more of the nursing home and other notes. He considered it to be more likely than not that the deceased was impaired as a result of a continuing dementing process rather than just suffering from psychosis. He placed considerable reliance on the report of Dr Robertson and seemed to accept that by 1994 the deceased was suffering from advancing dementia in addition to paranoid schizophrenia and Parkinson’s disease. The difficulty about the opinion of Dr Phillips is that he accepted that by January 1998 the deceased was suffering from advancing dementia whereas the evidence of Dr Zabow and Dr Chan is against that and Dr Robertson’s report does not prove that. He thought that by April 2003 the deceased was suffering “from a highly significant dementing illness which would have had impact on testamentary capacity and that she then had cognitive problems which inevitably would have affected her thought content, thought processes and judgment”. Dr Phillips was not called for cross-examination and on careful reading of his report and that of Dr Bell, all that one can say is that it is possible to understand the reasons which they have given for the opinions which they have expressed, but I do not think that there is any reason why the opinion of one should be preferred to the opinion of the other nor why their opinions should be preferred over Dr Chan, who did see the deceased on at least four occasions.

Consideration

66 First it is important to remember that on probably all the occasions when Dr Chan visited for the purpose of the reports which have been put into evidence, Helen was present and it is also necessary to remember that she was present when Mr Yee was present, although not for the entire time when the 2003 will was being executed. There is no doubt that she told Mr Yee of the wishes of her mother and that she told Dr Chan of the properties held by her mother. Nevertheless I am satisfied that her evidence which was ultimately made clear during cross-examination was that so far as the 2003 will was concerned it was her mother who made the statements to Mr Yee as to why she wished to make the disposition which she made, rather than these having been stated by Helen on that occasion.

67 The position is therefore as follows: We have an old, reticent, quiet, reserved Chinese lady, who on the evidence did not go far from home and whose only contact was with members of her family. According to the evidence she was required to move from the self-care facility to a nursing home facility as a result of physical disabilities rather than mental disabilities. On the evidence her schizophrenia and her delusional conduct had been controlled. She had some cognitive impairment. I accept the evidence of Dr Chan and Dr Zabow and accordingly I conclude the deceased did not suffer from dementia or if she did it was not sufficient to deprive her of testamentary capacity. There is no doubt that Mrs Tu understood that her assets for the main part consisted of her interest in the Randwick property and her interest in Fairfield. There is no doubt that she knew her children and she knew her grandchildren. There is no reason to believe that any of those children did not have a genuine affection for their mother and wished to care for her. Some had more time than others to give that attention. There is no doubt that Helen and Margaret provided considerably more care and support than did the other children of the deceased.

68 In my view there is no question whatsoever that the deceased understood that she was making a will and understood what that meant. Her comment of relief to Margaret made that clear. So far as was necessary she understood the property which she had available to her to dispose of by her will. She knew the persons having a claim on her bounty. As I have said this is not a claim of undue influence nor is it a claim of fraud, meaning influencing decision by fraudulent statements. Persons are entitled to press their claims for provision and in any event there is no suggestion in this case that that is what Helen and Margaret did. In my view the only question for determination is whether or not the deceased had the mental capacity, not only to know those persons who had some claim upon her bounty, but to properly consider those claims. The onus of course remains with the person propounding the will and as the principles set out in Worth v Clasohm (1952) 86 CLR 439 and Estate of Griffiths (deceased) Easter v Griffiths (unreported NSW Court of Appeal 7 June 1995) have been set out so often I will not set them out here. It could not be said that the reasons which the deceased gave for preferring two of her children over the others, were without any basis. It is not suggested that Helen did not give far more attention to her mother than did any of the other children. It is not suggested that Margaret was not the second best provider of attention. There is no doubt that each of them went through considerable disturbance to her life to enable her to give this attention. The deceased was not disposing of a large estate. She did compare claims of the plaintiffs against her other children. Mothers are entitled to have favourites and are not required to be fair. The sequence of wills did not bring about a complete change, but a gradual increase in benefit for one child and then another explicable in light of the increase in care provided. In all the circumstances I am satisfied that Mrs Tu had the necessary capacity to make a will and that the 2003 will properly set out her wishes, apart from the last paragraph of it, for which no instructions were given, which Mr Yee inserted of his own volition and which on his evidence he did not even read or explain to the deceased.

69 I point out that this is not a case in which Mr Yee’s conduct or inadequate explanations are under attack except insofar as they are relevant to the decision to be made here. It is obvious he could have asked far more appropriate questions. It is obvious Dr Chan could have done the same, but the fact they did not do so only makes the decision more difficult as it must be decided on the evidence adduced.

70 Finally to avoid any doubt I state that both Janet and John were served with citations and neither side made submissions as to an inference to be drawn against the other through failure to call them as witnesses: Jones v Dunkel (1959) 101 CLR 298.

Proposed orders

71 The result of this is that there will be an order for a grant of probate in solemn form of a copy of the 2003 will, omitting clause 6 limited until the original will be lodged with the Registry. The cross-claim will be dismissed.

72 I will hear submissions on the question of costs.

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