Vukotic v Vukotic

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

PROBATE LIST

No. PRB 17416 of 2010

IN THE MATTER of the Will and Estate of NADA OJKIC (also known as NADEZDA OJKIC) deceased

DUSAN VUKOTIC	Plaintiff
v
DJORDJE VUKOTIC	Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	20, 22 November 2013
DATE OF JUDGMENT:	18 December 2013
CASE MAY BE CITED AS:	Vukotic v Vukotic
MEDIUM NEUTRAL CITATION:	[2013] VSC 718

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WILLS — Testamentary capacity — Whether the deceased had capacity to give instructions for a will — Whether the deceased had capacity to execute a will — Medical evidence not sufficient to support a finding of a lack of capacity — Deceased had capacity according to the Banks v Goodfellow test to give instructions — Deceased had capacity according to the Parker v Felgate test to execute the will

WILLS — Knowledge and approval — Onus of proof to be applied — Suspicious circumstances — Court satisfied that the deceased read over and understood the provisions of the will

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Sowden	Robinson Gill
For the Defendant	Ms C McOmish	Slater & Gordon

HER HONOUR:

Introduction

Nada Ojkic (‘the deceased’) was born on 20 March 1920 and died on 25 July 2010, aged 90 years. Her husband, Borislav Ojkic, died in 1998. They did not have any children. The plaintiff and the defendant are the deceased’s nephews, the sons of her sister who died in Serbia in August 2008. The plaintiff, who is aged 65, and defendant, who is aged 60, were born and live in Serbia. Both are practising doctors in Belgrade. The estate of the deceased comprises her house at 22 Kalimna Street, Balwyn, valued at $1 300 000, and $5924 in the bank.

The deceased left a will dated 13 June 2010 (‘the 2010 will’). In that will, the deceased:

(a)appointed the plaintiff as her executor;
(b)left a legacy of $100 000 to Marija Ojkic, the daughter of the deceased’s husband’s nephew (also named Borislav Ojkic), who died recently;
(c)gave an option, exercisable within 60 days of the grant of probate of the deceased’s will, to her friend and neighbour, Dr Paul Soon,[1] to purchase the deceased’s home at 22 Kalimna Street Balwyn for the sum of $1 000 000;
(d)left 10% of her residuary estate to the defendant; and
(e)left 90% of her residuary estate to the plaintiff.

[1]Dr Soon died on 4 September 2010 and did not exercise the option granted to him in the 2010 will. The parties agreed at the trial that the option was a personal right, not exercisable by his executor.

The 2010 will replaced an earlier will by the deceased dated 4 August 2009 (‘the 2009 will’). In that will, the deceased;

(a)appointed the plaintiff as her executor;
(b)left her residuary estate as follows:
(i)50% to the plaintiff;
(ii)10% to the defendant;
(iii)15% to Marija Ojkic;
(iv)15% to Bojana Ojkic, the nephew of the deceased’s husband, who predeceased the deceased;
(v)5% to Borislav Ojkic, the recently deceased nephew of the deceased’s husband; and
(vi)5% to Dragan Zadar, the son of the deceased’s husband’s niece, whose whereabouts are unknown.

On 11 January 2011, the defendant filed a caveat claiming the deceased lacked testamentary capacity to execute the 2010 will, and that the 2010 will was procured by the undue influence of the plaintiff. By amended grounds filed on 18 November 2013, the defendant claimed that the deceased did not have testamentary capacity when she made her 2010 will and that she did not know and approve of the contents of the 2010 will. The defendant submitted that there is real doubt about the deceased’s capacity:

(a)to give instructions in late March 2010 for the 2010 will; and
(b)to execute the 2010 will on 13 June 2010.

The defendant submitted that in the alternative, if the deceased did have capacity at the relevant times, the deceased did not know and approve of the contents of the 2010 will.

At trial, the plaintiff and the defendant agreed that the plaintiff’s solicitor, Mr Timothy John Robinson, would apply for letters of administration with the will annexed once the determination was made by this Court as to which will was the last valid will of the deceased. By affidavit sworn 2 December 2013, Mr Robinson deposes that, if a grant is made to him, he will not apply for executor’s commission and will calculate his professional fees applying the Practitioner Remuneration Order.

The Background

The deceased immigrated to Australia from Serbia in 1953 to live with her husband, Borislav, who had immigrated in 1945. At the time the deceased immigrated to Australia, the plaintiff was five years old and the defendant was six months old. The deceased was close to her sister, the mother of the plaintiff and the defendant.

As an adult, the plaintiff kept in touch with the deceased by letters and telephone calls and, despite the distance, their relationship was close. The plaintiff first visited the deceased and her husband in Australia in 1980, when he was 31. The plaintiff continued to visit the deceased until her death in July 2010. In all, the plaintiff estimates that he and his immediate family visited Australia more than 60 times between 1980 until the death of the deceased. When they visited the deceased, they stayed with her and her husband, when he was alive, at their home in Balwyn. During his many visits to Australia, the plaintiff helped the deceased with the maintenance of her house and garden, carrying out repairs where necessary, and took an active role in assisting her with her day‑to‑day needs.

In 1998, the deceased’s husband became critically ill (having suffered a stroke) and contracted severe pneumonia. Both the deceased and her husband insisted that the plaintiff be at his side and, in February 1998, the plaintiff flew to Australia to support them. The deceased’s husband was still conscious when the plaintiff arrived. The plaintiff said his uncle was happy to have him by his side and expressed his gratitude to the plaintiff for his devotion to both of them. His uncle told him that, given the close relationship the plaintiff had with the deceased, he wanted the plaintiff to continue to take care of her. The deceased’s husband died in March 1998. The plaintiff remained in Australia and assisted the deceased with the funeral arrangements and ensured that the deceased was taken care of during that difficult time.

The plaintiff said that he and the deceased spoke weekly on the telephone and that he remained close to her. He said the deceased would often seek the plaintiff’s advice if she were having medical problems and, if she required hospital treatment, he would speak to her treating doctors to ensure she was receiving good care and to check on her recovery. To his knowledge, the deceased did not experience any serious medical problems until she was over the age of 80 years. From that time onwards, she suffered from rheumatoid arthritis and bowel cancer and underwent multiple surgical procedures, including a hip replacement, cataract removal and the insertion of a pacemaker.

Until 19 March 2010, the deceased lived at her home in Balwyn. Whilst she lived at home, she had an emergency call button supplied to her by the Boroondara Council. She was required to telephone them before 10 o’clock each morning to inform them that she did not require any immediate medical assistance. She also received home assistance, primarily general house-keeping, provided by the Council.

On 19 March 2010, the deceased was admitted to Iris Grange Nursing Home (‘Iris Grange’), an aged care facility located in Heidelberg Heights, after having had a series of fainting episodes and falls. The next day, on the deceased’s birthday, her friend Dr Paul Soon gave instructions on behalf of the deceased to a solicitor, Mr Ferdinand Zito, for the drafting of a will. In late March 2010, Mr Zito attended on the deceased at Iris Grange to confirm those instructions. He later attended on the deceased again at Iris Grange for the purpose of signing the 2010 will, but formed the view that she was not lucid and decided not to discuss her will with her.

On 6 June 2010, the deceased was admitted to Box Hill Hospital with acute respiratory distress and pain. On 8 June 2010, the deceased was diagnosed with metastasised lung cancer. On 13 June 2010, Mr Zito attended the deceased at Box Hill Hospital, where the deceased signed the 2010 will in the presence of two witnesses, Mr Zito and an employee of the hospital. Dr Soon and the plaintiff were also present.

On 9 July 2010, the deceased was discharged from Box Hill Hospital. The discharge sheet from Box Hill Hospital lists a number of complaints, but there was no record of dementia or any like condition. The deceased was then admitted to palliative care at Caritas Christi Hospice, where she died on 25 July 2010.

Testamentary Capacity

In order for a will to be admitted to probate, the testatrix must have possessed testamentary capacity when making the will. The classic exposition of the requisite mental capacity was the formulation of Cockburn CJ delivered in Banks v Goodfellow, where His Honour said:

It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; and shall be able to comprehend and appreciate the claims to which he ought to give effect.
With a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in the disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.[2]

[2](1870) LR 1 QB 549, 565; see also Bull v Fulton (1942) 66 CLR 295.

In that case, the Court was considering whether evidence of insanity that did not affect the actual dispositions in the will was sufficient to invalidate that will. As Cockburn CJ went on to explain, the real question in cases relating to ‘unsoundness of mind’ arising from ‘a want of intelligence’ occasioned by ‘supervening physical infirmity or the decay of advancing age’ is whether the testatrix has a ‘sound and disposing mind and memory’:

In these cases it is admitted on all hands that though the mental powers may be reduced below the ordinary standard, yet if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains. It is enough if … ‘the mental faculties retain sufficient strength to fully comprehend the testamentary act about to be done’.[3]

[3]Ibid 566 (citations omitted).

In assessing this, His Lordship endorsed the words of Washington J in Harrison v Rowan, where the Federal Circuit Court for the District of New Jersey directed the jury:

As to the testator’s capacity. He must, in the language of the law, have a sound and disposing mind and memory. In other words, he ought to be capable of making his will, with an understanding of the nature of the business in which he is engaged;—a recollection of the property he means to dispose of;—of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them. It is not necessary, that he should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient, if he has such a mind and memory as will enable him to understand the elements of which it is composed—the disposition of his property in its simple forms.
…
In deciding upon the capacity of the testator to make his will, it is the soundness of the mind, and not the particular state of his bodily health, that is to be attended to. The latter may be in a state of extreme imbecility, and yet he may possess sufficient understanding to direct how his property shall be disposed of. His capacity may be perfect to dispose of his property by will, and yet very inadequate to the management of other business; as, for instance, to make contracts for the purchase or sale of property. For most men, at different periods of their lives, have meditated upon the subject of the disposition of their property by will; and when called upon to have their intentions committed to writing, they find much less difficulty in declaring their intentions, than they would in comprehending business in some measure new.[4]

[4](1820) 3 Wash CC 580, 585; Banks v Goodfellow (1870) LR 1 QB 549, 567.

Old age, and the associated infirmities of old age, do not by themselves establish a lack of capacity.[5] Sir John Nicholl in Kinleside v Harrison noted that they are factors that raise ‘some doubt of capacity, but only so far as to excite the vigilance of the Court; for the law allows a person at any age to make a will’.[6] The power freely to dispose of one’s assets by will has long been considered an important right.[7] The caution exercised by Courts in invalidating wills made by the elderly is grounded, not in a fear of ‘the group of ghosts of dissatisfied testators who, according to a late Chancery judge, wait on the other banks of the Styx to receive the judicial personages’ who have disallowed their wills,[8] but in the sound reasons expressed by Kirby P in Easter v Griffith:

In judging the question of testamentary capacity the courts do not overlook the fact that many wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent — more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will.
…
Were the rule to be otherwise, so many wills would be liable to be set aside for want of testamentary capacity that the fundamental principle of our law would be undermined and the expectations of testators unreasonably destroyed.[9]

[5]Bailey v Bailey (1924) 34 CLR 558, 570 (Isaacs J).

[6](1818) 2 Phill Ecc 449, 462; Bull v Fulton (1942) 66 CLR 295.

[7]Re Griffith; Easter v Griffith (1995) 217 ALR 284, 290 (Gleeson CJ).

[8]Perrin v Morgan [1943] AC 399, 415 (Lord Atkin).

[9]Re Griffith; Easter v Griffith (1995) 217 ALR 284, 295 (Kirby P).

It is sufficient that the testatrix had capacity at the time for giving instructions for the making of the will, provided that when executing the will the testatrix was in such a condition that she could satisfy any one of the tests prescribed by Sir James Hannen in Parker v Felgate:

If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus far, ‘I gave my solicitor instructions to prepare a will making a certain disposition of my property. I have no doubt that he has given effect to my intention, and I accept the document which he put before me as carrying it out’. Now, I have only put into language that which flashes across the mind without being expressed in words. Do you believe that she was so far capable of understanding what was going on? Did she at that time know and recollect all that she had done with Mr Parker? That would be one state of mind.
But if you should come to the conclusion that she did not at that time recollect in detail all that had passed between them, do you think she was in a condition, if each clause of this will had been put to her, and she had been asked, ‘Do you wish to leave so-and-so so much’, or do you wish to do this (as the case might be), she would have been able to answer intelligently ‘Yes’ to each question? That would be another condition of mind. It would not be so strong as the first, viz. that in which she recollected all that she had done, but it would be sufficient.
There is also a third state of mind which, in my judgment, would be sufficient. A person might no longer have capacity to go over the whole transaction, and take up the thread of business from the beginning to the end, and think it all over again, but if he is able to say to himself, ‘I have settled that business with my solicitor. I rely upon his having embodied it in proper words, and I accept the paper which is put before me as embodying it’ it is not, of course, necessary that he should use those words, but if he is capable of that train of thought in my judgment that is sufficient.[10]

[10](1883) LR 8 PD 171, 173–4; Bailey v Bailey (1924) 34 CLR 558, 572 (Isaacs J).

Finally, although the onus of proof lies on the party propounding the will,[11] the onus of proof in respect of testamentary capacity ‘often shifts about’, as Lord Brougham articulated in Waring v Waring:

He who propounds a latter Will, undertakes to satisfy the Court of Probate, that the testator made it, and was of sound and disposing mind. But very slight proof of this, where the factum is regular, will suffice; and they who impeach the instrument must produce their proofs, should the party actor (the party propounding) choose to rest satisfied with his prima facie case, after an issue tendered against him. In this event, the proof has shifted to the impugner; but his case may easily shift it back again.[12]

[11]Bailey v Bailey (1924) 34 CLR 558, 570; Worth v Clasohm (1952) 86 CLR 439.

[12](1848) 6 Moo PC 341, 355–6; Bull v Fulton (1942) 66 CLR 295.

This presumption of testamentary capacity arises if the will is rational on its face and duly executed.[13] Once a doubt has been raised about the testatrix’s testamentary capacity, the Court must be satisfied affirmatively that the testatrix was of sound mind, memory and understanding when executing the will.[14] Extreme age or grave illness will raise doubts only if the testatrix’s mental capacities are shown to have been affected.[15]
[13]Bull v Fulton (1942) 66 CLR 295, 343 (Williams J), Ridge v Rowden (Unreported, Supreme Court of New South Wales, Santow J, 10 April 1996) 39.
[14]Kantor v Vosahlo [2004] VSCA 235 (16 December 2004) [56].
[15]Timbury v Coffee (1941) 66 CLR 277.

Knowledge and Approval

Before a will can be admitted to probate, the Court must be satisfied that the testatrix knew and approved of the contents of the document at the time that she signed it. Where the Court finds that the testatrix has testamentary capacity, and that the will is duly executed, a presumption arises that the testatrix knew and approved of the contents of the will propounded.[16] However, as summarised by Parke B in Baker v Batt:

There is also another principle upon which the Court below has acted, and which has long prevailed in the Ecclesiastical Courts, which is this, — that if the person benefited by a will, himself writes or procures it to be written, the will is not void, as it would have been by civil law; but the circumstance forms a just ground of suspicion, and calls upon the Court to be vigilant and jealous, and requires clear and satisfactory proof that the instrument contains the real intention of the testator.[17]

[16]Guardhouse v Blackburn (1866) LR 1 P&D 109, 116 (Sir J P Wilde); Re Hodges: Shorter v Hodges (1988) 14 NSWLR 698.

[17](1838) 2 Moo PC 317, 321. See also Barry v Butlin (1838) 2 Moo PC 480, 482–83; Nock v Austin (1918) 25 CLR 519, 528 (Isaacs J).

There is no exhaustive statement of ‘just grounds of suspicion’. The primary suspicion recorded in the reports from the Prerogative Court of Canterbury is where a beneficiary is involved in the writing of the will:

The Court is always extremely jealous of a circumstance of this nature. By the Roman law qui se scripsit haredem[18] could take no benefit under a will. By the law of England this is not the case … but where the person who prepares the instrument, and conducts the execution of it, is himself an interested person, his conduct must be watched as that of an interested person; propriety and delicacy would infer that he should not conduct the transaction.[19]

[18]‘He who wrote himself as heir’.

[19]Paske v Ollat (1815) 2 Phill Ecc 323, 323–4 (Sir John Nicholl); Re Quigley; Vernon v Watson [2002] NSWSC 600 (5 July 2002) [3].

Mere assertions or allegations are not sufficient; there must be a well grounded suspicion engendered in the mind of a Court acting judicially.[20] The suspicion must be concerned with the actual contents of the will, and whether they accord with the testatrix’s intention, and not whether there are circumstances that raise suspicions about the process by which that intention was formed, such as undue influence.[21]
[20]McKinnon v Voigt [1998] 3 VR 543, 551 (Tadgell JA).
[21]Tobin v Ezekiel [2011] NSWSC 81 (1 March 2011) [100] (Brereton J), citing Atter v Atkinson (1869) LR 1 P&D 665, 668 (Lord Penzance); Tyrrell v Painton [1894] P 151, 156 (Lindley LJ) 159 (Davey LJ); Nock v Austin (1918) 25 CLR 519, 528 (Isaacs J); Public Trustee v McKeon (1917) 17 SR (NSW) 157, 164 (Street J).

The presumption raised by the suspicion is not insurmountable. In Barry v Butlin, Parke B considered the common requirement of the courts that in suspicious circumstances ‘there must be proof of instructions or reading over’:

If, by these expressions, the learned Judge meant merely to say … that instructions proceeding from [the testatrix], or the reading over the instrument by or to him, are the most satisfactory evidence of such knowledge; we fully concur in the proposition so understood.[22]

This was affirmed by Brereton J in Tobin v Ezekiel as ‘ordinarily conclusive evidence’.[23] Although it has been said that the propounder must do more than merely establish that the testator executed it in the presence of witnesses after it had been read to or by him,[24] the extent of the proof required will depend on the circumstances of the case. Meagher JA, upholding Brereton J’s decision on appeal, warned in relation to the standard of proof required:
In this context the statements prescribing ‘vigilance’ and ‘careful scrutiny’ and referring to the court being ‘affirmatively satisfied’ as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof. What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters. They also recognise that deciding whether a document is indeed a person’s last will is a serious matter, so any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw or, now, s 140(2) of the Evidence Act 1995.[25]
[22](1838) 2 Moo PC 480, 484.
[23][2011] NSWSC 81 (1 March 2011) [111] (Brereton J).
[24]Robertson v Smith [1998] 4 VR 165, 174 (Tadgell JA); Nicholson v Knaggs [2009] VSC 64 (27 February 2009) [153]‑[155] (Vickery J).
[25]Tobin v Ezekiel [2012] NSWCA 285 (13 September 2012) [48] (Meagher JA) (citations omitted). See also Worth v Clasohm (1952) 86 CLR 439, 453; Kantor v Vosahlo [2004] VSCA 235 (16 December 2004) [22]; Briginshaw v Briginshaw (1938) 60 CLR 336; Evidence Act 2008, s 140(2).

The Evidence

The plaintiff gave evidence, and also relied on the evidence from:

(a)the solicitor who drew the 2010 will, Mr Ferdinand Zito;
(b)the deceased’s friends, Mrs Suzanne Soon (Dr Soon’s wife) and Mrs Jasna Nesovanovic;
(c)the deceased’s treating general practitioner, Dr Jane Sklovsky, who treated the deceased from 2006 until 14 January 2010; and
(d)the expert evidence of Professor Owen White, a medical practitioner, specialising in general neurology.

The defendant gave evidence and relied on the expert evidence of Dr Georgina Lowndes, a clinical neuropsychologist.

The parties also agreed and tendered a number of medical documents relating to the deceased for the period 2009 and 2010 (‘the medical documents’).

The Evidence of the Plaintiff

In September 2009, the plaintiff stayed with the deceased at her Balwyn home for a month. He said that, by then, her principal difficulties arose from her physical infirmities. She was able to take care of herself within her physical limitations, was able to perform everyday tasks and appeared oriented in time and place. She had no difficulties in articulating her needs or generally communicating with those around her.

In June 2010, when the deceased was admitted to Box Hill Hospital, the plaintiff came to Australia. He arrived on 12 June 2010 and stayed with Dr Soon and his wife, good friends of the deceased. The plaintiff said that, during his visit in June 2010, he visited the deceased several times a day in hospital. She was always happy to see him and they would often reminisce about the times they had spent together over the past 30 years. The plaintiff recalls the deceased telling him to be happy to have shared these moments together and that she thanked God for having had them. Whilst her physical condition was deteriorating rapidly, he said she was receiving excellent palliative care to relieve her pain.

The plaintiff said that he first discovered that the deceased intended to change her will after she asked the plaintiff to attend the execution of the 2010 will on 13 June 2010. She told him that she had changed the will in order to provide the plaintiff with a legacy in gratitude for all that he had done for her and her husband over the years. The plaintiff said that he had never suggested to the deceased that she should change her will, nor did he give her any instructions or advice as to what should be in her will.

The plaintiff said that, before the deceased signed the 2010 will, Mr Zito read it to her and asked her whether it reflected her wishes and intentions. The deceased confirmed that it did. The plaintiff said that, when the deceased signed the 2010 will, she was alert and able to express herself lucidly. He observed that she was conscious and had a clear understanding of what she was doing. After the deceased signed the 2010 will, the deceased told the plaintiff that she was happy that she had the opportunity to change her will.

The Evidence of Mr Zito

Mr Ferdinand Zito is a solicitor and principal of the firm, Ferdinand Zito & Associates. Mr Zito has been in sole practice since the beginning of 2005. Before that he was in partnership. He drafted the 2010 will and witnessed it on 13 June 2010. Mr Zito describes himself as a general practitioner with a busy practice. He estimated that he probably receives instructions to prepare about 30 or 40 wills each year.

Mr Zito said that he did not know Dr Soon at all well or on a personal level. Dr Soon was a client of his former partnership and principally did his business through another solicitor, his assistant and the conveyancing clerk of the partnership. Dr Soon continued to be a client of Mr Zito because the conveyancing clerk came with him when he left the partnership and began working as a sole practitioner.

On 20 March 2010, Dr Soon attended Mr Zito’s office to provide instructions to prepare powers of attorney and a will on behalf of the deceased. Dr Soon told Mr Zito that the deceased was a friend. Mr Zito took a file note of his conference with Dr Soon. He was conscious that he was taking instructions from a third party who was to take a substantial benefit under the proposed will.

Mr Zito said that the instructions provided by Dr Soon corresponded with the provisions of the final will that he drafted and that the deceased ultimately executed. In particular, he said that the instructions were to provide Dr Soon with an option to purchase the deceased’s home for $1 000 000, to provide a legacy of $100 000 to Marija Ojkic and for the residue of her estate to be divided between her two nephews, with 10 per cent to the defendant and the remaining 90 per cent to the plaintiff. In his file note, Mr Zito noted next to the plaintiff’s name that the plaintiff was the only family member to care for the deceased.

His file note contained a slightly cryptic reference: ‘vendor finance: doesn’t need money’. He explained that this meant that initially the proposal was that Dr Soon might purchase the property from the deceased before she died on vendor finance and pay her a monthly sum until that amount was paid out. His file note indicates the term of the contract was to have been for 10 years, but that if the deceased passed away earlier and her nephew, the plaintiff, needed funds then Dr Soon would arrange to refinance at least half the value and pay interest on the balance. He said that the notation in the file note ‘needs financial advice effect on benefits’ made sense in the context of a contract proposed to run for a term of 10 years. The deceased would need to obtain financial advice as to whether the repayments would affect any benefits the deceased was entitled to in terms of government assistance.

Mr Zito said that he did not get a valuation of the deceased’s house but that Dr Soon already had a valuation that put the value of the house at between $1 200 000 and $1 300 000. The contract proposal did not progress beyond the notes that Mr Zito took of the proposal. His recollection was that it did not go ahead because the deceased became ill and it was no longer required. Dr Soon also paid all of the deceased’s bills and told Mr Zito that he was happy to continue to support the deceased. Mr Zito said that he did not make any inquiries as to what bills or accounts Dr Soon was paying on behalf of the deceased, but to his recollection the Soons were paying the hospital fees.

Dr Soon’s instructions on behalf of the deceased included instructions to prepare powers of attorney appointing Dr Soon as the deceased’s attorney. Mr Zito said that he did not have any earlier copy will of the deceased. He received the instructions as to some of the names that were to be included in the 2010 will from Dr Soon. He did not remember where he obtained the names of the other beneficiaries and said that, in March 2010, the information could have only come from either Dr Soon or the deceased, as there was no one else he was dealing with in respect of the deceased’s will. He knew that the plaintiff was a nephew (because Dr Soon had told him so), but could not recollect who Marija Ojkic and the defendant were or their surnames. He said that he thought he had obtained all those details from the deceased when he confirmed the instructions subsequently with her.

Shortly after receiving instructions from Dr Soon, Mr Zito attended on the deceased at Iris Grange to confirm the deceased’s instructions. Mr Zito was not aware that the deceased was ill, and did not believe that preparing the will was a matter of any urgency. He could not recall how long he was with the deceased but said that it was not his practice to rush people through these sorts of things, particularly older people, and that it was likely he would have taken some time with her.

Dr Soon was at Iris Grange on the day that Mr Zito saw the deceased. Mr Zito explained that this was because he needed to be introduced to the deceased by somebody she knew. After the introduction, Dr Soon excused himself. Mr Zito said that when he took instructions from the deceased, they were alone. Although Mr Zito recalls seeing the deceased at Iris Grange in late March 2010, he does not have a file note of that meeting. He could not offer an explanation for the lack of a file note other than to say that, as the preliminary instructions from Dr Soon had given him a fairly good indication of what was to happen, and as he was attending on the deceased to confirm those instructions, a detailed file note was not necessary.

He said that when he arrived the deceased was sitting on her bed in day clothes. He described her as ‘bright as a button’ and lucid. The deceased asked Mr Zito some questions, and they made some small talk, which helped him to get to know her. In order to satisfy himself that the deceased had capacity, Mr Zito said that he spoke with her in an informal conversational tone, which was his normal practice. After that, they spoke about the business of the will.

Although he does not recall the detail on the day, he recalls that he was satisfied with the clarity of her instructions. Mr Zito recalls that the deceased told him in clear terms the size and composition of her estate and the identity of those people who might have an expectation of benefiting under her will. In particular, she made it clear to Mr Zito that the option in favour of Dr Soon to purchase her property in Balwyn was for a price that was well under its market value. He said that she put the figure of $1 million on the house, and that she wanted to leave it only to Dr Soon and to no one else. He said that she was aware that the house was worth more than $1 million. Mr Zito recalls joking about purchasing the property from the deceased himself for more than the price she wanted to offer it to Dr Soon. He said that he joked in this way so as to check in his own mind that she understood she was giving Dr Soon a benefit in granting him the option.

Once he had drafted the will, Mr Zito saw the deceased a second time at Iris Grange. He could not recall the exact date that he attended the deceased but recalls that Dr Soon and Mrs Soon were present with the deceased. On this occasion, the deceased appeared to be experiencing difficulties with pain and was in a state of distress. He formed the view that she was not lucid and he resolved to attend upon her at a later date.

Dr Soon made an appointment for the will to be signed on 13 June 2010, and Mr Zito attended on the deceased on that day at Box Hill Hospital. Mr Zito said that he remembered going to the hospital because he normally does not travel for clients but, in this particular case, he felt that he should do so. He remembered Dr Soon meeting him in the foyer of the hospital in the early afternoon. The deceased was in the hospital bed and was much improved from the last time he had seen her. He said that she was not the sparkling lady he had seen a little earlier, had a slightly different colouring from his previous visit and appeared drawn. Mr Zito’s most vivid memory of the deceased was when he first met her, and he said that she had certainly deteriorated since then. Having observed that, he said the deceased was again very bright, very alert and very feisty. He conversed with her generally and, again in an indirect and humorous fashion, tried to bring her around to the fact that the house was worth a little bit more than the option, and said that he would offer her more money for it. As when he had previously made the same joke, the deceased responded adamantly that she wanted an option to be granted to Dr Soon.

Mr Zito said that, before he read the will to her, he engaged the deceased in a casual conversation about her health and also asked her to confirm to him what she wanted in her will. He did this because he wanted to ensure that what she wanted was indeed what she had expressed at the earlier meeting. He said that the deceased confirmed her earlier instructions to him. Mr Zito said that he did not suggest anything to the deceased. He said that nothing was mentioned about the powers of attorney, and that he had forgotten about them in any case. While Dr Soon went out to find the witness to the will, which took him about 10 minutes, Mr Zito reiterated to the deceased the business about the purchasing of the house by Dr Soon and said that the deceased confirmed that the will as he had drafted it was indeed what she wanted.

Mr Zito read the will to the deceased and explained to her in detail how the various clauses in the will worked. They conversed in English, which he was satisfied she was able to understand and comprehend. He said that he did not need to tailor his language or his manner of speaking in any particular way. It was his view that she clearly understood what was said. He recalled that the deceased stated that the plaintiff was the only member of her family who had shown any concern or provided any care for her. Mr Zito said that the deceased clearly and emphatically repeated her instructions that she wished her estate to be distributed in accordance with the terms of the will he had drafted.

After he read the will to her, the deceased said ‘yes, that is what I want’ or words to that effect. The other witness to the will was a staff member at the hospital. Mr Zito said that, when the deceased signed the 2010 will he, Dr Soon, the plaintiff, and the second witness were present in the room. He said that he had no doubt in his own mind that the will as executed by the deceased was a true reflection of her instructions. She was lucid, rational and clear about her intentions on the day she executed the will and he had no doubt that she had full mental capacity to do so. Mr Zito said Mrs Soon was not present when the will was signed.

Mr Zito does not have a file note of the attendance on the deceased on 13 June 2010. His explanation for this is that he would not normally make a file note on the date the will was executed, whether it be in his office or elsewhere. Mr Zito said that his standard practice when having a will executed is to read the will to the client before the signing, then to repeat to the witnesses in their presence that the will has been explained, has been read and been understood by the client. Ordinarilyhe would ask his clients, in the presence of witnesses, to acknowledge their understanding before they sign a will. Mr Zito said that his instructions in the relation to the 2010 will did not change between 20 March and 13 June 2010.

Mr Zito did have a file note, dated 17 June 2010, which recorded that he provided a copy of the signed will to Mrs Soon and the plaintiff when they called in that day. Mr Zito said that prior to this he had nothing to do with the plaintiff directly. He said that he gave the plaintiff a copy of the deceased’s will because he thought that, as the executor and a beneficiary, he was entitled to it. Mr Zito does not recall having the deceased’s instructions to give the plaintiff a copy of the will. Also on Mr Zito’s file was a fax from Mr Zito’s office on 26 July 2010 to Dr Soon with a copy of the will attached, pursuant to a request from Dr Soon. The deceased had died the day before. Mr Zito did not recall why Dr Soon wanted a copy of the will so quickly.

The Evidence of Mrs Soon

Dr Soon met the deceased on a tram approximately 12 years prior to her death, and Mrs Soon first met the deceased shortly after that. The Soons lived nearby, and by the time the deceased fell ill, they had come to treat the deceased as an ‘adopted’ member of their family. Mrs Soon said that the deceased became like another mother to them. They took her to their family gatherings, and she came out every Sunday with them. She would ring Mrs Soon and say, ‘Suzanne, I’ve cooked something. Can you come over?’. Mrs Soon would typically see the deceased once or twice a week and would often take her to do her shopping.

Mrs Soon said that, as far as she was aware, the deceased never had any mental health issues. She said that the deceased always communicated with her husband and her in clear terms and always knew what she wanted, even after she was admitted to hospital. While the deceased lived at her home, she was able to look after herself and was only restricted by her physical limitations. She attended medical appointments with her general practitioner without assistance and while in hospital she gave clear instructions to her doctors and nurses with regard to her medical treatment. Mrs Soon described the deceased as having a good memory and being able to recall past events and conversations.

Mrs Soon said that it was clear to her that the deceased had a close relationship with the plaintiff. The plaintiff visited the deceased every year, and there was a strong bond between them. The deceased told Mrs Soon that she considered the plaintiff to be her closest relative and that she treated him as if he were her son. Mrs Soon said that the deceased rarely spoke about her other nephew, the defendant, and to her knowledge the defendant never visited the deceased or helped her out in any way during her long illness. Mrs Soon has never met the defendant.

Mrs Soon said that the deceased was not concerned with money, either at the hospital or when she was living at home. When she was at home, the deceased had managed her own finances most of the time. However, there were periods in which she was in hospital, sometimes for up to two weeks at a time, and at this time the Soons took over paying any bills that came in for her. They also paid for the deceased’s back fence to be repaired, because she was in hospital at that time and they did not want to have to bother or worry her. By doing this they thought they were taking a burden off her. Mrs Soon said that otherwise the deceased was fiercely independent and very much ‘on the ball’, with all of her bills in order.

Mrs Soon and her husband paid the deceased’s bills from their own funds, including her Iris Grange accounts, and gave the deceased some money for her day‑to‑day needs. The deceased often promised to pay them back, but Mrs Soon told her that she did not have to worry about it. They have never asked to be reimbursed, either before or after the death of the deceased. Mrs Soon said that they did this because they loved the deceased and felt responsible for her. In her words, they ‘stepped up’ to manage the deceased’s finances because they wanted to. She said that they did this with the permission of the deceased — indeed, the deceased was happy for the Soons to do so, and was very grateful that they did.

Mrs Soon said that Dr Soon held a power of attorney from the deceased that she thought, but was not sure, had been signed some six years ago. She said the deceased trusted Dr Soon totally. The plaintiff was always on the phone if something happened and, while the deceased was in hospital, he would often ring to check on her. The Soons were also always in contact with the plaintiff, so that the plaintiff always knew what was happening with the deceased. When the deceased was admitted to Caritas Christi Hospice in June 2010 for palliative care, Mrs Soon and her husband were listed as her first and second emergency contacts.

In the six months preceding her death, the deceased discussed changing her will with Mrs Soon on numerous occasions. The deceased told Mrs Soon that she wanted to grant her husband the option of purchasing her house for $1 000 000. Mrs Soon told her that she was opposed to this idea as she felt that the deceased should leave her estate to her family, who had a far greater need. She said that she and her husband considered themselves to be the deceased’s closest friends and that they did not want to give the impression that they only maintained the friendship with the deceased for financial reward. Mrs Soon said that she and the deceased fought openly about this change and Mrs Soon made it clear to the deceased that she did not agree with her decision to include her husband in the 2010 will. The deceased would plead that she just wanted ‘to do something little’ for her, or words to that effect. Mrs Soon was not aware that her husband had given the initial instructions for the deceased’s will to Mr Zito.

Mrs Soon said that she was aware that the deceased had previously made a will, but she did not know what was in it. The deceased’s reasons for wanting to grant her husband the option to purchase the house were many — she loved the Soons and wanted to help them, and she wanted to ensure that the plaintiff did not have to fly to Australia and do everything immediately on her death. She hated the thought of strangers going through her house, and wanted to know that everything was clean and clear and could be dealt with without anyone prying into her business.

Mrs Soon described the deceased as a strong person, assertive and adamant that the new will was drafted exactly as she wanted it. Mrs Soon said that the deceased also told her that she was changing her will so that the majority of her estate would go to the plaintiff. She said that there were many reasons why the deceased increased the plaintiff’s share in her will, but that one reason was that when her sister passed away she had thought the plaintiff would get his mother’s apartment, which he did not. The plaintiff was very involved with looking after his mother and the deceased was very grateful that he did so because she adored her sister.

Another reason was that, from her conversations with the deceased and her encounters with the plaintiff, Mrs Soon knew that the plaintiff often struggled financially and that the deceased knew that he would benefit from the money she wanted to leave to him. The deceased also told Mrs Soon that the defendant was wealthy and did not need any financial assistance.

Mrs Soon saw the deceased almost every day when she was at Iris Grange, and said that the deceased did not appear confused when she was at the nursing home. When the deceased was admitted to Box Hill Hospital, Mrs Soon visited the deceased most days to look after her, feed her and do her washing. Mrs Soon sat with the deceased, talked to her, and fed her as much as she could eat. She said that the deceased could still feed herself but that sometimes she might be sleeping when the food service came, and she was also losing her appetite. In her affidavit, Mrs Soon deposed that the deceased

was still able to converse with us freely and did not seem confused or disoriented when [Dr Soon] and I visited her when she was in Box Hill Hospital.

In her oral evidence, Mrs Soon agreed that this was not entirely correct when the deceased had a severe infection but that even then the deceased still knew her and Dr Soon. She also admitted that the deceased had trouble feeding herself when she suffered from this infection, because she was physically too weak. There was a period of two or three days when the deceased drifted in and out of lucidity, and this delayed her move to Caritas Christi. There were a number of times when she was confused. She said that in the month or so prior to her death, the deceased would sometimes call out to medical staff and become agitated generally about the pain she was suffering.

When the plaintiff came to Melbourne in June 2010, he stayed with the Soons. The deceased was thrilled that the plaintiff had come to Australia to be with her. She said that it had ‘made her day’ that he would come over from Serbia to see her.

On the day that the deceased executed the 2010 will, Mrs Soon visited the deceased at the hospital. The plaintiff was also at the hospital. Mrs Soon said that she does not have a clear memory of the exact times she was there but said that she usually stayed at least an hour, maybe two hours, because she would feed the deceased both her breakfast and her lunch. Mrs Soon was not present in the room when the will was signed but said that, when she did see the deceased on that day, the deceased was alert, knew everyone who was there and understood what she was saying in her normal conversation with Mrs Soon. Mrs Soon said that the deceased was not in a state of delirium that day.

The Evidence of Mrs Nesovanovic

The deceased’s friend, Jasna Nesovanovic, gave evidence about her relationship with the deceased. She said that she was first introduced to the deceased by her brother and sister-in-law in about 2005. In the last two years of the deceased’s life, they became close friends and she often visited the deceased. In the last six months of her life, she visited the deceased weekly. She said that, after she visited her, the deceased would ring her husband, Rade, and thank him for letting his wife spend time with her.

On the occasions that she visited the deceased at her home in Balwyn, she said that she stayed for four to five hours at a time. They talked about a wide-range of topics from politics to tennis, and she said that the deceased was a huge fan of Novak Djokovic, the famous Serbian tennis player and reigning Australian Open champion.[26] Sometimes the deceased would ask her to take her for a drive around Balwyn. Mrs Nesovanovic brought food with her and they would have dinner together. She said that the deceased’s house was kept clean and the deceased conversed clearly and never appeared forgetful. As far as Mrs Nesovanovic was aware, the deceased never had any mental health issues.
[26]The identity of Mr Djokovic can safely be accepted as a matter of judicial notice: McCullough v R [1982] Tas R 43, 58 (Green CJ, Neasey and Everett JJ).

Mrs Nesovanovic said that, during these conversations, it became clear to her that the deceased adored the plaintiff, and that she treated him like her son. She worried about him and missed him a lot. When the plaintiff had a baby grandson, the deceased asked her neighbour to organise a present for him and showed Mrs Nesovanovic the baby clothes that she sent to the plaintiff for his grandson.

The deceased told Mrs Nesovanovic that she spoke to the plaintiff every week and on more than one occasion the deceased said to her ‘I will make sure when I die [the plaintiff] will be financially secure and looked after’. Mrs Nesovanovic was aware that the deceased had another nephew, the defendant, but said that the deceased rarely talked about him. Mrs Nesovanovic did remember that the deceased said to her that she ‘could not believe what [the defendant] did to [the plaintiff]’ and that she got very upset about this. Mrs Nesovanovic said that she was not sure exactly what had happened, but that she knew it had something to do with an apartment in Belgrade that was once owned by the mother of the plaintiff and the defendant. The deceased told her that the plaintiff looked after his elderly parents, not the defendant.

Not long after this conversation, and some time before the deceased was admitted to Iris Grange, the deceased told Mrs Nesovanovic that a solicitor was coming to see her so she could do something about her will. Mrs Nesovanovic said that she did not ask any questions of the deceased because it was a private matter. After the deceased was admitted to Iris Grange, Mrs Nesovanovic continued to visit the deceased weekly. She said that the deceased insisted on being independent. She dressed smartly and always wore perfume.

On 20 March 2010, Mrs Nesovanovic and her husband attended Iris Grange to celebrate the deceased’s 90^th birthday. The deceased’s friends, the Soons, were also there. On that day, she said that the deceased was very happy that everyone was there to celebrate her birthday. She said that the deceased read out her birthday card, and was grateful for what they had given her for her birthday. Mrs Nesovanovic said that the deceased also maintained a strong sense of humour. The deceased told her that she had purchased two pairs of shoes with Suzanne last week and said, ‘I’m going to die soon but I still bought two pairs of shoes. That’s OK. I’m going to look nice before I die’. She said they both laughed at her joke.

On Easter Sunday in 2010, Mrs Nesovanovic and her husband collected the deceased to spend the day with them. She dressed up and put on her make-up herself. Mrs Nesovanovic cooked lunch and dinner at home. They enjoyed talking and had a good laugh together. Mrs Nesovanovic described the deceased as lucid and oriented.

After the deceased was admitted to the Box Hill Hospital in June 2010, Mrs Nesovanovic said that she continued to visit the deceased regularly. The deceased told her that she was in a lot of pain but that she had no problem recognising people or communicating with her when she visited. The deceased told her that when she was in pain she would meditate, which helped her to sleep. Mrs Nesovanovic recalled visiting the deceased with her husband while the plaintiff was in Box Hill Hospital at some time between 12 June 2010 and 19 June 2010. On that occasion, Mrs Nesovanovic described the deceased as alert and said that she not only recognised her but also recognised her husband, whom she did not see very often. Mrs Nesovanovic asked the deceased whether she was happy to see the plaintiff, who had recently arrived in Australia, and the deceased said that she was very happy that he was there. Mrs Nesovanovic again noted that the deceased spoke in clear terms and displayed no signs of confusion.

The Evidence of the Defendant

The defendant said that, after the deceased had moved to Australia, the family kept in touch with her only by letters for the next 15 to 20 years. He said that the deceased was closest to her sister, the mother of the plaintiff and defendant, who lived in Serbia all her life. Despite the geographic distance between them, he said that the relationship between the deceased and their mother remained close up until their mother’s death in August 2008.

He said that the first family member to visit the deceased in Australia was the deceased’s husband’s nephew, Borislav Ojkic, in the early 1970s. The defendant said that he himself visited the deceased and her husband in December 1980 and stayed with them until January 1981, approximately one year after the plaintiff had first visited the deceased in Australia. The defendant said that at that time he could afford to make the visit because he was single and working full time, although it was considered a very expensive trip. The defendant said that the plaintiff’s first wife worked as a flight stewardess and that he was therefore able to secure discounted flights to Australia through her. He alleged that the plaintiff and his family used the deceased’s home as a holiday destination and did not pay for any accommodation while they were staying with the deceased and her husband. The plaintiff denied using the deceased’s home merely as a holiday house.

The defendant said that, until the death of the deceased’s husband in 1998, the deceased kept in touch with the defendant by telephone. She travelled to Serbia on several occasions and, during her visits, she spent time with the defendant and his family and they became close. In 1989, and again in 1998, the defendant invited the deceased to holiday with him and his family and on both occasions they all stayed at a friend’s house in Montenegro for two weeks. The defendant said that the last time he saw the deceased in Melbourne was at Christmas in 1980 or 1981, and that the last time he saw the deceased at all was in 1998, when she visited Serbia.

The defendant said that he could not afford multiple trips to Australia to see the deceased but that they remained in contact by telephone through the years. In his affidavit, the defendants said the deceased always called him on special occasions, such as Christmas and 6 May, the family’s saint’s day. Apart from those occasions, he said that they usually spoke a couple of times throughout the year.

In cross-examination, the defendant said that from 2010 onwards he lost contact with the deceased and had no contact with her during her illness in 2010. He agreed that, after his mother died in 2008, he had very little contact with the deceased and that in 2009 they only spoke once on the telephone. He said that he did not initiate any contact with the deceased because he could not afford the expense of international telephone calls from Serbia.

The defendant initially said that the deceased visited Dragan Zadar when she was in Serbia, but he is unable to say in what year she visited him. He then retracted this, and said that in fact he did not know whether she actually visited Dragan Zadar or whether there had been any contact between the deceased and Dragan Zadar. He said that Bojana Ojkic died one year after the deceased and that he was not in contact with the deceased other than by letters, although he admitted that he does not have those letters, nor has he seen them. He was able to tell the Court that Borislav Ojkic had also died, but he did not know when that was, and was not able to say whether Borislav Ojkic had any contact with the deceased in the last years of her life.

According to the defendant, when his mother died in August 2008, the plaintiff asked the defendant to give him both of their shares in the family flat. The defendant refused. He said that this incident led to a breakdown in his relationship with the plaintiff. After he became aware of the deceased’s death, he said that his family attempted to contact the plaintiff to seek information about the will but that the plaintiff did not provide them with any information. He subsequently sought legal advice and issued this proceeding.

The defendant tendered three earlier wills made by the deceased in 1998, 1999 and 2007. Those wills were similar to the 2009 will. They included the same beneficiaries, albeit leaving some of them different proportions. The defendant submitted that the 2010 will was a dramatic departure from the pattern evidenced by the 2009 will and the three earlier wills, because the 2010 will gives a benefit to Dr Soon and significantly increases the plaintiff’s entitlement at the expense of the relatives in Serbia. In both the 2009 and 2010 wills, the defendant was left 10% of the residue.

The defendant said that he found the 2010 will surprising because the deceased had a long marriage with her husband, and it left out relatives and cousins from her husband’s side of the family. He submitted that this was strange because the deceased was devoted to her husband and had great respect for him and his family.

He said that he issued the proceeding as a representative of the other four beneficiaries under the 2009 will, but acknowledged that none of those beneficiaries had sworn affidavits in the proceeding.

The Deceased’s Capacity
The Plaintiff’s Opinion

The plaintiff qualified as a doctor 39 years ago. In 1983, he became a general surgeon and commenced work at the Bezanijska Kosa Hospital in Belgrade. In 2000, he was appointed assistant director of the hospital and remained in that position until 2011. He has worked extensively with elderly patients and is familiar with the signs and symptoms of dementia, a degenerative condition that progressively weakens a patient’s cognitive faculties.

The plaintiff said that the deceased was never formally diagnosed with dementia. Although dementia is recorded on the deceased’s death certificate as one of her last illnesses and a cause of her death, he said that it was most unlikely that dementia was a cause of death because, whilst it is a degenerative condition, it is not in itself fatal.

The plaintiff inspected the medical files and records of the deceased. He noted that, when the deceased was discharged from Box Hill Hospital on 28 June 2010, there was no notation on the discharge sheet of dementia or any like condition. According to the records of the Hospital during June 2010 on some days the deceased was agitated, confused and distressed, was reluctant to take analgesics and was quite aware of her prognosis and physical condition. The plaintiff referred to the notation on the day the will was signed to the effect that the deceased was given 5mg of morphine and refused all subsequent offers of analgesia. He said that the morphine would have been administered to treat pain and was unlikely to have affected her mental state. The notes also record that she had been visited by family and friends on that day and had settled down.

The plaintiff also referred to the notes maintained by Caritas Christi Hospice in relation to the deceased. The deceased was admitted to the Hospice on 9 July 2010. Under the heading ‘Relevant Past History’ there is a note ‘forgetful - ? Dementia’. It is not known who made the notation but the plaintiff said that there had not been a prior diagnosis of dementia that he was aware of in any of the various medical records.

The Defendant’s Opinion

The defendant has been a surgeon for 33 years. He works as a general surgeon dealing with breast cancer patients and has no particular expertise in diagnosing dementia or any like conditions. He has significant experience in treating cancer patients in the context of providing palliative care and supportive care.

He said that he had considered the medical files and records of the deceased. He referred to the Box Hill Hospital notes that refer to the deceased being confused, unsettled, agitated, restless and complaining of pain in the days surrounding the making of the last will. He said thatthere is reference made on 11 June 2010 to the deceased suffering agitated delirium and paranoid delusions. He also referred to the administering of morphine and midazolam to the deceased on 13 June 2010 and said that these drugs are sedatives and analgesics with strong opiate effects that, in his experience, would undoubtedly have had an effect on the deceased’s mental capacity and state of consciousness. In his experience, he said that the administration of such drugs over a sustained period may itself have been the cause of impaired mental capacity.

The defendant’s conclusion based on the June 2010 records and his experience in treating terminally ill cancer patients was that the deceased would have been in a kind of delirium and blurred state of consciousness and would not have been in any condition to make reasonable judgments. The defendant said that this was evidenced in part by the deceased’s refusal of analgesics when there were references to her calling out in pain.

The defendant agreed that dementia could not be diagnosed just from the medical notes. The defendant also agreed that, if a person wanted to assess the mental capacity of the deceased to change her will, that person would be in a better position if present with the deceased. He agreed that the plaintiff has the advantage over him in this regard because he was with the deceased at the time the will was signed by her.

The Deceased’s General Practitioner

Dr Jane Sklovsky was the deceased’s treating general practitioner from 2006. In her affidavit sworn 28 November 2012, she deposed that she last saw the deceased professionally on 28 January 2010. Dr Sklovsky said the deceased was never diagnosed with dementia, nor was she, as her doctor, aware that the deceased had any issue of cognitive capacity.

During the time that Dr Sklovsky treated the deceased she said the deceased always appeared to be able to give clear instructions, understand all of her medical conditions and articulate the treatment she wished to receive. As an example, Dr Sklovsky referred to an attendance by the deceased with her on 28 January 2010 where Dr Sklovsky suggested to the deceased that she take a swine flu vaccination. She said that, despite the fact that the deceased was not keen on taking the vaccination, she provided Dr Sklovsky with her informed consent and took the vaccination. Dr Sklovsky deposed that, during that consultation and on previous occasions, the deceased often spoke about the plaintiff, and it appeared to her that the deceased regarded the plaintiff as her closest relative.

Dr Sklovsky deposed that she was aware that the deceased undertook an annual health assessment at her clinic on 4 December 2009. The health check records that the deceased was able to answer questions with respect to her own personal circumstances and that the only mental issues she had were anxiety and depression as a result of her deteriorating physical health.

Dr Sklovsky deposed that on 14 January 2010 the deceased took a mini-mental state examination (‘MMSE’) and scored 24 out of 30. The nurse who conducted the examination noted that ‘only mild cognitive impairment was present’. Dr Sklovsky deposed that, in her opinion, having regard to the deceased’s age, this was a reasonable score.

Dr Sklovsky was not cross-examined by the defendant.

The Expert Evidence

Prior to giving their expert evidence, the experts consulted together in order to determine the principal areas of dispute between them. This consultation resulted in a narrowing of the issues. The principal issue in contention is whether the notations of delirium in the hospital records in the month of June 2010 would affect the deceased’s testamentary capacity.

The plaintiff relied on the expert evidence of Associate Professor Owen White. He is a medical practitioner specialising in general neurology, which includes the full range of diseases that may involve the brain. Professor White’s opinion is that there was no evidence that the deceased lacked testamentary capacity in late March and on 13 June 2010. The defendant relied on the expert evidence of Dr Georgina Lowndes, a clinical neuropsychologist. Dr Lowndes’ opinion is that the deceased may have lacked capacity in March 2010 to give instructions for her will.

The Evidence of Professor White

Prior to going into Iris Grange, there was nothing in the medical documents that concerned Professor White about the mental capacity of the deceased. The fact that she had fallen a number of times prior to being admitted to Iris Grange, to him, suggested a problem with the deceased’s physical capacity. Professor White said that it was not possible to base a diagnosis of capacity from the results of an MMSE but that it was something to note over a period of time. He considered that a score of 24 was consistent with the deceased’s age. He also pointed out that a score of 24 is at the lower limit of the normal range and the upper limit of the minimally abnormal range.

On 4 March 2010, the deceased underwent a CT scan. Professor White said that there was some evidence of changes within the structure of the brain, consistent with the deceased’s age, but that these were within normal limits. He said a scan does not indicate whether the patient is competent or otherwise and is not a reliable test for assessing dementia. It is one of a series of things that would be looked at in an assessment of dementia. In cross-examination, Professor White said a stroke or a blood clot is not necessarily evidence of damage to the brain. Although the scan says there have been changes to the brain, this could be consistent with a stroke or just developmental changes in an aging person. He said it is important not to draw too many conclusions from the scan because it only looks at brain structure rather than function.

Having read the notes from Iris Grange, he stated that there was nothing in the notes that caused him concern as to the deceased’s mental capacity. He observed that the deceased was admitted to Iris Grange for physical infirmity and an inability to care for herself. On the day that the deceased was admitted to Iris Grange, the residential questionnaire dated 19 March 2010 does not record anything of concern to Professor White about the mental capacity of the deceased.

The records of Iris Grange included an ongoing care plan dated 6 May 2010 that records that the deceased was taking medication. In Professor White’s opinion, none of the listed medications would have affected the deceased’s cognitive function. Professor White said that the fact that other people were handling a patient’s finances would not raise any concerns as to a patient’s cognitive state.

The Box Hill Hospital records include an assessment of risk factors for falls in hospital, something prepared to prevent falls where necessary. The notes record that there is no disorientation, impaired judgment, short term memory problems or impulsive behaviour. Also included in the medical documents are two Eastern Health behaviour assessment charts dated 7 and 13 June 2010 respectively. Professor White said that there was nothing in those assessments that caused him any concern regarding the deceased’s cognitive functions.

Professor White noted that the records of the Hospital refer to delirium, which is a fluctuating state by definition. It can arise from anything that causes difficulty with brain processing, such as an infection, hypothermia, drugs or other toxic substances and metabolic disturbances. Delirium implies a lack of capacity and suggests an acute situation rather than a chronic situation. He said that he would expect that, if a patient suffered delirium, it would be recorded by the hospital.

The Hospital’s notations for 13 June 2010 record that at 6.45 in the morning the deceased was given a subcutaneous injection of morphine and midazolam (5 mgs in all), as she was complaining of pain. These are short acting drugs and their effect wears off over three to four hours, not substantially having an effect of any sort at five to six hours afterwards. Being given these drugs in the early morning, in Professor White’s view, would not give him cause for concern about the deceased’s capacity to understand the contents of a will or to execute a will. Professor White said that the drug administered to the deceased has effect for a period of a few hours and would not have an ongoing effect unless given frequently.

Of the suggestion that the gradual build up of taking analgesics over a period of time could affect capacity, Professor White said that there is the possibility of a development of an addiction, but that does not necessarily affect capacity. Professor White’s view was that, in the absence of liver or renal dysfunction, the medication given to the deceased on 13 June 2010 would not have any effect on the deceased’s cognitive capacity.

The Evidence of Dr Lowndes

Dr Lowndes considered that, aside from the deceased’s advanced age, the significant factors pertaining to the deceased’s capacity in late March 2010 were that:

(a)the CT scan showed that she had brain damage or brain pathology, being chronic small vessel ischaemic disease, that could have affected her thinking, decision-making and memory function;
(b)the MMSE score of 24 indicated that there was some cognitive impairment apparent in lower level functions such as attention, memory, calculation and similar types of activity. This suggested that there was a possibility that the deceased’s higher level functions were also compromised;
(c)the deceased was not managing her finances, which suggested that she was in need of assistance with complex activities, a higher level task;
(d)she was in a new environment, Iris Grange, which may have been unsettling for her after living in her own home, and may have caused her some grief; and
(e)the deceased had only previously changed her will seven months earlier, the changes she had made on that occasion were consistent with her wills prior to the 2009 will and the 2010 will was quite different.

Dr Lowndes agreed in cross-examination that the CT scan was not sufficient for a diagnosis of dementia. Dr Lowndes considered the move to Iris Grange significant on the basis of research about people adjusting to major changes in their life circumstances, and not on the Iris Grange notes. She agreed that the Iris Grange notes record the deceased as happy and settled in her new environment, but nevertheless maintained that such a big change could have had an effect on the deceased.

In relation to the deceased’s testamentary capacity on 13 June 2010, Dr Lowndes was concerned that the deceased was in the midst of a delirium as well as experiencing a number of other factors that were likely to be affecting on her high-level cognitive function. Dr Lowndes agreed that there was no specific diagnosis of delirium on that date but relied on the note indicating a diagnosis of delirium on 11 June 2010. Her opinion is based on her experience and knowledge of delirium and the fact that the deceased’s behaviour on 13 June indicated symptoms similar to those that were recorded when the deceased was also recorded as suffering from delirium, such as increased agitation and calling out in pain. In Dr Lowndes’ view, that agitation could be caused by cognitive impairment. In cross-examination, Dr Lowndes agreed that the deceased’s agitation and calling out could also have been because she was in pain and there were differences between being agitated and being delirious.

Did the Deceased Have Testamentary Capacity?

The plaintiff bears the onus of showing that the deceased possessed testamentary capacity. However, a presumption of testamentary capacity arises if the will is rational on its face and duly executed. That the will has been duly executed is not in question. The defendant submits that the will is at least unusual on its face in that it significantly increases the plaintiff’s entitlement, and gives a substantial benefit to Dr Soon. I consider that the increase in the gift to the plaintiff is readily explicable in the circumstances of this case for the reasons that follow.

The plaintiff and the deceased always had a close and loving relationship, akin to that of a parent and an adult child. He and his family visited the deceased regularly over a 30 year period, and he assisted her in a manner that one would expect of a loving and devoted child. He was in regular contact with the deceased, checking on her and, if necessary, speaking to her treating doctors and to her friends, Dr Soon and Mrs Soon. In contrast, the deceased did not have any meaningful contact with the defendant, particularly in the last 12 years of her life.

The deceased felt, rightly or wrongly, that rather than its being divided between the plaintiff and the defendant, the plaintiff should have received his mother’s apartment on her death. The deceased changed her will to reflect that, and in a sense, to rectify what she felt was an injustice. Further, the deceased considered, again rightly or wrongly, that whereas the defendant was financially well off, the plaintiff needed further financial support.

The gift of the option to Dr Soon also appears, to me, not to have been all that unusual in the circumstances because the Soons were close friends of the deceased, who treated her as part of their family. They freed the deceased from any money worries by paying her bills over a substantial period of time,[27] without expectation of reimbursement. Mrs Soon also cared for the deceased whilst she was in Iris Grange, the Box Hill Hospital and Caritas Christi Hospice. I found Mrs Soon to be an impressive and credible witness whose devotion to and care for the deceased were quite extraordinary. In the circumstances, it is understandable that the deceased would wish to benefit the Soons in some way in her will. There is certainly nothing irrational about it.
[27]In this regard, it is noted that the deceased’s wealth was in the value of her Balwyn home and she had limited cash funds, approximately, $5 900 in her bank account, at the date of her death.

Accordingly, the plaintiff has the benefit of a presumption that the deceased did indeed have testamentary capacity. However, this is merely a presumption. In circumstances where the witness has at least been described at various stages in 2010 as not being lucid, as suffering from delirium, and as suffering from dementia, I consider that the Court should be careful in making any finding that the deceased had the requisite disposing mind and memory when making the will.

Did the Deceased Have Capacity to Give Instructions for Her Will?

The Court must be satisfied that the deceased understood the nature of the act of making a will, and the effects of that act; understood what it is that she was disposing; and understood properly the claims of those who may be expected to benefit from her will. In assessing the extent to which the deceased must have understood her assets, I consider it is appropriate to keep in mind that in this day and age, many elderly persons do entrust a degree of control of their financial affairs to their relatives and advisors.[28] To do so is only prudent. What is important in assessing testamentary capacity is not the testatrix’s grasp of the exact assets of which she disposes, but their extent, both in a relative and an absolute sense. A testatrix who cannot recall the existence of large portions of her estate, or significantly overestimates or underestimates the value of portions of their estate, may lack the sufficient capacity. But an inability to be precise with figures will not disqualify a person from making a will.
[28]See Kerr v Badran [2004] NSWSC 735 (17 August 2004) [49] (Windeyer J).

The defendant submitted that the deceased:

(a)was in a state of steady decline both physically and mentally;
(b)was of an advanced age;
(c)was in a strange environment, having been recently admitted to Iris Grange, and wanted to remain at home;
(d)had a number of hospitalisations due to medical problems, hypertensive episodes and falls between 14 April 2009 and 11 March 2010;
(e)had an MMSE score of 24/30 on 5 January 2010; had pain issues; needed significant home help; and
(f)had a CT scan on 4 March 2010 that showed mental impairment.

In addition, the defendant relied on the opinion of Dr Lowndes, who considered that there were serious concerns about the deceased’s cognitive function that could have affected her testamentary capacity.

The medical evidence certainly shows that the physical health of the deceased was in decline. This is evidenced by her various hospitalisations before her admission to Iris Grange. However, Dr Lowndes agreed that the scan was not sufficient for a diagnosis of dementia. Dr Lowndes also agreed that the MMSE is not a recognised test for a diagnosis of dementia and that the score of 24/30 is consistent with the deceased’s age and the upper limit of the minimally abnormal range. Professor White was of the same opinion. Accordingly, in my view, there was no medical evidence on which this Court could conclude that the mental health of the deceased had deteriorated to the point where the deceased did not have capacity to give instructions for her will in late March 2010.

The evidence of Mrs Soon and Mrs Nesovanovic also supports the conclusion that the deceased’s move to Iris Grange was a result of her physical decline, not her mental decline. Both gave clear evidence as to the mental alertness of the deceased. Although not experts on mental health, both were in a good position to assess this, as they saw the deceased regularly during this period. They certainly would have noticed any significant decline in her mental capacity.

The defendant also submitted that the shortcomings in the approach of Mr Zito in ascertaining the capacity of the deceased were sufficient for this Court to draw the conclusion that the deceased did not have testamentary capacity when giving instructions. In support of this, the defendant pointed to a number of facts:

(a)Mr Zito did not seek a medical opinion as to testamentary capacity,
(b)he did not query the need to prepare a power of attorney,
(c)he did not keep written records of his attendance on the deceased when he took instructions for the 2010 will;
(d)he did not ensure the deceased was aware of the differences between the 2010 will and the 2009 will;
(e)he did not enquire as to the rationale for the changes;
(f)he did not ascertain whether the deceased knew how much her home was worth and how much Dr Soon’s benefit was worth;
(g)he did not ascertain whether the deceased understood what the effect of that gift would be on the residuary estate;
(h)he did not ascertain whether the deceased appreciated and understood the difference between the plaintiff’s entitlements under the 2010 will compared with her previous wills; and
(i)he did not ascertain whether the deceased was sufficiently aware of the effect the 2010 will would have on the beneficiaries under the previous wills.

Whilst it is correct that Mr Zito did not obtain a medical opinion as to the deceased’s capacity, he is an experienced solicitor in the area of wills. It is unusual that he did not make a note of the meeting with the deceased in late March 2010, but I accept that his recollection of his meeting with the deceased in late March 2010 was good. He was able to give an account to the Court of the deceased’s demeanour and of her instructions. He said that she was able to tell him of the size of her estate, that she knew the value of her Balwyn home and that she knew that the option to be granted to Dr Soon was for a price that was under the property’s true market value. As Mrs Soon said in her evidence, she had many arguments with the deceased over the granting of the option and the fact that Dr Soon produced a valuation of the Balwyn property to Mr Zito reflects that the Soons and the deceased had discussed the nature and extent of such a benefit. I accept that it is understandable that the deceased would want to provide a benefit to the Soons in her will, as they had been kind to her, both financially and emotionally, over a long period of time. The deceased also told Mr Zito the reasons why she wanted to leave the bulk of the residue of her estate to the plaintiff.

In my view, the lay evidence supports the conclusion that the deceased understood what her instructions meant, understood the extent of the assets that were in her estate and fully comprehended the claims on her estate. It was her intention to benefit her loved ones and those with whom she had a strong relationship, and in doing so she showed a clear appreciation of the claims of those close to her upon her estate. Accordingly, I find that the deceased had testamentary capacity to give instructions for her will in late March 2010.

Did the Deceased Have Capacity to Execute the Will?

To admit the will to probate it is sufficient that the court is satisfied that the deceased had capacity sufficient to meet the Parker v Felgate test, that is, she understood that what she was doing was executing the will, and she understood that the will she was executing was the one for which she had given instructions, even if she could not recall the detail of those instructions.

The defendant submitted that from the time that the deceased gave instructions until the execution of the 2010 will, the evidence is such that the deceased’s capacity is doubtful. In this regard, the defendant relied on the fact that the deceased:

(a)had since had another fall and injured her head;
(b)had arranged for her ‘family’ to handle her finances;
(c)had suffered a fainting episode wherein she was unresponsive for five minutes;
(d)had not been sufficiently lucid when Mr Zito attended on her at Iris Grange for her to sign the will;
(e)was admitted to Box Hill Hospital in severe respiratory distress with ‘pain everywhere’;
(f)appeared cachectic and frail;
(g)had been noted to be ‘a little forgetful’;
(h)was unable to follow physiotherapy instructions well;
(i)was diagnosed with lung cancer and bone and liver metastases;
(j)was in severe pain;
(k)commenced morphine and midazolam treatment; and
(l)was confused, delirious, and, at times, agitated.

The defendant also submitted that the deceased was not able to understand that she was signing a will that had been prepared by Mr Zito in accordance with the instructions she had previously given, because Mr Zito has no written record of his attendance on the deceased and there is no corroborating evidence from the other witness to the will. The defendant relied on the opinion of Dr Lowndes that the cognitive impairment suffered by the deceased would have adversely affected her ability to decide whether the will was consistent with the instructions she had given several months ago and whether the will continued to reflect her intentions on that day. He submitted that the deceased, on the balance of probabilities, would not have had testamentary capacity on 13 June 2010.

Overall, in respect of the expert medical opinions, I prefer the evidence of Professor White to that of Dr Lowndes. I found that Dr Lowndes based her opinions on a number of generalised assumptions and probable conclusions without particular reference to the actual medical notes of the deceased. In particular, Dr Lowndes concluded that, because the deceased was noted with a diagnosis of delirium on 11 June 2010, it was probable, in her opinion, that the deceased was suffering delirium on 13 June 2010 when she signed her will. This was notwithstanding that there was no note of any delirium on 13 June 2010.

When the medical notes are considered together with the lay evidence of Mr Zito and the plaintiff for the day the will was executed, it is beyond doubt that the deceased had testamentary capacity when she executed her will on 13 June 2010. Whilst Mr Zito did not take a file note of the events of the day, I accept his evidence that the deceased understood and confirmed to him the contents of the 2010 will. The plaintiff also confirmed that the deceased was alert and lucid and had a clear understanding of what she was doing. Although Mrs Soon was not present at the signing of the will, her evidence corroborates that, when she saw the deceased on 13 June 2010, the deceased was alert and oriented and was not suffering from delirium.

Did the Deceased Know and Approve of the Will?

Again, while the plaintiff bears the onus of showing that the deceased knew and approved of the will that he propounds, a presumption arises where the Court is satisfied that the testatrix had capacity and the will was duly executed. As both of those are satisfied here, the plaintiff has the benefit of that presumption.

Where there is a just ground of suspicion, the onus in a sense returns to the plaintiff to show that the deceased knew and approved of the will. Without reiterating what I have already said about what might constitute a just ground of suspicion, I am satisfied in this case that the Court should indeed be suspicious. Dr Soon gave the initial instructions for the will to Mr Zito, a will that left him a substantial benefit. In such circumstances, a court will always be suspicious that perhaps the will was never properly explained to the deceased, but simply proffered for her signature, or that while the provisions in the will were read to her, their legal effect was never made clear. The suspicion of the Court is heightened in circumstances where another witness testifying that the deceased knew and approved of the will, the plaintiff, is also a major beneficiary. While the benefit left to Dr Soon may be readily explicable, and indeed I consider that it is, I consider that the circumstances are enough to put the court on notice.

However, where there is clear proof that the deceased gave instructions for the will, and there is clear proof that the deceased had the will read over to her, understood what was read to her, and still chose to execute the will, that suspicion can be allayed. For the reasons set out below, I am satisfied to the requisite standard, in accordance with the principles expressed in Briginshaw v Briginshaw and s 140(2) of the Evidence Act 2008, that the deceased knew and approved of the contents of the 2010 will.

Although the initial instructions for the will were given by Dr Soon, Mr Zito confirmed those instructions with the deceased shortly afterwards. When he did so, Dr Soon was not present. Mr Zito’s evidence, which I accept, was that he went though the contents of the will with the deceased comprehensively. Mr Zito also read the will over to the deceased, and confirmed with her that it was what she wanted, on the day that she executed the will. Although Dr Soon was present at the time, he left the room for periods, and there was no evidence that he exerted any pressure on the deceased to agree to the will, or attempted to mask the effect of it. The will was then properly executed by the deceased, and witnessed.

The defendant relied on the fact that there was no corroborating evidence from the other witness to the will. Mr Zito did not stand to gain in any fashion from the will, and was an impartial witness. Whilst Mr Zito did not have any file notes of the meeting on that day, his recollection was good and I accept his evidence. I would urge him, however, to change his standard practice in relation to the execution of wills and make a file note on each occasion.

Mrs Soon also gave evidence that the deceased was indeed intent on giving the Soons an option, and had expressed that intention to her many times. This evidence supports the conclusion that the deceased had an active and engaged understanding of the effect of her will, and was not merely a passive participant in the will-making process. The plaintiff gave evidence that the deceased knew and approved of the will, although as he stands to gain from the will, I am cautious about accepting his evidence. In my view, even if it would be desirable to have evidence from another independent witness, it is not necessary.

I am conscious that the requirement that a testatrix know and approve of the contents of her will is not an arduous requirement. It requires only what it says: that a testatrix actually know the substantive content of their will, and approve of that content. That a court must be satisfied of this only on a careful examination of the evidence, I have no doubt. But the ‘suspicious circumstances’ rule is not an opportunity to litigate an allegation of fraud, or of undue influence, by another means or on flimsy or incomplete evidence.[29]
[29]Nock v Austin (1918) 25 CLR 519, 528 (Isaacs J).

Accordingly, I reject the defendant’s submissions that the plaintiff’s evidence does not provide clear and satisfactory proof that the deceased knew and approved the contents of the last will or that she did not read the will.

One Further Matter

The defendant’s challenge to the 2010 will was not based on any direct evidence. It relied on a speculative analysis of the medical and hospital records. It also relied upon the personal views of the defendant that it was unusual for the deceased not to include the relatives of her husband in her will, and that the 2010 will was a dramatic departure from the 2009 will and the three earlier wills of the deceased. In challenging the 2010 will, the defendant relied on the significant benefits given to the plaintiff and Dr Soon. For the reasons set out, I determined that the circumstances were such as to confirm that these provisions were not unusual.

As a further reason for challenging the 2010 will, the defendant claimed that he issued this proceeding as a representative of the other four beneficiaries, notwithstanding his evidence that Bojana Ojkic and Borislav Ojkic have died and he is not in contact with Dragan Zadar. One wonders what he means when he says he is representing them. He agreed that none of these ‘representatives’ gave evidence in the proceeding, either by affidavit or otherwise. Indeed, because of the deaths of Bojana Ojkic and Borislav Ojkic, it is impossible that they could do so. Otherwise, he claims that he is surprised that the deceased would leave out her husband’s relatives and cousins from her will. This is so even though the evidence is that the deceased had little contact with them in the last 12 years of her life.

His challenge can also be seen as unusual because he did not, in reality, have any relationship with the deceased. His contact with the deceased was virtually nonexistent in her later years. This is in contrast to the relationship between the plaintiff and the deceased. The evidence of Mrs Soon and Mrs Nesovanovic supports the conclusion that the deceased regarded the plaintiff as akin to a son, and a loving and dutiful son at that. She always wished to benefit him on her death. All of the wills of the deceased demonstrate that the deceased wished to benefit the plaintiff.

When litigants decide to challenge a will, it is imperative that their advisers review the evidence supporting such a challenge in a rigorous manner. The Civil Procedure Act 2010 requires that when parties, and legal practitioners acting on their behalf, bring litigation, it is to be supported by the factual and legal material available to them at the time of making the decision.[30] While I do not go so far as to make any findings in this respect, I am not confident that this was done in this proceeding.
[30]Civil Procedure Act 2010, s 18.

Orders

Accordingly, for the reasons set out, I dismiss the defendant’s caveat filed 13 October 2010. I find that the 2010 will was the last valid will of the deceased. Mr Robinson should now proceed with an application for letters of administration with the will of the deceased dated 13 June 2010 annexed.

I shall hear the parties as to the appropriate form of orders and as to costs.

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18 December 2013