NEW SOUTH WALES COURT OF APPEAL
CITATION:
Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197
FILE NUMBER(S):
40364/08
HEARING DATE(S):
7 May 2009
JUDGMENT DATE:
10 July 2009
PARTIES:
George ZORBAS (Appellant)
Stephen SIDIROPOULOUS – The Estate of Christina Kriezis (Respondent)
JUDGMENT OF:
Hodgson JA Young JA Bergin CJ in Eq
LOWER COURT JURISDICTION:
Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):
SC 115307/06
LOWER COURT JUDICIAL OFFICER:
Debelle AJ
LOWER COURT DATE OF DECISION:
3 October 2008
LOWER COURT MEDIUM NEUTRAL CITATION:
Zorbas v Sidiropoulous: Estate of Krierzis [2008] NSWSC 1041
COUNSEL:
D L GRIEVE QC/ M H SOUTHWICK (Appellant)
Ms E COHEN/ D JARRET (Respondent)
SOLICITORS:
Macquarie Lawyers (Appellant)
Moscardo Lawyers (Respondent)
CATCHWORDS:
SUCCESSION – Testamentary capacity – Testatrix gravely ill in hospital – While in hospital will made changing earlier will – Whether testatrix had testamentary capacity.
PROCEDURE – Role of judge – Lengthy questioning of expert witness by judge – Whether intervention excessive – Whether intervention gave rise to a denial of natural justice.
EVIDENCE – Expert evidence that testatrix suffering from delirium – No opposing expert evidence – Hospital records suggesting conduct of testatrix inconsistent with symptoms of delirium as described by expert – Whether open to judge to reject uncontradicted expert evidence.
LEGISLATION CITED:
Uniform Civil Procedure Rules cl 2 of schedule 7
CATEGORY:
Principal judgment
CASES CITED:
Banks v Goodfellow (1870) LR 5 QB 549
Burwood Municipal Council v Harvey (1995) 86 LGERA 389
Jones v Dunkel (1959) 101 CLR 298
Kerr v Badran [2004] NSWSC 735
Mifsud v Campbell (1991) 21 NSWLR 725
Re the Will of Richard Trudgeon (1882) 3 LR (NSW) (Eq) 22
Reg v Whitby (1957) 74 WN (NSW) 441
R v German (1947) 89 Can CC 90
Strinic v Singh [2009] NSWCA 15
Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
TEXTS CITED:
Holdsworth, History of English Law vol 15 p 203
DECISION:
Appeal dismissed with costs.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40364/08
SC 115307/06HODGSON JA
YOUNG JA
BERGIN CJ in Eq10 JULY 2009
George ZORBAS v Stephen SIDIROPOULOUS (No 2)
Judgment
HODGSON JA: On 1 September 2006, the respondent obtained a grant of probate in common form of a will dated 14 December 2004 of Christina Kriezis, who had died on 18 February 2005.
The appellant then commenced proceedings by Statement of Claim, naming the respondent as defendant, seeking revocation of that grant of probate, and seeking a grant of probate in solemn form of a will of the deceased dated 16 July 2004.
The proceedings were heard by Debelle AJ on 24 September 2008, and on 3 October 2008 the primary judge dismissed the appellant’s claim for reasons set out in a judgment given on that day.
The appellant appeals from that decision.
Circumstances
The circumstances can very briefly be outlined as follows.
The appellant had known the deceased since 1964.…
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Details
- Case
- [2009] NSWCA 197
- Decision Date
CaseChat Overview and Summary
This case concerned an appeal from a decision of the primary judge regarding the testamentary capacity of a testatrix who made a second will while gravely ill in hospital. The dispute arose between the plaintiff, who was not a close relative, and the defendant, the testatrix's nephew and the sole beneficiary of the second will. The primary judge was required to determine whether the testatrix possessed the necessary testamentary capacity to execute the second will, which altered an earlier will.
The legal issues before the court included whether the primary judge had unduly intervened in the questioning of an expert witness, potentially denying natural justice, and whether it was open to the judge to reject uncontradicted expert evidence. The primary judge had extensively questioned Dr Obeid, a geriatrician who provided expert evidence opining that the testatrix was suffering from delirium and lacked testamentary capacity. This evidence was not opposed by other medical experts, but the primary judge had access to the testatrix's hospital records, which suggested conduct inconsistent with the symptoms of delirium as described by Dr Obeid.
The court's reasoning focused on the primary judge's role in assessing evidence, particularly expert testimony. While acknowledging the weight of uncontradicted expert evidence, the court found that the primary judge was entitled to conduct a "vigilant examination" of all the evidence, including the hospital records, to determine testamentary capacity. The judge's extensive questioning of Dr Obeid was considered within the bounds of his role to clarify complex medical issues relevant to the legal question of capacity, and did not amount to a denial of natural justice. The primary judge ultimately found that despite Dr Obeid's opinion, the circumstances surrounding the will's execution, its rational appearance, and the hospital records, when considered holistically, did not establish a lack of testamentary capacity.
The appeal was dismissed, with the court upholding the primary judge's decision. The costs of the appeal were awarded to the respondent.
The legal issues before the court included whether the primary judge had unduly intervened in the questioning of an expert witness, potentially denying natural justice, and whether it was open to the judge to reject uncontradicted expert evidence. The primary judge had extensively questioned Dr Obeid, a geriatrician who provided expert evidence opining that the testatrix was suffering from delirium and lacked testamentary capacity. This evidence was not opposed by other medical experts, but the primary judge had access to the testatrix's hospital records, which suggested conduct inconsistent with the symptoms of delirium as described by Dr Obeid.
The court's reasoning focused on the primary judge's role in assessing evidence, particularly expert testimony. While acknowledging the weight of uncontradicted expert evidence, the court found that the primary judge was entitled to conduct a "vigilant examination" of all the evidence, including the hospital records, to determine testamentary capacity. The judge's extensive questioning of Dr Obeid was considered within the bounds of his role to clarify complex medical issues relevant to the legal question of capacity, and did not amount to a denial of natural justice. The primary judge ultimately found that despite Dr Obeid's opinion, the circumstances surrounding the will's execution, its rational appearance, and the hospital records, when considered holistically, did not establish a lack of testamentary capacity.
The appeal was dismissed, with the court upholding the primary judge's decision. The costs of the appeal were awarded to the respondent.
Orders
Orders of the court
Appeal dismissed with costs.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The primary judge continued: [41]This was, therefore, a small estate with only one asset. The defendant is a close relative of the testatrix. There is no evidence that there is any other relative residing in Australia. On its face there is nothing untoward in the testatrix deciding to bequeath her only asset to the only close relative she had in Australia.[42]There is no evidence of any suspicious circumstances attending the making of the second will. It was duly executed. It was drawn by a solicitor and witnessed by a solicitor and a law clerk. The only other evidence concerning the making of the second will is to be found in the medical records of the testatrix while at Concord Hospital. The effect of that evidence is that the testatrix had seen a solicitor. The will had been typed. It comprises two pages. It is reasonable to infer and I find that the instructions for the will had been given either earlier in the same day or, as is more likely, on the day before or several days before. The will had then been typed at a solicitor’s office and brought to the hospital for execution. It is reasonable to infer and I find that the defendant arranged for the will to be prepared and executed. He is the only beneficiary. In some circumstances the fact that a will is prepared and executed at the request of the sole beneficiary of the will gives rise to suspicion as to the circumstances in which a will is made. In this case, I do not think that it a cause for suspicion. There is no evidence that the defendant knew that the testatrix had made an earlier will. The testatrix had been diagnosed with a malignant lymphoma. Given that that disease had the capacity to cause the early death of the testatrix, it was appropriate that she made a will. The fact that she had already made a will did not mean that she could not make a fresh will.[43]The second will is rational on its face. The testatrix appoints the defendant, who is her nephew, as the executor and gives the whole of her estate to him. There is no evidence that there is any claim upon the bounty of the testatrix by any relative of closer kinship to the testatrix than the defendant. The plaintiff is not as close in kinship to the testatrix as the defendant. Significantly, the will has been executed and attested in the manner prescribed by law. In addition, the witnesses are a solicitor and a law clerk. The will was drawn by a solicitor. In light of these circumstances, it is to be presumed that the testatrix was a person competent to make a will: Timbury v Coffee at 283.[44]However, the evidence of Dr Obeid, unopposed as it was by other medical evidence, raises a doubt as to the testamentary capacity of the testatrix. He unequivocally states that in his opinion the testatrix was suffering delirium and was not capable of making a will. I have regard to his evidence. His report requires me to make what the High Court in Worth v Clasohm called a “vigilant examination” of the whole of the evidence.The medical evidence[45]The main body of evidence led as to the capacity of the testatrix to make a will is that of Dr Obeid who provided a report dated 11 June 2007. He is a consultant physician and geriatrician. He has completed specialist training in geriatric medicine. He had neither seen nor treated the testatrix. His report is grounded on affidavits sworn by the plaintiff. Not all of those affidavits have been read. His report is also grounded on the medical reports concerning the testatrix while she was being treated at Concord Hospital. As he said in his evidence, the primary basis for his opinion was those medical records. In his opinion the plaintiff was suffering from delirium. He believed she had been suffering from delirium for a period of one month prior to the date on which she made the second will and continued to suffer from delirium thereafter. In his view it is extremely unlikely that the testatrix was not delirious at the time of signing her second will. Parts of his report purport to state the conclusions on questions that are for this Court to determine.[46]In his report Dr Obeid noted medical issues which, he asserts, are relevant to the testamentary capacity of the testatrix.[47]The first is that the testatrix was gravely ill in the period leading up to 14 December 2004. There can be little doubt that the testatrix was gravely ill for a period of some two months before she made the second will. She was in the intensive care unit at Concord Hospital from 21 November to 9 December 2004 and consideration was being given to her being admitted for a third time on 13 December 2004.[48]The second is that the testatrix had documented structural abnormalities of the brain. He noted them in his report:“2.2The deceased had documented structural abnormalities of the brain.2.2.1 Computerized tomography (CT) of the brain on 12 November 2004 was reported as showing cerebral atrophy, dilation of the ventricular system and subcortical white matter disease. This is indicative of cerebrovascular disease.2.2.2Nuclear Medicine SPECT scanning performed on 15 November 2004 demonstrated severe subcortical disease (particularly in the right temporal lobe) as well as some cortical disease. This was thought to be on the basis of a vascular aetiology. “However, as Dr Obeid acknowledged in his evidence, the existence of those two conditions did not necessarily mean that the patient was suffering from delirium.[49]The third of the medical issues is delirium. Dr Obeid described the condition in these terms:“2.4Delirium is the commonest medical disorder present in hospitalised older patients. Despite this, various studies have shown that delirium is only recognised as being present in about 20% of cases. The commonest causes of delirium are infection (eg urinary tract infection, pneumonia, septicaemia), medications (especially anticholinergic drugs, benzodiazepines and antihistamines) and metabolic derangements (eg hypoxia, electrolyte imbalance, renal or hepatic impairment).2.5Delirium independently predicts death in a hospitalised older person, but because it is reversible if the underlying causes are diagnosed and treated it is critical that it be recognised and managed appropriately. In the case of the deceased, recognition of the problem, cessation of mediations exacerbating the problem and aggressive management of hypoxia and infection were required to alleviate or reduce the severity of the delirium.2.6Delirium is a disorder of cognition that primarily affects attentional abilities. It is due to medical not psychiatric causes. Its principal features are an acute or subacute onset, fluctuating course and altered attention or level of consciousness.2.7The "fluctuating course" of delirium means that the patient's level of consciousness may be seen to vary from time to time during the course of the day. Improvements or reductions in the level of consciousness during the course of a day or from hour to hour are a normal feature of the illness and in the underlying disease process or gravity of the state of ill-health of the patient. In particular, the patient suffering from delirium does not pass between being unconscious or hallucinating in one part of the day to being able to rationally [assess] the extent of their assets and able to carefully plan the making of [a] Will in another part of the day.”
Decision
Reasons for decision
BERGIN CJ
The primary judge indicated that he would like Dr Obeid to attend for the purpose of asking him some questions, and the matter was stood over to 24 September 2008 for that purpose. On 24 September, again the respondent did not appear. The primary judge questioned Dr Obeid over about 30 pages of transcript, and there was re-examination over about one and half pages of transcript. Mr Grieve QC made submissions for the respondent, and the primary judge reserved his decision. Decision of primary judge In his reasons for judgment, the primary judge gave a general history of the relationship between the appellant and the deceased and of events following the deceased’s admission to hospital, this of course being based on the appellant’s affidavits. He then referred to relevant law, including the cases of Banks v Goodfellow (1870) LR 5 QB 549 and Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277. He noted that the onus of proof in relation to the will of 14 December 2004 was on the respondent. He said there was no evidence of suspicious circumstances in relation to this will, and that it was rational on its face; and that in those circumstances, it was to be presumed that the deceased was competent. However, Dr Obeid had stated that in his opinion the deceased was suffering delirium and not capable of making a will; and this required the primary judge to make a vigilant examination of the whole of the evidence. The primary judge continued: [41]This was, therefore, a small estate with only one asset. The defendant is a close relative of the testatrix. There is no evidence that there is any other relative residing in Australia. On its face there is nothing untoward in the testatrix deciding to bequeath her only asset to the only close relative she had in Australia.[42]There is no evidence of any suspicious circumstances attending the making of the second will. It was duly executed. It was drawn by a solicitor and witnessed by a solicitor and a law clerk. The only other evidence concerning the making of the second will is to be found in the medical records of the testatrix while at Concord Hospital. The effect of that evidence is that the testatrix had seen a solicitor. The will had been typed. It comprises two pages. It is reasonable to infer and I find that the instructions for the will had been given either earlier in the same day or, as is more likely, on the day before or several days before. The will had then been typed at a solicitor’s office and brought to the hospital for execution. It is reasonable to infer and I find that the defendant arranged for the will to be prepared and executed. He is the only beneficiary. In some circumstances the fact that a will is prepared and executed at the request of the sole beneficiary of the will gives rise to suspicion as to the circumstances in which a will is made. In this case, I do not think that it a cause for suspicion. There is no evidence that the defendant knew that the testatrix had made an earlier will. The testatrix had been diagnosed with a malignant lymphoma. Given that that disease had the capacity to cause the early death of the testatrix, it was appropriate that she made a will. The fact that she had already made a will did not mean that she could not make a fresh will.[43]The second will is rational on its face. The testatrix appoints the defendant, who is her nephew, as the executor and gives the whole of her estate to him. There is no evidence that there is any claim upon the bounty of the testatrix by any relative of closer kinship to the testatrix than the defendant. The plaintiff is not as close in kinship to the testatrix as the defendant. Significantly, the will has been executed and attested in the manner prescribed by law. In addition, the witnesses are a solicitor and a law clerk. The will was drawn by a solicitor. In light of these circumstances, it is to be presumed that the testatrix was a person competent to make a will: Timbury v Coffee at 283.[44]However, the evidence of Dr Obeid, unopposed as it was by other medical evidence, raises a doubt as to the testamentary capacity of the testatrix. He unequivocally states that in his opinion the testatrix was suffering delirium and was not capable of making a will. I have regard to his evidence. His report requires me to make what the High Court in Worth v Clasohm called a “vigilant examination” of the whole of the evidence.The medical evidence[45]The main body of evidence led as to the capacity of the testatrix to make a will is that of Dr Obeid who provided a report dated 11 June 2007. He is a consultant physician and geriatrician. He has completed specialist training in geriatric medicine. He had neither seen nor treated the testatrix. His report is grounded on affidavits sworn by the plaintiff. Not all of those affidavits have been read. His report is also grounded on the medical reports concerning the testatrix while she was being treated at Concord Hospital. As he said in his evidence, the primary basis for his opinion was those medical records. In his opinion the plaintiff was suffering from delirium. He believed she had been suffering from delirium for a period of one month prior to the date on which she made the second will and continued to suffer from delirium thereafter. In his view it is extremely unlikely that the testatrix was not delirious at the time of signing her second will. Parts of his report purport to state the conclusions on questions that are for this Court to determine.[46]In his report Dr Obeid noted medical issues which, he asserts, are relevant to the testamentary capacity of the testatrix.[47]The first is that the testatrix was gravely ill in the period leading up to 14 December 2004. There can be little doubt that the testatrix was gravely ill for a period of some two months before she made the second will. She was in the intensive care unit at Concord Hospital from 21 November to 9 December 2004 and consideration was being given to her being admitted for a third time on 13 December 2004.[48]The second is that the testatrix had documented structural abnormalities of the brain. He noted them in his report:“2.2The deceased had documented structural abnormalities of the brain.2.2.1 Computerized tomography (CT) of the brain on 12 November 2004 was reported as showing cerebral atrophy, dilation of the ventricular system and subcortical white matter disease. This is indicative of cerebrovascular disease.2.2.2Nuclear Medicine SPECT scanning performed on 15 November 2004 demonstrated severe subcortical disease (particularly in the right temporal lobe) as well as some cortical disease. This was thought to be on the basis of a vascular aetiology. “However, as Dr Obeid acknowledged in his evidence, the existence of those two conditions did not necessarily mean that the patient was suffering from delirium.[49]The third of the medical issues is delirium. Dr Obeid described the condition in these terms:“2.4Delirium is the commonest medical disorder present in hospitalised older patients. Despite this, various studies have shown that delirium is only recognised as being present in about 20% of cases. The commonest causes of delirium are infection (eg urinary tract infection, pneumonia, septicaemia), medications (especially anticholinergic drugs, benzodiazepines and antihistamines) and metabolic derangements (eg hypoxia, electrolyte imbalance, renal or hepatic impairment).2.5Delirium independently predicts death in a hospitalised older person, but because it is reversible if the underlying causes are diagnosed and treated it is critical that it be recognised and managed appropriately. In the case of the deceased, recognition of the problem, cessation of mediations exacerbating the problem and aggressive management of hypoxia and infection were required to alleviate or reduce the severity of the delirium.2.6Delirium is a disorder of cognition that primarily affects attentional abilities. It is due to medical not psychiatric causes. Its principal features are an acute or subacute onset, fluctuating course and altered attention or level of consciousness.2.7The "fluctuating course" of delirium means that the patient's level of consciousness may be seen to vary from time to time during the course of the day. Improvements or reductions in the level of consciousness during the course of a day or from hour to hour are a normal feature of the illness and in the underlying disease process or gravity of the state of ill-health of the patient. In particular, the patient suffering from delirium does not pass between being unconscious or hallucinating in one part of the day to being able to rationally [assess] the extent of their assets and able to carefully plan the making of [a] Will in another part of the day.”
Ratio Decidendi
Legal Principle Established
Established by: BERGIN CJ
Full text does not contain this section.