Guamani v Guamani

In May 2021, in the midst of the COVID-19 pandemic and its attendant restrictions, the late Washington Manuel Guamani was diagnosed with aggressive lymphoma. Four months later, on 6 September 2021, he died in Royal Prince Alfred Hospital (RPA Hospital) at the age of 76. Only four days before his death, Washington signed a will (2021 will) in his hospital bed. That will purported to revoke a will made by him on 16 November 2018 (2018 will). The plaintiffs propound the 2018 will. Without any disrespect intended, I will refer to the parties and some others by their given names.

The plaintiffs are members of Washington’s natural family who live in Ecuador: Pastora Guamani is his older sister, and Lidia Chicaiza Guamani and Omar Ernesto Guamani Portilla are his niece and nephew. The estate is primarily constituted by a property in St Peters which was owned solely by Washington and purchased and paid for well before his marriage to the first defendant, Luz Marie Baca Flor Cruzado De Guamani.

Washington made several wills between 1989 and 2005 with the assistance of the second defendant, NSW Trustee and Guardian (NSWTAG). Each of those wills left most or all of his estate to his family in Ecuador. For completeness, I record there was also a 1988 will in evidence prepared by Gadens in which Washington left everything to his then wife, Nora Guamini (about whom there was otherwise no evidence to which the Court was referred). NSWTAG also assisted Washington with the 2018 will (including being appointed as executor), at which time Washington and Luz had been married for three years. The 2018 will divided the estate into ten parts, with one part to go to Luz and three parts each to Pastora, Lidia and Omar. There was no dispute that the 2018 will is valid. However, under the 2021 will, and for what the plaintiffs contend is no apparent reason, Washington excluded his Ecuadorean family and left his estate to Luz and her adult children, Wendell Philips Choquehuamani Baca Flor and Christopher Chryoff Choquehuamani Baca.

There are three issues in these proceedings:

Because the will in issue is primarily the 2021 will, and the informal will in the alternative, both of which are propounded by Luz, the plaintiffs are in essence the defendants to the real issue in the proceedings (see Estate of Guamani; Guamani v De Cruzado [2023] NSWSC 502 per Meek J at [216]) (interlocutory judgment). There was no dispute as to the issue of onus, in particular that:

The Court’s conclusions on the three issues, reached by reference to the reasons which follow, may be summarised as:

Before turning to the facts, one general observation should be made. There is no doubt that the 2021 will was prepared and executed in exigent circumstances, being the consequences of Washington’s rapidly declining health compounded by the restrictions of the COVID-19 epidemic and a language barrier. The Court has no doubt that the lawyers and doctors who feature in this judgment were acting in good faith and doing the best they could in those circumstances. Nevertheless, the circumstances do not mean that the legal tests and standards relevant to a case of this kind are to be applied other than in accordance with the authorities or are to be treated as having a more relaxed operation. Counsel did not suggest otherwise.

The hearing occupied five days, with a further day for closing submissions. Ms P Muscat of Counsel appeared for the plaintiffs. Ms A Power of Counsel appeared for Luz. NSWTAG was excused from attendance at the hearing.

By statement of claim filed on 16 November 2022, the plaintiffs sought orders including:

A security for costs application made by Luz was dismissed by Meek J on 18 May 2023: Estate of Guamani; Guamani v De Cruzado [2023] NSWSC 502 (interlocutory judgment).

A cross-claim was filed on 10 October 2023 by Luz, with the NSWTAG and the plaintiffs named as the cross-defendants. The cross-claim sought orders including:

The Court finds the facts as set out in [13] to [114] below, being either uncontroversial or based on contemporaneous, independent records. The evidence included the file of the solicitors who prepared the 2021 will and the RPA Hospital records in relation to Washington.

Washington was born on 27 July 1945 in Ecuador, into a large family. He emigrated to Australia in the 1970s and purchased the property on 7 August 1987.

Washington regularly travelled back to Ecuador. He went back every four to five years and stayed for three months at a time with his family.

Washington made wills prepared by NSWTAG (or its predecessor) on 21 December 1989, 10 May 1990, 24 November 1997, 21 September 2004 and 29 April 2005. These wills left Washington’s estate to various family members in Ecuador. The last of these wills divided his estate between the plaintiffs.

Washington executed a power of attorney on 29 May 1998 in which he named Pastora as his attorney.

Washington met Luz in Australia in March 2012. Luz moved into the property in May 2012 following the death of her father, and they began a romantic relationship at some point after she began residing there. There was some dispute about the exact amount of time Washington and Luz were both in a relationship and living together. However, it was not necessary for the Court to resolve this issue.

Washington and Luz moved to Peru in later 2012, where they lived for a year with Luz’s mother and Luz’s two children, Wendell and Christopher. Washington then moved to Ecuador and Luz remained in Peru until August 2018. They would meet on the border between Peru and Ecuador to see each other. Luz did some work teaching English during this time, but was predominantly supported financially by Washington who was receiving income from renting out the property.

On 29 January 2014, Washington executed a power of attorney while in Ecuador which named Pastora as his attorney.

Washington and Luz were married in Peru on 2 January 2015. Members of Washington’s family travelled to Peru for the wedding.

Washington and Luz moved back to Australia in August 2018 with Wendell and Christopher. They all took up residence in the property.

Washington had the 2018 will prepared by NSWTAG. That will, which he made on 16 November 2018, specified this division of his estate:

On 27 May 2019, Luz, Wendell and Christopher received their permanent residency visas from the Australian Government.

Washington purchased flights to travel on his own to Ecuador on 1 April 2020 with a return date of 28 September 2020. However, due to COVID-19, he was unable to travel.

On 28 April 2021, Washington was admitted to RPA Hospital. He underwent a lung biopsy. He was to stay in RPA Hospital for 72 days, being until 8 July 2021, when he was discharged to Balmain Hospital.

Between 10 and 13 May 2021, Washington was admitted to the RPA Hospital Intensive Care Unit (ICU) following complications from the biopsy. It was during this part of his admission that he received a diagnosis of high-grade B-cell lymphoma. He had further ICU admissions between 18 to 22 May 2021 and 29 May to 5 June 2021, the hospital records also referring to “multiorgan failure”.

On 16 May 2021, Luz called Lidia and told her Washington was sick and had been admitted to hospital.

On 18 May 2021, it was noted in Washington’s medical records:

On 31 May 2021 at 7.18pm, a Family Meeting Note was created by Washington’s lead treating doctor, Dr Edward Abadir, which read:

On 2 June 2021, a Social Work Note was created which read:

On 3 June 2021, a Social Work Note was created which read:

On 3 June 2021, an assessment was conducted by the admitting physician Dr Yee, who recorded:

On 6 June 2021, Luz sent a message to Aurora Jacqueline Guamani-Suarez, one of Washington’s nieces, which read:

On 8 June 2021, a Progress Note was created by an occupational therapist which recorded:

On 8 June 2021, a Progress Note was created by a social worker which recorded:

On 14 June 2021 at 12.17pm, a Progress Note was created which read:

On 14 June 2021 at 1.59pm, a Progress Note was created which read:

On 15 June 2021, a Progress Note Nursing was created which read:

On 16 June 2021, a Progress Note Nursing was created which read:

On 16 June 2021, an Intake Note was created by Marrickville Legal Centre which identified Luz as the client. The following information was recorded:

I interpose at this point to emphasise that the note quoted in the preceding paragraph refers to Luz, and not Washington, wanting the legal advice and Luz being advised to approach NSWTAG. Luz never made an approach to NSWTAG.

On 17 June 2021, a Progress Note was recorded by a social worker which read:

On 22 June 2021, a Progress Note was created which recorded:

On 24 June 2021, a RUDAS test was conducted on Washington with the assistance of a Spanish intepreter. His overall score was 20/30. He scored 3/4 in Judgment, 0/8 in Memory Recall and 7/8 in Language.

Also on 24 June 2021, an email was sent from Marrickville Legal Centre to Hall & Wilcox which included (noting, again, that Luz is identified as the client):

On 28 June 2021 at 10.05am, a Progress Note was created which read:

On 28 June 2021, Mr James Whiley, a partner at Hall & Wilcox sent an email to Ms Stevie Bladen, a law graduate also at Hall & Wilcox which read:

Due to the pressure of other work, no one from Hall & Wilcox was able to take steps to contact Luz until 7 July 2021.

On 28 June 2021, a Progress Note was created by an occupational therapist which recorded:

On 29 June 2021, a Progress Note was created by an occupational therapist which recorded:

On 30 June 2021, a Progress Note was created by an occupational therapist which recorded:

On 1 July 2021, a Progress Note was created following a geriatric consultation, which recorded:

On 7 July 2021, Mr Whiley sent this email to Ms Bladen:

Ms Bladen replied to Mr Whiley on 7 July 2021. The email read:

It is of importance to the Court’s ultimate conclusion as to the validity of the 2021 will that Hall & Wilcox acquiesced in Luz’s preference to be present for any conference rather than speaking directly to Washington, with Luz on the line only if Washington wanted her to be. If Luz’s opinion as to Washington’s capacity was to be accepted, there was at that point no reason why instructions could not be taken from Washington directly (subject to any need for an interpreter). There is no evidence that it was ever suggested to Washington by anyone that he could or should speak to Hall & Wilcox in the absence of Luz whether on the telephone or in a Zoom call (which, if necessary, Luz could have initiated and then left the room).

Mr Whiley replied to Ms Bladen’s email stating he was happy to wait for the meeting by Zoom and noted that the lockdown had been extended by a week.

On 8 July 2021, Washington was discharged from the RPA Hospital to Balmain Hospital. The Discharge Referral Progress Note noted that the language spoken at home was Spanish and stated the principal diagnosis was high grade B-cell lymphoma. Under the heading “Issues this admission” the following was included:

Washington stayed in Balmain Hospital for approximately two weeks for rehabilitation.

On 19 July 2021, Luz sent Jacqueline a voice message which said:

A Zoom meeting was conducted on 21 July 2021, between Mr Whiley, Ms Gabriela Manzano (a Spanish speaking paralegal), Washington and Luz (the Initial Meeting). An electronic file note was created by Ms Manzano on 21 July 2021 following the conference. Mr Whiley gave evidence that the file note was based on a one page handwritten note he had created during the conference. The handwritten note is reproduced as Annexure A Annexure A (124 KB, pdf) to these reasons. The file note states the conference occurred via Zoom from 1pm until 1.45pm, and that Washington, Luz, Mr Whiley and Ms Manzano were in attendance. The following is included in the file note, which described both Washington and Luz as the clients:

The handwritten note included:

Three observations should be made at this point:

On 22 July 2021, Washington was admitted to the RPA Hospital and discharged on 23 July 2021.

On 29 July 2021, Washington attended the RPA Hospital clinic.

On 4 August 2021, Ms Manzano emailed to Luz a copy of a letter of advice, wills for each of Washington and Luz, appointments of enduring guardian, enduring powers of attorney and letter of wishes. The email requested:

Point 7 of the letter of advice (which was addressed to both Washington and Luz) was:

On 12 August 2021, Washington was admitted to the RPA Hospital and discharged on 13 August 2021.

On 17 August 2021 at 5.41pm, Luz emailed Ms Manzano:

Luz’s email makes no reference to Washington reviewing the documents himself, but refers to her checking them and her talking to Washington.

On 20 August 2021, Washington was admitted to the RPA Hospital and at 11.05am, Dr Abadir wrote the following letter to Dr Jo, a respiratory physician:

Washington was discharged from the RPA Hospital on 21 August 2021.

Luz printed the documents she had been sent by Ms Manzano on 4 August 2021 (see [65] above) and gave them to Washington. On 23 August 2021, Washington signed the informal will. Washington had a fever later that afternoon but refused to attend the hospital. The facts surrounding the execution of the informal will are considered further in [341] to [345] below.

Following approval from Mr Whiley, Ms Manzano sent the following email to Luz on 23 August 2021 at 6.31pm, which attached a further draft of Washington’s will:

On 24 August 2021 at 1.58pm, Luz replied by email to Ms Manzano:

On 26 August 2021, Washington was admitted to the RPA Hospital. An ED Triage Note was created at the RPA Hospital which noted Washington had “minimal English”. The ED Nursing Admission Note also stated:

On 27 August 2021, a Progress Note Medical was created which included:

On 29 August 2021 at 11.46am, Luz emailed Ms Manzano:

On 29 August 2021 at 4.51pm, a Patient Handover Form was created which noted “cognitive impairment” under background.

On 30 August 2021, Ms Manzano sent Mr Whiley this email:

Mr Whiley replied to Ms Manzano:

On 30 August 2021, Ms Manzano emailed Luz, with Mr Whiley copied in:

On 30 August 2021 at 12.30pm, a Patient Handover Form was created which noted “cognitive impairment” under background.

On 31 August 2021, a Progress Note Nursing/Midwifery was created which recorded:

On 31 August 2021 at 11.52am, Luz emailed Ms Manzano asking her to send the final version of Washington’s will to the RPA Hospital. She also wrote:

1 September 2021 at 9.32am, a Progress Note Medical was created by Dr Lucinda Clay (a trainee specialist haematologist) which has no reference to an assessment of Washington’s capacity by Dr Clay, but included under “Plan”:

A further Progress Note on 1 September 2021 created at 12.48pm by Dr Thomas Buss (another trainee specialist haematologist working under Dr Abadir’s supervision and who performed the examination at that time) included:

On 1 September 2021 at 12.56pm, Ms Manzano recorded the following note concerning a call from Dr Abadir:

Dr Abadir’s call came minutes after Dr Buss’ examination of Washington recorded in the progress note set out in [86] above, which refers to Dr Buss discussing his observations with Dr Abadir. Dr Buss gave evidence he would telephone Dr Abadir on matters of importance. The Court infers that Dr Abadir formed his view about Washington’s lack of capacity based at least on what he was told by Dr Buss and regarded it as sufficiently urgent that he should telephone Mr Whiley immediately.

On 1 September 2021 at 1.08pm, Ms Manzano emailed Mr Whiley:

On 1 September 2021 at 2.35pm, the social worker (Ms Kristel Sumera) made a Progress Note AH – Social Work which included this serial record of the her involvement on that day up to that time:

As to the statement that “Washington does not have capacity” in the preceding extract, those words are underlined in the original. However, there is no evidence available from which the Court could conclude that the opinion expressed was Dr Clay’s own opinion based on her examination of Washington or whether she was passing on Dr Abadir’s opinion. Nor is there evidence as to the identity of the “Haem Registrar” referred to by the Nurse Unit Manager recorded in section 3) of the note. The records indicate that Washington had been seen by both Dr Clay and Dr Buss earlier that day, so the Court infers it must have been one of them. It would not be a reference to Dr Abadir, who was not a registrar and is referred to expressly later in the note as “Haematologist Dr Abadir”.

On 1 September 2021 at 3.26pm, Mr Whiley sent an email to Ms Manzano, with the subject line “RE: Your Succession planning documents – Guamani/Cruzado – file note 3.15pm”. The body of the email read:

Ms Power accepted in the course of argument that the emphasised words in the preceding paragraph meant that Dr Abadir’s opinion was that it was more likely that Washington would not regain capacity (as to which, see [313] – [315] below).

In an email on 1 September 2021 at 4.35pm, in support of Luz receiving a visitor exemption, Dr Buss stated:

Ms Manzano replied to Mr Whiley’s email later on 1 September 2021 with the subject line “note re call with Luz Baca – 6.00 pm”. The body of the email read:

On 2 September 2021 at 1.11pm, a Progress Note Medical was created. The following was recorded:

On 2 September 2021 at 1.38pm, Ms Manzano emailed Mr Whiley with the subject line “Call with L Baca – 1.19 pm to 1.27 pm”:

Mr Whiley replied to Ms Manzano by email on 2 September 2021 at 1.51pm:

Luz sent an email to Ms Manzano on 2 September 2021 at 1.58pm which was in Spanish. The email was sight translated by the Spanish interpreter during the hearing as follows:

At 2.08pm on 2 September 2021, a Progress Note Medical was created by Dr Buss which included:

On 2 September 2021 at 3.37pm, Ms Manzano emailed Mr Whiley:

Based on the hospital notes in [96] and [100] above, the Court finds that the two doctors referred to in the preceding paragraph are Dr Clay and Dr Buss.

On Friday, 3 September 2021, a Progress Note Medical was created at 7.27am which stated:

On 3 September 2021 at 9.14am, Ms Manzano emailed Mr Whiley with the subject line “file note re call with Crystal – social worker”:

Between 11.00am and 11.30am on Friday 3 September 2021, a meeting occurred at Washington’s hospital bedside at which Washington signed the 2021 will, a power of attorney and an appointment of enduring guardian (signing meeting).

The terms of the 2021 will include:

On 3 September 2021 at 11.38am, Mr Whiley sent an email to Ms Manzano with the subject line “File note – 3/9/21 – 11-11.30”.

Mr Whiley gave evidence, which the Court accepts, that the email in the preceding paragraph is the only note he made of the signing meeting.

On 3 September 2021 at 1.18pm, a Progress Note Medical was created which stated:

On 3 September 2021 at 1.19pm, Ms Manzano sent Mr Whiley an email with the subject line “Call with Luz – 12.50 pm to 1.04 pm”:

On 3 September 2021 at 1.41pm, Mr Whiley replied to the email from Ms Manzano reproduced in the preceding paragraph:

At 4.33pm on 3 September, a Palliative Care Service Consult was conducted by Professor Maria Cigolini, who recorded:

Ms Manzano replied to Mr Whiley on 3 September at 5.42pm with the subject line “Call with Luz – 5.27pm – 5.33pm”:

Washington died in the RPA Hospital on the following Monday, 6 September 2021.

In many testamentary capacity cases, the evidence of a solicitor experienced in wills and estates who prepared and attended upon the execution of the doubtful will can be of critical importance. For reasons I will next explain, Mr Whiley’s evidence in this case is of very limited assistance to the Court.

Mr Whiley is a partner at Hall & Wilcox, and has specialised in wills and estates since his first admission in England and Wales in 2008 and his admission in New South Wales in May 2015. No party questioned his experience in this area of the law.

In his first affidavit sworn on 25 January 2023, Mr Whiley deposed that Washington was a pro bono client, whose will Mr Whiley drafted with the assistance of a Spanish-speaking paralegal, Ms Manzano.

The first affidavit was read before Meek J on Luz’s unsuccessful application for security for costs. His Honour determined the application on 18 May 2023. In the interlocutory judgment of that date, his Honour carefully considered the contents of the first affidavit at [68] to [91], and later in his reasons said:

On 21 December 2023, Mr Whiley swore another affidavit in these proceedings (the second affidavit). The second affidavit deposes to Mr Whiley’s usual practice in preparing wills, including on a pro bono basis, as well as outlining several conversations Mr Whiley recalled having in relation to Washington’s will. In relation to his usual practice, Mr Whiley deposed:

As to the initial meeting with Washington, Mr Whiley deposed:

Concerning testamentary capacity, Mr Whiley deposed:

Mr Whiley deposed the following in relation to the signing of the will on 3 September 2021:

Regarding Washington’s capacity at the time of signing the will, Mr Whiley deposed he was confident in Washington’s testamentary capacity on the basis that:

Mr Whiley was cross-examined at the hearing. When asked about the interlocutory judgment, Mr While admitted to having read the entirety of the judgment. Mr Whiley gave the following evidence about the preparation of the second affidavit:

As to the contents of the second affidavit, Mr Whiley accepted that it would be fair to characterise his entire second affidavit as a combination of his recollection of the events and his usual practice, rather than verbatim recollections of what was said (Tcpt, 5 May 2025, p 26(41); Tcpt, 5 May 2025, p 29(40)-30(1)).

With respect to his understanding of his role, Mr Whiley gave the following evidence:

Mr Whiley gave evidence that the initial meeting occurred via Zoom, took 45 minutes and a paralegal, Ms Manzano, was also on the call. Mr Whiley’s evidence was that Ms Manzano was fluent in Spanish but did not have any formal interpretation or translation qualifications. Mr Whiley had been made aware by Ms Bladen that there may be some language difficulties, and his recollection was that both Luz and Washington had some difficulty with English, but “very much more particularly Washington” (Tcpt, 5 May 2025, p 49(12)). Mr Whiley accepted that, generally, non-English speaking clients require more time in conferences.

Mr Whiley described Washington at the initial meeting as being visibly unwell, meaning he was quite pale and drawn (Tcpt, 5 May 2025, p 49(44)).

As to the language used during the initial meeting, Mr Whiley gave the following evidence:

Mr Whiley accepted that his handwritten note was brief, and that it did not differentiate between information provided by Washington and Luz. He also accepted neither the handwritten note nor Ms Manzano’s electronic file note record anything about a prior will, and the letter of advice did not show any indication of there being a prior will. Mr Whiley stated that when told of a previous will, it was not his usual practice to always ask for a copy of that will, and he did not accept that it was fundamental to see a previous will. Mr Whiley accepted that he told Dr Abadir on 1 September 2021 that Washington would die intestate if a will was not executed but stated he may have said that by mistake. However, he made the following concession:

Mr Whiley stated it could be a red flag if a client has a pre-existing relationship with a particular solicitor or institution and change that at the last moment, as it could imply they were not making rational decisions.

Mr Whiley accepted he would have acted differently had he been aware Washington owned property in Ecuador.

Mr Whiley accepted that between the initial meeting and the signing meeting, no one from Hall & Wilcox heard from or spoke to Washington, and that all communication was through Luz. Mr Whiley also accepted that while Washington was given the opportunity to confirm his instructions, this never occurred alone, or without Luz present. Mr Whiley accepted changes were made to the will, stated to be according to instructions, however the changes were made based on the communications with Luz.

When asked about the preparation of the second affidavit and who made the final decision as to the capacity of Washington at the signing of the 2021 Will, Mr Whiley gave this evidence:

Mr Whiley agreed that, ideally, he would have personally spoken to one of the doctors who stated Washington had capacity or deferred the signing meeting, as well as having a formal capacity assessment conducted on Washington. However, his evidence was that the circumstances were urgent.

Mr Whiley accepted he had no recollection of the conversation he deposed to in the second affidavit having occurred at the signing meeting, and what was stated in the affidavit was a reconstruction. He stated that he could positively remember confirming with Luz that the doctors had stated Washington had capacity, as the doctor was not available at the meeting. However, when taken to the email he sent to Ms Manzano on 3 September 2021 at 1.41pm (see [111] above), Mr Whiley then accepted thAT email was accurate, and that the information in his affidavit about discussing Washington’s capacity with Luz was false. He had instead spoken with the JP, rather than Luz.

In terms of what was explained at the signing meeting, Mr Whiley gave the following evidence:

Mr Whiley did not have a recollection of whether he read through the 2001 will in full to Washington. He accepted it is important in some cases to read a will word for word, but stated in this case, he read word for word where he thought it was relevant but it was not every clause. His exact recollection of the meeting was as follows:

As to the language spoken at the signing meeting, the following evidence was given:

It was put to Mr Whiley in relation to the signing meeting that it was unrealistic for him to have gone through the will, enduring guardian and the letter of wishes, in part clause by clause and explain those documents to him with translation in 30 minutes, as well as confirming capacity with the JP and having the documents signed. Mr Whiley stated he did not agree (Tcpt, 6 May 2025, p 153(2), p 155(43) and p 156(25)).

In Goulston v Bogasi Pty Ltd; Bogasi Pty Ltd v Sundell; Tamara Jane Goodwin as Administrator of the Estate of James Ralph Sundell v Bogasi Pty Ltd as Trustee for the James Ralph Sundell Trust [2025] NSWSC 989 at [384], I made this observation at [384]:

I have no doubt that in all of his affidavit and oral testimony Mr Whiley was doing his best to assist the Court and not to mislead it. However, as I have sought to demonstrate by setting out parts of his cross-examination at length, based on that cross-examination and my observations of the way in which he gave that evidence, I came to the firm conclusion that save as to the most obvious matters (which were reflected in his handwritten note and the file notes in any event), Mr Whiley had no actual recollection of any of the conversations or details of events to which he deposed in his second affidavit. He admitted as much on several occasions in relation to specific matters to which he was taken. This conclusion also leads me to treat in the same way his evidence in his first affidavit that is not reflected in his handwritten note and other contemporary records such as emails. I find that based on his reading of the handwritten note, his email file note of the signing meeting and what he described as his “usual practice”, Mr Whiley reconstructed the conversations and details of events about which he gave evidence.

In my respectful view, there is a further difficulty about Mr Whiley’s appeal to his “usual practice”: for reasons beyond his (or anyone’s) control, his personal interactions with Washington and Luz took place in far from usual circumstances. He properly acknowledged as much in relation to the circumstances leading up to and of the signing meeting itself. His vivid recollection, for example, of relying on what he was told the doctors had concluded about Washington’s capacity is entirely explicable precisely because the circumstances were so unusual. I do not accept that this is a case where evidence of a solicitor’s “usual practice”, even a solicitor experienced in wills and estates, has any probative value.

Finally, the Court cannot even be completely confident about the accuracy of Mr Whiley’s file notes. In his file note of the signing meeting (see [107] above), on the critical matter of Washington’s capacity, the note (made immediately after that meeting) records “JW explaining docs to Washington after checking that he had legal capacity with doctor”. That is on its face a far from accurate statement in two respects. First, Mr Whiley himself never had a conversation with a doctor to the effect that Washington had capacity. His only direct conversation was with Dr Abadir, who told him Washington did not have, and was unlikely to regain, capacity (see [92] above). On the day before the signing conference it is Ms Manzano who emailed Mr Whiley (see [97] and [101] above) to pass on what Luz told her (Ms Manzano) the doctors had said. Second, as to the signing conference, Mr Whiley’s own email less than three hours after the signing conference records (see [111] above) “I asked the JP [presumably Ms Mitchell – see [165] – [166] below] to confirm the doctor had confirmed Washington had legal capacity (which she did)”. While Ms Mitchell, understandably, had no specific recollections of the signing conference, I accept Mr Whiley’s email is accurate on this point because of it being written shortly after the signing meeting.

For these reasons, and with no disrespect to an experienced practitioner, the Court does not accept Mr Whiley’s evidence as reliable other than insofar as it is corroborated by his handwritten note, other file notes or contemporaneous documentary evidence such as emails or Washington’s medical records, is inherently probable in the circumstances or corroborated by another independent, reliable witness. For the avoidance of doubt, I do not consider Luz to be an independent witness for the purposes of corroborating Mr Whiley’s evidence because she was the principal beneficiary of the 2021 will and was the person giving the instructions.

Dr Thomas Buss is a haematologist who was part of Washington’s treating team of medical professionals at the RPA Hospital between 26 August and 6 September 2021. Dr Buss was a trainee haematologist at the time, under the supervision of haematologist Dr Abadir.

Dr Buss gave his evidence in a clear and straightforward manner. The Court accepts his evidence. The parties did not submit otherwise.

Dr Buss gave evidence at the hearing that he was aware Washington had previously been admitted to the RPA Hospital between 28 April and 8 July 2021. Dr Buss stated he may have started his rotation on the final day of Washington’s admission but could not be certain. He could not recall whether he met Luz during the first admission. Dr Buss could not recall being aware of Washington’s cognitive decline as outlined in the 8 July 2021 Discharge Referral Handover Note when he joined the treatment team (see [57] above).

When asked to explain the RUDAS assessment, Dr Buss gave the following evidence:

Dr Buss gave evidence that while he understood the RUDAS assessment, he did not have any specific experience in conducting those tests, with RUDAS assessments usually being conducted by an occupational therapist. Dr Buss gave evidence that he did not have a separate understanding of a legal test for assessing capacity. His understanding of assessing a patient’s capacity was to “assess their medical fitness to be able to make complex decisions” (Tcpt, 6 May 2025, p 124(13)). Dr Buss gave evidence that he had never formally been asked to assess a patient’s capacity to make decisions about their medical care as that was usually the role of a geriatrician or psychiatrist. Dr Buss’ assessment of Washington was the first time he had been called upon to assess a patient’s capacity (Tcpt, 6 May 2025, p 125(1)).

Dr Buss estimated having seen Washington around five or six times throughout his final admission, and though he could not recall exactly, the average time he would spend with patients was between five and twenty minutes.

Dr Buss gave evidence that he spoke with Washington in English but was aware that English was not Washington’s first language. There was only one occasion he could recall that a Spanish interpreter was used, and that was on 2 September 2021 when he conducted the capacity testing. Dr Buss recalled that Luz was often present during his attendances, however, due to COVID-19 restrictions sometimes his contact with Luz was via the phone. He recalled her English being better than Washington’s, and that Washington used English minimally, usually single word answers in response to very closed questions.

Dr Buss accepted there were some references to an extended or delayed processing time in his observation notes, but was unable to recall how often Washington was oriented as to date or time. This was particularly so where the nurses usually took that specific information.

Dr Buss was asked about the 27 August 2021 Progress Note Medical set out at [76] above:

Dr Buss was asked about the 1 September 2021 Progress Note Medical set out at [86] above:

He also stated the term “actively dying” was intended “to reflect that his disease is rapid, and… progressing day by day” (Tcpt 6 May 2025, p 112 (42)).

Dr Buss gave evidence that up until being told in the witness box, he was not aware of a conversation between Dr Abadir and a solicitor at Hall & Wilcox regarding Washington’s capacity. When asked about how knowledge of this would have changed his actions, Dr Buss said:

In relation to the capacity testing on 2 September 2021, Dr Buss could not recall printing or giving a copy of the report to Luz or Washington. Dr Buss considered it to be important to have an interpreter at this meeting because of the substance of what Dr Buss was being asked to do. He described what he was asked to do was to “comment on [Washington’s] medical fitness to be able to sign his will.” Dr Buss stated Luz was the person who asked him to do this. There is a note in the assessment that Washington “was quite clear that what Luz was asking him to do is sign the will.” Dr Buss recalled:

Dr Buss was unable to recall in the witness box the specific questions he asked Washington. He accepted the questions the assessment records he asked of Washington as to the date, location and his birthday were not usual practice for a haematologist to record. Despite not having a recollection in the witness box, Dr Buss accepted his notes described Washington as oriented to place, namely he knew he was at the RPA Hospital. While Washington could recite his birthday, he did not respond to what year it was. Dr Buss accepted that the phrase “understands he is sick” is a high level understanding from Washington of his illness.

Dr Buss stated he was not given a copy of the proposed will. Dr Buss accepted the length and complexity of the will would have impacted upon his assessment of Washington’s capacity to sign it.

When asked about the comment in the assessment that “his responses are appropriate, though he seems to have very delayed mental processing”, Dr Buss accepted that when he asked questions of Washington, there was a delay in his response time. Dr Buss accepted this response time was longer than would have been anticipated by simply taking into account the translation required.

Dr Buss was asked about what exactly his conclusion that Washington had capacity to sign the will meant, and he gave this evidence:

When asked about whether Dr Abadir supported his assessment of Washington’s capacity, Dr Buss gave the following evidence:

Dr Buss gave evidence that when he saw Washington at 1.18pm on 3 September 2021, he was unaware that Washington had a fall that morning, or that he had signed the will that day. Dr Buss was also not aware of the incident where Luz had asked a patient to be a witness at the will signing until later. He was also not part of the team who conducted the Palliative Care Service Consult on 3 September 2021 who concluded that Washington did not have capacity to make complex decisions.

Ms Sandra Mitchell is a Justice of the Peace who had worked as a Release of Information Officer at RPA Hospital in September 2021. She was briefly cross-examined. Ms Mitchell gave evidence that prior to signing his will, she had no interactions with Washington or Luz. She was unable to recall anything about Washington’s diagnosis, prognosis or life expectancy. Ms Mitchell does not have any legal or medical training, other than basic medical terminology.

Ms Mitchell gave evidence that she did not speak with any of Washington’s doctors and she was unable to recall speaking with Washington’s solicitor about his capacity to sign the will. Ms Mitchell gave evidence that she was unable to recall anything about the signing meeting, other than that Washington was in bed and was able to physically sign the will. She stated the meeting did not last very long but was unable to recall exactly how long it was, other than it would usually only be about five or ten minutes in her experience sometimes witnessing wills in the hospital. She could not recall Spanish being spoken or a translator. Ms Mitchell gave evidence that she saw her role as watching the deceased sign, then signing the Will as to his signature, and not making any further inquiries. She could not recall whether she was present from the start of the process and explanation of the will, or just called in to watch the signing.

The Court accepts Ms Mitchell’s evidence.

Ms Tania Sheldrick gave evidence that she was an attesting witness to Washington’s will on 3 September 2021 at a time when she was a patient at RPA Hospital. She was also briefly cross-examined. She gave evidence that she had previously shared a room with Washington, however she had not spoken with him or Luz at all before 3 September 2021. She had no knowledge of his diagnosis, prognosis, or life expectancy, and had no medical or legal training, and did not speak Spanish.

Ms Sheldrick gave evidence that a nurse came to her room and asked if she would be prepared to be a witness. Her room was stated to be on the same floor but a fair distance away from Washington’s. While she stated she was unable to recall why she was being asked to be a witness, the other three patients in her room had dementia.

In terms of the signing meeting, Ms Sheldrick gave evidence that she was one of about four people in the room, the curtain was closed, and Washington was in the bed, propped up. She couldn’t recall exactly but stated there may have been someone on a screen as well. Ms Sheldrick gave evidence that her main concerned was getting in and out as quickly as possible, because it was COVID. She was unable to recall how long she was there for or who spoke while she was there. She could not recall anyone explaining anything to Washington, him saying anything, Spanish being spoken, or a translator. Ms Sheldrick stated she had no further interactions with Washington or Luz following the signing.

Ms Sheldrick gave evidence that she approached the head nurse after signing and made a complaint about being asked to be a witness when she was sick in hospital, particularly during COVID. She felt it was an inappropriate request of her. She gave evidence that she signed as she felt guilty and was told someone was needed. She described herself as uncomfortable and reluctant.

The Court accepts Ms Sheldrick’s evidence.

Luz gave her evidence in Spanish with the assistance of an interpreter. She was cross-examined. She deposed that while she spoke “competent English”, she only ever communicated with Washington in “Latin American Spanish”. At the date of these reasons she is 55 years old. She has disclosed no adverse health issues. She is currently living in the property.

In her affidavit dated 19 July 2023, Luz deposed that after breakfast on 23 August 2021, she printed the draft will and gave it to Washington, saying “here are the will papers to be signed.” Washington said “The house here in Australia is for you and the boys to live in. Property and money in Ecuador are for my family in Ecuador.” Luz deposed that later that afternoon Washington had a fever but refused to attend the hospital. Luz deposed that on 30 August 2021, she had a phone call with Ms Manzano and told her the will had been signed, but Ms Manzano told her it was not valid unless signed in front of two witnesses.

In her family provision claim affidavit dated 19 July 2023, Luz deposed her assets are valued at $3,000 and that she had no superannuation. Her monthly income is $1,080 from working in an after-school care service on a casual basis. She has no other source of potential income and has a limited ability to earn more money because she is currently caring for Christopher who is in and out of hospital. Her monthly expenditure is $1,093. This does not include the money she sends to her mother in Peru. Luz deposed that Christopher lives with her, and he helps with expenses such as food, transport, clothing and medicine. He earns $3,200 per month. Wendell was expected to move back in in the next month, and he may also assist with the expenses.

Luz deposed that she did not contribute financially to the acquisition, conservation or improvement of Washington’s estate. However, he supported her financially and she was wholly maintained by him. When he was diagnosed with lymphoma in April 2021, she became his fulltime carer.

Luz deposed Washington helped his family in Ecuador in the following ways:

Luz deposed her current needs include a furnished place to live, funds to study further to improve her career, private health insurance which she currently does not have, and money for contingencies. Her future needs are likely to be superannuation as she presently has none, future medical expenses, and future care including aged care.

In her affidavit dated 4 April 2025, Luz deposed that her current assets are valued at $23,742.12 and that she does not have any liabilities. Luz deposed that her current monthly income as an aged care worker is $4,506.66 and she works around 65 hours per fortnight. She also teaches Spanish lessons on a casual basis and occasionally cleans houses. Luz deposed that she is unsure when she will have to stop working in aged care and cleaning as they are physically demanding. Her monthly expenditure is $1,735. The electricity, gas and insurance bills are split equally between herself, Wendell and Christopher. Christopher also helps with some expenses when he is working however, he is often not working for long periods of time because of medical treatment for bi-polar disorder. Luz deposed she also receives financial assistance from her mother in Peru who helps pay medical bills. Luz also sends money to her mother.

Luz deposed that Wendell and his wife Sara live with her and they pay $800 per month as board but do not contribute to any other expenses. Christopher also lives with her but does not pay any board. She is unsure how long they will live with her. Christopher receives some Centrelink benefits and his assets total $2,100. Wendell’s assets total $29,000.

Luz deposed her present financial needs are:

Her likely future needs are:

Luz gave evidence that she went to Marrickville Legal Centre in June 2021 while Washington was in hospital as she needed a solicitor to help her prepare documents for if something happened to Washington and he lost capacity. She explained to the staff that Washington had cancer and was in hospital. Luz stated Marrickville Legal Centre called her back a few days later. They asked to speak with Washington and they asked him questions such as his full name, date of birth, where he lived, where he was at the time, why he was at that place at that time, and who was next to him. Luz stated Washington answered all of those questions in English and a long conversation followed. She did not interpret for him during the conversation.

A week or two after this conversation, Luz gave evidence of receiving a further call in which she was told Hall & Wilcox would get in touch with her. Hall & Wilcox called her, and they told her a meeting via video call had to be organised, however this meeting would wait until after Washington was discharged from hospital. Luz could not recall who from Hall & Wilcox made that call.

Luz gave evidence that a meeting did occur, and she was on the Zoom call with Washington. Mr Whiley and Ms Manzano were on the screen. Luz gave evidence that Mr Whiley introduced himself, the firm and said he was there to help prepare documents, namely a will, power of attorney and enduring guardianship for Washington. Luz gave evidence that Mr Whiley asked Washington questions such as his name, date of birth and location. She also recalled Mr Whiley asking whether Washington had any superannuation and whether Washington had any properties outside in any other place, to both of which Washington replied ‘no’. When asked who Washington wanted to be responsible in the power of attorney and enduring guardian, Washington replied ‘Luz’. When asked who he wanted to leave his house and assets to, Washington replied ‘Luz’. Luz gave evidence that Washington had originally replied “Luz and my children” when asked to whom he wanted to leave the property but was told by Mr Whiley that three owners could cause later trouble if they didn’t all agree. It was suggested that giving Luz the right to stay in the house until she passed away and then going to the children would be better, to which Washington agreed. Luz recalled the meeting occurring in English and could not recall Ms Manzano or herself saying anything in Spanish.

Luz gave evidence that after the initial meeting, she received drafts of the documents via email, which she printed. She gave evidence that she read them, but didn’t do anything with them as she was waiting for a call. She gave evidence that she did give them to Washington to sign one morning at breakfast, saying “Washington, here are the documents for you to sign” (Tcpt, 7 May 2025, p 207(11)). Washington took the documents and reviewed them. Luz described what she saw:

While in the witness box, Luz produced a copy of the enduring guardianship papers which had Washington’s signature in black ink, and she found the enduring guardianship papers which he had signed in the hospital in blue ink. Luz stated she had found those documents that morning.

Luz gave evidence that a few days after reading the documents, she asked:

Luz gave evidence that she then sent an email to Ms Manzano asking for the will to be modified to reflect this. Luz was unable to recall whether the documents she gave to Washington were the original ones sent to her, or the modified ones following the email exchange with Ms Manzano.

Luz gave evidence that on 2 September 2021, Dr Buss and Dr Louisa Clay came into Washington’s room at RPA Hospital, and she told Dr Buss that she wanted to finalise some documents. She recalled Dr Buss asking Washington some questions, including:

Luz gave evidence that following the questions, Dr Buss said he would issue a document that stated Washington had capacity to sign and finalise the documents. Luz stated she called Hall & Wilcox to advise them the doctor was preparing a report which stated Washington had capacity, but that the doctor could not be a witness.

Luz gave evidence about a conversation she had with Washington on 2 September 2021:

With respect to the signing of the 2021 will on 3 September 2021, Luz gave evidence that a female witness approached her, advising they were going to be one of the witnesses but that Luz needed to find another witness as doctors and nurses could not be witnesses. Luz stated she went and found the female patient whose bed used to be opposite Washington’s. She said this woman’s room was quite close to Washington’s. Luz gave evidence that after asking if she would be able to help with signing the will, this woman replied “Yes, I’ll come now and help you. I know everything that you’re going through” (Tcpt, 7 May 2025, p 222(49)).

Luz gave evidence that she returned to Washington’s room and turned on Zoom. Mr Whiley was online, and he made a comment, “I see that you have two witnesses.” Luz’s evidence was that the conversation occurred in English and Washington’s replies to Mr Whiley were in English too. Luz was unable to recall if anything had to be translated into Spanish. She recalled Mr Whiley explaining the main issues for each section of the 2021 will, but could not remember him reading it exactly or point by point. She recalled:

Luz could not recall Washington saying anything as the Will was explained by Mr Whiley, and stated she did not say anything during the meeting. Mr Whiley then said it was time to sign, and the witness who was a JP wrote the date, and everyone signed. Luz stated everyone then left and it was just her and Washington, with Mr Whiley on the screen.

As to her relationship with Washington, Luz gave evidence that in 2012 she was living in a property her father rented. When he passed away, she had to move out and had nowhere to go, so Washington invited her to live with him. At this time, she was not in a romantic relationship with Washington. Their relationship evolved into a romantic one some weeks later. Luz gave evidence that Washington spoke some English but that her English was generally better than his.

Luz gave evidence that a few months after moving into the property, she and Washington lived in Peru for about 12 months. They lived in separate bedrooms at the request of Washington, in her mother’s house. Luz denied any intention to return to Peru now, and stated she did not have any information about the value of her mother’s home in Peru or whether it had a mortgage. Luz did state her mother was happy to divide the inheritance between Luz and her two brothers. Luz worked teaching English while in Peru, however Washington did not work but was receiving money for renting out the property. Luz gave evidence that Washington would give her money. After the 12 month period, Washington went to Ecuador and Luz stayed in Peru. Luz agreed that between November 2013 and August 2018, they saw each other two to three times a year. They married during that period, in January 2015. They spent time together on the border between Ecuador and Peru without their families and sometimes travelled together. In August 2018, they returned permanently to Australia with Luz’s two sons.

Upon their return, Luz gave evidence that she and Washington created a joint bank account. However, the money that came in from bedrooms in the property being rented out went into an account in Washington’s sole name. Luz was unable to recall the purpose of the joint account. Luz gave evidence that initially upon returning to Australia, Washington paid all household bills and expenses, however after a few months she began to make small contributions, and she helped Washington apply for a pension.

Luz gave evidence that she advised Washington’s family in Ecuador about his poor health after Washington underwent chemotherapy, and from that point onwards, they began to call and send her messages with questions about his health. Luz’s evidence was that she was overwhelmed by their inquiries. When asked about the Social Work Note of 3 June 2021 (see [31] above), Luz denied describing Washington’s family in Ecuador as friends to the social worker but accepted that she did not want the hospital staff communicating directly with Washington’s family in Ecuador.

Luz agreed that the first time the issue of a will was raised was in early June 2021. While her affidavit stated the issue was first raised by Kristel, the social worker, Luz accepted she was the one who first raised the issue of the will. When it was put to Luz that each time at the issue of a will was raised, there was no response from Washington, Luz’s evidence was:

Luz gave evidence that she was not aware that Washington had made any previous wills until the commencement of these proceedings. She denied wanting a will to be prepared because she didn’t know there was already a will and thought a will was important, and she also denied thinking Washington needed a will without thinking about whether had might have had an earlier will. Luz was unable to recall any discussions about a previous will at the initial meeting.

She was unable to recall a RUDAS assessment being conducted the day after her conversation with Marrickville Legal Centre on 24 June 2021 and stated she did not provide the RUDAS assessment to Hall & Wilcox. Luz also stated she was unaware of the assessment made by the occupational therapist on 28 June 2021 and was unable to recall telling the occupational therapist she had noticed changes to Washington’s short-term memory, or the occupational therapist telling her that Washington was well below his usual functional and cognitive baseline.

Luz remembered being told that it was not safe for Washington to be discharged from the RPA Hospital to Balmain but was unable to recall being told one of the reasons for this was because of Washington’s cognition and memory. Luz did not recall being told by the RPA Hospital that Washington had been diagnosed with a new cognitive impairment, or that it was recommended he attend the Memory and Cognition Clinic for a repeat cognitive assessment. She gave evidence that Washington was never confused about why he was in hospital.

Luz was unable to recall that Washington was admitted to the RPA Hospital the day after the initial meeting.

Luz recalled having a conversation with Dr Abadir about stopping Washington’s chemotherapy but denied it occurred only a few days before Washington signed the informal will. Her recollection was the conversation with Dr Abadir occurred while Washington was still in hospital. It was put to Luz that when Washington signed the informal wills, the decision had already been made to cease chemotherapy and commence palliative care, but she stated, “No. It wasn’t like that”.

Luz denied making urgent inquiries of both the solicitor and the hospital about the will in the days leading up to the signing of the 2001 will. She could not recall Dr Abadir forming the view that Washington did not have capacity on 1 September 2021, but did recall Dr Abadir telling her Washington had gone into a critical stage and did not have long left to live.

As to the capacity assessment conducted by Dr Buss on 2 September 2021, Luz gave evidence that she did not receive a copy of the report on the day, but she did receive a copy about a year later.

With respect to her financial position, Luz gave evidence that she works as an aged care worker, but also casually teaches Spanish lessons two hours a week which is paid in cash and she cleans houses every two months. Luz accepted she had not included the Spanish lessons or cleaning in the estimate of her finances. Upon being shown bank statements, Luz accepted she had received multiple payments from Mr Paul Mirabito from AWI Steel Pty Ltd which was not disclosed in her affidavit. Luz gave evidence that she looked after the mother of Mr Mirabito, and did extra hours over Christmas and New Years which accounted for her increased monthly financial position. Luz gave evidence that Mr Mirabito gives her invoices that identified the hours she had worked and withholds tax.

Luz gave evidence that Wendell and his wife currently live with her, and they are both employed. She accepted that neither of their incomes is disclosed in her affidavit. Luz stated Christopher also lives with her and has long periods where he does not work, but that he is currently on a Centrelink benefit. She accepted his income was not included in her affidavit evidence.

Luz denied the only way she could pay for her legal fees was to sell the property, stating that she had plans to ask for a bank loan. She accepted her currently legal fees are estimated to be around $260,000 and she gave evidence she would be able to borrow at least that amount of money. She gave evidence that she paid around $1,500 in legal fees in 2022.

When asked about suitable properties, Luz accepted a two bedroom property would be suitable and that a few suburbs west of St Peters, such as Homebush or Homebush West, would be acceptable given that she had a car. Luz accepted there were properties available of the type and in the location she would like for a lower price than the ones she had provided to the Court. Ms Muscat showed Luz a selection of two bedroom apartments valued between $465,000 and $575,000 in Homebush and Homebush West.

Luz gave evidence that she was aware of Washington’s plans to travel to Ecuador and stay with his family in 2020. Luz agreed that Washington was very close with his family in Ecuador. It was put to Luz that she was aware Washington had provided financial assistance to his family in Ecuador on a consistent basis. She agreed he had provided assistance to his family in Ecuador in the past but denied knowledge of whether the assistance was ongoing:

Luz denied any interest in Washington’s property in Ecuador.

Luz accepted that she was the informant for the death certificate but stated the funeral director recorded Wendell and Christopher as Washington’s sons, not her. She was unable to recall Jacqueline asking her to correct the death certificate as it was making things difficult in Ecuador. Luz stated she had not been told about that. Luz stated with regards to the death certificate, “I think it should be as it should be” (Tcpt, 9 May 2025, p 277(2)), and that she would correct it if the Court told her she had to.

The unchallenged evidence of the plaintiffs is that Washington had a close and supportive relationship with his family in Ecuador and he regularly provided them with finances.

Pastora affirmed three affidavits which were admitted without objection and she was not required for cross-examination.

Pastora is the older sister of Washington and was 89 years old at the time of hearing. She does not speak any English and always communicated with Washington in Spanish. She was born and continues to reside in Ecuador and is a subsistence farmer.

Pastora deposed in her first affidavit sworn on 13 December 2022 that Washington went to school in another town as there was no school in their hometown of Atahualpa. While he was there, Pastora sent him money for rent and food, as well as groceries.

Pastora deposed that Washington moved to Australia to earn a good income in order to provide for the family, being his siblings and mother, as they are very poor. Washington would communicate his concern about the family and said he would send money for their mother and all the house expenses. It was deposed that Washington transferred money in amounts of US$600 to US$800 every few months to their mother and Pastora until 2002. Following that, Washington created a joint bank account with Pastora and any money that was required was placed by Washington into that account. The account is still active and used by Pastora. The money is used to pay taxes, buy groceries and help with the corn field.

Pastora deposed that Washington would visit every five years for around three months, during which time he would help take care of the cattle and work in the corn field. Initially, they would communicate by written mail. After phones were introduced, they would talk on the phone every two or so weeks, however these calls were expensive.

Pastora deposed to the renovations and improvements Washington had made to the family home in Ecuador, as well as a truck he purchased for them. Pastora is unable to drive but Omar drives her.

Pastora deposed that Washington came to Ecuador in 2014, bringing Luz with him. This was the first time Washington had ever mentioned Luz.

Pastora deposed that Washington told her he was taking Luz and her sons to Australia but that he would return in six months time. Pastora told him Luz wouldn’t let him come back but he said he would. Following his return to Australia, they spoke on the phone once or twice a month.

The last time Pastora spoke to Washington was in May 2021 and he told her he hoped to come to Ecuador when the travel restrictions eased.

In her affidavit sworn 26 March 2024, Pastora deposes that currently she only has 11 cows, and that subsistence farming is not profitable work. The field she uses to plant corn is owned by her brother, whose name is on the title deed. This corn is only for her consumption.

Pastora deposed that she works 84 hours a week as a subsistence farmer and does not receive any monetary compensation. Her primary source of income is selling cattle, which is deposed to be an unstable and small income in comparison to the work required. She receives US$70 a month from renting the land Washington has in Quito. Her income is deposed to be US$95 per month, while her expenses are US$265 per month. The shortfall is paid out of a bank account which Washington created for her and put money into. She lives in the family home with Omar. The house is worth an estimated US$40,000. The title deed of the house is still in the name of Pastora and Washington’s deceased father. They have been unable to have the title transferred. Pastora’s assets are valued at US$10,204.22.

Pastora is elderly and has difficulty walking due to sciatic nerve pain. She has poor vision and has hearing loss. The money is intended to be used to:

In her affidavit affirmed 9 April 2025, Pastora deposed that due to her declining health and poor mobility, she has been unable to work and she also sold no cattle in the last year which has reduced her savings. The pain in her leg has worsened requiring surgery, however medical advice is against surgery due to her age. Pastora deposed she is no longer able to walk by herself and relies on Omar.

Lidia is the niece of Washington and is 68 years old. She was not required for cross-examination.

In her affidavit affirmed on 13 December 2022, Lidia deposed that she had a conversation with Washington about his testamentary intentions in 2017:

Lidia deposed that in July 2018, following Lidia asking him what he was going to do with the house in Australia and what would happen if he died, Washington told her there was a will in Australia which named Pastora, Omar and her. Washington told her he was not going to change the will and that he wanted the house to remain with them as they were his family.

Around November 2018 when Washington made the 2018 Will, Lidia deposed that Washington called her, asking for their updated contact information for the will and told her the agency who had the will would call them and organise all the arrangements to have the property sold and the money sent to Ecuador for them.

Lidia deposed that in July 2021, she asked Washington whether he had changed his will, and he advised he had not and that the will would remain how it was.

Lidia deposed that following learning of Washington’s hospitalisation, she attempted to organise travel to Australia. She called Luz in May 2021 following being told a letter of invitation to petition for an Australian visa was required. Lidia deposed that Luz told her Washington did not want her to come, and Luz refused to give her a letter of invitation. Lidia deposed that she spoke to Washington in July 2021 and when she asked him about not wanting her to come, Washington asked why he wouldn’t he want her to come and that he did not even know that she had asked. Lidia deposed that Luz did not respond to any of her messages about Washington’s health following this conversation, until the day before Washington died.

In her affidavit affirmed 26 March 2024, Lidia denied that Washington ever gave her any property nor had she received any rent from his properties.

Lidia deposed that she is retired and receives a pension of US$427 per month, while her husband is also retired and between his pension and rental income, he receives US$667 per month. Their combined expenses are US$1,020 per month. Her husband owns the home they live in, and it is worth approximately US$65,000. They have no liabilities and have savings of around US$1,000.

Lidia deposed that she was diagnosed with a cancerous tumour in the left side of her jaw which required surgical removal in 2019. She now requires biannual visits to her doctor for monitoring. Her husband has a herniated disc and sciatic nerve inflammation which requires three physiotherapy sessions each week, costing US$20 per session.

Lidia deposed the money she would receive would be used for:

Omar is the nephew of Washington and is 43 years old. Omar was briefly cross-examined with the assistance of a Spanish interpreter.

In his affidavit affirmed 13 December 2022, Omar deposed he was raised by Pastora, and Washington treated him like a son. When Omar was 17 years old, Washington tried to adopt him and bring him to Australia. Omar travelled to Sydney in August 1999, however the adoption was unable to be completed and Omar returned to Ecuador in December 1999.

Omar deposed that Washington supported him financially, paid for his schooling, university and medical expenses. Washington helped finance the building of Omar’s house. This house is rented so that he can support Pastora, however Omar deposed that the money is barely enough to survive on.

Omar deposed that Washington gave him a copy of Washington’s will in 2007. The will was dated 29 April 2005 and Washington told him to look after the document in case something happened to him, and that it explained how he wanted his estate in Australia to be divided.

Omar deposed that in November 2018, Washington called him and had the following conversation:

When asked about Luz’s children, Washington told Omar they were nothing, he had helped them come to Australia and they could work.

Omar deposed that in 2019, Washington told him Christopher had moved out but that this was better as they did not get along.

Omar deposed that in November 2019, Washington said to him:

Omar deposed he was an engineer, however, he suffers from vision problems which makes his eyes significantly sensitive to the light emitted from computers and phones. As such, since 2020 he has been working as a farmer.

Omar deposed he spoke with Washington every two weeks until May 2021, from which time Washington did not respond until his death.

In his affidavit affirmed 26 March 2024, Omar deposed he, along with his partner, purchased half of a property in Ecuador from Washington, paying US$19,000. No property was gifted to him.

Omar deposed he works full time as a subsistence farmer, however this does not generate an income. His income is US$100 per month for taking care of cattle and US$400 per month for renting his house. His expenses are $627 per month, which includes US$125 per month in child support. The shortfall is paid from his savings. His assets are valued at US$93,465 but this includes US$1,000 which he holds on trust as the treasurer of the neighbourhood for purchase of water meters for irrigation in the community.

Omar deposes that any money received would be used for:

In his affidavit affirmed 9 April 2025, Omar deposed that he is no longer able to look after cattle due to Pastora’s declining health. However, the rent on his property has increased, so his monthly income remains US$550. His child support had decreased from US$152 to US$130 per month.

Omar gave oral evidence that he had a clear recollection of a conversation he had with Washington in November 2019. His evidence was that Washington said he was definitely coming back to Ecuador once the paperwork for residency was completed for Luz and her children. Omar was not aware that Luz and her children had received their Australian permanent residency on 29 May 2019.

While his affidavit stated Washington had told him he had purchased a one-way flight to Ecuador, Omar accepted he now knew it was a return flight. He accepted Washington may not have said the ticket was one-way.

Jacqueline is the niece of Washington. She lives in New York and did not require an interpreter when giving evidence.

In her affidavit affirmed on 13 December 2022, Jacqueline deposed that she had a very close relationship with Washington, who she described as a second father. Between 2013 and July 2015 when Washington was in Ecuador, she would see him almost every day, and between July 2015 and 2018 she saw him most weeks and spoke with him on the phone once a week.

Jacqueline deposed that Washington supported her and family. He paid for her English lessons, an exchange program in the United States and her university education. Her English is fluent. However, Jacqueline deposed that Washington’s English was very basic.

Jacqueline deposed that in December 2018, Washington told her:

Jacqueline deposed that in November 2019, in response to a question about when he was coming to Ecuador, said:

Jacqueline deposed that following his return to Australia in 2018, she spoke with him on the phone once a month until he failed to answer in April 2021. Jacqueline deposed that Washington was not technologically proficient and only used his phone to make calls and had difficulties with computers.

Jacqueline deposed that following learning Washington was sick, she remained in regular contact with Luz to get updates about his health and sent him a plant and flowers wishing him a speedy recovery from his family in Ecuador.

Jacqueline deposed that she wanted a copy of Washington’s death certificate for several reasons:

Jacqueline deposed she sent Luz a message on 29 September 2021 advising her of the process to have Washington’s death certificate registered in Ecuador and that the paperwork would go to Luz. Jacqueline asked if she could call Luz to organise this with her, however, Luz did not respond. Jacqueline sent Luz another message on 30 September 2021 on this topic but did not receive a response. Jacqueline again requested a copy of the death certificate from Luz on 29 October 2021. Luz replied saying she would reply in the following days but was busy that weekend. Jacqueline sent Luz another message on 7 November 2021 asking for help registering the death. Luz replied on 9 November 2021, asking for her email address, which Jacqueline immediately provided. Upon not receiving anything, Jacqueline sent Luz a message on 11 November 2021, to which Luz did not respond.

Jacqueline deposed that Luz called her on 16 November 2021 and said:

Jacqueline deposed that Luz then put Wendell on the phone. Wendell told her she could not execute an Ecuadorean will in Australia, what Washington owned in Ecuador goes to them and everything in Australia went to Luz because she was Washington’s wife. When Jacqueline asked for a copy of the will, Wendell said “no”, because the lawyers told them nothing could be sent about Washington’s death until they had finalised executing the will but that she could talk to the lawyers. Jacqueline then sent Luz a message asking for the contact information of the lawyers, but Luz did not respond.

Jacqueline gave evidence at the hearing about a conversation she had with Washington in November 2019. She asked Washington if he knew when he was coming back to Ecuador, and he told her he was waiting to get a response on Luz’s residence application and if he had known it would take that long, he would have come back to Ecuador to wait there before returning to Australia when Luz and her children needed him. Jacqueline denied knowing Luz and her children had received their permanent residency on 29 May 2019.

The basis upon which the Court could be satisfied as to the validity of the 2021 will was submitted to be:

It was initially submitted by Ms Power that the evidence supporting the validity of the 2021 will included:

However, in closing submissions, Ms Power accepted (correctly, in my respectful view – see [141 to [145] above) that Mr Whiley’s evidence does not assist the Court in determining the validity of the 2021 will insofar as it is not an actual recollection. Rather, it is a reconstruction based on his usual practice. It was, however, submitted that the Court should have regard to the contemporaneous documentary records of Marrickville Legal Centre and Hall & Wilcox. These records were submitted to provide clear evidence of:

The evidence of Dr Buss was submitted to be compelling, particularly where he saw Washington most days during his final admission, and his conclusion that Washington had capacity should be accepted. The medical records of 2 and 3 September 2021 were submitted to support the conclusion that Washington had capacity at the Signing Meeting, particularly:

Ms Power drew the Court’s attention in oral submissions to the evidence of Dr Buss that a geriatrician or psychiatrist would be called for if there were capacity concerns or for an assessment of medical capacity. Ms Power submitted there was no suggestion in the medical records that such a consultation occurred.

It was submitted that the evidence of Luz should be accepted because it was generally clear, detailed, precise and unchallenged on the critical events, including the signing meeting. It was further submitted that Luz’s unchallenged evidence should be preferred over that of Mr Whiley’s where there is a conflict, such as the question of what language was spoken at the two meetings. Her unchallenged evidence of the initial meeting, in combination with the legal documentary records, would allow the Court to conclude Washington gave clear instructions which were reflected in the will he ultimately executed. While it was accepted there was a period of three months between the initial meeting and the signing of the 2021 Will in which Washington’s capacity may have changed, Ms Power submitted concerns could be assuaged by the capacity testing carried out by Dr Buss the day prior and no concerns being noted in the hours following the signing.

It was submitted that there was nothing suspicious in the behaviour of Luz, she was simply a wife caring for her ill husband and it was relevant that Luz was also giving instructions for her own will at the initial meeting.

Ms Power submitted that the Court would be satisfied on this evidence that Washington had testamentary capacity at the time of signing the 2021 Will because the following conclusions could be drawn:

The 2021 Will is challenged on two bases – a lack of testamentary capacity, and want of knowledge and approval.

The plaintiffs submit the interlocutory judgment, while not binding, shows their evidentiary onus for raising doubt as to testamentary capacity has been discharged, shifting it to the first defendant. So much was apparently accepted by Luz. Meek J stated:

It was submitted the evidence of Luz (even taken at its highest), Dr Buss and Mr Whiley is insufficient to discharge the onus. The weight to be given to the evidence of Luz (as a self-interested witness) and Mr Whiley was brought into question. So was the failure of Luz to call Ms Manzano, Ms Bladen, Dr Abadir and Dr Clay (Ho v Powell (2001) 51 NSWLR 572; [2001] NSWCA 168 at [15] to [16]). In oral submissions, Ms Muscat submitted that Mr Whiley’s evidence rises no higher than what is recorded in his file notes (including the handwritten note), and also that Ms Manzano was still employed by Hall & Wilcox, leading to the inference that her evidence would not have assisted the plaintiffs.

Regarding Washington’s capacity to give instructions at the initial meeting, it was submitted that the Court could not have confidence in his ability to give instructions, as in the months prior to the purported giving of instructions, the hospital records indicate Washington was suffering from a cognitive impairment, was often confused, delirious and disoriented, scored poorly on cognitive testing, and was heavily medicated. Various parts of the medical records of Washington’s admissions to the RPA Hospital between 28 April 2021 and 8 July 2021 were drawn to the Court’s attention, which stated that Washington was a vague and unreliable historian, described him as completely disabled, noted on multiple occasions he was confused or disoriented as to time, date and place, had lapses of memory around important things such as his own date of birth, address and wife’s name, could only engage in limited ways verbally, and had a delayed response time. Attention was also drawn to Washington’s RUDAS score on 24 June 2021 with 0/8 for memory, as well as the progress notes of 28 and 29 June 2021 which describe his cognitive state as well below his usual baseline. The recommendation for a repeat cognitive assessment on 1 July 2021 was submitted to have never been acted upon.

As to the initial meeting, it was submitted that due to Mr Whiley’s concessions in oral evidence and Luz being a self-interested witness, Mr Whiley’s handwritten note is the best source of evidence of what occurred during the meeting. However, it was submitted the handwritten note is unable to provide any or sufficient evidence as to Washington’s capacity to provide instructions at the time due to its brevity. It fails to identify what was asked, the response and by who, and the language in which any of the meeting occurred. The handwritten note also records the answer to the question of whether Washington had any property outside of Australia as being “no”, which is plainly wrong.

It was submitted that the second limb of the Banks v Goodfellow test is clearly in doubt at the initial meeting, based upon the gap in the evidence about both Washington’s property in Ecuador and the discussions about Washington’s previous wills. There is no mention in the handwritten note about any previous wills, which is consistent with the email of Mr Whiley on 1 September at 3.26pm that Washington could die intestate (see [92] above), and the evidence of Luz that she did not know of the previous wills until these proceedings.

It was submitted that Mr Whiley failing to enquire about any former will, seek to review any former will or speak to Washington alone would result in the Court being unable to satisfy itself of the third limb of the Banks v Goodfellow test. Mr Whiley’s oral evidence was that he proceeded on the basis that both Washington and Luz were his clients, their interests were aligned in his retainer, and his retainer was to draw simple wills for long-term spouses with two children. This basis led him to conclude that Washington’s instructions were logical and rational. However, it was submitted this shows Mr Whiley did not attend genuinely to the third limb.

As to the fourth limb at the time of giving instructions, it was submitted no questions were asked to test Washington’s capacity, nor was any material requested or provided regarding Washington’s medical and cognitive state.

Following the initial meeting, it was submitted that the medical records show concerns remained around Washington’s capacity. This was evidenced by the 26 August 2021 Admission Note stating Washington was a poor historian who often said “I don’t remember” (see [75] above), records that state Washington’s background included a cognitive impairment, the 1 September 2021 Progress Note where Dr Clay stated Washington did not have capacity (see [90] above), Dr Abadir advising Mr Whiley that Washington did not have capacity and was unlikely to regain capacity (see [92] above), and the 3 September Progress Note recording Washington having a fall four hours prior to signing the will (see [103] above).

As to Washington’s testamentary capacity at the time of signing, it was submitted that Mr Whiley wholly deferred the question of capacity to Dr Buss. Further, Mr Whiley received the advice of Dr Buss concluding Washington had capacity from Ms Manzano who herself had been advised by Luz. Mr Whiley did not speak to Dr Buss or see a copy of Dr Buss’ report as recorded in the hospital notes (see [100] above) and he apparently also relied on Ms Mitchell’s confirmation to him of Dr Buss’ opinion.

While it was accepted Dr Buss was a credible and truthful witness, it was submitted his evidence is not sufficient for a conclusion of capacity to be reached due to:

Following the signing meeting, it is submitted the hospital notes (see [112] above) reflected that the medical team had concerns about Washington’s competency to sign a will, and Washington died only a few days after signing the will.

Relying on the principles set out in [47] of Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 and [186] of Lewis v Lewis [2021] NSWCA 168, it was submitted the Court could not be satisfied as to Washington’s knowledge and approval of the 2021 Will. This contention is based upon Washington being extremely vulnerable and Luz, as the primary beneficiary, having close involvement in the entire will process.

In regard to knowledge and approval, several factors labelled “highly suspicious” were pointed to:

It was submitted in oral submissions that the 2021 Will was not simple. The instructions Luz stated were given by Washington at the initial meeting were that when asked who he would like to leave his house and assets to, he would say “Luz, my wife” or “my wife and my children” each time. However, the 2021 Will did not simply have one clause that said, ‘I leave the whole of my estate to my wife and children’. Instead, it had an executor clause, specific gift of chattels, household effects, motor vehicles, a clause about digital assets, a relatively complex right to occupy clause, a power of sale clause and then a residue clause. It was submitted the instructions purported to have been given on Luz’s evidence do not match the will that was created, leading to doubt as to Washington’s knowledge and approval.

As to the signing meeting itself, it was submitted that the length of the conference being thirty minutes, in which three formal documents were executed and witnessed, creates further doubt as to Washington’s knowledge and approval considering his ill health and language difficulties. Mr Whiley’s evidence, taken at its highest if accepted, is that the explanation involved some word for word reading out while the rest was a high level explanation. His recollection was Washington only gave one word responses which were interpreted. Luz’s evidence is an explanation of all the documents was given, point by point, in English and Washington said nothing during the conference. On neither version, it was submitted, could knowledge and approval of the Will’s contents be found.

In light of the instances where the Court is required to answer questions such as whether Mr Whiley asked about Washington’s former wills or whether the conferences were conducted in English or Spanish, it was submitted in oral submissions that the Court would be unable to reach the requisite level of satisfaction as to knowledge and approval. This is compounded by a complete absence of evidence of Washington weighing up the persons that may have a call on his bounty in relation to his family in Ecuador in the face of a significant departure from many previous wills.

In response to a question about whether the suspicious circumstances were neutralised by the fact that Washington was dying in hospital, Ms Muscat submitted that while it would be natural for his wife to organise a will for him, the entire will process went against Washington’s pattern of will making, from the lawyers who drafted it, to the beneficiaries in the will, and Washington was never spoken to or communicated with without the presence of Luz. As such, the suspicious circumstances are not alleviated.

It was submitted that knowledge and approval was immensely difficult to prove, and that Luz is unable to allay the suspicions clearly surrounding the making of the will. The evidence is submitted to be insufficient to alleviate the objectively grave concerns.

In reply, it was submitted that based on Luz’s evidence of critical events, Dr Buss’ evidence and the contemporaneous medical records, the Court could be satisfied that Washington had testamentary capacity at the time of executing the 2021 Will and knew and approved its contents.

It was submitted the medical records between 28 April and 8 July 2021 are not contemporaneous to either the initial meeting or the signing meeting and do not assist the Court in assessing Washington’s capacity.

It was further submitted the medical records never recorded Washington as being disoriented as to time, date and place at the same time. It was argued that physical ill-health should not be conflated with cognitive deficits.

Regarding Washington’s departure from previous wills, it was submitted it was unsurprising that Washington would choose to leave his estate to his wife and stepchildren when his prognosis was so poor, and that the 2021 Will is notably similar to the 29 August 1988 will Washington made during his previous marriage.

In terms of knowledge and approval, Lim v Lim [2023] NSWCA 84 at [10] was relied upon, along with the opening sentence of [47] in Tobin v Ezekiel, with it being submitted that this present case matches those circumstances as there is unchallenged evidence that Washington gave instructions for the 2021 Will.

It was submitted that Luz’s evidence in regards to the signing conference was not that Washington said nothing at all as contended by the plaintiffs’, but rather she could not remember him saying anything.

It was submitted that saying Washington could not comprehend English is simply wrong, because Washington emigrated to Australia in the early 1970s and worked from that time, undertook various English courses in his early years in Sydney, and gave instructions at the initial meeting in English. Luz gave evidence that Washington could read, talk and understand English, and a letter attached to Luz’s 19 July 2023 affidavit demonstrated that Washington could write in English.

There was no dispute about the applicable legal principles.

If a will is rational on its face and is shown to be duly executed, a presumption will arise that the testator had testamentary capacity (Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 706E; Tobin v Ezekiel at [45]). This presumption may be displaced if the circumstances raise sufficient doubt as to the existence of testamentary capacity. The onus will then shift to the party propounding the will to satisfy the Court of the deceased’s capacity to the civil standard of proof, including the subsidiary elements of testamentary capacity and knowledge and approval (Tobin v Ezekiel at [45] to [46]; Estate Rofe [2021] NSWSC 257 at [109]; Dunne v Christie [2025] NSWSC 968 at [107]).

The principles about assessing testamentary capacity were summarised by Lindsay J in Estate Rofe which I gratefully adopt:

For meeting the requirement of knowledge and approval, the test was succinctly outlined by Kirk JA in Lim v Lim at [10]:

Meagher JA in Tobin v Ezekiel stated the following:

Leeming JA considered this passage in Lewis v Lewis at [186], stating that:

The standard of proof remains that of the civil standard in accordance with Briginshaw v Briginshaw (1938) 60 CLR 336.

In my judgment in Phillips v Phillips [2017] NSWSC 280 I said:

There was no issue between the parties that the 2021 will was duly executed (although I note that page 5 of the original will in evidence does not bear Washington’s signature or that of Ms Mitchell or Ms Sheldrick – given the Court’s conclusion nothing turns on this).

In summary, the Court accepts Ms Muscat’s submissions as to the invalidity of the 2021 will. Luz has failed to discharge the onus she bore to satisfy the Court that the 2021 will is the last will of a free and capable testator. However, it is necessary to begin this section with two general observations.

First, the Court accepts Ms Powers’ submission that the focus of forensic attention must be the signing meeting and the period immediately leading up to it. However, that is not to say that what occurred at the initial meeting and over the period of Washington’s hospitalisations is irrelevant. For example, the initial meeting lays the foundation of two decisive matters that did not change up to and including the signing meeting:

As to the evidence of Washington’s cognition during his long hospitalisations, Ms Power submitted that the hospital records linked this to his being very ill and the deconditioning of a long stay in hospital. This, the argument ran, meant that such evidence was not relevant to any conclusion about the signing meeting. I do not accept that submission. What the evidence demonstrates, and the Court finds, is that the sicker he was, the more Washington’s cognition and capacity to communicate were compromised. That is a relevant fact given that there was no dispute that Washington was very sick – “actively dying” – at the time of the signing meeting.

Second, in my respectful opinion, there is a qualification that needs to be made about all of the evidence of doctors’ (or other medical personnel) opinions about Washington’s “capacity”. There is no evidence that any doctor or other clinical personnel assessed Washington’s testamentary capacity mindful of the legal test as expressed in Banks v Goodfellow. The Court accepts Dr Buss’s evidence that he was not aware of that test. Given their profession, and in relation to Dr Buss that he accepted as much, the Court finds that to the extent that there is evidence of any doctor or medical team expressing a view on capacity, it was in fact a view about Washington’s medical capacity, being his capacity to understand and consent to medical treatment. The medical personnel are certainly not to be criticised that at various points the hospital notes suggest they treated medical capacity as equivalent to capacity to execute the 2021 will (or any other legal document).

The Court heard no evidence and received no submissions on the extent, if any, of an overlap between medical capacity and testamentary capacity. While common sense would suggest there must be some overlap, I do not consider this is a matter about which the Court can or should speculate. As I understood them, Ms Power’s arguments depended upon an unstated and unproven equivalence between the two.

The effect of this analysis is that the Court does not have any expert medical evidence that supports a finding of Washington having testamentary capacity at the signing meeting. Because there was ultimately no dispute that Mr Whiley made no effort to make his own assessment of Washington at the signing meeting, there is therefore no evidence from any qualified person on the question. While in what follows I will refer to the various doctors’ opinions on “capacity”, I do so for convenience because that is the word used in the documents but I am not to be taken as referring to those opinions as in fact being opinions the Court accepts as opinions about testamentary capacity.

Luz bore the onus on this question. To satisfy that onus in relation to what took place at the signing meeting she relied on:

I assume in Luz’s favour that Washington understood the nature of a will and its effect, considering he had made several previous wills. However, Luz has failed to discharge her onus to demonstrate any other aspect of capacity for the reasons advanced by Ms Muscat, and in particular the matters which I next highlight.

As I have already noted, Mr Whiley relied entirely on the doctors’ opinions as to capacity. His file note (see [107] above) and later email on the day (see [111] above) support that conclusion. There is nothing otherwise in his note about the signing meeting which assists Luz in discharging the onus. As I have also already observed, there is no evidence from any legal or medical professional that supports the conclusion that Washington had testamentary capacity at the signing meeting.

To the extent it may be relevant (given what I have said in [313] to [315] above), the medical opinions on 1 September 2021 were:

Turning to Dr Buss’s examination and conclusion on 2 September 2021, it is of no assistance to Luz’s case for the reasons identified by Ms Muscat and set out in [313] above. Furthermore, what both Dr Buss’s evidence and Luz’s recollection (see [190] above) confirm is that what Washington explained was that he understood that it was Luz who wanted him to sign the will. That at least does not assist, and in my view counts against, the Court concluding that Washington was a free and capable testator.

Finally, only a few hours after the 2021 will was executed, Professor Cigolini (see [285] above) recorded that “the team” did not consider that Washington had capacity in relation to will making.

Both Dr Abadir and Dr Clay are recorded as having the view that Washington’s capacity could change rapidly. At face value, that is demonstrated by the apparent change from 1 September 2021 to 2 September 2021. However, that changeability is another reason why the Court is unable to place great weight on Dr Buss’s views on 2 September 2021 as still being applicable at the signing meeting on 3 September 2021. Washington’s condition was deteriorating which, as I have noted in [312] above, was historically accompanied by a decline in cognition, and the fall he had had on the morning of the signing meeting was testament to his physical frailty. The absence of even a medical assessment of Washington’s capacity on 3 September 2021 means the Court is left with Dr Buss’ opinion of the day before (apparently repeated to Luz by Dr Clay – see [96] and [101] above), to be compared with contrary opinions recorded on 1 and 3 September 2021. The weight of that contrary evidence, even accepting it be about medical capacity, establishes sufficient doubt in my mind so as to mean Luz has not discharged her onus.

Insofar as understanding the extent of his property, the doubt raised by the initial meeting (see [311](1)) is not dispelled by anything that occurred at the signing meeting. He signed a will that made no express reference to his property in Ecuador, the omission being for no obvious reason and uncorrected by Luz.

Similarly, the doubts raised at the initial meeting about his capacity to weigh the claims on his testamentary bounty remain unresolved. Contrary to many years of will making – including the 2018 will made after he had been married to Luz – the 2021 will completely excluded Washington’s family Ecuador and left the residue to Luz’s adult children (who had no particular testamentary claim on Washington, especially in relation to assets to which their mother had made no contribution). This was in circumstances where there is clear evidence that he remained close to his Ecuador family up to his death.

Finally, even without allowance for the fact that Luz has a substantial interest in the outcome of the proceedings and taking her evidence of what occurred at the signing meeting at face value (see [192] to [194] above), it is insufficient to discharge her onus on this point or overcome the factors weighing against a finding of capacity that I have identified in the preceding paragraphs.

The same reasons that I have set out in relation to testamentary capacity inform the Court’s conclusion that Luz has failed to satisfy the Court that on the balance of probabilities Washington knew and approved the contents of the 2021 will.

Mr Whiley’s file note “JW explaining docs to Washington after checking that he had legal capacity with doctor. Washington confirming that he was happy with and understood docs then executing” is of itself insufficient proof of knowledge and approval without reliable detail of what and how it was explained and a proper record of Washington’s responses (including in what language). This is particularly the case where on any view of the objective evidence there was real concern about Washington’s capacity (including on the part of Luz), that his capacity could change, and that close to or on the day of the signing meeting medical personnel were of the view that he did not have capacity.

An additional reason why the Court is not satisfied is based on the issue of language. Luz bears the onus of satisfying the Court that the signing meeting was conducted linguistically in a way that ensured Washington knew and approved the contents of the 2021 will. She has not met than onus. There is an irreconcilable difference of recollection (there being no documentary record) between Luz and Mr Whiley of how much interpretation (if any) was required at the signing meeting. Luz recalls the meeting was essentially in English. Mr Whiley recalls what he was saying to Washington having to be interpreted into Spanish. Faced with that difference the Court cannot reach a state of actual satisfaction as what occurred.

However, for two reasons, the Court also finds that on important or unusual (not casual or daily living) matters, Washington needed to be told things in Spanish to ensure he properly understood them:

The Court is not satisfied by the evidence that the key provisions of the 2021 will were explained to Washington in Spanish and that he had the opportunity to respond to any explanation in Spanish. On that further basis the Court is not satisfied that Washington knew and approved the contents of the 2021 will.

Finally, to the extent it was the case that any interpretation was undertaken by Luz, who was an interested beneficiary, and given that Washington was never afforded the opportunity (even without an interpreter) to affirm his understanding to Mr Whiley in the absence of Luz, the Court is also not satisfied that Washington knew and approved the contents of the 2021 will.

Were the Court to find the 2021 Will is invalid, Luz relied on the informal will. It was submitted it does not appear to be in serious dispute that the informal will contains Washington’s testamentary intentions. The only real deficiency is stated to be the lack of witnesses. The Court was invited to conclude, while Washington would have known of the requirement for signing based upon his experience writing wills, Washington would not necessarily have known about the witnessing requirements. Where Washington received a document prepared on his instructions by a solicitor, and which he signed and dated on the execution page, as well as signing all other pages except for one, it was submitted Washington clearly intended the informal will to form his will.

Ms Power submitted that Luz’s evidence (being the only person who saw what happened) was that Washington reviewed and checked the informal will and signed it, though he did not read every page in full. That he intended it to be his will was also evidenced by Washington saying to Luz in the hospital “why do you worry if you are going to be left with everything”.

The plaintiffs’ primary contention is the Court need not exercise its discretion under s 8 of the Act because the Court cannot be satisfied of essential validity (Application by Maggie Riman (Estate of Rita Riman) [2022] NSWSC 872 at [55]). The plaintiffs’ particularly rely on a lack of knowledge and approval in circumstances where Luz was the only witness, she gave the documents to Washington to sign, and on her evidence he turned the pages for a short time, which could have been ten seconds, not actually reading all the pages of a document he had not seen before, before signing.

If the Court did not accept that submission, it was submitted there were also sufficient concerns to create doubt about Washington’s testamentary capacity at the time of signing, bolstered by the fact that the decision to cease treatment and commence palliative care had been made in the day or two prior to signing.

In the alternative, it was submitted the Court would find the requisite intention was not present at the time of signing. Instructions given in preparation of an anticipated testamentary act are not sufficient. Nor can intention usually be demonstrated where a future event to finalise the document is contemplated (Rodny v Weisbord [2020] NSWCA 22 at [19] and [24]). It was pointed out that the document was sent as a draft, it was incomplete with cl 7 still requiring instructions, subsequent amendments were made, no evidence was led about how Washington conceived of the document or his intentions concerning its nature and operative effect, and even Luz’s evidence taken at its highest discloses she did not consider the will to be finalised following Washington signing it.

In oral submissions it was submitted that the fact that there was no evidence as to anything Washington said following the signing, and that urgent and detailed arrangements were made to have the document executed raised further doubt that the document was in fact an informal will, or that anyone, including Washington, considered it to be so.

Section 8 of the Act provides:

Hallen J in Estate of Rita Riman outlined the general principles applying to informal wills, which I gratefully adopt:

In this case the requirement for a document is satisfied. His Honour then went on to consider the second limb of intention:

The informal will consists of a cover page, four pages of operative provisions (each with three signature lines at the bottom marked “Washington Manuel Guamani”, “First Witness” and “Second Witness”), and a fifth page with execution blocks for Washington and the two witnesses. Washington signed his name on the first three pages above his printed name, did not sign the fourth page, and signed and dated in the signature block for his signature on the fifth page.

Clause 7 of the informal will was in this form (highlighting in original):

It should be noted that “TBC” in the passage outlined above was highlighted in the original. The Court accepts Ms Muscat’s primary submission (see [334] above) that s 8 of the Act is not engaged because it has not been shown that Washington knew and approved the contents of the informal will. Luz’s evidence (see [186] above) as the only witness is insufficient to prove that he knew and approved the contents of the document.

Four further matters support that conclusion:

If the foregoing conclusion is incorrect and s 8 of the Act is to be considered, the Court is not satisfied Washington intended the informal will to be his will for two reasons:

For these reasons, Luz’s alternative claim to prove the informal will fails.

It was submitted that if the 2018 will was found to be the last valid will, then Luz was entitled, as the wife of Washington, to receive further provision out of the estate because the provision left to her under the 2018 will was inadequate.

While it was accepted the application for further provision was being brought outside the limitation period imposed by s 58 of the Act, it was submitted an extension of time should be granted pursuant to s 58(2).

It was submitted that Luz’s assets are minimal, and her financial position is precarious. Her income of $3,830 per month is primarily from aged care work, as well as some teaching and house cleaning. However, she is now 55 years old and the work requires physical labour which will become more difficult as she ages. In oral submissions, Ms Power submitted the Court should not find Luz gave false or misleading evidence about her financial position. Instead, Luz’s evidence was always that she sometimes has the opportunity to work additional hours and no challenge was made as to her asset position.

The marriage between Luz and Washington was characterised as “loving, close and happy”. It was submitted Washington financially supported Luz and her two children throughout their relationship, and that after his diagnosis Luz became his full-time carer.

It was submitted the case law clearly supports the conclusion that a widow is entitled to a property absolutely, as well as a sum to meet unforeseen contingencies (Luciano v Rosenblum (1985) 2 NSWLR 65; Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114; Golosky v Golosky [1993] NSWCA 111; Permanent Trustee Co Ltd v Fraser (1995) 36 NSWLR 25). Furthermore, in this case Washington had no children who might advance competing claims.

Luz was submitted to be entitled to funds to enable her to purchase an unencumbered property in the area she is currently living which would require approximately $1,100,000, money to continue her education, and a fund for contingencies.

In response to questions about whether their relationship could be characterised as one of the kind considered in Luciano, Ms Power accepted the relationship was not one of decades. However, she submitted Luz was substantially financially dependent on the deceased. It was also submitted while the amount sought by Luz was in effect the entirety of the estate, Washington’s family in Ecuador would receive his property in Ecuador which was valued between US$95,000 and US$169,000.

Adequate and proper provision out of the estate was submitted to be a lump sum of $1,300,000 plus her costs of the proceedings.

Several concessions were, quite properly, made by Ms Muscat. The extension of time under s 58 was consented to. Luz’s eligibility was conceded, as was the proposition that inadequate provision had been made for her in the 2018 Will. The remaining questions to be answered by the Court were quantum and the structure of the provision to be made.

It was accepted that there is a general duty on a deceased to ensure their widow has secure accommodation, income to continue living in the style they are accustomed to, and a fund for contingencies. However, this duty, it was submitted, is not immutable (Steinmetz; Clarke v Clarke & Anor [2022] NSWSC 1721). It was submitted, however, that Luz was not akin to a spouse of the kind described in Luciano.

It was also submitted that the Court would not accept the price put forward by Luz as necessary to purchase accommodation and that Luz had accepted a suitable property could be purchased for much less than $1,100,000.

Several factors were drawn to attention as weighing against Luz’s claim:

The position of the plaintiffs was that Luz should receive a lump sum of $600,000. This could be used to purchase or contribute to the purchase of a unit or rental expenses. Considering the size of the estate, any sum for contingencies, it was submitted, should be modest, while Luz did not require an income stream as she is still of working age. This would leave each of the plaintiffs with $200,000. These figures were noted to not account for the possibility of CGT.

It was also submitted ancillary orders should be made, requiring Luz to remove the names of her sons from Washington’s death certificate, and lodge the amended death certificate, notarised in the Ecuadorean Embassy, for registration with the Ecuadorean authorities and release all rights to make a claim on any property of Washington in Ecuador.

The legal discourse regarding the rights of a widow begins with Luciano, in which Powell J at 69 stated:

Brereton JA in Steinmetz said:

In his judgment in Steinmetz, agreeing with the guidelines expressed above, White JA stated:

It was common ground that Washington’s assets held in Australia were valued at $1,807,664.14 (being primarily the property), while his property assets held in Ecuador had a value of US$169,220.56. For practical purposes the case was conducted without reference to the assets in Ecuador.

The parties agreed (with one minor reservation) that after expenses and costs, including estimates of fees to NSWTAG and CGT, the net distributable value of the estate is $1,167,551.64. That one reservation was Ms Power noting that the legal costs had all been allowed on the indemnity basis. I accept that may not be the ultimate outcome but have adopted the agreed figure because it is the most conservative and the outcome to which the Court has come will allow the parties to benefit if the final distributable amount is larger.

The question for the Court in relation to the family provision claim was what amount of provision ought to be made for the proper maintenance, education and advancement in life having regard to the facts known to the Court at the time the order is made (s59(2) of the Act). While the task involves an instinctive synthesis of all the facts and circumstances, I will proceed to consider Luz’s claim by reference to the non-exhaustive list of relevant considerations set out in s60(2) of the Act.

[s 60(2)(a) – nature and duration of relationship between Washington and Luz] They were in a relationship for nine years, six of which were as husband and wife. Their relationship began in 2012 when Washington was 67 and Luz was 41 and they married in 2015. While they spent periods apart, there is no suggestion that was as a result of difficulties in the relationship. The Court finds their relationship was a happy one. Washington provided Luz and her children with a home and supported her, although she and her children contributed to the household income. Luz cared for Washington during his final illness.

[s 60(2)(b) Washington’s obligations to Luz and the plaintiffs] Washington had and accepted that he had an obligation to support Luz, notwithstanding that she had some capacity to earn income, and to provide her with a home (she never having owned a property). However, Washington also felt he had an obligation to support his family in Ecuador, including the plaintiffs, and the evidence suggests that one of the reasons he came to Australia was to earn money to support his family in Ecuador. They depended on and benefitted from his financial assistance.

[s 60(2)(c) nature and extent of the estate] The parties agree the net distributable value of the estate is $1,167,551.64 (subject to the matter referred to in [365] above).

[s 60(2)(d) financial resources of the parties] All of the parties have very limited financial resources.

[s 60(2)(e) financial resources of Wendell and Christopher] There was little evidence about this (see [180] above), but what there was is consistent with the Court’s impression from Luz that her children do not have substantial financial resources.

[s 60(2)(f) any disability of any party] There is no evidence that Luz has any relevant disability. Pastora is very elderly and in poor health. Omar suffers from eye issues which mean he cannot work in his occupation and is only able to assist with subsistence farming.

[s 60(2)(g) Luz’s age] Luz is 55 years old.

[s 60(2)(h) Luz’s contribution to the estate] It was common ground that Luz had made no contribution to the acquisition, conservation or improvement of the estate.

[s 60(2)(j) Washington’s testamentary intentions] Even at face value, Luz’s evidence is not consistent as to who he intended to be his beneficiaries. On signing the informal will she records he said “The house here in Australia is for you and the boys to live in. Property and money in Ecuador are for my family in Ecuador” but at the hospital she deposes he said “why do you worry if you are going to be left with everything?” The 2018 will evinces an intention to benefit Luz, but to leave the greater part of his estate to the plaintiffs. However, the relationship between Washington and Luz had clearly grown further by the time of his death. As between the plaintiffs, the 2018 will evinces an intention to treat them equally.

[s 60(2)(k) who was maintaining Luz] While she earned some income, Washington was maintaining Luz as his wife.

[s 60(2)(m) Luz’s character and conduct] Ms Muscat referred to what she described as Luz’s conduct in relation to the will. However, it was never put to Luz that she was somehow suborning or influencing Washington in her favour in relation to the will and the evidence is too circumstantial to enable the Court to make a finding of such seriousness. The Court makes no finding adverse to Luz in relation to this consideration. On the other hand, the Court accepts that Luz was a faithful carer for Washington in his final illness.

[s 60(2)(p) any other relevant matter] I have not overlooked Washington’s generosity in life to the plaintiffs and other family members in Ecuador. However, I do not consider that weakens their claim on his testamentary bounty because I am satisfied that one significant reason for his being in Australia was for him to be able to work to help his family in Ecuador, extending to benefitting them with his testamentary bounty.

The Court does not accept Ms Muscat’s submissions that were directed to taking Luz out of the category of widows who might fall within the Luciano line of cases. Ms Muscat was correct to submit that each case turns on its own circumstances and that the Luciano does not establish an immutable principle. Nevertheless, the line of authority in family provision cases supporting the approach that, absent some particular circumstance, a widow is generally entitled to secure accommodation and some financial resources is longstanding and approved by appellate courts constituted by judges with deep experience in this area. There is nothing in this case which would persuade the Court that such an approach should not apply to Luz.

However, the Court also accepts that the plaintiffs, who are in very poor financial circumstances, also have a substantial claim on Washington’s testamentary bounty. His ongoing financial support of his family in Ecuador was an important part of how his family related to each other, they remained close until his death and there is certainly no suggestion of any conduct on their part that might have justified their exclusion from his intentions.

The estate is not large. Nevertheless, taking all of the evidence and the matters I have set out in [367] to [378] above into account, the Court finds that this is a case where the estate is sufficient to make proper provision for Luz while still giving appropriate recognition to the plaintiffs’ entitlement as beneficiaries under the 2018 will. Two thirds of the distributable estate is $778,367, which I will round up to $780,000. The Court finds that Luz could purchase a suitable two bedroom apartment for $600,000. The provision the Court proposes would then leave $180,000 as a fund for Luz, including for contingencies. She still has some capacity to earn income. If the residue of the estate permits more than $780,000 to be distributed to Luz, she should have the benefit of that uplift so she receives two thirds of the residue.

The balance of the residue should be divided between the plaintiffs equally. On the agreed figures this will give each of them nearly $130,000, which will undoubtedly be of great assistance given their circumstances and give effect to Washington’s intention evident in both life and death to give what support he could to his family in Ecuador.

The parties will be given an opportunity to agree on orders to give effect to these reasons (including to make such submissions as they wish about the form of order foreshadowed in [6(3)] above) and as to costs. I will appoint a further short hearing to resolve any remaining matters in dispute.