Chisak v Presot

1. [1]

   MACFARLAN JA: I agree with White JA.

2. [2]

   GLEESON JA: I agree with White JA.

3. [3]

   WHITE JA: The appellant, Ivy Chisak, challenged the validity of a will signed on 26 April 2017 by the late Lily Savransky who died on 8 September 2017 aged 87. The appellant sought a grant of probate in solemn form of an earlier will made on 3 June 2009. She sought revocation of a grant of probate in common form of the 2017 will made on 15 November 2017.

4. [4]

   The deceased was the appellant’s grandmother. By her will of 2009 the deceased appointed the respondents, Emanuela Presot and Adelina Presot, as her executors and trustees of her will. She gave each of her executors a legacy of $7,500 and gave a legacy of $5,000 each to two other friends, Irene Onis and Anna Savateev. She left the residue of her estate to the appellant upon attaining the age of 25. At the time of the 2009 will the appellant was aged 14. The 2009 will provided that, if the appellant predeceased her leaving no issue, then the residue of the estate should be left as to 50% to Emanuela Presot. She provided for two additional legacies of $10,000 to Irene Onis and Anna Savateev and gave the remainder to Westmead Children’s Hospital.

5. [5]

   The will of 26 April 2017 revoked the 2009 will. It also provided for the appointment of Emanuela Presot and Adelina Presot as executors. The deceased left the whole of her estate to Emanuela Presot, Adelina Presot, Linda Presot, Anna Savateev and the appellant in equal shares as tenants in common. Both wills directed the sale of the deceased’s property in Beatrice Street, Lidcombe, which was the only substantial asset of the estate.

6. [6]

   The appellant claimed that the 2017 will was invalid on the ground that the deceased lacked testamentary capacity and did not know and approve of the contents of the will.

7. [7]

   As the primary judge, Hallen J observed, on no view would the appellant be entitled to a grant of probate of the 2009 will as she was not the executrix named in the will. Nonetheless the substantial issue was whether the grant of probate of the 2017 will should be revoked and probate in solemn form of the 2009 will be granted to the respondents.

8. [8]

   If the appellant failed in her challenge to the 2017 will, she sought an order for provision out of the deceased’s estate pursuant to s 59 of the Succession Act 2006 (NSW). She claimed that she was an eligible applicant for provision on the ground that she was the deceased’s grandchild who was “… at any particular time, … partly dependent upon the deceased” (Succession Act s 57(1)(e)).

9. [9]

   Hallen J held that the deceased did have testamentary capacity and did know and approve of the contents of her 2017 will. His Honour held that the appellant was not an eligible applicant because she was not at any particular time partly dependent upon the deceased. His Honour held that if the last conclusion were wrong, there were factors warranting the making of the application for a family provision order (Succession Act s 59(2)). His Honour held that the 20% share of the estate to which the appellant is entitled under the 2017 will did make adequate provision for her proper maintenance, education or advancement in life.

10. [10]

    Accordingly, the appellant’s claim was dismissed. His Honour ordered that probate in solemn form of the 2017 will be granted to the respondents (Chisak v Presot [2021] NSWSC 597).

11. [11]

    The appellant appeals from those orders. For the reasons which follow, I would dismiss the appeal.

12. [12]

    In these reasons I will refer to the appellant as Ivy, for ease of reading. I intend no disrespect.

The parties and background circumstances

1. [13]

   The deceased was born in January 1930 in China and grew up in the Ukraine (J [94]). She had been divorced from her husband and he died in 2008. They had one child, Lana Cross. Lana Cross married Alex Chisak in 1990. Ivy is their child. She was born in December 1994.

2. [14]

   Lana Cross died in September 1996 when Ivy was still an infant. The primary judge found that Ivy thereafter, at all times, continued to live with her father in various locations in Brisbane and regional New South Wales, although there were two or three occasions between 2000 and 2003 when she visited the deceased and stayed with her for short periods of time (J [97]). Ivy did not see the deceased at any time after 2003. That is, she did not see the deceased at any time after she was eight. Her evidence was that when she was growing up in Brisbane she would regularly speak to the deceased over the telephone, but only by being able to use her great aunt’s telephone. This was because, from 2003, her father would not allow her to see the deceased. After she and her father moved to Jindabyne in 2007 she was no longer able to make the regular telephone calls to the deceased that her great aunt had previously arranged. Thereafter she had no further contact with the deceased.

3. [15]

   Ivy gave evidence that her father refused to allow her to have contact with the deceased. The primary judge found that after Ivy became an adult it was impossible to believe that there were no occasions when she could have contacted the deceased by telephone or otherwise (J [135]).

4. [16]

   Each of the other beneficiaries of the 2017 will had a close relationship with the deceased. Adelina Presot had been friends with the deceased since she and her husband purchased their home in the same street in which the deceased lived in 1965. They were good friends and she provided much assistance to the deceased in various ways over many years.

5. [17]

   Emanuela and Linda Presot are Adelina’s daughters. They knew the deceased all their lives.

6. [18]

   Anna Savateev knew the deceased for approximately 40 years. Their children, when growing up, went to school together and from that time they became friends. Anna Savateev gave evidence of the deceased’s telling her that she was very disappointed about Ivy and was upset that Ivy did not visit her or make any contact with her. She gave evidence that the deceased was particularly disappointed in Ivy because the deceased often sent Ivy a gift on her birthday, or for Christmas, but still there was no contact (J [191]-[192]). She said that the deceased said that she had lost her granddaughter, who never called her or saw her.

7. [19]

   The deceased suffered a stroke on 16 March 2017. She was discharged from hospital on 4 April 2017 (J [100]). She returned to her home where she lived alone, but received assistance from Meals on Wheels, her friends and a community service (J [101]).

8. [20]

   The deceased’s 2009 will had been prepared for her by a solicitor, Mr Jihad Shahrouk, who was employed by a firm known as Berala Law Group. On 26 April 2017 the deceased attended the offices of Berala Law Group without appointment and saw Mr Shahrouk. She had known him when he was a child in her street. She asked if he had time to take instructions for a new will, power of attorney and enduring guardianship.

9. [21]

   Mr Shahrouk took those instructions. He deposed that the deceased said to him words to the effect:

10. [22]

    Mr Shahrouk gave oral evidence that the deceased told him he wanted to give the beneficiaries an equal share (J [229]). This was consistent with his file note. He described the deceased as being “as sharp as a tack” (J [248]).

11. [23]

    Mr Shahrouk arranged for the deceased to attend his office later that day to sign the new will, the enduring power of attorney and instrument appointing enduring guardians. Emanuela and Adelina Presot were appointed her attorneys and enduring guardians. They accompanied the deceased to Mr Shahrouk’s offices later that day. They remained in reception whilst Mr Shahrouk attended on the deceased.

12. [24]

    The primary judge found:

13. [25]

    Two days later the deceased suffered a cardiac arrest. She was taken to hospital and later discharged to another hospital and later again a nursing home for end of life care (J [104]-[107]). She died on 8 September 2017.

Testamentary capacity

1. [26]

   The issue is whether, by reason of the stroke the deceased suffered on 16 March 2017, she lacked capacity to make her will on 26 April 2017.

2. [27]

   As a result of the stroke the deceased suffered from aphasia, that is, a condition arising from damage to the part of the brain responsible for language. She was seen by a speech pathologist whose records were tendered and were said to demonstrate the absence of testamentary capacity and to impugn the evidence of Mr Shahrouk. The speech pathologist was not called. Mr Shahrouk’s evidence was accepted by the primary judge.

3. [28]

   Ivy also relied on the evidence of a psychiatrist, Associate Professor Wijeratne, who initially concluded from his review of the medical records that the deceased suffered from dementia. That opinion was rejected by Associate Professor Rosenfeld, called by the respondents. Dr Wijeratne later modified his opinion, in that although he did not expressly withdraw his earlier diagnosis, he said that the deceased suffered a depressive disorder that deprived her of testamentary capacity. The primary judge preferred the contrary opinions of Dr Rosenfeld.

4. [29]

   The deceased’s native language was Russian. After admission to hospital following her stroke she was administrated examinations designed to assess cognitive impairment known as RUDAS and MoCA tests. She performed poorly on those tests, including one administered by a Russian speaker.

5. [30]

   The primary judge said:

6. [31]

   The primary judge accepted Dr Rosenfeld’s opinions. He was entitled to do so.

7. [32]

   The primary judge quoted reports of the speech pathologist from 16 March 2017 to 28 April 2017 (of a visit on 27 April 2017) (J [262]).

8. [33]

   Ivy submitted that the primary judge failed to consider that on 27 April 2017 the deceased “continued to present with aphasia and with aspects of cognition also impacting communication”.

9. [34]

   The speech pathologist’s record of the visit on 27 April 2017 was as follows:

10. [35]

    This report does not indicate that the deceased lacked testamentary capacity. It indicates difficulty with language, but not cognition. It does not indicate that the deceased would not have known the effect of making a new will, nor that she would not have appreciated her estate (which substantially consisted of the house in which she lived), nor that she would not have been capable of weighing the claims on her testamentary bounty, being her friends for whom she had previously made provision in her 2009 will and her granddaughter.

11. [36]

    The report raises a question as to whether the deceased could have talked to Mr Shahrouk in the way to which he deposed. But Mr Shahrouk was a disinterested witness whose credit the primary judge accepted and whose evidence in its most important respect (that the beneficiaries share equally) was supported by a contemporaneous file note.

12. [37]

    Ivy submitted that the primary judge did not give reasons for preferring the evidence of Dr Rosenfeld to that of Dr Wijeratne. I do not agree. His Honour said:

13. [38]

    To these reasons I would add that, given the nature of the deceased’s alleged incapacity, Dr Wijeratne’s expertise as a psychiatrist was less relevant than Dr Rosenfeld’s extensive expertise as a geriatrician specialising in the assessment, diagnosis and management of cognitive dysfunction and dementia, including with patients who had suffered a stroke. Moreover, Dr Wijeratne’s expertise to opine on the deceased’s testamentary capacity was seriously called into question by his initial diagnosis that the deceased suffered from dementia: a diagnosis to which he did not subsequently adhere. Further, Dr Wijeratne did not explain why what he characterised as the deceased’s depressed mood, would have affected her ability to weigh the competing claims on her testamentary bounty. The primary judge did not find that the deceased suffered from depression, rather than anxiety about a possible future stroke. There is no reason to doubt that finding.

14. [39]

    For these reasons I reject Ivy’s appeal on the ground that the deceased lacked testamentary capacity. No separate submissions were advanced on the issue of whether the deceased knew and approved the contents of her will. Given the primary judge’s acceptance of Mr Shahrouk’s evidence, which should not be disturbed, that ground of appeal also fails.

15. [40]

    Accordingly, the primary judge did not err in granting probate in solemn form to the will of 26 April 2017.

Family provision claim: Eligibility

1. [41]

   Section 57(1)(e) of the Succession Act provides that an eligible applicant for a family provision order includes:

2. [42]

   Ivy deposed that in about 2000 when she was five years old she stayed with her grandmother in the deceased’s Lidcombe home for about a month. She deposed that she stayed with the deceased on three or four occasions between 2000 and 2003 for about three weeks up to about a month. As noted above, the primary judge accepted that on two or three occasions between 2000 and 2003 Ivy stayed with her grandmother for short periods of time (at [14] above). His Honour found that these periods of stay when Ivy was a young child did not make her an eligible applicant. His Honour said:

3. [43]

   After citing authorities addressed below, his Honour continued:

4. [44]

   With respect, the primary judge’s observations at J [329] conflate the question of whether a grandchild is an eligible applicant because he or she was, at any particular time, wholly or partly dependent on the deceased, with the questions as to whether there are factors which warrant a grandchild making the application for a family provision order (s 59(1)(b)), and whether the grandparent owed a moral obligation to make provision for the grandchild for his or her proper maintenance, education or advancement in life (s 59(1)(c)). On the question of whether the grandchild is an eligible applicant under s 57(1)(e)(i) the question is not whether the grandparent assumed a continuing responsibility for the grandchild’s maintenance, education or advancement in life, but whether, for a particular time, the grandchild was wholly or partly dependent on his or her grandparent. The Victorian cases cited (Leahey v Trescowthick [1999] VSC 409, and MacEwan Shaw v Shaw (2003) 11 VR 95; [2003] VSC 318) concern the interpretation of s 91(1) of the Administration and Probate Act 1958 (Vic), as it then stood, which did not specify any particular class or classes of applicants, but authorised the making of provision out of the deceased’s estate for the proper maintenance and support of a person for whom the deceased had responsibility to make provision.

5. [45]

   In Simons v Permanent Trustee Co Ltd: Estate D. Hakim [2005] NSWSC 223, Palmer J, referring to s 6(1)(d) of the Family Provision Act 1982 (NSW) (which was in materially the same terms as s 57(1)(e) of the Succession Act) said:

6. [46]

   However, it is not correct that dependency is limited to dependency on the provision of financial or other material assistance (Petrohilos v Hunter (1991) 25 NSWLR 343 at 346-347). As Hope AJA, with the concurrence of Clarke and Sheller JJ, said in that case, a young child is properly and commonly said to be dependent on his or her mother as well as his or her father, regardless of where the money comes from.

7. [47]

   The phrase “partly dependent” means at least “more than minimally” and perhaps “significantly”, although not “substantially” (McKenzie v Baddeley [1991] NSWCA 197 at [4]). In Alexander v Jansson [2010] NSWCA 176 Brereton J (as his Honour then was), with whose reasons Basten JA and Handley AJA agreed, accepted that “partly dependent” involved more than “minimal” dependence (at [13]).

8. [48]

   In Simons v Permanent Trustee Co Ltd, Palmer J did not regard the fact that the deceased took his grandson on holidays as establishing that, for the period of the holidays, the grandson was dependent upon his grandfather (at [33] and [44]). In Sherborne Estate: Vanvalen & Anor v Neaves & Anor [2005] NSWSC 593, Palmer J did not accept that a granddaughter was “for a particular time” dependent on her grandmother when she stayed, with her mother, with the deceased on the deceased’s farm when she was 7 and spent school holidays at the deceased’s farm when she was aged between 12 and 16. In relation to the latter period, Palmer J said (at [47]) that if the deceased provided the granddaughter with free board and lodging during her school holidays, her actions were more properly to be seen as offering hospitality, rather than undertaking responsibility towards her maintenance and support akin to that of parental responsibility.

9. [49]

   With respect, that approach conflates the question of dependency with the questions as to whether there are factors that would warrant the making of the application for a family provision order and whether the deceased had an obligation to make provision for the grandchild.

10. [50]

    In Page v Page [2017] NSWCA 141, Basten JA said that the statutory content of s 57(1)(e) required a more limited reading of dependency than its ordinary meaning, and required the phrase “a person who was, at any particular time, wholly or partly dependent on the deceased” to be understood as referring to a dependency that gave rise to a statutory obligation to make provision from the deceased’s estate for that person’s maintenance, education or advancement in life (at [8]).

11. [51]

    That approach was consistent with the earlier decisions of Palmer J referred to above. However, neither Leeming JA nor Sackville AJA adopted this approach.

12. [52]

    The issue was later addressed by this court in Spata v Turino (2018) 95 NSWLR 706; [2018] NSWCA 17. Payne JA, with whom Macfarlan JA agreed, held (at [71]-[72]) that a restrictive meaning of “dependent” in s 57(1)(e) should not be adopted, given that it is a remedial and beneficial provision. A narrow meaning was not warranted, given the provision provides for dependence to be assessed “at any particular time” and the applicant need show only that he or she was partly dependent on the deceased.

13. [53]

    Payne JA rejected the approach of earlier decisions of Young J (as his Honour then was) in Clinch v Swift (Supreme Court, Young J, 13 October 1986, unreported) and Shaw v Lambert (Supreme Court, Young J, 9 October 1987, unreported) that where dependence is assessed based on the provision of accommodation, the accommodation must be provided directly to the applicant, because of the relationship between the applicant and the deceased, and not indirectly as where the accommodation is provided to a child and the child’s spouse or child (at [73]-[78]).

14. [54]

    Sackville AJA, with whose reasons Macfarlan JA also agreed, said (at [139]):

15. [55]

    Ivy deposed that she stayed with the deceased for about one month when she was 5 years of age (in 2000) and stayed with her for periods of about three weeks up to about a month at a time on three or four occasions between 2000 and 2003. She deposed that the deceased took care of her when she lived with her during those periods. The primary judge accepted that there were at least two or three such visits. During those visits, it can be inferred that the deceased assumed parental responsibility for Ivy who was then a young girl. It can be inferred that, for those particular periods of time, she was dependent on her grandmother.

16. [56]

    It could be said that a baby left in the care of grandparents for a few hours or overnight, who needs to be fed and changed, is dependent for that particular period of time on his or her grandparents. But such periods of dependence would be minimal. I do not think that dependence for a few weeks or a month on two, three or four occasions could be regarded as minimal. The question under s 57(1)(e) is whether “at any particular time” Ivy was partly dependent on the deceased. No doubt Ivy remained dependent on her father but that does not mean that she was not partly dependent for the particular periods of time in which she stayed with the deceased on her.

17. [57]

    I respectfully doubt that it is legitimate to read into s 59(1)(e) a requirement that partial dependency be “significant” rather than “more than minimal”. Section 57(1)(e) is merely a gateway for the court to consider whether there are factors that warrant the making of an application for provision by a grandchild out of his or her grandparent’s estate (s 59(1)(b)), and if so, whether provision ought to be ordered (s 59(1)(c)). The degree of dependence for a particular period of time will no doubt be relevant to those issues. With due deference to the reasons of Palmer J in Simons v Permanent Trustee and Re: Sherborne Estate and Basten JA in Page v Page, I do not think it appropriate to conflate questions relevant to those issues, such as whether the degree of dependence was such that the grandparent assumed parental responsibility for the grandchild, with the factual question of whether the grandchild did depend on the deceased for particular periods of time. I do not accept the primary judge’s reasons on this issue at J [329] quoted above.

18. [58]

    I conclude that Ivy passed the threshold of establishing that she was an eligible applicant.

19. [59]

    The primary judge held that if Ivy were an eligible applicant, there were factors which warranted the making of the application (s 59(1)(b)). That issue turns on whether she would be generally regarded as a natural object of the deceased’s testamentary recognition. This requirement was satisfied. The deceased did recognise Ivy as an object of her testamentary bounty. She provided her with one fifth of her estate (at J [343]).

20. [60]

    Although the primary judge concluded that Ivy was not an eligible applicant, he nonetheless went on to consider whether, if she were an eligible applicant, the provision made for her in the deceased’s will was inadequate for her proper maintenance, education or advancement in life (Succession Act s 59(2)). His Honour concluded that Ivy’s 20% share under the deceased’s will was not less than adequate for her proper maintenance, education or advancement in life. After addressing the relationship between the deceased and Ivy, the size of the deceased’s estate, Ivy’s evidence as to her financial position, her accommodation, health, including mental health issues, and social isolation, his Honour concluded:

21. [61]

    This was an evaluative decision to which the principles in House v The King (1936) 55 CLR 499 at 504-505, which are applicable to the appellate review of discretionary decisions, apply (Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 at 212).

22. [62]

    The primary judge did not proceed on the basis of any wrong principle, nor have regard to irrelevant considerations. Nor did he fail to take account of any material consideration. Nor did he misstate the facts. No such error that might attract appellate intervention was identified in the grounds of appeal, nor in the appellant’s submissions. In her written submissions, Ivy submitted that a provision of one fifth of the estate was not adequate provision for her having regard to:

23. [63]

    It was submitted that adequate provision would be in the order of 50-60% of the estate by reason of Ivy’s mental illnesses, poor financial position and significant need for accommodation.

24. [64]

    These were all matters considered and weighed by the primary judge. In Singer v Berghouse the majority (Mason CJ, Deane and McHugh JJ) quoted with approval comments of Kirby P in Golosky v Golosky [1993] NSWCA 111, which are applicable to the present case. Kirby P said:

25. [65]

    For these reasons I would dismiss the appeal with costs.