Wild v Meduri & Ors; Meduri & Anor v Neal & Anor; Meduri v Meduri & Ors

These reasons relate to three sad conjoined cases in which there appears to be a great deal of discord between some of the parties, who are family members. The antagonism appears to be deep, bitter, and, in all probability, reasonably longstanding. Combined with a disunited family member who considers that the testamentary intentions of a parent revealed by the Will subject to dispute are “unfair” (Tcpt, 9 November 2022, p 490(22-29)), it has led to the cases between adult children of the deceased being heard over 11 days and has caused the parties to incur substantial costs.

Pertinent to two of the proceedings is what I wrote in Fulton v Fulton [2014] NSWSC 619 at [1]:

Elisabetta Meduri (who was also known as Elizabeth Meduri, Elisabetta Palmisano Meduri, which name was said by the Plaintiff to be her “legal name” by reference to her passport, and also Elizabeth Pelmisano Meduri on some documents: Affidavit, Rose Marie Wild, 22 October 2022 at par 5) (the deceased), died on 8 June 2020, leaving property, of reasonably large value, in New South Wales. She was, then, 98 years old.

The deceased left a professionally drawn Will dated 18 September 2009. One of the proceedings concerns the validity of this Will. Without prejudgment, I shall refer to the Will as “the 2009 Will”.

The deceased’s only husband, Giuseppe Meduri, predeceased her, having died on 26 July 2009. He is the father of the children to whom I shall next refer. The deceased did not marry, or enter into a de facto relationship with, any person, after the death of Giuseppe.

The deceased left surviving her six, now adult, children. They are Concetta (Connie), who was born in Italy in March 1950, and who is almost 73 years old; Rosa (Rose), who was born in Italy in September 1952, and who is currently 70 years old; Antonio (Tony), who was born in Italy 1954, and who is currently 68 years old; Dominico (Dominic), who was born in Australia in March 1961, and who is almost 62 years old; Giuseppe Jnr (Joseph), who was born in Australia in June 1962, and who is currently 60 years old; and Giovanni (John), who was born in Australia in January 1967, and who is currently 55 years old.

Four of these children are parties to one, or other, of the proceedings. These children are Rose Marie Wild, the Plaintiff in the proceedings (2020/239852), to which I shall refer as “the Probate proceedings”; Dominic Meduri (who is sometimes referred to as “Mick”) and John Meduri, who are the Plaintiffs in the associated proceedings (2021/91132), to which I shall refer as “the trust proceedings” (even though other relief is sought); and Joseph Meduri, the Plaintiff in the associated proceedings (2021/144417), to which I shall refer as “Joseph’s proceedings”, in which he makes a claim for a family provision order under the Succession Act 2006 (NSW) (“the Act”). I shall return to the nature of the relief sought in the different proceedings later in these reasons.

The two other children of the deceased are Connie Di Maria and Tony Meduri, who, whilst not parties to any of the proceedings, were both to be witnesses in one, or more, of them. Each had sworn affidavits that had been filed and served. However, only Tony’s affidavits were read, and only he was cross-examined.

It became apparent, at the commencement of the hearing, that Connie’s affidavits were not being read, and that she was unlikely to be called as a witness in the proceedings. No reasons for not reading her evidence were expressly given.

A subpoena to attend and to give evidence, issued and served by Rose, did not result in Connie appearing, and no steps were taken, subsequently, to ensure her attendance to give evidence or to be cross-examined.

David Jamie Di Maria, who is Connie’s son, and who had made an affidavit that had been served by Rose in the Probate proceedings, also was not a witness whose affidavit, initially, was read: Tcpt, 1 November 2022, p 58(46-50). At the commencement of the hearing, senior counsel for Rose made an application for leave to issue a subpoena to attend and to give evidence upon David, which leave was granted without opposition: Tcpt, 1 November 2022, p 12(41)-13(49). The subpoena was to be returnable on 10 November 2022.

An affidavit of a licensed process server, Clinton Portors, sworn on 8 November 2022, confirms that the subpoena was served upon David on 3 November 2022. However, this did not result in David appearing.

On the sixth day of the hearing, upon application by Rose, David’s affidavit, sworn 23 May 2021, after objections were made, was read. Submissions were made going to the weight that should be attributed to the affidavit: Tcpt, 10 November 2022, p 579(46)-580(11).

I shall return to the consequences, if any, of the failure to call Connie, and the weight to be given to David’s evidence, later in these reasons.

Without intending to convey undue familiarity, and for the sake of clarity, simplicity and convenience, I shall refer, hereafter, to the children of the deceased and other family members, after introduction, by her, or his, Anglicized first name.

By orders made, consensually, and entered on 26 March 2021, by Ward CJ in Eq (as the President of the Court of Appeal then was), the Court appointed Mr R J Neal, an extremely experienced solicitor in succession matters, as the interim administrator pendente lite and receiver of the estate of the deceased, with the powers identified in the Short Minutes of Order, in accordance with which her Honour made the orders and notations. A copy of the orders was included in the master bundle of documents provided to the Court and marked Ex. MB1 (Ex. MB1/440). A notice of motion, filed by Rose on 18 December 2020, was otherwise dismissed. It is not necessary to repeat the orders that were otherwise made, or to identify the powers given to Mr Neal.

No complaints were made about Mr Neal’s conduct as the interim administrator of the deceased’s estate, and it is clear, from evidence tendered, that he has kept the parties regularly informed of the steps he has taken in the course of the administration. A copy of a number of different written reports, from Mr Neal, were included, amongst other documents, in Ex. MB1, each of which identifies, amongst other things, the state of his investigations. The last report, in evidence, was the Interim Administrator’s Revised Report No. 17 dated 12 September 2022.

It is not necessary to refer to the contents of any of the Interim Administrator’s Reports. However, included in the information provided by Mr Neal was that he had caused to be lodged 11 outstanding tax returns on behalf of the deceased for the period from 1 July 2009 to her date of death on 8 June 2020 and that the tax payable for that period was $10,860, which amount he had paid from funds held in the estate: Ex. MB1/556-567.

Mr Neal was not, initially, a party in the Probate proceedings, but on the fifth day of the hearing, without opposition, an order was made that he be added as a party/Defendant. The Court dispensed with any requirement to file and serve an amended Statement of Claim and Cross Claim. The Defendants named in the Probate proceedings are now Dominic, John and Mr Neal.

In the trust proceedings, Mr Neal is the first Defendant and Rose is the second Defendant. (Mr Neal became a party to the proceedings in order to represent the estate of the deceased, whilst Rose was named as the second Defendant “in order that she be bound by the outcome of the proceedings”). She did not object to her joinder as a party necessary to the determination of all matters in dispute in these proceedings. Indeed, she was the party, effectively, conducting the defence of those proceedings.

Joseph suffers from chronic schizophrenia and co-morbid global cognitive impairment. His estate is under the management of the NSW Trustee and Guardian (to which I shall hereafter refer as the NSWT&G). He is a person under a legal incapacity: s 3 of the Civil Procedure Act 2005 (NSW). The NSW Civil and Administrative Tribunal made the financial management order, committing his estate to the NSWT&G on 22 July 2019: Ex. MB1/343-346. The order was reviewed on 20 January 2020 and the Tribunal determined that it “was not a matter where [it] should direct that the order be reviewed within a specified period” leaving it “for consideration at some time in the future should [Joseph’s] life circumstances settle again. An interested person may apply for a review of the order if appropriate”: Ex. MB1/374.

In Joseph’s proceedings, Dominic and John are named as the first and second Defendants, whilst Mr Neal is named as the third Defendant. As will be read, these proceedings were not the subject of real contest between the parties, and his legal representatives, whilst appearing at different times, played only a small part during the hearing.

On 8 December 2022, Ms P J Muscat, counsel for Joseph, forwarded to the Court alternative forms of order in Joseph’s proceedings. No specific agreement had been reached as to which of the alternatives provided “adequate and proper” provision in all the circumstances, although none of the parties affected by the making of orders in Joseph’s proceedings disputed that one, or other, form of provision, at the time the Court was considering the application, was appropriate. The more significant area of dispute was the part, or parts, of the estate out of which the provision is to be provided.

On 3 February 2023, whilst judgement was reserved, Joseph’s legal representatives, without opposition, sent to the Court, a document headed “Memorandum - Resolution of Plaintiff’s Case” which provided the way in which the parties had agreed to resolve Joseph’s proceedings depending on how the Court determined the Probate proceedings and the trust proceedings. It will be necessary to refer to this document later in these reasons, although it is to be remembered that in a claim for a family provision order the role of the Court is to consider the terms of the proposed orders with the Court to be satisfied, on the evidence available before it, that such an order for provision is one that ought to be made. This, of course, involves a consideration of whether adequate provision has been made to the applicant. Without such a consideration, the Court does not have jurisdiction to make an order: Daley v Donaldson [2021] NSWSC 1507; upheld on appeal in Daley v Donaldson [2022] NSWCA 96.

As often occurs where there are different Plaintiffs, in separate proceedings, making different Probate claims, or where there are other claims brought against the same estate, the parties here, well before the commencement of the hearing, agreed that the proceedings should be heard consecutively, with the evidence in one being evidence in the other, so far as material. No notice of motion seeking orders to that effect was filed, but in the circumstances, that was unnecessary.

In my view, the approach was sensible, practical, purposive, and an appropriate one, as there were unlikely to be any difficulties in terms of trial management, the complexity of procedural issues, or in determining the cross-admissibility of evidence. In addition, there were common lay witnesses; factual, and credit, issues that overlap, that were, or that may have been, relevant to the claims, to be determined, thereby avoiding the unsatisfactory prospect of judgments with conflicting findings on the same issues and the possibility of different appeals, with potential delays, if the proceedings were not heard and determined at the same time. In addition, the just, cheap and quick hearing of all of the matters in dispute would be facilitated with the most efficient and expedient use of resources, for the parties, and, by implication, the Court. There were no compensating advantages to be derived from taking a different course.

Whilst there would not necessarily be a substantial saving of time if the proceedings were tried separately, hearing them together did not add to the total length of the hearing: Humphreys v Newport Quays Stage 2A Pty Ltd [2009] FCA 699 at [11] (Besanko J); Bolinger v Bell (No 2) [2022] NSWSC 1495 at [206].

Additionally, by agreement of the parties, and in order to save costs, Joseph’s proceedings were left discrete, in the sense that his legal representatives appeared as, and when, required rather than throughout the hearing. None of the evidence filed and served in his case was challenged and it was read without objection. None of the deponents were cross-examined. It was only necessary for submissions to be made, and this, in the events that happened, was done in writing.

For all of these reasons, it was “desirable” to make such an order: Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 28.5. Shortly after the commencement of the hearing, with the consent of the parties, and in the exercise of the Court’s discretion, I made an order to that effect: Tcpt, 1 November 2022, p 3(29-43).

It is also convenient to deal with the proceedings together, in these reasons for judgment, although I shall differentiate between them where necessary. It is the nature of the different proceedings, the vast amount of evidence, written and oral, and the submissions, oral and in writing, that has resulted in these extremely lengthy reasons for judgment.

Naturally, it has not been possible to refer to all of the evidence and to indicate which of it is accepted or rejected, or to outline all of the submissions, oral and written. It should not be thought, merely because a specific reference is not made to particular evidence, or to a particular submission, that it has not been considered.

At the hearing, Mr M Condon SC, with Mr N Kirby of counsel (on some days), instructed by Ms A J McIntyre, solicitor, of McIntyre Legal, appeared for Rose; Ms J Needham SC, with Mr A Joseph of counsel, instructed by Mr M Puleo, solicitor, of Puleo Lawyers, appeared for Dominic and John. Ms Muscat, instructed by Ms S Macmillan, solicitor, of the NSW Trustee and Guardian, appeared, when considered necessary, for Joseph. Mr C Tam of counsel, instructed, in Court, by Ms S Wynne, solicitor, of Teece Hodgson & Ward, appeared for Mr Neal, when considered necessary.

(I shall refer to Mr Matthew Puleo as Mr Puleo Jnr to differentiate him from his father, Mr John Joseph Puleo (to whom I shall refer as Mr Puleo), who is a witness in the Probate proceedings, being the solicitor who took instructions for, who prepared the 2009 Will, and who was one of the attesting witnesses to the deceased’s signature, by her mark, on that Will.)

The legal representatives provided the Court with comprehensive, and extremely detailed, written submissions and schedules that summarised the affidavit evidence, the medical records, and the legal principles. They engaged in a careful evaluation of the scope and nature of the facts in issue which I have carefully considered.

I am indebted to all of the legal representatives for their, her, and his, work in enabling the proceedings, and the hearing, to be dealt with in the way that they were, and it was. I am most grateful for the assistance provided by them.

It was also refreshing to observe that, despite any disharmony that may have existed between family members, and the trenchant opposition to Dominic’s and John’s claims by Rose, the legal representatives of the parties were able to co-operate with each other, and with the Court, in complying with the obligations imposed under s 56 of the Civil Procedure Act 2005 (NSW). At no stage did the dynamics of the trial deteriorate. Indeed, until its conclusion, counsel and solicitors maintained a level of courtesy and co-operation, with each other, that is to be admired.

On 20 June 2020, less than 3 weeks after the death of the deceased, Rose, met with her solicitor, Ms McIntyre, for the first time, to discuss the deceased’s estate. Subsequently, at the written request of Ms McInytre, Mr Puleo, forwarded a copy of the 2009 Will to her.

On 7 July 2020, Dominic and John, as the executors named in the 2009 Will, published a notice of intended application for Probate of the 2009 Will on the NSW Online Registry website.

On 15 July 2020, Rose filed a caveat requiring that no grant of Probate be made to Dominic and John in respect of the deceased’s estate without prior notice to her.

The Supreme Court Rules 1970 (NSW), rule 78.66, relevantly, provides that a person who claims to have an interest in an estate may file a caveat in respect of any grant of Probate or administration, being made in respect of the estate. The caveat must state fully the nature of the interest claimed by the caveator and an address for service. This type of caveat is described as a general caveat.

The appropriate form of caveat to raise a ground of invalidity of a will, other than because of a want of proper execution, is the general caveat: Azzopardi v Smart (The Estate of Alice Ann Smart) (1992) 27 NSWLR 232 at 238 (Powell J), applying Beatson v Perry (1906) 6 SR (NSW) 167; Robertson v Barker [2021] NSWSC 1682 at [5].

As a child of the deceased who is entitled to a share of the estate under the operation of the rules of intestacy, Rose has an “interest” in the deceased’s estate and has standing to challenge the validity of the 2009 Will: Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 at [212]-[213] (Lindsay J); Lim v Lim [2022] NSWSC 454 at [18].

On 17 August 2020, Rose published, on the NSW Online Registry website, a notice of her intended application for administration of the deceased’s estate in the Probate proceedings. The notice referred to the fact that the deceased had left a Will dated 18 September 2009 but asserted that it was not a valid Will.

Rose commenced the Probate proceedings by verified Statement of Claim filed on 24 August 2020. She sought an order that letters of administration of the deceased’s estate, on intestacy, be granted to her. She also sought consequential relief.

Dominic and John, in a verified Cross Claim filed on 1 October 2020, propounded the 2009 Will. The original of that Will was subsequently delivered to the Probate Registry. At the commencement of the hearing, it was marked as Ex. W and it remains on the Court file.

In her Defence to the Cross Claim, filed on 15 October 2020, Rose asserted that the 2009 Will was not a valid Will, upon the basis that the deceased did not have testamentary capacity; that the deceased did not place her mark on the foot of each page of the 2009 Will; that the deceased was unable to read, or write, any language; and that she could not speak, or understand, the English language, with the consequence that the deceased did not know and approve the contents of the 2009 Will.

In an affidavit made on 12 October 2020, Rose detailed the searches that had been carried out, on her behalf, to locate any testamentary documents of the deceased. This included sending correspondence to Puleo Lawyers, and to the NSWT&G enquiring whether each held any prior wills made by the deceased.

In an email dated 6 July 2020, Puleo Lawyers confirmed to McIntyre Lawyers that “we do not hold any prior Wills of Mrs Elisabetta Meduri”: Ex. MB1/250. In an email dated 13 July 2020, Puleo Lawyers also confirmed that “we are not aware of the existence of any prior Wills made by the deceased”: Ex. MB1/252.

A copy of the “Certificate as to Result of Search for Will”, dated 12 October 2020, from the “Wills Custodian” of the NSWT&G is in evidence: Ex. MB1/253. It revealed that the NSWT&G held no record of any Will made by the deceased or any other documents being found.

Rose also gave evidence that she was not aware of any testamentary documents being found at the Fairfield Nursing Home, where the deceased had resided prior to her death: Affidavit, Rose Marie Wild, 12 October 2020 at par 10.

Various other enquiries were made to Dominic’s and John’s solicitors, by Rose’s solicitors, in late 2020, including by letters dated 20 October 2020, 22 October 2020, 9 November 2020, 17 November 2020, 23 November 2020, 24 November 2020 and 7 December 2020, going to, amongst other things, the nature and value of the deceased’s estate. Some of the enquiries were responded to by letters dated 11 November 2020, 20 November 2020 and 25 November 2020 from Dominic’s and John’s solicitors.

A mediation, which was unsuccessful, took place on 10 December 2020.

The parties agreed that the evidence in support of the Cross Claim would be read first, and the lay witnesses, whose affidavits were read, and who were required for cross-examination, would be cross-examined. Then, Rose and her witnesses, who were required for cross-examination, would be cross-examined. Finally, the two experts, jointly appointed, would be called.

Ultimately, Rose did not challenge the formal validity of the 2009 Will. Importantly, and relevantly, by the conclusion of the hearing, she did not dispute that the deceased had placed her mark where it appeared on the 2009 Will.

There was no dispute that Dominic and John bear the ultimate onus of proving the validity of the 2009 Will, and that, if they are unable to satisfy the Court of the validity of the 2009 Will, then the deceased died intestate. Since no other Will of the deceased has been found, and none of the parties, or other witnesses, have disclosed knowledge of any other testamentary instrument of the deceased, an order for administration on intestacy would be made.

On intestacy, as the deceased left no spouse, de jure or de facto, but left issue, being the six children of the deceased and Giuseppe, they share equally the whole of the intestate estate: s 127 of the Act.

One complicating factor in the Probate proceedings was the diametrically opposed lay evidence about the medical condition and mental state of the deceased at, or about, the time she made the 2009 Will. I shall refer to some of the evidence later in these reasons. There were no contemporaneous records that could be used to determine whose account of events at various times was to be believed. A second was that, whilst there was an enormous volume of medical evidence adduced on the question of the deceased’s testamentary capacity, a significant part thereof related to her condition after September 2009. A third was that there was no medical expert who saw the deceased with a view to assessing her capacity at, or near, the date the 2009 Will was made.

There were, however, contemporaneous progress notes of her treating general medical practitioner, Dr Francesco Romeo, hospital records of various attendances by the deceased, both before and after the 2009 Will was executed, and two contemporaneous reports provided in 2014 and 2015 by an expert, Dr Mariam Doreen Joseph, who saw the deceased then. There were also two expert witness who had not seen the deceased but who expressed opinions on her medical condition based upon, amongst other things, the medical records to which I have referred.

(As will be read, I shall not devote the same amount of time in these reasons to the evidence about the deceased’s medical condition after September 2009 as did the parties. I shall, where necessary, refer to that evidence, all of which I have read and considered. However, disputes in the lay evidence about the way in which the deceased acted, for example, after late 2010, and what the medical records reveal, for example, between 2011 and 2015, do not seem to me to be determinative of the deceased’s capacity in September 2009.)

More than once during the various directions hearings, the Court encouraged the parties to agree that whatever the result of the Probate proceedings, bearing in mind the nature and value of the deceased’s estate, the relationship between family members, and because Mr Neal had been administering the estate, that, perhaps, he should be appointed, as the independent administrator, to obtain the final grant.

By the commencement of the hearing, the parties had all agreed to that course, and confirmed that Mr Neal should obtain the grant of administration with the 2009 Will annexed, or, alternatively, obtain a grant of letters of administration on intestacy: Tcpt, 1 November 2022, p 3(44)-4(3). Mr Neal consented to obtaining the grant whether it be of letters of administration with the 2009 Will annexed, or of administration on intestacy. Hopefully, this will provide a solution which is the most cost effective and timely so that the estate of the deceased will be able to be collected and distributed without further litigation in relation to its administration.

There is an affidavit of Jessica Lauren Woodhouse affirmed on 12 October 2020, relating to service of Rose’s application for letters of administration on Connie, Tony and Joseph, by his tutor, the NSWT&G. I am satisfied that Connie, and Tony have been given notice of all of the proceedings: Affidavit of Perry Gamsby, 27 October 2022; Affidavit of John David Maitland, 25 February 2022 (in relation to the family provision proceedings). Neither has filed an Appearance, or been represented, at the hearing.

Relevantly, Dominic and John initially relied upon a verified amended Statement of Claim on 1 September 2021 in which they sought a declaration that a property situated at Herbert Street, Kemps Creek (“the Kemps Creek property”) is held on trust by the estate, for them, as tenants in common in equal shares. They also sought consequential orders if the declaration were made.

The trust claim was said to arise “out of their reliance on their parents’ promises that they would have beneficial ownership of the [Kemps Creek] property, and [the parent’s] encouragement that they should make improvements and renovations, which gives rise to a proprietary estoppel in their favour against the estate of the deceased”.

Whether there was such a promise, or assurance, or were such promises or assurances, and if so, what was, or were, its terms, must be ascertained by reference to the words and conduct of those involved and the context in which the words were said to have been spoken.

Dominic and John also asserted that, on the basis of the improvements made by them to the Kemps Creek property, and their effort and expenditure on the upkeep and maintenance thereof, they were entitled to an account or enquiry, if necessary, as to the beneficial ownership of the Kemps Creek property.

In the alternative, each sought a family provision order under the Act. Because this claim was not commenced within time (within 12 months of the date of the deceased’s death), they also sought an order under s 58 of the Act, extending the time for the making of the application for the family provision order, respectively, until the date of the filing of the amended Statement of Claim.

A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Relevantly, the Act applies in respect of the estate or notional estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009.

At the commencement of the hearing, Dominic and John sought leave to file a further amended Statement of Claim. The Court was informed that the differences were the striking out of the words in prayers 4 and 5, and the striking out in para 30. I gathered that the amendments had arisen because they no longer sought the family provision order by way of alternative relief. Each is making the claim for a family provision order, whether or not he succeeds, in the claim based upon estoppel. The basis of the amendment, as submitted, was because the burden of the costs of the various proceedings, if ordered to be paid out of the estate of the deceased, would impact, significantly, upon what each received: Tcpt, 1 November 2022, p 4(23-42).

Since there was no objection to the filing of the further amended Statement of Claim, the Court granted leave for it to be filed by Dominic and John. A subsequent search of Justice Link reveals that later, on the first day of the hearing, the further amended Statement of Claim had been filed.

Dominic and John accepted that if the 2009 Will is found to be the last valid Will of the deceased, the estoppel aspect of the trust claim should be dismissed. If the 2009 Will is found to be invalid, Dominic and John press that claim. Notwithstanding the outcome of the Probate, or the estoppel aspect of the trust claim, each now maintains the claim for a family provision order to enable them to remain in the Kemps Creek property.

In her Defence to the amended Statement of Claim filed on 14 September 2021, Rose denied any entitlement of Dominic and John, by way of a trust, to the Kemps Creek property. She specifically denied that Giuseppe and the deceased made any promises or assurances, testamentary or otherwise, to Dominic and John absolutely, on the basis that they would not have a claim on any other real estate owned by Giuseppe and/or the deceased.

Counsel for Rose stated, in answer to a question from the Bench, that if the family provision claims by Dominic and John proceeded, she did not consent to an order extending the time for the making of the claims. She denied any entitlement, by each of Dominic and John, to an order for additional provision. She also asserted that each of Dominic and John had received a substantial financial benefit by living on the Kemps Creek property, rent-free, for over 30 years, with such benefit likely to be equal to, or greater than, any funds expended by them on the property.

As a party to these proceedings, and the representative of the deceased’s estate for the purposes of the hearing, Mr Neal admitted a number of the allegations made in the amended Statement of Claim, but, unsurprisingly, did not admit that the Kemps Creek property was held on trust for Dominic and John. Counsel indicated that Mr Neal neither consented to, nor opposed, any application to extend the time for the making of the family provision orders: Tcpt, 1 November 2022, p 5(39-42).

Joseph’s proceedings were commenced with a tutor, the NSWT&G. The only relief he seeks is a family provision order under the Act and costs. He commenced the proceedings, within time, by Summons filed on 21 May 2021. He filed an amended Summons on 10 November 2021, in order to join Mr Neal as the third Defendant.

Rose is not a party to Joseph’s proceedings. She has not filed any evidence in those proceedings. However, she asked the Court to consider her affidavit sworn on 21 September 2022 which details her circumstances as a competing claimant on the bounty of the deceased, when considering his claim.

In Joseph’s proceedings, in summary, if the 2009 Will is valid, all parties agreed that the provision made for Joseph under the 2009 Will (which includes a right of residence in a property, plus a share of the residue to be held on trust for him), is, at the time when the Court is considering the application, not adequate provision for his proper maintenance or advancement in life and that provision in lieu of the provision made for him should be made.

If the 2009 Will is found to be invalid, Joseph will be entitled, on intestacy, to receive, absolutely, one-sixth of the deceased’s estate. In this case, the parties agreed that if his one-sixth entitlement on intestacy is less than $897,450, provision in lieu thereof should be made by providing him with a lump sum of $897,450.

In each case, the parties were not able to agree upon how the provision made for Joseph will be provided and how the burden of the costs of Joseph’s proceedings will be borne.

Following the reading of the evidence and dealing with the objections in the proceedings, at the conclusion of the first day of the hearing, the legal representatives of Mr Neal sought leave to withdraw, upon the basis that they would return, as, and when, required. With the consent of Rose, Dominic and John, the Court granted that leave.

Following the cross-examination of Mr Puleo, on completion of the second day of the hearing, the legal representatives of Joseph similarly sought leave to withdraw upon the basis that they should be kept informed about the way in which the hearing was continuing and when they would be required to return. With the consent of Rose, Dominic and John, the Court granted that leave.

The legal representatives of Joseph returned for the cross-examination of the medical experts, on each of the sixth and ninth day. Both the legal representatives for Mr Neal and for Joseph returned for the submissions of the parties, which occurred on the tenth and eleventh days.

The parties agreed that the most efficient way of dealing with the issues was that the Court should, first, determine the Probate proceedings and whether the 2009 Will is valid. The central questions in these proceedings are:

If the 2009 Will is not valid, the Court must determine:

Then, whether or not the 2009 Will is valid:

If the 2009 Will is valid, or if Dominic and John succeed in the trust claim in a way that impacts upon his claim, the Court must determine, in respect of Joseph’s proceedings:

Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order in respect of the estate of a deceased person. As a child of the deceased, each of Dominic, John, and Joseph, is an eligible person within s 57(1)(c) of the Act. The language of the subsection is expressive of the person’s status, regardless of age, as well as his, or her, relationship to the deceased. It is not necessary that the child be a dependant at the time of the deceased’s death in order to be an eligible person under this head of eligibility (as dependency is not an element of the definition of an “eligible person” in s 57(1)(c) of the Act).

However, under s 60(2) of the Act, the Court may consider, on the question whether to make a family provision order and the nature of any such order, “… (k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person’s death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so …”. This factor, however, will not be relevant to the question whether the applicant is an eligible person, in the case of a child of the deceased.

Section 58(2) of the Act provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown or the parties to the proceedings consent to the application being made out of time.

As stated, Rose indicated that she does not consent to an extension of time for the making of Dominic’s and John’s applications. Thus, Dominic and John must show “sufficient cause”. It will be necessary to return to the topic later in these reasons.

If the 2009 Will is found to be valid, as the deceased dealt with all of her estate therein, there is no scope for the operation of the rules of intestacy.

An order may be made in relation to property that is not part of the deceased’s estate, but which is designated as “notional estate” of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. “Notional estate” of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. “Notional estate order” means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

Rose gave evidence of her belief that there are funds missing from the estate which have not been accounted for. Alan, Rose’s husband, also alluded to missing funds in his cross-examination. It was submitted that one of the things the Court could consider was whether each had received funds already, which funds should form part of the residue of the estate.

The factual basis of Rose’s assertion was not investigated during the hearing. (If pursued by Rose, this matter may have to be further investigated by Mr Neal following the determination of these proceedings.)

Mr Neal, in his capacity as interim administrator, has deposed that he is not presently aware of any property which is, or which may be, the subject of a relevant property transaction.

The Court reminded the parties of ss 88 and 89 of the Act: Tcpt, 1 November 2022, p 6(15-19). Section 88 provides that the Court must not make a notional estate order unless it is satisfied that (a) the deceased person left no estate, or (b) the deceased person's estate is insufficient for the making of the family provision order, or any order as to costs, that the Court is of the opinion should be made, or (c) provision should not be made wholly out of the deceased person's estate because there are other persons entitled to apply for family provision orders or because there are special circumstances.

Section 89(2) of the Act provides that the Court must not designate as notional estate property that exceeds that necessary, in the Court's opinion, to allow the provision that should be made, or, if the Court makes an order that costs be paid from the notional estate under s 99, to allow costs to be paid as ordered, or both.

Bearing in mind the nature and value of the deceased’s actual estate, there is no reason to delve into the question further. This seemed to be accepted by the parties and no submissions were made by each, on this topic, after the conclusion of the evidence.

The only eligible persons, within the meaning of that term in s 57 of the Act, are the children of the deceased. Only Dominic, John and Joseph have commenced proceedings for a family provision order. Rose, Connie and Tony, is each a beneficiary named in the deceased’s Will, or entitled under the operation of the rules of intestacy. The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though she, or he, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased’s Will, or the operation of the rules of intestacy, and her, or his, competing claim, respectively, as a chosen object of the deceased’s testamentary bounty.

Section 61 of the Act provides that, in determining an application for a family provision order, the Court may disregard the interests of any other person by, or in respect of whom, an application for a family provision order may be made (other than a beneficiary of the deceased's estate) but who has not made an application. There is evidence that Connie has been served with a notice of the application for a family provision order, and of the Court's power to disregard her interests. Tony is a witness in the proceedings.

I do not, however, propose to disregard her, or his, interests in view of the evidence going to her, and his, contribution to the welfare of the deceased.

None of the children of the deceased, other than Dominic, John, and Joseph, has given evidence of her, or his, financial and material circumstances, respectively. In those circumstances, the Court may assume that each does not wish her, or his, financial resources and financial needs, both present and future, respectively, to be taken into account: Matthews v Wear [2011] NSWSC 1145 at [45] (Macready AsJ).

The Court is also entitled to infer that as a beneficiary, she and he, respectively, has adequate resources upon which to live and that she, and he, does not wish to advance a competing financial claim upon the bounty of the deceased: Anderson v Teboneras [1990] VR 527 at 535-536 (Ormiston J); Sammut v Kleemann [2012] NSWSC 1030 at [135]-[139]; Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [94] (Meagher JA); Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107 at [23] (Basten JA). See also Blendell v Byrne; Estate of Noeline Joan Blendell [2019] NSWSC 583 at [113]-[118] and on appeal, Blendell v Blendell [2020] NSWCA 154 at [17] and [42] (Meagher JA, Gleeson JA agreeing).

Yet, none of those children, as a beneficiary under the 2009 Will, or on intestacy, has to prove an entitlement to the provision made for her, or him, or justify, otherwise, such provision. Nor, in relation to the 2009 Will, does each have to explain the decision by the deceased to make the provision that she did for each in the Will: Page v Hull-Moody [2020] NSWSC 411 at [171]; referred to, without apparent disapproval, in Sun v Chapman [2022] NSWCA 132 at [169] (White JA).

Mr Neal has stated that he will not seek any commission, or percentage, for his pains and trouble as is just and reasonable, out of the estate of the deceased pursuant to s 86 of the Probate and Administration Act 1898 (NSW): Tcpt, 1 November 2022, p 7(30-38). In written submissions, he also stated that if he “is subsequently appointed administrator of the Estate, he will take necessary steps to facilitate any orders for provision from the Deceased’s estate”.

As a family provision order is to be made in favour of Joseph, it is important to remember that a certified copy of any order made under the Act must be copied onto the grant of Probate or administration, as such an order operates, unless the Court otherwise orders, as if the provision was made in a codicil to the Will of the deceased person, if the deceased made a Will, or in a will of the deceased person, if the deceased person died intestate: s 72(1) of the Act. It is only if the order is actually endorsed on the grant of administration that the grant can correctly represent what are the dispositive provisions of the Will of which Probate has been granted: Gould v Gould [2005] NSWSC 914 at [6] (Campbell J); Chisak v Presot [2021] NSWSC 597 at [25]. Also see paragraph 23(a) of Practice Note SC Eq 7.

Mr Puleo identified Ex. W, as the original Will executed by the deceased on 18 September 2009. He confirmed that the other signature on the Will was his, and also was that of his former secretary, Ms Melissa Williams. He confirmed that the mark placed on the bottom of each page had been placed there by the deceased. He confirmed that each person was in the presence of the other when that document was executed.

The 2009 Will, on its face, appears to satisfy the formal requirements for a valid Will as contained in s 6 of the Act. It is in writing. It is said to have been signed by the deceased, with the deceased’s “signature” being in the form of a mark (instead of her name) on each page.

Ms Williams also deposed that the 2009 Will was signed by the deceased in her, and Mr Puleo’s presence. Neither of them is a beneficiary named in the deceased’s Will.

The 2009 Will comprises seven typewritten pages, including what might be described as the cover page. It is self-explanatory. Relevantly, the 2009 Will:

The final page of the Will (page 7) states:

In her Defence to the Cross Claim, Rose admitted that “the deceased placed an “X” at the foot of pages 2, 3, 4, 5, and the final page of the 2009 Will”, but denied that the deceased had done so on every page. This is not entirely accurate as there appears to be a similar, but not an identical, mark on page 1 and page 6 of the 2009 Will. Rose also admitted that the deceased “marked the 2009 Will in the presence of Mr Puleo and Ms Williams”, the attesting witnesses.

Counsel for Rose, in initial written submissions, pointed to alleged differences in the way the “X” was written on the different pages of the 2009 Will. It was put that, on the front page of the 2009 Will, the deceased had struggled to affix her mark on the page. There are other pen marks near her mark which, it was said, suggested the deceased had experienced trouble signing her mark. On page 5 of the 2009 Will, the deceased had added an additional vertical line to her usual mark. On page 6 of the 2009 Will, the vertical line in the deceased’s signature did not cross-over the centre of the horizontal line. On page 7 of the 2009 Will, there was an additional vertical line in the deceased’s mark.

Counsel then referred to what McMillan J had written in Re Theodoulou [2018] VSC 601 at [42]:

Section 6 of the Act, relevantly, provides that a will is not valid unless it is in writing, and signed by the testator (or by some other person in the presence and at the direction, of the testator). The signature of the testator (or of the other person signing in the presence and at the direction of the testator) must be made with the intention of executing the will, but it is not essential that the signature be at the foot of the will.

In Newman v Brinkgreve; The Estate of Floris Verzijden [2013] NSWSC 371, although a case involving an informal testamentary instrument, I dealt with the importance of the deceased’s signature on a testamentary instrument. At [104]-[105], I wrote:

There is no definition as to what constitutes a will being “signed” and there is no particular mode of “signing” prescribed in the Act.

The uncontested evidence reveals that the habit of the deceased was to sign a document using a mark. By way of example, I note the copy Transfer of the No 8 Bossley Park property: Ex. MB1/017-018. Not being able to write her name, the deceased, where necessary, was obliged to sign with a mark. Rose confirmed that the deceased had always signed with a “wobbly sort of cross”: Tcpt, 9 November 2022, p 418(20)-419(3).

Whilst suspicion may well be caused because “the testator executes the document as a marksman when [she] is not.”: Re Estate of Paul Francis Hodges Deceased; Shorter v Hodges (1988) 14 NSWLR 698 at 705 (Powell J); Kenny v Wilson (1911) 11 SR (NSW) 460 at 469, in this case, no suspicion arises as the deceased's practice had been to sign a document making a mark: Tcpt, 1 November 2022, p 8(17-21).

In A Learmonth KC, J Clarke, K Shuman, C Ford and T Fletcher, Theobald on Wills (19th ed, 2021, Sweet & Maxwell) at [3-010], the learned authors write:

In G E Dal Pont and K F Mackie, Law of Succession (2nd ed, 2018, LexisNexis Butterworths), at 92 [4.6], the learned authors write:

In Baker v Dening (1838) 8 Ad & El 94, the headnote reads as follows:

Coleridge J wrote at 98:

In Morton v Copeland (1855) 16 CB 517, although not a case in relation to a will, Maule J wrote, at 535:

In Regina v Moore, ex parte Myers (1884) 10 VLR 322 at 324, Higinbotham J wrote:

In In Re Male [1934] VLR 318 at 320, Lowe J, referring to the Victorian equivalent of s 6 of the Act, wrote

His Honour, using that test, and having regard to the circumstances of the case as disclosed by the evidence, found that the mark, made by the will-maker, was made by her with the intention of authenticating, as her will, all that preceded it in the document. He ordered that the document be admitted to Probate.

In Legal Services Board v Forster (2010) 29 VR 277; [2010] VSC 102 at [41], the Court accepted a submission, made on behalf of the Legal Services Board, that “the common law has long held that a signature is not necessarily the writing in of a name, but may be any mark which identifies it as the act of the party”.

Thus, a signature of the will-maker does not have to be in a particular form. It may be made by a mark. What is necessary is that it be placed on the document by the will-maker with a view to authenticating what precedes it as her, or his, will: The Estate of Yunupingu [2022] NTSC 4 at fn 4 (Kelly J). Also see, Estate of Radziszewski (1982) 29 SASR 256 at 259 (Matheson J) and In the Estate of Robin Michael (Deceased) (2016) 126 SASR 299; [2016] SASC 164 at [32] (Stanley J).

At [61] of Rose's written opening Outline of Submissions, however, counsel wrote "Rose does not challenge the formal validity of the 2009 Will". Despite that, at the commencement of the hearing, senior counsel for Rose stated that whilst she did not dispute that the deceased had placed a mark on the 2009 Will, there was a dispute whether she had been assisted by one of her sons in doing that, during the conference: Tcpt, 1 November 2022, p 8(35-37).

Having read, and heard, the evidence, particularly, of Mr Puleo on the topic, to which evidence I shall refer, I am satisfied that the deceased, alone, placed her mark on the bottom of each page of the 2009 Will and that, therefore, she signed the 2009 Will. I am also satisfied that her signature was made by the deceased in the presence of the two witnesses, present at the same time, and that each of them attested, and signed, the Will in the presence of the deceased.

It follows that the 2009 Will was duly executed by the deceased.

On 6 October 2022, the Court directed the parties to provide, in hard and soft copy, an Agreed Schedule that contained:

At the hearing, a version of the document was tendered and marked Ex. JS1. I have taken part of what follows from that document and from discussions with counsel during the hearing. (I have omitted, and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.)

The assets and liabilities of the estate at the date of the deceased’s death, and the competing estimates of value, were as follows:

Initially, there was a dispute as to the value of the Kemps Creek property at the date of the Schedule which was identified in the Joint Schedule provided on the first day of the hearing. (The dispute amounted to a difference of $900,000 in the value of the deceased’s estate.)

In the written submissions provided to the Court by counsel for Rose, it was put, at [25], that:

Whether that is so or not, the current value of the deceased’s property is relevant, principally, to the claims made for a family provision order. The Court determines the necessary questions “at the time when the Court is considering the application” rather than “in coming years”. This was accepted by senior counsel for Rose: Tcpt, 1 November 2022, p 8(2-13).

On the third day of the hearing, the parties, sensibly, agreed that the estimated value of the Kemps Creek property should be taken to be $6,950,000. Subsequently, on the sixth day of the hearing, an amended Joint Schedule, which was marked Ex. JS2, was tendered.

In the last affidavit of Mr Neal, the amount held, as at 12 December 2022, in the estate bank account had been reduced to $107,018. The amount had diminished due to the payment of fees for the medical experts and for Ms Money, solicitor, to whom I shall refer, the payment for insurance and the rates for the No 7 Bossley Park property, and the costs and fees incurred by him in his capacity as Administrator.

The assets and liabilities of the estate at the date of the amended Joint Schedule, as agreed, were as follows:

The costs and expenses of the sale of the properties were estimated to be $40,000 for the No 7 Bossley Park property, $24,000 for the No 6 Bossley Park property, $26,000 for the Smithfield property, and $135,000 for the Kemps Creek property. The total of these costs is $225,000. Deducting these expenses (and the outstanding tax liabilities of the estate in the amount of $2,760), and not considering any of the costs of the proceedings, the estimated value of the estate, subject to any order for costs to be paid out of the estate is estimated to be $10,599,258.

(There were several colour photographs of, and a detailed Property Report relating to, the Kemps Creek property, in evidence. Some of the photographs depict the home in which Dominic and members of his family live, the home in which John and members of his family live, and other amenities situated on the Kemps Creek property. The photographs and what each depicts forms part of the evidence relied upon by Dominic and John in the trust proceedings. It is clear that substantial work has been done on the Kemps Creek property.)

In relation to the proceedings, there was evidence of the costs that had been incurred.

There is no suggestion that either the Civil Procedure Act or the UCPR does not apply in Probate proceedings. However, in such proceedings, there are considerations that more readily affect the application of the Civil Procedure Act and the UCPR than in most other forms of litigation. These considerations act as guides to the exercise of discretion, but they are not inflexible. They are somewhat unique and will need to be considered unless the parties are able to reach agreement on the costs of the Probate proceedings. I shall say no more about the principles in these reasons.

Section 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.

Usually, in calculating the value of the deceased’s estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that his, or her, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased’s estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.

As Basten JA (Simpson and Payne JJA agreeing) put it in Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222 at [54]:

As his Honour had also written, a few years earlier, in Foley v Ellis [2008] NSWCA 288 at [10]:

I have repeated, many times, in the context of a claim for a family provision order, that parties should not assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18].

In Ex. JS2, the estimated costs and disbursements of each party, calculated on the ordinary, and on the indemnity, basis (inclusive of GST), in relation to each of the proceedings, are as follows:

Ex. JS2 reveals that, as at the date of the Schedule, Rose had paid $258,378 of her costs; Dominic and John had paid $2,333 of their costs; none of Joseph’s costs have been paid; and all of the costs of Mr Neal had been paid out of the estate.

The parties were encouraged to reach agreement on the percentage of her, his, or their, total costs that should be attributed to each of the different proceedings. This they were able to do and as part of Ex. JS2, the following evidence was given:

At the commencement of the hearing, counsel had agreed, and both submitted, that the Court should not determine, as part of these written reasons, how the costs of the Probate, and the trust, proceedings should be borne. They submitted that there were documents that might be relevant to how the burden of the costs of the proceedings should be calculated and how they should be borne.

Naturally, I shall abide the request made. However, for the purposes of the family provision proceedings, having considered the estimates of the costs, and notionally deducting them from the estate, the value of the distributable estate out of which an order may be made is still quite large.

The only document disclosing the testamentary intentions of the deceased is the 2009 Will. I have already referred to its contents. I shall refer to Mr Puleo’s evidence of the instructions given to him later in these reasons.

The other evidence given on the topic were statements said to have been made by the deceased, or in the presence of the deceased, to one, or more, of her children.

Rose gave evidence about a number of different conversations with the deceased in relation to making a Will. She maintained that on each occasion, the deceased had said “Everything is equal”. She said that when the matter was raised with the deceased again, “she would get angry and say to me with a raised voice “Tutto uguale”, “Tutto uguale” (which she said meant “all equal in Calabrese”. On the first day of the hearing, the parties agreed that “tutto uguale” means “all equal”: Tcpt, 1 November 2022, p 39(3-18).

Dominic gave evidence that after Giuseppe died and they were in the process of obtaining Probate, the deceased said to him that she wanted to have a Will made. He recalled her saying “Whatever your father had in the Will I want it to be exactly the same as he had done it”: Affidavit, Dominic Meduri, 19 October 2020 at par 25. He also stated, in his evidence in reply, that the deceased had made it very clear to him that she would keep the distribution as it had been in Giuseppe’s Will: Affidavit, Dominic Meduri, 12 January 2021 at par 47.

John gave similar evidence that the deceased told him, shortly after Giuseppe died, that she wanted to keep the division of the property in his Will the same way Giuseppe had done it: Affidavit of John Meduri, 19 October 2020 at par 14.

It was submitted by Rose that there was no evidence of what the deceased knew about Giuseppe's Will before she made the 2009 Will and that neither Dominic, nor John, had given evidence that Giuseppe's testamentary intentions were well known within the family.

I do not accept the submission for several reasons. First, it is implausible to think that, in a marriage that had spanned over 50 years, Giuseppe and the deceased would not have discussed what was to happen to the property that was owned after the death of one, or both, of them.

In relation to Giuseppe, the evidence reveals that his Will provided that all of his property would pass to the deceased, and that it was only if she did not survive him that it was to be divided as set out in his Will. Rose acknowledged that, in 2009, after she had seen Giuseppe’s Will, and had read the alternative provisions in it, she thought that “my mother had made a will of her own when I took her to Puleo's, I thought that my father and my mother would come to some sort of discussion in regards to perhaps both”: Tcpt, 9 November 2022, p 484(19-38).

Second, as will be read, the deceased was said to have been present during the conversations that occurred involving Giuseppe, Dominic and John. Therefore, if one accepts that the conversations occurred, she did know about Giuseppe’s testamentary intentions, at least in relation to what would happen to the Kemps Creek property if she did not survive him, namely that it was to pass to Dominic and John.

Third, reference will be made to Mr Puleo’s evidence about what he recollected the deceased said to him about the Will that she wanted to make; he had gone through Giuseppe’s Will with the deceased, as part of the process for obtaining Probate of that Will, before he went on to draft the 2009 Will; and also had gone through the draft of the 2009 Will with the deceased before it was executed.

Fourth, there is evidence of conversations between the deceased and each of Dominic and John, after Giuseppe’s death, in which the deceased made reference to Giuseppe’s Will, at least so far as it related to the Kemps Creek property.

The submission that because Giuseppe had made a Will in 2001, but the deceased had not, they had not acted in concert, should also not be accepted because the deceased, until Giuseppe’s death, only held property, of value, as joint tenants with him. Thus, if she died first, the jointly held property would pass, by survivorship, to him. On her intestacy, if Giuseppe survived, any personal property that she had, would also pass to him under the operation of the rules of intestacy.

I am satisfied that at the time she made the 2009 Will, the deceased knew the substance of Giuseppe’s Will.

Because of the number of witnesses who feature in the evidence, it is next convenient to identify each, and the role that she, and he, played in the life of the deceased, and by which party each witness was called.

I shall also refer to the medical experts who gave evidence in the proceedings, even though his, or her, reports have been included in the two folders of medical documents tendered, without objection, as Ex. MB3.

I shall not specifically refer to the deponents of affidavits of service, whose affidavits were read without objection and none of whom was cross-examined.

Each of the parties gave evidence in the proceedings. I shall return to my impression of her, and his, evidence later in these reasons. I shall include, where appropriate and uncontroversial, some of the background facts which place his, or her, evidence in context.

Mr Puleo is a solicitor and the solicitor who drafted the 2009 Will and, as earlier noted, an attesting witness to the deceased having signed (by her mark) the 2009 Will. He also gave evidence about the family provision claim brought by Dominic and John, and about his advice regarding the time for making an application for a family provision order. He was cross-examined at some length.

Melissa Williams was formerly employed by Mr Puleo, at Puleo Lawyers, as an administrative and clerical assistant. She worked for Puleo Lawyers from approximately 1997 to 2016, except for a period, from about 2002-2004, when she had worked for another law firm.

As stated, Ms Williams was an attesting witness to the deceased’s signature on the 2009 Will. She gave evidence that she had no recollection of meeting the deceased, or of the events in relation to the execution of the 2009 Will. She does not speak, or understand, the Italian language.

Bearing in mind her evidence of an almost complete lack of recollection about the execution of the 2009 Will, she was only cross-examined briefly. She was an independent witness.

Cathy Butera is the de facto partner of Sammy DiMaria, the son of Connie, and the grandson of the deceased. She started dating Sammy in about April 2009, and first met the deceased at Christmas 2009, at the deceased’s home in Bossley Park. She was cross-examined relatively briefly. She was an independent witness.

Graham Ball is a licensed real estate agent. He has been employed in the real estate industry for approximately 30 years, 25 of which have been as a licenced real estate agent. In 2010, Mr Ball was employed by LJ Hooker Real Estate Fairfield. At that time, he was approached by Connie to give a market appraisal for a property owned by the deceased in Bossley Park. His evidence was important for a number of reasons to which I shall refer. He was an independent witness.

Giuseppe Bonarrigo was the deceased’s neighbour between about 1994 and 2017, when the deceased went to live in a nursing home. He first met the deceased in 1987 when he purchased land which Giuseppe (the deceased’s husband) was selling at Bossley Park. In 1990, he built a house on the lot and moved there. The property at Bossley Park backs on to his property. He was an independent witness.

Emanuel Dante Girotto is a childhood friend of Dominic, having known him and his family since 1970. Emanuel was born in Australia, and his parents are from Northern Italy. He speaks and understands the Italian language, as well as the Calabrese dialect.

Each of the following witnesses gave evidence in support of the defence by Rose of the Probate proceedings and the trust proceedings.

Alan Howard Wild is Rose’s husband. He is now retired, but previously worked in sales and marketing in an international air cargo business.

Alan first met the deceased in 1991 and would regularly visit her and Giuseppe at their home in Bossley Park. They would, initially, visit nearly every weekend and stay overnight on Saturday. However, after their children were born, they would generally visit every fortnight instead. On some occasions, the deceased and Giuseppe would stay overnight at Alan and Rose’s home in Manly Vale.

Jake Joseph Meduri is the grandson of the deceased and the son of Tony. He was born in June 1992 and gave evidence of visiting the deceased at her home during his childhood. He gave evidence of his observations of the deceased.

Kerry La Rue is the ex-wife of Tony. She first met the deceased in about 1983 and from then until 2002, visited the deceased and Giuseppe’s home in Bossley Park about three or four times each week. During this period, she would cook with the deceased, take her shopping, and to church.

In about 1987, Kerry and Tony lived with the deceased and Giuseppe for approximately two months. They had to move out of the house after Dominic and his family returned to Sydney from Crookwell and wanted to stay with the deceased and Giuseppe.

Kerry and Tony separated in about 2002 and they divorced in 2010. She did not see the deceased after about 2002. She gave evidence of the deceased’s language and literacy skills, as well as her comprehension and capacity. She was an independent witness.

Evidence in relation to the deceased’s capacity was also given by a number of medical witnesses who treated the deceased and also by two joint experts who were instructed to review medical notes, records, and the affidavit evidence, after the death of the deceased.

There were two medical witnesses who had met, and treated, the deceased, who gave evidence. Dr Romeo is a medical practitioner engaged in general practice at Myhealth Medical Centre at Edensor Park. He had practised at this medical centre since about 1998. He was born in Calabria in Italy and studied medicine there. In 1987, he came to Australia and commenced practising medicine in 1994.

Dr Romeo was treating the deceased from about 1999, and this continued until 2017. Whilst he was treating her, he said that they were able to converse, easily, in Italian as they both had grown up speaking the Calabrese dialect.

When the deceased became a patient of Dr Romeo, she would come with Giuseppe. Once Giuseppe became unwell, she would attend, usually with Connie. On occasions, Rose came with the deceased. Alan gave evidence that on two occasions, he was also in attendance with Rose and the deceased.

The second medical witness was Dr Joseph. She was not prepared to, and had not, provided any affidavit prior to the hearing. She was called, without objection, pursuant to a subpoena to attend and to give evidence. A statement of the evidence that was anticipated she would give, had been provided, to the other parties by Ms McIntyre, prior to the hearing. Dr Joseph gave her evidence remotely.

In addition, the Court had the benefit of evidence from Associate Professor Christopher Ryan and of Professor John Watson. Each was consensually appointed by the Court, being an expert agreed upon by the parties. However, neither had met, or assessed, the deceased during her lifetime.

Associate Professor Ryan is a Clinical Associate Professor at the University of Sydney and a Consultation-Liaison Psychiatrist at Westmead. He is clearly an “expert witness” within the definition of that expression in UCPR rule 31.18. (Consultation-Liaison Psychiatry is a sub-specialty of Psychiatry that provides care and treatment for people whose problems arise in the overlap of medical and psychiatric conditions.) There can be no doubt that he is an eminent medical practitioner.

A copy of Associate Professor Ryan’s report dated 14 March 2022, and his supplementary report dated 11 April 2022, was tendered as part of Ex. MB3. In his first report, Associate Professor Ryan expressly acknowledged having read the Expert Witness Code of Conduct in Schedule 7 to the UCPR.

Professor John Watson is a medical practitioner registered in Australia. He holds first class honours degrees in Medicine and Science from the University of Sydney, as well as a Doctorate in Philosophy from the University of Oxford, for research in neurophysiology, and the University of Sydney MD, a higher research degree. He holds the Fellowship of the Royal Australasian College of Physicians, with specialist training in Neurology. In 2015, Professor Watson was awarded the Order of Australia (General Division) for significant service to medicine in the field of neurology, to medical education and administration, and through mentoring roles. He described his areas of expertise as including interpreting CT and MR scans of the brain, the “assessment of people with brain damage and cortical dysfunction … and the assessment and management of patients with cerebrovascular disease”.

Professor Watson is also a joint expert engaged in the Probate proceedings. He, too, is an “expert witness” within the definition of that expression in UCPR r 31.18. There can be no doubt that he is an eminent medical practitioner.

He provided one expert report in these proceedings, dated 24 April 2022, which was tendered as part of Ex. MB3. In this report, he too, expressly acknowledged having read the Expert Witness Code of Conduct in Schedule 7 to the UCPR.

Very helpfully, Associate Professor Ryan and Professor Watson co-operated with the legal representatives of the parties, with each other, and with the Court, in conferring, generally, endeavouring to reach, and reaching, agreement on matters in issue, preparing a joint report, dated 5 December 2022, specifying matters agreed and matters not agreed and providing reasons for any disagreement. A copy of the joint report was tendered, without objection, as Ex. MB3/454-465.

The Court had the benefit of the written reports each of the experts provided as well as the joint report, which clearly narrowed the areas of dispute as to the medical condition of the deceased.

It is against the backdrop of the evidence given by all of the witnesses that the Court is required to determine the issues in each of the three proceedings.

Two affidavits sworn by Connie had been filed and served in support of the cases advanced by Dominic and John, one being made on 12 January 2021 and the other on 22 April 2021. Neither of these affidavits was read in any of the proceedings. Ultimately, neither party relied upon Connie’s evidence, and she was not a witness called in the proceedings.

Whilst Connie was mentioned in the opening Outline of Submissions dated 21 October 2022, counsel for Rose made no reference to any affidavit by her. However, at paragraph 52, counsel stated that “Rose also relies upon audio recordings of telephone conversations she had with her sister, Connie, which support the evidence given by Rose and Tony (and others) as to the deceased’s lack of testamentary capacity and lack of knowledge and approval of the terms of the 2009 Will”. They returned to the topic at [158]-[168] of those written submissions.

At the commencement of the hearing, senior counsel for Rose informed the Court, without objection, that a subpoena to give evidence had been served upon Connie. Having regard to the issues in the proceedings, there was clearly a legitimate forensic purpose for the issue of the subpoena, and it was issued, and served, prior to the hearing. An affidavit of service sworn 27 October 2022 of Perry Gamsby was read.

Senior counsel called on the subpoena, which was returnable on the first day of the hearing, but Connie did not appear. Senior counsel then said that he made “no further application at the moment”: Tcpt, 1 November 2022, p 12(8-24). No explanation was provided for not seeking to enforce the subpoena. (UCPR r 33.12 provides that a failure to comply with a subpoena without lawful excuse is a contempt of Court and the addressee may be dealt with accordingly.)

No application was made on behalf of Dominic and John to read either of the two affidavits which had been filed as part of the Probate proceedings.

It was put to Dominic, and he denied, that he had asked Connie to lie (Tcpt, 3 November 2022, p 304(23-24)) or that he told Connie that he was going to tell her children to hate her if she assisted Rose (Tcpt, 3 November 2022, p 304(29-32)). He did say that Connie was “well-known for mental illness and her stories over the years”: Tcpt, 3 November 2022, p 304(31-32). In this regard, the evidence regarding Connie having mental health issues of long standing was not in contest.

Rose submitted that Dominic and John were in a position to call Connie as a witness and had failed to provide an explanation why she did not give evidence in the case. It was submitted, in light of the evidence regarding the issue of a subpoena to give evidence, that it could not be inferred that Rose had feared to call Connie.

Counsel relied on what was written in J D Heydon, Cross on Evidence (13th ed, 2021, LexisNexis) at [1215] that:

Rose submitted that what is described as “the Jones v Dunkel inference” (referring to Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8) should be drawn from the failure by Dominic and John to read the evidence from Connie and have her available for cross-examination. Reliance was placed on Dominic’s evidence that he spoke with Connie by telephone every day (Tcpt, 3 November 2022, p 289(28-31)), it being submitted that Dominic and John “were plainly in a position to call Connie; alternatively, Connie was more available to Dominic and John than Rose”.

I dealt with the principles that apply when there is an unexplained failure to call a witness in Chant v Curcuruto; Chant v Curcuruto [2021] NSWSC 751 at [73]-[82]. I shall not repeat what I wrote there.

I do not accept the submission made that an inference should be drawn, against Dominic and John, principally, because a subpoena to give evidence had been served by Rose, with which subpoena Connie had failed to comply. No further step was taken by the legal representatives of either party to ensure Connie’s attendance. Furthermore, it is highly unlikely, in circumstances where she had failed to comply with the subpoena, that she would have complied with any request of Dominic, or John, that she attend for cross-examination.

In Australian Securities and Investments Commission (ASIC) v Hellicar (2012) 247 CLR 345; [2012] HCA 17 at [165], the plurality wrote that “[d]isputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led”. In my view, that each of the parties might have been able to call additional evidence relevant to their, or her, case, did not establish that the evidence each did call, otherwise, was deficient or insufficient for appropriate inferences and conclusions to be drawn in their or her favour.

Ultimately, it is unnecessary to decide this case based on evidence not relied upon, or upon the basis of inferences to be drawn from the failure to call evidence. It seems to me that the lack of evidence from Connie ought not be permitted to obscure the significance of the other evidence in the case.

It is important to remember that the trust claim, at least so far as it relates to the assertion of an estoppel, involves family members. On this topic, Robb J in Saitannis v Katsolos [2022] NSWSC 1468 wrote at [91]-[92]:

I respectfully agree with the view expressed by Robb J to which I have referred.

I set out some background facts which I am satisfied were not in dispute or which I find can be stated without controversy. It is not intended to, and cannot, be a complete account.

The deceased was born in Palmi, Reggio Calabria, Italy, in December 1921 and died in June 2020.

The deceased never attended school and was illiterate in all languages. She spoke, and understood, limited English and she spoke Italian, principally in a dialect known as “Calabrese”. She had never learned to drive a car and was always accompanied to medical appointments by a family member.

Giuseppe was born in 1928.

The deceased and Giuseppe were married in about 1947 and they remained married to each other until his death in July 2009. It follows that they had been married, then, for 62 years.

Giuseppe emigrated to Australia, in order to obtain work, in about 1955. The deceased followed, with the three oldest children, in about 1958.

In 1971, the deceased and Giuseppe purchased, as an investment, the Smithfield property. Rose gave evidence that she had lent them $2,000, to assist in its purchase which loan was never repaid: Affidavit, Rose Marie Wild, 22 October 2020 at par 48; Affidavit, Rose Marie Wild, 21 September 2022 at par 33.

In 1975, Rose married her first husband, Tony Partfitt, and they moved to Manly Vale, a suburb of Sydney, located 15 kilometres north of the Sydney central business district, and some distance from where the deceased and Giuseppe then lived. They separated in about 1985.

In about 1979, Dominic met Karen.

In about 1985, the deceased was injured in a car accident. Thereafter, she was unable to help Giuseppe with their farm and she no longer attended the markets to sell produce.

In the 1980s, there was a dispute between Dominic and the deceased and Giuseppe, following which Dominic and his wife, Karen, moved to Crookwell, a small town located in the southern tablelands of New South Wales, where they lived with Karen’s parents, Irene and Ted Nash. They remained living in Crookwell, subsequently with their two children, until about early 1989. There were two houses on the property.

In 1987, Tony and his partner, Kerry, lived with the deceased and Giuseppe at Bossley Park for approximately two months before they bought a property in Austral.

John and his girlfriend, Cathy, subsequently lived in a caravan on Tony and Kerry's property in Austral for 10 months.

In the 1980s, Giuseppe began investing in land. He purchased the land at Bossley Park, and, subsequently, undertook a subdivision of the property, with the assistance of Mr Puleo.

The deceased, generally, accompanied Giuseppe on his visits to Mr Puleo, who came to know her, through his dealings with Giuseppe.

Giuseppe spoke reasonably good English, but Mr Puleo only spoke Italian to the deceased and spoke the Sicilian dialect, Italian, and English, to Giuseppe: Tcpt, 2 November 2022, p 164(30-31). While his native dialect was Sicilian, and the deceased and Giuseppe were from Calabria, Mr Puleo said that he was able to converse with the deceased and that he had no difficulty understanding her or being understood by her.

The deceased and Giuseppe purchased the Kemps Creek property in about December 1988. The Transfer, a copy of which is in evidence, reveals that it was purchased by them, as joint tenants, for $360,000. Other evidence reveals that it has a land area of 8.05 acres, that the land is well elevated and is not affected by flooding, and that it comprises a regular shaped block, which is relatively level and clear, on which there are two houses, both with a pool and associated sheds. (Ex. MB1/076).

Giuseppe also re-structured his loans and sold some of the properties in the sub-division. He engaged Mr Puleo to assist him with the sales. Giuseppe and the deceased also sold the stall at Flemington Markets for $50,000.

At about the time of the purchase of the Kemps Creek property, Giuseppe and the deceased asked Dominic whether, if they bought a property for him to live on, he would move back to Sydney. Upon its purchase, he did so: Affidavit, Dominic Meduri, 19 October 2020 at par 5.

Rose gave the following evidence in her affidavit made on 22 October 2020 at par 207:

They also asked John if he would live there, and he said he would.

Rose acknowledged that Dominic and John had lived on the Kemps Creek property for over 30 years and that they had continued to do so following the death of the deceased.

In about 1992, Giuseppe retired from work at the Water Board. At or about this time, he and the deceased built their home at the No 7 Bossley Park property: Affidavit, Rose Marie Wild, 22 October 2020 at par 128.

Rose married Alan in 1994 and they remain married. They have two children together, namely John Wild, who was born in January 1996, and Elisabeth Wild, who was born in July 1997. Alan also has two children from a previous marriage, namely, Craig Wild and Chantal Wild: Affidavit, Rose Marie Wild, 22 October 2020 at pars 10-14. None of the children were witnesses in the proceedings.

In about 2007, Giuseppe became very unwell. Connie moved in with the deceased and Giuseppe and began to assist them more with their day-to-day needs such as cooking, cleaning, washing, gardening, paying bills and taking them to medical appointments. She continued to assist the deceased after the death of Giuseppe.

As stated, Giuseppe died in July 2009. His Death Certificate (Ex. MB1/103) revealed the causes of death to be sepsis (3 days), chest infection (3 days), end stage renal failure (3.5 years) and congestive cardiac failure (18 months). The informant identified on the Death Certificate was the deceased.

Giuseppe left a duly executed Will dated 15 June 2001. In that Will, he appointed the deceased, Dominic, and John, as the executors and left the whole of his estate to the deceased (Clause 2) (Ex. MB1/98).

In a letter dated 17 August 2009, to the National Australia Bank (NAB), Mr Puleo sought a letter from the Bank advising details of all deposits held in Giuseppe’s name, as at the date of death, together with interest accrued, information about the Bank’s requirements for the purpose of releasing the assets held, as well as advice whether it held “a Safe Custody Packet containing Deeds, Wills or any other documents on behalf of” Giuseppe: Ex. MB1/104.

The date of this letter founds the factual conclusion that the first meeting that Mr Puleo had with the deceased and others, following Giuseppe’s death, occurred before 17 August 2009. Mr Puleo gave evidence, which I accept, that it was at this meeting, “[d]uring [the process of preparing the summons for probate and affidavit of the executors] … I recall Elizabeth requested that I prepare a will for her”.

On 18 August 2009, a notice was published in the Sydney Morning Herald of an intended application for Probate of Giuseppe's Will, by the deceased, Dominic and John.

On 31 August 2009, Dominic was informed, in a telephone conversation, that the deceased needed to attend the Fairfield branch of NAB to sign new signature cards and that the Bank held a safe custody packet which the deceased was required to collect. He was also told that Mr Puleo had prepared a Will for the deceased. (Mr Puleo thought that the diary note had probably been written by Carmel Romeo, an employee of the firm, as he did not make routine phone calls of that nature. He also said that her practice was to write file notes like that so he could see them in the file.)

On 15 September 2009, Mr Puleo sent a Costs Agreement, addressed to the deceased, Dominic and John, at the No 7 Bossley Park property, where the deceased lived, for obtaining Probate of Giuseppe's Will and for transferring the various parcels of real estate into the deceased’s name. The terms of the Costs Agreement recognised the deceased’s inability to read, or speak, English, and that she could not sign her name other than by her mark.

The deceased signed the 2009 Will on 18 September 2009. This is the date of the second meeting between the deceased and others, and Mr Puleo. She was then 88 years old.

Under cover of a letter dated 21 September 2009, the Summons for Probate, together with the affidavit of executors, was sent to this Court. Each is shown as having been filed with the Court on 23 September 2009. In the affidavit of executors in support of the Summons for Probate of Giuseppe’s Will, the deceased, as one of the three executors, signed each page with her mark (which looks like “+”) (Ex. MB1/122-124).

This Court granted Probate of Giuseppe’s Will to the executors named therein on 29 September 2009 (Ex. MB1/142-149).

In the Inventory of Property which formed part of the application for Probate, Giuseppe’s estate was disclosed as having an estimated, or known, value of $1,650,000. The estate was said to comprise of three parcels of real estate. I shall refer to these as “the No 6 Bossley Park property”, “the No 7 Bossley Park property”, and “the No 8 Bossley Park property”. In addition, there were two other parcels of real estate, which he jointly owned with the deceased, being the Kemps Creek property and the Smithfield property. The total value of these properties, at the date of Giuseppe’s death was estimated to be $675,000.

Each of the properties owned by Giuseppe, and the properties jointly held with the deceased, were transmitted into the name of the deceased shortly after Probate was granted, with a Certificate of Title, for a number of them, being issued on 9 October 2009.

On 26 October 2009, following receipt of a letter dated 20 October 2009, from Rose’s then solicitors, Shipton & Associates, Mr Puleo provided a copy of the Probate in respect of Giuseppe’s Will to those solicitors. It is likely that Rose came to know of that Will shortly thereafter.

By letter dated 2 November 2009, Mr Puleo informed the deceased, Dominic and John, that “the properties have now been registered in the sole name of Elizabeth Meduri”. A tax invoice was also attached that included the costs and disbursements for acting on the Probate application, for making the Transmission Applications and filing notices of death, for preparing the deceased’s Will, and for the costs of preparing a contract for the sale of the No 8 Bossley Park property.

The deceased, as the owner of the Burial Rights for a family crypt, attended the Pinegrove Cemetery and placed her mark on a document, dated 13 March 2010 (Ex. D2), addressed “TO WHOM IT MAY CONCERN”, stating that she gave “permission for my children to utilised [sic] these crypts”. In this document, Connie was not named as a relevant child. Rose thought this was because Connie had bought her own crypt. Rose acknowledged that the deceased “went through a process whereby she allocated crypts to each of her children, except for Connie”: Tcpt, 9 November 2022, p 516(5-24).

In March 2010, the No 8 Bossley Park property was sold for $440,000. A copy of the Transfer, dated 30 March 2010 (Ex. MB1/017), reveals that the deceased, as Transferor, signed the Transfer “by Her Mark”. (A copy of the Transfer appears to have been obtained on 26 June 2020.)

No request was made by any member of the deceased’s family for an assessment of her capacity to execute a Will in 2009, or to enter into the contract for the sale of the No 8 Bossley Park property.

On 6 November 2014, Connie brought the deceased to Mr Puleo’s office. What occurred at this meeting will be described later in these reasons.

At about the end of 2017, the deceased moved from the No 7 Bossley Park property, where she had lived since the early 1990s, into a nursing home at Smithfield. In January 2018, Dominic and John arranged for her to move into Fairfield Nursing Home where she remained until her death.

The Death Certificate relating to the deceased (Ex. MB1/020), in which Connie was identified as the Informant, reveals the causes of death as:

A Death Certificate issued by the Registrar of Births, Deaths and Marriages in New South Wales is admissible in legal proceedings as evidence of the entry to which the certificate relates, and the facts recorded in the entry: Births, Deaths and Marriages Registration Act 1995 (NSW) s 49(2).

The deceased’s funeral was held on 13 June 2020. On 20 June 2020, Rose conferred, for the first time, with Ms McIntyre about the deceased’s Will.

The deceased did not live a complex life although she did leave a large portfolio of property, which she had inherited, or had come to own by survivorship.

Unsurprisingly, Mr Puleo was a material witness in these proceedings. He had drafted, had said that he interpreted into the Italian language its contents to the deceased, and had witnessed and attested her signature on, the 2009 Will. Following the death of the deceased, he found himself in the unfortunate position of being a witness in the proceedings which involved significant disputes within the family of the deceased.

Whilst there were some factual matters, in his evidence, that were not subject to dispute, his evidence about the events following the death of Giuseppe, preparing documents to obtain Probate of Giuseppe’s Will and then the taking of instructions for the 2009 Will and his role as an attesting witness, was the subject of detailed cross-examination. I shall return to that evidence later in these reasons.

Although he had not known them, other than as two of the three executors of Giuseppe’s Will, and as two of the three children of the deceased who had attended upon him in 2009 following Giuseppe’s death, he acted for Dominic and John, in the contested proceedings, from about 24 August 2020 and 29 July 2021.

He was the subject of some criticism by counsel for Rose, particularly for remaining as the solicitor on the record for Dominic and John during the time that he did so. I shall next deal with the basis of that criticism.

On 13 October 2020, Ms McIntyre, wrote to Mr Puleo raising concerns in relation to him acting for Dominic and John in the Probate proceedings. The letter stated:

At least, initially, Mr Puleo refused to cease acting for Dominic and John. He replied to Ms McIntyre, on 14 October 2020, stating:

A number of affidavits made by Dominic and John read in the proceedings were made by each in October 2020. Mr Puleo denied that he had any discussions with either of them about his recollection, respectively, of the events that had occurred in July, August, and September 2009. He was also asked about his attendance with Dr Romeo in February 2021. He maintained that counsel had drafted each of the affidavits to which reference had been made and that “the case was effectively being handled by counsel and I was recording the times that he wanted me to be there”: Tcpt, 2 November 2022, p 165(14)-167(10).

At a directions hearing before this Court, on 28 June 2021, the following exchange occurred (Tcpt, 28 June 2021, p 19(27-48)):

At the time this statement was made in Court, some 23 affidavits had been filed by Dominic and John in the Probate proceedings, including five affidavits deposed to by Mr Puleo. (Two of those affidavits (being his affidavits sworn on 1 February 2021 and 1 March 2021) were not read at the final hearing as they related to their opposition to the appointment of an independent administrator.)

On 6 July 2021, Ms McIntyre wrote to Mr Puleo asking him to confirm the extent of his involvement in taking witness statements and drafting affidavits on behalf of Dominic and John.

On 12 July 2021, Mr Puleo responded to the letter, confirming that he had attended conferences with some witnesses and had also been involved in taking instructions for, and drafting, some of the affidavits filed by Dominic and John in the Probate proceedings.

On 29 July 2021, Puleo Lawyers filed a notice of change of solicitor stating that Mr Puleo’s son, Matthew Puleo, also a solicitor at Puleo Lawyers, would be taking over as solicitor for Dominic and John.

Mr Puleo confirmed that from the time of handing the matter over to Mr Puleo Jnr on or about 29 July 2021, he was not involved, except for witnessing Mr Romeo’s affidavit, and did not participate in compiling the documents in answer to the subpoena: Tcpt, 2 November 2022, p 108(10-35).

On 3 August 2021, Ms McIntyre, again, wrote to Puleo Lawyers seeking further details regarding Mr Puleo’s involvement in the preparation of the 23 affidavits filed by him in his capacity as solicitor on the record.

On 10 August 2021, Mr Puleo Jnr responded to the letter stating:

The bundle of correspondence passing between the solicitors between 13 October 2020 and 10 August 2021 was tendered, and separately marked Ex. D1 and Ex. D3.

In the cross-examination of Mr Puleo, some time was spent on this topic. He gave the following evidence (Tcpt, 2 November 2022, p 166(14)-167(10):

Counsel raised the issue of Mr Puleo continuing to act for Dominic and John for some time, when it was clear that he would be a material witness in the proceedings. It was submitted that Dominic and John bore the burden of proving that Mr Puleo’s conduct had not compromised his own evidence and that of the witnesses whose evidence he helped prepare. It was submitted that Ms Williams’ evidence does not assist the Court in ascertaining whether the deceased had testamentary capacity at the time of executing the 2009 Will.

As stated, in NSW, there are professional rules binding solicitors, one of which is to the effect that a solicitor should not continue to act in a case in which it is known, or becomes apparent, that he, or she, will be required to give evidence material to the determination of the contested issues: Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, r 27.

Rule 27 is in the following terms:

Mr Puleo did not ever appear as “advocate” for Dominic and John at the hearing; rather, they were represented by senior and junior counsel. In this case, the 2009 Will is challenged on grounds which include that the deceased lacked testamentary capacity and did not know and approve of its contents. What Mr Puleo did, or did not do, in taking instructions, is also the subject of criticism.

Reference was made to rule 27.2 of the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules. Whilst the rule referred to may not be an absolute one, it is certainly a guideline of prudence. It is clearly designed to facilitate the efficient administration of justice.

Some of the difficulties may arise when a lawyer acts in proceedings where he, or she, may be required to appear as a witness have been discussed in G E Dal Pont, Lawyers’ Professional Responsibility (7th ed, 2021, Lawbook Co) at [17.45], who writes:

In Jeffrey v Associated National Insurance Co Ltd [1984] 1 Qd R 238, Thomas J wrote, at 245:

In Clay v Karlson (1997) 17 WAR 493, the solicitor was involved in the drafting of a codicil to a Will. It was not simply that the solicitor was required to give evidence in the proceeding on behalf of the client, but also that the solicitor’s conduct was criticised in that it was alleged that the codicil was prepared without contact with the willmaker prior to its execution.

Templeman J, at 494-495, formulated the test in relation to a situation in which the solicitors for a party were likely to be called to give evidence at trial:

More recently, in The Queen v Silverstein [2020] VSCA 233, the Court constituted by Kyrou, Kaye and McLeish JJA, wrote, at [118]:

I have carefully considered the criticisms made of Mr Puleo by counsel for Rose. He should not have acted for Dominic and John, as their solicitor in the contested proceedings, and certainly not after it was pointed out by Ms McIntyre. He should have more carefully considered his position once it became clear that he was going to be a material witness.

However, having observed him in the witness box, I am satisfied that his involvement as their solicitor, and in continuing to act as he did even though he was likely to be a witness, has not prejudiced the administration of justice. Furthermore, whilst he attended at some of the conferences, with Dominic and John, he does not appear to have participated in any meaningful way. Indeed, he was not challenged on his assertion that he had left it to Mr Joseph of counsel to draft the early affidavits for each of the witnesses. He also denied that he had discussed his evidence with any of the witnesses, a denial which I have no hesitation in accepting.

As will be read, I am satisfied, having carefully considered his evidence, that he was endeavouring to tell the truth as to the events that he remembered, to the best of his ability, concerning the instructions for the preparation, and subsequent execution of, the 2009 Will. I did not find any indication that his role as a witness in the proceeding was materially compromised by having initially acted for Dominic and John. It has not been demonstrated that his role after the commencement of the proceedings has resulted in a miscarriage of justice.

In Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275, I set out the relevant principles which concern a solicitor taking instructions for a Will. I shall repeat some of what I wrote there, with additional principles, where necessary.

It is trite that a solicitor taking instructions for a will has a duty to ensure that the person giving instructions has testamentary capacity and is giving instructions freely and voluntarily.

In R Jennings KC and J C Harper, Jarman on Wills (8th ed, 1951, Street & Maxwell) Vol 3 at 2073, it is said:

In Pates v Craig & Public Trustee (Estate of the late Joyce Jean Cole) (Supreme Court (NSW), Santow J, 28 August 1995, unrep), Santow J, at 36-39, made some general comments regarding the duties of a solicitor. Relevant to this case, his Honour wrote:

In Nicholson v Knaggs [2009] VSC 64 at [664], Vickery J recommended a "considered and appropriately structured interview with the testatrix" and, at [387], emphasized that "in order to establish knowledge and approval of a will by a testator, ‘more is required than merely establishing that the testator executed it in the presence of a witness after it had been read to, or by, him’".

In Manning v Hughes; Estate of Ludewig [2010] NSWSC 226 at [47], White J wrote:

The present probate proceeding appears to be one in which the words of Young J in Re Crooks Estate; Akerman v Brown (Supreme Court (NSW), Young J, 14 December 1994, unrep) may apply. In that case, at 29, his Honour had stated that evidence from a solicitor who has considerable experience, including in dealing with elderly clients, and their testamentary wishes, is valuable evidence of testamentary capacity because:

The passage quoted above was referred to, with approval, in Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218 at [52] (Macfarlan JA, Bell ACJ and McCallum JA agreeing) and Drivas v Jakopovic was referred to, with approval in Starr v Miller [2022] NSWCA 46 at [62] (Macfarlan JA, Meagher and White JJA agreeing).

Other authority supports the view expressed by Young J. Mummery LJ in Hawes v Burgess [2013] EWCA Civ 74, wrote, at [54], [57] and [60]:

Christopher Pymont QC, sitting as a Deputy High Court Judge, stated in his judgment in Ashkettle v Gwinnett [2013] EWHC 2125 (Ch) at [43] that the comments made by Mummery LJ:

In this regard, Campbell JA’s observations in Doulaveras v Daher (2009) 253 ALR 627; [2009] NSWCA 58 at [64] must be remembered:

In Chant v Curcuruto; Chant v Curcuruto, I wrote at [749]:

In Lim v Lim, I wrote, at [384]:

I accept that the value of the solicitor’s evidence should not be overstated, and it should not be regarded as being of magnetic, or definitive, importance. That evidence must be read with all the other evidence in the case.

Before making the factual findings necessary to determine this dispute, and although I have set out much of what follows in other cases, I repeat, for the benefit of the parties, and so that it is not thought I have not had regard to them, the principles that I have borne in mind.

As earlier stated, it is obviously impracticable to set out all of the contents of the affidavits, or the cross-examination of the witnesses. However, like all Probate and trust cases, this is a case that is fact sensitive. It follows that credit findings assume some significance.

Many of the events the subject of the evidence, occurred many years ago. As well, in litigation that is emotionally charged, it is best to treat all of the evidence of events that occurred long ago with particular care, and a degree of scepticism unless supported by other evidence or the inherent probabilities.

Also, each of the parties were faced with the Herculean task of giving evidence of conversations with, and recalling events involving, the deceased and with Giuseppe. Accordingly, there is the need for careful scrutiny to which evidence of conversations involving a person subsequently deceased, should be subjected: Plunkett v Bull (1915) 19 CLR 544 at 548-549; [1915] HCA 14 (Isaacs J). Neither the deceased, nor Giuseppe, was available, at the hearing, to directly confirm, or deny, the specific statements made by the witnesses.

Bryson AJ wrote in Zahra v Francica [2009] NSWSC 1206 at [1]:

In assessing the evidence and making findings of fact, what Hansen J wrote in Richardson v Armistead [2000] VSC 551 at [36] is also relevant:

Whelan J in Webb v Ryan [2012] VSC 377 at [22], referred to the difficulties in assessing evidence, in such circumstances, stating:

Also see, Ashton v Pratt (No 2) [2012] NSWSC 3 at [18] (Brereton J).

Because it was a subject of submissions by counsel for Rose, I also refer to what was written in State of Queensland v Masson (2020) 94 ALJR 785; [2020] HCA 28 at [112] (Nettle and Gordon JJ):

The process of litigation, itself, subjects the memories of witnesses to powerful biases. Considerable interference with memory is introduced in civil litigation by the procedure of preparing for trial. Statements are often taken a long time after relevant events and drafted by a lawyer who is conscious of the significance for the issues in the case of what the witness does or does not say. People also tend to believe memories to be more faithful than they are, and two common errors may be to suppose (1) that the stronger and more vivid the recollection, the more likely it is to be accurate; and (2) the more confident another person is in her, or his, recollection, the more likely it is to be accurate: Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) at [16] (Leggatt J).

Another danger identified by Leggatt J resulting from the passage of time is that of a witness honestly, but falsely, recalling matters in his, or her, own mind, and doing so in a self-serving way as the events of the case are reconstructed in his, or her, mind during the course of the litigation process.

I also note the comments of Lord Neuberger, then the Master of the Rolls, in Gill v Woodall [2011] Ch 380 at 387-388; [2010] EWCA Civ 1430 at [16], that:

I refer, also, to what Campbell JA wrote in Brown v NSW Trustee and Guardian [2012] NSWCA 431 at [52]:

Emmett J in Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers Appointed) (In Liquidation) (No 2) (2011) 297 ALR 56; [2011] FCA 1123 wrote at [48]:

Also see Neale v Bank of Western Australia [2014] NSWSC 315, Hammerschlag J at [198].

In Nguyen v Cosmopolitan Homes [2008] NSWCA 246, McDougall J, speaking with the concurrence of McColl and Bell JJA, similarly had expressed the view, at [44]-[52], that proof on the balance of probabilities required a feeling of actual persuasion; that the event in question was more likely than not to have occurred; with “a probability in excess of 50%”. His Honour repeated that view in Ballard v Multiplex [2012] NSWSC 426 at [126].

The credibility of a witness and her, or his, veracity may also be tested, where there is a conflict of evidence, as there was in the present cases, by reference to the objective facts proved independently of the evidence given, in particular by reference to the documents in the case, by paying particular regard to her, or his, motives, and to the overall probabilities: Armagas Ltd v Mundogas SA (The “Ocean Frost”) [1985] 1 Lloyd’s Rep 1 at 57 (Robert Goff LJ). Also see In the matter of Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7] (Black J).

I should also refer to an article by the former the Chief Judge at Common Law, P McClellan “Who Is Telling the Truth? Psychology, Common Sense and the Law” (2006) 80(10) ALJ 655, in which he wrote, at 665, quoting a passage from the “Guidelines Relating to Recovered Memories” (2000) of the Australian Psychological Society:

These observations were described by Leeming JA, in Nominal Defendant v Smith [2015] NSWCA 339 at [82], as uncontroversial and “supported not merely by one’s ordinary experience but also by a body of psychological evidence”.

As McLelland CJ in Eq wrote in Watson v Foxman (1995) 49 NSWLR 315 at 319 (in the context of whether alleged statements were misleading and deceptive):

More recently, in Lachaux v Lachaux [2017] 4 WLR 57; [2017] EWHC 385 (Fam) at [36], citing Onassis and Calegoropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 at 431, Mostyn J noted that:

I also refer to what McHugh J, as a member of the High Court, wrote in Longman v R (1989) 168 CLR 79; [1989] HCA 60 at [17]:

Yet, as was observed by Bell P (with whom Bathurst CJ agreed) in ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24 at [27]:

Evidence given against interest, or which is inherently probable, is more convincing: Saravinovska v Saravinovski (No 6) [2016] NSWSC 964 at [467] (Kunc J).

Experience dictates that greater weight is usually accorded to contemporaneous documents, as often they provide a safer repository of reliable fact, particularly when it is clear that they have been prepared by a person with no reason to misstate those facts in the documents and where there is no suggestion that the documents are other than genuine: Hughes v St Barbara Mines Ltd [No 4] [2010] WASC 160 at [157] (Kenneth Martin J); Evans v Braddock [2015] NSWSC 249 at [74].

In cases that involve family members, typically there are fewer contemporaneous documents, and therefore, what is stated in [333] is less obviously applicable. This is not an admonition against placing any reliance at all on the recollections of witnesses. It simply emphasises “the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed”: Kogan v Martin [2019] EWCA Civ 1645 at [88] (Floyd LJ).

In Papas v Co [2018] NSWSC 1404 at [63]-[65], I considered the approach to be followed when some, but not all, aspects of a witness’ evidence are proven to be false or otherwise unreliable. Those remarks are particularly apposite here:

I have also had regard, amongst other things, to whether the evidence given is inherently plausible or implausible; whether it is evidence that is specific as to time and otherwise consistent; whether, in a material way, it is, or is not, conformable to other evidence in the case including the available contemporaneous documents; and whether it is contradicted by other evidence which is undisputed or indisputable. I have endeavoured to consider the evidence, not only in its context, but in the context of the total evidentiary mosaic. Common sense and ordinary experience in life are also applied.

In relation to Mr Puleo, it is noted that he relied upon what he described as his usual practice. It is necessary to say something about how the Court should treat that evidence.

In Connor v Blacktown District Hospital [1971] 1 NSWLR 713, Jacobs JA, at 716, wrote:

Asprey JA (with whom Mason JA agreed) wrote at 721:

In SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd (2017) 345 ALR 633; [2017] NSWCA 132 at [150] McColl JA (Gleeson JA and Sackville AJA agreeing) cited Connor v Blacktown District Hospital with approval.

In Elayoubi v Zipser [2008] NSWCA 335, Basten JA (Allsop P and Beazley JA agreeing) wrote at [86]:

In Neville v Lam (No 3) [2014] NSWSC 607 at [105]-[107], Beech-Jones J wrote:

In Gooley v NSW Rural Assistance Authority (No 3) [2019] NSWSC 1314, Parker J wrote, at [118]-[119]:

Somewhat relevant is also the principle as it was stated in Drivas v Jakopovic, a Probate suit in which the solicitor had no independent recollection of his dealings with the deceased and did not keep any notes of what passed between them. The following passages appear at [54]-[57] (Macfarlan JA):

It can be seen, therefore, that the weight to be attached to evidence of a usual practice, and the question whether that evidence is to be preferred, depends upon the specific nature, and quality, of the evidence that is given in a particular case: Phelan v Melbourne Health [2019] VSCA 205 at [84] and the cases cited at [80]-[83] (Tate AP, Kaye JA and Zammit AJA). As will be read, Mr Puleo had some independent recollection of acting on behalf of the deceased.

The Court is required to determine, on the balance of probabilities, considering s 140(2) of the Evidence Act 1995 (NSW), in particular, whether Dominic and John have established what they have set out to establish to succeed in the Probate proceedings and in the trust proceedings.

In relation to several affidavits of Dominic and John, there is a wider issue that was raised by counsel for Rose, namely the similarity of the wording of parts of the affidavits with the other.

A very detailed Schedule, prepared by Ms McIntyre, was tendered, without objection, and marked Ex. D7. I shall not set out all of the paragraphs identified therein, but the following aspects of the evidence noted by her, as they appear, seem to be particularly relevant:

Dominic maintained in cross-examination that the words in his affidavit reflected his own language or what he had told the lawyer: Tcpt, 3 November 2022, p 227(14-42).

When it was put to John, he responded: “Yeah we both said, we were both there at this event, so how can it not be a very similar thing”: Tcpt, 8 November 2022, p 349(47-50).

In Plus One International Pty Ltd v Ching (No 3) [2020] NSWSC 1598, I wrote, at [280]-[285]:

A similar view was taken by Black J in No 1 Victoria Dragons Pty Ltd v AEN Developments Pty Ltd [2022] NSWSC 1345 at [124]-[126]. In In the matter of Colorado Products Pty Ltd (in prov liq) (2014) 101 ACSR 233; [2014] NSWSC 789 at [16], his Honour had expressed the view that it did not matter whether the identical passages in affidavit evidence was the result of collusion between the witnesses personally or was the result of one adopting evidence that had been copied from the affidavit of another, or a witness adopting evidence that had been copied from another’s affidavit, since “each substantially devalues both witnesses' affidavit evidence where no explanation has been given of what occurred”.

Naturally, it is very serious for affidavits of separate witnesses, deposing to controversial topics, to be prepared in what is described as “a cut and paste manner”. The consequence, as is obvious from the submissions of senior counsel for Rose, results in a very serious attack upon the credibility of both Dominic and John: Nadilo v Souris [2019] NSWSC 108 at [41]-[42] (Leeming JA).

In this case, I remember also that the affidavits referred to were witnessed by the same solicitor and were executed on the same day. Clearly, there is a substantial similarity between the conversations about which each gave evidence, although there are also some minor differences. However, it is to be recalled that each witness was seeking to recall conversations that had occurred in his presence and in the presence of the other, and which had occurred more than a decade before each of the affidavits were prepared.

Whilst I appreciate that the minor differences do not preclude there having been a single original version of the conversation, which was altered in relatively minor respects when each of the affidavits was prepared, I am of the view, having carefully considered the evidence of Dominic and of John, that I should accept his evidence, respectively, and his denial that there was any "collaboration" with the other in the affidavit evidence.

Although it was not suggested that the similar evidence occurred because the stated conversations derived from any contemporaneous recording thereof to which either, or both, had referred, overall, I was satisfied the evidence of each reflected a genuine recollection of the events that had occurred. In this regard, I refer to what Robb J wrote in Spink v Flourentzou [2019] NSWSC 256 at [178] (affirmed on appeal in Flourentzou v Spink [2019] NSWCA 315):

It is likely that there was reasonable clarity of recollection by each of Dominic and John as to what had been said, which, after all, was relatively simple and straightforward. I also note that some attention, in relation to the individual affidavits, has been given to the level of the particular words used.

There is one other matter of particular importance on this topic. In an affidavit made on 22 October 2020, Rose denied that she had been involved with the preparation of any Wills for her parents. She admitted, however, that in about 1993-1994, she had driven her parents to an appointment with Mr Puleo, but she maintained that she did not participate in the meeting with him and was not aware of the terms of any Wills executed by either of her parents at the time. Additionally, she claimed that Alan had been working in the city that day and had not been involved.

Each of Dominic and John, respectively, had given evidence about a conversation with Giuseppe, near to where he was growing tomatoes, at which the deceased, and both of them, were present, concerning what Rose (and Alan) had done in relation to taking Giuseppe and the deceased to make a Will: Affidavit, Dominic Meduri, 19 October 2020 at pars 12-14; Affidavit, John Meduri, 19 October 2020 at par 4. Each of Dominic’s, and John’s, affidavit, was made a few days before Rose’s affidavit was sworn, or it would seem, before it was served.

No prior Will of Giuseppe, or of the deceased, has been located, and Mr Puleo had no documents, or even a recollection, of having met with Giuseppe and the deceased, in about 1993 or 1994, in relation to making a Will for one, or both, of them. Thus, it is unlikely that Mr Puleo would have told Dominic or John about any such event. Nor was it suggested to Mr Puleo, Dominic, or John, that Mr Puleo had done so.

It is highly unlikely that either Rose, or Alan, had told Dominic, or John, that Rose (or they), had taken Giuseppe and the deceased to see a solicitor to make a Will. Then, if neither Rose, nor Alan, told Dominic, or John, about that event, it is difficult to see how both would have known about that event, other than as a result of having been told about it by Giuseppe in the conversation alleged.

An analysis of the objective evidence of what was done in relation to a family arrangement and what the probabilities suggest was the true arrangement between the parties, often is useful. In this case, the substance of the conversation with Giuseppe and the deceased, and then with the deceased, following Giuseppe’s death, appears plausible bearing in mind the terms of Giuseppe’s Will, which devised, by way of substitutionary gift, the Kemps Creek property to Dominic and John as tenants in common in equal shares. The terms of the 2009 Will made the same devise to Dominic and John.

Rose came to be aware of the terms of Giuseppe’s Will in about November 2009. There was evidence, given by Alan, that she had been told, by Connie, in early 2010, that the deceased had made a Will. It is likely that this knowledge fuelled her view that a Will which provided for the Kemps Creek property to be devised to Dominic and John, was “unfair”.

Even if there had been some collaboration between Dominic and John, I am satisfied that it has not been established to the extent that I ought to reject the evidence by him, respectively, on the topic of the conversations with Giuseppe and with the deceased.

Before leaving this topic, I should refer, generally, to the affidavits read where the deponent was not cross-examined.

Whilst, prima facie, a court will accept the unchallenged evidence of a witness upon the assumption that the party who fails to cross-examine is taken to have accepted that evidence, acceptance by the Court of that evidence is not automatic. Ultimately, the circumstances of the case may negative the assumption: Nominal Defendant v Saleh [2011] NSWCA 16 at [140] (McColl JA, with whom Beazley and Giles JJA agreed, referring to Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 236).

The fact that none of the parties has challenged the evidence, particularly in Joseph’s case, provides a cogent reason for its acceptance.

I shall deal, next, with the evidence of the lay witnesses. I shall state some of the evidence given by the witness, the submissions made about the evidence, and then my findings on the credibility of that witness. These findings will, at least in part, depend upon my impressions of the witness based upon my observation of the way he, or she, gave oral evidence, and upon evidence that bolsters, or impugns, his, or her, credit. In doing so, I am well aware that it is frequently very difficult to tell whether a witness is telling the truth or not and the honest distortion of memory through the litigation process.

As has been read, I have reservations, to varying degrees, about the credibility and reliability of some of the evidence of some of the lay witnesses.

Mr Puleo was the only available witness who was involved, closely, in the instructions for, the preparation of, and the deceased’s involvement with, the 2009 Will. He has no direct financial interest in the outcome of the Probate proceedings. As will be read, he is, and was even in 2009, a solicitor of considerable experience, including in dealing with elderly, and Italian, clients. His evidence is valuable and must be carefully considered.

In fairness to him, it is to be remembered that the events the subject of his evidence concerning the 2009 Will occurred over a decade before the death of the deceased and when the Probate proceedings were commenced, and 13 years before the hearing. His lack of recollection is, therefore, understandable.

By the time the proceedings were commenced, his original Will file, with any file notes that he had made, and which had been retained in the file, had been destroyed. He gave evidence that the contents of Will files had not been kept after 7 years: Tcpt, 2 November 2022, p 125(23)-126(3); 146(35-43).

(There was some suggestion in the submissions by senior counsel for Rose that Mr Puleo had made no file notes. I think it more likely than not that there were file notes. He was too experienced a solicitor to not keep any file notes and there is the file note of 31 August 2009, referred to earlier, which had been located. Nor do I accept the submission that Mr Puleo acknowledged that if he had kept file notes it demonstrated that he had concerns about the capacity of the deceased.)

He was cross-examined extensively, yet fairly, by senior counsel for Rose.

Mr Puleo gave evidence, in re-examination, that when he had prepared his affidavit of 20 May 2022, he had been given access to documents, produced on subpoena, to which he had not had access when he had prepared his earlier affidavits, which documents he said had refreshed his memory.

Reference was made by senior counsel for Rose to Mr Puleo’s repeated use of the phrase “I would have…”, which it was put was “a sign of reconstruction”. He frequently used that phrase during his cross-examination: Tcpt, 2 November 2022, p 120(46); 121(15); 127(11); 151(24); 153(8); 162(19); 164(39); 165(24); 166(37); 176(20), (32), (40).

There was, however, no real challenge to his evidence of what he described as his usual practice. What was really in issue was whether Mr Puleo had followed that practice when dealing with the deceased and whether what he said that he had done was sufficient for the Court “to confidently pronounce in favour of the 2009 Will”.

In the circumstances, whilst a measure of caution is required in relation to his evidence, which, in broad terms, was based, principally, on what had been his usual practice, and some independent recollection of the events that had occurred, his evidence of usual practice is not without significance. It is to be remembered, however, that he did not engage in a formal assessment of testamentary capacity. Despite that, his evidence was relevant, admissible, and probative.

I turn now to Mr Puleo’s evidence. He was called in the Probate proceedings by Dominic and John.

Mr Puleo was born in Sicily in 1949 and came to Australia in January 1951. As his parents did not speak English, he grew up speaking Italian at home and learned to speak English outside the home. His parents were Sicilian and he spoke the Sicilian dialect at home. He stated that he had no difficulty being able to converse in spoken Italian with people from Calabria and other parts of Italy. Indeed, he stated that the regions of Calabria and Sicily were 20 kilometres apart: Tcpt, 2 November 2022, p 177(33-35).

There was some criticism of Mr Puleo not having engaged an interpreter. However, an interpreter would only have been required if he had concluded that it was possible that the deceased would not understand him or that he would not understand her. He gave evidence that the Calabrese dialect was different from the Sicilian dialect, because of some different inflections on words, and that the words were not different, it was only the way they were pronounced.

I am satisfied that Mr Puleo concluded that the deceased did not have any difficulty understanding him. It was not suggested that he had any difficulty understanding her.

He had been practising as a solicitor since 1973. He had run his own practice since 1974. He had always had an extensive practice with people from Italian backgrounds and who have come from different parts of Italy. He estimated that, over the years, he had “witnessed and prepared thousands of Wills for clients.” By October 2020, he estimated that his firm held some 1,600 Wills and securities.

It was clear, from his evidence, overall, that even in 2009, Mr Puleo had over 30 years’ experience as a solicitor drafting wills. His evidence as to his usual practice demonstrated an understanding of the test in Banks v Goodfellow (1870) LR 5 QB 549. He gave specific evidence that he discussed with the deceased the persons who had a claim on her bounty, and the extent of her estate: Affidavit, John Puleo, 21 June 2021 at pars 18-19.

His evidence included that he had attempted to set out in his affidavits his entire recollection of what had occurred during these conferences concerning the 2009 Will, to the best of his ability.

Mr Puleo first met Giuseppe and the deceased in the late 1980s when Giuseppe sought professional advice from him with regard to the subdivision of the property at Bossley Park and then in relation to the purchase of the Kemps Creek property. Mr Puleo indicated that throughout the course of this matter, he had communicated with Giuseppe, and with the deceased, who accompanied Giuseppe, in Italian, and neither of them had exhibited any difficulty understanding, or communicating, with him. Similarly, he had no difficulty understanding either Giuseppe or the deceased.

There was evidence that some years later, in 1993 or 1994, Mr Puleo had taken instructions for the preparation of a Will when Rose had taken them to see him. However, he had no recollection of this event. In reply to Rose’s affidavit, he indicated that he had no knowledge of any Will made by the deceased approximately 20 years before the 2009 Will, or at any other time. He observed that there would not have been a need for her to make a Will, at the time Giuseppe made his Will, because all the properties owned by the couple were registered in Giuseppe's name or as joint tenants, and that if he were to die first, the properties would pass to the deceased under his Will.

Mr Puleo recalled that Giuseppe returned in around 2001 to have a will made so as to make specific provision for his son, Joseph, who had been unwell with mental health issues, the nature of which was not the subject of discussion between them. Giuseppe had made clear to him that because of those mental issues, he wanted to ensure that he was looked after. He also wanted to ensure that the property devised to Joseph would only go to children, by birth, to him. He could not remember, in answer to a question from the Bench, whether the deceased had been present, with Giuseppe, when the instructions for, or the execution of, a Will for Giuseppe had occurred: Tcpt, 2 November 2022, p 178(34-40).

Mr Puleo also said that prior to 2009, he had met the deceased three or four times: Tcpt, 2 November 2022, p 114(50)-5(3). He had not seen her at any time after about 2001, until he met with her, and others, following Giuseppe’s death, although he had continued to have some ongoing contact with Giuseppe about the sale of about six of his properties after the subdivision of the Bossley Park property. He had never previously taken instructions from the deceased.

He had not met Dominic, or John, until after the death of Giuseppe. He specifically denied that the instructions had come from Dominic or John and said that the 2009 Will had been drafted, initially, in accordance with what had been her husband’s wishes. Whilst Connie was also present, he did not know why she had been at the conference with the executors who had been named in Giuseppe’s Will.

Mr Puleo said that it was his practice that if he had any reservations about whether a client lacked capacity, he would request the involvement of a medical practitioner. No such request had been made in relation to the deceased. He also said that he recalled that she had wanted the properties left in the manner that was set out in the 2009 Will, and that he would not have written it the way that he had if she had not given the instructions.

In cross-examination, Mr Puleo was referred to the Law Society’s Capacity Guidelines and he said that in 2009, he was aware of those Guidelines. (The reference was, in fact, to a document headed “When a client's mental capacity is in doubt – A Practical Guide for Solicitors” which was tendered as Ex. P2 in the Probate proceedings.) He said that he had understood in 2009 that it would often be difficult to know when a client's capacity may be in issue. He also understood that, in some cases, it may not be obvious that a person may lack capacity and that many people with age-related cognitive disabilities may present extremely well to people who do not know them well and can appear capable. He also understood, in 2009, that a distressed widow may suffer some form of cognitive impairment.

It was not submitted that the Court should disbelieve Mr Puleo’s evidence in this regard. I accept his evidence. Even though he had not seen the deceased for 8 years, at the time he first obtained instructions to prepare her Will (Tcpt, 2 November 2022, p 115(13-20); 144(25-27)), Mr Puleo was in a good position to assess her capacity, as she was not a complete stranger to him.

Of course, when he met her twice, in 2009, he was acting for her, in relation to the preparation of her Will, and for her, Dominic and John in obtaining Probate of Giuseppe’s Will. In complying with his obligations, as a lawyer, it would have been necessary to discuss with her the property that she owned as well as the property that she would receive by survivorship, or pursuant to the terms of Giuseppe’s Will.

It is clear, however, that some of Mr Puleo’s evidence about the sequence of events in 2009 involving the deceased was wrong. He wrote, in his first affidavit, about the taking of the instructions for a Will and its drafting, and then the execution of the 2009 Will, on the same day. His evidence in this regard was in error, a matter he acknowledged: Tcpt, 2 November 2022, p 118(18)-119(24). In fact, some weeks passed between the first and second conferences, during which time Mr Puleo had no contact, by telephone, or otherwise, with the deceased.

After the making of his first affidavit, the file note dated 31 August 2009 was produced. This file note makes clear that Mr Puleo took instructions from the deceased prior to that date. She returned on 18 September 2009 to have the 2009 Will read to her, signed, and witnessed. He wrote that this would “certainly be in keeping with my normal approach to taking instructions and having a will signed and witnessed on different days”.

Whilst the evidence about the date of his first conference with the deceased was imprecise, it was clear, by the conclusion of the hearing, that it had occurred on about 18 August 2009. There is no dispute that another meeting had occurred on 18 September 2009, which was the date of the execution of several documents, including the Summons for Probate (filed on 23 September 2009), and an affidavit of executors made on 18 September 2009 and also the date on which the 2009 Will was executed.

A point was made that Mr Puleo had not sent the draft Will that he had prepared to the deceased between 31 August 2009 and 18 September 2009. This is explicable since she could not read English.

The firm’s Costs Agreement dated 15 September 2009 in relation to the executorial work to be completed was sent to each of the executors of Giuseppe’s Will, to the deceased’s home address, being the No 7 Bossley Park property: Ex. MB1/107. It clearly reflected his knowledge of the deceased’s inability to read, or speak, English, and that she could not sign her name (Ex. MB1/111). In this regard, Dominic and John were co-executors.

Mr Puleo was unable to say how long each meeting held with the deceased, in 2009, had taken. He did not have a good recollection of the deceased’s physical appearance, other than recollecting she was elderly, and had no recollection of the questions that he asked the deceased (Tcpt, 2 November 2022, p 128(24-26)), or of the deceased’s answers to any questions he might have asked (Tcpt, 2 November 2022, p 146(31-33)).

It was in the context of seeing Mr Puleo, following Giuseppe’s death, the executors giving instructions for the Probate affidavit, which meeting must have occurred before 31 August 2009, that the deceased recognised that she should make her own will: Affidavit, Dominic Meduri, 19 October 2020 at par 25.

Mr Puleo also gave evidence that at the first meeting in 2009 with the deceased, she instructed him to make a will for her in the same terms as that of Giuseppe, “with a variation”: Tcpt, 2 November 2022, p 123(38-40). I shall return to this aspect shortly.

He wrote in his affidavit sworn on 20 October 2020 “I spoke to her alone in my office and she said to me words to the effect of ‘I want to do a will that is the same as my husband's and leave the property to our children in the same way he did’”.

(I interpolate that, as will be read, I am satisfied that the discussions said to have occurred with Dominic and John about the Kemps Creek property to which detailed reference will later be made, occurred in the deceased’s presence. Furthermore, the deceased was present when Dominic was shown a copy of Giuseppe’s Will: Affidavit, Dominic Meduri, 19 October 2020 at par 15. She had been able to recall the terms of that Will when she “checked in” with Dominic and John about whether they remained content with the arrangements before she went to make her own Will.)

Mr Puleo recalled that when he saw her in 2009, the deceased was elderly, but mobile, although he said he did not know her age; he thought she was not using a walking frame. He did not find her to be hard of hearing, and did not recall having to yell, or to speak up to ensure that she heard him. He did not come to know that Connie was living with the deceased and was her carer until 2014.

He maintained that when he discussed the Will with the deceased, on each occasion, only she and he were present. In cross-examination, his attention was directed to whether he had asked the deceased her address. This was because the 2009 Will commences by incorrectly recording the number of her home address as “8” rather than “7”.

He gave evidence that he did not recollect asking for her address; though the incorrect number was “a typo”, he had not read the introductory paragraph of the 2009 Will when taking her through it. He had started with the revocation clause, explaining to her that this was her last will and the effect of the Will. He stated that whilst he did not read, verbatim, the contents of the 2009 Will to her, he explained each paragraph to her.

Mr Puleo stated that on the day the 2009 Will was executed, he had explained the terms of the 2009 Will to the deceased before she executed it. He was adamant that each of Dominic, John, and Connie, was not present in the room when he went through each paragraph of the Will, that he had previously drafted, on which the deceased subsequently placed her mark on each page.

Mr Puleo gave evidence that his usual approach was to always ascertain whether his client had capacity. In the event he had any doubt, he indicated that he would ask his client, a member of the family, or the carer, to obtain medical evidence to support her, or his capacity, to make a Will. Here, he did not seek to obtain any medical evidence. Nor did he ask about medications, if any, she was taking. However, Mr Puleo did not ask the deceased, or any of her three children, about her medical conditions; did not ask the deceased about any medications that she was taking; and did not ask her who her treating doctors were.

Although he did not recall the questions that he had asked the deceased to satisfy himself of her capacity, he said that the usual procedure he adopted, was to ask questions to ascertain whether the will maker had understood what a will was, whether she, or he, could identify her, or his, children, her, or his address, the property that she, or he, owned, and what she, or he wanted to do with the property. He stated that he had no reason to think that he would have departed from his usual procedure in dealing with the deceased.

His evidence was that, on each occasion that he had met with the deceased, he had no problem communicating with her in the Italian language. He was confident that she understood him and that he understood her. This is a matter of dispute between the parties, as Rose gave evidence about the deceased only speaking in the Calabrese dialect and not speaking Italian generally.

Mr Puleo also wrote that he had drafted the deceased’s Will to reflect Giuseppe’s Will. (This conversation does not support the submission made at [201] of the opening Outline of written submissions, that “There is no evidence that the deceased exercised any independent judgment in instructing John Puleo, solicitor, to make a Will”.)

The evidence, not the subject of challenge, and which I accept, demonstrates the deceased’s appreciation of the nature of a will, and an understanding that Giuseppe had died leaving all his property to her, as well as an astuteness that, as she was inheriting his property, as well as succeeding to their jointly held property, she would have an estate to dispose of upon her own death.

In fact, there were several variations to Giuseppe’s Will. There was the inclusion of protection of Joseph’s inheritance, which Mr Puleo equated to a trust of Joseph’s share of residue (Clause 8(f)) rather than the outright gift that had been made in Giuseppe’s Will, and the addition of consequential trustee powers (Tcpt, 2 November 2022, p 124(38-39)). The explanation for that variation was Joseph’s “mental issues” (Tcpt, 2 November 2022, p 124(18-20).

Also, particularly relevant was the inclusion of the gift of her personal effects, including jewellery, to her only daughters, Rose and Connie. That she was able to provide those instructions is important to the aspect of testamentary capacity and knowledge and approval.

Mr Puleo maintained that after speaking with her, he was satisfied that the deceased was capable. He stated that she was alert, clear about what she owned, and about what she wanted to do in her Will, which was to “effectively replicate her husband’s Will”. He also stated that he had no doubt about her capacity because there were no “red flags”.

Ultimately, it was clear, from his evidence, taken with other evidence, that Mr Puleo met with the deceased, Dominic, John, and Connie, at his office, for the first time, a few weeks after Giuseppe’s death. It is not possible to state, with precision, the date of this first meeting with them, but it is likely to have been before 31 August 2009. (I have referred to a file note, of that date, which records a telephone conversation, between someone from the firm, probably Carmel Romeo, and Dominic, stating that a Will for the deceased had been prepared (Ex. MB1/007). In relation to Ms Romeo, she had ceased working at his firm in about 2017 and he continued to have some intermittent social contact with her.)

At the August 2009 meeting, the date and duration of which he could not remember, Mr Puleo stated that he had discussed at least two different matters, one relating to the process of obtaining Probate of Giuseppe’s Will, which he discussed with all four family members who were then present, and the other, relating to taking instructions, from the deceased, regarding the preparation of a Will for her, which he discussed with the deceased alone, in his office: Tcpt, 2 November 2022, p 131(18)-132(31).

In relation to this meeting, Mr Puleo recollected having the files and the deeds in the deed packet, which he produced. He identified the properties, he asked what other assets there were, whether there was a bank account, and it was, thereafter, that they talked about a will. He had a recollection about reading Giuseppe’s Will. He maintained that no instructions for the deceased’s Will had come from either Dominic or John and that the basis of the deceased’s Will was what appeared in Giuseppe’s Will.

In his later affidavit in reply, sworn 21 June 2021, Mr Puleo recalled that the deceased was concerned about her son Joseph, as she said, “Joseph is living with another woman. I want to make sure that Joseph is cared for, and [that] he will have the house to live in”. He understood that she wanted to ensure that the house was for Joseph and not for his current partner.

In cross-examination, he confirmed his evidence about discussions with the deceased about Joseph, stating that, whilst he did not obtain any further details about Joseph’s medical condition, he formed the impression that his condition had deteriorated, and that the deceased wanted to ensure that he was "to be looked after with, for his food, (…) his upkeep", as the deceased was worried that he wouldn't be able to look after himself: Tcpt, 2 November 2022, p 116(40-46). He acknowledged that he had never met Joseph.

He also gave evidence in cross-examination, that when the deceased attended his offices in August 2009, he recalled that she was not using a walking frame, she did not have any hearing problems, nor did she display a low mood or signs of agitation: Tcpt, 2 November 2022, p 129(6-20). (In regard to his evidence about using a walking frame, I am satisfied that his evidence may have been inaccurate, although I do not think that much turns on this.)

He gave evidence that he had implemented her instructions by the devise of the real property to Joseph on trust for life and the clause in the 2009 Will relating to the use of his share of rest and residue for his maintenance and advancement in life. He did not advise her whether the provision for Joseph was appropriate having regard to Joseph’s medical condition. However, whilst he agreed that the discussion with the deceased on this topic had not been included in his affidavits, he had discussed with her how, under the scheme of the 2009 Will, Joseph's medical and food needs would be satisfied: Tcpt, 2 November 2022, p 117(23-32). He specifically denied that he had “no recollection of that exchange involving Joseph and you put it in your June 2021 affidavit, having regard to what you saw in relation to clause 8(f)”: Tcpt 2 November 2022, p 159(23-26).

He admitted that he had no information about where Joseph was living in 2009 and whether he could obtain the benefit of the limited interest in the real estate referred to in Clause 4 of the 2009 Will. However, he believed the provisions were appropriate because Giuseppe previously, and then the deceased, had told him that Joseph had a mental issue, and “they were my instructions”. He admitted he made no further inquiries about what that mental issue was: Tcpt, 2 November 2022, p 160(15-46).

In cross-examination, by counsel for Joseph, Mr Puleo agreed that “in giving you her instructions [the deceased] was concerned to ensure that Joseph had secure and permanent accommodation and was provided with somewhere to live out of her estate” and that she had an “additional desire to ensure that Joseph's upkeep and food and medical expenses and welfare were attended to”: Tcpt, 2 November 2022, p 169(1-43).

Mr Puleo was unable to recall the length of the second meeting with the deceased, Dominic, and John, and how long it had taken to go through the Will with and explaining each clause thereof to, the deceased.

It appears, that in stating that Ms Williams was present during the whole of his discussion with the deceased on the day of the execution of the 2009 Will, his evidence was incorrect: Tcpt, 2 November 2022, p 126(32)-127(3). I am satisfied, however, that this error was unintentional.

He also clarified, in his affidavit evidence in reply, that the deceased did not require any assistance in executing her mark on the Will. He denied that any assistance had been given to her when she made her mark on each of the pages. Indeed, he stated that in his career, he had “never” allowed someone to assist another person to sign a will: Tcpt, 2 November 2022, p 174(30-32).

In re-examination, he was again referred to the Law Society Guidelines. On page 4, the following appears:

He stated, whilst acknowledging that he had a limited recollection, that he had not observed any of the difficulties identified: Tcpt, 2 November 2022, p 176(10-15).

Mr Puleo gave evidence that, subsequently after the Probate and will drafting had concluded, the deceased provided instructions to sell the No 8 Bossley Park property although when that occurred is not clear. He said that the conveyancing section of his office had taken over acting on that transaction. Bearing in mind the other evidence, this is likely to have occurred some months after September 2009.

On 6 November 2014, the deceased attended, with Connie, upon Mr Puleo. He recalled that the deceased could not give sufficiently clear instructions as to how she wanted to change her Will, and that, consequently, he was not satisfied of her capacity and refused to assist the deceased in changing the Will. His file note of that date reveals (Ex. MB1/019):

In cross-examination, Mr Puleo was asked questions about how the deceased had changed since he had last seen her in September 2009 and he responded (Tcpt, 2 November 2022, p 153(23-34)):

In oral submissions, senior counsel submitted that the deceased was not well-known to Mr Puleo. In the years between 2000 to 2009, Mr Puleo only dealt with Giuseppe. At the time the deceased saw Mr Puleo in 2009, he had no contact with her for about 8 years: Tcpt, 13 December 2022, p 891(20-25). Further, senior counsel submitted that Mr Puleo’s affidavit evidence regarding why the deceased did not execute a Will in 2001 when Giuseppe’s Will was executed “really is an ex post facto reconstruction by him as to why something did not occur”: Tcpt, 13 December 2022, p 892(38-42).

Counsel for Rose submitted that Mr Puleo, in 2009, had not placed himself in a position where he could make a proper assessment of the deceased’s capacity; that he was unfamiliar with the deceased; that he did not realise that there were any red flags because he had not enquired about matters that would give rise to the recognition of such; that he had failed to ask questions that canvassed any of the limbs in Banks v Goodfellow; had failed to ask appropriate open-ended questions; and that he had a poor recollection of what had occurred.

They also submitted that Mr Puleo had not provided any evidence of any steps he specifically took in the case of the deceased to assess her capacity, nor were there any contemporaneous file notes of his meetings with the deceased. It was submitted that Mr Puleo’s normal procedure was insufficient to dispel the doubt over the deceased’s capacity as raised by the medical evidence, the evidence of the joint experts and the lay evidence.

Counsel referred to Lim v Lim at [384], and Doulaveras v Daher at [64] (Campbell JA, Giles and Macfarlan JJA agreeing). They submitted that this case was similar to that of Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007, in which Kunc J was not satisfied that the deceased had capacity, despite the contemporaneous file notes of the solicitor, and despite finding that she was “unshaken in cross-examination”.

Counsel pointed to the number of the address, which was wrong, and also that the 2009 Will incorrectly stated that the deceased’s first name as “Elizabeth”, when her “legal name was ‘Elisabetta’”. It was submitted that, whilst Mr Puleo accepted that he had no recollection of asking the deceased “where do you live?”, it is to be inferred that he did not ask her that question at all.

It was also submitted that Mr Puleo had no recollection of the deceased’s answers to his questions, and that his oral evidence suggested a process of reconstruction: Counsel for Rose’s written Outline of closing submissions at pars 154-162.

They also submitted that the 2009 Will represented a “significant and unexplained” departure from the wishes of the deceased, as she had communicated them to Rose and Tony, being, that everything would be “equal”. However, whilst there were references to the evidence, particularly by Rose, to the deceased saying the phrase in Italian, the conversations held between Giuseppe, the deceased, Dominic and John, also demonstrated a long-held intention to leave the Kemps Creek property to Dominic and John.

It should be noted that whilst in closing submissions, Mr Condon SC raised matters directed to the fallibility of Mr Puleo’s memory, he did not make any submissions attacking his honesty.

Counsel for Dominic and John submitted that there was a logical and highly unremarkable similarity in the transition from the way that Giuseppe sought to deal with his properties in his Will, if his wife were to predecease him, and how the deceased subsequently dealt with them in her Will.

It was also submitted that Mr Puleo’s evidence should be given substantial weight given his experience as a solicitor and evidence regarding his usual practice for assessing capacity. Particularly, emphasis should be placed on the fact that Mr Puleo, who knew the deceased reasonably well, had no concerns about the deceased’s testamentary capacity, seeing “no red flags at all”.

Counsel highlighted that this contrasted with the time when Connie brought the deceased to Mr Puleo’s office in 2014, where he had refused to take instructions as he assessed that the deceased lacked capacity at that time. This demonstrated that Mr Puleo was carefully attuned to the issue of elderly will-makers having capacity, and of not taking instructions where he was unsure as to the will-maker’s capacity.

It was submitted that the 2009 Will was entirely rational on its face, as it reflected the wishes of the deceased’s husband, each of the children received a property, and a trust was arranged for Joseph, due to his incapacity. Specifically, the Will left the Kemps Creek property to John and Dominic, in circumstances where they had been living there for more than 20 years. It was emphasised that the Will dealt with all the properties owned by the deceased and was prepared alongside the Probate application for Giuseppe’s estate, which counsel suggested was supportive of a finding that the deceased understood the extent of her property.

It was also submitted that Mr Puleo stated he had been able to communicate with Giuseppe and the deceased despite speaking Sicilian.

I have carefully considered the submissions made by counsel for the parties. Whilst Mr Puleo did not have a recall of the specific details of all that had occurred at the two attendances by the deceased upon him in 2009, there is no reason to disbelieve his assertion that his meetings with her about the terms of her Will were conducted in accordance with his usual practice, giving consideration to her inability to understand and read English, to sign her name by placing a mark on the 2009 Will, and her capacity to understand, and to know and approve of, what she was doing in making the Will.

Whilst he had not been the deceased’s solicitor for quite some time, as he had more dealings with Giuseppe, and had only acted for the deceased on occasions with Giuseppe, she was not a complete stranger to Mr Puleo. When he met the deceased again in 2009, he did not observe any significant changes in her that one might expect if one were to accept the evidence of some of the other witnesses: Tcpt, 8 December 2022, p 863(30)-864(12).)

I am satisfied that Mr Puleo took care to explain, rather than by reading aloud, the revocation clause, as well as the terms of the dispositive clauses of the 2009 Will to the deceased in the Italian language, “paragraph by paragraph”: Tcpt, 2 November 2022, p 126(28-30). He said that it would have taken “a good half an hour” (Tcpt, 2 November 2022, p 126(19-20)) after which he was satisfied that she understood its terms and that she was prepared to sign it. The last paragraph on page 7 of the Will reflects the care that he took to ensure that the deceased understood what she was signing: Affidavit, John Puleo, 21 June 2021 at par 21. Those paragraphs are reflected in the affidavit of executor signed by the deceased for her husband’s Probate, and other documents prepared by Mr Puleo.

Mr Puleo quite properly conferred with Dominic, John, and the deceased when the Probate of Giuseppe’s Will was being discussed, but, equally properly, conferred only with the deceased in relation to her own Will.

Having seen him in the witness box, I did not form the impression that he was attempting to portray a far greater level of care than was demonstrated by the objective facts. Rather, I am satisfied that he provided a complete and accurate recollection of what took place in connection with the making of the 2009 Will. Considering his evidence overall, I am satisfied that Mr Puleo was doing his best to state what he remembered. He gave his evidence in a calm and temperate manner. He acknowledged, and accepted, the factual error made in his first affidavit well before the hearing. Overall, I found him to be a fundamentally honest witness doing his best to assist the Court given the constraints of the passage of time.

In addition, overall, I did not find him to exaggerate, or play down, facts to suit a particular narrative or agenda. For the most part, where he was unable to recall events, he said so. I have already referred to his acceptance of the error made in his first affidavit.

Mr Puleo was also asked questions in cross-examination about the claim for a family provision order made in the trust proceedings by Dominic and John.

Written notice of the intention of Dominic and John to make a claim for a family provision order in the alternative to their claim that the Kemps Creek property was held on trust for them, was given to Mr Neal in a letter dated 20 August 2021, with a copy of the letter provided to Ms McIntyre and to Ms McMillan: Ex. MB1/278-279.

He was referred to a Joint Disclosure Statement, filed on 12 October 2020, which was tendered as Ex. P1 in the trust proceedings. This document disclosed:

It was suggested that the answers stated meant that consideration had been given to the claim for a family provision order during the prescribed period. Respectfully, I agree.

He was also shown a copy letter dated 6 November 2020, from the NSWT&G, which was marked as Ex. D2 in the trust proceedings, relating to Joseph making a claim for a family provision order. He gave evidence that whilst he discussed the contents of the letter with Dominic and John, and that a consequence thereof was that there could be an alteration of the terms of the 2009 Will, by way of greater provision, he did not discuss with them that a claim by each of them should be brought within 12 months of the date of the deceased’s death.

Mr Puleo gave evidence that he was aware of the period, prescribed by the Act, for the making of a claim and that there had been some discussions with them about a family provision order, but he was unable to remember when that discussion took place: Tcpt, 2 November 2022, p 112(3-10); 113(6-15). He said that he had sent a brief to counsel but could not remember when that was. He gave no further evidence on the topic in re-examination. His evidence also demonstrates no attempt to exaggerate the level of his recollection, even of more recent events.

In my view, Mr Puleo was a credible and satisfactory witness. Having seen and heard him give his oral evidence, I am satisfied that he saw the deceased alone when taking instructions for her Will; that he was able to communicate with the deceased and she with him in the Italian language; and that had there been any genuine concerns held by him about the deceased’s capacity, he would not have made a Will for her without the involvement of a medical practitioner, which involvement he evidently did not seek; that he understood her testamentary intentions, which were relatively simple (and which were apparently long held) and which she communicated to him; and that he was able to draft a Will based upon his understanding of the instructions that the deceased provided to him.

Ms Williams was formerly employed by Puleo Lawyers as an administrative and clerical assistant between about 1997 and 2016, excluding a period between about 2002 and 2004. She swore an affidavit of attesting witness on 12 October 2020, comprising 2 paragraphs, and another on 21 October 2020, comprising 13 paragraphs, spanning three pages. She was called in the Probate proceedings as a witness by Dominic and John.

She stated that whilst she was employed by Mr Puleo, she “witnessed hundreds, if not thousands, of wills along with [Mr Puleo]”.

She recalled that Mr Puleo, generally, had a “pretty standard” procedure for taking instructions, preparing, and then formalising a will for a client. She gave evidence of his practice surrounding the witnessing of wills which she had observed.

She stated that she was usually only present for the execution of the Will, but not for the taking of instructions. However, she noted that Mr Puleo had many Italian clients and would regularly speak with him, or her, in the Italian language, to obtain instructions. (She said that she was not able to speak Italian.)

Ms Williams confirmed that the practice was that usually she would come in and watch the will-maker read the Will or when Mr Puleo explained it before it was signed. She stated that if the will-maker asked any questions, Mr Puleo would explain the answer to him or her, and then she would watch the actual execution of the will: Tcpt, 2 November 2022, p 137(19-22).

As stated, other than identifying her, and Mr Puleo’s signature, Ms Williams had no independent recollection of the specific events surrounding the execution by the deceased of the 2009 Will.

In cross-examination, Ms Williams confirmed that she had no specific recollection of meeting the deceased or of having witnessed the deceased making her mark on the 2009 Will. She also stated that she had no recollection of being present when Mr Puleo translated a will into the Italian language. Nor did she have any specific recollection of the deceased. She could not remember the deceased’s appearance on that day, whether she required a walking frame, whether she was hard of hearing or her physical or mental state: Tcpt, 2 November 2022, p 140(37)-141(17).

Ms Williams also stated that she was not familiar with Dominic and John and could not recall whether she had met them before, at the execution of the 2009 Will, or otherwise.

I am satisfied that Ms Williams went as far as she could in giving evidence of her execution of the 2009 Will. Perhaps, the fact that she remembered so little about the deceased, and virtually nothing regarding the events surrounding the deceased’s execution of the 2009 Will, suggests that there was really nothing out of the ordinary that she had observed on the occasion the 2009 Will was executed by the deceased. One would have expected a secretary of her experience to have been used to dealing with people making wills and attuned to recognising a will-maker of suspect capacity.

I am satisfied that she was a fundamentally honest witness doing her best to assist the Court given the constraints of the passage of time.

Cathy Butera, who is the de facto partner of Sammy DiMaria (the son of Connie) swore one affidavit in these proceedings dated 6 January 2021, comprising 10 paragraphs, spanning three pages. She was called in the cases for Dominic and John.

She works as a mercantile agent.

Ms Butera gave evidence that the first time she met the deceased was at Christmas 2009. That, of course, was not very long after the 2009 Will was executed. She had not met the deceased at any time prior to Giuseppe’s death.

She stated that Sammy had a close relationship with the deceased and had spent a lot of time with her as a child: Tcpt, 10 November 2022, p 613(2-35). (It was submitted that the failure to call Sammy as a witness, therefore, was relevant.)

In cross-examination, she said that the Christmas meeting was not attended by a large gathering, (about four people) and that she had the opportunity to spend time talking with the deceased: Tcpt, 10 November 2022, p 608(46-47).

Her admissible evidence provided a description of the deceased:

She said that she was able to communicate with the deceased, partly, in English, but principally in an Italian dialect, which she said was used in Nicastro Catanzaro, Calabria. As she put it, in answer to a question from the Bench (Tcpt, 10 November 2022, p 614(15-24)):

She stated that she had no difficulty communicating with the deceased, and that the deceased had no difficulty communicating with her. She stated that during these conversations, the deceased was coherent, and made conversation with her about her own children, her grandchildren, and great grandchildren, the state of her garden, the origins of Ms Butera’s family, and the deceased had also asked about their health. She denied, when it was put to her in cross-examination, that the deceased “just sat there with her head down and wasn't able to communicate”: Tcpt, 10 November 2022, p 615(5-16).

On another occasion, the date of which was not the subject of evidence, the deceased had come to Ms Butera’s and Sammy’s house at Austral and they had made tomato sauce together. Thereafter, she saw the deceased, no less than about twice a year, always at Christmas and Easter, and at times, on other occasions: Tcpt, 10 November 2022, p 608(49)-609(1). Usually, she would speak with the deceased and Connie. The visits would take place at her house or at the house at Austral. The visits occurred over about 5 years: Affidavit, Cathy Butera, 6 January 2021 at par 5.

The deceased spoke, mainly about Connie and Dominic, never mentioning Rose. Ms Butera believed that, in 2009, whilst Connie was caring for the deceased, she was not living with the deceased, on a fulltime basis. She maintained that Connie was then living at Smithfield with some of her children.

Ms Butera recalled that in the time she knew her, she had observed the deceased to be able to communicate with her grandchildren, even though most of them could not speak Italian. She gave evidence that on each of the occasions that she saw the deceased thereafter, the deceased would recognise her, and ask her how Sammy’s son (from a previous relationship), who she called “the figlio” which, in her dialect, meant “the boy”, was doing. She had never seen the deceased screaming, or saying she was hearing voices. She could not recall seeing the deceased depressed, seeing her yell and curse, fixate about counting money, complaining about poor sleep, or moving around using a walker. The deceased had not complained to her about any hearing difficulties.

Ms Butera was asked whether she had been told, by any family member, about any of the problems referred to and she said that she had not. Very fairly, and I accept, truthfully, in cross-examination, she stated that, as she was not a doctor, she could not say that the deceased did not have any of the problems, but simply that she had not observed any of them. She did not observe the deceased to appear confused at any time before 2014 or 2015 and had not observed her to have any memory problems. She denied that her memory was faulty on the topic.

Nor could Ms Butera recall the deceased being in an agitated state, other than on one occasion, in 2014 or 2015, when she and Sammy had visited her in Fairfield Hospital where the deceased was a patient.

I was impressed by Ms Butera in the witness box. I am satisfied that she was a reliable witness who gave an honest account of her own recollection of family history. She should be regarded as an independent witness. I did not form any impression that she was endeavouring to give her evidence in a partisan fashion, endeavouring to favour Dominic and John. Indeed, she has no reason to support their proceedings, as Connie’s interests are greater on intestacy, and if they were to fail in the trust proceedings.

Ms Butera’s interests are unaffected, directly, whatever the result of the different proceedings. I consider her to be a straightforward, and most satisfactory, witness. During cross-examination, it was clear that she was endeavouring to provide the Court with her best recollection of the events as she recollected them.

I accept her evidence about her observations of the deceased, particularly as at Christmas 2009. I give that evidence weight. Where there is a conflict of evidence, with the evidence of Rose and any other witness, about how the deceased presented in late 2009, I prefer Ms Butera’s evidence.

Mr Ball swore one affidavit dated 18 May 2021, comprising seven paragraphs, spanning three pages. He was called in the cases for Dominic and John. His sole involvement with the deceased related to the sale of the No 8 Bossley Park property, in early 2010.

In cross-examination, Mr Ball acknowledged that he had no contemporaneous diaries, or other documents, which he had used to refresh his memory about the events of 2010. He stated that he could remember the meetings that he had held but could not remember the documents which had been executed at the time, such as the sales agency agreement. He gave evidence that he had relied upon his usual practice at that time: Tcpt, 10 November 2022, p 621(45-49).

He maintained that “[A]ll my dealings were mainly with Connie … and the mum”: Tcpt, 10 November 2022, p 619(22-49). (He made a reference to one of the deceased’s sons being present on an occasion, but he could not remember the son’s name.)

He gave evidence that, in 2010, after having been approached by Connie to give a market appraisal for the No 8 Bossley Park property, he had met with the deceased, on at least four occasions, prior to the property being marketed for sale. In addition, he also had numerous telephone conversations with Connie prior to an agency agreement being executed. He wrote that on each of these occasions, the deceased was present and although she could not, and did not, speak English, all communications were between him and Connie, who acted as a translator. Mr Ball observed that Connie appeared to be fully supportive of the deceased and appeared to be looking after the deceased’s best interests.

He also recalled that the deceased appeared to be fully coherent, alert, and had responded to what was said to her by Connie. The deceased would speak to him in Italian, and he recalls that one of the words she used was “Casa”.

From his conversations involving the deceased, Mr Ball had no concerns that she was not aware of the purpose of their meetings, which was to proceed to the sale of the No 8 Bossley Park property.

On the day the No 8 Bossley Park property was sold, the deceased was present and posed for a photograph in front of the house with him. His evidence on this topic was important because of Rose’s evidence, to which I shall refer later, about the photograph, a copy of which had been tendered and marked as Ex. MB1/294, and which was identified by Mr Ball as the photograph which had been published in a local paper.

Mr Ball also gave the following evidence (Tcpt, 10 November 2022, p 623(1-5):

Some criticisms were made of Mr Ball’s evidence by senior counsel for Rose. It was said that Mr Ball could not recall the deceased’s state of health, including whether she was seated, or mobile, during his meetings with her (Tcpt, 10 November 2022, p 623(10-11)); whether she used a walking frame (Tcpt, 10 November 2022, p 623(13-14)); or whether she had any hearing problems (Tcpt, 10 November 2022, p 623(16-17)); that he could not recall the name of the deceased’s son (Tcpt, 10 November 2022, p 619(39-49)); that he could not recall who signed his agency agreement (Tcpt, 10 November 2022, p 618(32-34); 619(2-4)); that he could not recall what was discussed at any of his meetings; that he was unable to refresh his memory from any contemporaneous documents such as file notes, diary entries, or the file in relation to this sale, as no such documents were available (Tcpt, 10 November 2022, p 618(7-18)); and that he could not explain why the deceased would use the word “casa” when the No 8 Bossley Park property was a vacant block of land.

It was also put that “Mr Ball had no way to assess the deceased’s mental capacity given the language barriers. The difficulties in detecting cognitive difficulties- referred to by the Law Society Guidelines … and by the Experts … apply with all the greater force to a person who could not communicate with the deceased”.

I have no reason to reject Mr Ball’s evidence. He was an uninterested witness who, in my view, did his best to remember events from over a decade ago. I was impressed by him in the witness box. I am satisfied that he was a reliable witness who attempted to give an honest account of his own recollection of the events which occurred. I did not form any impression that he was endeavouring to give his evidence in a partisan fashion, endeavouring to favour Dominic and John. Indeed, no reason was suggested for him to support their proceedings.

Importantly, I accept his evidence about the photograph taken at the time the No 8 Bossley Park property was sold which enables me to reject as false, Rose’s evidence on this topic to which I shall refer.

Mr Bonarrigo swore one affidavit in these proceedings dated 11 June 2021, comprising 17 paragraphs, spanning four pages. He was called in the cases for Dominic and John. He stated that he was 80 years old at the date of the hearing.

He first met the deceased in 1987. In fact, he purchased a block of land in the Bossley Park property that Giuseppe had sub-divided. It “backs onto the land owned by Mr Meduri, which at the time was farmland with a fibro house in which Giuseppe and the deceased lived”. Later, in about 1992, Giuseppe built a home on the back section of the land, and it was that house which “backs onto my property”.

Mr Bonarrigo retired from working as a painter in about 2007, and gave evidence that, following his retirement, he spent most of his time at home. He stated that the deceased was a quiet person, and he very seldom heard the deceased yelling or raising her voice. He did not know of her having any hearing difficulties. On the rare occasion she did raise her voice, it was only for a short time. He agreed that she would forget things but was not asked when he observed such a problem.

He gave evidence that he and Giuseppe had many conversations together. He recalled that on one occasion, when they were talking about inheritance, Giuseppe had said to him “I have bought a farm for John and Mick. I want them to live close to us. I am leaving a house for the girls.” When pressed about the terms of the conversation, he stated that “the property was divided, farms to the boys and, and houses to the girls”: Tcpt, 10 November 2022, p 585(30-35). He acknowledged that he could not remember which “boys” had been mentioned or when the conversation had occurred.

He also gave evidence that he regularly saw the deceased over the fence or resting on her back veranda. He would speak to the deceased over the fence as they could see each other. These conversations occurred approximately once a week and varied depending on when they were both outside at the same time. During their conversations, the deceased would ask Mr Bonarrigo about his wife, and they would discuss the times when she had lived in Italy, and the deceased’s grandchildren.

He also stated that, due to the proximity of their respective houses, he was able to hear conversations and voices, as his backyard was about seven metres from the common boundary fence.

Mr Bonarrigo gave evidence that the deceased would walk around the yard unaided up until approximately 2009, when she began using a walker. He stated that she used to get around very well with a walker.

He had never heard the deceased talking to the birds, although she would yell at them if any were sitting on the clothesline. He described it as “shushing” the birds away. When it was suggested to him that the deceased said in Italian, about the birds, "They're calling again, they're calling for your father", he responded, directly, “No. It's bullshit.”: Tcpt 10 November 2022, p 596(1-3).

Following the death of the deceased’s husband, the conversations occurred less frequently, but the deceased would still greet him, tell him about her grandchildren and ask how he was going. He said that “we still communicated normally to each other”.

Mr Bonarrigo acknowledged that the deceased’s grandchildren would visit, but he only saw them on a few occasions. John and Dominic would visit regularly and would mow the lawn. He stated that he only ever saw Rose about three times in a period of 20 years.

(Alan gave evidence in cross-examination that he never saw the deceased converse with Mr Bonarrigo, and that “she couldn’t stand” him: Tcpt, 6 December 2022, p 710(23-45). After Giuseppe’s death, the contact between Mr Bonarrigo and the deceased lessened significantly.)

Senior counsel for Rose submitted that Mr Bonarrigo’s oral evidence contradicted his affidavit evidence. For example, during cross-examination, Mr Bonarrigo said that following Giuseppe’s death, the deceased screamed at birds (Tcpt, 10 November 2022, p 590(33-44)), screamed quite often (Tcpt, 10 November 2022, p 590(46-47)), and spent all her time sitting on a chair or using a walker (Tcpt, 10 November 2022, p 593(22-24)). This, it was said, was inconsistent with his affidavit evidence that the deceased “was a quiet person”, he “very seldom heard [her] yelling or raising her voice”, and he “never heard her talking to the birds”: Affidavit, Giuseppe Bonarrigo, 11 June 2021 at par 10.

During cross-examination, Mr Bonarrigo stated that following Giuseppe’s death in July 2009 he did not speak with the deceased at all (Tcpt, 10 November 2022, p 592(47-49)), he would say to the deceased “Good morning, how are you?” but the deceased would not verbally respond at all (Tcpt, 10 November 2022, p 594(6-12)), and the communications were all in this manner until the deceased moved into the nursing home (Tcpt, 10 November 2022, p 594(14-16)).

It was submitted that this evidence is consistent with the deceased suffering cognitive problems. It also contradicted statements made in his affidavit evidence about conversations he allegedly had with the deceased “up until one year before she went into a nursing home”, during which the deceased would “say hello and goodbye”, would talk to him “about her Grandchildren”; and would enquire as to how he was going: Affidavit, Giuseppe Bonarrigo, 11 June 2021 at par 15.

In his affidavit, Mr Bonarrigo purported to give evidence of a conversation he had with Giuseppe during which Giuseppe said that he had “bought a farm for John and Mick”: Affidavit, Giuseppe Bonarrigo, 11 June 2022 at par 8. When he was asked for his recollection of what occurred in cross-examination (Tcpt, 10 November 2022, p 584(26)-586(43)), his recollection was different, namely that the farm was to go the boys (he could not identify which) and the houses to the girls.

It was not put to him that what he had written and said about Giuseppe’s testamentary intentions had come to him from any person other than Giuseppe.

I consider Mr Bonarrigo to be a witness who attempted to give an honest account of his recollection of past events. It was apparent to me that he had a closer relationship with Giuseppe than he had with the deceased and his knowledge of the family diminished after Giuseppe’s death. He did not find being cross-examined an easy task and, at times, he seemed somewhat overwhelmed.

I accept his evidence of the conversation with Giuseppe about the purchase of a farm for Dominic and John, and the reference to “a house for the girls”, as both were reflected, in the substitutionary devises made in Giuseppe’s Will.

Mr Girotto swore one affidavit in these proceedings dated 21 June 2021, comprising 11 paragraphs, spanning five pages. He gave evidence as a witness called by Dominic and John.

Mr Girotto gave evidence that he had known the Meduri family from when he was five years old. He and Dominic had attended primary school together and would spend time with each other almost every day after school, on weekends and in the school holidays. They would spend time at either Mr Girotto’s home or at Dominic’s home. He was also friends with John.

He gave evidence that he had witnessed both the deceased and Giuseppe working on their farm with Dominic and his brother, Joseph. He stated that the deceased and Giuseppe would work from sun-up to sundown. Giuseppe would work on the farm before he started work and after work late at night, and the deceased would make her own bread, tomato sauce and marinade olives for her family. When the deceased made the bread, she would often give Mr Girotto a loaf of hot bread to take home to his parents. He described the deceased as “a hardworking woman”.

He stated that he spoke to the deceased in Italian. Although their families came from different parts of Italy, in conversations with the deceased, whilst some words were different due to dialects, they managed to piece together sentences and understand one another. Sometimes she would respond in broken English, but they never had trouble communicating with each other. He said, in cross-examination, that it did not take effort to understand what she was saying.

When attending the family home over the years, Mr Girotto had witnessed Connie visiting the family. He stated she was a very caring daughter to her parents, and he would often see her helping on the farm. He gave evidence that he saw the most of Tony when he was living across the road from the deceased and Giuseppe in Bossley Park. He stated that he has seen Rose only on a couple of occasions in 55 years, but he did not think he would recognise her.

When Dominic and John moved into the Kemps Creek property in 1989, Mr Girotto had gone to visit. He observed it to be “pretty sad” and that it “needed a lot of attention”. Over the years, he “witnessed Dominic and John turn the [Kemps Creek] property and both houses into the homes they live in with their families today”: Affidavit, Emmanuel Dante Girotto, 21 June 2021 at par 8.

Mr Girotto observed that the deceased was sad after the death of Giuseppe.

On one occasion in 2011, Mr Girotto saw the deceased working in her garden whilst he was with Dominic helping him to install a hot water service. The deceased asked Mr Girotto how he and his mother were doing and thanked him for helping Dominic. She asked him if he wanted something to eat or drink.

In cross-examination, Mr Girotto was asked whether in about 2011, the deceased had some short-term memory impairment, started to repeat herself in conversations, started to misplace possessions, started to become confused, was depressed from time to time, and yelled and cursed from time to time. He said he had observed none of those symptoms. He said that she was able to recognise him in 2011. He was asked whether by 2013, she was sitting all day, in a chair and he said he had not observed that.

After the deceased went into a nursing home in 2017, he would see her frequently on a Sunday when he was catching up with Dominic and his family. He recalled one occasion, on Christmas Day in 2017, when he saw the deceased and they had a brief conversation, in which the deceased acknowledged him and asked him how his mother was. After this occasion, he observed the deceased’s health started to decline. Whilst she would acknowledge him, she was not able to communicate with him. It was then that he observed her memory loss, confusion and repeating herself. He said that she appeared to be sedated. He stated that this continued up until COVID restrictions took place.

Mr Girotto did not accept that his evidence about what he had observed of the deceased’s health conditions, until the last few months of her life, was deliberately underplayed: Tcpt, 10 November 2022, p 603(22-32). In my view, his evidence about her condition was likely to be incorrect as the evidence overall makes clear that by 2014 the deceased’s condition, was quite different.

Mr Girotto knew that the proceedings concerned the Will of the deceased, and that Dominic and John were going to Court with Rose, but he considered that delving into personal details beyond that was none of his business. He also stated that “from as long as I’ve known them, the property that they live on was brought [sic] from Giuseppe and Elisabetta for them…”: Tcpt, 10 November 2022, p 606(42-48). It was not suggested to him in cross-examination that his evidence had been tailored to assist Dominic and John.

Counsel for Rose submitted that Mr Girotto’s evidence should be treated with caution in circumstances where, amongst other things, he is a long-time friend of both Dominic and John (Tcpt, 10 November 2022, p 599(25-36)), and because he is aware that these proceedings involve Dominic and John’s attempt to keep the Kemps Creek Property (Tcpt, 10 November 2022, p 606(5)-607(7)). Other criticisms were made of his evidence in senior counsel’s closing written submissions, to which I have also had regard.

Having read, and heard, his evidence, I accept the broad thrust thereof. Although I regarded his assertion as to the deceased’s condition after 2014 as incorrect, I consider that he was, generally, a reliable witness who has attempted to give an honest account of his own recollection of the Meduri family history.

Dominic swore five affidavits in the Probate proceedings, with the first, an affidavit of executors sworn with John on 9 October 2020, comprised 14 paragraphs, spanning five pages; the second sworn on 19 October 2020, comprised 46 paragraphs, spanning 6 pages; the third in reply, sworn on 12 January 2021, comprised 47 paragraphs, spanning five pages; the fourth sworn on 22 April 2021, comprised 27 paragraphs, spanning 5 pages; and the fifth in reply sworn on 16 June 2021, comprised 28 paragraphs, spanning four pages.

He also swore six affidavits in the trust proceedings, with the first sworn 17 August 2021, comprised 51 paragraphs, spanning 14 pages; the second sworn 17 September 2021, comprised 59 paragraphs, spanning 10 pages; the third in reply, sworn 29 November 2021 (filed in Probate proceedings but read in the trust proceedings), comprised 75 paragraphs, spanning nine pages; the fourth sworn 5 October 2022, comprised 6 paragraphs, spanning 3 pages; the fifth, sworn 2 November 2022, comprised 9 paragraphs, spanning 3 pages; and the sixth sworn on 5 December 2022, comprised 10 paragraphs, spanning three pages.

Dominic was cross-examined for almost the whole of the third day of the hearing. Before going to my impression of his evidence, I should note his medical condition, about which he was asked no questions.

There was evidence that Dominic had been involved in a motor vehicle accident on 23 July 1999. Dominic also gave evidence that he has several health issues including, a spinal fusion on his neck, tinnitus, osteoporosis, chronic immune disease, being Vogt Koyanagi Harada, which affects his vision, spine, shoulders, and muscles. He was recently admitted to Nepean Hospital due to shortness of breath.

During cross-examination, Dominic stated that he has problems with his memory due to his immune system: Tcpt, 3 November 2022, p 243(37-38); p 247(4-5); 269(35); 286(10-11). (There was no medical evidence going to Dominic’s memory problems.)

Dominic admitted that he had been assisted by his son, Shane, in preparing his affidavits. When the word “drafting” in the context of his affidavits was explained, he readily admitted that Shane helped him “to some degree” but denied that they had discussed together what had happened in 2009.

As stated above, Dominic gave evidence that in about 1987 he was happily settled in Crookwell, with work and family ties, when he had a conversation with his father, in which Giuseppe said: “If we buy this land at Kemps Creek, would you come back and live there?” Dominic recalled that he had travelled down to Sydney to view the Kemps Creek property. There was “an old 2 storey fibro house which was run down plus a granny flat that was not liveable”.

At the time, Giuseppe said: “You can’t live in Crookwell, we want you close to your family. You can live here rent free, you pay the rates, all I want to do is come out and do some farming and grow vegetables”.

Pausing here, I can accept the evidence that the purchase of the Kemps Creek property was the subject of discussions within the family. In this regard, I have earlier referred to Rose’s affidavit evidence that Giuseppe and the deceased purchased the Kemps Creek property “as a means to encourage Dominic to return to living in Sydney”. I have earlier referred to Rose’s affidavit made on 22 October 2022 at [207]. Alan also gave evidence (Tcpt, 6 December 2022, p 720(48)-721(16) that Rose had told him that the Kemps Creek property had been purchased so that Dominic would return to Sydney.

In cross-examination, Dominic stated that initially, that his parents had said that he and John could live on the Kemps Creek property, rent free, “for the rest of your lives” as long as they paid the rates: Tcpt, 3 November 2022, p 266(9-12).

Dominic stated that he and his family had subsequently decided to move to Kemps Creek and that he had said to both of his parents “We will make this place our home, build it up for our families and live our best life possible”: Affidavit, Dominic Meduri, 19 October 2020 at pars 5-7; Affidavit, Dominic Meduri, 17 August 2021 at par 51.

Dominic recalled that some years after the Kemps Creek property was purchased, the deceased and Giuseppe had come to the Kemps Creek property and “near where dad was growing tomatoes”, Giuseppe had said to him and John, in the presence of the deceased:

(Although the conversation was objected to but admitted simply as a statement made by Giuseppe at which the deceased was present, bearing in mind matters to which I shall refer, I accept that the statement was made and that it accurately reflected Giuseppe’s, and the deceased’s, understanding of what had occurred with Rose.)

In cross-examination, Dominic clarified that he believed this conversation occurred within a year after they moved onto the Kemps Creek property, not several years afterwards. I consider that Dominic was inaccurate as to the date of this conversation and consider that its timing is linked with Rose having taken Giuseppe and the deceased to see Mr Puleo about making a Will in about 1993 or 1994.

Dominic provided details of the words used by Giuseppe, in the presence of the deceased, saying that the conversation had occurred at the back of the property where Giuseppe grew tomatoes and was in the following terms (Tcpt, 3 November 2022, p 257(5-14)):

He was asked again, and reiterated “his exact words, he said, “Every time we come out to see you, if, if something happens, we get killed, youse will be out of here.” He said, “Youse will have to pay rent and, and you’ll be out on your arse.” That’s what’s my dad said”: Tcpt, 3 November 2022, p 259(1-6); 261(22-29).

The cross-examination continued (Tcpt, 3 November 2022, p 261(22)-262(2)):

Senior counsel also asked about other conversations with Giuseppe and the deceased. The transcript reveals Dominic’s evidence (Tcpt, 3 November 2022, p 269(19)-270(3)):

Whilst Dominic was not precise as to when the conversation had taken place, it can be seen from the above transcript references that his evidence remained consistent in relation to the broad content of the conversation. It is also important to note what appears to be one of the conditions imposed by Giuseppe, in the presence of the deceased, without demur by her, that Dominic and John would “get nothing from the other properties”. This condition, being part of the conversation, upon which reliance is placed, did not compromise the clarity, or certainty, and it was not unreasonable for him to rely upon what was said.

Dominic also gave evidence that he had never discussed this conversation with Rose. He said (Tcpt, 3 November 2022, p 261(4)) “Everything that was between Dad and I was, I didn’t repeat anything”.

He stated, and maintained when asked in cross-examination, that Giuseppe did not provide any details about what was in the Will, nor did he see a copy of that Will made by Giuseppe at the time of the conversation: Affidavit, Dominic Meduri, 19 October 2020 at par 13.

Dominic also stated that during that conversation, Giuseppe said to him and John, referring to the Kemps Creek property (Affidavit, Dominic Meduri, 19 October 2022 at par 13):

Dominic stated that the deceased was present during this conversation, and he observed the deceased nodding her head in agreement as Giuseppe spoke: Affidavit, Dominic Meduri, 17 August 2021 at par 2. Each of Dominic and John told Giuseppe, in the presence of the deceased, that he would be happy to do that.

Dominic gave evidence that sometime later, the deceased and Giuseppe came to the Kemps Creek property, and Giuseppe said that he made a new Will and asked Dominic to read it. Dominic stated that Giuseppe then said to him and John “Are you happy to stay here” and they both said “yes”. Dominic added “Whatever you do with other properties is up to you.”: Affidavit, Dominic Meduri, 19 October 2022 at par 15.

In cross-examination, Dominic clarified that he did not recall Giuseppe showing them the Will. He also said that he could not recall whether he was told how it had differed from any previous Will. Upon further questioning, Dominic admitted that he could not remember whether the deceased had told him about the contents of the new Will, and also could not remember the date of this conversation: Tcpt, 3 November 2022, p 262(4-49).

If his evidence about the conversations is accepted, it is more probable than not that what was said by each of the persons involved in them were genuinely said and were said in good faith. This would be unsurprising in relations between parents and two of their children. Furthermore, what was expressed was adhered to by Giuseppe and the deceased for many years.

In his affidavit made in August 2021, filed in the trust proceedings, Dominic also said that when he and John were undertaking the renovations, both the deceased and Giuseppe had said to him and John “Don’t worry, this is your property, no one is going to kick you out”. He recalled that the deceased had said this several times, particularly while he and John were renovating the Kemps Creek property. In that affidavit, Dominic added that the deceased would also tell them they could do what they liked with the Kemps Creek property because the property would be left to them.

Dominic gave evidence that he had renovated the house in Crookwell, and that he wanted to stay there. He maintained that had his parents not assured him that he could keep the Kemps Creek property he would not have moved from Crookwell as he was established there with family and work. He admitted, however, that Karen was keen to return to Sydney as she was lonely in Crookwell. He stressed, however, the return to Sydney was a joint decision. He reiterated this a few times in his evidence.

Dominic attested that when he moved into the Kemps Creek property, in about January 1989, it contained “an old 2 storey fibro house which was rundown” and was “unliveable” due to mould and water damage. The land was very overgrown. There was debris scattered throughout the property.

The house into which John was to move was also completely unliveable, also due to mould and water damage.

Dominic and his wife had replaced the flooring, kitchen, gyprock walls, ceilings, light fittings, and the laundry, in addition to constructing a driveway and fencing around the property. It was also necessary for “a proper sewerage system” to be installed.

In his later affidavit, sworn on 17 August 2021, Dominic gave additional details of the renovations that he and John had made to the Kemps Creek property whilst he had lived thereon. He stated that he and John had done the work with some assistance from family, friends, and independent contractors. The work included clearing and levelling the land, renovating the shed, installing a sewerage system and electricity box, deepening the dam, tending to the garden, and planting “some hundreds of trees” over the years.

The renovations have continued over the years. The work was done by Dominic and John, with the assistance of family and friends. Following his retirement in 1992, Giuseppe also helped with the work. Photographs of the Kemps Creek property in evidence show that the renovations are consistent with Dominic and John endeavouring to make the Kemps Creek property the homes for themselves and their families.

It is also important to note that there is no evidence that either Dominic or John sought the consent of Giuseppe, or the deceased, to carry out the renovations that were made to the Kemps Creek property. In this regard, Rose stated “…they didn’t ask my parents’ permission. They did it because they were living there”: Tcpt, 9 December 2022, p 497(11-14). She did not suggest that renovations were done by Dominic and John without the knowledge or approval of Giuseppe or the deceased.

There was no evidence that Rose had made any complaint, at any time before, or after Giuseppe’s death, about the renovations that were being carried out to the Kemps Creek property by Dominic and John. (I shall return to Rose’s evidence on this topic later in these reasons.)

In cross-examination, Dominic could not recall the names of any of the independent contractors that they had employed. Nor did he keep receipts, other than in respect of the rates for the Kemps Creek property. Whilst senior counsel commented on the failure to do so, it might be explicable if the Court accepts the evidence of Dominic and John as to the conversations to which reference was made and his understanding of what was in the 2009 Will.

In any event, Dominic did identify that work had been done by “John, my son, Shane, Ricky, my nephew, Sammy’s helped us at times. I’ve helped when I could. Ricky… works in a concrete building game, Sammy’s in the building game”: Tcpt, 3 November 2022, p 297(11-14).

Whilst Dominic and John identified the nature of the work carried out, the evidence of the costs of the works is extremely vague. However, the renovations would have required some reasonable amount to have been spent to enable those renovations to be carried out.

While he stated, initially, that he did not recall the costs of the renovations, Dominic estimated that the total cost of these renovations was approximately $240,000. He specifically remembered that he used at least $200,000, being part of some moneys that he had received as settlement in a motor vehicle accident to pay for the renovations. He claimed that there was “no way I would have spent the years and the funds which we both have to improve the property” had he known that he would not receive the property: Affidavit, Dominic Meduri, 17 August 2021 at par 46.

In cross-examination, Dominic stated that he had arrived at this estimate after speaking with his wife, John, and the rest of his family, and that he could not have done it in his head by himself. He agreed he did not have any receipts for the work that he had done, adding that many of the payments were made by cash, and some by members of his family-in-law ($6,000).

No evidence was provided about the source of the funds in Dominic’s term deposit (Affidavit, Dominic Meduri, 17 September 2021 at par 13) which was opened on 20 January 2021. In his affidavit dated 17 August 2021, Dominic stated that he had received a damages settlement from a motor vehicle accident approximately 25 years ago, for which he received about $286,000 (at [29]). He stated that $200,000 went towards funding the renovations for the Kemps Creek property. It was not clear whether the remaining settlement funds were the source of the term deposit funds to which reference will be made.

There was no expert valuation evidence advanced by Dominic and John going to the additional value, if any, to the value of the Kemps Creek property as at the date of the hearing.

Dominic also stated that he and John had done a significant amount of work on the Smithfield and Bossley Park properties, including replacing the cladding and windows, repairing walls and applying gyprock to them, renovating the bathroom and kitchen, and removing asbestos, in addition to general maintenance and pest control.

Dominic stated that the deceased could count in Italian but could not read or write. He claimed she “knew money” and knew what each note and coin was worth and would negotiate for the price of her shopping. He recalled that until the mid-1980s his mother would sell produce from their farm at Paddy’s market, and the Flemington markets, and would have no problem with money, or communicating, albeit in broken English, with some of the customers.

Dominic said that even though Connie was living with the deceased, she was still looking after herself and would do the gardening: Affidavit, Dominic Meduri, 19 October 2020 at pars 23-24. He stated it was “absurd”, in response to counsel suggesting during cross-examination that the deceased told him she was hearing people call the name of her husband. He denied witnessing the deceased have hallucinations: Tcpt, 3 November 2022, p 231(47-50).

At the time that the process of obtaining the grant of Probate was taking place, in respect of Giuseppe’s Will, Dominic recalled that the deceased said to him that she wanted to have a Will made. She added, “Whatever your father had in the Will I want it to be exactly the same as he had done it”: Affidavit, Dominic Meduri, 19 October 2020 at par 25.

Dominic recalled that he had subsequently attended with the deceased, John and Connie, at the office of Puleo Lawyers. He recalled that Mr Puleo came out to the reception area and had asked them to stay in the reception area while he took the deceased into his office. After a while, Mr Puleo asked them into the room, he explained what the process was, and said that he had asked her a lot of questions in Italian such as her maiden name, how many children she had, and her address and age. He told them that he would prepare a Will based on the deceased’s instructions. He could not recall how long the meeting was, other than they were there for “quite a while”: Tcpt, 3 November 2022, p 282(49-50).

Dominic could not recall anything relating to the contents of the file note dated 31 August 2009 to which reference has been made: Tcpt, 3 November 2022, p 279(39)-280(26).

Upon questioning from the Bench, Dominic clarified that he believed he met with Mr Puleo twice following Giuseppe’s death. On the second occasion, he believed he had attended with John, Connie, and the deceased. He recalled that “we all went into John Puleo's office. The reception, the receptionist went and got John Puleo. John Puleo come out. He took mum into the office by herself. We waited out in the reception. She was in there for quite some time. Then he asked us to come back into the room and explained that he'd done mum's will. He told me and John that we were executors of the will and that he'd asked her multiple questions in Italian to some of that extent” (Tcpt, 3 November 2022, p 272(11-17)). Mr Puleo had “chatted to mum for a bit on her own”: Tcpt, 3 November 2022, p 282(26)-283(39).

Upon further questioning, Dominic said “I don't have a great recollection of what occurred. All I remember … was Connie wanting to ask John Puleo, she didn't ask him, something about getting first preference to buy mum's house. That's all I can remember, and I just remember John Puleo wanted to have a chat to mum on her own, and then chatted to mum for a bit on her own. That's all I can remember about it. I don't remember a lot”: Tcpt, 3 November 2022, p 283(30-36).

Dominic asserted that the deceased could understand people who were from other parts of Italy who spoke Italian, including Mr Puleo.

In cross-examination, Dominic gave evidence that in September 2009, his mother was using a walking frame to assist her, although he said that she used it rarely. He was asked whether she took her walking frame to the meetings with Mr Puleo, and he agreed that she did.

He denied that the deceased had any hearing problems, although he conceded that she was “always distressed and a little bit emotional”. He stated that, overall, the deceased “picked up” and was a lot better after Giuseppe’s death, because she no longer had the stress of caring for him: Tcpt, 3 November 2022, p 228(17-44).

Dominic believed that Rose was aware that the deceased had made a Will in which she and Connie were to receive a devise of the No 7 Bossley Park property and its contents. He based this belief on them having “cleaned out the house of all of its contents” when the deceased went into the Fairfield Nursing Home; on the fact that Rose would not agree to rent that property to obtain income to assist with the nursing home costs; and that she demanded that some rectification brickwork be done to fix a wall of that property. (In broad terms, Rose denied this evidence.)

Dominic was not aware that the deceased had suffered from any strokes between 2000-2007, or that she suffered depression. He disagreed that she had a poor memory at that time. He claimed that the deceased did not have significant problems with her memory until she went into the nursing home in around 2017.

Dominic claimed that the deceased rang him every day at 6:00 p.m., but that they did not speak about her health, as she would enquire after him and his children.

Dominic denied many of the assertions concerning the deceased’s state of health prior to the making of the 2009 Will. He admitted, however, that she did not discuss her health with him when they spoke daily: Tcpt, 3 November 2022, p 231(19-20).

He denied observing the deceased suffering from hallucinations from 2005: Tcpt, 3 November 2022, p 234(22-30); 239(4-6); 242(19-21). He could not recall being told the deceased was confused as to time and date in June 2008 (Tcpt, 3 November 2022, p 276(11-13)) and also did not recall members of the family being concerned about her poor memory (Tcpt, 3 November 2022, p 276(38-40)).

Nor did he observe the deceased hearing people calling her name and the name of her husband and seeing people doing things in 2010. He said this was absurd: Tcpt, 3 November 2022, p 231(47)-232(2). He said that the only time he witnessed the deceased screaming was when the birds ate the fruit in the trees and after Giuseppe died when she called out his name for a short time (Tcpt, 3 November 2022, p 303(48)-304(10)), asserting that this was only in the context of her grieving (Tcpt, 3 November 2022, p 307(5-13)).

Dominic admitted that the deceased was very distressed after Giuseppe’s death but said that she improved as she no longer suffered the stress of having to assist in his care. He also accepted that she was using a walker to assist her to walk in September 2009: Tcpt, 3 November 2022, p 228(20-22).

He also gave evidence that he did not observe the deceased being repetitive in conversations in 2014 (Tcpt, 3 November 2022, p 233(14-16)), although he agreed that she may have suffered a degree of confusion at about that time (Tcpt, 3 November 2022, p 233(30-32)). Dominic also asserted that the deceased’s only medical conditions prior to 2017 were high blood pressure and a leaking valve: Tcpt, 3 November 2022, p 232(13-15). Based upon other evidence, I do not accept this evidence as it is inconsistent with the contemporaneous medical records to which reference will be made.

Whilst I am not satisfied that his assertion was untruthful, I tend to the view, as with the evidence of some other witnesses, that any inaccuracy about when the deceased’s mental state began to deteriorate and when aspects of the deceased’s behaviour began to change was based upon the inability to remember due to the time that has passed.

Dominic denied that Rose or Alan had ever assisted the deceased or Giuseppe with their personal affairs. He believed that they employed the services of a tax agent in Fairfield to handle their financial affairs. In this regard, I am of the view that Dominic’s evidence is inaccurate, and that Rose and Alan did provide some assistance to Giuseppe and the deceased in regard to some financial matters for a period of time. (John also disputed that Rose and Alan had provided any financial or personal assistance and recalled that Giuseppe had his own accountant.)

Dominic also stated that Giuseppe would mostly drive himself and the deceased to any medical appointments, and that occasionally he and Connie would assist, rather than Rose and Alan.

In cross-examination, Dominic agreed that following Giuseppe’s death, the deceased would call out saying “Peppe”, “Peppe”. He said that was because she was upset: Tcpt, 3 November 2022, p 304(1-14). In re-examination he elaborated (Tcpt, 3 November 2022, p 307(9-13)):

Dominic gave evidence that the Kemps Creek property has been a “haven” for him and his extended family, as they gather there every weekend. He said that they have strong connections in the area, as family members attended schools and medical practitioners. He stated that he is “fearful” that if everybody had to leave the Kemps Creek property, and thereby separate, that their “emotional and mental well-being” and family life would suffer.

Dominic stated that he wished to remain living in the Kemps Creek property for the rest of his life. In the event he did not succeed in either the Probate proceedings or the trust proceedings, he stated that he would not be able to purchase his siblings’ interest in the Kemps Creek property.

In cross-examination, Dominic agreed that for the last three years, approximately one-third of the property had been occupied by “igloos”, which contain crops, that are owned by his neighbour, which he uses in exchange for paying the rates on the property each year. They said their agreement was for three years from the commencement of his occupation. He agreed that he was unable to use those parts of the Kemps Creek property while the igloos were situated there.

When asked what he used the Kemps Creek property for, Dominic replied: “No other reason, just the kids play on it, some people park - my nephew’s got all his stuff there. Prior to this case, we used to grow some vegetables for all the family, kids used to ride their bikes, trail bikes on there, and we just, yeah”: Tcpt, 3 November 2022, p 299(14-19). However, he also gave evidence that the following people are living with him on the Kemps Creek property, namely his wife, Karen; his sons, Shane and Ricky; and his granddaughters, Talia and Alexia. Shane is almost 40 years old and is unemployed. Ricky is 28 years old and works part-time in the concrete industry. None of these persons pay any rent. Dominic accepted that his sons could live independently but noted that they had lived on the Kemps Creek property all their lives.

In cross-examination, Dominic was shown some alternative types of accommodation in the Austral area, that he might be able to purchase. He stated: “I’m not making any comment on these”. He denied that these alternatives were suitable accommodation for him and his family. He added that he was not interested in these alternative properties “[b]ecause I've always been on land. I've always been on property. My children grew upon that property. My grandkids are still there. My elder children have grew up there. My mum and dad have been there many times. The best part of my mum and dad's life has been on that property. I'm very close to my mum and dad. That, that, that means more than - that property is not money, it's, it's more than, more than the value of, of money: Tcpt, 3 November 2022, p 305(49)-306(4).

Upon further questions from the Bench, he clarified that if he had to leave the Kemps Creek property, he, John, and their respective families would likely move out of NSW, “maybe to Brisbane or something like that where it’s cheap”.

In response to a further question from the Bench, Dominic informed the Court that the Kemps Creek property was not able to be subdivided.

Dominic is not currently employed. His fortnightly income consists of $718, which comprises a disability support pension. Karen also receives a fortnightly disability support pension amounting to $132.

In relation to his medical conditions, he relied, principally, upon a number of medical reports, obtained from a neurosurgeon in December 2002 and January 2003 (Ex. MB1/297-300), an Emergency Department Discharge Summary relating to an attendance at Nepean Hospital in August 2021 (Ex. MB1/304-307), a Health Summary Sheet printed on 14 September 2021 from Dr M Hadad (Ex. MB1/308) and two medical reports dated 25 July 2022 and 10 August 2022, respectively, from Dr I Hanna, a Consultant Physician Neurologist (Ex. MB1/320-323).

Dominic has property with a total value of about $100,000. He did not give any evidence of having any liabilities. He stated that his fortnightly expenses totalled $1,539.

Dominic said he was seeking family provision relief to help assist him to purchase acreage near the Sydney area, and also a sum for medical expenses and other exigencies of life. He asserted that he was not aware of what a family provision claim was and was unaware of any time limit in respect of the making of such a claim until he had received advice from senior counsel in August 2021.

In cross-examination, Dominic could not recall whether Mr Puleo had spoken to him about the possibility of bringing a family provision claim in October 2020. Although he could recall that he was informed that his brother Joseph was bringing a family provision claim, he could not remember the contents of any such discussion. He admitted that in late October 2020, he would have known what a family provision claim was, although he was not “a hundred percent sure”, and was not aware of any time limit.

In cross-examination, Dominic agreed that he had been convicted on 1 June 2021 in the Local Court for the offence of stalking and intimidation with intent to cause fear or physical harm. He agreed that he appealed to the District Court of Parramatta, and that the appeal was dismissed on 13 August 2021: Tcpt, 3 November 2022, p 218(37-46).

Dominic agreed that on 8 November he and his son Ricky, drove past the house of Tony and Jake, and that he saw Jake, who was driving a forklift on the road, as he went past. He denied that he went there deliberately to intimidate Tony or Jake, claiming that he went to look at a car trailer that was for sale at Habib’s, which was situated at the end of Tony’s street. He admitted that he yelled out to Jake, “Get off the road you dickhead”. However, Dominic denied that he said the words “Fuck you dog, you’re dead” to Jake or that he made a pistol sign with his hand directed towards Jake. He claimed that this was a “fabricated story” by his sister and Jake. He agreed that he was convicted as a result of this incident, and that an appeal was dismissed by the District Court.

In re-examination, Dominic explained that he did not appear at the appeal in the District Court, because it was when there were severe COVID-19 restrictions, and he was told by Legal Aid not to appear for the appeal, as he was feeling overwhelmed with the affidavits for these proceedings, and it just “fell through the cracks”.

Senior counsel for Rose was extremely critical of Dominic’s evidence and submitted that his evidence should not be accepted. Indeed, it was submitted that much of his evidence was false. He pointed to the statements made by Dominic about the events of 2009, regarding attendances with Mr Puleo and the statements about the deceased’s medical condition.

Senior counsel also submitted that the Court could not be satisfied that Dominic had any accurate recollection of what had occurred in 2009. By way of example, it was put that he could not remember when the first meeting with Mr Puleo occurred (Tcpt, 3 November 2022, p 281(19)-(20)); how many times he had met with Mr Puleo (Tcpt, 3 November 2022, p 281(41)-(44)), although later he said that he went to Mr Puleo’s offices twice “when pressed by his Honour” (Tcpt, 3 November 2022, p 282(1-27)); what documents Mr Puleo had prepared (Tcpt, 3 November 2022, p 282(42-43)) and what documents he had signed (Tcpt, 3 November 2022, p 282(45-47)).

Even if that is so, I am not satisfied that Dominic gave intentionally false evidence about the events that had occurred involving Mr Puleo. There was really no need for him to do so since his evidence of not being in the room when the deceased gave instructions to Mr Puleo for her Will, or when she placed her mark on the pages of the 2009 Will in September 2009 and when the deceased’s signature thereon, was attested to by both Mr Puleo and Ms Williams.

I am also satisfied that, by the conclusion of the evidence of the witnesses, the events relating to the 2009 Will, had been established on the balance of probabilities, particularly that there had been two attendances by the deceased, Dominic, John and Connie, upon Mr Puleo, the first of which was in August 2009, at which time the deceased, alone, provided instructions for her Will (amongst other things) and the second of which was when, again alone, with Mr Puleo, and then with him and Ms Williams, she executed the 2009 Will in September 2009.

I am satisfied that Dominic had no part to play in the process of the deceased making the 2009 Will.

I am also satisfied that the documents to which reference has been made were signed. It was clear from the contemporaneous documents who had signed those documents.

In relation to the criticism of Dominic’s evidence about the deceased’s medical conditions, the submissions, at least in part, assume that the severity of her condition was as Rose asserted it to be. I shall return to the medical condition revealed by the medical records later in these reasons. He did not observe the deceased’s extreme and florid behaviour prior to 2009. He and John certainly saw the deceased more often than did Rose and Alan.

The even more serious submission about Dominic relates to the incident involving Jake which led to Dominic being charged with, and found guilty of, the offence of stalking and intimidation. The Certificate of Conviction was tendered as Ex. D10. The facts founding the conviction were said to involve Dominic driving to Jake’s home and yelling at him (in the presence of Dominic’s brother and Jake’s father, Tony) “Fuck you, dog. You’re dead”. The incident was said to have occurred on 8 November 2020.

It was submitted that what had occurred “was an unlawful attempt by Dominic to intimidate a witness. The Court can draw the inference that Dominic sought to discourage Jake from giving evidence and that he did so out of an appreciation that his application for probate of the 2009 Will lacked foundation”.

I accept that the words that were asserted to have been said were threatening. However, I also accept that whatever was said, it had not been Dominic’s intention that Jake would thereby be dissuaded, or deterred, from giving evidence, or truthful evidence. In this regard, I accept Dominic’s denial that he “went to Eleventh Avenue, Austral with a view to intimidating Jake so he wouldn't give evidence in this court case”: Tcpt, 3 November 2022, p 219(26-28).

In Gregory v Phillip Morris Ltd (1987) 74 ALR 300, Gray J, at 308, after reviewing the authorities, concluded that there must be some intention to dissuade the potential witness from giving evidence at all, or from giving truthful evidence, although the requirement of intention “may perhaps be satisfied by reckless disregard of the likely effect of such a threat”.

I tend to the view, accepting the words complained of were said, that it was not an attempt to intimidate Jake from giving evidence, which attempt, in any event, failed, but rather a chance encounter between Dominic and Jake, with words being spoken spontaneously, and without any significant premeditation. I consider it more likely bearing in mind the family dynamics, that emotion and anger overtook Dominic.

It was not suggested to Dominic, and there was no other evidence of any prospect, that he would carry out any threat which may have been perceived by Jake or Tony, or that there had been any other altercation between them.

Overall, remembering what has been written earlier, I am satisfied that whilst certain aspects of his evidence cast doubt on Dominic’s reliability, revealing some limitations by virtue of his memory for detail being poor on occasions, when he said he could not recall a matter where one might have expected him to have been able to give a rather fuller and more definitive answer, I do not accept that this was due to him pretending not to recall something upon the basis that it might been adverse to his own interests or those of John. Regarding the Kemps Creek property, his evidence is supported by the terms of the substitute devise thereof in Giuseppe’s Will.

I did not find Dominic to be a person of great sophistication. It seemed, also, from his manner of giving his evidence, that he had limited formal education. I am satisfied that on the principal matters, particularly the conversations with the deceased and Giuseppe, he was telling the truth and was, in regard to that evidence, a generally reliable witness.

As already stated, I am satisfied that he had no part to play in the process of the deceased making the 2009 Will. The evidence, overall, makes reasonably clear that it was the deceased’s desire to make a Will following Giuseppe’s death.

Whilst some of his evidence about when the deceased’s condition deteriorated, I tend to think, was wrong, his description of that condition at, or about the time the 2009 Will was made, is likely to be more accurate than the evidence of Rose and her witnesses.

John swore five affidavits in the Probate proceeding, with the first, an affidavit of executors sworn with Dominic on 9 October 2020, comprised 14 paragraphs, spanning five pages; the second, sworn on 19 October 2020, comprised 31 paragraphs, spanning four pages; the third, sworn on 12 January 2021, comprised 38 paragraphs, spanning five pages; the fourth, sworn on 22 April 2021, comprised 17 paragraphs, spanning four pages; and the fifth, sworn on 17 June 2021, comprised 16 paragraphs, spanning three pages.

In the trust proceedings, John swore five affidavits, with the first, sworn on 17 August 2021, comprised 25 paragraphs, spanning eight pages; the second, sworn on 17 September 2021, comprised 49 paragraphs, spanning eight pages; the third, sworn on 29 November 2021 (filed in Probate proceedings but read in the trust proceedings), comprised 82 paragraphs, spanning eight pages; the fourth, sworn on 2 November 2022, comprised 17 paragraphs, spanning four pages; and the fifth, sworn on 5 December 2022, comprised 11 paragraphs, spanning three pages.

John was cross-examined for almost the whole of the fourth day of the hearing.

John gave evidence in cross-examination that Shane was also present whilst John prepared his 17 September 2021 affidavit via video. He said that he had done his affidavit in a separate room and that it was signed at Dominic’s house in Shane’s room. Shane had been there to set up the video. He said that he had written his own affidavit, with the notes which Ruby had typed, and that Shane had then sent it to Mr Puleo Jnr.

John claimed that although the deceased was from Calabria, she could also speak to people from other parts of Italy, such as John Puleo and Connie’s husband.

John admitted that he had lived with Rose at Manly Vale, and on Tony and Kerry’s property at Austral, but claimed that, in 1988, he had first moved his caravan to his parent’s home at Bossley Park, at their request, and that he subsequently moved his caravan to the Kemps Creek property in 1989, after the settlement of the sale.

John stated that he visited his parents at least 2 or 3 times each week. He believed that Kerry and Tony did not visit the deceased frequently. He denied that he was estranged from his parents, but claimed he visited them often up until each of them died, and that each would say to him “I love you”.

In his affidavit in reply, John claimed that the deceased would visit weekly at the Kemps Creek property and that she would recognise everyone present, including the grandchildren, and that she would walk around and talk to everyone.

When John and his girlfriend at the time, Cathy, had first moved into the Kemps Creek property, he stated that he lived in the main house with Dominic and his family. He remembers that he was not working at the time and that he had spent the first seven months working, with Dominic, to make the houses liveable.

John gave evidence that sometime after the deceased and Giuseppe purchased the Kemps Creek property, they came to the property to see him and Dominic. He stated that Giuseppe said to him:

He stated that he and Dominic said they were both happy to stay at the Kemps Creek property and that the deceased and Giuseppe could do whatever they wanted with their other properties: Affidavit, John Meduri, 19 October 2020 at pars 4-5.

For the reasons to which I shall refer in relation to Rose, I accept John’s evidence on this topic.

John recalled that shortly after moving into the Kemps Creek property, Giuseppe said to him, “Are you both happy to stay here and keep this place but you will not get any other property, even if the Government comes and takes the land for parks?”. He stated that the deceased was present during this conversation and was nodding her head in assent: Affidavit, John Meduri, 17 August 2021 at par 3. He could not remember precisely when the conversation took place. However, he did say that he thought that it was in about 1993 or 1994: Tcpt, 8 November 2022, p 334(11-36).

In cross-examination, he was asked to provide his best recollection, using the substance of the words used, of what Giuseppe and the deceased had said to him and Dominic. He said (Tcpt, 8 November 2022, p 325(47)-326(1)):

He went on to say that he had heard Giuseppe say it, and then he saw the deceased was nodding her head. He maintained that he was unable to then recall whether the deceased had repeated these words after Giuseppe, or whether she had simply nodded her head. He later stated that she was nodding her head: Tcpt, 8 November 2022, p 325(45)-326(27).

Whilst John, also, was not precise as to when the conversation had taken place, it can be seen from the above transcript references that his evidence remained consistent in relation to the broad content of the conversation. It is also important to note what appears to be one of the conditions imposed by Giuseppe, in the presence of the deceased, without demur by her, that Dominic and John would “get nothing from the other properties”. This condition, being part of the conversation, upon which reliance is placed, did not compromise the clarity or certainty and it was not unreasonable for him to rely upon what was said.

He was also asked about his reference to the Kemps Creek property being taken as parkland, and he said that they had meant that “because in the future if it’s worth nothing or it could be taken by parkland that’s, that’s what youse are going to get. That’s youse like it or lump it, that’s how it is you know”: Tcpt, 8 November 2022, p 329(29-31).

He said that he then did not know of any proposal for the Kemps Creek property to be resumed as parkland, but the words had been stated by Giuseppe. Subsequently, he did not become aware of any proposal for the Kemps Creek property to be resumed for parkland.

He stated that he had lived at the Kemps Creek property on the basis that he and Dominic were to fix the place up and pay rates on the property. He could not recall either Giuseppe, or the deceased, specifically saying that the Kemps Creek property would be left in equal shares to him and Dominic. He said that Giuseppe simply said that “whatever we done, spent on the property that’s going to me and like whatever we done on the property, it was ours and, and, and it that’s, that’s what he used to say you know”: Tcpt, 8 November 2022, p 332(8-10). Giuseppe had also said as long as they “paid the rates and maintained the property, that’s what he said to us okay”: Tcpt, 8 November 2022, p 333(18-19).

In cross-examination, John stated he believed this conversation had occurred in around 1993 or 1994, but he was unsure of the exact date. He recalled this conversation occurred outside near the tomato plants. John also claimed that part of the agreement on this day included that he and Dominic would pay the rates and make the Kemps Creek property liveable.

John agreed that he had not mentioned the conversation to Rose and Alan, despite being very close with them at the time. He said it was a private conversation with him, Dominic, and their parents: Tcpt, 8 November 2022, p 329(8-19).

John estimated that there were three “stages” of work that were done on the Kemps Creek property. The first stage of work was done approximately six months after they first moved there in 1989. During this stage, they replaced the tin on the walls and roof, laid carpet in the house, and constructed a carport. He estimated the total cost of the first stage of work to be about $4,200.

The second stage of work occurred in about 1992 and included: renovating the bathrooms, bedrooms, kitchen, dining room, installing a laundry and fireplace, and tiling the lounge room. He estimated the costs of this stage of the work to be $20,760. In cross-examination, he then stated that he thought the second stage of work occurred in 2004, shortly before he married his wife and she moved in.

John stated that the third stage of work occurred in around 2013, and included adding extensions to the loungeroom, dining room and kitchen, reconfiguring the main bedroom, the old dining room, and laundry, installing a new kitchen, replacing doors, windows, and bathroom fixtures, painting the house, renovating the outdoor entertainment area, installing a pool and landscaping. He estimated the costs of the third stage of work to be $154,650.

John said that he thought that he had also paid $28,400 in ongoing expenses and repairs in relation to the Kemps Creek property. He also recalled that soon after they moved there, he assisted Dominic in clearing the land, constructing the roads, installing fences, and constructing sheds.

John also did not have any receipts for works undertaken to the Kemps Creek property. He said that he paid for all the renovations in cash, using savings that he had kept at home. He said that he had worked overtime to enable the payments to be made.

The home in which he and his family lives, comprises a formal lounge and entertaining area, a second lounge room, and an open plan kitchen/dining room. There are three bedrooms, a study, a bathroom, and a laundry. The house is now 194 sq. metres.

He stated that after Dominic’s car accident, he began to do most of the physical work, as Dominic was limited in the work that he could do.

John gave evidence that the deceased and Giuseppe would visit multiple times each week, and that the deceased would comment on the need for renovations, saying “[y]ou have to fix this place up for your family” and “[y]ou have to make the place nicer”, and on how nicely the renovations were coming along. In his reply affidavit, he stated the deceased and Giuseppe would also say “I want you to make a home of this place”: Affidavit, John Meduri, 29 November 2021 at par 8. Dominic gave similar evidence in cross-examination: Tcpt, 3 November 2022, p 269(19-29).

John also claimed that it was only because of what had been said by his parents that he and Dominic had spent time and money to clean up the property and renovate the house. He stated that had his parents not made the statements, he would have worked additional hours, especially overtime, so that he could save up and purchase his own property.

John recalled that after the conversation in around 1993 or 1994, Giuseppe had executed another Will that made him, Dominic and the deceased, the executors. However, he admitted in cross-examination, that he had not seen a copy of Giuseppe’s old Will, or any new Will that Giuseppe had made until after the death of Giuseppe. He agreed that he had not told Ruby, or any of his previous partners, about the conversations concerning the Kemps Creek property.

John gave evidence that although the deceased could not read or write, she knew how to calculate money and understood the value of things and property. He also maintained that the deceased would go to the markets to sell vegetables by herself and would also do the shopping by herself.

Even in 2009, after Giuseppe had passed away, John claimed that the deceased “was good” and “pretty sharp” because when he would bring her the shopping, she could handle money and did not exhibit any signs of dementia or confusion. He stated that she would always ask him to call her when he got home to ensure he was safe. He further stated that after Giuseppe’s death, her mood improved as she was no longer suffering and she could relax as she no longer had to care for Giuseppe: Affidavit, John Meduri, 19 October 2020 at pars 13, 18.

John gave evidence that around the time that the deceased made her Will, she had told him that she wanted to keep the division of the property in her Will the same way as Giuseppe had done. He stated that on the day that the deceased made the 2009 Will, he, Dominic, and Connie had gone with the deceased to Puleo Lawyers. At first, the deceased went into an office with Mr Puleo alone, and then they were invited in. Mr Puleo told them that he had asked the deceased lots of questions in Italian such as “how many children she had, what was her husband’s name, where she was living, and where she was born”, in addition to going over the Will with her.

He gave evidence, in cross-examination that the first time they went to Mr Puleo’s office, he had gone with the deceased, Dominic, and Connie. He had been the driver. When they were there, Mr Puleo came out of his room, spoke to the deceased, and then took her with him back into the room. After a while, he invited Dominic and him into the room and he told them he had asked the deceased some questions in Italian.

In relation to the second meeting, John gave evidence in cross-examination that he could not remember much about the second meeting other than he had driven there, Connie had been in the car, and “she had wanted first preference to buy the house off from [sic] the lawyer”: Tcpt, 8 November 2022, p 375 (46-50).

John denied telling the deceased that a Will should be prepared and he maintained he was not present when the deceased’s Will was signed. He said that the deceased never spoke to him about her Will afterwards.

After the deceased made the 2009 Will, John recalled her making comments to him such as: “Why are you working so hard, you and your brother have this property here you will be ok”: Affidavit, John Meduri, 19 October 2020 at par 26.

John gave evidence that Rose would refer to the No 7 Bossley Park property and state that she “shouldn’t have to fix these things up”. Additionally, he stated that when the deceased was in a nursing home, Rose would say: “You and Dominic are the trustees of Mum’s Will, you sort it out”.

He also wrote in his affidavit of 19 October 2020 that on the day the deceased died, in a telephone conversation, Alan said to him “You and Dominic are trustees of the Will. If you need any help call me.” This evidence was not denied by Alan.

I accept this evidence as the undisputed evidence is that Rose (and Alan) were aware of the terms of Giuseppe’s Will.

In response to the suggestion that John had been deliberately underplaying the illnesses from which the deceased suffered before 2009, John said that he had never seen the illnesses at that time. He said he did not know the deceased was suffering from short term memory impairment from 2007; that no one had told him that; and that the suggestion was “news to [him]”. He also could not recall being told that she was confused as to time and date in June 2008. He denied that Dominic had told him, from 2005, that the deceased had suffered from auditory and visual hallucinations. He also denied that she suffered from delusions about Giuseppe having affairs, as she never mentioned anything to him about affairs or the birds. He claimed that it was only in the last 5-6 years, from around 2014, that she gradually deteriorated due to dementia, and then had become more forgetful. John gave evidence that neither the deceased, nor Connie, had told him about the deceased’s medical conditions.

Whilst he admitted that the deceased would get upset and scream at the birds, he stated that it was because the birds would attack her fruit or olive trees.

John conceded that the deceased was agitated, and extremely distressed after Giuseppe’s death, that she was crying and calling out to Giuseppe, but he said that she was grieving. He stated that she well knew that Giuseppe was dead as she insisted on going to the cemetery every Sunday. (His evidence about these things is natural and is hardly surprising.)

John indicated that the Kemps Creek property is “irreplaceable” to him, because he has a lot of memories of his parents attached to the property, he has spent significant time and money renovating the property, and it is the property where his children have grown up. He also stated it is important because he has lived on acreage all his life. He gave evidence he would not be able to afford to purchase the Kemps Creek property, nor other acreage property in the area, if he was to receive only one-sixth of the deceased’s estate.

John is usually employed as a freight handler for Star Track Express, which is a subsidiary of Australia Post. In his updating affidavit, John gave evidence that he ceased working at Star Track Express at the end of September 2022, due to a degenerative condition which affects his knees. He annexed a number of medical documents which detailed the condition.

His usual fortnightly income consists of $2,682, although he is currently receiving income protection payments while he is not working, which amount to $1,740 each fortnight. He is informed that he can continue to receive these payments for the next 104 weeks, but is not aware as to whether the amount of the payment is consistent across those weeks.

In his updating affidavit, John indicated that he also receives a fortnightly family allowance from Centrelink which amounts to $441. In the financial year ending in 2022, his taxable income was recorded as $63,072.

John relied upon a number of medical reports, including a Patient Health Summary printed on 7 September 2021 and a Radiology report dated 9 September 2021: Ex. MB1/329-330.

John’s wife is engaged in full time home duties, as they have two children, who are aged 14 and 12 respectively. He gave evidence that their total assets had a value of about $229,000.

John did not give any evidence of having any liabilities. He stated that his fortnightly expenses totalled $2,169.

In his updating affidavit, he indicated that he would be required to have a knee replacement in both knees, over a period of a couple of years, due to the hospital wait times, and the rehabilitation required between surgeries. He believes that these surgeries will result in him being unable to work for a couple of years, throughout this process.

John agreed that his wife sends money to her family in the Philippines but said he did not know how much she sends. She uses the allowance which he provides to her. He maintained that Ruby has no assets, has no income, and does not work outside the home. She has no skills because she has not worked since moving to Australia.

In his affidavit of 17 September 2021, John said that he had received advice from senior counsel regarding a family provision claim. Following that advice, he gave instructions for the claim to be quickly made. Until that time, he was “unaware of what a family provision claim was and was unaware of any time limit in respect of any such claim”.

In cross-examination, John could not remember whether he received any advice about a family provision claim prior to August 2021; could not remember whether he was told about a time limit; was unable to recall whether Mr Puleo had given advice to him about a family provision claim; or when he was told about Joseph’s claim.

John agreed that there are a number of lorries, trucks, and trailers situated on the Kemps Creek property which belong to Dominic’s friends and sons and that they were not charged for occupying the site. He said his children and their friends use the land to ride dirt bikes, push bikes and go fishing with them. He said he uses all the land except for the area with the igloos. He maintained that other properties were not suitable for his needs.

John agreed that the tenant, who owns the igloos situated on the Kemps Creek property, has paid the Council rates since 2019, but he only pays enough to cover the rates, which total about $4,800 or $5,000 per year.

Overall, remembering what has been written earlier, I am satisfied that whilst certain aspects of his evidence cast doubt on John’s reliability, and accepting that his memory for detail was poor on occasions, when he said he could not recall a matter where one might have expected him to have been able to give a rather fuller and more definitive answer, I do not accept that this was due to him pretending not to recall something upon the basis that it might have been adverse to his own interests or those of Dominic. I am satisfied that on the principal matters, particularly the conversations with the deceased and Giuseppe, he was telling the truth and was, regarding that evidence, a generally reliable witness. I am also satisfied that he had no part to play in the process of making the 2009 Will. His description of her condition at or about the time the 2009 Will was made is likely to be more accurate than the evidence of Rose and her witnesses.

Notwithstanding counsels’ many criticisms of his evidence and bearing in mind the inherent potential for unreliability in the evidence given the passage of time, I am satisfied that John was doing his best to assist the Court. He, like Dominic, did not attempt to exaggerate his recollection of events. I am satisfied that on the principal matters, particularly the conversations with the deceased and Giuseppe, he was telling the truth and was, regarding that evidence, a generally reliable witness. He, also, did not strike me as a person of great sophistication. It seemed that he, too, had limited formal education.

The evidence in support of Joseph's claim is limited to affidavits affirmed by a solicitor from the NSWT&G, Ms Macmillan, and copy documents annexed thereto. Ms Macmillan was not required for cross-examination. It follows that the evidence given, in respect of Joseph’s claim for a family provision order, is unchallenged.

I have taken some of what follows about Joseph’s condition from the Reasons for Decision of the Guardianship and Financial Management Application made on behalf of Joseph by the South Western Sydney Local Health District (Ex. MB1/347-360).

Joseph, at the date of hearing, was 57 years old. He suffers from schizophrenia in addition to high blood pressure and chronic obstructive pulmonary disease. He is not married and, so far as is known, he has no children.

Joseph has cognitive deficits related to his schizophrenia. It appears that he has limited insight into his own health limitations, and demonstrated cognitive difficulties in relation to memory, understanding detail, conceptualisation and executive functioning. His working memory, language, problem-solving, planning, adaptable thinking and organisation are impaired, as is his capacity for abstract reasoning and informed decision-making. Joseph's impairments are described as "global".

His physical health issues include high blood pressure, high cholesterol and chronic obstructive pulmonary disease. Joseph is a regular smoker.

Joseph had been taking regular medication to manage his schizophrenia, and his condition had been managed in the community by his doctor. However, in 2018, Joseph ceased attending his doctor for his regular injections, and his mental health deteriorated. He was subsequently admitted to Liverpool Hospital on 6 July 2018 following an incident in which he assaulted his long-term de facto partner, Anica Glasovac.

Joseph currently resides in a group home in Auburn, managed by 'Partner in Your Care', which provides him with 24-hour care and ongoing supervision. The group home accommodation is primarily funded through an NDIS package. The accommodation is not permanent. It was allocated by NDIS on a mid-term or medium-term basis: Needs Assessment Report of Robert Pringle dated 4 June 2021, page 5: Ex. MB1/399. See also NDIS Plan dated 22 January 2021, page 6: Ex. MB1/378.

The accommodation is said to be suitable for Joseph's current needs and level of function.

Currently, he appears to be compliant with the psychiatric treatment and medication that he receives. He attends regular psychiatric reviews provided by Auburn Community Mental Health Services, and is prescribed medications including haloperidol, haldol, olanzapine and escitalopram: Needs Assessment Report of Robert Pringle dated 4 June 2021, page 3: Ex. MB1/397.

Prior to living in the group home, Joseph lived at Lansdale with Anica.

Apart from the Commonwealth Government's limited responsibility to continue to provide Joseph with the pension, there is no other person with a liability to support him.

Anica lives in government housing in Fairfield Heights. Previously, Joseph has resided with her in that house in earlier times. On average, he visits her six days per week for 3-4 hours each day, although this is dependent on the health of both him and Anica, as she also suffers from a mental health condition, the details of which are not disclosed in evidence. Recently, Anica was admitted to hospital and Joseph was unable to visit her.

Joseph and Anica wish to live together, but due to the mental health conditions of each of them, and in light of the events leading to Joseph’s hospital admission in 2018, it was determined that Anica is unable to supervise and assist him with his everyday tasks. This means that Joseph must remain in a group-home and be provided with 24-hour care, notwithstanding both his and Anica’s desire to live together again.

I have referred to the provision made for Joseph in the 2009 Will.

No evidence was given of Joseph’s relationship with the deceased, or any contributions, financial or otherwise, made by him to the acquisition of the property in the estate of the deceased or to her welfare whether made before or after the deceased's death, for which adequate consideration was not received. There was some evidence that he had worked with Giuseppe and the deceased when on the family farm. No suggestion was made that he did not have a close relationship with each of the deceased and Giuseppe.

Each fortnight, Joseph receives a disability support pension ($987) from Centrelink. He has an operative NDIS Plan dated 22 January 2021, which was rolled-over without a formal review. The Plan provides funding for some of his needs, including his present accommodation. There is $67 per fortnight paid by way of recurrent funding for other needs, including supervised outings and transport costs.

Apart from a fortnightly amount of $200 by way of a personal allowance, his other expenses, including care and accommodation expenses, are managed and paid by the NSWT&G.

His pension, as to 75 per cent, is paid as a contribution to his accommodation and household expenses. His other expenses are limited to medication and chemist costs ($85 per month), a personal allowance ($400 per month), and the NSWT&G fees and charges ($35 per month). These expenses are met out of his income.

Joseph has the following assets:

Joseph’s only liability is outstanding debts amounting to $21.

There have been two Needs Assessment Reports prepared for the purposes of these proceedings. The first is one dated 4 June 2021 by Robert Pringle, a Clinical Psychologist, (“the Pringle Report”). The second is one dated 20 September 2022 of Marie Heydon, a Social Worker (“the Heydon Report”).

The Pringle Report identifies indicative financial needs for Joseph, based on a 15-year life expectancy, at $857,500 (comprising a sum of $97,500 (or $6,500 per year) for medical, dental and lifestyle needs, a sum of $10,000 for capital equipment not covered by NDIS, and a sum of $750,000 for alternative accommodation).

The Heydon Report identifies indicative financial needs for Joseph, based on a 15-year life expectancy, at $937,400 (comprising $22,400 for holidays, $15,000 for equipment, $75,000 for medical expenses, $75,000 for contingencies, and $750,000 for alternative accommodation).

It can be seen that he does not have any superannuation and no funds to meet the needs identified in the Pringle Report and the Heydon Report.

Both the Pringle Report and the Heydon Report acknowledge that:

Rose swore six affidavits in the Probate proceedings, with the first sworn on 22 October 2020, comprising 215 paragraphs, spanning 23 pages; the second, which was in reply, sworn on 25 January 2021, comprising 35 paragraphs, spanning 13 pages; the third, sworn on 7 May 2021, comprising 30 paragraphs, spanning seven pages; the fourth, sworn on 5 May 2022 comprising eight paragraphs, spanning five pages; the fifth sworn on 12 October 2022 comprising 25 paragraphs, spanning six pages; and the sixth sworn on 8 November 2022 comprising six paragraphs, spanning two pages.

Rose also swore two affidavits in the trust proceedings, the first sworn on 12 October 2021, comprising 44 paragraphs, spanning 9 pages; and the second sworn on 21 September 2022, comprising 86 paragraphs, spanning 12 pages.

Rose maintained that the deceased could not speak, or understand, English, other than a few words and simple phrases, and that she would speak in the Italian dialect of Calabrese. She stated that although the deceased had lived in Australia for over 60 years, she did not need to learn English because she communicated with family and with friends from her region, in the Calabrese dialect.

Rose gave evidence that in the 1990s, she had a conversation with the deceased about her testamentary affairs, while Giuseppe was present:

Over the following years, Rose stated that she would raise the same topic with the deceased, but that the deceased would only get angry and say to her in a raised voice “Tutto uguale, tutto uguale” which she explained means all equal in Calabrese: Affidavit, Rose Marie Wild, 22 October 2022 at pars 107-111.

Rose stated that the treatment of each of their children equally was a principle followed by both of her parents, always giving the children equal amounts of money or food. She claimed that allowing Dominic and John to live rent free on the Kemps Creek Property was the only exception to this principle: Affidavit, Rose Marie Wild, 22 October 2022 at pars 199-208.

In her reply affidavit, Rose attested that neither the deceased nor Giuseppe had ever mentioned to her that they had made a promise or given an assurance to leave the Kemps Creek property to Dominic and John. Neither had they ever asked her whether she would agree to receive a property from them when they died on the basis that she would not have a claim on other real estate owned by them: Affidavit, Rose Marie Wild, 12 October 2021 at pars 12-14.

Additionally, Rose believed that it was uncharacteristic of the deceased to nod her head in agreement during a conversation. She also claimed that she has never heard her mother speak in the way Dominic claims.

As stated, there was no dispute that in 1993 or 1994, she had driven the deceased and Giuseppe, to Puleo Lawyers to discuss the preparation of Wills. Whilst they spoke to Mr Puleo, she herself, did not attend the meeting, but had assumed that wills had been executed. The evidence of an assumption is odd, bearing in mind that she drove them to, and I infer, from, the meeting with Mr Puleo. One might have thought that he and the deceased would have said something about what had been done.

During her visits to the deceased from 2007 to 2009, Rose observed that the deceased would typically remain seated in her lounge chair, and that her face remained non-expressive. She would rarely respond when Rose spoke to her.

Rose stated that after Giuseppe died, Connie remained the deceased’s primary carer. It was Connie who had provided the personal care such as showering, dressing, driving her to medical appointments, and sleeping in the same room as the deceased.

Rose continued to visit the deceased about fortnightly, where she provided similar assistance as she had prior to Giuseppe’s death. She gave evidence that when she would visit, the deceased would not respond when her and Alan would greet her. Even after Rose identified herself, she stated that the deceased would take “a few seconds to recognise me and then her facial expression would become friendly, as if she was pleased to see me”. Rose stated that the deceased did not recognise Alan and would rarely recognise Rose’s son Johnny: Affidavit, Rose Marie Wild, 22 October 2020 at pars 72-78.

During her visits, Rose stated that she would do most of the talking with the deceased. Sometimes the deceased would ask “Did you eat?” and would often repeat the question several times during the same visit, despite Rose assuring her they did not need any food.

In this period, Rose recalls that the deceased would occasionally say to her: “When I die, everything is equal”: Affidavit, Rose Marie Wild, 22 October 2020 at par 118.

Rose recalled that her mother used to take medication to assist in managing her anxiety, at some point before Giuseppe died. She also believed that her mother was diagnosed with dementia sometime in the mid-2000s.

Particularly after 1992, Rose recalled that the deceased was obsessed with the delusion that her husband was having affairs with other women, particularly their neighbour. When items went missing in the house, Rose claimed her mother would say to her in Calabrese, referring to the neighbour, “He gave it to the puttana”. (According to Rose, the word ‘puttana’ holds similar connotations to the word ‘slut’ in the English language: Affidavit, Rose Marie Wild, 22 October 2020 at pars 127-131.)

On occasions when Giuseppe, would be working in the backyard or near the fence line of the neighbours, the deceased would say to her, “He’s over there waiting to talk to the puttana” or “Da puttana, she swindled the block of land for next to nothing. Your father gave it to her for nothing.” She claimed that the deceased would constantly watch and follow Giuseppe while he was in the backyard.

Additionally, whenever the deceased would hear birds sing or call, usually pigeons, she would say: “It’s the puttana calling for your father to get his attention”. When Rose would tell her that it was just the pigeons and not the neighbour, she claimed her mother would get “agitated, upset and angry” and would not believe her, saying: “No, it’s not. The puttana next door is playing a tape recorder calling your father”: Affidavit, Rose Marie Wild, 22 October 2020 at pars 132-140.

According to Rose, the deceased would become agitated and make similar comments when she was at Rose’s home, believing that her neighbour was there, as she would say: “Shhh Shhh, that puttana has followed us here.”

Shortly prior to Giuseppe’s death, Rose stated that a number of times she witnessed the deceased walking around her kitchen with the assistance of her walker and would mutter “Da Puttana” repeatedly.

Another delusion which Rose claims the deceased had, was in respect to the neighbours having marijuana. In 2003, Rose recalls that her mother said to her: “There were lots of people here yesterday carrying marijuana. Lots of people. They were taking it to the back. To the back.” Rose stated that her mother would continue to repeat this story in subsequent years, and would become angry when Rose would try to disagree with her: Affidavit, Rose Marie Wild, 22 October 2020 at pars 151-158.

Rose recalled that, following her father’s death, the deceased would forget that he had died, and would repeatedly ask Rose where he was. When Rose would inform her that Giuseppe had died, she would become extremely upset and confused, insisting that she had just seen him. The deceased would also call out Giuseppe’s name when they would leave the nursing home, after visiting.

In cross-examination, Rose asserted that she did not believe the deceased had the capacity to promise or assure Dominic and John that they could live on the Kemps Creek property on certain conditions. She stated that this was because of her lack of education, and that she did not know whether the deceased also suffered medical conditions which affected her ability to make a promise or give an assurance of this nature in the early 1990s: Tcpt, 9 November 2022, p 427(14)-428(10).

Rose filed an affidavit, sworn on 21 September 2022, which raised her competing moral and financial claims on the deceased’s estate. She stated that she had made extensive contributions to their welfare and estate, including, clearing the land at Bossley Park, cooking, cleaning, planting produce and working on the farm, preparing the produce for sale, feeding animals, assisting the deceased at the markets, accompanying the deceased to medical appointments, caring for her younger siblings, assisting Giuseppe to restructure his loans.

Between 1990 and 2007, Rose would visit her parents on most weekends, and she went with them on a number of domestic and international holidays. During these years she noticed that the deceased’s mobility became more limited.

From 2007, Rose gave evidence that Connie moved in, on a full-time basis, with the deceased and Giuseppe, at the No 7 Bossley Park property, and that Connie would assist them with their day-to-day needs, including cooking, cleaning and property maintenance.

Rose stated that when she visited the deceased she would also cook and clean for them, occasionally taking the deceased to the shops. John denied that Rose would help the deceased very much at all.

Although Dominic had stated in reply, that Rose was never at the Kemps Creek property, so would not have witnessed what work they completed, Rose did not suggest that renovations to the Kemps Creek property from 1989 were carried out behind her back and without her knowledge. Nor did she give evidence that the occupation, by Dominic and John, of the Kemps Creek property was without her knowledge. I have earlier referred to her knowledge of the reason why the Kemps Creek property was purchased.

Indeed, she gave evidence in reply, that she and Alan provided assistance to Dominic and John to renovate the Kemps Creek property, including installing insulation and planting crops. She did not recall Dominic or John paying any person for doing work on the Kemps Creek property.

Rose claimed that from 1986-1988, John and Cathy, his girlfriend at the time, lived rent-free in her home in Manly Vale, which is not acreage. This was asserted to dispute John’s evidence that he had always lived on acreage.

Rose also gave evidence of contributing to the preservation of the deceased’s estate by liaising with Puleo Lawyers, obtaining insurance policies for each of the deceased’s properties, and sometimes paying the premiums on these policies, advocating for the appointment of an interim administrator, assisting the interim administrator with the repairs and clean up of the properties in Smithfield and Bossley Park.

Rose’s daughter, Elisabeth, suffered from a brain haemorrhage when she was three weeks old, leaving her with permanent disabilities, including right sided hemiplegia and mild cerebral palsy. She was also seriously injured at school in 2013, which has caused her trauma and anxiety. She has subsequently required three knee replacements and a jaw replacement, and required constant care and assistance: Affidavit, Rose Marie Wild, 22 October 2020 at pars 13, 88.

In her later affidavit, Rose gave evidence that Elisabeth’s health has worsened over the past 12 months due to a serious seizure, which has impacting her ability to walk and to speak English. Elisabeth also has a functional neurological disorder and an auto-immune disorder called urticaria. These conditions leave Elisabeth in constant excruciating pain, across her body due to involuntary paroxysmal muscular contractions and constant severe headaches. Rose exhibited letters from Elisabeth’s treating doctors in support of her evidence: Affidavit, Rose Marie Wild, 21 September 2022 at pars 75-86.

Counsel for Dominic and John submitted that it was significant that the symptoms reflecting the deceased’s mental state, particularly the delusions from which she was said to have suffered, were not reflected in any of the contemporaneous medical records. Attention was drawn to the evidence of Dr Romeo, who had indicated that he had no significant concerns about the deceased’s mental capacity in and around September 2009. The descriptions of the deceased having a “low mood” and the prescription of Serenace for “agitation”, it was put, were temporary measures as a result of the quite natural grief of the deceased, following the death of Giuseppe.

Counsel emphasised that it was not until 2014, that Rose had first raised any concerns, and it was then that Dr Romeo recorded issues with memory decline or dementia, which prompted him to refer the deceased to Dr Joseph.

I did not find Rose to be a particularly good, or reliable, witness. Rather, I found her to be rather single-minded, with her evidence clouded, and seriously impacted upon, by her firm, and unrelenting, conviction, founded upon her strong sense of grievance, that any Will which did not divide the estate of her parents equally between their children was unfair. It seemed to me that she saw it as quite wrong that the Kemps Creek property, which was of far greater value than any of the other properties forming part of the deceased’s estate, should be devised to only two of the deceased’s six children. Bearing in mind its value, she received considerably less than what she was hoping for.

In this regard, it is difficult to accept the evidence in the last answer given by Rose in the following passage of cross-examination (Tcpt, 9 November 2022, p 504(19-28)):

In Rose’s opening written Outline of Submissions, presumably to demonstrate the unfairness, it was pointed out that the 2009 Will “divides the deceased’s estate unequally among the deceased’s six children. Under the 2009 Will, Dominic and John stand to receive approximately 65% of the value of the Estate, with the balance to be divided unequally among the deceased’s remaining four children”.

I provide examples of other matters that have caused me to have some concerns about accepting Rose’s evidence in its entirety. These include:

I found Rose to be a far more astute witness than each of Dominic and John. The evidence that she gave regarding not one, but two alleged conspiracies, when her evidence was either contradicted, or not supported, by the contemporaneous notes of Dr Romeo, reveals a strained, and, in my view, untruthful, attempt to explain events according to her narrative, rather than providing simple and straightforward evidence to assist the court. I much prefer the evidence of Ms Butera about the deceased’s condition in 2009 where it conflicts with the evidence of Rose.

Alan swore two affidavits in the Probate proceedings, with the first, sworn on 22 October 2020, comprising 67 paragraphs spanning eight pages; and the second, an affidavit in reply, sworn on 7 May 2021, comprising 16 paragraphs spanning five pages. Alan also swore one affidavit in reply in the trust proceedings, sworn on 11 October 2021, comprising 24 paragraphs, spanning four pages.

He asserted that the deceased could not speak English but only the Italian dialect of her hometown in Italy and that she was illiterate.

Alan gave evidence that between 1992 and 2001, he had assisted Giuseppe with his tax returns and financial affairs, including by reviewing the documents regarding investment properties. He also gave evidence that he had assisted the deceased and Giuseppe with work on their property, for example installing a sheet on the roof of a shed at one of the Bossley Park properties, and by completing maintenance on the Smithfield property. Alan also agreed with the evidence given by Rose, that throughout the 1990s and early 2000s they had assisted the deceased and Giuseppe with picking and preparing produce and would take the deceased on holidays and to medical appointments.

Dominic stated that he had never witnessed Alan engage in manual labour, nor had Giuseppe ever told him that Alan had assisted with the upkeep of any properties.

Alan stated that although the deceased was present for many conversations, she was not really part of the discussions, and he could not comment on what she had understood. However, he stated that “I knew full well that she wasn’t capable of understanding many of the things that were – particularly as far as financial things were concerned”: Tcpt, 6 December 2022, p 689(30-32).

In response to questions from the Bench, Alan agreed that sometime in 1994, Rose had taken the deceased and Giuseppe to see a solicitor, for the purposes of making a Will, but claimed he was not present on that occasion.

There is evidence that Alan wrote to Mr Puleo in February 1997 relating to land tax: Ex. MB1/632.

Alan maintained that from around 1999 onwards, he noticed that the deceased would become very upset and agitated whenever she heard birds call, and that she would scream and speak in Italian. Alan only recognised some of the words that she spoke including the names of her husband and children, and the word “puttana”. It was Rose who had explained to him that the deceased believed that Giuseppe was having multiple affairs with other women.

Alan claimed that until about 2001, he would drive Rose and the deceased to any appointments with Dr Romeo, the deceased’s general practitioner (GP) but he would usually remain in the car while Rose took the deceased to see Dr Romeo. However, he was only able to specifically recall accompanying the deceased on two occasions.

In cross-examination, Alan stated he did not recall Rose raising with Dr Romeo, any concerns about the deceased’s mental health: Tcpt, 6 December 2022, p 700(26-33).

Although bearing in mind his evidence regarding sitting in the car, Alan maintained that he remembered that Rose would explain the deceased’s ailment to Dr Romeo in English, and Dr Romeo would respond to Rose, asking her questions in English. Rose would relay those questions to the deceased in Calabrese and the deceased would respond to Rose in Calabrese, and Rose would translate her answers to Dr Romeo. On a few occasions, Alan believed that Dr Romeo said a few words in Italian to the deceased. Several times Dr Romeo said more than a few Italian words to the deceased, and Alan recalled that the deceased then would turn to Rose and speak to her in Calabrese. It appeared to him as if the deceased was asking Rose for an explanation. Dr Romeo would then diagnose the deceased and recommend treatment in English to Rose. At no point did Alan ever witness Dr Romeo engaging in a conversation with the deceased: Affidavit, Alan Howard Wild, 7 May 2021 at pars 6-11. In cross-examination, Alan amended this, saying that Dr Romeo did exchange some words in Italian or Calabrese with the deceased, but that the primary discussion was with Rose: Tcpt, 6 December 2022, p 703(40-42).

Alan claimed that several times in 2009, the deceased would say to Rose, the word “uguale”: Affidavit, Alan Howard Wild, 22 October 2022 at par 65.

Alan accepted that he and Rose knew of Giuseppe’s Will and regarded it as “not fair” (Tcpt, 9 November 2022, p 504(8-10) (Rose); Tcpt, 6 December 2022, p 689(34)-690(43) (Alan)). He also believed that the 2009 Will was unfair because “the value of the other properties was excessively higher than, than the other properties”: Tcpt, 6 December 2022, p 690(33-43).

In cross-examination, Alan accepted that the reason Rose wanted to “overturn her mother’s will” and “stop the probate” was that Rose regarded it as unfair. He said that “a decision hadn’t been made until … after the funeral, when we heard that the one million dollars was missing”: (Tcpt, 6 December 2022, p 693(38)-694(28). This is inconsistent with Rose’s evidence.

No evidence was advanced by either Rose, or Alan, that one million dollars was missing from the estate, although it is clear from the correspondence written by Ms McIntyre prior to the hearing, that many enquiries had been made about how the deceased’s finances had been conducted prior to her death. There was also cross-examination of Dominic about the management of the deceased’s financial affairs. Relevantly, he denied using any of the deceased’s money on the Kemps Creek property: Tcpt, 3 November 2022, p 301(49)-302(1).

Alan also asserted that neither the deceased, nor Giuseppe, had ever told him of a promise to give the Kemps Creek property to Dominic and John: Affidavit, Alan Howard Wild, 11 October 2021 at pars 9-14. He did not disclose, in the affidavit, that he was aware of the contents of Giuseppe’s Will and had read the substitutionary devise of the Kemps Creek property made for each of Dominic and John.

In cross-examination, Alan said that he only received a copy of Giuseppe’s Will in November 2009, when it was provided by Rose’s then solicitor. He was not aware that the deceased had made a Will until Connie had told Rose, who then informed him, after the Bossley Park property was sold, sometime in 2010.

After Giuseppe died, Alan recalled that when they visited the deceased, she did not recognise him, or his son, John. During this period, the deceased continued to scream and yell out the word “puttana”.

Whilst Alan did not assert that the photograph with Mr Ball had been photoshopped, as did Rose and Tony, he asserted that she “looks younger” than she did in 2010.

I am of the view that Alan is an interested party who seemed to be willing to support Rose’s evidence. He certainly seemed to have supported Rose’s view as to the asserted unfairness of the 2009 Will, which seemed to underlie some of his evidence. I tend to the view that his recollection of the florid symptoms is unlikely to be accurate as to the date of its commencement. In this regard, as with Rose, if they had attended Dr Romeo with the deceased, as each said they did, at a time each had observed those symptoms, it is inexplicable that neither informed him of the deceased’s behaviour. (In my view, had it been mentioned, it would have appeared, even in an abbreviated way, in the Progress notes.)

Tony is the eldest son of the deceased. He swore one affidavit in the Probate proceedings on 18 February 2021, comprising 38 paragraphs, spanning six pages. He attested that the deceased would speak to him in Calabrese. He also swore one affidavit in reply in the trust proceedings, sworn 17 October 2021, comprising 68 paragraphs, spanning 11 pages.

During the 1980s, Tony would visit his parents several times a week. He did not recall his parents ever saying that they intended to purchase the Kemps Creek property for Dominic and John, or that they intended to give the Kemps Creek property to them when they died: Affidavit, Anthony Meduri, 17 October 2021 at pars 17-18.

In his affidavit in reply, Tony maintained that neither Giuseppe nor the deceased had any discussions with him or any of his other siblings regarding this alleged promise to Dominic and John. He also claimed that he visited the Kemps Creek property shortly after it was purchased, and that in his opinion the land did not require clearing and that the main house did not require significant renovations. He recalled that this was one of the reasons Giuseppe found the Kemps Creek property an attractive purchase: Affidavit, Anthony Meduri, 17 October 2021 at pars 42-46. This was denied adamantly by Dominic in his reply evidence which evidence I tend to accept bearing in mind what, in fact occurred, by way of work being done on the Kemps Creek property after it was purchased as outlined by both Dominic and by John.

Tony stated that he believed Dominic had significantly exaggerated his claims about the extent of the renovations that he did to the Kemps Creek property. He also gave evidence that from his observations, Dominic typically received building materials for a discounted rate or for free, and that he, John and his family would do most of the work themselves rather than hiring contractors.

He agreed that Dominic had done tiling, gyprocking, laying driveways, and doing electrical and plumbing work. Tony never saw any electricians at the Kemps Creek property. He disputed the amount of fencing installed, that a septic tank was installed, the extent of bitumen and roads which were installed, the cost of the plants on the property and the replacement of the shed.

In respect of the claims made by John regarding the work done to the Kemps Creek property, Tony maintained that the property did not require that extent of work and stated he had never observed John working on Dominic’s house on the property. It is hard to accept this evidence as truthful considering other evidence.

Tony did not suggest, however, that the renovations to the Kemps Creek property from 1989 were carried out behind his back and without his knowledge. Nor did he give evidence that the occupation, by Dominic and John, of the Kemps Creek property was without his knowledge. I have earlier referred to Rose’s knowledge of the reason why the Kemps Creek property had been purchased.

Nor did Tony give evidence that he was unaware of Dominic’s and John’s occupation of the Kemps Creek property from about 1989.

In around 2003, Tony said that he observed that the deceased would “sit and stare blankly into the distance”. When he would try to speak to her in Calabrese, she would either not respond or would reply with a few words.

Tony stated that whenever he visited the Kemps Creek property and his mother was present, she mostly sat with her head slumped forward, and rarely spoke more than a few words at a time.

Tony gave evidence that whenever his mother heard birds calling, she would yell out a combination of the following phrases: “They’re calling again. They’re calling for your father!”, “Fucking bastard! Why are they calling again?”, “Giuseppe”, “Concette”: Affidavit, Anthony Meduri, 18 February 2021 at pars 14-16.

He also claimed that the deceased believed that she could see people walking on the property next door carrying drugs, as she would say to him “Shh, shh, can you see them? They’re carrying drugs”. However, when he would look there was not anyone there: Affidavit, Anthony Meduri, 18 February 2021 at pars 21-22. In his reply evidence, Dominic denied both of these allegations.

Following the death of Giuseppe, Tony would visit the deceased approximately 3-4 times a week, during which time he would hold her hand in silence.

Tony stated he had never discussed with the deceased or Giuseppe his, her, or their testamentary intentions. John, however, believed that Tony did know what was in the 2009 Will because, he recalled Tony’s son, Mark, having complained to him that “it’s not fair that my dad has to get the house in Smithfield when you and Uncle Mick have this property”. John responded, saying “that is the way Nona did the will. I did not make the will. That is what my Mum and Dad wanted for many years”: Affidavit, John Meduri, 22 April 2021 at par 14.

Tony agreed with Rose that Dominic’s statement of the deceased having told him: “Don’t worry, this is your property, no one is going to kick you out”, did not “sound like something my mother would have said”, as she would not speak in full sentences but only a few words at a time: Affidavit, Anthony Meduri, 17 October 2021 at par 34.

I did not find Tony to be an overly impressive witness. In particular, I thought that he, too, was wedded to the view that the devise of the Kemps Creek property to Dominic and John was unfair. The florid examples of the deceased’s conduct prior to the making of the 2009 Will, as stated, do not find their way into any of the contemporaneous medical records. I also found his denial of the renovation work to be somewhat inconsistent with the photographs to which reference has been made.

Jake is the grandson of the deceased, and the son of Tony. He was born in June 1992 and is currently 30 years of age. He swore one affidavit in the Probate proceedings on 21 October 2020, comprising 67 paragraphs, spanning eight pages.

Jake gave evidence that on most afternoons between 2000-2008, he would catch the bus, after school, with his cousin, Ricky (Dominic’s son), to the Kemps Creek property, where he would stay until about 5:00 p.m., from where he would be picked up by Tony. They would visit the deceased and Giuseppe at their home in Bossley Park, whilst his sister was at soccer practice. He would also visit them on weekends.

After leaving school in 2008, he continued to visit the deceased and Giuseppe, with Tony, on nearly every weekend. These visits had continued after Giuseppe died.

In cross-examination, it was put to Jake that his father had given evidence that he had visited the Kemps Creek property only once or twice a week, and that Jake’s memory was not clear as he was then a teenager. However, Jake was adamant that his evidence was correct, despite his relatively young age, because he recalled that his sister had soccer training three times each week and then played once on the weekend. Jake indicated that he only attended the deceased’s house with his father, and that he did not go visit on his own.

He asserted that the deceased could not speak any English and believed that she could only communicate in Calabrese. He stated that he would interact with the deceased through small Calabrese phrases he had learned from her, and that otherwise his father would translate her comments to him in English.

Jake recalled that from 2006, the deceased would sit on the back steps of her house and scream, sometimes for approximately 2-3 hours. She would scream out the names of her family in addition to the word “puttana” and he observed that she was very anxious and stressed. He claimed that she would stop screaming when he mowed the lawn, or if she was inside the home with all the windows and doors shut.

In cross-examination, Jake affirmed that he did not see the deceased move around the house without the assistance of a walker or assistance from another person, during the 2-3 hours he would visit the deceased.

When the deceased would sit inside, Jake claimed that she would often sit in front of a mirror and say to Tony, who would then translate to him: “Look there’s a person running through the house. Don’t let them steal anything” or “Look there’s a stranger carrying marijuana”: Affidavit, Jake Joseph Meduri, 21 October 2020 at pars 43-44.

Jake recalled that in 2008, the deceased came with Tony, him and his sister, to buy some takeaway food. He and his sister stayed in the car with the deceased while Tony left to buy food. He gave evidence that when a man walked past the car, the deceased started screaming and attempted to get out of the car. When Tony returned to the car, the deceased started yelling at him, and his father then said to him and his sister that: “Your Nonna believed that a man was going to rape Lisa [Jake’s sister]”: Affidavit, Jake Joseph Meduri, 21 October 2020 at pars 46-49.

Jake was relatively young at the time he claimed to have observed the deceased not being able to walk independently and screaming for hours at a time. In oral submissions, counsel for Dominic and John submitted that Jake’s evidence that the deceased was unable to walk and screamed constantly is “extremely exaggerated and does not fit with the other evidence from independent witnesses, but also with the independent corroborative written documents”.

It was obvious that Jake sought to reject the description of the deceased in the photographs of the deceased at John and Ruby’s wedding (Ex. MB1/290).

I found some of Jake’s evidence somewhat implausible. It is highly unlikely that he could have remembered the years that events had occurred with the precision that he said he did. He was not prepared to admit any fallibility of memory despite the passage of time that had passed and bearing in mind he was a teenager at the time. In addition, his evidence of the florid symptoms, to which he referred, were not reflected in any medical records made contemporaneously with the 2009 Will.

I tend to the view that he was endeavouring to give his evidence in a way that was consistent with the evidence given by Rose and Tony.

As stated above, Kerry is the former wife of Tony. She swore one affidavit in the Probate proceedings on 17 February 2021, comprising 23 paragraphs, spanning 4 pages. She also swore one affidavit in the trust proceedings on 15 October 2021, comprising 48 paragraphs, spanning seven pages.

Kerry first met the deceased in 1983 and did not see her after 2002. She wrote that she found it very difficult to communicate with the deceased, who only spoke “minimal English” and spoke mostly in Calabrese. However, in cross-examination, she agreed that she had been able to communicate with the deceased, for example, when they could go grocery shopping together. She also accepted that the deceased had known the value of items, could pay for those items, and had been able to walk around the shops.

She also acknowledged that the deceased could not read or write and would sign documents with an “X”.

Kerry gave evidence that from about 1990, the deceased began to exhibit several unusual behaviours including mumbling under her breath to herself, breaking into fits of hysterical laughter without any prompt, and running in circles without any apparent reason. Yet, despite observing this behaviour, she stated that she did not discuss this with Tony or try and find out from the deceased why she was exhibiting those behaviours as she “just accepted her behaviour as that’s the way she was”, especially given other members of the family, such as Joseph and Connie, exhibited similar behaviours: Tcpt, 6 December 2022, p 678(17)-679(25). (There was little, if any, evidence corroborating the conduct alluded to and Dominic characterised Kerry’s description of the deceased’s conduct as “false and absurd”: Affidavit, Dominic Meduri, 22 April 2021 at par 10. John made similar comments in his reply evidence, saying he did not see the deceased doing this even in the last few years of her life.)

Kerry gave evidence that sometime in 1988, while John was still living with Rose, John approached her and Tony and asked whether they could stay on their property in Austral, in a caravan.

Kerry stated that neither Giuseppe, nor the deceased, had mentioned to her that they were considering purchasing a property for Dominic and John, or later, that the Kemps Creek property had been purchased for Dominic and John.

Prior to the deceased’s death, she was not aware that either Giuseppe or the deceased had made a will leaving the Kemps Creek Property to Dominic or John, or that they had promised to leave the property to Dominic and John when they died: Affidavit, Kerry La Rue, 15 October 2021 at pars 23, 34, 39-40, 46.

Kerry agreed that she and Tony visited the Kemps Creek property several times. In her opinion, the renovations which were done on the main house were largely cosmetic and did not require substantial structural renovations as alleged in Dominic’s affidavit. The basis, if any, of her expertise to make this assertion was not disclosed. She disagreed that the upstairs part of the main house was “unliveable” and did not recall anyone mentioning issues of mould in the house. She believed that the Kemps Creek property did not require any renovations after the mid-1990s.

She elaborated that between 1989-2001, she would usually visit at least once a fortnight, when she would drop off and collect her children, as her children were of similar ages, and went to the same school as Dominic’s two younger children.

Specifically, Kerry did not recall Dominic carrying out renovations which involved replacing timbers, gyprock on the ceiling, plumbing or drainage. Kerry did not recall observing Dominic or John growing any produce on the Kemps Creek property and claimed that her and Tony would drive the deceased and Giuseppe to Flemington Markets.

I do not draw much from Kerry’s evidence about the work that was done on the Kemps Creek property or her lack of knowledge about the intentions of Giuseppe and the deceased. It is not at all surprising that this topic would not have been discussed with her. During the times when she was dropping off her children, it seems somewhat unlikely that she would have paid much attention, if any, to the work that was being carried out by Dominic and John on the Kemps Creek property or if she did, that she would be able to remember what had, in fact, been done so long ago.

David Jamie DiMaria is the grandson of the deceased and is one of Connie’s eight children. He was born in April 1978. He has been in a de facto relationship with Melissa Ruisi for about 25 years and together, they have two children. He swore one affidavit in these proceedings on 23 May 2021, which comprised 41 paragraphs, spanning five pages.

He gave evidence of his relationship with the deceased, stating that he had a very close relationship with both of his grandparents and that he visited them regularly, having grown up about 10 minutes away from his grandparents’ house in Bossley Park. He would have been about 10 or 11 years old at the time the Kemps Creek property was purchased by Giuseppe and the deceased.

David also gave evidence that the deceased could not speak English, and could only speak Calabrese. David learned a few phrases in Calabrese, through years of interacting with the deceased, and was able to understand short questions such as “have you eaten?”, “are you working?” and “how’s Melissa?”. When he could not understand the deceased, he would typically ask Giuseppe, Connie, or one of his uncles to translate the deceased’s words to English. He would then respond in English, and either Giuseppe, Connie or one of his uncles would translate what he had said.

As a child, David regularly visited and stayed with the deceased. As a young adult he continued to regularly visit her at her home in Bossley Park. When he arrived the deceased would make him a coffee and ask him whether he had eaten, and would often give him food to take home.

However, after Giuseppe began to get sick, when he would visit, she stopped asking him whether he wanted food and did not ask about his work or family. He also noticed, at about this time, that whenever she would hear a bird, she would start screaming. At the time of Giuseppe’s death in July 2009, David claimed that the deceased was no longer able to recognise him.

For the reasons previously given, I have given little weight to his evidence unless it is corroborated.

I next turn to the evidence of the medical practitioners who saw the deceased.

Dr Romeo swore one affidavit in these proceedings dated 21 April 2021, comprising 17 paragraphs, spanning five pages. He was cross-examined at the hearing.

He gave evidence that when the deceased came to see him for a health issue, she would normally speak for herself in the Italian language. After Giuseppe stopped coming with her, it was Connie who would normally attend the consultations and contribute to the conversation between Dr Romeo and the deceased by adding something that she considered the deceased had omitted. He said that at least until about the last three years of her attending his practice as a patient, the deceased could speak for herself and tell him of her complaints.

Despite the deceased attending in a wheelchair in the last couple of years of her life, Dr Romeo gave evidence that she was able to remember him and was able to chat with him about general things.

In his affidavit, at paragraph 11, Dr Romeo included a reference to some of his clinical notes relating to the deceased, including:

The clinical notes also contain a reference to a consultation on 25 August 2009, in which Dr Romeo recorded the deceased as having “low mood” (Ex. MB3/025). He recorded nothing that suggested that the deceased was, then, suffering from the florid symptoms alleged in the Statement of Claim and in the evidence of Rose and some of her witnesses.

There is a mention in the notes of a concern about her cognition in October 2009, when Dr Romeo noted “family worried about recurrent falls, poor memory. Mobilising with pickup frame” (Ex. MB3/026).

Dr Romeo recalled that he decided to refer the deceased to Dr Joseph in 2014 as he felt he was unable, on his own, to assist the deceased at that point. He stated that his recollection was that the deceased was becoming less mentally capable. He also gave evidence that, after he had referred her to Dr Joseph, the deceased suffered a marked decline until 2017, when he stopped seeing her as a patient.

Ultimately, Dr Romeo stated that his recollection, based on his observations of the deceased and his notes, was that he did not have any significant concerns about the deceased’s mental capacity in, or around, September 2009. He was seeing her on a very regular basis, and had he had any concerns, such as the deceased suffering dementia or confusion, or if he had thought she had otherwise lost her capacity to think about, and understand, things relevant to everyday life, he would have recorded this. He stated that, to his observation, the deceased was not suffering from any delusion or disorder of the mind in 2009.

Counsel for Rose was extremely critical of the contents of the clinical notes kept by Dr Romeo. It was said that “the Court cannot be confident that Dr Romeo’s medical notes reflect the deceased’s true medical conditions and history”. It was also submitted that the medical opinions he expressed about the deceased’s capacity were not based on any proper assessment, or alternatively, a sufficiently detailed assessment, conducted with the deceased. They also submitted that the medical opinions expressed in his affidavit were general in nature and had not been based on any specific recollection of the deceased or specific records disclosed in his medical notes. It was also submitted that his notes did record matters which ought to have alerted him to problems with the deceased’s capacity, such as poor memory (Ex. MB3/026).

By way of example, it was submitted that Dr Romeo had failed to order appropriate tests when the deceased consulted with him after suffering a stroke. On 14 July 2004, Dr Romeo recorded that the reason for the consultation was “CVA (cerebrovascular accident)” along with urinary incontinence. He then prescribed half a soluble aspirin along with two different antihypertensives, a statin and Natrilix. There is no record of Dr Romeo having conducted any examination of the deceased’s neurological system, nor that he checked her blood pressure, or carried out any cardiovascular examination.

It was also submitted that on 28 July 2009, the patient record revealed an attendance by the deceased upon Dr Romeo. The deceased’s husband had died only two days earlier, on 26 July 2009. It was put that Dr Romeo had made no record of this in his medical notes. He had simply recorded as the “Reason for contact” “agitation”.

Counsel for Rose were otherwise critical of Dr Romeo’s evidence. They submitted that his evidence could not be relied upon to the extent that it extended beyond the contents of his contemporaneous medical notes, because he had no actual recollection of the events reflected in the notes. He was unable to elaborate on most of the entries recorded. They also submitted that, as a result of Dr Romeo’s poor recollection, his evidence was incorrect in several critical respects, including in relation to the deceased’s ability to “converse easily” with him throughout the years he treated her and in respect of the deceased’s ability to “normally speak for herself”. They submitted that little weight should be placed on Dr Romeo’s evidence because his recollection was so poor.

In his affidavit, Dr Romeo deposed:

Dr Romeo prescribed her Serenace, an antipsychotic medication to which the deceased was allergic. Dr Romeo deposed that he prescribed Serenace “to assist her in being less agitated”.

It is clear from the cross-examination that Dr Romeo did not see the deceased that day (Tcpt, 2 November 2022, p 186(28-29)); that the consultation was by way of a telephone call, with Connie (Tcpt, 2 November 2022, p 187(31-34)) in which she had revealed a concern that the deceased would not be able to cope during the funeral of Giuseppe and that Connie had requested medication for the deceased (Tcpt, 2 November 2022, p 186(39-44)). Dr Romeo did not arrange a subsequent consultation with the deceased to assess her himself, stating that “the family was looking after her”: Tcpt, 2 November 2022, p 187(36)-188(2).

Whether or not one can be critical of Dr Romeo prescribing Serenace to a patient who is 88 years of age, as each of Professor Watson (Tcpt, 7 December 2022, p 779(41-45)) and Associate Professor Ryan (Tcpt, 7 December 2022, p 798(45)-799(1)) was, and their concern that Serenace “could have impacted the deceased’s cognition” (Tcpt, 7 December 2022, p 799(13-27)), the concern of the Court relates to the capacity of the deceased, first, in August 2009 and then again on 19 September 2009.

In addition, there is the later note of 27 October 2009, to which reference has been made that the deceased “probably” had not taken the medication. Having carefully considered the evidence overall, I am unable to determine on the balance of probabilities, whether the deceased did, or did not, take the medication that Dr Romeo prescribed.

The contemporaneous clinical notes do not provide much direct evidence of when the onset of any cognitive impairment occurred, or very much about its course. However, in considering Dr Romeo’s evidence, affidavit and oral, it is important to remember that the contemporaneous clinical notes, which he was duty bound to record, were kept by a general medical practitioner in the course of a busy medical practice, who had regularly seen the deceased, and that his evidence was given over a decade after the events which he was being asked to remember, in respect of a patient who was one of many others he had seen at the time, and since. I have borne these matters in mind when reflecting on his evidence. It is also to be remembered that the clinical notes form a contemporaneous continuous record, spanning many years, before, and after, the 2009 Will was made, and were written by a treating medical practitioner. The clinical notes are obviously worthy of careful consideration. However, they must be judged alongside the other evidence in the proceedings.

Whilst Dr Romeo did not conduct any formal, or it would appear less formal, cognitive assessment of the deceased during the years that he was involved in her medical care, it is difficult to accept the submission, by Rose, that this was because he did not appreciate her mental condition. Another available explanation is that neither the deceased, nor any other of her family members who had attended with her upon Dr Romeo had raised, when the deceased attended upon Dr Romeo, the florid symptoms that were stated by Rose and others, in the Probate proceedings.

It is somewhat implausible to think that none of those symptoms would have been included in the clinical notes if one, or other, of them had been disclosed to even a busy treating general medical practitioner or if he had observed those florid symptoms himself.

I am satisfied that, in giving his evidence, Dr Romeo was doing the best that he could to recollect the deceased and to state his opinion about her medical condition. He accepted that much detail had been lost from his memory due to the passage of time and the number of patients he had seen since 2009: Tcpt, 2 November 2022, p 187(23-29); 191(13-14); 193(49)-194(2); 196(41)-197(21). His evidence cannot be discounted completely, as it forms part of the mosaic of facts which must be considered in reaching the conclusion about the deceased’s testamentary capacity.

As stated, Dr Joseph only gave evidence orally. That evidence included that she did not meet the deceased until October 2014, that is to say more than 5 years after the deceased provided instructions for and executed the 2009 Will. She saw her again in March 2015. She prepared two reports being one in October 2014 and the second in March 2015.

In the circumstances, it seems to me that the evidence of her findings, at that time, are not very helpful in determining the testamentary capacity of the deceased at the relevant time she gave instructions for and then made the 2009 Will. However, as the evidence was not the subject of objection, I set out some of her evidence.

On 20 October 2014, the deceased attended on Dr Joseph for the first time. Dr Joseph notes that she was accompanied by her daughter, although she could not recall which of the deceased’s daughters had attended: Tcpt 7 December 2022, p 735(32-36).

At that time, apart from the information that she received from Connie, who was the daughter who was likely to have been present, Dr Joseph had available to her the letter dated 28 August 2014 from Dr Romeo from Edensor Park Myhealth, which included some information about her, the results of a blood test, a list of conditions from which she suffered, some of the medications she was taking, and a request that Dr Joseph assess her for memory problems and confusion. She also had a discharge summary dated 21 April 2014 from Fairfield Hospital, which revealed she suffered from complete heart block; she was delirious, delirium, being “an acute confusion in people who have memory diseases, they got acutely sick when they have an acute medical condition, we call it delirium” (Tcpt, 7 December 2022, p 742(2-6); she had aspiration pneumonia, which required a nasogastric feed; she had an electrolyte disturbance; she had poorly controlled blood pressure and fluid in the lungs suggestive of cardiac failure; she had bilateral heel pressure ulcers (which meant that she had not been walking much); and also she had psychosis, which is a behavioural problem and paranoia: Tcpt, 7 December 2022, p 739(45)-740(35); 742(33-35). Dr Joseph stated that her main focus was to find the way to manage the deceased’s behaviour: Tcpt, 7 December 2022, p 747(1-5).

During the course of her oral evidence, she also located in her records two diary notes, one dated 8 September 2014 and another dated 29 May 2015, each recording a telephone conversation with a family member. In the first, there was a reference to “Patient not sleeping well and she’s paranoid, believing that somebody’s taking the money off her” (Tcpt, 7 December 2022, p 753(5-10)) and in the second, where there is a specific reference to “Connie”, which revealed that the deceased “is out of control since 5:00 p.m. yesterday. She broke the front door, she has been screaming constantly” and also that “Mum has been taking her medication but still her behaviour is not the best.” Connie questioned “whether mum has got a mental health problem”: Tcpt, 7 December 2022, p 753(32-39).

(There was no contemporaneous medical evidence that these conditions existed in September 2009, and if they did, how severe the condition then was.)

In her report dated 20 October 2014 to Dr Romeo (Ex. MB3/411-412), Dr Joseph stated that the deceased “gets mood swing [sic], agitations, psychosis and confusion. She can yell and curse and she can be physical at times.”

Dr Joseph stated in cross-examination that it was usual for her to take the patient’s history from the person who accompanied the patient, as one “can’t rely on the patient, because they have cognitive impairment, a lot of them. So, we have to get collateral history.”: Tcpt, 7 December 2022, p 735(38-45).

On this consultation, Dr Joseph assessed the deceased’s cognition by administering the Rowland Universal Dementia Assessment Scale (RUDAS). That form of testing is used, principally, for patients from non-English speaking backgrounds. The deceased scored 1/30 on the RUDAS: Tcpt, 7 December 2022, p 735(22-30). She administered the RUDAS, a second time, on 27 March 2015, and, again, the deceased scored 1/30: Tcpt, 7 December 2022, p 736(12-23).

Whilst Dr Joseph recorded details of the deceased’s medical history as reported to her by the family member who accompanied the deceased to each appointment, she obtained the responses to the RUDAS directly from the deceased and not from the family member in attendance: Tcpt, 7 December 2022, p 743(3-7).

These contemporaneous records of what Dr Joseph had been told in 2014, or what she observed in the hospital records at that time, is inconsistent with some of the evidence in Dominic’s and John’s case. She noted that the deceased was suffering from behavioural problems which, according to the family history, had started about six years earlier. (I am satisfied that the history provided to Dr Joseph did not come from Rose, who deposed that she did not attend any of the deceased’s consultations with Dr Joseph. This evidence was unchallenged.) However, as was pointed out by counsel for Dominic and Joseph, it was noted that it started then, not that it was the same then.

Dr Joseph agreed that it was difficult, with certain types of dementia, to know, just from talking to the patient, whether she or he had a cognitive problem. She stated that even if a patient has scored a high score on RUDAS, that does not indicate that they have capacity or insight: Tcpt, 7 December 2022, p 750(45)-751(48). She was not focussed upon the degree of dementia because she had not been asked to make that functional assessment of her capacity.

In her report dated 27 March 2015 she again referred to the deceased suffering various behavioural issues. She gave evidence that whilst behavioural problems can happen at any stage with dementia, it is more common with patients who suffer a “moderate to advanced degree of dementia”: Tcpt, 7 December 2022, p 736(45-46). She added that the deceased’s CT scans showed that the deceased was suffering from two types of dementia: Alzheimer’s dementia and vascular dementia: Tcpt, 7 December 2022, p 736(41)-737(3). She was thus suffering from “mixed type dementia”: Tcpt, 7 December 2022, p 737(5).

In their written submissions, counsel for Rose outlined the medical history of the deceased in some detail. Counsel submitted that greater weight should be placed on the evidence of Dr Joseph, who is a geriatrician, and because she had conducted several cognitive assessments on the deceased. It was submitted that the medical evidence was consistent with the lay evidence given by Rose, Tony, Kerry and Jake that there was a lack of capacity. Conversely, it was submitted that the evidence of Dominic and John was inconsistent with the medical evidence, and hence should be rejected.

I have considered the evidence relied upon and the submission carefully but there is insufficient contemporaneous written medical evidence that reveals the deceased’s behavioural problems were the same in August and September 2009 as they were recorded in 2014 (and thereafter).

The legal representatives for the protagonists provided a summary of the clinical notes and hospital records. In relation to some of the entries to which reference will be made, there is no contemporaneous note of the event but it appears, recorded later.

I shall not include all of what appears in the summary, but the following evidence has been taken from the documents provided:

I shall next set out a summary of the medical notes between 2010 and August 2014.

It is unnecessary to refer to the remaining references in the medical records, as by mid-2014, the deceased’s condition had significantly deteriorated. What seems much more important are the references, before September 2009, to problems with cognition and behaviour. Whilst not completely lacking in the references referred to above, before the deceased signed the 2009 Will, there is very little which supports the evidence given by Rose and other of her witnesses, of the florid symptoms from which each said the deceased had suffered well before August and September 2009.

I have earlier referred to the two joint experts from whom detailed expert reports were provided. As neither of the two experts had seen, medically examined, or treated the deceased, at any time, and the evidence of each was based upon medical records and other documents with which he had been provided, before turning to those reports, it is necessary to identify some general principles which ought to be remembered.

In Lim v Lim, (which is the subject of an appeal which has been heard, but not determined), I wrote at [217]-[218]:

In The Estate of Milan Zlatevski; Geroska v Zlatevski [2020] NSWSC 250, Henry J noted, at [87], that “[t]he question of capacity is a legal rather than a medical question, which is to be determined by ‘common sense judicial judgment on the basis of the whole of the evidence’”.

Associate Professor Christopher Ryan prepared one expert report dated 14 March 2022, and one supplementary expert report dated 11 April 2022.

In his expert report, Associate Professor Ryan expressed an opinion that it was more likely than not that the deceased suffered a mild neurocognitive disorder on 18 September 2009, due to a cerebrovascular disease or Alzheimer’s disease or likely both; and a long-standing depressive illness. He believed that the diagnosis of schizophrenia was not justifiable.

Associate Professor Ryan’s opinion was that the cognitive impairment associated with the deceased’s mild neurocognitive disorder would have compromised her capacity with respect to her ability to (Ex. MB2/022):

This was particularly likely, given the complexity of the various elements of the 2009 Will, in terms of the worth of the proposed bounties that each of her children would receive.

Associate Professor Ryan also gave evidence that the deceased’s likely mild neurocognitive disorder would have compromised her capacity to recall the relevant details of her property and to weigh up and evaluate the nature and strength of claims to which she ought to have given effect. However, he qualified his claim, by stating that she may have been able to understand the extent of her property and the impact of her arrangement if she had been provided with appropriate support in undertaking this task, such as a list of her various real estate holdings and their estimated values or being provided with a copy of Giuseppe’s Will.

However, he did not believe that her long-standing depressive illness, nor any medication that she was prescribed, would have affected her mental capacity to make a Will.

Associate Professor Ryan prepared a supplementary report, after receiving additional reports regarding computer tomography scans of the deceased’s brain, which were carried out in 2011, and 2016 respectively. In this supplementary report, he stated that these additional CT scans provided further evidence of slowing worsening of radiological abnormalities consistent with a developing neurocognitive disorder secondary to Alzheimer’s and cerebrovascular disease, which had reinforced his original impression. As such the documents did not affect his previously expressed opinion in his first expert report.

Professor Watson prepared one expert report dated 24 April 2022. In it, he detailed numerous medical conditions from which the deceased was suffering, summarising them as follows: “In my opinion from the medical and lay material there was evidence of poor mobility, falls, small vessel and possibly large vessel cerebrovascular disease with previous stroke or strokes, progressive dementia and a major psychiatric disturbance”.

He placed weight on the deceased’s score of 1/30 on the cognitive assessment instrument employed by Dr Joseph, saying it was “probably the lowest I have ever seen”. In his opinion, given that dementing syndromes are progressive, he stated that given the deceased was so severely affected when she was assessed in 2014, in addition to the presence of strokes as early as 2002, in 2009 “she was likely to have been affected significantly by dementia”.

Discussing the available radiological evidence, Professor Watson stated that the first available CT scan of the deceased’s brain, which had been administered 20 months after she made the Will, revealed several hallmarks of cerebrovascular disease, and identified several features which would raise concerns about the deceased’s likely cognitive state at the time of the Will.

Professor Watson also discussed the medications that the deceased was taking and concluded that “on a background of being elderly, and with several major underlying medical conditions it was likely that [the deceased] was taken[sic] medications that alone, and even more so in combination, would have had a significant effect on attention, cognition and motor actions”.

Finally, Professor Watson explained how each of the deceased’s medical conditions and medication would have affected her mental capacity, having regard to the test for testamentary capacity as outlined in Banks v Goodfellow. Relevantly, he opined that if the deceased were found to have suffered from delusions, hallucinations, poor short-term memory, affected long term memory, in accordance with progressive cerebral atrophy, these would likely have affected her judgment, memory, speed and quality of cognitive processing, to the extent that they would have had a significant detrimental effect on the deceased’s capacity to understand who may have a moral claim on the estate, and her ability to evaluate and discriminate between the respective strength of any such claims.

Additionally, he claimed that, if the evidence in the affidavits, and some of Dr Romeo’s and Dr Joseph’s notes are accepted, there would likely be sufficient support for the proposition that the deceased suffered from a delusion or mental disorder which likely had a direct bearing on her dispositions in the Will.

On Monday 28 November 2022, Associate Professor Ryan and Professor Watson, attended a joint expert conclave, facilitated by Ms Michaela Money, a solicitor agreed to by the parties. Prior to attending the conclave, the joint experts and the facilitator received additional medical records and a set of agreed questions dated 21 November 2022 from the solicitors for each of the parties, which are referred to hereunder. By this time, each had read the reports prepared by the other. They agreed that the additional medical records, as currently provided, did not have any significant impact on the opinions expressed by him in his expert report.

Some of the answers were pre-prepared by each of the experts prior to the expert conclave, and subsequently, each of the experts signed a joint report which was tendered and marked Ex. MB2/454-465, thereby indicating that the joint report accurately recorded their responses to the questions.

In the joint report, the experts agreed, first, that they had reviewed the additional medical records sent to each of them by email on 11 November 2022 (which records appeared under Tabs 8, 9, 10 and 11 of Ex. MB3) and that the additional medical records, as provided did not have any significant impact on the opinions expressed by him in his expert report.

Most relevantly, the experts confirmed that each had read the other’s reports and then set out the areas of agreement and disagreement between them.

The areas of agreement were as follows:

Whilst in his expert report, Professor Watson opined that “there was evidence of … a major psychiatric disturbance” and/or “of a delusion or mental disorder”, Associate Professor Ryan was of the view that “it is more likely than not that Mrs Meduri suffered a low mood intermittently from some point prior to July 1999 until September 2009 and beyond”. However, he also concluded that “it is likely to be the case that Mrs Meduri never suffered an especially severe bout of depression” and he would not categorise her depression as “a major psychiatric disturbance”. He was also not of the view that it is more likely than not that the deceased suffered delusions at the relevant time. To the extent that the deceased suffered from fluctuating behavioural disturbance this was most likely due to her cognitive impairment rather than to a psychiatric problem. However, ultimately, Professor Watson noted that this was Associate Professor Ryan’s area of expertise and that as he is not an expert psychiatrist, he accepted his opinion on these issues. He accepted that the deceased did not suffer from delusions or hallucinations.

In addition, the experts disagreed about several other matters which were:

Both experts were present in Court when Dr Joseph gave her evidence. It was following that evidence that they, concurrently, gave evidence.

From the oral concurrent evidence given, I am satisfied about the following matters:

After reviewing the medical records, the individual, and the joint, expert reports, the oral evidence given by Professor Watson and Associate Professor Ryan, and the other evidence, most respectfully, I prefer the opinion of Associate Professor Ryan where there is a disagreement between the two experts.

There was really no dispute about the principles that were applicable in determining the Probate proceedings. Counsel for Rose referred to Banks v Goodfellow at 565, and my recent decisions of Starr v Miller; Starr v Miller [2021] NSWSC 426 at [410]-[465], Chant v Curcuruto; Chant v Curcuruto at [657]-[718], Robertson v Barker at [455]-[493], and Lim v Lim at [340]-[359]. To those decisions could be added a reference to Chisak v Presot, an appeal from which was dismissed, with costs, in Chisak v Presot [2022] NSWCA 100 and to the Court of Appeal’s dismissal of the appeal in Starr v Miller (albeit in this case, the appellant sought revocation of Probate).

In Lim v Lim, I referred to the law in relation to testamentary capacity at [340]- [349], [351]-[353] and at [358]-[371] as follows:

In Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [5]-[6] Basten JA characterised the elements referred to in Banks v Goodfellow in the following way:

There is a logical link between testamentary capacity and knowledge and approval, although each poses a different question. The test of capacity is concerned with whether the deceased had the ability to understand that she or he is executing a Will and the effect of doing so. Knowledge and approval focus on whether the deceased actually knows and understands the content of the document that is being executed as a Will and intends that those terms should be incorporated into, and given effect by, the Will. Where that knowledge and approval is lacking, the Will is invalid. Testamentary capacity is a necessary, but not a sufficient, condition for establishing knowledge and approval. Much of the evidence will be relevant to both issues: Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 at [128] (Leeming JA, with Basten JA and Emmett AJA agreeing).

There was no dispute that as the proponents of the 2009 Will, Dominic and John, were required to satisfy the Court that it is the last will of a "free and capable" testatrix: Bailey v Bailey (1924) 34 CLR 558 at 570; [1924] HCA 21; Timbury v Coffee (1941) 66 CLR 277 at 283; [1941] HCA 22.

In Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285, Meagher JA, at [47]-[48], wrote:

It was submitted by counsel for Rose that the expert evidence agreed that it was unlikely that the deceased had capacity. With respect to the expert evidence given by Professor Watson, he opined that the deceased was suffering from numerous medical conditions at the time of the 2009 Will, and “was likely to have been affected significantly by dementia” given that she had advanced dementia by the time she saw Dr Joseph in 2014.

Counsel also drew attention to Professor Watson’s comments on how the deceased’s hearing and frequent urinary tract infections could likely have affected her capacity to make a Will, and his belief that the deceased was likely suffering from cerebral atrophy in 2009.

Counsel placed weight on Professor Watson’s criticisms of Dr Romeo and his “deficient record keeping” about the deceased’s medical conditions at the time of the 2009 Will. Finally, attention was drawn to where Professor Watson discussed whether the deceased had the mental capacity to know and appreciate who had a moral claim on her estate and had the ability to evaluate and discriminate between the respective strengths of any such claims, where he listed her conditions and then concluded,

Regarding the expert evidence given by Associate Professor Ryan, counsel emphasised that he found that it was more likely than not that the deceased suffered from both a mild neurocognitive disorder either as a result of cerebrovascular disease or Alzheimer’s disease, and a longstanding depressive illness.

It was submitted that weight should be given to his conclusion that “the cognitive impairment associated with [the deceased’s] mild neurocognitive disorder would have compromised her capacity”.

Counsel for Dominic and John submitted that Associate Professor Ryan’s opinion, being a more careful and nuanced approach to the evidence and the medical literature, should be preferred over Professor Watson’s opinion. It was said that Professor Watson’s conclusion ignored the evidence of Dr Romeo that he had no difficulty with her cognition and placed excessive weight on a diagnosis of schizophrenia and low score of 1/30 on a mental screening examination some years later, failing to account for possible linguistic abilities and the passing of time.

On the subject of the alleged delusions of the deceased, counsel wrote that there is no relationship between the alleged delusions and the contents of the Will. They contrasted this case with that of Re Estate Sue [2016] NSWSC 721, in which the deceased suffered a persecutory delusional disorder which had the direct effect of poisoning the testator’s mind against her daughter, and directly affected the gifts in the will. They noted that Associate Professor Ryan did not place weight on the allegations made by Rose, but that he “accorded significant weight” to the observations of Dr Romeo.

Counsel for Dominic and John submitted that Mr Puleo’s evidence should be given substantial weight given his experience and his evidence regarding the use of open-ended questions and being attuned to looking for any red flags that might indicate a lack of capacity. He had also attested to the fact that the deceased signed the 2009 Will by herself, with no apparent difficulty, and without anyone helping her to do so: Tcpt, 2 November 2022, p 151(1-3). There was nothing to ground Rose’s allegations of suspicious circumstances and thus nothing to impose a higher onus on Dominic and John as proponents of the 2009 Will.

It was also submitted that Rose had made much of the deceased speaking the Calabrese dialect, rather than Italian, and that Mr Puleo had spoken in the Sicilian dialect. However, Mr Puleo’s evidence that the Sicilian and Calabrese dialects were very similar, and that he had been able to communicate with the deceased and with Giuseppe, should be accepted.

They also submitted that the 2009 Will, in the context of the family circumstances at the time it was made, suggested that it was entirely rational on its face. Each of the deceased’s children receives property of value from the estate, albeit of different value, with separate attention given to how the property and share of residue that Joseph received was to be held, noting his incapacity.

All of this demonstrated that the deceased was aware of, and did not fail to take into account, the circumstances of each of her children. In relation to Rose, for example, the deceased knew that she owned a number of properties, with Alan; that Tony owned acreage at Austral; and that Joseph did not own any property because he was unwell. (Whilst Rose did not know whether the deceased knew that Connie owned property, I tend to think that she may very well have known: Tcpt, 9 November 2022, p 495(20)-496(33).)

I proceed by remembering that in:

I also bear in mind what was written in Hawes v Burgess by Mummery LJ (with whom Patten LJ and Sir Scott Baker agreed), at [14]:

Naturally, what follows must be read in light of what has been written earlier in these reasons. Even though it has not been possible to deal with every matter, earlier or in what follows, I have scrutinised all of the evidence in reaching my determination.

In reaching my conclusion on this aspect, a commencing point are my findings that it is probable that there had been discussions between the deceased and Giuseppe about what would occur on his, and her, death, respectively; that the deceased knew, in broad terms, about the contents of Giuseppe’s Will, and, importantly, what would occur if she predeceased him. The provision, being made for Dominic and John was the same as had been included in Giuseppe’s Will if the deceased predeceased Giuseppe and accorded with discussions between the four family members whilst Giuseppe was alive.

I also am satisfied that there were good reasons for the deceased to consider the making of a Will following Giuseppe’s death, which she seems to have understood by raising the need for that to be done with Mr Puleo.

The deceased discussed her testamentary intention, at least so far as it related to the Kemps Creek property, with Dominic and John prior to meeting with Mr Puleo. Considering the response by each of them to her, there was no reason to do more than make the provision that would have been made for each of them if the deceased predeceased Giuseppe. After all, at that time, following Giuseppe’s death, they had been living on the Kemps Creek property for about 20 years.

There was no evidence that either Dominic or John had encouraged the deceased to make a Will, or that either had suggested to her what she should do in relation thereto. As well, when she discussed the terms of her Will with Mr Puleo, she did so alone. It follows that this is not a case in which Dominic or John were either active, or instrumental, in providing the instructions for, or during the preparation and execution of, the 2009 Will.

There was sufficient reason for the deceased to alter the provision made in Giuseppe’s Will, for Joseph, considering her understanding of his then medical condition. There was also for sense in dealing with her jewellery and it was unsurprising that she would leave it to be shared equally between her two daughters. This was hardly irrational.

The 2009 Will did not depart from the pattern of testamentary intentions that had existed as between the deceased and Giuseppe; the residue clause divided the residuary estate equally between the deceased’s six children.

Then, there is an apparently valid will that has been duly executed.

What is next necessary is to balance the evidence of Mr Puleo, the extremely experienced solicitor who took instructions directly, and alone, from the deceased, who prepared the 2009 Will, who was present at the execution of the 2009 Will, and who considered the deceased did have capacity with the medical evidence and other evidence that has been presented.

I have borne in mind that both experts consider that lay people often miss even quite severe cognitive impairment, and that it was possible that an experienced lawyer would not necessarily gauge the severity of the deceased’s condition. However, I am satisfied that, with his experience, Mr Puleo was especially aware of what he should be looking for, and was satisfied, having taken instructions from the deceased, that she had capacity. At the times he took the instructions for, explained, and witnessed the execution of the 2009 Will, he was well aware of the Law Society of New South Wales guidelines concerning clients whose testamentary capacity was, or may be, in doubt.

That Mr Puleo gave evidence that he did not observe anything untoward in the circumstances under which the 2009 Will was signed, or in the deceased’s physical, or mental, condition, at the time, is of importance. Being such an experienced solicitor, he was aware of the matters which he had to consider, including the deceased’s inability to speak or read English. This is evidenced by the attestation clause.

Whilst he was not aware of some of the medical conditions from which the deceased was said to have been suffering, he was satisfied that she could, and did, give him instructions alone, and with her testamentary intentions being clearly expressed to him. He also made sure that none of the persons taking a benefit under the Will played a part in its preparation. That he did not seek any medical report, which formed part of his usual practice, if he was concerned about a will maker, is also relevant.

That the deceased, alone, referred to the gift of jewellery to her two daughters and raised the issue of Joseph being looked after is also relevant. Furthermore, that Dominic and John were to receive the Kemps Creek property, appears to have reflected a long-held intention of the deceased, and of Giuseppe, which had been reflected in his Will. A will-maker who has reflected over the years on how her, or his, property should be disposed of by will, in my view, is likely to find it less difficult to express testamentary intentions. That she raised the matter with Dominic and John and obtained the assent of each that he wished to remain there, before giving instructions to Mr Puleo, is also of significance.

In addition, whilst Ms Williams could not remember anything about the execution of the 2009 Will, being such an experienced witness of signatures on wills, one might have expected that she would have remembered if the deceased had exhibited the type of aberrant behaviour which Rose, and some others, had recorded.

Mr Puleo is the only person who can give evidence of what occurred when the deceased gave instructions for the 2009 Will and when he went through it with her after it was prepared. He and Ms Williams are the only two persons who can give evidence of what occurred at the time of its execution. I accept the evidence of each.

In addition, the evidence of the independent lay witnesses, namely, Mr Ball, Ms Butera, and to a lesser extent, Mr Bonarrigo and Mr Girotto, all support the conclusion that the deceased’s condition in 2009 was not as asserted by Rose and her witnesses.

I have endeavoured to summarise the medical evidence, remembering that the most relevant medical evidence is that which assists in determining whether the deceased had testamentary capacity when she made the 2009 Will. In this regard, the medical practitioner, Dr Romeo, was the one who made observations of the deceased closest in time to her making the 2009 Will.

There was no apparent decline in her condition between the date the instructions were given in August 2009 and the date the Will was executed in September 2009. In this regard, the most relevant medical evidence is that which was relatively contemporaneous with the making of the 2009 Will. Subsequent medical records, which show a significant decline in her mental state, particularly around 2014, does not really assist in that regard.

As earlier stated, bearing in mind those contemporaneous medical records which do not reflect the florid symptoms in the evidence of Rose and some of her witnesses, taken with the evidence of the two joint experts, have led me to the conclusion, expressed earlier, that the deceased’s condition in 2009 was as expressed by Associate Professor Ryan, rather than by Professor Watson, that is to say, it is more likely to have been a mild neurocognitive disorder, due to a cerebrovascular disease or Alzheimer’s disease, or likely both, and a long-standing depressive illness. In any event, testamentary capacity does not require perfect mental balance and clarity in the will maker.

Whilst the evidence is not all one way, a consideration of the totality of the evidence leads me to be satisfied that the deceased understood the nature of the act of making a will and its effects; understood, in broad terms, the extent of the property of which she was disposing; was able to comprehend and appreciate the claims to which she ought to give effect; and with a view to the latter object, did not suffer any disorder of the mind which poisoned her affections, perverted her sense of right, or prevented the exercise of her natural faculties.

Nor was there any delusion which influenced her will in disposing of her property and which brought about a disposal of that property, which if her mind had been sound, would not have been made.

Finally, capacity to make a will should be assessed having regard to the particular Will made. While the test of capacity remains the same, the application of that test will vary according to the complexity and the officiousness or inofficiousness of the relevant Will. Indeed, the question why the 2009 Will was rational from the deceased’s perspective, is one of the facts to be considered in the assessment of the deceased’s capacity.

It was submitted by Rose that the 2009 Will is inofficious because it gives 65% of the estate to two of her six children, it made impractical provision for Joseph, having regard to his medical conditions, and it gives one property to be divided between Connie and Rose. Further, counsel contended that the medical conditions from which the deceased was suffering in 2009, impacted the deceased’s ability to:

The 2009 Will is on its face regular. It is in writing and signed by the deceased in the presence of two witnesses. The two attesting witnesses signed an appropriate attestation clause. I am satisfied that its terms are intelligible and did not reflect a radical change in the deceased’s long held testamentary dispositions, particularly in relation to the Kemps Creek property; the 2009 Will and the estate being disposed of was not particularly complex (the property having been held for a long time); none of the persons naturally having a claim on the bounty of the deceased were excluded; and there had been a reflection by, and then independent advice given to, the deceased, regarding the terms of the 2009 Will. There was a period of about one month between the date of the instructions for the 2009 Will and the date it was executed by the deceased.

In coming to the conclusions that I have reached I also remember that the timing of the 2009 Will was closely connected with the death of Giuseppe. That the deceased herself, rather than one of her children, recognised that she needed a Will, because of the death of Giuseppe, and her then coming to own real estate, that she was to inherit under his Will, or which otherwise came to her, by survivorship, is of some significance.

Counsel for Rose submitted that the 2009 Will is not a simple Will because it provides specific gifts of real property (requiring a comparison of the value of those gifts and the risk of ademption), creates a right of residence, includes contingency gifts, establishes a trust for Joseph over one-sixth of the residue, and contains over three pages of executor powers. This submission is misplaced because it fails to take into account that the deceased had no obligation to treat all of her children equally in terms of the value of the provision made for him or her and its terms broadly reflected the deceased’s apparently long held testamentary intentions .

As important, it seems to me, is the deceased’s consideration of the facts and circumstances known to her at the time she made the Will. In my view, there was nothing inherently irrational about the deceased having chosen to leave her estate in the way that she did. After all, at the time the 2009 Will was made, Dominic and John had lived on the Kemps Creek property for about 20 years, and they had carried out improvements to it. Each of them, or Joseph, did not have real estate of his own, whilst each of the other children did. Joseph had a medical condition of which the deceased was well aware, and to ensure that his inheritance was protected in some way was also understandable. Leaving her jewellery to her daughters was also reasonable.

The terms of the Will appear to be a measured response to the circumstances of which the deceased was aware. Whilst the devise of property to Joseph might have been drafted differently, that comment has more to do with Mr Puleo than the deceased wishing to leave a property for Joseph’s use and benefit and to protect that property, so it was available to him for as long as he lived.

The conversations about which each of Dominic and John gave evidence, with Giuseppe, when the deceased was present and acquiesced, and with the deceased alone, after Giuseppe’s death, relating to the Kemps Creek property, was consistent, credible, and straightforward. Each of Dominic and John was unshaken in cross-examination in relation to the conversations and whilst the evidence of each in relation to the dates when a conversation occurred was vague, that is not a sufficient reason for rejecting his evidence.

I have already mentioned that there was no other source of the information of Giuseppe and the deceased having been taken to Mr Puleo in 1993 or 1994 by Rose, other than Giuseppe and/or the deceased.

That the deceased also knew and approved of the contents of the 2009 Will is hard to resist. I am satisfied that the terms of the Will reflected the deceased’s intentions as she disclosed them to Mr Puleo. Only she was present with him when the instructions were given and none of the children played any part therein. It was not suggested that either of Dominic or John had discussed what the deceased should include in her Will at any time prior to the making of the 2009 Will and they were not in the room on each occasion that the deceased discussed it with Mr Puleo. The suspicion of the Court was not excited in this regard.

The Court is not required to carry out an objective assessment of the fairness, or reasonableness, of the deceased’s testamentary dispositions. The power freely to dispose of one’s property by Will is an important right, and a determination that a person lacked (or has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter.

I find it hard to resist the conclusion that Rose, having read Giuseppe’s Will, knowing thereafter that the deceased had made a Will in 2009, and having seen the 2009 Will shortly after the deceased’s death, has succumbed to feelings of, amongst other things, disappointment, at what she regarded as its unfairness. She persuaded herself that the deceased’s condition was far worse than, in fact, it was at the time the deceased made the 2009 Will.

The disappointment and the assertion of its unfairness is also reflected by her evidence of her concerns, following the death of Giuseppe, of not only his testamentary capacity, but also the testamentary capacity of the deceased, without disclosing any such concerns in a way that resulted in them having been raised, at the time, by her then solicitors. Had she then held those concerns, there was little reason not to have mentioned them. It is hard to accept her evidence that she did not do so because “I knew at the time that there was no point to even discuss it, because I didn’t want to upset my mother in any way”: Tcpt, 9 November 2022, p 501(34-37).

Rose appears to have allowed her feelings to fester until the death of the deceased more than a decade later. Then, she raised the medical condition of the deceased, as well as some other matters, such as the deceased had been guided in making her mark on the 2009 Will and that the mark made on some of the pages did not look like a mark the deceased had made on the Will, without a factual basis. Both she and Tony also suggested that the photograph of the deceased with Mr Ball had been mocked up, and that it was part of a conspiracy in which some of her family members were parties in relation to the photograph that depicted the deceased standing with Mr Ball following the sale of the No 8 Bossley Park property. Of course, bearing in mind his evidence about the photograph, it would be necessary to find that Mr Ball had lied, or been a party to the conspiracy. There was no evidence of either.

Having considered all of the evidence, including the evidence of Mr Puleo, the medical evidence of mild cognitive decline, and even though there may be a lingering residual doubt about capacity, it is not substantial enough to preclude a belief that the 2009 Will is the Will of the deceased who possessed sound mind, memory and understanding at the time of its execution. As was written in Carr v Homersham at [47], “doubt which does not preclude the probability that the deceased enjoyed testamentary capacity cannot warrant a finding of invalidity”.

Applying the vigilant and careful scrutiny appropriate in all the circumstances, Dominic and John have satisfied me that the 2009 Will should be admitted to Probate and that administration, in solemn form, with that 2009 Will annexed, should be granted to Mr Neal.

Strictly, it is unnecessary to decide this issue as, under the 2009 Will, the Kemps Creek property is devised to Dominic and John as tenants in common in equal shares. The claim made for a constructive trust was sought in the event that the 2009 Will was found not to be a valid Will.

However, as observed by Kiefel CJ, Gageler and Keane JJ in Boensch v Pascoe (2019) 268 CLR 593 at 600; [2019] HCA 49 at [7], it is “preferable for the primary judge to have made findings on all of the facts that were in contest before him”, notwithstanding that Dominic and John have been successful in the Probate proceedings. Judicial economy does not provide a sufficient basis for not going further in case I am in error in determining that the 2009 Will is valid since that will facilitate the determination of any appeal without the risk of a retrial becoming necessary.

As was written in Massoud v Nationwide News Pty Ltd; Massoud v Fox Sports Australia Pty Ltd [2022] NSWCA 150 at [35], by Leeming JA (with whom Mitchelmore JA and Simpson AJA agreed):

As stated, there are two parts to the claim in the trust proceedings. The first is a claim for a trust arising out of their reliance on their parents’ promises or assurances that they would have beneficial ownership of the Kemps Creek property, and their encouragement that they should make improvements and renovations, which gives rise to a proprietary estoppel in their favour against the estate of the deceased. The second is a claim for a family provision order.

In respect of the first part, the Court has, already, carefully assessed the evidence of the conversations and, as importantly, the events which followed them, as Rose opposes the claims. I shall not repeat the history as the Court has found it to be, the initial promise or assurance, which was repeated, by the deceased, after Giuseppe’s death, and the conduct of Giuseppe, the deceased and the parties, both before, and after, the promise or assurance, in each case, was made.

Naturally, I have remembered that Dominic and John bear the onus of proof in establishing the claim on the balance of probabilities. In reaching my conclusion, I should also be taken to have made the credit findings earlier referred to, and, importantly, that the conversations adverted to by each of Dominic and John, with Giuseppe and the deceased, and then with the deceased, after Giuseppe’s death, did occur.

I shall deal with the principles of law that apply in relation to the first part of the trust proceeding.

In Evans v Braddock, I dealt with the legal principles that apply in a claim such as this. I shall not repeat all of the principles that I set out in that judgment.

More recently, in Robertson v Byrne [2022] NSWSC 171 at [256]-[258], Slattery J discussed, succinctly, the principles as follows:

Robb J, in Daniel v Athans [2022] NSWSC 1712, described the principles in this way at [24]-[25]:

In Q (a pseudonym) v E Co (a pseudonym) (2020) 383 ALR 469; [2020] NSWCA 220 at [88], Meagher JA (with whom Leeming and Payne JJA agreed) stated:

In Moore v Aubusson [2020] NSWSC 1466, Ward CJ in Eq (as the learned President then was), at [410] made the following observations in respect to the issue of detriment:

The equitable estoppel, therefore, responds where the first party (the owner of property), has made a promise or assurance to the second party, upon which promise or assurance the second party reasonably relied in forming an expectation, and which induced the second party to change his, or her, position, such that the second party will suffer detriment should the first party depart from the promise or assurance: Ashton v Pratt (2015) 88 NSWLR 281 at 306-7; [2015] NSWCA 12 at [140]-[141] (Bathurst CJ with whom McColl JA agreed).

Bathurst CJ also wrote at 307; [142]:

Before leaving this topic, I turn to the conditions referred to in the conversation with Giuseppe, in the presence of the deceased, to which I have referred and the principles relevant to the effect of the conditions. These included the obligation of each to remain living on the Kemps Creek property, to make renovations to it, to pay the rates on the Kemps Creek property, and to not receive any other real estate that formed part of the estate of the deceased.

One starts with a reference to Vinden v Vinden [1982] 1 NSWLR 618 in which case, the equity that arose by estoppel was found to be conditional upon the performance by the plaintiff of certain obligations. The Court found that where there are conditions attached to the expectation, such as contributing to outgoings, the equity was subject to performance of those conditions. Needham J wrote, at 625:

In O'Neill v Williams [2006] NSWSC 707, Brereton J wrote, at [43]:

His Honour repeated this view in Evans v Evans [2010] NSWSC 170 at [41] after quoting the part of the passage in Vinden v Vinden set out above. There was also a reference made to P W Young, C E Croft and M L Smith, On Equity (2009, Thomson Reuters) at [12.310]. On appeal, Evans v Evans [2011] NSWCA 92 at [15] there was no dispute on the correctness of the statement in [41].

To comply with the general rule that a judge should determine all issues before him, or her, and to assist in any appeal process and eliminate recourse to a new trial, I turn to the determination of the first part of the trust claim: Gulic v Boral Transport Ltd [2016] NSWCA 269 at [7] (Macfarlan JA, Gleeson JA and Garling J agreeing).

It was submitted that the reliance that Dominic and John placed on the promises or assurances by Giuseppe and the deceased, that they would have beneficial ownership of the property, and their encouragement that they should make improvements and renovations, give rise to an equitable estoppel in their favour against the estate of the deceased: Milling v Hardie [2014] NSWCA 163 at [36] per Macfarlan JA; Wantagong Farms Pty Ltd as Trustee for the Bulle Family Trust v Bulle [2015] NSWSC 1603 at [60] (Ball J).

Counsel submitted that a court exercising equitable jurisdiction may grant relief to make good an equity founded on “an assumption as to the future acquisition of ownership of property which had been induced by representations upon which there had been detrimental reliance”: Giumelli v Giumelli (1999) 196 CLR 101 at 112; [1999] HCA 10 (Gleeson CJ, McHugh, Gummow and Callinan JJ); at [60].

It was contended that the Court should be able to reach a state of comfortable satisfaction about the terms of the promise or assurance, the reliance upon that promise or assurance by Dominic and John, and the detriment that they have, and will, suffer, and consequently, should make the orders sought in the Amended Statement of Claim.

Counsel emphasised that Dominic would not have left a settled family situation in Crookwell, nor would John and Dominic have invested their time and resources into the Kemps Creek property, had those promises not been made or those assurances not been given.

Counsel also relied on the evidence given by Rose in the Probate proceedings, before the trust proceedings were commenced, that the Kemps Creek property was purchased as a means to encourage Dominic to return to living in Sydney: Tcpt, 8 December 2022, p 829(20-27). There was an acceptance in the family that the Kemps Creek property was purchased for Dominic to come back to live in Sydney, and that it was Dominic and John’s home. It was submitted that, whilst there was a denial of the knowledge of the promises or assurances, that is not inconsistent with those promises having been made or those assurances having been given: Tcpt, 8 December 2022, p 831(7-14).

It is inherently believable, counsel submitted, that a couple who have purchased a property which was improved by their sons, on which their sons had lived for over 30 years, would arrange for that property to be left to them in the Will. That was the scheme reflected in Giuseppe’s Will, and then the deceased’s Will: Tcpt, 8 December 2022, p 829(39)-830(6). The making of a Will by each of Giuseppe and then the deceased, to reflect the essence of the conversations, in my view, makes it reasonably clear that each regarded the promises made or assurances given as more than a mere statement of present (revocable) intention.

Counsel submitted that in the event that the Kemps Creek property was not held on trust for them, Dominic and John would suffer detriment because they would have to move from the Kemps Creek property, “uproot up to three generations of family living there and lose the benefit of their significant improvements”. It was submitted that Dominic and John’s long-term occupancy of the Kemps Creek property, along with the loss of any opportunity to buy their own property and to make a family home elsewhere, is the kind of detriment referred to by the High Court in Sidhu v Van Dyke (2014) 251 CLR 505 at 530; [2014] HCA 19 at [84] (French CJ, Kiefel, Bell and Jeane JJ) as being:

It was submitted that the deceased’s encouragement of John not to work overtime since he had a home, and to work on the Kemps Creek property on the basis that “you can do whatever you like to your homes, we’re leaving the property to you”, the fact that Dominic had spent at least $200,000 of his damages settlement on the development of the property, and the deceased’s assurance that nobody would “kick them out” was important in light of the conversation at the tomato patch. That conversation, it was submitted, had at its core a concern that Rose may kick them out.

Counsel for Rose, citing Van Dyke v Sidhu (2013) 301 ALR 769 at 777; [2013] NSWCA 198 at [40] (Barrett JA, Basten JA and Tobias AJA agreeing), and Vukic v Grbin; Estate of Zvonko Grbin [2006] NSWSC 41 at [28] (Brereton J), submitted that to succeed in their estoppel claims, Dominic and John needed to establish:

Counsel for Rose also submitted that in determining whether a clear and unequivocal promise was made, or assurance given, the Court must exercise caution in relation to uncorroborated statements attributed to a deceased person: Ashton v Pratt (No 2) at [18]. This was especially so in circumstances where Dominic and John would inevitably be unable to accurately remember the precise conversation, given that the initial conversations where the promises were allegedly made, or the assurances allegedly given, occurred in 1988, being 34 years ago.

Counsel drew attention to the fact that neither Rose, her husband Alan, or Tony, recalled the deceased or Giuseppe ever mentioning making a promise or giving an assurance of the kind alleged by Dominic or John. This does not reflect the fact that in November 2009, Rose and Alan came to see Giuseppe’s Will and to reflect upon the substitutionary gift of the Kemps Creek property made to Dominic and John in that Will. As already stated, there was evidence that in early 2010, Rose was told by Connie that the deceased had made a Will.

With respect to the requirement of reliance, counsel submitted that Dominic’s and John’s evidence does not establish that they would have taken an alternate course of action, had the alleged promises not been made, or assurances not been given, by Giuseppe and the deceased. No evidence, such as receipts, invoices, or other records of payments of the costs of the renovations and improvements were given to substantiate their claim that they have spent “several hundred thousand dollars”. Whilst counsel conceded that Dominic alleges that he would have bought real estate elsewhere, they submitted that there was no evidence before the Court that he could ever have afforded to do so.

Counsel went on to submit that, even if the Court were to find that Dominic and John had acted to their detriment in reliance on the alleged promise made, or assurance given, by the deceased, there was no evidence that the deceased was aware of that reliance. Counsel asserted that the deceased’s executive function was so poor by 2009, that her conscience could not be bound in equity so as to attract the doctrines of equitable estoppel.

It was also submitted that any funds expended by Dominic and John on the Kemps Creek property were likely to be less than the value of the rent-free occupation which they had received for over 34 years.

Counsel for Dominic and John relied on the evidence given that they had moved to the Kemps Creek property, had remained there for 30 years before the deceased’s death, had made renovations and undertaken expenditure on the property, and that they also had foregone the opportunities that they did, based on promises and assurances from their parents.

Considering all of the evidence, I am satisfied that Dominic and John have made out each of these elements as against the deceased (and Giuseppe).

In broad terms, first, Giuseppe and the deceased encouraged Dominic to return to Sydney, from Crookwell, and encouraged John, to come to live on a property that would be purchased. They did this so that Dominic and John would live closer to their parents. Shortly thereafter, the Kemps Creek property was purchased by Giuseppe and the deceased as joint tenants, following which Dominic and John, with his family, respectively, moved there to live.

Then, Giuseppe, in the presence, and with the apparent acquiescence, of the deceased, asked both of Dominic and John whether they would be happy to keep the Kemps Creek property, live there for the rest of their lives, and not receive any other properties from Giuseppe and the deceased, even if the Kemps Creek property was later taken by the government for parks. If they did so, and paid the rates for the land purchased, they would be entitled to live, with their families, on the land purchased, for the whole of their lives.

Dominic and John, with his family, having moved to the Kemps Creek property, made renovations to the property, with the knowledge and acquiescence of Giuseppe and the deceased. Rose acknowledged that she knew that, in the 20 years before he died, Giuseppe and the deceased regularly visited the Kemps Creek property, and observed that Dominic and John were living there, and that they were continuously improving the houses. I am satisfied that each of Giuseppe and the deceased knew of, and had encouraged, these things.

Each also gave evidence that he relied upon the promise made, or assurance given, moved onto the Kemps Creek property, remained living there, and would not have carried out the improvements, and in the case of Dominic, would not have restructured his life, but for the promise made or the assurance given. Neither, thereafter, looked to purchase alternative accommodation in which to live with his family. The arrangement made between the parents and their two sons persisted amicably between them for many years.

I find that the conduct of Dominic and John was likely, as a matter of the probability of human behaviour, to have been established. The conduct of Giuseppe and the deceased, and then, after Giuseppe’s death, of the deceased, fall into the same category. Then, the conversations after the purchase of the Kemps Creek property were objectively likely to have encouraged Dominic and John to remain on the Kemps Creek property and do what they did to that property.

Each of Dominic and John, with the knowledge and acquiescence of the deceased, continued to remain living, with his family, on the Kemps Creek property; each continued to make renovations and improvements to it, and to pay the rates, or have those rates paid, on the Kemps Creek property.

No specific reference was made by any counsel to what I have earlier referred as the conditions imposed by Giuseppe, without demur from the deceased, particularly the one concerning the receipt by Dominic and John of the Kemps Creek property, namely that neither would receive any other real property of Giuseppe and/or the deceased. The conversations to which I have referred demonstrate that the assumption or expectation that Dominic and John would receive the Kemps Creek property, which Giuseppe, and the deceased, and then the deceased encouraged them to adopt, was not unqualified. It was a reasonable expectation by each of Dominic and John that he, with the other, would inherit the Kemps Creek property, but would not receive any other real property, with the consequence that the trust would be imposed subject to each not receiving any entitlement to other real property.

For their part, Giuseppe and the deceased, and then the deceased, after Giuseppe’s death, held the counter-assumption or expectation that neither Dominic nor John would receive any other real property which would pass to the other children. Although it may have not been expressly identified, the real property that each would receive, either in whole or in part, was recorded in Giuseppe’s Will and in the 2009 Will (which was in similar terms).

Counsel did not refer to the fact that in propounding the 2009 Will, they were also accepting the condition that they would not receive any other real property, or part of real property, owned by the deceased, if they received the Kemps Creek property.

Following the death of Giuseppe, the deceased repeated the request to each of Dominic and John, and, again, made the promise or gave the assurance, which had been made previously. The deceased then made the 2009 Will which reflected the promise made, or the assurance given, so far as the Kemps Creek property was concerned. That Will was also consistent with neither receiving a devise of any other real property.

Neither Dominic nor John sought to purchase his own property on which to live with his family. Even though the evidence of both on how much was spent on the renovations and otherwise was vague, bearing in mind the photographs of the Kemps Creek property, some reasonable costs would have likely been incurred by them. Even if each worked on the renovations, that was not something each would have done but for the promise or assurance given.

In reaching this conclusion I have considered the countervailing benefit received by each of them and his family of living on the Kemps Creek property, at no specific cost to each of them. However, it was not put that the work done, the costs incurred, whatever they were, and not looking for alternative accommodation for him and his family, over the years were done, or incurred, as gratitude for being able to live on the Kemps Creek property.

The expectation of each of Dominic and John was induced, initially by Giuseppe’s and the deceased’s, and, after his death, by the deceased’s, words and conduct. For them to not receive the Kemps Creek property out of the estate of the deceased would be unconscionable, in all the circumstances. The deceased’s estate should not be able to avoid the deceased’s obligation to make good the promise that had been made or the assurance that had been given.

(I have considered whether the claim would result in an expectation that Dominic and John would be entitled to occupy the Kemps Creek property for his life, respectively, which then might give rise to relief in the form of an irrevocable licence or life interest in the Kemps Creek property. However, with the added reference to not receiving any other property, it seems to me that the appropriate relief, in accordance with what had been discussed between them, is in the form of the institution of a constructive trust over the Kemps Creek property and an order causing it to be transferred to them as tenants in common in equal shares.)

The appropriate relief, in the event that the 2009 Will were invalid, would be for the Court to declare that Mr Neal, as the administrator of the deceased’s intestate estate, holds the Kemps Creek property on constructive trust in favour of Dominic and John as tenants in common in equal shares, upon condition that each of them receives no other share of the real property or its proceeds of sale under the operation of the rules of intestacy.

Each of Dominic and John should accept that he is disqualified from receiving any other real estate, or any share of the proceeds of sale of any real estate that is sold, out of the estate of the deceased. In this way, each will have complied with the obligation imposed upon him by Giuseppe and the deceased, and then, after Giuseppe’s death, by the deceased.

I shall next turn to the claims made for a family provision order.

Because Dominic and John have stated that whatever the result of the Probate proceedings or the part of the trust claim that relates to estoppel, a family provision order under the Act is still sought, and even though Joseph’s claim is not the subject of substantial dispute, I shall deal with the principles that apply in relation to all claims for a family provision order.

The law on the topic was not in issue and I have dealt with the principles in many cases, including relatively recently Georgopoulos v Tsiokanis [2022] NSWSC 563 and in Clarke v Clarke [2022] NSWSC 1721 at [121]-[135]. I shall not repeat all of the principles which I have set out in many cases.

Although not relevant to Joseph’s claim, I start by referring to the principles that apply in relation to Dominic’s and John’s claim for a family provision order, in circumstances where that claim has not been made within the time prescribed by the Act.

As earlier stated, s 58(2) of the Act, relevantly, provides that an application for a family provision order must be made not later than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown. (It is to be noted that s 58(2) is in terms similar to s 16 of the former Act, but the words “for the application not having been made within that period” are not included after the words “sufficient cause being shown”.)

Without the consent of the parties, it is if, but only if, “sufficient cause” is shown, that the court has a discretion, having regard to all of the circumstances of the case, to extend the time for the making of an application. As also stated, Rose has stated that she does not consent.

Clearly, permitting the court to “otherwise order” was included in the Act to avoid the section becoming an instrument of injustice. Yet, “[t]he time constraint imposed by s 58(2) on the making of a family provision application is not a mere formality”: Verzar v Verzar [2012] NSWSC 1380 at [98] (Lindsay J). (The equivalent section in similar UK legislation has been described as "a substantive provision laid down in the Act itself, and is not a mere procedural time limit imposed by rules of court which will be treated with the indulgence appropriate to procedural rules": Re Salmon, Deceased [1981] Ch 167 at 175 (Sir Robert Megarry V.C.)

In Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 at [84]-[87], I set out the applicable legal principles relating to an application to extend the time, as follows:

There is no disciplinary element to s 58(2). The power should be exercised for its proper purpose, taking account of the context in which it arises, namely, in making adequate provision for the proper maintenance, education and advancement in life of an applicant from the estate or notional estate of a deceased, in light of all of the circumstances of the particular case. Where the proceedings are dismissed, an order extending time would be futile.

As was written in Butler v Morris; Butler (bht NSW Trustee & Guardian) v Morris [2012] NSWSC 748 at [117]:

If an order is made extending time, as each is an eligible person, the next question for the Court to determine is whether each of Dominic and John has been left with inadequate provision for his proper maintenance or advancement in life in relation to the estate of the deceased. This, and what follows, applies, equally, to Joseph’s claim for a family provision order.

The answer to this question “constitutes a finding of fact, albeit one that is, in light of the subjective character of the matter to be decided, evaluative. Nevertheless, making the finding involves a binary choice – either adequate provision has been made, or it has not. A finding on the issue does not, therefore, involve an exercise of discretion”: Strang v Steiner [2019] NSWCA 143 at [76] (Macfarlan JA).

It is the mandatory legislative imperative that drives the ultimate result, and it is only if the Court is satisfied that the provision is neither adequate nor proper that consideration is given to whether to make a family provision order: s 59(1)(c). Only then, may “the Court … make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made”: s 59(2).

The Act stipulates no automatic entitlement to provision and the deceased’s Will applies unless a specific application is made to, and acceded to, by the Court. Accordingly, it is clear that the Court has a discretion whether to make an order and as to the amount of any order that is made. Then, the Court is empowered to order such provision from the deceased's estate as the Court thinks fit, but the Court is not empowered to award more than what is “adequate” provision for the applicant’s “proper” maintenance, education or advancement in life. These propositions are clear and are derived from the statutory text which confines the Court’s power.

Relevantly, other than by reference to the provision made by the Will of the deceased, s 59(1)(c) leaves undefined the norm by which the Court must determine whether the provision, if any, is inadequate for an applicant’s proper maintenance, education, and advancement in life. No criteria are prescribed in the Act as to the circumstances that do, or do not, constitute inadequate provision for the proper maintenance or advancement in life of any applicant.

Under s 59(1)(c), the time at which the Court gives its consideration to the question of inadequacy of provision is the time when the Court is considering the application.

It has been said that the provision which the Court may properly make is that which a just and wise testator would have thought it his, or her, moral duty to make had he or she been fully aware of all the relevant circumstances: Re Allen (deceased) [1922] NZLR 218 at 220-221 (Salmond J).

The word “adequate” connotes something different from the word “proper”. “Adequate” is concerned with the quantum, described in R Atherton, “The Concept of Moral Duty in the Law of Family Provision – a Gloss or Critical Understanding?” (1999) 5 Aust J Leg Hist 5, 10, as reached upon “a purely economic and objective basis”, whereas “proper” prescribes the standard of the maintenance, education, and advancement in life: Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235 at [72] and [77] (Buss JA), which seems to invite more subjective criteria.

In Alexander v Jansson [2010] NSWCA 176 at [18], Brereton J, with whom Basten JA and Handley AJA agreed confirmed:

In Chan v Chan [2016] NSWCA 222 at [33], the Court of Appeal (Basten JA, with whom Simpson JA and Payne JA agreed) wrote):

If the Court is satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the applicant has not been made by the Will of the deceased, it determines whether to make an order for provision and what provision ought to be made.

As Callinan and Heydon JJ emphasised in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [122], the question of the adequacy of the provision made by the deceased “is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably”. The inquiry is not confined only to the material circumstances of the applicant. It is a broader concept, which requires consideration of matters necessary to guard against unforeseen contingencies. The determination is by reference to all of the facts of the particular case.

The question whether the deceased has made adequate provision for an applicant is a question of objective fact, the determination of which involves an evaluative judgment: Singer v Berghouse (1994) 181 CLR 201 at 210; [1994] HCA 40 at [24] (Mason CJ, Deane and McHugh JJ); White v Barron (1980) 144 CLR 431 at 434–435, 443; [1980] HCA 14 at [5] (Barwick CJ, albeit in dissent in the result), [8] (Mason J).

“Provision” is not defined by the Act, but it was noted in Diver v Neal [2009] NSWCA 54 at [34] (Basten JA, Allsop P and Ipp JA agreeing), that the term “covers the many forms of support and assistance which one individual can give to another. That support and assistance will vary over the course of the person’s lifetime”.

As is well known, s 60(1)(b) of the Act, relevantly, provides that the Court may have regard to the matters set out in sub-s (2) for the purpose of determining whether to make a family provision order and the nature of any such order. One of the matters that may be considered by the Court is “the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered”. As stated previously, the value of the deceased’s estate is quite large.

In Annason v Phillips (Supreme Court (NSW), Young J, 4 March 1988, unrep) at 20-21, Young J observed:

In relation to Joseph’s claim, it is necessary to refer to Stern v Sekers; Sekers v Sekers [2010] NSWSC 59, in which case, one of the applicants for provision was an adult daughter of the deceased who suffered from psychiatric illnesses, including schizophrenia. By her father's Will, she had been given a life estate in a particular property, which she had been occupying, rent-free, as at the date of her father's death. She was also gifted a weekly allowance. She was, otherwise, in receipt of a pension and had very modest means.

Ward J (as the President then was) noted that the community would expect the deceased would be concerned to make more than adequate provision for a disabled daughter after his death. Having a large estate at his disposal, and knowing the condition from which the applicant suffered, the expectation upon the deceased was to ensure that the applicant was left well provided for and not at risk (at present or in future) of having to fend for herself or at the mercy of the kindness and charity of her family. That included being conscious of the need to provide for her ongoing support in view of her illness and her vulnerability to exploitation.

The availability of a pension to an applicant ought not be regarded as a substitute for the obligation on the deceased, particularly where the value of the estate is large, to make adequate provision for him. Yet, it is not necessary to make an order that would operate primarily in relief of the taxpayer. In my view, it not being submitted to the contrary, the availability of the disability pension, and associated social benefits, is a circumstance to which the Court should have regard even bearing in mind the value of the deceased’s estate: Kensey (bht NSW Trustee and Guardian) v Thomas [2011] NSWSC 1434 at [76]-[81]; Lowe v Lowe [2014] NSWSC 371 at [156]-[157].

In relation to the claim by Dominic and Joseph, I should refer to what was written in Re Stojanovska; Stojevski v Stojevski [2020] VSC 702 at [57] (Englefield JR):

That statement echoed the view expressed by Brereton J in Vukic v Luca Grbin; Estate of Zvonko Grbin at [38]:

In Steinmetz v Shannon (2019) 99 NSWLR 687 at 712; [2019] NSWCA 114 at [112], his Honour wrote:

In their written closing submissions, counsel for Dominic and John submitted that in the event that they succeed in the Probate proceedings, or in the first part of the trust proceedings, each seeks the lump sum of $250,000, by way of provision. If unsuccessful in both of the Probate claim and the first part of the trust claim, counsel relied on Benz v Armstrong [2022] NSWSC 534 to support their primary submission that adequate and proper provision would comprise of the transfer of the Kemps Creek property in addition to a lump sum of $250,000 each, in lieu of their entitlements on intestacy. This provision would enable each to have a home, as was intended by their parents, and a lump sum for contingencies. Alternatively, if the primary submission was not accepted, it was submitted that proper provision is in the sum of between $2,000,000 and $2,500,000, which provision would enable each to purchase a property in the general area which has some land.

It was noted by counsel for Dominic and John that an extension of time was required for the family provision applications. Counsel submitted that since Probate has not yet been granted, that there was no prejudice to the estate or to the other parties if the time were extended. The reasons for the delay had been explained by Dominic and John and were primarily due to a lack of knowledge about a family provision claim, until advice was received from senior counsel.

With respect to Dominic, counsel drew attention to his limited assets and income from a disability support pension, which it was submitted did not give him “much extra to live on”, particularly in circumstances where Dominic suffers from an auto-immune disease and has ongoing health issues in relation to his spine. Additionally, counsel highlighted the contributions that Dominic had made to the estate of the deceased, and to the welfare of the deceased and Giuseppe.

With respect to John, counsel submitted that he has substantial need. His outgoings were only just less than his minimal income, which left no room for any emergencies or luxuries. In circumstances where he had limited assets, where his wife did not work, and where he is currently unable to work due to his osteoarthritis, which includes the likely requirement for a dual knee replacement in the next few years, during which he will be unable to work, a lump sum for exigencies of life was, in all the circumstances, proper.

In their closing submissions, counsel for Rose conceded that the delay in bringing the family provision claim was not excessive and that Rose could not point to any unacceptable prejudice on the part of the beneficiaries if the time were to be extended. She also accepted there had been no unconscionable conduct on the part of Dominic and John, in the sense of a deliberate holding off in bringing proceedings designed to lull the beneficiaries into a false sense of security, in this regard.

However, counsel went on to submit that there was not “sufficient cause” within the meaning of that term in s 58(2) of the Act, to permit Dominic and John to make their claims for a family provision order out of time. It was submitted that Dominic and John had failed to provide any explanation, justification, or excuse, for the application not having been made within time. The only explanation (expressed in, relevantly, identical terms) is his alleged ignorance of any entitlement to bring a family provision claim and the fact that there was a time bar.

In my view, as I am prepared to accept his evidence of the lack of knowledge, and perhaps, more importantly, his understanding thereof, of the time constraints, I would find sufficient cause for making the application.

In relation to the family provision being sought, counsel for Rose referred to the matters enumerated in s 60(2) of the Act. They submitted, with respect to Dominic’s claim, that he had not specified the costs he would require for an additional fund for “medical and other emergencies” or to make his life “a little bit easier” and had not given evidence of the reasons why these costs could not be met from his current savings. With respect to John’s claims, counsel highlighted that he had not identified any financial needs. Counsel noted that neither Dominic, nor John, had suggested that his respective household income is presently insufficient to meet their expenditure.

Counsel submitted that Dominic and John did not require sufficient provision from the estate to afford acreage in, or near, Sydney. Although it was acknowledged that there are no special rules of principles applicable to the claims of an adult child: Xiang bht Cao v Tong [2021] NSWSC 44 at [361], counsel drew attention to the comments made in Bowers v Bowers [2020] NSWSC 109 at [285], that the deceased:

It was submitted that the ample size of the estate does not justify the Court in being profligate in disposing the assets of the deceased: Lumb v McMillan [2007] NSWSC 386 at [26] (McLaughlin AsJ).

In this case, the family provision order was sought by Dominic and John some 14 months after the deceased’s death. By that time, the Probate proceedings, and the first part of the trust proceedings, and Joseph’s proceedings, had been commenced. As also stated, on the first day of the hearing, the Court granted Dominic and John leave to file a further Amended Statement of Claim seeking family provision orders in addition, rather than in the alternative, to the trust claim.

I have come to the view that it is unnecessary to make an order extending the time for making the application, as I consider, having found that the 2009 Will is valid, and otherwise that the Kemps Creek property should be held on trust for them, and accepting that the value of the Kemps Creek property is agreed, for the purposes of the hearing, to be $6.95 million, each of Dominic and John will receive, subject to any costs order made, property with a gross value of almost $3.475 million.

Even if I were wrong in reaching this conclusion, I would not, as a matter of discretion make additional provision for either Dominic or John. Bearing upon the exercise of the discretion are the findings involving the promise made, or assurance given, by Giuseppe and the deceased, and the response of Dominic and John. Whilst it does not constitute a release of rights to make a claim, it should not be forgotten that each agreed that if they were to receive the Kemps Creek property, they would not receive any other real property.

One cannot, and must not, forget the competing financial and moral claim of Joseph, and the competing moral claims of the other beneficiaries named in the Will of the deceased, including Rose.

In my view, because of the conclusion as to the validity of the 2009 Will, at the time when the Court is considering the application, adequate provision for the proper maintenance, or advancement in life of each of Dominic and John has been made by that Will. No additional provision ought to be made for either of them.

I have tested my conclusion on this topic by a consideration of the alternative submission made upon the basis that the Probate proceedings and the first part of the trust proceedings failed. Counsel for each of Dominic and John submitted that provision in the order of between $2.0 and $2.5 million for each of Dominic and John would be adequate and proper in all the circumstances. Even if it were necessary for the Kemps Creek property to bear part of the burden of costs, each would receive more than that amount by way of provision out of the estate of the deceased.

However, in case I am wrong on the issues that have earlier been decided in favour of Dominic and John, I turn to the questions for determination upon the basis of the 2009 Will not being valid with the consequence that there is an intestacy and that the part of the trust proceedings relating to an equitable estoppel also fails.

The test established by s 59 of the Act has regard not only to what is "adequate" by reference to the applicant's needs, but also to what is "proper" in all the circumstances of the case. Also, a wise and just parent would recognise a claim in a child who has lived on a property owned by his parents for over 30 years, to maintenance or advancement in life.

This is also a case where the general community, by which I mean the Court's perception of what fair and reasonable members of the community would expect of a wise and just will-maker, knowing all the circumstances, would expect the deceased to have made more provision than she did for each of Dominic and John.

On current estimates, each will receive one-sixth of the deceased’s estate, or an amount in the order of about $1.5 million (this is an estimate reached after costs have come out of the estate). This amount, in each case, would be insufficient to enable him to purchase alternative accommodation. Considering all of the matters that I am required to consider, I am satisfied that each of Dominic and John has established that adequate provision for his maintenance and advancement in life was not made under the operation of the rules of intestacy. However, that does not mean that each should receive what is sought, namely a lump sum of $2.5 million.

As each has established the jurisdictional threshold, the next question is what provision ought to be made for each out of the estate of the deceased. This is a more difficult question, in each case, and it involves "an instinctive synthesis that takes into account all the relevant factors and gives them due weight": Grey v Harrison [1997] 2 VR 359 at 367 (Callaway JA, with whom Tadgell and Charles JJA agreed). It is not a scientific, or arithmetic, exercise and it is often difficult to articulate the factors which contribute to that "instinctive synthesis". However, as earlier stated, similar considerations to those set out above often arise.

It is to be remembered that the deceased and Giuseppe, and after his death, the deceased, stated that each of Dominic and John should have accommodation for the remainder of his life and, indeed, had provided and continued to provide accommodation to him on the Kemps Creek property.

I have also considered the other matters referred to in s 60(2) of the Act which may be considered for the purpose of determining whether to make a family provision order and the nature of any such order. I have also remembered that, without more, there is no legal obligation on a parent to maintain an adult child, particularly one who was fully emancipated for so many years before the deceased’s death. However, here, each of Dominic and John had remained on the property owned by their parents, and then the deceased, for over 30 years prior to the deceased’s death. In this respect, each was dependent, for accommodation, on his parents and after the death of Giuseppe on the deceased.

Of course, one should not forget the competing claim of the other beneficiaries on intestacy. In this regard, I have not forgotten the contribution, particularly non-financial, of each of the other children of the deceased, to the deceased's estate and the legitimate claim of each, upon the deceased's bounty, in the event of an intestacy. However, making some provision for each of Dominic and John will not, unduly, affect the financial resources, and needs, of each of them. In this regard, none of the other beneficiaries, other than Joseph, has given evidence of those financial resources and needs. In view of the provision to be made for Joseph, it will not affect his position either.

In determining the nature and quantum of any family provision order, the Court must have regard to, amongst other things, the degree to which the deceased had a duty toward each of Dominic and John respectively. The estimated value of the estate is also relevant.

My evaluative judgment should be, and has been, "guided and assisted by considering what provision, in accordance with perceived prevailing community standards of what is right and appropriate, ought be made"; and is to be undertaken assuming full knowledge and appreciation of all the relevant circumstances of the case: Andrew v Andrew (2012) 81 NSWLR 656 at 661; [2021] NSWCA 308 at [16] (Allsop P).

In this case, I have come to the view that a lump sum sufficient to enable the purchase of alternative accommodation for each of them, in the form of acreage, on which he can live with his family, should be provided out of the estate of the deceased.

Even making that provision, each of the other beneficiaries, in any event, will receive substantial provision as an order will be made that the part of the estate out of which such provision is to be provided will be the proceeds of sale of the Kemps Creek property. The balance of the proceeds of sale would fall into residue and be divided between the remaining four beneficiaries.

Because there is some question about the value of the Kemps Creek property and therefore, the value of the estate, I am of the view that, if it were to be necessary, the order to be made for each of Dominic and John should be made in the alternative. In lieu of the provision made for each of them under the operation of the rules of intestacy, each should receive a lump sum that equates to one third of the net proceeds of sale of the Kemps Creek property, or $2.2 million, whichever is the greater amount.

How the burden of costs will be met cannot be determined. Thus, it is possible, that the payment of the costs of the proceedings, if any, that are ordered to be paid, will be ordered out of those proceeds of sale to which reference has been made.

In addition, by way of provision, each should be permitted to continue to remain in occupation of the Kemps Creek property, as they have done since the death of the deceased, until no later than 1 month after contracts for the sale of the Kemps Creek property have been exchanged. That will enable each to have a better idea of the quantum of the provision that he will receive. So long as each remains in occupation of the Kemps Creek property, respectively, no interest on the provision made for him should be paid. Thereafter, interest should be paid on any unpaid part of the lump sum, respectively, calculated at the rate prescribed by s 84A(3) of the Probate and Administration Act 1898 (NSW), from three days after the completion of the sale of the Kemps Creek property until the date of payment in full. In making an order like this, the administration of the estate will hopefully not be significantly otherwise delayed.

In making this order, the residue of the estate will comprise one-third of the net proceeds of sale of the Kemps Creek property and the other properties to which reference has been made. On the estimates provided, and omitting the costs of the proceedings, each of the remaining four residuary beneficiaries would receive no less than about $560,000 from the Kemps Creek property as well as one quarter of the balance of the net residue. Bearing in mind the value of the other properties, each should receive a substantial amount under the operation of the rules of intestacy.

In view of the conclusions to which I have come, it is next necessary to determine Joseph’s claim for a family provision order. That claim persists unless there is an intestacy and the trust proceedings by Dominic and John fail.

As stated, there was no dispute that Joseph, as a child of the deceased, is an eligible person and that his claim was brought within the time prescribed by s 58 of the Act. Nor was there a dispute as to the factual background to his claim, including his existing disabilities, and his financial circumstances and needs.

However, his claim must be determined, as is any other claim for a family provision order, and the Court, in determining his application will not disregard the interests of any other beneficiary of the deceased person's estate. Dominic and John, respectively, are the only other beneficiaries who have made a claim, and each has given evidence of his financial circumstances and needs. Each of Rose, Connie, and Tony has not given evidence of her, and his, circumstances. There is some evidence about the moral claim, respectively, on the bounty of the deceased, although none of them has brought a claim for a family provision order.

In the circumstances, now, the Court must consider whether, at the time the Court is considering the application, adequate provision for Joseph's proper maintenance, or advancement in life has not been made by the 2009 Will, or, for completeness, under the operation of the rules of intestacy in light of the success of the trust claim. If so satisfied, the next question will be whether to make a family provision order and the nature of any such order.

Important in the determination of Joseph’s claim is Mr Puleo’s evidence that the deceased was concerned about Joseph and that she wanted to make sure that he would have a house in which to live and that he was properly cared for.

In this case, Joseph submitted that the structure of the 2009 Will which will enable him to have the ongoing benefit of the No 6 Bossley Park property, but no access to any capital, other than the income that it generates, is clearly inadequate when assessed by reference to his present, and foreseeable future, needs. Relevantly, the provision made for Joseph in the 2009 Will does not provide him with the necessary funds to be able to secure privately funded aged care accommodation which he might need in the future.

It was submitted that the No 6 Bossley Park property ought to be sold (either by the independent administrator or by the NSWT&G as Joseph's financial manager), with the net proceeds being paid to, or held by, the NSWT&G, as the financial manager for Joseph. It was submitted, and I respectfully agree, that any rent that has been received should be added to the net proceeds of sale, and not spent on the outgoings of that property, after the death of the deceased. Accordingly, the reference to the net proceeds of sale will also include such rent. In the event that the net proceeds of sale are not in the order of $897,450, whichever is greater, that amount should be ordered to be paid by way of lump sum.

It was submitted that the NSWT&G would then hold the proceeds of sale for Joseph’s maintenance and advancement in life during his lifetime, including for the provision of accommodation, if that became necessary. Counsel advanced several options explaining how the net proceeds of sale should be held. One was to establish a special disability trust for Joseph's benefit; another was to establish a superannuation fund to which a non-concessional contribution may be made; a third was to permit the NSWT&G to hold the fund on trust for Joseph, as his financial manager. It was submitted that the best option would be determined by reference to the amount of the proceeds of sale, the requirement to have funds available on hand to meet Joseph's recurring needs and contingencies, cash flow considerations, Joseph's entitlement to Centrelink payments, and the impost of fees and expenses associated with each option.

It was also submitted that the Court was not being called upon to make any determination about the specific basis upon which any lump sum will be held (that to be, ultimately, decided upon by the NSWT&G following the determination of the proceedings). Consideration would be given to how a lump sum might be best managed in light of Joseph's needs and guided by his best interests.

In the event that there were found to be an intestacy, and Dominic and John succeeded in their claim based upon equitable estoppel, with the consequence that the Kemps Creek property is held on trust for them as tenants in common in equal shares, it was submitted that Joseph should receive, by way of provision, a fixed lump sum (payable to the NSWT&G as his financial manager), broadly equal to the net sale proceeds of the No 6 Bossley Park property, or otherwise calculated at $897,450 (being the average of the estimates of the value of the needs identified in the Pringle Report and in the Heydon Report).

I have carefully considered the submissions made on behalf of Joseph. I am satisfied that, at the time when the Court is considering his application, adequate provision for Joseph’s proper maintenance or advancement in life has not been made, under the 2009 Will. There will be no residue to which he is entitled and no capital available to meet his needs the subject of evidence.

In my view, having considered all the evidence, what amounts to adequate provision for his proper maintenance and advancement in life, depends upon whether Dominic and John receive the Kemps Creek property, as tenants in common in equal shares, and no other additional provision. If they do, then, Joseph should receive, by way of provision, in lieu of his entitlement under the Will, or on intestacy, the net proceeds of sale of the No 6 Bossley Park property, or $897,450, whichever is greater. If, however, Dominic and John do not receive the whole of the Kemps Creek property as tenants in common in equal shares, but each receive, in lieu of the provision to which each is entitled under the operation of the rules of intestacy, a lump sum by way of family provision order only, then Joseph should receive a one quarter share of the balance of the residue of the estate to which he will be entitled on intestacy, or $897,450, whichever is greater.

To the extent that any orders for costs impact upon what is set out above, the ultimate amount received may be reduced if, for example, the No 6 Bossley Park property is to bear any part of the burden of costs. The burden of costs cannot be determined at this time.

Even if some, or all, of the costs of the proceedings, are ordered to be paid out of the balance of the residue, Joseph’s share should be equal to, or more than what he receives under the Will of the deceased.

The precise method on which the proceeds of sale are held may be determined by the NSWT&G to meet Joseph's recurring needs and contingencies. Liberty to apply should be granted to the NSWT&G if that is necessary, although one would expect its determination to have been made by the time distribution is to be effected.

Because of the length of these reasons, I shall allow the parties the opportunity to consider them. During the period between the delivery of the reasons, consideration should also be given to them to see if the issue of costs can be resolved and to consider, if it cannot, how best to proceed with the determination of that issue in accordance with s 56 of the Civil Procedure Act.

During that period also, they should consider the form of orders, other than any orders for costs, so that upon the return date, the duration of any costs hearing and any other procedural issues or other disputes that then exist can be worked out.

Each of the proceedings will be adjourned to a date to be agreed by the parties, and convenient to the Court, when these reasons are published, solely for the purpose of determining how much additional time will be required and to enable the parties to agree upon the orders to be made (other than any orders for costs).