Brady v Mikan

This judgment resolves proceedings about the estate of the late Kata Grguric (the Estate). Without intending any disrespect, in these reasons I will refer to the parties and some others by their given names.

Kata died on 20 March 2019. Kata had no children and was not married when she died. Kata’s family members included:

Kata made at least eight wills between 1998 and 2014, including on:

As will become apparent in what follows, those wills demonstrate an overall pattern of Kata moving the focus of her testamentary bounty from the Ilijanics to both families and finally to John Mikan alone.

The Plaintiffs’ Further Amended Statement of Claim filed on 24 August 2020 sought:

By an Amended Cross Claim filed on 25 September 2020, John sought:

It was common ground between the parties that if the will of 18 August 2014 (the 2014 Will) is not admitted to probate, the Court should admit the will of 12 February 2013 (the 2013 Will). The 2014 Will leaves everything to John. The 2013 Will leave 60% of her estate to be divided between her 6 nephews and nieces (i.e. both the Ilijanic and Mikan sides of the family) with the balance to her brothers (5% to each of Juraj and Iva in Croatia and the residue to Josip).

The Plaintiffs impugn the 2014 Will on the basis of:

For the reasons set out below the 2014 Will should be admitted to probate. The Court’s reasons can be summarised as:

Mr G Smith of Counsel appeared for the Plaintiffs. Dr S Chapple of Counsel appeared for John.

I begin by setting out the Court’s chronological findings of fact. While there were many matters about which the parties disagreed, the essential facts were for the most part not in dispute, not least because much appeared from contemporaneous documents that could not be seriously disputed. To the extent that any other facts set out below were not agreed by the parties, I am satisfied that they could not be sensibly disputed.

I gratefully acknowledge that some of what follows reproduces the extensive history conveniently set out in Dr Chapple’s written submissions.

Kata was born in 1931 in Croatia. She had four siblings who lived to adulthood:

In 1970, Kata moved to Australia. After her arrival in Australia, Kata lived with Josip and his young family for around 10 years.

Kata was a hard worker and worked more than one job at a time. Among other things, she worked in a sewing factory in Willoughby, as a cook at Willowood Nursing Home, and at North Sydney Memorial Club.

In around 1980, Kata moved to live with Barka and Barka’s husband Vlado, shortly after their youngest child, Belinda, was born. Kata did not pay rent or board initially. Barka and Vlado worked full time, and Kata was responsible for caring for the children, preparing their meals, taking them to school, cleaning, gardening, and making dinner during the week. When she was not assisting in the Ilijanic household, she worked as a cleaner each weekday evening, and on Saturdays.

Kata did not spend much money on herself. Kata saved and liked to invest her savings in real estate. She avidly followed the real estate section of the local paper each week. During the time that Kata was living with the Ilijanics, she purchased and sold various properties with them, including:

Each of these properties was purchased in partnership between Vlado, Barka, and Kata and there were no restrictions on Kata’s ability to deal with those properties. Vlado’s evidence was that Kata was entitled absolutely to her share of the proceeds of sale of each property, and was free to use that money as she wished.

Kata purchased other properties as the sole owner, including at Tasman Road, St Georges Basin.

While Kata lived in the Ilijanic home, Vlado had a degree of oversight over Kata and her finances. Vlado managed each of the properties that Kata purchased and collected the rent. He kept the books of the partnership, and was responsible for filing the partnership return each year. He assisted Kata with the preparation of her tax returns, but insisted he was not qualified to give her tax advice. He would pay Kata’s bills from money she gave him.

In addition, Vlado was responsible for safeguarding Kata’s important documents, including her wills, her passport and Certificates of Title, which he kept in a secure metal box in a locked cellar. When Kata wished to access a document, she would generally ask Vlado to get it for her. Similarly when she wished to deposit a document, she would provide it to Vlado to store.

In the early-mid 1990s, Kata purchased three properties in partnership with the Plaintiffs (the Three Properties).

In 1991, Kata and Tony purchased Iliffe Street, Bexley (Kata and Tony’s Property) for approximately $161,000. Tony was then about 20 years old. Kata and Tony were registered proprietors as tenants in common in equal shares. Vlado and Tony shared the collection of rent from Kata and Tony’s Property. When Tony qualified as a Chartered Accountant, he took over the management of the property from Vlado. Tony’s evidence was that while he could not recall any specific conversations, there had always been a “family understanding” that Kata’s interest in any co-owned property would pass to the co-owner.

In 1995, Kata and Vesna purchased St Vincents Road, Bexley (Kata and Vesna’s Property) for $230,000. Vesna was then about 21 years old. Her evidence was that Kata had said “I will leave my share of the property to you when I pass”. Kata and Vesna were registered proprietors as tenants in common in equal shares. From 1995 to around 2008, Vlado collected all the rent from Kata and Vesna’s Property on behalf of Kata and Vesna. When Vlado was on holidays, Vesna collected the rent. Vesna (also a Chartered Accountant) prepared the partnership tax return each year, and provided the relevant figures to Vlado, who prepared Kata’s tax return. From 2009, an agent collected the rent.

Tony and Vesna’s evidence was that they paid their share of the purchase price for the properties they owned with Kata. Dara Ilijanic’s evidence was that from the time of purchase, Kata complained that she had contributed more than her share. Dara is Vlado’s sister-in-law and was the only member of the Ilijanic family to give evidence in John’s case (i.e. on the Mikan side of the dispute).

In 1995, Kata, Vlado, Barka and Belinda purchased the property at Gloucester Street, Bexley (Kata and Belinda’s Property) for $212,000. Belinda’s evidence was that Kata had said “I’ll leave my shares of the properties to each of you after I die”. Kata, Belinda, and Vlado and Barka were registered proprietors as tenants in common as to 50 per cent, 30 per cent and 20 per cent, respectively. At the time, Belinda was 15 years old. Belinda’s $60,000 portion of the purchase price was paid by her parents. Belinda later acquired her parents’ 20 per cent interest.

In May 1993, Kata also purchased a villa located at Eddystone Road, Bexley (the Villa). Kata was the sole registered proprietor of the Villa.

On 31 March 1998, Kata made a will with the assistance of Needs, Chan & Monahan and witnessed by Mr Cyril Chan (the 1998 Will). She appointed Josip, Barka and Vlado as her executors and trustees. The 1998 Will gave:

In 1999, Barka was diagnosed with cancer and stopped working. Kata began contributing $100 each fortnight to the household expenses.

Barka died on 9 February 2003. In or around August 2003, Vlado began a new relationship with Barka Knez. Ms Knez was a family friend who came from the same village in Croatia as Kata and Vlado. It seemed to Vlado and the Plaintiffs that Kata got along with Ms Knez. However, Kata’s attitude towards Vlado — at least as she presented it to the Mikans — appears to have deteriorated. The evidence of various family members to this effect (John, Katy Mikan (Josip’s widow), Dara Ilijanic) is consistent with the instructions that Kata provided to Mr Chan on 17 October 2003, when she met with him to make a new will.

Mr Chan’s file note of the meeting records:

Kata executed the new will on 22 October 2003 (the 2003 Will). She appointed Josip and Belinda as her executors and trustees. She devised the same properties to each of the Plaintiffs, but removed Vlado and Barka as residuary beneficiaries of the Estate. Her three brothers, Josip, Iva and Juraj, remained residuary beneficiaries.

Early in 2005, Kata moved out of the Ilijanic home and into her Villa. From that point onwards, she saw and spoke with Josip, Katy and John more frequently.

After Kata moved into the Villa, Vlado returned to Kata the documents that he had been storing for her, including a copy of her will (presumably this was the 1998 will), her passport and the Certificates of Title to her properties in her sole name. Vlado retained custody of the Certificates of Title relating to the properties that she owned with Vesna, Belinda and Tony.

A medical record dated 18 June 2008 from Kata’s GP at the time, Dr Verma, mentions Kata being “very forgetful … otherwise ok”. A record from 10 July 2009 states “Very dizzy, legs improving. Dementia … otherwise ok”. Subsequent entries on 15 and 17 July 2009 record that “Brain Scan shows age related changes … otherwise ok” and that Kata was “[w]orried about the Brain, explained to her … otherwise ok.” However, matters such as “dementia” and “brain” are not mentioned in notes for her visit in July and August 2009.

There is a suggestion in a file note of Mr Chan that Kata executed a new will on 17 November 2009, but no copy of that will has been found. Kata executed a further will on 24 November 2009 prepared by Needs, Chan & Monahan (the 2009 Will). The 2009 Will was in the same terms as the 2003 Will. Mr Chan’s file note records:

Vlado’s affidavit evidence was that Kata gave him a copy of the 2009 Will (although why she should do so was unclear) and that he was disappointed with her. In cross-examination he said he told Kata that he felt she had “cheated” his late wife (Tcpt, 16 August 2021, p 72(43)).

By 2009 or early 2010, Kata began speaking to the Mikans about her desire to sell the Three Properties.

A medical record for Kata from Dr Verma’s practice as at 11 March 2013 records under “past medical history” that an active condition of Kata’s in 2010 was: “Cognitive impairment – Likely Vascular”. For 2011 it records “osteoporosis”.

On 16 March 2010, Josip drove Kata to meet with a new solicitor, David Alexander, a partner in Goldrick Farrell Mullan. Kata and Mr Alexander met alone. Kata made a new will at the meeting which was witnessed by Mr Alexander (the 2010 Will). Kata appointed Josip alone as her executor, and divided the Estate:

Kata also executed a Power of Attorney appointing Josip as her attorney. Josip signed his acceptance on the same date.

In February 2011, Kata and Belinda attended the offices of John Orford, solicitor. Mr Orford was Vlado’s solicitor. Kata executed a Power of Attorney in favour of Belinda and appointing her as an Enduring Guardian. There was a suggestion that she may also have executed a will, but no copy of any such will was found. John’s evidence was that Kata complained to him that she had been “forced” to sign those documents.

In early April 2011, Kata met again with Mr Orford and gave instructions that she wished to revoke the appointments that she had previously made. Kata ultimately withdrew those instructions after a lengthy meeting on 12 April 2011. A letter from Mr Orford to Kata of that day confirms that Kata took with her that day the signed Power of Attorney and appointment of Enduring Guardian.

While Belinda and Vlado were on holidays overseas, Kata attempted to visit Mr Orford again on 29 April 2011. On her way there, she was involved in a car accident as a pedestrian. She suffered serious injuries, including a fractured tibia and fibula. These injuries led to long-lasting leg pain. Kata was in hospital (including for rehabilitation) until 18 July 2011. A report from St George Hospital printed on 3 August 2011 records “dementia” as part of her background history without further comment. It recommends she have “a period of rehab to get back to her usual self … mental health review in rehab for her temporary low mood”.

On 12 August 2011, Kata underwent a Calvary Rehabilitation and Geriatric Services (CRAGS) ACAT assessment. The CRAGS assessment records that Kata had been diagnosed with anxiety, short term memory problems, hearing loss, heart disease, high cholesterol and leg pain. No diagnosis of dementia is referred to and the possibility of a dementia care package has not been checked on the form. The options that were approved were for low level residential and respite care and for a community aged care package at home. Checked boxes in the cognitive behaviour section indicate that Kata “regularly” has short term memory problems, “never” has long term memory problems, and “occasionally” has disturbed sleep or insomnia and confusion. The assessment notes that Kata is “alert and responsive”.

On 31 August 2011, Kata underwent a rehabilitation review. The doctor wrote a letter to Dr Verma on 5 September 2011, which included:

Following her accident, Kata asked John to help her to negotiate with the Plaintiffs to sell the Three Properties. She told John she wanted her money in the bank.

John raised this issue with Belinda and Vesna after a carer’s meeting at Kata’s Villa on 29 September 2011. Belinda and Vesna were opposed to the sale of the Three Properties. Both Belinda and John’s evidence was that during the discussion, Kata nodded at John to continue. The conversation ended when John said: “If you don’t do what Teta Kata wants I will end up selling her half for her and you will be stuck with a strange owner after that.”

After that meeting, on the same day, Belinda called Needs, Chan & Monahan and made an appointment for Kata to attend the following day. The appointment was cancelled after Kata told Belinda she did not want to go because she felt unwell. These facts are corroborated by brief notes in the Needs, Chan & Monahan file

Belinda had a conversation with Kata the following day (30 September 2011). Belinda stated that it was not clear to her from that conversation whether or not Kata actually wished to sell the properties.

Shortly after that meeting, Belinda contacted Tony. He then had a telephone conversation with Kata about her intention to sell the Three Properties. Kata explained that she wanted to sell the Three Properties because she needed “cash for the nursing home”. Tony’s evidence is that he tried to explain to her that she did not need to sell the Three Properties.

On 1 October 2011, Tony sent an email to Belinda and Vesna, which enclosed a draft email to John. Tony’s email to his sisters read:

The draft email to John was never sent, on advice from Vesna and Belinda that it would only inflame the situation. The draft email included:

After his telephone conversation with Kata, Tony drafted a document (Tony’s Document). His evidence was that he did not discuss it specifically with Kata. Vesna’s evidence was she also did not discuss it with Kata. Tony’s affidavit evidence was he drafted the document “to try and understand and confirm what had been the family understanding all along, and my understanding of that and as to what should be done if the properties were going to be sold contrary to that agreement and understanding”.

The document was written in parallel columns in English and Croatian and provided (the text appears as translated with grammatical and other errors included):

The document also contained an execution clause for Kata to sign.

Belinda’s evidence was that she went through the document with Kata, but that (Tcpt, 16 August 2021, p 99(4–7):

Following that discussion, Belinda made an appointment for Kata to attend Needs, Chan & Monahan on 5 October 2011. Notwithstanding her evidence in the preceding paragraph, Belinda took Tony’s Document to that appointment.

An undated handwritten note was tendered by Dr Chapple during his cross-examination of Vlado. Vlado identified it as being in Kata’s handwriting. I include the English translation of it at this point in the narrative because it appears to deal with her wish to sell the Three Properties. It was written in Croatian with phonetic references to the Villa and the Three Properties:

On 5 October 2011, Belinda and Kata attended a meeting with Mr Chan and Paul Lee, another solicitor at Needs, Chan & Monahan who was preparing to take over Mr Chan’s clients.

Mr Lee recorded in a file note:

Following that meeting, either Mr Lee or Mr Chan prepared a draft will. On 14 October 2011, Mr Lee emailed to Belinda a letter to Kata enclosing the draft will. On 16 October 2011, Belinda responded:

Kata had a further meeting with Mr Chan and Mr Lee on 27 October 2011. Mr Lee’s file note indicates the meeting went from 12.10pm to 1.05pm and records:

Mr Lee’s evidence in cross-examination was that Belinda would have been present for the entire meeting, because she was required to interpret. Belinda’s evidence was that she drove Kata to the meeting, but that she had her young daughter with her that day and did not recall sitting in on a lengthy meeting.

The will Kata signed during the meeting on 27 October 2011 (the 2011 Will) was in similar terms to the 2009 Will. It appointed Josip and Belinda as executors, gave Kata’s share in the properties she owned with each of the Plaintiffs to the co-owner, and left the residue to Josip, Iva and Juraj. Unlike the 2009 Will, the 2011 Will provided that if the properties Kata owned with the Plaintiffs had been sold, the co-owner would receive a cash legacy equivalent to her share of the properties.

Kata did not execute Tony’s Document, which was in both English and Croatian. Mr Lee’s evidence was that he and Mr Chan did not ask Kata to sign the document because they had not explained it to her.

Kata was seen by a specialist in geriatric medicine on 31 October 2011, who wrote a letter to Dr Verma which included:

The Court was not taken to any evidence to show whether or not any of the “plans” were acted upon.

Kata had a further appointment to see Mr Chan and Mr Lee on 3 November 2011. On 1 November 2011, Vlado called the offices of Needs, Chan & Monahan and left a message that Kata would be unable to attend the appointment. He also stated that he had a question that he needed to ask. Mr Lee returned Vlado’s call. Mr Lee made a note of the call and agreed in cross-examination that the conversation was, in substance, that Vlado had a question about whether Kata had a Power of Attorney, how to find out if she had a Power of Attorney and, if she did, how that Power of Attorney could be cancelled or revoked. Following that call, Mr Lee arranged for the relevant searches to be performed.

On 15 December 2011, Kata attended the offices of Needs, Chan & Monahan without an appointment. Kata told Mr Chan that she wanted to talk to him about changing her will but Mr Chan was unavailable to meet with her. Mr Chan asked her to come back at 12.00pm the following day. Mr Chan’s handwritten file note records that Kata did not attend on 16 December 2011.

On 3 January 2012 Kata called Needs, Chan & Monahan and made an appointment with Mr Chan for 11 January 2012.

In December 2011 or early 2012, Kata and Tony’s Property was sold and Kata received half of the net proceeds of sale.

On 10 January 2012, the day before her appointment with Mr Chan, Kata met with Mr Alexander of Goldrick Farrell and Mullan again. There was no specific evidence as to whether Kata came by herself or whether a family member brought her. Kata said to him that “[a]nother lawyer did a will for me but it is not what I want”. She instructed him to prepare a will that was in the same form as the 2010 Will: appointing Josip as sole executor, giving 10 per cent of the Estate to each of the Plaintiffs, Iva and Juraj, and 50 per cent to Josip. Kata then executed that will (the 2012 Will) which was witnessed by Mr Alexander and his Croation speaking paralegal Ms Fran Music.

It is likely that Kata did not keep her appointment with Mr Chan on 11 January 2012. No file note of any such meeting was produced by Needs, Chan & Monahan.

On 27 February 2012, Belinda attended the offices of Needs, Chan & Monahan without Kata, to meet with Mr Lee. Belinda’s evidence was that she was concerned about Kata’s mental state and that she wanted to warn Mr Lee that if Kata came to see him again, a capacity test may be required. Mr Lee’s file note of the meeting records:

At some point following that meeting, Belinda and Vesna must have agreed to sell the properties they owned with Kata. Kata and Vesna’s Property was sold in March 2012 for $735,000. Kata and Vesna each received half of the net proceeds of sale. Kata and Belinda’s Property was sold in October 2012 for $685,000. Kata and Belinda each received half of the net proceeds of sale.

On 12 February 2013, Kata again met with Mr Alexander. Josip and Katy took Kata to the appointment, but Mr Alexander took instructions from Kata in their absence. Mr Alexander recorded in a file note:

In addition to his file note, Mr Alexander’s independent recollection was that Kata told him that she had sold the properties mentioned in her previous will and invested the money. She also said that Josip was helping her with whatever she needed, so she wanted to move into aged care closer to him and cancel Belinda’s power of attorney.

The will Kata executed on 12 February 2013 (the 2013 Will) appointed Josip as her executor with John in substitution and divided the Estate:

Around March 2013, Kata underwent a medical assessment for a personal injury claim relating to her accident in 2011. The letter written by the assessing physician to the insurer dated 12 March 2013 includes:

The letter records that the physician saw Kata in the presence of Josip, Katy and an interpreter. It sets out her history and states “the following history is as related to me by Ms Grguric unless otherwise stated”. It also states “Ms Grguric was cooperative with the examination. There was no embellishment of complaints”. While it may be assumed Kata recounted her medical history through the interpreter, the letter gives no suggestion that Kata was inhibited by any mental impairment, notwithstanding that the author lists “cognitive impairment – likely vascular” under her past medical history.

In about mid-2013, Kata was finding it difficult living by herself. On 10 September 2013, Kata moved to St Paul’s in Northbridge, a low care residential aged care facility. Belinda, John and other family members visited Kata regularly at St Paul’s.

Progress notes from St Paul’s record:

On 19 September 2013, John emailed Belinda to say: “I think Teta Kata is apparently trying to contact you to tell you that she doesn’t have enough clothes with her.” Belinda replied:

An ACAT assessment was completed on 1 October 2013, which identified Kata as “an alert and communicative lady”. It records that Kata had been diagnosed with leg pain, heart disease, high cholesterol, anxiety and hearing loss, but does not include short term memory loss or dementia on her list of diagnosed disorders. Checked boxes record that Kata “regularly” had short term memory problems and “occasionally” had disturbed sleep, depressive symptoms, confusion and disorientation about places and other people. The accompanying comments state:

The assessment also records that Kata requires “standby assistance” for personal care but that she attends to her personal hygiene herself. She requires encouragement “to reduce the potential for anxiety” and would benefit from mobilisation assistance when away from home. Kata was recommended for entry to low level residential respite care and low level residential permanent care.

On 4 October 2013, Belinda emailed John about Kata’s ACAT assessment. She included:

Subsequent progress notes from St Paul’s record:

An Aged Care Funding Instrument (ACFI) cognitive skills checklist from 15 November 2013 records Kata’s level of impairment as “mild”, defined as “may appear normal but on investigation has some problems in every day activities”. Her Catholic Healthcare assessment and care plan from November 2013 states that Kata requires supervision due to her “unsteady gait and history of falls”. It also notes that she may get confused when she is anxious and that she sometimes wanders.

Kata’s care plan dated 21 November 2013 includes:

The care plan also lists the intervention for misunderstanding conversations to be “ask her family to act as translators if Kata doesn’t understand”. It also states that Kata requires assistance with taking medication, mobility, and maintaining eating and drinking due to short term memory loss, anxiety and confusion. It states that Kata’s communication and comprehension is impaired by short term memory loss and English as a second language. It records that Kata experiences pain from her leg injury which she displays verbally and by becoming restless and agitated.

Entries from November 2013 to April 2014 record that Kata regularly refused assistance with showering and aspects of personal hygiene, but that she was checked regularly or supervised by staff to ensure all was well. Entries on 13 September 2013 and 22 November 2013 state that she refused a shower because she had already showered herself. An entry on 4 December 2013 notes that she was already dressed when the staff went to check on her.

Over the same period, Kata was often agitated about her leg pain and her level of English when trying to explain to staff what she wanted.

On several occasions, the records note that Kata was found walking around the corridors of St Paul’s, including in the early hours of the morning. She explained to staff that walking helped to relieve her leg pain. On one occasion she was found wandering in other residents’ rooms. She said that she had gone to meet friends.

On 4 March 2014, John notified Kata’s treating GP, Dr Lawrence Chan, that he was concerned Kata may have depression. Dr Chan’s handwritten notes record that Kata felt well, was energised, talkative, motivated and doing exercises twice daily by herself, and that she said that she was happy at St Paul’s. However, she reported a low mood due to her leg injury limiting her abilities. Dr Chan noted his impression: “Not major depression”.

Two incidents are recorded in progress notes in early March 2014:

A further Catholic Healthcare assessment for Kata was undertaken on 30 April 2014. The pain inventory records that Kata’s leg pain was interfering significantly with her general activity, mood, sleep, enjoyment of life and ability to concentrate.

Following her move to St Paul’s, Kata asked John to arrange for the sale of her villa in Bexley. John contacted a Croatian speaking solicitor, Robert Djundja, to assist with the sale. John provided Mr Djundja with a copy of Kata’s ACAT Assessment and Mr Djundja requested a certificate of capacity from Kata’s treating doctor.

In accordance with this request, John made an appointment for Kata with Dr Chan on 2 May 2014. The consultation went for almost an hour. Dr Chan recorded in his notes:

Following the consultation, Dr Chan provided a letter which read:

Mr Djundja subsequently met with Kata in early May 2014. He spoke with her alone, in a mixture of Croatian and English. Mr Djundja was satisfied from their conversation that Kata had capacity to give instructions, and he proceeded to take instructions from her for the sale of her Villa.

A progress note from St Paul’s records on 25 May 2014:

On 13 June 2014, Kata was taken to hospital due to bleeding from her ankle. She was discharged shortly thereafter.

In late June 2014, after Kata had signed the contract of sale but before contracts had been exchanged, Mr Djundja spoke with Kata on the telephone. Mr Djundja explained the basic terms of the sale and was satisfied that Kata understood and was willing to proceed.

Progress notes on 16 July 2014 record that Kata was agitated when St Paul’s staff were fixing her bed, but settled afterwards. She told the staff she had a headache.

On two occasions in late July 2014, staff saw Kata taking towels from the linen trolley.

On 2 August 2014, nursing staff at St Paul’s tried to take Kata to hospital as her ankle was bleeding again. Kata was unwilling to go. Progress notes record that Kata was conscious, alert and not in pain. Kata rang her family and John came to assist. Kata was eventually taken to hospital and returned later that day, with instructions to keep her leg elevated.

Progress notes on 3 August 2014 record that Kata was alert and oriented, but quite anxious and worried about her leg. The bleeding from her ankle had stopped but she was worried that it would happen again, and so requested breakfast in her room.

On 4 August 2014, the progress notes record:

Kata was taken to hospital. She returned to St Paul’s later that day. The hospital discharge note records:

On 18 August 2014, Kata met with Mr Alexander. Josip, Katy and John accompanied her. Mr Alexander had an initial discussion with the family in the reception area, and then spoke with Kata in his office, without Josip, Katy or John present. He asked his bilingual paralegal, Ms Fran Music, to sit in on the meeting to assist with any translation that might be required.

Mr Alexander’s file note of the meeting records:

I accept that Mr Alexander asked her to explain why she wanted to remove the other beneficiaries. His evidence was that (Tcpt, 17 August 2021, p 178(1–3)):

Kata did not tell Mr Alexander that the Plaintiffs had been part of her household for many years (Tcpt, 17 August 2021, p 180(17–20)):

Mr Alexander then prepared the draft documents and had a further meeting with Kata later that day. Again, only Mr Alexander and Ms Music were present. Mr Alexander read and explained the operative clauses to Kata, and she confirmed that was what she wanted. Ms Music then read parts of the document to Kata in Croatian. Kata confirmed to Ms Music in Croatian that she understood and was happy with it. Kata then executed the 2014 Will in the presence of Mr Alexander and Ms Music.

John and Katy’s evidence was that Kata did not tell them John would be the beneficiary under the 2014 Will. She told them they would “find out when I am dead” (Tcpt, 20 August 2021, p 333(47)–334(6)).

As at 18 August 2014, the Estate comprised cash (in bank accounts and invested), Kata’s accommodation bond at St Paul’s, and the funds Kata was waiting to receive upon settlement of the sale of the Villa.

After the meeting, Mr Alexander’s firm sent a letter to Belinda informing her that Kata had revoked the power of attorney in her favour. Belinda’s evidence was that she visited Kata shortly afterwards and showed her the revocation. Belinda explained to Kata that the revocation “means that you can no longer ask me to do anything for you that involves forms or banking.” Kata responded: “oh yeah, you’re busy with the kids and Josip and John have the time to help me now”.

The Catholic Healthcare social profile for Kata from September 2014 lists Kata’s arrival in Australia as “approx. 2003” and records only “Joseph Mikan” under Kata’s siblings. For “Family and/or friends likely to be involved with resident” it states “Not many. Some infrequently”. Some sections appear to have been left blank. There is no indication of who completed the form or the source of the information.

On 7 November 2014, Kata has a sudden onset of dizziness, unsteadiness and a headache, which rendered her unable to walk. She was taken to hospital, by which time her symptoms appear to have resolved and she reported feeling very well. Dr Chan referred Kata to a stroke specialist. The specialist wrote a letter dated 12 November 2014 which included:

On 5 June 2015 Kata was again taken to hospital with syncope. On 24 June 2015, an updated ACFI cognitive skills checklist records Kata’s level of impairment as “moderate”, in contrast to the same assessment in November 2013 which rated her level of impairment as “mild” (see [89] above).

In late June 2015, Kata had a major fall and hit her head. Kata spent approximately two months in hospital and was discharged to Willowood Nursing Home in high care. Discharge notes record:

Kata died on 20 March 2019 from a sudden onset of pneumonia.

At the time of Kata’s death, the value of the Estate was $2,198,389.77, comprising an accommodation bond and cash. Those funds have been invested and the present value of the Estate is approximately $2,248,908.19.

Key parts of the documentary evidence are summarised or reproduced in the preceding section. Voluminous medical records and related documents were in evidence and were also considered in Professor Peisah’s report, to which I return below. However, while those documents are potentially important evidence, they have limitations which the Court takes into account.

Aged care assessments and care plans: A number of aged care assessments and care plans for Kata were in evidence. The difficulty with this evidence is that it largely consisted of checked boxes, with limited or no further detail about why a particular option may have been selected.

For example, the Catholic Healthcare personal hygiene assessment dated 30 April 2014 is partially incomplete, and at times contradictory boxes have been checked. It indicates that Kata does not require supervision for showering, but also that staff cannot leave Kata during showering. A checked box also indicates that Kata does not suffer from disturbed sleep, although progress notes from the preceding months record instances where Kata was found awake and walking around during the night.

While the assessments and care plans are undoubtedly an indication of Kata’s condition at the date of completion, caution is needed in relying on such evidence in this case. This is particularly so where the qualifications of the person completing the documents are unknown.

St Paul’s progress notes: Staff notes about Kata’s progress and daily care over her time at St Paul’s were in evidence. The notes were handwritten and generally very brief.

There is again a need for caution in interpreting what is recorded in the progress notes. For example, several entries record that Kata verbally refused assistance with showering and personal hygiene. However, it appears from other entries and Kata’s care plan at that time that she undertook personal hygiene tasks herself, with supervision rather than assistance from staff. She obviously wanted to maintain some measure of independence to the extent she could.

Entries which record Kata to be “confused” are of limited assistance without further detail. For example, language barriers may have been a factor which caused Kata to appear confused at times. There are several entries which make reference to Kata becoming agitated about her level of English when interacting with staff. It appears from the way the progress notes are written that English may also have been a second language for some of the staff, which could further exacerbate Kata’s communication difficulties. Many of the notes do not contain sufficient detail to shed light on the extent to which her confusion was due to cognitive impairment, physical pain or language difficulties.

Medical records: As with the assessments and progress notes, the brevity of many of the medical records in evidence means they must be interpreted with caution. Medical records from Kata’s former GP, Dr Verma, include only very brief references to Kata’s cognitive condition. As I have noted above, a record from 2008 mentions Kata being “very forgetful”. A record from 10 July 2009 states “dementia”. Subsequent entries on 15 and 17 July 2009 record that “Brain Scan shows age related changes” and that Kata was “[w]orried about the Brain, explained to her.” A record from 2010 states: “Cognitive impairment – Likely Vascular”. None of these records describe the symptoms or observations of Kata on which the notes were based or give any insight into the nature or degree of any impairment.

Kata underwent Mini-Mental State Examinations (MMSEs) in September and October 2011, in which she scored 18/29 and 20/30 respectively. Records of Kata’s responses to the questions were not evidence.

The witnesses of fact in this case fall into three broad groups: the Ilijanics, the Mikans, and the independent legal and medical professionals who interacted with Kata between 2010 and 2014.

The evidence of the Ilijanics and the Mikans told two different stories of Kata’s life in Australia and her cognitive decline. Despite their conflicting testimony, the witnesses presented as forthright individuals who after their cross-examination I concluded were doing their best to describe honestly the events as they now recalled them. The conflicting testimony is not necessarily an indication of a witness’s unreliability in this case. For example, it may be a product of Kata telling different family members different things (as Belinda acknowledged in her email of 19 September 2013 set out in [84] above), perhaps what she thought her interlocutor wanted to hear.

The evidence of the Ilijanics (with the exception of Dara Ilijanic, Vlado’s sister-in-law) was that Kata was a valued member of their family, that she was happy living with them, and that she often complained about Josip and Katy Mikan and asked the Ilijanics not to tell the Mikans about the properties they owned with her. The Ilijanics’ evidence was that signs of Kata’s cognitive decline appeared as early as 2011, and had worsened considerably by 2013.

The evidence of the Mikans and Dara Ilijanic was that Kata was unhappy living with the Ilijanics, that she said she was treated like a servant, and that she said they pressured her in her property purchases and financial arrangements. Their evidence was that Kata’s cognitive decline began after her fall in mid-2015 and her move to Willowood.

The legal and medical professionals who interacted with Kata over 2013 and 2014 found her to be competent and engaged. After meeting with and speaking to Kata, each was satisfied that she had testamentary capacity at the time.

What follows is a summary of the pertinent aspects of these witness’ evidence.

Belinda’s evidence: Kata and Belinda were very close. Kata moved into the Ilijanic home shortly after Belinda’s birth, and they shared a bedroom when Belinda was young. After they each moved out of the Ilijanic home, they continued to see and speak to each other often. Belinda visited Kata regularly at St Paul’s and Kata called Belinda frequently.

From around October 2011, it appeared to Belinda that Kata’s anxiety was worsening. Kata kept cash hidden in her clothes, put reminders on sticky notes in her wardrobe, and made more and more phone calls to family members each day. The day after the family meeting at the Villa, Kata seemed to have forgotten what occurred.

To Belinda’s observation, from 2012 Kata was becoming “emotionally unstable”. She would regularly become distressed and angry, particularly about family members wanting her money. Around this time, Belinda went to see Mr Lee about Kata (see [75] above). Belinda explained:

Belinda’s evidence was that by June 2013, Kata was mismanaging her medication and becoming increasingly forgetful. Kata’s leg pain often made her confused and disoriented, and she struggled to sleep.

Vesna’s evidence: Vesna gave little evidence about Kata’s capacity, other than that she observed some cognitive decline from 2011, which continued after Kata’s move to St Paul’s in 2013. Vesna observed that Kata sometimes could not recognise her voice when she rang.

Vesna agreed in cross-examination that until 2015, the times when she observed Kata to be confused were also times when Kata was experiencing leg pain, although Vesna did not accept that the two were necessarily related (Tcpt, 16 August 2021, p 24(11–31)).

Vesna recalled that when Kata was living with the Ilijanics, Kata would often bring home free stationery from her employer and take serviettes when they went to restaurants (Tcpt, 16 August 2021, p 9(36-10(5)).

Tony’s evidence: Tony moved to Croatia in 1996 and has lived there ever since. His evidence was that after Kata’s move to St Paul’s in 2013, she often seemed confused on their telephone calls. She would call him “John” and ask after his mother Barka, who had died in 2003.

Vlado’s evidence: Vlado observed that Kata was becoming anxious and forgetful from 2010, and that her cognitive ability appeared to deteriorate significantly after her accident in 2011. His evidence was that after Kata’s move to St Paul’s, he was only able to have very simple conversations with her.

Dara Ilijanic’s evidence: She and Kata became friends after Kata moved to Australia. Dara was never a beneficiary under any of Kata’s wills. Dara’s evidence was that she did not observe problems with Kata’s memory or ability to express her wishes during 2014. However, it appeared that much of her evidence was derived from what other people had told her.

John’s evidence: Kata and John were very close. Kata lived with the Mikans for a decade, while John was growing up. Over at least 2011 to 2015, they saw each other regularly and Kata called him frequently.

John’s evidence was that Kata said some of the medication she took for her leg pain after her accident in 2011 made her feel dizzy and foggy.

John did not observe Kata to be forgetful, confused or unable to care for herself after her move to St Paul’s. He said in cross-examination (Tcpt, 17 August 2021, p 153(31–38)):

In November 2014, Kata began taking pain medication that she said made her feel dizzy again. However, John’s evidence was that until her fall in mid-2015, he observed Kata to be aware, capable of reasoning and expressing her wishes, and able to remember events accurately. They conversed as they always had. Kata spoke about what was happening at the nursing home, her friends, and stories about her childhood. The assistance Kata required was for mobility, not decision-making.

Paul Mikan’s evidence: Paul is John’s brother. He is married to Erin Mikan. He can generally understand Croatian but does not speak it fluently. Paul’s evidence was that until her fall in mid-2015, Kata appeared as she always had. She conversed easily in English and Croatian, seemed aware of her surroundings, and was clear and consistent in recalling people, places and events, both recent and past.

Erin Mikan’s evidence: Erin is John’s sister-in-law. She is married to Paul Mikan. Erin does not speak Croatian. Erin first met Kata in 1990. Erin saw Kata at family gatherings for Easter, Christmas, christenings and birthdays, and she visited Kata every few months during her time at St Paul’s. Like Paul, Erin’s evidence was that she did not observe any deterioration in Kata’s cognitive ability, short-term memory or behaviour until her fall in mid-2015. Kata seemed to be her “normal self” until then, although it was clear to Erin that Kata was in a lot of physical pain after her accident in 2011.

Katy Mikan’s evidence: Katy’s evidence was that for around two years after her accident in 2011, Kata was in a lot of pain and at times did not seem like her normal self. Kata complained that her medication made her feel foggy. At times she appeared to be anxious, angry and unsettled.

To Katy’s observation, Kata improved significantly after entering St Paul’s. She appeared to be more relaxed, in less pain and happier overall. She was able to converse freely about people and events. She had no difficulty remembering her surroundings, the time or the date before mid-215.

Mr Lee’s evidence: Mr Lee is a solicitor who was involved with a number of Kata’s wills up until 2011. Belinda was present during several of Kata’s meetings with Mr Lee, and Mr Lee also liaised with Belinda and, on one occasion, Vlado, about Kata’s affairs.

Mr Lee’s affidavit included:

The body of the file note to which Mr Lee refers is set out at [75] above. The header of the file note contains a table in which Mr Lee recorded both the matter and the attendance as “Belinda Brady”. The first line of the body of the file note states: “Meeting with Belinda Brady”. The second line of the file note states: “Kata seems unstable emotionally”.

Mr Lee accepted in cross-examination that he had no independent recollection of the meeting. He also accepted that on further reviewing the file note, it appears that Kata was not at the meeting. Mr Lee suggested that he may have confused this with one of the meetings with Kata in October 2011. However, he also accepted that his file notes of the October meetings made no mention of Kata being “emotionally unstable and weeping”.

Mr Lee did not appear to have any independent recollection of the events to which his evidence related. That is not a criticism. He almost exclusively answered questions by referring to his file notes. In some instances where he gave evidence which went beyond his notes, his evidence contradicted documents produced from Needs, Chan & Monahan’s file. For those reasons, I accept Mr Lee’s evidence only where it is reflected in contemporaneous documents or corroborated by others who were present.

I conclude that Mr Lee did not observe Kata to be emotionally unstable or weeping during any of his meetings with her. He ultimately accepted that Kata was not present during the meeting on 27 February 2021. I accept that during that meeting, Belinda told Mr Lee that she was concerned about Kata’s mental state as set out at [75] above, which Mr Lee recorded in his file note as “Kata seems emotionally unstable”.

Dr Chan’s evidence: Dr Chan had a limited recollection of his consultation with Kata on 2 May 2014. His contemporaneous consultation note is set out at [99] above. In summary, Dr Chan’s note records that he observed Kata to be clear and capable in expressing her wishes, that she did not have a “disorder of mind that would influence her decisions”, and that he saw no evidence of confusion.

Mr Djundja’s evidence: Mr Djundja is a solicitor. He acted for Kata in the sale of her Villa. Mr Djundja understands and can speak Croatian, although not fluently. He gave his evidence in a clear and forthright manner and I accept his testimony.

Mr Djundja’s usual practice when acting for clients in aged care is to request a medical report and to speak to the client directly to satisfy himself of their capacity. He did so in this case.

Having received Dr Chan’s medical report, Mr Djundja met with Kata in person in May 2014. John brought Kata to the meeting but Mr Djundja met with Kata alone. They spoke in a mix of Croatian and English. Mr Djundja was satisfied that Kata understood English and did not require an interpreter, although she was more comfortable in Croatian. Mr Djundja observed that Kata was easy to talk to, spoke without hesitation, responded to questions quickly, and appeared to be alert and engaged.

In late June 2014, Mr Djundja spoke to Kata on the phone and explained the terms of the contract for the sale of the Villa to her. He was satisfied that she understood and wanted to proceed. Nothing in his interactions with Kata caused Mr Djundja to be concerned about her capacity.

Mr Alexander’s evidence: Mr Alexander was the solicitor who prepared and witnessed the 2014 Will. He was an experienced solicitor, who prepared four wills for Kata between 2010 and 2014. He is now retired. Mr Alexander was an impressive witness whose evidence I have no hesitation in accepting.

Mr Alexander had a clear independent recollection of Kata, who stood out from his usual clients. He recalled that (Tcpt, 17 August 2021, p 174(10)–(15)):

Mr Alexander spent time speaking with Kata and understanding her circumstances over the course of their meetings. He recalled that (Tcpt, 17 August 2021, p 172(4)–(9)):

It was Mr Alexander’s usual and invariable practice to take instructions for a will from a client in Kata’s position alone, or with only another employee of his firm present. Before executing a will, he would explain its effect to the client and ask whether the client would like him to read the will to them. He followed his usual practice in this case.

Mr Alexander did not observe any cognitive decline over the four years he acted for Kata. He was clear that (Tcpt, 17 August 2021, p 174(27–36)):

It was Mr Alexander’s practice to obtain a medical report if he had concerns about a client’s testamentary capacity. He did not request a medical report for Kata because he did not have any concerns about her capacity, although his recollection was that Dr Chan’s report was provided during one of their meetings.

Ms Music’s evidence: Ms Music was a paralegal or legal secretary at Mr Alexander’s practice who spoke Croatian. She saw Kata on multiple occasions between 2010 and 2014 when Kata came to meet with Mr Alexander. As with Mr Alexander, Kata made an impression on Ms Music. They chatted about her life and her properties. Kata always appeared to Ms Music to be “switched on”, forthright, and certain about what she wanted.

Ms Music sat in on the meetings of 18 August 2014 about the 2014 Will, power of attorney and enduring guardianship appointing John. To Ms Music’s recollection, Kata did most of the talking. Kata explained that she had helped various family members over the years, and wanted to change her will because John was now the family member helping her. Kata said “the Ilijanics have had enough from me”. Ms Music interpreted the 2014 Will into Croatian for Kata and then said to her in Croatian “are you happy, is that what you want?” to which Kata replied “yes, it is, I am very happy thank you”.

Professor Carmelle Peisah was appointed by the Court to prepare a report as the parties’ agreed joint expert. Professor Peisah is a Conjoint Professor of Medicine and Clinical Associate Professor and an old age psychiatrist. Professor Peisah did not examine Kata during her lifetime. Her report was completed on the papers, using substantially the same material as was in evidence before the Court.

Professor Peisah was asked, in summary, to provide her opinion about Kata’s cognitive impairment and capacity at the time of the 2013 Will and the 2014 Will.

Professor Peisah reached these conclusions:

I will next set out more about each of these conclusions.

Conclusion 1: Professor Peisah’s report records (1021):

No list of Kata’s medications for February 2013 could be identified, but Professor Peisah noted that none of the medications Kata was taking in September 2013 would have affected her cognition.

Conclusion 2: In reaching the conclusion that Kata had testamentary capacity for the 2013 Will, Professor Peisah’s report identifies that she relied on:

Conclusion 3: Professor Peisah’s report records:

Conclusions 4 and 5: Professor Peisah’s reasoning in reaching conclusions 4 and 5 rested on a common presumption. Professor Peisah’s opinion was that by August 2014, Kata’s cognitive impairment was such that it should be presumed that she lacked each of the necessary elements of testamentary capacity unless evidence to the contrary could be identified.

Professor Peisah considered that Kata’s discussions with Mr Alexander established that she understood the significance of making a will and was aware of those who could have a claim on her Estate, because Kata made reference to her various family members.

Professor Peisah opined that Kata did not understand the nature and extent of her Estate because the evidence of her discussions with Mr Alexander contained no specific reference by Kata to having sold her Villa, and Kata’s comments that she had sold the properties she owned with the Plaintiffs were “in the context of her severe fixed animosity towards the Ilijanics, rather than in the context of discussions around the nature and extent of her estate for considered disposition”. Professor Peisah also expressed an opinion in cross-examination that the Estate was “quite a complex estate” at the time (Tcpt, 19 August 2021, p 245(50)). I interpose, with respect, that by the time of the 2014 Will, her estate was not complex at all, being essentially cash (either in possession or to be received from the sale of the Villa) and an accommodation bond.

Professor Peisah’s opinion was that Kata was unable to evaluate and discriminate between the strength of claims on her Estate because:

Conclusion 6: Professor Peisah identified these risk factors for undue influence as present for the 2014 Will:

Conclusion 7: Professor Peisah’s conclusion that there was no evidence of Kata’s knowledge and approval of the 2014 Will rested on the following:

Cross-examination of Professor Peisah: Professor Peisah gave this evidence in cross-examination:

There was no dispute about the applicable legal principles.

In Banks v Goodfellow (1870) LR 5 QB 549 (“Banks v Goodfellow”), Cockburn CJ set out the classic statement of the law of testamentary capacity. His Lordship stated at 565:

The statement in Banks v Goodfellow should not be adhered to as though it were a legislative text: Mekhail v Hana [2019] NSWCA 197 at [164]. It can also be expressed as a requirement that a testator be capable of remembering, reflecting and reasoning: King v Hudson [2009] NSWSC 1013 at [51]; Romascu v Manolache [2011] NSWSC 1362 at [197].

Nevertheless, the question of testamentary capacity is generally approached by reference to four elements:

Age and illness are not of themselves sufficient to conclude that a testator lacked testamentary capacity: Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 707. As Kirby P (as his Honour then was) stated in Estate of Griffith; Easter v Griffith (1995) 217 ALR 284 at 295:

Finally, it is not the task of the Court to inquire as to the righteousness of a testator’s reasons. In Boughton v Knight (1873) LR 3 P&D 64 at 66, Hannen J stated that the requirement that the deceased be of “sound mind”:

Where a will was properly executed and witnessed, as the 2014 Will was, there is a presumption that the deceased knew and approved of the contents of the Will. However, the circumstances surrounding the giving of instructions for a will and its subsequent execution may excite suspicion that the provisions of the will may not have been fully known to, and approved by, the testator. Where such circumstances exist, the person seeking to propound the will has the burden of removing the suspicion.

Lindley LJ observed in Tyrrell v Painton [1894] P 151 at 157 that the principle:

When considering whether circumstances that excite suspicion exist, the Court looks at a number of factors including (see Romascu v Manolache at [205]; Estate of Voros; Cooney v Cherry [2016] NSWSC 1603 at [135]):

In setting out these principles, I have also borne in mind this observation of Lindsay J in Estate Rofe [2021] NSWSC 257 at [121]:

The principles relevant to undue influence in probate were summarised by Hallen AsJ (as his Honour then was) in Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275 at [263]–[277]. Undue influence in probate is to be distinguished from the equitable doctrine of undue influence. It requires actual coercion, not simply the influence of affection and attachment, or the desire to gratify the wishes of another. The coercion must overpower the volition of the deceased. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Importantly, an allegation of undue influence is a serious one and must be established in accordance with the principles set out in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 and s 140 of the Evidence Act 1995 (NSW).

Long-standing statements of legal principle declare that the equitable doctrine of undue influence does not apply to testamentary gifts: Craig v Lamoureux [1920] AC 349 at 357; Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116 at 121–2; Trustee for the Salvation Army (NSW) Property Trust v Becker (2007) 14 BPR 26867; [2007] NSWCA 136 at [62].

However, in Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66, Gaudron, Gummow and Kirby JJ at [62]–[63] left open the possibility that principles of equitable undue influence may be held to apply in probate cases. These remarks have been considered by Lindsay J in Boyce v Bunce [2015] NSWSC 1924 and Hallen J in Blendell v Byrne [2019] NSWSC 583 at [491]–[498].

The legal principles on proprietary estoppel are well settled: see, for example, Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 404; [1988] HCA 7 (per Mason CJ and Wilson J). In Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84, Handley JA (with whom Allsop P and Giles JA agreed) stated at [21]:

Testamentary capacity: The Plaintiffs submitted that the Court should find that at the time of the 2014 Will, Kata was incapable of identifying, evaluating and discriminating between claims on her Estate, and of understanding the nature and extent of the Estate. The Plaintiffs adopted the reasoning in Professor Peisah’s report and further submitted:

Knowledge and approval: The doctrine of suspicious circumstances applies because John and his parents arranged and brought Kata to the appointment with Mr Alexander, and were present at least during preliminary discussions in which it appears from Mr Alexander’s file note that Kata first said she wanted to make John the sole beneficiary. The doctrine also arises because the 2014 Will departed from Kata’s prior will-making pattern.

John must therefore prove that Kata knew and approved the contents of the 2014 Will. The evidence does not establish this.

Undue influence: Kata was dependent on John, Josip and Katy, who exercised control over her and pressured her “to the point where the influence was such that the execution of the purported Will was not of her own volition and not the result of the deceased’s own free judgment discretion or wishes”.

Proprietary estoppel: The Plaintiffs’ case was that Kata represented to them that if they each purchased a property with her, her half share of the property or the net proceeds of sale would be left to them. Because of their reliance on Kata’s representation, the Plaintiffs acted to their detriment by:

Testamentary capacity: It was submitted for John that Kata had capacity to make the 2014 Will.

In John’s submission, Professor Peisah’s opinion about the severity Kata’s dementia should be treated with caution because:

The most important evidence is that of the four independent witnesses who observed Kata around the time of the 2014 Will: Dr Chan, Mr Djundja, Mr Alexander and Ms Music.

Kata understood the nature and significance of making a will, demonstrated by evidence of Mr Alexander’s invariable practice, her conversations with Mr Alexander and Ms Music about the 2014 Will, and Dr Chan’s observation in May 2014 that Kata “…understands the role of will, what she wants to happen to her property and who she can give her property to”.

Kata understood the nature and value of the Estate:

Kata could recall and weigh competing claims on her Estate:

Kata was not suffering any delusion that influenced the disposition of her property. To the extent Kata made the 2014 Will based on mistaken beliefs, those beliefs were capable of rational explanation.

Knowledge and approval: Any suspicion is dispelled by:

Undue influence: There is no evidence of actual coercion by John. To the extent that John exercised any influence, the way Mr Alexander took instructions from Kata would satisfy the Court that the 2014 Will was a product of Kata’s free will for the purposes of either probate or equitable undue influence.

Proprietary estoppel: Even if the Court was to accept that Kata made the pleaded representation, the estoppel claim should be dismissed because:

The Court is actually satisfied on the balance of probabilities that Kata had testamentary capacity when she made the 2014 Will and that will is her last will as a free and capable testator. In explaining how that conclusion has been reached, it is convenient to begin by setting out how I have approached the evidence generally.

I have given little weight to the evidence of the parties and other members of the Ilijanic and Mikan families. Consistently with what I have said in [135] above, that is not because of the view that any of them were seeking to mislead the Court deliberately.

However, the evidence of the various Ilijanics and Mikans was often generalised and necessarily subjective. They were seeking to recall events that took place no earlier than 9 years ago, and in some cases much longer, and to draw conclusions from those recollections about Kata’s capacity. With no disrespect, I am certain that those recollections and conclusions are subject to a degree of fallibility which has increased “with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by a perception of self interest”: Watson v Foxman (2000) 49 NSWLR 315 at 319 per McClelland CJ in Eq. In this case, both self-interest and family allegiance are integral factors to the litigation.

I am therefore satisfied that the evidence of independent contemporaneous witnesses and their contemporaneous documents are a surer basis upon which the Court can rely for its findings. It is their evidence that the Court accepts and I shall return to these further below.

It is then necessary to consider Professor Peisah’s evidence. Having regard to the factors in Banks v Goodfellow, her essential conclusions about the 2014 Will adverse to John’s case were both narrow and nuanced, quoting from the executive summary of her report:

It will be noted there are two findings. Before turning to Professor Peisah’s report generally, it is convenient to deal with the second finding. In my respectful view, it is not a finding which assists the Court in determining whether or not Kata had capacity with respect to being aware in general terms of the nature and extent of her estate. It is a rolled up finding that Professor Peisah could not find evidence to establish a negative. Insofar as the Plaintiffs sought to rely on Professor Peisah’s second conclusion in support of a finding that Kata did not have awareness in general terms of the nature and extent of her estate, I do not accept that it is logically open to the Court to do so. The absence of evidence of a negative is not, in my respectful view, a proper basis to make a finding of a positive. To put it another way, an absence of evidence of [not X] does not prove [X] to have been the case.

Professor Peisah was undoubtedly a highly qualified and impressive witness. To her credit, she readily accepted the methodological challenges and consequent difficulties of a completely retrospective analysis of the kind she had been instructed to undertake which did not have the benefit of actually seeing Kata.

Nevertheless, those difficulties are real. For example, in [184] above, I have recorded two of Professor Peisah’s conclusions. The first suggests that Kata had “probable seizures”. However, the doctors who saw Kata immediately after her syncopal episodes did not record them as being seizures and therefore I infer did not diagnose them as such. Why Professor Peisah has characterised them as “probable seizures” is not clear from her report.

The second conclusion was that by August 2014 Kata had difficulties in language “(i.e. comprehension, over and above that attributed to her non-English speaking background)”. Again, and with respect to Professor Peisah, I have difficulty understanding how that conclusion is available solely on a review of documents which nowhere, for example, actually set out what Kata was heard to say.

Taking into account the concessions made by Professor Peisah set out in [191] above and the concerns about many of the documents upon which Professor Peisah relied that I have recorded in [125] – [133] above, I accept Dr Chapple’s submissions set out in [212] and [216(3) and (4)] above as to why Professor Peisah’s conclusions should not be preferred to the direct evidence and inferences available from the contemporaneous independent witnesses and their notes made at and around the time the 2014 Will was executed.

In particular, I respectfully record my real reservations about Professor Peisah’s preferred methodology of looking for patterns and symptoms of dementia without considering the totality of the medical and observational evidence, including the times when those symptoms were not recorded as being present. In the many pages of medical and other records about Kata that were in evidence, reports going to her mental state are not as frequent as might be thought to have been the case if her level of impairment was as significant as the Plaintiffs’ case suggested.

Mr Alexander was an experienced solicitor. He had practised in South Africa from 1972 to 1984 and then in Australia from 1984 until his retirement in 2019. He had met Kata over a period of years. As sometimes happens with clients, she had made an impression on him that caused him to have an actual recollection of his encounters with her. Based on his file note, but fortified by his other evidence, and that of Ms Music, as to what occurred on 18 August 2014, the Court finds that Kata had testamentary capacity in the Banks v Goodfellow sense, including that she was capable of identifying, evaluating and discriminating between the respective strengths of the claims of those persons who might have a claim upon her testamentary bounty.

Mr Alexander’s file note itself demonstrates that he prompted her to explain why she was leaving everything to John. He records “I said I thought it was normal for this to be her brother and failing her brother to the son.” It was therefore necessary for her to explain why her estate was being left to John rather than Josip. Furthermore, the file note discloses that there was discussion about the position of all the nephews and nieces. She was also clearly able to give a general description of having owned properties with her nephews and nieces.

The file note, and Mr Alexander’s and Ms Music’s other evidence about what occurred on 18 August 2014 also satisfies the Court on the balance of probabilities that Kata had an awareness in general terms of the nature and extent of her estate, given that her estate was very simple. It had been converted into cash and invested or applied to her accommodation bond. The Court finds that, whatever level of dementia Kata may have been suffering from on 18 August 2014, it was not so severe that she could not comprehend what was in her estate.

While Mr Alexander’s file note is a sufficient basis for the Court to have reached the conclusions which it has, in addition to Mr Alexander’s and Ms Music’s evidence the Court is further fortified in its conclusions by Mr Djundja’s and Dr Chan’s evidence of what had occurred in May and June 2014.

Mr Djundja was a straightforward witness of Croatian background who was experienced in dealing with culturally and linguistically diverse clients and could communicate with Kata in English and in basic conversational Croatian. He was obviously alive to the need to be satisfied of Kata’s capacity.

The Plaintiffs criticised Dr Chan’s evidence because, at the relevant time, he had been in general practice for less than two years and had no previous experience assessing testamentary capacity. However, Dr Chan presented in the witness box as an intelligent and careful physician. That was also apparent from his file note, and the fact that the consultation with Kata went for almost an hour, which the Court therefore finds was a thorough assessment of Kata.

Dr Chan’s and Mr Djundja’s assessments are sufficiently close in time to August 2014 for the Court to rely on them in reaching its conclusions about Kata’s testamentary capacity on 18 August 2014. In doing so, I have not overlooked either the incident recorded on 25 May 2014 (see [102] above) or Kata’s “episode” on 4 August 2014 (see [109] and [110] above). There is nothing in the various records to suggest that there was any particular continuing negative impact upon Kata or diminution in her capacity attributable to either of those events.

The Court accepts that John taking Kata to Mr Alexander in August 2014 and his becoming the sole beneficiary of her estate constitutes suspicious circumstances which cast an onus on John to demonstrate that Kata knew and approved of the contents of the 2014 Will. The Court finds that John has discharged that onus for the reasons advanced by Dr Chapple set out in [218] above. The evidence of Mr Alexander and Ms Music which has informed the Court’s conclusion in relation to testamentary capacity is also the basis of the Court’s conclusion that Kata knew and approved the contents of the 2014 Will.

The Court accepts Dr Chapple’s submission that there is no evidence of actual coercion by John. Furthermore, if there had been any coercion by John, the Court is satisfied that it would have become known as a result of the questions that Mr Alexander asked Kata on 18 August 2014 in the presence of Ms Music and no one else. Those questions also included both Mr Alexander and Ms Music asking in English and Croatian at the time of execution of the 2014 Will whether it reflected Kata’s intentions and their acceptance of her positive answer informed by their own assessments of Kata formed over time.

There is one other reason why I have concluded that there was no undue influence either in the probate sense (which in my respectful opinion is the only applicable sense in this case) or, if that be wrong, the broader equitable sense. That reason is that on two earlier occasions she had acted to revoke documents which she said she had signed contrary to her wishes (see [36] and [73] above). Given that pattern of behaviour, and notwithstanding that there may have been some decline in her cognitive abilities, those earlier incidents, the evidence of Mr Djundja, Dr Chan, Mr Music and Mr Alexander for the period covering May to August 2014 persuades me that if undue influence had been exercised in relation to the 2014 Will, it is likely that Kata would have sought assistance to undo it if it did not reflect her true testamentary intentions.

The Court accepts Dr Chapple’s submissions set out in [220] above as to why the Plaintiffs’ proprietary estoppel claim must fail. This must be the case, even if the representations they allege were made, because as Vlado and each of the Plaintiffs acknowledged in cross examination, they understood that Kata was free to change her will and realise her interest in the Three Properties.

However, I am not persuaded that representations of the kind alleged by the Plaintiffs were ever made or that there was ever any specific reliance on any such representations. The Plaintiffs’ case in estoppel is, in my respectful view, artificial and unrealistic. The Plaintiffs were all students at the times the Three Properties were bought (and in Belinda’s case, a minor for whom her share in her property was purchased). The notion of them relying on representations to enter into the transactions or foregoing other opportunities is unpersuasive and not supported by their evidence. Neither reliance nor detriment has been demonstrated. On the contrary, they each did well out of their investments in the Three Properties.

To the extent it is necessary, the Court finds that what the evidence does demonstrate is that the Three Properties were held, to use Tony’s words, as a “family arrangement”. The purchase of the Three Properties was something undertaken for the benefit of the participants by a contribution of family members’ resources. The Three Properties were not homes in which family members resided but were the source of income and long term capital benefit. That was realised by the sale of each of the Three Properties and the distribution of the proceeds to each relevant family member. The Three Properties were ultimately sold without assertion of ongoing rights in relation to the proceeds. That is consistent with them being held “under a family arrangement” and nothing more.

What that “family arrangement” did not contemplate was what was to occur if Kata wanted to have access to her interest in the Three Properties during her lifetime. It is unsurprising that was something the parties would not have contemplated at the time. It was not in prospect, given that Kata was in employment and living with the Ilijanics.

It seems to me that Tony’s evidence casts useful light on this. In the draft email to John that Tony sent to his sisters on 1 October 2011 (see [53] above) he wrote that “A mutual agreement at the time of purchase and which is still enforce [sic] is that in the case of any unforeseen event related to Teta Kata, her share of the property or proceeds from the sale of property would revert to me” (emphasis added). It is entirely probable that there had been discussion at the time the properties were purchased about what would occur in the event of Kata’s unexpected death.

However, that there was no representation about, or consideration of, what would happen if she needed to realise her investment is also consistent with Tony’s description of his document (see [55] above) as being in part directed to “what should be done if the properties were going to be sold contrary to that agreement and understanding”. Tony’s Document, which was so onerous on Kata, was an attempt to set out the terms on which the Plaintiffs would agree to Kata having access to the proceeds of her investments because that topic had not been the subject of any prior representation or agreement. Its very onerousness in relation to Kata and its complexity demonstrate the unlikelihood that Kata, not “an educated woman, but she was far from stupid” (to use Mr Alexander’s words set out in [171] above), would ever have made representations that could reasonably have been taken to give rise to the consequences which Tony sought to impose in his document.

The Plaintiffs’ further amended statement of claim will be dismissed. There will be a grant in solemn form of the August 2014 Will to John. The parties will be given an opportunity to bring in short minutes to give effect to these reasons and to agree, if they can, how costs should be awarded.