Dedakis v Deligiannis; The estate of Rebecca Deligiannis (also known as Rebeka Deligiannis)

1. [1]

   LEEMING JA: Two proceedings were heard by me, both arising from the death of Ms Rebeka Deligiannis on 22 January 2022 aged 85. The parties to each are two of her three children, Ms Marika Dedakis and Mr Jim Deligiannis. For convenience and without disrespect or unwarranted familiarity I shall refer to the various family members by their given names in the form used at the trial, noting that Rebeka is variously spelt, and was also known as Aunt Rena, Jim was also known as Dmitri, and Marika was often known as Maria and is so named in the will, but “Marika” conveniently distinguishes her from her cousin Maria and her sister-in-law Mary, each of whom gave evidence in Jim’s case. The only substantial asset in the deceased estate is a home in Australia St, Camperdown which is valued at some $2.9 million. Aside from the costs of this litigation, the liabilities are few, such that the net value of the estate is approximately $2.74 million.

Procedural background

1. [2]

   By summons in the Succession & Probate List (Probate) dated 6 May 2022, Jim seeks a grant of probate in common form in respect of a will executed by the deceased on 20 August 2013 appointing him as sole executor which leaves the estate 75% to him and 25% to Marika. Marika responded by two general caveats, the first filed on 17 May 2022, and the second on 17 November 2022 (upon the lapsing of the first: Supreme Court Rules 1970 (NSW), Pt 78 r 69).

2. [3]

   By summons in the Succession & Probate List (Family Provision) filed on 16 November 2022, Marika opposes the will being admitted to probate, on the bases of capacity, knowledge and approval, and undue influence. She seeks a declaration that her mother died intestate. Marika also makes a claim for a family provision order under the Succession Act 2006 (NSW). Her application was made within the 12 months specified by s 58(2), and it is accepted that she is an “eligible person”.

3. [4]

   By cross-claim filed in the proceeding commenced by Marika, Jim seeks a grant of probate in solemn form, as well as a claim for mesne profits for the period during which Marika remained in possession of the home after her mother’s death. The cross-claim also seeks possession of the home, but that relief is no longer needed (although the claim is relevant to an issue concerning the availability of mesne profits). Jim obtained a representation order pursuant to r 7.10 of the Uniform Civil Procedure Rules 2005 (NSW) on 27 October 2023 for the purposes of the family provision claim and the cross-claim, and an order for administration pendente lite of the estate for the purposes, inter alia, of preparing the house for sale and selling it. Marika vacated possession on 20 February 2024. The property has not been sold, although it seems inevitable that that will occur on any view of the outcome of the litigation, and Jim’s evidence is that he intends to do so.

4. [5]

   Nothing turns on there being two proceedings. That has been brought about because the parties are, sensibly, having two quite different aspects of their dispute resolved at the same time. One is a question of probate: whether there should be a grant of probate of the 2013 will. The other is whether a family provision order should be made in favour of Marika. The two are inter-related. When opening the case, Mr Alexis SC, who appeared with Mr Speirs for Marika, confirmed that he only pressed the claim for an order for family provision if Marika’s challenge to the grant of probate failed (T12.32). When closing the case, Mr Birtles who appeared for Jim confirmed that he did not press his claim for mesne profits if Jim succeeded in obtaining a grant of probate (T214.33).

5. [6]

   It was open to Jim to have filed in the probate proceeding a summons for the caveat to cease to be in force, in which case the pleadings which would have ensued would, as a matter of administrative practice, have been filed in the same proceeding: see Re Estate Capelin, Deceased (2022) 107 NSWLR 461; [2022] NSWSC 236 at [17]. Had that course been taken there probably would have been a single proceeding. But that did not occur, and Marika filed a separate summons (as, so far as I can see, she was entitled to do). I mention this only to indicate why there are two proceedings. So far as I can see, nothing substantive turns on it save that this Court’s orders will have to dispose of two originating processes. Both proceedings were heard together, with evidence in each being evidence in the other.

6. [7]

   I saw and heard each of Marika, Jim, their brother Spiro, his wife Mary, their cousin Maria and the family solicitor Mr Nicholas Coombes being cross-examined on affidavits they had sworn. Mr Coombes had prepared the will as well as witnessing its execution. I also heard evidence in chief and cross-examination of Mr Fotis Kakaroubas, who attended in response to a subpoena ad testificandum. He had come to know the deceased as a friend of his mother, and in 2013 he had prepared a document in English at Rebeka’s request explaining the rationale for her will, which document was located with the will in Mr Coombes’ office. No other documents from any file were available. The other witnesses were not required for cross-examination.

Issues

1. [8]

   The principal legal issues are readily stated. They are: (a) whether Jim has established that the deceased (i) had capacity in 2013 and (ii) knew and approved the will, (b) whether Marika has established undue influence, and (c) if probate is granted, (i) whether adequate provision for the proper maintenance, education or advancement in life of Marika has not been made by the will and (ii), if not, whether an order should be made and in what amount.

2. [9]

   The principal factual issues will not be obvious from the above, but it is convenient to state them now: (a) whether there was a pre-existing will and its effect and whether that was known to Jim, (b) how the 2013 will came to be drafted and executed, (c) whether the justification contained in the will for the less generous provision to Marika is correct – this turns on the circumstances by which Spiro came to own property at Belmore and Marika came to own property at Wiley Park, and (d) whether there were reasons for the limited provision made to Marika other than those stated in the will.

3. [10]

   The parties joined issue as to whether there were “suspicious circumstances”. I find that suspicious circumstances attended the making of the 2013 will. That is a result of the collocation of circumstances that (a) an elderly woman made a will so as to leave unequal portions amongst her children, (b) prior to its being made, the son and daughter shared equally in the mother’s deceased estate, (c) the new will was made when the daughter was out of the country, (d) the new will was executed in the presence of the son who became the primary beneficiary, (e) the son who became the primary beneficiary took the testatrix to the solicitors in order for the will to be made, and (f) the solicitor has been unable to produce any file note or any contemporaneous record of instructions made by him.

4. [11]

   However, I have heard full evidence on all issues, including capacity, knowledge and approval and undue influence. This is not a case that should be decided by reference to onus, and I find it difficult to see how anything turns on whether or not there be suspicious circumstances. Indeed, my experience in this trial confirms my view that where there has been a full hearing, the introduction of a requirement of “suspicious circumstances” which if found cause an evidentiary onus to shift is generally unwarranted. That approach introduces an additional issue, to no useful purpose, and may (as occurred in Mekhail v Hana; Mekail v Hana [2019] NSWCA 197) contribute to error by distracting from an evaluation of the totality of the evidence. I agree with Justice Lindsay’s extra-judicial observation on this point:

5. [12]

   That passage was approved in Mekhail v Hana; Mekail v Hana at [168] (albeit in obiter), and was followed in (without seeking to be exhaustive) Chalik v Chalik [2024] NSWSC 117 at [282] (Henry J), Estate of Guamani; Guamani v De Cruzado [2023] NSWSC 502 at [225] (Meek J); Dybac v Czerwaniw [2022] NSWSC 1279 at [235] (Slattery J) and Re Estate Capelin, Deceased (2022) 107 NSWLR 461; [2022] NSWSC 236 at [98] (Lindsay J). It is also reflected in the criticisms by Ward CJ in Eq and Hallen J of the artificiality of a two-stage approach involving presumptions in Estate of the late Genevieve Bryan [2022] NSWSC 965 at [425] and Starr v Miller [2021] NSWSC 426 at [472]-[474] (appeal dismissed [2022] NSWCA 46) respectively. Further, it coheres with the absence of any presumption of undue influence in probate: see Schwanke v Alexakis; Camilleri v Alexakis [2024] NSWCA 118. In short, as Williams J observed in Bull v Fulton (1942) 66 CLR 295 at 343; [1942] HCA 13, “[u]sually the evidence is such that the question upon whom the onus of proof lies is immaterial”.

6. [13]

   None of the foregoing detracts from the force of the observations in Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [43]-[54]. True it is that a rational will proven to have been duly executed entails a presumption of capacity and of knowledge and approval, absent circumstances which raise a doubt as to either. It will be seen that I have concluded that this is a rational will, and it has at all times been common ground that it was duly executed. But no court having heard full evidence is entitled to shut its eyes to evidence concerning the testatrix’s capacity or her knowledge and approval of the will and grant probate. The reality of most modern litigation is that there is no opportunity for any determination of capacity or knowledge and approval in advance of the trial. In truth, the role of the presumptions flowing from the due execution of a rational will primarily affects not so much the conduct of the trial and the determination by the Court, but the preparation of litigation in advance of trial, and in particular the decisions to adduce evidence of cognitive capacity and the circumstances surrounding the execution of the will.

7. [14]

   This litigation also indicates a further difficulty with the utility of the notion of “suspicious circumstances”. Despite whether or not there are suspicious circumstances being a binary question, if suspicious circumstances are found to exist, then it is necessary to weigh in the balance the strength of the case disfavouring a grant of probate against the case propounded by the executor. Another way of putting this is that “suspicious circumstances” has both a digital and an analogue aspect, failing to appreciate which can lead to error; cf (in a completely different context), R Stevens, “Should Contributory Fault Be Analogue or Digital?” in A Dyson et al (eds), Defences in Tort (Hart Publishing, 2017) 247. After all, as Viscount Simonds said in Wintle v Nye [1959] 1 WLR 284 at 291, “[t]he degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed.”

Uncontroversial facts

1. [15]

   All of the events occurred more than a decade ago, and many occurred more than three decades ago. Memory is fallible and malleable, especially memory concerning past beliefs. One of Lord Leggatt’s first judgments contains an extensive and influential consideration of the frailties of memory, including (relevantly for present purposes) that memories of past beliefs are revised to make them more consistent with present beliefs: Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) at [18]. It is usually desirable to start with reliable contemporaneous documents and uncontroversial facts. “Usually, the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation”: Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34] (Keane JA). That is not to deprecate the potential significance of testimonial evidence. In particular, as was said by Bell P in ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24; 388 ALR 128 at [27]-[29], testimonial evidence may provide valuable assistance in explaining the context of, and omissions from, the contemporaneous documents. That is of particular pertinence in the present case, in respect of the property transactions which occurred in 1988 and 1992. Accordingly, I start with what is either uncontroversial or established by contemporaneous documents.

2. [16]

   There were three children of the marriage of Rebeka and Con Deligiannis: Spiro (born in 1960), Marika (born in 1966) and Jim (born in 1968). All children lived with their parents at the Australia St property until they were married, and, in the case of Marika, after she was married. Very little emerges from the evidence about Rebeka’s and Con’s early life. According to her death certificate, she was born in Agios Kostantinos Sparti in Greece, and arrived in Australia aged 21. Rebeka only ever spoke broken English, and seems to have been unable to write in English. She had an English signature, but revealingly a signature she made in 2016, when she was ailing, uses Greek characters (the ‘e’s in Rebeka are epsilons and the ‘g’ in her surname is a gamma). It seems probable that she arrived in Australia from Greece after the Second World War, like many others, and worked hard to establish herself in a new country. There is evidence that the traditions of the church, especially Easter and Christmas, were very important to Rebeka.

3. [17]

   Sadly Con passed away in 1982, when the children were aged 21, 15 and 13. At that stage, Rebeka inherited not only the Australia St family home, but also a property on Bridge Rd in Belmore. She did not remarry. An issue to which I shall return is whether Rebeka made a will after her husband’s death.

4. [18]

   The older son Spiro has renounced all claims to the estate (both in the event of intestacy and under the Succession Act). The circumstances in which that occurred are relevant to Marika’s claims.

5. [19]

   In 1980 Spiro became a co-owner, with his parents, of property at McDonald St Lakemba. On paper, he was tenant in common as to half, and his parents as joint tenants of the other half interest. The purchase price was $46,000. Spiro gave evidence that his parents were guarantors; it also seems likely that their presence was necessary in order to obtain a bank loan, prior to the deregulation of the banking system a few years later.

6. [20]

   Spiro gave evidence in cross-examination, and I did not understand there to be any challenge to it, that he made all of the repayments of principal and interest by himself, and became entitled to the entirety of the proceeds of sale in 1988. That this was uncontroversial was made clear from Spiro’s cross-examination:

7. [21]

   In 1988, after Con’s death, Rebeka and Spiro sold the Lakemba property, for around $59,000. There was uncontroversial evidence that there was talk of giving it to Marika, who found the property unsuitable.

8. [22]

   In 1988, Marika paid a holding deposit of $500, and then Spiro paid the balance of the deposit of $11,000, on a flat in Denman Avenue Wiley Park acquired by them at a price of $115,000. Spiro and Marika acquired the property as tenants in common in equal shares, with the balance of the purchase price coming from a loan from the National Australia Bank in the amount of $60,000, and the rest from Spiro.

9. [23]

   In around June 1988 when Marika obtained a half interest in Wiley Park, she was aged 21 (about to turn 22) and living at home. Marika made no suggestion that she contributed any of the deposit (save for the $500) or any of the funds required at settlement, although it is also common ground that she was solely responsible to service the mortgage. She accepted that Spiro’s contribution to the purchase price was $59,131.40 (being $11,000 of the deposit and the entirety of the amounts required on settlement (principally, stamp duty of $2,515.50 and $1,588.45 charged by Coombes, Lucas & Co) save for the $60,000 borrowed from the bank).

10. [24]

    The memorandum of costs and disbursements at settlement includes an amount of $95 described as:

11. [25]

    No other evidence, so far as I can see, refers to any power of attorney. However, there is no reason to doubt that one came into existence at this time. The donor must have been Spiro or Marika or both of them. The memorandum of transfer is signed by the vendors, but not signed by either Spiro or Marika but instead is signed by the “solicitor for transferee”, Nicholas Constantine Coombes (although to be clear he does sign explicitly as the donee of a power of attorney). Nonetheless, it seems likely that neither Spiro nor Marika attended settlement. This curiosity was not explored in the evidence, despite the contrast with what occurred in 1992.

12. [26]

    The property at Wiley Park was tenanted thereafter, initially at a rent of $140 per week, which was almost sufficient to meet the repayments required by the bank (which were $656 per month for a 20 year mortgage of $60,000 at 14.5% per annum). Spiro gave evidence that he made no repayments, and that it was agreed between the siblings that Marika would be solely responsible for the repayments and outgoings, and solely entitled to the rent. Marika accepted that it was a relatively spacious unit, renovated by Jim ten years ago, with two bedrooms and an internal laundry.

13. [27]

    In 1990, Spiro married his first wife, and left the Australia St home. His wife died in 1992, following which Spiro returned to the family home, living there until 1999.

14. [28]

    Two memoranda of transfer were signed on 20 March 1992. In one, Rebeka transferred the Belmore property to Spiro. In the other, Spiro transferred his half interest in the Wiley Park property to his sister.

15. [29]

    Both memoranda of transfer identified a consideration. There is no suggestion in the evidence that any money was paid by anyone in these intra-family transfers, but the fact that a transaction was not for valuable consideration did not mean that ad valorem duty was not payable, and accordingly it was necessary to determine a price. In the case of Rebeka’s transfer of Belmore to Spiro, the stated consideration was $140,000, and the document has a handwritten annotation of $3,388 which is highly suggestive of stamp duty (it is almost exactly “$1,290 plus $3.50 for every $100 or part thereof by which the amount exceeds $80,000” which was the rate prescribed for conveyances of property where the amount of consideration exceeded $80,000 but did not exceed $300,000 in Part 1 of the Second Schedule to the Stamp Duties Act 1920 (NSW)). In the case of Spiro’s transfer of a half interest in Wiley Park to Marika, the stated consideration was $62,500. The transfer is stamped, but the amount of duty paid is illegible on the copy tendered.

16. [30]

    The signatures of each of Rebeka and Spiro on the Belmore transfer, and each of Spiro and Marika on the Wiley Park transfer, were witnessed by Mr Coombes.

17. [31]

    The transfer of Spiro’s half interest was not lodged until some months later, at the same time as Marika, now as sole owner, mortgaged the land to secure her obligation to the bank. At that stage, the mortgage appears to have been stamped for loan security duty on the basis of indebtedness of $64,000. (The stamp is unclear, but the handwritten numbers 64,000 and 197 are perfectly legible, and loan security duty was payable at the time at the rate of “$5 for the first $16,000 and 0.4% on the amount exceeding the first $16,000”, and 197 = 5 + 0.004 x 48,000.) That is suggestive, although not determinative, of Marika’s indebtedness to the bank in 1992, almost four years into the term of the facility, having increased to $64,000.

18. [32]

    To reiterate, it was common ground that Spiro received Belmore – where he lives to this day – as an “early inheritance”, and that in fact he paid nothing for it. (He received it in 1992, but he gave evidence that the property required complete demolition and rebuilding.) It was common ground that Marika paid nothing for the half interest in Wiley Park which was transferred by Spiro to her.

19. [33]

    It is true that Rebeka did not convey any real property directly to Marika during her lifetime. Marika contended that Spiro’s decision to give her his one half interest in Wiley Park was his own decision, not her mother’s.

20. [34]

    Marika continues to own the Wiley Park property. It continues to be tenanted. It also continues to be mortgaged. At some stage Marika refinanced with Westpac. It may be that this occurred in July 2003. Exhibit D is an incomplete collection of Westpac bank statements concerning both a “variable rate investment property loan” and a “fixed rate investment property loan” obtained by Marika. The earlier Westpac statements show debt to that bank not exceeding $28,000, while on 15 July 2003 the same account has withdrawals of $101,369.24 and $17,859.88, at least one of which is consistent with paying out indebtedness exceeding $100,000 to the National Australia Bank. There are also debits of $17,000 on 1 April 2015 and $20,000 on 21 April 2015 (Marika said she withdrew large amounts to buy a car and to pay for repairs to the roof of the house). The overall effect of the withdrawals combined with limited repayments (at this time, approximately $50 each week), was that the debt increased from $162,904 in January 2015 to $229,987 by July 2015.

21. [35]

    Marika disclosed in her first affidavit in November 2022 a mortgage debt of $270,000. After being cross-examined on the most recent bank statements, she gave this evidence:

22. [36]

    During his cross-examination, Spiro expressed surprise that Marika had not repaid the relatively small mortgage on Wiley Park, more than 30 years later.

Events between 1993 and 2013

1. [37]

   As noted above, Spiro returned to Australia St in 1992, where he lived until his second marriage in 1999. Jim lived in Australia St until he married in 1996. Marika lived in Australia St with her mother for the entirety of her life, until February this year. However, in 2013 she married, and thereafter her husband also lived at Australia St.

The 2013 will and handwritten document

1. [38]

   The will is a straightforward document of four short clauses. It was plainly typed in Mr Coombes’ office. Clause 1 revokes earlier wills. Clause 2 appoints Jim as executor and trustee. Clause 3 gives the entirety of Rebeka’s estate 75% to Jim and 25% to Marika. Clause 4 provides:

2. [39]

   The will was signed by Rebeka, using English characters. Her signature was witnessed by Mr Coombes and another solicitor in the office.

3. [40]

   Mr Coombes did not retain a file for the steps taken in 2013. However, he produced the following document which was kept with the will in his safe, which became Exhibit F:

4. [41]

   It was uncontroversial that most of the handwriting was that of Mr Fotis Kakaroubas, a friend of Rebeka (or more precisely, the son of her friend) who lived nearby and who got to know the deceased while he and his mother were walking in Camperdown. The signature at the bottom left (which is in a different pen) appears to be that of Rebeka, and closely resembles that on the will. The writing at the top right is that of Mr Coombes, and says “Prepared by a neighbour!”

5. [42]

   It may be noticed that while the will speaks of Marika receiving the unit in Wiley Park, the note refers to her receiving the unit at Lakemba. Wiley Park and Lakemba are neighbouring Sydney suburbs.

Events between 2013 – 2022

1. [43]

   There was no challenge to Marika’s evidence that she first learnt of the 2013 will in around 2016. She said that after her mother’s cognitive function had declined, she attended Mr Coombes’ office with Jim and perhaps Spiro for the purpose of Rebeka executing an enduring power of attorney and appointing an enduring guardian. Those documents were executed and are dated 22 July 2016.

2. [44]

   Marika said she was shocked when, while waiting for Mr Coombes in his offices, there was a conversation to the following effect between her and Jim after she suggested that they look at their mother’s will, with a view to its being updated to include Stacie (Jim’s second child) and Constantine (Spiro’s child). She said that the following exchange then occurred:

3. [45]

   Jim agreed that most of the above exchange took place, and the two of them were whispering, waiting to be called into Mr Coombes’ office. Marika and Jim agreed that Rebeka did not react to the conversation. Marika suggested but Jim denied that that reflected Rebeka’s dementia at that stage; Jim said that the two of them were whispering and their mother had not heard them. But it is clear that on that day, Rebeka was unable to sign one of the documents, save with a cross, and she had been diagnosed with dementia more than a year earlier, in June 2015. I note that no medical records whatsoever were tendered in this trial, and June 2015 is a reference to Jim’s substantially unchallenged testimonial evidence.

4. [46]

   Marika said she was shocked and speechless and had a feeling of helplessness. She said that she would “never forget” the abrupt response she received from Mr Coombes when she told him she was in a state of shock because she had just learned of the will, and he said “Well, that was your mother’s wishes”.

5. [47]

   On 1 December 2016 Marika forwarded an authority, purportedly signed by her mother, to Mr Coombes which stated:

6. [48]

   The signature resembled that of Rebeka. In cross-examination, Marika volunteered that she had forged her mother’s signature. Neither the enduring power of attorney nor the appointment as enduring guardian authorised her to do so. However, Marika’s counsel observed that while it had been wrong for Marika to deceive Mr Coombes, her claim that she had been under a deal of pressure at the time was not challenged in cross-examination, and far from seeking to conceal what she had done, she volunteered the fact that she had signed the letter as soon as the issue was raised. I agree with Mr Alexis that very little turns on Marika’s credit in this litigation.

7. [49]

   Mr Coombes provided the copy of the will to Marika.

8. [50]

   Thereafter, Marika spent some five years knowing that her mother was not competent to write another will. Rebeka stayed at home until May 2017, where she was cared for principally by Marika. Commencing in May 2017 (a date established by financial records), Rebeka began to spend many days each month at a day care nursing home run by Uniting Care Service, which also included occasional overnight stays. For example, in October 2017, Rebeka attended at the centre for 25 days and two nights. At some stage thereafter, she moved to full-time residence at an aged care facility in Marrickville. Marika said she visited her mother every day prior to Covid restrictions. Rebeka passed away on 22 January 2022, aged 85.

9. [51]

   In April 2022 Marika’s solicitors wrote to Mr Coombes querying the will, and stating that Marika had serious reservations about it including her beliefs that Rebeka lacked capacity and that the will did not contain her testamentary intentions. Mr Coombes confirmed that he did not retain a file, and that he did not have a 1998 will. After the first caveat was lodged, Mr Coombes wrote a longer letter in response which included:

10. [52]

    Mr Coombes thereafter declined the solicitor’s request to be provided with the considerable body of evidence. It is not entirely clear to what he had been referring. Shortly thereafter he ceased to act, and Jim’s current solicitors were retained. They wrote a long letter dated 26 August 2022, which included an open offer, and which attached emails from Maria (Jim’s and Marika’s cousin) and Mary (Jim’s and Marika’s sister-in-law), both dated 1 August 2022.

11. [53]

    Maria’s email included the following:

12. [54]

    Mary’s email included the following:

13. [55]

    The essence of the offer made by Jim’s solicitor was vacation of the home by 30 September 2022, a waiver of any entitlement to an occupation fee for the seven months Marika had lived at Australia St after Rebeka’s death, and an increase in Marika’s entitlement under the will to one third.

14. [56]

    Thereafter Marika caused a series of questions to be asked of her older brother Spiro in an email exchange, part of which was in evidence. The questions referred to a 1988 will, which in her evidence Marika said was an error for 1998. The questions followed by Spiro’s answers in bold included the following:

15. [57]

    The offer in Jim’s solicitor’s letter was not accepted, and proceedings were commenced by Marika in November.

16. [58]

    Rather than summarising the testimonial evidence, which was relatively brief, (with the cross-examination lasting one and a half days) and all of which was affected by the passage of time, it is more efficient to proceed directly to the factual issues.

Was there a previous will?

1. [59]

   I find that there was a previous will. Rebeka made it in around 1998. No such will was in evidence. However, the inherent probabilities coupled with the weight of evidence supports its existence.

2. [60]

   First, it will be recalled that after her husband’s death in 1982, Rebeka was a widow who owned the family home and a property at Belmore, and co-owned a property at Lakemba with Spiro. The evidence all points one way in favour of the gift of land at Belmore to Spiro in 1998 being in lieu of an inheritance. A pre-inheritance gift to a child, in lieu of an inheritance, is only effective if there is a will which departs from the equal sharing of children on intestacy.

3. [61]

   Moreover, Spiro’s first wife died in 1992, and he had returned to the family home with his widowed mother. He married his second wife in 1999. Jim married in 1996 and their son Constantine was born soon after. Those significant changes in the family structure would have made the making of a will by the mother in 1998 or 1999 a reasonably obvious and appropriate step to take.

4. [62]

   Thirdly, there is testimonial evidence of an earlier will:

   1. (1)

      Marika gave evidence, about which she was not cross-examined, that she had spoken with her mother about the previous will, and had at one stage been given it and read its contents. She remembered that it left $30,000 to Jim’s son, and $30,000 to Spiro to give to his future child, and divided the balance equally between herself and Jim.

   2. (2)

      Spiro likewise accepted in cross-examination, consistently with his response to Marika’s email reproduced above, that his mother told him there was an earlier will, and that he believed that Marika’s godfather took her to Mr Coombes for it to be drawn up. He agreed when responding to Marika’s email that “there was a monetary amount for the grandchildren, born and future”. The references by Marika and Spiro to future grandchildren dovetail with Spiro’s second marriage in 1992 and the prospect of children.

   3. (3)

      Maria gave evidence, consistent with her email of 1 August 2022, that she had had a conversation with Rebeka before the wedding in which she had asked if “Aunty Rena” had a will and had been told that she did.

   4. (4)

      Mary’s evidence was to the effect that Rebeka had asked her to take her to a solicitor in Marrickville to amend her will, and she agreed in cross-examination that she knew that the earlier will left some money (she was unsure how much) to her son, and was aware that the position had changed. The cross-examination on this issue concluded as follows:

5. [63]

   Marika submitted that insofar as the evidence suggested that the earlier will contained a legacy to Jim’s son, that enabled the will to be dated to around 1998.

6. [64]

   It is true that Mr Coombes was unaware of a previous will, but that carries little weight when it would not be expected that he would have any actual recollection, and his office’s records were demonstrably fallible even for a will made in 2013.

7. [65]

   I am comfortably satisfied that there was a will, principally because it seems inherently probable that a family that placed great store on property ensured that their affairs were properly regulated, and because the weight of evidence favours that being the case.

What was the nature of the earlier will and was Jim aware of it?

1. [66]

   There was some evidence that the earlier will left Australia St to Jim. In particular, that was Maria’s evidence in her 1 August 2022 email reproduced above. She confirmed it in an affidavit which was to substantially the same effect as that email. Jim gave evidence to the same effect in cross-examination.

2. [67]

   It will also be noted that Marika’s email to Spiro proceeded on the basis that the earlier will divided Rebeka’s estate equally between Spiro and Jim; this may have been another error.

3. [68]

   But the difficulty with any scenario whereby Marika received nothing under her mother’s earlier will is that in that event there was scarcely any plausible basis for a fear that “the Canberrans” would take such property as Marika might inherit if Rebeka predeceased her (as was probable) and Marika’s marriage foundered. Further, to the extent that there was still such a basis, amending the will would not address the fear.

4. [69]

   Marika was married on 22 June 2013. She took her husband’s name. I shall refer to him as “Costa”, without disrespect or familiarity, because it was the name universally used in the evidence.

5. [70]

   There was a deal of evidence that Rebeka was agitated by her daughter’s marriage and the threat she perceived it entailed. No doubt she wished the best for her daughter, but that is not inconsistent with a concern that there was a possibility that her marriage might fail, in which case Marika’s former husband might make a claim against such property as Marika had inherited. Thus Jim gave evidence of his awareness of his mother’s agitation at the time of the wedding concerning the risk that Costa might make a claim, perhaps especially if the house ended up being owned or partly owned by Marika:

6. [71]

   There was also a deal of evidence, which to the extent it was presented in cross-examination I found highly persuasive, that after Rebeka had made the 2013 will, she conveyed to her family that she felt a sense of relief. For example, Maria gave this evidence at the conclusion of her cross-examination:

7. [72]

   Similarly, Spiro’s wife Mary recalled learning that Marika had made a new will:

8. [73]

   Both of those witnesses gave evidence in a fashion which was unaffected and which I found credible.

9. [74]

   In short, I do not accept that the 1998 will left nothing to Marika. There is overwhelming evidence that Rebeka was very concerned about the threat posed by Marika’s marriage and a claim upon any inheritance Marika might receive, and that leads me to conclude that the earlier will left more of Rebeka’s estate to Marika than did the 2013 will. The relief that Rebeka conveyed after she executed the 2013 will confirms this.

10. [75]

    I further find that Jim was aware of this. His conceded awareness of his mother’s fear goes far towards the conclusion that Jim was aware that under an existing will, Marika would receive a significant part of Rebeka’s deceased estate. As was put to him in cross-examination, if he believed that Marika was not a beneficiary under the earlier will, there was no basis (or at least a much less well-founded basis) for his mother’s fear.

The circumstances in which the will was executed

1. [76]

   The 2013 will was evidently prepared and printed in Mr Coombes’ office. There is no reason to doubt his recollection that there were two conferences with the client: the first to elicit her instructions, and the second to execute the typed document. That accorded with his usual practice, and is the obvious inference to draw from the fact that the will had been prepared on a computer but left undated when Rebeka came to execute it. It is possible that there were more than two meetings, but the will was straightforward so that seems unlikely.

2. [77]

   There is no reason to doubt that before execution, the will was read out aloud, in Greek, and that Rebeka executed it, in the presence of the witnesses who subscribed their names, one of whom was Mr Coombes.

3. [78]

   Mr Coombes has retained the original will and the handwritten document signed by the deceased. He has not retained a file. It is unclear precisely what efforts were made by anyone to obtain a diary, an appointments schedule, or records of timing or billing from 2013, and it is indeed possible that he provided the service of drafting a straightforward will to a long-standing client for free.

4. [79]

   The handwritten document is the only contemporaneous record of the deceased’s instructions which precedes the will. Unfortunately it is undated. What is also not known is when the first meeting with Mr Coombes took place, and on what days Mr Kakaroubas called upon Rebeka: first when he prepared his document, and second when he was told by Jim words to the effect that his assistance was no longer needed.

5. [80]

   As it happens, quite a lot turns on the precise sequence of events in June, July and August 2013.

6. [81]

   I find that there were two meetings with Mr Coombes, the second of which took place on 20 August 2013 when the will was executed.

7. [82]

   I accept the entirety of Mr Kakaroubas’ evidence. He was assisting a friend of his mother, in a very personal matter, which involved a division of her estate after her death unequally between her children, the wedding of one of whom he had recently attended as a guest. The occasion was unusual and intrinsically memorable, and there is no reason for his memory to have been distorted by time. I accept his evidence (as did his cross-examiner) that Rebeka had told him, either then or at some later time, “I don’t want Costa and his children to take this house or my money”. I accept that the production of the handwritten note occurred in accordance with his evidence – which involved him attending at the Australia St property twice having taken instructions from Rebeka on the first occasion, and returning with his handwritten note later (my impression from his evidence was that this occurred on the same day although that was not explicitly said). I also accept that at some later stage he returned to Australia St where he encountered not only Rebeka, whom he had been expecting, but also Jim. I accept that Mr Kakaroubas was surprised because he thought he had been helping Rebeka in a matter in which her children were not involved. I also accept that he has no precise recollection of whether Jim said “Thank you for your help, there’s no need for further assistance” or “I’ll take care of things” (he acceded in cross-examination to questions to the effect that Jim told him all those things, but I attribute that to his manner of answering questions, rather than accepting that all of those words were said). Mr Kakaroubas was clear that whatever the words used, Jim made it clear that his role was complete.

8. [83]

   Evidently Mr Kakaroubas’ first visits occurred before 20 August 2013. I find that those visits occurred after Rebeka’s first appointment with Mr Coombes.

9. [84]

   I start with the objective evidence, which is not informed by any assessment of any witness.

   1. (1)

      The handwritten note is in English. Rebeka took some effort to have it made in English. If she had wanted, when she first visited Mr Coombes, a written explanation for her instructions, it would have been easy for her to provide it to him in Greek, and that would not have required the involvement of a third person. That is to say, I can see no good reason why Rebeka, in advance of her first meeting with Mr Coombes, would consider it necessary to prepare a document in English.

   2. (2)

      The handwritten note commences with the words “I Revika Deligiannis am writing this letter to express my intentions regarding my estate upon my death”. That is the sort of language that a solicitor might use when asking a client to provide in handwriting the reasons for a will which treated her children unequally. Conversely, it is an unlikely introduction to a letter which was drafted unprompted by her solicitor.

   3. (3)

      There is a discrepancy between the handwritten document and the will. While both provide an explanation for the diminished gift to Marika by reason of her inter vivas receipt of property, the handwritten note refers to Lakemba while the will refers to Wiley Park. If the handwritten note were provided at the first meeting, then the reference to Lakemba must have been corrected at that meeting in order for the will to refer to Wiley Park. If that is what happened, it would be natural for the handwritten note to be amended and initialled by Marika so that it coincided with the will. While I think this is a consideration of less weight than the two mentioned above, the fact that the handwritten note was unamended but nonetheless retained with the will also tends to suggest that it was provided at the second meeting.

10. [85]

    To the foregoing may be added the fact that Mr Coombes gave evidence, which must be regarded only as based upon his usual practice, that the handwritten note would have reflected an instruction given to clients to provide an explanation in their handwriting for any unequal division of their estates. That evidence is inherently plausible.

11. [86]

    Finally, there is the annotation made by Mr Coombes, “Prepared by a neighbour!”. He was asked whether it reflected surprise, which he denied. The reasons for his annotation will never be known with certainty. He evidently and unsurprisingly had no recollection of it. But it is consistent with his receiving a document at the second conference, which complied with a request from him to provide a handwritten explanation for the unequal distribution of Rebeka’s estate, but which was, unexpectedly, not in the testatrix’s handwriting nor in her language, but in English written by a neighbour, thereby to an extent defeating the purpose of his request. Mr Coombes may have thought it was so obvious that it went without saying that when he told his client (speaking in Greek) to return with a handwritten note explaining the reasons for her instructions that he intended for her to return with a document written in Greek. However, Rebeka may have appreciated that the will would be in English and wrongly understood the request to be to write out that reasoning in English, which she could not – perhaps to her embarrassment – do. A deal of this paragraph is speculative, and to be clear I regard it as of less weight than the matters mentioned in the preceding two paragraphs. Such weight as it has comes from the fact that I cannot readily bring to mind any other explanation for the annotation.

12. [87]

    Telling against the foregoing is evidence from Jim that he first saw the note when his mother took it from her handbag when he took her to Mr Coombes. In his first substantive affidavit after his claim to a grant was challenged by Marika, he said:

13. [88]

    An important challenge to Jim’s credibility was made based on this evidence. It is important first to identify what is not contentious. For the reasons given above, I am comfortably satisfied that the handwritten note was prepared after the first conference with Mr Coombes and provided to him at the second conference, which was when Jim saw it, and thus Jim was wrong in his affidavit to maintain that he saw it at the first conference. The fact that he recalled this was the first conference is an error, but it is an understandable error which is neither here nor there.

14. [89]

    The important question of credit relates to whether the second conference with Mr Coombes preceded or followed the second meeting with Mr Kakaroubas. If Mr Kakaroubas’ second visit preceded the execution of the will, then Jim’s evidence concerning his first seeing the handwritten note when his mother pulled it from her handbag was incorrect. This is very different from a mistake as to whether he saw it at the first or second conference with Mr Coombes. It is one thing to appreciate after the event that Mr Kakaroubas had assisted with his mother’s will; it is another thing entirely to know that before the will was executed, and in all likelihood to know what his mother’s instructions were. If Mr Kakaroubas’ second visit was after the execution of the will, then the evident sense of the conversations recalled by him would naturally cohere with what had occurred: the occasion for the note had passed, and he was thanked for his help which was no longer needed.

15. [90]

    It is impossible to say what distance in time separated the two appointments with Mr Coombes, or the two visits by Mr Kakaroubas. There was no evidence which directly bore upon the former. As for the latter, Mr Kakaroubas said “I couldn’t give you a timeframe”, and in answer to the question “within a couple of days, a week or so, thereabouts?” he said “it could have been a month or two. I – I just couldn’t tell you”.

16. [91]

    I conclude that it is likely that Mr Kakaroubas’ second visit followed the execution of the will. I draw that conclusion from two things. The first is that Rebeka was agitated about the need to make a will. When she first called upon Mr Coombes is not known, but the will she gave instructions to draft was a simple one, which could be prepared in a matter of minutes, and there is nothing to suggest that there would have been any lengthy delay between that occasion and 20 August 2013. To the contrary, the probabilities are that Rebeka would have wanted to execute the will promptly, and would have pushed back if, say, Mr Coombes had proposed a second appointment a month after the first.

17. [92]

    The second is that Mr Kakaroubas resisted the suggestion that these two visits were only a matter of days or a week or so apart. While he was at pains to make clear that his recollection was imperfect, he suggested that his visits could have been separated by a month or two.

18. [93]

    Those two circumstances make it unlikely that Mr Kakaroubas’ second visit preceded the execution of the will. It is not necessary for me to make a finding on the point. It is sufficient for me to conclude that I am not satisfied that Mr Kakaroubas’ second visit preceded the execution of the will. Accordingly the attack on Jim’s credit, insofar as it is based on his being aware of the handwritten note before his mother took it from her handbag at Mr Coombes’ office, is not well-founded.

19. [94]

    I conclude that the most likely sequence of events is (a) Rebeka meets with Mr Coombes and instructs him as to her will, (b) Rebeka meets with and obtains a handwritten note from Mr Kakaroubas, (c) Rebeka meets with Mr Coombes again and executes her will, and (d) Rebeka and Jim meet with Mr Kakaroubas.

20. [95]

    I return to the balance of Jim’s evidence. He is a plumber, who speaks fluent, colloquial English. His answers were direct, in large measure acceding to propositions put to him. My impression was that he was often not conscious of some of the nuance in the questions he was asked. It is possible that he was a gifted liar, but I think he was trying to answer questions. That is not merely my general impression, but it is informed by the fact that he made concessions against interest, for example that his mother was concerned about “the Canberrans” and that he was aware of her concern and responded to it. There were times when Jim refused to make concessions called for by the cross-examiner, but I consider that at those occasions witness and counsel were at cross-purposes rather than Jim wilfully declining to answer to the best of his recollection.

21. [96]

    Insofar as an attack was made on Jim’s credit, I reject it. That is not to say that I accept his testimonial evidence without qualification; the opposite is true, for it is susceptible to the same deficiencies caused by the passage of many years, the litigation process and perceived self-interest as most other witnesses. Ultimately most of the critical facts in this litigation derive from documents and other witnesses. Indeed, as the case concluded, I doubt that anything turns on my assessment of Jim’s credibility.

The accuracy of clause 4 of the 2013 will

1. [97]

   Marika sought to make something of the textual discrepancy between Wiley Park and Lakemba in the handwritten note and the will. More substantively, she also sought to make something of what was said to be the basic error on the face of the will, namely, that Marika did not receive Wiley Park from her mother. I do not accept these submissions.

2. [98]

   There was some evidence that Rebeka more naturally referred to the location as Lakemba rather than Wiley Park. Jim at one stage said that “if you said Lakemba to my mother or Wiley Park to my mother, it was the same thing to her” and although that evidence was volunteered, it is not implausible. Wiley Park is a suburb and has a train station, between Belmore and Punchbowl, but it has little by way of shops compared to the neighbouring suburbs. I have lived in Sydney for most of my life and I am certain that Lakemba is better known than Wiley Park. Counsel’s submission in this respect was appropriately muted:

3. [99]

   I agree with the approach taken by counsel. The discrepancy between Wiley Park and Lakemba is a distraction. The substantive point is whether Marika received property in Rebeka’s lifetime.

4. [100]

   Marika did receive ownership of Wiley Park. She did so on the basis that she contributed a small fraction of the deposit ($500). The balance of the purchase price came from Spiro and money borrowed by her and Spiro from the bank. Four years later, Spiro gave her his half of the property, and she appears to have assumed sole responsibility for the mortgage. The upshot is that she obtained ownership of a unit after contributing $500 of capital and assuming the obligation to repay mortgage debt. It is accepted that she obtained the sole benefit of rent received on the property.

5. [101]

   On any view of the matter, Wiley Park was in substance a gift to Marika. Who made the gift? I think it is tolerably clear that it was treated as a gift from Rebeka. On 20 March 1992, Rebeka gave Belmore to Spiro, which was valued for stamp duty at $140,000, and on the same day he relinquished his half interest in Wiley Park to Marika, valued for stamp duty at $62,500. The critical jural acts were the signatures of Rebeka and Spiro on each memorandum of transfer. By their signatures, Spiro obtained an interest in the entirety of Belmore, and released his half interest in Wiley Park to his sister. The result was that Spiro became the sole owner of Belmore valued at $140,000, and Marika became the sole owner of Wiley Park valued at $125,000.

6. [102]

   On any view of the matter, the transactions dated 20 March 1992 must be viewed together. They occurred on the same day, and most probably at the same place – in Mr Coombes’ office, for he was the witness. Spiro was given Belmore, but on the basis that he would relinquish his half share of Wiley Park. Although Marika’s ownership in Wiley Park was acquired by her purchase as a co-owner in 1988 followed by the transfer from Spiro in 1992, the substance of the matter is that the gift by Spiro to her was intrinsically linked to the gift of Belmore by Rebeka to Spiro. As it happens, there is approximate equality in the consideration stated for stamp duty purposes insofar as the net wealth of each of Spiro and Marika increased by about the same amount. (Spiro obtained a property valued at $140,000 but surrendered his 50% interest in a property valued at $125,000, which is to say a net gain of $77,500, while Marika gained a half interest in a property valued at $125,000, which is to say a net gain of $62,500.) The evidence is silent as to who paid the stamp duty and other transaction costs.

7. [103]

   Another way of putting this is that by the two transactions effected on 20 March 1992, Rebeka ceased to have beneficial ownership of land worth $140,000, while Spiro’s net worth increased by $77,500 and Marika’s net worth increased by $62,500. In substance, the mother’s gift brought about a roughly equal increase in the wealth of her two older children.

8. [104]

   I do not accept that the will was inaccurate. In substance, Marika had received property during her lifetime from Rebeka. The fact that the receipt came by way of Spiro relinquishing his half interest in Wiley Park on the day that he was given Belmore does not make either the words in the will, or in the handwritten note, incorrect. That is not to say that the stated reason was the entirety of Rebeka’s reasons. As will be explained below, I am unpersuaded that it was.

Did Rebeka have capacity to execute her will, and did she know and approve it?

1. [105]

   The requirements of “capacity” and “knowledge and approval” are distinct, although it is self-evident that the same evidence may bear both upon whether a testatrix understood the nature of the act of making a will, the property which was its subject, and the claims of potential beneficiaries, and whether the testatrix appreciated the contents of a will and its effect.

2. [106]

   Capacity is often associated with what was said in Banks v Goodfellow (1870) LR 5 QB 549, although it is tolerably clear that at least some of the language (notably, the disentitling factors of “disorder[s] of the mind” and “insane delusions”) are inapt today: Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [6], [130]-[134], although they reflected what at the time may have been the latest state of science. Further, there is, as Basten JA explained in Carr v Homersham at [7]-[11], some imprecision in describing the conventional three positive elements of the test in terms of “capacity”. An understanding of what a will does and of the property likely to be disposed of by the will is qualitatively different from a knowledge and understanding of the persons who have claims upon the bounty of the testatrix.

3. [107]

   “Knowledge and approval” is also, upon examination, more complicated than it may appear. The requirement emerged in England from a combination of judgments and procedural changes in the second half of the nineteenth century which became incorporated into New South Wales law, which I sought to explain in Lewis v Lewis (2021) 105 NSWLR 487; [2021] NSWCA 168 at [130]-[136]. In some cases there may be a significant difference between knowledge and approval of the words used in a will and their effect, a point well illustrated by Lewis v Lewis. But that is not the case for this simple will.

4. [108]

   The simpler the will, the easier it will be to establish both capacity and knowledge and approval. In respect of capacity, White JA explained in Croft v Sanders [2019] NSWCA 303 at [126]:

5. [109]

   A recent endorsement is found in Lim v Lim [2023] NSWCA 84 at [9]-[10].

6. [110]

   Similarly, the simpler the will, the more readily will it be concluded that the testatrix knew and understood it: see for example Chalik v Chalik [2024] NSWSC 117 at [250]; Lim v Lim at [10].

7. [111]

   For completeness I note (although I did not understand a submission to be made to this effect) that even if the will appears to be harsh, or unjust, that does not of itself point against capacity. Gleeson CJ explained in Re Estate of Griffith (1995) 217 ALR 284 at 291:

8. [112]

   I am conscious that the circumstances attending the making of this will are not entirely free from concern, and I shall apply what was said by Meagher JA in Tobin v Ezekiel at [47] that:

9. [113]

   Let it be assumed, favourably to Marika, that Jim played a part in the preparation of the will. He acceded in cross-examination to the proposition that he discussed with his mother the possibility of a claim by Costa against any inheritance Marika might receive from her mother, particularly in circumstances where Marika and Costa made Australia St their post-nuptial home.

10. [114]

    Even so, I am comfortably satisfied that Rebeka had capacity and knew the contents of her will and its effect.

11. [115]

    There was some evidence of Rebeka’s cognitive deficits in 2013. The evidence post-dated the execution of the 2013 will, but of course that did not prevent it being used to support the conclusion that the deficits were previously in existence. Marika gave evidence of an occasion after her honeymoon, in September 2013, when she said “Can you believe that I don’t remember anything from your wedding”. Marika also recalled an occasion in November or December 2013 when her mother told her that she had become disoriented while returning home from Newtown to Australia St in Newtown Memorial Park, a park which she had walked past or through on hundreds of occasions. Marika also gave generalised evidence of an earlier decline.

12. [116]

    It was said in final address, correctly, that it was an “astonishing” thing that an event so significant as the wedding of a mother’s only daughter could have been forgotten so soon afterwards. The same is true of becoming disoriented in a park near where she had lived for many decades. However, telling against the force of that submission is the fact that it was not suggested that any immediate steps were taken to have Rebeka examined by a general practitioner or a specialist. An occasional moment of disorientation or memory loss does not of itself deny testamentary capacity. The evidence before me was that she was first diagnosed with dementia in around June 2015.

13. [117]

    A great deal of objective evidence tells against any serious cognitive deficiency in August 2013. Some of this turns on the fact that other family members’ conduct, including Marika’s, is inconsistent with Rebeka suffering from loss of her faculties as early as August 2013. That evidence included the facts that:

    1. (1)

       Marika lived at Jim’s house for 6 weeks in 2014, and although Marika visited her mother every day, Rebeka was living at home independently by herself;

    2. (2)

       Marika travelled to Canberra to visit her husband’s family in 2015 and 2016;

    3. (3)

       Marika’s evidence that from either 2016 or 2017 it became impossible for Marika and her husband to leave home without somebody staying with her mother;

    4. (4)

       Marika applied for, and obtained, a carer’s pension in 2017 (rather than earlier);

    5. (5)

       There is also the fact that Marika found out about the 2013 will in 2016 in circumstances where she had suggested that the will might need to be updated, to include her niece.

14. [118]

    There is also direct evidence of Rebeka’s capacity, derived from the way in which the will was prepared. It is clear that Rebeka gave the same instructions to Mr Kakaroubas as she had previously given to Mr Coombes. She was alone with those men when the instructions were given, and they could only have come from her. Only Mr Kakaroubas has any recollection of the meeting in 2013, but there was nothing in his evidence to suggest that she was unaware of the nature of her estate (essentially, her house) or those with claims upon it (the three children each of whom was named in the handwritten letter). The will correctly records that Spiro and Marika had already received a gift of real property during their lives from her, and in so doing records the three people who had the most substantial claims upon her bounty.

15. [119]

    To reiterate: the will was simple, it is perfectly plain that Rebeka knew the significance of a will and the nature of her estate, and it identified on its face the persons with claims upon her bounty. I am satisfied that Rebeka had capacity to make the 2013 will.

16. [120]

    Turning to knowledge and approval, the evidence summarised above, coupled with the simplicity of the will, is relevant.

17. [121]

    The evidence is absolutely clear that on four separate occasions Rebeka confirmed her intention that 75% of her estate go to Jim and 25% go to Marika: on two separate occasions, separated by some days, to Mr Coombes, and on two occasions on the same day to Mr Kakaroubas. As was emphasised in Jim’s closing submissions, that must be so irrespective of the order of events. It is powerful evidence that the testatrix knew precisely what was the effect of a very simple will disposing of a very simple estate.

18. [122]

    The gravamen of the challenge to knowledge and approval was that the will wrongly recorded that Marika had received property during her lifetime. For the reasons already given, I disagree. What was recorded in the will was correct.

Undue influence

1. [123]

   The applicable principles were recently considered in Schwanke v Alexakis; Camilleri v Alexakis. They need not be restated here. While Marika’s claim for undue influence was advanced in the written submissions served prior to the trial, it was not developed in closing submissions. That was an appropriate course to take, in light of what emerged from the cross-examination of Jim and Mr Kakaroubas. This claim is not established, and can be dealt with concisely.

2. [124]

   It was put in writing that Jim exerted undue influence over his mother when he arranged to take her to see Mr Coombes in 2013, when Marika was away, and without informing Spiro or Marika about this, in circumstances where the 2013 will represented a significant change to Rebeka’s testamentary intentions. I accept that Jim took Rebeka to Mr Coombes, twice, when Marika was away, and did not inform Marika about it, and I accept that the 2013 will significantly altered the disposition of Rebeka’s estate. But that alone is insufficient to establish undue influence.

3. [125]

   I am satisfied that Rebeka had capacity, and knew perfectly well what she was doing when altering her will. Both of her older children had in fact received advances in the form of property during her lifetime, on 20 March 1992, and Jim had received no parcel of land. I am unpersuaded that this is a case where Jim preyed upon his mother creating the sense of anxiety she felt prior to making the new will.

4. [126]

   Jim was pressed in cross-examination for why he did not tell his sister of the fact that his mother had changed her will. His answer was that it was his mother’s will. That is inherently plausible. I accept that his answer represented the best of his recollection. His mother and sister lived together. Evidently Rebeka did not wish to tell her daughter that she had changed her will. In those circumstances, far from there being any obligation upon him to do so, I think it would have been wrong for him to do so – just as it would have been wrong for Mr Kakaroubas to do so.

5. [127]

   It was also put to Jim that he contributed to his mother’s fear concerning “the Canberrans”. I accept that he responded to his mother’s concerns on that issue and that he was aware that she was upset by this, but I do not accept that his conduct contributed in any material way to her decision to amend her will.

6. [128]

   There is another matter which bears on this issue. There was ample evidence that Rebeka had said repeatedly that Belmore went to Spiro, Wiley Park/Lakemba went to Marika, and Camperdown was to go to Jim. If Jim in fact exercised undue influence upon his mother, why not procure her to make a will which left the entirety of the estate, rather than 75% of the estate, to him? It is far from unknown for daughters to be wholly excluded from a parent’s will; a recent example is Kouroutis v Kouroutis [2023] NSWSC 608.

7. [129]

   For those reasons, Rebeka’s 2013 will should be admitted to probate. It is therefore necessary to address her claim for an order for family provision.

Marika’s family provision claim

1. [130]

   The threshold issue under s 59(1)(c) of the Succession Act is whether the Court is satisfied that adequate provision for the proper maintenance, education or advancement in life has not been made by the will for Marika. The Court is entitled, by reason of s 60, in determining whether to make an order and if so its nature, to have regard to a wide range of matters identified in s 60(2), which include in s 60(2)(j) “any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person”.

2. [131]

   Marika invited the Court to have regard to the facts that she was Rebeka’s primary carer and long-time companion, that she had lived in Australia St for her entire life until leaving earlier this year, that she lived with Rebeka until Rebeka moved into a full-time care facility in June 2020, aged around 82. She pointed to the fact that for some 15 years, between 1999 and 2013, Rebeka and Marika lived together, Spiro and Jim having married and moved out of Australia St, during which period they had dinner almost every weeknight, and would share most meals on weekends, and that she felt obliged to stay with Rebeka because their lives were so intertwined and because Rebeka depended on her for companionship. Marika said that she contributed to the day-to-day costs of Australia St, thus enabling Rebeka, funded by an old age pension to maintain her lifestyle and to continue living there. Even after Marika’s marriage, she continued to live at Australia St, on the basis that:

3. [132]

   In cross-examination, Marika emphasised this: “how could I leave her after all these years when she needed me the most”.

4. [133]

   After Rebeka was diagnosed with dementia in 2015, Marika said she was dedicated to her care until she went to an aged care facility. This included cooking, dressing Rebeka and assisting her with toileting. Her evidence was that she stopped going out with her husband and seeing her friends so as to avoid leaving her mother alone at home. She said that “I effectively had no social life and became her full-time carer”. When Rebeka moved into full time residential care, Marika visited her daily, subject to Covid restrictions.

5. [134]

   Marika suffers from a number of health conditions. She has a weak left leg which prevents her from walking stairs, a consequence of an infection after a cyst was removed from her leg in 2021. She has diabetes and high-blood pressure for which she is medicated. She also suffers from macular degeneration which requires monthly injections in her eyes (at a cost of $800 per month, $400 after government rebate), which regularly prevents her from working.

6. [135]

   Marika’s income is modest, especially in comparison with Jim. Her monthly after-tax income is around $4,060. She owns Wiley Park, but it is worth around $380,000 to $450,000, and is subject to debt of around $270,000 secured by a mortgage. Marika says that her financial position is partly due to the financial sacrifices she made in order to care for Rebeka. She said that from 2017 she dropped her work back to 4 days each week so that she could care for Rebeka, and that she paid for much of the upkeep of Australia St and for Rebeka’s day-to-day needs. She said that Marika and Rebeka had split the household expenses since 1999.

7. [136]

   Marika’s husband Costa, is also of modest financial means. His monthly net income (after tax) is approximately $3,200 and he owns no real estate. After leaving Australia St, the couple live in temporary accommodation.

8. [137]

   In contrast, the assets of Jim and his wife are in the order of $3.5 million, principally their home, which has a small mortgage (it is valued at $3,125,000, with debt of $272,500) and a share of an inheritance in the order of $700,000 which his wife has recently received.

9. [138]

   Jim pointed to his own relationship with his mother, his contributions to the maintenance of the property, and importantly the fact that he was the only child not to receive real estate, directly or indirectly, from his parents. Referring to the preferences expressed by (among others) White JA and Brereton JA concerning the utility of “moral duty” as opposed to “community standards” in Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [40] and [109], he submitted that in order to succeed, Marika needed to show that Rebeka, when she left 25% of her estate to Marika, failed in her moral duty, and that in all the circumstances she had a moral duty to provide her with something more. He submitted that in light of the gift during Rebeka’s life, and the family circumstances, a 75:25 division was within the range of provision that a testator might be expected to make for Marika. He invoked the deference to the testatrix’s intentions in light of the limited evidence which is invariably available at trial, as expressed by White J in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [127]:

10. [139]

    Jim also relied on what was said in Sgro v Thompson [2017] NSWCA 326, where the Court of Appeal overturned a decision to make an order of family provision in favour of a daughter who had received nothing from an estate the only substantial asset in which was a residential property left in favour of the other daughter. Both daughters had good relations with their mother, but the plaintiff daughter had received an “early inheritance” in the form of an unencumbered gift of property at around the time she had married. White JA, who delivered the leading judgment of the Court of Appeal, said, dispositively, at [76]-[79]:

11. [140]

    White JA thereafter gave emphasis to a familiar line of authorities on the deference to be accorded by courts to wills made by capable testators. He cited a passage from McCosker v McCosker (1957) 97 CLR 566 at 580; [1957] HCA 82 which had been approved by Gleeson CJ in Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [24]:

12. [141]

    White JA also referred to Dixon CJ’s statement in Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9 at 20; [1962] HCA 19 (“The difficulty is that the Court itself can never be certain that it knows all the circumstances. More often than not, one may be sure that the Court knows few of them”), to a similar statement by Taylor J in Stott v Cook (1960) 33 ALJR 447 and to the passage in Slack v Rogan; Palffy v Rogan reproduced above, and added at [86]:

13. [142]

    The following passage at [93]-[95] is also apposite:

14. [143]

    Marika’s oral submissions in support of her claim for a family provision order, described aptly as her “back-up case” were brief, occupying two pages of transcript (pp 220-1). Making the assumption that both sides’ costs would come out of the estate (and very properly recognising that there might be a debate about that), the net estate was just around $2,060,000, such that 25% was some $520,000. It was said that that was not adequate provision, because the value of Marika’s assets was small, that insofar as those assets included a modest amount of superannuation, she did not presently have access to it, that the capital available to her did not permit her to buy a modest house in Sydney, and that acquiring a house in Canberra would exhaust the resources available to her leaving her with no cushion for contingencies which were potentially significant having regard to the medical conditions from which she suffered. In contrast, Jim’s assets were so substantial that they could be disregarded.

15. [144]

    Jim’s oral submissions were also concise. He emphasised that Marika had not put forward evidence about what she wanted in order to support a claim of more than 25% of the estate, that she could if she wished live in the Wiley Park flat and have a contingency fund left over after discharging the mortgage. Jim said that if she sought provision for accommodation purposes, it was incumbent upon Marika to have put forward evidence as to the type of accommodation she ought to have, the reasons for it, an estimate of how much it would cost, and some evidence as to properties of that nature available for purchase. Even if Marika did not wish to live in Wiley Park, she was able to acquire a home in the ACT, near her husband’s family, and advertisements were tendered stating that suitable properties were available with asking prices of $700,000 plus, and $750,000 plus. He also said that there was no evidence of her husband’s bank balance or superannuation.

16. [145]

    The parties joined issue as to the relevance of there being two reasons for Rebeka’s will: the fact that Marika had received real property during her lifetime and the concern that Marika’s husband or his family might end up with property. Jim said that both reasons were rational, and invoked the reasoning in Sgro. On the other hand, Marika maintained that the fear which motivated Rebeka had the effect of punishing her daughter for getting married, and had the testatrix actually thought about that, then things might have been done very differently.

17. [146]

    I accept that Marika had a very close relationship with her mother, closer than any of Rebeka’s other children, and which involved a much longer period of time sharing a household with her, and that Marika cared for Rebeka in her final years. I also accept all of Marika’s evidence about her medical conditions.

18. [147]

    However, I also accept that Marika, like Spiro but unlike Jim, had received real estate during Rebeka’s lifetime. For the reasons earlier given, in substance this culminated in Marika’s gift on 20 March 1992. For the ensuing three decades, Marika had enjoyed the benefit of ownership of the Wiley Park flat, for which putting to one side funding the mortgage had cost her $500.

19. [148]

    I do not accept everything said on her behalf concerning her own contribution to Rebeka’s daily financial needs.

20. [149]

    As Marika conceded in cross-examination, at least in some small respects, she used funds in Rebeka’s bank account for her own personal expenses. Marika accepted that tobacco purchases recorded as EFTPOS transactions in her mother’s bank account on 26 September 2018 of $87.90 and 17 June 2019 of $32.95 were for her own personal use. It seems probable that a purchase of $475.09 from Dan Murphy’s on 24 December 2018 falls into the same category.

21. [150]

    Further, it is not correct to say, as appears in paragraph 65(d) of Marika’s affidavit sworn 10 May 2023, that:

22. [151]

    Those propositions were tested in cross-examination, and Marika made appropriate concessions. What follows is more elaborate, based on an audit of what occurred in the first half of 2018 and the first half of 2020.

23. [152]

    In 2018, Rebeka was living for the most part at Australia St, but spending many days and some nights at a care centre run by “Uniting” at Petersham. According to a fee statement, Rebeka spent 4 nights and 19 days in January, 11 nights and 11 days in February, 5 nights and 18 days in March, 2 nights and 21 days in April, 24 days in May and 21 days in June 2018, the cost of which was $947 + $1243 + $1394 + $1048 + $792 + $693 = $6117 (Jim’s affidavit of 1 August, pp 5-6). Over that period, Rebeka’s pension was $894.40 per fortnight, rising to $907.60 per fortnight in April, with the deposits of pension and withdrawals to Uniting coming out of Rebeka’s account. The balance in the account remained stable (it commenced at $5940.90 and ended at $5298.65), and it may be noted that in addition to payments to Uniting were regular payments to the Inner West Council (presumably for rates) ($411.58 on 13.3.18 and $410.25 on 31.5.18), Sydney Water ($188.25 on 13.3.18 and $157.65 on 31.5.18) and EnergyAustralia ($309.75 on 12.2.18, $146.96 on 13.3.18 and $294.02 on 31.5.18), There are also cash withdrawals from the account of $450, $250, $200, $800 and $200 in the same six months.

24. [153]

    In fact, in the six month period summarised above, almost $2,000 was paid by Rebeka for expenses which on their face relate to the home in Australia St, and a further sum of almost $2,000 in cash was withdrawn (some or all of which, of course, may have been used for expenses which benefited Rebeka).

25. [154]

    I have undertaken the same exercise for the first six months of 2020. Rebeka’s account commenced that period with a balance of $5376.39 and ended the period with a balance of $4729.14. There were fortnightly deposits of $933.40 increasing to $944.30 by way of pension, plus a Covid-related payment of $750 on 8 April 2020. The nursing home charged $58.25 per day (a basic fee of $52.25 plus an addition $6 daily fee for extra services including Foxtel) and all those payments were made from the account. In addition, there were numerous payments to the Council, Sydney Water, EnergyAustralia, totalling in all $975 throughout that 6 month period, as well as some small EFTPOS transactions at Woolworths (14 April) IGA, Coles (both on 16 April), Aldi (on 27 April), a butcher (on 25 May).

26. [155]

    Marika’s response when asked about withdrawals from her mother’s account which on their face benefited her (such as purchases from a tobacconist) was, repeatedly, to say “Contra”. She gave this explanation of her meaning:

27. [156]

    It is not my purpose to be overly critical. Over this period of time, Marika was very substantially responsible for her mother. I accept her evidence that no relative spent anything like the time Marika spent with Rebeka, and one could well understand a minor portion of Rebeka’s money being spent by Marika for her own purposes. The present is the opposite of the case that is sadly but not uncommonly seen in this court where an elderly relative’s bank account is run down by someone with control of it (cf Katsoulas v Kritikakis; Katsoulas v Apostolatos [2024] NSWSC 67). The only purpose of the foregoing analyses is to dispel the notion which might be derived from Marika’s evidence that she was obliged to spend her own funds to maintain utilities and rates for Australia St while her mother was largely or wholly absent. To the contrary, Rebeka’s pension proved to be sufficient to pay not only for her accommodation in care, but also for the ownership expenses of Australia St.

28. [157]

    I am bound by Sgro and (for what it is worth) I respectfully agree with the force of the reasoning that the parties’ forensic decisions inevitably leave the court in a much less advantaged position than the competent testator. I have concluded that in August 2013 Rebeka was a competent testatrix. The reasons given in her will are accurate. It is no small thing to interfere with the testamentary wishes of a capable testatrix.

29. [158]

    It is necessary to place in context the value of the gift of Wiley Park in 1988 and 1992. True it is that it is a two bedroom apartment, as opposed to the four bedroom house at Australia St. Nonetheless, it was acquired for $115,000, and accepting Marika’s own March 2023 valuation of $400,000, she has enjoyed the benefits of ownership for more than 3 decades, including a capital appreciation of almost $300,000.

30. [159]

    In addition, there is force in Jim’s submission that the evidence put forward by Marika of her financial needs, and of her and Costa’s assets, is relatively slight. I also note that Marika’s medical conditions have worsened, but not dramatically since the will was written.

31. [160]

    I have found that the reasons expressed in Rebeka’s will were not the only reasons motivating its execution. But I see nothing irrational in a mother’s concern that a child who had already received a gift of real property would, to the extent that she received a share of Australia St, be exposed to a claim by her husband if her marriage foundered. I can see how that fear might have great weight in the mind of an immigrant to this country who no doubt through sacrifice and hard work had achieved a position where each of three children could receive some land notwithstanding her husband’s premature death.

32. [161]

    When those matters are borne in mind, I am unpersuaded that the Court would be justified in making further provision above the 25% from the estate to Marika than was made by Rebeka.

Jim’s claim for mesne profits

1. [162]

   In light of the above, Jim’s claim to mesne profits does not arise. But it may be as well to say the following.

2. [163]

   Jim’s claim was from June 2023 to February 2024. The earlier date was chosen to correspond with a demand by the executor named in Rebeka’s will that Marika vacate the property unless she paid an occupation fee; the latter date was when Marika vacated. The evidence of a real estate agent (who was not required to attend for cross-examination) established rent at $1,200 per week until 15 March 2023, and $1,500 per week thereafter. The claim in total was $117,600. I did not understand there to be any dispute about any of the factual integers comprising that claim.

3. [164]

   Marika’s response, based on Minister of State for the Interior v RT Co Pty Ltd (1962) 107 CLR 1; [1962] HCA 29 and Richardson v Richardson [2021] NSWSC 353, was to deny Jim’s entitlement to an occupation fee, because he had not first obtained possession. The facts were quite different in the former case, but in the latter (and passing over a complex procedural history) an administrator sued a child of the deceased who had remained in possession of the family home when the will left the entire estate equally between the three surviving children. The administrator said that upon the grant, the home vested in him in accordance with s 44(1) of the Probate and Administration Act 1898 (NSW) and thus he was entitled to claim mesne profits against the defendant who occupied it thereafter. Ward CJ in Eq rejected the claim, stating at [152]:

4. [165]

   Her Honour summarised Taylor J’s reasons in Minister of State for the Interior v RT Co Pty Ltd, observed that it had been followed by Edelman J in Hampton v BHP Billiton Minerals Pty Ltd [No 2] [2012] WASC 285 who had observed at [318] that “the High Court has iterated and reiterated that a claim for mesne profits is one which can only be brought when physical possession is recovered or after an action is brought to recover possession”, considered the possibility of relying upon the power to cure procedural irregularities in s 63 of the Civil Procedure Act 2005 (NSW) and concluded at [165]-[166], rejecting the administrator’s claim:

5. [166]

   In closing submissions, Jim sought to distinguish Richardson by pointing to s 12 of the Landlord and Tenant Act 1899 (NSW) which permitted a claim for ejectment to be made together with a claim for mesne profits, and submitted that despite the repeal of that provision (by the Fair Trading Legislation (Repeal and Amendment) Act 2015 (NSW)), Marika’s defence should not be accepted.

6. [167]

   I am confident that the parties did not exchange full submissions on the point. Jim’s submissions on this aspect of the case were supplied on the afternoon of the third day, and it is more than possible that Marika did not have adequate opportunity to respond. Had my findings been different such that the claim had been pressed, I would have invited further submissions from the parties.

7. [168]

   But the question will recur in other cases (I note Richardson has been followed in New South Wales Crime Commission v Hindmarch [2023] NSWSC 332 at [9]-[11]), and since there is now a split in decisions of this Court, it seems worth noting the following points.

8. [169]

   First, mesne profits is an exceptionally unfortunate label to describe a remedy which is used in a number of different senses: see C Mitchell and L Rostill, “Making Sense of Mesne Profits: Causes of Action” (2021) 80 Cambridge Law Journal 130, an article from which I have derived assistance. In the present context, they have little to do with anything that is “intermediate” (which is the sense of the old French word “mesne”). Nor have they anything to do with profits, and they are certainly distinct from the profits for which a fiduciary or some other accounting party may be required in equity to account. They are not rent, or damages for breach of a covenant to pay rent, as Brennan J noted in Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 at 39; [1985] HCA 14; see also Biviano v Natoli (1998) 43 NSWLR 695 at 704. Indeed, they are antithetical to a claim for unpaid rent, or damages for breach of a leasehold covenant, for their premise is that the defendant has no entitlement to possession. They are instead a remedy for tortious conduct, namely, trespass to land: Ciaglia v Ciaglia [2010] NSWSC 341 at [125]. Arden LJ said in Ramzan v Brookwide Ltd [2011] EWCA Civ 985; [2012] 1 All ER 903 at [44]:

9. [170]

   Secondly, in Lamru Pty Ltd v Kation Pty Ltd (1998) 44 NSWLR 432 at 435 it was noted that “a claim for mesne profits was in origin an action of trespass and was formerly brought after judgment for ejectment”. That proposition reflects subtleties which may not be immediately obvious to modern readers.

10. [171]

    As I see it, the issue arises because of two historical difficulties. The first is that it was said that there was a rule that “a possession in fact in the plaintiff … is necessary to support an action for a trespass”: Wilkinson v Kirby (1854) 15 CB 431 at 443; 139 ER 492 at 497. But that led to a fiction, “trespass by relation”, to the effect that when a person who has a right to possession enters onto the land the person is deemed to have been in possession from the moment when the right to possession accrued. Lord Brougham said of this in Carnegy v Scott (1830) VII Bligh NS 462 at 465; 5 ER 843 at 844:

11. [172]

    A separate difficulty was purely procedural. Speaking generally, it was not possible for an originating writ to plead more than one form of action. These days, statements of claim containing multiple causes of action – for example, claims in contract and negligence – are so typical that it can be difficult to appreciate that that is a relatively modern development in the history of the common law. Yet J Chitty and T Chitty, Chitty on Pleading (Sweet and Stevens, London, 1836) at 201 referred to the “general rule, that actions in form ex contractu cannot be joined with those in form ex delicto. Thus assumpsit cannot be joined with case, or trover, nor trover with detinue”. Examples may be seen in Corbett v Packington (1827) 6 B & C 268 at 271-273; 108 ER 451 at 453. That led to an entirely procedural problem, because the action for mesne profits was distinct from and dependent upon an action for ejectment to recover possession.

12. [173]

    Thirdly, there was a series of procedural responses to that procedural difficulty. The earliest was the Recovery of Possession by Landlords Act 1820 (1 Geo 4, c 87). One leading guide to practice at common law, R Lush, The Practice of the Superior Courts of Law at Westminster (C Reader, London, 1820), devotes six pages to this statute and, especially, the circumstances in which it did not apply: at pp 833-838. Essentially, it entitled a landlord to obtain a jury’s verdict not merely on possession but also on mesne profits at the same trial, by permitting “the Plaintiff on the Trial, after Proof of his Right to recover Possession of the Whole or of any Part of the Premises mentioned in the Declaration, to go into Evidence of the Mesne Profits thereof, which shall or might have accrued from the Day of the Expiration or Determination of the Tenant's Interest in the same, down to the time of the Verdict given in the Cause” in which case “the Jury on the Trial, finding for the Plaintiff, shall, in such Case, give their Verdict upon the whole Matter, both as to the Recovery of the Whole or any Part of the Premises, and also as to the Amount of the Damages to be paid for such Mesne Profits”. To anticipate what follows, s 12 albeit in somewhat modified form, derives from that statute.

13. [174]

    Later Georgian statutes gave other advantages to landlords, including an entitlement to waive the right to mesne damages and obtain by way of penalty double the yearly value of premises for the period in which the tenant held over: see Chitty on Pleading, pp 193-194. This legislation further illustrates the role played by statute in overcoming the difficulties mentioned above.

14. [175]

    The mid-nineteenth century reforms to the common law courts took a more general approach, and very substantially did away with the old rule. Instead there was a general entitlement for a single proceeding to join multiple related causes of action. The descendants of these provisions were discussed in Nguyen v Rickhuss [2023] NSWCA 249 at [34]-[40]; see also Cassaniti v Ball as liquidator of RCG CBD Pty Limited (in liq) (2022) 109 NSWLR 348; [2022] NSWCA 161 at [45]. That gave rise to a question whether the general entitlement was supplemental to the previously enacted special entitlement to include an action for mesne profits upon an action for ejectment, or in the alternative. Initially, the latter course was taken.

15. [176]

    The result was that s 41 of the Common Law Procedure Act 1852 (15 & 16 Vict c 76) provided that “Causes of action, of whatever kind, provided they be by and against the same parties and in the same rights, may be joined in the same suit; but this shall not extend to replevin or ejectment …”, while s 214 preserved the special entitlement on the part of a landlord to seek to recover mesne profits at the trial of an action for ejectment.

16. [177]

    Fourthly, many English statutes were copied in the colony of New South Wales. Therry recorded that part of the duty of colonial Attorneys General was “to attend to the Acts of each session of the British Parliament, and apprise the local Government of such measures as might advantageously be adopted and declared to extend to New South Wales”: R Therry, Reminiscences of Thirty Years’ Residence in New South Wales and Victoria (facsimile of 2nd ed 1863 published 1974, Sydney University Press), p 316. The same pattern may be found in ss 37 and 165 of the Common Law Procedure Act 1853 (NSW). Section 37 was relevantly in identical terms to s 41 reproduced above, while s 165 was relevantly identical to s 214.

17. [178]

    Faucett J explained the change effected by s 165 of the Common Law Procedure Act in Lee v Blakeney (1887) 8 LR (NSW) 141 at 145:

18. [179]

    Fifthly, a potential difficulty for modern readers arose in 1899, as part of the consolidation of New South Wales statutes. It will be recalled that the large majority of statutes enacted between 1897 and 1902, including the Real Property Act 1900, the Crimes Act 1900 and the Wills, Probate and Administration Act 1898, were part of the consolidation: see Ghamrawi v R (2017) 95 NSWLR 405; [2017] NSWCCA 195 at [71]. In that process, the two provisions of the Common Law Procedure Act were separated. Section 37 became s 49 of the Common Law Procedure Act 1899 (NSW), and preserved the exception for ejectment:

19. [180]

    However, s 165 of the Common Law Procedure Act 1853 was re-enacted in a separate statute, as s 12 of the Landlord and Tenant Act 1899 (NSW):

20. [181]

    Section 12(2) required the jury to give their verdict both on the recovery of possession and for any mesne profits, and concluded that “in such case the landlord shall have judgment within the time hereinbefore provided not only for the recovery of possession and costs but also for the mesne profits found by the jury”.

21. [182]

    Pausing there, that was the reason that Taylor J referred, in Minister of State for the Interior v RT Co Pty Ltd at 6, to the fact that “for many years it has been permissible in a number of jurisdictions for a landlord, after a holding over without consent, to combine a claim for mesne profits with an action of ejectment”. Taylor J was referring to the provisions first introduced in 1820, and re-enacted within the Common Law Procedure Acts in some jurisdictions, which in certain circumstances permitted an action for ejectment to be accompanied by an action for mesne profits. New South Wales had been one of those jurisdictions since no later than 1853. Incidentally, it seems that Western Australia was not, a point made in Broadway Pty Ltd v Lewis [2012] WASC 373 at [130]-[134]. Hence the discussion of the point in Hampton v BHP Billiton Minerals Pty Ltd [No 2] at [290]-[322] is inapplicable in New South Wales, at least to such cases as s 165 of the Common Law Procedure Act 1853 and s 12 of the Landlord and Tenant Act 1899 applied, as noted in Willoughby City Council v Roads and Maritime Services (2014) 201 LGERA 177; [2014] NSWLEC 6 at [130]-[132].

22. [183]

    Sixthly, regard must then be had to the effect of the enactment of judicature legislation. Of course, that occurred a century earlier in England than in New South Wales, but in both jurisdictions, the administrative fusion of common law and equity meant that mid-nineteenth century procedural reforms, which had resulted in the Common Law Procedure Acts, were replaced by a uniform procedure at common law and in equity. The English approach was found in the rules considered by Wills J in Dunlop v Macedo (1891) 8 TLR 43 to which I shall return. The New South Wales approach was more general. Part 8 r 1 of the Rules contained in Schedule 4 to the Supreme Court Act 1970 (NSW) provided that “A plaintiff may, in any proceedings, claim relief against the same defendant in respect of more than one cause of action”, with the rule going on to specify circumstances when the plaintiff might do so as of right failing which leave was required. Significantly, the exception in the case of replevin and ejectment (which had been found in the nineteenth century common law procedure legislation) was preserved in the English rules, but omitted in the New South Wales rules enacted a century later. The modern equivalent is r 6.18 of the Uniform Civil Procedure Rules:

23. [184]

    Seventhly, another change effected by the judicature system introduced by the Supreme Court Act 1970 was to eliminate the action for ejectment. The newly created NSW Law Reform Commission wrote that it would be “necessary to reconcile such Acts with the scheme which we propose”: NSWLRC Rep 7, para 20, and there was a series of deeming provisions in the new Supreme Court Act providing that references to ejectment were to obtaining possession (see for example ss 8, 79 and 92 as originally enacted). To the same end it was also necessary to amend s 12 of the Landlord and Tenant Act. As amended with effect from 1972, s 12 provided:

24. [185]

    Eighthly, s 12 remained in force until 2020. The Fair Trading Legislation (Repeal and Amendment) Act 2015 (NSW) inserted s 1D into what survived of the Landlord and Tenant Act 1899 and the new section provided that the latter statute would be repealed in five years time. The result is that s 12 was repealed five years after the date s 1D commenced, which is 30 June 2020, in the antepenultimate year of the reign of Queen Elizabeth II, precisely two centuries after its English ancestor had been enacted in the first year of the reign of her great great grandmother’s uncle, George IV.

25. [186]

    But s 12 was not required after it became possible, in 1972, to include a claim for mesne profits in what was now called a claim for possession in the same originating process.

26. [187]

    Section 12 of the Landlord and Tenant Act 1899 was also potentially a trap, because it did not apply to all claims for mesne profits. Section 12 applied only to claims by landlords. Section 6A (which was also introduced in 1972) defined landlord to include a lessor, but that does not advance the matter greatly. As Macready M pointed out (and as had been pointed out by Lush more than two centuries ago), not every claim by a landowner will be a claim by a landlord: Oliveri v Jones [1999] NSWSC 154 at [25]. In Richardson v Pedler [2001] NSWSC 221 at [46]-[48], Macready M said, in obiter, that there was no pre-existing relationship of landlord and tenant in the case of a son who had obtained letters of administration and sought the remedy against the de facto wife of the deceased. That must be so, and it illustrates the difficulty in relying on what was an earlier and less general and indeed superseded procedural provision, rather than the more general changes effected by the judicature legislation.

27. [188]

    In my view, the numerous cases in which executors and administrators have obtained mesne profits against widows, widowers and children who continue in possession of land devised to others are correct (see for example, in addition to the six examples mentioned by Ward CJ in Eq at [85], Finlay v Tucker [2015] NSWSC 560 at [118]-[120]; Smith v Smith [2011] NSWSC 938 at [33]-[34]; Angius v Salier [2019] NSWSC 184; Mao v Peddley [2001] NSWSC 254 at [116]-[117]). Although it is true that no reference was made to Minister of State for the Interior v RT Co Pty Ltd, that decision has been inapplicable in New South Wales to claims by landlords since at least 1853, and more generally since 1972.

28. [189]

    An argument similar to that advanced by Marika was put by the defendant in Dunlop v Macedo. Wills J rejected the submission in terms which warrant extensive reproduction:

29. [190]

    The English rules of 1875 were slightly differently drawn from those enacted in New South Wales a century later. Order XVII r 1 generally permitted a plaintiff to bring two causes of action in a single proceeding. Rule 2 imposed a qualification: that no cause of action without leave should be joined to an action for the recovery of land. However, rule 2 itself contained an exception: “except that claims in respect of mesne profits or arrears of rent in respect of the premises claimed, or any part thereof, and damages for breach of any contract under which the same or any part thereof are held”. The New South Wales rules are simpler and more general: they provide generally that multiple causes of action may be joined in the one originating process. And it is to be recalled that when enacted as a schedule to the Supreme Court Act, they have the force of primary legislation.

30. [191]

    Subject only to that qualification concerning the difference in rules, I respectfully agree with the reasoning in Dunlop v Macedo which is applicable in New South Wales after 1972. Dunlop v Macedo was referred to by Taylor J, without criticism, in Minister of State for the Interior v RT Co Pty Ltd.

31. [192]

    Section 12 of the Landlord and Tenant Act 1899 was in my opinion preserved unnecessarily following the conferral of a general entitlement on a plaintiff to sue for both possession and mesne profits in the same originating process by Pt 8 r 1 of the new Supreme Court Rules which came into effect in 1972. Nothing turns on its belated repeal in 2020. Jim was entitled to sue for possession and mesne profits in the same cross-claim, in accordance with r 6.18 (the successor to Pt 8 r 1 which was picked up and made applicable to cross-claims by r 9.1(3)). When he ultimately obtained possession in February 2024, that related back until he was first entitled to possession, which in light of the grant of probate to which he is entitled, is the date of Rebeka’s death.

32. [193]

    It follows that I accept Jim’s submission that what was said in Richardson v Richardson as to the unavailability of mesne profits must be regarded as per incuriam. To be fair, there is nothing to suggest that the Court was taken to s 12, nor to any of the historical matters mentioned above, nor to the fact that both Taylor J in Minister of State for the Interior v RT Co Pty Ltd or Edelman J in Hampton v BHP Billiton Minerals were dealing with cases where statute had not intervened.

33. [194]

    Had the claim been pressed, I would have ordered mesne profits against Marika.

Conclusion and orders

1. [195]

   For those reasons, there should be a grant of probate in solemn form in favour of Jim, Marika’s summons should be dismissed and Jim’s cross-claim should otherwise be dismissed. I indicated at the conclusion of the trial that I would permit the parties to be heard on the form of orders, including as to costs. Accordingly, the only orders I shall make are the following: