Erem v Moussa

1. [1]

   These proceedings concern a dispute between the plaintiff, Mr Ali Erem (the plaintiff or Ali) the de facto spouse of the late Ms Mary Moussa (the deceased or Mary), who died on 23 October 2015, and the first defendant, Ms Marcel Aziz Moussa (Marcel), a sister of the deceased and a beneficiary under each of the deceased’s wills made in 1993, 2014 and 2015. Ali challenges the validity of the wills made in 2014 and 2015, on the basis that the deceased did not have testamentary capacity. He initially challenged the 1993 will but abandoned that claim during the hearing.

2. [2]

   Ali also contends that the deceased did not have the mental capacity as at 30 October 2014 to sever the joint tenancy of a property at 6 McPherson Street, Carlton, New South Wales (McPherson St property), which she jointly owned with him, and brings a claim that if the severance was effective the deceased, and her estate, are precluded under the principles of equitable estoppel from severing it. Ali also brings, in the alternative, claims for a resulting trust in respect of the property and a claim under s 59 of the Succession Act 2006 (NSW) that whichever will is admitted to probate, it does not make adequate provision for him.

3. [3]

   On 13 December 2017, the Court appointed the plaintiff as administrator pendente lite of the personal estate and receiver of the real estate of the deceased until a grant of administration is made or further order of the Court, with limited powers.

4. [4]

   The NSW Trustee and Guardian, which is named as the executor and trustee under the 1993 will, has filed a submitting appearance and took no part in the proceedings. It has indicated its willingness to act as executor if the 1993 will is the only valid will.

5. [5]

   During the hearing the parties referred to the plaintiff, the deceased and members of her family by their first names, and I will mostly do so in these reasons, without meaning any disrespect or overfamiliarity.

Issues

1. [6]

   The issues for determination are as follows:

   1. (1)

      Whether Mary had the requisite testamentary capacity at the time she signed the 2015 will or the 2014 will;

   2. (2)

      Whether Mary lacked the requisite mental capacity to sever the joint tenancy with Ali of the McPherson St property;

   3. (3)

      If the joint tenancy was severed, whether the defendants are estopped by the conduct of Mary from denying that Ali is the legal owner of the McPherson St property;

   4. (4)

      If the defendants are not estopped, whether Ali has a resulting trust over Mary’s share of the McPherson St property;

   5. (5)

      If the 2014 will is held to be valid, should it be rectified pursuant to s 27(1) of the Succession Act;

   6. (6)

      In the alternative, whether an order for provision pursuant to s 59 of the Succession Act should be made in favour of Ali.

Witnesses

1. [7]

   Ali, the plaintiff, made eight affidavits and was cross-examined for a little over two days. No challenge was made to his credit. I formed the view that Ali had a good recollection of the key events, and sought to give truthful and accurate evidence. While I recognise that he has a degree of self-interest, particularly in relation to his evidence of his conversations with Mary, I regard him as a reliable and honest witness.

2. [8]

   Ali called the following lay witnesses who had been friends of the deceased who each made one affidavit: (a) Dule Baturan and his wife, Velenka Vanovac, each of whom had known Mary since around 2008; (b) Birsen Erem, the sister of Ali, who had known Mary since 1987; (c) Laurette Refalo who knew Mary in the period from around 1993 to late 2013; (d) Julie Knox (Ms Knox), who had known Ali and Mary since the early stages of their relationship being a close friend of Ali’s family and was the manager of the nursing home where Mary resided at the end of her life. Of these witnesses, only Birsen Erem and Laurette Refalo were cross-examined and then only briefly. They gave uncontroversial evidence regarding their relationship with Mary. I accept them as reliable and honest witnesses.

3. [9]

   Ms Knox had passed away on 18 October 2020 and therefore was unavailable to give evidence. As a notice was given under s 67 of the Evidence Act 1995 (NSW), it was not in dispute that Ms Knox’s affidavit was admissible hearsay evidence pursuant to s 63 of the Evidence Act.

4. [10]

   In addition, the following medical practitioners were called by Ali, each of whom was cross-examined:

5. [11]

   They each gave careful and truthful evidence.

6. [12]

   Marcel gave evidence by her two affidavits. She was not cross-examined.

7. [13]

   Marcel has three children, Sandra Alnabulsi, Anmar Nabolsy and Nawras Alnabulsi. They each gave evidence by affidavit, but none was cross-examined.

8. [14]

   These witnesses gave evidence about their relationship with Mary over many years. None of them has visited Australia and all had limited dealings with Mary in the critical period from May 2014 to her death. While I have carefully considered their evidence, I have found it to be of limited assistance in determining the issues in this case.

9. [15]

   Mr Timothy Young (Mr Young), the solicitor who prepared Mary’s 2014 will and Mr Robert Windeyer (Mr Windeyer), the solicitor who prepared Mary’s 2015 will, each gave evidence by affidavit and was cross-examined. Also, the two other attesting witnesses for these wills made affidavits, one of whom, Ms Scholtz, was cross-examined. They each gave careful and truthful evidence.

10. [16]

    Pursuant to orders of the Court made on 24 February 2022, the following experts were jointly engaged by the parties (neither of whom had met Mary):

11. [17]

    Each of them provided an expert report and was cross-examined.

Approach to evidence

1. [18]

   Much of the evidence in this case comprised the recollection of the plaintiff and other witnesses of conversations and dealings which occurred many years ago, including with Mary who obviously is not available to give her version of those events. I have borne in mind the well-known observations of McLelland CJ in Eq regarding the fallibility of human memory in Watson v Foxman (1995) 49 NSWLR 315 at 318:

2. [19]

   The fallibility of human memory and the risk of reconstruction rather than recollection of past conversations, is particularly acute in circumstances where the relevant witnesses have been in litigation on the matters about which they give evidence. In Crouch v Hooper (1852) 16 Beav 182 at 184-185; 51 ER 747 at 748, Sir John Romilly MR said:

3. [20]

   Black J referred to the need to bear in mind a witness’ motives and the overall probabilities in Re Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7] as follows:

4. [21]

   The following observations of Hammerschlag J (as his Honour then was) in John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 at [94]-[95] are of particular relevance to the plaintiff’s estoppel claim:

5. [22]

   I have also borne in mind that:

   1. (1)

      Reliable contemporaneous documents generally furnish the most reliable source of evidence as to what occurred or, at the very least, provide a generally reliable reference point from which to assess the reliability of witness testimony: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15 at [15]-[16]; Et-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24 at [25]-[29] (and cases there cited);

   2. (2)

      In a claim based on communications with a deceased person the Court will treat uncorroborated evidence of such communications with considerable caution, and will regard of particular significance any failure of the claimant to bring forward corroborative evidence which was, or ought to have been, available: see Eggins v Robinson [2000] NSWCA 61 at [26].

   3. (3)

      When the law requires the proof of any fact the Court must feel an actual persuasion of its occurrence or existence before it can be found, and ‘it cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality’: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, per Dixon J at 361.

   4. (4)

      While the affidavit of Ms Knox, who died before the hearing, was read without objection, it needs to be discounted to take into account the fact that she was not cross examined. The degree to which it will be discounted depends on various factors, including the circumstances that lead to cross-examination being dispensed with, the nature of the evidence and its centrality and degree of significance to the case. The degree of discount appropriate will be judged according to all the circumstances of the case: Re O’Neil, (dec’d) [1972] VR 327 at 333; Citibank Ltd v Liu; ABN Amro Bank Ltd v Liu [2002] NSWSC 886 at [5]; Fulton v Fulton [2014] NSWSC 619 at [111].

6. [23]

   Having regard to these principles, I will give greatest weight to the contemporaneous documents, other objective factual surrounding material and the inherent probabilities and improbabilities.

Factual Chronology

1. [24]

   The deceased was born in Cairo, Egypt on 15 December 1948 (as recorded on her Australian passport). She had two sisters, Marcel (the first defendant, who is also known as Marcel Aziz Alnabulsi) and Ms Madeline Moussa (Madeline). Each was named as a beneficiary under Mary’s 1993, 2014 and 2015 wills. At all relevant times, Marcel has lived in Damascus, Syria, which is her place of residence. Madeline emigrated to Australia in 1973 and lives in Sydney.

2. [25]

   The deceased emigrated to Australia in 1970 with her then husband, Mr Tadros Helmi. The deceased and Mr Helmi were divorced by the time she met Ali in 1986. Ali was born in Cyprus on 14 August 1950 and emigrated to Australia in April 1970. He had a previous marriage that commenced in 1982 and ended in divorce in 1987 following a separation in 1985. In 1986, he obtained accreditation as a Turkish/English language interpreter. He has in the past been employed in a number of positions with the Department of Social Security and the Department of Immigration, and at the time of the hearing was working part-time as an interpreter.

3. [26]

   Ali and the deceased commenced living together in around May or June 1990 partly at his home at 47 Veron Street, Wentworthville and partly at her unit located at 14/22-26 Garfield Street, Carlton NSW, where he still resides (Garfield St property). They commenced living full time together at the Garfield St property in 1998. There is no dispute that the plaintiff and the deceased were living together in a de facto relationship from around 1990 until her death in October 2015 with the Garfield St property as their home since 1998. In around 1991 Mary became pregnant but she suffered a miscarriage. Ali was the father.

4. [27]

   Ali’s evidence is that he lived with the deceased for the majority of their relationship in the Garfield St property and for most of their relationship, he paid most of their living expenses. Mary had difficulties with English, and could not read or write English well, especially when the language was technical. She did not complete any tertiary education in Egypt or Australia and the roles she had in the workforce were unskilled (initially at Kodak as an operator packing prints of photographs for around 10 years, and later as a sales assistant in retail, including latterly at Target). Ali’s evidence is that throughout their relationship he dealt with anything complex that needed writing on her behalf.

5. [28]

   Mary executed a will on 30 June 1993 (the 1993 will) in the presence of two witnesses. Under that will she revokes her previous wills, appoints the Public Trustee as the executor and trustee of her estate and makes the following dispositive gifts:

6. [29]

   The reference in this will to the appointment of the Public Trustee is to be read as a reference to the NSW Trustee and Guardian: see paragraph 3(1)(d) of Schedule 1 to the NSW Trustee and Guardian Act 2009 (NSW). By paragraph 11 of Schedule 1 to that Act, the NSW Trustee and Guardian is to be taken, for all purposes, to be a continuation of the Public Trustee. The NSW Trustee and Guardian is constituted as a corporation by s 5 and has the status of a NSW government agency by s 6 of the NSW Trustee and Guardian Act.

7. [30]

   There is no clear explanation in the evidence for why Mary made no provision for Ali in this will, but the likely explanation is that their relationship was in its early stages at that time, and she wished to benefit her sisters. Ali did not know about this will until after Mary’s death and had during their relationship assumed that Mary did not have a will.

8. [31]

   In August 1993 Mary went to Egypt and the Middle East for a holiday, without Ali. She stayed in Damascus with her sister, Marcel, for around three months. Marcel deposes that she and Mary had a ‘special relationship’, as Mary was the only member of her family who kept in contact with her after she married her husband, Mamoun Analbusi, who was from a different religion. Mr Analbusi died in 2017.

9. [32]

   Mary visited Marcel’s family again in 2002, staying for around two months, in order to support Marcel who was having treatment for breast cancer and to attend the university graduation of Marcel’s daughter, Sandra. She remained in regular contact with Marcel and members of her family (principally Sandra) for the rest of her life, by telephone and short emails as she did not visit them again. The war in Syria, which commenced in 2011, made it impractical for her to visit Marcel or for Marcel to come to Australia from that time. Sandra deposed that the first time she or Marcel became aware that Mary was in a relationship with Ali was when Mary told Sandra that in late 2014. Mary made some financial contributions towards the education of two of Marcel’s children, Sandra and Anmar. There are a number of emails in evidence from Mary to Marcel and Sandra in the period 2010 to 2014 which display Mary’s affection for them both. Ali deposed that he sent these emails after typing them on his computer to record what Mary told him to say, as Mary did not have the English language or typing skills to do so herself. I accept Ali’s evidence on this.

10. [33]

    In around 2001, Mary was diagnosed with breast cancer, resulting in surgery and chemotherapy.

11. [34]

    Throughout her relationship with the plaintiff, the deceased had a number of workers compensation claims against Kodak, her previous employer, and subsequently against Target where she worked from around 1995 until 2010 when she was dismissed. Her solicitor for the latter matter was Mr Timothy Young, who later prepared a will for Mary in 2014.

12. [35]

    Ali deposed that in 2001 Mary expressed an interest in buying jointly with Ali a house at 25 McPherson Street, Carlton to be their permanent home. They inspected the property and liked it, but due to her treatment for her breast cancer decided not to pursue it. Over the next six years they continued to look for properties in the same area and had discussions about how they would fund the purchase. Mary told him that she would sell her unit at 18/42 President Avenue, Kogarah (the Kogarah unit referred to in her 1993 will) and use the sale proceeds as her contribution and he would have to pay the rest of the purchase price and the expenses. Ali deposed that he undertook various repair and maintenance work to upgrade the Kogarah unit which was ultimately sold in April 2006.

13. [36]

    In early November 2007 Ali had a heart attack requiring hospitalisation for four or five days.

14. [37]

    On 17 November 2007, Ali and Mary attended the auction of the McPherson St property which was close to the Garfield St property where they lived. They both wanted to buy it. Ali deposes to a conversation with Mary before the auction started in which they discussed the maximum they could pay, which was $650,000, with Mary saying that all that she could contribute was $290,000. They then had a conversation to the following effect:

15. [38]

    Ali bid at the auction but was unsuccessful. An hour later he was contacted by the agent and told that the first buyer had reneged and was offered the property. After discussing it again with Mary who said that she wanted it, Ali paid the deposit in part that day and the balance by bank cheque on the following Monday, 19 November 2007. The purchase price under the contract, which is dated 19 November 2007, was $700,500. Settlement occurred on 10 March 2008, at which time title to the property was transferred to them as joint tenants.

16. [39]

    I am satisfied on the evidence that:

    1. (1)

       Ali paid the deposit of $70,050.

    2. (2)

       Mary contributed a total amount of $287,000 towards the purchase price and stamp duty on the contract of $27,014.50 (most likely sourced from her sale of the Kogarah unit). Ali subsequently reimbursed Mary for the stamp duty in January 2010 by a payment to her of $30,000 by bank cheque (which was slightly more than the amount she had originally paid to take account of interest in the interim).

    3. (3)

       Ali and Mary entered into a loan agreement with Citigroup Pty Ltd (Citibank) under which Citibank lent to them as joint borrowers the amount of $375,000 to pay the balance of the purchase price, and other costs associated with settlement of the mortgage.

    4. (4)

       Ali paid the costs and disbursements of Willis & Bowring, the solicitors acting for him and Mary on the purchase, amounting to $2,040.10.

17. [40]

    All interest on the Citibank loan was paid by direct debit to Ali’s bank account with St George Bank, totalling $43,937.10. In November 2009, after Ali had sold another property he owned at 45 Veron St, Wentworthville, he paid $378,761.40 to Citibank from the proceeds of sale to discharge the loan in full. In addition Ali paid other amounts in respect of the property: $510.34 for insurance, $1,438.10 for land tax and $1,580 for the cost of renovations and maintenance.

18. [41]

    The decision that Mary and Ali made that they would hold title to the McPherson St property as joint tenants was a considered one. Ali deposed to a meeting (in around late November 2007) with Ms Sharon Edwards, a licensed conveyancer who was employed by Willis & Bowring, their solicitors, at which she explained to them both the difference between tenants in common and joint tenants. She also sent to them for their signature a document entitled ‘Instructions on Tenancy’ in which they elected which alternative was to apply. They subsequently signed that document on around 2 December 2007, electing to take the title as joint tenants.

19. [42]

    The ‘Instructions on Tenancy’ document describes the two different forms of co-ownership as follows:

20. [43]

    Their signatures appear underneath that paragraph. The words ‘joint tenants’ are circled.

21. [44]

    Ali deposes to conversations with Ms Edwards in the meeting and then with the deceased subsequently in which they discussed which form of co-ownership would apply. I am satisfied from this evidence, and her signature on the Instructions on Tenancy document that Mary understood the significance of acquiring title as a joint tenant and intended to do so.

22. [45]

    I also accept Ali’s evidence that at the time of the purchase, both he and the deceased intended that the McPherson St property would become their home after some renovations were done to it. On 3 January 2008, they each signed an application for exemption from mortgage duty which stated that ‘we [live/proposes to live] in the property’. Ali deposes to conversations from around 2006 in which they each said they would sell other properties which they owned (in her case, the Kogarah unit and in his, his home in Veron Street, Wentworthville) to fund the cost of purchasing a property to be their home. Also, Laurette Refalo gave evidence that Mary told her about the purchase of the property in November 2007 and took her and her husband to see it in April 2008, from which I infer that, at that time, she still contemplated living there with Ali.

23. [46]

    Ali’s affidavit evidence, on which he was not cross-examined, was that he had several conversations with Mary at this time, in which she said words to the effect that the McPherson St property would pass to Ali upon her death: see [37] and [250]. This was the foundation of his case on estoppel.

24. [47]

    Ali also gave evidence from the time of its acquisition, that he paid most of the outgoings of the McPherson St property and also undertook repairs and maintenance on the property, including repairs to the ceilings, cornices, walls, windows and floors, painting the walls, at various times.

25. [48]

    In 2010, the deceased was dismissed from her employment at Target. She brought an unfair dismissal claim against Target, and also made a workers compensation claim arising out of an injury she suffered as a result of a fall on the way to work in 2009. Mr Timothy Young was the solicitor who acted for her in relation to these matters. She was unsuccessful in her unfair dismissal claim but did receive payments from WorkCover and under her insurance policy for her injury. She did not work again after 2010.

26. [49]

    On 29 May 2014, Mary was diagnosed with stage four glioblastoma, a form of brain cancer and was told by her surgeon, Dr Bernard Kwok, that her life expectancy was likely to be between 18 months and three years. Prior to this diagnosis, Ali viewed Mary as fit and healthy, and expected her to outlive him. On 4 and 11 June 2014, the deceased underwent two operations performed by Dr Kwok to remove the tumour and from that time commenced a course of chemotherapy. Mary’s treating oncologist was Dr Elizabeth Hovey, who gave evidence in these proceedings and provided a report on 10 November 2016.

27. [50]

    On 11 July 2014, Mary had her first consultation with Dr Hovey who reported that:

28. [51]

    Dr Hovey’s report summarised her physical examination of Mary as follows:

29. [52]

    Later in the report is an addendum which states that on 15 July 2014, Mary was reviewed by the consultation liaison psychiatry team, during which it was observed that Mary ‘appeared to be using defensive strategy of repression or possible denial as her coping mechanism.’

30. [53]

    On 13 August 2014, Mary had her next consultation with Dr Hovey, who recorded in her report that (emphasis added):

31. [54]

    Dr Hovey reports on her physical examination of Mary relevantly as follows:

32. [55]

    On 22 August 2014, Mary had another consultation with Dr Hovey, who reported on her physical examination of Mary relevantly as follows:

33. [56]

    Dr Hovey’s report of this consultation includes an addendum which refers to an incident occurring on 27 August 2014 in the radiotherapy department of Price of Wales Hospital as follows (emphasis added):

34. [57]

    On 22 August 2014, Mary met with Dr Swapnil Sharma, a psychiatrist at Prince of Wales Hospital together with Ali. Dr Sharma reported on the consultation in an email to Dr Hovey (who had requested the review by Dr Sharma), including the following observations regarding Mary (emphasis added):

35. [58]

    The reference to an ‘adjustment disorder’ was to the fact that Mary was adjusting to her diagnosis of an incurable illness with a short prognosis by displaying grief and anxiety. Dr Fisher explained in cross-examination that to qualify as a ‘disorder’, the condition had to be out of proportion to the nature of the stress which caused it.

36. [59]

    Dr Sharma saw Mary twice again in September 2014, with Ali present, and recorded his observations on Mary’s mood and behaviour in emails to Dr Hovey as follows (emphasis added):

37. [60]

    In September 2014, Mary had two consultations with Associate Professor Robert Smee, a radiation oncologist at Prince of Wales Hospital, attended by Ali. He reported to Mary’s GP on each occasion with the following observations regarding Mary’s mood and behaviour (emphasis added):

38. [61]

    On 22 September 2014, Mary had another consultation with Dr Hovey. Dr Hovey’s report records that Mary’s mood had stabilised, and referred to a change of her medication for depression from Pregabalin to Lexapro (Escitalopram). Dr Hovey also records her physical examination relevantly as follows:

39. [62]

    On 3 October 2014, Mary and Ali met again with Mr Timothy Young, who had previously acted in her workers compensation cases. He estimates that he met with her on over 25 occasions during the period 2010 to mid-2012 in connection with that matter. Ali had telephoned Mr Young on 3 June 2014 to inform Mr Young that Mary had a brain tumour for which she was to have surgery and had been told by staff at the hospital to make a power of attorney and various care documents and a will. Ali was not aware at this stage that Mary had previously made a will, and it appears that Mr Young was never informed of this either. The delay in arranging the conference with Mr Young was caused by Mary’s ongoing radiotherapy and chemotherapy treatment.

40. [63]

    Prior to the meeting, Mr Young provided to Ali drafts of a power of attorney, a power of enduring guardian and an advanced care directive. They were signed by Mary at the meeting on 3 October 2014. Mr Young’s evidence is that he explained the documents to her before she signed them, but she did not read the documents before she signed them. During the meeting Mr Young asked Mary about her assets and the persons who were to be named as beneficiaries in her will. She told him that her assets were bank accounts with the Commonwealth Bank, Westpac Bank and St George Bank, a superannuation account with REST, the Garfield St property and the McPherson St property which she owned with Ali.

41. [64]

    As to her will, Mr Young’s file note of the meeting on 3 October 2014 records, in his handwriting, that her instructions to him were:

42. [65]

    There is no mention in the file note of the McPherson St property. However, there was a discussion at the meeting of severance of the joint tenancy. Mr Young’s evidence is that he explained the significance of the severance to Mary during the meeting on 3 October 2014 and said that to achieve it, it would be necessary for them both to sign a ‘Land Title form’ which would then need to be lodged with the Land Titles Office together with the title deed. He accepted in cross examination that he has no file note that he explained the significance of the severance to Mary or that she acknowledged that she understood it. However, I accept his evidence that he did do so (see [144] below).

43. [66]

    The meeting concluded on the basis that Mary and Ali would come back for a further meeting in the following week to finalise the will.

44. [67]

    Mr Young deposed that between 6 and 7 October 2014 he emailed a draft will to Ali for Mary to review. Ali cannot recall seeing a copy of a draft will before 10 October 2014, and neither of them has a copy of any email in the period 3 to 10 October 2014.

45. [68]

    Mr Young’s file contains a copy of a draft of the will which reflects Mary’s instructions recorded in Mr Young’s file note and set out at [64] above, together with handwriting on it which is explained at [146]-[147] below.

46. [69]

    Mr Young has a file note dated 7 October 2014, which records that ‘Mary advised/requested change of title deed to tenants in common in equal shares’.

47. [70]

    On 10 October 2014, Mr Young had a second meeting with Ali and Mary. Both Ali and Mr Young gave evidence about the meeting. Prior to the meeting, Ali says that he had talked with Mary about her will outside in a coffee store. It seems likely that this was a discussion regarding the draft will referred to above under which Ali would take the residue of the estate including Mary’s interest in the McPherson St property following severance of the joint tenancy.

48. [71]

    At this meeting, Mary and Ali both signed a document severing the joint tenancy over the McPherson St property (the Severance) and Mary signed a new will dated 10 October 2014 (the 2014 will) in the presence of Mr Young and Tina Song. The Severance was registered on 17 October 2014.

49. [72]

    Under the 2014 will, Mary revokes all her previous wills, appoints Ali as the executor and trustee of the will and makes the following dispositive gifts:

    1. (1)

       Directs that the Garfield Street property be sold and the proceeds given to ‘my sister Marcel Aziz Moussa, wife of Mamoon Nabulsi’ (cl 2).

    2. (2)

       Gives $200,000 to ‘my nephew Steven Ibrahim’ and by cl 4 she gives ‘my share of my house at 6 McPherson Street Carlton to my nephew Steven Ibrahim’ (cl 3).

    3. (3)

       Gives $100,000 to ‘my sister Madeline Moussa’, to be paid in equal instalments of $10,000 over ten years (cl 5).

    4. (4)

       Gives the residue of her estate to ‘my husband Marcel Aziz Moussa for his use and benefit absolutely’ (cl 6).

50. [73]

    On 13 October 2014, Dr Sarah Bishop, a radiation oncology registrar at Prince of Wales Hospital, reviewed Mary and recorded in a letter to Dr Hovey as follows (emphasis added):

51. [74]

    Dr Hovey’s evidence in cross-examination was that Dr Bishop’s observation that Mary could not perform a 3-step command indicates that Mary was not able to think in a sophisticated manner at that time. Dr Hovey explained the significance of the dosage of dexamethasone, a steroid to reduce the swelling around the tumour, is that it was a necessary drug to treat the tumour but one of its side effects was that it adversely affected her mood and increased her insomnia and anxiety with a detrimental effect on her relationships.

52. [75]

    On 18 October 2014, Mary had a further MRI brain scan which showed an increased volume of solid tissue in the critical area of her brain which was stated in the report to be ‘suspicious for tumour progression’. Mary went to see Dr Hovey on 21 October 2014, during which Dr Hovey discussed the results of the scan with her after conducting a physical examination. Dr Hovey’s report of the consultation records in relation to the physical examination relevantly:

53. [76]

    Dr Hovey’s report then continued:

54. [77]

    Dr Hovey’s report included an addendum which states that: ‘Mary was reviewed by Dr Reddy, Neurosurgeon. In the interim, we have decided to give her the benefit of the doubt and treat this change as pseudoprogression and continue with the standard Stupp protocol and reimage her in December (or sooner if there is symptomatic deterioration)’.

55. [78]

    On 21 November 2014, Mary had her next consultation with Dr Hovey, whose report states the results of her physical examination relevantly as follows:

56. [79]

    On 17 December 2014, Mary met again with Dr Hovey who records in her report the following about her mood:

57. [80]

    Dr Hovey’s report describes her physical examination of Mary relevantly as follows:

58. [81]

    Around Christmas Day 2014, Mary and Ali had an argument in which she became aggressive towards Ali and required him to leave the apartment. He went to stay with his sister Askin until Mary finally allowed him to return on 19 or 20 January 2015. Ali deposes that the cause of the argument was that Ali had received a text from Mary’s niece, Sharon (who is Madeline’s daughter), sending Christmas greetings and had responded thanking her and wishing greetings to her and her husband. Mary discovered this a few days later when she looked at his phone, and she said to Ali ‘You have spoken to my worst enemy. Get out of my house. I have told you not to contact Sharon’ and ‘You are evil you bastard. Get out.’ It was true that Mary had previously told him not to contact Sharon, although he did not know why Mary had taken objection to Sharon. Mary then became violent, throwing things around the apartment and when he tried to calm her down, she physically attacked him by trying to scratch his face and hitting him with a shoe. Despite this, Ali maintained daily contact with Mary on the telephone in an endeavour to check that she was continuing to take her medications and looking after herself properly. Ali deposed to Mary’s poor compliance with, and inability to manage, her medications without assistance from him. The incident, and Ali’s patience and care for Mary over the ensuing period until he was able to return to live with Mary, is corroborated by the evidence of several other witnesses.

59. [82]

    For example, Dr Hovey refers to this incident in her notes of her consultations with Mary at Prince of Wales Hospital on 7 and 13 January 2015 (which Ali also attended). Dr Hovey’s report of the consultation on 7 January 2015 records:

60. [83]

    Mary had her next consultation with Dr Hovey on the following Tuesday, 13 January 2015 as planned. Dr Hovey’s report again referred to the breakdown of the relationship between Mary and Ali as follows:

61. [84]

    Dr Hovey’s report of that consultation describes her physical examination of Mary relevantly as follows:

62. [85]

    The report goes on to state that Dr Hovey had ‘strongly encouraged [Mary] to consider for her husband to move back in not only for the emotional support but also for the supervision of her complex medications’.

63. [86]

    Dr Hovey next saw Mary on 10 February 2015. Her report of that consultation records Mary’s relationship with Ali as having improved, noting:

64. [87]

    Dr Hovey records her observations of the results of her physical examination of Mary relevantly as follows:

65. [88]

    On 16 March 2015, Mary had an appointment with Dr Brindha Shivalingam, a Neurologist who was now advising her in relation to the treatment of her tumour (in place of Dr Reddy who had assisted previously following the retirement of Dr Kwok).

66. [89]

    Dr Shivalingam’s report of this consultation records that she had looked at all of Mary’s MRI brain scans and noted that ‘since about October 2014 there seems to be a definite recurrence which has largely remained stable’ and continues with the observation that:

67. [90]

    Dr Shivalingam states in her report that there were two pathways under consideration, the first being further surgery and the second further chemotherapy. After a subsequent consultation with Dr Hovey, they decided to embark on further surgery.

68. [91]

    At a further consultation with Mary on 30 March 2015, at which Dr Shivalingam advised about the nature of the proposed surgery and the risks, Mary decided to proceed, and the further operation took place on 7 April 2015.

69. [92]

    Mary was seen by Dr Hovey on 14 April 2015, shortly after the operation and Dr Hovey’s report records the following:

70. [93]

    On 12 May 2015, Mary had a consultation with Dr Siobhan O’Neill at the Prince of Wales Oncology Clinic (on behalf of Dr Hovey who was not available). Dr O’Neill’s report relevantly states:

71. [94]

    On 18 May 2015, Mary returned to see Dr Shivalingam, who recorded the following:

72. [95]

    On 5 June 2015, Mary, with Ali, attended an appointment with Dr Hovey, who recorded that her expressive dysphasia was worsening. In her record of the physical examination, Dr Hovey recorded ‘[Mary] was unable to tell me the days of the week backwards and struggled even with prompting… There was some receptive dysphasia evident during our examination as she found it difficult to follow instructions for the neurological exam’.

73. [96]

    Mary and Ali attended an appointment with Dr O’Neill (again on behalf of Dr Hovey who was unavailable) on 26 June 2015, and they were scheduled to return on 30 June 2015, however Mary refused to come, and Ali attended alone. Mary’s MRI imaging showed a recurrence of her cancer. In her record of the examination on 26 June 2015, Dr O’Neill stated (emphasis added):

74. [97]

    On 6 July 2015, Mary attended the offices of a law firm in Chatswood, Atkinson Vinden, without an appointment. She met with Mr Frank Windeyer. Mr Windeyer’s account of this meeting is outlined in his evidence below.

75. [98]

    On 8 July 2015, Mary had an appointment with Dr Shivalingam. Dr Shivalingam set out her observations of Mary at this meeting in her report as follows (emphasis added):

76. [99]

    On 13 July 2015, Mary executed a handwritten will (the 2015 will) in the presence of Mr Windeyer and Ms Carmel Scholtz. She did so in a meeting with Mr Windeyer which Ali attended (for part). Both Ali and Mr Windeyer gave evidence regarding the meeting. The 2015 will:

    1. (1)

       Revokes Mary’s previous wills (cl 1).

    2. (2)

       Appoints Ali as executor and trustee, with Marcel to be her executor if Ali is unable or unwilling to act as trustee (cl 2).

    3. (3)

       Gives the Garfield Street Property to her trustee to be sold and the net proceeds paid to Marcel (cl 3).

    4. (4)

       Gives Steven Ibrahim $400,000 (cl 4).

    5. (5)

       Gives $150,000 to her trustee on trust to be paid to Madeline in fortnightly instalments (cl 5).

    6. (6)

       Gives her share in the McPherson St property to Marcel (cl 6).

    7. (7)

       Gives any superannuation benefit received by her estate and her Telstra shares to Ali (cl 7 and 8).

    8. (8)

       Gives the residue of her estate to Marcel (cl 9).

77. [100]

    On 18 July 2015, Mary was admitted to Prince of Wales Hospital. The reason for her admission is recorded by Dr Hovey on 31 August 2015 in her report regarding her last appointment with Mary on 17 August 2015, which records (emphasis added):

78. [101]

    On 29 July 2015, Mary was transferred to a nursing home in Croydon. This was organised by Ms Knox, who was the residential manager of the nursing home, where one of Ali’s sisters worked and Mary lived there until her death.

79. [102]

    Ali had one or two conversations with Mr Windeyer on the telephone after Mary’s hospitalisation but does not recall the dates.

80. [103]

    On 23 October 2015, Mary died. On 30 October 2015 her body was cremated.

Mary’s delusions

1. [104]

   The evidence regarding Mary’s delusions needs to be considered in the context of the background of the evidence regarding her mental health.

2. [105]

   Mary had a long history of clinical depression and anxiety which is recorded in various medical reports prepared in connection with claims she made for workplace injuries. She worked for Kodak for around 10 years until 1984 and suffered a repetitive strain injury in her arms, shoulders and neck. In relation to her treatment for that injury, Dr Monir Younan, Consultant Psychiatrist, expressed the opinion in a psychiatric report dated 14 April 1989 that Mary was ‘suffering from severe anxiety state complicated by depressive symptoms’ and noted that she had frequent uncontrollable crying spells during the interviews he had with her. Dr Younan saw her on nine occasions over the period from July 1985 to April 1989.

3. [106]

   In a report made on 12 July 1989, Associate Professor Richard Jones, Director, Rehabilitation Medicine at Prince Henry Hospital, said that his physical examination of Mary confirmed ‘a very intense woman apparently overwhelmed by her multiple disabilities’ and that while he accepted she had muscular and ligamentous abnormalities which are perceived by her as being disabling, she had ‘apparent signs which are not organically based and are due to psychological reaction to her perceived disabilities’.

4. [107]

   In a report dated 26 March 1990, Dr James Bodell, an Orthopaedic Surgeon, issued a report in which he opined that Mary ‘undoubtedly has a very serious psychological problem, but there is no clinical evidence of any organic muscular-skeletal disorder which could account for her claimed level of disability’.

5. [108]

   In a report dated 29 May 1990, Dr Susan Spence, a Psychologist with the Badham Clinic, University of Sydney, opined that Mary ‘remains severely depressed and anxious’ and that treatment had been offered to her to deal with ‘depression and high levels of anxiety’.

6. [109]

   Ali gave evidence that when he first met Mary in around 1986, he found her to be attractive, highly sociable and to have a zest for life. Later, as he got to know her better, he found that while she appeared jovial, she had a lot of nervous energy, issues with pain and discomfort related to her workplace injury and she was very nervous. He gives examples in his evidence of occasions where she showed an inability to make any decision about even minor matters, such as purchasing furniture for her apartment which was almost bare when they first started their relationship, and would often become hysterical when she became agitated by something which disturbed her.

7. [110]

   He deposed that she regularly threw herself on the floor rolling like a child yelling in anger while she kicked her legs in the air, and that this continued for many years through their relationship. After this she would sit in a darkened room or lie in bed for hours in silence, with her knees draw up to her chest in a foetal position. His perception was that she never believed that anything was her fault and insisted that all bad things, as she perceived them were caused by others. Ali was not cross-examined on any of this evidence.

8. [111]

   Ali also deposed that from around mid-2013, Mary started to have difficulty expressing herself and this led to arguments with Ali in which she became angry because, as he put it, ‘she expected me to read her mind when she had difficulty in expressing herself’. He recalls one incident in May 2013 when she threw a coffee cup she was holding against the wall and started to cry. After the incident, Ali took his clothes and went to visit his sister for three weeks. Ali’s evidence regarding Mary’s change in behaviour from around 2012, including headaches, mood swings and aggression towards Ali is corroborated by Dale Baturan, Velenka Vanovac, Birsen Erem, Laurette Refalo and Ms Knox.

9. [112]

   In December 2013, she physically attacked Ali at their home. She also attacked him on 4 August 2014 in the early hours of the morning when she had a fit of rage and hit and scratched him on the hands and face and pulled his hair. On 27 August 2014, she had a violent altercation with him at Prince of Wales Hospital which is corroborated by Dr Hovey (see [56] above).

10. [113]

    On 18 July 2015, she attacked him while he was driving her to hospital for her final admission, narrowly avoiding oncoming traffic, which is corroborated by Dr Hovey’s report of her appointment with Mary on 17 August 2015.

11. [114]

    Ali gave evidence that Mary suffered a number of delusions from 2012 until she died. The one which is relevant for present purposes is that from mid-2014 following her diagnosis of a brain tumour, Mary started to blame Ali for her illness. He deposed that she said to him on many occasions from mid-2014 until her death ‘you put the cancer in my head’. That Mary blamed Ali for her brain cancer is corroborated by Dr Hovey’s report of 13 August 2014, Associate Professor Smee’s report of 8 September 2014 and the affidavit evidence of Ms Vanovac (mid-2014 and Christmas 2014) and Ms Knox (in July 2014 and many times in the period from 29 July to 23 October 2015 while Mary resided in the nursing home). Mary also said at various times that ‘Ali was after her money’ (corroborated by Ms Knox), ‘Ali had ruined her life’ (corroborated by Ms Vanovac), ‘Ali was conspiring with lawyers and doctors to deprive Mary of her assets’ (corroborated by Ms Knox), and she ‘had given Ali $1 million’ (Mr Windeyer’s file note).

12. [115]

    Ali gave evidence that Dr Hovey (and others) explained to Mary that it was not possible for Ali to have ‘put the cancer in her head’. There was no cross-examination on any of this evidence. The evidence that Mary still had the belief at the end of her life that Ali caused her cancer indicates that it was a belief which she could not be reasoned out of.

13. [116]

    Ali also deposed to other delusions from which Mary suffered from around 2012 which demonstrate that she was suffering from a degree of cognitive impairment: (a) that she was an interior decorator; (b) that she spoke French; (c) that she was a good swimmer when she could not swim; (d) that she was about to be kidnapped for her money when in a branch of the Commonwealth Bank.

Assets and liabilities of the estate

1. [117]

   The parties provided to the Court an agreed schedule setting out the assets and liabilities of the estate at the date of death, and at the date of the hearing.

2. [118]

   At death, Mary owned:

3. [119]

   In addition, jointly held assets of Ali and the deceased, and any asset that might be considered to be notional estate, comprised an account with St George Bank with a balance of $3,384.79, shares in Telstra with a value of approximately $3,000.00 the deceased’s account with a superannuation fund with a value $107,114.00.

4. [120]

   The liabilities of the deceased at death totalled $21,947.25.

5. [121]

   Accordingly, the net value of the estate at the date of Mary’s death was $2,166,184.49.

6. [122]

   At the date of the hearing, assets of the estate comprised a term deposit and an account with St George Bank in a total amount of $264,314.84, the Garfield St property with an estimated value of $660,000.00, the deceased’s half share in the McPherson St property (subject to the plaintiff’s claim in this proceeding) with an estimated value of $825,000.00, and personal effects with an estimated value of $2,230.00. After taking into account the actual and estimated liabilities of the estate, the net distributable estate at the date of the hearing (excluding legal costs not yet paid from the estate) is $1,559,826.02 (Ex K).

7. [123]

   In addition, the estate has potential liabilities for costs and expenses on the sale of the Garfield St property and the McPherson St property, the costs of the NSW Trustee and Guardian and for costs in relation to these proceedings.

8. [124]

   The following settlement sums have been paid out of the estate pursuant to orders made by the Court on 21 December 2021: (a) $125,000 to Steven (the third defendant); and (b) $150,000 to Madeline (fourth defendant).

Ali’s financial position

1. [125]

   The plaintiff’s financial position is relevant to the first defendant’s case on Ali’s exclusion from the 2014 and 2015 wills that Mary had made an assessment that Ali ‘had enough’ money and therefore did not need provision, and to the quantum of the plaintiff’s claim for provision under the Succession Act.

2. [126]

   Ali was cross-examined on his property portfolio. He gave evidence that he had owned the following properties: (a) 45 Veron St, Wentworthville which he purchased in 1997 and sold in 2009 to enable him to repay the loan from Citibank taken out to fund the purchase of the McPherson St property; (b) 47 Veron St, Wentworthville (which was next door to 45 Veron St and was his home before he moved into the Garfield St property with Mary) which was purchased with his former wife in 1984 and sold in 2014; (c) 7/22-26 Garfield St which he purchased in August 2015 (Unit 7); and (d) a half share in the McPherson St property (subject to his claim in these proceedings).

3. [127]

   Ali did not have a will, and viewed this as protecting Mary as he understood that she would inherit his property if he was to die under the laws of intestacy (Ali having no other family or dependents to make a claim on his estate).

4. [128]

   Ali’s total assets at the date of the hearing had a value of between $2,360,065 and $2,430,065, comprising:

   1. (1)

      his half share of the McPherson St property (in which he claims a 100% interest in these proceedings) of between $800,000 to $850,000;

   2. (2)

      Unit 7 with a value estimated at between $630,000 to $650,000;

   3. (3)

      cash at bank of $796,928;

   4. (4)

      a motor vehicle with a value estimated at $7,500;

   5. (5)

      superannuation (as at 30 June 2023) of $125,637.90.

5. [129]

   The figures for the value of Ali’s real property interests are estimates. The one for his interest in the McPherson St property is based on an opinion provided by a real estate agent dated 8 February 2024 that the McPherson St property would obtain a price of between $1.6m and $1.7m at that time. The same agent gave an opinion that the Garfield St property would sell for $640,000 to $680,000 at that time and it appears that this has been used as the basis for Ali’s estimate of the value of Unit 7 which is also a two-bedroom unit in the same building.

6. [130]

   Ali’s sources of income at the date of the hearing were as follows:

   1. (1)

      monthly income as an interpreter of around $995 per month (but this will cease this year as he will be retiring from that role);

   2. (2)

      a monthly superannuation pension of $2,492.12 from the Commonwealth Superannuation Corporation;

   3. (3)

      rental income from the lease of Unit 7 of approximately $1,700 per month;

   4. (4)

      50% of the net rent from leasing the McPherson St property of $720 per week (approximately $2,880 per month); and

   5. (5)

      interest on his bank deposits.

7. [131]

   Excluding the interpreter income (which will not continue) and the interest income, this comes to $7,072 per month.

8. [132]

   Ali estimates his monthly expenditure at the date of the hearing to be $4,800, including the costs associated with Unit 7 of $692 per month and the costs associated with his half share of the McPherson St property of $536 per month.

9. [133]

   If Ali succeeds in his claim that he is entitled to 100% of the McPherson St property, his monthly income (excluding the interpreter income and interest) will increase by approximately $2,880 per month and his monthly expenses will increase by approximately $536.

10. [134]

    The above summary of Ali’s income and expenses does not take into account that he is currently occupying the Garfield St property, which is an asset of the estate, rent free. If he is not entitled to continue to occupy it, this will potentially affect his income and expenses given his need for alternative accommodation.

11. [135]

    Ali has no significant liabilities apart from legal costs in respect of these proceedings.

The legal costs of the estate and the parties

1. [136]

   The parties’ costs of these proceedings (including the estimated cost of the 10 day hearing) are as follows:

   1. (1)

      Ali’s costs on the ordinary basis are $724,009 ($809,716.99 on the indemnity basis);

   2. (2)

      Marcel’s costs on the ordinary basis (and the indemnity basis) are $804,634.67.

2. [137]

   Ali has paid the amount of $571,388.99 in respect of his costs of the proceedings from his own resources. In addition, a total amount of $121,776.31 has been paid to Ali pursuant to cost orders made by the Court prior to 2022. Marcel has not paid any of her costs.

3. [138]

   In addition, pursuant to cost orders made by the Court prior to 2022, the following amounts have been paid out of the estate to parties to the proceedings in respect of their costs: (a) NSW Trustee and Guardian, $18,340.58; (b) the tutor for Madeline, $115,000; and (c) the tutor for Steven, $75,000.

Evidence on Mary’s capacity

1. [139]

   The date for the assessment of testamentary capacity and mental capacity is the date at which the documents were executed.

2. [140]

   Ali gave extensive evidence of his general observations of Mary at various times, including in the period from May 2014 to her death. There is extensive evidence on her physical condition in the medical reports summarised earlier. I note also that Mr Baturan gave evidence for Ali and was cross-examined by Mr Bates. His evidence was that he saw Mary for a short time after her operations in 2014 in the hospital. Mary was having difficulties with her speech at the hospital. After her discharge, Mr Baturan saw Mary again at her home in late 2014, but probably before October 2014. On this occasion Mary was ‘visibly physically impaired’. By this, Mr Baturan meant that he saw her hands shaking badly enough that she could not pour coffee and she appeared to have mobility issues. Mr Baturan also stated that Mary’s speech difficulties continued ‘[a]ll the way until the end. It was a different Mary after she was discharged from the hospital. It was not the same person intellectually, emotionally…’.

3. [141]

   The two principal witnesses relating to the 2014 will and Severance are Ali and Mr Young.

4. [142]

   Ali recalled taking Mary to see Mr Young approximately a dozen times prior to the 10 October 2014 meeting. Ali had also seen Mr Young separately when he dealt with a matter involving his sister. Mr Young never used an Arabic interpreter during the conferences relating to Mary’s workplace injury claim. Ali helped to simplify things for Mary at these meetings by explaining concepts to her.

5. [143]

   Mr Young’s evidence is that he had acted in three related compensation claims on behalf of Mary in relation to a work injury suffered in 2010. In the course of those proceedings, he estimated that he would have seen her on approximately 25 to 30 occasions. Mr Young is aware of the requirements for testamentary capacity. By the time of his consultation with Mary and Ali on 3 October 2014, he knew that Mary had a brain illness requiring surgery and chemotherapy, and that Ali was her de facto partner.

6. [144]

   On 3 October 2014, Mr Young had a conference with Mary and Ali. He deposes that:

7. [145]

   This evidence that Mary said at the meeting on 3 October 2014 that she wanted the joint tenancy ‘split’ and her share to be left to her nephew Stephen is difficult to reconcile with his evidence (recorded at [64] above) about the instructions she gave as to her will at that meeting (under which the half share would pass to Ali as residuary beneficiary). This was not explored in his cross-examination and ultimately nothing turns on it, as the instruction was given in the next meeting on 10 October 2014. Mr Young did not make detailed contemporaneous notes of his interactions with Mary. He accepted that he did not have a great memory of the two appointments, but said there was nothing in her appearance that led him to be concerned about her capacity.

8. [146]

   Mr Young’s evidence about the circumstances in which the 2014 will was signed is as follows. Mr Young’s recollection is that the copy of the draft will he had previously sent to Ali was handed to him by Mary in the beginning of the meeting on 10 October 2014 incorporating Mary’s handwriting in three places which were: (a) adding ‘Aziz’ as Marcel’s middle name, (b) changing the bequest to Steven to $200,000 from $100,000 and (c) changing the bequest to Madeline to $100,000.

9. [147]

   There are two further changes on the draft in handwriting which Mr Young says is his handwriting made during the meeting on 10 October 2014 following a discussion with Mary: first, the inclusion of a new cl 4 which states ‘I give my share of my house at 6 McPherson Street, Carlton to my nephew Steven Ibrahim’; and second, a change of the name of the person to receive the residue from ‘Ali Erem’ to ‘Marcel Aziz Moussa’. However, the latter amendment did not also change ‘my husband’ to ‘my sister’. Mr Young’s evidence is that after making these two changes, he took the document to his secretary in order to have the changes typed up and then returned with the final document for Mary to sign.

10. [148]

    He deposed in his affidavit evidence that he read the revised will to her before she signed it, but accepted in cross examination that he only summarised it to her, by which he meant that, in accordance with his usual practice, he ‘highlighted the pertinent points’ rather than read it word for word. He also said in cross examination that Mary did not read the will before she signed it.

11. [149]

    That was how the error occurred with Marcel being described inadvertently as Mary’s husband in the gift of residue in cl 6 of the 2014 will. That is the subject of an application for rectification brought by Marcel.

12. [150]

    Mr Young deposed that he said to Mary in the conference with her on 10 October 2014 that she should consider leaving some of her estate to Ali, and that she responded, ‘Ali has lots of money and property of his own, he does not need my money’. Ali does not dispute that words to this effect were said but does dispute Mr Young’s evidence that Ali did not object to Mary’s wishes. Ali deposed, and I accept, that he asked Mr Young if he could oppose the severance of the joint tenancy and on being told by Mr Young that he could not do so, he decided not to make an objection because he was Mary’s carer and she was in a fragile state and felt that it was best not to contradict her.

13. [151]

    Mr Young said in cross-examination that he did not explore whether Mary had a disease of the mind or was suffering from delusions that would affect her ability to weigh up her obligations to Ali and her other family, and said that if he had known at the time of the conference on 10 October 2014 of what Dr Hovey had said in her report of the consultation on 22 September 2014 about Mary’s condition, he would have sought an independent medical opinion rather than taking the course he did of assessing himself whether Mary had capacity to make a will.

14. [152]

    The principal evidence relating to the circumstances in which Mary executed the 2015 will was from Ali and Mr Windeyer.

15. [153]

    Ali did not take Mary to the 6 July 2015 meeting; she went independently. Ali’s affidavit evidence is that he observed Mary to be ‘visibly sick’ when attending the meeting on 13 July 2015. He stated that he was only present for part of the meeting. Ali stated that Mary handed a piece of paper to Mr Windeyer, but he did not know the contents, and he heard them discussing the names of Mary’s family members. Ali recalled her having difficulties in recalling how much she would like to leave to different family members. At one point, Ali raised his hand and began counting and pointing at each finger $100,000, $200,000, $300,000, $400,000 and so on.

16. [154]

    Ali left the meeting after Mary began to recount why she did not want to leave him anything, namely that he had ‘plenty of money’ or words to that effect. Ali heard Mary say to Mr Windeyer that he had sufficient money and property available to him and that she did not want to leave more to him.

17. [155]

    At one point, Ali was called back in as Mary had forgotten her address details. When Mary and Mr Windeyer emerged from the meeting, Mr Windeyer stated to Ali that Mary would also need to make a power of attorney and health directive. This was despite Mary having executed these documents with Mr Young.

18. [156]

    Mr Windeyer saw Mary on 6, 13 and 14 July 2015. At the first meeting she arrived alone and said that she had arrived by train. Mary did not have an appointment, and Mr Windeyer’s impression was that Mary was slow and deliberate in her speech and appeared nervous. Mr Windeyer’s evidence was that Mary told him about the assets that she owned, including the McPherson St property. Mr Windeyer recalled discussing the difference between a tenancy in common and joint tenancy with Mary at this meeting. There was no note made of this discussion, but he had an actual recollection of discussing this with Mary. At either the conference on 6 or 13 July 2015 Mary handed him a typed, unexecuted version of her will (which was not the 2014 will). Mr Windeyer thought it was more likely at the first meeting on the basis of his contemporaneous notes which refer to a ‘clause 3’. During the conference, he annotated this document.

19. [157]

    At the first meeting, Mr Windeyer said he was ‘quite confident as to her ability and understanding’. Mary spoke slowly and firmly. Mary did not tell Mr Windeyer that she had been diagnosed with brain cancer or that she was under treatment.

20. [158]

    Mr Windeyer made a handwritten file note of the 13 July 2015 meeting. A transcribed version of that file note was also in evidence. That file note recorded relevantly:

21. [159]

    Mr Windeyer deposed that his practice when there is some urgency to have a will signed or the client is anxious or will be unable to attend for a period to sign a formal will, to make a handwritten will and have it signed immediately as he did in this case. Mr Windeyer read the will to her before she signed it. He also deposed that he was satisfied at the meeting that she knew the purpose and effect of a will, had told him what her assets were and the persons she wanted to benefit (and told him why she did not want to give more to Ali being that she had already give him $1 million) and that she had testamentary capacity. He was well aware of the test of testamentary capacity in Banks v Goodfellow and experienced in its application having practiced almost exclusively in estate planning (including will drafting) and administration of deceased estate for over 10 years before the 2015 will was signed.

22. [160]

    I note that the explanation Mary gave to Mr Windeyer at the meeting (at a time when Ali was not present) that she had ‘given Ali $1 million already’ was false. There is no evidence to support that she ever had $1 million or that she gave him property in that amount.

23. [161]

    Mr Windeyer’s file note of the meeting on 14 July 2015 records:

24. [162]

    These changes which Mary discussed with him were never made as she did not meet with him again.

25. [163]

    On 17 July 2015, Mary spoke to Mr Windeyer on the telephone from Prince of Wales Hospital. His file note records:

26. [164]

    On 23 July 2015, Ali sent the following email to Mr Windeyer:

27. [165]

    Mr Windeyer’s evidence, which I accept, was that at the time of the meetings with Mary on 13 and 14 July 2015 he did not know that she had a brain tumour. He did not find out about this until after those two meetings (in particular, the email from Ali set out above). He said in cross-examination that had he known, at the time of the conference on 13 July 2015, that Mary had surgery in April 2015 for a recurrent gliobalastoma and the deterioration in her condition since that time, and that Dr Shivalingam had expressed the view on 8 July 2015 that ‘her capacity to understand and rationalise is completely gone’, he would have sought a medical opinion before finalising Mary’s will.

28. [166]

    Dr Hovey was Mary’s treating oncologist and saw her on 16 occasions over the period from 11 July 2014 to 17 August 2015 for consultations at the Prince of Wales Hospital. Dr Hovey also prepared a report on 10 November 2016 at the request of the plaintiff’s representatives addressing the issue of testamentary capacity. Dr Hovey was cross-examined.

29. [167]

    In her report dated 10 November 2016, Dr Hovey expressed the opinion that at the time Mary made the 2014 will and the 2015 will she suffered from a ‘disease of the mind’, namely an incurable infiltrative glioma called gliobastoma, which has different effects on different patients but in Mary’s case it was associated with poor concentration and poor decision making. Either her underlying disease or her steroids were associated with emotional lability and poor anger management. In October 2014 Mary had lack of insight, impaired judgment, disinhibited behaviour, impaired memory, impaired cognition, problems with reading and understanding, problems with writing and problems with expressing herself with a mixture of both expressive and receptive dysphasia. This continued to be the case in July 2015, by which time she had significantly progressive disease and no insight at all. The disease impacted Mary on a day-to-day basis in terms of her speech, attention, focus, insight and ability to make complex decisions. She also observed that from August 2014 onwards Mary was noted to be paranoid when it came to her partner Ali, and was abusive and aggressive to him. She said that ‘on the many occasions I reviewed them as a couple Ali appeared patient, considerate, thoughtful and caring’.

30. [168]

    Dr Hovey explained that Mary’s tumour was in the parietal lobe of her brain, which governs speech, calculation and integrating sensory inputs, and that swelling in that part of the brain can also cause behavioural issues.

31. [169]

    Dr Hovey described the testing she undertook in her appointments with Mary. Dr Hovey was taken to parts of her reports where she described Mary as being unable to perform ‘serial seven calculations’ or list more than three months of the year in reverse sequentially’ on 13 August 2014. A serial seven calculation is when a patient is asked to start at a number and then subtract seven from that number until they cannot do so anymore, ie. 100, 93, 86, 79. Dr Hovey described this as a form of abbreviated mental assessment, because full assessments could take up to an hour. Mary could list the months of the year going forward, which is a less sophisticated task. Mary could also do one ‘serial three’ calculation, meaning that Mary could go from 20 to 17 after making one mistake and self-correcting, but not beyond that. Dr Hovey stated that this result was not surprising as Mary ‘had a parietal lobe tumour and that’s the seat of calculation’.

32. [170]

    In the appointments and interactions with Mary following the incident which occurred in the radiotherapy department on 27 August 2014 referred to earlier, Dr Hovey described leaving assessments of Mary’s mood or emotions to Dr Sharma, and instead focussing on her physical ability to persist with a course of chemotherapy. Dr Hovey stated that in or around October 2014:

33. [171]

    It was not Dr Hovey’s focus at this time to assess Mary’s mental or emotional state, and her assessment (along with that of the rest of Mary’s treatment team) in October 2014 was that Mary’s condition was worsening. Dr Hovey stressed that the medical records prepared by the oncology team were focussed on Mary’s treatment and very short reviews of Mary’s mental state. Her general impression at this time was that Mary had displayed unusual behaviour and was unstable emotionally. A 13 October 2014 letter to Dr Hovey from Dr Bishop (a radiation oncology registrar) described Mary as being unable to perform ‘serial seven calculations or follow 3-step commands’. In relation to the latter aspect Dr Hovey stated in cross-examination:

34. [172]

    Mary had an MRI on 18 October 2014, which Dr Hovey described as particularly bad.

35. [173]

    Dr Hovey’s review on 21 October 2014 also recorded Mary’s ‘difficulty following instructions when walking heel to toe’ and ‘difficulty following other complex instructions’. Dr Hovey said in cross-examination that this likely meant that Mary was not ‘taking things in and I probably needed to repeat my requests to her’ and ‘she could only follow very basic things’. While Dr Hovey also recorded that she was ‘oriented to person, day of the week, year, month, home address and place’ (which was directed at whether she could tell Dr Hovey the day of the week, the year, the month, her home address and that she was at the hospital), she goes on to state that Mary could not do any serial 3 or serial 7 calculations. Dr Hovey’s evidence about her review on 21 October 2014 was:

36. [174]

    Dr Hovey thought that Mary’s condition and cognition on 21 October 2014 would have likely been similar on 10 October 2014 (the date of the execution of the 2014 will).

37. [175]

    Dr Hovey stressed that whilst she did perform some level of cognitive assessments with patients that she saw, she was not a neuropsychologist, and she was not doing full reviews of Mary’s cognition. Those are specialist assessments that take several hours and require expertise. The assessment undertaken ‘in the clinic room’ is directed towards the safety of the patient and the administration of the treatment. At the appointment with Dr Hovey on 21 November 2014, she recorded that Mary had difficulties following two-step instructions. Dr Hovey’s overall impression was that there was an overall decline in Mary’s cognition at this date.

38. [176]

    Dr Hovey explained that one of the drugs that Mary was taking, dexamethasone, was one that the treating team wished to take her off but were unable to as her speech problems worsened without the drug. That drug decreases swelling around the tumour, however, has significant side effects, including impacts on mood and increased anxiety.

39. [177]

    Dr Shivalingam was the deceased’s treating neurosurgeon in 2015. Dr Shivalingam examined the deceased on five occasions from 16 March 2015 to 8 July 2015. Dr Shivalingam performed a craniotomy and resection of Mary’s recurrent glioblastoma in April 2015. Dr Shivalingam was cross-examined at the hearing, and the notes of her meetings were tendered as evidence. Dr Shivalingam also prepared a report at the request of the plaintiff’s representatives on 16 November 2016 that was tendered as evidence.

40. [178]

    In a report dated 16 November 2016, Dr Shivalingam stated the following:

    1. (1)

       When she reviewed Mary on 18 May 2015, Mary had a significant problem with word finding and also with expression of thought in an appropriate manner and, at this stage, Dr Shivalingam felt that she was significantly impaired in terms of speech and cognition. In her last appointment with Mary on 8 July 2015, Dr Shivalingam observed that Mary’s condition had deteriorated, her speech was much worse and her capacity to understand and rationalise was gone. She observed that Mary was quite labile in terms of her emotions and was tending to be very irritable and snappy with Ali. Mary’s labile emotions were a significant problem at that stage which lead her to suggest that Mary see a psychiatrist to obtain stronger anti-depressant medication.

    2. (2)

       At the time Mary made the 2015 will she was suffering from progressive glioblastoma multiforme involving the left side of her brain and gradually destroying functions of speech, cognition and personality, which manifested itself on a day-to-day basis and had a major impact on her ability to make any complex decision making. She also expressed the view that Mary did not have testamentary capacity in terms of the Banks v Goodfellow test as at 13 July 2015.

41. [179]

    The bulk of cross-examination of Dr Shivalingam focussed on the paragraphs from her report of 8 July 2015 set out at [98] above.

42. [180]

    The plaintiff relies in particular on the emphasised sentences in the extract as indicative of Mary’s waning capacity. The date is notable because it was only five days before the deceased attended the offices of Mr Windeyer to swear the 2015 will.

43. [181]

    At Dr Shivalingam’s appointment with Mary on 8 July 2015, she recalled having to have a ‘very blunt’ conversation with Mary regarding the inoperability of her tumour and the likelihood that she would die soon. Dr Shivalingam did not have a recollection other than that prompted by the letter.

44. [182]

    Dr Shivalingam’s evidence was that based on her presentation, she would have been very surprised if two days earlier on 6 July 2015 she could have been able to remember and describe her assets. Mary suffered from dysphasia, ‘an inability to understand and express oneself. So understand what is asked of them, and to express their thoughts’.

45. [183]

    In relation to the emphasised paragraphs in [98] above, Dr Shivalingam stated that she meant that she was no longer capable of meeting Mr Windeyer in the way that he described. When the possibility of Mary doing these things two days prior to her appointment with Mary, Dr Shivalingam stated:

46. [184]

    Two independent experts gave evidence, Dr Saines and Dr Fisher.

47. [185]

    Dr Saines is a consultant neurologist with over 40 years’ experience. He expressed the following opinions in his expert report after a review of all the medical reports:

    1. (1)

       That, on balance, Mary had testamentary capacity in 1993 when she made her first will.

    2. (2)

       That at the time Mary made her second will on 10 October 2014, Mary had a progressive disease of the brain impairing cognitive and behavioural function and he could not be confident that she fully understand the nature or the effect of the undertaking or could even engage appropriately at the time of making that will. He reached a similar conclusion in relation to the severance of the joint tenancy on 10 October 2014 for the same reasons.

    3. (3)

       At the time Mary made her third will on 13 July 2015, her neurological condition had deteriorated further as is the nature of the progressive brain malignancy. The associated cerebral oedema was managed to some extent with dexamethasone, and this medication may have exacerbated her emotional dyscontrol. By mid-July she manifested a significant speech disorder (dysphasia), being unable to express or comprehend fully, appeared to have cognitive impairment and was at times irrational with emotional dyscontrol. In his opinion, Mary’s deteriorating neurological condition had further impaired her mental capacity and in his opinion, she did not have testamentary capacity at the time the 2015 will was made.

48. [186]

    None of the evidence given by Dr Saines in cross-examination involved any departure from these opinions. In cross-examination Dr Saines expressed the view that the medical evidence, including the MRI imaging showing a large tumour in her brain, her inability to follow simple two- and three-step instructions with Dr Hovey, and her inability to perform serial three and serial seven calculations, supports the conclusion that Mary’s complex decision-making and cognition skills were impaired. Dr Saines’ view was that Mary was failing simple tests of cognition, demonstrated difficulties with language and communication skills, and this had an ‘emotional component’.

49. [187]

    Dr Saines stated that it would have been difficult for Mary in October 2014 to instruct a solicitor on the basis of her word-finding difficulties. Dr Saines would not have drawn the conclusion that Mary had the capacity to understand the difference between a joint tenancy and a tenancy-in-common on the basis of her ability to accurately provide a list of assets to Mr Young.

50. [188]

    Mary’s ability to function in day-to-day life is referrable to the tumour impinging on the cognitive, executive function, emotional control, and language parts of the brain and not the areas of the brain controlling physical ability. More generally, it would have been difficult for Mary to understand the difference between the whole of a property and a half of a property to be able to understand the nature of giving away a half-interest in the property or severing a joint tenancy.

51. [189]

    Dr Saines accepted that Mary was capable of understanding the nature of a will at 10 October 2014. Dr Saines’ opinion was that this was the extent of her ability, and that she would not have been able to weigh up the claims of her prospective beneficiaries due to the impact on her cognition. It was put to Dr Saines that nothing in Dr Hovey’s observations indicated that Mary was not able to consider that Ali ‘had enough money’ due to having over $2 million in assets. Dr Saines stated that he could not be satisfied that Mary was ‘in a rational state’ at the conference with Mr Young.

52. [190]

    When asked to assume, consistent with the evidence of Mr Young, that the 2014 will was summarised to Mary before she signed it in two places, Dr Saines agreed that there was nothing precluding her from being capable of understanding that explanation.

53. [191]

    Dr Saines’ opinion was that Mary had deteriorated significantly by the time of the 2015 will.

54. [192]

    Dr Fisher is a consultant psychiatrist with over 40 years’ experience, including as head of the Department of Psychiatry at St Vincent’s Private Hospital from 1994 to June 2020. Dr Fisher provided an expert report in which he opined after a review of all the medical reports that:

    1. (1)

       Mary had testamentary capacity at the time she made the 1993 will.

    2. (2)

       With respect to the 2014 will, it was likely that as at 10 October 2014 Mary was suffering from a cognitive impairment and also a delusion regarding Ali, which would manifest itself on a daily basis and likely adversely affect her capacity for complex decision making. He noted that Mary was reported to have had symptoms of expressive and receptive dysphasia, short term memory problems, problems with concentration and attention and this will be manifested on a day-to-day basis and able to be observed by Ali and other people with whom she came into contact and especially by her treating practitioners. Dr Fisher expressed the opinion that she was suffering from a disease of the mind including a delusional disorder and cognitive impairment on a day by day basis with regard to complex decision making, was not fully able to understand the effect of the will in terms of the rightful beneficiaries.

    3. (3)

       With respect to the 2015 will, his opinion was that Mary was suffering from a disease of the mind and cognitive impairment at the time she made that will, noting that she was reported by her treating oncologist and neurosurgeon to be suffering from expressive and receptive dysphasia, problems with short term memory, problems with comprehension, emotionally labile and paranoid with respect to Ali in the context of having an expanding and infiltrating glioblastoma multiforme. She had also undergone debulking surgery and had been treated with chemotherapy and dexamethasone all of which may have contributed to her cognitive impairment. He considered that the reports of her treating doctors at that time (in particular Dr Shivalingam’s report referred to at [98] above that ‘rational conversation and thought’ was not possible and she was very depressed) indicated that the condition manifested itself on a day-to-day basis and affected her complex decision making. For these reasons he was of the opinion that Mary suffered from a disease of the mind and/or other cognitive impairment such that she was not able to fully comprehend and appreciate the claims of potential beneficiaries under her will.

55. [193]

    None of the evidence given by Dr Fisher in cross-examination involved any departure from these opinions. During his cross-examination, Dr Fisher was asked about Dr Hovey’s reference in the addendum to her notes of the consultation on 22 August 2014 which stated that ‘there was no evidence of disordered thoughts or psychosis on mental state examination’. Dr Fisher said that the term ‘disordered thoughts’ refers to the jumbling of the expression of thought typically seen in someone who is psychotic and also encompasses the content of the thoughts which may be delusional, but the mere fact that there was no evidence of active psychosis does not necessarily mean that she was fully cognitively intact.

Issue 1: Mary’s testamentary capacity at the time of the 2014 and 2015 wills

1. [194]

   The established test for testamentary capacity is found in Banks v Goodfellow (1870) LR 5 QB 549 at 565 where Cockburn CJ stated:

2. [195]

   As explained by Basten JA in Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [5]-[6] (and see Macfarlan JA at [102]), this test of testamentary capacity is to be understood as comprising three affirmative elements followed by negative elements. The affirmative elements are (i) the capacity to understand the nature of the act of making a will and its effects; (ii) understanding the extent of the property the subject of the will; and (iii) the capacity to comprehend moral claims of potential beneficiaries. The negative elements which follow, including disorders of the mind and insane delusions, are examples of matters relevant to the third affirmative element, to the extent they interfere with the testator’s ability to recognise and weigh the claims of potential beneficiaries to the testator’s bounty.

3. [196]

   Where a will is rational on its face and is proved to have been duly executed, there is a presumption that the testator had testamentary capacity. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity, which shifts the evidential burden to the party propounding the will to show that the testator did have testamentary capacity and where the doubt is not resolved on a consideration of the evidence as a whole, may be sufficient to preclude the Court being affirmatively satisfied as to testamentary capacity: Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [45] per Meagher JA (Basten and Campbell JJA agreeing).

4. [197]

   It follows that where a delusion is established which raises a doubt as to the testator’s ability to recognise and weigh the claims of potential beneficiaries, the burden of proof shifts to the person propounding the will to show that the testator had testamentary capacity: Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13 at 299; Carr at [98].

5. [198]

   The requirement that the Court be affirmatively satisfied as to testamentary capacity is not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof, taking into account that deciding whether a will is indeed a person’s last will is a serious matter: Tobin at [48].

6. [199]

   The nature of the inquiry into capacity was summarised by Basten JA in Carr at [47]:

7. [200]

   A delusion is not merely a mistaken belief; rather it is a ‘fixed and incorrigible false belief which the victim could not be reasoned out of’: Bull at 339. As Gleeson CJ stated in Re Estate of Griffith; Easter v Griffith (1995) 217 ALR 284 at 291:

8. [201]

   Macfarlan JA in Carr stated at [101]:

9. [202]

   His Honour continued at [113]:

10. [203]

    The criteria stated in Banks v Goodfellow are not medical questions, in that a doctor cannot answer them in the way that they can ascertain whether a person is suffering from cancer. Rather, ‘[t]hey are matters for commonsense judicial judgment on the basis of the whole of the evidence’: Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [65].

11. [204]

    Where the testamentary document is drafted by a solicitor, it is insufficient to rely merely on the solicitor’s view of the testator’s capacity, particularly where the solicitor has taken merely perfunctory steps to ascertain capacity: Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 at [306]. The Court must be satisfied as to the testator’s capacity, and the steps taken by a solicitor is relevant evidence.

12. [205]

    The plaintiff submits that Marcel has failed to prove on balance of probabilities that Mary had the capacity to execute the 2014 or 2015 wills and therefore the Court should not admit either will to probate. The plaintiff further submits that Mary must prove testamentary capacity by reference to the principles laid down in Briginshaw: Tobin at [48]

13. [206]

    Both Mr Young and Mr Windeyer failed to test Mary’s capacity against the criteria outlined in Banks v Goodfellow and the Court can have no confidence in their assessment of Mary’s testamentary capacity. The extant contemporaneous documents, the progress notes of Mary’s treating doctors, tend against a conclusion of capacity. Both Mr Young and Mr Windeyer accepted in cross-examination that they would have altered their approach to obtaining instructions and assessing capacity, had they been aware of the extent of Mary’s medical condition.

14. [207]

    The plaintiff submits that the Court should place considerable weight on the medical evidence in this case, in line with the observations of Sackar J in Gooley v Gooley [2021] NSWSC 56 at [1147]-[1154].

15. [208]

    The plaintiff further submits that the evidence supports the proposition that Mary was labouring under a series of delusions that prejudiced her mind against Ali referred to earlier, which is the reason that Ali was not included in either will.

16. [209]

    Marcel submits that none of the so called ‘delusions’ on which Ali relies meets the requirement for a delusion that it be a ‘fixed and incorrigible false belief which the victim could not be reasoned out of’: Bull at 339. It was submitted that the high point of Ali’s case on this aspect was a note made by Dr Hovey in her report of the consultation on 13 August 2014 that Ali had ‘caused her cancer’ (see [53] above). Dr Hovey does not record in any of her reports that she told Mary that Ali could not have caused the brain cancer and there is no evidence that Dr Hovey ever explained to Mary that such a belief was mistaken. I note that this submission is incorrect as there is evidence in Ali’s first affidavit that both Dr Hovey and Dr Smee explained to Mary that this was not possible. There was no cross-examination on this evidence.

17. [210]

    Marcel also submitted that Dr Hovey’s reports do not record that Mary repeated the allegation after 13 August 2014 nor is there evidence that she gave such a belief as her explanation to Mr Young or Mr Windeyer for why she did not give more to Ali in her 2014 or 2015 wills. Dr Hovey recorded in her report of the consultation on 22 August 2014 that Mary had been embarrassed and apologetic for her actions, agreeing that her behaviour was out of character, and Dr Hovey had recorded that there was ‘no evidence of disordered thoughts or psychosis on mental state examination’. This indicated that Mary was able to process appropriately upsetting information about her cancer and refutes the plaintiff’s contention that there was a delusional belief that she could not be reasoned out of.

18. [211]

    Marcel submits that the Court should accept the accuracy and the reliability of the evidence of Mr Young and Mr Windeyer and their assessment of the capacity of Mary at the conferences during which she made her 2014 and 2015 wills as they were experienced probate solicitors. The conferences she had with each of them were not short and she told each of them the reason for not leaving more to Ali was that he already had enough property of his own which was a rational and reasonable explanation for her testamentary choice. The Banks v Goodfellow criteria permit a testator to make a decision as to the disposition of her testamentary bounty based upon her view about her financial need: see Carr at [29], [51] and [145]. The structure and disposition of Mary’s bounty in each of the 1993, 2014 and 2015 wills record Mary’s unwavering wish to leave inheritances to her blood relatives in preference to Ali. In the case of the 1993 will this was explained because her relationship with Ali was at a very early stage. In the case of the 2014 and 2015 wills, it is to be explained on the basis that Ali had enough money and property of his own and did not need the deceased’s inheritance. This is consistent with Ali’s admission that by 2014 he had over $2.6 million of his own, including ongoing revenue streams from his investments and superannuation and interpreting income in the vicinity of $6,000 per month. Marcel submits that the Court should accept the evidence of the experienced solicitors who conferred with the deceased in preference to the medical experts: Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218.

19. [212]

    Marcel submits that the question whether Mary had testamentary capacity at the time of making her 2014 will or 2015 will does not depend on whether she could do serial seven calculations or could recite a whole year of calendar months backwards. What matters to the criteria in Banks v Goodfellow is whether she was oriented to the person, time and place and knew that she was at her solicitor’s office to make a will and to sever the joint tenancy and to inform her solicitor of her assets and to consider and weigh the moral claims to her estate. On the basis of the evidence of Mr Young and Mr Windeyer, the Court should be satisfied that she was capable and did in fact do each of those matters and their evidence should be preferred over that of Dr Fisher and Dr Saines.

20. [213]

    I am satisfied on the evidence that throughout the period from shortly after her diagnosis of a brain tumour until her death, Mary suffered from a number of delusions that poisoned her mind against Ali, which I have listed at [114] above. The most significant is her belief expressed at various times from mid-2014 until her death, that Ali had ‘put the cancer in my head’. Marcel’s submission that there is no evidence that anyone explained to Mary that this could not be true, as already noted, is not correct.

21. [214]

    The conclusion that Mary was suffering from a fixed belief that Ali had caused her cancer is supported by a number of matters. First, the tumour adversely affected the part of her brain affecting her cognitive capacity and emotional behaviour. Second, the evidence indicates that Mary was having difficulty coping with the devastating diagnosis that she had received and responded to it by blaming Ali. Third, there is clear evidence of a consistent decline in her cognitive capacity over the period from May 2014 to her death indicated by her consistent failure to perform serial three or serial seven calculations and following simple instructions. Fourth, she had a depressive personality, which was compounded in the period from May 2014 to her death by her poor compliance in following the requirements for taking her medications (particularly for depression).

22. [215]

    The conclusion that Mary was suffering from a delusion that Ali had caused her cancer shifts the burden of proof to Marcel because the delusion is clearly relevant to her ability to consider and weigh all the moral claims on her testamentary bounty. In my view, Marcel has not discharged that burden due to the evidence the treating doctors (Dr Hovey and Dr Shivalingam) and the two medical experts (Dr Saines and Dr Fisher) which is all to the effect that she did not have the ability to weigh the moral claims of potential beneficiaries, particular Ali, at the time she made either the 2014 will or the 2015 will.

23. [216]

    In relation to the 2015 will, Marcel relies on Mr Windeyer’s assessment of Mary at the meetings on 6 and 13 July 2015 that she had testamentary capacity. The first meeting lasted about 84 minutes and the second meeting about 102 minutes. It is clear from Mr Windeyer’s file notes he is a highly competent and careful probate lawyer, and he attempted to assess her testamentary capacity by observing her in those conferences. However, he did not know at that time that she had an incurable brain tumour and had undergone surgeries to remove it. Nor did he have knowledge of the assessment of the treating doctors of her cognitive capacity at that time. He recognised in cross-examination that had he been aware of it, he would have acted differently, by seeking a medical opinion to confirm that Mary had testamentary capacity.

24. [217]

    Further, nothing said by Mary to Mr Windeyer in the meetings on 6 and 13 July 2015 alerted him to the possibility that Mary was suffering from any delusions, particularly against Ali. Indeed he had no reason to doubt her statement that she had given Ali $1 million, which as noted earlier, was false.

25. [218]

    I make no criticism of Mr Windeyer in reaching the conclusion that, in all the circumstances, his assessment of Mary’s testamentary capacity on 13 July 2015 is not reliable, because he did not know the full picture about her medical condition at that time.

26. [219]

    Similarly, Mr Young had no knowledge at the time of the conferences on 3 and 10 October 2014 of the assessment of the treating doctors as to Mary’s cognitive capacity or that she was suffering from delusions regarding Ali. He recognised in cross-examination that had he been aware of these matters he would have acted differently by seeking a medical opinion. Again, for the same reason I have given in relation to Mr Windeyer’s assessment, I do not regard Mr Young’s assessment as reliable.

27. [220]

    I am satisfied, taking into account the weight of the medical evidence, which is all one way, that Mary did not have the ability to appreciate and weigh the claims on her testamentary bounty at the time she made both the 2014 will and the 2015 will, due to her delusional belief against Ali. Alternatively, Marcel has not discharged her onus of proof that Mary had testamentary capacity at either 10 October 2014 or 13 July 2015.

Issue 2: Mary’s capacity to sever the joint tenancy

1. [221]

   Each joint tenant has a right unilaterally to sever a joint tenancy and convert the interest held as joint tenant into one held as tenants in common which the other joint tenant cannot prevent, unless they can invoke a contractual or equitable obligation: B Edgeworth, Butt’s Land Law (7th ed, 2017, Lawbook Co) at [6.490]; Real Property Act 1900 (NSW), s 97.

2. [222]

   In Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17 the question of the capacity of an individual to enter into a binding transaction was considered, in the context of the execution of two mortgages and a transfer to sever a joint tenancy. Dixon CJ, Kitto and Taylor JJ stated the applicable test at 437 as follows:

3. [223]

   In the above statement of the test it is recognised that where the relevant instrument is part of a wider transaction, the question of capacity may need to be tested by reference to that wider transaction which the instrument is a means of carrying out. It has been recognised that where a person purports to sever a joint tenancy in connection with the making of a new will, it is necessary to apply, with appropriate adjustments, the test in Banks v Goodfellow because the effect of the severance, by revoking the right of survivorship, is to benefit one or more beneficiaries under the will: see Hamill v Wright [2018] QSC 197 at [158]-[161]. A similar approach has been taken to voluntary gifts made during the lifetime of the deceased: Crago v McIntyre [1976] 1 NSWLR 729 at 740-741; Perochinsky v Kirschner [2013] NSWSC 400 at [96].

4. [224]

   Whether the purported severance of a joint tenancy where the person seeking to do so lacks mental capacity is void or voidable was considered in Gibbons v Wright. In that case, two sisters held land in Hobart as joint tenants with the appellant, who was the widow of the brother. In relation to land under the Real Property Act, each sister executed a memorandum of transfer (which was subsequently registered) whereby she transferred to the other her one-third share of the joint tenancy in consideration for a similar transfer by the other to her. The two sisters having died, the appellant brought proceedings to challenge each transfer to sever the joint tenancy, which turned on whether the sisters had mental capacity when they signed each transfer. Dixon CJ, Kitto and Taylor JJ at 438-439 stated the relevant test for this question as follows:

5. [225]

   Based on the finding in the Court below, their Honours concluded that the sisters were incapable of understanding these matters and accordingly lacked mental capacity to effect the severance. However, this did not entitle the appellant to succeed because the transfers were voidable not void and hence were valid unless and until each was avoided by that party or their representatives. Their Honours said (at 449):

6. [226]

   While the instruments of transfer which were held to be voidable and not void in Gibbons v Wright were expressed to be for consideration, Holland J in Crago v McIntyre at 742-743 reached the conclusion that the same approach applied to a voluntary settlement inter vivos on the basis that whether consideration was payable was irrelevant to the question whether the instrument was void or voidable for lack of capacity. I note that in Sutton v Sutton [2009] EWHC 2576 Christopher Nugee QC sitting as a deputy judge of the High Court (as his Honour then was) reviewed the authorities on whether lack of capacity renders a gift void (rather than voidable), including Gibbons v Wright and Crago v McIntyre and concluded that there is real doubt whether it renders it void, and regarded Gibbons v Wright as persuasive authority that it does not.

7. [227]

   The parties did not address this issue in their submissions. I was referred to Hamill v Wright where Applegarth J concluded that there was a lack of capacity of the deceased to sever the joint tenancy at issue in that case, but did not expressly deal with question whether that rendered the severance void or merely voidable. I am bound by Gibbons v Wright to conclude that Mary’s lack of capacity renders the Severance merely voidable.

8. [228]

   Ali submitted that the applicable test for determining Mary’s mental capacity at the time of severance of the joint tenancy was the test in Banks v Goodfellow and that, for the same reasons that Mary lacked testamentary capacity at the time of making the 2014 will, she did not have the mental capacity to sign the transfer to effect the severance of the joint tenancy.

9. [229]

   Marcel submitted that the relevant test determining Mary’s mental capacity at the time of the severance is that stated in Gibbons v Wright at 438, set out at [224] above, which is whether she was capable of understanding, if the matter had been explained to her, that by executing the transfer she would be altering the character of her interest in the McPherson St property so that instead of the last survivor of Ali and herself becoming entitled to the whole of the interest in that property, each of them would be entitled to a one-half interest which would pass to her estate if she owned it at her death. She satisfies this test.

10. [230]

    If the appropriate test to be applied to determine Mary’s capacity to sever the joint tenancy is the one stated in Gibbons v Wright set out at [224] above, then I would be of the view that Mary had mental capacity to make the Severance on 10 October 2014. Mr Young’s evidence is that he explained the effect of the Severance to Mary at the meeting on 3 October. It seems clear that on the evidence that she fully understood the effect of the Severance because she wished to enable her half share to pass on her death to Stephen under the will which she signed on the same day.

11. [231]

    However, it was recognised in Gibbons v Wright that where the relevant instrument is being entered into to carry out a wider transaction the question of capacity needs to be tested by reference to that wider transaction. Here, it is clear that Mary’s purpose in severing the joint tenancy was to enable her to deal with her share of the McPherson St property by a new will to be made on the same day. In these circumstances, the question of her mental capacity should be determined on the test stated in Banks v Goodfellow. In my view, applying that test, she did not have the required mental capacity to effect the Severance for the same reason that she did not have testamentary capacity at that time, being her delusions regarding Ali which prevented her from properly weighing his claim on her testamentary bounty.

12. [232]

    Ultimately, nothing turns on which test should be applied in the present case. If Mary lacked mental capacity at the time of the Severance, the Severance would be voidable not void. It could only be avoided by Mary or her representative. It was not avoided by Mary during her lifetime. While Ali is acting in the role of administrator pendente lite and receiver, he does not have power to avoid the Severance. The limited powers conferred on him at the time of his appointment do not extend to avoiding Severance. In any event, an administrator pendente lite is required to manage and preserve the estate for the benefit of those persons who may ultimately be found in the proceedings to be entitled to it: Henderson v Executor Trustee Australia Ltd (2005) 93 SASR 337; [2005] SASC 477 at [45], [53] and [124]; Gooley v Gooley [2020] NSWSC 798 at [126], [138]. Similarly, a receiver acts in a caretaker role until the persons entitled are ascertained: Henderson at [43]. It would clearly not be in the interest of the beneficiaries for Ali to avoid the Severance.

13. [233]

    For these reasons, irrespective of whether Mary had the capacity to sever the joint tenancy, Ali fails on this issue.

Issue 3: The plaintiff’s estoppel claim

1. [234]

   In the alternative to his argument that the purported severance of the joint tenancy was ineffective, Ali’s pleaded case is that the defendants are estopped by the conduct of Mary from denying that he is the legal owner of the McPherson St property, relying on representations made by Mary at the time she and Ali purchased the McPherson St property in November 2007, that she would assist with the contribution towards the purchase price up to no more than $290,000, and that the property would be his if she predeceased him.

2. [235]

   Ali contends for an estoppel by encouragement. A proprietary estoppel of this kind was explained by Handley JA in Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 at [21] (Allsop P and Gyles JA agreeing) as follows:

3. [236]

   In Goyal v Chandra [2006] NSWSC 239; (2006) 68 NSWLR 313, Brereton J considered that there was no reason in principle why the principles of equitable estoppel could not be applied to defeat an attempt by a joint tenant to sever the joint tenancy. His Honour said at [29]:

4. [237]

   Whether any, and if so what, representation has been made is to be judged objectively according to the impact that whatever is said or done may be expected to have on a reasonable representee in the position and with the known characteristics of the actual representee: Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220 at [15] per Meagher JA (Leeming and Payne JJA agreeing).

5. [238]

   In relation to reliance, it is necessary for the party relying on equitable estoppel (in this case Ali) to establish that he would have acted differently in the absence of the relevant encouragement: Q v E Co at [88]. It is a question of fact on which Ali bears the onus: Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 at [58]-[61]. Hence, the relevant inquiry is what would Ali have done if, the promise by Mary having been made, he had been told that it would not be kept: Q v E Co at [89].

6. [239]

   It is not necessary for the party relying on the estoppel to articulate precisely what he or she would (counterfactually) have done: Priestley v Priestley [2017] NSWCA 155 at [147]; Q v E Co at [106]. Indeed, caution is justified in assessing such evidence because it is hypothetical and may be self-serving: Q v E Co at [116].

7. [240]

   Reliance is a factual question which is determined on all of the evidence on the balance of probabilities: Moore v Aubusson [2020] NSWSC 1466 at [402]. As a mere factual matter, there will be cases where it can be fairly said that once it is established that the representation was made, the representation together with all the other facts of the case will enable the claimant to say that, unless the defendant can elicit some further evidence to the contrary, the claimant has discharged its onus: Q v E Co at [119].

8. [241]

   The weight of authority favours the conclusion that it is not necessary for the claimant to show that the representing party (who in this case is deceased) had actual knowledge of detrimental reliance where the representing party’s own express encouragement has brought about the representee’s assumption: Kramer v Stone (2023) 112 NSWLR 564; [2023] NSWCA 220 at [291]-[295] per Leeming JA (Kirk JA agreeing at [296]; Ward P at [199]-[200]).

9. [242]

   In relation to detriment, this refers to the prejudice or disadvantage that the claimant would suffer by reason of his or her change of position in reliance on the encouraged expectation, if it were to be departed from: Q v E Co at [123]. It is not to be understood narrowly or technically and must be approached as part of a broader inquiry as to whether departure from a promise or representation would be unconscionable in all the circumstances: Q v E Co at [124].

10. [243]

    Where detrimental reliance has been established, the usual remedy will be to require the party estopped to make good the encouraged expectation. In order for the party relying on the estoppel to obtain relief, there must be detriment that is sufficiently substantial to bind the conscience of the party said to be estopped, and there may be cases where estoppel is established, but the disproportion between detriment and expectation is so great that conscience does not require that the party estopped should make good the expectation: Q v E Co at [127].

11. [244]

    Ali submits that at the time of the purchase of the McPherson St property, Mary represented to him that the McPherson St property would pass to the survivor on the death of Mary or Ali. This representation was not conditional or dependent on Ali and Mary actually living in the McPherson St property. Ali relied on the representation by managing the property (including spending time and effort to repair and maintain it) and expending his own funds on the property, including paying $378,761.40 to repay the Citibank loan.

12. [245]

    It is not in dispute that of the overall amount expended on the acquisition of the McPherson St property, including interest on the Citibank loan and the maintenance and repair of the property, which totals $814,280, Ali’s proportion was $527,280 (65%) and Mary’s proportion was $287,000 (35%).

13. [246]

    While Ali did not challenge Mary’s decision to sever the joint tenancy in the meetings on 3 and 10 October 2014, this is explained by the fact that Mary threatened Ali that she would leave him if he challenged her decision. Further, he did raise with Mr Young whether he could oppose the severance and was informed by Mr Young either that it did not matter or that the Court would make an order severing the joint tenancy regardless.

14. [247]

    Marcel submitted that the evidence establishes that Mary and Ali only had a common expectation that the McPherson St property would become the place where they lived at the time it was purchased. The property was in fact leased to tenants within a short time of completion of the purchase and from that time onwards, until the severance on 10 October 2014, was operated as an investment property and there was no intention or plan that Mary and Ali would inherit each other’s investments. The severance of the joint tenancy into a tenancy in common in equal shares on 10 October 2014 reflected the basis on which Mary and Ali had in fact mutually agreed to conduct and operate their ownership of the McPherson St property as from shortly after the completion of the purchase in March 2008 until the severance.

15. [248]

    Marcel submitted that because the initial intention or expectation of acquiring the McPherson St property as a house in which to live was replaced by a mutual understanding or decision to put in tenants to operate the property as an equal investment precluded the application of the principles of equitable estoppel.

16. [249]

    I will now deal with the three elements which Ali must prove in order to establish his estoppel claim: a representation or promise, reliance and detriment.

17. [250]

    I have referred at [35]–[38] above to Ali’s evidence regarding his conversations with Mary leading up to the purchase of the McPherson St property in November 2007, in which she told him that she would assist with a contribution towards the purchase price up to $290,000, and that the property would be his if she predeceased him. In addition Ali, deposed to a representation in a conversation, which occurred at the time the nature of a joint tenancy was explained to them by Ms Edwards at the meeting referred to at [41] above, that the McPherson St property would pass to the successor on the death of Mary or Ali. The conversation relied on is as follows:

18. [251]

    Ali’s evidence of the conversations referred to above was not directly challenged in cross-examination. Ali also gave unchallenged evidence that Mary told him after the contract was signed that the only amount she would contribute to the purchase was $290,000 (being the proceeds from the sale of her Kogarah unit).

19. [252]

    The cross-examination of Ali focused instead on when he and Mary reached the understanding that the McPherson St property would no longer be the place where they would live. Based on this cross-examination, it was submitted on behalf of Marcel that the severance of the joint tenancy into a tenancy in common in equal shares on 10 October 2014 reflected the basis on which Ali and Mary had in fact mutually agreed to conduct and operate their ownership of the McPherson St property from shortly after the completion of the purchase in March 2008 until the severance.

20. [253]

    I reject this submission. I am satisfied the McPherson St property was initially rented out to tenants to cover the interest repayments on the mortgage. However, while it has been rented to tenants almost continuously since it was purchased, the original intention of both Ali and Mary was that they would renovate it and then move into it as their permanent home. This is supported by the evidence referred to at [45] above. Ali deposed that he and the deceased had many discussions about renovations to it, but Mary prevaricated on the decision to move into the McPherson St property, in particular the renovations which should be made, and after about 9 to 12 months from the time it was first rented out, she told him ‘I don’t want to move in there. I can’t make up my mind about fixing it up or what to do’. It was put to Ali in cross-examination that Mary never intended to live in the property, and really the agreement between her and Ali was always that it was an investment, which Ali denied. I accept Ali’s evidence that at the time of settlement of the contract to purchase the McPherson St property, he and Mary had an understanding that after making renovations to the property, they would make it their home, but from about late 2009 they had effectively decided to keep it as an investment property and continued living in the Garfield St property.

21. [254]

    None of the cross-examination of Ali went to the nature of the representation made by Mary or the reliance by Ali on it.

22. [255]

    I accept Ali’s evidence that conversations broadly to the effect set out at [37] and [250] above occurred in November 2007, immediately prior to the auction and shortly after the contract was signed. I accept that Mary told Ali that if they purchased the property, it would be his if she predeceased him. Importantly, this was before Ali and Mary signed the loan agreement with Citibank, which occurred on 3 January 2008. In reaching this conclusion, I have taken into account that Ali’s evidence of the conversations is uncorroborated, and Mary is unable to give her version, and therefore it needs to be treated with caution. However, I have accepted his evidence having regard to the following:

    1. (1)

       I regard him as an honest witness and consider it to be unsurprising that he would recall the conversations accurately. It was a very significant decision they were making: to buy a house together as their permanent home after many years of looking for a suitable property in circumstances where he would take on the burden of meeting their obligations on the Citibank loan.

    2. (2)

       At the time the conversations occurred, he did not know that Mary had made a prior will. In circumstances where he had not made a prior will and believed that she had not done so either, it was entirely reasonable for the two of them to proceed on the basis that ‘the joint tenancy is almost as good as a will’, particularly as the property was, at the time of purchase, intended to be their permanent home and that they were, at that time, in an established de facto relationship.

    3. (3)

       I have taken into account that Ali did not call Ms Sharon Edwards (or explain the failure to do so) to corroborate the conversation set out at [250] above. On Ali’s account, she was present at the time. It was not submitted for Marcel that the Court should draw an adverse inference under Jones v Dunkel (1959) 101 CLR 298 at 320. She cannot be said to be in the ‘camp’ of Ali and, in any event, the failure to call her (or explain her absence) does not permit any inference that her evidence would have been damaging to Ali: J D Heydon, Cross on Evidence (13th ed, 2021, LexisNexis) at [1215]. Importantly, as noted above, there was no real dispute that the conversations occurred.

23. [256]

    I am satisfied on all the evidence that Ali relied on the representation that he would take the McPherson St property if he predeceased Mary. Ali does not give direct evidence as to what he would have done if the representation had not been made. I am satisfied on all the evidence that representations were fundamental to his decision to go ahead with the purchase.

24. [257]

    First, I am satisfied that their understanding at the time of purchase was that the property would become their permanent home after renovations were made, and this would be so whichever of them died first.

25. [258]

    Second, Ali was aware from the start that he would have to contribute a greater share of the overall cost of the acquisition than she would, and in fact did so (contributing approximately 65% to her 35%). It is apparent from Ali’s evidence that he has, throughout his life, been careful and cautious with money and would not likely have undertaken an obligation to pay more than 50% of the overall costs of acquisition of the property if his share was to be limited to 50%.

26. [259]

    Third, Ali needed to sell his property at 45 Veron St, Wentworthville in order to fund the repayment of the Citibank loan, as he had insufficient other assets to do so, which was to his detriment if he would only have a 50% share of the McPherson St property.

27. [260]

    Fourth, Ali gives evidence which is unchallenged of the considerable work he undertook personally to repair and maintain the McPherson St property during the time it has been held.

28. [261]

    Fifth, when the matter of severance was raised by Mary in the meeting with Mr Young, Ali did raise an objection but was told by Mr Young that it did not matter whether he disagreed as a court would make an order severing the joint tenancy regardless.

29. [262]

    On all the evidence, I am satisfied that Ali would not have proceeded with the purchase of the McPherson St property had he known that Mary would, one day, sever the joint tenancy without his agreement.

30. [263]

    In my view, the evidence establishes considerable financial detriment to Ali by the expenditure of significantly more than 50% of the cost of acquisition of the property and the time and effort he has spent in the repair and maintenance of the property.

31. [264]

    For these reasons, I am satisfied that Mary encouraged an expectation on the part of Ali that she would not without his prior agreement, sever the joint tenancy on which he relied and it would now be unconscionable for Mary, through her estate, to resile from it. Ali’s prima facie entitlement is to relief which makes good his expectation that he would take the full interest by survivorship. In my view that relief would not be wholly disproportionate to the detriment he has suffered and no innocent third party is affected by doing so. The appropriate relief is a declaration that the NSW Trustee and Guardian holds Mary’s 50% share of the McPherson St property on constructive trust for Ali, and an order for the transfer of that interest to him.

Issue 4: The plaintiff’s resulting trust claim

1. [265]

   Ali relied in the alternative on a resulting trust on the principles stated in Calverley v Green (1984) 155 CLR 242; [1984] HCA 81. In that case, Deane J said (at 266-267) that:

2. [266]

   The relevant contributions must have the character of purchase price (including incidental costs of the purchase such as legal expenses, stamp duty and registration fees). Incurring a liability under a mortgage will constitute a contribution to the purchase price, but if the parties borrow jointly in order to make the acquisition they will be treated as having borrowed in equal shares, and no account will be taken of the parties’ different contributions to repayment of the loan unless the evidence establishes that the parties intended to acquire ‘not the title to land subject to mortgage, but the land freed of the mortgage’, in which case contributions to the discharge of the mortgage will be taken into account: Calverley v Green at 262-263.

3. [267]

   The presumption of a resulting trust may be rebutted by evidence showing that the common intention of the parties at the time of the acquisition was for equality of interests despite inequality of contributions to the purchase price. It can also be rebutted if they are in a relationship which gives rise to a presumption of advancement, although I note there is some uncertainty whether the presumption of advancement applies to de facto relationships.

4. [268]

   In the present case, had the issue arisen, I would have concluded that Mary and Ali had the common intention at the time of the purchase that they would hold the McPherson St property in equal shares despite their unequal contributions to the purchase price because they each signed the ‘Instructions on Tenancy’ document stating that as joint tenants they would hold the property ‘jointly and equally’. They did so after being advised about what it meant. In addition, it is relevant that at the time of the purchase they had been in a committed and loving de facto relationship for some 17 years and intended to live together for the foreseeable future as a couple in the property. It is also significant that the rental income from the property was shared by them equally throughout their joint ownership.

5. [269]

   I am satisfied on all the evidence that at the time of the purchase of the McPherson St property, Mary and Ali intended to share the beneficial interest equally. Accordingly, Ali’s resulting trust claim fails.

Issue 5: Rectification of the 2014 will

1. [270]

   In light of my conclusion that Marcel has not established that Mary had testamentary capacity at the time she signed the 2014 will, this issue does not arise. However, in case the matter goes further I will deal with it briefly.

2. [271]

   The rectification claim is made pursuant to s 27(1) of the Succession Act which provides:

3. [272]

   The application for an order under s 27(1) must be made within 12 months after the date of the testator’s death, or such longer period as the Court allows for such an application: s 27(2) and s 27(3). In the present case, the application was made in Marcel’s cross-claim filed after 12 months from the date of Mary’s death. In all the circumstances, in my view it is appropriate to grant an extension of time and I would, if needed, have done so.

4. [273]

   I have had regard to the summary of the authorities on s 27(1) set out by Meek J in Reeves v Reeves [2024] NSWSC 134 at [419]-[436].

5. [274]

   I am satisfied that the reference to ‘my husband’ in cl 6 is a typographical error, resulting from the fact that the change of name of the residuary beneficiary required a consequential change of ‘my husband’ to ‘my sister’. The making of the error is explained by Mr Young’s evidence that after the various changes were made by his secretary, he did not read the 2014 will to Mary before she signed it, and I infer that he did not read it thoroughly himself and for that reason did not pick up the error.

6. [275]

   It follows that had the 2014 will been valid, cl 6 did not carry out Mary’s intentions because a clerical error was made by Mr Young, and it would have been appropriate to rectify that clause by replacing ‘my husband’ with ‘my sister’.

Issue 6: The plaintiff’s family provision claim

1. [276]

   Ali brought as an alternative to each of his other claims for relief, a family provision claim under s 59 of the Succession Act. As I have found in his favour on his estoppel claim, this alternative claim does not strictly arise, but it can be dealt with relatively briefly.

2. [277]

   It is not in dispute that Ali was living in a de facto relationship with Mary at the time of her death. Accordingly, he is an eligible person who may apply for a family provision order under Ch 3 of the Succession Act: s 57(1)(b). His application was made within 12 months of Mary’s death.

3. [278]

   Under s 59(1)(c) of the Succession Act, the Court may make a family provision order in favour of Ali if at the time when the Court is considering the application, the Court is satisfied that adequate provision for the proper maintenance, education or advancement in life of Ali has not been made by the will of the deceased. If that requirement is met, the Court may make such order for provision out of estate as it thinks ought to be made for the maintenance, education or advancement in life of Ali, having regard to the facts known to the Court at the time the order is made: s 59(2). Each of these questions requires an evaluative judgment taking into account the matters identified in s 60(2).

4. [279]

   In Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 at [112]-[115], Payne JA (Macfarlan JA and Sackville AJA agreeing) said:

5. [280]

   In relation to the evaluation of what is ‘proper’ by reference to ‘perceived community standards of what is right and appropriate’ (or ‘moral duty’ which was the preferred way of expressing the same concept in in Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 at [44] and [109]), these are to be ascertained according to the circumstances of the particular case, including the relationships between the applicant and the deceased and other persons who have legitimate claims upon his or her bounty and the circumstances and needs of those other persons: Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [64]. Importantly, as White JA said in Steinmetz v Shannon at [59], ‘the court does not ask whether the will was fair and does not have the power to adjust entitlements under the will according to what it considers to be fair’.

6. [281]

   In Lalic v Lalic [2022] NSWSC 31 at [48]-[54], Henry J summarised the authorities on the correct approach to the evaluative task required when determining whether the provision in a will is adequate and, if not, whether a family provision order should be made, as follows:

7. [282]

   Meek J in Tarbes v Taleb [2023] NSWSC 565 at [195]-[222] set out a comprehensive summary of the relevant principles to apply in undertaking that evaluative task to which I have also had regard.

8. [283]

   I will now discuss the matters referred to in s 60(2), on the hypothetical basis that Ali had failed on his estoppel claim. I will then deal briefly with the position, as I have found, that his estoppel claim is successful.

9. [284]

   In relation to the relationship between Ali and the deceased (s 60(2)(a)), the evidence establishes that Ali had a close and loving de facto relationship with Mary for around 25 years, living together for most of that time at the Garfield St property. While the relationship was difficult during the last two years following her diagnosis of a brain tumour, he was loyal and supportive of her throughout despite the considerable toll her sometimes aggressive and erratic behaviour had on him.

10. [285]

    As to the nature and extent of any obligations or responsibilities owed by the deceased to Ali or to any other claimant or to any beneficiary (s 60(2)(b)), Mary did have a moral obligation to make some provision for Ali reflecting the length and nature of their de facto relationship. She recognised her moral obligation to him by including him in her 2015 will and also in what she said to Mr Windeyer when she met with him on 14 July 2015 that she ‘thought she should give more to Ali’ (said with the knowledge that she had signed a severance of the joint tenancy).

11. [286]

    The evidence also establishes that Mary had a moral obligation to her sisters, Marcel and Madeline, who are natural testamentary objects and this was recognised her by in each of her wills. In particular, the evidence establishes that Mary had a close and loving relationship with Marcel throughout her life.

12. [287]

    In relation to the nature and extent of the deceased’s estate (s 60(2)(c)), the net distributable estate (before taking into account the conclusion above regarding the estoppel claim) is $1,559,826 (excluding legal costs of the proceedings).

13. [288]

    In relation to Ali’s financial resources and needs (including earning capacity) and age (s 60(2)(d), (e) and (g)), he is currently 74 years of age with limited earning capacity. His principal assets are his interest in the McPherson St property and Unit 7. Had he failed on his estoppel claim, he would be required to make Unit 7 his home (or purchase another property with the proceeds of his half share of the McPherson St property) with a commensurate reduction in his income.

14. [289]

    Ali suffers from a number of medical conditions: post-traumatic stress disorder, depression, anxiety, systemic arthritis, spinal stenosis, bulging disc in the lower back and neck, dental issues, severe tinnitus and cataracts requiring surgery.

15. [290]

    Ali’s family provision claim, as set out in his affidavit evidence, is that he remain in and retain the Garfield St property as his home, which requires renovation work to the kitchen and bathroom, repainting and carpeting which he estimates will cost around $50,000, medications for his various medical conditions which he estimates have a cost of $40 per week and a new car which he estimates will cost approximately $36,000.

16. [291]

    In relation to Marcel’s financial resources and needs, she lives with her daughter Sandra who inherited the flat which Marcel and her husband lived in together until her husband’s death. She owns land in Egypt with an estimated value (at the date of her affidavit) of US$7,000 which she is unable to sell (which is subject to a mortgage). She is 73 years of age and does not have an income, and had monthly expenses (at that time) of $730. She would like to relocate her family to Cairo but does not have the financial sources to do so.

17. [292]

    In relation to contributions by Ali to the deceased’s estate (s 60(1)(h)) the evidence establishes that Ali made financial contributions Mary’s estate or her welfare during her lifetime in the sense that he paid for many of the costs of their shared lifestyle as well as paying more than 50% of the cost of acquiring and maintaining the McPherson St property (by which she benefitted through receiving 50% of the income).

18. [293]

    In relation to provision made by the deceased for Ali (s 60(1)(i)), the evidence does not suggest that Mary provided any material benefits to Ali during her life, except for contributing 35% of the overall cost of the acquisition of the McPherson St property.

19. [294]

    In relation to the testamentary intentions of the deceased (s 60(1)(j)), I have referred above to the limited recognition by Mary of her moral obligation to Ali in her 2015 will and what she said to Mr Windeyer after signing it. There is an explanation for this limited recognition of her moral obligation to him in her delusions about him referred to earlier in these reasons.

20. [295]

    Ali was not maintained by Mary (s 60(1)(k)) and no other person is liable to support him (s 60(1)(l)).

21. [296]

    The evidence does not raise any matter relevant under the other paragraphs of s 60(2).

22. [297]

    Taking all of these matter into account, had Ali failed in his estoppel claim, I would have concluded that the 1993 will failed to make adequate provision for the proper maintenance, education or advancement in life of Ali. As a general guideline, it may be said that if the size of the estate is sufficient, a testator has a moral duty to provide to the surviving spouse of a long standing harmonious relationship, provision of a secure home, an income sufficient for him or her to live in a reasonable degree of comfort and a fund for modest luxuries: Steinmetz v Shannon at [98]-[109]. However, where there are competing claims on an estate which is insufficient to meet all of them, the claim of the surviving spouse cannot be regarded as paramount: Steinmetz v Shannon at [100]. In the present case, the estate is not large and there is a competing moral claim to Marcel which needs to be recognised, and was consistently viewed by the deceased in all her wills as conferring an entitlement on Marcel to the Garfield St property (which Mary had acquired prior to her relationship with Ali).

23. [298]

    Given that the nature and size of the estate means that each of these moral claims could not be met in full, I would have found (had the estoppel claim not been successful) that the appropriate provision for Ali was the transfer to him of Mary’s 50% share of the McPherson St property. That would allow some effect to be given to Mary’s gift of the Garfield St property to Marcel, and recognise both Ali’s moral claim and his disproportionate contributions to the acquisition of the McPherson St property.

24. [299]

    As noted, it follows from the way Ali’s case was put at the hearing that the family provision claim is not pressed in light of the conclusion I have reached that his estoppel claim should succeed. I regard that as a correct concession as, in my view, given the success of his estoppel claim, the 1993 will does not fail to make adequate provision for Ali’s proper maintenance, education or advancement in life.

25. [300]

    I reach that conclusion because of the need to recognise the competing moral claim of Marcel, which Mary recognised in all her wills, and that Ali will (as a result of success of the estoppel claim) be able to use either the McPherson St property or Unit 7 as his home and the other to derive rental income. I note that the size of the deceased’s net estate following success of the estoppel claim is only $734,826 (before taking into account legal costs) (Ex K).

Conclusion

1. [301]

   For the above reasons, I have concluded that:

   1. (1)

      The first defendant has succeeded in propounding the 1993 will which is the deceased’s only valid will, and probate of that will should be granted to the NSW Trustee and Guardian.

   2. (2)

      The plaintiff has succeeded in his claim that the defendants are estopped by the conduct of the deceased from denying that the plaintiff is entitled to the deceased’s half share in the McPherson St property. The appropriate relief is a declaration that the plaintiff is the legal owner of the whole of the McPherson St property and an order that the interest registered in the name of the deceased in that property be transferred to the plaintiff.

   3. (3)

      The plaintiff has failed on the resulting trust and the family provision claims.

2. [302]

   Subject to anything which the parties wish to say regarding the form of the orders, the orders I propose to make to deal with the substantive issues are as follows:

   1. (1)

      Order that probate of the deceased’s will dated 30 June 1993 in solemn form be granted to the NSW Trustee and Guardian.

   2. (2)

      Order that the proceedings be remitted to the Registrar to complete the grant.

   3. (3)

      A declaration that the defendants are estopped by the conduct of the late Mary Moussa from denying that the plaintiff is the legal and beneficial owner of the real property known as 6 McPherson Street, Carlton, New South Wales (McPherson St property).

   4. (4)

      A declaration that the NSW Trustee and Guardian, as executor, holds any title and interest in the McPherson St property in trust for the plaintiff.

   5. (5)

      Order that the interest registered in the name of the late Mary Moussa, or the NSW Trustee and Guardian as executor, in the McPherson St property be transferred to the plaintiff.

3. [303]

   This leaves an outstanding issue of costs. The parties have requested the opportunity to make submissions on costs after these reasons are published. I will make orders for submissions on costs, and note that the parties will need to address the extent to which it is appropriate for the deceased’s estate to bear costs in circumstances where the costs incurred by the plaintiff and the first defendant appear to be out of proportion to the amount which each could have expected to recover if successful.

4. [304]

   I direct the parties, within 14 days of these reasons being delivered, to provide to my associate short minutes of order which reflect these reasons, which should allow the parties sufficient time to agree on orders to reflect these reasons and a timetable for submissions on costs.