Petrovski v Nasev; The Estate of Janakievska

HIS HONOUR: Vasilka Janakievska (also known as "Vasa Janakievska") ("the deceased") died on 29 May 2009. At the date of her death, she was aged 87 years, having been born in August 1921. This is a probate action that arises following her death.

The evidence establishes that the deceased made two wills during her lifetime, the first being made on 15 April 1999 ("the 1999 Will") and the last being made on 17 December 2004 ("the 2004 Will"). There is no dispute that the 1999 Will was duly executed, and that, when made, it was a valid and effective Will. The sole issue is whether the 2004 Will is a valid will, and as such should be admitted to probate. If it is valid, then it revoked the 1999 Will. I shall return to each of the Wills later in these reasons.

The central questions concerning the validity of the 2004 Will, are whether the deceased validly executed the 2004 Will; whether she had testamentary capacity, and whether that Will was produced as a consequence of undue influence. The deceased's lack of knowledge and approval of the 2004 Will, although not alleged, initially, by way of defence to the validity of the 2004 Will, was relied upon as a result of a further amended Defence to Cross-Claim which was filed, in Court, without opposition, on the second last day of the hearing.

The first Plaintiff was named as one of the executors in each of the two Wills. Until the filing, on 13 October 2011, of an amended Defence to Cross-Claim, he did not seek a grant of Probate of the 2004 Will, or plead, that in the event the 2004 Will is valid, he would join, with the Defendant, in obtaining the grant. In fact, he asserted that, because of the matters alleged, he did not propound the 2004 Will.

The deceased's estate in New South Wales, at the date of death, comprised both movable, and immovable, property, being real estate in Rockdale ($555,000) and in Erskineville ($565,000), shares ($571) and cash in bank ($125,496). No liabilities were disclosed in the Plaintiffs' affidavit of executors sworn 11 July 2009. Thus, the estate, at the date of death, had an estimated total gross value of $1,246,067. (I have stated, and, hereafter, shall state, only the dollar amounts and shall omit a reference to the cents.)

At the date of hearing, the nature of the estate remained substantially the same, but its value has increased. There is no specific evidence of the current value of the real estate or the amount held in the bank account. However, the parties agreed, at the hearing, that the value of the estate is in the order of $1.5 million. No liabilities have been identified, although it may be that there are some. There are, of course, the costs of the proceedings.

The Plaintiffs, Pavle Petrovski, Elli Stojanoska and Gordana Becvarov, commenced the proceedings by Summons filed on 13 July 2009 seeking a non-contentious grant of Probate in common form. Subsequently, there were directions that resulted in the matter proceeding by way of pleadings and the Defendant was joined as a party.

The Plaintiffs filed a Statement of Claim on 14 August 2009. They sought a grant of Probate in solemn form of the 1999 Will. (In fact, the Statement of Claim referred to the 2004 Will and asserted the reasons why it was not a valid will. This was not the form the pleading should have taken but nothing much really turns on this.)

The Defendant, Alek Nasev, filed his Defence on 28 September 2009. Apart from putting the Plaintiffs to proof of some of the formal facts asserted in the Statement of Claim, the Defendant stated that the 2004 Will was made by the deceased and that it is "the last will and testament of the deceased which revokes all previous testamentary instruments".

On the same day, the Defendant filed a Statement of Cross-Claim, in which he sought a grant of Probate in solemn form of the 2004 Will.

In the Defence to the Cross-Claim, which was filed by the Plaintiffs on 20 November 2009, the Plaintiffs put the Defendant to proof of the facts pleaded (other than the date of the deceased's death and that she left property in New South Wales). They did not assert, expressly, a lack of capacity, or undue influence, in this pleading. However, in the Statement of Claim, they had referred to the 2004 Will and had pleaded that the 2004 Will was not duly executed and/or valid.

In particulars relating to invalidity of the 2004 Will, they asserted: "(a) The deceased at the time was 82 years of age and senile; (b) At the time the deceased had been suffering from defective memory; (c) The deceased in December 2003 suffered a stroke that caused her to be in poor health physically and mentally; defective memory and incapable of understanding the nature and effect of the act of execution of a will; (d) The deceased did not speak, read or write in the English language and the document purporting to be a later will does not appear to have been translated into the Macedonian language; (e) The execution of the document purporting to be a later will was obtained by undue influence on the part of the Defendant taking advantage of the deceased's ill health, poor memory and unfit mind to misrepresent and pressure the deceased to the point where the influence was such that the execution of the purported will was not of her own volition."

In a letter dated 18 August 2011, the Plaintiffs' solicitors provided further particulars of undue influence. At the hearing, the parties agreed that the contents of this letter should be treated as additional particulars relied upon, namely: "(a) That the Defendant had threatened to take court action against the deceased if she refused to transfer her property at Erskineville to him; (b) That the Defendant continually harassed and demanded that the deceased transfer to him the Erskineville property; (c) That the Defendant instructed a solicitor as to the terms of the will of the deceased without the deceased's authority; (d) That the Defendant took the deceased to a solicitor to sign the said will; (e) That the Defendant instructed the solicitor in relation to the preparation of the will without the consent, understanding and/or knowledge of the deceased; (f) That the Defendant through his instructions to the solicitor caused the solicitor to forward to the deceased a letter dated 28 October 2004 which letter it will be alleged the deceased believed to be the commencement of proceedings by the Defendant that the Defendant had threatened against the deceased; (g) The Defendant was present with the deceased and the solicitor when the will was executed and as such no opportunity was afforded to the deceased to seek confidential and independent legal advice in the absence of the Defendant; (h) That the Defendant was aware and/or ought to have been aware that the deceased was frail, unwell, and had difficulties with her memory and particularly was not of sound mind."

A copy of the letter was added to the tender bundle of documents. It was accepted that the letter was not admitted as evidence of the truth of its contents, but simply as additional particulars of the allegation of undue influence.

In the further amended Defence to the Cross-Claim to which I have referred, the Plaintiffs relied upon the following particulars in support of the defence of lack of knowledge and approval (amended in these reasons to follow the nomenclature used): "(a) There is an absence of an appropriate translation clause in the 2004 Will. (b) The 2004 Will did not reflect instructions given by the Defendant. (c) The 2004 Will did not reflect instructions as were given by the deceased. (d) To the extent the Defendant gave instructions consistent with the deceased's state of mind, he was not authorized to do so. (e) The name of the deceased was spelt incorrectly in the introductory words of the 2004 Will. (f) The Defendant was not authorised to give instructions as to the terms of the 2004 Will. (g) The deceased did not provide instructions as to the terms of the 2004 Will. (h) The deceased did not authorise the Defendant to give instructions for the 2004 Will. (i) The deceased did not approve the 2004 Will. (j) The terms of the will drafted and presented by solicitor, Dobrinka Zlatevska, did not reflect such instructions (or the tenor of those instructions) as may have been given to the solicitor by the deceased. (k) The deceased did not understand the term 'executors and trustees' and the functions associated therewith. (l) The deceased did not know she was signing a Will."

They added, as particulars of lack of testamentary capacity: "(c) The deceased in August 2004 suffered a stroke that caused her; to be in poor health physically and mentally; defective memory and incapable of understanding the nature and effect of the act of execution of a will. (d) The deceased was incapable of understanding the nature and effect of the act of execution of a will and/or lacked testamentary capacity." and particulars of undue influence: "(i) That the Will effected a substantial change to the deceased's long-standing testamentary intentions; (j) That the Defendant was involved in procuring a will that substantially benefits him; (k) That the Defendant had a motive for influencing the deceased to make a will in his favour; (l) That the deceased was vulnerable and submissive to domineering behaviour; (m) That there were irregularities in preparing the will; (n) The Defendant attending the deceased's solicitor's office only days after the deceased attended the solicitor believing the Defendant had instituted legal proceedings against her and the Defendant making enquiries as to the testamentary intentions of the deceased at that time. (o) The differences in the nature of relationships with the deceased between the Plaintiffs and the Defendant."

In a Reply, filed on 17 October 2011, the Defendant asserted that the first Plaintiff "has renounced, or lost, the right to seek to have with the Cross-Claimant, a joint grant of the Will of the deceased dated 17 December 2004" because he did not propound all testamentary documents, or renounce all testamentary documents, and because he has actively taken steps inconsistent with "claiming any right of executorship under the 2004 Will". The Defendant stated, in the alternative, that the Court, in its discretion, ought not grant Probate to the first Plaintiff, upon the basis that "there is little prospect that he will be both willing and able to co-operatively jointly administer the estate with the Cross-Claimant, and as such the due administration of the estate is likely to be jeopardized and his involvement is likely to unnecessarily add to the costs of administration of the estate". Thus, a supplementary question, regarding whether the first Plaintiff has renounced Probate of the 2004 Will, thereby resulting in a grant not being made to him and to the Defendant jointly, could have arisen.

At the commencement of the submissions, I was informed that the Defendant accepted, in the event he was successful, that there should be a grant of Probate, in solemn form, of the 2004 Will, to him and to the first Plaintiff.

Notice of the Plaintiffs' application for probate of the 1999 Will was published in the Sydney Morning Herald on 11 June 2009.

As there was no dispute about the validity of the 1999 Will, the Plaintiffs' case in chief was limited to tendering the original of the 1999 Will and to reading the affidavit of one of the attesting witnesses to the deceased's signature on that Will. The attesting witness, whose affidavit was read, had also translated the contents of the 1999 Will to the deceased. (There was no affidavit from either of the other two attesting witnesses, but this was unnecessary in the light of the agreement of the parties about the validity of this Will.)

The Plaintiffs also read what may be described as the executors' affidavit sworn by them, which, amongst other things, identified the 1999 Will, confirmed that the deceased had not remarried after that Will had been executed, asserted that each of them was over the age of 18 years and stated that if probate were granted to them, they would administer the estate according to law and, if necessary, verify and pass accounts.

The Defendant's case proceeded, then, with reading of the affidavits relied upon by the Defendant. These affidavits included an affidavit from the Defendant, his wife, the solicitor who prepared the 2004 Will, and various friends of the deceased who gave evidence about conversations each had with the deceased.

The second attesting witness to the deceased's signature on the 2004 Will was not required for cross-examination. She had sworn a formal affidavit of attesting witness and another affidavit stating that she did not have any recollection of the circumstances in which the 2004 Will was made.

Three other witnesses relied upon by the Defendant, to whom I shall refer later in these reasons, were cross-examined.

In their defence to the Cross-Claim, the first and second Plaintiffs, two solicitors who met with the deceased in 2004, and two medical witnesses called on the issue of the medical condition of the deceased, each gave evidence. Finally, an affidavit of a forensic document examiner was read. His evidence constitutes a small part in the determination of the proceedings, and I shall refer, briefly, to some of his evidence.

Although the matter was listed for 10 days, it was completed within 5 days. This was due to the diligence, and competence, of the legal representatives of the parties, who complied with all pre-trial directions (including compiling a bundle of agreed documents), took all reasonable steps to confine the issues, and did not spend a significant amount of time taking objections to the evidence, or cross-examining witnesses, who could not add very much to the mosaic of facts necessary to decide the case. Overall, the cross-examination of the principal witnesses was not unduly protracted.

In addition, the submissions provided by senior and junior Counsel for each of the parties were succinct and provided useful assistance. The original of each of the submissions will remain with the papers.

The following persons play a part as a party, or a witness, or have been referred to, otherwise, in the proceedings. I identify each in no particular order, or priority, and state matters regarding her, or him, that are not in dispute, or which have clearly been established by the evidence. I have indicated, where necessary, the witnesses who were not cross-examined. (a) Vasilka Janakievska is the deceased. She was born in 1921. She was married, but she and her husband had no children. (b) Petar Janakievski was the husband of the deceased. He died in September 1993. Probate of his Will was granted to the deceased. The whole of his estate passed to her. (c) Pavle Petrovski is the nephew of the deceased. His mother is a sister of the deceased. He is the first Plaintiff in these proceedings. (d) Loza Petrovska is the wife of Pavle and the mother of Elli and Gordana. She was not cross-examined. (e) Elli Stojanoska is the daughter of Pavle and Loza. She changed her first name from "Elica" to "Elli", which change was registered on 19 September 2002, in a Change of Name Certificate. She is referred to as "Elica" in the 1999 Will. She and her husband, Robert, lived with the deceased for a little over a year commencing in 1994, and then again, with their 3 children, for about 5 years, between about 2000 and 2005. She is the second Plaintiff in the proceedings. Throughout her life, Elli referred to the deceased as her grandmother, although, of course, the deceased was not. The deceased was her great-aunt. (f) Robert Stojanoski is the husband of Elli. He was not cross-examined. (g) Gordana Becvarov is also a daughter of Pavle and Loza. Her married name is "Becvarov". She is the third Plaintiff in the proceedings. She was not cross-examined. Throughout her life, she, also, referred to the deceased as her grandmother, although, of course, the deceased was not. The deceased was her great-aunt. (h) Alek Nasev is the brother of the deceased's husband, Petar, and the brother-in-law of the deceased. He is the sole Defendant in the proceedings. (i) Katia Nasev is the wife of Alek. (j) Nick Pertsoulis is the solicitor employed at Edward Kassis & Associates and the solicitor to whom the deceased gave instructions for, and who prepared, the 1999 Will. He is also one of the attesting witnesses to the signature of the deceased on the 1999 Will. He did not swear an affidavit in the proceedings and was not cross-examined. (k) Eva Harb was a secretary in the offices of Edward Kassis & Associates and one of the attesting witnesses to the signature of the deceased on the 1999 Will. She did not swear an affidavit in the proceedings and was not cross-examined. (l) Alexander Attapallil is a solicitor who was admitted to practice in 1998. He purchased the firm Edward Kassis & Associates. The firm acted for the deceased, in about 1994, following the death of her husband, to obtain Probate of Petar's Will. Mr Attapallil had been the principal of the firm when the 1999 Will was prepared by a solicitor in the firm, but had nothing to do with its preparation or execution. He did not meet the deceased until about 2004. By that time, the firm's name had been changed to Lexes Lawyers. (m) Gordana Bozinovska is a solicitor who completed the Legal Practitioners Admission Board course in 2004 and was admitted to practice in February 2005. She is a lawyer formerly admitted, and practising, in Macedonia. She worked with Mr Attapallil. She is able to speak Macedonian and when the deceased attended upon Mr Attapallil, she translated for them. (n) Dobrinka Zlatevska is a solicitor who was admitted to practice in 1975. She made the acquaintance of the deceased as a member of the same congregation of the Macedonian Orthodox Church. She had seen the deceased at Church on the main religious festivals over the years. She and the deceased were aware of one another. They exchanged greetings and customary pleasantries. They did not visit one another's homes. She had never acted for the deceased, in respect of any legal matters, prior to 2004. Ms Zlatevska had been, and in 2004, was, one of the solicitors who had acted for Alek and Katia in relation to his, or their, legal matters. In fact, Alek had retained Ms Zlatevska's firm to act for him, at different times, from the early 1980s. She is the author of the 2004 Will and one of the attesting witnesses of the deceased's signature on that Will. She met with the deceased and Alek on 17 December 2004, on which day the 2004 Will was executed by the deceased. Ms Zlatevska's firm has continued to represent Alek in these proceedings, even though it must have been clear that it was very likely that she would be a witness in the case. (I make no criticism of her because it appears from the evidence that she has been astute to ensure that she has not participated in the conduct of the case on behalf of the Defendant. Another solicitor from her office was instructed and Ms Zlatevska did not attend the hearing until she was required.) (o) Julie Bogdanovski is the other attesting witness of the deceased's signature on the 2004 Will. She is a paralegal who was employed in the offices of D Stanefska & Associates from March 1997. She was not cross-examined. (p) John Stojcevski is a family friend of the deceased and of the Plaintiffs. The deceased requested him to attend, with her, upon her solicitors approximately a week or two prior to the 1999 Will being executed. He attended, with the deceased, and as Mr Pertsoulis read each paragraph of that Will out aloud, he translated what had been read out in English into the Macedonian language. He identifies who was present at the time the 1999 Will was executed and acknowledges his signature on that Will. He was not cross-examined. (q) Krste Crkovski was a long-time friend of Petar, the deceased and Alek. (r) Donka Crkovska is the wife of Mr Crkovski and was also a friend of Petar and of the deceased. (s) Risto Johns was a long-time friend of Petar and of the deceased. He would attend Church with them. (t) Rade Kocoski was a long-time friend of Petar and of the deceased. He would attend Church with them. He was not cross-examined. (u) Jana Kocoska is the wife of Mr Kocoski and a long-time friend of Petar and of the deceased. She would attend Church with them. She was not cross-examined. (v) Victoria Mabbutt met Pavle, the deceased, and Petar, in about 1974, when they moved into premises next door to where she lived. She was not cross-examined. (w) Dr Mihajlo Mihajlov is a medical practitioner who has practised in Australia since 1972 and who, at the end of 2004, retired from practice. He was the general medical practitioner for the deceased and Petar for over 30 years. He spoke, in Macedonian, to the deceased when she attended his surgery. (x) Professor Daniel Chan is a Geriatrician, who provided two expert reports relied upon on behalf of the Plaintiffs. He did not ever meet or treat the deceased. (y) Stephen Dubedat is a forensic document examiner who examined a two-page file note dated 17 December 2004, in the handwriting of Ms Zlatevska, "with a view to determining when the note was prepared and if there were any handwritten insertions written with a different coloured black ink on the file note".

Without any undue familiarity, or disrespect intended, in these reasons I shall, hereafter, refer to each of the Plaintiffs, the Defendant, and the other family members by her, or his, given name. At times, where I am referring to the three Plaintiffs together, I may identify them as such.

I directed the parties to prepare a statement of agreed background facts and chronology. I have taken the facts that I set out below, with some amendments, principally, from the Outline of Submissions prepared by counsel for the Defendant.

The facts I set out in this paragraph are agreed or, where they are not, I am satisfied that the evidence clearly establishes them. (a) The deceased was born in Macedonia. She was one of three children. Only her sister, Pandora Petrovska, is alive. She lives in Macedonia. Pavle is the son of Pandora. (b) Alek was born in April 1931, in Macedonia. He arrived in Australia in about 1955. On arrival he worked as a mechanic. He later commenced a successful trucking business and was able to accumulate funds to purchase various properties. He sponsored the immigration of family members from Macedonia. (c) The deceased and Petar arrived in Australia in about 1963, having been sponsored by Alek. Initially, they lived in a house at Croydon Park, which Alek had purchased and had registered in the name of Petar and his sister, Zaharia. Alek lived there with the deceased and Petar. (d) Between 1964 and 1968, Alek worked overseas. In 1968, he married Katia. They have one child, Despina. (There is no evidence of the relationship between the deceased and Despina.) (e) For some time between 1964 and 1968, the deceased and Petar lived at a house, in Enmore, whilst they were able to save enough money to purchase the property at Erskineville. They did this with the further assistance of funds from Petar's share of the sale of the house in Croydon Park. (f) At about this time, the deceased and Petar worked as process workers at CSR. (g) Pavle was born in May 1945 in Macedonia. He arrived in Australia in about November 1965. On arrival, he lived with the deceased and Petar in rented accommodation in Enmore. However, within a short time, they all moved to the property in Erskineville, where they remained living for a number of years. He assisted with repairs and maintenance of the Erskineville property and with general expenses. (h) Petar made a will on 5 October 1971. In that Will, he appointed the deceased as his sole executrix and trustee, and, provided she survived him by 30 days, left her the whole of his estate. In the event that she predeceased Petar, or died before proving his Will, the deceased appointed Alek and Pavle to be the executors and trustees of the Will. His Will also provided: "... 4. IF my wife should predecease me or die within thirty (30) days of my death THEN I GIVE DEVISE AND BEQUEATH all my real and personal estate as aforesaid and any property over which I may have a power of appointment unto my trustees UPON TRUST to sell call in collect and convert into money such part of my estate as shall not consist of money at such time or times and in such manner as they shall think fit with power to postpone the sale calling in or conversion of the whole or any part or parts of my real and personal property during such period as they shall think proper and to leave the same in its present form of investment without being responsible for loss and to stand possessed thereof whether converted or unconverted or reinvested UPON TRUST for themselves in equal shares as tenants in common absolutely. ..." (i) There is no evidence that the deceased made a will at the same time as her husband, or if she did, what the terms of that will were. (j) In about 1973, Pavle purchased a house at Tabrett Street, Rockdale, which he, initially, rented to third parties. (k) In about 1974, the deceased and Petar purchased a house at Herbert Street, Rockdale. They moved into this house, together with Pavle, and then rented out the Erskineville house. All of them shared the household expenses. (l) In 1974, Pavle married Loza, who joined the household with the deceased and Petar. Their daughters, Elli and Gordana, were born in April 1975 and April 1978 respectively. The adults continued to share the household expenses. The deceased assisted Loza in taking care of the children. (m) In about 1984, Pavle and his family moved to a new home they had built on the Tabrett Street property. He continued to see the deceased and Petar almost every day and to assist them by, for example, delivering to them groceries and by taking them to medical appointments. (n) From the time of their arrival in Australia, the deceased and Petar, maintained a strong connection with the Macedonian community through family and friends, and by regularly attending the Macedonian Church, in Rosebery. They did not drive and counted on others to provide assistance to enable them to attend. (o) In 1993, Petar became sick, and, in September 1993, he died. The deceased and Petar had no children. There is no suggestion that they adopted any children. (p) Probate of Petar's Will was granted to the deceased, in 1994. (q) Upon her husband's death, the deceased became the sole legal owner of the Rockdale property and the Erskineville property. (r) Following her husband's death, the deceased lived, alone, in the Rockdale property. She refused Pavle's invitation for her to come and live with him and Loza. However, Pavle assisted her with her financial affairs, as she had a very limited understanding of the English language, and could not read, or write, English. He assisted her in other ways as well, typically visiting her, morning and evening, to ensure she was well and to deliver groceries that he thought she might need. (s) From about July 1994, until November 1995, Elli, and her husband, Robert, moved in to stay with the deceased (whilst they were saving to purchase a property for themselves). They were working full-time and helped the deceased as much as they could. Elli states that she observed Pavle continuing to assist the deceased as he had done previously. (t) In 2000, Elli and Robert moved back to live with the deceased. They stayed with the deceased for five years. (u) During the five years that Elli and Robert lived with the deceased at the Rockdale property, they assisted the deceased by often paying the utility expenses, working around the house, and in maintaining the garden. They changed the carpet in the whole house and replaced the floorboards. They replaced a number of the deceased's appliances. (v) Mr Attapallil met the deceased, initially, in about September 2004, when she sought advice regarding converting the title of the Erskineville property from Old System to Torrens title. At that time, she had said to him words to the effect that a Torrens title is much easier to deal with than an Old System title and that that was the modern way of doing things. (w) Mr Attapallil had previously had a conference with Pavle concerning a Power of Attorney for the deceased. Ultimately, no Power of Attorney was required. (x) Following the making of the 2004 Will, Alek did not see the deceased again. He did not visit the deceased, at any time, whilst she lived with Pavle, he explained, because of the state of his relationship with Pavle's daughter. Katia last saw the deceased a few days prior to the making of the 2004 will (on 12 December 2004), at a christening, held in the Macedonian Church. They had lunch together and Alek and Katia drove the deceased home. (y) In January 2005, the deceased suffered a stroke (to which I shall refer in more detail later). When she was released from hospital, she lived, for the rest of her life, with Pavle and his wife. (z) From the time of her discharge from the hospital, the deceased was, essentially, chair bound and bed-ridden and required assistance with all activities of daily life, which assistance was provided by Pavle and Loza and members of their family. It seems clear that, following this stroke, the deceased lacked testamentary capacity.

In the 1999 Will, which is a one-page document (with a back page), the deceased appointed the Plaintiffs as executors. The essential terms of the Will provide: (a) for a revocation of all former testamentary dispositions; (b) a specific devise of the Rockdale property, as well as the furniture, furnishings and contents to Elli (referred to in the Will as Elica) absolutely; (c) a specific devise of the Erskineville property, as well as the furniture, furnishings and contents, to Gordana absolutely; (d) a bequest of the rest and residue of the estate, including the proceeds of any life insurance policy, after the payment of debts, funeral and testamentary expenses, to Pavle absolutely; (e) in the event that any beneficiary died before the deceased leaving children, then those children, on attaining their respective majorities, would take equally the benefit that their parent would otherwise have taken.

The Will bears the following translation and attestation Clause: "The Testatrix not being able to read or speak the English language this Will was read over to her translated into the Macedonian language by John Stojcevski of ... who then informed us that the Testatrix has said that she approved of the Will. It was then signed by the Testatrix in our presence and attested by us in the presence of her and each other"

The attesting Witnesses are identified as John Stojcevski, Nicholas Pertsoulis and Eva Harb. The back page identifies solicitors, Edward Kassis & Associates, of Rockdale.

The circumstances surrounding the preparation and execution of the 1999 Will are not in dispute. I shall return to these shortly.

In the 2004 Will, which is a two-page document (with a back page), the deceased revoked all former Wills and testamentary dispositions and appointed Alek and Pavle as joint executors and trustees. She left the whole of her estate to the executors, on trust, to pay debts, funeral and testamentary expenses, probate and estate duty, and any other duties payable in consequence of the deceased's death, and then provided: (a) a specific devise of the Erskineville property, to Alek "because he helped me out and it was my husbands (sic) wish"; (b) a specific devise of the Rockdale property to Pavle; (c) a gift of the rest and residue of the estate to Alek and Pavle "who shall survive me as tenants in common in equal shares"; (d) if either Alek or Pavle failed to survive the deceased, then the share to which he would have been entitled had he survived, passed to his surviving child, or children.

The Will then provided "I wish D Stanefska & Associates to be employed by my executors as their solicitor in connection with the execution of the provisions of this Will and any codocil (sic) to it".

The attestation Clause, in the 2004 Will, states: "Signed by the Testatrix as and for her last Will and testament in our presence and attested by us in the presence of her and of each other."

The attesting Witnesses are Ms Zlatevska and Ms Bogdanovski. The deceased and each of the two attesting witnesses signed each page (except the back page).

The back page identifies solicitors, D Stanefska & Associates, of Rockdale.

The circumstances surrounding the preparation and execution of the 2004 Will are in dispute. I shall return to these shortly.

In each of the 1999 and 2004 Wills, the deceased's signature appears. In the 1999 Will, the deceased has signed both her first and last names, whilst in the 2004 Will, the initial of her first name is written, followed by the whole of her last name. The signature on the 2004 Will discloses a slight deterioration in her signature.

There was, ultimately, no dispute that each of the Wills is validly and formally executed in accordance with s 6 of the Succession Act 2006. (I note, in passing, that s 6(3) of the Succession Act , provides that it is not essential for a will to have an attestation clause.)

I am satisfied that the circumstances surrounding the preparation, and the execution, of the 1999 Will, are as follows: (a) The deceased requested Elli to make an appointment to see her (the deceased's) solicitor, who was a solicitor at the firm, Edward Kassis & Co, for the purpose of making a Will. (b) After confirming the name of the deceased's solicitor, Elli organised the appointment for, and attended with, the deceased upon Mr Pertsoulis. She translated the instructions given by the deceased to Mr Pertsoulis. However, the Will was not prepared and executed immediately. Mr Pertsoulis stated that he "will need an independent witness and translator to go over the Will again". (c) Elli took no further part in the making, or execution, of the 1999 Will. (d) Following her meeting with the solicitor, the deceased telephoned John Stojcevski and informed him that she had given instructions for the preparation of a Will and of Mr Pertsoulis' request for an independent witness and translator. Mr Stojcevski agreed to attend, with the deceased, upon the solicitor. (e) Mr Stojcevski did attend, with the deceased, at the offices of Edward Kassis & Associates, on 15 April 1999. The offices were situated above the Commonwealth Bank at Rockdale. He recollects that the 1999 Will had already been prepared when he arrived. Mr Pertsoulis read the contents of the Will, in English, paragraph by paragraph, and as each paragraph was read, Mr Stojcevski translated what he had heard read from the English language to the Macedonian language. The Will was then signed by the deceased and by each of the other persons whose signature appears on the Will. (f) The deceased explained why she did not leave the whole of her estate to Pavle. She confirmed that since he had told her that he would probably have to pay "lots of taxes and you would leave everything you have to the girls anyway", she had left part of her estate to Gordana and Elli.

Even though there was some dispute as to the events, and I shall refer to some of the facts surrounding the creation and execution of the 2004 Will later in these reasons, I am satisfied that the basic facts surrounding the preparation, and the execution, of the 2004 Will, are as follows: (a) In about October 2004, Alek went to the office of D Stanefska & Associates and had a conversation with Ms Zlatevska. (I shall return to this conversation later in these reasons.) (b) Ms Zlatevska prepared a draft Will, which, at least in part, was based upon what she had been told by Alek. (c) Ms Zlatevska caused a letter, dated 28 October 2004, addressed to the deceased, at the Rockdale address, to be sent, which stated, in English: "... [Y]our Will has now been prepared in accordance with your instructions and awaits your signature. Kindly arrange an appointment to attend our office at your early convenience for the purpose of completing this document." (d) A copy of the Will that had been drafted by Ms Zlatevska was not enclosed with the letter. (e) Subsequently, Elli telephoned Ms Zlatevska to discuss the contents of the letter and the draft Will, but Ms Zlatevska informed her that she could not speak to her, but only to the deceased, about these matters. The deceased did not speak to her at this time. (I shall return to the terms of the conversation between Elli and Ms Zlatevska later in these reasons.) (f) In mid-to-late November 2004, Ms Zlatevska telephoned the deceased's home. She spoke to Robert saying that she wished to speak with the deceased who "has to come to my office to sign something". Robert did not allow Ms Zlatevska to speak with the deceased on this occasion referring to the deceased being "not a well person, old and scared", and a person who had her own solicitor. (Although Ms Zlatevska could not recollect this conversation, I am satisfied that it occurred.) (g) Shortly after the conversation with Ms Zlatevska, Robert telephoned Ms Zlatevska's office to ascertain what the deceased was required to sign, but he was not able to speak with her. (h) A few weeks later, on 17 December 2004, the deceased executed the 2004 Will. (i) Alek went with the deceased to the appointment, at the offices of D Stanefska & Associates. He remained, and was present, whilst a conversation occurred between the deceased and Ms Zlatevska. Also present was Ms Zlatevska's secretary, Julie. She remained present in case amendments to the Will drafted by Ms Zlatevska were required. (j) The deceased and the two attesting witnesses signed the 2004 Will at the conclusion of this conference, which was thought to have lasted at least 45 minutes. (k) Following the execution of the Will, Ms Zlatevska sent a memorandum of costs for the work done to Alek and he paid the amount of those costs. (l) The Plaintiffs did not know of the events of 17 December 2004, until after the death of the deceased. Whilst they were aware that a will had been prepared by Ms Zlatevska, they were never informed, during the lifetime of the deceased, that the deceased had executed the 2004 Will.

In this case, there are many statements made by the deceased to which I shall refer. There was no objection taken to any of the statements. There was no suggestion that the statements of the deceased were not made by her to the person who gave evidence of the statements. There was a dispute about the truth of some of the statements, particularly statements attributed, by the deceased, to Alek and by him to her.

It will be necessary to set out the statements said to have been made by the deceased as part of the mosaic of facts; to consider the reliability of the witness who gave evidence of those statements; and, if the statements of the deceased are found to have been made, to consider whether they prove the facts which they might evidence.

In the circumstances, I have proceeded upon the basis that such statements are properly characterised as original evidence of relevant matters sought to be established by the statements, namely the knowledge, intention, and mental state of the deceased at various times. I have not treated the evidence of conversations, with Alek, as repeated by the deceased to others, to prove the facts which they might evidence ( Nicholson v Knaggs [2009] VSC 64 at [37]), unless so stated.

There is no dispute about the following additional facts.

On 3 December 2004, the deceased went, with Pavle, to Lexes Lawyers, at Rockdale. She conferred with Mr Attapallil whilst Pavle waited for her outside his office. Ms Bozinovska was present and she translated the conversation from the Macedonian language into the English language, and vice versa, as Mr Attapallil did not speak Macedonian. There is no suggestion that she was not qualified to undertake this task appropriately.

In the conference, the deceased referred to, and showed, Mr Attapallil, the letter dated 28 October 2004 that she had received from D Stanefska & Associates. He gave the following evidence: "6. I recall a few months later on 3 December 2004 I had a conference with the late Vasa Janakievska who attended my office with her nephew Pavle Petrovski. I took Mrs. Janakievska into my office and with the assistance of my employed Solicitor, Gordana Bozinovska who translated in the Macedonian Language I conferred with Mrs. Janakievska. Mrs Janakievska said to me: "I got a letter from Stanefska, she's my brother-in-law's Solicitor. She is suing me for my house". I said: "Let me see". I then read the letter which was translated by my employed Solicitor, Gordana Bozinovska. The letter was requesting Mrs. Janakievska attend Stanefska's offices to sign a Will that had been prepared by her. I said: "This is not a Court document, no one is suing you, it's a letter from the Solicitor who wants you to go to her office to sign a Will. Did you ask her to make a Will for you?" Mrs. Janakievska said: "No I didn't, my brother-in-law is suing me over one of my houses. He said that if I don't give it to him he's going to get Stanefska to take me to Court". I said: "Do you have a Will and do you want to change your Will?" Mrs. Janakievska said: "I have a Will and I've let (sic) everything to my nephew. Pavle's family, they looked after me and they will get everything. I do not want to change any Will". I said: "Your houses are yours, you can leave them to whoever you like. In some cases people can make a claim on your Estate but if that was to happen you should come and see me straight away. Nobody is allowed to push you to make another Will. If he threatens you call the Police or call me". I then escorted Mrs. Janakievska out and in the reception area Mr. Pavle Petrovski said to me: "Did you tell her that her house is hers and she can do what she likes with it? can (sic) her brother-in-law take her to Court for the house?" I said: "As I've explained to your Aunty, her houses are hers and she can do what she likes with them. In some cases people can claim against an Estate but if that was to happen then you should come and see me immediately"."

There was no successful challenge to this evidence or the evidence of the conversation provided by Ms Bozinovska, which, because it was in similar terms, is unnecessary to repeat. There is no reason to doubt that what was said by the deceased was accurately recorded in the affidavit of each of these witnesses. No submission was made to the contrary.

I am also satisfied that, on about 6 December 2004, Alek and Katia attended, without an appointment, at Lexes Lawyers. They spoke, in the Macedonian language, with Ms Bozinovska first, as Mr Attapallil was not there. She gives the following evidence: "12 .... Whilst Mr. Nasev and his Wife were waiting for Mr. Attapallil in reception I introduced myself and spoke to Mr. And Mrs. Nasev in the Macedonian Language. During our discussions I became aware that Mr. Nasev and his Wife were there to see Mr. Attapallil in relation to Mrs. Janakievska who was in the office only a few days before. Mr. Nasev amongst other things said words to me to the effect: "Vasa has been ringing us constantly saying that she wanted to change her Will and prepare a new Will leaving one of her properties to me". I did not respond to this comment. He then said: "I got Stanefska to prepare the Will. I don't like to deal with Stanefska anymore. She stuffed up some work for me which cost me over $30,000.00. She told me to make a Claim against her under her insurance but I didn't. Although I didn't want to have anything more to do with her there was no one else in Rockdale who I knew that spoke Macedonian and so I went to her. She agreed to prepare the Will. She has prepared it and now wants Vasa to come in to her office to sign the Will". I did not make any comment or reply to what Mr. Nasev had said. 13 I recall Mrs. Nasev who was with him saying to me words to the effect: "We just want this to be finalised. The other day we were having dinner with Family and we were contacted by Police. I don't want to have any further dealings with the Police, her or that Family anymore"."

After Mr Attapallil arrived, they conferred with him. Ms Bozinovska was also present. They showed Mr Attapallil the exemplification of Probate relating to Petar's Will, but refused to allow him to take a copy.

Mr Attapallil made a contemporaneous file note of their attendance on 6 December 2004. Its contents are instructive: "6/12/04. Alek Nasev and Mrs Nasev came to see me. Says Vasa rings you constantly because she can't sleep because she wants to do a new will giving property to Alek Nasev, brother of her husband. Alek and Mrs Nasev want the will to be original as her husbands (sic), i.e., they want one house to be given to Alex, and as he paid for it, or or give to it to the church."

There was no successful challenge to this evidence or to the evidence of Mr Attapallil, which was in similar terms. There is no reason to doubt that what was said by Alek and Katia was accurately recorded in the Affidavits of Mr Attapallil and of Ms Bozinovska. There is no reason to doubt the contemporaneity, or accuracy, of the file note.

The contemporaneous written medical records that were tendered are the clinical notes of Dr Mihajlov (with a typewritten transcript which is read as an aide memoire only, and which, in some respects, is clearly inaccurate), the clinical notes from Auburn Hospital and St George Hospital, clinical notes produced by Dr Blagoj Kuzmanovski (which indicate the deceased was seen in the general practice twice in 1999, and then more regularly after March 2005), and those of Dr Kenneth Chan (the deceased's rehabilitation physician from 2005).

Dr Mihajlov swore two affidavits that were read in the proceedings and he was cross-examined. At the date of the hearing, he had been retired for almost 7 years (since the end of 2004). He had been the deceased's treating doctor for many years before his retirement and he saw her reasonably regularly in his practice.

Apart from one aspect of his evidence which appeared confused (that relating to the deceased's brother-in-law to whom the deceased had referred as being in Macedonia), and which it was accepted was an obvious error, he gave his evidence coherently and to the best of his recollection. I am satisfied that he was doing his best to assist the Court.

The Plaintiffs also relied upon a expert medical opinion, as amended, provided by Professor Daniel Chan, who did not see the deceased in her lifetime. He was cross-examined.

It was not disputed that Dr Mihajlov and Professor Chan was each qualified to offer the opinions that he did on the basis of facts observed, or assumed, that were admissibly established, and that it had been shown how the field in which they were expert applied to those facts so as to produce those opinions.

However, in considering the evidence of Professor Chan, I respectfully adopt what Windeyer J said in Revie v Druitt [2005] NSWSC 902 at [34]: "As I have pointed out quite recently in Kerr v Badran, lay evidence of the activities, conversations, family circumstances and relationships of the deceased and evidence from doctors, often general practitioners who were treating doctors during the lifetime of the deceased, usually is of far more value than reports of expert specialist medical practitioners who have never seen the deceased."

I also refer to the more recent statements of Hodgson JA (with whom Young JA and Bergin CJ in Eq agreed) in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197: "65 The criteria in Banks v Goodfellow are not matters that are directly medical questions, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for commonsense judicial judgment on the basis of the whole of the evidence. Medical evidence as to the medical condition of a deceased may of course be highly relevant, and may sometimes directly support or deny a capacity in the deceased to have understanding of the matters in the Banks v Goodfellow criteria. However, evidence of such understanding may come from non-expert witnesses. Indeed, perhaps the most compelling evidence of understanding would be reliable evidence (for example, a tape recording) of a detailed conversation with the deceased at this time of the will displaying understanding of the deceased's assets, the deceased's family and the effect of the will. It is extremely unlikely that medical evidence that the deceased did not understand these things would overcome the effect of evidence of such a conversation."

Professor Chan, himself, acknowledged, the disadvantages of not having met with the deceased.

Alek did not call any specific medical evidence. He relied upon the substantial body of documentary evidence and the evidence elicited in cross-examination from the Plaintiffs' medical witnesses.

I am satisfied that the following medical evidence relating to the deceased is not the subject of dispute, or has been established: (a) Whilst no major hospitalisations of the deceased were recorded in the period up to January 2005, the deceased regularly attended her general practitioner, Dr Mihajlo Mihajlov, for many years until the end of 2004. (b) The deceased, following the death of Petar, was, generally, an unhappy person, who would sometimes come to Dr Mihajlov's surgery to talk and to unburden herself of her personal problems. She would attend to tell him what her grievances were and sometimes to discuss personal matters. However, her medical complaints were, generally, not very serious or life threatening. (c) On 31 December 2003, the deceased attended a funeral at Rookwood Cemetery, during which she collapsed. She was taken to Auburn Hospital where she was diagnosed with "heat syncope" ("the 2003 syncope episode"), and was discharged later the same day. (Syncope is "fainting" associated with insufficient blood flow to the brain.) (d) In a letter, dated 31 December 2003, from the Resident Medical Officer at Auburn Hospital to Dr Mihajlov, relating to this incident, the following appears: "No chest pain, no SOB [ shortness of breath ], no focal weakness, no headache clinically, no focal neurological signs, no nystagmus BP 140/80 BSL [ blood sugar level ] 7.8 impression? viral? vasovagal Please organise head CT to rule out any rare chance of TIA" (e) Other medical records reveal that her blood pressure reading, at the hospital, was as high as 195/75. The ECG (electrocardiogram) indicated changes of left ventricular hypertrophy (the thickening of the myocardium (muscle) of the left ventricle of the heart). (Professor Chan gives evidence that this "usually implies long standing hypertension". (Hypertension is the term used to describe high blood pressure.)) (f) No head CT was organised subsequently by Dr Mihajlov. He suggested (because he was closing his practice) that she attend St George Hospital and that they would do it there. (g) Following the 2003 syncope episode, the deceased stayed with Pavle and Loza, for about 6 to 8 weeks, whilst she recuperated. (h) The deceased attended Dr Mihajlov's surgery, on several occasions, during 2004. Relevantly, she attended on 29 October 2004, at which time it was recorded that her blood pressure was 150/90 and there was an entry "Serepax". Serepax is an anti-anxiety drug. She also attended on 8 November 2004, when it was recorded that she had severe headaches, was severely depressed and not feeling well. There were "no other changes". Her chest, heart and abdomen were recorded as being normal and there was an entry again "Serepax". (i) The deceased attended on the medical practice of Dr Mihajlov on the morning of 17 December 2004. This was the day on which the 2004 Will was executed. His medical notes, for this visit, stated verbatim, are: " L otitis L conjunctivitis BP 150/90 Very depressed Serepax 30 chloromycetin eyes Sofradex " Dr Mihajlov provided this transcription of his medical note for that date and confirmed that it was written on the date it bears. Dr Mihajlov and Professor Chan each confirmed that "L otitis" refers to the deceased as having "an infection in her left middle ear" and "L conjunctivitis" as the deceased having an infection in her left eye. Dr Mihajlov confirmed that chloromycetin was an eye ointment. (j) Whilst still living at her own home, in January 2005, the deceased suffered a major and devastating stroke ("the 2005 stroke"). She was admitted to St George Hospital with left hemiparesis (weakness on one side of the body). The stroke was identified as being a right hemisphere intracerebral haemorrhage (ICH) with surrounding oedema. This is a bleed in the right side of the brain at the frontal area with swelling (of the brain). (k) The deceased remained in hospital for some three weeks, during which time she had inpatient rehabilitation. Also, whilst in hospital, the deceased had an E.Coli urinary tract infection which was treated. (l) The deceased was discharged to the home of Pavle on 15 February 2005.

In the Clinical Notes of the Auburn Hospital for the date 20 January 2005, the following also appears: "B/G ("background") of deteriorating S/T (short term) memory and general functioning in past year Has been "stressed" & low in mood and anxious for 2-3/12 over a family matter Lost 5 kg over 2-3/12 L appetite"

The Death Certificate relating to the deceased, which was registered on 19 June 2009, disclosed as "Cause of Death and duration of last illness": "(I)(a) Acute myocardial infarct 12 hours; (b) Left anterior cerebral artery stroke; (II) Right frontal intracerebral haemorrhage; Hypertension Paget's disease".

Turning to the contemporaneous medical records, I am satisfied that: (a) Dr Mihajlov's patient notes do not reveal any notations depicting the presence, or suspicion, of any form, or degree, of cognitive impairment. However, he recollected that after the 2003 syncope episode, the deceased made complaints of memory loss, her speech was a bit slow and she was quieter than she had been in the past. There are several references to the deceased being "very depressed" in his contemporaneous progress notes. He confirmed that her anxiety and depression was increasing. He also commented upon her blood pressure. She was also taking Serepax medication regularly. (b) The Clinical notes from Auburn Hospital, where the deceased was admitted for the 2003 syncope episode, do not reveal the presence, or suspicion, of any form, or degree, of cognitive impairment. The notes record, "Background: generally healthy", and specifically identifies no focal weakness and no focal signs which, otherwise, might have been suggestive of a vascular event. (c) The Clinical notes from Dr Kuzmanovski do not reveal, on the two occasions, in 1999, when the deceased was seen, that there was the presence, or suspicion, of any form, or degree, of cognitive impairment. (d) The next time the deceased was seen, in his practice, was in March 2005, after the 2005 stroke. The "Past Medical History" section of his notes state "15/08/2004 CVA (CEREBROVASCULAR ACCIDENT) (Right)", but this notation is not contemporaneous to the alleged event, as he had not seen the deceased at any time between 2000 and 2004 inclusive. The source of the information that enabled that note to be written was ambiguous. However, it was not in dispute that the deceased did not, in fact, suffer such an event in August 2004. (It is the agreement that this event did not, in fact, occur, that caused Professor Chan to provide an amended conclusion to his first report.) (e) The medical records (from St George Hospital and Dr Kenneth Chan) relate to the period from the date of the deceased's stroke in 2005, and are of limited, if any, relevance in determining the deceased's capacity before that time.

Professor Daniel Chan's evidence, following cross-examination, is that the deceased had long standing hypertension that could cause amyloid angiopathy and intracerebral haemorrhages. These changes could occur subtly, resulting in cognitive impairment, which impairment may not have been noticed by lay persons. He accepted that on 17 December 2004, she was very depressed and physically unwell, with infections in the left middle ear and left eye. He said that having an eye and ear infection was likely to affect cognitive function of an elderly person who had some cognitive impairment. If she was a Serepax user (to which drug Dr Mihajlov had referred in his medical note of that date), this would be likely to have further impaired her capacity to understand the contents of the 2004 Will. Within 2 weeks or so, she suffered a significant stroke. He thought that this was probably preceded by a brain bleed, 1 or 2 days before the stroke.

Professor Chan also accepted there was no evidence that the deceased's mental capacity was actually clearly tested on 17 December 2004. When asked about her being "very depressed" on 17 December 2004, he answered that "a person who is very depressed can actually present with cognitive impairment that is sometimes very difficult to separate out from acute confusion or delirium ...". He thought that on that day, "there probably was acute delirium happening" but that another diagnosis might be that "she could be very depressed with all the stressors happening around her".

Finally, in cross-examination, he stated, upon the assumptions that for over a period of approximately one hour, or perhaps a bit shorter than an hour, the deceased was able to hold attention with the solicitor, listening to the solicitor read out things, and nodding in response and at times asking a question, he could not exclude the possibility that the deceased "may have been in a brighter moment" and "that she understands a few things more". However, he ended his answer by saying "It's a possibility thing."

I asked Professor Chan a number of questions based upon the events that had occurred on 3 December 2004, when she had attended upon Mr Attapallil and Ms Bozinovska. He gave the following evidence: "Q. I will read you what the concerns were - she was still in a lot of apprehension and anguish and she was still frightened despite the explanation that had been given by the solicitor about that letter, she was still frightened about her brother-in-law suing her although the solicitor explained to her that that was not the case? A. There are two possibilities, one is that she has been very depressed and personality wise she's a worrier and she keep on worrying although she fully understand the matter. The second explanation is people with cognitive impairment often forget what people have explained to them and so even though at one moment things are explained to her, she forgets and then, you know, she could remain worrying but again I'm not sort of - I haven't fully examined her or assessed her, that's only, you know, judging from circumstantial evidence. Q. Would you assume also that she told a number of people that her brother-in-law had threatened to take her to court but he had not done so. Would you assume also that the solicitor had explained to her that in the circumstances that she told him the brother-in-law could not take her to court. If she continued to hold the belief that the brother-in-law was going to take her to court or could take her to court, does that say anything about her cognitive ability? A. I think it comes back to whether she's actually a worrier or not. If she is indeed a worrier all her life she may not believe what people has told her and still hold on to her own belief or not. On the other hand if she was not a worrier, then it does make one suspicious that, you know, there is some cognitive impairment."

Senior counsel for Alek then asked: "Q. If she had a history of presenting with anxiety and depression, would that tend to suggest to you that she was more of the worrier type or someone with cognitive impairment having regard to the assumptions that have been put to you? A. If she has a history of being anxious and being worrying (sic), then that may actually make me slightly sway towards the worrier type."

Senior Counsel for the Plaintiffs then asked: "Q. If the letter was explained to her accurately but she didn't accept the explanation and if the motives of the brother were explained to her but she did not accept that explanation? A. The motives of the brother-in-law you mean? Q. The motive or intentions? A. Yeah. Q. Might it be that the belief that she held wrongly about the brother-in-law's intentions that wrong belief could constitute a delusion on her part? A. The wrong belief that the brother-in-law may take her to court? Q. Yes? A. If a delusion is formed, that probably is in the area of what psychiatrists called it psychosis or, you know, and if a psychosis is formed that probably precludes her from forming good judgment. ... Q. And I am asking in the context of this letter and the brother-in-law, are you saying that might constitute delusion? A. That may - I emphasis word 'may' - again I haven't seen the person and I really, you know, cannot (sic) can only judge by what I was told."

I am unable to conclude, based on this evidence, that the deceased was suffering from a delusion. In the 4 th edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders ("DSM IV") at p 765, a delusion is defined as: "A false belief based on incorrect inference about external reality that is firmly sustained despite what almost everyone else believes and despite what constitutes incontrovertible and obvious proof or evidence to the contrary. The belief is not one ordinarily accepted by other members of the person's culture or sub-culture (eg. it is not an article of religious faith). When a false belief involves a value judgment, it is regarded as a delusion only when the judgment is so extreme as to defy credibility."

Mere irrationality, even extreme irrationality, is not delusional if it has some connection with reality: Schultz v Bailey [2007] NSWCA 110. Nor is a mistaken belief a delusion: Du Maurier v Wechsler [2001] NSWSC 4 at [40].

I think Professor Chan's evidence, overall, raises, sufficiently, that the deceased had some cognitive impairment that is relevant to the determination of the question whether she had testamentary capacity.

Pavle gives evidence that, following the 2003 syncope episode, he observed some changes in the deceased. He describes her as having difficulties with memory and what was described as "strange behaviour". In cross-examination, he referred to her face changing colour (yellow) and her expressing tiredness, following which she would lie down. He says that she would get upset over little things, but this seems to have been a reference to her becoming annoyed, at least according to him, as a result of the interaction between an elderly person and very young children. (Dr Mihajlov described her colour as "yellowish" or "pale" as a result of anaemia.)

Pavle also gave evidence that, in the last three months of 2004, the deceased appeared extremely stressed, nervous and anxious. He described this as being "put under pressure". (I have earlier referred to the reference in the medical notes taken in early 2005.)

There was also a reference by him to complaints made by the deceased of suffering headaches on the right side and back of the head.

Loza gives evidence of observing a change in the deceased following the 2003 syncope episode. She refers to the deceased becoming very forgetful, often repeating herself, and leaving the gas stove on.

Elli, who lived in the deceased's house in 2003 and 2004, also gives evidence of observing changes to the deceased after the 2003 syncope episode. She refers to noticing "a dramatic change" in the deceased's "ability to remember and understand". She gives evidence of the deceased's conversation being repetitive. She states that the deceased, on many occasions following its receipt, asked her to read the solicitors' letter several times on one day. She describes the deceased losing her concept of time. She refers to the deceased, on a handful of occasions, leaving the gas stove on.

Robert corroborates much of Elli's evidence about the deceased's condition. He describes, too, the change in the deceased, referring to her memory deteriorating, complaining of sore ears, "leaving the gas stove on and often being upset over very little, minor, insignificant matters". He also gives evidence of a conversation in late October 2004 where she referred to having been telephoned by her "boss" from the factory where she had worked 30 years earlier.

Each of the lay witnesses did confirm that, in 2004, the deceased was independent in all activities of daily living, which included being able to dress, feed, shower, toilet, and otherwise, generally look after, herself.

I do not accept the submission that the retrospective accounts of the deceased's cognitive difficulties, in 2004, are inconsistent with contemporaneous records. It is clear, as acknowledged in the Defendant's submissions, that there were cognitive difficulties being experienced by the deceased in the year before she suffered the stroke in 2005. It is likely that these cognitive difficulties were relatively mild, and if the question of the deceased's testamentary capacity were to be assessed on the basis of the medical records, without more, I may have found that Alek had satisfied me that she had testamentary capacity. All of the circumstances, including the conduct of the deceased in her dealings with other people, and what she said to them, must be considered. With other matters to which I shall refer, a "serious doubt" exists as to the deceased's testamentary capacity. There was no submission to the contrary, it being submitted that the court, ultimately, should be satisfied of testamentary capacity.

Because it played a major part in the submissions, it is necessary to say something about the duties of a solicitor who takes instructions for and who has a will executed.

In Jarman on Wills , 8th ed (1951) London, Sweet and Maxwell, Vol. 3, page 2073, it is said: "Few of the duties which devolve upon a solicitor, more imperatively call for the exercise of a sound, discriminating, and well-informed judgment, than that of taking instructions for wills."

In Pates v Craig & Anor; The Estate of Cole (NSWSC, 28 August 1995, unreported), Santow J, made some general comments regarding circumstances where a legal practitioner receives instructions from an established client to prepare a will on behalf of another person, where that client is to be principal, or major, beneficiary under the proposed will and, in particular, where the client instigates that will. His Honour said: "There do not appear to be rules of professional conduct specifically governing the first situation. Thus r 22 of the Professional Conduct and Practice Rules deals with situations where a solicitor receives instructions to prepare a will in which that solicitor or an associate of that solicitor is to receive a substantial benefit. Whatever 'associate' may mean, it probably falls short of including a conventional solicitor/client relationship. Reg 28 of the old Legal Profession Regulation 1987 is to a similar effect. That does not, however, mean that no ethical considerations arise in such circumstance. The essence of a solicitor's fiduciary obligations to a client is the unfettered service of that client's interests. This will require the solicitor to avoid acting for more than one party to a transaction where there is a likelihood of a real conflict of interest between the parties. As Wootten J stated in Thompson v Mikrelsen (Supreme Court of NSW, 3 October 1974, unreported), in the analogous context of conveyancing transactions: 'The reasonable expectations of a client instructing a solicitor [is] that the solicitor will be in a position to approach the matter concerned with nothing [in mind] but the protection of his client's interests against [those] of another party. [The client] should not have to depend on a person who had conflicting allegiances and who may be tempted either consciously or unconsciously to favour the other client, or simply to seek a resolution of the matter in a way which is least embarrassing to himself.' The same considerations may arise in the context of preparation of wills. It is clear that a conflict of interest may arise between the interests of an intended principal beneficiary seeking to procure a will in his, or her, favour and the interests of the testator. The testator should be assisted by his legal or her legal adviser only in making a valid will. This means, inter alia, that the natural objects of the testator's bounty must be capable of being appreciated, by the testator, even though the testator may choose to exercise that capacity so as to omit such objects or disfavour them. In such circumstances, the legal practitioner would be expected to give advice to the intended testator on a number of matters. Some of these may be potentially contrary to the interests of the proposed beneficiary. The legal practitioner should take such steps as are reasonably practicable to enable that practitioner to give proper consideration to any matters going to the validity of the proposed will and then should advise and act in conformity with that consideration. Such a conflict will especially arise where there is a reason to fear lack of testamentary capacity on the part of the testator by reason such as fragility, illness or advanced age. Further, in such context, the solicitor could not prudently rely on the informed consent of both clients to act in such a transaction where their interests conflict, there being doubts about the capacity of the testator to give such informed consent... There is an additional consideration, not dependent on the question of conflict of interest. That is, the duty of the solicitor taking instructions from an obviously enfeebled testator, where capacity is potentially in doubt, to take particular care to gain reasonable assurance as to the testamentary capacity of the testator. It is clearly undesirable to attempt to lay down precise and specific rules as to what that necessarily entails for every case. Such rules may lead to a perfunctory, mechanical checklist approach. What should be done in each case will depend on the apparent state of the testator at the time and other relevant surrounding circumstances. Any suggestion that someone, potentially interested, has instigated the will, whether or not a client of the will draftsperson, should particularly place the solicitor concerned, on the alert. At the least, a solicitor should ask the kind of questions designed to probe the testator's understanding of the basic matters which connote testamentary capacity... For this purpose, and subject to the earlier caveat concerning checklists, the advice concerning the taking of instructions contained in Mason & Handler's "Wills, Probate and Administration Service NSW (Butterworths) [at 10,019] is a useful guide: '[10,019] TAKING OF INSTRUCTIONS - ISSUES OF TESTAMENTARY CAPACITY If any doubts do rise as to the testator's capacity the following procedures on the taking of instructions will assist significantly in the avoidance of potential problems for the estate as well as for the solicitor in the discharge of his duties: (i) The solicitor who is to draw the will should attend on the testator personally and fully question the testator to determine capacity - the questions should be directed to ascertain whether the testator understands that he is making a will and its effects, the extent of the property of which he is disposing and the claims to which he ought to give effect; (ii) One or more persons should be present, selected by the solicitor having regard to their calibre as witnesses if required to testify whether the issue of capacity is raised. Where possible, one of the witnesses should be a medical practitioner, preferably the doctor who has been treating the testator and is familiar with him, who should in making a thorough examination of the testator's condition, question him in detail and advise the solicitor as to the capacity and understanding of the testator. The presence of other persons at this time would require the testator's consent; (iii) A detailed written record should be made by the solicitor, the results of the examination recorded by the medical practitioner and notes made by those present. If after careful consideration of all the circumstances the solicitor is not satisfied that the testator does not have testamentary capacity he should proceed and prepare the will. It is a good general practice for the solicitor who took instructions to draw the will and be present on execution and this practice should not be departed from in these circumstances. On execution, the attesting witnesses should, where possible, come from those persons (including the solicitor) referred to above who were present at the time of instructions and, again, as at every stage, detailed notes of the events and discussions taken.' If those questions and the answers to them, leave the solicitor in real doubt as to what should be done, other steps may be desirable. This may include obtaining a more thorough medical appraisal or, if the testator declines, considering whether the will can be properly drawn, should assurance on testamentary capacity fail to satisfy the test just quoted."

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

This case requires the application of established, and undisputed, principles to particular facts. Therefore, I have to assess the reliability of the evidence, which I have read, and heard, before I can make the necessary findings of fact on matters in dispute. I shall, where possible, identify my findings of fact as I proceed. Taken with the findings to which I have earlier referred which were not in dispute, or which I have already found, I shall be able to come to the ultimate conclusions necessary to determine the result of the case.

It is necessary to say something of the main witnesses who gave evidence. In relation to the principal witnesses called on behalf of the Defendant, there was a sustained attack on his, and her, credit. There was also a thorough attack on the evidence of Ms Zlatevska and her conduct in relation to the 2004 Will.

In reaching my conclusions, I have borne in mind that Alek is a significant beneficiary in the 2004 Will and that Elli and Gordana are the primary beneficiaries under the 1999 Will. Pavle receives more under the 2004 Will than he does under the 1999 Will, but Elli and Gordana are his daughters. Each, therefore, has a clear interest in the outcome of the proceedings.

I have also borne in mind, the evidence of Katia, that Alek had been involved in a motor vehicle accident in July 2011, that his memory was "failing him", that as "he is getting older, he begins to mix up events" and, that "although it is getting better, he lost the vision in one of his eyes about a month ago".

I shall deal separately with the evidence of the solicitors called by each of the parties also. I have already referred to the medical evidence.

As I shall demonstrate, I find Pavle, Elli and Gordana, each to be a reliable witness, having regard, in particular, to the fact that his, and her, evidence was materially consistent with other evidence. By contrast, I did not find either Alek, or Katia, to be a reliable witness.

The first witness cross-examined was Alek. Senior counsel for the Plaintiffs asked whether he was able to understand the way in which the case had proceeded until that time; also whether he had understood the questions that he had been asked by his own senior counsel; and whether he had any trouble in answering the questions in the English language. He answered each of the questions and said that he would prefer to give his answers in English.

Alek did not suggest, and nor did his counsel, that he was under any cultural, or linguistic, disadvantage (other than not knowing "Australian law terminology"). Despite this, it was clear that English is Alek's second language. I gather that his first language is Macedonian.

Even though I formed the view that he was attempting to answer the questions asked of him in English to the best of his ability and, for the most part, his answer was responsive to the question posed, he seemed to have some difficulty understanding, and answering, some of the questions.

In relation to a number of topics, I sought the assistance of the accredited NAATI interpreter (National Accreditation Authority for Translators and Interpreters), retained on behalf of the Plaintiffs, to translate the question to, and the answer given by Alek from the English to Macedonian language and vice versa. I only did so where the topic was of particular importance and I thought there was some comprehension difficulty, or when I was requested to do so by senior counsel.

The first occasion when I sought such assistance was when senior counsel for the Plaintiffs asked questions relating to the date when the deceased was said to have contacted Alek and requested him to do certain things on her behalf. Alek's evidence was: "... She told me she has signed some documents. She don't know what she signed to the solicitor and she say to me: probably I am going to lose my house because I don't know what I signed and I say to her-"

Later, he said, about the conversation: "She does not say she signed a document on the house. She says: 'Probably I am going to lose my house'."

He then said: "She say to me: "You go over there and check what I signed" and she say to me: "Check if it is your name it is over there". Q. "Check if it is your name"? A. In the will because my will which done my brother."

I then sought the assistance of the interpreter who stated, after the question had been translated, that Alek responded: "A. INTERPRETER: Go to the solicitor. The solicitor is above the Commonwealth Bank in Rockdale. There is a Macedonian who speaks Macedonian. And I was there which I have signed something there. I don't know what I have signed. And see if your name it is in the will. INTERPRETER: Sorry your Honour, see if the name exist in the will."

Following these answers, when senior counsel for the Plaintiffs returned to the topic, Alek said: "Q. And it is in these conversations that she raised with you or she mentioned the word "will"? A. She mention. Most of the time she mention she going to lose her property. Q. She is going to lose the property? A. Because she sign something which she don't know what she signed. Q. You mentioned she said, "Have a look in the will" or something like that? A. She say she want to do the will. Q. She wants to do the will? A. To do the will and I say, 'Already the will has been done by my brother and you don't need to do another will'."

What Alek had said in his only affidavit, on the topic of the deceased making a new will, was "She kept calling me and saying she wanted to do a will".

The second occasion on which the interpreter was required was when a passage at paragraph 13 of his own affidavit, was put to him as being inconsistent with his oral evidence. His evidence was: "Q. You asked somebody at Attapallil's office whether your name was in any will? A. That's correct. Q. You wanted to know? A. No what my sister saying. Q. You asked about any will, didn't you? A. Not any will. Q. Your affidavit at para 13 says "I asked the gentleman whether my name is in any will." A. Not in any will, in my will. Q. But you were not making a will? A. The will which I took of my brother. Q. That is not your will? A. The will after they change the typing of that. Q. You knew what was in your brother's will because you had the paper? A. That's correct. Q. You were asking the solicitor at Attapallil's whether your name was in any will? A. I am not talking any will, I am talking my will. She make another will. Q. Why did you use the word "any" will? A. I didn't use "any will"."

Following the interpreter reading the last sentence of Paragraph 13 to him, in Macedonian, Alek's answer was "So what".

Even though I have evaluated Alek's evidence, remembering that English is not his first language, and taking into account what is said by Katia to be his present state of health (unsupported by medical evidence), I do not accept most of his evidence.

I am satisfied that he, alone, had given the initial instructions to Ms Zlatevska, which were used by her to prepare most of the draft Will, and that he had done so prior to 28 October 2004.

I am not satisfied that he had been asked to do so, then, by the deceased. In fact, it was accepted, during submissions, that there had been no evidence, given by Alek, as to any conversation he had with the deceased, in which she had requested him to give instructions to Ms Zlatevska to prepare a will, whether in the form of the 2004 Will or otherwise.

I am unaware of any reason why the deceased would need to do so. She seemed to be able to perform the activities of daily living, which included, on 3 December 2004, travelling, with Pavle, to confer with a solicitor. She could use the telephone.

The letter dated 28 October 2004, forwarded to the deceased, by D Stanefska & Associates, makes clear that instructions for a will had been provided to her, and that a draft had been prepared in accordance with those instructions. Alek could not identify any other person who could have provided instructions to Ms Zlatevska at that time.

Importantly, Ms Zlatevska, herself, gives evidence (read in the Defendant's case) of such a conversation with Alek. She says: "... 4. In approximately October 2004 Mr Nasev came to my office. He said words to the effect: "I am the brother of Petar Janakievski who is now deceased. Petar and his wife Vasilka had the same wills. Vasilka made a new will after Petar died but now wants to go back to what they originally had. She wants to change her will. It is worrying her that she has not left me anything. She told me what she wants in her new will." 5. There then followed some discussion which I cannot particularly recall regarding an earlier will that the deceased had made."

Ms Zlatevska also states that she "prepared a draft will based upon what Mr Nasev told me". That draft must have been prepared at, or about, the time of the letter dated 28 October 2004, as it is referred to in that letter. There was no submission to the contrary.

Thus, it is clear that any instructions for the 2004 Will given to Ms Zlatevska (to which topic I shall return), were given by Alek and by nobody else. The deceased did not request him to give any instructions to Ms Zlatevska.

I also do not accept Alek's evidence that he went, with his wife, to Lexes Lawyers, at Rockdale, prior to the two occasions (once without the deceased and once with her) that he spoke with Ms Zlatevska. I find the sequence of events to have been that Alek first gave instructions for the deceased's Will to Ms Zlatevska in October 2004 (when he went to her office alone). Following those instructions and events that occurred following receipt of the letter dated 28 October 2004, Katia obtained the exemplification of Probate of Petar's Will (on about 9 November 2004). Then, on 6 December 2004, Alek and Katia went to Lexes Lawyers, where they spoke with Mr Attapallil and Ms Bozinovska. It was only when the 2004 Will was signed, on 17 December 2004, which meeting Alek attended with the deceased, that the deceased met Ms Zlatevska in her professional capacity.

I also do not accept that Alek never raised, with the deceased, the topic of the distribution of her estate, or that, so far as Petar's estate was concerned, he was not interested in any will made by Petar or by the deceased during her husband's lifetime. It cannot be forgotten that Katia went to the trouble, and no doubt, expense, of obtaining the exemplification of probate for Petar's Will. This would have been unnecessary except to ascertain whether what Alek said he had been told by Petar was reflected in the Will the subject of Probate, or whether Alek, otherwise, was a beneficiary named in any Will lodged with the Court.

Importantly, Alek's evidence on this topic is inconsistent with the evidence of Dr Mihajlov, which I accept, as follows: "In this period subsequent to her husband's death, Mrs. Janakievska would often discuss with me her personal affairs including a constant and regular reference to her husband's brother pressuring her to give property she owned to him. She would often say to me words to the effect: "My brother-in-law is pushing me to give him one of my houses. He keeps telling me that because Petar and I didn't have kids one of the houses should go to him and the other one I could do whatever I liked with and give it to my side of the family. He keeps saying that he will take me to Court and will take my property off me"."

Alek's evidence is also inconsistent with Pavle's evidence, which I also accept, regarding a conversation that he had with Alek about going to a lawyer "to organize for the old lady to transfer the houses, Rockdale to you and Erskineville to me".

It is also inconsistent with Robert's evidence that he had overheard Alek suggesting to the deceased that she sell the Erskineville property and give him the proceeds of sale, so that she could apply for the pension.

Whilst there is evidence supporting what Alek said Petar and the deceased had discussed about his, and her, testamentary intentions, the statements that were made by each of them are inconsistent with what each actually did. Petar's Will, made in 1971, did not include a specific devise of one property, or the other, to either Alek or Pavle. The 1999 Will also, made no specific devise of each property to one, or other, of them.

Another aspect of Alek's evidence that I do not accept relates to his alleged lack of concern about whether the deceased would leave the Erskineville property to him. It seems clear, from all of the evidence, that he was very concerned to receive this property. His efforts to achieve this included repeated requests, to the deceased, a conversation with Pavle about ensuring this result, giving instructions to a solicitor to prepare a Will, and as will be seen, taking the deceased to have that Will executed. In my view, he was determined not to let the matter rest, which he did, only after the execution of the 2004 Will.

I should also refer to Alek's evidence about the circumstances in which he came to go with the deceased to the office of Ms Zlatevska on 17 December 2004. He said that he was sitting in Rockdale drinking coffee, when John Sturevski approached him and said that the deceased was looking for him. He went to find the deceased, which he did, at the local Chemist shop, and she said that she had come to Rockdale to pick up some medicines and that she would "like him to come with me to see Dobrinka". The clear thrust of his evidence was that this was an unplanned, and a somewhat spontaneous, meeting with the deceased, and that he had accompanied her to the offices of the solicitor, at her request.

This is inconsistent with Ms Zlatevska's evidence, which is to the effect that an appointment had been made for the deceased to attend the offices of D Stanefska & Associates at 1:00 p.m. on 17 December 2004 (as disclosed on the page of her diary for that date). She thought that Alek had made the appointment. In all the circumstances, I accept that he did so. His version of what immediately preceded the attendance upon Ms Zlatevska on 17 December 2004 should not be accepted.

Alek's apparent lack of interest about what had occurred at the conference on 17 December 2004, also provides a curious feature of his evidence especially in light of my findings so far. His affidavit evidence, in this regard, was: "18. I accompanied Vasilka to the offices of D. Stanefska and Associates. I think we arrived sometime mid morning. Dobrinka sat in one chair, the secretary sat or stood next to Dobrinka, Vasilka sat on one chair and I sat on the other. I did not take part in the conversation. I considered it was a matter for Vasilka. I sat silently and did not pay attention to what was being discussed. I do recall that Dobrinka asked a number of questions in Macedonian and I do recall that at one stage a document was produced by either Dobrinka or the secretary."

The fact that he is unable to give any evidence about what was discussed in the conference on 17 December 2004 does not assist his case.

I do not accept Alek's evidence where it is in conflict with the evidence of the other witnesses, whose evidence I accept, or unless it is corroborated by an agreed fact. I do not accept that he was well-intentioned or seeking to act in the deceased's best interests, in procuring the creation, and execution, of the 2004 Will.

This leads me to confirm that I am satisfied: (a) The deceased did not give instructions to Alek to have a will prepared for her; (b) The deceased did not give any instructions to Alek about the terms of any Will; (c) The deceased did not request Alek to convey any instructions to Ms Zlatevska, which instructions were included in the 2004 Will; (d) Alek's instructions for the preparation of a Will were given without the knowledge or approval of the deceased; (e) Alek did not give any instructions to the solicitor as to some parts of the 2004 Will, namely the substitute beneficiary clause and the clause relating to the deceased's wish to have D Stanefska & Associates act; (f) The deceased did not request Alek to accompany her to the office of the solicitors on 17 December 2004; (g) It was Alek who made the appointment with the solicitor at 1:00 p.m. on 17 December 2004 and he took the deceased to the office of the solicitors on that date; (h) Alek was very keen to have the deceased leave the Erskineville property to him and to ensure that a Will was prepared that would achieve this; (i) Alek had many conversations with the deceased in which he requested her to leave the Erskineville property to him and the Rockdale property to Pavle; (j) Once the 2004 Will was executed by the deceased, Alek and Katia did not ever see her again. (k) In the will-making process, he consistently put his own interests ahead of the deceased's.

Katia then gave evidence. She seemed unable to answer the questions asked of her and I formed the impression that she was determined to include in her answers all that she wanted to say whether directly responsive or not to the question that was asked.

I found her evidence, except on one aspect, to be quite unhelpful. For example, in repeating conversations, it was difficult to know whether she was present at the conversation, evidence about which she gave, or whether she was repeating a conversation that Alek had told to her. More often than not, it was the latter, when she was challenged. She admitted reading a draft of Alek's affidavit but denied reading any final version of it.

Katia identified Mr Attapallil as "Pavle's solicitor" because the deceased is alleged to have said "Pavle takes me to the solicitor above the Commonwealth Bank". That, on its own, hardly suggests that he was Pavle's solicitor. When she was tested on the conversation, it was not what the deceased had said to her, but what Alek had reported the deceased said to him.

The suggestion that their attendance on Mr Attapallil and Ms Bozinovska was unplanned (as opposed to them attending without having made an appointment) seemed unrealistic. She had given evidence that she was in full-time employment until 2006, but in December 2004, she attended with Alek on these solicitors. This suggests that their attendance was more than simply that they "dropped in".

Where Katia's evidence conflicts with that of Mr Attapallil and Ms Bozinovska, I accept their evidence.

The one aspect of significance in Katia's evidence that I do accept relates to her conversations with Ms Zlatevska following the receipt, by the deceased, of the letter dated 28 October 2004. She said that she had telephoned Ms Zlatevska, on the day after the Police contacted Alek and her. It was Ms Zlatevska who, apparently, suggested that she attempt to obtain a copy of "wills" from the Court. The substance of the conversation with the Police was not explored, but there is no doubt that Ms Zlatevska was informed, prior to 9 November 2004, by Katia, that Pavle, or his daughter, had involved the Police, that the Police had contacted Alek and Katia by telephone and that they were very upset about the telephone call.

It is unnecessary to say any more about her evidence.

Ms Zlatevska gave her oral evidence reasonably confidently and clearly. She stated that she considered herself experienced and competent in drafting wills. She also gave evidence that she had drafted many wills for people whose first language was not English. I accept that from the mid to late 1990s, she had commenced to draft wills for clients of her firm, and that she had drafted about 50 wills per year.

There are a number of aspects of her evidence that satisfy me that I must consider her evidence with considerable care. A difficulty that she faced was to recall events that occurred nearly 7 years ago in what is, and was, a busy solicitors' practice.

I note that there was no attack on Ms Zlatevska's integrity. The attack related more to what she ought to have done, compared with what she did, as a solicitor, in relation to the deceased, in the circumstances known to her by 17 December 2004. In what follows, I remember that this case is not about the professionalism of Ms Zlatevska, but whether the Court is satisfied of the validity of the 2004 Will.

Ms Zlatevska did not give any evidence of any usual, or regular, practice in relation to the way in which she took instructions, drafted, or had the wills she had drafted, executed. Nor did she give any evidence of a practice in relation to questioning an elderly person prior to a will being executed, by for example, asking questions that would elicit general, or other, knowledge. She was not asked any questions about her knowledge, in 2004, of Banks v Goodfellow (1870) LR 5 QB 549 and I do not know whether she had "the Banks v Goodfellow tests at the front of her mind" (Hutley's Australian Wills Precedents, 7th ed, (2009) LexisNexis Butterworths at [1.14]) . She gave no evidence of having taken any special precautions when seeing the deceased on 17 December 2004.

She did refer to discussing "the usual sort of pleasantries" and "common courtesies" with the deceased. How long this lasted is not clear. In any event, other than enquiring about her state of health, Ms Zlatevska did not state, with specificity, what had been discussed, or how the deceased responded to any questions asked. Whilst she may have met the deceased in Church, this is not a case in which instructions for a contested will were taken by a solicitor who was very familiar with the deceased.

Ms Zlatevska did not say that what she spoke with the deceased about was designed to test the deceased's cognitive powers, or was otherwise for the purpose of ascertaining her testamentary capacity. She did not say that the deceased's responses led her to form the view that she ultimately expressed. One might have expected the evidence of the solicitor relying upon such pleasantries or courtesies, if relied upon to determine capacity, to be more expansive about what had been said.

Ms Zlatevska gave evidence that when they went into the conference, the deceased and she were sitting side by side, and that the deceased appeared to be looking at the 2004 Will, whilst she was translating its contents for the deceased. She also said: "I started to read, I said, "This is your last will and testament" and "that is your address and name""

Following cross-examination, I showed Ms Zlatevska the original of the 2004 Will. The following evidence was then given by her in answer to my questions: "Would you have a look at the spelling of the deceased's name? A. The spelling, no. It's not accurate, your Honour. Q. She didn't pick that up? A. I am sorry, whether I should have picked it up. Q. She did not correct the spelling of her name on the document? A. No."

I had in mind, in referring to the spelling of the deceased's name in the Will, that the deceased's name, typewritten at the commencement of the Will, is "Vasilka Janakievski ", when, in fact, her name was "Vasilka Janakievska ". Neither counsel, immediately following these (and other questions asked by me), asked any questions on this topic, despite an opportunity given to each to do so.

Ms Zlatevska did not explain how the error came to be made, or why it was not corrected. The deceased, herself, did not seek to correct the spelling of her name on the Will, despite apparently looking at the 2004 Will.

During the cross-examination of Ms Bozinovska, senior counsel for the Defendant sought to establish that the spelling of the deceased's last name was correct if spelt "Janakievski". I rejected the questions sought to be asked, but said that even though there had been no re-examination of Ms Zlatevska following the answers that she gave on this topic, I would consider granting leave to re-examine, even though the questions had not arisen in cross-examination, if there had been an error in Ms Zlatevska's evidence, which evidence would represent a distortion of the truth as she was able to present it, unless supplemented or explained, or because it was capable of being construed unfavourably to the Defendant.

Later, during the hearing, senior counsel sought that leave, which I granted. Relevantly, Ms Zlatevska gave the following evidence: "Q. Where on the document did you understand that the deceased's name appeared? A. It appears on the signature and at the beginning of - in the typed. ... Q. Well, do you recall you gave an answer to a question, "It's not accurate". Do you recall that? A. Yes. ... Q. You were looking at the will, and a question was put, "Yes, would you have a look at the spelling of the deceased's name?" You say, you said, "The spelling, no, it's not accurate, your Honour." Do you recall that? A. Yeah, yes. Q. When you were looking at the deceased's name, what part of the document were you looking at? A. Well, the first - the first letter, and in the surname, the last two, or they looked like two letters. Q. But can you just be a bit more specific about that? A. Sorry. The initial in the first name. HIS HONOUR Q. Are you talking about the signature, ma'am? A. The signature, yeah, sorry. The signature. Q. Was it that part of the document that you were looking at when you were responding to the question with the spelling of the deceased's name? A. Yes. Q. What, if anything, were you intending to convey about the signature not being accurate? ... A. I didn't mean any more than that."

The first question asked by me earlier had not been about the deceased's signature, but was, clearly, a reference to the typed spelling of the deceased's name. The question did not refer to a signature. Even if it had, the signature was that of the deceased. It had never been in dispute that the deceased had signed the 2004 Will. It would not have been necessary for the deceased "to pick that up" since it was her signature. I do not accept Ms Zlatevska's evidence on this aspect.

During the re-examination, she then gave the following evidence: "Q. Would you please, leaving the signature to one side, and the deceased's name on the document, firstly, can you locate the deceased's name on the document? A. Yes. Q. Where do you see it? A. It's the first sentence. Q. Now, looking at the spelling of that, is that accurate, to your understanding? A. Yes. Q. Why is it accurate? A. It's quite common for the male ending in a Macedonian surname to be used by women as well as men, so the "i" frequently appears in surnames of women as well as men. It seems to be here in Australia it happens quite frequently. On most of the official documents, we - many women have the "i" on the end of their names. It to be strictly correct, it should have been "Janakievska", but that's being a very, very, very correct grammatically. It immediately denotes to Macedonians the female gender, in the old days. But that's quite different here in Australia. We don't seem to generally concern ourselves too much with whether it's "i" or "a"."

Whilst I have no reason to doubt the proposition advanced about the general lack of concern in Australia, in the instant case, I am considering the Will of a Macedonian born 83 year old woman who spoke little English and who signed her name "strictly correctly".

I turn to other matters that cause me concern about Ms Zlatevska's evidence.

The contemporaneous documents that formed the contents of her will file, which had been the subject of a subpoena to produce, were sparse. The documents produced were a draft Will (in the form that was subsequently signed by the deceased) which had been prepared following the instructions given to her by Alek, a copy of the letter dated 28 October 2004 that she had written, and caused to be sent to the deceased, one file note (consisting of two pages, the contents of which I shall set out in full), a copy of one page of a practice diary that revealed that her conference with the deceased, at which conference the 2004 Will was executed, was to occur at 1:00 p.m. on 17 December 2004, and a letter to the Registrar of this court under cover of which the copy of the diary page was enclosed.

There is no file note of the instructions given to her by Alek in October 2004. I have earlier referred to her affidavit evidence on this topic, which was brief in the extreme. This is despite Ms Zlatevska acknowledging that it was "good practice" to create a file note in the context of taking instructions for, and the execution of, a will.

It is clear that Alek must have given her more instructions than are set out in paragraph 4 of her affidavit. It seems likely that when Ms Zlatevska prepared her affidavit, she did not refer to the draft Will that had been prepared, which draft Will became the 2004 Will. It is only in the draft Will that was prepared that one finds the identity of the executors, the identity of Pavle as a beneficiary, the address of each of the properties the subject of the specific devises, who substitute beneficiaries are, and how the residue of the estate is to be disposed of.

I have no doubt that it was Alek who gave the instructions which found their way into Clause 3(ii) of the 2004 Will (the devise of the Erskineville property to Alek "because he helped me out and it was my husbands wish"). Alek's evidence was redolent with those sentiments. At the time of the preparation of the 2004 Will, in October 2004, there was no other source for that information.

On this topic, Ms Zlatevska's evidence was that the initial instructions came from Alek to her about what the deceased wanted in her will. And as Ms Zlatevska read the will to the deceased, she did not disagree with its contents.

There was nothing in Ms Zlatevska's affidavit that fleshed out any enquiries she made of Alek, or the deceased, to demonstrate how Alek had helped the deceased out, or what her husband's wish had been. She said that the deceased said "He helped us initially and then later helped with the purchases. He helped with the paperwork." No investigation of the extent, context, or the time when these matters occurred, appears to have taken place.

When I raised this matter with her, Ms Zlatevska relied upon part of her affidavit evidence that included the statement that the deceased said "she wasn't feeling right about having changed the will that she had made with her husband". Ms Zlatevska made no enquiry to confirm whether "Petar and his wife, Vasilka, had the same wills". (There was no evidence at the hearing of any will that the deceased had made with her husband, or that the deceased and her husband had ever had mirror wills.)

In relation to the deceased's "husband's wish", Ms Zlatevska acknowledges having seen the exemplification of Probate of Petar's Will (to which reference has been made) on a date after she prepared the draft of the 2004 Will (and I would infer after 9 November 2004, which is the date the exemplification bears) but before 17 December 2004, the date on which the 2004 Will was executed. Despite Clause 3(ii), which had been inserted on instructions from Alek, she did not pay close attention to the terms of Petar's Will, which, as I have stated previously, did not make a specific devise of the Erskineville property to Alek or of the Rockdale property to Pavle.

What is said to be the contemporaneous file note of the events that occurred on 17 December 2004, which is in Ms Zlatevska's handwriting, is in the following form: "FILE NOTE: 1.00PM 17 DECEMBER 2004 Conference Mrs Vasilka Janakievska and Alek. Confirmed her telephone instructions, showed me her medicare card. Does not receive pension. Signed Will Discussed Will want us (sic) place in safe custody Do not write to her home or give anything to anyone."

The most curious feature about the file note is that Ms Zlatevska accepted that she had never had any telephone conversation with the deceased, and that the reference "Confirmed her telephone instructions" should not have been written in it.

Mr Dubedat's evidence was that the words "Confirmed her telephone instructions" were written at a later time than the words "or anything". She admitted that it was probable that the words had not been written on the file note on the date it bears, as she was well aware, then, that she did not have any telephone conversation with the deceased. She was unable to explain when, or the circumstances in which, the words were written on the file note. She could not explain, otherwise, how those words came to be written by her in the file note. She agreed that it would be unsafe to rely on the accuracy at least of that part of the file note.

Ms Zlatevska also acknowledged that she had known for some time that the file note was inaccurate, at least to the extent that it referred to confirming the deceased's telephone instructions. She was unable to explain why, despite having sworn an affidavit as recently as 29 September 2011, in which affidavit she specifically dealt with aspects of the file note, she had not corrected this error.

Despite her denial in the witness box, the failure to correct the error suggested that she had not appreciated that the file note contained such a significant error (at least until that time).

Another curious feature of the file note is that Ms Zlatevska accepted that the words "Signed will" had been written on the file note after she had written the balance, or perhaps the bulk, of the file note. She gave no evidence in her affidavit of the reasons why this was done, when, or in what circumstances. This was not explored in cross-examination.

It is clear also, that Ms Zlatevska's file note lacks many of the details that one might expect a solicitor of some years experience to include in a contemporaneous file note, especially in circumstances where questions had been raised with her about the state of health of the deceased and where there was likely to be a dispute about the validity of any Will procured at that time.

Importantly, the file note lacks almost all of the details that Ms Zlatevska was able to include in her affidavit sworn on 11 May 2010, that is almost five and a half years after the event and in her evidence in the witness box, almost seven years after the event. The file note does not even include a statement to the effect that she translated the contents of the 2004 Will to the deceased. (I note also, in this regard, that the 2004 Will does not include any similar statement as appeared in the 1999 Will to the effect that the Will had been translated to the deceased before it had been executed by her.)

The only reference to the deceased's knowledge of her assets in the file note relates to the deceased not receiving a pension. Yet, Ms Zlatevska's affidavit refers to the deceased informing her that she had two properties, one in Erskineville and one in Rockdale (that she lived in) and money in the bank. I think it is more probable that Alek had provided this information to her.

Even if I accept that this conversation occurred, there is no evidence, in the affidavit, of any enquiry as to the value of either property or how much money was in the bank. In fact, in her oral evidence, she accepted that she asked no questions about the deceased's understanding of the value of the Erskineville property.

Finally, as will be obvious, there is nothing about persons who had a claim on the bounty of the deceased in the file note. In her affidavit, however, Ms Zlatevska was able to state that the deceased, in answer to the question "Are there other people whom you might wish to benefit", nominated only Pavle, "... because he has been my life, I want him to have the same share" as Alek. Later, the deceased had said that Alek "deserved something because he is my late husband's brother".

There is no mention of any of Pavle's daughters, two of whom had been beneficiaries named in the 1999 Will.

It is most regrettable that Ms Zlatevska did not see fit to record in the file note of her interview with the deceased, more detailed facts of what had occurred. Had she done so, the Court's task might have been a great deal easier. Instead, I am left with having to rely upon the contents of her affidavit, sworn many years after the event, and at a time when litigation was on foot. I must consider the contents of this affidavit with all of the other aspects of Ms Zlatevska's evidence including the instructions previously given to her by Alek.

The letter dated 28 October 2004 was written in English. Ms Zlatevska took no steps, prior to sending that letter, to ascertain whether the deceased could, in fact, read English. More significantly, it referred to "your instructions" when, clearly, as acknowledged by her, the only instructions that she had received about the contents of the draft Will had been given to her by Alek. It was not until 17 December 2004, that she even spoke with the deceased about a will.

Ms Zlatevska gave evidence that she was aware that the deceased had made a will with another solicitor. There is no doubt that Elli informed her of this fact shortly after receipt of the letter dated 28 October 2004. As I accept Robert's evidence about his telephone conversation with Ms Zlatevska, he also informed her about the deceased's age and state of health at some time before 17 December 2004. Alek, too, informed Ms Zlatevska that the deceased had a solicitor who could look after her, had not identified the solicitor but had told her where that solicitor's practice was. At the meeting with the deceased, Ms Zlatevska says that she was told by the deceased that she had another will that she had prepared with another solicitor.

(Although Ms Zlatevska states that her conversation with Elli "did not occur in the wording that is set out", I accept Elli's version of the conversation as it is more likely that she would have remembered it.)

Ms Zlatevska took no steps to ascertain whether what she had been told was correct prior to, or even at, her meeting with the deceased. She made no attempt to ascertain the identity of the deceased's solicitor or to obtain a copy of any prior will that the deceased had made. She did not even ask when the prior will had been made. She did not seek to ascertain the identity of the executors named in that will. When she asked the deceased to identify the beneficiaries named in that will, the deceased was "sketchy with details". Whether any beneficiary had a continuing claim upon the bounty of the deceased was not explored.

There is cause for concern regarding Ms Zlatevska's assertion that she would not have proceeded if she had considered that the deceased did not have capacity. That, of course, is not all she had to consider, particularly in the context of her conversations with Elli and with Robert.

Ms Zlatevska said that the deceased had said that she would like Alek "to come in". She does not say that she provided any explanation to the deceased of the reasons why, in the circumstances, he should not. She also says "I spoke to them in Macedonian".

Ms Zlatevska said that the deceased had told her that Alek had not been provided for in her prior will. She said that the deceased's "only concern seemed to be that she had left Mr Nasev out of something, his entitlement". Again, at this point, she did not suggest to either the deceased, or to Alek, that even though the deceased might have wanted him with her during the discussions, he should wait outside so that she could confer with the deceased alone.

Ms Zlatevska did not reasonably investigate the nature of any prior wills of the deceased and/or the reasons why the deceased wished to change her Will. Speaking with Mr Attapallil might have presented a different picture and provided her with more information upon which she could obtain instructions from the deceased.

In addition, she took no steps to ascertain whether the deceased was suffering from any medical condition that might affect her capacity. Her conversation on this topic appears to have been limited to the enquiry "How are you" as part of the "general pleasantries". Ms Zlatevska did not enquire whether the deceased was under the care of any particular doctor, when she had last seen a doctor, or whether she was taking any medication. She acknowledged that the deceased was "elderly".

In discussing the contents of the Will with the deceased, Ms Zlatevska appears to have been satisfied with asking the deceased whether that was what she wanted (after reading out the clause) and with the deceased nodding, or indicating affirmatively. She gave oral evidence that the deceased, apart from nodding, only said "that's right" in relation to the remainder clause, if anything happened to Alek or Pavle.

Ms Zlatevska agreed that the deceased never stated to her expressly that she wished the Erskineville property to go to Alek; or that the deceased had said she wished to appoint executors, or that she wished to appoint Alek and Pavle as the executors and trustees. Yet, she says that the deceased enquired about "trustees" but could not recollect the exact question asked. In any event, the answer Ms Zlatevska provided did not explain the nature of the role of executors or trustees, but simply identified that the person appointed "had no power to change things during your lifetime".

The answer to this question suggests, that even at her interview with Ms Zlatevska, the deceased had a concern about things being altered during her lifetime.

Ms Zlatevska gave no evidence of having discussed the Clause in the 2004 Will expressing the wish that her firm be employed by the executors "as their solicitors in connection with the execution of the provisions of the Will or any codicil (sic) to it" with, or indeed having obtained such instructions, from the deceased.

In relation to the substitute beneficiary Clause, there had been no evidence of instructions by the deceased for such a clause. However Ms Zlatevska says that when it was read to the deceased, the deceased said "That is right, I do not want anyone else to take".

Ms Zlatevska gives no evidence about making enquiry as to whether either Alek or Pavle had any children who might benefit in the circumstances contemplated by that clause, and if each did, how many children there were.

Ms Zlatevska could not recollect any conversation that she had with Katia, or with Robert, between October 2004 and December 2004. In relation to her conversation with Elli, she could remember that the tone was not very pleasant, but not the rest of the detail. Each of the topics the subject of the conversation was an important one, and each should have been remembered by her.

Finally, the reason why the deceased said that the Will should be kept by Ms Zlatevska in safe custody, that "private and confidential" and that phrase should be written on it, and that it should not be sent or given to anybody, was not the subject of her affidavit evidence. When asked, she stated that "many in our community are very secretive".

I should note that even if all of the clauses of the 2004 Will were translated to the deceased, there is no unyielding rule of law that all other enquiry is to be ignored. All the above aspects are matters in relation to the circumstances under which the 2004 Will was prepared and executed, that assume importance.

There are many aspects of Ms Zlatevska's conduct in relation to the 2004 Will that are open to criticism. Although she displayed no visible partiality when giving her evidence, she must have appreciated that the claims being made in these proceedings would, if upheld, be likely to reflect upon her firm's professional competence. In my judgment that appreciation may, unconsciously, have caused her to have had a rather more positive recollection of the events that occurred on 17 December 2004 than was truly the case.

I formed the view that she was attempting to portray a far greater level of care than was demonstrated by the objective facts. Importantly, she took initial instructions from a third party, who was otherwise a client of hers, about the deceased's will; she did not investigate matters that, objectively, required investigation, or at least detailed consideration; she permitted the person from whom she had taken initial instructions and to whom reference had been made by others as someone who was causing a problem for the deceased (to the extent that there had been Police involvement), to remain in the conference whilst she discussed the terms of the 2004 Will with the deceased; she included a Clause in the 2004 Will that does not appear to have been discussed; she relied upon "nodding" by the deceased and does not appear to have asked any questions to establish the deceased's understanding of the terms of the 2004 Will.

The circumstances should have inspired a more prudent professional approach by the solicitor. She seems to have been completely unaware of the risks that she was running, not only in conferring with the deceased at a meeting attended by a beneficiary who, initially, had given her instructions, but also a beneficiary who had been the subject of a complaint to the Police, and a beneficiary who was also her client.

In addition, there was no explanation why she forwarded the memorandum of costs (a copy of which was never produced despite service of a subpoena to produce documents, one of which was the memorandum of costs) to Alek, rather than to the deceased, or why Alek paid the amount claimed in it.

There is no suggestion in the evidence that the deceased asked Ms Zlatevska to take this course, or that she had even discussed such a course with Alek or the deceased.

Unfortunately, I have not been able to place unquestioning reliance on Ms Zlatevska's evidence as providing a complete and accurate account of what took place in connection with the making of the 2004 Will. To the extent that her affidavit evidence portrays a greater participation by her and by the deceased at the meeting of 17 December 2004, than does her file note, I am satisfied that her affidavit evidence was the product of unconscious reconstruction on her part, based on the 2004 Will as executed, as to the process whereby she had obtained the deceased's instructions.

Except on one aspect of his evidence, I formed the view that Pavle gave his evidence truthfully and without exaggeration. There can be no doubt that for about 40 years, he had a close and loving relationship with the deceased and, particularly after the death of Petar, he played a significant role in the deceased's life. He saw her almost daily, often more than once. He had an opportunity to observe the deceased closely. I have no doubt that, at all relevant times, he had her best interests at heart.

I accept that he observed the deceased's anxiety and nervousness, particularly in the last three months of 2004. I am comforted in accepting these observations, which accord with what the deceased told other independent witnesses and their observations of the deceased also. I also accept his and Elli's evidence regarding changes in the deceased, following the 2003 syncope episode, and particularly in 2004.

In this regard, I am further comforted because of some information recorded in the hospital records of 2005 following the stroke suffered by the deceased. At this time, there was no threat of litigation between the parties and the Plaintiffs were unaware that the 2004 Will had been made by the deceased.

I refer, particularly, to the records of the St George Hospital, which refer to "poor cognition - progressive decline since December 2003", "deteriorating short-term memory and general functioning in past yr", that she "has been 'stressed' and low in mood for 2-3/12 over a family matter", that she had "lost 5 kg over 2/3 12" and had a loss of appetite.

I accept Pavle's evidence regarding what the deceased told him about conversations, at different times, the first as early as 1994, that she had with Alek, and Alek's requests to her to make a will in which he would receive the Erskineville property. I also accept his evidence about the telephone conversation in which Alek suggested that the deceased be placed in a nursing home and that they should see a solicitor to ensure that he received the Erskineville property and Pavle received the Rockdale property.

I am less confident that Alek actually threatened to sue her if she did not make such a will, although I have no doubt that the deceased told Pavle that he had done so, and also that she believed that he would do so.

There is one aspect of Pavle's evidence in which I do not have great faith. During his cross-examination he gave evidence of an event which had occurred in the deceased's home involving the deceased and Alek. If this event had occurred, I would have expected it to be included in his affidavit. It was not. Nor did senior counsel put the event to Alek in cross-examination. I have ignored this alleged incident in my determination of the issues in the case (other than in considering the credibility of Pavle).

Even though I reject this part of his evidence, I otherwise accept his evidence, particularly where there is any conflict between that evidence and the evidence given by Alek.

I have set out, previously, some of the evidence given by Elli that was not the subject of challenge. I also accept her evidence regarding her conversations with the deceased in which the deceased relayed what are said to be threats made by Alek to take the deceased to court if she did not transfer the Erskineville property to him. There was really no successful challenge to this aspect of her evidence.

There is no dispute that following the receipt of the letter dated 28 October 2004, it was she who first telephoned Ms Zlatevska. I accept that Ms Zlatevska told Elli, incorrectly, and, conveyed perhaps, unintentionally, that she had spoken to the deceased over the telephone to take instructions for the draft Will.

The tenor of the conversation between Elli and Ms Zlatevska confirms that Elli was, indeed, indignant, about what Ms Zlatevska had done and that her description of the deceased's anguish over conversations with Alek and upon her receipt of the solicitors' letter, accurately reflects the deceased's state of mind at the time. I also accept that Elli told Ms Zlatevska that the deceased had told her Alek had been coming over and otherwise telephoning and threatening to take the deceased to court and to take the house whilst she was alive. She stated also, that the deceased did not understand and thought that if she did not sign the house over to Alek he would take her to Court.

Elli's concern about these matters is put in even more stark perspective by the fact that she involved the Police, who, subsequently, telephoned Alek. Again, there was really no substantial challenge to her evidence on this topic.

Pavle's daughter, Gordana, was not cross-examined. She confirmed the close relationship that she, her parents and her sisters, had with the deceased throughout her life. There was really no dispute about this.

Robert refers to a conversation he overheard between Alek and the deceased relating to the Erskineville property, this time in the context of a sale, so that the deceased could receive a pension. He also refers to a conversation, with the deceased, in October 2004, where she repeated her telephone conversation of that day, with Alek, about taking her to court if she did not leave him that property. (I have earlier referred to Robert's telephone call with Ms Zlatevska.)

Loza, who was not cross-examined, confirms that the deceased would assist her and Pavle in looking after their children, particularly during the period when she, and he, was working. They would drop the children over to the Rockdale property, where they slept over and would go to school, from there, the next day.

Loza also identifies the support provided to the deceased by Pavle following the death of Petar including attending upon her once or more than once a day, taking over food and groceries to her and taking her to appointments.

Loza gives evidence of a conversation with the deceased, in late August 2004, in which the deceased told her that Alek "came over today and told me he wants me to give him my house at Erskineville otherwise he's going to take me to Court". The deceased also said "If he takes me to Court and takes my house, I won't get a pension. I won't have anything to eat". She recalls that similar conversations occurred on at least two other occasions, subsequently. There is simply no reason to disbelieve her evidence.

I was most impressed with Mr Attapallil. During cross-examination, he appeared careful and concerned to ensure that his evidence was factually, and otherwise, accurate. He did not seem to me to be attempting to favour the Plaintiffs' case, and his evidence, overall, had the air of reality about it. The cross-examination related to what he had explained to, and advised, the deceased, and whether she had understood his explanation and advice. I have no hesitation in accepting his evidence.

In particular, I found his oral evidence about what had occurred in his conference with the deceased on 3 December 2004 as important and instructive. He gave evidence that he thought, because of the age of the deceased, that he should be careful to ensure that she had mental capacity to instruct him, to know what she was signing, and that she had the ability to understand his advice before he accepted instructions.

He gave evidence that the deceased had said to him that her brother-in-law wanted her to give one of the houses that she owned to him. He had also given evidence, in his affidavit, that she had told him if she did not give him one of the houses, her brother-in-law was going to have his solicitor take her to Court. Even though she did not identify the brother-in-law by name, it could not be disputed that she was referring to Alek.

He stated in cross-examination, as he had in his affidavit, that he had asked the deceased for the letter (dated 28 October 2004), which she handed to him, and that he read it. He explained to her the true nature of the letter, that it was not a court document, and that no person was suing her. He also explained to her that no one could push her to make another will and that she could give her assets to anybody she wished to.

In answer to questions concerning the deceased's understanding of what she had been told, Mr Attapallil stressed that despite his assurances, she remained very apprehensive, anxious, and frightened.

At the conference with the deceased on 3 December 2004, Mr Attapallil confirmed that she recollected that she had previously made another Will and that she was giving everything to Pavle's family because they were the ones looking after her. This conversation is inconsistent with what Alek said to him about the deceased's intentions when he saw Alek and Katia on about 6 December 2004, namely that the deceased kept ringing them "saying that she wants to do a new Will to give one of her houses to me".

I found Ms Bozinovska also to be an impressive witness. She, too, gave her evidence clearly and without any apparent bias in favour of one side or the other. Whilst she did not make a file note of the matters stated in her affidavit, she said, and I accept, that she had a clear recollection of the events.

There was no challenge to her affidavit evidence. She was cross-examined on events that occurred in 2007, when an application to convert the title of the Erskineville property to Torrens title had occurred and a document had, apparently, been signed by the deceased (at a time when she did not have capacity). I accept her explanation about this document.

In the circumstances, I accept the evidence given in her affidavit, which broadly corroborates the evidence of Mr Attapallil, both as to his conversation with the deceased on 4 December 2004, as well as his conversation with Alek and Katia on about 6 December 2004.

Ms Mabbutt gave evidence about the care and attention given to the deceased by Pavle. She confirmed his attendance at the Rockdale house once or more than once a day and observed him taking the deceased to appointments.

Mr Johns was cross-examined. He confirmed that he had been a friend of the deceased and Petar from a young age. He renewed his acquaintance with them following his arrival in Australia in 1968. He and his family also attended the Macedonian Church at Rosebery. On most Sundays, he would collect Petar and the deceased and take them to church. He confirms being present when Petar and the deceased spoke about leaving the Erskineville property to Alek and the Rockdale property to Pavle. He says that following Petar's death, the deceased repeated that she wished to carry out her husband's wish. It appears that any such conversation with the deceased occurred before 2000.

Mr Krste Crkovski was also cross-examined. He says that Petar assisted him to come to Australia and that upon his arrival, he lived with Petar, the deceased and Alek at the house in Enmore. (Although the period in which he did so is not identified, I infer that it was in the early 1960s.) He confirms being present when Petar spoke about leaving the Erskineville property to Alek and the Rockdale property to Pavle.

Mrs Crkovska, the wife of Krste Crkovski, gives evidence of the deceased often saying, before and after the death of Petar, that she wanted to leave the Erskineville property to Alek and the Rockdale property to Pavle. It seems probable that the most recent conversation with the deceased about the topic occurred prior to 1999.

Mr Rade Kocoski was also cross-examined. He gives evidence of a conversation with Petar in which Petar said: "On one (1) occasion in mid 1992 after the church service my wife and I delivered Petar and Vasilka to their house and they invited us for a cup of coffee. Petar then asked me to go out side and sit at the verandah and he said words to the effect "Because Vasilka and I have no children of our own I regard my Brother Sandre like a son rather than as a brother and because of that and the renovations he helped me with at the Erskineville property, I want to leave this property to him."

He also said that the deceased often said to him that she "had" to leave the Erskineville property to Alek and the Rockdale property to Pavle. He says the last of the conversations with the deceased was in 2002.

Mrs Jana Kocoska, who was not cross-examined, corroborates the evidence given by her husband. She also says that the deceased said that she "would like to see [Alek] and Katia more often".

It was not suggested, even if I accepted the evidence of the witnesses on his, her or their conversations, with the deceased, that there was any contract, agreement, or mutual promises that was, or were, enforceable. There was no suggestion that either the deceased, Petar, or Alek, viewed the conversations as ones that should be attended by legal consequences.

I also remember, Lord Eldon's observation in Pemberton v Pemberton (1807) 13 Ves 301; (1807) 33 ER 303, to the effect that few declarations "deserve less credit than those of men as to what they have done by their wills. The wish to silence importunity, to elude questions from the persons who take it upon themselves to judge of their own claims must be taken into consideration".

Wills can be proved in two ways; being in common form or in solemn form. A grant of Probate, in whichever form it takes, is a judicial act, and becomes an order of the Court: Kuhl v Liebcheschel [1933] SASR 394 at 398.

In the case of probate in common form, the grant is revocable. The grant is not conclusive, and any person whose interest is adversely affected by the grant remains entitled to have the will proved in solemn form: Jolley v Jarvis [1964] P 262 at 272; In the Will of England (1900) 22 ALT 86; Re Levy [1953] VLR 652; Tsagouris v Bellairs [2010] SASC 147 at [35].

Where, as in this case, the court is made aware of the existence of a possible later will, the practice is not to determine issues of testamentary capacity in common form probate proceedings but to require the matter to proceed by pleadings in which probate in solemn form of each will is sought.

In the case of probate in solemn form (with some notable exceptions concerning fraud, discovery of a later Will, or mistake in making the original grant) the grant of probate is irrevocable: Young v Holloway [1895] P 87; Osborne v Smith [1960] HCA 89; (1960) 105 CLR 153. The party seeking the grant should ensure that every person with an interest in the outcome of the proceedings has been notified and been given an opportunity to be heard: In the Estate of Nicola Alvaro; (deceased); Public Trustee v Alvaro [1995] SASC 5183 at [21]; (1995) 182 LSJS 383. This is achieved by issuing a citation to such person or persons.

In order to obtain a grant of probate in solemn form, the propounder of the will must call at least one of the attesting witnesses to prove due execution: In re Munn; Hopkins v Warren [1943] SASR 304; Oakes v Uzzell [1932] P 19. The evidence of the attesting witness may be given by affidavit: Palin v Ponting [1930] P 185.

Usually, in contested probate proceedings, both attesting witnesses are called as well as the author of the will being propounded. In this case, in relation to the 2004 Will, only the solicitor who took instructions for, and who attested to the deceased's signature on that Will, was cross-examined. Ms Bogdanovski, who swore a formal affidavit of attesting witness, subsequently stated (in another affidavit): "Apart from the matters set out in that affidavit, I have no recollection of the circumstances in which the will document dated 17 December 2004 was made."

An example of a case in which proof in solemn form is the appropriate course to follow is where the deceased has made a number of wills within a period of time, and where there is, or may be, doubt as to her, or his, capacity to make the later will. Where one executor is named in those wills a question regarding what he should do is often raised.

In this case, in light of the acceptance by Alek that if there is a grant of Probate in solemn form of the 2004 Will it should be to both Pavle and to him jointly, there is no need to deal with this aspect further.

In the light of my conclusions, in any event, this is now an irrelevant matter.

The law as to testamentary capacity is well settled. There was no dispute about the principles between the parties, so it is unnecessary to set out the principles in any detail.

In any event, I could do no better than repeat what Powell J (as his Honour then was) stated in Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at pp 704-707: "I take the principles of law to be borne in mind, and, if relevant, to be applied, in a case such as this, to be as follows:- 1. The onus of proving that a document is the will of the alleged testator lies on the party propounding it; if that is not established the Court is bound to pronounce against the document; 2. This onus means the burden of establishing the issue; it continues during the whole case, and must be determined upon the balance of the whole of the evidence; 3. The proponent's duty is, in the first place, discharged by establishing a prima facie case; 4. A prima facie case is one which, having regard to the circumstances so far established by the proponent's testimony, satisfies the Court judicially that the will propounded is the last will of a free and capable testator; 5. The first step in establishing a prima facie case is proof that the will was duly executed, that is to say: (a) that it was signed by the testator, or by some person in his presence and by his direction; (b) that such signature be at the foot or end of the will; (c) that such signature be made or acknowledged by the testator in the presence of two or more witnesses present at the same time; (d) that such witnesses attest and subscribe the will in the presence of the testator; 6. Where, what is propounded as a will comprises more than one sheet of paper, it is not necessary that every sheet be signed, although it was, at one time, held that, for the prevention of fraud, the sheets must, at the time of execution, be attached in some way ... although as time went by the degree of 'connection' insisted upon seems progressively to have been relaxed; if, however, the pages are authenticated beyond doubt there appears to be no reason why 'connection' at the time of execution need be insisted upon; 7. A testator's signature is sufficiently 'made' in the presence of the attesting witnesses if the signature was in fact made in the presence of witnesses who either saw, or had the opportunity to see, the testator writing, even though they did not actually see the signature itself; 8. A testator's signature is sufficiently 'acknowledged' in the presence of the attesting witnesses if, by word or gesture, the testator invites the witnesses to sign his will, or witness his signature and the witnesses either see, or have the opportunity of seeing, the testator's signature. 9. Unless suspicion attaches to the document propounded, the testator's execution of it is sufficient evidence of his knowledge and approval; 10. Facts which may well cause suspicion to attach to document include: (a) that the person who prepared, or procured the execution of, the document receives a benefit under it; (b) that the testator was enfeebled, illiterate or blind when he executed the document; (c) where the testator executes the document as a marksman when he is not; 11. Where there is no question of fraud, the fact that a will has been read over to, or by, a capable testator, is as a general rule, conclusive evidence that he knew and approved of its contents; 12. The locus classicus for the test of whether or not a person has testamentary capacity is the judgment of Cockburn CJ in Banks v Goodfellow in which case His Lordship said:- 'It is essential to the exercise of such a power (scil, testamentary power) that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about it a disposal of it, if the mind had been sound, would not have been made.' ... 13. The test of what the law, in this context, at least, regards as 'a disease of the mind' or 'an insane delusion', was discussed by Sir J.P. Wilde in Smith v Tebbitt in which case his Lordship said:- 'It is, no doubt, true that mental disease is always accompanied by the exhibition of thoughts and ideas that are false and unfounded, and may therefore be called 'delusive'. But what I want to convey on this head is this; that the question of insanity and the question of 'delusions' is really one and the same - that the only delusions which prove insanity are insane delusions - and that the broad enquiry into mental health or disease cannot, in all cases, be either narrowed or determined by any previous or substituted enquiry into the existence of what are called 'delusions'.' ... 14. A duly executed will, rational on its face, is presumed, in the absence of evidence to the contrary, to be that of a person of competent understanding; sanity is to be presumed until the contrary is shown. 15. Facts which, if established, will provide evidence to the contrary include: (a) the exclusion of persons naturally having a claim on the testator's bounty; (b) extreme age or sickness or alcoholism; 16. In relation to the former of these two matters, however it is appropriate to record that, in the speech of Erskine J, when delivering the advice of the Judicial Committee in Harwood v Baker , the following passage appears:- 'The question which their Lordships propose to decide in this case, is not whether Mr Baker knew when he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share in his property. If he had not the capacity required, the propriety of the disposition made by the will is of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition though the justice or injustice might cast some light upon the question as to his capacity.' 17. However, while extreme age or grave illness will call for vigilant scrutiny by the Court, neither (even though the testator may be in extremis) is, of itself, conclusive evidence of incapacity; it will only be so if it appears that age, or illness, has so affected the testator's mental faculties as to make them unequal to the task of disposing of his property."

In Re Griffith; Easter v Griffith (1995) 217 ALR 284, at [289 - 290], Gleeson CJ (as his Honour then was) said: "Where the evidence in a suit for probate raises a doubt as to testamentary capacity, there rests upon the plaintiff the burden of satisfying the conscience of the court that the testatrix had such capacity at the relevant time. If, following a vigilant examination of the whole of the evidence, the doubt is felt to be substantial enough to preclude a belief that the testatrix was of sound mind, memory and understanding at the time of execution of the will, probate will not be granted ( Worth v Clasohm (1952) 86 CLR 439). This formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. The power freely to dispose of one's assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter."

The statement of principle in Banks v Goodfellow has been described as "a durable formulation" which "has withstood the test of time": Sharp v Adam [2006] WTLR 1059 at [82] and [66].

It is important to remember that Banks v Goodfellow does not require perfect mental balance and clarity in the deceased. As Cockburn CJ put it in that case, at 566, "the mental power may be reduced below the ordinary standard" provided the deceased retains "sufficient intelligence to understand and appreciate the testamentary act in its different bearings".

In Re Griffith; Easter v Griffith , Kirby P (as his Honour then was) articulated, at 295, this principle as follows: "In judging the question of testamentary capacity, the courts do not overlook the fact that many wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent - more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will ... Were the rule to be otherwise, so many wills would be liable to be set aside for want of testamentary capacity that the fundamental principle of our law would be undermined and the expectations of testators unreasonably destroyed."

In comprehending the nature of what the deceased was doing, and its effects, it is not necessary to establish that he or she was capable of understanding all the clauses of the disputed will. An appreciation of the legal effect of every clause in a will is unnecessary. However, it does need to be shown that the deceased understood that he or she was executing a will and the practical effect of the central clauses in that document, including the dispositions of property made and the implications for the estate of the appointment of those who are to administer it: Nicholson v Knaggs at [97].

Where in the light of medical evidence, it appears that the deceased suffered from any medical condition which is relevant to testamentary capacity, the onus is on the propounder of the will to show that the deceased's mental state did not influence the will: Bull v Fulton (1942) 66 CLR 295.

In determining testamentary capacity, consideration should also be given to the nature of the subject will itself, regarded from the point of simplicity or complexity, or of its rational or irrational provisions, its exclusion or non-exclusion of beneficiaries: Bailey v Bailey (1924) 34 CLR 558, at 571, per Isaacs J.

I also note that in Bool v Bool [1941] St R Qd 26 at 39 (Full Ct, Macrossan SPJ) it was said: "A great change of testamentary disposition evidenced by a departure from other testamentary intentions long adhered to always requires explanation."

A matter that is often forgotten by parties in probate cases is that what is being spoken of is capacity rather than the exercise of it. The question is whether the deceased had the capacity of sound judgment, not whether she, or he, in fact, made the judgment about her, or his, disposition of the estate by will soundly, and for reasons which might appear to the observer to be appropriate.

As Ward J noted in King v Hudson [2009] NSWSC 1013, at [51]: "Mr Willmott referred in this context to the three "R's" adumbrated by Myers J (writing extra-judicially in the Australian Bar Gazette 1967 Vol 2 p 3), those being the need for the testator to have the capacity to remember, to reflect and to reason: He must be able to remember, so that he can call to mind the property at his disposal and those who may have claims upon him, to reflect so that he can consult within himself on the relative weight of their claims, and to reason so that he can judge, having regard to his assets, how far, if at all, he should give effect to them. Mr Willmott emphasised that his Honour went on to say: It is to be observed that it is not necessary for the testator to do any of those things. All that is required is that he should be able to do them and, if he can, his will will be valid no matter how unreasonable or capricious it may be. Testamentary dispositions are always relevant to the question of testamentary capacity, but I have never known a case in which they have done more than create suspicion on the one hand, or served to confirm capacity on the other."

In this case, affirmative satisfaction of the testamentary capacity of the deceased at the time the 2004 Will was made invites the examination of the position at the time the Will was executed (since the deceased gave no instructions to Ms Zlatevska prior to that time): Smith v Tebbitt (1867) L.R. 1 P&D 398, at 436 - 437. Ultimately, whether the deceased possessed the requisite capacity is a practical question which does not depend solely upon medical evidence but is to be determined upon all of the facts established in the case: Boughton v Knight (1873) LR3P&D 64 at 67.

In addition to showing that the deceased had testamentary capacity, Alek, as the propounder of the 2004 Will, must also show that she knew and approved its contents. This requirement is conceptually distinct, and separate, from testamentary capacity, and must not be conflated with it: Hoff v Atherton [2005] WTLR 99, 108 (per Peter Gibson LJ) and 117 (per Chadwick LJ); Perrins v Holland [2009] EWHC 1945 at [45] per Lewison J.

Chadwick LJ in Hoff v Atherton continued: "A testator cannot be said to know and approve the contents of his will unless he is able to, and does, understand what he is doing and its effect. It is not enough that he knows what is written in the document which he signs. But if testamentary capacity - the ability to understand what is being done and its effect - is established, then it is open to the court to infer that a testator who does know what is written in the document which he signs does, in fact, understand what he is doing. And, where there is nothing to excite suspicion, the court may infer (without more) that a testator who signs a document as his will does know its contents. It would be surprising if he did not. ... Further, it may well be that where there is evidence of a failing mind - and, a fortiori, where evidence of a failing mind is coupled with the fact that the beneficiary has been concerned in the instructions for the will - the court will require more than proof that the testator knew the contents of the document which he signed. If the court is to be satisfied that the testator did know and approve the contents of his will - that is to say, that he did understand what he was doing and its effect - it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator's capacity to make a will. It is because the court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents - in the wider sense to which I have referred."

The principles were stated authoritatively, for relevant purposes, by the High Court in Nock v Austin (1918) 25 CLR 519. Although the judgment of Isaacs J did not receive the assent of the other two members of the Court, what his Honour said is not inconsistent with their judgment. I set out the relevant statement of principles by his Honour, omitting from that statement reference to authorities. His Honour said (at 528): "(1) In general, where there appears no circumstance exciting suspicion that the provisions of the instrument may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents. (2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document. (3) If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence of both sides, is not judicially satisfied that the document does contain the real intention of the testator, the court is bound to pronounce its opinion that the instrument is not entitled to probate. (4) The circumstance that a party who takes a benefit wrote or prepared the will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the court of the evidence as to the testator's appreciation and approval of the contents of the will. (5) But the rule does not go further than requiring vigilance in seeing that the case is fully proved. It does not introduce a disqualification. (6) Nor does the rule require as a matter of law any particular species of proof to satisfy the onus. (7) The doctrine that suspicion must be cleared away does not create 'a screen' behind which fraud or dishonesty may be relied on without distinctly charging it."

Traditionally, a two stage approach to the evidence may be adopted where knowledge and approval is in issue. The first stage is to ask whether the circumstances are such as to "excite suspicion" on the part of the court. If so, the burden is on the propounder of the will to establish that the deceased knew and approved the contents of that will. If the circumstances do not "excite suspicion", then the court presumes knowledge and approval in the case of a will that has been duly executed by the deceased who had testamentary capacity.

When considering whether circumstances that excite suspicion exist, the court looks at a number of factors including the circumstances surrounding the preparation of the propounded will; whether a beneficiary was instrumental in the preparation of the propounded will; the extent of the physical and mental impairment, if any, of the deceased; whether the will in question constitutes a significant change from a prior will; and whether the propounded will, generally, seems to make testamentary sense. Suspicion engendered by extraneous circumstances arising subsequent to the execution of the propounded will is not a reason for rebutting the presumption arising from the due execution of a will regular on its face: In re R (dec'd [1950] 2 All ER 117, at 121.

A full review of case law on the topic is to be found in Vernon v Watson; Estate Clarice Isabel Quigley dec'd [2002] NSWSC 600 at [2] - [9]. It is not necessary to repeat what is written there.

In this case, one of the particulars relied upon by the Plaintiffs is the lack of an attestation clause in the 2004 Will which describes the translation of the Will to the deceased. It has been said, in Scarpuzza v Scarpuzza [2011] WASC 65: "32 The presence of a suitable attestation clause, especially in a case like this, if adapted to acknowledge the testator's limited understanding of the English language, can assist in establishing due execution and, hence, knowledge and understanding of the contents of the will by the testator. However, the Wills Act does not require the presence of an attestation clause nor is any particular form of attestation clause generally required by the authorities, although many different forms of attestation clauses, some applying in particular circumstances such as, for example, for a blind or illiterate testator, have been endorsed by the courts: Bryan v White [1850] EngR 788; (1850) 163 ER 1330; 2 Rob Ecc 315 and Re Atkinson (1883) 8 PD 165. ... 34 In Halsbury's Laws of England (4th ed, 2005 reissue) vol 50 [369] there is the passage: There is a presumption of due execution where there is a proper attestation clause, even though the witnesses have no recollection of having witnessed the will, but this presumption may be rebutted by evidence of the attesting witnesses: Weatherhill v Pearce [1995] 1 WLR 592; 2 All ER 492 or otherwise."

As stated, there was no attestation clause similar to that appearing in the 1999 Will. However, Ms Zlatevska gave evidence that her conversation with the deceased on 17 December 2004 was in Macedonian. That evidence was not challenged.

Undue influence in probate is to be distinguished from the equitable doctrine of undue influence. In order to render a will void, there must be influence which can justly be described by the court to have caused the execution of a testamentary document pretending to express the deceased's mind, but which really does not express her, or his, mind, but something else which she, or he, did not really mean: Boyse v Rossborough (1857) 6 HL Cas 2; 10 ER 1192, at page 1205; Craig v Lamoureux [1920] AC 349 at 357.

In probate, "persuasion, or influence, or importunity is not sufficient unless it amounts to coercion, that is, unless the testator is prevented by the persuasion, influence, or importunity from exercising free will". (See: "Wills and Intestacy in Australia and New Zealand", Hardingham, Neave and Ford (2nd Ed).)

Perhaps, in light of submissions made in this case, what was said by Sir John Nicholl in Williams, formerly Cook v Goude (1828) 1 Hag Ecc 577 (at 581) is relevant: "The influence to vitiate an act must amount to force and coercion destroying free agency - it must not be the influence of affection and attachment - it must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground in support of a testamentary act. Further, there must be proof that the act was obtained by this coercion - by importunity which could not be resisted: that it was done merely for the sake of peace, so that the motive was tantamount to force and fear."

See also Hall v Hall (1868) LR 1 P & D 481; 32 JP 503 in which Sir J P Wilde, at 482, described undue influence as the overpowering of the volition without convincing the judgment: Trustee for the Salvation Army (NSW) Property Trust t/as the Salvation Army v Becker [2007] NSWCA 136 at [63]; (2007) 14 BPR 26,867.

In relation to the degree of coercion required, Hannen P stated in Wingrove v Wingrove (1885) LR 11 PD 81 at p 82-83, in a passage quoted in Winter v Crichton (1991) 23 NSWLR 116 at 122: "The coercion may, of course, be of different kinds, it may be in the grossest forms such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain that the sick person may be induced, for quietness sake, to do anything. This would equally be coercion though not actual violence."

Coercion is pressure that overpowers the volition of the deceased. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes the deceased to succumb for the sake of a quiet life, if carried to an extent that overbears her or his free judgment, discretion or wishes, is enough to amount to coercion in this sense: see, for example, Miller v Jones [1999] NSWCA 467; Edwards v Edwards [2007] WTLR 1387 at [47].

Yet, it is important to remember that undue influence relates to impairment of judgment, rather than to improper conduct on the part of the person possessing influence: Carey v Norton [1998] 1 NZLR 661; (1997) 16 FRNZ 686.

Where, as in the present case, the Plaintiffs allege undue influence, the onus of proof lies upon them to prove the allegation. They must prove it on the balance of probabilities. However, an allegation of undue influence is a serious one, and it is necessary to remember s 140 of the Evidence Act 1995 which says that a Court may take account of the gravity of the matters alleged when deciding if a case has been proved.

Vickery J explained in Nicholson v Knaggs [at 130]: "An allegation of testamentary undue influence is a serious matter with potentially significant consequences for the expression of the will of a testator and for the testamentary dispositions made under it. Further, the exercise of undue influence in a testamentary context may also be regarded as an inherently unlikely event in the circumstances of most cases. Expectant beneficiaries do not ordinarily put pressure on elderly testators in an endeavour to change their minds against their will. Bearing these matters in mind, in the assessment of the evidence which has been marshalled in support of the allegation made in this case, and in arriving at the ultimate conclusion, I adopt and apply the approach of Dixon J in Briginshaw v Briginshaw and the majority in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd ."

Following this reference to Nicholson v Knaggs , Brereton J in Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81, at [43], added: "That said, undue influence need not be proved by direct evidence: the question must be decided upon all the circumstances of the case [ Callaghan v Myers (1880) 1 NSWLR 351 - a case which, incidentally, refutes the contention, frequently heard in probate circles, that the defence has never succeeded in New South Wales]. In the context of civil proceedings, it is of course not necessary that the circumstances admit of no rational hypothesis inconsistent with undue influence; but undue influence must more probably than not be the true explanation. This accords with well-established authority: in Craig v Lamoureux [1920] AC 349, Viscount Haldane explained (at 357): As was said in the House of Lords when Boyse v Rossborough (1856) 6 HLC 2 (at 49) was decided, in order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with the hypothesis of its having been attained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis." (In the present case, it was accepted, that had circumstantial evidence been relied upon, the Plaintiffs would have failed because they would not have been able to establish that the circumstances attending were inconsistent with a contrary hypothesis. That contrary hypothesis would be that the deceased wished to carry out the wishes of her husband.)

Sir James Hannen P in Wingrove v Wingrove at 83, said: "... It is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It is necessary also to prove that in the particular case, that power was exercised and that it was by means of the exercise of that power that the will, such as it is, has been produced."

As the Plaintiffs' case is said not to be a circumstantial one, direct evidence of the exercise of undue influence by Alek is relied upon. In such a case, the question to be answered by the court is whether the will of the deceased was overborne, to the requisite degree, by the conduct of the influencer, proved by direct evidence: Nicholson v Knaggs at [116].

Although in many cases, it is said that undue influence is fraud, it is useful to remember that in probate, undue influence and fraud are different concepts. As was said in Trustee for the Salvation Army (NSW) Property Trust t/as the Salvation Army v Becker , at [64] - [65]: "The basic point is that, to prove undue influence, it must be shown that the testatrix did not intend and desire the disposition. It must be shown that she has been coerced into making it. See, generally, Boyse v Rossborough ; Buckley v Maddocks (1891) 12 LR (NSW) Eq 277 at 282 per Stephen J; Winter v Crichton; Estate of Galieh . On the other hand, fraud, sufficient to result in the invalidation of a testamentary instrument, is concerned with misleading or deceptive conduct. With fraud, there is no overpowering of the volition, no coercion. Whereas undue influence coerces a testatrix, fraud misleads her."

In looking at the question of undue influence, one must bear in mind the circumstances of the individual deceased. What may not constitute undue influence in the case of a person with a strong will and ordinary fortitude, may constitute undue influence in the case of a more susceptible individual.

I should mention that both parties referred to and relied upon Tobin v Ezekiel; Estate of Lily Ezekiel , in which Brereton J dealt with the principles of testamentary capacity, knowledge and approval and undue influence. It is unnecessary to otherwise repeat what his Honour said, which I have carefully considered.

I turn now to apply the above principles of law to the facts as I have found them.

The starting point is that the burden of proving testamentary capacity lies on Alek, who seeks to uphold the 2004 Will. Due execution of the 2004 Will was established. There was no dispute, then, that the Plaintiffs had discharged any evidentiary onus, and that the evidence, as a whole, raised doubts as to the deceased's testamentary capacity. It was conceded that Alek had to affirmatively establish that the deceased had testamentary capacity. The question argued was whether he had discharged that burden.

There is nothing very significant in the written medical evidence that has been read going to the mental state of the deceased. I consider the concession, made on behalf of Alek, to the effect that the deceased exhibited some mild cognitive difficulties, was appropriate, and those difficulties are evidenced by the medical records and by the lay evidence.

Furthermore, assuming I had accepted Alek's evidence about what the deceased said to him at, or about, the time of him giving instructions for the preparation of the 2004 Will, the deceased was obviously confused. Whilst she appears to have attended upon Mr Attapallil in September 2004, there is no suggestion that she had been asked to sign anything whilst she was with him.

To the contrary, the conversion of the title of the Erskineville property was simply discussed at that time. No steps were taken, as they were in 2007, to achieve the actual conversion of title. Mr Attapallil had simply advised her and she was to return when she was ready to proceed. There could be no suggestion that she would lose her home. There could be no suggestion that she had signed anything.

Yet, the deceased is said to have told Alek that she had signed something that would result in her house being lost. Thus, if she had said what he reported, she was quite confused about what had occurred and what the result would be.

Furthermore, if accepted, Alek's express denials about the deceased initiating the topic of her Will, making any requests to transfer the Erskineville property to him and the Rockdale property to Pavle, encouraging her to make a will in those terms, or otherwise, and threatening court action if she did not do so, suggest what the deceased told Mr Attapallil and Ms Bozinovska on 3 December 2004, and others at, or about that time, also demonstrates confusion in the mind of the deceased.

Senior counsel for Alek submitted that, perhaps, the deceased was simply mistaken, not confused. However, what the deceased said to different people, in December 2004, demonstrates, to my mind, something far more serious than statements based upon mistaken facts. These facts could not, legitimately, be mistaken in the way in which her conversations would suggest they were. The reasons the deceased was mistaken, to such a significant degree, requires explanation by Alek, which explanation has not been forthcoming.

Furthermore, it is extremely difficult, if not impossible, to explain the change of the deceased's position regarding her testamentary intentions within such a short period of time. She expressed a firm view about her testamentary intentions to Mr Attapallil and Ms Bozinovska on 3 December 2004. She did so in the context of having been informed by Mr Attapallil that another solicitor had prepared a draft Will.

Yet 14 days later, she is said to have come to a completely different view. Whilst a person may change her mind, the change did not appear to have an immediate cause, and it was one that altered testamentary dispositions that had existed, and remained in place, since 1999. Merely reflecting on what she and her husband had discussed (which, as stated, did not find reflection in his 1971 Will or her 1999 Will) does not, in my view, provide a sufficient, or satisfactory, explanation for this dramatic change to her testamentary dispositions.

There is nothing to suggest that anything had changed between the deceased and Pavle and/or his children, one of whom was then still living, with members of her family, in the deceased's home.

Furthermore, there was no suggestion that either of Pavle's daughters, who had been named as beneficiaries in the 1999 Will, had done anything to forfeit consideration as her beneficiaries.

Also, if the deceased simply had a change of mind, there does not appear to have been any reason to go to Ms Zlatevska to draft the new Will. She was not, and never had been, the deceased's solicitor. She was, at the highest, a mere acquaintance. The deceased had her own solicitor, who could have drafted a new Will. She could have returned to Mr Attapallil and Ms Bozinovska to effect the necessary changes to her Will. She could have telephoned them to provide instructions to do so. Alek could have taken her.

I have, of course, considered the terms of the 2004 Will. The terms are only rational, if the deceased continued to hold views that she had expressed many years before, and predominantly whilst her husband was alive. Those views had not prompted her to make a Will in the same terms in 1999. There was no evidence, other than Ms Zlatevska's, that establishes that the deceased held those views in 2004. To the contrary, the evidence of what the deceased said to Mr Attapallil and Ms Bozinovska, suggests that she did not hold those views then.

It is difficult to see how Alek could be regarded as having a claim on the deceased's bounty equal to that of Pavle. Any assistance he had provided to the deceased occurred about 40 years prior to the 2004 Will being executed. Furthermore, there is nothing to suggest, following Petar's death, that Alek and Katia had played a very significant role in the deceased's life. He, and they, might have visited her and spoken to her on the telephone, but that appears to have been as far as their relationship went.

Furthermore, there is no evidence, at all, that she gave the instructions regarding what was included in Clause 3(ii) of the 2004 Will. Those were clearly the views of Alek, not of the deceased. Interestingly, there is no record, in the Will, of what Pavle had done for the deceased and/or her husband, which warranted him being named as a beneficiary.

The ultimate question is: irrespective of whether the deceased was suffering from any medical condition on the day she executed the 2004 Will, did she have the requisite mental capacity, in terms of the test laid down in Banks v Goodfellow , to execute the Will? From the point of view of onus of proof, the ultimate question may be stated as whether, on the whole of the evidence in the case, the court is satisfied on the balance of probabilities, that the deceased had testamentary capacity?

I appreciate that one should not lose sight of the focus of the inquiry, namely, the deceased's testamentary capacity. Although it is helpful to determine whether the deceased was suffering from any medical condition that would detrimentally affect her capacity that is not the ultimate question. It is not necessary, in every case, for there to be a medical diagnosis which explains the deceased's state of mind. Medical evidence is relevant and admissible, but it is neither required nor conclusive.

Of course, in this case, there is some medical evidence. It is an interesting coincidence that on the morning of the day she signed the 2004 Will, Dr Mihajlov regarded the deceased as being "very depressed" and having infections, one in her left ear and one in her left eye that were likely to affect her cognitive abilities. Her depressed condition is consistent with the description of the deceased by those who saw her daily, and who described her, in the last 3 months of 2004, as having lost weight and being "under pressure". These matters shed some light on her likely level of her capacity. I have recited other parts of the medical evidence earlier.

I have, naturally, considered the weight to be accorded to Ms Zlatevska's evidence. The evidence of an experienced and impartial solicitor, who knew the deceased, would normally carry great weight. For the reasons set out previously, on the ultimate question, I do not gain any confidence from her evidence about what occurred between the deceased and Ms Zlatevska on 17 December 2004.

A solicitor, in preparing a will and then having it executed, has duties to perform, which duties vary with the condition of the deceased and the situation otherwise. In circumstances where, as here, initial instructions, at least in part, have come from a proposed beneficiary; other clauses have been added, apparently without instructions; where the solicitor has been informed by other persons that the deceased is elderly and is unwell; where the solicitor is informed that the deceased has a solicitor; where it has been suggested to the solicitor that the beneficiary is causing the deceased to make a will; where the beneficiary is a long-standing client of the solicitor and has brought the deceased to see her; and where the solicitor has never met the deceased in a professional capacity, the solicitor does not discharge her, or his, duty by simply reading the words of the will to her, whilst the beneficiary who has given initial instructions and who is said to be causing the will to be made, remains present, and by relying upon the deceased's nods, apparently affirmatively, to demonstrate an understanding of the terms of the Will.

I am not satisfied that from Ms Zlatevska's evidence that capacity existed and that it was being freely and intelligently exercised in the disposition of the deceased's property.

In this regard, it is notable that Ms Zlatevska's contemporaneous file note does not provide very much, if any, detail. Also notable, are the absence of Ms Bogdanovski who stated, in an untested affidavit, that she could not remember anything, and the failure of Alek to provide any details of what occurred at the meeting of 17 December 2004.

On the facts as found by me, I am not satisfied that Alek has discharged the burden of establishing that the deceased had testamentary capacity.

Having regard to my conclusion that Alek has not established that the deceased had testamentary capacity, it is not necessary for me to reach any conclusions about knowledge and approval and undue influence, but I will do so, on the basis that, contrary to my conclusion, there is sufficient evidence to conclude that the deceased had testamentary capacity to make the 2004 Will.

Even if Alek had satisfied me of the deceased's testamentary capacity, I would not have found that she knew and approved the terms of the 2004 Will. There are too many suspicious circumstances that cast on Alek the onus of removing such suspicion by clear and affirmative proof of knowledge and approval, which onus he has not satisfied.

I am far from convinced that the 2004 Will contained the "real intentions" of the deceased. Without intending to repeat all of the circumstances that cause suspicion, I note that the idea of the 2004 Will appears to have been conceived and implemented by Alek, and not by the deceased; in relation to, at least part of the 2004 Will (the substitute beneficiary clause and the wish to have D Stanefska & Associates appointed as solicitors), there is no evidence of any discussion between the solicitor and the deceased, about either clause. The same may be said about the revocation clause. There is no evidence, other than the global statement that the solicitor read each clause to the deceased at the time she signed the 2004 Will, who seemed to agree with them, but this evidence cannot be accepted uncritically. The 2004 Will was executed at a time when the deceased's cognitive difficulties were starting to become apparent; she was suffering from severe depression and had an eye and ear infection; I have also found that she appeared to be suffering some bouts of confusion in relation to what had occurred.

Whilst I appreciate that, in the 1999 Will, a similar substitute beneficiary clause exists, there is no dispute that the deceased knew and understood the contents of that Will and that she had testamentary capacity at that time. In relation to the 2004 Will, neither of those matters is agreed.

A solicitor may, in some perfunctory manner, go far enough to satisfy herself, or himself, as to capacity and knowledge and approval, but it is to be remembered that her, or his, duty is to go far enough to satisfy the court that the steps taken were sufficient to warrant her, or his, satisfaction. In this case, I am not so satisfied. Ms Zlatevska appeared not to ask non-leading, or open, questions, to ascertain whether the understood and whether she knew and approved, the terms of the 2004 Will. Further, since the instructions for part only of the Will had come from Alek, and the rest she had included herself, Ms Zlatevska needed to explain, in detail, the terms of the 2004 Will to the deceased and ensure that the deceased agreed with its terms. She ought to have sought detailed responses, not merely nodding approval.

It was accepted by senior counsel for Alek that unless I accepted Ms Zlatevska's evidence as to what had occurred on 17 December 2004, I could not be satisfied of the deceased's knowledge and approval. For the reasons I have set out, I am not so satisfied of her evidence.

Then, turning to undue influence, I remember, of course, that there is no evidence, by any witness, that he, or she, actually heard Alek making a threat to take the deceased to Court if she did not leave him the Erskineville property. In this respect, it is the deceased who conveyed what he said to her to a number of different people. She may, or may not, have been confused about what he had said.

Whilst I have some grave concerns that he may have done so, I cannot be satisfied, on the balance of probabilities, on such a serious matter, that Alek, in fact, threatened the deceased with court action if she did not make a will in the terms he was advocating.

However, even if he did not expressly threaten the deceased with court action, his requests, which in my view, were in the nature of demands, between September and December 2004, that she make a will in which there would be a gift of the Erskineville property to him, lead me to the view that it was his pressure which caused the deceased to succumb, for the sake of a quiet life, and, therefore, her free judgment, discretion and wishes were overborne.

The physical and mental strength of the deceased are relevant factors in determining how much pressure is necessary in order to overbear the will. I am satisfied that there was importunity that the deceased could not resist on or about 17 December 2004, and that she made the 2004 Will merely for the sake of peace. It was the product of his consistent, and repetitive, action that had commenced some time before but had become more pronounced from at least September 2004. During this period, his conduct was not merely an appeal to her sentiment or affection.

I am satisfied that because of his belief that he was entitled to the Erskineville property, Alek exerted pressure upon the deceased to make the 2004 Will which she did, the terms of which Will were contrary to the wishes she had expressed a few weeks earlier. What he did amounted to coercion. As a result, the deceased's mind was, in effect, a mere channel through which what Alek wanted, operated.

I am satisfied, as Sir James Wilde put it in Hall v Hall at 482, that the deceased was not led but driven; and that the 2004 Will was not the offspring of her own volition, but the record of Alek's.

Accordingly, I am satisfied that the Plaintiffs have established undue influence.

In all the circumstances, I make the following orders: (a) Order that subject to compliance with the rules of Court, Probate in solemn form of the deceased's Will made on 15 April 1999 be granted to the Plaintiffs; (b) Order that the matter be referred to the Registrar to complete the grant; (c) Order that the Cross-Claim be dismissed; (d) If the parties are unable to agree on the burden of costs, the matter is adjourned to hear argument; (e) Order that the Exhibits, with the exception of each original Will, should be dealt with in accordance with the Uniform Civil Procedure Rules 2005 and the Court Books may be returned.