The Estate of Stanislaw Budniak; NSW Trustee & Guardian v Budniak

HIS HONOUR: This judgment concerns two contested proceedings involving the estate of Stanislaw Budniak (“the deceased”). On 3 November 2014, the court ordered that the proceedings should be heard consecutively, with the evidence in one being evidence in the other. The hearing of the two matters proceeded over 7 non-consecutive days. However, as the oral submissions did not conclude, it was necessary to allow the parties an opportunity to serve further submissions to which submissions in reply were also served. The court received all of the submissions by 29 May 2015.

The first proceeding in time was commenced by Statement of Claim, filed on 9 November 2012, with an Amended Statement of Claim filed on 12 June 2013. In those proceedings, the Plaintiff, the NSW Trustee & Guardian (“the NSW T & G”) propounded a copy of a duly executed Will made by the deceased on 3 October 2007 (“the 2007 Will”) (Ex. A) and it sought consequential relief. It is the sole executor named in the 2007 Will.

During the proceedings, on occasions, the NSW T & G was referred to as the Public Trustee. I shall also identify it in this way, when necessary, in these reasons. (The NSW Trustee and Guardian Act 2009 (NSW) commenced on 1 July 2009. Section 4 repealed the Public Trustee Act 1913 (NSW). Section 5 constituted the corporation called the NSW Trustee and Guardian. Under clause 3(1)(d) of Schedule 1 to the NSW Trustee and Guardian Act, any reference in a previous Act to the Public Trustee is to be read as a reference to the NSW Trustee. Under clause 11 of Schedule 1, the NSW T & G is taken, for all purposes, to be a continuation of the former Public Trustee.)

The Defendants named in the first proceeding are four of the five children of the deceased, namely, Robert Zbigniew Budniak, Lech Jerzy Budniak, Eliza Kyrstyna Budniak, and Joanna Maria Borysewicz (nee Budniak). They relied upon one composite Defence (to the Statement of Claim) filed on 19 December 2012, identifying two grounds for opposition to the relief sought, namely that the deceased lacked testamentary capacity and that he did not know and approve of the contents of the 2007 Will. Only Robert filed a Cross-Claim to which I shall return. I shall refer to these proceedings as “the Probate proceedings”.

Without intending to convey undue familiarity, with no disrespect intended, and for convenience, I shall refer, hereafter, to the parties, and other family members, after introduction, by her, or his, given name.

In the second proceeding, which was only brought in case there is a grant of Probate in solemn form of the 2007 Will, each of Robert, Lech, Eliza and Joanna, sought a family provision order out of the estate and/or notional estate of the deceased under s 59 of the Succession Act 2006 (NSW) (“the Act”). The Act applies in respect of the estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (“the former Act”), which was repealed, effective from 1 March 2009. A family provision order is an order made by the court in relation to the estate, or notional estate, of a deceased person, to provide from that estate for the maintenance, education, or advancement in life, of an eligible person. (There is, in fact, no notional estate.) I shall refer to these proceedings as “the family provision proceedings”.

There were a large number of affidavits read in one, or other, of the proceedings, and nearly every deponent was cross-examined. At the hearing, mercifully, there were not too many objections to the affidavits. In particular, no objection was taken to the oral statements said to have been made by the deceased to one, or other, of the witnesses.

After the first four days of the hearing, the parties were given another chance to resolve their differences. They did not do so. The proceedings provide another example of what is really a family dispute in which “blood, thicker than water, is spilled copiously in uncompromising and uncompromised litigation between [siblings] in a fight over their inheritance”: (Lifely v Lifely [2008] EWCA Civ 904, per Ward LJ, at [1]). The Defendants and the NSW T & G, on behalf of another child (Tomasz Jan Budniak) and a grandchild (Benjamin Budniak) of the deceased, have litigated, and, thereby, have incurred costs, seemingly, disproportionate to the value of the estate. In saying this, I have not forgotten that the terms of a testamentary document frequently produce feelings of disappointment, or worse, on the part of relatives.

Like most probate disputes, the personality, state of mind, desires, and prejudices of the central person, namely the deceased, his relationship with family members he did, or did not, provide for, and the reasons for the change in testamentary dispositions, are all significant matters that the court needs to examine carefully in order to come to a finding about testamentary capacity and knowledge and approval. With the death of the deceased, most of those matters can only be examined by way of second-hand, and often, partisan, evidence: Chiu Man Fu v Chiu Chung Kwan Ying [2012] HKCFI 82 at [51].

The family provision proceedings were lengthened because it appears that each of the children of the deceased did not disclose fully, or accurately, his, and her, financial and material resources, and those of his, or her, spouse in his, or her, affidavits that were read. Various documents were tendered, during the course of the cross-examination, of each child and his, or her, spouse, which amplified the evidence of his, or her, financial resources. I shall return to this topic later in the event that there is any issue about costs.

I have briefly referred to the amended Statement of Claim and the Defence filed by the Defendants named in the Statement of Claim. As stated in a summary way, the Defendants in the Probate proceedings asserted that, in May 2007, when giving instructions for, and in October 2007, when he executed, the 2007 Will, the deceased lacked testamentary capacity. They also alleged that he did not know and approve the contents of the 2007 Will. (They admitted, however, that if it was a valid Will, it was not subsequently altered or revoked.)

The Defence to which I have referred provided the following particulars:

The Defendants relied upon evidence of the deceased’s age, his conduct, his deteriorating health prior to giving instructions for the 2007 Will, his deteriorating health after giving instructions for the 2007 Will, the circumstances under which he gave instructions for the 2007 Will, the circumstances surrounding the execution of the 2007 Will (some 5 months later), the terms of the 2007 Will itself, the deceased’s poor recollection of relevant, and important, facts and events occurring in his lifetime, and what was said to be his long held testamentary intention to divide his estate equally between his five children. (I have taken this broad summary from the closing submissions made on behalf of the Defendants.)

Importantly, the Defendants did not specifically raise in the pleadings, the facts that the 2007 Will was written in English; that no written translation of the 2007 Will into Polish was prepared for the deceased to read prior to execution of the 2007 Will; and that there was no record of any person at the NSW T & G reading the 2007 Will, in the Polish language, to the deceased.

However, when I raised this matter, at the commencement of the hearing, senior counsel for the Defendants said “it’s not pleaded but it’s clearly in the evidence and canvassed by the parties”: T3.50-T4.01. It was suggested by the court that if these matters were to be relied upon, they should be identified to counsel for the NSW T & G: T4.19-T4.26. However, counsel for the Defendants did not seek to file any amended Defence to the amended Statement of Claim pleading the matters to which the court had adverted.

In their Outline of Closing Submissions, served on the last day of the hearing, counsel for the Defendants made reference to the particulars provided in Paragraph 6(a) of the Defence, filed 19 December 2012, that “the deceased had no demonstrated ability to read (visually) the [2007 Will]”; that he “had no demonstrated ability to comprehend the [2007 Will]”; and that “such particulars of testamentary capacity as are relevant to knowledge and approval”.

This submission was made despite Robert, in his oral evidence, having acknowledged the deceased’s long held ability, in late 2006, to read, and understand, written English: T213.33-T213.34 (as amended). I shall return to Robert’s evidence on this topic later in these reasons.

The Defendants contended that there was adequate evidence relating to the relevant grounds of challenge; that, by that evidence, they had sufficiently discharged their evidential burden of proof; and that they had shifted the persuasive burden onto the NSW T & G, as propounder, to prove, affirmatively, the validity of the 2007 Will.

Only Robert filed, relevantly, a Further Amended First Cross-Claim, in which, he sought a declaration that an original document, written and signed by the deceased in the English language (and on the other side, in the Polish language) and dated 25 June 1994 (“the 1994 document”) (Ex. B), is an informal testamentary document within the meaning of s 8 of the Act; an order that administration of the 1994 document be granted to him; and consequential relief. He is the sole nominated executor in the 1994 document.

It is quite clear from the affidavits that were read in the proceedings, that Robert has had, and continues to have, the support of his three siblings (who are Defendants) to the granting of the relief he seeks.

Robert, in the Further Amended First Cross-Claim pleaded that, in the event the court did not find the 1994 document was intended by the deceased to form his Will, and if the 2007 Will was not the last valid Will of the deceased, the deceased died intestate. He sought a grant of administration of the deceased’s estate on intestacy to him alone; an order that the administration bond be dispensed with; other consequential relief; and costs. (This alternative case did not proceed for reasons to which I shall come.)

The NSW T & G filed a Further Amended Defence to the Further Amended first Cross-Claim, in which it admitted that the deceased signed the 1994 document; did not admit that it embodied his testamentary intentions; or that the deceased intended the 1994 document to form his Will. In addition, the NSW T & G implicitly asserted that even if the court were satisfied that the deceased intended the 1994 document to form his Will, it was revoked by the 2007 Will. (Robert accepted that this was one consequence if the 2007 Will was found to be a valid Will: T5.30-T5.34.)

However, at the hearing, counsel for the NSW T & G accepted, in the event that the court was not satisfied of the validity of the 2007 Will, that the relief sought by Robert in respect of the 1994 document should be granted: T5.09-T5.23.

Thus, the only question at issue, in the Probate proceedings, was whether the 2007 Will is a valid Will, that is to say, whether the deceased had testamentary capacity and whether he knew and approved of its contents.

The family provision proceedings were commenced by one Summons filed on 18 May 2012, within the time prescribed by the Act (12 months from the date of the deceased’s death). The Defendant named in the proceedings is the NSW T & G. It was the appropriate and natural Defendant, even though there was no grant of administration made to it.

As stated earlier, it is only in the event that the 2007 Will is found to be the last valid Will of the deceased, will it then be necessary to turn to the claims for a family provision order by each of the Defendants: T5.48-T6.06. In broad summary, the NSW T & G submitted that each of the applicants for provision is an adult; each is able bodied; each is in employment or capable of being employed; and each has assets of reasonable value. The consequence, so it was submitted, was that no order for provision ought to be made for any of the Defendants and that the whole of the Summons should be dismissed with costs.

In the case of Lech’s claim for a family provision order, there was said to be an additional issue relating to his virtually non-existent relationship with the deceased for about 30 years prior to death.

Although the NSW T & G is the Plaintiff in the Probate proceedings and the Defendant in the family provision proceedings, the persons who would be adversely affected if orders were made in favour of Robert in the Probate proceedings, or in favour of Robert, Lech, Eliza or Joanna in the family provision proceedings, are Tomasz and Benjamin (a son of Tomasz and a nephew of all of the Defendants), both of whom are the residuary beneficiaries named in the 2007 Will. Only Tomasz has given evidence read in both proceedings. Benjamin is a minor.

At the commencement of the hearing, Mr S Mitchell, solicitor, announced that he was representing Tomasz, and Nathalie Budniak, Tomasz’s wife and the mother of Benjamin, in the proceedings. He said, however, that he did not seek to appear formally on their behalf although he had filed an Appearance on behalf of Benjamin by his tutor, Nathalie: T1.44-T1.50. Mr Mitchell understood that, in the proceedings, the NSW T & G was representing the interests of Tomasz and Benjamin (which was confirmed by counsel for the NSW T & G).

Tomasz subsequently gave evidence that Mr Mitchell had been retained from a short time after the death of the deceased to advise him in relation to the proceedings. However, Mr Mitchell had not participated in the preparation of the affidavits by Tomasz and Nathalie that were read in each proceedings.

In the circumstances, it was not necessary for Mr Mitchell to remain in court unless he was instructed to do so. He remained for a short time (but then came and went at different times during the early part of the hearing). Meantime, without objection, however, Tomasz was present in court throughout the proceedings, as was Nathalie (other than during the cross-examination of Tomasz).

By letter dated 23 June 2011, the Defendant’s then solicitors wrote to the NSW T & G asserting that the deceased “suffered from dementia for a considerable number of years and most importantly, at the time [the 2007 Will] was executed”. They asserted that the Defendants would require the Will to be proved in solemn form and that “our clients will be seeking to file evidence disputing that the deceased had testamentary capacity at the time the will was made”. The letter also stated that “[i]n the event that will is proved, our clients will be making application for provision pursuant to the provisions of the Succession Act”. Various requests were then made concerning, and questions were asked about, the estate.

The NSW T & G responded in a letter dated 5 July 2011. In relation to the assertion of a lack of testamentary capacity, a question was asked about the availability of medical reports to support the claim. The other questions raised were answered.

On 14 July 2011, the Defendants filed a caveat requiring proof in solemn form of the 2007 Will (Ex. E). There is no specific evidence that a copy of the caveat was served on the NSW T & G within 7 days after filing: Supreme Court Rules 1970 (NSW) (“SCR”), Part 78 rule 68(3).

In accordance with SCR, Part 78 rule 69, the caveat, which took effect when it was filed, lapsed after 6 months, as there was no application to extend the duration of the caveat.

On 21 May 2012, the NSW T & G caused notice of its intention to apply for Probate of the 2007 Will in the Sydney Morning Herald, which is a newspaper circulating in the district where the deceased resided at the date of his death.

On 14 June 2012, the NSW T & G filed a Summons seeking Probate in common form of the 2007 Will.

On 29 June 2012, the Defendants filed a general caveat in the Probate Registry, against the making of any grant in the estate of the deceased without prior notification to them.

On 2 July 2012, the court issued a requisition to the NSW T & G noting that a caveat had been filed in the estate and drawing its attention “to Div. 10 Pt. 78 SCR”. That Division of SCR deals with caveats.

Subsequently, on 9 November 2012, the NSW T & G filed the Statement of Claim.

I am satisfied that all of the persons whose interests may be affected by the court’s decision in relation to each of the documents propounded in the proceedings, are well aware of the proceedings. In the circumstances, I dispense with service of the prescribed notice on Benjamin upon the basis that it is expedient to do so, having regard to all the circumstances, including because his interests are being protected by the NSW T & G, so as to save further expense, and also because his father, who is an equal residuary beneficiary named in the 2007 Will, has obtained independent legal advice.

Although there is no evidence of service of the prescribed form of notice of the family provision proceedings on Benjamin, I am satisfied, in view of the fact that Mr Mitchell attended on occasions during the hearing, that Benjamin, by both of his parents, is well aware of the nature of the proceedings. Accordingly, service of such a notice upon him (or someone on his behalf) is unnecessary in the circumstances of the case.

As each of Tomasz and Benjamin is a beneficiary named in the 2007 Will, and even though Tomasz, who is an eligible person, has not commenced proceedings for a family provision order, should it be necessary, I shall not disregard the interest of each as a beneficiary named in the 2007 Will. (There is no suggestion that Benjamin is an eligible person under the Act.)

Although the NSW T & G seeks Probate in solemn form of a copy, rather than the original, of the 2007 Will, the Defendants, subject to the defences raised, accepted that there actually was an original 2007 Will; that the original 2007 Will revoked all previous Wills; that there was evidence of the terms of the original 2007 Will; that the copy 2007 Will in evidence was an accurate and complete copy of the terms of the original 2007 Will; that there was evidence of due execution by the deceased of the original 2007 Will; and finally, that the presumption that when a Will is not produced it has been destroyed by the testator with the intention of revocation, had been overcome (T3.06-T3.12): Curley v Duff (1985) 2 NSWLR 716, at 718; Cahill v Rhodes [2002] NSWSC 561, at [55]; Scott v Romanoff [2015] VSC 343 at [10].

No doubt, the concessions were made because of the evidence given by Mr G A Salier AM, which I accept, concerning the loss of the original of the 2007 Will. In an affidavit sworn on 12 April 2013, he stated that he had caused his law stationer to uplift the original of the 2007 Will, from the court, on or about 18 February 2013; that he received it into his possession shortly thereafter; that he sent the original 2007 Will, and an affidavit of the attesting witness, Mr N Mohammed, by ordinary pre-paid post, under cover of a letter dated 22 February 2013, to the NSW T & G; that there is no record of receipt by the NSW T & G of his letter, the affidavit, or the original 2007 Will; and that the documents that he sent have never been returned to him as unclaimed.

Mr Mohammed who remains in the employ of the NSW T & G, gave evidence that he made enquiries of the “Mail Room at the Parramatta Office of the NSW Trustee & Guardian” and reported that “There is no record there of receipt of the documents” sent by Mr Salier.

It follows that the loss of the original 2007 Will was not the result of any act of the deceased and it was unaccompanied by any intention of the deceased to revoke it. It was entirely accidental and its loss occurred post death.

The form of order sought by the NSW T & G in the amended Statement of Claim, namely that “subject to due compliance with the rules of the Court, probate of a copy of the Will be granted to the [NSW T & G]”, does not accord with what has been described as “conventional practice” in Probate and in some of the authorities.

I refer to what was written by E M Heenan J in Powell v Dinwoodie [2012] WASC 139, at [40]:

In New South Wales, in Taylor v Waters (Supreme Court, Powell J, 19 June 1992, unrep), Powell J expressed the view that if there was a lost will, or a will that was known to have been destroyed, the English practice was to limit the grant, until the original, or a more authentic copy, be proved. His Honour thought that this practice might conveniently be adopted in New South Wales.

This form of order has also been adopted in some other States: In the estate of Musolino (deceased) [2008] SASC 334, at [30]; In the Will of Brian Lindsay O’Connor [2011] QSC 360; and Lemon v Lemon [2014] QSC 123; Powell v Dinwoodie, at [41].

However, Young CJ in Eq (as his Honour then was) in Koerstz v Norman [2008] NSWSC 133, at [8], expressed the view that “where the facts are proved… that the original will was destroyed by a person other than the testator after death, it will never be able to be proved. There is no barrier to proving a will by a copy with evidence that the original has been lost and in such a situation, I cannot see why the court should not just grant probate or letters of administration with the will annexed as the case may be”.

His Honour went on at [11]-[12] and [18]-[19]:

In this case, the evidence reveals that the original 2007 Will has been lost, rather than destroyed. Despite the passage of time since it was lost, bearing in mind the evidence that has been relied upon, there is a possibility that the original 2007 may be located by, or may be returned to, the NSW T & G. Should it be necessary, to limit the grant “until the original will be proved” would imply that the original 2007 Will might still be proved, which is not contrary to the evidence given by Mr Salier.

I discussed the form of orders that might be made in the event that the court is satisfied that the 2007 Will is the last valid Will of the deceased with counsel for the parties during the course of the hearing and they agreed that the conventional form of order would be appropriate in this case: T66.24-T67.20. Accordingly, if the court is satisfied of the validity of the 2007 Will, probate in solemn form of the copy Will, limited until the original is proved, should be granted to the NSW T & G, and an order should be made that the Further Amended first Cross-Claim be dismissed.

In an affidavit of Ms L Russell sworn 5 June 2012, the deponent confirmed that if granted Probate, the NSW T & G would administer the estate according to law. She also deposed to the reason for delay in making the application for a grant being “due to a caveat lodged”.

With the leave of the court, and without objection, Robert gave oral evidence that in the event that an order were made that the deceased intended the 1994 document to form his Will and was satisfied that it was the last valid Will of the deceased, he was willing to take on the office of executor; that he was prepared to administer the deceased’s estate in accordance with the requirements of that document, and, if necessary, to continue all orders of the Court and answer any requisitions relevant to that estate: T202.04-T202.12 (as amended). He was not cross-examined on any of these matters.

The following facts are uncontroversial, or I am otherwise satisfied that they have been established by the uncontroverted evidence relied upon in the proceedings.

The deceased was born in Wegrzynowo, Poland in February 1922, and he died on 21 May 2011, leaving property in New South Wales.

The deceased’s Death Certificate, registered under the Births Deaths and Marriages Registration Act 1995 (NSW), reveals the cause(s) of death, as “(I)(a) Aspiration pneumonia, days; (b) Dementia, years; and (II) Right pneumonectomy”. The “Informant” identified on the Death Certificate is Tomasz.

During World War II, the deceased had fought in Poland as a member of the Polish Home Army. He had fought in the Warsaw Uprising. He was captured by the Germans and marched to Germany, where he spent time as a prisoner of war. He was liberated by the Americans, and, in about 1950, the deceased migrated to Sydney, Australia.

The deceased married Genowefa Czekalowska, in 1955. She was born in Poland in March 1929. She had migrated to Perth, Australia, also, in 1950. Subsequently, they moved to Sydney, in 1956, where they lived for the remainder of their lives.

The deceased, initially, worked at BHP in Port Kembla as a fettler. He then returned to Sydney and obtained employment in the electronics industry. From 1960 until about 1983, he worked as an electronics technician for the University of New South Wales.

The deceased and Genowefa separated in about 1982, and in about 1992, their marriage was formally dissolved. Following the dissolution of the marriage, the deceased did not remarry, or enter into a de facto relationship.

There were five children of the marriage, being Robert, who was born in October 1957, Lech, who was born in February 1959, Eliza, who was born in June 1962, Tomasz, who was born in November 1965, and Joanna who was born in September 1972.

After their separation, there had been proceedings in the Family Court of Australia, at Sydney, between the deceased and Genowefa. She sought various orders relating to the properties that she, and they, owned, as well as orders for custody of Tomasz and Joanna and for maintenance for each of them. Robert swore an affidavit in support of Genowefa’s application

In 1983, Robert married Fiona Edgar and he moved out of the Ashfield property. Robert and Fiona have two daughters, being Jacqueline, born in May 1987 and Elise, born in August 1990.

In 1987, Eliza married James Ilett and she moved out of the house in which Genowefa lived. They have one son, Sebastian, born in January 2002.

In 1995, Lech married Sharron Mackay. They have three children, namely Daniel, born in December 1997, Brendan, born in December 1999, and Samantha, born in January 2002.

In 1998, Joanna married Andrew Borysewicz. They have four children, being Zara, born in September 2003, Kayla, born in January 2006, Markus, born in December 2008, and Ashton, born in November 2010.

In 1999, Tomasz married Nathalie. They have three children, namely Benjamin, who was born in July 2002, Amelia, who was born in July 2004, and Maximilian, who was born in July 2006.

In 1956, the deceased and Genowefa purchased as joint tenants, a property situated at Palace Street Ashfield (“the Ashfield property”), which became the family home until about 1983. Thereafter, the deceased, until his death in 2011, continued to reside in the Ashfield property.

In 1970, the deceased and Genowefa purchased a property situated at Service Avenue, Ashfield (“the investment property”).

In about late July, or early August, 1994, the deceased returned to Poland for the fiftieth anniversary of the Warsaw Uprising. (The anniversary of the uprising is celebrated from 1 August each year.) He returned some weeks later.

It appears from Ex. D, that the deceased lodged his income tax return for the financial year ending 30 June 2005. A Notice of Assessment, dated 7 October 1995, issued by the Australian Taxation Office, revealed that the amount of tax payable by the deceased (by 21 March 2006) was $12,504.30. Attached to the Notice of Assessment was a Notice, dated 9 October 2005, headed “Your introduction to PAYG income tax instalments”, which document stated that “as your return includes… investment income, you have entered the pay as you go (PAYG) instalments system. As a result, you will need to pay PAYG instalments towards your expected tax liability on your business/investment income”.

There was also included in Ex. D, a letter, dated 21 April 2006, from the ATO to the deceased, referring to a telephone call “regarding your income tax account”. Attached to the letter was “an account history” (of several pages), which included “transactions processed up to 21 April 2006”. The letter also reminded the deceased “that an amount of $12,504.30 remains outstanding”.

An “Overdue Payment Reminder”, dated 6 June 2006, from the Australian Taxation Office, sent to the deceased, reminded him that $2,877 was due.

Dr Lye (to whose evidence I shall return) interviewed the deceased in relation to his concerns regarding the ATO in May 2007. A copy of her notes of the interview (Ex. S) includes the deceased having said to her that he “has no idea what he owes. Wants yearly not quarterly bills…. Requested tax statements from ATO re: what he owes & they owe him.” (I shall return to Ex. S later in these reasons.)

There are three testamentary documents that have been produced to the court being, first, the photostat copy of the original 2007 Will (Ex. A); second, the original of both sides of the 1994 document (Ex. 1); and the third being the original of both sides of a handwritten document dated 2 June 1988 (“the 1988 document”) (Ex. 2). I shall deal with these documents in reverse date order.

The 2007 Will, relevantly, is in the following terms:

The 2007 Will was professionally drawn by Matthew Kennedy, a Branch Manager of the NSW T & G, who met with the deceased, and others, on 8 May 2007. Mr Kennedy took instructions from him, at that time, for the 2007 Will and subsequently drafted the 2007 Will. Mr Kennedy was not present when the deceased executed the 2007 Will on 3 October 2007. I shall return to a more detailed account of Mr Kennedy’s evidence later in these reasons.

The 2007 Will bears a conventional attestation clause and signatures indicating that the 2007 Will had been signed by the deceased in the presence of “T Di Donato” and “N Mohammed”. There is no dispute that the deceased signed the 2007 Will or that it was otherwise duly executed in accordance with the Act.

There is no evidence that, at any stage after the 2007 Will had been executed, the deceased expressed a desire and wish to change this Will.

The 1994 document, which is in the handwriting of the deceased, is written in the English language and in the Polish language. Each version appears in one document with the words in English on one side and the words in Polish on the other.

The English version, which is set out as it appears, is as follows:

There is no attestation Clause in the 1994 document. Whilst the deceased’s signature appears on each side, there is no evidence that his signature was made, or acknowledged, by him in the presence of two or more witnesses present at the same time, and that any witnesses attested and signed the 1994 document in the presence of the deceased (or in the presence of each other). Indeed, which side the deceased wrote, and signed, first, and the circumstances in which the 1994 document was written, are not known.

A friend of the deceased gave Robert the original of the 1994 document in 1994 (whilst the deceased was in Poland at the anniversary celebrations of the Warsaw Uprising). Upon his return, the deceased “took it back in 1994”: T201.40-T201.46 (as amended). (Robert had offered to retain the 1994 document but the deceased told him to return it and that he would retain it with his papers.)

After the deceased’s death, Tomasz found the 1994 document in a dresser drawer next to the deceased’s bed in the deceased’s bedroom in the Ashfield property: T344.16-T344.28.

(There are holes punched on the side of the original 1994 document, which it is accepted, were not there when it was found by Tomasz. The parties accept that Tomasz had caused these holes to be punched in the 1994 document, inadvertently, whilst the document was in his custody: T14.40-T14.45. Nothing turns on this.)

For reasons that are not entirely clear, since the words in the 1994 document were written by the deceased in English, the Defendants, without objection, tendered (Ex. 4) an agreed English translation of the Polish words in the 1994 document. That translation is as follows:

Although neither party sought to propound it, the 1988 document is in the handwriting of the deceased and was signed by him, in the English language and in the Polish language. Each version appears in one document with the words in English on one side and the words in Polish on the other.

There is no attestation Clause in the 1988 document. Whilst the deceased’s signature appears on both sides of the document, there is no evidence that his signature was made, or acknowledged, by him in the presence of two or more witnesses present at the same time, and that any witnesses attested and signed the 1988 document in the presence of the deceased (or in the presence of each other). Indeed, which side the deceased wrote, and signed, first, and the circumstances in which the 1988 document was written, are not known.

The English version, which is set out as it appears, is as follows:

Neither party relied upon the 1988 document, presumably because the original has the word “cancelled” written across part of it. There is no dispute that the word is in the handwriting of the deceased and that underneath the word is the deceased’s signature.

There is no evidence of the circumstances in which the 1988 document was written. There is also no evidence of when the deceased wrote the word “cancelled” on the 1988 document, or when he placed his signature underneath that word.

It was accepted by the parties that the deceased intended to revoke the entire 1988 document by writing the word “cancelled” on it: s 11(1)(d) of the Act. Neither party sought a declaration, under s 8 of the Act, that the 1988 document was revoked, the Court being satisfied that the deceased intended it to be a full revocation of the 1988 document. (In any event, there was no need for Robert to propound the 1988 document in light of the concession made by the NSW T & G regarding the 1994 document.)

It was not suggested, however, that the 1988 document is without relevance.

In an affidavit sworn on 18 September 2014, by Ms L Russell, a Branch Manager of the NSW T & G, at its Burwood Branch, the deceased’s estate, at the date of death, was disclosed as having an estimated value of $3,308,379. The estate was said to consist of the Ashfield property ($730,000), money in bank accounts ($761,036), shares in public companies ($1,221,801), additional shares ($493,454) and other property ($102,087). (I have omitted, and shall continue to omit, any reference to the cents, which accounts for any small differences in addition.)

The liabilities of the deceased, at the date of death, in total, were disclosed at $124,646, although a “possible tax liability” of $100,000 was also disclosed. Of those liabilities, the funeral account ($4,783) was paid out of funds held in the estate. Testamentary expenses, incurred by the estate, after death, totalled $11,517, which expenses have also been paid out of funds held in the estate. The balance in the estate account (being dividends received after death), then held, was $49,399.

Ms Russell estimated the total commission for administration of the deceased’s estate to be $46,461.

Despite a direction having been made on 4 November 2014 that any updating affidavits required by Paragraph 17 of Practice Note SC Eq 7 should be served with the original to be delivered to my Chambers by 25 March 2015, the NSW T & G did not serve an affidavit updating the nature and value of the deceased’s estate until the morning of the hearing.

Subsequently, on the fifth day of the hearing, the parties provided a mostly agreed Schedule (Ex. P), which set out the assets and liabilities of the estate, together with estimates of the value of the assets and the estimated liabilities at the date of hearing. The deceased’s estate was said to consist of the Ashfield property ($1,250,000), cash in bank or on investments ($1,040,986) plus uncollected interest ($16,300), shares and unit trusts ($1,609,661), monies held by the NSW T & G in an estate account (including dividends that have been received) ($155,965), and an estimated value of uncollected dividends ($132,000).

The liabilities of the estate included an amount for income tax and CGT on sale of estate assets ($607,000 as estimated by the NSW T & G, or $350,000 as estimated by Robert), the capital commission payable to the NSW T & G ($52,844), other estate liabilities ($48,684), costs and expenses of sale of the Ashfield property ($32,500), costs and expenses of sale of shares ($32,193 as estimated by NSW T & G and $3,000 as estimated by Robert), making a total of $773,222 (as estimated by the NSW T & G) or $487,029 (as estimated by Robert).

Thus, the parties agreed (in Ex. P) that, at the date of the hearing, the estimated value of the deceased’s estate, after deducting the estimated liabilities (but not the costs of these proceedings) was between $3,431,711 and $3,717,904. (I note that there is an error in the addition of the interest in Ex. P, which results in the estimated value being reduced by $20. However, nothing turns on that miscalculation.)

In calculating the value of the deceased’s estate, finally available for distribution, the costs of the two proceedings should also be considered.

The legal representative of each of the parties sought to make no differentiation between the two proceedings in the calculation of the costs and disbursements. However, I note that all of the evidence has been considered in both proceedings and the parties seem to have approached the matter upon the basis that there is evidence in the affidavits filed in each matter relevant to both matters.

The NSW T & G’s solicitor, Mr G Salier, estimated the costs and disbursements, including both junior counsels’ fees, calculated on the indemnity basis, to be $220,000 (inclusive of GST and upon the basis of a seven day hearing).

The Defendants’ solicitor, Mr A K Gokani, estimated the costs and disbursements of the proceedings, including senior and junior counsel’s fees, calculated on the indemnity basis, calculated until the completion of the hearing, to be about $650,000 (inclusive of GST and upon the basis of a seven day hearing of both matters) and to be $576,000, calculated on the ordinary basis (inclusive of GST and upon the basis of a seven day hearing of both matters). Despite the quantum of the Defendants’ costs and disbursements, there was said to be no uplift factor included in the costs that had been estimated. (It may become necessary for the Defendants’ solicitor to explain why the costs and disbursements are so high.)

Of the total amount estimated as the Defendants’ costs, $481,000 had been paid by the four Defendants (in equal shares) to their solicitor prior to the hearing. The parties agreed that, depending upon the costs order made in one, or both, matters, some, or all, of the amount paid by each (about $120,000) may be reimbursed to him or her.

If the estimates of costs prove accurate, and if an order is made that all of the costs, calculated on the indemnity basis are to be paid out of the estate of the deceased, the estimated value of the estate available for distribution will be between about $2.56 million and about $2.84 million.

Of course, depending upon the result of each of the proceedings, and any order made as to costs, the costs and disbursements, if payable out of the estate, will be able to be formally assessed, unless otherwise agreed by the parties. It follows that the amounts referred to are estimates only.

It can be seen, that the costs of the proceedings, may significantly impact upon the value of the estate available for distribution and also upon the financial and material resources of any party, or parties, who may be ordered to bear the burden of costs.

The possibility exists that not all of the costs incurred by one party, or the other, or both, will be ordered to be paid out of the estate. The parties wish to argue how the burden of costs is to be borne, and by whom, following the determination of both proceedings. The parties submitted that the court should allow further submissions, if necessary. I shall abide this request in view of the quantum of costs.

Hopefully, it will not be necessary to incur further costs on the determination of the costs issue. However, that will be a matter for the parties, and perhaps, Tomasz and Nathalie (on behalf of Benjamin).

The only persons who are eligible persons, within the meaning of the Act, are the five children of the deceased. Only Tomasz has not commenced proceedings under the Act for a family provision order. However, he is clearly aware of the proceedings as he is a witness who has sworn at least one affidavit in the proceedings.

There was no suggestion that any of the grandchildren of the deceased, including Benjamin, is an eligible person within the meaning of s 57(1)(e) of the Act.

I turn now to the evidence given by the witnesses whose evidence was read by the NSW T & G. (I have omitted a reference to the evidence of Ms Russell and Ms S McMillan, each of whom gave evidence by affidavit, and each of whom was cross-examined, as to the nature and value of the deceased’s estate. I have earlier referred to the relevant evidence of each as part of the uncontroverted matters.)

It is necessary to consider, in some detail, the evidence about the making of the 2007 Will, and the circumstances in which it was signed.

Mr Kennedy, in an affidavit sworn 28 March 2013, stated:

The Will Information Form, a copy of which is annexed to Mr Kennedy’s affidavit, is a printed pro-forma document, available in July 2006, consisting of 5 pages, which includes the following bolded headings. (I shall also include the main matters of information to be completed under the bolded headings):

The Will Information Form contained a default provision for the Public Trustee to be appointed as either executor and trustee or substitute executor and trustee. Mr Kennedy ticked the box for the Public Trustee to be appointed as executor and trustee. Then there is a statement cancelling “earlier Wills, Codicils and other Testamentary dispositions”.

Then the following appears in handwriting.

Under the heading “Will Instruction” and what follows as set out above, is a space to enable the testator to “confirm the instructions set out on the previous pages do express my testamentary intentions as at this date and I WISH THIS DOCUMENT TO CONSTITUTE MY WILL until some further document, if any, replaces it”. However, the deceased’s signature does not appear in the space provided.

Mr Kennedy included the letters “TBA” under the heading “Address” of each of the beneficiaries. (The address of each of the beneficiaries does not, in fact, appear in the 2007 Will. It is possible to infer, therefore, that no further instructions, in respect thereof, were provided to him by the deceased.)

Under the heading “Testamentary Capacity”, Mr Kennedy had written “Yes” in answer to the questions whether the client understands the nature of the Will, knows the assets/value of the Estate, and understands FPA (if applicable).

Under the heading “General Comments… person/s present at interview”, Mr Kennedy did not note that a nurse, or an interpreter, were also present at the interview.

On the front of the Will Information Form there was a note in Mr Kennedy’s handwriting:

The Will Information Form, completed by Mr Kennedy, was dated 8 May 2007, the time of the meeting with the deceased was identified as 10:00 a.m., and it was signed. The preparation Branch was stated to be Burwood.

Mr Kennedy swore another affidavit on 20 November 2013, in which he amplified the evidence given in his earlier affidavit:

Mr Kennedy was cross-examined. I summarise his evidence given in cross-examination:

I next set out some questions from the Bench and Mr Kennedy’s answers:

I am satisfied that Mr Kennedy did his best to recollect the events that occurred on 8 May 2007. It is hardly surprising that 8 years later, he could not remember, precisely, the detail of the whole of his conversation with the deceased. I have no reason to doubt that, at his meeting with the deceased, he followed what was his standard practice, in 2007, in taking instructions for a Will. It is clear that whatever the instructions given by the deceased were, they were given directly by him to Mr Kennedy, there being nobody there to prompt the deceased.

In some respects, as will be read, some of his evidence was corroborated by Mrs L J McDonnell, who is the registered nurse who attended the deceased’s home on 8 May 2007 with Mr Kennedy and the interpreter.

There was no evidence from the interpreter who attended at the deceased’s home on 8 May 2007. No comment was made by senior counsel for Robert in this regard.

There was no specific evidence of when Mr Kennedy prepared the 2007 Will.

Nothing appears to have been done to progress the making of the 2007 Will between early May 2007 and early October 2007 although it appears to have been located in the NSW T & G’s Will file.

I shall return to other evidence going to the events in May 2007 when the deceased is said to have given instructions for that Will.

Mr Mohammed, in an affidavit sworn 17 October 2013, wrote:

(Mr Mohammed had sworn an earlier affidavit that was read. However, that affidavit was in the same short form of attesting witness affidavit by Ms Di Donato, to which I shall refer.)

Mr Mohammed was cross-examined. I summarise his evidence given in cross-examination:

In answer to questions from the Bench, Mr Mohammed confirmed that part of his standard practice in 2007 was to provide a client with a copy of the Will that had been executed. He confirmed that he had followed that standard practice with the deceased.

Following these questions, counsel for the NSW T & G asked Mr Mohammed about certain documents, which were subsequently tendered as Ex. F. Included as part of this tender, was a copy of the 2007 Will, which Mr Mohammed identified as a copy of the will but could not say that it was the copy that he had given to the deceased.

Because the other documents which became part of Ex. F should have been identified as evidence in chief, and because they had not previously been shown to counsel for the Defendants, I permitted further cross-examination. Mr Mohammed identified the other documents as “a standard pack”, but was unable to confirm that he had provided those other documents to the deceased at the time of the execution of the 2007 Will. (I do not think anything turns on this as the evidence is that all of the documents that comprise Ex. F were found in the Ashfield property following the death of the deceased.)

I am satisfied that Mr Mohammed did his best to recollect the events that occurred on 3 October 2007. It is hardly surprising that the detail of his conversation with the deceased was not remembered precisely over 7 years after the conversations took place. I have no reason to doubt that at the time the 2007 Will was executed, he followed what was his standard practice in 2007, in having a Will executed.

Ms Di Donato, the other attesting witness, gave the following evidence in an affidavit sworn on 16 May 2012:

It is clear from the evidence that there was no prior arrangement for either Mr Mohammed or Ms di Donato to be the attesting witnesses.

The Defendants did not require Ms Di Donato to attend for cross-examination. There is no reason to disbelieve her evidence as to the circumstances of the execution by the deceased of the 2007 Will.

There was no other evidence going to the circumstances surrounding the execution, by the deceased, of the 2007 Will.

Mr Mohammed saw the deceased, subsequently, at the office of the NSW T & G, when the deceased came in with a question about his taxation affairs. On this occasion, Mr Mohammed provided him with a list of tax agents who might be contacted by telephone, which list Mr Mohammed retrieved from the Yellow Pages. There was no evidence on this occasion that anything was said about the 2007 Will.

Ms Ulrike Scarlett, a Senior Trust officer in the employ of the NSW T & G, in an affidavit sworn 25 September 2013 (as amended in one respect, being the date in paragraph 6) wrote:

The file note, a copy of which was annexed to Ms Scarlett’s affidavit, is in the following terms:

It was not suggested that the file note was not contemporaneous or that it did not fully, or accurately, record the events of August 2009.

I summarise Ms Scarlett’s evidence given in cross-examination:

It is noteworthy that over two years after the instructions for the 2007 Will were given by the deceased to Mr Kennedy, and 22 months after the 2007 Will was executed, the deceased, unaided, and apparently uninfluenced by any person, was able to return to the office of the NSW T & G, and inform Ms Scarlett of its contents so far as the distribution of his estate on his death. Whether he was able to do so because he remembered the contents of the 2007 Will, or whether he had recently read the copy in his possession, as suggested by senior counsel in closing submissions, is beside the point. In either case, he appears to have orally ratified the 2007 Will. I accept, however, that such an oral ratification would not turn the 2007 Will, if invalid for the deceased’s lack of capacity, into a valid Will.

Ms M K Stirton, another employee of the NSW T & G, swore an affidavit on 26 September 2013 in which she deposed to a conversation with Tomasz and Eliza on 1 June 2011. Her file note, which was dated 24 June 2011, was in the following terms:

Ms Stirton was cross-examined and although it is clear that she made a mistake about one matter (which is not of any significance), it is not suggested that the court should not accept her evidence.

I should note that Tomasz states that he did not have any conversation with the deceased about the making of the 2007 Will. I shall return to other evidence given by Tomasz about conversations with the deceased about matters that may have been relevant to the contents of the 2007 Will.

Nathalie also gave evidence that she was telephoned by Nurse McDonnell, who told her of the meeting arranged at the deceased’s home with the Public Trustee, but was not told of the reasons why the meeting had been arranged. In any event, neither Tomasz nor Nathalie attended.

Genowefa died in December 1998. She left a Will, Probate in common form of which this court granted to Robert and Eliza in April 1999. By that Will, Genowefa left the whole of her estate to be divided equally between her five children.

The major asset in Genowefa’s estate was the real property situated immediately next door to the Ashfield property, which was purchased, in Genowefa’s sole name (“the Wife’s property”), in about 1972.

In November 1980, the deceased registered a caveat on the title of the Wife’s property. In that caveat (a copy of which is Ex. 18), which appears to have been prepared by solicitors, he claimed an estate or interest:

The deceased told Robert that the Wife’s property had been put into Genowefa’s name “for taxation purposes”. This was confirmed by Robert (who denied the fact that it had been although did not deny he had been told by the deceased that it had been).

Eliza, in an email dated 14 April 2003, addressed to her siblings also confirmed the assertion. (Robert asserted in cross-examination that Eliza was incorrect in her understanding of the reasons why the Wife’s property had been registered in Genowefa’s name.)

In 1990, with the consent of Genowefa, Tomasz lodged an application with the Ashfield Council to create a right of carriageway over the Wife’s property. The Council gave approval by Consent dated 7 September 1990. (The deceased, being a caveator, stated in writing to the Land Titles Office, that whilst he did not wish to withdraw his caveat, he gave consent to a Transfer granting an Easement.)

Shortly before her death, Genowefa applied to have the joint tenancy held with the deceased of the Wife’s property severed, but severance did not occur prior to her death. (The documents were not in evidence.)

In late September 2006, Robert and Eliza, as executors of Genowefa’s Will to whom Probate had been granted, lodged a Transmission Application to be registered as the proprietors of the deceased registered proprietor (Genowefa). (The Transmission Application was signed by each of Robert and Eliza and their signatures were witnessed by James Ilett.)

On about 4 September 2006, Robert, alone, lodged an Application for the Preparation of Lapsing Notice. On a date not disclosed on the document, the Department of Lands issued a Notice to Caveator of Proposed Lapsing of Caveat addressed to the deceased at the firm of solicitors (identified in the Caveat that had been lodged).

On about 3 October 2006, Robert served the Notice to Caveator of Proposed Lapsing of Caveat on the deceased in respect of his caveat on the title to the Wife’s property. (There was a dispute about the documents that were served, but I am satisfied, having read all of the evidence on this topic, that Robert only served that document on the deceased. If, when, and how, the deceased obtained other documents that Tomasz says he found, at a later time, in the Ashfield property, is not clear.)

The deceased did not take any steps to extend the operation of the caveat or seek to establish an interest in the Wife’s property. No court order extending the operation of the caveat having been received by 24 October 2006, the caveat lapsed and the Wife’s property was then registered in the names of Robert and Eliza as the executors of Genowefa’s Will.

The events surrounding the issue of the lapsing notice and the lapsing of the caveat have proved to be quite significant in this case. I shall return to the events that occurred following the death of Genowefa, between the deceased and his children, particularly Robert and Eliza.

Subsequently, in June 2007, the Wife’s property was sold to Tomasz for $580,000. All of the siblings agreed to its sale to him. From Tomasz’s share of what were the net proceeds of sale, an agreed amount was deducted, being calculated as the rent, or occupation fee, which all of the siblings had agreed ought to be paid by him for his occupation of the Wife’s property for a number of years and which he did not pay. From the proceeds of sale, Eliza, Joanna and Lech each received about $120,000; Robert received about $125,000 (to take into account outgoings he had paid on the Wife’s property); and Tomasz received about $58,000 (after deduction of the rent or occupation fee that he had agreed to pay).

Because it was said to play a pivotal role in the deceased’s decision to make the 2007 Will, it is necessary to state my conclusions about the events that occurred following the death of Genowefa. Some of the evidence on the topic is conflicting. I have considered the evidence of the various children, particularly of Robert, who appears to have been the central figure in dealing with the deceased in relation to the Wife’s property and the events, as I find them to be, on this topic are set out hereunder.

In January 1999, Robert sought advice from Philip Saul, solicitor, about the Wife’s property. The nature of the advice that he sought, and the advice he was given, was not disclosed in the evidence.

In February 1999, Robert had a conversation with the deceased in the following terms:

Subsequently, there was a meeting of the siblings “to sort out what to do with Mum’s estate”. There was a reference made, at this meeting, to the deceased being “really unhappy” about events involving the Wife’s property. The siblings agreed that it was best “to just leave him alone. There is no point unduly pursuing legal action against him – he will just get upset.” They all agreed that the issue should not be pressed.

Robert said that the basis of this agreement was the deceased’s statement to Robert, communicated to his siblings, that “I will leave everything to the five of you when I die”.

The siblings also agreed that Tomasz and Joanna could continue living in the Wife’s property upon the basis that they paid the outgoings but no rent. They paid the outgoings together during the period February 1999 to June 1999 (when Joanna and Andrew moved out of the Wife’s property) and then Tomasz paid most of the outgoings after June 1999.

In August 2001, Joanna sent an email in the following terms to each of her siblings:

In January or February 2003, the siblings agreed that Tomasz should pay rent of $320 per week commencing in March 2003. (There is a dispute about whether he paid any part of the rent but, as stated earlier, the issue of outstanding rent was resolved when the Wife’s property was sold and an agreed amount for outstanding rent was deducted from Tomasz’s share of the proceeds of sale.)

Robert had a conversation with the deceased, at which Joanna was present, in October 2005 in the following terms:

Although it was not disclosed by Robert, or any of the other Defendants, in his, or her, affidavits, Robert sent an email to each of his siblings in November 2005, in the following terms, which email provides a slightly different version of the events:

(A number of the Defendants, when asked about the omission of any reference to the email from his, or her, affidavit, each said that he, or she, did not remember it. That an important conversation with the deceased reported to each of them in the email, about the devolution of his estate, a matter which had been adverted to in other parts of each of their affidavits, was simply forgotten by each of them is difficult to accept.)

Following the sending of the email, there were a number of discussions between the siblings, and between Robert and the deceased.

I should note that in one conversation, said to have taken place in June 2006, the deceased told Robert that he had “spoken to lots of accountants and lawyers and they are no good. They keep telling me how I owe money to the Tax Office but no one seems to be able to explain anything to me.”

Robert’s conversation with the deceased in June 2006 is said to have included:

In August 2006, Robert had another conversation with the deceased in the following terms:

Robert served the lapsing notice personally upon the deceased in October 2006. He states that he had the following conversation with the deceased at the time:

In cross-examination, Robert gave evidence that he had decided to take the risk that he would receive nothing out of the deceased’s estate based upon what the deceased had said to him in November 2005 and that he had reminded his siblings of the threat made by the deceased in his email to each of them. However, he drew the distinction that what he and his siblings had done, in relation to having the caveat lapse, was not being done without the knowledge of the deceased and that, therefore, the threat made by the deceased regarding the devolution of his estate did not apply.

In answers to questions from the Bench, Robert gave the following evidence at T217.19-T217.29 (as amended):

In cross-examination, Robert was asked about the reasons which had prompted the change of plans in dealing with the deceased in relation to the Wife’s property. He said that the outgoings on the property were not being paid (other than by him) and that he did not wish to keep doing so.

Joanna gave no evidence, in any affidavit, about the issue of the lapsing notice although she knew that there would be a lapsing notice served on the deceased. She also knew of the email sent by Robert in November 2005 and what the deceased had said to him about changing the title, although she said that she did not specifically remember it in October 2006. In cross-examination, she, too, sought to draw the distinction between changing the title without the deceased’s knowledge and giving him notice, by the service of the lapsing notice, which could result in the change of title. She also said that she did not take the deceased’s threat seriously suggesting that it might have been said in anger.

Tomasz, in his affidavit, stated that he was not aware of Robert’s intention to serve the lapsing notice.

It is next necessary to address the evidence about the deceased’s state of health and state of mind at or about the time of giving instructions for, and then executing, the 2007 Will. There was both documentary, and oral, evidence relied upon by the parties.

Unlike some other probate cases in which experts called provide an opinion on the deceased’s capacity based on a retrospective evaluation and review of the evidence, all of the medical evidence was from doctors, and others, who had contact with the deceased and there are contemporaneous records of interviews, examinations and findings. Each had the considerable advantage of having personally carried out these interviews, examinations and clinical assessments of the deceased.

The medical evidence is important because it is generally recognised that the evidence of treating practitioners is of more assistance to the Court than that of medical experts who lack the opportunity to observe and assess the deceased first-hand: Nicholson v Knaggs [2009] VSC 64, per Vickery J, at [39].

It is clear, however, that none of the professionals, was required to undertake any contemporaneous assessment of the deceased to satisfy herself, or himself, of the deceased’s testamentary capacity. This is not of great significance since “[t]he Court must judge the issue from the facts disclosed by the entire body of evidence, including the observations of lay and professional witnesses who knew and saw the [testator] at the time of [his] making the relevant wills and codicils. The manner in which [he] gave [his] instructions, the content of those instructions, the setting in which the instructions were given and the outcome of enquiries made by the solicitor acting in the matter, all assume importance”: Nicholson v Knaggs, at [41].

Yet, each gave some evidence on whether the deceased had a medical condition (physical or mental) which was likely to lead to a loss, or impairment, of his mental faculties, and if so, the extent to which that loss, or impairment, was likely to have affected his ability to exercise the powers of recollection and judgment.

There was no contest that each of these witnesses was qualified to offer the opinions she, and he, did, upon the basis of facts observed, or assumed, which facts 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. Each was also independent.

Before turning to the oral evidence, I shall outline some of the documentary evidence. I have taken what follows from Ex. B, to which I was referred by all counsel. The reports and records referred to were made long before the commencement of the hearing.

The deceased was admitted to Concord Repatriation General Hospital on 5 August 2006 and discharged on 12 August 2006. The reason for admission was “left hip pain” and the principal diagnosis was “trochanteric bursitis Asymptomatic left rib fractures”. The Discharge Summary also reveals that the deceased declined “rail installation and other OT equipment due to cost”.

It was as a result of this admission that the deceased was referred to Dr F Orr and also to the Aged Care Assessment Team (“ACAT”) for assessment, post discharge, which led to him to be seen, initially, by Ms S Anderson and, thereafter, by Nurse McDonnell. I shall refer to the evidence by Nurse McDonnell and by Dr Orr in detail shortly.

On what is described as a “GGRM (General, Geriatric & Rehabilitation Medicine) Community Registration/Referral Form”, prepared in September 2006, Tomasz is referred to under the heading “Next of Kin Details” as a son. His address and telephone numbers are included. Also noted, in relation to the deceased, is the following:

A mini–mental state examination (“MMSE”) was performed on the deceased on 18 September 2006 and he recorded a score of 24 out of 29.

In another document dated 18 September 2006, which is described as “GGRM Community Care Assessment Form”, the names of the deceased’s five children are noted, with some other family background information. There is other information, including information about the deceased’s financial circumstances. Amongst other things is a notation “aware memory poor – forgets family names”.

On 20 June 2007, Nurse McDonnell took the deceased to a further appointment with Dr Orr. Dr Orr’s notes state that Nurse McDonnell reported on the joint visit to the deceased’s home “by the interpreter & Public Trustee”. The notes then state: “gave ideas re will but not completed, Won’t sign Power of Attorney, doesn’t trust people”. Dr Orr later wrote “forgetful - can’t remember what ate this morning”. Her assessment is recorded as follows, “Cognitive impairment +/- depression”; “? executive function”.

Nurse McDonnell sent a letter dated 22 November 2007 to the deceased in which letter she referred to an application for low level residential respite care and a community care package being approved.

On 31 January 2008, the deceased attended the Emergency Department of Concord Hospital. On the Triage Report, the description of “Presenting History” was “Disorientated… When speaking with pt unable to tell me why he was here. Pt unsure of why he is out but knew which Hospital and what day it is. Not able to establish much other HX (history)”.

This document also reveals that Tomasz was contacted and he informed that the deceased “suffers from depression but is not normally confused”. Subsequently, Tomasz collected the deceased from the Hospital.

The deceased was again admitted to Concord General Repatriation Hospital on 8 April 2008 and was discharged on 28 April 2008. On this occasion, the diagnoses were “Dementia and UTI (urinary tract infection)”. It was also noted that his “Daughter-in-law has also been in contact with social work [sic] with regards to application for Guardianship and Financial Management”.

Nurse McDonnell made an application dated 18 June 2008 to the Guardianship Board. In the application, she nominated Tomasz to be appointed as the deceased’s financial manager.

In support of an application to the Guardianship Tribunal, a report was obtained from Gabriella Unsen, the Staff Specialist in Psychiatry of Old Age at Concord Repatriation General Hospital. (The court was informed, from the bar Table, by counsel, that each of the parties had attempted to speak with Dr Unsen, but that “she has told both parties that she cannot add anything further than what her report states”: T125.46-125.49.)

The report, which is dated 29 May 2008, reveals that Dr Unsen first saw the deceased at his home in May 2007 and then again in May 2008. She was able to converse with the deceased in the Polish language “when [she] was not sure if he understood an English language phrase”. The report states:

In a Report prepared for the Tribunal by the “Co-ordination and Investigation Unit”, written by Case Officer Jill Forrester, the following appears:

None of the Defendants were identified as “Other people involved in the Guardianship Application”.

On 11 September 2008, Tomasz was granted a Financial Management Order and a Limited Guardianship order for the deceased. In its Reasons for Decision, the following appears:

Neither party referred to other parts of Ex. B which detailed events after September 2008.

Nurse McDonnell swore an affidavit on 16 October 2013. She worked as a Psychogeriatric Community Nurse with ACAT between 1990 and 1997. She re-commenced that work in 2003. She has qualifications as a Gerontological Nurse, which, I assume, means that she has engaged in the study of the social, psychological, cognitive and biological aspects of aging. It is clear that she was a trained nurse of some experience in aged care.

She was the ACAT Nurse who visited the deceased at different times between 18 September 2006 and 11 March 2010.

In addition to her affidavit, a copy of Nurse McDonnell’s Progress Notes formed part of Ex. B in the proceedings. I shall shortly refer to some of those notes to which she was taken in cross-examination and otherwise. It is clear that her conclusions were based upon her contemporaneous observations and conversations with the deceased over a reasonably long period.

In her affidavit, Nurse McDonnell notes that the deceased was admitted to Concord Repatriation General Hospital on 5 August 2006 and discharged on 12 August 2006. She made her first visit to the deceased, at the Ashfield home, on 18 September 2006. She says that during her involvement with the deceased, she had telephone contact with Tomasz and his wife, Nathalie.

The deceased told her that he had five children, who he named and identified his or her gender, but if those other children were mentioned, he “became emotional”. He explained to her that he had “a falling out with my children after my wife died regarding the property next door and I don’t have any contact with them”.

Relevantly, Nurse McDonnell’s affidavit (with some corrections that she made at the commencement of her evidence) included the following:

Having regard to Ex. B, Paragraph 18 of Nurse McDonnell’s affidavit was clarified to mean that she called the Public Trustee and spoke to Mary who told her that “Mr Budniak visited x1 to organise will & said he would think about financial management but did not return.”

Nurse McDonnell was cross-examined. I summarise her evidence given in cross-examination:

I note that there are no entries by Nurse McDonnell in the Progress Notes between 16 August 2007 and 12 November 2007.

I found Nurse McDonnell to be a very impressive witness. She was open and frank in her answers in cross-examination. She had the opportunity, over a period of some years, to observe the deceased, from a medical, and other, point of view, at around the time that he gave the instructions for the 2007 Will and, subsequently, when he had executed it. It was not suggested, nor could I detect, that she suffered from any lack of independence or objectivity. I have no hesitation in accepting her evidence as truthful.

Dr Orr, a Consultant Psychiatrist, swore an affidavit on 7 July 2014 to which was annexed a report dated 30 June 2014. The report contains the following relevant matters, which I summarise:

Dr Orr was cross-examined. I summarize the evidence that she gave in cross-examination:

In re-examination, Dr Orr stated that the cognitive impairment to which she had been referring related, principally, to the deceased’s organisation and planning skills, which related to being set a task and being able to achieve it. She also was satisfied that he understood her advice, but that he was a fairly obstinate man who, if he did not want to take the advice she gave him, was not going to.

Finally, Dr Orr said that when he was examined, having been admitted, voluntarily, to the psychiatric ward of Concord Hospital, in about April 2008, he was not diagnosed with depression, but at that time, there was a cognitive decline, and he was diagnosed with dementia.

The following questions from the Bench and Dr Orr’s answers, followed the cross-examination by senior counsel (T152.39-T156.21):

Dr Orr, like Nurse McDonnell, was a most impressive witness. I found her to be an articulate, helpful and reliable witness, and I have no hesitation in accepting her evidence as truthful. It is clear from her evidence that from late 2006, the deceased suffered from mild cognitive impairment and he had experienced some cognitive decline, thereafter. Whilst her opinion does not provide positive support for a conclusion that the deceased had testamentary capacity in either May, or in October, 2007, it does not completely negate such a conclusion.

Dr Tanya Lye, a duly registered clinical neuropsychologist, assessed the deceased on 21 May 2007 and 29 May 2007. Regrettably, although she provided an affidavit that was read, on the morning she was to appear, counsel for the NSW T & G received a letter which was in the following terms:

I granted leave to issue a subpoena to attend returnable on Monday 11 May 2015. By arrangement, Dr Lye attended in answer to the subpoena, and was cross-examined, on Tuesday 12 May 2015.

A copy of Dr Lye’s report, under her hand and that of Susan Van den Berg, a clinical neuropsychology intern, is annexed to her affidavit, and contains the following relevant matters which I summarise:

Dr Lye prepared a subsequent report, following an assessment of the deceased, on 10 April 2008. I shall not detail all of the contents of the report, but having, again, conducted an assessment of the deceased, with the aid of a Polish interpreter, she concluded:

Following some correspondence with counsel for the NSW T & G, Dr Lye prepared a further report dated 11 June 2014. In that report, she confirmed that “the assessment [of the deceased] was conducted for clinical purposes and therefore the interview and testing were not tailored to address the issue of testamentary capacity” but to “document [his] cognitive status with a view to providing an opinion regarding his capacity for financial management”.

Dr Lye also reported:

It is noteworthy that when the deceased told Dr Lye that he did not then have a Will, he was correct (at least so far as the reference to a Will meant a duly executed Will). All that he had done on 8 May 2007, with Mr Kennedy, was to give some instructions for the preparation of the Will.

Dr Lye’s report went on:

During cross-examination, Dr Lye referred to some documents, a copy of which had not formed part of Ex. 3, which documents she produced, for the first time, to the court. Counsel were permitted to inspect these documents and, subsequently, there was cross-examination on some of them. Later, the documents to which senior counsel for the Defendants referred, and one document to which counsel for the NSW T & G referred in re-examination, were tendered: Ex. S.

I summarise Dr Lye’s evidence in cross-examination as follows:

In answers to questions from the Bench, Dr Lye gave the following evidence:

I shall not repeat what else is in her notes which formed Ex. S, but these confirmed the matters included in her report and about which she gave evidence.

I also found Dr Lye to be a most impressive witness. She was an articulate, helpful, and reliable, witness, and I accept her evidence as truthful. However, like Dr Orr, whilst her opinion does not provide positive support for a conclusion that the deceased had testamentary capacity in either May, or in October 2007, it does not completely negate such a conclusion.

In my view, there was a large measure of agreement between Dr Orr and Dr Lye as to the deceased’s medical condition during the period between late 2006 and early 2008.

Having heard and read the evidence of each of Dr Orr, Dr Lye and Nurse McDonnell, I am satisfied that each considered that the deceased, even with mild cognitive impairment, was capable, given help, of making some decisions for himself.

Dr Richard Adams-Dzierzba, who conducts a general medical practice called “Ashfield Family Practice”, was the treating general practitioner of the deceased from 1987. He swore an affidavit, read by the Defendants, to which he annexed a copy of a report dated 21 October 2014. It was obvious that he was a busy general practitioner.

In the report, he states that the behaviour of the deceased (which he details and which I shall not repeat) “was consistent with a decline in mental capacity” and gives an opinion regarding testamentary capacity as follows:

Regrettably, I did not find all of Dr Adams-Dzierzba’s evidence to be convincing. By way of example, I mention the following matters:

In my view, the evidence of Dr Orr, Dr Lye and Nurse McDonnell, where it conflicts with the evidence of Dr Adams-Dzierzba, concerning the medical condition, and mental state, of the deceased in the period between about September 2006 until about April 2008, is to be preferred.

None of the doctors, or Nurse McDonnell, was asked any questions about what could be drawn from the scores of the deceased on the MMSE test in relation to assessing testamentary capacity. Experience, however, dictates that MMSE scores do provide some guidance in the assessment, although the test does not cover all of the matters that must be considered in assessing capacity, and cannot generally be used, on its own, for that purpose. As is well-known, the MMSE is not designed to test testamentary capacity, but enables an assessment of global cognitive function by reference to seven different categories, namely orientation to time and place, language, attention, calculation, recall and visuo-spatial ability. None of those things directly enables an assessment of frontal, or executive, brain function, being the higher function for making decisions. But the scores achieved may provide some guide, a low score being likely to raise questions.

There is evidence about these higher functions to which I have referred. That evidence does not assist the case advanced by the NSW T & G.

Unsurprisingly, the deceased’s family members gave some sharply conflicting evidence about the deceased and his behaviour. I have endeavoured to make an objective evaluation of the allegations and to remember such general factors as inherent probability or improbability, and whether the version given is supported, or contradicted, by other objective evidence which is not disputed.

I have also borne in mind the fact that witnesses were giving evidence of events that occurred many years ago and also the possibility that the credibility of some of these witnesses may be undermined by his, or her, pecuniary interest in the outcome of the proceedings.

I have also remembered that “the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation”: Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39, per Keane JA (as his Honour then was), at [34], cited with approval by Leeming JA (with whom Barrett JA and Tobias AJA agreed) in New South Wales v Hunt [2014] NSWCA 47; (2014) 86 NSWLR 226 at [56].

The NSW T & G relied upon an affidavit sworn 6 November 2013 of Tomasz and an affidavit sworn 4 November 2013 of Nathalie. There was no dispute that each had the most contact with the deceased after about 2003. It is clear from the evidence that this was so, particularly because they lived in the Wife’s property until about September 2005. Thereafter, each of them continued to play a significant role in his life as demonstrated by an association with Nurse McDonnell, Dr Orr and Dr Lye. Overall, I am satisfied that they lived near to, and closely interacted with, the deceased, and that he and she had the best opportunity to observe him during the years 2006 to 2008.

Each was cross-examined by senior counsel for the Defendants. I am satisfied that each did his, and her, best, respectively, to tell the truth. I accept the evidence given.

Tomasz provided details of the family relationships and background facts, some of which have been included earlier in these reasons and about which there was no apparent issue.

I specifically accept the following evidence given by Tomasz in his affidavit:

Tomasz was cross-examined. He gave the following evidence, which I also accept:

I specifically accept the following evidence, which I consider especially relevant, given by Nathalie, in her affidavit:

There is much other evidence, particularly about events in 2008, 2009 and 2010 in Nathalie’s affidavit which it is not necessary to repeat. It demonstrates that, over these years, the deceased’s condition progressively deteriorated. Where her evidence about the condition of the deceased conflicts with the evidence of the Defendants, I accept her evidence because, it seems to me, it accords more with the objective evidence given by Nurse McDonnell, Dr Orr and Dr Lye as to the likely progress of the deceased’s medical condition.

Nathalie denied having told Robert, in 2007, that the deceased was lost, or confused, about once a week. She said that she did not find the deceased to be so, and she says that there are no notations, on her 2007 wall calendar, to suggest that he was. Also, she refers to the family’s trip to Europe in June 2007.

Nathalie was cross-examined. She gave the following evidence, which I accept:

(I have identified the matters referred to above as being “specifically accepted” because some of those are the subject of dispute with one, or other, of the Defendants, or because I consider that the evidence provides a more balanced picture of the deceased’s condition. I found each of Tomasz and Nathalie to be a credible witness.)

I shall not repeat what each is reported as having told the Guardianship Tribunal in 2008.

I regret to say that I found some of the Defendants endeavouring to paint a picture of the deceased suffering significant cognitive impairment much earlier than the medical, and other, evidence suggests. This, in my view, affects some of the evidence that he and she gave.

Robert swore a number of affidavits. He acknowledged it had “been difficult to detail, with precision, the time and place when certain events and discussions took place but I have used my best endeavours to put the events and discussions in chronological order… The dates are approximate”. I am satisfied that some of the dates are incorrect as they do not accord with other objective evidence to which I have referred.

I accept the following evidence given by Robert in his affidavits:

I do not accept the following evidence given by Robert because it is, generally, inconsistent with the medical evidence to which I have referred. Some of it is inconsistent with what Robert said in answers to questions and because, overall, I prefer the evidence of Tomasz and Nathalie, each of whom I consider gave frank evidence about what he and she observed about the deceased.

Robert was cross-examined. I have earlier set out some of his evidence given by him. In cross-examination, he described the deceased as “intransigent”. As I have earlier noted, he confirmed that the deceased “could read English well” and had done so since 1950. He also confirmed that he had appreciated that there was a risk in the deceased not making provision as he had threatened and had decided to take the risk. He identified the words “without his knowledge” as being relevant, which suggests that by serving the lapsing notice, the necessary “knowledge” would be provided.

Fiona, Robert’s wife, swore two affidavits that were read in the Probate proceedings. She, too, gave evidence about meeting the deceased in 2004, and his failing to recognise her. She denied having the conversation about which Nathalie gave evidence. However, as I have earlier written, I accept Nathalie’s evidence.

I shall refer to some of the evidence given by Joanna later in these reasons. For reasons there identified, I did not find her to be a very reliable witness. As stated earlier, she, too, identified the words “without his knowledge” in the deceased’s threat made to Robert, as being relevant. As stated above, that suggests that by serving the lapsing notice, the necessary “knowledge” would be provided to the deceased. This is inconsistent with her evidence about the deceased’s mental state at that time.

Joanna also said that she did not reflect on the deceased’s threat thereafter, bearing in mind his conduct towards her and did not even remember that it had been made until she read the annexure to Tomasz’s affidavit in which the email sent by Robert referring to the threat was annexed.

Joanna gives evidence of an event in about August 2001, when the deceased did not recognise her. She later said that she “was shocked that my father did not recognise me when we initially met and was concerned at how forgetful he seemed. My impression was that he was becoming senile.”

I do not accept this evidence as to the date of the event because it is inconsistent with much of the other evidence. If the evidence was included to demonstrate that the deceased was losing capacity at that time, it is inconsistent with the evidence, to which I shall refer, about moneys advanced by the deceased to Joanna and her husband in 2003 and 2004.

There are other parts of Joanna’s evidence which I do not accept relating to events in 2006 and 2007 (in respect of one aspect of which I shall deal with in more detail later). I find the evidence inconsistent with the medical, and other, evidence concerning the deceased.

Andrew gave evidence and was cross-examined. I later refer to his evidence. For reasons given, I do not accept Andrew’s evidence about the event that he says occurred in November 2007. Otherwise, he did not give any evidence about his observations of the deceased’s conduct going to his mental state.

Lech did not give any evidence on this topic. He had extremely limited contact with the deceased for about 30 years before the deceased’s death. His wife, Sharron, gave evidence but did not say anything about her observations of the deceased’s conduct going to his mental state.

Eliza gave evidence also. She states that “in the period up to and after September 2006, I regularly met and spoke to my father at family functions and Polish events”. In cross-examination, she said that she would see him at the Polish Club and at the shopping centre. In re-examination, when asked about the nature of their contact, she said that if she “ran into him, I’d just say, “Hello, how are you? What’s new?” Just casual conversation”.

Despite what she had said in her affidavit, Eliza’s evidence about the conduct of the deceased was limited to two events in 2007, neither of which directly involved him, but which involved her conversations with others about him. Nathalie denies one of the conversations which is said to have occurred, a denial I accept.

When cross-examined about the event in June 2007, Eliza admitted that following the alleged conversation with Nathalie, she did not go to visit the deceased. She could not recall whether she was “not concerned enough to go and see” the deceased in June of 2007 following the alleged conversation and when she saw him, subsequently, she did not ask him about his condition.

In relation to the other conversation, also with Nathalie, which involved her being contacted by someone from the office of Dr Adams-Dzierba, there is simply no evidence supporting what is alleged to have been said regarding the deceased, in the records produced by Dr Adams-Dzierba and there is nothing in Nathalie’s 2007 wall-calendar that was produced suggesting that such an event occurred. I do not accept that any such conversation with Nathalie occurred in 2007.

Eliza admitted that after the deceased was admitted to the home in 2009, she ceased to visit him because she “didn’t particularly wish to go to a nursing home”.

I can only conclude, if Eliza’s evidence about regularly meeting and speaking with the deceased, is true, that she did not observe any conduct which caused her to question his capacity. I tend to think that her statement about her contact with the deceased prior to 2009 was exaggerated.

Eliza’s husband, James, swore an affidavit that was read. He does not really refer to his observations of the deceased’s mental state. The observations to which he refers, in my view, do not go to the issue of capacity.

The evidence of the relationship of each of the Defendants and the deceased is set out in the affidavits filed in the family provision proceedings. It is clear to me that despite some of what is said in those affidavits, the relationship of each was neither particularly close nor particularly loving. It is hardly surprising, in my view, that the deceased told various people that he was not close to his children (other than Tomasz) and that he did not see a lot of them.

It is necessary to set out this evidence as it is relevant not only to the family provision proceedings but also to the Probate proceedings to the extent that the deceased referred to his relationship with his children to other people and considered that relationship in giving instructions for the 2007 Will.

It was Nathalie who prepared all of the deceased’s clothes, washed everything for him, and packed his bags when the deceased was admitted to the Nursing home.

Tomasz gave the following evidence:

Tomasz wrote in the deceased’s eulogy that the deceased “didn’t always have a lot of time for us”, further explaining that:

The suggestion that the deceased had not spent very much time with his children during their youth had been acknowledged by the deceased himself.

Tomasz deposes to a conversation he had with Lech following the death of the deceased in which he said:

Robert gave evidence of seeing the deceased regularly whilst studying at the University of New South Wales, as the deceased was working there. The deterioration of the deceased’s relationship with Genowefa affected Robert’s relationship with the deceased, to the extent that the deceased did not attend Robert’s wedding in 1983. Robert moved out of the family home the day after the wedding. Between 1983 and 1986, Robert wrote that he “did not make any specific attempts to see or engage with [the deceased]”. When Robert did see the deceased by chance, they would exchange pleasantries. In 1987, Robert made an effort to re-engage his father and from 1990, he “kept in greater touch” with the deceased, speaking on the telephone around six times a year and visiting “more regularly”.

From 1999, Robert “had quite a bit of contact” with the deceased however from 2003, it was more difficult to “gain access” to the deceased. From March 2007, the deceased did not attend any more family functions.

Robert confirmed, in his oral evidence, that from October 2007, he had “less contact” with the deceased. He could not recall how many times he saw him but stated that it was “more frequently than once a year; less than once a month”. Robert visited the deceased in Bankstown Hospital on 17 May 2011.

From 1983, Joanna lived with her mother next door to the deceased. Joanna refers to her mother as being the “main caregiver”. She visited the deceased about once a month between 1983 and 1999 and would see the deceased when leaving or coming home. The deceased would often attend the Polish Club. Until 2000, Joanna and the deceased continued to see each other at various events and visits to the deceased’s home. From 2000 to 2009, Joanna and the deceased would speak over the telephone about twice per month and would visit each other about once per month. The deceased gifted Joanna three payments of $2,500 in around September 2003 to assist in paying workmen to build her house. In late 2009, the relationship between Joanna and the deceased “fell away”. When the deceased was admitted to Bankstown hospital, Joanna visited every day until his death.

Joanna gave evidence that her relationship with the deceased was different to that of her siblings as she was younger, spoke better Polish and played an active part in the Polish community organisations. She maintained a “meaningful” relationship with the deceased throughout his life, despite the difficulties that arose.

Lech gave evidence of a poor relationship with the deceased from when he was a child. The deceased rarely took the family on outings, or drove Lech to activities, never bought Lech a birthday present and only ever bought him one Christmas present. Lech suggests that the deceased’s behaviour was similar to all of his siblings, although this is denied by Tomasz who states that they were taken on family outings by the deceased and that he was driven to and from certain events and activities, although he admits that the deceased “did not seem to spend a lot of time with his children”.

Lech also attended the University of New South Wales yet, unlike Robert, he was never driven to, or from, University, and the deceased did not attend his graduation. Lech moved out of the family home in 1983. If Lech saw the deceased whilst visiting Genowefa, or at the Polish club, their conversation would be limited to exchanging greetings.

From 2007, Lech “had little contact” with the deceased and did not visit the deceased in Bankstown hospital immediately prior to his death.

Eliza gave evidence that the deceased did not attend activities in which she participated as a child. From December 1983, when Eliza moved out of the family home with her mother and other siblings, she “did not actively seek out” the deceased. She “would say ‘hello’ and talk to him if [she] happened to see him outside the family home” and “always maintained a respectful and polite relationship” with the deceased.

Between 1984 and 1998, Eliza had contact with the deceased at some specific events; she indicates four such occasions in her affidavit. From 1999 until 2011, Eliza had more contact with the deceased as he attended more family functions. She identifies five such functions in her affidavit which the deceased attended. Between 2007 and 2009, Eliza would also see and speak to the deceased at the Polish Club. From mid-2009, Eliza had less contact with the deceased when he went into a nursing home, the reason being “[she] didn’t particularly wish to go to a nursing home”. She visited him every day from when he was admitted in Bankstown hospital until his death.

When reading the evidence, I was reminded of a comment by Chancellor Kent in Van Alst v Hunter (1821) 5 Johns. Ch. 148, which is as relevant to human nature today as when it was first expressed nearly 200 years ago:

There were two very specific aspects of evidence with which it is necessary to deal and which, in my view, affects the credit of the witnesses involved.

Tomasz gave the evidence about a conversation that he had with the deceased in which the deceased said he had loaned Joanna a large sum of money whilst she was rebuilding her house and that she had not repaid the money “which upsets me”. The deceased went on to say that he knew he could take her to court but said he would not do so. The conversation concluded with the deceased saying: “It’s a family matter and I’ll deal with it accordingly.”

In her affidavit in reply, filed in the Probate proceedings, Joanna said that the deceased “did not loan me a large sum of money”. She did not refer to the receipt of any money from the deceased other than three amounts of $2,500, which amounts she said were gifts made to her by the deceased (to which I have earlier referred). The paragraph of her affidavit on this topic concluded with the assertion that the deceased “never once indicated to me he was upset with me over the issue of money in the years that followed, even during the often heated discussions we had during those years.”

Joanna acknowledged that she and her husband, Andrew, had been building their house between 2003 and 2004. Counsel for the NSW T & G then showed Joanna two copy documents which were tendered as Ex. M. One was headed “Loan Schedule”. It appears to be dated 25 October 2003. This document contained a table containing four columns. There were 11 lines. Under the column headed “Amount” were various amounts, totalling $142,500. Under the column headed “Date Received” were different dates between 11 September 2003 and 16 March 2004. Under the Column headed “Signed Budniak” was the signature (on each line) of the deceased. Under the Column headed “Signed Borysewicz” was the signature (on each line) of Joanna. (An obviously earlier version of Ex. M, containing only one line and identifying the amount of $20,000 became Ex. N.)

The second copy document was a Customer Receipt for $30,000 dated 9 February 2004 from St George Bank which Joanna acknowledged was in her name. (It appears to have been one of the amounts identified in the Loan Schedule.)

Another copy document, also headed “Loan Schedule”, but in a slightly different format, was tendered as Ex. O. This document, also, contained different dates and amounts, but no signatures. The amounts shown in this table, totalled $150,000. Below the table appeared the following statement:

Unsurprisingly, Joanna was cross-examined on this issue. I did not find her evidence on this topic at all convincing. None of the evidence that she gave, to which I shall refer appeared in any of her affidavits, or in the affidavits of her husband, Andrew.

Firstly, only in cross-examination did she acknowledge that she had created the original Loan Schedule on her computer; that her signatures appear on the Loan Schedule as do the deceased’s; and that she had received all of the amounts referred to in Ex. M. Then, she maintained that “the money was in my possession but it was not a loan” (T238.13-T238.14 as amended). Despite the fact that she said that she was “holding” the amount received for the deceased, she admitted she had used the money to pay tradesmen.

Then, Joanna said (T238.33-T239.01 as amended):

Later, she maintained “… in my mind it wasn’t a loan. He asked me to hold some money for him. I did”: T242.26-T242.27 (as amended).

I should mention that Andrew, who was cross-examined immediately after Joanna, contradicted the evidence of his wife. He acknowledged that Joanna and he had received “about $140,000” from the deceased. Without any prevarication, he stated that the money advanced by the deceased was a loan from him to them: T259.48-259.49 (as amended).

It follows that I am satisfied that the document prepared by Joanna as a Loan Schedule was exactly that, and that the money advanced to her by the deceased, as evidenced in the document, were advanced by way of loan.

In my view, Joanna deliberately tried to avoid disclosing the loan moneys for the reason that she well knew that if such evidence was given it would present a possible difficulty for her in relation to what the deceased had told Tomasz about having made a loan of a large amount to her.

When asked about how she had repaid the deceased, Joanna said that the whole amount ($142,500) had been repaid “in cash” by the end of 2004 or early 2005. She said that the source of the number of payments was an AMP bank account that had since been closed in 2008. She could not identify the amount of each payment or when each had been made.

In relation to Ex. O which identifies that Andrew and Joanna agreed to pay interest on the amount loaned, Joanna said that it had been created because “I didn’t trust my father. I wanted it to be legitimate”: T249.32 (as amended).

Joanna could not explain why there was a document in which a reference to interest, to be paid by her and her husband to the deceased, had been created. Her evidence was that she said to the deceased:

This evidence is also inconsistent with her evidence that the money advanced was not by way of loan.

Joanna also gave evidence that she thought that she had the document to which she had referred relating to the repayments at home. In re-examination, Joanna gave this evidence:

However, no such document, if it existed, was produced to the court and Joanna did not re-enter the witness box to give evidence about her search, overnight, for any such document. If it no longer existed, there was no explanation given of when, or in what circumstances, it had been destroyed or lost.

I should mention that Andrew said that the amount loaned had been re-paid, adding “My wife does all the books. She’s the mathematician in the family. She runs the book side of things and I know that that amount was paid off to my father-in-law”. He thought it had been repaid from the proceeds of sale of a home unit, but he could not be certain whether it had been repaid by cheque or in cash again repeating “you’d have to ask my wife in regards to that”. He maintained that the financial side, in their household was not part of his responsibilities.

Senior counsel submitted that the court should not draw any inference by Joanna’s failure to produce the document to which she had referred because her evidence was that she “could have” the document at home. Her evidence, more than once, however, including in re-examination, suggests that she clearly believed in its current existence.

Taken with the omission of the receipt from the deceased of any money other than the modest amounts that I have earlier identified in her affidavits, her denial that the money advanced was by way of loan (which loan Andrew acknowledged) and her failure to re-enter the witness box and inform the court of her searches, she has not satisfied me, despite her, and Andrew’s, assertions to the contrary, that the amounts that had been loaned by the deceased have been repaid.

I also reach this conclusion upon the basis that had the moneys been repaid, there would have been no need to avoid disclosing the receipt of them in the affidavits that each had served. I find Joanna’s evidence on the topic of moneys advanced to her and Andrew quite unreliable.

The second issue relates to the date on which the deceased attended the Polish Club and was taken home by Andrew. There were two witnesses whose affidavits were read by the NSW T & G, on the topic, but who were not cross-examined. It was said by counsel that “no Browne v Dunn point” was to be taken by the Defendants agreeing not to cross-examine. (There was a third witness but her evidence related to the fees paid in relation to the dance classes the subject of the dispute rather than to what occurred involving the deceased.)

Taking that concession into account, I am still left with the evidence of these two witnesses, each of whom I have not had an opportunity to hear being cross-examined. It would not necessarily be right to conclude that the absence of cross-examination entails the acceptance of that evidence, particularly since the evidence as to the date of the events has been contradicted by evidence of a number of witnesses relied upon by the Defendants who have been cross-examined.

Yet, it is to be noted that the two witnesses are not parties to the proceedings and have no pecuniary, or apparently, other, interest in them. Furthermore, each gave very specific evidence of the event and all agreed that it had occurred in November 2009 rather than in May 2007.

It is unnecessary to trawl through the evidence on this topic. I should mention that I did not gain the assistance that seemed to be placed by the Defendants on the information contained in Ex. 16 and Ex. 17 (the Police Credit Union Diary of Andrew for the year 2007 and 2009 respectively) each of which referred to the event at which the incident was said to have occurred. However, neither entry referred to the deceased being present.

In addition, the evidence of Joanna and Andrew on the circumstances in which the same wrong date came to be included in each of her, and his, affidavit was difficult to accept. The difficulty was enhanced when the court clarified with Andrew, that he had access to his 2007 diary, in which the event about which he was giving evidence occurred, at the time he prepared his affidavit in August 2013.

Furthermore, in explaining in that affidavit, the reasons why he had dated the event about which others had given evidence as May 2007 rather than November 2009, he had not disclosed any reference to having used his Police Credit Union Diary to refresh his memory about the date. He could not explain the reason for the omission: T264.26-T265.07 (as amended).

I should refer to Nathalie’s evidence on the topic. She, too, says that the incident occurred in November 2009 and not May 2007. She made a notation on the calendar in the 2009 year.

There is an entry on Nathalie’s wall calendar on 21 November 2009 relating to the deceased being “confused” whilst at the Club and Andrew taking him home at 2:30 p.m. and Andrew returning by 4:00 p.m. to the Club.

Having read all of the evidence on this topic, and to the extent that it is necessary to express a view, it is more likely that the events to which reference is made, occurred in November 2009, rather than May 2007. I do not accept Joanna’s and Andrew’s evidence on this topic, preferring the evidence of Nathalie and the two other witnesses who were not cross-examined.

My assessment of Joanna’s and Andrew’s evidence on this topic is that it was unreliable and that they set out the date of an event much earlier in time than when it had, in fact, occurred.

There was a significant amount of cross-examination of each of the Defendants and of Tomasz about his, and her, financial resources and those of his, and her, spouse. The spouse of each Defendant was also cross-examined. It was clear that each had not fully, or accurately, disclosed the necessary information. However, following completion of the cross-examination, and as it appeared that the NSW T & G was reasonably satisfied that the relevant evidence had now been provided to the court, the legal representatives of the parties agreed to provide a complete schedule of those resources for each of the Defendants and his, or her, spouse taken from the affidavits as completed by the oral evidence.

Whilst I do not condone the failure of, or omission by, any applicant to provide to the court and the other party, a full, accurate and complete statement of his, or her, financial resources, it was not suggested, in this case, to any relevant witness, that the failure or omission to do so, was intentional with a view to misleading the court.

In this regard, it has been stated in many cases that it is the responsibility of any applicant for a family provision order, and to some extent, his, or her, legal representative, to ensure that the obligation of the applicant has been fully complied with prior to the hearing of the proceedings.

Because of the conclusion I have reached in the Probate proceedings, it is unnecessary to deal with the evidence of each since his and her financial and material circumstances goes only to his and her claim for a family provision order. (In this regard, there is no evidence about the deceased’s knowledge of the financial and material circumstances of each of his children. In view of his relationship with each of them, it is unlikely that he would have had any information about that matter.)

Although I have set out some of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they are able to follow the reasoning and for each to be satisfied that I have considered the evidence and the submissions.

Wills can be proved in two ways; being a grant in common form or a grant in solemn form. A grant, in either form, is a judicial act, and becomes an order of the court: Kuhl v Liebcheschel [1933] SA St Rp 41; [1933] SASR 394, at 398. In the case of a grant in common form, the grant is revocable. The grant, in this respect, 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; [1964] 1 All ER 596, at 272; In the Will of England (1900) 22 ALT 86; Re Levy [1953] VLR 652; Tsagouris v Bellairs [2010] SASC 147, at [35].

Lindsay J, in Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786, at [65], has added:

In order to obtain a grant of Probate in solemn form, the party propounding the relevant Will, is required to call at least one of the attesting witnesses to prove due execution: In re Munn; Hopkins v Warren [1943] SA St Rp 44; [1943] SASR 304; Oakes v Uzzell [1932] P 19; (1931) 100 LPJ 99. The evidence of the attesting witness may be given by affidavit: Palin v Ponting [1930] P 185.

Section 3(1) of the Act defines “Will” as including “a codicil and any other testamentary disposition”.

In the case of a grant in solemn form (with exceptions concerning fraud, discovery of a later Will, or mistake in making the original grant), the grant of Probate is said to be irrevocable. Or, as was put in Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757 by Campbell JA, at [7]:

Lindsay J has comprehensively dealt with the distinctions, and provided an admirable historical analysis of the difference between common form and solemn form grants in Estate Kouvakas; Lucas v Konakas. It is not necessary to repeat the conclusions to which he came in that case.

Because testamentary capacity and knowledge and approval are distinct bases for the objection to a grant of probate, I shall deal with them separately. The task of this court is to determine which is the last valid Will of the deceased.

The law as to testamentary capacity is well settled. There was no dispute about the principles between the parties. Importantly, the requirement for testamentary capacity is not statutory.

I repeat what Powell J (as his Honour then was) stated in Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698, at 704-707:

In Banks v Goodfellow (1870) LR 5 QB 549, Sir Alexander Cockburn CJ, at 568-770, referred, with approval, to the decision of the Judicial Committee of the Privy Council in Harwood v Baker (1840) 3 Moo PC 282, at 290-291, where Erskine J had delivered the judgment of the Court in the following terms:

In Re Griffith; Easter v Griffith (1995) 217 ALR 284, at 289-290, Gleeson CJ (as his Honour then was) said:

In relation to how this passage should be read, I adopt, with respect, the view expressed by White J in Manning v Hughes; Estate of Ludewig [2010] NSWSC 226, at [65]:

As the Court of Appeal confirmed in Tobin v Ezekiel, per Meagher JA (Basten and Campbell JJA agreeing) at [47]-[48]:

I should also refer to Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, at 570-572, by including additional matters stated by Isaacs J (omitting reference to authorities), not specifically referred to above, which are, or may be, relevant:

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] EWCA Civ 449; [2006] WTLR 1059, at [82] and [66]. It has also been described as the “classical exposition”: I. J. Hardingham, M. A. Neave and H. A. J. Ford, Wills and Intestacy, (2nd ed 1989, Law Book Co), at [306]).

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:

In Re Griffith; Easter v Griffith, Kirby P (as his Honour then was) articulated, at 295, this principle as follows:

I have also found the following passage in Chiu Man Fu v Chiu Chung Kwan Ying, at [74]-[75], useful to remember:

In describing the scope of the requirement of knowledge of the nature and extent of his property, Coleridge J, directing the jury in Waters v Waters (1848) 2 De G & Sm 591; 64 ER 263, said that to have capacity the testator must:

In Read v Carmody [1998] NSWCA 182, Powell JA, (with whom Meagher and Stein JJA agreed), wrote (at 4) that a testator or testatrix “is aware, at least in general terms, of the nature, and extent, and value, of the estate”.

In Kerr v Badran; Estate of Badran [2004] NSWSC 735, Windeyer J noted at [49]:

In Tu v Tu; Estate of Tu [2008] NSWSC 458, Windeyer J explained, at [44], that he did not cast doubt on the test expounded in Banks v Goodfellow in Kerr v Badran.

The discussion by Windeyer J in Kerr v Badran was referred to, with approval, by Hodgson JA (Young JA and Bergin CJ in Eq agreeing), in Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197, and by White J in D’Apice v Gutkovich; Estate of Abraham (No 2) [2010] NSWSC 1333, at [95].

In Frizzo v Frizzo [2011] QCA 308, Muir JA (with whom McMurdo P and White JA agreed), at [53], stated:

In In The Will of Wilson [1898] VicLawRp 39; (1897) 23 VLR 197, Hood J, at 199, noted that in order for a testator to rightly understand these matters, it is essential that his “mind should be free to act in a natural, regular and ordinary manner”. Dixon J cited these observations with approval in Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277 at 283.

In comprehending the nature of what the deceased was doing, and its effects, it is not necessary to establish that she, or he, was capable of understanding all the clauses of the disputed Will. An appreciation of the legal effect of every clause in a Will is also unnecessary. However, it does need to be shown that the deceased understood that she, or he, 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]; Brown v Wade [2010] WASC 367, at [95]-[96].

A summary of the principles were set out by Gray J, after an extensive analysis of the authorities, in Wade v Frost [2014] SASC 162, at [37]:

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] HCA 13; (1942) 66 CLR 295. However, as Dixon CJ wrote in Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439; (1952) 26 ALJR 626, at 343:

I also note that in Bool v Bool [1941] St R Qd 26, 39 (Full Ct, Macrossan SPJ) it was said:

However, whilst that may be a summary of the principle, I prefer the principle expounded in John Ross Martyn and Nicholas Caddick QC (eds), Williams, Mortimer and Sunnucks — Executors, Administrators and Probate (Sweet & Maxwell, 20th ed, 2013), where the authors deal with particular matters which arouse suspicion, noting, at 207 [13–30]:

In Bull v Fulton, at 341, Williams J noted:

Yet, Sir James Hannen, over 140 years ago, in Boughton v Knight (1873) LR 3 P&D 64, at 66, wrote:

More recently, in Sharp v Adam, May LJ in the English Court of Appeal wrote, at [79]:

Thus, whilst an explanation for a dramatic change in testamentary intention, such as the complete disinheritance of some of his children, may be sought, the focus in that search must remain firmly on the question whether the deceased had the capacity to make the Will.

Finally, the test of mental capacity is not monolithic, but is tailored to the task in hand: Hoff v Atherton [2004] EWCA Civ 1554; [2005] WTLR 99, at 109.

As to the date at which testamentary capacity must be established to have existed, it is established that if the deceased had capacity at the time she, or he, gave instructions for the will, but lacked capacity at the time of execution of the will, the crucial date is that of the giving of instructions, not the date of the execution of the will: see, Hardingham, Neave and Ford, at [308].

In Parker v Felgate (1883) 8 PD 171, a testatrix gave solicitors instructions for her will in July. She ceased to have testamentary capacity in late August. On 29th August, she executed the will drafted by her solicitors in accordance with her instructions. She died on 2nd September. The executors sought to propound that will. Their claim was opposed by the testatrix’s next of kin on the grounds that the will was not duly executed, lack of testamentary capacity at the time of execution and want of knowledge and approval. The case was tried by Sir James Hannen P with a jury. In the course of his summing up Sir James directed the jury as to the applicable law. He said, at 173-174:

See also, Vukotic v Vukotic [2013] VSC 718, at [19]; Le Bon v Lili [2013] VSC 431, at [20]-[23] and Veall v Veall [2014] VSC 38, at [34] in which the above principles are referred to with approval.

Thus, it would be necessary to establish that the Will, as executed, accords with the instructions given by the deceased at the earlier time and that the principle does not apply if there are material differences between the instructions given and the Will prepared, or where, as was submitted in this case, no instructions were given on clauses included in the Will that was executed.

In this case, affirmative satisfaction of the testamentary capacity of the deceased at the time the 2007 Will was made also invites the examination of the position at the time the Will was executed: Smith v Tebbitt (1867) LR 1 P&D 398, 436-437.

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 he, or she, in fact, made the judgment about his, or her, 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]:

White J, in Dickman v Holley; Estate of Simpson [2013] NSWSC 18, at [159], when he wrote:

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, at 67. It is a question determined on the balance of probabilities, based on the whole of the evidence: Bailey v Bailey, at 570. It is not resolved by the blind application of rules or formulae: Frizzo v Frizzo, at [66].

I should refer to Key v Key [2010] EWHC 408; [2010] 1 WLR 2020, at [98], in which it was said:

As the Court of Appeal of New South Wales pointed out in Zorbas v Sidiropoulous (No 2), at [65]:

It was also aptly put in “Assessment of Testamentary Capacity and Vulnerability to Undue Influence” by Kenneth I. Shulman, Carole A. Cohen, Felice C. Kirsh and Pamela R. Champine (2007) 164 The American Journal of Psychiatry, at 722:

In addition to showing that the deceased had testamentary capacity, the NSW T & G, as the propounder of the 2007 Will, must also show that the deceased 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, at 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:

The relevant principles were stated authoritatively, for relevant purposes, by the High Court in Nock v Austin [1918] HCA 73; (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):

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.

More recently, however, perhaps a single stage approach, as suggested by Lord Neuberger in Gill v Woodall [2010] EWCA Civ 1430; [2011] Ch 380, at [22], is more appropriate:

I should also refer to the judgment of Lewison LJ in Simon v Byford [2014] EWCA Civ 280, at [47]:

In Tyrrell v Painton [1894] P 151, Lindley LJ, at 157, had observed:

Davey LJ, at 159-160 wrote:

These statements of law were cited with approval by the Privy Council in Sarat Kumari Bibi v Sakhi Chand (1928) LR 8 Ind App 62. Also see, Leona Johnson (Deceased) [2015] SASC 51, at [7].

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].

Even though it is not relied upon as a relevant matter, I should mention Paraskov v Paraskos [2002] WASC 109, in which case, Pullin J, at [50] observed:

As the deceased died in 2011, these proceedings are governed by the Act, s 8, rather than the Probate and Administration Act 1898 (NSW), s 18. Section 8 applies to wills whether made before, on, or after 1 March 2008, if the deceased died on, or after, that date: Schedule 1, Clause 3(3) of the Act.

In view of the concession made by the NSW T & G, it is not necessary to repeat the relevant principles of law. I should, however, refer to section 8 of the Act which provides:

In this regard, however, there can be no doubt, and the parties agree, in the present case, that the 1994 document:

In arriving at a conclusion, I have borne in mind what was written by Tadgell JA in Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125, at 141:

The 2007 Will, so far as it related to the identified beneficiaries, is accepted as having been prepared in accordance with the instructions given by the deceased to Mr Kennedy in May 2007. There is no suggestion of the involvement of any interested party (for example, Tomasz or Nathalie) in organising the meeting with Mr Kennedy, or of participating, in any way, in the meeting. Despite Nathalie having been informed of the meeting, neither she, nor Tomasz, attended.

I am also satisfied that Mr Kennedy was an experienced Branch Manager within the NSW T & G. Where an experienced draftsman of a will states, upon facts that are set out, that he satisfied himself of the deceased’s mental capacity, his conclusion about the deceased’s capacity, noted on the Will Instruction Form, requires some evidence to contradict the conclusion.

In this regard, it is also to be noted that Nurse McDonnell was present whilst the instructions were being given to Mr Kennedy. She was clearly aware of the reasons for Mr Kennedy’s presence, and whilst she did not participate in the discussions that took place, she did not express any concerns, at the time, or otherwise, about the deceased being able to give instructions regarding the contents of his Will.

Furthermore her evidence and the evidence of Mr Kennedy does not suggest that the deceased was not, oriented in time, place and person, or that he did not know with whom he was interacting or the reasons why. There is no suggestion that his speech was incoherent.

Nor was it put to Nurse McDonnell, in cross-examination, that there was a need for her to be concerned, or to express concern, that because of any medical condition of which she was aware, the deceased did not have capacity to give instructions to Mr Kennedy about the Will.

Nor was there any suggestion that Nurse McDonnell observed anything about the deceased’s medical condition, when he gave instructions to Mr Kennedy. Importantly, she did not suggest that there was any confusion, or lack of understanding, evident in her communications with the deceased, or between the deceased and Mr Kennedy, on 8 May 2007, whilst she was present. There may have been some inability to understand the concept of an Attorney and some confusion about the role of an Attorney as compared with an executor. The evidence confirms that the deceased knew that the broad subject matters of the attendance by Mr Kennedy at his home with Nurse McDonnell and the interpreter was to discuss, amongst other things, a will. It is also clear that the deceased specifically identified the persons whom he wished to benefit by his Will. However, the evidence, overall, makes it clear that he had the ability to, and did understand, the concept of a Will. Therefore, I accept that the deceased knew what a will was and its effect.

Yet, it is clear, by May 2007, that a reduced ability to plan, judge and organise, was more observable in the deceased. Similarly, by this time, he was having some difficulties performing more complex activities, such as dealing with his finances and with his shares. In addition, he was having difficulty understanding correspondence from the Australian Taxation Office and the advice from accountants and lawyers that he said he had seen about that correspondence. These demonstrated a reduced capacity for information processing and also corroborated the conclusion of Dr Unsen that the “function of the frontal lobe of his brain, which involves decision making, executive function ability to make decisions flexibly and to have insight” was reduced.

However, at this time, the deceased seemed to be able to still adequately perform basic tasks, such as dressing, or moving around the community. Symptoms akin to those of depression were also observable. These emotional disturbances were fluctuating.

At his meeting with the deceased, Mr Kennedy would have been aware that he was dealing with an elderly man whose first language was not English and about whose medical, and other, history, he had no detailed knowledge (other than the fact that a Nurse from ACAT had organised the meeting and was present). There is no suggestion that the deceased had any legal training or knowledge about wills (albeit that he had prepared two documents that he had identified as his last Will and testament, a matter unknown to Mr Kennedy). He had, however, attended the office of the Public Trustee, in late January 2007 and had some discussion about the preparation of a will and the appointment of the Public Trustee as his Attorney.

Mr Kennedy did not make any enquiry about any prior Wills made by the deceased, or, if there were a prior Will, no enquiry was made about its terms. Had Mr Kennedy done so, he could have discussed the terms of any Will with the deceased and ascertained the deceased’s reasons for the alteration to the terms of any prior Will.

Nor did Mr Kennedy test, in any way, the deceased’s responses to the questions in the Will Instruction Form under the heading “Family Provision Act”. He seemed to have accepted, at face value, the answers given by the deceased, the relevant one being that the deceased had no other children.

Nor did Mr Kennedy test the deceased, in any way, to ascertain whether the answer to his question on this topic was accurate, or whether the answer should have been that the deceased had other children for whom he was not going to provide. It appears that he accepted that there were no other potential beneficiaries with a claim on the bounty of the deceased.

Had Mr Kennedy tested the deceased, he might have been able to elicit from the deceased that he had other potential claimants on his bounty and the reasons why he was not going to provide for such claimants. That, in turn, could have provided the basis of testamentary letters of explanation, or explanations contained within the 2007 Will, identifying the reasons for making no provision for specified family members. Such reasons, if provided, might have enabled a testing of the deceased’s capacity to weigh the claims of his other children and grandchildren upon bounty.

These omissions led Mr Kennedy to not ascertain whether the deceased had any appreciation of, or ability to comprehend, the consequences, and impact, of the distribution of his estate to Tomasz and Benjamin only, especially since it deviated significantly from his long held prior testamentary intentions and since it excluded those who might be considered to be persons with a natural claim on his bounty.

Mr Kennedy’s explanation of the effect of the former Act would have been likely to be far less detailed than would have been necessary in view of the answers that the deceased provided in relation to questions posed about eligible persons. There would have been little need to provide any detailed exposition of the Family Provision Act in light of the answers reported to have been given by the deceased.

In accordance with the deceased’s instructions, the draft of the 2007 Will was not sent to the deceased at the Ashfield property or otherwise. Nor was any letter explaining the contents of the Will, by reference to the instructions that had been given, as drafted, sent to the deceased.

Bearing in mind that the deceased lived alone, and there was no suggestion of regular attendances at the Ashfield home by any of his children, other than, perhaps, Tomasz, and of Nathalie, the instructions to Mr Kennedy to not send a draft to the deceased, on the evidence, is somewhat inexplicable.

Also, it cannot be forgotten that the 2007 Will was not actually prepared by Mr Kennedy at his meeting in May 2007. Thus, the precise terms of the 2007 Will, as drafted, could not have been discussed on the occasion instructions were given in May 2007. This fact necessitates ensuring, when the 2007 Will had been drafted, and was to be executed, that its contents were known to, and understood by, the deceased. It also requires a consideration, by the court, of both the deceased’s testamentary capacity, and his knowledge and approval, of the contents of the 2007 Will, as drafted, when it was executed in October 2007.

There was a gap of about 5 months between the date the deceased gave instructions to Mr Kennedy and the date the deceased attended the office of the Public Trustee to execute the 2007 Will. There is no evidence of what prompted the deceased, then, to go to the office of the Public Trustee. Nor is there any evidence that he had been reminded by anyone of the fact that he had not signed the Will following his meeting with Mr Kennedy, or that he should go to the office of the Public Trustee to do so. (The Progress Notes do not suggest contact between Nurse McDonnell and the deceased in or about October 2007.)

When the deceased did attend the office of the Public Trustee in October 2007, it is clear that he was oriented in place and person. He appears to have known that he had given instructions for a Will to a representative of the Public Trustee and that a Will would have been prepared and be available for his consideration. He also specified the reason why he was at the office of the Public Trustee, namely to sign that Will.

Of course, during his attendance at the office of the Public Trustee, following being handed the original, and after being given the opportunity to do so, on his own, the deceased did say to Mr Mohammed that he read the 2007 Will. However, there is no evidence of either attesting witness observing him doing so or how long it took him to do so.

The lack of any examination of, or explanation to, the deceased, about the 2007 Will by Mr Mohammed, is made more significant when it is remembered that he did not take instructions for, or prepare, the 2007 Will. Nor had he ever met the deceased previously. Taken with the fact that Mr Mohammed did not consider the Will Information Form, he could not have known anything about the deceased. (Even if he had considered that document, the reference to the deceased’s ability to read and understand English was left incomplete.)

Clearly, Mr Mohammed assumed that the deceased could read. Without more, that assumption, without any particular basis, might have been a powerful factor in determining the result of the case. However, Robert’s evidence of his belief that the deceased had the ability to read the lapsing notice, and be able to “deal with” it, makes the fact that no person read the 2007 Will to the deceased, of less significance.

But, even assuming that there was a legitimate basis for the assumption, apparently made by Mr Mohammed, that the deceased could read the 2007 Will, it was much bolder to assume that he was capable of understanding the legal terminology in the 2007 Will and all of its provisions without any real questioning of the deceased.

An affirmative response by the deceased, after the original of the 2007 Will was provided to him, to the question posed by Mr Mohammed “Are you satisfied with the Will?” or some similar type of question, is hardly an adequate reflection of the deceased’s understanding of its contents.

I note that there is no evidence that the deceased stated his understanding about the terms of the 2007 Will, or that he asked any questions in respect thereof in his conversation with Mr Mohammed.

It is to be remembered that the 2007 Will contained material other than the mere dispositive gift of all his property to Tomasz and Benjamin. In this regard, whilst it was submitted by the Defendants that the dispositive provision of the estate in Clause 3 of the 2007 Will accorded with the deceased’s instructions as recorded in the Will Information Form (Para 127 of opening submissions dated 30 April 2015), I should note, in passing, that the terms of the dispositive clause in the Will might be considered to be subtly different from the instructions recorded therein. The Will Instruction Form refers to the estate being divided “Equally b/w son Thomas and g/son Ben, Ben till 21 years. No further substitute at this stage”, whilst the 2007 Will provides for the estate to be given to “the following people who survive me and reach the age of 21 years of age” and then identifies Tomasz and Benjamin. (I do not place any reliance on this subtle difference if there is one.)

In the closing submissions of the Defendants, it was submitted that a number of the clauses of the Will, as drafted, were not discussed by Mr Kennedy with the deceased or they were not the subject of the deceased’s instructions. For example, Clause 4.2 of the 2007 Will directed that income earned on the estate should be paid to (in effect) Benjamin after he had reached 18 years of age (inconsistently with the instruction for the gift on an equal share of the estate to Benjamin to pass to him at the age of 21 years). Clause 5 of the 2007 Will contained a provision for dealing with any liability for Capital Gains Tax. Clause 6 provided that estate liabilities included all expenses incurred by the NSW T & G in administering the estate, or charges made for doing the work.

It was submitted that had the topic of Capital Gains Tax, or income tax, been discussed with the deceased, he would have had difficulty understanding the concepts bearing in mind his difficulties with his own taxation affairs.

There is no specific evidence that any of these Clauses was the subject of discussions with, or instructions from, the deceased, and they were not recorded in the Will Information Form. There is no specific evidence that the effect of each had been explained to the deceased. Had they been explained, and had there been discussion, the deceased’s capacity, or lack thereof, to understand each might have been elicited. It was not. Thus, the 2007 Will prepared by Mr Kennedy contained a number of clauses, even though the only specific instructions from the deceased appear to have been simply to leave everything to Tomasz and Benjamin.

Furthermore, there was evidence of the deceased’s frugal nature and the spartan existence in which he was, and had been, living. There was evidence from Nurse McDonnell that the deceased refused to immediately appoint the Public Trustee as his Attorney because of the costs. This, and other evidence about the deceased’s personality in regard to spending money, does suggest that it would have been somewhat out of character for him to nominate the NSW T & G as the executor in circumstances where it would be charging fees for services provided, and would also be entitled to seek executor’s commission.

I do not think that the evidence of Nurse McDonnell that the deceased had questioned Mr Kennedy about costs and commission really goes far enough since there is no precise evidence about what had been discussed, or whether it was in the context of the role of the Public Trustee as executor or as an Attorney.

Thus, in my view, some further discussion with the deceased would have been required, after the 2007 Will was prepared, and before its execution by the deceased, to ensure that he was capable of understanding all of the clauses in the 2007 Will and that he knew and approved of each.

As has been stated, there is no evidence that the Clauses of the Will were discussed by Mr Mohammed at the time the deceased executed the 2007 Will. The evidence is clear that he did not do so. He made no attempt, even in a perfunctory way, to satisfy himself of the deceased’s testamentary capacity, or his knowledge and approval of the contents of the 2007 Will in October 2007. Accordingly, all that the court is left with is the deceased’s statement that he had read the 2007 Will and was “satisfied” with it.

I have earlier referred to the statements in Nicholson v Knaggs, by Vickery J, at [97], to the effect that it needs to be shown that the deceased had the capacity to understand the practical effect of the central clauses in the Will, including the dispositions of property made and the implications for the estate of the appointment of those who are to administer it. At [664], his Honour recommended a “considered and appropriately structured interview with the testatrix”, having emphasised, at [387], 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’”. I respectfully agree.

Mr Mohammed asked no questions in an effort to satisfy himself of the capacity of the deceased to recall what property he had, what family the deceased had, or what claims, other than those of Tomasz and Benjamin, there might have been on the deceased’s bounty. Mr Mohammed simply accepted the deceased’s statement.

In this regard, the evidence of Dr Lye relating to the deceased being able to understand the issue of a Power of Attorney if he was instructed about it, and if it was clarified for him, does not assist the NSW T & G, since there is no evidence of any explanation given to the deceased of the terms of the 2007 Will. Mr Mohammed did not provide any advice about the 2007 Will and did not explain, or clarify, any of its terms to the deceased before its execution by him. This also is important bearing in mind the deceased’s reduced capacity for information processing identified by Dr Lye.

Furthermore, bearing in mind the concern that the deceased had expressed to Nurse McDonnell about his ability to “trust” the Public Trustee, the appointment of the Public Trustee in the 2007 Will, is difficult to explain. In the circumstances of this case, more is required than merely establishing that the deceased executed the Will in the presence of two witnesses after he said that he was “satisfied” with it.

There is evidence, which I accept, that following its execution, Mr Mohammed provided the deceased with a copy of the executed 2007 Will. However, it is clear that no person read the Will to the deceased or explained its contents to him at the time of its execution. There is no evidence that any person did so at any time thereafter.

All the matters, to which I have referred, involving Mr Kennedy, and then Mr Mohammed, do suggest that there were some failures, and some irregularities, of ordinary legal procedures, that are common when taking instructions for, and then having, a Will executed.

Yet, I do not consider that the 2007 Will necessarily demonstrates any irrationality on the part of the deceased. He provided reasons, in August 2007, to Nathalie for omitting each of his children. Other evidence reveals the nature of his relationship with those children. It seems clear that he was closest to his son, Tomasz, and his grandchild, Benjamin.

I have also considered the omission of all of the deceased’s other children and to a lesser extent, his grandchildren, in the 2007 Will. Interestingly, senior counsel for the Defendants did not suggest that the 2007 Will was irrational. (In fact, it was not seriously suggested that the deceased could not remember his children.) Undoubtedly, this was a deliberate omission bearing in mind that a determination of the question whether the 2007 Will was irrational would depend upon the deceased’s personality, his relationship with the named beneficiaries, his relationship with others who had a claim on his bounty and what he believed to be the circumstances of each of them.

More importantly, I have borne in mind, that the 2007 Will effected a substantial change to the deceased’s long-standing (since 1988) testamentary intentions, so as to exclude four of his children, in respect of at least some of whom he might have been expected to make provision. Although it appears that the deceased had considered making Benjamin a beneficiary for some time before the instructions for the 2007 Will were given, the significant change to exclude all of the Defendants appears to have been a relatively abrupt one when compared with the long held testamentary intentions revealed by the 1988 document and then by the 1994 document.

There is some evidence, from Nathalie, of the reasons given by the deceased, in about August 2007, for altering his long held testamentary intention to divide his estate equally between his five children. That explanation was in the context of seeking advice relating to the transfer of the Wife’s property. Yet, what the deceased said to her does provide some evidence of his capacity to consider the competing claims upon his bounty. However, as stated, there is no evidence that the deceased had a factual basis for expressing any view about the financial circumstances of each of his children in August 2007. Furthermore, on neither of the occasions that he saw, and spoke to, an officer of the NSW T & G was the deceased’s attention drawn to the existence of his other children, or grandchildren, and to whether any had a legitimate claim upon his bounty.

Despite the protestations to the contrary, I am not satisfied that each of the Defendants had a particularly close relationship with the deceased. (In the case of Lech, he and the deceased were clearly estranged for about 30 years.) Overall, the evidence suggests that following the separation of the deceased and Genowefa, the children supported her, rather than the deceased, and that each was closer to her than to the deceased.

I should mention that Dr Orr made clear that the deceased did not make any delusional, or unusual, statements about his family and that there did not seem to be any psychosis or unusual beliefs in terms of his family. I also refer to the evidence of Dr Orr that “from the first time that I saw him he had indicated that he didn’t feel close to his family and there was one son that mainly did his, bringing him backwards and forwards or assisting him”. Thus, the nature of his relationship with each of the Defendants may also have been a relevant consideration in making the 2007 Will.

It was submitted by the NSW T & G that the deceased’s reason for excluding the Defendants related to him believing that his children (presumably, other than Tomasz), were endeavouring to change the title to the Wife’s property (with, or without, his knowledge). It was also submitted that the deceased’s relationship with the Defendants was a contributing factor for his decision.

However, if this reason provided was correct, it demonstrates that the deceased was unable to understand that Tomasz would benefit, in precisely the same way as the other children, from the lapsing of the caveat and the sale of the Wife’s property. This inability may have been caused by impairment of cognition, being his information processing capacity, or by the deterioration of his mental flexibility.

That the deceased was informed that Tomasz was purchasing the Wife’s property prior to executing the 2007 Will, is also relevant. The deceased does not appear to have been capable of understanding this circumstance, since he continued to assert, even to Nathalie, that he retained an interest in the Wife’s property and that he retained a belief that he could, somehow, reverse what had occurred.

These matters raise the question, when the evidence concerning the Wife’s property is considered, whether the deceased’s “cognitive impairment, being mental rigidity, which is a reduced capacity for flexible thought, or an inability to shift freely from one idea to the next”, was a “disorder of the mind” which “prevented the exercise of his natural faculties”. That he had difficulties with flexible thinking, or shifting loads of thought, which some might describe as inflexible thinking, is clear from the evidence of Dr Lye, albeit that she described them as “only mild impairments”. They, too, lead me to conclude that I cannot be satisfied that the deceased’s mind was “free to act in a natural, regular, and ordinary manner”: Will of Wilson [1898] VicLawRp 39; (1897) 23 VLR 197, per Hood J, at 199.

Furthermore, if, as I have found, Robert only served the lapsing notice, none of the children’s names, other than Robert’s, was on that document.

This basis of altering his testamentary intentions also raises a doubt about the deceased’s capacity to reflect upon the claims of the Defendants who, by nature, were persons who could be supposed to have claims on the deceased’s bounty, and to have the ability to evaluate and discriminate between the respective strengths of those claims.

In this regard, I make clear that any unfairness suggested by the dispositions in the 2007 Will is not directly in issue. The dispositions become relevant only for the light they shed on the deceased’s capacity to understand the claims to which he ought to have given effect when making the testamentary dispositions.

In addition, as stated, a testator might make a valid will disinheriting some of his children out of capricious, frivolous, mean, or even bad, motives. The function of the court is not to substitute its own view of what the deceased should have done. Nor does the court necessarily need to look for a justification for the change in the deceased’s testamentary intentions, or inquire why he disinherited his other children and grandchildren. An irrational, unjust, unfair, vindictive or even perverse, Will must be upheld if the testator had the capacity to make a will.

As Gleeson CJ said in Easter v Griffith, at 290, “[t]he 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.”

Whilst I am satisfied that the deceased, in May 2007, only suffered mild cognitive impairment, I cannot be satisfied, on the totality of the evidence, of his testamentary capacity at the time he gave instructions for, or at the time he executed, the 2007 Will. This conclusion makes it unnecessary to determine whether the NSW T & G, as propounder of the 2007 Will, has affirmatively established that the deceased knew and approved the contents of that Will.

However, in case I am wrong on the question of testamentary capacity, it is prudent to consider the latter question.

I cannot be satisfied that the deceased knew and approved of the terms of the 2007 Will. In particular, the evidence, overall, does not able me to be affirmatively satisfied that the deceased was capable of understanding the practical effect of nominating the NSW T & G as his executor and trustee, particularly where there was a real possibility that it would be required to act as trustee under the terms of the 2007 Will for some years, or that the deceased was capable of understanding other clauses of the 2007 Will, the substance of which do not appear to have been discussed with him. In reaching this conclusion, I have not forgotten that the deceased signed the 2007 Will.

That the deceased was able to tell Ms Scarlett of some of the terms of the 2007 Will, in August 2009, is an important consideration in revealing his understanding, and his memory, of some of its terms, at that time. But, even though he might have known and approved of the identity of his two beneficiaries, I am not satisfied that he knew and approved of the whole of contents of the 2007 Will. (In this regard, I must also weigh what he had said to Dr Unsen, in May 2008, about having left his estate to his five children.)

In particular, I cannot be satisfied, after a consideration of the whole of the evidence, that all of the terms of the 2007 Will were discussed with, and explained to, the deceased either before or after it was prepared to ensure that he knew and approved of all those terms. Again, it is relevant to note, that he was an elderly testator, with mild impaired cognition, whose condition was deteriorating, and that no person read through the 2007 Will after it was prepared, or explained its contents to him, or asked if it contained his instructions.

I cannot be satisfied that the procedures that Mr Kennedy and Mr Mohammed adopted before the deceased signed the 2007 Will led to him knowing and approving its contents.

It follows that there cannot be a grant of Probate in solemn form of the copy of that Will and that there should be a grant of Probate of the 1994 document. The matter may be referred to the Registrar to complete the grant.

In the circumstances, it is unnecessary for me to deal with the family provision proceedings and in accordance with the view of the parties, those proceedings should be dismissed. I am prepared to make that order.

For the assistance of the parties, on the issue of the burden of costs, I mention that this case is one in which there appears to have been a real, and legitimate, question whether the 2007 Will was the last valid Will of the deceased, in which the facts did not all point in the same direction.

It must be remembered, also, that probate litigation is not entirely between parties, because they did not make the Will and the Court is required to determine whether a document of somebody who is dead is a valid testamentary instrument. There is a public interest in ensuring that the matter is properly proved: Tu v Tu; Estate of Tu.

In relation to the family provision case, the evidence read on that case has been read in the probate proceedings also. I mention, again, the failure to disclose fully and accurately the financial circumstances of each of the Plaintiffs in the proceedings which was only remedied during the course of the hearing.

I shall give the parties the opportunity to consider the form of the orders that should be made, and also to consider the question of costs. I shall stand the matter over to a date convenient to the parties and to the court. In the event that agreed Short Minutes of Order reflecting these reasons, and the question of costs, is resolved between the parties, I shall make orders in Chambers.

I direct the parties to deliver to my Chambers, within 7 days, an agreed form of Short Minutes of Order. If that proves impossible to achieve, then competing forms of Short Minutes of Order should be provided within the same time. I shall deal with the question of costs, as a separate issue, unless agreement is reached.