Ballam & Ors v Ferro & Anor

In their Summons filed on 2 July 2021, the three Plaintiffs, Maree-Marcelle Ballam, Claudia Puglia and Benjamin Puglia, each of whom is a grandchild of Rosario Maiorana (the deceased), sought a family provision order under Ch 3 of the Succession Act 2006 (NSW) (the Act). Their mother, Vincenza Puglia, a child of the deceased, predeceased him, having died in September 2003.

The Defendants named in the Summons are Carmelina Giacomina Ferro and Daniela Loredana Cantale, each of whom is a child of the deceased and his wife, Maria, and a sibling of Vincenza. Each is, therefore, a maternal aunt of the Plaintiffs.

A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Relevantly, the Act applies in respect of the estate or notional estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009.

Regrettably, the matter did not continue in this straightforward way. Indeed, the death of the deceased appears to have unleashed a bitter feud between the grandchildren on the one side, and their aunts, on the other. The proceedings ended up being far more complicated, and costly, than they needed to have been, particularly, although not exclusively, due to several matters being raised, on behalf of the Plaintiffs, very late in the proceedings.

For the sake of convenience and clarity, and to avoid confusion, in these reasons, where appropriate, I shall refer to the parties, jointly, as the Plaintiffs and the Defendants, respectively, or shall, otherwise, adopt the given name of the party. In relation to others, after introduction I shall refer to her, or him, by her, or his, given name. No undue familiarity is intended.

The hearing began on 31 May 2022 and continued on 1, 2 and 3 June 2022. Mr L J Ellison SC, instructed by Mr J J Buchanan, solicitor, appeared for the Plaintiffs. Mr T Alexis SC, with Mr S Spiers of counsel, instructed by Mr N A Di Girolamo, solicitor, appeared for the Defendants.

One reason why judgment has been somewhat delayed is because, on 5 August 2022, at my request, my Associate sent an email, in the following terms, to the legal practitioners for each of the parties:

By email sent on Monday, 8 August 2022, the Plaintiffs’ solicitors responded to my Associate in the following terms:

On 10 August 2022, the Defendants’ solicitors sent an email to my Associate attaching written submissions of counsel. I will return to these submissions later in these reasons.

The deceased died on 20 June 2020. Maria predeceased him, having died on 2 December 2018. The deceased did not remarry, or enter into a de facto relationship, after the death of Maria.

As will be read, the deceased died leaving property in New South Wales. At the time of his death, the deceased’s habitual residence, and his domicile, was New South Wales.

On 19 August 2020, the Defendants caused to be published a Notice of Intended Application for Probate of the 2012 Will.

On 14 December 2020, Maree-Marcelle filed a general caveat against the grant of probate in the deceased’s estate without prior notice to her. That type of caveat is one filed under Supreme Court Rules 1970 (NSW) Pt 78 r 66: Kyros v Stavrakis [2009] NSWSC 163 at [12] (White J). It is the appropriate form of caveat to raise a ground of invalidity of a will, other than because of a want of proper execution: Robertson v Barker [2021] NSWSC 1682 at [5]. Also see Leslie G Handler and Richard Neal, Mason and Handler Succession Law and Practice NSW (LexisNexis Butterworths) at [1677.3].

By Cross-Claim filed on 7 November 2021, the Defendants sought an order that probate, in solemn form, of a handwritten Will dated 19 December 2012 be granted to them as the substitute executors named in that Will. The original Will was deposited with the Court and remains in the Court file. At the commencement of the hearing, it was marked, without objection, as Ex A.

In the alternative, to ensure that a grant of administration would be made if the 2012 Will was found not to be the last valid Will of the deceased, the Defendants, as the substituted executors named therein, sought to propound a Will made by the deceased on 7 February 2005. Their primary case, however, was that it had been revoked by the 2012 Will: see, s 11(1)(c) of the Act. The original of this Will, also, was deposited with the Court. It was marked, without objection, as Ex B at the commencement of the hearing.

The Defendants also sought consequential relief, including an order that the Plaintiffs pay the Defendants’ costs of the Cross-Claim.

I shall refer to Ex A as “the 2012 Will” without any prejudgment and Ex B as “the 2005 Will”.

In the Defence to the Cross-Claim filed on 15 November 2021, the Plaintiffs did not admit the validity of the 2012 Will. The basis on which they sought to impugn the validity of the 2012 Will was not pleaded expressly. In fact, they did not seek, then, to assert a positive case of its invalidity, by advancing an allegation that the deceased lacked testamentary capacity, or that he did not know and approve of the 2012 Will, because, as stated by their senior counsel, he “took the view that it wasn’t proper to raise those matters without a sufficient evidentiary basis”: Tcpt, 3 May 2022, p 3(20-21). Nor was a case of undue influence, in the Probate sense, advanced.

Rather, the Plaintiffs put the Defendants to proof of some of the allegations asserted in the Cross-Claim including that the 2012 Will had been duly executed. (There is, of course, a difference between not admitting, or denying, due execution, and affirmatively alleging that the deceased’s signature on the 2012 Will was not authentic.) There is no doubt, however, that the Plaintiffs were actively pursuing a defence of the Cross-Claim and opposing the grant of Probate of the 2012 Will to the Defendants.

Subsequently, in an amended Defence to the first Cross-Claim, filed on 6 April 2022, the Plaintiffs asserted that the deceased lacked testamentary capacity when he made, and that he did not know and approve of the contents of, the 2012 Will. The particulars of the allegations provided were that “the deceased suffered cognitive impairment” and “the deceased was suffering from developing dementia of the Alzheimer’s type”. In doing so, they advanced a positive case of the invalidity of the 2012 Will at this time.

Whilst it will be necessary to return to the substance of the claims made, senior counsel for each of the parties agreed that the only living attesting witness to the deceased’s signature on the 2012 Will is Father Onesimus Kamau Kariba, a priest ordained in the Roman Catholic Church. He is the only person who has direct knowledge of the circumstances in which the 2012 Will was prepared, and executed by the deceased, and the only person who could testify to those circumstances. He had written out the 2012 Will, upon instructions from the deceased, whilst the deceased and Maria were living in his Parish in Poggioreale, Trapani, a small town in western Sicily, Italy.

Senior counsel for the Plaintiffs described Father Kariba as an “amanuensis” (a person whose job is to write down what another person says or to copy what another person has written) or a “scribe”: Tcpt, 3 May 2022, p 4(4).

At the date of the hearing, Father Kariba was working at a mission in Kenya and was not available to attend the hearing in person. He swore one affidavit in the proceedings that was read, and, without objection, he gave his oral evidence, including in cross-examination, remotely. I shall return to his evidence later in these reasons.

The Plaintiffs accepted that no inference should be drawn from the failure to call evidence from the other attesting witness. There was no dispute that Professor Gaetano Zummo, the second attesting witness to the deceased’s signature on the 2012 Will, had predeceased the deceased, and that he had not sworn, or affirmed, any affidavit as to the circumstances in which the 2012 Will was prepared and executed.

Father Kariba gave evidence, orally, about Professor Zummo’s role in the preparation, and execution, of the 2012 Will.

To digress, briefly, it should be mentioned that Maria made a Will, also, on 19 December 2012, her signature on which was also witnessed by Father Kariba and Professor Zummo. Probate of that Will was granted, but her estate has not been administered.

The parties agreed that it would be necessary to determine the Cross-Claim first, and that was the way that the hearing proceeded. Potentially, there were difficulties, to which I shall refer, caused as a result of matters raised by the Plaintiffs’ legal representatives, which meant, depending upon the result of the case, that the case would need to be adjourned part heard.

Following the delivery of these reasons, it will not be necessary to adjourn the proceedings, other than to determine how the costs of the proceedings should be borne if the parties are unable to reach agreement.

In the probate part of the proceedings, the central questions that needed to be determined, and my conclusions, are:

Prior to the commencement of the hearing, senior counsel for the Plaintiffs acknowledged that, in the event the 2005 Will was found to be the last valid Will of the deceased, they would not proceed with the claims for a family provision order. However, in submissions in reply, at 4:15 p.m. on the last day of the hearing, senior counsel informed the Court that this admission was sought to be withdrawn. I shall refer to what occurred thereafter, later in these reasons.

In relation to the family provision proceedings, at the time the application was made, administration of the deceased’s estate had not been granted. It is clear that a grant of administration is not required at that time. Section 58(1) of the Act specifically provides that an application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted (my emphasis). There is a note to s 58(1) that administration may be granted under s 91 for the purposes only of permitting the application concerned to be dealt with, whether or not the deceased person left property in New South Wales.

As Probate will be granted, as a result of the determination of the Cross-Claim, and before any orders are made in respect of the claims for a family provision order, nothing more need be said about this aspect.

As the deceased dealt with all of his estate in the 2012 Will (since that Will is found to be his last valid Will), there is no scope for the operation of the rules of intestacy, with the result that it is only necessary, hereafter, to refer to the 2012 Will of the deceased (in dealing with the claim of each Plaintiff for a family provision order).

There was no dispute that the Plaintiffs’ Summons was not filed within the time prescribed by the Act (that is within 12 months after the date of the death of the deceased): s 58(2) of the Act. Because it was filed only a short time (11 or 12 days) outside the prescribed period, the Defendants accepted that, if an order for provision were made for any of the Plaintiffs, the parties would consent to the application being made out of time.

A family provision order may be made in relation to the estate of a deceased person: s 63(1)). An order may be made in relation to property that is not part of the deceased’s estate, but which is designated as “notional estate” of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. “Notional estate” of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. “Notional estate order” means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person’s rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

There is no property that could be designated as notional estate of the deceased. It follows that it is only necessary to refer to the estate of the deceased.

Section 57(1) of the Act provides that “eligible persons” may apply to the Court for a family provision order in respect of the estate of a deceased person. It is the precondition of eligibility that must be satisfied for the making of a family provision order.

The only category of eligibility relied upon by the Plaintiffs is s 57(1)(e) of the Act, namely, that each Plaintiff is a person who was, at any particular time, wholly or partly dependent on the deceased, and who is a grandchild of the deceased.

Whilst there was no dispute that each Plaintiff is a grandchild of the deceased, there was a substantial dispute that each was wholly, or partly, dependent on him.

In the case of a person who is, relevantly, an eligible person by reason only of sub-paragraph (e) of the definition of "eligible person" in s 57, the Court must also be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application: s 59(1)(b) of the Act.

The Act does not specify the “factors which warrant the making of the application” and as Pembroke J noted, in Wilcox v Wilcox [2012] NSWSC 1138 at [16], “[n]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement”.

However, it is clear that the provision requires the eligible person to be someone who would be a natural object of the deceased’s testamentary recognition: Re Fulop deceased; Fulop v Public Trustee; Bide v Public Trustee (1987) 8 NSWLR 679 at 681 (McLelland J); Lodin v Lodin (2017) 16 ASTLR 576; [2017] NSWCA 327 at [8]-[10] (White JA), [106]-[107], [114]-[117] (Sackville AJA); Khadarou v Antarakis [2022] NSWCA 99 at [9] (White JA, with whom Kirk JA and Basten AJA agreed).

Counsel for the Defendants did not make any submissions, in writing, dealing with the question whether there were any such factors. However, during the hearing, in answer to a question from the Bench, senior counsel for the Defendants said that submissions would be made that there were no such factors: Tcpt, 1 June 2022, p 100(22-29).

Subsequently, during final submissions, the Defendants accepted that there were factors warranting the making of the application by each Plaintiff: Tcpt, 2 June 2022, p 289(16-29). The concession was aptly made. I shall refer to these factors later in these reasons.

Assuming that the Court is satisfied that each Plaintiff is an eligible person and that there are factors warranting the making of her, and his, application, the Court must then be satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of each Plaintiff has not been made by the Will of the deceased.

Again, counsel for the Defendants did not deal with this issue in their written submissions, but, later, in answer to another question from the Bench, senior counsel stated that, in the event that each of the necessary findings were made, the Defendants accepted that adequate provision for the proper maintenance, education or advancement in life of each Plaintiff had not been made by the Will of the deceased.

What would then have to be determined is what order for provision, if any, out of the estate of the deceased, did the Court think ought to be made for the maintenance, education or advancement in life of each of them, having regard to the facts known to the Court at the time the order is made: Tcpt, 1 June 2022, p 100(31-49).

The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though she, or he, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased’s Will and her, or his, competing claim, respectively, as a chosen object of the deceased’s testamentary bounty. In the family provision proceedings, it will be necessary to refer to the provision made for each Defendant.

Neither of the Defendants gave evidence of her financial and material circumstances. In those circumstances, the Court may assume that each does not wish her financial resources and financial needs, both present and future, to be taken into account: Matthews v Wear [2011] NSWSC 1145 at [45] (Macready AsJ). The Court is also entitled to infer that as a beneficiary, she, respectively, has adequate resources upon which to live and that she does not wish to advance a competing financial claim upon the bounty of the deceased: Anderson v Teboneras [1990] VicRp 47; [1990] VR 527 at 535-536 (Ormiston J); Sammut v Kleemann [2012] NSWSC 1030 at [135]-[139]; Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [94] (Meagher JA); Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107 at [23] (Basten JA). See also Blendell v Byrne [2019] NSWSC 583 at [113]-[118] and on appeal, Blendell v Blendell [2020] NSWCA 154 at [17] and [42] (Meagher JA, Gleeson JA agreeing).

Yet, neither of the Defendants, as a beneficiary, has to prove an entitlement to the provision made for her, or justify, otherwise, such provision. Nor does each have to explain the decision by the deceased to make the provision that he did for each in the Will: Sun v Chapman [2022] NSWCA 132 at [169] (White JA). His Honour referred to what I had written in Page v Hull-Moody [2020] NSWSC 411 at [171].

As will be read, the question of how the costs of the proceedings should be borne was not the subject of agreement between the parties.

In the family provision part of the proceedings, if each of the Plaintiffs is not an eligible person, none of the other questions earlier referred to, other than costs, need to be determined. Thus, the question that needs to be determined, and my conclusion, is:

In their proper context, it is next necessary to provide an overview of the factual background which has led to the disputes. As with all probate and family provision disputes, a proper understanding of the events is critical. I am satisfied that the following facts have been established.

The deceased was born in December 1931. He was about 81 years old when he made the 2012 Will.

The deceased married Maria on a date not disclosed in the evidence. There were three children of their marriage, being Vincenza, who was born in March 1957; Carmelina, who was born in February 1962 and Daniela, who was born in January 1969.

The Plaintiffs are the children of Vincenza and her husband, Mario. Claudia was born in August 1979 and is now 43 years old; Maree-Marcelle was born in April 1982 and is now 40 years old; Benjamin was born in May 1985 and is now 37 years old.

In July 1985, the deceased and Maria provided a personal guarantee to the ANZ Bank, in relation to a loan for $70,000, obtained by a company, Deemgrate Pty Limited (Deemgrate), controlled by the Plaintiffs’ parents. The loan was secured over the deceased’s and Maria’s property at Annandale (No 57). About a year after the loan was obtained, the deceased was informed that the loan had increased to $110,000. The deceased then went to the Commonwealth Bank to obtain a loan in order to pay out the loan that had been guaranteed from the ANZ Bank to Deemgrate.

Carmelina gave uncontested evidence of a note, which had been dictated by the deceased, and written by Maria. The note was signed by the deceased and stated:

On 28 April 1988, there was an incident when a tow truck attempted to retrieve the deceased's blue Laser car due to Deemgrate's debt, which, by then, had increased to $140,000. The deceased was said to have been embarrassed and humiliated by this incident.

The amount, ultimately, repaid by the deceased and Maria, pursuant to the guarantee, was not the subject of evidence. Thereafter, there was disharmony between the Plaintiffs’ father and the deceased. Indeed, the deceased did not wish the Plaintiffs to continue her, and his, relationship with Mario.

The deceased and Maria retired from paid work in about 1989. Between about August 1989 and March 2010, they travelled, extensively, together, spending less than 6 months of the year in Sydney; when they were in Sydney, Carmelina would see them almost daily; when they were not in Sydney, she would call them at least twice per week.

During this period, the deceased had some limited contact with the Plaintiffs. He did not attend any of the school events in which any of them was involved; there were no "sleep overs" by the Plaintiffs at the home of the deceased and Maria; and the Plaintiffs did not attend social events, shop with the deceased, or go on holidays, or otherwise travel with, the deceased and Maria.

There was no evidence that any of the Plaintiffs came, ordinarily, to rely upon the deceased for her, or his, financial, or emotional, needs during their childhood.

In about August 1990, the deceased and Maria purchased an investment property in Craig Avenue, Moorebank (the Moorebank Property). The Plaintiffs and their parents moved there shortly thereafter. They paid rent to the deceased and Maria whilst the family lived there.

Following the separation of their parents in about 2001 or 2002, the deceased and Maria permitted Vincenza and the Plaintiffs to continue to live in the Moorebank property. However, the deceased and Maria leased the Moorebank property to what was described as the Hume Community Housing Association, which, in turn, sub-leased it to Vincenza. The Plaintiffs lived in the Moorebank property, with Vincenza, until about September 2002.

Perhaps, because they were living with, and were dependent upon, their own parents, and then with, and upon, Vincenza, it was not submitted that the Plaintiffs were dependent, wholly, or partly, upon the deceased during the period between 1990 and 2002.

On 13 February 1997, the deceased and Maria appointed Carmelina as the Attorney pursuant to a General Enduring Power of Attorney, which was registered in the Office of the Registrar General in New South Wales. On 21 February 2017, it was also registered pursuant to the Land Title Act 1994 (Qld) and the Land Act 1994 (Qld) at the Queensland Titles Registry. Carmelina gave evidence that she acted in accordance with their directions and instructions when she executed documents as their Attorney.

Vincenza, Maree-Marcelle and Claudia, moved to another property (No 57) owned by the deceased and Maria, in September 2002. The deceased insisted that Vincenza pay rent, at the then market rate, which she did, until her death in 2003.

When they first moved into No 57, it consisted of three apartments, with one apartment, on the ground floor, with two bedrooms, known as Unit 1 (which was otherwise leased), and two apartments, on the second floor, each with one bedroom, known as Units 2 and 3, respectively. Units 2 and 3, together, were equivalent, in size, to Unit 1.

Shortly after they moved to No 57, Benjamin moved in, and, at this time, the wall between Unit 2 and Unit 3 was knocked down, in order to accommodate him.

On 15 November 2002, Vincenza and Maree-Marcelle signed a residential tenancy agreement for Units 2 and 3 of No 57. In the tenancy agreement, the deceased and Maria were described as the landlords, and the rent to be paid was $300 per week, or $150 per tenant. Thus, notwithstanding the family relationship, the deceased and Maria, from the outset, were putting the occupation of No 57 on a formal footing. The formal, commercial, nature of the relationship was also demonstrated by the fact that the residential tenancy agreement was managed by a real estate agency.

There was no evidence of any subsequent leases entered into by the Plaintiffs, although there was evidence that Benjamin had received a notice to terminate tenancy agreement in January 2014, an issue to which I shall return. Despite the lack of evidence, there was no dispute that they, or whichever one, or other, of them occupied No 57, paid rent to the deceased and Maria, except for a short period to which I shall refer.

The deceased and Maria planned a trip to Italy, and then to the USA, in 2010. After a few months in Italy, they decided to abandon their trip to the USA, and they remained living in Italy. They purchased a property in Triscina, Sicily, in 2011. At her parents’ request, Carmelina lent them $40,000 towards the purchase of the Triscina property.

Carmelina travelled to Sicily in early 2012 to visit her parents. She had planned to stay for three months as she was turning 50, and the deceased had turned 80.

The deceased and Maria were invited to the wedding of Maree-Marcelle to, her now ex-husband, James, in England in February 2012. Carmelina, initially, was not invited, a matter that made the deceased extremely angry. He stated that he would not attend the wedding if she was not invited. That decision prompted Maree-Marcelle to invite Carmelina to the wedding, and, ultimately, the three of them attended.

Pursuant to the General Enduring Power of Attorney, Carmelina sold four of the deceased’s and Maria’s properties in February or May 2017. Three of these properties were located in Coolangatta, a coastal suburb on the Gold Coast, Queensland; two were situated at Coolangatta Road, Coolangatta (to which I shall refer to as No 5 and No 6), and one was a property situated at Tweed Street, Coolangatta (the Tweed Street property).

In May 2017, No 57 was sold for $2,200,000. There was some dispute about how the net proceeds of approximately $1,985,000 were applied, and whether any part thereof was used to purchase residential premises in Drummoyne and in Chiswick, which are owned, and occupied, by Carmelina and by Daniela, respectively. Other than the assertion itself, there was no evidence, from the Plaintiffs, to establish the assertion made by them.

In cross-examination, Carmelina, was asked, and she denied that the sale proceeds of No 57 were applied to the purchase of her property in Drummoyne: Tcpt, 2 June 2022, p 236(3-44). Daniela was not asked any questions about using the proceeds of sale to purchase her property.

It is next convenient to refer to the property of the deceased, at the time of his death, in order to better understand the terms of each of the deceased’s two Wills.

On 3 May 2022, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained:

I have taken what follows from the Agreed Schedule, dated 20 May 2022, which was marked, without objection, Ex JS1, and from discussions with senior counsel during the course of the hearing. (I have omitted and shall continue to omit any reference to cents. This will explain any apparent arithmetical miscalculation.)

The property owned by the deceased, at the date of death, included:

I shall return to the nature and value of the deceased’s estate at the date of the Schedule later in these reasons.

There was no dispute that the 2012 Will was made whilst the deceased and Maria were living in Italy.

Section 48(1) of the Act provides:

If the Court, at the conclusion of the hearing, were satisfied that the 2012 Will was executed by the deceased “in a foreign place”, since the deceased died in New South Wales, which, it is accepted, was his domicile after 2016, the 2012 Will is taken to have been properly executed if execution conforms to the internal law in force in New South Wales “either at the time Will was executed or at the time of the testator’s death”.

The 2012 Will was handwritten in capital letters. On the first page, the initials “OKK”, appear in the margin, along with what appear to be four other signatures. On each of the next five pages, only the initials “OKK” appear in the margin. These are the initials of Father Kariba and were written by him on the 2012 Will.

On the last page of the 2012 Will, the following appears:

Then, there appears the name of the deceased adjacent to the words “signature of testor [sic]” and the signature, name and address of each of the two attesting witnesses.

There is no formal attestation clause in the 2012 Will.

(It is not essential for a will to have an attestation clause: s 6(3) of the Act. However, one function of an attestation clause is to satisfy an evidentiary purpose, namely whether there has been compliance with s 6 of the Act. In other words, “the presence of an attestation clause is desirable because it facilitates the grant of probate and will give rise, in the absence of other material circumstances, to a presumption of due execution: Vinnicombe v Butler (1864) 3 Sw & Tr 580”: Scarpuzza v Scarpuzza (2011) 4 ASTLR 244 at 254-256; [2011] WASC 65 at [32]-[37] (E M Heenan J). Although not conclusive, it constitutes prima facie evidence that the formalities have been complied with: G L Certoma, The Law of Succession in New South Wales (4th ed, 2010, Lawbook Co) at 95 [6.80].)

The 2012 Will then provided:

The source of this Clause of the Will was explained by Father Kariba in his evidence. I shall refer to it later in these reasons.

On 7 February 2005, the deceased made a duly executed a Will, in Sydney, New South Wales. It appears from the front page of the Will, that it was prepared by a firm of solicitors in Parramatta. It is typewritten, and bears the signature of the deceased, an attestation clause, and the signature of two witnesses, being Allan Bolster and Keith Wagner, each of whom is described as “Solicitor”.

In that Will, the deceased appointed Maria, as the sole executor, and left the whole of his estate to her. In the event that Maria predeceased him, or failed to survive him for 28 days, the deceased appointed the Defendants as the substitute executors. The 2005 Will then provided:

As earlier stated, there is no dispute about the validity of the 2005 Will (other than its revocation by the 2012 Will).

The Court raised with the parties that there had not been filed an affidavit of one, or other, of the attesting witnesses to the deceased’s signature on the 2005 Will. Following the conclusion of the hearing, on 6 June 2022, the Defendants, without objection, filed an affidavit dated 3 June 2022 of Keith Wagner, an attesting witness to the deceased’s signature on the 2005 Will.

In view of the conclusions to which I have come concerning the validity of the 2012 Will, it is unnecessary to consider this aspect further.

The nature of the estate of the deceased at the date of death is outlined above. Using the estimates as a guide, the gross value of the deceased’s estate, at the date of death was, on the Plaintiffs’ estimates $6,612,500, and on the Defendants’ estimates $4,829,000.

There was no dispute that the deceased’s liabilities at the date of his death included two debts to the National Australia Bank ($248,045 and $175,805), land tax ($34,115), council rates ($31,232), water rates ($20,154), costs for maintenance and repairs due to SCBS Pty Ltd ($108,550), a debt repayable to Carmelina ($40,000) and a reimbursement to Carmelina (for maintenance and repairs) ($37,000). The total of the debts was $694,905.

The assets and liabilities of the deceased at the date of the Schedule were:

Using the above range of estimates as a guide, the gross value of the deceased’s estate, at the date of the Schedule, on the Plaintiffs’ estimates, was $7,067,500, and on the Defendants’ estimates, was $4,829,000.

The nature of the liabilities remained the same, although the total amount of the liabilities had increased to $720,638. (The parties did not provide any estimates for the costs of the sale of any of the properties.)

Using the above range of estimates as a guide, the value of the deceased’s estate, excluding the costs of the proceedings, based upon the Plaintiffs’ estimates, is $6,346,862 and based upon the Defendants’ estimates, is $4,108,363. On either value, it is a reasonably large estate.

Regrettably, the parties were unable to reach agreement on the value of the estate at the date of the hearing.

In relation to the probate and family provision proceedings, the Plaintiffs’ costs, calculated on the ordinary basis, were estimated to be $118,866. Their costs, calculated on the indemnity basis, were estimated to be $130,433. About $41,255 of these costs have been paid by the Plaintiffs. The Defendants’ costs, calculated on the indemnity basis, of the Probate proceedings, were estimated to be $112,000.

(The estimates of costs are likely to have increased because of the work done in respect of the Statement of Claim and the Power of Attorney/Compensation Claim to which reference will be made. The costs estimates do not include costs of that claim.)

On the first day of the hearing, it was noted that the estimates of costs did not differentiate between the costs of the claims made in the Summons (the family provision claims) and the costs of the claims made in the Cross-Claim (the Probate claim).

The legal representatives were requested to discuss the costs because the possibility existed that different costs orders might need to be made. On the second day of the hearing, very sensibly, if I may say, they agreed that one half of the costs should be attributed to the Probate part of the case, and the other half, to the claims for family provision relief: Tcpt, 1 June 2022, p 155(11-13).

Although not specifically referred to in the final affidavit of costs filed, and served, by the solicitor for the Plaintiffs, in written submissions, senior counsel wrote:

(In Oxley v Oxley [2018] NSWSC 91 at [57]-[90] I referred to the need for disclosure, in each of the costs affidavits required by Practice Note SC Eq 7, for the deponent, to refer to any conditional costs agreement entered into, which could have an effect on the costs that a party to the proceedings would have to bear. I shall not refer to what was written, but the case raises an important matter of practice and procedure with which legal practitioners, by now, should be well acquainted.)

There is no suggestion that either the Civil Procedure Act 2005 (NSW) or the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) does not apply in probate proceedings. However, in such proceedings, there are considerations that more readily affect the application of the Civil Procedure Act and the UCPR than in most other forms of litigation. These considerations act as guides to the exercise of discretion, but they are not inflexible. These somewhat unique costs considerations will need to be considered unless the parties are able to reach agreement on the costs of the Probate proceedings. I shall say no more about the principles at this time.

In relation to the family provision proceedings, s 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.

Usually, in calculating the value of the deceased’s estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased’s estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.

As Basten JA (Simpson and Payne JJA agreeing) put it in Chan v Chan (2016) 15 ASTLR 317 at 330; [2016] NSWCA 222 at [54]:

As his Honour had also written, a few years earlier, in Foley v Ellis [2008] NSWCA 288 at [10]:

It has been said, many times, in the context of a claim for a family provision order, that parties should not assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson; Nicholls v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18].

Senior counsel agreed, and both submitted, that the Court should not determine as part of these written reasons, how the costs of the Probate and family provision proceedings should be borne. They submitted that there were documents that might be relevant to how the burden of the costs of the proceedings should be calculated and how they should be borne.

Noting, without deciding, that the estimates for the costs and disbursements are accurate, and assuming that all of the costs will be payable out of the estate, the total amount of the estate out of which an order for provision could be made, is in the order of between $3,877,362 and $6,115,862.

On 18 May 2022, at the time senior counsel for the Plaintiffs delivered written submissions to the Court, he also sent to the Court a copy of a proposed Statement of Claim, which he acknowledged had not been filed.

At that time, no notice of motion seeking leave to file, or serve, a Statement of Claim, or seeking an order that the Plaintiffs’ claims proceed by way of pleadings had been filed. Nor had the matter been raised at the pre-trial directions hearing on 3 May 2022, or otherwise prior thereto.

On 20 May 2022, the Plaintiffs filed a notice of motion in which they sought an order that leave be granted “to file and serve a statement of claim in the form of the statement of claim attached as a schedule to this notice of motion” and an order that the “relief sought in the statement of claim be heard at the hearing commencing on 31 May 2022”.

In support of the notice of motion, the Plaintiffs relied upon an affidavit sworn on 20 May 2022 of the Plaintiffs’ solicitor. In that affidavit, Mr Buchanan annexed some copy documents. He did not provide any reasons why the Plaintiffs had not sought the relief earlier.

(In the cross-examination of the first, and of the second, Plaintiffs, it is clear that each of them was aware of the sale of the properties to which reference was previously made, by Carmelina in 2017, although each may not have known how the proceeds of sale had been disbursed: Tcpt, 1 June 2022, p 148(27-49), 202(14-21).)

Administratively, and urgently, the Court listed the notice of motion on 23 May 2022, and senior counsel for the parties both appeared. Unsurprisingly, Mr Alexis SC, on behalf of the Defendants, objected to the filing of the proposed Statement of Claim in these proceedings. Counsel for the Defendants provided detailed written submissions setting out the reasons for their objection.

In these circumstances, somewhat surprisingly one might think, Mr Ellison SC said that he was not in a position to deal with the written submissions of the Defendants. The legal representatives agreed that the hearing dates should not be vacated.

Senior counsel for the Defendants then stated that if the Plaintiffs filed the proposed Statement of Claim in New South Wales, the Court would be asked to summarily dismiss the Statement of Claim upon the basis that this Court had no jurisdiction to determine the proceedings raised by that Statement of Claim.

Following argument, and in order to permit the legal representatives of the Plaintiffs to consider the merits of the written submissions made on behalf of the Defendants, I considered that the Plaintiffs should not be prevented from filing, and serving, the proposed Statement of Claim in separate proceedings, and that the Defendants should be permitted to file and serve any notice of motion to summarily dismiss those proceedings if they chose to do so. In this way, the hearing dates would not be lost.

The Court then made the following notations and directions:

I shall refer to the proceedings that were then commenced by the Plaintiffs, bearing file number 2022/150470, as “the separate proceedings”.

The Plaintiffs did not disclose whether they intended to adduce further evidence in support of the claims made in the separate proceedings. However, as submitted by counsel for the Defendants in their written submissions, “at the very least, there would have to be evidence of the property (or properties, depending on whether the 2012 Will or the 2005 Will was admitted to probate) at the time of death”.

As also submitted by their counsel, the Defendants “would certainly need time to marshal evidence concerning the sale of the property(s). Preliminary instructions indicate that the property(s) were jointly owned by the deceased and his wife at the time of sale and were heavily mortgaged…”.

There was no dispute, then, that the separate proceedings could not be heard during the 3 days allocated for the hearing of these proceedings. The suggestion was made that any notice of motion, filed by the Defendants, seeking summary dismissal, might be determined, first, at the hearing. If the application were successful, then the Cross-Claim and the family provision claim would be dealt with at the hearing. If it were unsuccessful, then there would need to be a bifurcated hearing, with the Cross-Claim being determined at the hearing, and the family provision claim and the separate proceedings being dealt with at a subsequent hearing, with the costs of the additional hearing being reserved.

Whilst somewhat dispirited about the course taken by the legal representatives of the Plaintiffs in making the claims raised in the separate proceedings so late, there was little choice, bearing in mind s 56 of the Civil Procedure Act, but to follow this course.

The Defendants, on 25 May 2022, filed the notice of motion seeking an order that the separate proceedings be dismissed pursuant to UCPR r 13.4, and s 61 of the Civil Procedure Act, and, in the alternative, that the whole of the Statement of Claim filed on 25 May 2022 be struck out pursuant to UCPR r 14.28. They also sought costs of, and incidental to, the separate proceedings, including the costs of the notice of motion, calculated on the indemnity basis.

(Presumably, the reason for seeking the costs calculated on the indemnity basis, was that the Defendants had provided written submissions to the Court, on 23 May 2022 setting out the bases for the Court’s lack of jurisdiction.)

In support of their notice of motion, the Defendants relied upon an affidavit of Mr Di Girolamo, filed in the Probate and family provision proceedings, in which he set out a summary of the events that had occurred commencing 19 August 2020, the date on which the Defendants had caused to be filed a Notice of Intended Application for Probate of the 2012 Will.

In the Statement of Claim, in broad terms, the Plaintiffs sought an order to extend the time prescribed by s 41(8) of the Succession Act 1981 (Qld), and orders under s 107 of the Powers of Attorney Act 1998 (Qld), that compensation be paid to the Plaintiffs in respect of the sale of three properties, located in Queensland, in 2017, by Carmelina, as the Attorney for the deceased and Maria.

The properties referred to were two properties situated at Coolangatta Road, Coolangatta (to which I have earlier referred as No 5 and No 6) and the Tweed Street property.

As stated, Carmelina sold each of these properties using the registered general enduring Power of Attorney, executed by each of the deceased and Maria, pursuant to s 163B of the Conveyancing Act 1919 (NSW). In relation to No 5, the evidence revealed that it had been purchased by the deceased and Maria in May 2009 and was sold for $401,000. In relation to No 6, the evidence revealed that it had been purchased by the deceased and Maria in May 2009 and was sold for $442,000. In relation to the Tweed Street property, the evidence revealed that it had been purchased by the deceased and Maria in August 2000 and was sold for $330,000.

The Plaintiffs claimed that the sale of each of the Queensland properties resulted in the ademption of the devise of any interest therein to them, respectively, under either the 2012 Will or the 2005 Will.

In the event that the 2012 Will were admitted to Probate, the Plaintiffs’ claim for compensation was limited to the sale of No 5, which property they were to receive under that Will. In the event that the 2005 Will were admitted to Probate, the Plaintiffs’ claim for compensation was in relation to the sale of all three properties, to one-third of the proceeds of sale of which the Plaintiffs were entitled under the 2005 Will.

Initially, in support of the Defendants’ notice of motion for summary dismissal, counsel for the Defendants challenged the jurisdiction of this court. They submitted, amongst other things, that the application for compensation is one that should have been brought in the Supreme Court of Queensland (Powers of Attorney Act s 107(2)).

At the commencement of the hearing, senior counsel for the Defendants accepted that this Court had jurisdiction to hear the matter and stated that bearing in mind the costs and expenses of requiring the Plaintiffs to commence fresh proceedings in Queensland, it would be more expeditious, in time, and cost, to deal with the claims made in the separate proceedings as part of these proceedings.

It was submitted that whilst the Defendants resisted a bifurcated hearing, being one where the Court would determine the Cross-Claim, and go so far as it could, in relation to the Plaintiffs’ Summons, to enable the separate proceedings to be properly prepared, it would be necessary to adjourn part heard, to allow each of the parties to serve any further evidence upon which it was intended to rely, and then continue with the hearing and deal with the separate proceedings.

Naturally, as there would be costs and expenses incurred, the Court asked senior counsel for the Plaintiffs whether they were prepared to pay the costs thrown away by adopting this course. Ultimately, senior counsel for the Plaintiffs responded that the costs should be reserved.

Following the conclusion of the evidence, including documents tendered at the commencement of the hearing (Ex D2 and Ex D3), senior counsel for the Plaintiffs accepted that, in the event that the 2012 Will was the last valid Will of the deceased, there would be no compensation payable, as the whole of the proceeds of sale of No 5 had been used to repay a loan secured on that property, with the result that there was no loss for which the Plaintiffs should be compensated: Tcpt, 2 June 2022, p 253(18-44).

Shortly before the matter was adjourned on 2 June 2022, in submissions in reply, senior counsel for the Plaintiffs informed the Court that the statement that had previously been made that in the event that the 2005 Will was found to be the last valid Will, the Plaintiffs would not seek a family provision order, was sought to be withdrawn.

Apparently, whilst notice of the application to withdraw the admission had been given to the Defendants’ solicitors by letter dated 18 May 2022, it was not raised with the Court at any time previously during the hearing. No explanation was provided for the failure, by the legal representatives of the Plaintiffs, to do so.

Apparently, the application came as a surprise to counsel for the Defendants as senior counsel stated that he would “need to consider and get instructions on whether or not the case would have been conducted in anyway differently had the concession not been made”: Tcpt, 2 June 2022, p 294(45-49).

Having reserved the decision, and in order to see if the application could be resolved between the parties, I adjourned the matter until 2:00 p.m. on 3 June 2022. Shortly before the matter was called, the parties sent to my Chambers a form of Short Minutes of Order in the following terms:

It appeared, then, that if the 2005 Will was found to be the last valid Will of the deceased, the approach of the legal representatives of the Plaintiffs would add to the length of the bifurcated hearing caused by the separate proceedings.

In the circumstances, having heard the submissions of counsel, the Court made the following orders:

Nothing more needs to be done, as I have concluded that the 2012 Will is the last valid Will of the deceased. An order dismissing the separate proceedings will be made.

Each of the parties, as well as a number of other witnesses, were cross-examined. I shall deal firstly with the witnesses who had no interest in the result of the proceedings, I shall then turn to my impressions of each of the parties.

The Defendants relied upon the evidence of Father Kariba, to whom I have already referred, who was closely, but ineffectively, cross-examined. I found him to be a careful, truthful, forthright, witness, who had a clear, and precise, recollection of the events that had occurred on 19 December 2012, the date of the execution of the 2012 Will.

Senior counsel for the Plaintiffs did not submit that Father Kariba was not telling the truth. Even without that concession, I have no hesitation in accepting his evidence, some of which I set out below.

Father Kariba made one affidavit sworn on 2 March 2021. It was 17 paragraphs, spanning three pages. I have taken what follows from the affidavit evidence and from his oral evidence.

Father Kariba stated that he was ordained, in Kenya, as a priest in the Roman Catholic Church in July 2003. He went to Italy in 2004 for his doctoral and post-doctoral studies, the research for which he undertook in Italian. He went to Sicily in 2004 and then to Poggioreale in 2006, where he lived until 2013.

He said that he was fluent in Italian and was reasonably familiar with the Sicilian dialect, having lived in Sicily for six years at that point in time and, whilst there, having conducted religious services in Italian and Sicilian.

He could also speak English as, being a researcher, it was a language that he had used in his studies. It was the language that he had used for primary school, for secondary school, and for his eight years senior training. When he studied for a philosophy degree, and a biology degree, he did so in English as he did when he continued with his research, most of his consultations were done in English. (There was no doubt about his command of language, as he gave his evidence in the English language, without the aid of an interpreter.)

He became well acquainted with the deceased and Maria as they were regular attendees, at Sunday Mass, at the parish at Poggioreale, where he was the Priest. They had also been regular visitors to his home, and he had visited the deceased and Maria at their home “many times”. They would have coffee together at a local cafe. He said that “it was interesting to hear their stories, how they have lived outside Sicily and, and how they have toiled in their lives”: Tcpt, 31 May 2022, p 67(44)-68(9).

He said that when conversing with the deceased, little was said in the English language, their conversations being in Italian and Sicilian. He said that Maria was fluent in English. He was able to understand each of the deceased and Maria well: Tcpt, 31 May 2022, p 68(11-31).

He stated that, a few days before 19 December 2012, the deceased had attended the parish office and had asked him to set a date to attend the deceased’s home, in Poggioreale, to sign a Will of the deceased. He said that the deceased had said to him:

Father Kariba stated that this was the first time he had ever been asked to do this by a parishioner. However, he did not refuse the request, and, on 19 December 2012, he attended the home in which the deceased and Maria lived. He arrived at about 9:00 a.m. and remained there until after lunch, about noon or 1:00 p.m.: Tcpt, 31 May 2022, p 64(3-11); 70(21-33). (The writing of the 2012 Will was completed by about noon and then they had lunch.)

The only persons present, during the whole of the time that Father Kariba was there, were the deceased, Maria, and a neighbour, Professor Gaetano Zummo (a local teacher and poetry writer).

He stated that the deceased dictated “the content of what he wanted” in the 2012 Will and had “called his priest and his professor to help draft the will”.

With the leave of the Court, and without opposition from senior counsel for the Plaintiffs, Father Kariba supplemented his affidavit evidence with some oral evidence in chief. He described, in more detail, how the deceased had dictated his wishes and intentions in Italian, and Sicilian dialect, and how the instructions had been written down in English. He added that the deceased had prepared for the meeting as he had the various pieces of paper on which the details of the different properties to be devised were written in English. He did not know who had written the details on the paper, but he maintained that it was only the deceased who had identified the beneficiary, or beneficiaries, who was, or who were, to receive the relevant property.

In cross-examination, Father Kariba maintained that it was the deceased who had dictated the dispositions that he wished to make in his Will, although he added that, occasionally, Maria would assist, by providing a house number.

He stated that he had written down what the deceased had dictated to him (which included the percentages of the properties and the names of the beneficiaries), on paper, in English, and that he had then copied the addresses of each of the different properties identified in the 2012 Will from “pieces of paper” which were provided to him by the deceased. He gave evidence that “almost every property had its paper, piece of paper”. He had not retained these pieces of paper. The names of the family members were not written on the piece of paper but were dictated by the deceased.

He stated that the deceased had made himself understood with ease; that the deceased made sense, that the deceased told humorous stories of how he came to acquire each property, and other stories involving Maria, when he was listing the various properties that he wished to devise. On occasions, Maria would confirm the spelling of names.

Father Kariba explained that certain phrases, or sentences, that appeared in the 2012 Will, had been provided by Professor Zummo, who, recently, had finished drafting his own Will. His evidence was that Professor Zummo would assist him with the drafting when he needed “an introductory or a conclusive remark”. It had been Professor Zummo who had dictated parts of the introduction, and the part of the Will that referred to the testamentary discretionary trust: Tcpt, 31 May 2022, p 72(11-44). He had done so from memory, using the Italian language.

In his oral evidence, Father Kariba stated that he, Professor Zummo and the deceased would discuss, in the Sicilian dialect, what the deceased wanted to include in his Will. Father Kariba would then write this down on another piece of paper and, once satisfied with the wording, Father Kariba then wrote it out again on the document which was the original 2012 Will: Tcpt, 31 May 2022, p 71(29-32). He explained the process (Tcpt, 31 May 2022, p 71(25-27)):

Father Kariba explained that he adopted this process because (Tcpt, 31 May 2022, p 71(19-20)):

Father Kariba stated that the deceased appeared to understand him when he repeated in the Italian language and in the Sicilian dialect, what he had written down in English in the Will. He said that he had repeated exactly what he had written, “and as it was, it was not done in a hurry, as I was reading each part of, of the will he could give his comments how he obtained this property, how much he suffered before having it, and then we could continue, so I read everything that I had written as his will”: Tcpt, 31 May 2022, p 65(12-18).

He said that he explained the contents of the 2012 Will to the deceased, including that his children could obtain legal advice, stating “I explained the will and where it was necessary for us to understand what we are saying Professor Zummo could chip in”: Tcpt, 31 May 2022, p 79(50)-80(1).

He admitted that he did not read the 2012 Will out to the deceased in the English language, although when he was reading the names of the properties, he had to read them in English. He said that it took “a lot of time” to read the 2012 Will to the deceased in Italian: Tcpt, 31 May 2022, p 75(4).

The deceased had not asked what a testamentary trust was, and that term was not the subject of discussion with Professor Zummo.

When Father Kariba left the deceased and Maria that day, he left the original Will, and the pieces of paper to which reference had been made with them: Tcpt, 31 May 2022, p 71(34)-72(5).

Father Kariba confirmed, in answers to questions from the Bench, that the 2012 Will was signed by the deceased in his presence and in the presence of Professor Zummo, who then each signed the Will in the deceased’s presence. After this, the deceased said he was happy he had now made his final Will and that he was ‘satisfied’ and ‘ready to go’, and saying ‘bring it on’: Affidavit, Father Onesimus Kamau Kariba, 3 February 2022 at pars 12-13; Tcpt, 31 May 2022, p 77(1-23).

Father Kariba was asked questions about the deceased’s capacity. He stated that the deceased did not require assistance from him, or from Maria, to remind him of what he wanted in his Will: Tcpt, 31 May 2022, p 76(39-50). When asked whether the deceased had said, or done, anything to demonstrate that he understood what was in the Will, Father Kariba stated the deceased said to him “now I have put my things in order” and “then he invited me to bring it on … to sign” in Sicilian: Tcpt, 31 May 2022, p 65(25-27); p 77(1-23).

Father Kariba was asked whether the deceased had any difficulty signing the 2012 Will to which he responded (Tcpt, 31 May 2022, p 75(25-28):

It was not suggested to Father Kariba that the deceased had not signed the 2012 Will freely and voluntarily. He believed that the deceased could understand what he was doing: Affidavit, Father Onesimus Kamau Kariba, 3 February 2022 at par 14.

In cross-examination, he stated that the deceased did not need help from Maria “in remembering things” and that “he didn't need that assistance unless we, we wanted to intervene and talk with what he was doing”: Tcpt, 31 May 2022, p 76(43-46). He said it was unnecessary to explain what he had written “because it was his will and I was repeating what he had told me to write down”: Tcpt, 31 May 2022, p 77(31-34). There was no doubt in his mind that the deceased knew what he was doing. He had demonstrated to Father Kariba that he had the capacity to formulate his thoughts, to express them in coherent order, and to understand the effect of what he was doing.

When Father Kariba saw the deceased again, by which time he was at another parish, it was in 2014 or 2015. It was the deceased’s and Maria’s wedding anniversary. He described the deceased as having changed. He said that “I could see that he was transformed, that he was sickening … He was, he was not holding the discussions the way he used to hold the discussions with me. He had - he didn't have that sense of humour that he had before, so about that time Maria told me that his [sic] husband has started having problem with remembering things, forgetting things, and - but we could remember, but we could chat, but I could see he's not the same old Rosario”: Tcpt, 31 May 2022, p 76(19-29).

In answer to the question, “Had you seen any of these problems before this time or was this the first time you'd seen any problems with him?”, he answered “This was the first time”: Tcpt, 31 May 2022, p 76(31-33).

Father Kariba was the only person available with the opportunity to observe the deceased. From the whole of his evidence, I am satisfied that:

Whilst I do not suggest that the evidence of Father Kariba is definitive, it is of considerable importance, as it is the evidence of the only person available who was able to describe the deceased and the events that had occurred on the day he gave instructions for, and executed, the 2012 Will. Whilst not a legal practitioner, his evidence should be given due weight, although, obviously, the Court must evaluate all of the relevant evidence in relation to capacity.

Another witness, with no interest in the outcome of the proceedings, relied upon by the Defendants, was Peter Maniscalco OAM, who had known the deceased and Maria from about 1985. Although he had not seen the deceased since March 2010, he had travelled to Poggioreale, Sicily, in February 2013, for other reasons, and had met the deceased there. (By sheer coincidence, it would seem, he was related, by marriage, to Professor Zummo.)

Mr Maniscalco’s affidavit was made on 24 May 2022.

I found him to be a truthful witness who had a clear recollection of the events that had occurred, on the occasions he had met with the deceased in 2013. He stayed in Poggioreale for about five days. In addition, at least some of his evidence is corroborated by contemporaneous documents which formed part of the evidence: Ex D1. I have no hesitation in accepting Mr Maniscalco’s evidence.

Mr Maniscalco said that he had been asked, by the deceased, to bring the original of the 2012 Will, and the original of Maria’s Will (made on the same day), back to Sydney, and to give them to Carmelina. With the leave of the Court, he identified the original envelope (Ex D1), which had been sealed when the deceased had handed it to him and which he had brought back to Sydney and which he gave to Carmelina as he had been asked to do.

(I interpolate that the original of the 2012 Will made by the deceased, and the Will made, on the same day, by Maria, with copies, were included in the original sealed envelope with a letter dated 21 December 2012, that is to say a letter dated 2 days after each Will was signed.)

He gave evidence of the conversations that he had with the deceased in February 2013, and in September 2014.

In February 2013, he had met with the deceased for about 90 minutes. He described it as a nice social occasion, during which they shared biscuits and coffee, and spoke about the St Antonio Foundation, with which they both had an association. He recalled that, upon his arrival at the deceased’s home, the deceased greeted him in a warm, bubbly, manner, saying to him words to the effect of, “Peter, how lovely to see you. Please sit down, and we will get you some coffee and sweets. Maria, can you please make the coffee”. It was mostly a social visit in which the deceased asked him about the Association, how it was going, and he told the deceased various things about the Association. They spoke to each other mostly in Italian and Sicilian, although every now and again there was a word that the deceased would mention in English and Mr Maniscalco replied accordingly. There had been no talk about financial matters or about what property the deceased might own in Sicily or Sydney.

Mr Maniscalco stated that, towards the end of the visit, the deceased handed him an envelope and said words to the effect of:

(Mr Maniscalco gave evidence that he knew both of the Defendants who had attended various functions that were held by the Association. In addition, Carmelina was, and continued to be, a director of the Association, so he had worked closely with her, although they had no recent contact.)

Mr Maniscalco gave similar evidence about his observations of the deceased in relation to his next visit when he visited with the deceased in September 2014, stating that the deceased “embraced me” on that occasion, and that they had an hour-long social visit. Again, the main topic of conversation was the Association with which they both had an interest, although there was other general conversation.

When asked in cross-examination whether, in September 2014, the deceased appeared to be resembling poor health, Mr Maniscalco answered as follows: “[a]ccording to what I saw he was healthy. There was nothing wrong with him”: Tcpt, 31 May 2022, p 48(39-43).

Mr Maniscalco saw the deceased again in 2017 or 2018. He stated that on this occasion, it was obvious that the deceased had deteriorated quite substantially. He was in a wheelchair and there was not a lot of communication. He was not like he had known him. The deceased had, by this time, clearly, appeared to have physically and mentally deteriorated.

From the whole of Mr Maniscalco’s evidence, I am satisfied that:

The Plaintiffs relied on the evidence of the first Plaintiff’s ex-husband, James Ballam. He swore one affidavit, filed shortly before the commencement of the hearing, which was made on 27 May 2022, comprising 30 paragraphs and spanning five pages. Maree-Marcelle had asked him to do so “and remember as much as I could from the time I got married in 2012”.

Mr Ballam gave evidence about his wedding with the first Plaintiff in early 2012 in London. He stated that, when he saw the deceased in London, he noticed that he looked “a lot more frail than what he had done the last time I saw him”: Tcpt, 1 June 2022, p 104(5-7). He also recalled that, when the deceased met his mother, it was within 10 to 15 minutes that he appeared to have forgotten that the woman to whom he had been speaking was Mr Ballam’s mother.

However, in cross-examination, Mr Ballam agreed that the deceased had not met his mother previously and what the deceased had done was to seek clarification, in a conversation, in Italian, with the first Plaintiff, as to the mother’s name: Tcpt, 1 June 2022, p 108(41)-109(19). He admitted that forgetting someone’s name when introduced to a number of people is a reasonably common thing to occur, particularly with a man that is 80 years of age: Tcpt, 1 June 2022, p 105(37-43).

Mr Ballam agreed that the deceased did not say anything that caused him to think the deceased did not know that his granddaughter, Maree-Marcelle, was getting married; or that he did not know that he was at a wedding; and that, from what Mr Bellam had observed, the deceased was engaging in the occasion of a marriage ceremony and the celebrations that followed that ceremony in the ordinary sort of way that one would expect a grandfather to engage and enjoy himself.

In response to questions from the Bench, Mr Ballam agreed that the deceased was the closest male relative to the first Plaintiff who was present at the reception, although he was unable to recall whether the deceased had made a speech: Tcpt, 1 June 2022, p 111(39)-112(1).

Whilst I have considered it, I do not place very much weight on Mr Ballam’s evidence as evidence of incapacity, particularly in light of the clear evidence of Father Kariba and Mr Maniscalco. I found his evidence about the topic unconvincing.

Maree-Marcelle, the first Plaintiff, swore three affidavits in these proceedings, the first was sworn on 12 February 2021 and comprised 191 paragraphs, spanning 27 pages along with Exhibit MMB-1 which spanned 55 pages; the second was sworn on 13 February 2022 and comprised 44 paragraphs, spanning nine pages; the third was sworn on 14 May 2022 and comprised 26 paragraphs, spanning six pages.

She gave evidence that she had moved into No 57 with her mother and the Claudia in September 2002, and that she had lived there until February 2011, with the exception of a three-month period, immediately following Vincenza’s death, where she, and her siblings, lived with Daniela at her house.

Part of this evidence was not entirely accurate as Mr Ballam had given evidence that he had met Maree-Marcelle in the United Kingdom in about 2005, and that she had lived there until about 2007, with the exception of approximately two and a half weeks when she had returned to Australia for Benjamin’s 21st birthday: Tcpt, 1 June 2022, p 110(5-31).

Prior to moving into No 57, she had lived with her parents in Moorebank. When she moved in, with her mother and Claudia to No 57, she was about 20 years old. During cross-examination, it was put to Maree-Marcelle that the living arrangement at No 57 was pursuant to a tenancy agreement dated 15 November 2002 (Ex D6), with rent of $300 per week being paid. She agreed that there was a tenancy agreement when they had moved into the property but said that this changed after her mother had died. She did not recall there being another tenancy agreement: Tcpt, 1 June 2022, p 164(44-48). However, she agreed that, when she ceased living at No 57 in February 2011, the rent was $350 per week.

Maree-Marcelle gave evidence of her relationship with the deceased, stating that the deceased “was a man of little patience, however I have no doubt that he loved us dearly”. She stated that, at all family functions, dinners and gatherings, he would always ask her “are you OK. Do you need anything?” There were also many times when her grandparents would give her $50 and say, “Don’t tell your Aunties or your cousins”.

In her oral evidence, Maree-Marcelle stated that she would attend her grandparents’ house at Canada Bay for family chats, family gatherings, dinner, lunches or coffee. She stated that her grandparents would come over to No 57 once a week for “more of a stop by visit, have a coffee”: Tcpt, 1 June 2022, p 143(18-37). The family gatherings, which involved one, or both, of the Defendants and the children of each, usually occurred at Daniela’s home.

She also stated that, when her grandparents would travel to their holiday houses around Australia, she would speak to them on the phone every day, or every second day. During these trips, she would feed her grandparents’ dogs every day and open their mail. She also stated that, when they were not at their holiday houses, her grandparents would visit No 57, where they would check in on the Plaintiffs, and visit the tenants who were living downstairs: Tcpt, 1 June 2022, p 144(1-26), 147(28-33). Precisely when all of this occurred was not clear.

During cross-examination, Maree-Marcelle was asked about a photograph she had posted on Facebook of her and the deceased, at her wedding, with the caption “I love my nonno in this photo … He has absolutely no idea what is going on lol”. She stated that she was not making fun of him, and that she made it “in lightheartedness for him”: Tcpt, 2 June 2022, p 156(30)-158(19). In response to a question from senior counsel, she agreed that, if she had honestly thought that he had no idea what was going on, the positing of that comment would be disrespectful of him, and that she had intended the photograph for the purposes of humour: Tcpt, 2 June 2022, p 158(21-30).

Whilst I accept that the family had gathered together following the death of Vincenza, I did not form the impression, having read, and heard, her evidence, that, as an adult, Maree-Marcelle had a particularly close relationship with the deceased. This is not to say that she did not love him, or that he did not love her. Nor is it implausible that the deceased would have said that he “would always be there for us”.

Nor do I suggest any estrangement between them, but from her evidence, overall, I am satisfied that the relationship was not one that would have been regarded by the deceased as a particularly close grandchild/grandparent relationship, especially after 2003. I accept that she telephoned her grandparents to inform them of the birth of her son, their first great-grandchild, late in 2012, and that on this occasion, the deceased spoke “fondly” to her.

The simple fact is that, like the other Plaintiffs, as she grew into adulthood, she left home to make her way in life. Indeed, not long after the death of Vincenza, Maree-Marcelle left Sydney to go on a working holiday in the United Kingdom in January 2004; she had met James there, in 2005; she had remained living in the United Kingdom until 2007; she came back for a short period, then, but returned to the United Kingdom and stayed there in 2008 and 2009; she had then returned to live in No 57 then, with James. Whilst living there, they shared the rent. Then, of course, the deceased and Maria, left Sydney and went to Italy in 2010 and remained there until 2016.

Maree-Marcelle summarised her current financial circumstances in her updating affidavit dated 14 May 2022. She stated that she had no savings, a 2016 Nissan Pathfinder worth approximately $19,000 and superannuation of $45,000. She stated that she also has an outstanding debt of $2,500 on her Commonwealth Bank credit card.

Maree-Marcelle is currently employed by Qantas and earns $74,480 yearly. In addition to her salary, she receives $823 per month in payment of the family tax benefit from Centrelink and $520 per month in child support payments from her ex-partner. Accordingly, her total monthly income is $7,550 gross and $6,918 net.

Maree-Marcelle is a single parent, living with her two dependent children. Her monthly expenses, as at 14 May 2022, totalled $5,960. It was not suggested that the expenses were extravagant or overestimated. In any event, it would appear that she has a surplus of monthly income of about $1,000.

Maree-Marcelle gave evidence in her affidavit dated 12 February 2021 that she suffers from depression and anxiety, for which she takes the medication Lexapro. She also stated that her dentist advised her that she requires dental work which will cost approximately $10,000.

She stated that her needs include being able to support her children as they grow up, including their schooling. (There was no evidence that either of her children had any relationship with the deceased.)

Maree-Marcelle gave evidence that she had paid $33,598 on account of the Plaintiffs’ costs, which amount she had borrowed from one of her sons.

Claudia, the second Plaintiff, swore three affidavits in these proceedings, the first was sworn on 12 February 2021 and comprised 173 paragraphs, spanning 23 pages along with Exhibit CP-1 which spanned 66 pages; the second was sworn on 13 February 2022 and comprised 30 paragraphs, spanning six pages; the third was sworn on 13 May 2022 and comprised nine paragraphs, spanning three pages.

She gave evidence that, before her mother’s death, she had “quite frequent” contact with her grandparents, stating that she would either travel to their home in Canada Bay, or that her grandparents would visit the Moorebank property for lunch, or coffee, on their way back from visiting their holiday homes: Tcpt, 1 June 2022, p 185(26-43).

She stated that after Vincenza’s death, she would often speak to her grandmother three to four times a week on the telephone, and that her grandparents would visit them at No 57 to check in on their general wellbeing. She would also visit her grandparents’ house to feed the dogs, check the mail and take the bins out. If her grandparents were home, she would have dinner with them: Tcpt, 1 June 2022, p 186(1-21). This continued for about “a year or so” after Vincenza’s death. She stated that she would speak to Maria more than she spoke to the deceased.

Claudia gave evidence that she lived at No 57 from September 2002 until the beginning of 2008, when she moved out to live with her then partner: Tcpt, 1 June 2022, p 191(45-48). However, for a period of three months after her mother’s death, the Plaintiffs had all lived with Daniela.

In cross examination, Claudia stated that they were not required to pay rent for this period. Nor were they required to pay rent for approximately five weeks after the Plaintiffs moved back to No 57: Tcpt, 1 June 2022, p 191(19-35). This evidence was inconsistent with what had been stated in her affidavit, namely that “[t]he moment we moved back we had to start paying rent again”: Affidavit, Claudia Puglia, 12 February 2021 at par 120. (The reasons, if any, for that inconsistency was not explained.) In any event, Claudia had not asked the deceased or Maria for an abatement of rent – it “just happened”.

In late 2005, after accumulating a debt of approximately $50,000 which she was unable to repay, Claudia became bankrupt: Tcpt, 1 June 2022, p 193(25-30), 194(41-44). She acknowledged that the decision to declare bankruptcy was made “after a lot of careful consideration and soul searching”.

At paragraph 81 of her affidavit made on 12 February 2022, she stated that she had spent $30,000 renovating No 57. Other than her statement, she did not provide any direct evidence corroborating the expenditure or that she had spent the amount on No 57.

In cross-examination, Claudia stated that Maria was aware of the money she had spent on the renovations, but when she approached her grandmother for financial assistance, Maria did not agree to provide it: Tcpt, 1 June 2022, p 196(27-31), 198(11-33).

I find Claudia’s evidence on this topic to be unconvincing and also implausible. One might have expected the costs of the renovations to be an expense which was recoverable from the deceased and Maria, had the renovations, and the costs thereof, been made, and approved, by them. Furthermore, she did not give any evidence in her affidavits about having spoken to Maria, although she said, in cross-examination, that she did so. She also said that she did not speak to the deceased about the expenditure, which she acknowledged was “peculiar” bearing in mind that part of the debt which founded the debtor’s petition was said to have been used for renovations to No 57: Tcpt, 1 June 2022, p 196(47)-197(33).

Nor did Claudia give any evidence of raising with the Defendants, or either of her grandparents, the money said to have been saved for her and her siblings from the rent paid for occupying No 57. She explained stating that to do so would “have been rude”.

In 2008, Claudia was diagnosed with a benign brain tumour. She gave evidence that, at this time, her grandparents would visit her at her home in Belfield, and that Maria had stayed in her spare room for a few nights to look after her: Tcpt, 1 June 2022, p 187(28-36). (She did not mention the deceased having done so.)

At paragraph 91 of her affidavit made on 12 February 2021, Claudia stated that there were times when the Plaintiffs were unable to feed themselves. She stated that if they did not pay rent, they were told by her grandparents “We’ll throw you all out if you don’t pay the rent. It doesn’t matter that your mother died.”

In cross-examination, Claudia stated that in about 2004 or 2005, she had asked the deceased for leniency on the rent, to which he responded, in Sicilian, “I’ll throw you out in the streets” and “I don’t care. You need to pay rent on time”: Tcpt, 1 June 2022, p 201(8-16). She said that in this regard, “my grandfather was not an approachable person” and that “in a nutshell, no, there wasn’t any leniency”.

The evidence given by Claudia on these topics does not suggest dependency, whole, or partial, upon the deceased.

Claudia attended the wedding of Maree-Marcelle in 2012. She gave no evidence of observing any signs that suggested a lack of testamentary capacity. One might have thought that she would have done so had she observed any such signs.

Between 2008 and 2016, Claudia did not live at No 57. During this period, she lived with her then partner, Cathy. She commenced a relationship with her current partner, Linda Tateossian, in late 2016 and moved into her home in early 2017. She did not give very much evidence of having continued contact with the deceased after 2008.

Claudia gave evidence of her financial circumstances in her affidavit dated 12 February 2021. She stated that her assets include savings of $1,000 and superannuation of $130,000. Her liabilities include a car lease from BMW Finance for which she pays $870 per month, a loan in the amount of $40,000 and a Hilton time share with the amount of $7,000 outstanding. In her updating affidavit dated 13 May 2022, she stated that in January 2022, she had purchased a new car and that her lease repayments had increased to $980 per month.

In her affidavit dated 12 February 2021, Claudia stated her gross monthly income was $9,486 and her net monthly income was $6,825. However, in her affidavit dated 13 May 2022, she stated that her annual salary had increased to $89,780 and that she has the potential to earn commission quarterly. The amount of quarterly commission that might be earned was not estimated or disclosed.

Claudia lives with Linda, and their twin children who are three years old. In an affidavit dated 31 May 2022, Linda gave evidence that her gross annual salary is $125,000. They live in a home with Linda’s sister Lisa. The mortgage repayments are $3,400 monthly and are paid by Linda and Lisa.

Claudia’s daughter was born with many complications. She is currently approved under the NDIS scheme, and she requires speech pathology, physical therapy, and occupational therapy. Collectively, the cost of therapy is $2,500 monthly. Currently, her daughter does not walk and the cost of a walking aid frame is $4,000.

Claudia also suffers from a number of medical conditions. In 2008 she had a benign brain tumour. In 2014, she fell ill with Idiopathic intracranial hypertension, and as a result, lost her eyesight in her left eye and she suffers from severe headaches. She has two stents in her arteries in the back of her neck to drain fluid and a tumour in her pituitary gland. In 2021, she began having non-epileptic seizures, which is managed by medication for epilepsy. She has fibromyalgia and has been told by her doctors that she has a functional neurological disorder, in which her brain does not compute with her body.

She stated that her family’s monthly expenses, as at 13 May 2022, total $6,021. It was not suggested that the expenses were extravagant or overestimated. In any event, it would appear that there is a surplus of her monthly income of about $700. It would be much more if one adds Linda’s net income.

Benjamin, the third Plaintiff, swore two affidavits in these proceedings, the first was sworn on 11 May 2021, comprising 86 paragraphs spanning 13 pages; the second was sworn on 15 May 2022 and comprised four paragraphs, spanning three pages.

Prior to moving in to No 57, he had lived with a friend for about 6 months because he was working at Moorebank. He had then lived in No 57 from early 2003 until January 2014, except for a period of approximately three months following his mother’s death, when, with his siblings, he lived with Daniela: Tcpt, 1 June 2022, p 129(38-43).

He agreed that throughout the period of occupation of No 57, rent together with utility expenses, were being paid by his mother, and then by the occupants, being him and one, or both, of his sisters. At the time he moved in, the rent being paid was $300 per week. He accepted that in the following years, the rent increased, and it was paid by whoever of the Plaintiffs were in occupation. (He understood that the rent that was being paid by the tenants in the unit below was “about the same”.)

He stated that, thereafter, his grandparents would “pop-in” to visit at No 57, when they would drop off fruit, vegetables and food to store in the freezer. They would also give him $50 or $20 “just to have it”: Tcpt, 1 June 2022, p 116(39)-117(2). Otherwise, the contact was by telephone, when he would drop into their home, or at family gatherings, involving the Defendants. He agreed that a fair summary was “that your grandparents would typically ask you if you were okay, whether you needed anything, and that was really the extent with the communication that you had with them over those years”: Tcpt, 1 June 2022, p 126(18-23).

He also stated that during the couple of months immediately following his mother's death, in September 2003, there were regular conversations, phone calls, and visits with each other seeing how the other was doing: Tcpt, 1 June 2022, p 115(34-37). They would come and see how the Plaintiffs were, drop off some fruit and vegetables, and they would also go downstairs to see the tenants who were living there at the time.

He gave evidence that, when his grandparents were away from Sydney, he would look after their dogs, on occasion. He stated that he would also do “little fixes downstairs, screwing in things, light bulbs for the tenants downstairs to help them out”: Tcpt, 1 June 2022, p 119(41-45).

The evidence concerning the contact between him and the deceased could only be partially true because the deceased and Maria went to Italy in March 2010 and did not return until 2016. As will be read, Benjamin did not see, or communicate with, the deceased at all after the beginning of 2014 (about 6 years before the deceased’s death).

Benjamin said that he was told by the deceased, Maria, and also by the Defendants, (although in cross-examination, he said by Maria and Daniela) that the rent that was paid for No 57 was going into an account for the Plaintiffs’ benefit: Affidavit, Benjamin Daniel Rosario Puglia, 11 May 2021 at par 46. However, he admitted that over the years he had never seen anything, be it a document, or some record of the rent being saved, and that he had not been given any information that would indicate that such an account had been established.

At paragraph 40 of his affidavit dated 11 May 2021, Benjamin stated that he suffered a workplace injury in 2012 and was subsequently unemployed for a period. During this time, he accumulated a credit card debt of approximately $10,000, which, as a result of his unemployment, he was unable to repay. As a result, he filed for bankruptcy, a decision that he made “without any consideration of” the deceased and “after a lot of thought and consideration”.

In response to questions from the Bench about why he did not ask the deceased for access to $10,000 from the bank account into which the Plaintiffs’ rent was said to be being saved, in order to avoid bankruptcy, he stated that he was ashamed to be in debt and that he did not know how to handle it. He also said he was a “very sheltered person”: Tcpt, 1 June 2022, p 140(32)-141(6).

Bearing in mind how seriously he had understood going into bankruptcy was, I do not accept his evidence. It seems implausible, bearing in mind the circumstances in which the debt was incurred, that he would not do so. I also found his evidence unconvincing.

It is equally implausible, bearing in mind the allegation of dependency, and what was said to be a close relationship with the deceased, that he would not have asked the deceased for some financial assistance on so serious a matter as him being made bankrupt. It seems more likely that Benjamin appreciated that any request for financial assistance from the deceased would be refused.

That this is not mere speculation is the fact that the deceased and Maria signed, and, subsequently caused to be served, a Notice of Termination of Tenancy in January 2014, following which Benjamin vacated No 57. Benjamin agreed that he and the deceased had no communication, thereafter (a period of six years before the deceased’s death): Tcpt, 1 June 2022, p 120(12-24). In this regard, it is to be remembered that the deceased and Maria returned to Sydney in 2016 and that Maria died in 2018.

He accepted that the lack of contact was caused by the fact that he had received a notice to terminate the tenancy agreement with respect to No 57 in January 2014, which had been signed by his grandparents: Tcpt, 1 June 2022, p 121(6-22). Despite the Notice referring to an international telephone number, which he knew was his grandparents' telephone number in Sicily, he did not contact the deceased, or Maria, following the receipt of the notice, but said they contacted him, following which telephone contact he vacated No 57.

It is to be noted that Benjamin had asserted in his affidavit that the Notice of Termination was actually given by Carmelina, pursuant to the Power of Attorney, an assertion that he admitted, in cross-examination was incorrect. Tcpt, 1 June 2022, p 121(24-33).

Benjamin also agreed that, after he was evicted, the deceased did not ever ask after his health and wellbeing: Tcpt, 1 June 2022, p 126(10-16).

During the hearing, the Defendants tendered a Facebook post (Ex D4) which was made by Benjamin, in about April 2014, on the day he received the Notice to Terminate Tenancy Agreement: Tcpt, 2 June 2022, p 124(19-45). The Facebook post included a photograph of the front page of the Notice to Terminate Tenancy Agreement, a photograph of Benjamin with Maria, and was accompanied with the words:

It is to be remembered that Benjamin, like his siblings, was an adult at the time of Vincenza’s death. He had lived with his parents, and then with Vincenza, as a minor, then after her death, with Daniela, for about two months. Thereafter, he lived elsewhere, or with one or both of his siblings, at No 57, or otherwise lived alone there.

I do not accept Benjamin’s assertion that the deceased and Maria were like parents to him. Nor do I find his evidence suggestive of dependency, whole or partial, upon the deceased.

(I note that each of the Defendants denied having any such conversation about rent being saved. It also seems inconsistent with other aspects of the deceased’s conduct that he would demand market rent from the Plaintiffs and save that rent for them.)

Benjamin’s financial circumstances are modest. In his affidavit dated 11 May 2021, he stated that he has $2,000 in savings and $15,000 in superannuation. His liabilities include a $300 credit card debt to ANZ Bank.

Benjamin is employed full-time by McDonalds as a Café Supervisor. Whilst his weekly income changes from week to week, he estimates his net weekly income to be between $850 to $950.

He lives with his father in rented accommodation, and they share the expenses roughly equally. (There was no evidence about his father’s financial circumstances.)

He stated that his monthly expenses total $3,870. It was not suggested that the expenses were extravagant or overestimated. In any event, it would appear that there is little, if any, surplus of monthly income.

Overall, in relation to each of the Plaintiffs, I am of the view that, with respect to some of the events, she, or he, is mistaken, either because of inaccurate recollection over the substantial passage of time since the events in question, or because her, or his, memory has been influenced, to some degree, by the content of the dispute between the parties.

As will be read, I find the evidence of each of the Defendants far more plausible and consistent with the events that occurred.

Carmelina swore three affidavits in these proceedings, the first was the affidavit of executor which was sworn with the first Defendant on 3 December 2020. It comprised 15 paragraphs and spanned five pages. The second was sworn on 23 September 2021 and comprised 14 paragraphs, spanning four pages; the third was sworn on 6 December 2021 and comprised 155 paragraphs, spanning 23 pages.

She is now retired, although she had previously worked as a schoolteacher.

Overall, I found Carmelina to be a calm, temperate, responsive, and sincere, witness who I considered was endeavouring to tell the truth. I found her evidence was detailed, cogent, and was given in a clear and open way. She made concessions when the answer accorded with her recollection, and I found that the evidence that she gave was consistent with, and supported by, other evidence. I reject any suggestion that I should not accept her evidence.

Carmelina described the deceased as a very strict man, who was a product of both his generation, and of his general customs, practices and traditions. He was not a “warm, fuzzy” type of person, although there was no doubt that he loved, and was very protective of, his family. She did not receive any particular emotional support from him, and stated he was a very stubborn, proud, and an unyielding, person. She also stated that if he was offended by something, he did not get over it as he felt it was a deep blow to his sense of honour. She said that he was authoritarian, not very affectionate and his family reputation was of paramount importance to him.

She said that it was the deceased who was the decision maker, although he and Maria, would usually make financial decisions together. They had very good business acumen.

Carmelina gave evidence of her knowledge of the contact that the deceased had with the Plaintiffs. Whilst she acknowledged that she would not always be present, her parents would tell her of the contact and in giving her evidence, she had relied upon what she was told.

After the death of Vincenza, in giving evidence about that contact, she also relied on what her parents, nieces and nephew had told her, and also her own observations. At the time, she was living around the corner from them, so she saw them often.

She admitted that after Vincenza died, the deceased was a sympathetic grandparent towards the Plaintiffs, but she did not observe that he considered he had to look after them because now they had no mother, and their father was not available. She said, in cross-examination, he did not ever appear to feel that he had to take on a parental role. If he had, he had never said that to her.

Carmelina confirmed that when Vincenza had died, the deceased had not asked the Plaintiffs to come to stay at his home, and that they had gone to Daniela's home to stay for a few months.

I have earlier referred to the loan from Carmelina to the deceased and Maria to purchase the property in Triscina, Italy. She stated that Maria recorded the loan on 27 June 2016 in a handwritten note:

The first Defendant gave evidence about her trip to Sicily and the events that had occurred concerning Maree-Marcelle’s wedding. She asserted that, as far as she was aware, the deceased did not speak to either of the first or second Plaintiffs again after the wedding. She also stated that during the trip, and for the remainder of 2012, she did not observe the deceased to have any issues with mental capacity. Nor did she have any reason to believe that the deceased had any diminished mental capacity.

In December 2012, Maria telephoned the first Defendant and told her that she and the deceased had decided to make new wills, and that a friend would bring the wills back to the Defendants in Sydney. She was not made aware of the terms of either will during the conversation.

I have referred to Mr Maniscalco’s evidence regarding the deceased asking him to bring the Wills to Sydney. In early 2013, the Defendants both collected the Wills, which were then in a sealed envelope. They delivered the envelope to the deceased’s solicitors, who then opened the envelope and told the Defendants that it contained the deceased’s Will, and Maria’s Will, each in triplicate. She said she did not discuss the 2012 Will with the deceased. Nor was she aware of the 2005 Will, which she saw, for the first time, in the context of the proceedings.

(I mention, in passing, that in Maria’s Will, she had appointed the deceased as her executor. It seems unlikely that she would do so if she was concerned about his capacity or that he was then suffering dementia and cognitive dysfunction.)

Carmelina gave evidence that she had travelled to Italy in 2015 for her daughter’s wedding. She had decided to remain, as a live-in carer with her parents, as Maria had become unwell, suffering from diabetes and had problems with her eyes caused by macular degeneration. She, the deceased and Maria then returned to Sydney in April 2016: Tcpt, 2 June 2022, p 209(46)-210(13).

She also gave evidence of a conversation she had with Maria in which Maria had disclosed to her that, on one occasion in early 2015, the deceased became confused on the way home from Mass, and went home to the wrong house: Tcpt, 2 June 2022, p 227(40-43). She accepted that when she was in Sicily, in the second half of 2015, that the deceased’s word thinking, his ability to express himself, was failing, but added that he was still able to express himself. She was asked whether she had made those observations in early 2012, to which she replied that she had not. Nor had she observed it in August 2013. She said that in 2012 and then 2013, whilst he was older, he was not confused. She gave by way of example, that he had driven to and from the airport to pick her up, a round trip of about 120 to 140 kilometres, they had chatted along the way and they sang songs.

Shortly after returning to Australia, the deceased became quite unwell, and he was hospitalised and had a pacemaker inserted. He also had what Carmelina described as “iron infusions”, following which he became stronger and a bit more alert.

She gave evidence that, when he returned, he certainly was not as sharp as he had been and that she observed a lack of clarity, but he could still perform a lot of the activities of daily living by himself. She accepted that she observed that in April 2016, his mind was failing, something she had started to notice whilst in Sicily, in 2015, before their return.

Upon their return to Sydney, Carmelina, the deceased and Maria lived in the Canada Bay Property until mid-2017, when they moved to a property in Drummoyne: Tcpt, 2 June 2022, p 213(26-37). During this period, the deceased’s and Maria’s health problems continued to deteriorate. She said that the deceased’s mental state deteriorated “slowly”.

Carmelina was the primary carer for the deceased and Maria, until their deaths: Affidavit, Carmelina Giacomina Ferro, 6 December 2021 at pars 48-49.

In her oral evidence, Carmelina agreed that, in 2017, she had sold three of her parents’ Queensland properties pursuant to a power of attorney. She stated that her parents had a loan, of approximately $1,000,000, with the Commonwealth Bank, which Maria wanted to have discharged so that she could consolidate her affairs: Tcpt, 2 June 2022, p 239(11-40).

Naturally, senior counsel put to the first Defendant that she had said, and had heard her parents say, that one day No 57 would be the property of the Plaintiffs, but she denied this.

(I tend to think that this denial is based upon what she had been told. In my view, there is likely to have been some consideration, by the deceased, to leaving No 57 to the Plaintiffs. That is what the 2005 Will had provided. Of course, that was many years before the deceased’s death.)

She also denied that she had said that money in a bank account would become available to each of them when she, or he, married. I accept her evidence.

Carmelina denied having discussed “leniency” being shown to any of the Plaintiffs if the rent was not paid. She said that this was not a matter for her but for her parents. She also said that “they knew what would happen if the rent wasn't paid, I suppose”: Tcpt, 2 June 2022, p 232(15-17). She also said that on one occasion, in 2010, Maria had asked her to speak to one, or other, of the Plaintiffs about the rent being unpaid, and that she had done so.

Daniela, the second Defendant swore two affidavits in these proceedings, the first was the affidavit of executor which was sworn with the first Defendant on 3 December 2020. It comprised 15 paragraphs and spanned five pages. The second was sworn on 6 December 2021 and comprised 57 paragraphs and spanned eight pages.

Whilst she was endeavouring to assist the Court in answering questions, I think that her role in the life of the deceased, particularly in the last few years of his life was not as close as that of Carmelina. By way of example, following her parents’ move to Italy in 2010, she saw them only once, for 5 weeks, in 2015, when she attended the wedding of the first Defendant’s daughter. Naturally, she saw much more of them when they returned to Sydney.

She also described the deceased as a strict man, with traditional family views although his paternal instincts were not strong. His family reputation was extremely important to him: Affidavit, Daniela Cantale, 6 December 2021 at par 12.

Daniela gave evidence that the deceased wanted to enjoy his retirement and did not want to babysit his grandchildren. Nor did he wish to be disturbed, or put out, by his children, or grandchildren. If she ever asked the deceased if he was busy, he typically asked “why?” She stated that she knew this was because she might ask him to babysit. His usual response to her was words to the effect of “unless it’s absolutely necessary, we’re busy”: Affidavit, Daniela Cantale, 6 December 2021 at pars 14-16.

The deceased often said to her words to the effect of “I grew up my kids and worked hard. Now it’s your turn to grow up your kids”: Affidavit, Daniela Cantale, 6 December 2021 at par 15. She also did not observe the deceased being concerned that the Plaintiffs “may, as it were, go astray or lack guidance from an adult”: Tcpt, 2 June 2022, p 247(12-14).

After the deceased and Maria moved to Italy, Daniela spoke to them regularly on the telephone. She stated that she would always speak to the deceased first so that he could tell her what he wanted to say, and then he would pass the telephone to Maria: Affidavit, Daniela Cantale, 6 December 2021 at par 17.

She visited them once, in 2015, whilst they were in Italy, being when she attended the wedding of her niece (not Maree-Marcelle). During her visit, which spanned 5 weeks, she stayed with them at their home.

In cross-examination, Daniela stated that when the deceased returned to Sydney in April 2016, she did not notice any change in his physical, or mental, condition from when she visited him in 2015. She described his physical condition as “just aged, old age” stated that he moved a “little bit slower like an older person would”: Tcpt, 2 June 2022, p 245(35-49).

She denied that she had ever heard the words “Alzheimer’s” or “dementia” applied to the deceased’s mental condition: Tcpt, 2 June 2022, p 246(13-22). However, her denial of a change in his mental state, following the return from Italy, in 2016, is difficult to accept bearing in mind the first Defendant’s evidence and the medical records that were tendered. Even so, any such change in the deceased’s mental condition was some few years after the 2012 Will had been made.

Daniela accepted that there were problems between her parents and Mario. Indeed, before Vincenza’s death, the deceased “was very upset that [the Plaintiffs] were speaking to Mario”. She later described the emotion expressed as the deceased being “saddened” because of this. (He did not speak to her directly about this, but she overheard a conversation between the deceased and Maria.)

The deceased was also upset when he found out that the Plaintiffs were again in contact with Mario. Whilst he did not discuss that with her, she had heard discussions between him and Maria about this, but the discussions had been before Vincenza’s death.

She also agreed that there had been discussions about the distribution of properties upon death, including that “the kids were going to get No 57”, but she said it was never spoken of again. She maintained that it was not spoken of after Vincenza’s death, which she agreed “shattered” the deceased.

She denied that she had told any of the Plaintiffs that the rent being paid for No 57 was going into an account and that it would be for their benefit, or that it would be for them. I accept her evidence, and Carmelina’s evidence, on this topic. I also I reject any suggestion that I should not accept her evidence (apart from the topic of the deceased’s state of health following his return to Sydney in 2016).

I have earlier mentioned that Maree-Marcelle filed a general caveat on 14 December 2020, and then many months later, on 6 April 2022, filed the amended Defence to the Cross-Claim, in which the positive allegations of a lack of testamentary capacity and lack of knowledge and approval were raised.

It seems that at the time of filing the general caveat, and thereafter, the Plaintiffs had no medical evidence to support the allegation of a lack of capacity in December 2012. The affidavit evidence of Father Kariba was served in early March 2021.

The copy medical records tendered at the hearing were only obtained following the issue of subpoenas, to hospitals and to doctors, on 20 April 2022 and 3 May 2022. Again, no explanation for the late service of subpoenas was provided.

I have earlier referred to the particulars of the lack of capacity referred to in the amended Defence to the Cross-Claim, namely that the deceased suffered “cognitive impairment” and “the deceased was suffering from developing dementia of the Alzheimer’s type”.

The Plaintiffs relied upon the contents of the Death Certificate, completed, by Carmelina, which disclosed as one of the causes of death “Advanced alzheimer’s dementia, years”.

A Death Certificate issued by the Registrar of Births, Deaths and Marriages in New South Wales is admissible in legal proceedings as evidence of the entry to which the certificate relates, and the facts recorded in the entry: Births, Deaths and Marriages Registration Act 1995 (NSW) s 49(2).

Bearing in mind the medical evidence, to which I shall next refer, and the date the Death Certificate was issued, namely, 26 June 2020, it is unsurprising that the entry was made. It does not mean that the condition was suffered in 2012.

There is no medical evidence, at all, going to the deceased having suffered from either of these conditions at the time he made the 2012 Will. Indeed, the deceased’s treating physician between 17 March 2010 and 31 December 2012, Dr Rosario Drago, stated in a letter dated 27 April 2022, which forms part of an email chain between the Defendants’ solicitor and Dr Drago, including an email dated 13 April 2022, in the Italian language, from that solicitor to Dr Drago and an email in reply from Dr Drago dated 27 April 2022, with no content other than attaching the statement, written in Italian, that states:

(There was no challenge to the accuracy of the translation of either document.)

In order to support the allegation of a lack of testamentary capacity, the Plaintiffs tendered, without objection, a bundle of medical documents (Ex P1). None of these medical records are contemporaneous with the date the deceased executed the 2012 Will.

The earliest record, in time, produced, and relied upon, is a summary report dated 19 May 2016 of the deceased’s admission to Concord Hospital on 28 April 2016. That date was about 3.5 years after the date of execution of the 2012 Will.

Reliance was placed upon a health summary of the deceased completed by Dr Joanne Williams dated 4 January 2019. In that summary, under the heading ‘Past History’, Dr Williams states "Dementia Concord geriatrics p 14, onset prob 2010". The source of the statement, or the factual basis upon which the conclusion stated was reached, is not made clear in the summary and Dr Williams did not provide evidence, otherwise, in the proceedings.

The other medical records forming part of the exhibit are even later in time.

Leaving aside the date of these medical records, it is necessary to remember the caution with which notations made in medical records, or like consultations, must be treated, and also that they should not be elevated to a higher status, factually, than other evidence given in the proceedings: Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] (Basten JA); Afoa v McBride [2017] NSWCA 323 at [65] (Macfarlan JA), and at [70] (Payne JA); Simoes v Kel Campbell Pty Ltd; Simoes v Moon [2018] NSWCA 284 at [15] (Basten JA), particularly insofar as they are dependent on not only the accuracy of the person who has provided the information that is recorded, but also upon the accuracy of the note-taker as to the history that is then being given.

As written, the medical records tendered by the Plaintiffs do not speak, directly, to the deceased’s medical condition, or mental state, in December 2012. What is also striking is that the notes relied upon appear to be inconsistent with the lay evidence of observations made of the deceased by Father Kariba, Mr Maniscalco and Carmelina and the evidence of Dr Drago.

Senior counsel for the Plaintiffs submitted that the Court should, itself, work backwards from the medical records in order to determine the deceased’s mental condition at the time of the execution of the 2012 Will. He acknowledged that no medical expert had been retained by the Plaintiffs to provide evidence to demonstrate that was so: Tcpt, 2 June 2022, p 214(32)-216(24).

I do not consider that the Court is able to, and should, adopt the course proposed by senior counsel for the Plaintiffs. The medical evidence tendered by the Plaintiffs does not speak to the deceased’s medical condition, or mental state, at the relevant time and I am unable to draw any inferences about the deceased’s medical condition and mental state over three years earlier when he signed the 2012 Will.

As it formed part of the evidence, naturally, I have carefully read the medical records that form Ex P1. What must be determined is whether the deceased, at the time the 2012 Will was made, suffered from any medical, including mental, conditions, that affected his testamentary capacity.

I prefer the evidence of the witnesses, at least two of whom have no interest in the result of the case, who had observed the deceased at, or shortly after, the time he made the 2012 Will, and, to a lesser extent, although importantly, upon the written statement of Dr Drago who was, at the relevant time, the treating medical practitioner of the deceased, to which reference has been made. The evidence of the personal observations of, and the interactions between Father Kariba, and of Mr Maniscalco, respectively, with the deceased, is consistent in depicting that the deceased’s medical, including mental, state was not the same in and around December 2012 as it was in 2016 and thereafter.

I have dealt with the law relevant to the Cross-Claim in which the Defendants seek a grant of Probate in solemn form of the 2012 Will, most recently, in Lim v Lim [2022] NSWSC 454.

In that case, I noted, at [2], that the Court’s task in a Probate suit is “to ascertain what (if anything) was the last true will of a free and capable testator. The focus of the enquiry is upon the process by which the document which it is sought to admit to proof was produced. Other matters are relevant only insofar as they illuminate some material part of that process. Probate actions become unnecessarily discursive and expensive and absorb disproportionate resources if this focus is lost”: Wharton v Bancroft [2011] EWHC 3250 (Ch) at [9] (Norris J).

I also noted at [4] the comments of Lord Neuberger, then the Master of the Rolls, in Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430 at [16], that:

I also noted, at [217], that "[T]he criteria in Banks v Goodfellow are not matters that are directly medical questions, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for common sense judicial judgment on the basis of the whole of the evidence”: Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197.

I dealt with the law on testamentary capacity at [338]-[359] as follows:

I dealt with knowledge and approval at [361]-[371]:

In Power v Smart [2018] WASC 168 at [663], upheld on appeal in Smart v Power [2019] WASCA 106, Derrick J had summarised the principles in relation to the doctrine of suspicious circumstances at [663]:

Thus, the presumption generated by due execution may be displaced by circumstances that relate to the preparation, or execution, of the disputed Will or its intrinsic terms, which create a well-grounded suspicion or doubt as to whether that Will expressed the mind of the deceased. If the presumption is displaced, the proponents of the disputed Will must prove, affirmatively, that the deceased knew and approved of the contents of the Will: Battenberg v Phillips [2020] NSWCA 249 at [28].

However, circumstances can only raise a suspicion of want of knowledge and approval if they are “circumstances attending, or at least relevant to, the preparation and execution of the will itself”: Re R [1950] 2 All ER 117 at 121; [1951] P 10 at 17 (Willmer J) and In the Estate of Musgrove; Davis v Mayhew [1927] P 264 at 280 (Lord Hanworth MR).

Finally, I refer to Phillips v Phillips; Phillips bht NSW Trustee & Guardian v Phillips [2017] NSWSC 280, in which at [131], Kunc J relied on my summary of the law in Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275, in which case I had held that an appreciation of the legal effect of every clause in a Will is unnecessary; rather, what must be shown is that the deceased understood that he, or she, was executing a Will and the practical effect of the central clauses in the document. This comment was also referred to, with apparent approval, by Ward CJ in Eq in Estate of the late Genevieve Bryan [2022] NSWSC 965 at [434].

There was really no dispute about these principles.

As earlier stated, senior counsel for the Plaintiffs did not submit that Father Kariba’s evidence should not be accepted. He submitted that “we just have to accept, and your Honour may well do this, [Father Kariba’s] word that the translation was a true translation, and that, ultimately the deceased knew and understood what the translation of the words "testamentary discretionary trust" were, we don't know, the expression "for life", we don't know; there are a lot of legal terms but they weren't inserted by a lawyer, and it's reasonable to submit that they were never explained. I can't put it any higher than that…”: Tcpt, 2 June 2022, p 258(9-15).

Senior counsel submitted that the circumstances of the creation of the 2012 Will were “sufficiently unique for the Court to be concerned that in the absence of a lawyer in circumstances where someone cannot speak English, that we have a will that was read back in Italian”, where “he didn’t read the will verbatim”, that there was a residual doubt substantial enough to preclude a belief that the 2012 Will is the will of a testator who possessed sound mind, memory and understanding at the time of its execution: Tcpt, 2 June 2022, p 256(2-14); Worth v Clasohm (1952) 86 CLR 439 at 453; [1952] HCA 67.

Senior counsel also did not submit that the Court should not accept the evidence of Mr Maniscalco. However, he submitted that his conversation with the deceased was general and not sophisticated, whilst not saying that it ought to have been otherwise.

Senior counsel for the Plaintiffs also submitted that the Death Certificate, completed by Carmelina, and the narrative evidence on behalf of the Plaintiffs, provide further support to the proposition that the deceased lacked testamentary capacity at the time the 2012 Will was executed. Relevantly, one of the causes of death listed on the deceased’s Death Certificate is, as I have previously mentioned, “Advanced alzheimer’s dementia, years”.

As I have outlined above, the Plaintiffs relied upon medical evidence contained in records obtained from 2016 onwards, to establish that there was a sufficient doubt as to the deceased’s testamentary capacity in 2012.

In his oral submissions, senior counsel for the Plaintiffs said (Tcpt, 2 June 2022, p 258(32-36)):

In his written submissions, senior counsel for the Plaintiffs submitted that the Plaintiffs had raised a doubt as to the deceased’s testamentary capacity and that the evidentiary onus, therefore, shifted to the Defendants to affirmatively prove capacity, and to demonstrate that the deceased knew and approved of the 2012 Will.

Counsel for the Defendants relied on the presumption outlined in Tobin v Ezekiel at [45], namely that if a will is rational on its face and proved to have been duly executed, there is a presumption that the testator was mentally competent and had testamentary capacity.

It was submitted that, in this case, both of those preconditions were met. Counsel for the Defendants submitted that the 2012 Will is a six-page document which is not overly complex and that there was no suggestion that it is anything but rational on its face. Regarding due execution, it was submitted that, as supported by Father Kariba’s evidence, the 2012 Will was in writing and signed by the deceased in the presence of two witness, each of whom attested to and signed the will in the presence of the deceased. Accordingly, the requirements in s 6 of the Act were met.

Counsel for the Defendants also submitted that the Plaintiffs had failed to martial any probative evidence to “throw a doubt” on the deceased’s testamentary capacity at the time the 2012 Will was executed: The Estate of Milan Zlatevski; Geroksa v Zlatevski [2020] NSWSC 250 at [72] (Henry J). It was submitted that the medical evidence relied upon by the Plaintiffs, from which the earliest record is May 2016, have no bearing on the deceased’s testamentary capacity in 2012.

Further, the Defendants relied on the evidence of the deceased’s only known physician in Italy over the period of March 2010 to December 2012, who stated in a letter dated 27 April 2022 that he has “no recollection and no documents to confirm a diagnosis of Alzheimer’s dementia or other cognitive impairment.”

Counsel for the Defendants pointed to Veall v Veall (2015) 13 ASTLR 462; [2015] VSCA 60, in which Santamaria JA (with whom Beach and Kyrou JJA agreed) stated at [171]:

In the event that the Court determined that the Plaintiffs’ evidence was sufficient to raise a doubt as to the deceased’s testamentary capacity, counsel accepted that the onus shifted to the Defendants to dispel the doubt. They submitted that there were two reasons why the Court should be satisfied that the deceased had testamentary capacity.

The first reason was that, on the evidence, it could not be established that the deceased was suffering from a cognitive disease at the relevant time, being December 2012. The second reason was that, if it were accepted that the deceased had some form of cognitive impairment at the relevant time, the evidence of Father Kariba and Mr Maniscalco clearly demonstrated that the deceased had sufficient intelligence to prepare and execute his will.

The Plaintiffs’ submissions with respect to suspicious circumstances were somewhat limited. In his oral submissions, counsel for the Plaintiffs submitted that there can be suspicious circumstances in the context of the Court still harbouring a doubt which is such that the propounder of the Will cannot discharge. He referred to Burnside v Mulgrew; Re the Estate of Doris Grabrovaz [2007] NSWSC 550, in which Brereton J had stated, albeit in another context, at [26] that:

Brereton J had refused to admit to probate a document which was alleged to be forged because he was not satisfied that the signature was that of the deceased, although the evidence did not warrant an affirmative finding of forgery.

I gather that what senior counsel was submitting was that, relevantly, even if the Plaintiffs had not proved an affirmative case of lack of capacity, lack of knowledge and approval, and suspicious circumstances, the Defendants were still required to prove their case concerning the validity of the 2012 Will to the requisite standard.

Of course, at [30], Brereton J had also referred to:

Counsel for the Defendants submitted that:

They relied on the comments of Meagher JA in Tobin v Ezekiel at [47], that evidence that the deceased gave instructions for the will, or that the will was read over by, or to, him, or her, is the “most satisfactory evidence” of actual knowledge and contents of the Will.

I turn now to apply the above principles of law to the facts as I have found them. It is necessary to read what follows in the context of what has been written earlier in these reasons.

I am satisfied that the 2012 Will was duly executed. There was simply no challenge to Father Kariba’s evidence that the deceased signed the 2012 Will in his presence and in the presence of Professor Zummo and that each then signed the Will in the deceased’s presence.

It is important to note that the Court is not engaged in some form of approval or disapproval of the dispositions made in the 2012 Will. The Court cannot substitute its own judgment for that of the deceased in relation to what would be a proper disposition of his estate. The task of the Court is to assess all of the relevant evidence and then, drawing such inferences as it can from the totality of that material to reach conclusions as to the facts on the balance of probabilities, remembering that the question is whether the contents of that Will do truly represent the deceased’s testamentary intentions.

In any event, the 2012 Will was rational. Whatever the state of each Plaintiff’s relationship with the deceased, it was rational for one spouse to confer substantial testamentary benefits on the other, particularly after such a long marriage, and then leave the bulk of his assets in remainder to his two adult surviving children.

Applying the vigilant and careful examination that is appropriate, having carefully considered all of the evidence, lay and medical, and remembering that to find incapacity and thereby invalidate a formally valid will is, in the words of Gleeson CJ in Re Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284 at 290, “a grave matter”, I am affirmatively satisfied, on the balance of probabilities, in accordance with Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, or now, s 140(1) of the Evidence Act 1995 (NSW) that the deceased did have testamentary capacity at the time he gave instructions for, and then executed, the 2012 Will. In this regard, the evidence of Father Kariba and Mr Maniscalco constituted more powerful evidence on the issue of the validity of the 2012 Will than any other evidence.

I am also affirmatively satisfied of the deceased’s knowledge and approval of the 2012 Will and that there were no “suspicious circumstances” which warrant a higher bar for proof of knowledge and approval.

The manner in which the deceased gave his instructions, the content of those instructions and the setting in which the instructions were given, all make clear that the deceased exercised his own judgment in deciding how to dispose of his assets. That the whole of the will was read out to him, in a language with which he was most familiar, and before he indicated his approval of it, and that neither of the Defendants was present at the time when the 2012 Will was written, read out, and signed, by the deceased are also important. The instructions that the deceased gave Father Kariba were clear and unequivocal and there is no evidence to conclude that those instructions did not represent the testamentary intentions of the deceased. Nor is there any evidentiary support that either of the Defendants participated, in any way, in its preparation or execution.

There was only one particular aspect of the 2012 Will that was relied upon by the Plaintiffs – the aspect of the testamentary discretionary trust. This aspect needs to be considered in light of an earlier Clause in the 2012 Will relating to property held on trust for a grandchild of the deceased who was a person under a legal incapacity.

However, as submitted by counsel for the Defendants (Tcpt, 2 June 2022, p 278(14-19)):

Having conducted a vigilant examination of the whole of the evidence, I am satisfied that the Defendants have discharged the burden of showing that the deceased had testamentary capacity, and that he knew and approved of the terms of the 2012 Will. Whilst it may be accepted that there was a change in the 2012 Will from the 2005 Will, the change is explicable bearing in mind the relationship of each of the Plaintiffs with the deceased by 2012.

The Plaintiffs’ defence of the Cross-Claim for the grant of Probate of the 2012 Will does not provide any basis for concluding that the Defendants’ case for making a grant of Probate, in solemn form, of the 2012 Will to them, has not been established. Even if doubt were felt, which it is not, any doubt is not substantial enough to preclude a belief that the 2012 Will is the Will of a testator who possessed sound mind, memory and understanding at the time of its execution.

There should be an order pronouncing the validity of the 2012 Will. I shall make that order and make consequential orders remitting the matter to the Senior Deputy Registrar in Probate.

Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out much 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 be able to follow the reasoning, understand the principles, and for each to be satisfied that I have considered the evidence and the submissions in their application.

The key provision is s 59 of the Act. As earlier stated, the Court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons who may make an application, or on whose behalf an application may be made. Relevantly, one category is "a person who was, at any particular time, wholly or partly dependent on the deceased person, and who is a grandchild of the deceased person": s 57(1)(e) of the Act. There is no age limit prescribed by the Act in the case of a claim by a grandchild.

Because there was an issue about eligibility, it is necessary to say something more about this topic.

In Chisak v Presot [2021] NSWSC 597, I wrote in relation to this question at [314]:

The same may be said in the present case. An applicant cannot succeed except by virtue of a combination of status (being a grandchild) and actual dependency (whole or partial).

I take some of the principles on the determination of this element of eligibility to be:

Recently, the Court of Appeal, decided the appeal in Chisak v Presot [2022] NSWCA 100, a claim brought by a grandchild, whilst a minor and living with her father, who had stayed with her grandmother for two or three relatively short periods of time many years before the grandmother’s death. The reasons were not published prior to the Court reserving the decision in this case. Although that case may be distinguished on the facts, it is necessary to say something about the case.

White JA (with whom Macfarlan and Gleeson JJA agreed) wrote at [42]-[44]:

His Honour’s words seem to echo what was written by Sackville AJA, in Spata v Tumino (2018) 95 NSWLR 706 at 732; [2018] NSWCA 17 at [139], that:

In Chisak v Presot, White JA went on at [57]:

Whilst, of course, the decisions of the Court of Appeal, where not distinguished, are binding upon this Court, it is necessary to note that none of the members of the Court of Appeal specifically referred to s 60(1)(a) of the Act, which sub-section provides that the Court may have regard to the matters set out in s 60(2) “for the purpose of determining whether the person in whose favour the order is sought to be made is an eligible person”.

White JA had acknowledged the sub-section in Sun v Chapman, at [28], although he did not refer, specifically, in that case, to any of the sub-sections in s 60 to which regard might be had in relation to eligibility.

In this regard, it is also important to recognise that in most cases, eligibility is not the subject of dispute because many claims that are brought are by a spouse, a child, or a former spouse, of the deceased person. Eligibility in these cases is established by dint of the relationship. In such cases, it is not necessary for the Court to have regard to s 60(1)(a) of the Act for determining eligibility. As I wrote, in Jones v Jones [2014] NSWSC 960 at [94]:

A similar view was expressed by the Court of Appeal in Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [7] by Basten JA, when he wrote that “[m]ost of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57.”

In Lodin v Lodin, Sackville AJA wrote, at [69], that “[I]t is not clear that any of the matters identified in s 60(2) of the Succession Act are relevant to determining whether a particular applicant satisfies the definition of “eligible person” in s 57(1)”.

However, as was recently written in Sun v Chapman, by Leeming JA at [3]:

Thus, where eligibility is in issue, s 60(1)(a) enables the Court to have regard to the matters in s 60(2) for the purpose of resolving that disputed issue of fact. It has been repeated that the factual question regarding dependency can be complex and involve consideration of many elements. It is, therefore, necessary, in the assessment of the nature of the relationship between an applicant and the deceased to consider it, not on theoretical considerations, but rather in the context of the totality of the circumstances. Accordingly, if it is disputed, the concept of eligibility in s 57(1)(e)(i) may be considered by having regard to matters that would, otherwise, only be considered once the applicant establishes that she, or he, is entitled to apply for a family provision order.

In Chisak v Presot, the matters to which reference were made, and identified, by White JA in the passage quoted above, in the reasons for judgment at first instance, were matters that are referred to in s 60(2) including (a) (nature and duration of the relationship), (e) (cohabitation with another person), (g) (the age of the applicant), (k) (whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased’s death and the extent to which, and the basis on which, the deceased did so), (l) (whether any other person is liable to support the applicant) and (m) (the conduct of the applicant), and all were matters to which the Court may have had regard for the purpose of determining whether the applicant is an eligible person.

Before leaving this topic, a number of the cases to which reference has been made refer to the Act being remedial legislation. For example, in Spata v Tumino, Payne JA at [71] (with whom Macfarlan JA and Sackville AJA both agreed) referred to the judgment in Barns v Barns (2003) 214 CLR 169; [2003] HCA 9 at [44] (per Gummow and Hayne JJ) and [124] (per Kirby J), observing at [71] that their Honours:

That is also undoubtedly true, but the purpose of Chapter 3 of the Act should not be forgotten. Its “evident purpose” is to place the assets of the deceased at the “disposal of the court” to provide for “the nominated dependants of the deceased”: Easterbrook v Young (1977) 136 CLR 308 at 315; [1977] HCA 16. The legislation has also been described as having been “enacted in order to subject freedom of testamentary disposition to discretionary curial intervention in certain classes of case, where moral rights and obligations of support were disregarded”: Barns v Barns at [2] (Gleeson CJ).

In describing eligibility as “the gateway”, White JA recognised that its purpose was as a prerequisite to obtaining an order for provision, and, thereby, was limiting, or restricting, the persons who have the right to access the remedy created in the Act. (In relation to certain categories of eligibility, including applicants who fall within s 57(1)(e), there is the further limiting matter of factors warranting the making of the application.)

As was written in Re Burt [1988] 1 Qd R 23 at 32:

Then, assuming eligibility, in the case of applicants who fall within s 57(1)(d), (e) or (f) of the Act, the Court must next consider and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application (s 59(1)(b)).

As stated in Spata v Tumino, by Payne JA, at [72]:

In requiring a person who falls within, relevantly, s 57(1)(e) to satisfy the Court that there are such factors, the Act distinguishes between two classes of eligible person. As was written by McColl JA (with whom Gleeson and Simpson JJA agreed) in Yee v Yee [2017] NSWCA 305 at [111]-[112]:

The Act does not specify the "factors which warrant the making of the application". In considering the meaning of what he described as "this poorly conceived and clumsily expressed subsection" in the former Act (which did not form part of the Draft Bill produced by the Law Reform Commission), M McLelland J said, in Re Fulop deceased; Fulop v Public Trustee; Bide v Public Trustee at 681 (approved in substance by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241; [1988] NSWCA 23) that the factors are factors which, when added to facts which render the applicant an eligible person, give him, or her, the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased.

I turn next to the principles relating to the issue of the provision made for each of the Plaintiffs in the 2012 Will. I have set out the relevant general principles on this aspect most recently in Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 at [416]-[456]. I do not propose to repeat the principles. However, I shall repeat some principles regarding a claim by a grandchild.

I wrote in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [113]:

I made clear that the general principles cannot be elevated to inflexible rules and are subject always to the consideration of the particular circumstances of each case, including the size of the estate, any competing claims, the applicant’s conduct and the applicant’s relationship with the deceased.

My reasons in Bowditch v NSW Trustee and Guardian, attracted the approval of the Court of Appeal in Chapple v Wilcox at [21] (Basten JA); see also at [65]-[67] (Barrett JA) and in other cases.

Counsel for the Plaintiffs submitted that the Plaintiffs’ eligibility arises under s 57(1)(e) of the Act. It was submitted that they were dependent on the deceased for accommodation, as they had paid less than market rent to occupy No 57. It was submitted that, had they been required to rent premises on the open market, they would have been required to pay a greater rent.

I do not accept this submission as there was really no evidence to substantiate this submission for almost all of the period during which one, or other, of the Plaintiffs lived there. The evidence established, contrary to the evidence given by them, that, for all but a short period of about two months following the death of their mother, the Plaintiffs had been required to pay market rent for occupation of No. 57 which was at least comparable to the rent being paid for the unit below.

In closing submissions, senior counsel submitted that, for two months after their mother died, and for five weeks thereafter, the Plaintiffs did not pay rent for No 57. He submitted that (Tcpt, 2 June 2022, p 266(19-22)):

Interestingly, he had earlier described this as “an indulgence”.

In addition, senior counsel submitted that the Plaintiffs were financially dependent on the deceased because the rental bond was dispensed with in the original lease, which indicates that the deceased was able to give the Plaintiffs accommodation that they would not have been able to acquire on the open market.

Senior counsel relied upon the evidence given by the Plaintiffs of conversations with Maria and the Defendants that the money the Plaintiffs had been paying in rent would be used to pay down the mortgage on No 57, and that, in time, that property would belong to the Plaintiffs. He also pointed to the clause in the 2005 Will which gifted No 57 to the Plaintiffs. I have earlier concluded that I do not accept the evidence of any of the Plaintiffs on this topic but rather prefer the evidence of each of the Defendants.

It was also submitted that factors warranting the making of the Plaintiffs’ applications were made out as the deceased himself identified the Plaintiffs as objects of his testamentary bounty by including them as beneficiaries in his Will.

Counsel for the Plaintiffs submitted that the first Plaintiff is a single parent with two dependent children below the age of 10. She has a car, no savings, and superannuation of approximately $45,000. She estimates her net monthly income in the immediate future to be approximately $4,855 and her monthly expenditure to be approximately $5,960. Her eldest son is on medication for ADHD and sees a child psychologist and paediatric specialist. She is on medication for anxiety and depression.

The second Plaintiff has two dependent children aged 3 years. It was submitted that her net income is $6,500 per month (occasionally she receives commission of $1,000 per month). She lives with her partner in a house owned by her partner’s family. Her partner’s monthly income is $6,800 and together they have a monthly expenditure of approximately $6,000. It was submitted that the second Plaintiff suffers from depression and anxiety and has physical ailments affecting her nervous system.

It was submitted that the third Plaintiff has nominal savings and superannuation of approximately $15,000. His earnings fluctuate, but are in the vicinity of $900 net per week. His weekly expenditure is in the vicinity of $777.

Senior counsel for the Plaintiffs submitted that each of them should receive a legacy charged on the deceased’s realty in New South Wales. It was submitted that this should be in lieu of their modest entitlement to an interest in the deceased’s land in Sicily.

Counsel for the Defendants submitted that the Plaintiffs are not eligible persons pursuant to s 57(1)(e) of the Act as each was not “dependent” on the deceased. It was submitted that the Plaintiffs’ examples of support given by the deceased depict the ordinary grandfather/grandchild relationship and that they did not make each or any of the Plaintiffs dependent on the deceased.

It was also submitted that the generosity of a grandparent to a grandchild does not convert the grandparental relationship into one of dependency. Nor does it create an obligation or responsibility to provide for the grandchild upon the death of the grandparent.

Further, with respect to the second and third Plaintiffs’ bankruptcy status, counsel for the Defendants submitted that her, and his, choice, respectively, to file for bankruptcy, without first seeking assistance from the deceased, is fundamentally inconsistent with the conclusion that there was dependency between either of them and the deceased.

It was submitted it is also relevant that, when the second Plaintiff told Maria she was in debt due to expenses she had incurred renovating the property at No 57, Maria did not offer financial help.

It was submitted that dependency had not been established by the Plaintiffs and, accordingly, that the claim of each must fail.

In written submissions, counsel for the Defendants submitted that there were no factors warranting the making of the Plaintiffs’ application for family provision. However, in oral submissions, senior counsel stated that, if the Court was satisfied that the Plaintiffs had demonstrated dependency on the deceased, it was accepted that there are factors warranting the making of provision: Tcpt, 2 June 2022, p 289(22-29).

Counsel for the Defendants submitted that, if the Court finds dependency is established, the Defendants accept that adequate provision was not made for the Plaintiffs.

As I have stated above, counsel for the Defendants provided further written submissions on the reasons of the Court of Appeal in Chisak v Presot. Relevantly, counsel submitted the following:

I turn now to the determination of the family provision claim made by each Plaintiff.

Drawing all of the facts together, I am satisfied that the following facts have been established:

Accepting what White JA, with whom other members of the Court of Appeal agreed, had written in Chisak v Presot, that it is not legitimate to read into s 57(1)(e) a requirement that partial dependency be “significant”, rather than “more than minimal”, and that s 57(1)(e) is merely a gateway for the court to consider whether there are factors warranting the making of the application, before turning to the question of provision, each of the Plaintiffs has failed to persuade me that there was whole, or partial, dependency upon the deceased, by her, or him, respectively, at any particular time. Even, if there were some dependency, I am satisfied that it was no more than minimal.

In the circumstances, as none of the Plaintiffs has established that she, or he, respectively, is an eligible person, it is not necessary to reach a conclusion with respect to any other aspect of their claim for a family provision order.

Since the 2012 Will is to be admitted to probate, the associated proceedings are to be dismissed.

I shall allow the legal representatives of the parties 7 days to provide short minutes of order, in each of the two matters, that reflect these reasons. I shall also allow them an opportunity to discuss the question of costs (in both proceedings). If agreement is unable to be reached on the question of costs, I shall list the matters so that a date for the costs argument, and any other argument, may be dealt with.

I adjourn the proceedings to 2:00 p.m. Wednesday, 14 September 2022 or such other date as is agreed at the date of these reasons being delivered.