Anderson v Yongpairojwong - [2023] NSWSC 1359 - NSWSC 2023 case summary — Zoe

NSWNSWSC

Anderson v Yongpairojwong

[2023] NSWSC 1359

Supreme Court of NSW|2023-10-30|Before: Griffiths AJ

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2023-10-30

Before

Griffiths AJ

Catchwords

Blendell v Blendell [2020] NSWCA 154 Boughton v Knight (1873) LR 3 P&D 64 Bull v Fulton (1942) 66 CLR 295
Estate of Miller (2000) 50 NSWLR 81
[2000] NSWSC 767 Morton v Copeland (1855) 16 CB 517
41 ER 30 Re Estate of Hodges

Source

Original judgment source is linked above.

Catchwords

Blendell v Blendell [2020] NSWCA 154 Boughton v Knight (1873) LR 3 P&D 64 Bull v Fulton (1942) 66 CLR 295Estate of Miller (2000) 50 NSWLR 81[2000] NSWSC 767 Morton v Copeland (1855) 16 CB 51741 ER 30 Re Estate of HodgesShorter v Hodges (1988) 14 NSWLR 698 Re Estate of Griffith (dec'd)[2013] NSWSC 522 Stone v Stone [2016] NSWSC 605 Taylor v Farrugia [2009] NSWSC 801 The Estate of Juliana VorosCooney v Cherry [2016] NSWSC 1603 The Public Trustee v Stretch [2002] WASC 147 Thomas v PickeringByrne v Pickering [2011] NSWSC 572 Tobin v Ezekiel (2012) 83 NSWLR 757[2012] NSWCA 285 Tyrrell v Painton [1894] P 151 Veall v Veall (2015) 46 VR 123[2015] VSCA 60 Waters v Waters (1848) 64 ER 263 Wild v Meduri [2023] NSWSC 113 Worth v Clasohm (1952) 86 CLR 439D Yazdani (second defendant/cross-claimant)

Judgment (78 paragraphs)

[1]

[3]

headnote [This headnote is not to be read as part of the judgment] These proceedings involved a contested probate application concerning two wills executed by the testatrix in NSW (in 2017) (the Australian will) and Thailand (in 2020) (the Thai will). The plaintiff, the daughter of the testatrix, sought to have letters of administration with the Australian will annexed granted to her. By cross-claim, the second defendant, the testatrix's son, sought letters of administration with the Thai will annexed granted to him, or alternatively an order that probate be granted to the executor of the Thai will. The two wills deal with substantially the same property, appoint the same executor, and divest beneficial entitlements to the plaintiff and second defendant, though to varying degrees. The plaintiff sought to have the validity of the Australian will upheld, despite the Thai will complying with formal validity requirements, on the basis that the testatrix did not have testamentary capacity, or knowledge and approval, when executing the Thai will. In November 2018, the testatrix was diagnosed with lung cancer, which subsequently metastasised to her brain. By June 2020, when the Thai will was executed, the testatrix had undergone radiotherapy and chemotherapy treatments, and was taking numerous medications and supplements to treat her cancer. The plaintiff claimed that the testatrix was not of sound mind when the Thai will was executed on account of the physical and mental effects of these various treatments. Separately, the plaintiff contended there were suspicious circumstances surrounding the execution of the will such that the testatrix did not have the requisite knowledge and approval. In the event that the Thai will was deemed to be a valid testamentary instrument which superseded the Australian will, the plaintiff brought a separate claim for family provision to be made in her favour. The issues for determination were: (i) whether the Thai will was, formally, a valid testamentary instrument; (ii) whether, despite the above, the Thai will lacked essential validity; (iii) if the Thai will was a valid testamentary instrument, whether a family provision order should be made thereunder in the plaintiff's favour; and (iv) whether letters of administration with the Thai will annexed be granted to the second defendant or, alternatively, that probate be granted in solemn form of that will to the executor. Griffiths AJ held, dismissing the plaintiff's case in its entirety, and granting the alternative relief sought by way of cross-claim: (i) Formal validity The Thai will is a valid testamentary instrument under s 6 of the Succession Act 2006 (NSW), thus superseding the Australian will, and is to be taken as evidencing the most recent testamentary intentions of the testatrix: [206]-[207]. (ii) Essential validity The parties agreed that the testatrix was domiciled in NSW, and consequently, it was NSW laws on testamentary capacity that applied. In light of the applicable principles, the second defendant discharged his onus of proving the testatrix had testamentary capacity when the Thai will was executed: [244]. The instrument is rational and made substantial provision for each of the two beneficiaries: [221]. The lay evidence revealed the testatrix maintained appreciable levels of business acumen, social intuit and awareness of her surroundings, signifying a level of cognition which demonstrated her testamentary intentions were those as captured in the Thai will: [223]-[243]. Expert medical evidence tendered by the plaintiff did not displace these findings, and was accorded limited weight, including because of the fact that the two experts were not treating physicians: [197]-[198]. Banks v Goodfellow (1870) LR 5 QB 549; Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285; Lim v Lim [2023] NSWCA 84, considered. Relatedly, there was no evidence of the testatrix not having knowledge and approval of the contents of the latter will and there were no circumstances arousing the Court's suspicion that this document did not have her full consent: [248]. (iii) Family provision claim The plaintiff's case for a family provision order to be made in her favour was made out of time, namely more than 12 months after the testatrix's death, and no acceptable explanation was provided for the failure to seek the order within time: [251]; [255]. It was also evident that the claim was made as an afterthought, as little evidence or attention was directed to it, and moreover, the plaintiff was not forthcoming as to the true extent of her financial circumstances: [269]-[279]. The plaintiff thus failed to discharge her onus of establishing her claim: [285]-[287]. Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572; Taylor v Farrugia [2009] NSWSC 801, considered. (iv) Determination of cross-claim A grant of probate in solemn form of the Thai will was apposite in the circumstances: [288]. Though some formalities were not adhered to in the filing of the cross-claim, this did not bar the granting of the alternative case in the circumstances: [292]-[293]. headnote JUDGMENT A. Introduction B. Some uncontroversial background matters summarised (a) Amy's estate and her two wills (b) A broad chronology Purchase of the Mosman Property and Boon Luck Farm Execution of the Australian will Lung cancer diagnosis Execution of the Thai will Events following the execution of the Thai will C. The lay and medical evidence summarised and assessed (a) The parties' lay evidence The plaintiff's witnesses (i) Palisa (ii) Matt The second defendant's witnesses (i) Bob's evidence (ii) Mr Kasemnate's evidence (iii) Ms Klaisoi's evidence (iv) Ms Srisomboon's evidence (v) Fern's evidence Fern's "ping pong" evidence (vi) Pat's evidence (b) Palisa's medical evidence (i) Dr Dua (a) Dexamethasone (b) Osimertinib (c) Fentanyl (d) Levetiracetam (also known as Keppra) My assessment of Dr Dua's evidence (ii) Professor Ogden (a) Levetiracetam / Keppra (b) Dexamethasone (c) Vitamin B (prescribed supplement) (d) Thiamine (prescribed supplement) (e) Cyproheptadine (f) Tramadol (g) Fentanyl (h) Morphine (i) Osimertinib (j) Olanzapine (k) Lorazepam Professor Ogden's supplementary expert report My assessment of Professor Ogden's evidence (iii) Conclusions on the expert medical evidence D. Consideration and determination of Palisa's case (i) Some private international law principles summarised Formal validity of the 2020 will Applicable law in determining questions of capacity (ii) Amy's testamentary capacity Amy's understanding of the nature and significance of the act of making a will Amy's understanding of the nature and value of her estate Ability to call to mind and to weigh competing claims (a) Inferences drawn from the Thai will itself (b) Amy's explanation of her testamentary intentions (c) Amy's cognitive ability displayed in her interactions with colleagues and third persons (d) Palisa's interactions with Amy (e) Observations of third party lay witnesses (f) Conclusion on Amy's testamentary capacity (iii) Knowledge and approval of Thai will Conclusion on knowledge and approval (iv) Family provision claim Extension of time application Relevant considerations in making family provision order Relationship between Palisa and the deceased (s 60(2)(a)) Nature and extent of the estate (s 60(2)(c)) Palisa's financial resources (s 60(2)(d)) Palisa's health (s 60(2)(f)) Palisa's age (s 60(2)(g)) Palisa's contribution (s 60(2)(h)) Amy's testamentary intentions (s 60(2)(j)) Circumstances of the competing beneficiaries (ss 60(2)(b), 60(2)(d)) (vi) Conclusion as to appropriate provision E. Consideration and determination of Pat's cross-claim F. Costs G. Conclusion

[4]

A. Introduction

These proceedings have two broad parts. The first and primary part concerns the issue whether it has been demonstrated that the testatrix had testamentary capacity and the requisite knowledge and approval when she made a second will in Thailand on 24 June 2020 (the Thai will). The Thai will revoked an earlier will dated 25 August 2017, which was made in Sydney (the Australian will).
As will be developed, the testatrix was the matriarch of a chain of restaurants in Sydney which used the Chat Thai brand. It is common ground that when the testatrix died in Thailand on 10 March 2021, she was domiciled in NSW. Without disrespect, I will refer to the testatrix by her commonly used name in English, Amy. Similarly, I will use the commonly used names in English of other Thai people.
The plaintiff, whom I shall refer to as Palisa, is Amy's daughter. Palisa is married to Matthew Anderson (Matt). Both have been and remain actively involved in the Chat Thai business. By a further amended statement of claim filed on 17 June 2022 (FASOC), Palisa seeks an order that letters of administration with the Australian will annexed be granted to her. Palisa contends that Amy did not have testamentary capacity (or the requisite knowledge and approval) with respect to the making of the Thai will.
The second (and secondary) part of the proceeding relates to a belated amendment made to the FASOC on 17 June 2022, whereby Palisa also seeks an order under s 59 of the Succession Act 2006 (NSW) that provision be made for her out of Amy's estate and/or notional estate. Because the family provision claim was made some 15 months after Amy's death (which is outside the requisite 12 month limitation period), Palisa also seeks an extension of time for the family provision claim.
The first defendant is Amy's brother Bob. He filed a submitting appearance. He is the executor under both the Australian and Thai wills. He is not a beneficiary under either of those wills. Although Bob spent some time in Australia some years ago, he has lived in Thailand for the last 20 years.
The second defendant is Amy's son, Pat. He filed a cross-claim on 25 February 2022 in which he seeks the following primary relief. First, an order that letters of administration with the Thai will annexed be granted to him. Alternatively, Pat seeks an order that probate of Amy's Thai will in solemn form be granted to Bob.
Both Palisa and Pat remain as beneficiaries under the Thai will, but as will be developed further below, under the Thai will Amy disposed of her farmland in Thailand to Pat and transferred to him alone her shares in various companies which make up the Chat Thai Group. Amy's stated purpose in transferring her shares to Pat was to place Pat in a position to control the Chat Thai Group businesses because Amy said that she trusted him to do so and she did not trust Matt.
These reasons for judgment are structured as follows: A. Introduction. B. Some uncontroversial background matters will be summarised. C. The lay and expert evidence will be summarised and assessed. D. To avoid the reasons becoming unduly lengthy, upon summarising the plaintiff's primary submissions, I will address and determine the plaintiff's case on both testamentary capacity and the family provision claim. E. I will address and determine the cross-claim. F. Costs. G. Conclusion.

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(a) Amy's estate and her two wills

At the time of her death, Amy's estate in NSW comprised: 1. a 1/3 interest in a farming property located in Tyagarah NSW, which is near Byron Bay, valued at approximately $1.5 million (based on a recent appraisal of the whole property of $4.5 million obtained by Bob) (Boon Luck Farm); 2. a 12/100 interest in a property located in Mosman NSW, valued at approximately $990,000 (based on an appraisal recently obtained by Bob of the whole property of $8.25 million) (Mosman Property); 3. cash held in various accounts with Westpac Banking Corporation totalling $406,205.46; and 4. cash held in the trust account of Swaab Attorneys of $39,617.56.
Amy also owned four parcels of land in Thailand, valued at approximately $216,690.
In addition, Amy entered into a number of relevant property transactions prior to her death, such that the following assets, as valued by Pat, are capable of being designated as notional estate: 1. 2 ordinary shares in Chat Thai Pty Limited valued at approximately $1,281,000 - $1,455,000; 2. 1 ordinary share in Chat Thai CBD Pty Limited; 3. 100 ordinary shares in Amonrat Pty Ltd; 4. 30 ordinary shares in Jarern Chai Pty Ltd, valued at approximately $180,600; 5. 15,330 shares in Jumpee Travel Pty Ltd valued at approximately $87,570 - $117,180; 6. 50 ordinary shares in Natui Website Pty Ltd, valued at approximately $31,000; 7. 75 ordinary shares in Thai Press Pty Ltd, valued at approximately $90,750 - $144,750; 8. superannuation death benefit held by AMP of $316,344.10; 9. joint bank account held with Palisa and Matt of $121,596.79 as at date of death (current value of $35,617.52); 10. joint bank account held with Amy's former de facto partner, Ray Suchattrakoon of $28.96 as at date of death; and 11. payment of $524,055.55 to Pat and his wife Natasha (from whom he is separated) on the sale of Amy's property in Seaforth (Seaforth Property).
Under the Australian will, Amy appointed Bob as her executor and divided her estate as follows: 1. to Pat she gave: 1. her interest in the Seaforth Property (which property was in October 2020 subsequently sold for $1.8 million); 2. her shares in Chat Thai CBD Pty Ltd; 3. her shares in Jumpee Travel Pty Ltd; 4. ½ of her shares in Chat Thai Pty Ltd; 5. ½ of her shares in Thai Press Pty Ltd; 6. ½ of her shares in Natui Website Pty Ltd; 7. ½ of her shares in Jarern Chai Pty Ltd; and 8. ½ of the residue of her estate. 1. to Palisa she gave: 1. her interest in the Mosman Property; 2. her interest in Boon Luck Farm; 3. ½ of her shares in Chat Thai Pty Ltd; 4. ½ of her shares in Thai Press Pty Ltd; 5. ½ of her shares in Natui Website Pty Ltd; 6. ½ of her shares in Jarern Chai Pty Ltd; and 7. ½ of the residue of her estate.
Amy was diagnosed with lung cancer in November 2018. She received treatment in Thailand and in November 2019 was told that the cancer had disappeared. She returned briefly to Australia for a period of approximately three weeks commencing 24 December 2019, staying with Palisa and Matt at the Mosman Property. During this time she initiated steps which ultimately led to the sale of the Seaforth Property in 2020, about which I will have more to say later.
Unfortunately Amy's cancer returned. She commenced chemotherapy treatment in Bangkok in late March 2020, after she had returned to Thailand from Sydney. In May, she took further steps to get her affairs in order. She appointed Bob as her attorney and asked him to make arrangements to assist her to update her will. While in hospital in Bangkok on 2 June 2020, Amy met with a Thai lawyer, Mr Prasong Kasemnate. Following that meeting, she instructed Bob to prepare drafts of her will. He then provided the final draft to Mr Kasemnate to settle. On 24 June 2020, Amy executed the Thai will at Bob's house in Bangkok with her two friends, Ms Nitha Klaisoi and Ms Thitirat Srisomboon, witnessing her signature (which took the form of a thumbprint).
The Thai will was written in the Thai language. Amy again appointed Bob as her executor and divided her estate in the following way: 1. to Pat she gave: 1. her shares in Amonrat Pty Ltd; 2. her shares in Chat Thai Pty Ltd; 3. her shares in Chat Thai CBD Pty Ltd; 4. her shares in Jumpee Travel Pty Ltd; 5. her shares in Thai Press Pty Ltd; 6. her shares in Natui Website Pty Ltd; 7. her shares in Jarern Chat Pty Ltd; 8. four parcels of land located in the Hua Hin District; and 9. the residue of her estate. 1. to Palisa she gave: 1. her interest in the Mosman Property; and 2. her interest in Boon Luck Farm.
On 1 July 2020, Amy transferred her shares in Amonrat Pty Ltd, Chat Thai Pty Ltd, Chat Thai CBD Pty Ltd, Jumpee Travel Pty Ltd, Thai Press Pty Ltd, Natui Website Pty Ltd and Jarern Chai Pty Ltd to Pat. These were the shares that were the subject of the specific bequest to Pat in the Thai will.

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Lung cancer diagnosis

In around late November 2018, Amy was diagnosed with lung cancer. At or around that time, she showed Bob a copy of the Australian will. Between the time of her diagnosis and November 2019, Amy was treated by Dr Samree, a practitioner of Asian medicine, in Chiang Mai in Thailand. At Amy's last appointment with him in November 2019, Dr Samree informed her that the cancer had disappeared, and that she should see him again in 6 months to follow up.
As noted, Amy returned to Australia on 24 December 2019. She stayed at the Mosman Property with Palisa and Matthew for about three weeks. It appears that during this visit, Amy began to wind up some of her financial affairs. She met with a Sydney solicitor, Ms Tatiana White, in early January 2020 for the purpose of executing a Power of Attorney to allow Pat's ex-wife, Natasha, to sell the Seaforth Property on her behalf.
Amy felt unwell during this trip (possibly due to widespread bushfire smoke), and she returned to Thailand on 14 January 2020. On 20 January 2020, Amy began to suffer from severe headaches. Bob took her to Vejthani Hospital in Bangkok. She received treatment there and was discharged on 14 February 2020.
Following her discharge, Amy stayed with Bob in his Bangkok home. She also spent time at her farm in Hua Hin. She was frequently hospitalised over the ensuing months.
Amy commenced chemotherapy in late March 2020. She received treatments in hospital once every three weeks. Bob accompanied her to those treatments. During the period of that treatment, Amy was engaged to an extent in managing her affairs, including her succession planning, as is reflected in the following evidence: 1. Palisa's evidence, which I accept, is that in late March 2020, she had a conversation with Amy after she had been discharged from hospital. Amy raised a concern about the possibility of having to pay "death tax" on the transfer of the Mosman Property and Boon Luck Farm. Palisa described her mother as being "quite practical". She agreed that her mother was thinking through the implications of what might happen with her estate, and also wanted to avoid the possibility that Pat might try to "…make a claim on my [i.e., Palisa's] home". 2. Following the conversation described above, Palisa emailed Bob and Amy on 31 March 2020 to introduce them to her Sydney solicitor, Mr Richard Mitry. On 3 April 2020, Palisa sent a further email, copying Amy, in which she asked Mr Mitry (evidently with Amy's consent) to draft some provisions to ensure that Amy's interest in the Mosman Property and Boon Luck Farm passed to Palisa. Mr Mitry prepared some draft clauses and provided them to Palisa, Bob and Amy on 4 April 2020. That draft provided for Amy's interest in the Mosman Property and Boon Luck Farm to go equally to Palisa and Matt. On 16 April 2020, Bob sent Palisa the relevant proposed clauses for her to review. I will have something more to say about this matter below. 3. In April 2020, Simon Zhang from AMP in Sydney was contacted in relation to Amy's superannuation. Palisa's evidence, which I accept, is that Amy accepted her suggestion that Amy withdraw her superannuation early to pay her medical expenses. On 1 May 2020, Palisa completed the superannuation withdrawal form with Amy (which ultimately was not acted upon). Palisa's evidence on this topic, which I accept, is that Amy "…did not appear to have any issue, nor did she appear uncomfortable or reluctant, with what was happening". 4. In April 2020, Amy asked Bob to arrange for her to execute a Power of Attorney (under the laws of NSW). On 8 May 2020, Amy appointed Bob as her attorney.

[11]

Execution of the Thai will

In early May 2020, Amy asked Bob to help her with updating her will. Bob's evidence, which I accept, is that he translated the Australian will into Thai. Amy then told him to: 1. change the gift of the shares so that Pat would receive all of Amy's shares; and 2. make specific reference to the real property that formed the farm at Hua Hin.
Amy then asked Bob to contact her friend Ms Srisomboon to ask for her help to find a local lawyer to assist with the Thai will. Ms Srisomboon recommended Mr Kasemnate.
Mr Kasemnate met with Amy on 2 June 2020 at the Vejthani Hospital. In his affidavit, Mr Kasemnate set out certain observations he made on that day as to Amy's cognition, to which I will return. He also said that they had a conversation in which Amy explained: About three years ago, I made already made (sic) a will in Sydney but I want to make a new one to cover my assets in Thailand. I would also like to change the beneficiaries in regard to the business. My old will states that my son and daughter are to be the joint beneficiaries, but in the new will I would like only my son to be the sole beneficiary and to take care of the business.
When asked to provide a reason, Amy responded: Because my daughter's husband is a foreigner. I believe he wants to take control of all of my business.
Mr Kasemnate then stated that the will would need to be witnessed by two disinterested people, and that it was permissible for Amy to use her thumbprint to execute the document.
Following this meeting, Amy instructed Bob to make changes to her will. Bob then prepared one or more drafts and read them out to Amy. He then sent the final draft to Mr Kasemnate in mid-June 2020.
Bob arranged for two of Amy's friends to attend his Bangkok home on 24 June 2020 so that they could witness her executing the will. Ms Klaisoi (who had known Amy since 2018) and Ms Srisomboon (who had known Amy since 2010 or 2011). Both of them engaged in small talk with Amy, and she explained to them both that she had an earlier will but wished to change it. Amy then executed the Thai will in their presence.

[15]

(i) Palisa

Palisa affirmed five affidavits. Substantially reflecting the emphasis which was placed on particular parts of her evidence by her counsel (Mr Maroya), her written and oral evidence may be summarised as follows.
In her first affidavit, Palisa gave evidence relating to her observations of Amy's cognition. The relevant parts of that affidavit may be summarised and assessed as follows: 1. Between December 2018 and July 2019, Amy, while aware of her surroundings and circumstances, was only willing to discuss issues relating to Chat Thai business matters at a superficial level, and was not willing to enter discussions that would cause her stress, anxiety or conflict. Palisa then set out a conversation which she had with Amy in May or June 2019 in which Palisa said that she would have to miss a lunch at Boon Luck Farm which Amy had arranged with a publicist because Palisa had to travel to the United States in August to participate in "G'day USA". Amy said that she could come back to Australia and cook on the farm and that she could ask the executive chef, Sam, to help her. This conversation took place some 12 months before the Thai will was executed. Far from casting doubt on Amy's cognition, the evidence of the conversation suggests that Amy was behaving rationally and with consideration. 2. In December 2019, while at the Mosman Property, Amy spent most of her time at home, and only socialised with others if they visited her there. This is unsurprising, given that there were widespread and significant bushfires in the Sydney region at that time. 3. Between August 2019 and January 2020, Amy demonstrated "scatter-brained" behaviour, forgetfulness, a lack of acuity and lethargy. I accept that some of the examples given by Palisa of Amy's behaviour during this period indicated that Amy was, at various times, tired, suffering from headaches and prone to some forgetfulness. I do not accept, however, that the matters identified by Palisa, when viewed individually or collectively, indicate that Amy lacked testamentary capacity more than six months later when the Thai will was executed, particularly when regard is had to other more contemporaneous evidence regarding that matter. 4. Around the same time, Amy tried to give the illusion to people outside the family that she was doing well. 5. By early March 2020, Dr Thanate (at the Vejthani Hospital) had said to Palisa that he did not think that Amy would survive her lung cancer, and that there was not much else that could be done to treat it. This sheds no light on Amy's testamentary capacity. 6. Palisa claimed that she had a conversation with Bob in mid-April 2020 concerning Amy having been on a pain management program for a couple of weeks. She said that Bob told her that he did not like Amy being on the program "because she's too cloudy at times on it" and "her memory isn't great", that she repeated conversations and that it was sometimes difficult to understand what she wanted or was trying to say. Bob denied the conversation. I prefer Bob's evidence. 7. Palisa gave evidence that from about mid to late March 2020 to 5 June 2020 (when she returned to Australia from Thailand), Amy appeared to experience bouts of forgetfulness and confusion, calling Palisa at times "Soraya" or "Pat"; repeated conversations that she had had over a short period of time; displayed anxiety; referred to "chemotherapy" as "sweet water" or "nectar"; had shaky hands and was less dexterous, and rarely held her phone. I accept that evidence but add that it needs to be assessed in the context of all the evidence from other witnesses bearing upon Amy's cognition during and surrounding this period. 8. Ms Sirilada Kruahong (Fern), a senior Chat Thai employee, had told Palisa in the period July 2020 that Amy "seem[ed] to be forgetful and when [she] converse[d] with her, she [was] often repetitive, talking about the same thing several times in the same conversation". In contrast to this evidence, Fern gave evidence that in or about mid-July 2020, Amy had left her a LINE app voice message asking her to buy a product (one or two jars of cream) and send them to the Hua Hin Farm. Fern said that Amy's voice "was very clear on the recording and she sounded well and like her usual self".
Palisa's evidence in her second affidavit regarding Amy's testamentary capacity issue may be summarised and assessed as follows. 1. Palisa referred to Amy's chemotherapy treatments and her observations of their effect on Amy. Palisa disagreed with Bob's evidence that between mid-March 2020 and early June 2020 Amy "did not ever appear to have been mentally affected by the chemotherapy treatments in April 2020". She said that Amy would say to her that she felt weak and was having problems breathing. Palisa added that Amy ate very little, slept poorly and was paranoid about her medication and supplements. This evidence indicates that Amy was physically debilitated by the chemotherapy, which is hardly surprising. To the extent that it bears upon Amy's cognitive functioning during this time, I consider that the evidence should not be looked at in isolation but needs to be assessed along with the evidence of other witnesses who were in as good if not a better position than Palisa to assess Amy's cognition during and around this time, particularly Bob who was spending a lot of time with Amy in Thailand. 2. Palisa said that she remained in Thailand with Amy throughout May 2020, but was unaware of Amy talking to Bob or anyone else about "changing the recipient of her shareholdings to Pat solely". I accept that evidence, but add that Amy may have deliberately chosen not to involve Palisa in her plans to have Pat acquire all her shareholdings so that he could step into Amy's shoes.
Dr Chapple SC (who together with Mr Yazdani appeared for Pat) did not suggest that the Court should make an adverse credibility finding with respect to Palisa's evidence. He was correct not to do so. Generally speaking, I found Palisa to be a truthful and sincere witness. At times, however, she was unresponsive to some questions and I also had the impression that she took advantage of some opportunities during her cross-examination to advance her own case without directly answering the cross-examiner's question. That was particularly so when she wanted to disparage her brother Pat.
Palisa's occasional unresponsiveness was illustrated when she was giving evidence of a conversation she had with Amy in Thailand in March 2020. After Palisa was discharged from quarantine she visited her mother at hospital and collected her to take her back to Hua Hin Farm. Around that time, she recalled that they had a conversation about her mother's desire to make sure that both her children were treated equally after her death. She said that the discussion centred on the two properties in Australia and did not include the company shares.
When it was put to her that her mother's express desires were logical and rational, Palisa paused. My impression was that this was because she saw the implications of agreeing with that proposition as it related to Amy's cognitive capacity only a few months before she made the Thai will.
Palisa was cross-examined about the discussions she had with Amy about withdrawing money from her superannuation account with AMP in May 2020 (which eventually did not occur), as well as their discussions in May about Amy's desires for end of life care. The questions were basically directed to the proposition that Palisa did not doubt her mother's capacity and understanding of these matters, with the inference that the same could be said when she executed the Thai will on 24 June 2020.
My impression was that Palisa sought to deflect that proposition by saying that Bob was heavily involved in all those matters, while adding (unresponsively) that Bob was accusing Palisa of funnelling the superannuation monies to herself. Thus, on the one hand, Palisa was saying that Bob was deeply involved, while maintaining that Bob was becoming more distant from her based on his suspicions.
On Amy's end of life discussions, Palisa emphasised that her mother was very sensitive about the matter because her mother's father had experienced difficulties back in 2015 and she was also conscious that her mother's mother had suffered from cancer, so this informed Amy's views about not being intubated.
Finally, it is necessary to say something regarding Palisa's evidence concerning her assets and liabilities, which was directed to her family provision claim. There were clear gaps and shortcomings in that evidence. This included her omission to disclose significant sums of money she had received from what she described as "ad hoc" projects, the value of which exceeded $130,000 in a fairly recent 12 month period. Palisa also acknowledged that she had not attempted to obtain up to date valuations of either the Mosman Property or Boon Luck Farm. Her evidence relied upon far outdated valuations. When she was asked to explain these matters, Palisa said that the material had had to be gathered very quickly. Moreover, tellingly, she also added that she did not place "too much stock" in the family provision claim.
Palisa's reference to time pressures overlooks the fact that, even though the family provision claim was only foreshadowed in June 2022, she had ample time and opportunity to update her evidence. Indeed, her fifth and final affidavit was filed on 12 October 2023, only shortly before the hearing commenced. I consider that the main reason why she did not make full disclosure of her assets had little if anything to do with time pressures, but rather reflected Palisa's candid acknowledgment that her family provision claim was weak, an assessment which is also reflected in the little attention that claim received in her oral and written submissions.

[16]

(ii) Matt

Matt gave unchallenged evidence that during his stay in Bangkok between 29 January and 4 February 2020 (the last occasion on which he and his children saw Amy), Amy described him to a friend, Chayapa Praditphan, as "my son" and that when he corrected her and said that he was actually her son-in-law, Amy responded by saying: "No, you are my son". This evidence relates to a period approximately five months prior to the execution of the Thai will and I give it little weight in assessing Amy's testamentary capacity at that time. Amy's confusion is perhaps understandable considering that this conversation took place in the mid-period of her hospitalisation after her brain cancer was detected. The evidence also needs to be weighed against all the other relevant evidence bearing upon Amy's capacity when the Thai will was executed.
Matt acknowledged that in April 2020 he proposed that the main members of the Chat Thai Group each put in $100,000 to keep the restaurant chain afloat in the midst of the pandemic. He said he did not run this by Amy first, because he and Bob had agreed that he should go through Bob first before troubling Amy and she would get involved only if it was a matter of particular significance. I accept that evidence. It is clear that Bob was assisting Amy throughout this period with the administration and operations of the Chat Thai Group.
Matt was asked to explain why Amy had no shareholding interest in Chat Thai NB, where the shares were held by Palisa and him alone. He said that he believed that Amy was not told that she did not have an ownership interest, but he hastily added that he made it clear that the revenue from Chat Thai NB would be available across all the restaurants. Matt added that, in his opinion, the wider Chat Thai Group would not have performed as well without the extra revenue from Chat Thai NB.
Finally, Matt gave detailed evidence concerning his acknowledgment that he and Pat did not get along well together. I accept that evidence.
I found Matt to be a truthful witness but his evidence is of limited value in assessing Amy's testamentary capacity.

[18]

(i) Bob's evidence

Bob gave his evidence with the assistance of an interpreter. I found him to be a truthful and responsive witness and I accept his evidence without reservation. He listened carefully to the interpreter and gave his answers confidently and frankly, while making appropriate concessions. He was subjected to a searching cross-examination and maintained his composure throughout. As will shortly emerge, I reject the challenges to his credibility.
When working in Australia for about 10 years from 1982 to 1993. Bob had several jobs, including as a housekeeper of a hotel and a carpark attendant. He also helped Amy with her cooking business. In cross-examination, he was asked several times why he did not refer to Hua Hin Farm by its real name, "Palisa Farm". He gave an adequate and acceptable explanation that he referred to it by its geographical and not personal name.
Bob gave consistently firm evidence that while he would assist Amy by sending LINE app messages on his phone when they were talking in a group, he never used Amy's email to send any messages. This assumed particular importance later in his cross-examination when it was suggested to him that an email written in the third person and ostensibly sent by Amy on 23 January 2020 (shortly after she had been admitted to hospital in Bangkok) was actually written by him. He repeatedly denied having written the email, which was about rent for one of the Chat Thai restaurants. He said that he had had a discussion with Amy when she was in Sydney in what must have been late December 2019 regarding rent on one Sydney property which was owned by a landlord based in Thailand. He agreed at her request to speak to the landlord about rent and he said he also prepared a spreadsheet on rents to help her. I reject any contention that Bob drafted and sent the email and not Amy herself.
Bob was closely questioned about a reference in his affidavit to Amy thinking about obtaining life insurance in Thailand. He corrected that reference to say he meant to say health insurance. He said that Amy had raised with him the desirability of them both getting health insurance, not life insurance. I accept that evidence.
Bob was closely questioned about the Australian will which Amy first showed him in November 2018. Bob repeatedly said that he saw it as his duty as executor to keep the terms of any will secret until Amy died. He added that he well knew that a person is at liberty to change the terms of their will while they are alive. When Bob was pressed on his views as to the contents of the Australian will and the division of property between Palisa and Pat, he said that they were matters for Amy to determine, not him. I accept this evidence.
Bob acknowledged that after Amy was discharged from hospital in mid-February 2020, she sometimes had difficulty with motor function in her hands and could hold items longer sometimes than other times. I accept that evidence. It serves to demonstrate Bob's preparedness to acknowledge aspects of the evidence which cast some (limited) doubt on Amy's physical and/or mental health at a particular time.
There was a lengthy cross-examination of Bob regarding a Chat Thai Group meeting (which included Amy) held on 3 March 2020. It was attended by various Chat Thai employees (either in person in Bob's home or via the LINE app). After the meeting, Bob prepared a written summary of the meeting and distributed it on the LINE app. A wide range of business matters were discussed. Amy was present for the whole meeting.
Bob gave unchallenged evidence that around April or May 2020 he and Amy discussed restructuring Chat Thai's management so that Pat would be responsible for operations and employees and Matt would be responsible for sales and marketing. That evidence indicates that at that time Amy was actively involved in Chat Thai's operations and was making decisions as the acknowledged leader of the Chat Thai Group. True it is that Bob was assisting her in this regard, but that does not derogate from the central and leading role which she continued to perform, despite her physical health problems and treatment.
There was an extensive cross-examination of Bob on the drafting of the Thai will, including the extent of Mr Kasemnate's role in that process. The thrust of the questioning was evidently designed to have Bob agree that the only legal advice he received from the Thai lawyer was with respect to the practical steps of executing a will and that no or little advice was given on its contents. It is clear that Bob personally took on the task of drafting the will, relying upon parts of the Australian will. I accept Bob's evidence that he showed Amy various drafts (of which there may have been two or three) to make sure they reflected her wishes. In addition to the discussion at the hospital with Mr Kasemnate present on 2 June 2020, I also accept Bob's evidence that there were various telephone calls with Mr Kasemnate, with Amy participating, before Bob gave the final draft of the will to Mr Kasemnate to settle.
Finally, I accept Bob's unchallenged evidence that, on 24 June 2020, "Amy appeared normal". I regard this as significant supporting evidence as to Amy's testamentary capacity. Bob and Amy were very close family members and he was in a unique position over many months to observe and assess the effects on Amy of the brain cancer and the treatment she was receiving. Bob freely acknowledged that there were periods when Amy was physically unwell. For example, he deposed to a conversation which they had in early June 2020 when Amy told him that she needed him to represent her for the Chat Thai Group as she was, in her own words, "currently ill and cannot work properly". This does not mean, however, that she lacked testamentary capacity. Merely because Bob took on an increased role in assisting Amy in the conduct of the Group's businesses and operation from about May 2020 does not demonstrate that Amy lacked testamentary capacity.
A controversial point relates to the omission of any reference in the Thai will to Palisa's children. In Bob's cross-examination, counsel made much of the fact that in [41] of his first affidavit Bob said that Amy's intention was for Palisa's children ultimately to inherit (some or all) of the land comprising Hua Hin Farm, but that it would initially be bequeathed to Pat with an expectation that he would pass it on to the children, presumably when they reach majority. Bob acknowledged that this particular wish was not carried through and he may have overlooked it in his drafting.
It needs to be borne in mind, however, that the evidence suggests that Amy's deliberations were evolving throughout the period from around March 2020. Events were progressing and while it is clear that in May 2020 she ultimately wanted at least some of the farmland to eventually go to Palisa's children, when she then gave instructions as referred to in [54] of Bob's affidavit there was no reference to the grandchildren. It is open to conclude that she may have changed her mind (or simply trusted Pat).
Bob was criticised by counsel for not having kept a record of the discussions he had with Amy regarding the drafting of the will, or of the various meetings and discussions with Mr Kasemnate on that topic. This was contrasted with Bob's evidence that his practice was to record discussions with Amy so that he could accurately implement any instructions she gave him. I believe this criticism of Bob was misplaced. I accept Bob's evidence that he never expected that the Thai will would be controversial.
Bob was cross-examined at length about the conversation he had with Amy on 12 August 2020 when Matt raised the proposal to establish Chat Thai NB Pty Ltd. Bob agreed that he did not pass onto Amy that Matt had told him that the revenue from that operation would go to the Group generally. It was put to Bob that this was because he wanted to fuel Amy's hostility towards Matt. Bob said that he did not believe Matt when he said that the revenue would flow to the Group and that he was vindicated by the fact that it did not happen afterwards. This evidence contrasts with Matt's evidence where he claimed that the revenue flow from Chat Thai NB to the wider Group helped it survive COVID (see [54]-[55] above). I was not taken to any financial statements or accounts which reveal the true position. I do not consider that it is necessary to resolve this dispute between Matt and Bob.
There was also a lengthy cross-examination regarding Bob's involvement in the sale of the Seaforth Property. He said he did not know when the Seaforth Property was on the market, nor did he know where the proceeds of sale went. Bob's only knowledge of the property seems to be that it was referred to in the Australian will. I accept this evidence.
Palisa's counsel made several other criticisms of Bob's evidence. For the following reasons, I do not accept those criticisms. First, it was submitted that Bob's evidence at [31] of his first affidavit (which relates to Bob's observations of Amy in February 2020) that "Amy was alert and able to remember things that happened recently, as well as in the longer term past…" was "vague, and devoid of specificity". The same criticism was directed at Bob's evidence concerning Amy's mental capacity around 14 February 2020 when she was discharged from hospital. Bob described her mental capacity then as being "normal as she was able to speak normally, although a little slower".
I reject those criticisms. Bob's description of his observations of Amy, with whom he was particularly close, were the kinds of observations which one would expect to be made about another family member in Amy's condition. Nor were they lacking in particularity. For example, when Bob deposed that Amy knew what she wanted to do each day (referring to the period around when she was discharged from hospital on 14 February 2020), he explained that this meant that "she planned each day in advance, identified the tasks she wanted to do, and then did them, and I observed her speaking to Pat's children regularly".
Secondly, it was contended that the Court should give no weight to Bob's evidence where he said: In about April 2020, Amy started chemotherapy treatments which she continued to have once every three weeks which I accompanied her to. On the days Amy received chemotherapy, she would be tired and show some signs of physical weakness. However, Amy did not ever appear to have been mentally affected by her chemotherapy treatments. For example, she was able to recall the progress of her treatments. After a treatment, Amy and I would have a conversation in words to the following effect: I said: "How do you feel?" Amy said: "I'm okay." On other occasions, Amy would say words to the following effect: "I'm very tired."
It was contended that, if this evidence was offered as affirmative proof that Amy had capacity, it is difficult to see how it corroborated the "basal premise" that "Amy did not ever appear to have been mentally affected by her chemotherapy treatments". The submission fails to acknowledge the distinction between the physical and mental affects observed by Bob of Amy's chemotherapy treatments.
Thirdly, in closing submissions, counsel referred to Bob's evidence that, each time he produced a draft of the Thai will, he had Amy go through each paragraph and each sentence by reading them herself when Bob simultaneously moved his fingers along each sentence. Counsel submitted that it was significant that Bob never said that he asked Amy whether she understood what was being read.
This submission does not accurately reflect Bob's oral evidence on this subject which, for completeness, was as follows: Q. Once you had a draft prepared, how did you confirm with Amy that that draft reflected what she wanted? A. INTERPRETER: So, each time I produced a draft of the will, we'd go and have Amy go through each paragraph, each sentence, to confirm that. So I printed it out for her. Q. How did you know that she agreed with what was written on the page? A. INTERPRETER: So, I read it sentence by sentence for her to hear, and she would say, "Yes, okay, okay". Q. I observed, as you were providing that answer, that you were tracing your finger across the page. Whose ‑ sorry, I withdraw that question. As you were answering that question, you were tracing your finger across the page. Was that a movement that you did, or was that a movement that Amy did? A. INTERPRETER: So, I was following, pointing it out with my finger, and going along the line of his sentence, and Amy was reading what I was pointing out. Q. And how do you know that Amy was reading? A. WITNESS: I saw her, when I ‑ when I read, and then I look at her.
A reasonable inference can be drawn from Bob's description that he was satisfied that Amy understood what she was reading, as is reflected in Amy repeatedly saying "Yes, okay, okay".
Fourthly, Bob's evidence was criticised because, contrary to Bob's evidence that he had prepared several drafts of the Thai will, Mr Kasemnate's evidence was that he had only seen one draft. Counsel submitted that this meant "that Amy was, at best, given one opportunity to (allegedly) read the draft version of the 2020 will". This submission is rejected. It seeks to have the Court infer from Mr Kasemnate's evidence that he was only provided with one draft of the will and that, contrary to Bob's evidence, Amy was also only shown one draft. I accept Bob's evidence that he showed Amy more than one draft of the proposed will and had her read them in the way described above, but he provided only the final draft for Mr Kasemnate to settle.
Fifthly, I reject the claim that one particular part of Bob's evidence is "wholly implausible". This relates to Bob's evidence under cross-examination regarding his statement that Amy had asked him in about early April 2020 why Matt's name was in her will where in fact Matt's name does not appear in the Australian will. In order to explain why I reject this submission, it is necessary to set out both [39] of Bob's first affidavit and the relevant part of the transcript relating to the cross-examination of Bob on that paragraph: On 4 April 2020, Richard sent an email to Palisa, Amy, Matt and myself with the draft clauses Palisa requested. The draft clauses gifted Amy's interest in the Mosman Property and Boon Luck Farm to Palisa and Matt which was not Amy's intention. Amy never wanted Matt to receive any benefit from her estate. After receiving the email, Amy said words to the following effect: "Why is Matt's name in the will?". A copy of this email is exhibited to me at page 18 of Exhibit KY-1.
The relevant part of the transcript is as follows: Q. …In any event, you give some evidence in paragraph 39 of your affidavit that after receiving Mr Mitry's email, Amy said to you words to the effect of, "Why is Matt's name in the will?" Do you recall Amy saying that to you? A. INTERPRETER: Yes, I remember that. Q. Had Amy forgotten what was, in fact, stated in that will? A. INTERPRETER: Amy had not forgotten. She knew that she had only given Palisa's name. Q. Well, if Amy knew what was in the will, Mr Yongpairojwong, why was Amy asking you after 4 April, "Why is Matt's name in the will"? HIS HONOUR: I just don't follow this at all. I must be missing something, because I thought that that's a reference to the clauses that were drafted‑‑ MAROYA: It is, your Honour. HIS HONOUR: --by Mr Mitry. MAROYA: It is, your Honour. HIS HONOUR: Well, that's not the 2017 will. That's some proposed codicils to the 2017 will. MAROYA: Well, the way the evidence is given, your Honour, is different, with ‑ I appreciate your Honour's question, but the way the evidence is given by the deponent is different. HIS HONOUR: You go ahead. MAROYA Q. You report, in paragraph 39 of your affidavit, Mr Yongpairojwong, that Amy said words to you to the following effect, "Why is Matt's name in the will?" Do you recall that? A. INTERPRETER: Yeah, Amy was wanting to know why is it that Richard had written that Matt's name should be in the will as well. Q. Did you, at any time, tell Amy, "No, Matt's name is not in the will"? CHAPPLE: I object to that question. HIS HONOUR: Why? CHAPPLE: He has just responded ‑ the witness has just responded that it was in reference to the email that was sent. The question that is now being asked is not responsive to that answer. HIS HONOUR: I think that's a fair objection, if you want to rephrase the question. MAROYA Q. Did you reassure Amy, Mr Yongpairojwong, that Matt's name was not mentioned in any will? A. INTERPRETER: Are you referring to the 2017 will? Q. Yes, which was the only will in existence at the time. A. INTERPRETER: Amy was the one who wrote the will. I didn't know what ‑ initially, what she had written. But Matt's name was not in the will.
I do not regard Bob's evidence as "wholly implausible". As was pointed out in an exchange with the Court during the course of the cross-examination, the relevant exchanges between Amy and Bob have to be viewed in context. They were directed to clauses which had been drafted by Palisa's solicitor, Mr Mitry, with a view to them possibly being added to the existing Australian will. Thus when Amy asked why Matt's name was in "the will", she was plainly referring to the clauses drafted by Mr Mitry with a view to the Australian will being varied so as to clarify and confirm Amy's intentions regarding the Mosman Property and Boon Luck Farm. Fairly viewed, she was not referring to the existing Australian will.
Pat called three Thai witnesses who gave evidence by audio visual link from Bangkok with the assistance of an interpreter, starting with the Thai lawyer, Mr Kasemnate. I will address their evidence in turn.

[23]

Fern's "ping pong" evidence

In view of the emphasis given in Palisa's case to one aspect of Fern's evidence with respect to the matter of Amy's testamentary capacity, it is necessary to dwell at some length on the significance of voice messages left by Amy on the Chat Thai LINE staff group on 26 and 27 August 2020. In brief, counsel submitted that this evidence, which relates to events approximately two months after the Thai will was executed, involved Amy repeating herself within a short period. It was claimed that this indicated Amy's declining cognitive functioning.
It is necessary to set out [23] and [24] of Fern's affidavit: On or about 26 August 2020, Amy left a voice message on the Chat Thai staff group chat about her son Kulphat Laoyont (Pat) looking after her in Thailand. Amy said words to the following effect: "Happy birthday Ping and Pong [staff members of Chat Thai]. Thank you for everything. Thanks for looking after Chat Thai and thanks for your love for Chat Thai. In this photo that I took, the doctor asked me to blow up the balloon. Breathing in and out with mindfulness. I am getting better and better at it. I am trying to treat myself and look after myself and Phi Gat [Pat] is also looking after me. He is spoiling me, making me feel warm and secured because I have Phi Gat here, he is like a representative of all of you. Phi Gat himself is thinking about work. He is going back because lots of work are waiting for him. Phi Gat is working here in the farm. He has to change himself. The job he has done, it's very beautiful, all the corners of the farm. I am glad to see that. Phi Gat is ready to go back to manage Chat Thai. I have taught him many things, many different things. So anyway, we may be talking constantly now. I love everyone, especially you Ping and Pong. Thank you and please look after [the business] for me. Happy birthday. I forgot to tell you, in the photo, the doctor told me it is called ping pong. It's a medical equipment. I have to blow it. I have to take a deep breath and blow it out completely. Doing this whole day, it's making my lung better and I am breathing better". Amy's voice was very clear when she spoke and she did not appear to be confused or have any issues with her memory or mental capacity. A recording of this voice message is exhibited to me and marked SK-1.B. On or about 27 August 2020, Amy left me voice message about Pat taking over the running of the Chat Thai restaurants. Amy said words to the following effect: "Yesterday I pressed the wrong button. I pressed All Staff. I actually wanted to press All Star. Never mind, what happened has already happened. People can then understand that I am starting to get Gat [referring to Pat] in there and who will be the person who will actually become the leader. Any feedback please let me know." Amy's voice could be clearly heard…. A recording of this voice message is exhibited to me and marked SK-1.C.
The reference at the end of [23] to the Exhibit marked "SK-1.B" is a reference to a recording of Amy's voice message on 26 August 2020. The message was in Thai and was translated by Fern as set out in [23] of her affidavit.
In cross-examination, Fern was shown a copy of a screenshot dated 26 August 2020 of a LINE app chat. The screenshot shows a message was sent by Amy at 7.42pm on that day and comprised a photograph of a breathing apparatus, which included three coloured ping pong balls. Immediately beneath the photograph was an icon of a voice message from Amy lasting one minute and 52 seconds, which was sent at 7.44pm. There was a further voice message sent by Amy three minutes later at 7.47pm. In cross-examination, Fern confirmed that the message set out in [23] of her affidavit represented the first of Amy's voice messages. She was then asked whether she remembered what Amy said in the second voice message, to which she responded: The information that I put in my affidavit is the combination of both voicemail (sic). That's the message of both voicemails together.
In other words, Fern was clearly stating that both these voice messages were included in the translation of those messages from Thai to English in [23] of her affidavit.
Fern was then shown a separate translation of the second voice mail from Thai to English. That transcription and translation of the second voice mail is as follows: I forgot to mention that the doctor said that the thing in this picture is a ping pong. It is a medical device. It requires blowing, sucking deeply, and long blowing. Like this all day. Its made my lungs improve. I can breathe. I can breathe easier.
Fern said that the two voice messages had been posted to many more people than her, probably numbering more than 100. She explained that Amy's voice messages related to birthdays being celebrated by two Chat Thai staff, one named Ping and the other named Pong. Fern was asked whether she thought it was "peculiar" that Amy told the recipients twice within a three minute period that "this thing was called a ping pong".
After Dr Chapple objected to that question, Mr Maroya put to Fern that, in the first voicemail message, there was talk of "blowing the ping pong", a proposition with which Fern agreed.
This affirmative answer by Fern seemed to then provide the foundation for Palisa's submission that there was serious doubt about Amy's cognition at this time because she had repeated herself within the space of three minutes about the ping pong machine.
For the following reasons, I reject Palisa's contentions regarding these voicemail messages. First, contrary to what was put to Fern in cross-examination there was in fact no mention in the first voicemail that Amy was "practising breathing using the ping pong machine" or "blowing the ping pong machine". The only reference to this subject in the first message as set out in the interpretation at [23] of Fern's affidavit was that Amy had been asked by the doctor "to blow up the balloon". The first message as set out at [23] of Fern's affidavit does not contain any explicit reference by Amy to the "ping pong machine" in those terms, contrary to what the cross-examiner put to Fern. When Fern agreed with Mr Maroya's description of this aspect of the first voicemail, I infer that she was simply substituting in her own mind the term "balloon" for the expression used by the cross-examiner, namely "ping pong machine". The only reference in the first message to the words "Ping" and "Pong" are to the two Chat Thai staff members who were celebrating their birthdays on 26 August 2020.
Secondly, the contentions gloss over the fact that Fern gave clear evidence under cross-examination that she combined the two voice messages from Amy in [23] of her affidavit. I accept Dr Chapple's submission that the second message starts with the sentence "I forgot to tell you…" in [23] of Fern's affidavit.
Thirdly, Fern said at [24] of her affidavit that on or about 27 August 2020 "Amy left me" (emphasis added) a voice message about Pat taking over the running of the Chat Thai restaurants. She added that Amy also said words to the following effect: Yesterday I pressed the wrong button. I pressed All Staff. I actually wanted to press All Star. Never mind, what happened has already happened. People can then understand that I am starting to get Gat [referring to Pat] in there and who will be the person who will actually become the leader. Any feedback please let me know.
This voice message appears to have been sent to Fern personally (as is reflected in Fern's use of the personal pronoun "me"), and not to a wider group as had occurred with the two voice messages sent at 7.44pm and 7.47pm on 26 August 2020. It may also be inferred from the 27 August 2020 voice message which Amy sent to Fern that Amy was conscious of the fact that she had made a mistake the previous day by sending her messages to a wider group of recipients, which was not her intention. She then rationalised, however, that this had happened and that she was not unhappy about her mistake because her message to the wider group broadcast her intention of having Pat become the leader of the Chat Thai Group. Far from this reflecting adversely on Amy's cognition, her recognition of her mistake and her subsequent rationalisation that the mistake may in fact have had unexpected advantages provides evidence which supports Amy's cognition at this time. That is further reinforced by the fact that, in sending the second message, with the reference to the doctor calling the machine "ping pong", Amy displayed a good sense of humour and was demonstrating this quality in the context of her having sent birthday wishes to her employees Ping and Pong.
Fourthly, and for what it is worth, I do not see any significant differences between the interpretation of Amy's second voice message sent at 7.47pm on 26 August 2020 as translated in the latter part of [23] of Fern's affidavit and the separate translation which Mr Maroya used in his cross-examination of Fern relating to that second voice message. The differences reflect different but insignificant interpretations by two different interpreters of what Amy said in Thai.
I firmly reject Palisa's submission that this evidence casts doubt on Amy's cognitive functioning in the period 26-27 August 2020. Indeed, I draw the contrary inference for reasons explained above. I should add that the inordinate amount of time devoted to this issue, both in cross-examination and in closing submissions, indicated a degree of desperation in striving to identify any evidence which might allegedly cast doubt on Amy's testamentary capacity.

[24]

(vi) Pat's evidence

Pat swore four affidavits filed on 8 April 2022, 29 April 2022, 20 October 2022 and 27 September 2023. I do not accept Palisa's contention that Pat was "a most unsatisfactory witness" who dissembled and was unprepared to make direct and frank answers to questions. I will explain why I reject those claims in the course of summarising Pat's evidence (most of which I accept).
In his first affidavit, Pat described how he graduated in 2005 from the University of New South Wales with a Bachelor of Architecture. He said that he started to become involved in the Chat Thai business, particularly with new designs, branding, marketing and fit outs of the restaurants. He said that from about 2005-2007, he started to become involved in the "operations and management of Chat Thai", and that he worked side by side with Amy in making executive decisions.
He said that Amy became unhappy with the direction of Boon Luck Farm after it was purchased in late 2015. He said that she told him she was frustrated because she told Pat that Palisa and Matt claimed that she did not know anything about farming.
Pat gave evidence that, during the period November 2018 - November 2019, he and Amy would talk about weekly operational issues relating to the Chat Thai businesses either in person, by LINE app messages, or texts. He said that his mother asked him for weekly updates on the financial performance of each business in the Chat Thai Group and that she was also frequently in contact with Sam, the executive chef. Pat said that his design team at his company called Archstallation also worked with Amy on the buildings at Hua Hin Farm and the development of its in house restaurant in relation to menu designs and graphics, as well as the logo design. I accept that evidence.
Pat described how he travelled to Bangkok on or about 23 January 2020 to visit his mother after she had been hospitalised. Pat annexed to his first affidavit various videos which he took of his mother when she was celebrating, for example, her birthday in Bangkok on 16 February 2020. Pat said that he came back to Sydney on 18 February 2020 but then returned to Thailand on 21 May 2020, where he remained with Amy until about mid-November.
Pat annexed to his first affidavit a copy of a video taken on 22 June 2020 of Amy attending a physiotherapy session of which he was also present. I will return to this and some other videos in due course.
Pat deposed that he was not involved in the making of the Thai will and did not become aware of it until after Amy died. I accept that evidence.
With regard to the transfer of Amy's shares to him on 1 July 2020, Pat said that he and Bob signed the share transfer forms. He said that Amy told him that she wanted him to do the best job of looking after the Chat Thai businesses and that she trusted his decisions "like you have looked after our farm in Hua Hin". I accept that evidence.
Pat gave evidence of Amy communicating with Sam in mid-July 2020, regarding the menu and promotions of the restaurant at Hua Hin Farm. He explained that the voice messages were no longer available but he exhibited screenshots of the voice messages to his first affidavit. Pat also gave evidence concerning Amy's disappointment about Palisa and Matt opening Chat Thai NB and that she told him that she did not consent to them using the name Chat Thai.
Pat annexed to his first affidavit a copy of a video taken in October or November 2020 when he was driving Amy to her chemotherapy treatment. The video shows Amy singing one of her favourite Thai songs (see further below).
With Amy's encouragement, Pat returned to Australia in mid-November 2020 shortly before Amy went into a coma.
I accept Pat's evidence in his first affidavit.
Pat's second affidavit contained his responses to Palisa's affidavit dated 11 April 2022. Many of the matters related to the nature and extent of his involvement in the Chat Thai business and the performance of his duties. He also deposed to a conversation he had in Thailand in November 2018 when his mother told him that she trusted him to take care of all of the Chat Thai businesses while she was receiving medical treatment. I accept that evidence.
Pat's third and fourth affidavits were primarily directed to Palisa's family provision claim. Pat gave evidence as to his personal assets and liabilities. He also said in his third affidavit that he "designed" the home built by Amy on Hua Hin Farm and that he paid for its construction at a cost of approximately $500,000. These matters drew some criticism from Palisa's counsel. It was submitted that Pat changed his position from having designed the farmhouse, to having given Amy "and the architect" some advice or ideas about design. The criticism is well-placed but it is difficult to see its relevance to any aspect of Palisa's case. I reject any suggestion that the matter warrants an adverse finding concerning Pat's credibility generally.
Pat's evidence regarding him paying the construction costs at a figure of approximately $500,000 was criticised as being "wholly unsatisfactory and unconvincing". Pat was unable to produce any invoices or other documentation in support of his claim. He simply said that the money was paid by his stepbrother in Thailand using Pat's funds. He said that the stepbrother would have the relevant invoices. Again, while there is some force in counsel's criticism of this aspect of Pat's evidence, I am not prepared to make a general finding that Pat lacked credibility.
During the hearing, with leave, Pat was asked questions in chief regarding [37] of his first affidavit with respect to his mother's plans to open the Hua Hin Farm for visitors. He gave evidence about her instructing him as to where to buy particular seedlings and when to plant them. He said that she planned to reopen the farm in June 2020 which caught him a little by surprise. He referred to her instructions having been given a few months before then and that she was planning a menu with an emphasis on salad using lettuces and seasonal vegetables. He gave an example of lotus root curry as one of the dishes Amy wanted to serve to visitors, whose presence would make her happy.
Under cross-examination, Pat was asked various questions relating to that additional evidence-in-chief. It was put to him that prior to June 2020 he had little knowledge about produce to which he replied that he had been given general information by Amy between 2012 and 2020. I accept that evidence.
Pat was then asked about the operations on the Hua Hin Farm. He explained how Amy collected over time various plots and that that main plot was ultimately called Palisa Farm from about 2016 onwards. He accepted that he had no role in developing the logo for Palisa Farm. Pat was asked why he still called it Hua Hin Farm and not Palisa Farm and he explained that this was because it was the amalgamation of various lots and only the largest lot is called Palisa Farm. That makes sense and I accept Pat's explanation.
Pat was cross-examined closely about the nature and extent of his role in Chat Thai from as early as 2001, when he was a student studying architecture. He was taken to that part of his affidavit where he said that he became involved in executive decision-making from about 2005-2007. He confirmed that the information in [37] related to a time when his mother had been released from hospital and was back at the farm. He confirmed that when he was with his mother he would not communicate with her over the LINE app.
Pat said that from 2005 he had an active role in helping Amy with the management of the businesses, some of it done through his company Archstallation, which he had set up when he was a university student and provided services for graphics and design. I accept that evidence.
Pat said that he had been responsible for designing the Chat Thai logo but accepted that there was no copy of that in the evidence. He also accepted that he was a director of Chat Thai Pty Ltd and that was the only company within the group of which he was a director during Amy's lifetime.
Pat was asked about whether or not his mother stayed with him in his Cremorne home when she visited Sydney. His answers were persuasive: he said there was not sufficient room for her in a 3-bedroom house given that his eldest child (now 9 years old) had been born and the third bedroom was used as a study by his then-wife Natasha and himself.
Pat was asked questions about his knowledge of the types of vegetables that were grown at Boon Luck Farm. He said that he did not know. This led to a series of questions which were directed at the nature and extent of Pat's knowledge of the Chat Thai business arising from his claim to have an executive role. Pat said that he delegated the buying of produce for the restaurants to management. I accept that evidence.
Pat was cross-examined at length regarding his claim that he was involved in executive decision-making with Amy. He said that the accounting team was responsible for the balance sheets of the companies. He described his executive decision-making as reviewing weekly and daily intakes and getting reports on things like BAS, payroll tax and leases. He also oversaw project costs. He then identified various matters in which he had been involved including maintenance and renovation, namely the redesign of the restaurant in 2001-2002 in Town Hall, the redesign and partial fit out of Randwick where he also did the graphics in 2003-2004, and the redesign of the interior and logo in Haymarket in 2006-2007. Pat said that these were not the only projects in which he was involved and he was involved in all projects undertaken by Amy. I see no reason to doubt this evidence.
Pat confirmed that he did not have a particularly close relationship with Palisa and that as siblings they had fought constantly, particularly because they were frequently left at home for long periods while Amy was working. He said that their relationship "mended" when Palisa was overseas for five to seven years. He said that he visited her twice in Tokyo and received a few postcards from her.
Pat denied that Bob complained to him about Matt after Amy was discharged from hospital on 14 February 2020. Pat left Thailand on 18 February 2020 and returned there on 21 May 2020 where he stayed until 15 November 2020. Although he initially said that this time was in Bangkok, it is clear that he was with his mother at Hua Hin Farm for some of that period. He engaged two carers to help Amy at the Farm before he returned to Australia.
Pat was asked whether he had instructed a Mr Yaw to do searches of office holders and shareholders of the ten group companies. He said he had no recollection. He was shown Exhibit 9, a document dated 7 May 2020. He agreed that it seemed that he was the one who had asked for that information. He said he could not recall why he had done so. He had no recollection of discussing that information with Bob in 2020. I accept that evidence.
Pat was asked a long series of questions relating to the share transfers on 1 July 2020. He said that Amy told him about it around that time but that he did not discuss the matter with Bob, even though both signed the transfers. When it was put to him that this constituted a change to what would have occurred under the Australian will, Pat said that he did not know the contents of that will and that he had not seen a copy nor was he told about it by Amy. I accept that evidence
Pat was cross-examined about the sale of the Seaforth Property. Essentially, he denied any involvement in the matter, which is perhaps surprising given that the net proceeds were ultimately paid into a joint account held by Pat and his wife Natasha (from whom he is separated). It appears from various documents which were tendered in re-examination (Exhibits E, F and G) that Amy gave a power of attorney to Natasha and that it was she who proceeded to initiate the sale of the house, which settled in October 2020. In accordance with Natasha's instructions, as confirmed by an email sent in reply by Amy, the net proceeds after paying out a Westpac mortgage were about $524,000 which were paid into a joint account held by Pat and Natasha. This was approved by Amy in an email dated 29 July 2020 which she sent to Natasha.
Pat was cross-examined about two ASIC registrations of the transfer of shares from Amy to him relating to Amonrat Pty Ltd and Chat Thai Pty Ltd which occurred on 1 December 2020. The ASIC documents state that Amy was the signatory (which seems remarkable given that she went into a coma in late November 2020). It was repeatedly put to Pat that either he or Bob must have given instructions to Mr Yaw. Pat denied that he had given those instructions and said that Bob would have to be asked whether he did.
Apparently in December 2020, Pat instructed Avanto Legal to enforce the intellectual property rights held by Chat Thai with respect to the Chat Thai NB project. When it was put to him again that he must have given the instructions for the ASIC registrations previously, he denied it and said it could have been on Amy's initiative before she fell into a coma. That explanation is at least plausible and I see no basis for making an adverse finding regarding Pat's credibility.
Pat was asked a series of questions about his gambling habits, the relevance of which was never made clear (apart perhaps from disparaging Pat). Accordingly, I will not dwell on that topic.
In further cross-examination, it was put to Pat that he may have sent the email on Amy's account on 29 July 2020 in which she confirmed Natasha's request for instructions to put the proceeds of sale of the Seaforth Property into a joint account operated by Pat and Natasha. Pat denied helping Amy with her reply. Instead, he was adamant that he had never helped her with her emails. I accept that evidence.
Pat confirmed at [42] of his affidavit that he was not aware of the Thai will until after Amy's death. He said Amy never told him about it nor did he discuss it with Bob. I accept that evidence. It is consistent with Bob's strong view that, as Amy's executor, he should not discuss the contents of her will with anyone before she died.

[26]

(i) Dr Dua

Palisa submitted that Dr Dua was a well prepared expert whose opinion remained "intact and unshaken" after cross-examination. In closing address, the following parts of Dr Dua's evidence were emphasised by Palisa.
Regarding the state of the Thai medical records, Dr Dua said that: 1. The medical records "not clear or comprehensive". 2. In Australia, medical reports would also comprise entries from various parties, including the pharmacist, medical registrars and consultants to properly assess "in a multi-mortality way" (i.e., multimorbidity). 3. Having the day-to-day observations/examinations of the registrar would have assisted Dr Dua to make more specific observations about Amy. 4. However, he said that while it is difficult, he also had to make a judgment call in terms of the patient, and the experience he has with the treatment of lung cancers. 5. There was a need to consider some of these reports in the context of Amy being an oncological patient undergoing chemotherapy. 6. Concerning an outpatient medical note dated 27 February 2020 from Vejthani Hospital which recorded the results of a general physical examination of Amy on that day. Dr Dua said: 1. Amy's "Glasgow Coma Scale" (a test used to measure acute neurological function) of 15 is a good score in relation to monitoring acute neurological function, but it is not a measure of cognition; merely a measure of basic neurological function; 2. a pupil of 2mm means a constricted pupil and usually means raised pressure in the brain - for some people it is due to a heavy dose of painkillers or a heavy dose of opioids; and 3. the reference in the note to "motor grade IV all extremities" (which means "normal") would have involved asking Amy to move her arms and legs. Basically, the doctors could not find any gross abnormalities with Amy's motor function, but it is not a detailed enough examination that you would use on a patient like Amy with brain metastases. 1. Dr Dua agreed that it was not clear whether Amy used breakthrough pain medication; however, Amy's constricted pupils at 2mm meant she was taking high doses of opioids (and based on her brain scan on 21 January 2020 which shows her brain had stabilised, which would have been due to opioids), even if it was unclear whether she took breakthrough pain medications. 2. Although there was no reference to any cognitive impairment in medical records dated 5 April 2020, 12 April 2020 and 13 April 2020, Dr Dua drew attention to the following matters: 1. The concern as at 5 April 2020, the concern would have been fluid in Amy's lungs and her inability to talk or breathe - consequently, matters such as fatigue or cognition would have been sub-acute issues with the acute issue being fluid in her lungs. Dr Dua drew attention to the fact that the note recorded Amy as being tachypneic and that her breathing was elevated at 26 breaths per minute. 2. The 12 April 2020 record noted that Amy was admitted for shortness of breath. Given that she had recently had chemotherapy, Dr Dua said that the primary concern was whether she had developed febrile neutropenia, which has a high mortality rate. He added that issues of fatigue and cognition would not have been of concern. 1. With regard to other discharge summaries, Dr Dua commented that they lacked information but that may not have been unexpected because they were simply focused upon Amy's chemotherapy as administered under the Thai medical system, which was different to Australia.
Dr Dua's evidence regarding Amy's medication may be summarised as follows.

[30]

(d) Levetiracetam (also known as Keppra)

While accepting that the common side effects included fatigue and mood changes, Dr Dua added that: 1. like osimertinib, the rate of fatigue and mood changes experienced will be higher than 10% in people with brain metastases; 2. he had not attempted to quantify the rate at which people suffer the side effects because it is partly an inexact science, partly because it depends on the clinical cancer, and partly because there have not been any clinical trials studying the effects of levetiracetam on this type of metastases, so it is hard with this sub-set of patients; and 3. Amy was treated with levetiracetam after 25 March 2020: on 14 April, 21 April, 12 May, 2 June and 24 June 2020. It was a long-term medication for Amy.
Regarding Amy's condition between 21 January 2020 and 14 February 2020: 1. Dr Dua said that the records do not include a diagnosis for cognitive impairment, because the diagnosis in the records is for billing purposes, rather than for the purpose of assessing Amy's function; 2. while Dr Dua accepted that he was playing "detective" with the medical records, he was able make his conclusions because the records say she "did have an insult to the brain and she had multiple brain spots"; and 3. in his view, there would not yet have been any observable side-effects to Amy, including in relation to radiotherapy (see also Dr Dua's observations in the following paragraph), because it was too early to observe side-effects; also, anyone on steroids would initially feel good, the level of fatigue/other side-effects would not be apparent for a number of days.
Regarding whole-brain radiotherapy treatments, Dr Dua said: 1. whole-brain radiotherapy usually comprises between five to ten treatments, which is standard; and 2. whole-brain radiotherapy could negatively impact Amy's cognitive function, particularly because she had active residual brain disease, swelling, multiple brain metastasis, so "that is not the ideal brain where we can actually" conclude that whole-brain radiotherapy would not result in negative decline.

[31]

My assessment of Dr Dua's evidence

Dr Dua is a medical oncologist with a specialisation in advanced lung cancer. He also gave evidence that he was a specialist in treating neurological cancer, but that he was not a neurologist.
Dr Dua opined that it was "…highly unlikely that [Amy] had the cognition to understand and appreciate the nature, impact and effect of the Thai Will and the Share Transfers". Dr Dua provided six reasons for this opinion, being: 1. the location of the brain metastases; 2. the effect of radiation therapy and chemotherapy; 3. the limited positive effect of treatment; 4. the presence of leptomeningeal disease; 5. the fact that the prognosis and chance of survival was small (although it is difficult to see how this provides a separate basis for Dr Dua's opinion to the matters set out in sub-paras (a)-(d) immediately above); and 6. a generalised observation that when a patient's disease progresses along a similar trajectory, they will "…almost always suffer cognitive impairment as a consequence of both the disease and its treatment".
I accept Pat's submission that the utility of Dr Dua's opinion is limited by the fact that it is based upon his review of limited medical records which documented Amy's treatment and hospital admissions. Dr Dua acknowledged that the records were not comprehensive, particularly in that they did not disclose a "day to day" record of observations and treatment. Dr Dua agreed emphatically that the "day to day" records would assist him in being more specific in his observations.
The medical records reviewed by Dr Dua did not have any notations or observations (at least prior to November 2020) of any cognitive impairment, or any reference to Amy suffering from cognitive side effects of her treatment. Dr Dua agreed that: 1. there was no reference to any cognitive impairment or Amy suffering from the effects of "chemo brain" in the discharge information dated 14 February 2020, 5 April 2020, 21 April 2020, 2 June 2020, and 24 June 2020; 2. there was no record of any concern about cognitive impairment in examinations of Amy conducted on 27 February 2020, 15 March 2020, 19 April 2020, 10 May 2020, and 21 June 2020; 3. when Amy was admitted to hospital on 12 April 2020 and again on 13 April 2020 with shortness of breath having been exposed to an upper respiratory infection in her family, she was examined generally and no reference was made to any concerns in relation to Amy's cognition; and 4. a physical examination of Amy was conducted on 27 February 2020. She was recorded as having "good consciousness" and received the top score on the Glasgow Coma Scale. Dr Dua accepted that these observations indicated that she had no "baseline end organ problems" and she was "grossly neurologically intact". Similar observations were made in hospital records dated 15 March 2020, 13 April 2020, 19 April 2020, 10 May 2020, 31 May 2020 and 21 June 2020.

[43]

(k) Lorazepam

Professor Ogden said that this drug is prescribed to treat anxiety and sleeping problems in adults. He said it is usually prescribed at doses of between 1-4mg/day and that Amy was prescribed one table daily. He noted that she was given 0.5mg on 24 June 2020 which he described as being a "lower dose" with less pervasive side effects.
Professor Ogden said that lorazepam can affect cognition but he acknowledged that a particular study about the use of the drug may or may not be relevant to Amy's circumstances.
On the topic of whole-brain radiotherapy, Professor Ogden noted that Amy received this type of treatment between 27 January 2020 and 7 February 2020, being a period of less than two weeks. He referred to a study which says that six months after whole-brain radiotherapy, there may be effects on cognition. Professor Ogden did not agree with the proposition put to him that Amy undergoing whole-brain radiotherapy for a period of less than 2 weeks would not affect her cognition. Professor Ogden clarified that no one undergoes whole-brain radiotherapy for six months straight; it happens in bursts.
On the condition of cachexia, which Amy obviously suffered because her weight had dropped about 30kg, Professor Ogden said that wasting away is concomitant with profound changes to the brain function. He said that the records in April, May, June and July 2020 of Amy's motor function being "normal" did not alter his views about her cachexia. She could be able to move her limbs and appear to have some muscle strength, but this wasting disease means she would have had reduced muscle strength and her muscle strength would not have been what it was before she was in hospital. He said "[n]ormal presumably means that it's 'okay for now'".
Professor Ogden gave two compelling personal case studies as to why he attached such importance to the need for close examination of a person in order properly to assess their cognition. He referred to a wealthy patient whom he had treated who wanted to change his will and the distribution of his significant assets both in Australia and overseas. After spending some time with the patient, Professor Ogden said that he became aware that the patient did not actually understand the nature of what he was doing.
Professor Ogden gave another telling example of his observations of his late father who wanted to change his will. He said his father told him that because Professor Ogden had children and his sister did not, he would give everything to Professor Ogden. Professor Ogden candidly said that he told his father that his sister was on a disability pension and needed support more than Professor Ogden did. He concluded that his father did not consider the implications of what he was saying. Professor Ogden said that this highlighted the desirability of a person having a close conversation with someone whose cognitive faculties needed to be assessed, preferably someone who is fully independent.
I entirely agree with this aspect of Professor Ogden's evidence. Ironically, it serves to highlight the fact that Professor Ogden did not have the same opportunity with Amy to observe her cognition personally in contrast with the other two cases he described so powerfully. This is to be contrasted with the advantage experienced by people such as Mr Kasemnate, Bob and Fern, who were able to observe Amy at close quarters.
Before stating my assessment of Professor Ogden's evidence, it is convenient first to explain why the proposed tender by Palisa of a supplementary medical report by Professor Ogden was rejected.

[44]

Professor Ogden's supplementary expert report

At the resumption of the hearing at 1pm on 25 October 2023, Palisa sought leave to file and reply upon a supplementary report by Professor Ogden dated 22 October 2023, as well as a letter of instructions dated 20 October 2023. In brief, the report states that having now reviewed the pleadings and lay evidence in the proceedings, Professor Ogden concluded that the opinions expressed by him in his earlier report had not altered.
In explaining the delay in obtaining the supplementary report, Mr Maroya said that Pat had made no objections to the contents of the earlier medical evidence. But in Pat's outline of submissions filed on 18 October 2023, there was an observation (or comment) that Palisa's experts had considered only the medical evidence in the Court Book, and not considered any lay evidence. Hence, counsel explained that supplementary reports had then been sought from both Dr Dua and Professor Ogden.
Pat opposed the grant of leave. Two reasons were given by counsel. First, in an earlier directions hearing before Hallen J, leave was given for Palisa to file expert medical reports which, at that time, were based solely on medical documentation. He explained that, in those circumstances, Pat took a forensic decision not to adduce expert evidence in response. That now changed with Palisa wanting to rely on supplementary medical expert reports based not only on medical evidence but also lay evidence. The second concern was that Pat was given no prior notice of the steps being taken by Palisa to obtain supplementary reports from both Dr Dua and Professor Ogden. If Professor Ogden's supplementary report was admitted into evidence, Pat would require more time to conduct the cross-examination which was then scheduled to occur in two days' time.
When asked what were the prospects of Pat being able to obtain expert evidence in response, Dr Chapple said that having regard to the scale of the investigation already, that was not the subject of his application. When I put to him that his first objection was really one of prejudice arising from the forensic decision not to call medical evidence in response, Dr Chapple was asked whether his client was in a position to obtain medical evidence in response. He said he could not do that.
In reply, Mr Maroya said that when Professor Ogden's report was first prepared not all of the lay evidence had been put on and the lay evidence in the Court Book is much more extensive.
I ruled that leave would not be granted for Palisa to rely upon the proposed supplementary report and I would give reasons in my final reasons for judgment. Those reasons are as follows.
First, Pat would suffer prejudice if leave was granted. This was not only because of the practical consequences of having to delay the scheduled cross-examination of Professor Ogden but also because, as Dr Chapple confirmed, there was simply insufficient time available before the end of the seven day hearing for Pat to obtain any medical evidence in response should he wish to do so.
Secondly, no adequate explanation was provided for the lateness of obtaining a supplementary report from Professor Ogden. Palisa was on notice from the time on 18 October 2023 when she was served with Pat's outline of submissions. She was then aware that Pat would contend that her expert medical evidence was of limited weight because her experts had not been briefed with the lay evidence. It was not until Friday 20 October 2023 (i.e., approximately two days' later) that Palisa's instructing solicitors sought to obtain a supplementary report from Professor Ogden, who admittedly responded very quickly and provided his supplementary report on Sunday 22 October 2023. But, as Dr Chapple pointed out, no notice was given to Pat's legal team that these steps were being taken. They were caught by surprise when they were provided with the supplementary expert report.

[45]

My assessment of Professor Ogden's evidence

Professor Ogden is a general physician with a specialty in addiction medicine. He stated that he was not an oncologist and does not treat cancer. For that reason, for example, he did not venture an opinion about certain medications (e.g., osimertinib).
Professor Ogden provided an opinion that "…the deceased's cognitive state would have been significantly impaired and diminished". That impairment was due to a combination of: 1. cachexia and physical debility; 2. declining brain function with cerebral metastases; 3. whole brain radiation treatment; 4. the effects of chemotherapeutic agents; and 5. the cognitive effects of fentanyl, morphine, olanzapine, and lorazepam.
Like Dr Dua, Professor Ogden was briefed with various medical records. Professor Ogden observed that the hospital records were not complete, which forced him to make various assumptions in preparing the medication summaries (i.e., that Amy took the medication prescribed in the discharge summaries during the period of time between hospital admissions). The records also did not include ongoing care notes, nursing notes, occupational therapy notes, and registrar's notes. Professor Ogden agreed that having regard to the "questions arising in this matter about the … health of the deceased at various times" those records "might have been very useful".
Professor Ogden prepared a comprehensive analysis of the various medications taken by Amy, which led him to identify fentanyl, morphine, olanzapine, and lorazepam as the most significant medications that had the potential to affect Amy's cognition. In relation to those medications: 1. Professor Ogden observed that side-effects of fentanyl can include sleepiness, confusion, hallucinations and euphoria. He observed that Amy was prescribed patches that dispensed 25mg/hour from April through to June 2020. On 24 June 2020, the dose was reduced to 12mg/hour. He accepted that a person can develop tolerance to both fentanyl and morphine, and that as time goes by the side effects of the treatment can decrease. Similarly, when a dose is reduced (such as occurred on 24 June 2020) the side effects will also likely reduce. 2. Professor Ogden acknowledged that the fact that Amy was prescribed certain medications does not mean that she necessarily took all of those medications. He accepted, in particular, that a person might be prescribed medications (such as morphine) to deal with "breakthrough pain", and she might only have taken that medication when the pain became too intense. Professor Ogden explained that such an approach would be an "absolutely completely normal prescribing practice". Indeed, there is evidence of this occurring in the medical records. 3. Amy was prescribed a dose of 5mg of olanzapine. He accepted that the likely side-effect is sedation, and if prescribed to be taken at night (as it was in Amy's case) the majority of the sedating effect would occur overnight. 4. Amy was prescribed a dose of 0.5mg of lorazepam. Professor Ogden accepted that this was a relatively low dose, and lower than that which might be prescribed to treat patients with anxiety or sleeping problems. He accepted that the lower the dose, the less pervasive the side effects were likely to be. Professor Ogden referred in his report to the effects of lorazepam on suggestibility and the operation of semantic memory, relying on a study in which patients who took lorazepam had a tendency to overlook distortions in statements. Professor Ogden accepted that the study on which he based that opinion was not evidence for the fact that all patients who took lorazepam would be affected in that way, and further that the patients tested in the study received a dosage of lorazepam that was three times higher than the dosage that Amy received. Professor Ogden ultimately put his opinion no higher than raising the "general point" that "Lorazepam can affect cognition". 5. Speaking more generally, Professor Ogden observed that the goal of any treating physician was to avoid or at least minimise the side effects of medication.
In relation to the effect of the various metastases in Amy's brain and the presence of leptomeningeal disease, Professor Ogden accepted that he could only speak in general terms about the general effect of cerebral metastases.
Professor Ogden placed particular emphasis on the fact that Amy likely experienced cachexia, having regard to her significant weight loss. He referred repeatedly to her "wasting away" and that her physical strength declined. But Professor Ogden did not place any significance on various physical examinations that revealed that her motor control and strength was normal. These observations were made on 27 February 2020, 15 March 2020, 19 April 2020, 10 May 2020, 31 May 2020, and 21 June 2020. He was unable to comment on the notation recorded in the medical notes of "motor grade IV all extremities" because he was not familiar with that test (Dr Dua explained that the test meant that Amy's movement and strength was considered normal).
Ultimately, Professor Ogden accepted that, in providing his opinion, he could not quantify the extent to which Amy's cognition was impaired and stated, quite candidly, that there was no basis on which he could. That is because, as Professor Ogden observed, the brain is a "complex organ" and that "the more you know about the brain, the more you realise you don't know". As noted above, Professor Ogden candidly acknowledged that the real way of determining what effect illness and its treatment have on a person is by having a conversation with the person.

[46]

(iii) Conclusions on the expert medical evidence

I do not doubt the expertise, professionalism and objectivity of either Dr Dua or Professor Ogden. The fact remains, however, that both their expert reports, although very comprehensive, are in the nature of desk studies. Neither of them saw or examined Amy. Moreover, and significantly, prior to finalising their respective expert reports, neither was given the advantage of reviewing any of the lay witness statements nor were they briefed with copies of the various videos which cast some light on Amy's physical and cognitive condition at various relevant points in time.
I accept Dr Chapple's submission that the medical opinions of both experts, while sincerely given, are largely speculative, based on incomplete medical evidence, and on assumptions drawn from generalisations and not from specific observations in the medical records. I do not consider that their opinions outweigh the evidence of the lay witnesses and other materials which support a finding that Amy did not lack testamentary capacity. The following observations of Vickery J in Nicholson v Knaggs [2009] VSC 64 at [41] are particularly apposite in the circumstances here: In the end it is for the Court, assessing the evidence as a whole, to make its determination as to testamentary capacity. In the present case, the opinions of expert witnesses as to whether the testator was competent or not competent, while not without weight, cannot be decisive as to testamentary capacity at the relevant times. The Court must judge the issue from the facts disclosed by the entire body of evidence, including the observations of lay and professional witnesses who knew and saw the testatrix at the time of her making the relevant wills and codicils. The manner in which she gave her instructions, the content of those instructions, the setting in which the instructions were given and the outcome of enquiries made by the solicitor acting in the matter, all assume importance.

[49]

Formal validity of the 2020 will

This Court has jurisdiction to grant probate or letters of administration in respect of a deceased person's estate if the deceased left real or personal property within the jurisdiction (s 40, Probate and Administration Act 1898 (NSW)).
In circumstances where the Thai will was executed in Thailand, it is important to note the effect of s 48 of the Succession Act, which provides: 48 General rule as to the validity of a will executed in a foreign place (1) A will is taken to be properly executed if its execution conforms to the internal law in force in the place: (a) where it is executed, or (b) that was the testator's domicile or habitual residence, either at the time the will was executed or at the time of the testator's death, or (c) of which the testator was a national, either at the time the will was executed or at the time of the testator's death. …
On the agreed basis that Amy's domicile was New South Wales, the Thai will is validly executed if it was executed in accordance with s 6 of the Succession Act, which requires the will to be "in writing" and "signed" by the testator. In addition, the signature must be "made or acknowledged" in the presence of two or more witnesses present at the same time. At least two of these witnesses must then attest and sign the will in the presence of the testator.
The evidence of the two attesting witnesses, Ms Klaisoi and Ms Srisomboon, was that they each observed Amy to mark the Thai will with her thumbprint, and they each then signed the will.
Palisa did not dispute that Amy's thumbprint is a signature for the purposes of s 6 of the Succession Act. This is unsurprising, given authorities such as Morton v Copeland (1855) 16 CB 517 at 535; 139 ER 861; In Re Male [1934] VLR 318 at 320 per Lowe J and, more recently, Wild v Meduri [2023] NSWSC 113 at [115]-[132] per Hallen J.
In any event, as Dr Chapple SC pointed out, even if Amy's thumbprint is not sufficient to constitute a "signature" within the meaning of s 6 of the Succession Act, the Thai will was still validly executed pursuant to s 48(1)(a) of the Succession Act because the evidence of Mr Kasemnate, a Thai lawyer with 34 years' experience, is that the Thai will was validly executed under the laws of Thailand.

[51]

(ii) Amy's testamentary capacity

I accept Palisa's submission that as the party seeking to propound the Thai will, Pat carried the onus of establishing that Amy was of "sound disposing mind" (see Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [45] and Lim v Lim [2023] NSWCA 84 at [11]). I also accept Palisa's submission that the issues of capacity on the one hand and knowledge and approval on the other hand are separate concepts (see Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 at [166]). I also accept Palisa's submission that the questions of capacity, as well as knowledge and approval, have to be considered in the context of all the evidence (see Lim at [11], [14]).
The classic statement of the law in relation to capacity is the statement of Sir Alexander Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549. His Lordship stated at 565: It is essential to the exercise of such a [testamentary] power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
The description of testamentary capacity in Banks v Goodfellow should not be viewed as though it is a legislative text: Mekhail v Hana [2019] NSWCA 197 at [164]. A more succinct formulation might be that a testator must have the capacity to remember, to reflect, and to reason: King v Hudson [2009] NSWSC 1013 at [51]; Romascu v Manolache [2011] NSWSC 1362 at [197].
For a recent summary of the relevant principles, see Lim at [7] - [9] per Kirk JA (Bell CJ and Griffiths AJA agreeing): It is a precondition of a valid will that the testator had testamentary capacity at the time the will was made, that is, the ability to understand the nature and significance of making a will. The judgment of Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 is regarded as the locus classicus on the issue. Reflecting Banks, the requirement has been understood as encompassing the following elements (see eg Carr v Homersham (2018) 97 NSWLR 328; [2018[ NSWCA 65 at [5]-[6] per Basten JA): (a) the capacity to understand the nature of the act of making a will and its effects; (b) the capacity to understand the extent of the property the subject of the will; (c) the capacity to comprehend moral claims of potential beneficiaries; and (d) the absence of mental disorders or delusions which affect the testator's "mental faculties [so as] to make them unequal to the task of disposing of [their] property" (to quote Bailey v Bailey (1924) 34 CLR 558 at 571-572 per Isaacs J). Although authoritative, the discussion of testamentary capacity in Banks ought not be read like a statute: Mekhail v Hana [2019] NSWCA 197 at [164] per Leeming JA. Further, these are matters of capacity, that is the ability to understand. It need not be shown that the testator in fact turned their mind to, for example, the extent of their property: King v Hudson [2009] NSWSC 1013 at [51] per Ward J; Dickman v Holley [2013] NSWSC 18 at [159] per White J; Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280 at [40]-[41]. Because the issue is capacity there commonly will be substantial overlap when considering these factors. Capacity to understand (say) the extent of one's property will commonly substantially overlap with capacity to comprehend the claims of potential beneficiaries. Whilst the test of capacity is a generic one, what is required in practice depends upon the particular will. The simpler the will and the less surprising its contents (eg in terms of providing for those who might have been expected to be provided for) the easier it may be to establish the requisite capacity: note Croft v Sanders [2019] NSWCA 303 at [126] per White JA.
Without losing sight of the need to avoid reading the elements in Banks v Goodfellow as though they are legislation, it is appropriate to adopt Dr Chapple's summary of the relevant criteria: 1. The testator must have understood the nature and significance of the act of making a will. This requires the testator to "be able to understand the general nature and effect of the testamentary act" - that is, "a disposition of the estate upon his or her death" (The Public Trustee v Stretch [2002] WASC 147 per Murray J at [9]). 2. The testator must have understood the extent of their estate. That involves an ability to recall at least in general terms the nature, extent and value of the estate, but "does not necessarily mean knowledge of each particular asset or knowledge of the value of that asset" (Kerr v Badran [2004] NSWSC 735 at [49] per Windeyer J. See also d'Apice v Gutkovich - Estate of Abraham (No. 2) [2010] NSWSC 1333 at [104]-[105] per White J). 3. The testator must be capable of comprehending and appreciating any claims on their estate. In Hudson at [58], the then Ward J treated this element as requiring that the testator be "able to call to mind the persons who may have claims" on the estate and be "able to weigh the relative claims of those persons". 4. The testator must not have suffered from a delusion that influenced the terms of the will at the time it was made. A false belief, by itself, is not sufficient to warrant a conclusion that the testator lacked testamentary capacity (Carr v Homersham [2018] NSWCA 65 at [14]). Rather, a delusion is a fixed and permanent belief in facts which do not exist, is not capable of rational explanation, and from which the plaintiff cannot be disabused of (Bull v Fulton (1942) 66 CLR 295 at 339; [1942] HCA 13). As Dixon CJ, Webb and Kitto JJ said in Worth v Clasohm (1952) 86 CLR 439 at 449; [1952] HCA 67, a delusion is "a belief which is not true to fact, which cannot be corrected by an appeal to reason, and which is out of harmony with the individual's education and surroundings" (see also Re Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 706 per Powell J).
I also accept Dr Chapple's submission that extreme age and illness do not of themselves provide a sufficient basis to conclude that a testator lacked testamentary capacity. This is so unless it appears that a person's mental capacities are shown to have been so affected by age and illness as to make the person unequal to the task of disposing of their estate (see Estate of Hodges at 706). As Kirby P stated in Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284 at 295: In judging the question of testamentary capacity, the courts do not overlook the fact that many wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent - more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will ... Were the rule to be otherwise, so many wills would be liable to be set aside for want of testamentary capacity that the fundamental principle of our law would be undermined and the expectations of testators unreasonably destroyed.
With these guiding principles in mind, I shall now turn to the circumstances of this case. Adopting the four criteria formulated by Dr Chapple, my findings in respect of those four criteria, when viewed collectively, support the ultimate conclusion that Pat has discharged his onus of demonstrating that Amy had testamentary capacity when she executed the Thai will.

[56]

(b) Amy's explanation of her testamentary intentions

In circumstances where the value of the gift to Palisa of the Mosman Property and Boon Luck Farm is significant, Amy gifted Pat her business interests and her land in Thailand (with an understanding that in due course he would transfer some of that land to Palisa's children). She explained to Bob that: I want Pat to be inheritor of Chat Thai businesses instead of Palisa who is married to Matt which he always wanted to change the Chat Thai business model from what I always wanted it to be. I trusted Pat. He will run this business the same way I want …
In the course of amending her will, she said to Bob: I want Pat to take care of the whole business and to be able to do this, I need to give him all my shares so that he could get the majority in each company. He will then have more power than Palisa and Matt and he will protect our family business to stay with our family.
In a conversation with Mr Kasemnate, Amy explained that she had made that decision because she wanted Pat to control the family business, and was concerned about Matt's influence. After meeting with Mr Kasemnate, Amy again said to Bob, "I don't trust Matt. Pat is my only son so who else is going to run the business. Palisa can do everything by herself. She's famous now". On the day that she executed her will, Amy explained to Ms Srisomboon that "Pat will look after everything and everyone. He helped me at the beginning and knows what I want". This evidence is accepted. As Dr Chapple correctly pointed out in closing address, Amy trusted Pat to carry on the Chat Thai businesses in the same manner as she had done. This trust was not based on Pat's business acumen. In those circumstances, it is difficult to understand why Palisa's case focused so heavily on seeking to discredit Pat's business acumen.
That this was a considered, long and firmly held belief is evidenced by the voice message that Amy left for two employees, Ping and Pong, on 26 August 2020 in which she stated that "Phi Gat [referring to Pat] is ready to go back to manage Chat Thai. I have taught him many things, many different things". When she realised that she had sent the message to a wider staff group, she explained to Fern on 27 August 2020 that "…People can then understand that I am starting to get Gat [referring to Pat] in there and who will be the person who will actually become the leader".
In making the decision to bequeath her shares in her business to Pat and give him all the residue of her estate, Amy did not fail to consider Palisa. To the contrary, she explained to Bob that Palisa was involved in TV shows amongst other things: "She has her own name to do business better than Chat Thai anyway". Amy was confident that Palisa would succeed in her own right.
I do not consider it necessary for the Court to determine whether there was a sound basis for Amy's concerns about Matt's intentions and motivations, other than to say that there was no suggestion that they were delusional. Nor was it suggested that Amy's concerns in this regard were only a recent invention on her part. There was ample evidence to the contrary. Indeed, Matt candidly agreed that, by the end of 2019, he had formed the view that the Chat Thai business model was outdated, ineffective and unproductive and that he raised those sorts of matters with Amy.
It is not the Court's task to inquire as to the righteousness of Amy's reasons, nor was it necessary for Amy to bring a perfectly balanced mind to the task. In Boughton v Knight (1873) LR 3 P&D 64 at 66, Hannen J stated that the requirement that the deceased be of "sound mind": … do[es] not mean a perfectly balanced mind. If so, which of us would be competent to make a will? Such a mind would be free from all influence of prejudice, passion, and pride. But the law does not say that a man is incapacitated from making a will if he proposes to make a disposition of his property moved by capricious, frivolous, mean, or even bad motives. We do not sit here to correct injustice in that respect. Our duty is limited to this, to take care that that, and that only, which is the true expression of a man's real mind shall have effect given to it as his will.

[57]

Between February and July 2020, Amy continued to play an active (albeit reduced) role in the management of the Chat Thai businesses. Amy retained sufficient cognitive function actively to engage with her employees, ask relevant questions, and provide instructions. For example: 1. On or about 25 May 2020, Fern and Amy discussed the rent for the premises of Jarern Chai and Boon Café, as both of those businesses were affected by the COVID-19 lockdown. There is no suggestion that Amy was confused or did not understand the conversation. To the contrary, Amy asked Fern to provide her with the contact number of the friend of the owner of the Jarern Chai building so that the matter could be progressed. 2. In around July 2020, Amy sent a message over the LINE app to Fern in which she explained the results of her MRI and CT scan, and explained that the tumours in her brain had shrunk. 3. On 4 July 2020, Amy and Bob spoke with the Chat Thai accountant, Ole, using LINE. They discussed staff wages. The minutes of the meeting reveal that Amy participated actively and engaged with the financial decisions to be made. 4. On 14 July 2020, Amy sent various voice messages, and a written message to Ping, in which she gave him instructions for the advertising of the restaurant at Palisa Farm. Although there was no translation of Amy's voice messages, an inference can be drawn from Ping's responses that Amy was posing questions and engaging in the conversation. This is consistent with the nature of the text messages (for which there are translations), in which Amy provides the text for advertisement, and asks for Ping to provide various options. 5. On 15 July 2020, Amy engaged with a graphic designer, Akira, in relation to the marketing of the restaurant at Palisa Farm. Amy demonstrated an active engagement with the subject matter, an ability to manipulate the technology that she was using, an understanding of the process of menu planning and an ability to give critical consideration to the menu. 6. On 16 and 17 July 2020, Amy communicated with Sam, the executive chef, in relation to menu planning. Although many of Amy's messages are voice recordings that could not be recovered, it can be inferred from the responses from Sam that Amy was providing detailed instructions about the menu. Sam responded by asking questions, suggesting that Amy was capable of providing sensible and rational answers. 7. On 14 August 2020, Amy sent a voice message to Palisa in relation to the opening of Chat Thai NB. She demonstrated a knowledge and understanding of what had occurred, the ability to withhold her approval, and the foresight to allow Palisa to open the store but without the Chat Thai branding.
I also raised in closing submissions whether the Court was entitled to take into account any of the videos annexed to Pat's affidavits. Counsel accepted that it was open to the Court to do so, while emphasising the need for caution in doing so because witnesses had not been tested on the videos.
There are three videos which I have viewed which I consider provide some support for finding that Amy had what appeared to be normal or sufficient cognitive functioning at least at the time the videos were taken. The first video shows Amy using a new stair lift which had been installed at the Hua Hin Farm. The video is dated 9 May 2020. Amy is shown with Bob and another unidentified person travelling down the stair lift sitting on a small seat. She is clearly controlling the device with her right hand, suggesting that at least on this occasion she did have motor functioning ability. Amy also looks alert and is smiling and responding to Bob. Amy nods her head when comments are made to her, and when Bob tells her to stop the inclinator during the course of its descent she does so immediately at the end of the right hand arm of the seat. She then presses the button again to resume the trip to the bottom position.
The second video is of a physiotherapist appointment on 16 June 2020, which is only a week before the Thai will was executed. Amy is shown sitting on the side of the bed and turning her feet as instructed by the physiotherapist who is kneeling in front of her. Amy has lost her hair but is talking freely and frequently with the physiotherapist and plainly understanding her instructions by lifting her legs in response, turning her feet and constantly nodding her head in recognition of what she is being told. Both she and the physiotherapist laugh, which confirms Amy's positive response to their conversation. There is no evidence of any failure of communication or lack of understanding on Amy's part of what was happening. Counsel for Palisa also said that Amy did not speak in the video with her physiotherapist. In fact, that is not correct.
The third video is of Amy travelling in a car on 31 October 2020, which is more than three months after she executed the will. She is smiling, looks alert, is singing along to a song on the radio and has no apparent difficulty remembering the words or speaking. She is also taking in her surroundings as she drives through a residential area. She is quite alert.

[58]

(d) Palisa's interactions with Amy

Palisa's own interactions with Amy suggest that Palisa had strong confidence in Amy's ability to understand her financial and personal affairs, and to make important decisions, at least at the times to which these matters relate. For example: 1. It is common ground that Palisa emailed Bob and Amy on 31 March 2020 to introduce them to her solicitor, Mr Mitry. On 3 April 2020, Palisa asked Mr Mitry to draft some provisions to ensure that Amy's interest in the Mosman Property and Boon Luck Farm passed to Palisa on Amy's death. Despite Palisa's unwillingness to concede the point during cross-examination, the inescapable inference from this exchange is that around 3 April 2020 (at a time when Palisa had day to day contact with Amy) she considered that Amy had sufficient capacity to amend her will. 2. In April 2020, Palisa suggested to Amy that she could withdraw her superannuation to pay medical expenses. Palisa's evidence was that Amy agreed and asked her to call Simon Zhang from AMP. She considered that Amy was capable to change the beneficiary of her superannuation, was conscious to ensure that her mother understood what she was doing, and was satisfied that her mother understood the implications of what she was doing. 3. In early May 2020, Palisa had a conversation with Amy, where Amy explained that she had been visited by Dr Thanate in which he had told her that she needed to consider whether she wanted to be intubated and resuscitated. Amy was able to remember and recount the conversation to Palisa, and then provide her with a decision on her end of life wishes which she then justified. Palisa accepted that this was a rational decision and that Amy was able to make that decision.
The high point of Palisa's evidence was that, to her observations, Amy sometimes experienced bouts of confusion or forgetfulness. She also accepted that there were times during which she was not confused or forgetful, and acknowledged that those times included when they discussed her will, her superannuation, and her end of life care. It is unsurprising that a person in Amy's position, undergoing both radiotherapy and chemotherapy for brain cancer, would experience these variable conditions. On balance, however, I am comfortably satisfied that Amy had testamentary capacity in the period immediately surrounding 24 June 2020. This conclusion is supported by the other matters referred to above and below.

[59]

(e) Observations of third party lay witnesses

In Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197, Young JA stated at [89]-[91]: [89] In a probate suit, the vital evidence is very often not given by medical experts, but is given by experienced lay observers. I have said more than once in deciding probate cases at first instance, that the most valuable evidence is usually given by the experienced solicitor who witnessed the will as opposed to a very highly qualified psychiatrist whose evidence is based not on any personal observation of the testator, but who has reasoned his or her opinion from medical and hospital notes. [90] Furthermore, it is not true to say that the evidence of lay people as to another person's condition of health is valueless. [91] If a matter is of common occurrence and people in their ordinary life are accustomed to make assessments of that fact, then they are able to give evidence of it. Thus, a witness can be asked whether a person is sober or not. In Reg v Whitby (1957) 74 WN (NSW) 441 at 443, the NSW Court of Criminal Appeal, consisting of K W Street CJ, Owen J and Roper CJ in Eq, followed a decision of R v German (1947) 89 Can CC 90 at 98, that: "There are a number of matters in respect of which a person of ordinary intelligence may be permitted to give evidence of his opinion upon a matter of which he has personal knowledge. Such matters as the identity of individuals, the apparent age of a person, the speed of a vehicle are among the matters upon which witnesses have been allowed to express an opinion, notwithstanding that they have no special qualifications, other than the fact that they have personal knowledge of the subject-matter, to enable them to form an opinion. Doubtless there are many other matters of common experience in respect of which persons with no special qualifications are permitted to state what is really a matter of opinion."
Amy met with Mr Kasemnate who, as noted, is an experienced Thai lawyer. While he did not formally draft the Thai will, he understood the need to satisfy himself that Amy had capacity to give instructions and execute a will. Mr Kasemnate's personal observations of Amy's physical condition and cognitive functioning are set out at [86] above.
These observations carry additional weight because they were made in a context where Mr Kasemnate was visiting Amy in hospital and was on notice of her medical condition. As noted above at [87], Mr Kasemnate made clear in his oral evidence that he had turned his mind to Amy's capacity to make a will and that he would have advised her not to do so if she could not communicate clearly or understandably.
Similarly, Ms Srisomboon, who was one of the persons who witnessed the execution of the Thai will and knew Amy well, said that she and Amy talked casually for 15 minutes on that day and she made the following observations of Amy: Amy looked well but had lost her hair and was a bit skinnier than usual. There was no difference in Amy's mental capacity and she appeared to be the same as in all my previous dealings with Amy. She spoke clearly and was ale to maintain conversation. There were no issues with Amy's memory.
Finally, I consider that Bob's evidence should be given significant weight because he was able to observe Amy at close quarters over many months. He is not a beneficiary under either will and is named as the executor in both. It was suggested to him that he was predisposed towards Pat, but he denied this in cross-examination. He observed that in February 2020: … Amy was alert and able to remember things that happened recently as well as in the longer term past and communicate easily. There was no hesitation in her answers. She asked questions at the correct time in the conversations and the questions related to what was being discussed.
In about April 2020 when Amy commenced chemotherapy treatments, Bob observed: On the days Amy received chemotherapy, she would be tired and show some signs of physical weakness. However, Amy did not ever appear to have been mentally affected by her chemotherapy treatments. For example, she was able to recall the progress of her treatments.
Similarly, on 24 June 2020, he observed that she "appeared normal". Bob gave oral evidence in chief (through an interpreter) that in his observations of Amy's conversations that day between Amy and Ms Srisomboon and between Amy and Ms Klaisoi, no one was talking any more or less than the other.

[61]

(iii) Knowledge and approval of Thai will

The relevant question is whether Amy also knew and approved of the contents of the Thai will.
I did not understand there to be any disagreement as to the relevant principles. In brief, where a will is properly executed and witnessed, a presumption arises that the testator also knew and approved of its contents. However, where the circumstances surrounding the giving of instructions for a will and its subsequent execution are such as to excite suspicion that the provisions of the will may not have been fully known to, and approved by, the testator, that presumption as to knowledge and approval does not arise and the person seeking to propound the will has the burden of removing the suspicion.
In many cases, it is the conduct of a beneficiary in procuring the will that arouses the suspicion (Barry v Butlin (1838) 12 ER 1089 at 1091). However, in Tyrrell v Painton [1894] P 151, Lindley LJ observed at 157 that the principle "…extends to all cases in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document". When considering that there are circumstances which excite suspicion, the Court may consider a range of factors including (Romascu at [205]; The Estate of Juliana Voros; Cooney v Cherry [2016] NSWSC 1603 at [135]): 1. the circumstances surrounding the preparation of the propounded will; 2. whether a beneficiary was instrumental in the preparation of the propounded will; 3. the extent of the physical and mental impairment, if any, of the deceased; 4. whether the will in question constitutes a significant change from a prior will; and 5. and whether the propounded will, generally, seems to make testamentary sense.
Although Palisa contended "that it cannot possibly be the case that there are no circumstances exciting suspicion", I find that there is nothing in the circumstances surrounding the preparation of the Thai will that excites suspicion in the relevant sense. In particular: 1. Amy met personally with Mr Kasemnate and explained her reasons for making a new will. 2. While Bob assisted Amy with the drafting of the will, he was not a beneficiary. That he provided assistance was not unusual and was consistent with the assistance he provided to her in relation to her business dealings generally. 3. Neither of the two beneficiaries (Palisa or Pat) were involved in the will-making process or were aware that the document had been executed. 4. Amy executed the will before two witnesses who were known to her in varying degrees. She explained her reasons to them for executing a new will. 5. The Thai will is rational on its face, is considered, and does not exclude either of the two beneficiaries for whom Amy might be expected to provide. The differences between the Australian and Thai wills are rational having regard to all the evidence concerning Amy's intention to have Pat step into her shoes and run the Chat Thai businesses.

[64]

Extension of time application

Section 58(2) of the Succession Act provides that an application for a family provision order must be made not more than 12 months after the date of the death of the deceased person, unless the Court otherwise orders on sufficient cause being shown.
As noted above, the family provision claim was only formally raised on 17 June 2022, being more than 12 months following the death of the deceased.
In Stone v Stone [2016] NSWSC 605, the then Brereton J observed at [36] that the limitation period is not merely procedural, but is substantive (see also Madden-Smith v Madden [2012] NSWSC 146 at [23]-[24] per Pembroke J).
There is a helpful summary by Hallen J of the relevant principles guiding the consideration of an application to extend time in Thomas v Pickering; Byrne v Pickering [2011] NSWSC 572 at [84]-[90], which, despite their length, warrant setting out in full: The decision of the court to extend time is a discretionary decision. Other than 'sufficient cause being shown', there are no statutory criteria that must be taken into account. There are no rigid rules in regard to the exercise of the discretion. The principles governing that exercise of discretion under the Act are clear. Apart from the reason(s) for the lateness of the claim, the factors to which the court must look, include whether beneficiaries under the Will would be unacceptably prejudiced if time were to be extended; whether there has been any unconscionable conduct by either side; and, finally what is the strength of the claim made by the party seeking an extension of time: see, for example, John v John; John v John [2010] NSWSC 937 at [37]- [51] per Ward J; Campbell v Chabert-McKay [2010] NSWSC 859 at [45]- [47] per White J; Durham v Durham [2010] NSWSC 389 at [15] per Ball J; Taylor v Farrugia [2009] NSWSC 801 at [14] per Brereton J; Burton v Moss [2010] NSWSC 163 at [31] ff, per Macready As J, in which the relevant earlier cases are referred to. The onus lies on the applicant to establish sufficient cause. It will be for the court to determine the strength of the applicant's claim. The prejudice to which the section looks is any prejudice occasioned by the delay in lodging the claim rather than any disappointment that might occur consequent upon readjustment of the interests under the will in order to make provision for the applicant: Cetojevic v Cetojevic [2006] NSWSC 431; McCann v Ward & Anor [2010] VSC 452 at [11]. Where there has been a long period since the deceased died, the lapse of time, itself, might create prejudice in any fact-finding exercise: Vasconelos v Bonetig [2011] NSWSC 1029 at [21]. In De Winter v Johnstone (NSWCA, 23 August 1995, unreported), Sheller JA held that the concept of 'unconscionable conduct' referred to above was 'directed towards a deliberate holding off [in bringing proceedings] designed to lull the beneficiaries into a false sense of security'. Cole JA, whilst not expressing a concluded view, said that it must be doubted whether a change of mind (because of some change in the financial and material circumstances of the Plaintiff which has occurred after the expiry of the limitation period) constitutes unconscionable conduct. As to the strength of the claim, in De Winter v Johnstone, Powell JA considered that as an application for extension of time was invariably dealt with at the time of the application for substantive relief, no extension of time ought to be granted unless it was established that the applicant seeking an extension of time would, in the event of the extension being granted, be entitled to an order for substantive relief. By contrast, Sheller JA considered that it was only necessary for the applicant to show that the application was not bound to fail. Where the delay is not unduly long and the estate remains undistributed, ignorance during the period within which proceedings are to be commenced, of the right to claim, followed by a prompt application to extend the time once the right to claim becomes known, will usually be a sufficient explanation: Clark v Burns [2011] VSC 394 at [6].
Palisa provided no acceptable explanation for the failure to commence the family provision claim within time. There was a suggestion that she assumed that the bringing of the claim by an amendment to the FASOC was not opposed by the defendants. It was then suggested that Palisa only became aware of Pat's opposition to time being extended when she was served with a copy of Pat's outline of written submissions on 18 October 2023 in which it was made clear that an extension of time was opposed. No explanation was then provided as to why Palisa did not promptly arrange for an appropriate affidavit to be filed which explained the delay. Accordingly, the Court has no proper explanation for the lateness in raising the family provision claim. In these circumstances, and having regard to the weakness of the claim (which I will develop shortly), I consider that time should not be extended.
It is telling that, under cross-examination, when Palisa was asked why she did not use a particular valuation appraisal in preparing her affidavit in support of her family provision claim, she candidly answered: To be honest, the family provisions claim is something that we didn't put too much stock in.
It is not difficult to understand why Palisa lacked confidence in the family provision claim. As previously noted, this aspect of Palisa's case was scarcely developed in her oral and written submissions. In particular, it is also notable that her written outline of closing submissions was entirely silent on the relevant criteria affecting the substance of the family provision claim.
When this lacuna was drawn to counsel's attention in closing addresses, he simply said that Palisa relied upon her evidence in support of the claim. He added that the family provision claim was a "reasonable but modest one". Counsel said that there was no question that Palisa was eligible to make a family provision claim, but apart from submitting that she had made contributions to Amy's welfare as set out in her affidavit evidence, no specific submissions were made on Palisa's behalf with reference to the 15 statutory criteria set out in s 60(2) of the Succession Act.
Counsel candidly accepted that Palisa's financial disclosures were open to criticism as she had used old valuations of the two relevant Australian properties and he sought to deflect criticism of her omission to include details of the income she had received for her personal business activities, which were substantially independent of Chat Thai, on the basis that they were appropriately described as "ad hoc" engagements.
Counsel also submitted that any deficiencies concerning Palisa's financial disclosures were "neutralised" by the fact that Pat omitted relevant details relating to the sale of the Seaforth Property. I reject that submission. The matters are entirely unrelated.

[68]

Palisa's financial resources (s 60(2)(d))

Palisa has had, and continues to have, a successful career, describing herself as a chef, restauranteur, farmer, writer and television host.
Palisa and Matt's financial position is difficult to determine with any precision. They own an 88/100 interest in the Mosman Property and a 2/3 interest in Boon Luck Farm. Unhelpfully, Palisa did not provide a current valuation of those properties and was content to disclose the value of the Mosman Property in 2012 ($2.825 million) and the value of Boon Luck Farm in 2015 (being $1.35 million). She stated in cross-examination that she had made no attempt to obtain an appraisal for Boon Luck Farm, and that although she had obtained an "informal" appraisal of the Mosman Property some four to five years ago, she did not refer to that appraisal in her September 2023 affidavit.
The only documentary evidence before the Court of the value of each of those properties was tendered on behalf of Pat, being: 1. an appraisal from Ray White reflecting the present value of $4.5 million in respect of Boon Luck Farm; and 2. an appraisal from Di Jones reflecting a value of $8 million-$8.5 million in respect of the Mosman Property.
In addition to the lack of transparency as to the value of her real property holdings, Palisa did not disclose the value of her or Matt's shares in: 1. Chat Thai CBD Pty Ltd; 2. Maps Whanau Pty Ltd (which owns Palisa Consulting Pty Ltd, BLF Trading Pty Ltd, and Chat Thai NB Pty Ltd); 3. Jarern Chai Pty Ltd; 4. Samosorn Pty Ltd; and 5. Boon Café Pty Ltd.
In cross-examination, neither Palisa nor Matt provided any evidence as to what those shares might be worth. At least in relation to Chat Thai CBD Pty Ltd, Palisa's evidence is that she received $299,000 from that company in payment of director's loans between 5 December 2022 and 28 September 2023. An easy inference can be drawn that if the company was capable of making repayments of that amount, it must have assets, or a consistent revenue stream.
Palisa is also a primary beneficiary of the Maps Whanau Trust. However, she was unable to provide a value of those trust assets.
Palisa asserts in her affidavit that she and Matt have various liabilities that total $4,584,349. However, during cross-examination, it emerged that they had two loans, for $1,324,466.17 and $1,284,091.22, which were secured on Boon Luck Farm and the Mosman Property, respectively. It may be that Palisa and Matt also have a further liability of $300,316 in respect of a personal loan, which was taken out to purchase machinery for Boon Luck Farm. They also have some credit card debts ($20,000) and a tax debt ($18,430). Thus, their total combined liabilities are in the order of $2,947,303.94.
Palisa and Matt disclosed a combined after tax income of $13,000 per month. Palisa stated that this is lower than the income that they received prior to the COVID-19 pandemic. However, Palisa accepted that in April 2022, she and Matt each received a net monthly income of $8,666 (a total of $17,332 per month after tax). She expressed confidence that her income would return to pre-pandemic levels, and "hopefully more".
In addition to the disclosed income, Palisa received in excess of $132,000 from Palisa Consulting Pty Ltd in the 12 months prior to affirming her September 2023 affidavit. Although Palisa referred to the fact that she received "ad hoc" income from her consulting work, the extent of that income was not disclosed until it emerged during cross-examination.
During the cross-examination of Matt, it also emerged that payments had been made into their joint offset account from an account number ending 1294. That account is their "Boon Luck Farm Trading Account". Between 11 November 2022 and 30 June 2023, transfers totalling $61,000 were made into their offset account from the Boon Luck Farm Trading Account: 1. $8,000 on 11 November 2022; 2. $5,000 on 1 December 2022; 3. $5,000 on 6 January 2023; 4. $7,000 on 16 January 2023; 5. $6,000 on 30 January 2023; 6. $10,000 on 21 February 2023; 7. $10,000 on 3 March 2023; and 8. $10,000 on 30 June 2023.
The purpose of these payments was not disclosed. It is unusual given Palisa's assertion in cross-examination that they had not ever received a salary from the trading company operating Boon Luck Farm.
Palisa's lack of transparency in disclosing her financial circumstances is significant. In order for the Court to determine whether a plaintiff is left without adequate provision, the Court must have, at least in broad outline, the whole picture regarding the financial position of the applicant (see Collings v Vakas [2006] NSWSC 393 at [66]-[68]; Stone at [58]-[66]; Blendell v Blendell; Blendell v Blendell [2020] NSWCA 154 at [29], [33]).

[75]

E. Consideration and determination of Pat's cross-claim

Having found that Amy had testamentary capacity and also had knowledge and approved of the Thai will, I am satisfied that Pat's cross-claim should be upheld. The first relief sought in the cross-claim was an order that letters of administration with the Thai will annexed be granted to Pat. Alternatively, an order was sought that probate of the Thai will in solemn form be granted to Bob. I think it appropriate to grant the alternative order, which gives effect to Amy's testamentary wishes.
In [8] of the statement of cross-claim filed on 25 February 2022, it was stated that notice of Pat's intended application for letters of administration would be published. My attention was not drawn to any evidence which suggested that this had in fact occurred.
Under s 42(2) of the Probate and Administration Act, notice of an application of probate is to be published in a manner prescribed by the rules, and, in the case of an application made by way of cross-claim, within the period prescribed by the rules in relation to such an application. The relevant rules are set out in rr 3 and 6 of Pt 78 of the Supreme Court Rules 1970 (NSW). Sub-rule 6(3) provides that where an application for a grant of probate is made by cross-claim, the cross-claimant must publish notice of the application within 28 days after filing the cross-claim in accordance with r 3. Rule 3 then specifies the particulars of such a notice.
Provision is also made in s 42(4) of the Probate and Administration Act for the Court, by order, to direct that any partial or total failure to comply with the requirements relevantly in s 42(2) shall not bar the granting of probate.
To the extent that there has been a partial or total failure to comply with those requirements, I believe that this should not be a bar to the making of the alternative order sought in the cross-claim. It appears that all relevant and interested persons have been on notice since the cross-claim was filed in early 2022 that Pat was seeking the alternative relief described above. There was no evidence which suggested that Amy had any creditors who might have claims on her estate.
In these circumstances, the alternative relief sought in the cross-claim should be granted.

[76]

F. Costs

In the FASOC, Palisa sought an order that her costs be paid out of Amy's estate on an indemnity basis insofar as her application for letters of administration with the Australian will annexed is concerned. With respect to her family provision claim, Palisa sought an order that her costs of that application be paid out of the Amy's estate and/or notional estate.
In the statement of cross-claim, Pat sought an order for costs.
In closing address, when the Court invited counsel for both parties to make submissions on costs, Dr Chapple submitted that there was "a fair argument" that, at least until the lay evidence had been served, the circumstances were such as to reasonably lead to an investigation of the circumstances surrounding the execution of the Thai will. Accordingly, he submitted that Amy's estate should bear both Palisa and Pat's costs, but thereafter Palisa should pay his costs on an ordinary basis. As to Palisa's family provision claim, Dr Chapple submitted that if Palisa was unsuccessful, costs should follow the event. Dr Chapple said that these submissions were made without instructions.
Also speaking without instructions, Mr Maroya said that there was "a lot to commend" in Dr Chapple's submissions on costs, at least conceptually.
In these circumstances, I should explain the basis upon which I am tentatively minded to make particular costs orders. I had hoped to avoid the parties incurring yet further costs, but because neither counsel had instructions on the matter some opportunity should be given for them within 14 days hereof to make brief written submissions on costs (not exceeding three pages in length), should they so wish, in light of what I am about to say. In the event that there is a dispute, final orders as to costs will be made on the papers.
As is well known, under s 98 of the Civil Procedure Act 2005 (NSW), the Court has a discretion to order by whom, to whom and to what extent costs are to be paid, either on an ordinary or indemnity basis (s 98(1)), subject to the general rule that costs should follow the event (Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.1)). Section 98(6) of the Civil Procedure Act makes it clear that the reference to costs in the provision includes "costs of the administration of any estate or trust".
There are exceptions to the general costs rules, as confirmed in Shorten v Shorten (No 2) [2003] NSWCA 60 at [15], where Mason P held (Meagher and Sheller JJA agreeing) that the basic costs rules apply in contested probate litigation unless there is a situation (citing Estate of Hodges at 709 per Powell J): 1. where the testator has, or those interested in the residue, have caused the litigation, the costs of unsuccessfully opposing probate may be paid out of the estate; or 2. if the circumstances led reasonably to an investigation in regard to the document propounded, the costs may be left to be borne by those who respectively incurred them.
Mason P emphasised in Shorten (No 2) that the categories are "not coterminous" and "remain conceptually distinct".
As raised by the FASOC here, a testator may come to "cause" opposition due to a need to investigate and/or question testamentary capacity. As Giles JA and Brownie AJA held in Perpetual Trustee Company Limited v Baker [1999] NSWCA 244 at [13]-[14]: Costs are in the discretion of the Court, and the established principle on which the discretion as to costs will normally be exercised is that costs follow the event. In probate litigation, in particular, however, exceptions have been recognised, one being that where the testator has been the cause of the litigation the costs of unsuccessfully opposing probate may be ordered to be paid out of the estate, and another being that if the circumstances led reasonably to an investigation concerning the testator's will the costs may be left to be borne by those who incurred them (see for example in the estate of Hodges: Shorter v Hodges (1988) 14 NSWLR 698 at 709). The two exceptions tend to overlap. As was said by Santow J in In the estate of Moyle: Moyle v Moyle (18 June 1988, unreported), if a testator is by his mental frailty and other circumstances in a position where the circumstances reasonably call for investigation of the validity of the will "in one sense the testator, though usually with no sense of blameworthy fault, has by his or her conduct caused the litigation to occur". A party reasonably but unsuccessfully propounding or challenging the will, and so bringing about the necessary investigation, should no more have to bear his own costs than pay the costs of the other party. So it has been said that where the conduct and habits and mode of life of a testator have given ground for questioning his testamentary capacity the costs of the unsuccessful party should be paid out of the estate, as distinct from being left to be borne by that party (Davies v Gregory (1873) 3 P & D 28; Roe v Nix (1893) P 55; In the will of Millar (1908) VLR 682), and the costs of both sides in testamentary capacity cases have often been allowed out of the estate (In the will of Severs (1887) 13 VLR 572; Phillips v Dundas (Smith J, VSC 4 December 1995, unreported); Redroff v Miegoch (Santow J, NSWSC, 22 April 1996, unreported); re Ryan: Williams v Ryan (1998) VSC, 109; In the will of Ryan: Williams v Ryan (Byrne J, VSC, 23 October 1998, unreported); cf Middlebrook v Middlebrook (1963) 26 ALJR 216 where Dixon CJ and McTiernan, Taylor and Owen JJ ordered that the parties bear their own costs but Menzies J would have ordered that the costs be paid out of the estate).
Middlebrook v Middlebrook (1962) 36 ALJR 216 is an illustration of a case where the Court found that an investigation reasonably needed to take place and, even though the plaintiff's challenge was unsuccessful, costs of the investigation and challenge were ordered to be paid by the estate.
Another example is Shorten v Shorten [2001] NSWSC 100, where the deceased suffered brain damage after a stroke and, though she had testamentary capacity when executing the will and probate was ordered to be granted, the Court concluded that the investigation into the will was reasonably warranted and all costs were ordered to be paid out of the estate.
Applying those principles to the circumstances here, I accept Dr Chapple's tentative proposal that Amy's estate should bear both Palisa and Pat's costs on an ordinary basis up until the last of the substantive (i.e., excluding affidavits by translators and solicitors) lay affidavits were filed (excluding affidavits in respect of the family provision claim). That date is 3 March 2023.
It is also necessary to address the costs of the two expert medical reports. As noted above, in the directions hearing before Hallen J on 4 July 2022, his Honour expressly reserved the question of the costs of each expert's report. The transcript of that directions hearing makes clear that his Honour adopted this course because he described each of the experts as "an ex post facto expert, not a treating expert". His Honour highlighted that this was one of the problems created by the plaintiff having "rushed out" and obtained expert evidence without first obtaining the Court's leave in accordance with Practice Note SC Eq 5. It is stated there that the effect of UCPR r 31.19 is to require a party who is considering or intending to adduce expert evidence to seek directions from the Court. Moreover, prior to that, the parties are required to confer in an endeavour jointly to retain one expert, or one expert per issue.
In light of Hallen J's observation (with which I respectfully agree) and my own findings concerning the limited value of the expert evidence, I consider that it is appropriate that Palisa bear the costs of obtaining both those reports.
Turning now to the question of costs of Palisa's unsuccessful family provision claim, different considerations apply. As Gaudron J held in Singer v Berghouse [1993] HCA 35 at [6]: Family provision cases stand apart from cases in which costs follow the event. Leaving aside cases under the Act which, in s 33, [Act since repealed] makes special provision in that regard, costs in family provision cases generally depend on the overall justice of the case. It is not uncommon, in the case of unsuccessful applications, for no order to be made as to costs, particularly if it would have a detrimental effect on the applicant's financial position…And there may even be circumstances in which it is appropriate for an unsuccessful party to have his or her costs paid out of the estate…
The Succession Act now guides the Court's discretion on costs involved in family provision applications. By s 99: 99 Costs (1) The Court may order that the costs of proceedings under this Chapter 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. Note - Section 78 sets out the circumstances in which the Court may make a notional estate order for the purpose of ordering that costs be paid from the notional estate of a deceased person. (2) The regulations may make provision for or with respect to the costs in connection with proceedings under this Chapter, including the fixing of the maximum costs for legal services that may be paid out of the estate or notional estate of a deceased person. (3) This section and any regulations under this section prevail to the extent of any inconsistency with the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014). An assessment under that legislation of any costs in respect of which provision is made by a regulation under this section is to be made so as to give effect to that regulation.
As per the Note in s 99, s 78 provides for the circumstances in which the Court may make a notional estate order such that costs may be paid from the notional estate of a deceased person: 78 Notional estate order may be made only if family provision order or certain costs orders to be made (1) The Court may make an order designating property as notional estate only - (a) for the purposes of a family provision order to be made under Part 3.2, or (b) for the purposes of an order that the whole or part of the costs of proceedings in relation to the estate or notional estate of a deceased person be paid from the notional estate of the deceased person. Note - Section 63(5) enables a family provision order to be made in relation to property designated as notional estate of a deceased person. Section 99 enables the Court to order that costs be paid out of the notional estate of a deceased person. (2) The Court must not make an order under subsection (1)(b) for the purposes of an order that the whole or part of an applicant's costs be paid from the notional estate of the deceased person unless the Court makes or has made a family provision order in favour of the applicant.
Under these statutory provisions, irrespective of the outcome of Palisa's application for a family provision order, the costs of her application may be paid out of the estate, subject to any guidance or precedent provided by the case law.
Gaudron J's statement of principle in Singer, that the costs order must do justice to the overall estate, has been frequently relied upon. In elucidating its application, Beazley P (McColl and Gleeson JJA agreeing) in Salmon v Osmond [2015] NSWCA 42 at [174] stated: …the "overall justice of the case" referred to by Gaudron J is "not remote from costs following the event": Jvancich v Kennedy (No 2) [2004] NSWCA 397. The only difference is that family provision cases call for additional "liberality and discrimination" in considering whether to exercise discretion to override the usual rule: Chapple v Wilcox [2014] NSWCA 392 at [138]-[139].
Meagher JA (Macfarlan and Leeming JJA agreeing) more recently considered the requisite costs exercise in Haertsch v Whiteway (No 2) [2020] NSWCA 287, stating at [5]-[7], [9] and [11]: It is well established that family provision applications "raise different issues with respect to costs" to those raised by other proceedings: Salmon v Osmond [2015] NSWCA 42 at [172] (Beazley P, McColl and Gleeson JJA agreeing). The liberal approach to costs in such cases has a long provenance, though reference is now typically made to remarks of Gaudron J in Singer v Berghouse [1993] HCA 35; (1993) 67 ALJR 708 at 709, to the effect that "costs in family provision claims generally depend on the overall justice of the case" and that it is "not uncommon, in the case of unsuccessful applications, for no order to be made as to costs, particularly if it would have a detrimental effect on the applicant's financial position". Indeed, in some jurisdictions it would seem that no order as to costs is the usual or general consequence of an unsuccessful application: Bowyer v Wood (2007) 99 SASR 190 at 210, 211; [2007] SASC 327; Underwood v Underwood [2009] QSC 107 at [32]-[33]. However, as Giles JA observed in Jvancich v Kennedy (No 2) [2004] NSWCA 397 at [11] (Handley and McColl JJA agreeing), the "overall justice of the case" is "not remote from costs following the event". For one thing, the default rule encourages prospective applicants for provision to have regard to the significant costs consequences to themselves of making such an application. But while the default rule in r 42.1 applies to family provision proceedings, its application remains subject to the court exercising greater than usual "liberality and discrimination" in deciding whether to depart from it: Salmon v Osmond at [174] (Beazley P, McColl and Gleeson JJA); Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [26]-[27] (Basten JA, Gleeson JA agreeing); [138]-[139] (Barrett JA, Gleeson JA agreeing). It is not uncommon, though atypical, for an unsuccessful applicant not to be ordered to pay the defendant's costs where the applicant is or would become impecunious and the claim for provision was reasonable or borderline: see eg, with no attempt to be exhaustive, Re Sherborne Estate (No 2) (2005) 65 NSWLR 268; [2005] NSWSC 1003; Moussa v Moussa [2006] NSWSC 509; Bevilacqua v Robinson (No 2) [2008] NSWSC 520; Ray v Greenwell [2009] NSWSC 1197; Dugac v Dugac [2012] NSWSC 192; Raiola v Raiola [2014] NSWSC 1172; Purnell v Tindale [2020] NSWSC 746. … The impecuniosity of an unsuccessful party, without more, is no reason to deprive a successful party of an order for costs to which they are otherwise entitled: Sassoon v Rose [2013] NSWCA 220 at [10] (Meagher JA, Gleeson JA agreeing); Northern Territory v Sangare (2019) 265 CLR 164; [2019] HCA 25 at [26]-[27]. However, the irrelevance of impecuniosity is said to be "subject to some relaxation in family provision cases": Chapple v Wilcox at [141]. One reason that the impecuniosity of an unsuccessful applicant for family provision is of greater than usual relevance is that adverse costs orders might alter the basis on which the claim for provision was rejected, and thereby cause or justify a further application: McCusker v Rutter [2010] NSWCA 318 at [34]. That consideration is of little or no relevance to this case: the plaintiff's claim failed for reasons unrelated to her financial position and no further application for provision could possibly succeed. … Although family provision claims can only succeed or fail, those binary outcomes tend to conceal difficult and even "borderline" questions of judgment. That is one reason for the more liberal approach to costs: Re Sherborne Estate (No 2) at 279; Moussa v Moussa at [8]. Those observations are typically directed to the evaluative and discretionary judgments as to what would constitute adequate provision for the applicant's proper maintenance, education or advancement. The plaintiff's application did not fail for that reason; indeed, it succeeded before the primary judge and it is not obvious that the grounds of appeal directed to those exercises of judgment would have been upheld, had they been addressed.
Having regard to these principles, the patent weakness of Palisa's family provision claim and the unfavourable outcome of that claim, I consider it appropriate that she bear Pat's costs with respect to that claim.
The costs of the unsuccessful mediation also need to be addressed. I consider it is appropriate that Palisa and Pat share those costs. Accordingly, there will be no order as to costs relating to the mediation.
The unfortunate failure of the mediation warrants another comment. The Court was advised that the total estimated legal costs of the parties in this proceeding is approximately $1.5 million. On its face, that is an extraordinary amount relative to the value of Amy's estate. Naturally, I am not privy to the interstices of the mediation but the proposed orders on costs in this proceeding will hopefully encourage other disputants to avoid protracted and costly legal proceedings in similar testamentary and related matters.

Anderson v Yongpairojwong

At a glance

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