Bailey v Bailey

Carr v Homersham [2018] NSWCA 65

Estate of George Aeneas McDonald; Howard v The Sydney Children's Hospital (Randwick & Westmead) [2015] NSWSC 1610

Re Estate of Griffith; Easter v Griffith (1995) 217 ALR 284

Saunders v The Public Trustee [2015] WASCA 203

Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757

West Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144

Williams v Schwarzback [No 2] [2016] WASC 43

Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197

1. On 23 September 1920, Jan Grzeczny (the deceased) was born in Poland. In 1949, the deceased migrated to Australia. In 1951, the deceased married his wife, Maria. Maria already had a son, Richard, the second defendant. Richard was born in 1943. In 1952, the deceased and Maria had a daughter, Teresa, the first defendant. In 1952, the deceased adopted the second defendant as his son.
2. The deceased made several wills throughout his lifetime. He made wills in 1981, 2014, 2017 and 2018. This case concerns the validity of the will made by the deceased on 17 September 2018 (2018 will).
3. Joachim and Maria‑Luise Diedler, the first and second plaintiffs respectively, are the residuary beneficiaries of the 2018 will and are seeking a declaration that the 2018 will is valid and effective and is the deceased's last will.
4. The first and second defendants say that the deceased did not have testamentary capacity to make the 2018 will. They say that the deceased was suffering from a disorder of his mind which poisoned his affections towards them and this influenced his testamentary dispositions under the 2018 will.
5. In response, the plaintiffs say that the court can be satisfied, on the balance of probabilities, that the deceased had testamentary capacity at the time that he executed the 2018 will.
6. As is often the case when a dispute about a will culminates in proceedings in the Supreme Court, there is a complicated family history that underpins the dispute. Each party has their own version of history and each party's version may be a genuinely and honestly held belief. It is complicated further by the fact that the deceased is not present to give his version of history.
7. This is the case for the deceased and his family. The deceased told the plaintiffs a version of history surrounding his relationship with his children. The deceased's children, the first and second defendants, tell a different story. I found both the first and second plaintiffs and the first and second defendants to be credible and reliable witnesses. However, the outcome of this case does not depend upon a finding in favour of one version of history over another. The issue at the heart of this case is whether the deceased had testamentary capacity at the time he made the 2018 will.
8. The deceased was 97 years old (nearly 98) at the time that he made the 2018 will. There was no dispute that he was living independently, was still driving and managing his own finances at the time he made the 2018 will.
9. I am satisfied on the balance of probabilities, on the basis of all the evidence, that the deceased understood the nature and effect of the 2018 will, the nature and extent of the assets he had at the time and that he had the capacity, at the time he made the 2018 will, to understand there was an expectation that he provide for the first and second defendants.
10. However, I am also satisfied on the balance of probabilities that, on the date that he made the 2018 will, the deceased's affections towards the first and second defendants were poisoned by a disorder of his mind in that he had delusions that the first defendant was trying to poison him, was a 'witch' in the sense that she was practising witchcraft, that she flew through his window and was stealing items from him and that he had delusions that the second defendant had tried to poison his coffee in 2014. Although his delusions in relation to the second defendant may have been in relation to events that occurred earlier than September 2018, the deceased still believed in September 2018 that the second defendant had tried to poison him in 2014. In that sense, the deceased was still suffering from the delusions in September 2018.
11. I am also satisfied on the balance of probabilities, on the basis of all of the evidence, that the deceased's delusions about the first and second defendants influenced his testamentary dispositions under the 2018 will.
12. For the reasons that follow, I am not satisfied, on the balance of probabilities, that the deceased had testamentary capacity to make the 2018 will. On the contrary, the evidence adduced at trial overwhelmingly supports a conclusion that the deceased did not have testamentary capacity when he made the 2018 will. The 2018 will is not valid. The plaintiffs' case fails.
13. I address the following matters in these reasons:

(1) the procedural history of the matter;

(2) the relevant legal principles;

(3) the issues to be determined at trial;

(4) an overview of the parties' respective cases;

(5) findings as to the witnesses' credibility;

(6) a summary of the relevant evidence;

(7) determination as to whether the deceased had testamentary capacity when he made the 2018 will;

(8) observations in relation to the deceased's testamentary capacity from 2012; and

(9) conclusion and final orders.

1. On 18 September 2019, the first defendant applied to the Probate Division of this Court for a grant of letters of administration with the deceased's will dated 4 January 1981 (1981 will) annexed.[1]
2. On 14 October 2019, the plaintiffs applied to the Probate Division of this Court for a grant of letters of administration with the 2018 will annexed.[2]
3. On 15 October 2019, the Public Trustee filed in the Probate Division of this court a renunciation of all right and title to the probate and administration of the deceased's will dated 29 September 2017 (2017 will) and the 2018 will.[3]
4. By letter to the plaintiffs and the first defendant's solicitors dated 4 December 2019, a registrar of the Supreme Court advised that the Probate Division of the Supreme Court would grant letters of administration with the 1981 will annexed to the first defendant unless, by 18 December 2019, the plaintiffs commenced contentious proceedings for proof of the 2018 will in solemn form.
5. The plaintiffs commenced contentious proceedings for proof of the 2018 will in solemn form, that is these proceedings, on 13 December 2019.

1. A will which is rational on its face is, in the absence of evidence to the contrary, presumed to have been made by a person with capacity.[4] If there is evidence to the contrary, it is for the person propounding the will to establish, on the balance of probabilities, that the testator had testamentary capacity.[5]
2. If a will contains irrational provisions, exclusions of beneficiaries, an unexplained and significant departure from earlier wills, then this may give rise to doubts about whether the will is rational on its face.[6]
3. The requirements for testamentary capacity are well established and are set out in Banks v Goodfellow (1870) LR 5 QB 549, 565. Those requirements are four‑fold:

(1) the testator must understand the nature of the will and its effects;

(2) the testator must understand the extent of the property of which he or she is disposing;

(3) the testator must be able to comprehend and appreciate the claims to which he or she ought give effect;

(4) and finally 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 (565).

1. It is the third and fourth of these requirements in respect of which questions of validity of the 2018 will have been raised in these proceedings.
2. Starting with the third requirement, that the testator must be able to comprehend and appreciate the claims to which he ought give effect, requires the testator to be capable of appreciating the claims to which he ought give effect, not that he actually made such an evaluation. As White J said in Estate of George Aeneas McDonald; Howard v The Sydney Children's Hospital (Randwick & Westmead) [2015] NSWSC 1610:

... in determining testamentary capacity the critical question is not whether the will-maker did in fact bring to mind those who might reasonably be thought to have claims upon his or her bounty, but whether he or she had the ability to do so [61].

1. Turning to the fourth requirement, where an insane delusion or disorder of the mind has had an influence on a testamentary disposition, the will is not valid.[7]
2. A delusion is a fixed and permanent belief in facts which do not exist and which the plaintiff 'cannot be reasoned out of'.[8] If a testator is suffering from delusions, the onus is on those seeking to propound the will to prove, on the balance of probabilities, that the delusions did not influence the will. It is sufficient for that party to satisfy the court that it is a reasonable inference, that may be drawn from the established facts, that a delusion which existed did not affect the disposition in question.[9]
3. In Banks v Goodfellow, Cockburn CJ said:

No doubt, where the fact that the testator has been subject to any insane delusion is established, a will should be regarded with great distrust, and every presumption should in the first instance be made against it. Where insane delusion has once been shown to have existed, it may be difficult to say whether the mental disorder may not possibly have extended beyond the particular form or instance in which it manifested itself. It may be equally difficult to say how far the delusion may not have influenced the testator in the particular disposal of his property. And the presumption against a will made under such circumstances becomes additionally strong where the will is ... one in which natural affection and the claims of near relationship have been disregarded (570).

1. In Banks v Goodfellow, the testator suffered from delusions that he was pursued by spirits and that a dead man had molested him. Although the court was satisfied that the testator had suffered from such delusions, the court was not satisfied that those delusions had 'affected the general faculties of his mind', and the court found that the delusions could have no effect upon the will' and held that there was 'no sufficient reason why the testator should be held to have lost his right to make a will, or why a will made under these circumstances should not be upheld'.[10]
2. In determining the fourth element, the relevant question is whether the testator had the capacity to exercise sound judgment rather than whether he, in fact, exercised sound judgment. There is distinction to be drawn between a testator who is harsh and unreasonable while remaining of sound mind and a testator who is prejudiced because of a delusion that influences his disposition of property under a will. In the former case, the will is valid. In the latter case, it is not.[11]
3. In the case of Carr v Homersham [2018] NSWCA 65, the New South Wales Court of Appeal held that the fact that a testator held a material false belief, in that case that the testator had a falling out with her niece and believed that her niece was not in financial need, did not mean that the testator was delusional in the Banks v Goodfellow sense. Basten JA said:

A court must be vigilant against drawing such a link on the basis of its view that the judgment exercised by the testator, founded upon a false recollection of the reason for her antipathy, was quite unreasonable. Accepting that it raised a relevant doubt, a careful analysis of the whole of the evidence showed that there was no proper evidential basis to conclude that an irrationally based antipathy towards her adult niece warranted a finding of testamentary incapacity. The doubt should be rejected as insubstantial [50].

1. The question of whether a testator had testamentary capacity is a legal, as opposed to a medical, question.[12] Medical evidence going to any of the requirements set out in the Banks v Goodfellow test may be highly relevant, but it is not determinative. The question of whether a testator had testamentary capacity at the time he made a will is determined by applying 'common sense judicial judgment on the basis of the whole of the evidence'.[13]

1. At the beginning of the trial, it was accepted by all parties that the 2018 will was validly executed.[14] As a preliminary issue, the second defendant submitted that the will was not rational on its face and therefore, that the plaintiffs could not rely upon the presumption that the deceased had capacity. The plaintiffs submitted that the will was rational on its face.
2. I am of the view that whether the 2018 will is rational on its face is not an issue that arises in this case for these reasons:

(1) if the will is rational on its face, then the evidentiary burden shifts to the defendants to point to circumstances that raise a suspicion that the deceased did not have testamentary capacity. If suspicious circumstances are established, the evidential onus is then put back upon the plaintiffs to satisfy the court that the deceased had testamentary capacity; or

(2) if the will is not rational on its face, then the onus is on the plaintiffs to satisfy the court that the deceased had testamentary capacity.

1. I am satisfied that the defendants have pointed to sufficient circumstances to raise a suspicion that the deceased did not have testamentary capacity at the time that he made the 2018 will - he was nearly 98 years old, the 2018 will represented a significant departure from his earlier wills and he was under the care of medical professionals for alleged delusional thoughts.
2. Therefore, regardless of whether I find the 2018 will to be rational on its face, the issue is ultimately whether, upon a review of all the evidence, the plaintiffs have satisfied the court, on the balance of probabilities, that the deceased had testamentary capacity at the date he made the 2018 will. If the plaintiffs have so satisfied the court, then the 2018 will is the last valid will of the deceased.
3. The converse proposition can be expressed in one of two ways - either the plaintiffs have not satisfied the court, on the balance of probabilities, that the deceased had testamentary capacity when he made the 2018 will or the court is positively satisfied, on the balance of probabilities, that the deceased did not have testamentary capacity when he made the 2018 will. I do not consider the alternate ways of framing the conclusion I reach have any effect on the reasoning that leads to that conclusion.
4. The first defendant, by way of counterclaim, asks the court to make a declaration that the 1981 will was the last valid will of the deceased. To make such a declaration, I would need to be satisfied that the deceased did not have testamentary capacity at the time he executed a will on 31 October 2014 (2014 will) and the 2017 will. Although, for the reasons I will explain, I have significant reservations about whether the deceased had the requisite testamentary capacity from at least 2012, it is not appropriate to make any final determination as to the validity of the 2014 will or the 2017 will where all of the beneficiaries under each of those wills are not parties to this action.

1. The plaintiffs' pleaded case is as follows.
2. The deceased was born in Poland on 23 September 1920 and died on 7 December 2018. He emigrated from Poland to Western Australia in 1949.
3. At the time of his death, the deceased lived at and owned the property described as the 'Cookham Road Property'.
4. On 4 January 1981, the deceased made the 1981 will, in which he named his wife, Maria, the executor of his estate. Maria is the residuary beneficiary of the 1981 will. Maria predeceased the deceased. The first and second defendants are not beneficiaries under the 1981 will.[15]
5. On 29 September 2017, the deceased made the 2017 will. The 2017 will named the Public Trustee of Western Australia (Public Trustee) as executor.
6. On 17 September 2018, the deceased made the 2018 will. The 2018 will was prepared for the deceased by the Public Trustee and appointed the Public Trustee as executor. The 2018 will was executed by the deceased in the presence of Narelle Helen Pierce and Diana Arine Williams, then solicitors employed by the Public Trustee.
7. The 2018 will provides:

(1) by cl 1, all previous wills and codicils are revoked;

(2) by cl 6, a gift of $20,000 to Stephen John Hayes, should he survive the deceased;

(3) by cl 7, a gift of $20,000 to Thomas William Austin, should he survive the deceased;

(4) by cl 8, a gift of $10,000 to Kenneth Charles Austin, should he survive the deceased;[16]

(5) by cl 9, a gift of $200,000 to the Roman Catholic Archbishop of Perth upon trust for the charitable purposes of St Augustine's Catholic Church in Rivervale, Western Australia; and

(6) by cl 10, the plaintiffs are named as residuary beneficiaries.

1. The plaintiffs plead that the 2018 will is valid and effective and is the last will of the deceased.
2. As to the position of the specific beneficiaries under the 2018 will, the plaintiffs plead that:

(1) Mr Hayes does not wish to become involved in contentious proceedings in relation to the gift to Mr Hayes under the 2018 will;

(2) they have been unable to locate Mr Thomas Austin in order to determine whether or not he wishes to become involved in the proceedings;

(3) they have been unable to locate Mr Kenneth Austin in order to determine whether or not he wishes to become involved in the proceedings;

(4) the Roman Catholic Archbishop of Perth does not wish to become involved in the proceedings.

1. The plaintiffs' case is that the 2018 will is rational on its face, giving rise to a presumption that the deceased had testamentary capacity. The plaintiffs plead that the court can be satisfied, on the balance of probabilities, that the deceased did, in fact, have testamentary capacity to make the 2018 will because:

(1) the 2018 will was prepared by, and executed in the presence of, solicitors employed by the Public Trustee;

(2) the deceased did not have contact with the first defendant for the 40‑year period prior to 2015 - the relationship between the deceased and the first defendant was not one of affection;

(3) the first defendant made untrue allegations that the deceased had threatened to be violent to her and was suffering from delusions to the medical professionals from the Bentley Adult Mental Health Service (BOAMHS) and Dr Meyerkort, the deceased's general medical practitioner; and

(4) from 1966 until December 2018, the relationship between the second defendant and the deceased was not one of affection.

1. The plaintiffs' case is that the evidence establishes that the deceased had testamentary capacity at the time that he made the 2018 will and that he was not affected by any delusions which poisoned his mind towards the defendants.
2. The first plaintiff seeks a grant of letters of administration with the 2018 will annexed in order to distribute the estate of the deceased according to the terms of the 2018 will. The second plaintiff consents to the same.

1. The first defendant admits that the deceased made the 2017 will and the 2018 will, but denies that the 2017 will and 2018 will are valid because the deceased did not have testamentary capacity when each will was executed. The first defendant pleads that, at the time the deceased made each of the 2017 will and the 2018 will, the deceased was acting under influence of delusion or unreasoning prejudice to such an extent that he was deprived of his testamentary capacity.
2. The first defendant says that the deceased presented with delusional disorder from at least 2015 and that, in July 2018, the deceased was diagnosed with delusional disorder. The first defendant pleads that at the time he executed the 2018 will, the deceased voiced paranoid ideation with respect to her.
3. The first defendant pleads that neither of the plaintiffs are entitled to a grant of letters of administration with the 2018 will annexed as the 2018 will is invalid by reason of the deceased's lack of testamentary capacity at the time the 2018 will was executed.
4. The first defendant counterclaims that the 1981 will was validly executed in accordance with s 8 of the Wills Act 1970 (WA) (Wills Act). The first defendant says that the 1981 will is the only valid will of the deceased and seeks a declaration pronouncing the force and validity of the 1981 will and an order that the probate registrar issue a grant of letters of administration with the 1981 will annexed to her. This is on the basis that the first defendant is a beneficiary of the deceased's estate by reason of intestacy (or partial intestacy) because Maria, the residuary beneficiary of the 1981 will, died in 2015, predeceasing the deceased. Therefore, the first defendant pleads that the deceased's estate must be distributed in accordance with s 4 of the Administration Act 1903 (WA) (Administration Act) and therefore, the first defendant and the second defendant are the beneficiaries of the deceased's estate in equal shares.

1. The second defendant's case is that the 2018 will radically changes the dispositions from the 2017 will which in turn radically changes the dispositions from the 2014 will and therefore, the 2018 will is not rational on its face.
2. The second defendant says that, if the 2018 will is rational on its face, the deceased did not have testamentary capacity because delusions of his mind had an influence on his testamentary dispositions at the time that he made the 2018 will.

1. The first and second plaintiffs gave evidence. Each of them gave their evidence in chief by the tender of affidavits they had previously relied upon in the proceedings. The first plaintiff was cross‑examined, the second plaintiff was not.
2. I find both the first and second plaintiffs to be credible and reliable witnesses. I accept each of their evidence as to their observations of the deceased, particularly during 2018, and accept that the deceased told them the things that they say he did. Their evidence is consistent with the evidence of the other witnesses in this respect.
3. The first and second defendants also gave evidence. Their evidence in chief was predominantly given by way of tender of their witness statements. Each was cross‑examined.
4. I find both the first defendant and the second defendant to be credible and reliable witnesses. They both gave evidence confirming a long history of estrangement from the deceased. Neither sought to downplay the tumultuous history of their relationships with the deceased and their mother. In particular, the first defendant's evidence is consistent with the evidence given by each of the medical professionals who were treating the deceased in 2018.
5. The following medical professionals gave evidence:

(1) Dr Brian Meyerkort, the deceased's general practitioner;

(2) Dr Lee Lee Tan, a psychiatrist with BOAMHS;

(3) Nurse Reece James, a nurse with BOAMHS; and

(4) Ms Patricia Plawiak, a social worker with BOAMHS.

1. Each of these witnesses relied upon their contemporaneous notes to refresh their memory. Their notes were tendered as exhibits. I find each of these witnesses to be reliable and credible. Where they did not recall certain things about which they were asked, they said so. Each witness gave direct evidence about what the deceased had said to them.
2. Mr Stephen Hayes, the deceased's neighbour, also gave evidence about his observations of the deceased's general behaviour over a number of years. I found Mr Hayes to be a credible and reliable witness. Mr Hayes had no interest in the proceedings (other than the fact he was a beneficiary under the 2018 will in the amount of $20,000) and he was clearly a person who cared for and had the best interests of the deceased at heart.
3. This is an observation that applies to all the witnesses - I do not doubt that each had the best interests of the deceased at heart. The issue of whether the deceased had testamentary capacity when he made the 2018 will does not require me to prefer one witness's evidence over another. In fact, there was overwhelming consistency in the evidence of all of the witnesses which I will outline in detail.

1. The trial was heard over seven days from 18 to 21 July 2023, 9 to 10 August 2023 and 21 September 2023. During cross‑examination of the first defendant by counsel for the plaintiffs, the first defendant referred to making contemporaneous notes in a notebook. Counsel for the plaintiffs called for this notebook. [17] The trial was adjourned part heard to recommence on 9 August 2023. In the intervening period, the first defendant provided informal discovery of her notebook, some loose notes and an appointment diary. In accordance with my orders made on 10 August 2023, the first defendant provided supplementary discovery of these documents by affidavit sworn on 10 August. The plaintiffs applied to recall the first defendant for cross‑examination which was not opposed by the first defendant. Accordingly, the first defendant was recalled by the plaintiffs for cross-examination on 21 September 2023.
2. I make no adverse credibility findings in relation to the first defendant due to the late discovery of these documents - the first defendant voluntarily referred to her notebooks in cross-examination. Further, as was apparent from cross-examination of the first defendant on 21 September 2023, these documents bolstered the first defendant's evidence in relation to the events they record. The documents were consistent with the evidence the first defendant had earlier given.

1. Neither the plaintiffs nor the defendants adduced any expert evidence as to the deceased's testamentary capacity on 17 September 2018, the date he made the 2018 will (the relevant date).
2. The plaintiffs relied upon the evidence of the first and second plaintiffs as to their observations of the deceased to establish that the deceased did have testamentary capacity on the relevant date. The plaintiffs also submit that the evidence of the medical professionals supports a finding that the deceased had testamentary capacity at the relevant date.
3. The defendants relied upon the evidence of the first and second defendants and Stephen Hayes, the deceased's neighbour, as to their observations of the deceased and the evidence of the medical professionals who treated the deceased close in time to the relevant date.
4. I have considered all of the evidence. To the extent that I consider evidence relevant, I summarise it below. In the absence of reference to particular evidence, I do not consider that evidence to be relevant to the issues identified.
5. Further, it was not in dispute at trial that the deceased and each of the defendants had long periods of estrangement prior to 2018. The reasons for this estrangement were also not in issue, including that the first defendant had not assisted the deceased to care for Maria prior to her death in 2015. I understood the relevance of this estrangement to be, on the plaintiffs' case, that the deceased had good reasons to leave his children out of the 2018 will, reasons which were not associated with any alleged delusional thoughts. Although the deceased may have had reasons for leaving the first and second defendants out of his 2018 will (be they reasonable or unreasonable), as I will detail separately from this, the deceased was also suffering from delusions about the first and second defendants in the Banks v Goodfellow sense which influenced his dispositions under the 2018 will.
6. I will now outline the evidence, in chronological order, that I consider relevant to the issue of whether the deceased had testamentary capacity at the time he made the 2018 will.

Letters from the deceased to each of the first defendant and the second defendant in the 1970s

1. The first defendant gave evidence that she received a handwritten letter from the deceased dated 28 September 1974. In that letter the deceased accused the first defendant of being under the influence of drugs and requested her to take a drug test.[18]
2. The first defendant gave evidence that she received a letter in Polish in the deceased's handwriting dated 5 January 1977. The first defendant translated that letter into English. In the letter the deceased wrote 'Zosia on 25‑12‑73 on Xmas day that she poisoned you & she cursed you & you do not use your own mind God will punish that rotten witch for the bad she did to use [sic]'.[19]
3. The second defendant gave evidence that he received a handwritten letter from the deceased dated 26 May 1977 in which the deceased wrote about the first defendant and his unhappiness with her marriage.[20]
4. The second defendant gave evidence that he received a handwritten letter from the deceased dated 25 July 1978 in which the deceased wrote about the second defendant writing to his grandmother but not seeing his mother.[21]

Dr Meyerkort refers the deceased to BOAMHS in June 2012

1. Dr Meyerkort received a letter dated 20 June 2012 from the Aged Care Assessment Team at WA Association of Polish Women Inc.[22] The letter reported that the deceased had called the Rainbow community centre on 19 June 2012 advising that he and Maria were not going to come to the centre anymore because someone at the centre had put poison into Maria's soup. This letter was tendered, not as proof of the truth of its contents, but as evidence that Dr Meyerkort received the letter.
2. On 22 June 2012, Dr Meyerkort referred the deceased to BOAMHS.[23] In the referral letter, Dr Meyerkort stated that the deceased:

... may have paranoid ideation regarding his wife being poisoned by her food. Carer from Rainbow raised this issue with us earlier this week. He has no PH of mental illness and does not exhibit this ideation when he consults me.

1. Dr Meyerkort received a letter from a consultant psychiatrist with BOAMHS, Dr Kim Walsh, dated 2 July 2012.[24] Dr Walsh stated:

... Mr Grzeczny had expressed the idea that the soup had been poisoned and was intended for him ...

... it seems that this idea has at least characteristics of being an overvalued idea if not a delusion.

My impression is that Mr Grzeczny does have dementia unspecified and that his over-valued idea regarding the soup being poisoned and intending to hurt him is in the context of this illness.

1. Again, the letter from Dr Walsh to Dr Meyerkort was tendered, not as proof of the truth of its contents, but as evidence that Dr Meyerkort received the letter.

1. The second defendant gave evidence that, in late 2013, the deceased said to him that the neighbour was coming in and stealing his tools and that, on another occasion, the deceased said the neighbour had stolen his keys.[25]
2. The deceased visited Dr Meyerkort on 9 June 2014. Dr Meyerkort recorded in his notes that the deceased 'does all cooking cleaning shopping in house. Did have help from Rainbow but did not agree with their charging and one day their soup burnt wife's throat so he thought the soup was being poisoned'.[26]
3. The deceased visited Dr Meyerkort on 1 October 2015. Dr Meyerkort records in his notes that the deceased had 'anxiety over neighbour stealing from his garden'.[27]
4. The second defendant gave evidence that, in May 2016, he visited the deceased and the deceased said that he had been to the doctors because the second defendant had tried to poison him with coffee. The second defendant said that he did not have any further contact with the deceased until 2017. [28]
5. On 21 August 2017, the deceased visited Dr Meyerkort. Dr Meyerkort's notes record that that deceased said 'a neighbour has damaged flowers and stealing some tools from garage and damaged his chain saw'.[29]
6. Mr Hayes, the deceased's neighbour, gave evidence that, between 2016 and 2018, the deceased asked Mr Hayes if he could leave his estate to Mr Hayes and his family. Mr Hayes said to the deceased that he did not want him to do that and that then the deceased said to him in response that he might leave it to his other neighbours.[30]

Deceased visits Public Trustee on 29 September 2017

1. On 29 September 2017, the deceased gave instructions to the Public Trustee to prepare a new will. The will instruction form states 'Richard Goode step-son - he doesn't want him to get anything'.[31]
2. A file note created by Lindsay Holland, Senior Wills Paralegal Officer, dated 29 September 2017, states:

Family Provisions Act was discussed a little. He has a stepson that he does not want in his will at all.

[He] gave clear and reasonable instructions for a Will. In my discussion, [he] remained involved, allowed me to ask questions and gave reasoned and reasonable answers. [He] knew what the interview was for and knew what a Will is for. [He] knew his assets, names of beneficiaries, dob and was straight forward in his instructions. Based on my interview I consider that [he] has testamentary capacity. I have no concerns re his capacity at all. NONE! He was absolutely excellent.[32]

Interactions between deceased and first defendant in June 2018

1. The first defendant gave evidence that the deceased called her on 4 June 2018 and said words to the effect 'you are at my window, come in. I can see your car in my driveway'. The first defendant told the deceased that she was not at his house, but said that he remained adamant that she was.[33]
2. On 9 June 2018, the first defendant said that the deceased called her and demanded that she visit him. She said that she went to visit him and the deceased accused her of breaking in, flooding his laundry floor and leaving a broken hammer and level. The first defendant said they checked the CCTV footage which showed the deceased moving a bucket and mop around. The first defendant said the deceased became upset and denied it was him.[34]
3. In cross‑examination, counsel for the plaintiffs put to the first defendant that the deceased argued with the first defendant in June 2018 because the first defendant had asked the deceased for money. The first defendant denied that she had asked the deceased for money.[35]

Relationship between the plaintiffs and the deceased in July 2018

1. The first plaintiff gave evidence that he and his wife, the second plaintiff, first met the deceased and Maria in late 1989. He said that from 1998 to July 2018, the deceased would invite the plaintiffs over to his and Maria's house a couple of times a year after Sunday mass.[36]
2. The first plaintiff gave evidence that the deceased invited him and the second plaintiff over to his house after church on 15 July 2018. This is the first time that deceased mentioned to them that he had children. The first plaintiff gave evidence that the deceased told them that he had a daughter named Teresa and a stepson named Richard, and that he had very little contact with them over the last 40 years. The deceased said that he was lonely and asked the plaintiffs to look after him.[37]

First defendant tells Dr Meyerkort of the deceased's delusions in July 2018

1. The first defendant gave evidence that she telephoned Dr Meyerkort in July 2018 to discuss her concerns about the deceased having delusions.[38]

Dr Meyerkort sends a letter to BOAMHS on 18 July 2018

1. Dr Meyerkort was the deceased's general practitioner from 2006 until his death in December 2018. Dr Meyerkort's practice is called Kooyong Medical. Dr Meyerkort gave evidence as the deceased's treating doctor, not as an expert witness.[39]
2. On 18 July 2018, Dr Meyerkort, sent a letter to BOAMHS in which he stated:

Thank you for seeing Jan, aged 97 yrs 9 mths, with paranoid ideation - accusing neighbour of stealing his equipment. He is also accusing his daughter Teresa of taking his photos and keys and not returning them. He also accuses daughter of flying through the lounge window one night. Daughter Teresa said he wanted her to come over but she is fearful of visiting him now as he may become violent towards her.

When I saw him a few weeks ago he did not express any paranoid ideation to me and appeared functional.[40]

1. Dr Meyerkort did not see the deceased on 18 July 2018 and accepted, in cross‑examination, that he had spoken to the first defendant about the deceased's delusions concerning her and that the letter to BOAHMS was created without any reference to the deceased.[41]

Dr Tan and Nurse James visit the deceased on 23 July 2018

1. After receiving the letter from Dr Meyerkort, BOAMHS arranged for Dr Tan and Nurse James to visit the deceased at his house in Lathlain. BOAMHS prepare a document entitled 'Triage' in relation the deceased.[42] This document states:

97 year old man referral by GP who reports family are concerned that [he] is becoming increasingly paranoid had been accusing his daughter and neighbours of stealing items from him also reportedly accusing his daughter of flying through the window at night taking items (keys and photos) from him and not returning them. Daughter now fearful of visiting him in case he becomes violent towards him (sic).[43]

1. Dr Tan and Nurse James visited the deceased at his house on 23 July 2018. Dr Tan made handwritten notes on a document entitled Outpatient Case Notes.[44] This document also contains notes made by other team members involved in the case.[45] Dr Tan gave evidence that some of her notes were made contemporaneously with the visit and some were made after the visit, although all were made on the same day as the visit.[46] Dr Tan's notes state:

Delusional that daughter has been poisoning his soup. Daughter is a witch - she opens his window at night and mess (sic) up his rubbish bags. Change the bags unnecessarily.

1. Dr Tan gave evidence that risperidone was an antipsychotic medication that had pros and cons for use in a man of the deceased's age.[48]
2. On 1 August 2018, Dr Tan sent a letter to Dr Meyerkort in response to his letter to BOAMHS dated 18 July 2018.[49] In the letter Dr Tan states:

[The deceased] is a widower, aged 98, who lives independently, presents with at least 6 years history of delusional thought content that his soup being poisoned by his wife who has since passed away. He is delusional that his daughter is a witch and is performing witchcraft on him. He believes that she puts poison in his soup because he became unwell after consuming some soup that she made for him.

... Collateral history from his daughter suggestive of a life long delusional disorder and potential aggression especially towards her.

Jan is a pleasant elderly man who is chatty and welcoming of our visit. He is forth coming of his concern about his daughter. Jan is able to build good rapport and maintain good eye contact. He speaks with an accent, it is easy to understand his thought content and speech. There is no slur. His thought form is linear. He has delusional thought that his daughter is a witch and she comes in at night to swap his rubbish or steal his car keys and some photos. Jan's affect is warm, reactive and euthymic.

1. Dr Tan gave evidence that the deceased reported the delusions about the first defendant being a witch, swapping his rubbish and stealing his keys and photos to her directly and that she did not obtain any collateral information before she spoke to him.[50] In cross‑examination, Dr Tan confirmed that the deceased had expressed these delusions directly to her and that they were recent ongoing delusions.[51] Dr Tan gave evidence that, at the time she visited the deceased, these were delusions that he believed at that time.[52]
2. In cross‑examination, Dr Tan said that it was possible, but unlikely, that the information recorded in her notes came from collateral information that had been given to her.[53] Dr Tan confirmed that she did not record, and could not remember, the questions that she asked the deceased during that visit.[54]
3. Dr Tan gave evidence that she based her opinion that the deceased had a '6 year history of delusional thought content' on the notes of Dr Kim Walsh prepared in 2012 regarding the deceased.[55]
4. Dr Tan gave evidence that the fact that the deceased's thought form was linear is nonetheless consistent with the deceased having a delusional thought disorder.[56]
5. Following the visit with the deceased, Nurse James prepared a mental health assessment for the deceased. He gave evidence that he prepared that assessment after returning to his office, that the notes are in his own words and are an accurate representation of his interactions with the deceased on that day.[57]
6. Nurse James states the following in his notes:

Thought content - openly discussing his frustration and agitation with daughter.

Stating that he had no contact with his daughter for 40 years, after she married an Argentinian man. When his wife passed away 3 years ago, he states that his daughter did not attend the funeral, and only re-entered his life a couple of years ago, despite him being a good father to her growing up.

Reports that he became unwell after she gave him some homemade soup. When daughter gave him more homemade soup on a later occasion, he says that she refused to eat the soup herself, alluding that she had tampered with it, so will no longer eat any food she gives him.

Believes she is entering his house without his permission. On one occasion, he thinks she entered his bedroom from the back door and took away his car keys and reading glasses. On another occasion, he believes that she entered the house from an open front window and flying through the front window like a witch, interfering with his garbage bags. Also stating that on one visit to his house, she put a picture on his freezer of a witch - believes she is a witch that practises witchcraft, which goes against his Catholic beliefs.

Due to these perceived beliefs, Jan wants nothing to do with his daughter and son-in-law, and wants to remove her from his Will.

Also expressing paranoid beliefs about next door neighbour and neighbour behind him, stating that they used to spray poison on his trees - no longer has grievances with them though.[58]

1. Nurse James gave evidence that when the deceased said that his daughter had flown through the window and interfered with his garbage bags that the deceased was referring to something that had happened recently.[59]

Nurse James telephones first defendant on either 26 July or 31 July 2018

1. Nurse James called the first defendant on either 26 July or 31 July 2018 to obtain collateral information in relation to the deceased. Nurse James' evidence is that it was 26 July 2018 as that was the date the notes were made.[60] The first defendant gave evidence that it was on 31 July 2018.[61] I find that the call was most likely made on 26 July 2018, although nothing turns on this.
2. Nurse James made notes on 26 July 2018 after having a telephone conversation with the first defendant.[62] Nurse James gave evidence in cross-examination that, although he did not recall whether he told the first defendant that the deceased had told him he was changing his will, if he did tell her he would have expected that to appear in his notes, and it does not.[63] Nurse James recorded the following in his notes:

... with Jan's permission for collateral. Teresa states:

She ceased contact with Jan 40 years ago due to repeated threats and threatening letters on her life, including threatening to disconnect the brakes on her car. Engaged lawyer, who recommended no further contact.

Jan accused her of drug use and tried to get her sacked from her job

The Polish community have long been unhappy with the behaviour of Jan (and his now deceased wife)

She reestablished contact with Jan after the passing of her [mother], hoping things would be different

Paranoia and delusional beliefs towards her persisted when she reinitiated contact

She installed security cameras for him, due to the accusations. Jan accused her of moving ant killer and a hammer. On reviewing footage with Jan, it showed Jan as the person moving the items. Jan refused to accept this and did not recognise the person in the footage as being him

Jan has been paranoid of neighbours, making accusations

Jan rang her on 04/06/18, asking her why she had just been at his house, knocking on the door and then leaving when she had a key to enter the house. Teresa was at work at the time and insisted it wasn't her. Jan demanded she return the 2 house keys he gave her, which she did, but he accused her of having more (copies)

She used to call him on a daily basis (welfare check), but stopped mid-June after he insisted he didn't need any help

He has had falls in the past and gave him a 'Medic Alert' pendant to gain assistance but he refused to use it. He sustained a laceration to his forehead on one occasion but forgot that he had fallen over

Southcare assist him with cleaning and gardening plan - D/W team @ meeting tomorrow.[64]

1. The first defendant said that she did not speak to Nurse James or anyone from BOAMHS about the deceased's will.[65]

Meetings between the plaintiffs and the deceased in August 2018

1. The first plaintiff gave evidence that he and the second plaintiff visited the deceased one day after work in August 2018 and that on this occasion, the deceased brought up the topic of wanting to change his will. The first plaintiff said that the deceased said that he didn't have anyone and that he wanted to name the plaintiffs as beneficiaries under his will. The first plaintiff said that he told the deceased that he and the second plaintiff did not want to be beneficiaries under the will.[66]
2. The first plaintiff gave evidence that, in the following weeks, the deceased said the following to the plaintiffs:

(1) that around June 2015, the second defendant and the second defendant's daughter came to see him on several occasions. On each occasion they would tidy the house, clean the fridge and make him coffee. Each time he drank the coffee the second defendant prepared for him, the deceased would feel ill and experience stomach pains. The deceased confronted the second defendant about why the coffee kept making him ill, which caused them to argue. The deceased had not seen the second defendant since that argument;[67]

(2) sometime in 2017, the first defendant had contacted the deceased and attempted to repair their relationship. The deceased said that the first defendant would often bring soup around to his house and eat the soup with him. He said that he was happy she was trying to be a good daughter so he made a new will to name her as the main beneficiary. The deceased said that after he told the first defendant this, she continued to ask him for money which caused them to have arguments;[68]

(3) in 2018, after the first defendant returned from Poland, she began to bring the deceased soup and that on one occasion the soup she had made caused him to feel ill. The deceased said that the next time the first defendant brought him soup he asked her to eat the soup with him and that she kept refusing. The deceased said this led to an argument and he told the first defendant he did not want to see her anymore;[69] and

(4) sometime after the last argument about the soup, the first defendant came back to the deceased's house and removed photographs of Poland and Obrowo that she had given him.[70]

1. The second plaintiff gave evidence that she recalled the deceased telling her two to three times in 2018 that the first defendant made him soup that made him sick. She said 'Jan was always clear when telling me this'.[71]

1. Dr Meyerkort saw the deceased on 26 July 2019. Dr Meyerkort made the following record in his notes of that visit:

Accuses daughter of stealing his reading glasses and car keys and does not trust her to eat her soup[72]

1. In cross-examination, Dr Meyerkort confirmed that the note records what the deceased said to him on that day.[73] Mr Meyerkort also confirmed that the deceased did his own shopping, continued to drive, managed his own finances and knew what day, month and year it was.[74]

1. After calling the deceased on 8 August 2018, Ms Plawiak went to visit the deceased at his home in Lathlain on 10 August 2018 at around 11 am. This visit lasted for about 50 minutes.[75] Ms Plawiak gave evidence that during the home visit she made handwritten notes in her notebook and on the same day, after returning to the office, typed a record of the visit into the hard copy file.[76]
2. Ms Plawiak records the following in her notes:

He retold the same story re his daughter removing herself from the family for many years, then coming back after mother death. Wanting to help him but made him sick with her soup, then entered his house through the window, moving items around. He's convinced that she came through the window because he found it open and he recalls closing it. Since she's been removing items from the house and they have had a falling out and he asked her not to come. He reports no problems with missing items since she's not been coming around, although he occasionally hears someone at the front door and he thinks it might be her. He is deeply disappointed with her after he's paid for her schooling and supported her in younger life.[77]

1. Ms Plawiak gave evidence that her reference to the deceased 're‑telling the same story' was a reference to what she had already seen on the deceased's file, which included the notes of Dr Tan and Nurse James and what the deceased had told Ms Plawiak on her visit that day, that being 10 August 2023.[78]
2. Ms Plawiak gave evidence that the deceased said to her that his daughter entered the house through the window and moved items around. Ms Plawiak gave evidence that the deceased did not say to her that he had actually seen his daughter enter through the window. Ms Plawiak said that she challenged the deceased by asking him questions about how his daughter got through the window. Ms Plawiak said that the deceased was unable to provide her with any plausible explanation.[79]
3. Ms Plawiak gave evidence that the deceased discussed with her his intentions to change his will. Her notes record:

[The deceased] plans to change the will and states he's doing it because she has 'not been a good daughter'. He's thinking of changing the will in favour of a young German family from the church. When questioned he denied AH [auditory hallucinations], VH [visual hallucinations] and said he felt safe and not worried.[80]

1. Ms Plawiak gave evidence that, during the visit, the deceased interjected simple contextual or joining Polish words into his sentences, but that when she tried to talk to him in Polish, the deceased's body language changed and he broke eye contact.[81]
2. Ms Plawiak's notes conclude by recording 'Nil risks identified. Plan review in 2 weeks'.[82]

1. Ms Plawiak gave evidence that she visited the deceased again on 31 August 2018 for about 40 minutes.[83] She said that, when she asked the deceased questions about his daughter, he spoke freely about her. Ms Plawiak recorded in her notes:

... Jan advised that everything was OK; he still drove to Harold Hawthorn Centre for his meals. South Care were coming fortnightly to do help with cleaning and lawn mowing.(sic) He report[s] good sleep and appetite and stated he had no worries or concerns. When asked about his daughter he started to retell the same story as previously re coming through the window, removing his tools, keys and photos. He again stated she was doing this because he told her he would change his will after he believes she tried to poison him with soup. He advised that he has picked up new will forms and will likely complete them next week, again stating he will leave everything to the German family from the church. He advised that he has told this family about the will. Jan stated that since his daughter had stopped coming to visit things have been quiet (sic) and he's had no issues apart from last week when he found nails had been nailed to the back of his brick wall. Jan showed me several nails and holes which look like very old nails. He's not sure why his daughter would have done this and it's worrying him somewhat. He showed the outside video cameras but said he doesn't know how to operate them. He also talked about that he had a similar experience with his step son Richard Good[e]. Several years ago he showed him a copy of his will leaving things to him, later step son would come over with his daughter to help with cleaning, then they put something in his coffee and Jan became sick. He confronted his step son and told him to never come back. Now he's experienced the same thing with his daughter. He stated that once he showed her the will she just wanted him to die so she could have the house, money in the bank and the car - that's why she poisoned the house. Jan advised that some time ago he called the Police about this but they told him they don't get involved in family matters. So he thinks the best thing to do is to change the will in favour of this family from the church. Jan reports taking only 1 medication for blood pressure and said he's health[y] and does not need any other medication; he plans to see his GP next week. Jan was keen to receive another visit in 2 weeks. Nil immediate risks identified. Issue with the will is concerning but it's unlikely that he can be prevents (sic) from changing it. Plan: call GP re Dr Tan's recommendation to start risperidone, review in 2 weeks.[84]

1. Ms Plawiak gave evidence that she called Dr Meyerkort on 31 August 2018 and asked if the deceased had started to take risperidone. She said that Dr Meyerkort told her that he had not seen the deceased since the referral to BOAMHS and that his delusions were a long-standing issue. This is reflected in her notes.[85]

Deceased visits Public Trustee on 17 September 2018

1. On 30 August 2018, the deceased completed and signed a Public Trustee Will Application Form.[86] The deceased listed his children as the first defendant and his grandchildren as 'two granddaughters names don't know'.[87] He listed his main beneficiaries as the first and second plaintiffs and his assets as 'Bank $800,000, House $800,000, Car $12,0000, BOQ shares 341'.[88]
2. It is not in issue that, on 17 September 2018, the deceased took a taxi on his own to the office of the Public Trustee to meet with Ms Diane Anne Williams, a solicitor employed by the Public Trustee for the purpose of instructing the Public Trustee to prepare the 2018 Will. Ms Williams prepared a Public Trustee Will Instruction Form.[89]
3. Ms Williams records the following on the instruction form:

Client advised of no medical condition affecting memory making a will, he said that whilst he probably didn't remember as much as when he was younger, he had no known/diagnosed memory issue/condition. He was actively involved in interview, gave clear instructions, knew his assets/liabilities, he knew that he was here to make a will and he knew who he ought to provide for but gave reasons as to why he was not including his daughter or her child (his grandchild). He was very good for a 97 year old (turning 98 next week). Client advised that he looks after all his finances on his own, he lives on his own, cooks for himself, still drives but has a lady from home care once per fortnight to clean his house only. I have no concerns regarding the client's testamentary capacity.[90]

1. Under the heading 'Family Provision Act' on the instruction form, Ms Williams records:

Client is no longer including daughter Teresa or her daughter Calinda and hence why he has come in today to change his will. Client will get help from a friend to write or type a statement of reasons as he doesn't write very well but he will sign it. He has no trouble understanding or reading English but due to his age, his handwriting is not so good and can be difficult to read.

Client explained that his daughter Teresa was estranged for many years, then came back into the client's life again and that's why he changed his will in 2017 to include her. But since he did that and she knew she was now in his will, she then began to behave badly/strangely towards the client wanting his money straight away. Client advised that in the past, even when his wife was alive, Teresa would 'poison' the food or drinks she prepared for them as both he and his wife often were ill afterwards. Then they became estranged and Teresa did not even go to her mother's funeral in 2015.

After his wife's death, clients' friends were telling him he should make contact with Teresa as she was his daughter, no matter what. Client then kept calling her to make contact and she came back into his life. Once she knew she was in his will, client said it was obvious she wanted his money immediately.

In May this year, after she returned from Europe, Teresa brought over some soup for the client. When he asked her to have some soup with him, she refused to eat it so he became suspicious that she was poisoning his food again. After that contact in May, Teresa came and took photos and other items from his house and left and has never returned nor made contact with him and ignored his attempts to make contact. Client has given up on her and does not wish for her to benefit under his will, even though he knows there is a risk that she or her daughter Calinda can contest the will.[91]

1. Ms Plawiak visited the deceased at his home on 10 October 2018 for about 40 minutes. Ms Plawiak recorded the following in her notes:

He was waiting for my visit. His affect was bright and reactive. He asked me which hospital I was from and started to say that he's not been feeling the best for the past few days - experiencing more pain in his legs. Had not driven to the centre for meals. Assured me he's eating OK. Stated he has 2 fried eggs on toast daily and will make himself things to eat for lunch. JG quickly started to tell me that he has now made the new will in favour of his church friends Maria and Joachim Diedert (sic) from 9 Thomas Court Kingsley. He stated that they call him daily and visit often. He also sees them at church on Sundays. JG stated that since he changed his will with the Public Trustees, his daughter has found out (he thinks they called her) and has been causing trouble for him. He himself has not seen her or spoken to her but is convinced it's her -1) his trousers have disappeared, 2) 2 electrical cords have been pulled out from the socket, 3) 1 screwdriver and a saw has disappeared. Again he can't explain how she's does these things maybe 'she uses witchcraft'. JG denied feeling scared or at risk. He said he's not fearful or worried about what else his daughter might do. He once again spoke about how he believes she tried to poison him with soup. JG was easily redirected to other topics. Discussed his ability to manage at home, he said he was OK and if he needed anything he knows he can ask South Care to do more for him. He was opened open to having a social visitor - and admitted he did feel lonely at times. At present he's worried about the pain in his legs but he's not planning to see the GP. He said that he still has 1 more repeat for his bl pressure tb and he will have to see GP after that. Again JG showed me his backyard. He noticed a rake on the ground and quickly told me 'see ... someone's been here using my rake'. Would not accept it had simply fallen over. Advised that I would write to his GP - JG did not want me to call his daughter, and that most likely will not see him again. Provided him with a clinic card, name and number to call if he was worried about anything. Plan: discuss with team and consider discharge as there is nil risks, GP accepts this is long standing and medication compliance/efficacy is questionable in the long term.[92]

Deceased dictates 'Statement of Reasons' on in September 2018

1. The first plaintiff gave the following evidence:

... on 17 September 2018 I was at Jan's place and he had - and he told me that he had made a new will in which my wife and I were the main beneficiaries and that he had left out his children and that the Public Trustee had asked him to give a reason for that and to write up a statement of reasons. So he showed me the form which we're looking at here [exhibit 85] and he said - and he said to me that he wanted me to write it. So I said to him that it would probably be best if he would write it, but he insisted that I would write it and he would sign it and date it.

... [the deceased] said my writing - 'My writing is now getting worse,' or, 'it's getting bad now, and it would take me a very long time to write it, so you write it.'

... I wrote down word for word what he had told me, and I showed it to him afterwards and - and he signed it. I used exactly his words.[93]

1. The document to which the first plaintiff refers is a Public Trustee document titled 'Statement of Reasons' (Statement of Reasons[94]) and it is actually signed on 1 October 2018 (14 days after the deceased signed the 2018 will). Nothing turns on the date on which the deceased instructed the first plaintiff to transcribe the Statement of Reasons. The Statement of Reasons says:

I want Teresa and her daughter Calinda to get nothing from my will because she did not come to see me for over 40 years and she come not to her mothers funeral (sic).

She came after the funeral and visit a few times so I did make a will for her and after this she stopped coming to visit me again. The last time she came over she brought me soup and she would not eat any of her soup herself and she never came back again. I do not want her and her daughter to get anything from my will.

Deceased tells the first defendant about the 2018 will in October 2018

1. The first defendant gave evidence that the deceased told her about his 2018 will on 21 October 2018 and that he didn't tell her any earlier than that.[95]
2. The following exchange occurred between counsel for the plaintiffs and the first defendant:

Mr Shepherd: And at this stage [in October 2018] you were providing information and speaking to people on the basis that you had the intention of at some stage in the future challenging the capacity of your father to change his will?

First defendant: No, Mr Shepherd. That's totally incorrect.

1. In cross‑examination, the first defendant gave evidence that she had not sought any legal advice about challenging the will of the deceased before his death.[97]

1. The first plaintiff and the first defendant both gave evidence that the deceased was taken to hospital on 28 October 2018, was later transferred to Bentley Hospital and then returned to his home on 15 November 2018.[98]

First defendant attend's deceased home on 7 December 2018

1. The first defendant went to the deceased's home at around 1.30 pm on 7 December 2018 after a neighbour could not reach him. The first defendant discovered that the deceased had passed away in his home.[99]

Did the deceased have testamentary capacity when he made the 2018 will?

1. It was not in issue at the trial that the deceased had long periods of estrangement from both the first and second defendants and that his relationship with each one was not always one of affection.
2. It was also not in issue that, on 17 September 2018, the deceased was living independently, driving and managing his own finances.
3. I am satisfied that, on the basis of the 2018 will application form and the notes of the Public Trustee, as at 17 September 2018, the deceased:

(1) knew that the purpose of his meeting with the Public Trustee was to prepare a will;

(2) understood the nature and effect of making a will;

(3) was aware of his assets and liabilities;

(4) was aware of that he might be expected to provide for the first defendant and her daughter; and

(5) had reasons for not making provision for the first defendant and her daughter in the 2018 will and was aware that they might contest the 2018 will.

1. The first defendant submits that the court cannot be satisfied that, at the time he made the 2018 will, the deceased was able to comprehend and appreciate the claims to which he ought give effect (the third Banks v Goodfellow requirement). The first defendant submits the reason the court cannot be so satisfied is because the deceased did not tell the Public Trustee about the second defendant.
2. While I must be satisfied that the deceased was capable of appreciating the claims to which he ought give effect, I am not required to be satisfied that he actually evaluated those claims when he made the 2018 will.
3. I am satisfied, on the basis of the evidence of the records of the Public Trustee, that the deceased appreciated that the second defendant may have a claim on his estate when he made the 2017 will. The deceased gave clear instructions to the Public Trustee that he did not want the second defendant to receive anything under the 2017 will.
4. On the basis of the first plaintiff's evidence that:

(1) in August 2018, the deceased told the plaintiffs that in June 2015, the second defendant had prepared him coffee which made the deceased feel sick and that he had not seen the second defendant since they had argued about the coffee; and

(2) on 17 September 2018, the deceased told the first plaintiff he had made a new will in which the first plaintiff and his wife were the main beneficiaries and that he had left out his children,

I am satisfied that the deceased was capable, on 17 September 2018, of appreciating the claim that the second defendant may have on his estate. The fact that he did not mention the second defendant to Ms Williams of the Public Trustee when he gave instructions to prepare the 2018 will does not lead me to a contrary finding. In 2017, the deceased had made a new will, and at that time gave reasons to the Public Trustee for not making provision for the second defendant. It is therefore, not surprising that he did not repeat those reasons or refer to the second defendant when making his 2018 will.

1. Therefore, I am satisfied, on the balance of probabilities, that the deceased satisfied the first three elements required for testamentary capacity identified in Banks v Goodfellow, being:

(1) the deceased understood the nature of the 2018 will and its effects;

(2) the deceased understood the extent of the property of which he was disposing; and

(3) the deceased was able to comprehend and appreciate the claims to which he ought give effect.

1. However, it is fourth element - 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' - that is at the heart of this case. There are effectively two 'limbs' to the fourth requirement - the first being that the deceased must, in fact, be suffering from a delusion or delusions, and the second being that the delusion must have influenced his disposition under the will.
2. I find that the evidence, when considered in its entirety, overwhelming supports a finding that the deceased was suffering from delusions when he made the 2018 will. Before I detail those delusions- I will make some observations about the medical evidence that was adduced and which I have found to be compelling in support of the finding that the deceased was suffering from delusions.
3. Counsel for the plaintiffs submitted that there was no expert medical evidence of a diagnosis of delusional disorder. I accept this - Dr Tan did report to Dr Meyerkort that the deceased was suffering from a delusional disorder,[100] but Dr Tan was not called as an expert witness. However, as I have outlined, the question of whether a testator had testamentary capacity is a legal, as opposed to a medical, question. Whether a testator had testamentary capacity at the time he made a will is determined by applying 'common sense judicial judgment on the basis of the whole of the evidence'.[101]
4. I do not rely upon the evidence of the medical professionals in support of an expert diagnosis of a delusional disorder for the deceased. I do not need expert evidence or a medical diagnosis to determine testamentary capacity. I rely upon the evidence of Dr Tan, Nurse James, Dr Meyerkort and Ms Plawiak as to their direct and independent observations of the deceased at the times they saw him. Their evidence, in combination with the evidence of the first and second plaintiffs, the first and second defendants and Mr Hayes, supports the finding that the deceased was suffering from delusions at the time that he made the 2018 will. Those delusions were as follows.
5. On 17 September 2018, the deceased held a current unfounded belief that firstly, the first defendant was a witch who had recently stolen from him and tried to poison his soup and secondly, that the second defendant had tried to poison his coffee in 2015.
6. The proposition put forward by the plaintiffs that the first defendant, knowing that the deceased was going to change his will so that she would no longer be a beneficiary of his estate, told others about these (false) delusions so as to later make a challenge to the deceased's capacity, is completely inconsistent with any of the independent evidence of the medical professionals who were treating the deceased at that time.
7. I accept that the first defendant reported her concerns about the delusions the deceased expressed to her that he was having about her to Dr Meyerkort and Nurse James. I also accept that Dr Tan and Ms Plawiak read the deceased's medical notes and had knowledge of the first defendant's reported concerns. However, to suggest that every one of the medical professionals then relied only upon the first defendant's account of those delusions to assess the deceased is implausible and unbelievable. Each of Dr Meyerkort, Dr Tan, Nurse James and Ms Plawiak gave evidence that the deceased told them directly either that he believed his daughter was a witch, was stealing things from him, was moving items in his house and/or had poisoned his soup. The plaintiffs do not plead that the first defendant had, in fact, done any of these things.
8. The evidence of the first plaintiff himself provides compelling support for the finding the deceased was suffering from such delusions- the first plaintiff gave evidence that he wrote down 'word for word' what the deceased said in the Statement of Reasons for not providing for the first defendant in the 2018 will - one of those reasons being that the last time she saw the deceased she brought him soup and she would not eat any of it herself.
9. I am also satisfied that the first defendant genuinely believed that the deceased had suffered from life-long delusions. The letters the deceased sent the first defendant in the 1970s support her belief.
10. Further, the history of estrangement between the deceased and the first and second defendants as evidenced by the letters in evidence, together with evidence that the deceased had expressed delusional thoughts to the police, Dr Meyerkort and Mr Hayes lends support to the fact that the later delusional beliefs about the first and second defendants were not implausible or 'out of the blue'. I also do not accept that any of the medical professionals, being aware of the fact that the first defendant had reported the deceased's delusions to Dr Meyerkort, compromised their independent observations of the deceased.
11. There is no other inference that can be drawn from all of the evidence, other than that the deceased was suffering from a disorder of the mind, that is delusional thoughts, that had poisoned his affections against the first and second defendants when he made the 2018 will.
12. The second limb of the 'fourth element' is that the disorder of the mind must have had an influence on the deceased's will in disposing of his property and have brought about a disposal of his property which, if he had not been suffering from the delusional thoughts, would not have been made.
13. I am positively satisfied, on the balance of probabilities, that the delusional beliefs held by the deceased about the first defendant were constantly and consistently linked with questions concerning the distribution of his estate at the time that he made the 2018 will because:

(1) on 26 July 2018, the deceased told Nurse James that the first defendant was entering his house without his permission. The deceased said that, on one occasion, he thought the first defendant entered his bedroom from the back door and took away his car keys and reading glasses. The deceased told Nurse James that, on another occasion, the first defendant entered the house from an open front window and flew through the house like a witch, interfering with his garbage bags. He told Nurse James that the first defendant is a witch that practises witchcraft, which goes against his Catholic beliefs. The first defendant told Nurse James that, because the first defendant was doing these things, he wanted nothing to do with his daughter and son-in-law, and wanted to remove the first defendant from his will;

(2) on 31 August 2018, the deceased told Ms Plawiak that he told his daughter he would change his will because she tried to poison him with soup;

(3) on 17 September 2018, the deceased told Ms Williams that in May 2018 the first defendant had brought over some soup for him, but when he asked her to have some soup with him, she refused to eat it, so he became suspicious that she was poisoning his food again. He told Ms Williams that, after that contact in May 2018, the first defendant came and took photos and other items from his house and left and has never returned nor made contact with him and ignored his attempts to make contact. The deceased told Ms Williams that he has given up on the first defendant and does not wish for her to benefit under the 2018 will; and

(4) on 10 October 2018, the deceased told Ms Plawiak that since he changed his will, the first defendant has found out and is causing trouble for him and that she uses witchcraft.

1. I am satisfied, on the balance of probabilities, that the delusional beliefs that the deceased held about the first defendant influenced the disposition of his property in the 2018 will.
2. I accept that this conclusion involves a rejection of the opinion expressed by Ms Williams, in her notes dated 17 September 2018, that the deceased had testamentary capacity to deal with his legal and estate matters.
3. Ms Williams was not called to give evidence. Therefore, there is no evidence before the Court that Ms Williams was aware of the deceased's delusions and whether she put her mind to the question of the influence of the deceased's delusions on his testamentary decision making. While I do not draw any adverse inference against the plaintiffs because they did not call Ms Williams to give evidence, there is simply an absence of evidence as to whether Ms Williams turned her mind to this element of capacity.
4. It is not surprising that the deceased himself recorded that he was not suffering from delusions in his 2018 will application form provided to the Public Trustee.[102] If the deceased was able to recognise his beliefs as delusions, then they would no longer be considered delusions.
5. The fact that Ms Williams records the deceased as saying to her that he believes his daughter, the first defendant, was poisoning him is evidence which supports the finding that, at the very time that the deceased was giving instructions about the 2018 will, he was suffering from the delusions.
6. I am satisfied that, on 17 September 2018, the deceased's delusional beliefs concerning the first defendant infected his testamentary capacity and influenced his decisions as to the disposition of his property as reflected in the 2018 will.
7. I am satisfied, on the balance of probabilities, that the deceased did not have testamentary capacity when he made the 2018 will. The 2018 will is therefore, not a valid will.

1. In June 2012, the deceased had expressed to Dr Meyerkort his beliefs that a carer at the polish centre had tried to poison Maria with soup that was intended for him and, as a result, Dr Meyerkort referred the deceased to BOAMHS.[103]
2. Dr Kim Walsh of BOAMHS reviewed the deceased and wrote to Dr Meyerkort in July 2012 confirming that the deceased had expressed the delusion that the carer had poisoned soup that was intended for him.[104]
3. In October 2014, the deceased wrote to the police accusing his neighbour of stealing various items from him.[105]

1. The second defendant gave evidence that, in October 2014, he arranged for Mr Steven Fidock to attend Amana Living where Maria was in care to prepare new wills for Maria and the deceased. The second defendant was in attendance when Mr Fidock took instructions from the deceased and Maria for the wills and was present when each of their wills was signed and witnessed. The second defendant was handed a copy of the deceased's 2014 will. [106]
2. The first defendant gave evidence that the deceased never talked about the 2014 will and to the best of knowledge of her knowledge did not sign the 2014 will.[107]
3. The copy of the 2014 will which was handed to the second defendant is not signed.[108] The second defendant does not know what happened to the original.[109]
4. By the 2014 will, in the event that Maria predeceases him, the deceased gifts:

(1) the property in Lathlain to the second defendant's daughter, Natalie Goode;

(2) $15,000 each to Teresa Serada, Zofia Minczanowski and Tom Austin;

(3) 50% of his ready monies to his sister, Olha Lushkevich; and

(4) the residuary to the second defendant.

1. The 2014 will states 'I make no provision for my daughter Teresa as she has been adequately provided for during my lifetime and I am alienated from her'.[110]

1. The instructions that the deceased gave to the Public Trustee on 29 September 2017 to prepare the 2017 will recorded that the deceased did not want the second defendant to receive anything.[111] Just as was the case with Ms Williams of the Public Trustee, there was no evidence as to whether Ms Holland was aware of the deceased's delusions and whether she put her mind to the question of the influence of the deceased's delusions on his testamentary decision making. I therefore, do not place any weight on Ms Holland's view that the deceased had testamentary capacity at the time he made the 2017 will.
2. The first defendant gave evidence that the deceased told her that the reason he did not make provision for the second defendant in 2017 will was because the second defendant and his daughter, Natalie, were coming over and making coffee for him and he believed it was poisoned.[112]
3. I reject any suggestion that the first defendant manufactured the deceased's views about the second defendant for her own benefit - that is to encourage the deceased to make a new will in her favour. This is simply not supported by the evidence. The deceased told the second defendant, Ms Plawiak and the first plaintiff that the second defendant had tried to poison his coffee. This delusion that the deceased held about the second defendant trying to poison his coffee was not an invention of the first defendant. Further, I am satisfied that the deceased held this delusion at the time that he made the 2017 will and that it influenced his decisions as to the disposition of his property in the 2017 will.

1. Although there is evidence to support a finding that the deceased was suffering from persecutory delusions from at least 2012, it is not appropriate to make any final determination as to the validity of the 2014 will or the 2017 will where all of the beneficiaries under each of those wills are not parties to this action. Each of those beneficiaries must be given notice of any non-contentious application to prove the 1981 will.

1. I am satisfied, on the balance of probabilities, that, on the date he made the 2018 will, the deceased was suffering from delusional beliefs concerning the first defendant which infected his testamentary capacity and influenced his decisions as to the disposition of his property as reflected in the 2018 will.
2. I am therefore satisfied, on the balance of probabilities, that the deceased did not have testamentary capacity when he made the 2018 will. The 2018 will is therefore, not a valid will.
3. The plaintiffs' claim for a declaration that the 2018 will is valid and effective and is the last will of the deceased is dismissed.
4. The first defendant's counterclaim for a declaration pronouncing the force and validity of the 1981 will of the deceased is dismissed.
5. I will hear the parties as to final orders and costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CITATION : DIEDLER -v- BOROWIEC [No 2] [2023] WASC 396 (S)

Costs orders following trial - Costs of unsuccessful summary judgment application by the first defendant - Application of Calderbank offer principles to probate actions - Whether plaintiff unreasonably rejected Calderbank offer

Cost of summary judgment application be the first defendant's costs in the cause

Each party bear their own costs of late discovery of documents

Plaintiffs pay the defendants' costs of the action to 19 December 2022 on a party/party basis

Plaintiffs pay the defendants' costs of the action from 20 December 2022 on an indemnity basis

Calderbank v Calderbank [1975] 3 All ER 333

Currie v Currie [No 3] [2018] WASC 306

Diedler v Borowiec [2021] WASC 394

Diedler v Borowiec [No 2] [2023] WASC 396

Eccles v Koolan Iron Ore Pty Ltd [2013] WASC 418 (S)

Oreski v Ikac [2008] WASCA 220

Oreski v v Ikac [2007] WASC 195 (S)

Re Kuhl; Kuhl v Liebcheschel [1933] SA St Rp 41; [1933] SASR 394

Ridgepoint Corp Pty Ltd v McCallum Donovan Sweeney (A Firm) [2011] WASC 167

Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96

Tarabini v Silvester (Unreported, WASCA, Library No 960684, 6 December 1996)

Union Bank of Australia v Harrison, Jones & Devlin Ltd [1910] HCA 44; (1910) 11 CLR 492

Wheatley v Edgar [2003] WASC 118

Yara Australia Pty Ltd v Oswal [2012] WASCA 264

1. In September 2018, the deceased, who was then 97 years old, made a will appointing the Public Trustee as executor. The plaintiffs, who were friends of the deceased, were residuary beneficiaries of the 2018 will. The deceased did not make any provision for his adult children, the first and second defendants, in the 2018 will. After making enquiries of the deceased's treating medical practitioners, the Public Trustee advised the plaintiffs that it believed that the 2018 will was not valid because, at the time that he made the 2018 will, the deceased was suffering from delusions which impacted his will making capacity. The Public Trustee advised the plaintiffs that it would not be applying for probate of the 2018 will.
2. The plaintiffs made an application in the non-contentious jurisdiction of the Supreme Court for letters of administration with the 2018 will annexed. The first defendant also made an application for letters of administration with a will made by the deceased in 1981 annexed. A registrar of the Supreme Court advised the parties that he refused to make a grant in common form of the 2018 will but was prepared to make a grant in common form of the 1981 will.
3. The plaintiffs then commenced these proceedings seeking to obtain an order for proof of the deceased's 2018 will in solemn form. The action was heard over 7 days from July to September 2021.
4. On 18 October 2023, I published my reasons for decision in Diedler v Borowiec [No 2] [2023] WASC 396 (Reasons for Decision).
5. In the Reasons for Decision,[113]I found that:

(1) on the date that the deceased made the 2018 will, his affections towards the first and second defendants were poisoned by a disorder of his mind in that he had delusions that the first defendant was trying to poison him, was a 'witch' in the sense that she was practising witchcraft, that she flew through his window and was stealing items from him and that he had delusions that the second defendant had tried to poison his coffee in 2014;

(2) the deceased's delusions about the first and second defendants influenced his testamentary dispositions under the 2018 will;

(3) the deceased did not have testamentary capacity when he made the 2018 will; and

(4) the 2018 will was not valid.

1. The first defendant filed a counterclaim in the proceedings seeking a declaration that the 1981 will was the last valid will of the deceased. Although I had significant reservations about whether the deceased had testamentary capacity from at least 2012, I was of the view that it was not appropriate to make any final determination as to the validity of the 2014 will or the 2017 will where all of the beneficiaries under each of those wills were not parties to the counterclaim.
2. In the Reasons for Decision, I indicated that I would make orders dismissing the plaintiff's action and dismissing the first defendant's counterclaim and that I would hear the parties in relation to final orders and costs.
3. These reasons determine which party is entitled to costs and on what basis.
4. The plaintiffs seek an order that the plaintiffs' costs in the proceedings be paid from the estate of the deceased to be taxed on a solicitor/client basis, if not agreed between the plaintiffs and the interim administrator of the estate.
5. The first and second defendants seek the following costs orders:
   1. There be a certificate for the first defendant's solicitor at trial including the special appointment on 7 August 2023.
   2. The plaintiffs pay each of the defendant's costs and disbursements of the proceedings to be assessed if not agreed including:
      1. all reserved costs;
      2. those of the first defendant's summary judgment application.
   3. The costs the subject of the preceding order be paid on an indemnity basis from 4 June 2020.
6. The plaintiffs filed a written outline of submissions dated 13 November 2023 and submissions in reply dated 24 November 2023. The plaintiff also relied upon the affidavit of the first plaintiff sworn 30 October 2023 (First Plaintiff's Affidavit). On 30 November 2023, following the hearing, the solicitors for the plaintiffs wrote to the court and advised that counsel for the plaintiffs had re-reviewed the submissions and taken the view that several paragraphs are no longer pressed and contained typographical errors. Those submissions, as amended, are taken as the plaintiffs' submissions for the purposes of costs.
7. The first defendant filed a written outline of submissions dated 14 November 2023 and relied upon the affidavit of Elliot Brian Brennan Ryan sworn on 23 October 2023 (Ryan Affidavit).
8. The second defendant filed a written outline of submissions dated 14 November 2023.
9. Counsel for each of the parties made further oral submissions at a half day hearing in relation to costs before me on 27 November 2023.
10. A number of issues arise for consideration in determining the appropriate costs orders following trial. Those issues are:

(1) do the defendants have standing to challenge the 2018 will?;

(2) which party/parties are entitled to their costs of the action?;

(3) which party/parties are entitled to their costs of the counterclaim?;

(4) which party/parties are entitled to their costs of the summary judgment application?;

(5) are the plaintiffs entitled to a costs order against the first defendant because of late discovery of documents by the first defendant?;

(6) if the plaintiff is entitled to any costs order, is it entitled to costs on a solicitor/client basis?; and

(7) if the defendants are entitled to a costs order against the plaintiffs, are they entitled to indemnity costs?

Do the defendants have standing to challenge the 2018 will?

1. The plaintiffs contend that the defendants should bear their own costs and pay the plaintiffs' costs of the proceedings because the defendants do not have standing to challenge the 2018 will. It is appropriate to determine this issue first. And it can be dealt with expeditiously.
2. Apart from the fact that such a submission is curious given it was the plaintiffs that joined the defendants to the action, it has no legal basis. Not every person with an interest in the estate of the deceased must be made a defendant to the action[114]. However, those persons that do have an interest under a will or upon an intestacy may apply for leave to intervene in a probate action,[115] or if cited, may enter an appearance and be regarded as a defendant to the action.[116] A party seeking to propound a will should cite those persons who have an interest contrary to the plaintiff, for failure to do so may result in that person not being bound by the decision of the court.[117]
3. Given that the first and second defendants are entitled in distribution upon an intestacy or an earlier will of the deceased, they had an interest in the estate of the deceased and it was appropriate that they were joined as defendants. It was necessary that they be joined as defendants to ensure that 'all persons interested in asserting or resisting a claim shall be heard before judgment is given'.[118] Even if the defendants had not been joined they would have been entitled to enter an appearance, once cited, and be regarded as defendants to the action.
4. The defendants had standing to oppose the proceedings and any submission to the contrary is not accepted.
5. I turn to consider which parties are entitled to their costs of the action.

Which party/parties are entitled to their costs of the action?

1. Pursuant to s 37 of the Supreme Court Act 1935 (WA) (the Act), the court has a general discretion to award costs and has full power to determine by whom or out of what estate, fund or property, and to what extent costs are paid. This discretion is subject to the rules of the court. Order 66 r (1) of the RSC provides that, without limiting the general discretion conferred on the court by the Act, the court will generally order that the successful party to any action or matter will recover his costs. This is referred to as the general rule that 'costs follow the event'.
2. The general rule that costs follow the event applies to probate actions.[119] However, there are recognised exceptions to the general rule, those being:

(1) where the litigation has been caused by the conduct of the testator, in which case the costs of the parties may be paid out of the estate;[120] and

(2) where the unsuccessful parties have commenced proceedings with a reasonable and bona fide belief that good grounds exist for, in this case, propounding a will, in which case, the unsuccessful parties may be relieved of the burden of paying the costs of the successful parties and may be allowed their costs out of the estate.[121]

1. In relation to each of these exceptions, the unsuccessful parties do not need to establish exceptional circumstances for the relevant exception to apply, they only need to establish 'an adequate reason for an order of a different character'.[122]
2. In relation the first of the exceptions, it applies where the conduct, mode of life or habits of the testator give rise to a reason to question the validity of the will.[123]
3. In relation to the second of the exceptions, if the parties seeking to propound a will had good reasons for believing that the testator was of sound mind and capable of managing his or her own affairs, then, even if that will is pronounced invalid due to incapacity, the court may order that the unsuccessful parties' costs be paid by the estate.[124]
4. Although the two categories of exception to the general rule are conceptually distinct, there is overlap in their application. In Oreski, Barker J summarised several cases in which these exceptions have been considered, highlighting cases in which the two exceptions overlap.[125]
5. Ultimately, in considering whether either of the exceptions applies, the question for the court to answer is 'is there an adequate reason, given the facts of the case and the unsuccessful party's knowledge of them, to depart from the general rule that costs follow the event?'[126]
6. The plaintiffs say that they are entitled to have their costs of the proceedings paid out of the estate of the deceased for the following reasons:

(1) the Public Trustee, having assessed the deceased as having testamentary capacity and accepting an appointment as the executor of the 2018 will, had a duty to apply, and should have applied, for a grant of probate of the 2018 will in solemn form;[127]

(2) the plaintiffs were unrepresented at the time they applied for a grant of letters of administration with the 2018 will annexed and upon receiving the requisition from the registrar, the plaintiffs reasonably understood that, unless they filed contentious proceedings to propound the 2018 will, the opportunity to test the allegations regarding the capacity of the deceased at the time he made the 2018 will, would be lost;[128]

(3) the Public Trustee's action, in renouncing as executor of the 2018 will, was unfair to the plaintiffs and cast the burden on the plaintiffs to prove the 2018 will;[129]

(4) the plaintiffs had no alternative but to commence contentious proceedings to allow the court to investigate and determine the capacity concerns raised by the defendants and were drawn into the proceedings as a result of the actions of the Public Trustee and the letter of the registrar;[130]

(5) in December 2019, the plaintiffs had no independent reason to think that the deceased lacked testamentary capacity when he made the 2018 will - they had not personally witnessed any delusions of the deceased in relation to the first and second defendants, they observed the deceased living independently and managing his own finances and the deceased had long been estranged from the first and second defendants;[131]

(6) the plaintiffs acted in the interests of the beneficiaries of the 2018 will, including the Catholic Church in circumstances where the plaintiffs knew that the deceased had a strong Catholic faith and was a long-standing regular attendee at St Mary's Cathedral;[132] and

(7) the defendants have benefited from the proper determination of their objections to the validity of the 2018 will.[133]

1. The plaintiffs' submissions are rejected for a number of reasons.
2. Firstly, the plaintiff selectively relied upon the case of Wheatley v Edgar[134] in support of their contention that the Public Trustee had a duty to apply for a grant of probate of the 2018 in solemn form. It is the following passage of the decision of Heenan J that is relevant:[135]

...A similar situation might arise where an executor decides to propound the last will of a deceased notwithstanding his knowledge that some other person is contending for the invalidity of that will and is propounding an earlier testament. The second situation is the one which arises in this case. The proper role of the executor and of the court in such situations was considered by Sholl J in Re Levy deceased [No 2] (1957) VLR 662 at 665 where his Honour said:

That indicates that the common case in which the executor was wont to make an application for proof in solemn form, after he had obtained a grant in common form, was the case in which he had reason to anticipate some question being raised as to the validity of the will and desired to have the protection which a grant in solemn form would give him. In such cases it was nevertheless the practice to grant probate in solemn form on proof of the due execution only, at all events if there was no opposition. That seems clearly enough to indicate that the executor was not, in the view of the Prerogative Court, or, after 1857, the Probate Court, bound to call before the Court of his own motion all available evidence, both favourable to and adverse to the will of which he obtained a grant in common form. The duty of such a person, after all, must be a duty to propound the instrument which the testator has appointed him to propound, if he puts it forward at all. He cannot owe any duty to take legal proceedings to destroy the instrument from which alone he takes his title, and that was pointed out in case of In the Goods of Chamberlain (1867), L.R. 1 P & D at 316, to which reference was made in Re Levy deceased [1953] VicLawRp 17; [1953] VLR 652 at 655. Such an executor has, of course, no duty to put forward an instrument if he is satisfied that it ought not to be put forward. But once he does put it forward, he is entitled, in my opinion, to put it forward with only such evidence, available to him, as is in its favour. (emphasis added)

1. This passage, taken in its entirety, is not authority for the plaintiffs' submission that the Public Trustee had a duty to apply for a grant of probate of the 2018 will in solemn form - in fact it is authority for the proposition that there is no such duty (as is evident from the sentence upon which I have placed emphasis). In this case, the Public Trustee, after making independent investigations, was satisfied that the 2018 will was not valid. In such circumstances, it was entirely appropriate for the Public Trustee not to apply for probate of the 2018 will in either common form or solemn form. This completely dispenses with any contention of the plaintiffs that they had to stand in the shoes of the Public Trustee and therefore, should be afforded the same costs protection.
2. Secondly, I do not accept the plaintiffs' submissions that they had no alternative but to commence contentious proceedings to allow the court to determine the capacity concerns of the deceased raised by the defendants. One, concerns as to the deceased's capacity were not raised by the defendants alone, but also by the Public Trustee based on independent investigations of multiple treating medical practitioners of the deceased. Two, a registrar of the Supreme Court, when presented with the competing applications and having been provided with the correspondence between the Public Trustee and the deceased's medical practitioners,[136] advised the plaintiffs that there was no basis for making a grant of letters of administration with the 2018 will annexed in common form but there was a basis to do so in relation to the 1981 will. The plaintiffs were not 'drawn into' proceedings. The plaintiffs had a choice to commence these proceedings and I find that it was not reasonable for them to conclude otherwise.
3. Thirdly, the suggestion that the plaintiffs commenced these proceedings to protect the interests of the Catholic Church under the 2018 will is not accepted. On being informed of the bequest the deceased made in the 2018 will to the Catholic Church, the Roman Catholic Archbishop of Perth did not wish to become involved in contentious proceedings in relation to the bequest under the 2018 will.
4. While the plaintiffs may have wanted to uphold the wishes of the deceased to make a bequest to the Catholic Church, it is clear, in my view, that the plaintiffs commenced proceedings primarily to maintain their own entitlements to the residuary of the deceased's estate under the 2018 will. An endeavour in which they were unsuccessful.
5. Finally, the plaintiffs refer to O 66 r 9(2) of the RSC in their written submissions in support of their application for costs. Order 66 r 9(2) of the RSC provides that, where a person has been a party to the proceedings in the capacity of trustee, personal representative or mortgagee, he shall, unless the court otherwise orders, be entitled to his costs of the proceedings out of the fund held by the personal representative.
6. It is not clear to me how the plaintiffs say O 66 r 9 of the RSC applies to these proceedings. The plaintiffs did not commence the proceedings as a trustee, personal representative or mortgagee, but rather as residuary beneficiaries under the 2018 will. Order 66 r 9 of the RSC has no application in these proceedings.
7. The plaintiffs say that there is a significant public interest in ensuring that valid wills are admitted to probate and that the testamentary wishes of a deceased are appropriately carried out. I do not take issue with this proposition. However, in this case, I have found that there was overwhelming evidence that the 2018 will was not valid because the deceased was suffering delusions about the first and second defendants which influenced his testamentary dispositions under the 2018 will.
8. The following passage from the judgment of Sir JP Wilde in Mitchell v Gard (1863) 164 ER 1280, 1281-1282 is apposite to the circumstances of this case:

It is of high public importance that doubtful wills should not pass easily into proof by reason of the cost of opposing them. It is of equal importance that parties should not be tempted into fruitless litigation by the knowledge that their costs will be defrayed by others.

1. In this case both of Sir Wilde's observations are pertinent.
2. Firstly, the plaintiffs were the parties who sought to propound a doubtful will, they were not the parties seeking to oppose a doubtful will. That the 2018 will was doubtful cannot be in issue. The plaintiffs were advised by the Public Trustee, by letter dated 28 May 2019, that:[137]

Mr Grzeczny's testamentary capacity is in issue. Mr Grzeczny's family informed the Public Trustee that Mr Grzeczny suffered from delusions for a number of years. The Public Trustee has obtained independent evidence which confirms that Mr Grzeczny was suffering from delusions. (emphasis added)

I refer to copies of the following documents enclosed with this letter:

1. Letter from Patricia Plawiak, Senior Social Worker/Case Manager, Bentley Older Adults Mental Health Service to the Coronial Investigation Squad dated 8 February 2019;
2. Letters from Dr Meyerkort dated 5 March 2019 and 1 April 2019; and
3. ACAT Assessment dated 19 August 2013.

It appears Mr Grzeczny suffered from delusions which impacted his will-making capacity.

Based on the information contained in these letters the Public Trustee is of the view that Mr Grzeczny suffered from delusions which:

(a) directly influenced the making of the Will dated 17 September 2018; and

(b) demonstrate an unjustified or irrational attitude towards those one would expect would have a moral claim on his estate.

Therefore, the Public Trustee believes the Will dated 17 September 2018 is not valid and will not be applying for probate of the Will.

1. There is no doubt that the plaintiffs had received and understood the contents of this letter from the Public Trustee. This is evident from the plaintiffs' response to the Public Trustee, by letter dated 26 June 2019, stating:[138]

...Not only is there a case of elder abuse but also possible attempted murder by relatives. We draw your attention to the credibility of Dr Meyerkort. His intimidation of Jan Grzeczny and unethical actions in preventing Jan from seeing another doctor casts doubt on his diagnosis of Jan.

1. Even if the plaintiffs were still uncertain about whether there was doubt about the validity of the 2018 will, they could not reasonably have maintained that uncertainty in the face of the requisition from a registrar of the Supreme Court dated 4 December 2019.[139] This requisition was issued after the Supreme Court had received two applications - one made by the first defendant for letters of administration with the 1981 will annexed and one made by the plaintiffs for letters of administration with the 2018 will annexed. The requisition advised the plaintiffs that there was no basis to make a grant of probate in common form of the 2018 will, but there was a basis to make a grant in common form of the 1981 will. The fact that the 2018 will was doubtful was the very reason that the registrar would not make a grant of probate in common form of that will and the reason why the plaintiffs commenced proceedings for proof of the 2018 will in solemn form. The plaintiffs' submission that they commenced these proceedings at the request of the court is wrong.[140]
2. Secondly, parties having the knowledge that the plaintiffs had (which I have outlined above), should not be encouraged to commence contentious proceedings in the belief that their costs of doing so will be met by the estate of the deceased or by the defendants.
3. While the plaintiffs were not initially represented by solicitors when they commenced these proceedings on 11 December 2019, they were represented by solicitors shortly thereafter (on 18 December 2019). The first defendant did not file a memorandum of appearance until 24 December 2019. The plaintiffs cannot maintain that they did not have an adequate understanding of the nature of the proceedings and the difficulties that they would face in prosecuting the action in the face of their knowledge of the circumstances in which the deceased made the 2018 will. While the deceased may have been living independently, managing his own finances and understood the nature of his assets, the independent evidence of the deceased's delusional beliefs about the first and second defendants and the influence those delusions were said to have had on his testamentary dispositions was known to the plaintiffs and their lawyers in December 2019.
4. The answer to the question 'is there an adequate reason, given the facts of the case and the unsuccessful party's knowledge of them, to depart from the general rule that costs follow the event? is no. In my view, although the plaintiffs may have commenced these proceedings with a bona fide belief that good grounds existed for propounding the 2018 will, this was not a reasonable belief given the facts of the case and the plaintiffs' knowledge of them. The second exception to the general rule does not apply. Further, having formed this view, I find that there is overlap with the first exception to the general rule, in that the proceedings were not caused by the conduct of the testator, but were rather a product of an election by the plaintiffs to commence contentious proceedings.
5. None of the exceptions to the general rule that costs follow the event apply in this case. The appropriate order is that the plaintiffs pay the first and second defendants' costs of the proceedings.
6. I must still however, determine the remainder of the issues before making final orders.

Which party/parties are entitled to their costs of the counterclaim?

1. The plaintiffs submit that the first defendant should pay their costs of the counterclaim in any event, given that the first defendant's counterclaim was dismissed.
2. The plaintiffs did not actively defend the first defendant's counterclaim and the presence of the counterclaim did not have an impact upon the conduct of the trial. In my view, the appropriate order is that the parties bear their own costs of the counterclaim.

Which party/parties are entitled to the costs of the summary judgment application?

1. On 15 December 2020, the first defendant applied for summary judgment against the plaintiffs.
2. In opposition to the summary judgment application, the plaintiffs submitted that they should not be deprived of the opportunity to put the material they had obtained on subpoena to experts[141] and to have Ms Williams, the solicitor at the Public Trustee who took the instructions from the deceased in relation to the 2018 will, to give evidence at trial.[142]
3. On 11 November 2021, Strk J made orders dismissing the summary judgment application, reserving the costs of the application to the trial judge. In doing so, her Honour said:[143]

It is sufficient to say that I am of the view that although the plaintiffs' task of demonstrating the deceased's testamentary capacity at the time of the 2018 will be very difficult, I cannot say that the task is clearly impossible or doomed to fail. Notwithstanding what might now be seen as significant obstacles to the plaintiffs' case, I find that this is not a case where only one conclusion can be said to be reasonable, and therefore, I find that [the first defendant] has not discharged her onus.

However, judgment in favour of [the first defendant] at this time would be grounded on incomplete and untested evidence. There remains a disputed issue of fact as to whether the deceased had testamentary capacity when he made the 2018 will.

Given the medical science involved in this case, the court should be fully informed by appropriate expert evidence and cross-examination. The opportunity for full argument should be given to all parties' legal representatives. The interests of justice require the same.

[The plaintiffs] should be afforded the opportunity to brief and adduce expert evidence at trial. Further, [the plaintiffs] should not be deprived of the opportunity to have Ms Williams (the Public Trustee solicitor) give evidence at trial. ...

1. The plaintiffs submit that the first defendant is not entitled to the costs of the summary judgment application as it was unsuccessful, unreasonably delayed the resolution of the proceedings, unnecessarily increased the costs of the parties and was bound to fail.[144]
2. The first defendant submits that the costs of the summary judgment application should be in the cause because it was an appropriate interlocutory step in the proceedings which may have succeeded in bringing the proceedings to an early conclusion.[145]
3. The approach to determining costs on a summary judgment application, as with determining all costs orders, is inherently discretionary and each case must be considered on its own merits. The fairest outcome is what the court is aiming to achieve in exercising its discretion.[146]
4. Although the first defendant was unsuccessful on her application for summary judgment, her lack of success was due to the position of the plaintiffs at that time that the evidence of capacity of the deceased would need to be tested with expert medical evidence and the evidence of Ms Williams as to the circumstances in which the deceased gave instructions for the preparation of the 2018 will. At the trial of the action, the plaintiffs did neither of those two things. In fact, the plaintiffs did not lead any additional evidence in relation to the deceased's capacity.
5. As I have stated on numerous occasions, the evidence led at trial in support of the fact that the deceased was suffering from delusions that influenced his testamentary dispositions was overwhelming. That evidence was ultimately not contradicted by the plaintiffs at trial, despite their assertions on the summary judgment application that they should be afforded an opportunity to do.
6. In the circumstances of this case, the fairest outcome is an order that the costs of the summary judgment application are the first defendant's costs in the cause of the action - the result of which is that the plaintiffs pay the first defendant costs of the summary judgment application.
7. For the sake of completeness, I note that the second defendant is not entitled to claim any costs against the plaintiffs in relation to the summary judgment application, as he was refused leave to take an active role in the hearing of the summary judgment application.[147]

Are the plaintiffs entitled to a costs order against the first defendant because of late discovery of documents by the first defendant?

1. I set out the circumstances in which late discovery of documents was provided by the first defendant to the plaintiffs in the Reasons for Decision.[148]
2. Although I found that discovery of the first defendant's notebooks should have been provided, I also found that those documents bolstered, and were not inconsistent with, the first defendant's evidence.
3. The appropriate order in relation to late discovery is each party pay their own costs associated with late discovery, this includes the further cross-examination of the first defendant on 21 September 2023.

Given the defendants are entitled to a costs order against the plaintiffs, are they entitled to indemnity costs?

1. There must be a special or unusual feature of a case for a court to exercise its discretion to award costs on an indemnity basis.[149]
2. One circumstance where an indemnity costs order is warranted is where an unsuccessful party unreasonably rejects a Calderbank[150] offer of settlement.[151]
3. In deciding whether the rejection of a Calderbank offer was unreasonable, the following factors are relevant:

(1) the stage of the proceeding at which an offer was received;

(2) the time allowed to the party to consider an offer;

(3) the extent of the compromise offered;

(4) the party's prospects of success assessed at the date of an offer;

(5) the clarity with which the terms of an offer were expressed; and

(6) whether an offer foreshadowed an application for indemnity costs in the event of the party rejecting it.[152]

1. The mere fact that the unsuccessful party is ultimately worse off after trial then it would have been had it accepted a Calderbank offer, does not mean that the rejection of the Calderbank offer was unreasonable.[153]
2. Whether the rejection was unreasonable must be assessed at the time that a Calderbank offer is rejected, not with the benefit of hindsight.[154] I must be satisfied that a reasonable person in the plaintiffs' position, giving proper consideration to the evidence to be adduced and properly advised about the law, should have assessed their prospects of success to be so low that it was unreasonable to reject a Calderbank offer.[155]
3. The party who asserts that a Calderbank offer was unreasonably rejected bears the onus of proving that the rejection was unreasonable such that the court should make an order for indemnity costs.[156] If the reasons given by a party for rejecting a Calderbank offer are legally or factually inadequate, then the rejection of an offer is likely to be unreasonable.[157]
4. The defendants made four Calderbank offers of settlement to the plaintiffs:

(1) the first on 4 and 17 June 2020 (First Calderbank Offer);[158]

(2) the second on 19 and 25 October 2020 (Second Calderbank Offer);[159]

(3) the third on 11 December 2020 (Third Calderbank Offer);[160] and

(4) the fourth on 1 December 2022 (Fourth Calderbank Offer).[161]

(1) was made after the parties had exchanged discovered documents;

(2) referred to the medical evidence obtained by the Public Trustee in support of the fact that the deceased was suffering from delusions that affected his testamentary dispositions under the 2018 will;

(3) invited the plaintiffs to withdraw their application for proof of the 2018 will in solemn form on the basis that there be no order as to costs; and

(4) stated that if the offer was not accepted and the matter proceeded to trial with the result being that the plaintiffs were unsuccessful, the first defendant would rely upon the First Calderbank Offer in support of an application for indemnity costs from the date of the First Calderbank Offer.

(1) was made after the plaintiffs had filed their proposed evidence in chief in the proceedings by way of the plaintiffs' affidavits;

(2) enclosed the First Calderbank Offer;

(3) set out the view that the plaintiffs' affidavits strengthened the view that the plaintiffs' claim was without merit; and

(4) invited the plaintiffs to withdraw their application for proof of the 2018 will in solemn form on the basis that there be no order as to costs;

(5) stated that if the offer was not accepted, the first defendant would apply for summary judgment.

(1) was made after the return date for the subpoenas that the plaintiffs issued to Kooyong Medical Centre, Royal Perth Hospital, Dr Tan and BOAMHS;

(2) set out the law relating to onus that the plaintiffs would have at trial to prove that the deceased was not suffering from delusions that influenced his ability to make the 2018 will and the lack of any evidence which the plaintiffs had produced to discharge that onus; and

(3) invited the plaintiffs to withdraw their application for proof of the 2018 will in solemn form on the basis that there be no order as to costs; and

(4) stated that if the offer was not accepted, (which was open until 8 January 2021), the first defendant would apply for summary judgment.

(1) was made after the time ordered for the plaintiffs to provide responsive evidence had lapsed;

(2) referred to the plaintiffs' position that they would not adduce expert evidence or evidence from Ms Williams at trial;

(3) summarised the evidence that would be relied upon by the first defendant;

(4) advised that the first defendant would oppose any application made by the plaintiffs' for their costs to be paid from the estate of the deceased in the event that they were unsuccessful at trial;

(5) offered to resolve the proceedings by:

(a) the plaintiff discontinuing the action with costs reserved;

(b) the first defendant's counterclaim proceeding on an undefended basis whereby the first defendant would seek the following orders:

(i) the 2018 will and the 2017 will are invalid by reason of lack of testamentary capacity;

(ii) the 1981 will have force and effect in solemn form of law as the will of the deceased;

(iii) the Probate Registrar be directed to settle the grant in solemn form;

(iv) the plaintiffs' costs be paid from the estate on a party/party basis (with no uplift to scale) to be assessed if not agreed;

(v) the first and second defendant bear their own costs of the action.

1. The plaintiffs submit that they did not unreasonably reject any of the Calderbank Offers for the following reasons:

(1) they were not in a position to withdraw from the proceedings as they would be giving up the interests of the beneficiaries without an investigation of the issues relating to the deceased's capacity and a determination by the court;

(2) the documents obtained on subpoena suggested that the deceased appeared to have testamentary capacity when he made the 2018 will and had expressed reasons for excluding the defendants from the 2018 will;

(3) there was no compromise offered in the First, Second or Third Calderbank Offers in circumstances where the offer was to discontinue the proceedings with no order as to costs; and

(4) the case required a trial in order to conduct a detailed and careful review of the evidence to ensure that the deceased was not denied the opportunity to distribute his estate in accordance with his wishes.

1. I disagree with the plaintiffs' contention that this case required a trial. The Public Trustee presented the plaintiffs and a registrar of the Supreme Court with clear and overwhelming independent medical evidence that the deceased was suffering from delusions which affected his testamentary dispositions. The registrar advised the plaintiffs that a grant in common form would not be made of the 2018 will but would be made of the 1981 will (in the absence of any contentious proceedings being commenced). If the plaintiffs had not commenced contentious proceedings, the registrar would have made a grant of letters of administration with the 1981 will annexed in common form.
2. However, I cannot consider the reasonableness or otherwise of the plaintiffs' rejection of the Calderbank Offers with the benefit of hindsight. The First and Second Calderbank Offers were made prior to the plaintiffs receiving the subpoenaed medical material. I have made a finding that the deceased understood the nature and effect of the 2018 will, the nature and extent of the assets he had at the time and that he had the capacity, at the time he made the 2018 will, to understand there was an expectation that he provide for the first and second defendants. I accept that the plaintiffs also made these observations of the deceased. In my view, this, together with the fact that the 2018 will was prepared by an experienced person at the Public Trustee, meant that it was not unreasonable for the plaintiffs to reject the First and the Second Calderbank Offers.
3. In relation to the Third Calderbank Offer, although the plaintiffs were, at this stage, in possession of the subpoenaed material, I still do not consider that it was unreasonable for them to reject to the Third Calderbank Offer. This is because the offer was made before the first defendant's summary judgment application was dismissed and at a time when the plaintiffs were considering adducing expert evidence and evidence from Ms Williams.
4. However, the plaintiffs' position was clear by the time they rejected the Fourth Calderbank Offer. Although, the plaintiffs had opposed the summary judgment application on the basis that they should be afforded the opportunity to adduce expert evidence and evidence from Ms Williams, the plaintiffs chose not to do so. As at the date the Fourth Calderbank Offer expired, that being 19 December 2022, the plaintiffs had provided their witness statements in accordance with the programming orders made by the court and such expert evidence and lay evidence was not being adduced. Further, the Fourth Calderbank Offer provided that the plaintiffs be paid their taxed costs on a party/party basis. This is a much more favourable outcome then the plaintiffs have achieved at trial.
5. The plaintiffs have not pointed to any valid reason for not accepting the Fourth Calderbank Offer other than the fact that they did not receive payment, over and above their costs, for doing so. The plaintiffs were in possession of sufficient information and had the benefit of legal advice and so were able to properly assess their prospects of success. As at 19 December 2022, the plaintiffs had an opportunity to review all of the subpoenaed material and had elected not to call any evidence in support of the fact that the deceased was not suffering from delusions that affected his testamentary dispositions. The evidence in support of such delusions was overwhelming and essentially unchallenged.
6. Further, the plaintiffs were able to accept the Fourth Calderbank Offer and leave the defendants to seek an unopposed grant in solemn form of the 1981 will. The plaintiffs were seeking to propound a doubtful will - they were at liberty to apply, pursuant to O 73 r 18 of the RSC, to discontinue this action.
7. In my view, it was unreasonable for the plaintiffs not to accept the Fourth Calderbank Offer and the defendants have satisfied me that the appropriate order is that the plaintiffs pay the defendants costs on an indemnity basis from 19 December 2022.

(1) the costs of the first defendant's summary judgment application dated 15 December 2020 be the first defendant's costs in the cause of the action;

(2) each party bear their own costs associated with the discovery of documents by the first defendant in accordance with the orders of Whitby J made on 10 August 2023;

(3) the plaintiffs pay the first and second defendants' costs of the action, up to and including 19 December 2022, on a party/party basis to be taxed if not agreed; and

(4) the plaintiffs pay all costs incurred by the first and second defendants from 20 December 2022 except in so far as they are of an unreasonable amount or have been unreasonably incurred, save for the costs referred to in order 2 herein, so that subject to the above exceptions the first and second defendants are completely indemnified by the plaintiffs for their costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[4] Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757.

[5] West Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144, 146.

[6] Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, 571.

[7] Banks v Goodfellow (561); Bull v Fulton [1942] HCA 13; (1942) 66 CLR 295, 299.

[9] Williams v Schwarzback [No 2] [2016] WASC 43, Bull v Fulton (299).

[11] Saunders v The Public Trustee [2015] WASCA 203 [172] citing with approval Re Estate of Griffith; Easter v Griffith (1995) 217 ALR 284, 289 ‑ 290.

[12] Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 (Zorbas).

[15] On 18 July 2023, the first day of trial, I granted leave to the plaintiffs to amend par 7 of the amended writ of summons.

[16] On 18 July 2023, the first day of trial, I granted leave to the plaintiffs to amend par 18 of the amended writ of summons to reflect this distribution.

[76] Exhibit 102 [34]; Exhibit 43, TB pages 169 - 171.

[98] Exhibit 101 [85] ‑ [88]; Exhibit 92 [71] - [76].

[103] Exhibit 17; Exhibit 30, TB page 85.

[113] In these reasons, I refer to terms as defined in the Reasons for Decision.

[114] This is evident by virtue of the operation of O73 r 4 and 5 of the Rules of the Supreme Court 1971 (WA) (RSC).

[117] Re Kuhl; Kuhl v Liebcheschel [1933] SA St Rp 41; [1933] SASR 394 at 399.

[118] Union Bank of Australia v Harrison, Jones & Devlin Ltd [1910] HCA 44; (1910) 11 CLR 492 at 504.

[119] Twist v Tye [1901] UKLawRpPro 53; [1902] P 92 cited with approval in Scaffidi v Scaffidi [2022] WASC 227 (S) [6].

[120] Oreski v v Ikac [2007] WASC 195 (S) [2]. (Oreski) confirmed on appeal in Oreski v Ikac [2008] WASCA 220.

[121] Oreski [2]; Boughton v Knight [1873] LR 3 P & D 64 at 79-80 cited with approval in Scaffidi v Scaffidi [2022] WASC 227 (S) [6].

[122] Twist v Tye [1901] UKLawRpPro 53; [1902] P 92, 94 cited with approval in Clay v Karlson [2001] WASC 141 [158] and Oreski [11].

[124] Tarabini v Silvester (Unreported, WASCA, Library No 960684, 6 December 1996).

[127] Plaintiffs' Amended Submissions [3] and [11].

[128] Plaintiffs' Amended Submissions [42].

[129] Plaintiffs' Amended Submissions [80] - [81].

[130] Plaintiffs' Amended Submissions [47], [55].

[131] First Plaintiff's Affidavit [17], [18].

[132] First Plaintiffs' Affidavit [10], [40, [41].

[133] Plaintiffs' Amended Submissions [107].

[134] Wheatley v Edgar [2003] WASC 118 (Wheatley).

[136] This correspondence was annexed to the First Defendant's Affidavit filed in support of her application for letters of administration with the 1981 will.

[137] First Plaintiff's Affidavit; Annexure 'JGD-2'.

[138] First Plaintiff's Affidavit; Annexure 'JGD-5'.

[139] First Plaintiff's Affidavit; Annexure 'JGD-14'.

[140] Plaintiffs' Amended Submissions [28].

[141] Plaintiffs' submissions in opposition to summary judgment application dated 8 March 2021 (Plaintiffs' summary judgment submissions) [88].

[142] Plaintiffs' summary judgment submissions [89].

[143] Diedler v Borowiec [2021] WASC 394 [125] - [135] (Summary Judgment Reasons).

[144] Plaintiffs' reply submissions [6].

[145] First Defendant's submission [56].

[146] Ridgepoint Corp Pty Ltd v McCallum Donovan Sweeney (A Firm) [2011] WASC 167 [6], [10].

[147] Summary Judgment Reasons [55].

[148] Reasons for Decision [63] - [64].

[149] Yara Australia Pty Ltd v Oswal [2012] WASCA 264 [33].

[150] Calderbank v Calderbank [1975] 3 All ER 333.

[151] Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1 (Lo Presti); Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96 [51] (Strzelecki).

[155] Currie v Currie [No 3] [2018] WASC 306 [13].

[157] Eccles v Koolan Iron Ore Pty Ltd [2013] WASC 418 (S) [9].

[158] Ryan Affidavit Annexure 'EBBR- 4'.

[159] Ryan Affidavit Annexure 'EBBR-8'.

[160] Ryan Affidavit Annexure 'EBBR-9'.

[161] Ryan Affidavit Annexure 'EBBR -19'.