Ballam & Ors v Ferro & Anor

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Burnside v Mulgrew; Re the Estate of Doris Grabrovaz [2007] NSWSC 550 Carey v Robson; Nicholls v Robson (No 2) [2009] NSWSC 1199 Chan v Chan (2016) 15 ASTLR 317; [2016] NSWCA 222 Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 Chisak v Presot [2021] NSWSC 597 Chisak v Presot [2022] NSWCA 100 Churton v Christian (1988) 13 NSWLR 241; [1988] NSWCA 23 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Easterbrook v Young (1977) 136 CLR 308; [1977] HCA 16 Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 Foley v Ellis [2008] NSWCA 288 Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430 Harkness v Harkness (No 2) [2012] NSWSC 35 In the Estate of Musgrove; Davis v Mayhew [1927] P 264 Jones v Jones [2014] NSWSC 960 Khadarou v Antarakis [2022] NSWCA 99 Kyros v Stavrakis [2009] NSWSC 163 Lim v Lim [2022] NSWSC 454 Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 Lodin v Lodin (2017) 16 ASTLR 576; [2017] NSWCA 327 Matthews v Wear [2011] NSWSC 1145 McKenzie v Baddeley [1991] NSWCA 197 Morrison v Carruthers [2010] NSWSC 430 Oxley v Oxley [2018] NSWSC 91 Page v Hull-Moody [2020] NSWSC 411 Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275 Phillips v Phillips; Phillips bht NSW Trustee & Guardian v Phillips [2017] NSWSC 280 Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 7107 Power v Smart [2018] WASC 168 Re Burt [1988] 1 Qd R 23 Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284 Re Fulop deceased; Fulop v Public Trustee; Bide v Public Trustee (1987) 8 NSWLR 679 Re R [1950] 2 All ER 117; [1951] P 10 Robertson v Barker [2021] NSWSC 1682 Sammut v Kleemann [2012] NSWSC 1030 Scarpuzza v Scarpuzza (2011) 4 ASTLR 244; [2011] WASC 65 Simoes v Kel Campbell Pty Ltd; Simoes v Moon [2018] NSWCA 284 Smart v Power [2019] WASCA 106 Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 Sun v Chapman [2022] NSWCA 132 The Estate of Milan Zlatevski; Geroksa v Zlatevski [2020] NSWSC 250 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Veall v Veall (2015) 13 ASTLR 462; [2015] VSCA 60 Wharton v Bancroft [2011] EWHC 3250 (Ch) Wilcox v Wilcox [2012] NSWSC 1138 Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67 Yee v Yee [2017] NSWCA 305 Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 Texts Cited: G L Certoma, The Law of Succession in New South Wales (4th ed, 2010, Lawbook Co) Leslie G Handler and Richard Neal, Mason and Handler Succession Law and Practice NSW (LexisNexis Butterworths) Category: Principal judgment Parties: Maree-Marcelle Ballam (first Plaintiff) Claudia Puglia (second Plaintiff) Benjamin Puglia (third Plaintiff) Carmelina Ferro (first Defendant) Daniela Cantale (second Defendant) Representation: Counsel: L Ellison SC (Plaintiffs) T Alexis SC with S Speirs (Defendants)

Solicitors: Unsworth Legal (Plaintiffs) Di Girolamo Lawyers (Defendants) File Number(s): 2021/189997; 2022/150470 Publication restriction: Nil

Introduction and the parties

1. In their Summons filed on 2 July 2021, the three Plaintiffs, Maree-Marcelle Ballam, Claudia Puglia and Benjamin Puglia, each of whom is a grandchild of Rosario Maiorana (the deceased), sought a family provision order under Ch 3 of the Succession Act 2006 (NSW) (the Act). Their mother, Vincenza Puglia, a child of the deceased, predeceased him, having died in September 2003.
2. The Defendants named in the Summons are Carmelina Giacomina Ferro and Daniela Loredana Cantale, each of whom is a child of the deceased and his wife, Maria, and a sibling of Vincenza. Each is, therefore, a maternal aunt of the Plaintiffs.
3. A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Relevantly, the Act applies in respect of the estate or notional estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009.
4. Regrettably, the matter did not continue in this straightforward way. Indeed, the death of the deceased appears to have unleashed a bitter feud between the grandchildren on the one side, and their aunts, on the other. The proceedings ended up being far more complicated, and costly, than they needed to have been, particularly, although not exclusively, due to several matters being raised, on behalf of the Plaintiffs, very late in the proceedings.
5. For the sake of convenience and clarity, and to avoid confusion, in these reasons, where appropriate, I shall refer to the parties, jointly, as the Plaintiffs and the Defendants, respectively, or shall, otherwise, adopt the given name of the party. In relation to others, after introduction I shall refer to her, or him, by her, or his, given name. No undue familiarity is intended.
6. The hearing began on 31 May 2022 and continued on 1, 2 and 3 June 2022. Mr L J Ellison SC, instructed by Mr J J Buchanan, solicitor, appeared for the Plaintiffs. Mr T Alexis SC, with Mr S Spiers of counsel, instructed by Mr N A Di Girolamo, solicitor, appeared for the Defendants.
7. One reason why judgment has been somewhat delayed is because, on 5 August 2022, at my request, my Associate sent an email, in the following terms, to the legal practitioners for each of the parties: "Dear Practitioners, As you may be aware, the Court of Appeal has delivered judgment in Chisak v Presot [2022] NSWCA 100. Please let his Honour know if you wish to provide any submissions, and if so, please provide those, in writing, by 4:00 p.m. on 15 August 2022. His Honour will delay considering the matter further until such time as submissions are received or the Court is informed that further submissions will not be made."

The Probate dispute

1. The deceased died on 20 June 2020. Maria predeceased him, having died on 2 December 2018. The deceased did not remarry, or enter into a de facto relationship, after the death of Maria.
2. As will be read, the deceased died leaving property in New South Wales. At the time of his death, the deceased's habitual residence, and his domicile, was New South Wales.
3. On 19 August 2020, the Defendants caused to be published a Notice of Intended Application for Probate of the 2012 Will.
4. On 14 December 2020, Maree-Marcelle filed a general caveat against the grant of probate in the deceased's estate without prior notice to her. That type of caveat is one filed under Supreme Court Rules 1970 (NSW) Pt 78 r 66: Kyros v Stavrakis [2009] NSWSC 163 at [12] (White J). It is the appropriate form of caveat to raise a ground of invalidity of a will, other than because of a want of proper execution: Robertson v Barker [2021] NSWSC 1682 at [5]. Also see Leslie G Handler and Richard Neal, Mason and Handler Succession Law and Practice NSW (LexisNexis Butterworths) at [1677.3].
5. By Cross-Claim filed on 7 November 2021, the Defendants sought an order that probate, in solemn form, of a handwritten Will dated 19 December 2012 be granted to them as the substitute executors named in that Will. The original Will was deposited with the Court and remains in the Court file. At the commencement of the hearing, it was marked, without objection, as Ex A.
6. In the alternative, to ensure that a grant of administration would be made if the 2012 Will was found not to be the last valid Will of the deceased, the Defendants, as the substituted executors named therein, sought to propound a Will made by the deceased on 7 February 2005. Their primary case, however, was that it had been revoked by the 2012 Will: see, s 11(1)(c) of the Act. The original of this Will, also, was deposited with the Court. It was marked, without objection, as Ex B at the commencement of the hearing.
7. The Defendants also sought consequential relief, including an order that the Plaintiffs pay the Defendants' costs of the Cross-Claim.
8. I shall refer to Ex A as "the 2012 Will" without any prejudgment and Ex B as "the 2005 Will".
9. In the Defence to the Cross-Claim filed on 15 November 2021, the Plaintiffs did not admit the validity of the 2012 Will. The basis on which they sought to impugn the validity of the 2012 Will was not pleaded expressly. In fact, they did not seek, then, to assert a positive case of its invalidity, by advancing an allegation that the deceased lacked testamentary capacity, or that he did not know and approve of the 2012 Will, because, as stated by their senior counsel, he "took the view that it wasn't proper to raise those matters without a sufficient evidentiary basis": Tcpt, 3 May 2022, p 3(20-21). Nor was a case of undue influence, in the Probate sense, advanced.

The family provision claims

1. Prior to the commencement of the hearing, senior counsel for the Plaintiffs acknowledged that, in the event the 2005 Will was found to be the last valid Will of the deceased, they would not proceed with the claims for a family provision order. However, in submissions in reply, at 4:15 p.m. on the last day of the hearing, senior counsel informed the Court that this admission was sought to be withdrawn. I shall refer to what occurred thereafter, later in these reasons.
2. In relation to the family provision proceedings, at the time the application was made, administration of the deceased's estate had not been granted. It is clear that a grant of administration is not required at that time. Section 58(1) of the Act specifically provides that an application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted (my emphasis). There is a note to s 58(1) that administration may be granted under s 91 for the purposes only of permitting the application concerned to be dealt with, whether or not the deceased person left property in New South Wales.
3. As Probate will be granted, as a result of the determination of the Cross-Claim, and before any orders are made in respect of the claims for a family provision order, nothing more need be said about this aspect.
4. As the deceased dealt with all of his estate in the 2012 Will (since that Will is found to be his last valid Will), there is no scope for the operation of the rules of intestacy, with the result that it is only necessary, hereafter, to refer to the 2012 Will of the deceased (in dealing with the claim of each Plaintiff for a family provision order).
5. There was no dispute that the Plaintiffs' Summons was not filed within the time prescribed by the Act (that is within 12 months after the date of the death of the deceased): s 58(2) of the Act. Because it was filed only a short time (11 or 12 days) outside the prescribed period, the Defendants accepted that, if an order for provision were made for any of the Plaintiffs, the parties would consent to the application being made out of time.
6. A family provision order may be made in relation to the estate of a deceased person: s 63(1)). An order may be made in relation to property that is not part of the deceased's estate, but which is designated as "notional estate" of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. "Notional estate" of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. "Notional estate order" means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person's rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.

Background Facts

1. In their proper context, it is next necessary to provide an overview of the factual background which has led to the disputes. As with all probate and family provision disputes, a proper understanding of the events is critical. I am satisfied that the following facts have been established.
2. The deceased was born in December 1931. He was about 81 years old when he made the 2012 Will.
3. The deceased married Maria on a date not disclosed in the evidence. There were three children of their marriage, being Vincenza, who was born in March 1957; Carmelina, who was born in February 1962 and Daniela, who was born in January 1969.
4. The Plaintiffs are the children of Vincenza and her husband, Mario. Claudia was born in August 1979 and is now 43 years old; Maree-Marcelle was born in April 1982 and is now 40 years old; Benjamin was born in May 1985 and is now 37 years old.
5. In July 1985, the deceased and Maria provided a personal guarantee to the ANZ Bank, in relation to a loan for $70,000, obtained by a company, Deemgrate Pty Limited (Deemgrate), controlled by the Plaintiffs' parents. The loan was secured over the deceased's and Maria's property at Annandale (No 57). About a year after the loan was obtained, the deceased was informed that the loan had increased to $110,000. The deceased then went to the Commonwealth Bank to obtain a loan in order to pay out the loan that had been guaranteed from the ANZ Bank to Deemgrate.
6. Carmelina gave uncontested evidence of a note, which had been dictated by the deceased, and written by Maria. The note was signed by the deceased and stated: "On the 3rd of July 1985. I and my wife and son in law went to the ANZ Bank at Maroubra Junction to guarantee my son in law. For a letter of credit. To the bank with the guarantee on our house at [No 57] for $70,000 dollars [sic] for my son in law. He told me that he had to buy goods from Hong Kong for the business that he was in. … After we did not here [sic] anymore about the loan until nearly a year had gone untill [sic] my son in law came to us and said that the things were not going to [sic] good and that the loan had reached to $110,000. We got such a shock that we did not know what hit us…"
7. On 28 April 1988, there was an incident when a tow truck attempted to retrieve the deceased's blue Laser car due to Deemgrate's debt, which, by then, had increased to $140,000. The deceased was said to have been embarrassed and humiliated by this incident.

The estate of the deceased at the date of death

1. It is next convenient to refer to the property of the deceased, at the time of his death, in order to better understand the terms of each of the deceased's two Wills.
2. On 3 May 2022, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained: 1. the assets and liabilities of the estate at the date of death; 2. the assets and liabilities of the estate at the date of the schedule; 3. the estimated costs and expenses of any property that is to be sold; 4. the estimated costs of each party calculated on the ordinary, and on the indemnity basis, inclusive of GST; and 5. any costs of any party that have been paid, and in relation to the Defendants, whether those costs have been paid out of the estate of the deceased.
3. I have taken what follows from the Agreed Schedule, dated 20 May 2022, which was marked, without objection, Ex JS1, and from discussions with senior counsel during the course of the hearing. (I have omitted and shall continue to omit any reference to cents. This will explain any apparent arithmetical miscalculation.)
4. The property owned by the deceased, at the date of death, included: 1. Real estate situated at Annandale Street, Annandale (the Annandale property). There was a dispute about its value (the Defendants asserting it had a value of $2,000,000 and the Plaintiffs asserting it had a value of $3,000,000). 2. Real estate situated at Regatta Road, Canada Bay (the Canada Bay property), in which the deceased held a 50% interest. There was a dispute about its value (the Defendants asserting the deceased's interest had a value of $870,000 and the Plaintiffs asserting it had a value of $1,250,000). 3. Real estate situated at Dudley Street, Punchbowl (the Punchbowl property), in which the deceased held a 50% interest. There was a dispute about its value (the Defendants asserting the deceased's interest had a value of $825,000 and the Plaintiffs asserting it had a value of $937,500). 4. Real estate situated at Beaufort Road, Terrigal (the Terrigal property). There was a dispute about its value (the Defendants asserting the deceased's interest had a value of $750,000 and the Plaintiffs asserting it had a value of $975,000). 5. Real estate situated at Dover Street, Moree (the Moree property). There was no dispute about its value ($330,000). 6. Real estate in Poggioreale, (the Poggioreale property), in which the deceased held a 50% interest. There was a dispute about its value (the Defendants asserting the deceased's interest had a value of $9,000 and the Plaintiffs asserting it had a value of $20,000). 7. The Triscina property, in which the deceased held a 50% interest. There was a dispute about its value (the Defendants asserting the deceased's interest had a value of $45,000 and the Plaintiffs asserting it had a value of $100,000).

The 2012 Will

1. There was no dispute that the 2012 Will was made whilst the deceased and Maria were living in Italy.
2. Section 48(1) of the Act provides: (1) A will is taken to be properly executed if its execution conforms to the internal law in force in the place: (a) where it is executed, or (b) that was the testator's domicile or habitual residence, either at the time the will was executed or at the time of the testator's death, or (c) of which the testator was a national, either at the time the will was executed or at the time of the testator's death.
3. If the Court, at the conclusion of the hearing, were satisfied that the 2012 Will was executed by the deceased "in a foreign place", since the deceased died in New South Wales, which, it is accepted, was his domicile after 2016, the 2012 Will is taken to have been properly executed if execution conforms to the internal law in force in New South Wales "either at the time Will was executed or at the time of the testator's death".
4. The 2012 Will was handwritten in capital letters. On the first page, the initials "OKK", appear in the margin, along with what appear to be four other signatures. On each of the next five pages, only the initials "OKK" appear in the margin. These are the initials of Father Kariba and were written by him on the 2012 Will.
5. On the last page of the 2012 Will, the following appears: "I, REV. FR. ONESIMUS KAMAU KARIBA, OF MARY IMMACULATE PARISH POGGIOREALE, DIOCESE OF MAZARA DEL VALLO (TP), HEREBY DECLARE THAT ROSARIO MAIORANA OF [CANADA BAY] HAS REQUESTED ME TO WRITE HIS INSTRUCTIONS AND ACT AS HIS WITNESS TO HIS LAST WILL AND TESTIMONY. DATE: 19TH DECEMBER 2012"
6. Then, there appears the name of the deceased adjacent to the words "signature of testor [sic]" and the signature, name and address of each of the two attesting witnesses.
7. There is no formal attestation clause in the 2012 Will.
8. (It is not essential for a will to have an attestation clause: s 6(3) of the Act. However, one function of an attestation clause is to satisfy an evidentiary purpose, namely whether there has been compliance with s 6 of the Act. In other words, "the presence of an attestation clause is desirable because it facilitates the grant of probate and will give rise, in the absence of other material circumstances, to a presumption of due execution: Vinnicombe v Butler (1864) 3 Sw & Tr 580": Scarpuzza v Scarpuzza (2011) 4 ASTLR 244 at 254-256; [2011] WASC 65 at [32]-[37] (E M Heenan J). Although not conclusive, it constitutes prima facie evidence that the formalities have been complied with: G L Certoma, The Law of Succession in New South Wales (4th ed, 2010, Lawbook Co) at 95 [6.80].)

The 2005 Will

1. On 7 February 2005, the deceased made a duly executed a Will, in Sydney, New South Wales. It appears from the front page of the Will, that it was prepared by a firm of solicitors in Parramatta. It is typewritten, and bears the signature of the deceased, an attestation clause, and the signature of two witnesses, being Allan Bolster and Keith Wagner, each of whom is described as "Solicitor".
2. In that Will, the deceased appointed Maria, as the sole executor, and left the whole of his estate to her. In the event that Maria predeceased him, or failed to survive him for 28 days, the deceased appointed the Defendants as the substitute executors. The 2005 Will then provided: 1. No 57 (which the deceased did not own at the date of his death) was left to the Plaintiffs as joint tenants. 2. The Annandale property was left to Carmelina; 3. The Canada Bay property (described as being situated at Five Dock in the Will) was left to Daniela; 4. The Terrigal property was left, as to 25% to Carmelina, as to 50% to Daniela, and as to 25% to be held for the Plaintiffs "in trust … as joint tenants when they attain the age of eighteen (18) years"; 5. The Punchbowl property was left, as to 40%, to the Plaintiffs, as joint tenants, as to 20% to Carmelina and as to 40% to Daniela; 6. The rest and residue of the deceased's estate, including the Punchbowl property (despite it having been gifted in the preceding paragraph), the Moree property, the Tweed Street property (which the deceased did not own at the date of his death), and the Kiama property (which the deceased did not own at the date of his death), was to be divided as to one third to Carmelina, one third to Daniela, and one third to the Plaintiffs as joint tenants.
3. As earlier stated, there is no dispute about the validity of the 2005 Will (other than its revocation by the 2012 Will).
4. The Court raised with the parties that there had not been filed an affidavit of one, or other, of the attesting witnesses to the deceased's signature on the 2005 Will. Following the conclusion of the hearing, on 6 June 2022, the Defendants, without objection, filed an affidavit dated 3 June 2022 of Keith Wagner, an attesting witness to the deceased's signature on the 2005 Will.
5. In view of the conclusions to which I have come concerning the validity of the 2012 Will, it is unnecessary to consider this aspect further.

The estate of the deceased at the date of the Schedule

1. The nature of the estate of the deceased at the date of death is outlined above. Using the estimates as a guide, the gross value of the deceased's estate, at the date of death was, on the Plaintiffs' estimates $6,612,500, and on the Defendants' estimates $4,829,000.
2. There was no dispute that the deceased's liabilities at the date of his death included two debts to the National Australia Bank ($248,045 and $175,805), land tax ($34,115), council rates ($31,232), water rates ($20,154), costs for maintenance and repairs due to SCBS Pty Ltd ($108,550), a debt repayable to Carmelina ($40,000) and a reimbursement to Carmelina (for maintenance and repairs) ($37,000). The total of the debts was $694,905.
3. The assets and liabilities of the deceased at the date of the Schedule were: 1. The Annandale property. There remained a dispute about its value (the Defendants asserting it had a value of $2,000,000 and the Plaintiffs asserting it had a value of $3,400,000). 2. The Canada Bay property, in which the deceased held a 50% interest. There remained a dispute about its value (the Defendants asserting the deceased's interest had a value of $870,000 and the Plaintiffs asserting it had a value of $1,250,000). 3. The Punchbowl property, in which the deceased held a 50% interest. There remained a dispute about its value (the Defendants asserting the deceased's interest had a value of $825,000 and the Plaintiffs asserting it had a value of $937,500). 4. The Terrigal property. There remained a dispute about its value (the Defendants asserting the deceased's interest had a value of $750,000 and the Plaintiffs asserting it had a value of $1,030,000). 5. The Moree property. There was no dispute about its value ($330,000). 6. The Poggioreale property, in which the deceased held a 50% interest. There remained a dispute about its value (the Defendants asserting the deceased's interest had a value of $9,000 and the Plaintiffs asserting it had a value of $20,000). 7. The Triscina property, in which the deceased held a 50% interest. There remained a dispute about its value (the Defendants asserting the deceased's interest had a value of $45,000 and the Plaintiffs asserting it had a value of $100,000).
4. Using the above range of estimates as a guide, the gross value of the deceased's estate, at the date of the Schedule, on the Plaintiffs' estimates, was $7,067,500, and on the Defendants' estimates, was $4,829,000.

The costs of the proceedings

1. In relation to the probate and family provision proceedings, the Plaintiffs' costs, calculated on the ordinary basis, were estimated to be $118,866. Their costs, calculated on the indemnity basis, were estimated to be $130,433. About $41,255 of these costs have been paid by the Plaintiffs. The Defendants' costs, calculated on the indemnity basis, of the Probate proceedings, were estimated to be $112,000.
2. (The estimates of costs are likely to have increased because of the work done in respect of the Statement of Claim and the Power of Attorney/Compensation Claim to which reference will be made. The costs estimates do not include costs of that claim.)
3. On the first day of the hearing, it was noted that the estimates of costs did not differentiate between the costs of the claims made in the Summons (the family provision claims) and the costs of the claims made in the Cross-Claim (the Probate claim).
4. The legal representatives were requested to discuss the costs because the possibility existed that different costs orders might need to be made. On the second day of the hearing, very sensibly, if I may say, they agreed that one half of the costs should be attributed to the Probate part of the case, and the other half, to the claims for family provision relief: Tcpt, 1 June 2022, p 155(11-13).
5. Although not specifically referred to in the final affidavit of costs filed, and served, by the solicitor for the Plaintiffs, in written submissions, senior counsel wrote: "The costs of the plaintiffs are not subject to any uplift factor. The costs agreement entered into by counsel and the solicitors for the plaintiffs does not require the payment of any professional costs if the plaintiffs are unsuccessful."
6. (In Oxley v Oxley [2018] NSWSC 91 at [57]-[90] I referred to the need for disclosure, in each of the costs affidavits required by Practice Note SC Eq 7, for the deponent, to refer to any conditional costs agreement entered into, which could have an effect on the costs that a party to the proceedings would have to bear. I shall not refer to what was written, but the case raises an important matter of practice and procedure with which legal practitioners, by now, should be well acquainted.)
7. There is no suggestion that either the Civil Procedure Act 2005 (NSW) or the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) does not apply in probate proceedings. However, in such proceedings, there are considerations that more readily affect the application of the Civil Procedure Act and the UCPR than in most other forms of litigation. These considerations act as guides to the exercise of discretion, but they are not inflexible. These somewhat unique costs considerations will need to be considered unless the parties are able to reach agreement on the costs of the Probate proceedings. I shall say no more about the principles at this time.

A matter raised shortly prior to the hearing

1. On 18 May 2022, at the time senior counsel for the Plaintiffs delivered written submissions to the Court, he also sent to the Court a copy of a proposed Statement of Claim, which he acknowledged had not been filed.
2. At that time, no notice of motion seeking leave to file, or serve, a Statement of Claim, or seeking an order that the Plaintiffs' claims proceed by way of pleadings had been filed. Nor had the matter been raised at the pre-trial directions hearing on 3 May 2022, or otherwise prior thereto.
3. On 20 May 2022, the Plaintiffs filed a notice of motion in which they sought an order that leave be granted "to file and serve a statement of claim in the form of the statement of claim attached as a schedule to this notice of motion" and an order that the "relief sought in the statement of claim be heard at the hearing commencing on 31 May 2022".
4. In support of the notice of motion, the Plaintiffs relied upon an affidavit sworn on 20 May 2022 of the Plaintiffs' solicitor. In that affidavit, Mr Buchanan annexed some copy documents. He did not provide any reasons why the Plaintiffs had not sought the relief earlier.
5. (In the cross-examination of the first, and of the second, Plaintiffs, it is clear that each of them was aware of the sale of the properties to which reference was previously made, by Carmelina in 2017, although each may not have known how the proceeds of sale had been disbursed: Tcpt, 1 June 2022, p 148(27-49), 202(14-21).)
6. Administratively, and urgently, the Court listed the notice of motion on 23 May 2022, and senior counsel for the parties both appeared. Unsurprisingly, Mr Alexis SC, on behalf of the Defendants, objected to the filing of the proposed Statement of Claim in these proceedings. Counsel for the Defendants provided detailed written submissions setting out the reasons for their objection.
7. In these circumstances, somewhat surprisingly one might think, Mr Ellison SC said that he was not in a position to deal with the written submissions of the Defendants. The legal representatives agreed that the hearing dates should not be vacated.
8. Senior counsel for the Defendants then stated that if the Plaintiffs filed the proposed Statement of Claim in New South Wales, the Court would be asked to summarily dismiss the Statement of Claim upon the basis that this Court had no jurisdiction to determine the proceedings raised by that Statement of Claim.

The separate proceedings

1. The Defendants, on 25 May 2022, filed the notice of motion seeking an order that the separate proceedings be dismissed pursuant to UCPR r 13.4, and s 61 of the Civil Procedure Act, and, in the alternative, that the whole of the Statement of Claim filed on 25 May 2022 be struck out pursuant to UCPR r 14.28. They also sought costs of, and incidental to, the separate proceedings, including the costs of the notice of motion, calculated on the indemnity basis.
2. (Presumably, the reason for seeking the costs calculated on the indemnity basis, was that the Defendants had provided written submissions to the Court, on 23 May 2022 setting out the bases for the Court's lack of jurisdiction.)
3. In support of their notice of motion, the Defendants relied upon an affidavit of Mr Di Girolamo, filed in the Probate and family provision proceedings, in which he set out a summary of the events that had occurred commencing 19 August 2020, the date on which the Defendants had caused to be filed a Notice of Intended Application for Probate of the 2012 Will.
4. In the Statement of Claim, in broad terms, the Plaintiffs sought an order to extend the time prescribed by s 41(8) of the Succession Act 1981 (Qld), and orders under s 107 of the Powers of Attorney Act 1998 (Qld), that compensation be paid to the Plaintiffs in respect of the sale of three properties, located in Queensland, in 2017, by Carmelina, as the Attorney for the deceased and Maria.
5. The properties referred to were two properties situated at Coolangatta Road, Coolangatta (to which I have earlier referred as No 5 and No 6) and the Tweed Street property.
6. As stated, Carmelina sold each of these properties using the registered general enduring Power of Attorney, executed by each of the deceased and Maria, pursuant to s 163B of the Conveyancing Act 1919 (NSW). In relation to No 5, the evidence revealed that it had been purchased by the deceased and Maria in May 2009 and was sold for $401,000. In relation to No 6, the evidence revealed that it had been purchased by the deceased and Maria in May 2009 and was sold for $442,000. In relation to the Tweed Street property, the evidence revealed that it had been purchased by the deceased and Maria in August 2000 and was sold for $330,000.
7. The Plaintiffs claimed that the sale of each of the Queensland properties resulted in the ademption of the devise of any interest therein to them, respectively, under either the 2012 Will or the 2005 Will.

Another matter raised late by the Plaintiffs

1. Shortly before the matter was adjourned on 2 June 2022, in submissions in reply, senior counsel for the Plaintiffs informed the Court that the statement that had previously been made that in the event that the 2005 Will was found to be the last valid Will, the Plaintiffs would not seek a family provision order, was sought to be withdrawn.
2. Apparently, whilst notice of the application to withdraw the admission had been given to the Defendants' solicitors by letter dated 18 May 2022, it was not raised with the Court at any time previously during the hearing. No explanation was provided for the failure, by the legal representatives of the Plaintiffs, to do so.
3. Apparently, the application came as a surprise to counsel for the Defendants as senior counsel stated that he would "need to consider and get instructions on whether or not the case would have been conducted in anyway differently had the concession not been made": Tcpt, 2 June 2022, p 294(45-49).
4. Having reserved the decision, and in order to see if the application could be resolved between the parties, I adjourned the matter until 2:00 p.m. on 3 June 2022. Shortly before the matter was called, the parties sent to my Chambers a form of Short Minutes of Order in the following terms: "1 The plaintiffs' [sic] consent to the dismissal of the associated proceedings between the same parties, being proceedings 2022/00150470, in the event probate of the will of the deceased made on 19 December 2012 is granted, with costs reserved. 2 The defendants' [sic] consent to the withdrawal of the statement made to the Court on behalf of the plaintiffs on 3 May 2022 that the plaintiffs will not pursue their claims under chapter 3 of the Succession Act 2006 (NSW) in the event that probate of the will of the deceased made on 7 February 2005 is granted, but subject to the defendants having leave to make further submissions in that event with respect to the plaintiffs [sic] family provision claims. The Court orders 3 The plaintiffs have leave to make further submissions in relation to their claims under chapter 3 of the Succession Act 2006 (NSW) in the event probate of the will of the deceased made on 7 February 2005 is granted, such leave being limited to submissions as to the quantum of provision that the plaintiffs say should be made in that event in respect to their family provision claims."

The Witnesses

1. Each of the parties, as well as a number of other witnesses, were cross-examined. I shall deal firstly with the witnesses who had no interest in the result of the proceedings, I shall then turn to my impressions of each of the parties.
2. The Defendants relied upon the evidence of Father Kariba, to whom I have already referred, who was closely, but ineffectively, cross-examined. I found him to be a careful, truthful, forthright, witness, who had a clear, and precise, recollection of the events that had occurred on 19 December 2012, the date of the execution of the 2012 Will.
3. Senior counsel for the Plaintiffs did not submit that Father Kariba was not telling the truth. Even without that concession, I have no hesitation in accepting his evidence, some of which I set out below.
4. Father Kariba made one affidavit sworn on 2 March 2021. It was 17 paragraphs, spanning three pages. I have taken what follows from the affidavit evidence and from his oral evidence.
5. Father Kariba stated that he was ordained, in Kenya, as a priest in the Roman Catholic Church in July 2003. He went to Italy in 2004 for his doctoral and post-doctoral studies, the research for which he undertook in Italian. He went to Sicily in 2004 and then to Poggioreale in 2006, where he lived until 2013.
6. He said that he was fluent in Italian and was reasonably familiar with the Sicilian dialect, having lived in Sicily for six years at that point in time and, whilst there, having conducted religious services in Italian and Sicilian.
7. He could also speak English as, being a researcher, it was a language that he had used in his studies. It was the language that he had used for primary school, for secondary school, and for his eight years senior training. When he studied for a philosophy degree, and a biology degree, he did so in English as he did when he continued with his research, most of his consultations were done in English. (There was no doubt about his command of language, as he gave his evidence in the English language, without the aid of an interpreter.)
8. He became well acquainted with the deceased and Maria as they were regular attendees, at Sunday Mass, at the parish at Poggioreale, where he was the Priest. They had also been regular visitors to his home, and he had visited the deceased and Maria at their home "many times". They would have coffee together at a local cafe. He said that "it was interesting to hear their stories, how they have lived outside Sicily and, and how they have toiled in their lives": Tcpt, 31 May 2022, p 67(44)-68(9).

The first Plaintiff

1. Maree-Marcelle, the first Plaintiff, swore three affidavits in these proceedings, the first was sworn on 12 February 2021 and comprised 191 paragraphs, spanning 27 pages along with Exhibit MMB-1 which spanned 55 pages; the second was sworn on 13 February 2022 and comprised 44 paragraphs, spanning nine pages; the third was sworn on 14 May 2022 and comprised 26 paragraphs, spanning six pages.
2. She gave evidence that she had moved into No 57 with her mother and the Claudia in September 2002, and that she had lived there until February 2011, with the exception of a three-month period, immediately following Vincenza's death, where she, and her siblings, lived with Daniela at her house.
3. Part of this evidence was not entirely accurate as Mr Ballam had given evidence that he had met Maree-Marcelle in the United Kingdom in about 2005, and that she had lived there until about 2007, with the exception of approximately two and a half weeks when she had returned to Australia for Benjamin's 21st birthday: Tcpt, 1 June 2022, p 110(5-31).
4. Prior to moving into No 57, she had lived with her parents in Moorebank. When she moved in, with her mother and Claudia to No 57, she was about 20 years old. During cross-examination, it was put to Maree-Marcelle that the living arrangement at No 57 was pursuant to a tenancy agreement dated 15 November 2002 (Ex D6), with rent of $300 per week being paid. She agreed that there was a tenancy agreement when they had moved into the property but said that this changed after her mother had died. She did not recall there being another tenancy agreement: Tcpt, 1 June 2022, p 164(44-48). However, she agreed that, when she ceased living at No 57 in February 2011, the rent was $350 per week.
5. Maree-Marcelle gave evidence of her relationship with the deceased, stating that the deceased "was a man of little patience, however I have no doubt that he loved us dearly". She stated that, at all family functions, dinners and gatherings, he would always ask her "are you OK. Do you need anything?" There were also many times when her grandparents would give her $50 and say, "Don't tell your Aunties or your cousins".
6. In her oral evidence, Maree-Marcelle stated that she would attend her grandparents' house at Canada Bay for family chats, family gatherings, dinner, lunches or coffee. She stated that her grandparents would come over to No 57 once a week for "more of a stop by visit, have a coffee": Tcpt, 1 June 2022, p 143(18-37). The family gatherings, which involved one, or both, of the Defendants and the children of each, usually occurred at Daniela's home.

The second Plaintiff

1. Claudia, the second Plaintiff, swore three affidavits in these proceedings, the first was sworn on 12 February 2021 and comprised 173 paragraphs, spanning 23 pages along with Exhibit CP-1 which spanned 66 pages; the second was sworn on 13 February 2022 and comprised 30 paragraphs, spanning six pages; the third was sworn on 13 May 2022 and comprised nine paragraphs, spanning three pages.
2. She gave evidence that, before her mother's death, she had "quite frequent" contact with her grandparents, stating that she would either travel to their home in Canada Bay, or that her grandparents would visit the Moorebank property for lunch, or coffee, on their way back from visiting their holiday homes: Tcpt, 1 June 2022, p 185(26-43).
3. She stated that after Vincenza's death, she would often speak to her grandmother three to four times a week on the telephone, and that her grandparents would visit them at No 57 to check in on their general wellbeing. She would also visit her grandparents' house to feed the dogs, check the mail and take the bins out. If her grandparents were home, she would have dinner with them: Tcpt, 1 June 2022, p 186(1-21). This continued for about "a year or so" after Vincenza's death. She stated that she would speak to Maria more than she spoke to the deceased.
4. Claudia gave evidence that she lived at No 57 from September 2002 until the beginning of 2008, when she moved out to live with her then partner: Tcpt, 1 June 2022, p 191(45-48). However, for a period of three months after her mother's death, the Plaintiffs had all lived with Daniela.
5. In cross examination, Claudia stated that they were not required to pay rent for this period. Nor were they required to pay rent for approximately five weeks after the Plaintiffs moved back to No 57: Tcpt, 1 June 2022, p 191(19-35). This evidence was inconsistent with what had been stated in her affidavit, namely that "[t]he moment we moved back we had to start paying rent again": Affidavit, Claudia Puglia, 12 February 2021 at par 120. (The reasons, if any, for that inconsistency was not explained.) In any event, Claudia had not asked the deceased or Maria for an abatement of rent - it "just happened".
6. In late 2005, after accumulating a debt of approximately $50,000 which she was unable to repay, Claudia became bankrupt: Tcpt, 1 June 2022, p 193(25-30), 194(41-44). She acknowledged that the decision to declare bankruptcy was made "after a lot of careful consideration and soul searching".

The third Plaintiff

1. Benjamin, the third Plaintiff, swore two affidavits in these proceedings, the first was sworn on 11 May 2021, comprising 86 paragraphs spanning 13 pages; the second was sworn on 15 May 2022 and comprised four paragraphs, spanning three pages.
2. Prior to moving in to No 57, he had lived with a friend for about 6 months because he was working at Moorebank. He had then lived in No 57 from early 2003 until January 2014, except for a period of approximately three months following his mother's death, when, with his siblings, he lived with Daniela: Tcpt, 1 June 2022, p 129(38-43).
3. He agreed that throughout the period of occupation of No 57, rent together with utility expenses, were being paid by his mother, and then by the occupants, being him and one, or both, of his sisters. At the time he moved in, the rent being paid was $300 per week. He accepted that in the following years, the rent increased, and it was paid by whoever of the Plaintiffs were in occupation. (He understood that the rent that was being paid by the tenants in the unit below was "about the same".)
4. He stated that, thereafter, his grandparents would "pop-in" to visit at No 57, when they would drop off fruit, vegetables and food to store in the freezer. They would also give him $50 or $20 "just to have it": Tcpt, 1 June 2022, p 116(39)-117(2). Otherwise, the contact was by telephone, when he would drop into their home, or at family gatherings, involving the Defendants. He agreed that a fair summary was "that your grandparents would typically ask you if you were okay, whether you needed anything, and that was really the extent with the communication that you had with them over those years": Tcpt, 1 June 2022, p 126(18-23).
5. He also stated that during the couple of months immediately following his mother's death, in September 2003, there were regular conversations, phone calls, and visits with each other seeing how the other was doing: Tcpt, 1 June 2022, p 115(34-37). They would come and see how the Plaintiffs were, drop off some fruit and vegetables, and they would also go downstairs to see the tenants who were living there at the time.
6. He gave evidence that, when his grandparents were away from Sydney, he would look after their dogs, on occasion. He stated that he would also do "little fixes downstairs, screwing in things, light bulbs for the tenants downstairs to help them out": Tcpt, 1 June 2022, p 119(41-45).

The first Defendant

1. Carmelina swore three affidavits in these proceedings, the first was the affidavit of executor which was sworn with the first Defendant on 3 December 2020. It comprised 15 paragraphs and spanned five pages. The second was sworn on 23 September 2021 and comprised 14 paragraphs, spanning four pages; the third was sworn on 6 December 2021 and comprised 155 paragraphs, spanning 23 pages.
2. She is now retired, although she had previously worked as a schoolteacher.
3. Overall, I found Carmelina to be a calm, temperate, responsive, and sincere, witness who I considered was endeavouring to tell the truth. I found her evidence was detailed, cogent, and was given in a clear and open way. She made concessions when the answer accorded with her recollection, and I found that the evidence that she gave was consistent with, and supported by, other evidence. I reject any suggestion that I should not accept her evidence.
4. Carmelina described the deceased as a very strict man, who was a product of both his generation, and of his general customs, practices and traditions. He was not a "warm, fuzzy" type of person, although there was no doubt that he loved, and was very protective of, his family. She did not receive any particular emotional support from him, and stated he was a very stubborn, proud, and an unyielding, person. She also stated that if he was offended by something, he did not get over it as he felt it was a deep blow to his sense of honour. She said that he was authoritarian, not very affectionate and his family reputation was of paramount importance to him.
5. She said that it was the deceased who was the decision maker, although he and Maria, would usually make financial decisions together. They had very good business acumen.
6. Carmelina gave evidence of her knowledge of the contact that the deceased had with the Plaintiffs. Whilst she acknowledged that she would not always be present, her parents would tell her of the contact and in giving her evidence, she had relied upon what she was told.
7. After the death of Vincenza, in giving evidence about that contact, she also relied on what her parents, nieces and nephew had told her, and also her own observations. At the time, she was living around the corner from them, so she saw them often.
8. She admitted that after Vincenza died, the deceased was a sympathetic grandparent towards the Plaintiffs, but she did not observe that he considered he had to look after them because now they had no mother, and their father was not available. She said, in cross-examination, he did not ever appear to feel that he had to take on a parental role. If he had, he had never said that to her.

The second Defendant

1. Daniela, the second Defendant swore two affidavits in these proceedings, the first was the affidavit of executor which was sworn with the first Defendant on 3 December 2020. It comprised 15 paragraphs and spanned five pages. The second was sworn on 6 December 2021 and comprised 57 paragraphs and spanned eight pages.
2. Whilst she was endeavouring to assist the Court in answering questions, I think that her role in the life of the deceased, particularly in the last few years of his life was not as close as that of Carmelina. By way of example, following her parents' move to Italy in 2010, she saw them only once, for 5 weeks, in 2015, when she attended the wedding of the first Defendant's daughter. Naturally, she saw much more of them when they returned to Sydney.
3. She also described the deceased as a strict man, with traditional family views although his paternal instincts were not strong. His family reputation was extremely important to him: Affidavit, Daniela Cantale, 6 December 2021 at par 12.
4. Daniela gave evidence that the deceased wanted to enjoy his retirement and did not want to babysit his grandchildren. Nor did he wish to be disturbed, or put out, by his children, or grandchildren. If she ever asked the deceased if he was busy, he typically asked "why?" She stated that she knew this was because she might ask him to babysit. His usual response to her was words to the effect of "unless it's absolutely necessary, we're busy": Affidavit, Daniela Cantale, 6 December 2021 at pars 14-16.
5. The deceased often said to her words to the effect of "I grew up my kids and worked hard. Now it's your turn to grow up your kids": Affidavit, Daniela Cantale, 6 December 2021 at par 15. She also did not observe the deceased being concerned that the Plaintiffs "may, as it were, go astray or lack guidance from an adult": Tcpt, 2 June 2022, p 247(12-14).
6. After the deceased and Maria moved to Italy, Daniela spoke to them regularly on the telephone. She stated that she would always speak to the deceased first so that he could tell her what he wanted to say, and then he would pass the telephone to Maria: Affidavit, Daniela Cantale, 6 December 2021 at par 17.
7. She visited them once, in 2015, whilst they were in Italy, being when she attended the wedding of her niece (not Maree-Marcelle). During her visit, which spanned 5 weeks, she stayed with them at their home.

The medical evidence

1. I have earlier mentioned that Maree-Marcelle filed a general caveat on 14 December 2020, and then many months later, on 6 April 2022, filed the amended Defence to the Cross-Claim, in which the positive allegations of a lack of testamentary capacity and lack of knowledge and approval were raised.
2. It seems that at the time of filing the general caveat, and thereafter, the Plaintiffs had no medical evidence to support the allegation of a lack of capacity in December 2012. The affidavit evidence of Father Kariba was served in early March 2021.
3. The copy medical records tendered at the hearing were only obtained following the issue of subpoenas, to hospitals and to doctors, on 20 April 2022 and 3 May 2022. Again, no explanation for the late service of subpoenas was provided.
4. I have earlier referred to the particulars of the lack of capacity referred to in the amended Defence to the Cross-Claim, namely that the deceased suffered "cognitive impairment" and "the deceased was suffering from developing dementia of the Alzheimer's type".
5. The Plaintiffs relied upon the contents of the Death Certificate, completed, by Carmelina, which disclosed as one of the causes of death "Advanced alzheimer's dementia, years".
6. A Death Certificate issued by the Registrar of Births, Deaths and Marriages in New South Wales is admissible in legal proceedings as evidence of the entry to which the certificate relates, and the facts recorded in the entry: Births, Deaths and Marriages Registration Act 1995 (NSW) s 49(2).
7. Bearing in mind the medical evidence, to which I shall next refer, and the date the Death Certificate was issued, namely, 26 June 2020, it is unsurprising that the entry was made. It does not mean that the condition was suffered in 2012.
8. There is no medical evidence, at all, going to the deceased having suffered from either of these conditions at the time he made the 2012 Will. Indeed, the deceased's treating physician between 17 March 2010 and 31 December 2012, Dr Rosario Drago, stated in a letter dated 27 April 2022, which forms part of an email chain between the Defendants' solicitor and Dr Drago, including an email dated 13 April 2022, in the Italian language, from that solicitor to Dr Drago and an email in reply from Dr Drago dated 27 April 2022, with no content other than attaching the statement, written in Italian, that states: "I have no recollection and have no documents to confirm a diagnosis of Alzheimer's dementia or other cognitive impairment".

The Law - the Probate Claim

1. I have dealt with the law relevant to the Cross-Claim in which the Defendants seek a grant of Probate in solemn form of the 2012 Will, most recently, in Lim v Lim [2022] NSWSC 454.
2. In that case, I noted, at [2], that the Court's task in a Probate suit is "to ascertain what (if anything) was the last true will of a free and capable testator. The focus of the enquiry is upon the process by which the document which it is sought to admit to proof was produced. Other matters are relevant only insofar as they illuminate some material part of that process. Probate actions become unnecessarily discursive and expensive and absorb disproportionate resources if this focus is lost": Wharton v Bancroft [2011] EWHC 3250 (Ch) at [9] (Norris J).
3. I also noted at [4] the comments of Lord Neuberger, then the Master of the Rolls, in Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430 at [16], that: "…. Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries. Human nature being what it is, such people will often be able to find evidence, or to persuade themselves that evidence exists, which shows that the will did not, could not, or was unlikely to, represent the intention of the testatrix, or that the testatrix was in some way mentally affected so as to cast doubt on the will. If judges were too ready to accept such contentions, it would risk undermining what may be regarded as a fundamental principle of English law, namely that people should in general be free to leave their property as they choose, and it would run the danger of encouraging people to contest wills, which could result in many estates being diminished by substantial legal costs."
4. I also noted, at [217], that "[T]he criteria in Banks v Goodfellow are not matters that are directly medical questions, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for common sense judicial judgment on the basis of the whole of the evidence": Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197.
5. I dealt with the law on testamentary capacity at [338]-[359] as follows: "The law as to testamentary capacity is well settled. There was no dispute about the principles between the parties. Importantly, the requirement for testamentary capacity is not statutory but is derived from the caselaw. Nor does the Court adhere to the language of testamentary capacity in the caselaw as if it is a legislative text: Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 at [164]; cf Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [6] and [133]-[134]. It is not resolved by the blind application of rules or formulae: Frizzo v Frizzo [2011] QCA 308 at [66]. I have previously outlined the principles related to testamentary capacity in Starr v Miller at [410]-[465], Chant v Curcuruto; Chant v Curcuruto [2021] NSWSC 751 at [657]-[718] and most recently in Robertson v Barker at [455]-[493]. It is not necessary to repeat those principles in their entirety. However, I have extracted some of the relevant principles below. It is convenient to remember, by way of preamble, what was written in Croft v Sanders [2019] NSWCA 303 at [126] (White JA, with whom Bathurst CJ and Gleeson JA agreed): "…Capacity to make a will is to be assessed having regard to the particular will made. While the test of capacity remains the same, the application of that test will vary according to the complexity and the officiousness or inofficiousness of the will (Bailey v Bailey (1924) 34 CLR 558 at 570-571; [1924] HCA 21; Brown v McEnroe (1890) 11 NSWR Eq 134 at 138; In the Estate of Park [1954] P 112 at 122; Ridge v Rowden; Estate of Dowling (Supreme Court of New South Wales, Santow J, 10 April 1996, unreported, BC9601342 at 42-43; Mason and Handler, Succession Law and Practice NSW, LexisNexis [13,045] at 100,029, (8)). As the High Court said in Gibbons v Wright (1954) 91 CLR 423 at 438; [1954] HCA 17 the mental capacity required in respect of any instrument is relevant to the particular transaction which is being effected by means of the instrument." ("Inofficious" in this context means where no provision, or an apparently inadequate, or unfair, provision, is made for those who ought to be the objects of the will-maker's bounty: McNamara v Nagel [2017] NSWSC 91 at [263] (Robb J).) Thus, how the elements for testamentary capacity would be regarded as having been established, must vary according to the factual circumstances, that is to say the test is time, situation, person, and task, specific: Choy Po Chun v Au Wing Lun [2018] HKCA 403 at [23] (Cheung, Yuen, and Kwan JJA); Bailey v Bailey at 570 (Isaacs J). This requires a consideration of the particular will-maker, and the particular medical, or mental, conditions, she or he is suffering under in the particular situation. The degree of complexity of the will-maker's affairs and her, or his, testamentary intentions, will also directly affect the level of cognitive function required to make a testamentary instrument. As has been written, the test of capacity is not monolithic, but is tailored to the task in hand: Hoff v Atherton [2005] WTLR 99 at 109; [2004] EWCA Civ 1554. What was written in Banks v Goodfellow remains well settled and has proved sufficiently flexible to take account of developments, particularly in medical understanding. The statement of principle has been described as "a durable formulation" which "has withstood the test of time": Sharp v Adam [2006] WTLR 1059; [2006] EWCA Civ 449 at [82], [66]. It has also been described as the "classical exposition": I J Hardingham, M A Neave and H A J Ford, Wills and Intestacy in Australia and New Zealand (2nd ed, 1989, Law Book Co) at [306]). Banks v Goodfellow does not require perfect mental balance and clarity in the deceased (at 566 (Cockburn CJ)). Importantly, it is to be noted that in Banks v Goodfellow, reference is made to the "understanding" or "comprehension" of the will-maker. That is not a reference to what he, or she, actually remembers, but rather, is a requirement that he, or she, has the capacity to understand and comprehend such matters: Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280 at [40] (Lewison LJ). Thus, the will-maker should have the capacity to understand the nature of the act of making a will and the extent of his, or her, property, but also comprehend and appreciate the claims to which he or she ought to give effect. This is a matter that is often forgotten by parties in probate cases. Importantly, what is being spoken of is capacity rather than the exercise of it. The question is whether the deceased had the capacity of sound judgment, not whether he, or she, in fact, made the judgment about his, or her, disposition of the estate by will soundly, and for reasons which might appear to the observer to be appropriate: Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [159] (White J); King v Hudson [2009] NSWSC 1013 at [51] (Ward J)). As was written in Simon v Byford at [40], by Lewison LJ: "capacity depends on the potential to understand. It is not to be equated with a test of memory…". Thus, comprehension and appreciation of the calls on a will-maker's bounty does not require actual knowledge of other gifts that have been made to, or the financial circumstances of, a potential object. The will-maker does not have to have all the facts with which to make a correct, or justifiable, decision; he, or she, must have the capacity to decide for himself, or herself, between competing claims. That means that he, or she, must have the ability to inform himself, or herself, about those claims, to the extent that he, or she wishes to do so, but not that he, or she, must remember the relevant facts about each of the potential objects or have correctly understood their financial circumstances. Thus, capacity is not a test of memory, but rather, a test of disposition. It is the soundness of the will-maker's ability to dispose of her or his property that concerns the Court. The issue is not so much her, or his, ability to remember details, but the soundness of her, or his, ability to decide how assets are to be divided: Frizzo v Frizzo at [24]. Where, in the light of medical evidence, it appears that the deceased suffered from any medical condition which is relevant to testamentary capacity, the onus is on the propounder of the will to show that the will-maker's mental state did not influence the will: Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13. It is a question determined on the balance of probabilities: Bailey v Bailey at 570 (Isaacs J). However, in Re Griffith; Easter v Griffith (1995) 217 ALR 284 at 289-290, Gleeson CJ wrote: "Where the evidence in a suit for probate raises a doubt as to testamentary capacity, there rests upon the plaintiff the burden of satisfying the conscience of the court that the testatrix had such capacity at the relevant time. If, following a vigilant examination of the whole of the evidence, the doubt is felt to be substantial enough to preclude a belief that the testatrix was of sound mind, memory and understanding at the time of execution of the will, probate will not be granted: Worth v Clasohm (1952) 86 CLR 439. This formulation of the onus of proof, well established by authority and not in dispute in the present case, invites caution. The power freely to dispose of one's assets by will is an important right, and a determination that a person lacked (or, has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter." … In Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244, Giles JA and Brownie AJA wrote at [2]: "Mental infirmity of a kind which denies testamentary capacity does not necessarily involve 'insane delusions'. In Harwood v Barker [1840] EngR 1087; (1840) 3 Moo PC 282, the testator was said to have a bodily disease affecting the brain and was greatly debilitated physically. He was said (at 285) not to have been suffering from any delusion, but was found not to have been in a state of mind to judge the propriety of his dispositions. (See also Batton Singh v Amirchand [1948] AC 161)." In Carr v Homersham, Basten JA wrote at [47]: "To speak of there being a 'doubt' as to testamentary capacity is to say little more than that a real issue has been raised on the evidence, which requires the resolution of the Court. Unless such an issue has been raised, testamentary capacity need not be addressed; its existence will be presumed. Once the issue is raised, the Court must resolve it; that must be done by a consideration of all the evidence and the inferences which may be drawn from it. It is true that the Court must be affirmatively satisfied as to testamentary capacity, but in doing so, it should be alert to the fact that to find incapacity and thus invalidate a formally valid will is, in the words of Gleeson CJ, 'a grave matter'. A doubt which does not preclude the probability that the testator enjoyed testamentary capacity cannot warrant a finding of invalidity." In comprehending the nature of what the deceased was doing, and its effects, it is not necessary to establish that she, or he, was capable of appreciating the legal effect of all the clauses of the disputed will. However, it does need to be shown that the deceased understood that she, or he, was executing a will and the practical effect of the central clauses in that document, including the dispositions of property made and the implications for the estate of the appointment of those who are to administer it: Nicholson v Knaggs [2009] VSC 64 at [97]; Brown v Wade [2010] WASC 367 at [95]-[96]. I also note that in A Learmonth, C Ford, J Clark and J Ross Martyn (eds), Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (21st ed, 2018, Sweet & Maxwell) where the authors deal with particular matters which arouse suspicion, noting, at [10-36]: "A radical departure from testamentary dispositions, long adhered to, requires explanation, especially if the person in whose favour the change is made possesses great influence and authority with the deceased and originates and conducts the whole transaction; and such facts may raise strong suspicions that the change was not the result of the free volition of the deceased. But that suspicion may be dissipated by proof of a change of circumstances since the earlier wills. There have been a number of cases in which wills prepared by elderly testators in favour of their carers have been subjected to close scrutiny by the court, and often set aside." [Citations omitted] I also note that in Bool v Bool [1941] St R Qd 26 at [39], Macrossan SPJ wrote: "A great change of testamentary disposition evidenced by a departure from other testamentary intentions long adhered to always requires explanation." More recently, in Sharp v Adam, May LJ in the English Court of Appeal wrote, at [79]: "[Counsel for the appellants] had submitted that, since a testator might make a valid will disinheriting his children out of capricious, frivolous, mean or even bad motives, it was not the function of the court to substitute its own view of what [the testator] should have done. The deputy judge agreed with this proposition. But it did not follow that the court should not look for a justification for the change in the will or inquire why [the testator] disinherited his daughters. An irrational, unjust and unfair will must be upheld if the testator had the capacity to make a rational, just and fair one, but it could not be upheld if he did not. It followed that the court must inquire why a testator has disinherited his children where there is a possibility that it is due to disease of the mind. In a later passage, the deputy judge said, with reference to Harwood v Baker, that the justice or otherwise of [the testator] excluding his daughters must as a matter of common sense have a bearing and cannot be excluded from consideration. We agree with this, provided that the inquiry is directed to the testator's soundness of mind, and not to general questions of perceived morality." In Loosley v Powell [2018] 2 NZLR 618; [2018] NZCA 3 at [32]-[33], the Court wrote: "There are indeed numerous authorities where a major change of testamentary disposition has been seen as supporting an inference of incapacity in the absence of an adequate explanation. Hammond J noted in Re Rhodes: 'Where property is disposed of fairly, and in accordance with moral dictates, then only a very small amount of capacity is needed. But with abrupt and unfair changes, fuller and clearer evidence of capacity is required.' Nevertheless, there is no "requirement" that a Banks v Goodfellow assessment involves an inquiry into why a will-maker has made a significant change at the time the will is executed. It would be wrong to deny capacity only because of a failure by a solicitor to so enquire. There are a number of factors taken into account in assessing capacity as outlined in Banks v Goodfellow; including evidence of lucidity and mental command, available medical assessments, and third party observations of behaviour…" As I have recently reiterated in Starr v Miller at [457] - [458]: "Ultimately, whether the will-maker possessed the requisite capacity is a practical question which does not depend solely upon medical evidence but is to be determined, holistically, by reference to all of the facts established in the case: Boughton v Knight, at 67. It is a question determined on the balance of probabilities: Bailey v Bailey, at 570. It is not resolved by the blind application of rules or formulae: Frizzo v Frizzo, at [66]. The manner in which the deceased gave her instructions, the content of those instructions, the setting in which the instructions were given and the outcome of enquiries made by the solicitor acting in the matter, all assume importance: Nicholson v Knaggs at [41] (Vickery J). Judicial common sense is to be applied in the exercise: Re Estate of Lau Heung [2019] HKCA 769 at s19 (Lam VP)." In Hoff v Atherton, Peter Gibson LJ, with whom Chadwick LJ and Lindsay J agreed, noted at [44] that: "In Masterman-Lister at para. 82 Chadwick L.J. pointed out that on a question of capacity the outcome was likely to be an important, although not conclusive, indicator of the existence or lack of understanding."

The Submissions - the Probate Claim

1. As earlier stated, senior counsel for the Plaintiffs did not submit that Father Kariba's evidence should not be accepted. He submitted that "we just have to accept, and your Honour may well do this, [Father Kariba's] word that the translation was a true translation, and that, ultimately the deceased knew and understood what the translation of the words "testamentary discretionary trust" were, we don't know, the expression "for life", we don't know; there are a lot of legal terms but they weren't inserted by a lawyer, and it's reasonable to submit that they were never explained. I can't put it any higher than that…": Tcpt, 2 June 2022, p 258(9-15).
2. Senior counsel submitted that the circumstances of the creation of the 2012 Will were "sufficiently unique for the Court to be concerned that in the absence of a lawyer in circumstances where someone cannot speak English, that we have a will that was read back in Italian", where "he didn't read the will verbatim", that there was a residual doubt substantial enough to preclude a belief that the 2012 Will is the will of a testator who possessed sound mind, memory and understanding at the time of its execution: Tcpt, 2 June 2022, p 256(2-14); Worth v Clasohm (1952) 86 CLR 439 at 453; [1952] HCA 67.
3. Senior counsel also did not submit that the Court should not accept the evidence of Mr Maniscalco. However, he submitted that his conversation with the deceased was general and not sophisticated, whilst not saying that it ought to have been otherwise.
4. Senior counsel for the Plaintiffs also submitted that the Death Certificate, completed by Carmelina, and the narrative evidence on behalf of the Plaintiffs, provide further support to the proposition that the deceased lacked testamentary capacity at the time the 2012 Will was executed. Relevantly, one of the causes of death listed on the deceased's Death Certificate is, as I have previously mentioned, "Advanced alzheimer's dementia, years".
5. As I have outlined above, the Plaintiffs relied upon medical evidence contained in records obtained from 2016 onwards, to establish that there was a sufficient doubt as to the deceased's testamentary capacity in 2012.
6. In his oral submissions, senior counsel for the Plaintiffs said (Tcpt, 2 June 2022, p 258(32-36)): "All I can say your Honour is that the evidence is in those couple of documents in the medical bundle that have come from somebody, either a daughter or the wife or a medical record that I haven't been able to produce, that indicates the cognitive impairment went back perhaps - I won't get the wording wrong - "Concord geriatrics p 14, onset probably 2010".

Determination - the Probate Claim

1. I turn now to apply the above principles of law to the facts as I have found them. It is necessary to read what follows in the context of what has been written earlier in these reasons.
2. I am satisfied that the 2012 Will was duly executed. There was simply no challenge to Father Kariba's evidence that the deceased signed the 2012 Will in his presence and in the presence of Professor Zummo and that each then signed the Will in the deceased's presence.
3. It is important to note that the Court is not engaged in some form of approval or disapproval of the dispositions made in the 2012 Will. The Court cannot substitute its own judgment for that of the deceased in relation to what would be a proper disposition of his estate. The task of the Court is to assess all of the relevant evidence and then, drawing such inferences as it can from the totality of that material to reach conclusions as to the facts on the balance of probabilities, remembering that the question is whether the contents of that Will do truly represent the deceased's testamentary intentions.
4. In any event, the 2012 Will was rational. Whatever the state of each Plaintiff's relationship with the deceased, it was rational for one spouse to confer substantial testamentary benefits on the other, particularly after such a long marriage, and then leave the bulk of his assets in remainder to his two adult surviving children.
5. Applying the vigilant and careful examination that is appropriate, having carefully considered all of the evidence, lay and medical, and remembering that to find incapacity and thereby invalidate a formally valid will is, in the words of Gleeson CJ in Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284 at 290, "a grave matter", I am affirmatively satisfied, on the balance of probabilities, in accordance with Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, or now, s 140(1) of the Evidence Act 1995 (NSW) that the deceased did have testamentary capacity at the time he gave instructions for, and then executed, the 2012 Will. In this regard, the evidence of Father Kariba and Mr Maniscalco constituted more powerful evidence on the issue of the validity of the 2012 Will than any other evidence.
6. I am also affirmatively satisfied of the deceased's knowledge and approval of the 2012 Will and that there were no "suspicious circumstances" which warrant a higher bar for proof of knowledge and approval.

The Law - Family Provision Claim

1. Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out much of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they be able to follow the reasoning, understand the principles, and for each to be satisfied that I have considered the evidence and the submissions in their application.
2. The key provision is s 59 of the Act. As earlier stated, the Court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons who may make an application, or on whose behalf an application may be made. Relevantly, one category is "a person who was, at any particular time, wholly or partly dependent on the deceased person, and who is a grandchild of the deceased person": s 57(1)(e) of the Act. There is no age limit prescribed by the Act in the case of a claim by a grandchild.
3. Because there was an issue about eligibility, it is necessary to say something more about this topic.
4. In Chisak v Presot [2021] NSWSC 597, I wrote in relation to this question at [314]: "In relation to s 57(1)(e), the test is twofold. Relevantly, the first is a relationship of dependence, whether wholly or partial, upon the deceased and the second is being "a grandchild of the deceased". It is only necessary to deal with the first test as there is no issue that [the Plaintiff] is a grandchild of the deceased."
5. The same may be said in the present case. An applicant cannot succeed except by virtue of a combination of status (being a grandchild) and actual dependency (whole or partial).
6. I take some of the principles on the determination of this element of eligibility to be: 1. The sub-section expresses a general concept relevant to the relationship between any two persons, including adults (grandchild of the deceased, or member of the household of which the deceased was a member), but adds the additional notion of whole, or partial, dependency in respect of each of those relationships. 2. The Act contains no definition of the words "dependent on". There are no "tests" as such for the meaning of the term. It should be given its plain, grammatical, meaning. In general, the word "dependent" connotes a person who relies upon the support of another, financial and/or emotional. The word 'dependent' is an ordinary English word and dependency is not to be given any restrictive meaning. 3. The question whether, at any particular time, there was a relationship of dependency between an applicant and the deceased is a question of fact which may be complex, and which, often, involves consideration of many elements. It is not determined by reference to arbitrary rules. 4. It is not part of the discretionary exercise of jurisdiction under the Act to make an order for provision. Whilst not a discretionary decision, it does involve matters of evaluation. 5. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance, education and advancement in life. Yet, there is no limiting purpose identified in s 57(1)(e) (such as dependency for maintenance, education, or advancement in life). 6. There may be imported into the word a degree of reliance on someone else for the whole, or partial, satisfaction of some need. It is not limited to purely financial, or material, reliance, and it may exist irrespective of whether the dependent person is financially, or physically, able to support himself or herself, so that, if the material support giving rise to the dependency is withdrawn, the dependent person will face some difficulties in providing that support for himself or herself, either by reason of some physical, financial or emotional limitation or attribute. Dependency refers to a state or condition of being dependent, to having been in this relationship with the deceased. 7. The Act provides that the dependence may arise "at any particular time" and what must be shown is that the applicant was "wholly or partly" dependent upon the deceased. These matters indicate an expansive, rather than a restrictive, scope of the statutory pre-condition of dependence. The phrase "wholly or partly dependent on the deceased person" must be considered within its relevant statutory context. 8. In McKenzie v Baddeley [1991] NSWCA 197, Priestley JA (with whom Hope AJA agreed) held that the word "partly" in the phrase "partly dependent", whilst a word of "some elasticity", does not mean "substantially", but means "more than minimally", or perhaps, "significantly". Meagher JA commented (at page 6, lines 15-20), that "[c]ommon sense requires that certain trivial activities should be disregarded even if they literally come" within a statement of principles about what constitutes dependency. 9. Reliance on the deceased for accommodation may amount to dependence, but the mere fact of lodging in another's property without paying rent does not necessarily amount to dependence: Tobin v Ezekiel at [109]-[111] (Meagher JA). 10. Dependency does not necessarily correlate with a legal duty to maintain.

The Submissions - the Family Provision Claim

1. Counsel for the Plaintiffs submitted that the Plaintiffs' eligibility arises under s 57(1)(e) of the Act. It was submitted that they were dependent on the deceased for accommodation, as they had paid less than market rent to occupy No 57. It was submitted that, had they been required to rent premises on the open market, they would have been required to pay a greater rent.
2. I do not accept this submission as there was really no evidence to substantiate this submission for almost all of the period during which one, or other, of the Plaintiffs lived there. The evidence established, contrary to the evidence given by them, that, for all but a short period of about two months following the death of their mother, the Plaintiffs had been required to pay market rent for occupation of No. 57 which was at least comparable to the rent being paid for the unit below.
3. In closing submissions, senior counsel submitted that, for two months after their mother died, and for five weeks thereafter, the Plaintiffs did not pay rent for No 57. He submitted that (Tcpt, 2 June 2022, p 266(19-22)): "Giving free accommodation for five weeks they were dependent on him for free accommodation it's not an overnight stay, it's not a weekend stay, it's a matter where there is a legal obligation to pay rent and for all sorts of reasons, the lessor has waived it, so they were dependent on him for free accommodation for that five weeks."
4. Interestingly, he had earlier described this as "an indulgence".
5. In addition, senior counsel submitted that the Plaintiffs were financially dependent on the deceased because the rental bond was dispensed with in the original lease, which indicates that the deceased was able to give the Plaintiffs accommodation that they would not have been able to acquire on the open market.
6. Senior counsel relied upon the evidence given by the Plaintiffs of conversations with Maria and the Defendants that the money the Plaintiffs had been paying in rent would be used to pay down the mortgage on No 57, and that, in time, that property would belong to the Plaintiffs. He also pointed to the clause in the 2005 Will which gifted No 57 to the Plaintiffs. I have earlier concluded that I do not accept the evidence of any of the Plaintiffs on this topic but rather prefer the evidence of each of the Defendants.

Determination - Family Provision Claim

1. I turn now to the determination of the family provision claim made by each Plaintiff.
2. Drawing all of the facts together, I am satisfied that the following facts have been established: 1. The deceased never stood in loco parentis to any of the Plaintiffs. Until their parents separated, they had lived as part of their parents' household. After the separation of their parents, they lived in the household constituted by their mother and siblings. (In saying this, I make clear that I am not implying that the Plaintiffs could not have been partially dependent on the deceased unless their parents, or subsequently, Vincenza, had abrogated their, or her, parental responsibility to the deceased. I am simply rejecting the Plaintiffs' assertion that the deceased had adopted the role as her, or his, parent.) 2. None of the Plaintiffs ever lived, or even stayed, with, the deceased (or Maria). Unlike many other cases in which a grandchild is found to be wholly or partly dependent, there were no periods of time in which she, or he, lived, or stayed, with the deceased, in this case. 3. None of the Plaintiffs ever came into the custody, or care, of the deceased (or Maria). They were never invited to stay at the home of their maternal grandparents. Even immediately after the death of Vincenza, they stayed with Daniela and her family, and not with their grandparents. Then, even if, on occasions, food was purchased for their household, by the deceased and Maria, this, on its own, does not give rise to any dependency between each of the Plaintiffs and the deceased. It was not sought by any of them and was merely a matter of generosity by the deceased and Maria. 4. Even after the death of Vincenza, by which time, each of the Plaintiffs was an adult, and was self-supporting, the deceased did not act in a parent-like capacity. He appears to have made his role in the life of his own children, and also his grandchildren, as adults, perfectly clear to members of the family, particularly the Defendants. That role was extremely limited. 5. During the period following their mother's death, there is no evidence that each of the Plaintiffs was financially, or materially, dependent on the deceased. Throughout her, and his, life, respectively, each maintained the capacity, and willingness, to provide for herself, or himself, completely independently of the deceased. 6. There was no evidence that any of the Plaintiffs was physically, or emotionally, incapable of living on her, or his, own, or providing for herself, or himself. Indeed, after a short period of time, each of them lived in No 57, at different times, the rent being paid by those in occupation. Each appears to have remained self-supporting and, after a period of time, each returned to work. Each did not seek, or require, any financial, or other, assistance from the deceased and none was offered or provided. Certainly, the deceased had no legal obligation, or responsibility, to provide for each of them. 7. None of the Plaintiffs gave any evidence of her, or his, financial circumstances at the time of the death of Vincenza, their mother. None of them suggested that she, or he, was supported by the deceased, or that she, or he, was receiving any more than small tokens of benevolence, on some occasions, towards her or his support, from the deceased and Maria. None was to any extent relying upon the deceased for her, or his, maintenance or advancement in life. 8. There was no suggestion of any financial support, or other than minimal occasional gifts of small amounts of money, provided to any of the Plaintiffs by the deceased, at any other time. Indeed, in the time of her, and his, financial crisis and need, neither the second, nor the third Plaintiff, sought financial assistance from the deceased. This suggests that even then, the deceased was not a person who, at least these two Plaintiffs, would naturally rely upon, or look to, rather than to others, for anything necessary, or desirable, for her, or his, maintenance or advancement of life. 9. The Court's attention was not drawn to any evidence that explained the circumstances in which the Plaintiffs were permitted to live rent free in No 57. In any event, it was for an extremely short period following the death of Vincenza, who was, after all, the deceased's daughter. It may be inferred that members of the whole family, during this period, were mourning the death of Vincenza. I take account of the fact that it was a time of great emotional stress for all family members. An act of benevolence from their grandparents, following the death of Vincenza, should not be converted to, or treated as, partial dependency. As was obvious from the events that followed, permitting the Plaintiffs to remain rent free in No 57 for that short period of time was casual, was not intended to persist, and was not continued in the future. 10. Allowing the Plaintiffs to derive a small benefit by permitting each to remain in occupation of No 57 without paying rent, following the death of Vincenza, was casual, and it was discontinued very quickly. Past events, and future probabilities, suggest that the Plaintiffs were not partly dependent upon the deceased at any time. 11. Apart from the short period, the whole of the occupation of No 57 by the Plaintiffs' parents, then by their mother, and then by them, involved a commercial arrangement which was strict, was adhered to, and continued to be maintained. After that short period, the deceased expected the payment of rent to occupy No 57 to be made, and it was made, even if sometimes late, by the Plaintiffs, or those of them who remained in occupation of No 57. 12. Thereafter, in respect of accommodation, the deceased made it perfectly clear that market rent was payable by those of the Plaintiffs who occupied that property. Later, when it was not paid by the third Plaintiff, the deceased served a notice to quit. Thereafter, Benjamin vacated No 57 and had no further contact with the deceased. 13. The relationship of each of the Plaintiffs and the deceased, otherwise, was not particularly close suggesting any other form of partial dependency. Nor did it involve the bestowing of any special care, or affection, on either side. There was no evidence of any emotional dependency upon the deceased by any of the Plaintiffs. 14. It is difficult to find evidence concerning the interaction between the Plaintiffs and the deceased to elevate the relationship beyond that which might be expected between an adult grandchild and a grandparent. After about 2010, it might even be said that the deceased only had a peripheral involvement in the lives of each of them. Apart from the attendance at the first Plaintiff's wedding, in 2012, there does not seem to have been very much contact between them.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 September 2022