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
Source
Original judgment source is linked above.
Catchwords
[1990] VicRp 47
Barns v Barns (2003) 214 CLR 169[1938] HCA 34
Burnside v MulgrewRe the Estate of Doris Grabrovaz [2007] NSWSC 550
Carey v RobsonNicholls v Robson (No 2) [2009] NSWSC 1199
Chan v Chan (2016) 15 ASTLR 317[2016] NSWCA 222
Chapple v Wilcox (2014) 87 NSWLR 646[1988] NSWCA 23
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Easterbrook v Young (1977) 136 CLR 308[1977] HCA 16
Estate KouvakasLucas 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 MusgroveOakman v Limberger [2021] NSWSC 474
Lodin v Lodin (2017) 16 ASTLR 576Estate of Janakievska [2011] NSWSC 1275
Phillips v PhillipsPhillips 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
[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
Judgment (28 paragraphs)
[1]
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)
In their Summons filed on 2 July 2021, the three Plaintiffs, Maree-Marcelle Ballam, Claudia Puglia and Benjamin Puglia, each of whom is a grandchild of Rosario Maiorana (the deceased), sought a family provision order under Ch 3 of the Succession Act 2006 (NSW) (the Act). Their mother, Vincenza Puglia, a child of the deceased, predeceased him, having died in September 2003.
The Defendants named in the Summons are Carmelina Giacomina Ferro and Daniela Loredana Cantale, each of whom is a child of the deceased and his wife, Maria, and a sibling of Vincenza. Each is, therefore, a maternal aunt of the Plaintiffs.
A family provision order is one for the maintenance, education, or advancement in life, of an eligible person. Relevantly, the Act applies in respect of the estate or notional estate of a person who died on, or after, 1 March 2009. The Act replaces the Family Provision Act 1982 (NSW) (the former Act), which was repealed, effective from 1 March 2009.
Regrettably, the matter did not continue in this straightforward way. Indeed, the death of the deceased appears to have unleashed a bitter feud between the grandchildren on the one side, and their aunts, on the other. The proceedings ended up being far more complicated, and costly, than they needed to have been, particularly, although not exclusively, due to several matters being raised, on behalf of the Plaintiffs, very late in the proceedings.
For the sake of convenience and clarity, and to avoid confusion, in these reasons, where appropriate, I shall refer to the parties, jointly, as the Plaintiffs and the Defendants, respectively, or shall, otherwise, adopt the given name of the party. In relation to others, after introduction I shall refer to her, or him, by her, or his, given name. No undue familiarity is intended.
The hearing began on 31 May 2022 and continued on 1, 2 and 3 June 2022. Mr L J Ellison SC, instructed by Mr J J Buchanan, solicitor, appeared for the Plaintiffs. Mr T Alexis SC, with Mr S Spiers of counsel, instructed by Mr N A Di Girolamo, solicitor, appeared for the Defendants.
One reason why judgment has been somewhat delayed is because, on 5 August 2022, at my request, my Associate sent an email, in the following terms, to the legal practitioners for each of the parties:
"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."
[4]
The Probate dispute
The deceased died on 20 June 2020. Maria predeceased him, having died on 2 December 2018. The deceased did not remarry, or enter into a de facto relationship, after the death of Maria.
As will be read, the deceased died leaving property in New South Wales. At the time of his death, the deceased's habitual residence, and his domicile, was New South Wales.
On 19 August 2020, the Defendants caused to be published a Notice of Intended Application for Probate of the 2012 Will.
On 14 December 2020, Maree-Marcelle filed a general caveat against the grant of probate in the deceased's estate without prior notice to her. That type of caveat is one filed under Supreme Court Rules 1970 (NSW) Pt 78 r 66: Kyros v Stavrakis [2009] NSWSC 163 at [12] (White J). It is the appropriate form of caveat to raise a ground of invalidity of a will, other than because of a want of proper execution: Robertson v Barker [2021] NSWSC 1682 at [5]. Also see Leslie G Handler and Richard Neal, Mason and Handler Succession Law and Practice NSW (LexisNexis Butterworths) at [1677.3].
By Cross-Claim filed on 7 November 2021, the Defendants sought an order that probate, in solemn form, of a handwritten Will dated 19 December 2012 be granted to them as the substitute executors named in that Will. The original Will was deposited with the Court and remains in the Court file. At the commencement of the hearing, it was marked, without objection, as Ex A.
In the alternative, to ensure that a grant of administration would be made if the 2012 Will was found not to be the last valid Will of the deceased, the Defendants, as the substituted executors named therein, sought to propound a Will made by the deceased on 7 February 2005. Their primary case, however, was that it had been revoked by the 2012 Will: see, s 11(1)(c) of the Act. The original of this Will, also, was deposited with the Court. It was marked, without objection, as Ex B at the commencement of the hearing.
The Defendants also sought consequential relief, including an order that the Plaintiffs pay the Defendants' costs of the Cross-Claim.
I shall refer to Ex A as "the 2012 Will" without any prejudgment and Ex B as "the 2005 Will".
In the Defence to the Cross-Claim filed on 15 November 2021, the Plaintiffs did not admit the validity of the 2012 Will. The basis on which they sought to impugn the validity of the 2012 Will was not pleaded expressly. In fact, they did not seek, then, to assert a positive case of its invalidity, by advancing an allegation that the deceased lacked testamentary capacity, or that he did not know and approve of the 2012 Will, because, as stated by their senior counsel, he "took the view that it wasn't proper to raise those matters without a sufficient evidentiary basis": Tcpt, 3 May 2022, p 3(20-21). Nor was a case of undue influence, in the Probate sense, advanced.
[5]
The family provision claims
Prior to the commencement of the hearing, senior counsel for the Plaintiffs acknowledged that, in the event the 2005 Will was found to be the last valid Will of the deceased, they would not proceed with the claims for a family provision order. However, in submissions in reply, at 4:15 p.m. on the last day of the hearing, senior counsel informed the Court that this admission was sought to be withdrawn. I shall refer to what occurred thereafter, later in these reasons.
In relation to the family provision proceedings, at the time the application was made, administration of the deceased's estate had not been granted. It is clear that a grant of administration is not required at that time. Section 58(1) of the Act specifically provides that an application for a family provision order may be made whether or not administration of the estate of the deceased person has been granted (my emphasis). There is a note to s 58(1) that administration may be granted under s 91 for the purposes only of permitting the application concerned to be dealt with, whether or not the deceased person left property in New South Wales.
As Probate will be granted, as a result of the determination of the Cross-Claim, and before any orders are made in respect of the claims for a family provision order, nothing more need be said about this aspect.
As the deceased dealt with all of his estate in the 2012 Will (since that Will is found to be his last valid Will), there is no scope for the operation of the rules of intestacy, with the result that it is only necessary, hereafter, to refer to the 2012 Will of the deceased (in dealing with the claim of each Plaintiff for a family provision order).
There was no dispute that the Plaintiffs' Summons was not filed within the time prescribed by the Act (that is within 12 months after the date of the death of the deceased): s 58(2) of the Act. Because it was filed only a short time (11 or 12 days) outside the prescribed period, the Defendants accepted that, if an order for provision were made for any of the Plaintiffs, the parties would consent to the application being made out of time.
A family provision order may be made in relation to the estate of a deceased person: s 63(1)). An order may be made in relation to property that is not part of the deceased's estate, but which is designated as "notional estate" of the deceased by an order under Pt 3.3 of the Act: s 63(5) of the Act. "Notional estate" of a deceased person is defined in s 3(1) of the Act to mean property designated by a notional estate order as notional estate of the deceased person. "Notional estate order" means an order made by the Court under Ch 3 of the Act, designating property specified in the order as notional estate of a deceased person. A person's rights are extinguished to the extent that they are affected by a notional estate order: s 84 of the Act.
[6]
Background Facts
In their proper context, it is next necessary to provide an overview of the factual background which has led to the disputes. As with all probate and family provision disputes, a proper understanding of the events is critical. I am satisfied that the following facts have been established.
The deceased was born in December 1931. He was about 81 years old when he made the 2012 Will.
The deceased married Maria on a date not disclosed in the evidence. There were three children of their marriage, being Vincenza, who was born in March 1957; Carmelina, who was born in February 1962 and Daniela, who was born in January 1969.
The Plaintiffs are the children of Vincenza and her husband, Mario. Claudia was born in August 1979 and is now 43 years old; Maree-Marcelle was born in April 1982 and is now 40 years old; Benjamin was born in May 1985 and is now 37 years old.
In July 1985, the deceased and Maria provided a personal guarantee to the ANZ Bank, in relation to a loan for $70,000, obtained by a company, Deemgrate Pty Limited (Deemgrate), controlled by the Plaintiffs' parents. The loan was secured over the deceased's and Maria's property at Annandale (No 57). About a year after the loan was obtained, the deceased was informed that the loan had increased to $110,000. The deceased then went to the Commonwealth Bank to obtain a loan in order to pay out the loan that had been guaranteed from the ANZ Bank to Deemgrate.
Carmelina gave uncontested evidence of a note, which had been dictated by the deceased, and written by Maria. The note was signed by the deceased and stated:
"On 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…"
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.
[7]
The estate of the deceased at the date of death
It is next convenient to refer to the property of the deceased, at the time of his death, in order to better understand the terms of each of the deceased's two Wills.
On 3 May 2022, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contained:
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.
I have taken what follows from the Agreed Schedule, dated 20 May 2022, which was marked, without objection, Ex JS1, and from discussions with senior counsel during the course of the hearing. (I have omitted and shall continue to omit any reference to cents. This will explain any apparent arithmetical miscalculation.)
The property owned by the deceased, at the date of death, included:
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).
[8]
The 2012 Will
There was no dispute that the 2012 Will was made whilst the deceased and Maria were living in Italy.
Section 48(1) of the Act provides:
(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.
If the Court, at the conclusion of the hearing, were satisfied that the 2012 Will was executed by the deceased "in a foreign place", since the deceased died in New South Wales, which, it is accepted, was his domicile after 2016, the 2012 Will is taken to have been properly executed if execution conforms to the internal law in force in New South Wales "either at the time Will was executed or at the time of the testator's death".
The 2012 Will was handwritten in capital letters. On the first page, the initials "OKK", appear in the margin, along with what appear to be four other signatures. On each of the next five pages, only the initials "OKK" appear in the margin. These are the initials of Father Kariba and were written by him on the 2012 Will.
On the last page of the 2012 Will, the following appears:
"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"
Then, there appears the name of the deceased adjacent to the words "signature of testor [sic]" and the signature, name and address of each of the two attesting witnesses.
There is no formal attestation clause in the 2012 Will.
(It is not essential for a will to have an attestation clause: s 6(3) of the Act. However, one function of an attestation clause is to satisfy an evidentiary purpose, namely whether there has been compliance with s 6 of the Act. In other words, "the presence of an attestation clause is desirable because it facilitates the grant of probate and will give rise, in the absence of other material circumstances, to a presumption of due execution: Vinnicombe v Butler (1864) 3 Sw & Tr 580": Scarpuzza v Scarpuzza (2011) 4 ASTLR 244 at 254-256; [2011] WASC 65 at [32]-[37] (E M Heenan J). Although not conclusive, it constitutes prima facie evidence that the formalities have been complied with: G L Certoma, The Law of Succession in New South Wales (4th ed, 2010, Lawbook Co) at 95 [6.80].)
[9]
The 2005 Will
On 7 February 2005, the deceased made a duly executed a Will, in Sydney, New South Wales. It appears from the front page of the Will, that it was prepared by a firm of solicitors in Parramatta. It is typewritten, and bears the signature of the deceased, an attestation clause, and the signature of two witnesses, being Allan Bolster and Keith Wagner, each of whom is described as "Solicitor".
In that Will, the deceased appointed Maria, as the sole executor, and left the whole of his estate to her. In the event that Maria predeceased him, or failed to survive him for 28 days, the deceased appointed the Defendants as the substitute executors. The 2005 Will then provided:
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.
As earlier stated, there is no dispute about the validity of the 2005 Will (other than its revocation by the 2012 Will).
The Court raised with the parties that there had not been filed an affidavit of one, or other, of the attesting witnesses to the deceased's signature on the 2005 Will. Following the conclusion of the hearing, on 6 June 2022, the Defendants, without objection, filed an affidavit dated 3 June 2022 of Keith Wagner, an attesting witness to the deceased's signature on the 2005 Will.
In view of the conclusions to which I have come concerning the validity of the 2012 Will, it is unnecessary to consider this aspect further.
[10]
The estate of the deceased at the date of the Schedule
The nature of the estate of the deceased at the date of death is outlined above. Using the estimates as a guide, the gross value of the deceased's estate, at the date of death was, on the Plaintiffs' estimates $6,612,500, and on the Defendants' estimates $4,829,000.
There was no dispute that the deceased's liabilities at the date of his death included two debts to the National Australia Bank ($248,045 and $175,805), land tax ($34,115), council rates ($31,232), water rates ($20,154), costs for maintenance and repairs due to SCBS Pty Ltd ($108,550), a debt repayable to Carmelina ($40,000) and a reimbursement to Carmelina (for maintenance and repairs) ($37,000). The total of the debts was $694,905.
The assets and liabilities of the deceased at the date of the Schedule were:
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).
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.
[11]
The costs of the proceedings
In relation to the probate and family provision proceedings, the Plaintiffs' costs, calculated on the ordinary basis, were estimated to be $118,866. Their costs, calculated on the indemnity basis, were estimated to be $130,433. About $41,255 of these costs have been paid by the Plaintiffs. The Defendants' costs, calculated on the indemnity basis, of the Probate proceedings, were estimated to be $112,000.
(The estimates of costs are likely to have increased because of the work done in respect of the Statement of Claim and the Power of Attorney/Compensation Claim to which reference will be made. The costs estimates do not include costs of that claim.)
On the first day of the hearing, it was noted that the estimates of costs did not differentiate between the costs of the claims made in the Summons (the family provision claims) and the costs of the claims made in the Cross-Claim (the Probate claim).
The legal representatives were requested to discuss the costs because the possibility existed that different costs orders might need to be made. On the second day of the hearing, very sensibly, if I may say, they agreed that one half of the costs should be attributed to the Probate part of the case, and the other half, to the claims for family provision relief: Tcpt, 1 June 2022, p 155(11-13).
Although not specifically referred to in the final affidavit of costs filed, and served, by the solicitor for the Plaintiffs, in written submissions, senior counsel wrote:
"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."
(In Oxley v Oxley [2018] NSWSC 91 at [57]-[90] I referred to the need for disclosure, in each of the costs affidavits required by Practice Note SC Eq 7, for the deponent, to refer to any conditional costs agreement entered into, which could have an effect on the costs that a party to the proceedings would have to bear. I shall not refer to what was written, but the case raises an important matter of practice and procedure with which legal practitioners, by now, should be well acquainted.)
There is no suggestion that either the Civil Procedure Act 2005 (NSW) or the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) does not apply in probate proceedings. However, in such proceedings, there are considerations that more readily affect the application of the Civil Procedure Act and the UCPR than in most other forms of litigation. These considerations act as guides to the exercise of discretion, but they are not inflexible. These somewhat unique costs considerations will need to be considered unless the parties are able to reach agreement on the costs of the Probate proceedings. I shall say no more about the principles at this time.
[12]
A matter raised shortly prior to the hearing
On 18 May 2022, at the time senior counsel for the Plaintiffs delivered written submissions to the Court, he also sent to the Court a copy of a proposed Statement of Claim, which he acknowledged had not been filed.
At that time, no notice of motion seeking leave to file, or serve, a Statement of Claim, or seeking an order that the Plaintiffs' claims proceed by way of pleadings had been filed. Nor had the matter been raised at the pre-trial directions hearing on 3 May 2022, or otherwise prior thereto.
On 20 May 2022, the Plaintiffs filed a notice of motion in which they sought an order that leave be granted "to file and serve a statement of claim in the form of the statement of claim attached as a schedule to this notice of motion" and an order that the "relief sought in the statement of claim be heard at the hearing commencing on 31 May 2022".
In support of the notice of motion, the Plaintiffs relied upon an affidavit sworn on 20 May 2022 of the Plaintiffs' solicitor. In that affidavit, Mr Buchanan annexed some copy documents. He did not provide any reasons why the Plaintiffs had not sought the relief earlier.
(In the cross-examination of the first, and of the second, Plaintiffs, it is clear that each of them was aware of the sale of the properties to which reference was previously made, by Carmelina in 2017, although each may not have known how the proceeds of sale had been disbursed: Tcpt, 1 June 2022, p 148(27-49), 202(14-21).)
Administratively, and urgently, the Court listed the notice of motion on 23 May 2022, and senior counsel for the parties both appeared. Unsurprisingly, Mr Alexis SC, on behalf of the Defendants, objected to the filing of the proposed Statement of Claim in these proceedings. Counsel for the Defendants provided detailed written submissions setting out the reasons for their objection.
In these circumstances, somewhat surprisingly one might think, Mr Ellison SC said that he was not in a position to deal with the written submissions of the Defendants. The legal representatives agreed that the hearing dates should not be vacated.
Senior counsel for the Defendants then stated that if the Plaintiffs filed the proposed Statement of Claim in New South Wales, the Court would be asked to summarily dismiss the Statement of Claim upon the basis that this Court had no jurisdiction to determine the proceedings raised by that Statement of Claim.
[13]
The separate proceedings
The Defendants, on 25 May 2022, filed the notice of motion seeking an order that the separate proceedings be dismissed pursuant to UCPR r 13.4, and s 61 of the Civil Procedure Act, and, in the alternative, that the whole of the Statement of Claim filed on 25 May 2022 be struck out pursuant to UCPR r 14.28. They also sought costs of, and incidental to, the separate proceedings, including the costs of the notice of motion, calculated on the indemnity basis.
(Presumably, the reason for seeking the costs calculated on the indemnity basis, was that the Defendants had provided written submissions to the Court, on 23 May 2022 setting out the bases for the Court's lack of jurisdiction.)
In support of their notice of motion, the Defendants relied upon an affidavit of Mr Di Girolamo, filed in the Probate and family provision proceedings, in which he set out a summary of the events that had occurred commencing 19 August 2020, the date on which the Defendants had caused to be filed a Notice of Intended Application for Probate of the 2012 Will.
In the Statement of Claim, in broad terms, the Plaintiffs sought an order to extend the time prescribed by s 41(8) of the Succession Act 1981 (Qld), and orders under s 107 of the Powers of Attorney Act 1998 (Qld), that compensation be paid to the Plaintiffs in respect of the sale of three properties, located in Queensland, in 2017, by Carmelina, as the Attorney for the deceased and Maria.
The properties referred to were two properties situated at Coolangatta Road, Coolangatta (to which I have earlier referred as No 5 and No 6) and the Tweed Street property.
As stated, Carmelina sold each of these properties using the registered general enduring Power of Attorney, executed by each of the deceased and Maria, pursuant to s 163B of the Conveyancing Act 1919 (NSW). In relation to No 5, the evidence revealed that it had been purchased by the deceased and Maria in May 2009 and was sold for $401,000. In relation to No 6, the evidence revealed that it had been purchased by the deceased and Maria in May 2009 and was sold for $442,000. In relation to the Tweed Street property, the evidence revealed that it had been purchased by the deceased and Maria in August 2000 and was sold for $330,000.
The Plaintiffs claimed that the sale of each of the Queensland properties resulted in the ademption of the devise of any interest therein to them, respectively, under either the 2012 Will or the 2005 Will.
[14]
Another matter raised late by the Plaintiffs
Shortly before the matter was adjourned on 2 June 2022, in submissions in reply, senior counsel for the Plaintiffs informed the Court that the statement that had previously been made that in the event that the 2005 Will was found to be the last valid Will, the Plaintiffs would not seek a family provision order, was sought to be withdrawn.
Apparently, whilst notice of the application to withdraw the admission had been given to the Defendants' solicitors by letter dated 18 May 2022, it was not raised with the Court at any time previously during the hearing. No explanation was provided for the failure, by the legal representatives of the Plaintiffs, to do so.
Apparently, the application came as a surprise to counsel for the Defendants as senior counsel stated that he would "need to consider and get instructions on whether or not the case would have been conducted in anyway differently had the concession not been made": Tcpt, 2 June 2022, p 294(45-49).
Having reserved the decision, and in order to see if the application could be resolved between the parties, I adjourned the matter until 2:00 p.m. on 3 June 2022. Shortly before the matter was called, the parties sent to my Chambers a form of Short Minutes of Order in the following terms:
"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."
[15]
The Witnesses
Each of the parties, as well as a number of other witnesses, were cross-examined. I shall deal firstly with the witnesses who had no interest in the result of the proceedings, I shall then turn to my impressions of each of the parties.
The Defendants relied upon the evidence of Father Kariba, to whom I have already referred, who was closely, but ineffectively, cross-examined. I found him to be a careful, truthful, forthright, witness, who had a clear, and precise, recollection of the events that had occurred on 19 December 2012, the date of the execution of the 2012 Will.
Senior counsel for the Plaintiffs did not submit that Father Kariba was not telling the truth. Even without that concession, I have no hesitation in accepting his evidence, some of which I set out below.
Father Kariba made one affidavit sworn on 2 March 2021. It was 17 paragraphs, spanning three pages. I have taken what follows from the affidavit evidence and from his oral evidence.
Father Kariba stated that he was ordained, in Kenya, as a priest in the Roman Catholic Church in July 2003. He went to Italy in 2004 for his doctoral and post-doctoral studies, the research for which he undertook in Italian. He went to Sicily in 2004 and then to Poggioreale in 2006, where he lived until 2013.
He said that he was fluent in Italian and was reasonably familiar with the Sicilian dialect, having lived in Sicily for six years at that point in time and, whilst there, having conducted religious services in Italian and Sicilian.
He could also speak English as, being a researcher, it was a language that he had used in his studies. It was the language that he had used for primary school, for secondary school, and for his eight years senior training. When he studied for a philosophy degree, and a biology degree, he did so in English as he did when he continued with his research, most of his consultations were done in English. (There was no doubt about his command of language, as he gave his evidence in the English language, without the aid of an interpreter.)
He became well acquainted with the deceased and Maria as they were regular attendees, at Sunday Mass, at the parish at Poggioreale, where he was the Priest. They had also been regular visitors to his home, and he had visited the deceased and Maria at their home "many times". They would have coffee together at a local cafe. He said that "it was interesting to hear their stories, how they have lived outside Sicily and, and how they have toiled in their lives": Tcpt, 31 May 2022, p 67(44)-68(9).
[16]
The first Plaintiff
Maree-Marcelle, the first Plaintiff, swore three affidavits in these proceedings, the first was sworn on 12 February 2021 and comprised 191 paragraphs, spanning 27 pages along with Exhibit MMB-1 which spanned 55 pages; the second was sworn on 13 February 2022 and comprised 44 paragraphs, spanning nine pages; the third was sworn on 14 May 2022 and comprised 26 paragraphs, spanning six pages.
She gave evidence that she had moved into No 57 with her mother and the Claudia in September 2002, and that she had lived there until February 2011, with the exception of a three-month period, immediately following Vincenza's death, where she, and her siblings, lived with Daniela at her house.
Part of this evidence was not entirely accurate as Mr Ballam had given evidence that he had met Maree-Marcelle in the United Kingdom in about 2005, and that she had lived there until about 2007, with the exception of approximately two and a half weeks when she had returned to Australia for Benjamin's 21st birthday: Tcpt, 1 June 2022, p 110(5-31).
Prior to moving into No 57, she had lived with her parents in Moorebank. When she moved in, with her mother and Claudia to No 57, she was about 20 years old. During cross-examination, it was put to Maree-Marcelle that the living arrangement at No 57 was pursuant to a tenancy agreement dated 15 November 2002 (Ex D6), with rent of $300 per week being paid. She agreed that there was a tenancy agreement when they had moved into the property but said that this changed after her mother had died. She did not recall there being another tenancy agreement: Tcpt, 1 June 2022, p 164(44-48). However, she agreed that, when she ceased living at No 57 in February 2011, the rent was $350 per week.
Maree-Marcelle gave evidence of her relationship with the deceased, stating that the deceased "was a man of little patience, however I have no doubt that he loved us dearly". She stated that, at all family functions, dinners and gatherings, he would always ask her "are you OK. Do you need anything?" There were also many times when her grandparents would give her $50 and say, "Don't tell your Aunties or your cousins".
In her oral evidence, Maree-Marcelle stated that she would attend her grandparents' house at Canada Bay for family chats, family gatherings, dinner, lunches or coffee. She stated that her grandparents would come over to No 57 once a week for "more of a stop by visit, have a coffee": Tcpt, 1 June 2022, p 143(18-37). The family gatherings, which involved one, or both, of the Defendants and the children of each, usually occurred at Daniela's home.
[17]
The second Plaintiff
Claudia, the second Plaintiff, swore three affidavits in these proceedings, the first was sworn on 12 February 2021 and comprised 173 paragraphs, spanning 23 pages along with Exhibit CP-1 which spanned 66 pages; the second was sworn on 13 February 2022 and comprised 30 paragraphs, spanning six pages; the third was sworn on 13 May 2022 and comprised nine paragraphs, spanning three pages.
She gave evidence that, before her mother's death, she had "quite frequent" contact with her grandparents, stating that she would either travel to their home in Canada Bay, or that her grandparents would visit the Moorebank property for lunch, or coffee, on their way back from visiting their holiday homes: Tcpt, 1 June 2022, p 185(26-43).
She stated that after Vincenza's death, she would often speak to her grandmother three to four times a week on the telephone, and that her grandparents would visit them at No 57 to check in on their general wellbeing. She would also visit her grandparents' house to feed the dogs, check the mail and take the bins out. If her grandparents were home, she would have dinner with them: Tcpt, 1 June 2022, p 186(1-21). This continued for about "a year or so" after Vincenza's death. She stated that she would speak to Maria more than she spoke to the deceased.
Claudia gave evidence that she lived at No 57 from September 2002 until the beginning of 2008, when she moved out to live with her then partner: Tcpt, 1 June 2022, p 191(45-48). However, for a period of three months after her mother's death, the Plaintiffs had all lived with Daniela.
In cross examination, Claudia stated that they were not required to pay rent for this period. Nor were they required to pay rent for approximately five weeks after the Plaintiffs moved back to No 57: Tcpt, 1 June 2022, p 191(19-35). This evidence was inconsistent with what had been stated in her affidavit, namely that "[t]he moment we moved back we had to start paying rent again": Affidavit, Claudia Puglia, 12 February 2021 at par 120. (The reasons, if any, for that inconsistency was not explained.) In any event, Claudia had not asked the deceased or Maria for an abatement of rent - it "just happened".
In late 2005, after accumulating a debt of approximately $50,000 which she was unable to repay, Claudia became bankrupt: Tcpt, 1 June 2022, p 193(25-30), 194(41-44). She acknowledged that the decision to declare bankruptcy was made "after a lot of careful consideration and soul searching".
[18]
The third Plaintiff
Benjamin, the third Plaintiff, swore two affidavits in these proceedings, the first was sworn on 11 May 2021, comprising 86 paragraphs spanning 13 pages; the second was sworn on 15 May 2022 and comprised four paragraphs, spanning three pages.
Prior to moving in to No 57, he had lived with a friend for about 6 months because he was working at Moorebank. He had then lived in No 57 from early 2003 until January 2014, except for a period of approximately three months following his mother's death, when, with his siblings, he lived with Daniela: Tcpt, 1 June 2022, p 129(38-43).
He agreed that throughout the period of occupation of No 57, rent together with utility expenses, were being paid by his mother, and then by the occupants, being him and one, or both, of his sisters. At the time he moved in, the rent being paid was $300 per week. He accepted that in the following years, the rent increased, and it was paid by whoever of the Plaintiffs were in occupation. (He understood that the rent that was being paid by the tenants in the unit below was "about the same".)
He stated that, thereafter, his grandparents would "pop-in" to visit at No 57, when they would drop off fruit, vegetables and food to store in the freezer. They would also give him $50 or $20 "just to have it": Tcpt, 1 June 2022, p 116(39)-117(2). Otherwise, the contact was by telephone, when he would drop into their home, or at family gatherings, involving the Defendants. He agreed that a fair summary was "that your grandparents would typically ask you if you were okay, whether you needed anything, and that was really the extent with the communication that you had with them over those years": Tcpt, 1 June 2022, p 126(18-23).
He also stated that during the couple of months immediately following his mother's death, in September 2003, there were regular conversations, phone calls, and visits with each other seeing how the other was doing: Tcpt, 1 June 2022, p 115(34-37). They would come and see how the Plaintiffs were, drop off some fruit and vegetables, and they would also go downstairs to see the tenants who were living there at the time.
He gave evidence that, when his grandparents were away from Sydney, he would look after their dogs, on occasion. He stated that he would also do "little fixes downstairs, screwing in things, light bulbs for the tenants downstairs to help them out": Tcpt, 1 June 2022, p 119(41-45).
[19]
The first Defendant
Carmelina swore three affidavits in these proceedings, the first was the affidavit of executor which was sworn with the first Defendant on 3 December 2020. It comprised 15 paragraphs and spanned five pages. The second was sworn on 23 September 2021 and comprised 14 paragraphs, spanning four pages; the third was sworn on 6 December 2021 and comprised 155 paragraphs, spanning 23 pages.
She is now retired, although she had previously worked as a schoolteacher.
Overall, I found Carmelina to be a calm, temperate, responsive, and sincere, witness who I considered was endeavouring to tell the truth. I found her evidence was detailed, cogent, and was given in a clear and open way. She made concessions when the answer accorded with her recollection, and I found that the evidence that she gave was consistent with, and supported by, other evidence. I reject any suggestion that I should not accept her evidence.
Carmelina described the deceased as a very strict man, who was a product of both his generation, and of his general customs, practices and traditions. He was not a "warm, fuzzy" type of person, although there was no doubt that he loved, and was very protective of, his family. She did not receive any particular emotional support from him, and stated he was a very stubborn, proud, and an unyielding, person. She also stated that if he was offended by something, he did not get over it as he felt it was a deep blow to his sense of honour. She said that he was authoritarian, not very affectionate and his family reputation was of paramount importance to him.
She said that it was the deceased who was the decision maker, although he and Maria, would usually make financial decisions together. They had very good business acumen.
Carmelina gave evidence of her knowledge of the contact that the deceased had with the Plaintiffs. Whilst she acknowledged that she would not always be present, her parents would tell her of the contact and in giving her evidence, she had relied upon what she was told.
After the death of Vincenza, in giving evidence about that contact, she also relied on what her parents, nieces and nephew had told her, and also her own observations. At the time, she was living around the corner from them, so she saw them often.
She admitted that after Vincenza died, the deceased was a sympathetic grandparent towards the Plaintiffs, but she did not observe that he considered he had to look after them because now they had no mother, and their father was not available. She said, in cross-examination, he did not ever appear to feel that he had to take on a parental role. If he had, he had never said that to her.
[20]
The second Defendant
Daniela, the second Defendant swore two affidavits in these proceedings, the first was the affidavit of executor which was sworn with the first Defendant on 3 December 2020. It comprised 15 paragraphs and spanned five pages. The second was sworn on 6 December 2021 and comprised 57 paragraphs and spanned eight pages.
Whilst she was endeavouring to assist the Court in answering questions, I think that her role in the life of the deceased, particularly in the last few years of his life was not as close as that of Carmelina. By way of example, following her parents' move to Italy in 2010, she saw them only once, for 5 weeks, in 2015, when she attended the wedding of the first Defendant's daughter. Naturally, she saw much more of them when they returned to Sydney.
She also described the deceased as a strict man, with traditional family views although his paternal instincts were not strong. His family reputation was extremely important to him: Affidavit, Daniela Cantale, 6 December 2021 at par 12.
Daniela gave evidence that the deceased wanted to enjoy his retirement and did not want to babysit his grandchildren. Nor did he wish to be disturbed, or put out, by his children, or grandchildren. If she ever asked the deceased if he was busy, he typically asked "why?" She stated that she knew this was because she might ask him to babysit. His usual response to her was words to the effect of "unless it's absolutely necessary, we're busy": Affidavit, Daniela Cantale, 6 December 2021 at pars 14-16.
The deceased often said to her words to the effect of "I grew up my kids and worked hard. Now it's your turn to grow up your kids": Affidavit, Daniela Cantale, 6 December 2021 at par 15. She also did not observe the deceased being concerned that the Plaintiffs "may, as it were, go astray or lack guidance from an adult": Tcpt, 2 June 2022, p 247(12-14).
After the deceased and Maria moved to Italy, Daniela spoke to them regularly on the telephone. She stated that she would always speak to the deceased first so that he could tell her what he wanted to say, and then he would pass the telephone to Maria: Affidavit, Daniela Cantale, 6 December 2021 at par 17.
She visited them once, in 2015, whilst they were in Italy, being when she attended the wedding of her niece (not Maree-Marcelle). During her visit, which spanned 5 weeks, she stayed with them at their home.
[21]
The medical evidence
I have earlier mentioned that Maree-Marcelle filed a general caveat on 14 December 2020, and then many months later, on 6 April 2022, filed the amended Defence to the Cross-Claim, in which the positive allegations of a lack of testamentary capacity and lack of knowledge and approval were raised.
It seems that at the time of filing the general caveat, and thereafter, the Plaintiffs had no medical evidence to support the allegation of a lack of capacity in December 2012. The affidavit evidence of Father Kariba was served in early March 2021.
The copy medical records tendered at the hearing were only obtained following the issue of subpoenas, to hospitals and to doctors, on 20 April 2022 and 3 May 2022. Again, no explanation for the late service of subpoenas was provided.
I have earlier referred to the particulars of the lack of capacity referred to in the amended Defence to the Cross-Claim, namely that the deceased suffered "cognitive impairment" and "the deceased was suffering from developing dementia of the Alzheimer's type".
The Plaintiffs relied upon the contents of the Death Certificate, completed, by Carmelina, which disclosed as one of the causes of death "Advanced alzheimer's dementia, years".
A Death Certificate issued by the Registrar of Births, Deaths and Marriages in New South Wales is admissible in legal proceedings as evidence of the entry to which the certificate relates, and the facts recorded in the entry: Births, Deaths and Marriages Registration Act 1995 (NSW) s 49(2).
Bearing in mind the medical evidence, to which I shall next refer, and the date the Death Certificate was issued, namely, 26 June 2020, it is unsurprising that the entry was made. It does not mean that the condition was suffered in 2012.
There is no medical evidence, at all, going to the deceased having suffered from either of these conditions at the time he made the 2012 Will. Indeed, the deceased's treating physician between 17 March 2010 and 31 December 2012, Dr Rosario Drago, stated in a letter dated 27 April 2022, which forms part of an email chain between the Defendants' solicitor and Dr Drago, including an email dated 13 April 2022, in the Italian language, from that solicitor to Dr Drago and an email in reply from Dr Drago dated 27 April 2022, with no content other than attaching the statement, written in Italian, that states:
"I have no recollection and have no documents to confirm a diagnosis of Alzheimer's dementia or other cognitive impairment".
[22]
The Law - the Probate Claim
I have dealt with the law relevant to the Cross-Claim in which the Defendants seek a grant of Probate in solemn form of the 2012 Will, most recently, in Lim v Lim [2022] NSWSC 454.
In that case, I noted, at [2], that the Court's task in a Probate suit is "to ascertain what (if anything) was the last true will of a free and capable testator. The focus of the enquiry is upon the process by which the document which it is sought to admit to proof was produced. Other matters are relevant only insofar as they illuminate some material part of that process. Probate actions become unnecessarily discursive and expensive and absorb disproportionate resources if this focus is lost": Wharton v Bancroft [2011] EWHC 3250 (Ch) at [9] (Norris J).
I also noted at [4] the comments of Lord Neuberger, then the Master of the Rolls, in Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430 at [16], that:
"…. 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."
I also noted, at [217], that "[T]he criteria in Banks v Goodfellow are not matters that are directly medical questions, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for common sense judicial judgment on the basis of the whole of the evidence": Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197.
I dealt with the law on testamentary capacity at [338]-[359] as follows:
"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."
[23]
The Submissions - the Probate Claim
As earlier stated, senior counsel for the Plaintiffs did not submit that Father Kariba's evidence should not be accepted. He submitted that "we just have to accept, and your Honour may well do this, [Father Kariba's] word that the translation was a true translation, and that, ultimately the deceased knew and understood what the translation of the words "testamentary discretionary trust" were, we don't know, the expression "for life", we don't know; there are a lot of legal terms but they weren't inserted by a lawyer, and it's reasonable to submit that they were never explained. I can't put it any higher than that…": Tcpt, 2 June 2022, p 258(9-15).
Senior counsel submitted that the circumstances of the creation of the 2012 Will were "sufficiently unique for the Court to be concerned that in the absence of a lawyer in circumstances where someone cannot speak English, that we have a will that was read back in Italian", where "he didn't read the will verbatim", that there was a residual doubt substantial enough to preclude a belief that the 2012 Will is the will of a testator who possessed sound mind, memory and understanding at the time of its execution: Tcpt, 2 June 2022, p 256(2-14); Worth v Clasohm (1952) 86 CLR 439 at 453; [1952] HCA 67.
Senior counsel also did not submit that the Court should not accept the evidence of Mr Maniscalco. However, he submitted that his conversation with the deceased was general and not sophisticated, whilst not saying that it ought to have been otherwise.
Senior counsel for the Plaintiffs also submitted that the Death Certificate, completed by Carmelina, and the narrative evidence on behalf of the Plaintiffs, provide further support to the proposition that the deceased lacked testamentary capacity at the time the 2012 Will was executed. Relevantly, one of the causes of death listed on the deceased's Death Certificate is, as I have previously mentioned, "Advanced alzheimer's dementia, years".
As I have outlined above, the Plaintiffs relied upon medical evidence contained in records obtained from 2016 onwards, to establish that there was a sufficient doubt as to the deceased's testamentary capacity in 2012.
In his oral submissions, senior counsel for the Plaintiffs said (Tcpt, 2 June 2022, p 258(32-36)):
"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".
[24]
Determination - the Probate Claim
I turn now to apply the above principles of law to the facts as I have found them. It is necessary to read what follows in the context of what has been written earlier in these reasons.
I am satisfied that the 2012 Will was duly executed. There was simply no challenge to Father Kariba's evidence that the deceased signed the 2012 Will in his presence and in the presence of Professor Zummo and that each then signed the Will in the deceased's presence.
It is important to note that the Court is not engaged in some form of approval or disapproval of the dispositions made in the 2012 Will. The Court cannot substitute its own judgment for that of the deceased in relation to what would be a proper disposition of his estate. The task of the Court is to assess all of the relevant evidence and then, drawing such inferences as it can from the totality of that material to reach conclusions as to the facts on the balance of probabilities, remembering that the question is whether the contents of that Will do truly represent the deceased's testamentary intentions.
In any event, the 2012 Will was rational. Whatever the state of each Plaintiff's relationship with the deceased, it was rational for one spouse to confer substantial testamentary benefits on the other, particularly after such a long marriage, and then leave the bulk of his assets in remainder to his two adult surviving children.
Applying the vigilant and careful examination that is appropriate, having carefully considered all of the evidence, lay and medical, and remembering that to find incapacity and thereby invalidate a formally valid will is, in the words of Gleeson CJ in Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284 at 290, "a grave matter", I am affirmatively satisfied, on the balance of probabilities, in accordance with Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, or now, s 140(1) of the Evidence Act 1995 (NSW) that the deceased did have testamentary capacity at the time he gave instructions for, and then executed, the 2012 Will. In this regard, the evidence of Father Kariba and Mr Maniscalco constituted more powerful evidence on the issue of the validity of the 2012 Will than any other evidence.
I am also affirmatively satisfied of the deceased's knowledge and approval of the 2012 Will and that there were no "suspicious circumstances" which warrant a higher bar for proof of knowledge and approval.
[25]
The Law - Family Provision Claim
Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out much of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they be able to follow the reasoning, understand the principles, and for each to be satisfied that I have considered the evidence and the submissions in their application.
The key provision is s 59 of the Act. As earlier stated, the Court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons who may make an application, or on whose behalf an application may be made. Relevantly, one category is "a person who was, at any particular time, wholly or partly dependent on the deceased person, and who is a grandchild of the deceased person": s 57(1)(e) of the Act. There is no age limit prescribed by the Act in the case of a claim by a grandchild.
Because there was an issue about eligibility, it is necessary to say something more about this topic.
In Chisak v Presot [2021] NSWSC 597, I wrote in relation to this question at [314]:
"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."
The same may be said in the present case. An applicant cannot succeed except by virtue of a combination of status (being a grandchild) and actual dependency (whole or partial).
I take some of the principles on the determination of this element of eligibility to be:
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.
[26]
The Submissions - the Family Provision Claim
Counsel for the Plaintiffs submitted that the Plaintiffs' eligibility arises under s 57(1)(e) of the Act. It was submitted that they were dependent on the deceased for accommodation, as they had paid less than market rent to occupy No 57. It was submitted that, had they been required to rent premises on the open market, they would have been required to pay a greater rent.
I do not accept this submission as there was really no evidence to substantiate this submission for almost all of the period during which one, or other, of the Plaintiffs lived there. The evidence established, contrary to the evidence given by them, that, for all but a short period of about two months following the death of their mother, the Plaintiffs had been required to pay market rent for occupation of No. 57 which was at least comparable to the rent being paid for the unit below.
In closing submissions, senior counsel submitted that, for two months after their mother died, and for five weeks thereafter, the Plaintiffs did not pay rent for No 57. He submitted that (Tcpt, 2 June 2022, p 266(19-22)):
"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."
Interestingly, he had earlier described this as "an indulgence".
In addition, senior counsel submitted that the Plaintiffs were financially dependent on the deceased because the rental bond was dispensed with in the original lease, which indicates that the deceased was able to give the Plaintiffs accommodation that they would not have been able to acquire on the open market.
Senior counsel relied upon the evidence given by the Plaintiffs of conversations with Maria and the Defendants that the money the Plaintiffs had been paying in rent would be used to pay down the mortgage on No 57, and that, in time, that property would belong to the Plaintiffs. He also pointed to the clause in the 2005 Will which gifted No 57 to the Plaintiffs. I have earlier concluded that I do not accept the evidence of any of the Plaintiffs on this topic but rather prefer the evidence of each of the Defendants.
[27]
Determination - Family Provision Claim
I turn now to the determination of the family provision claim made by each Plaintiff.
Drawing all of the facts together, I am satisfied that the following facts have been established:
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.
[28]
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
By email sent on Monday, 8 August 2022, the Plaintiffs' solicitors responded to my Associate in the following terms:
"…
Thank you for your email.
The plaintiffs will not make any further submissions."
On 10 August 2022, the Defendants' solicitors sent an email to my Associate attaching written submissions of counsel. I will return to these submissions later in these reasons.
Rather, the Plaintiffs put the Defendants to proof of some of the allegations asserted in the Cross-Claim including that the 2012 Will had been duly executed. (There is, of course, a difference between not admitting, or denying, due execution, and affirmatively alleging that the deceased's signature on the 2012 Will was not authentic.) There is no doubt, however, that the Plaintiffs were actively pursuing a defence of the Cross-Claim and opposing the grant of Probate of the 2012 Will to the Defendants.
Subsequently, in an amended Defence to the first Cross-Claim, filed on 6 April 2022, the Plaintiffs asserted that the deceased lacked testamentary capacity when he made, and that he did not know and approve of the contents of, the 2012 Will. The particulars of the allegations provided were that "the deceased suffered cognitive impairment" and "the deceased was suffering from developing dementia of the Alzheimer's type". In doing so, they advanced a positive case of the invalidity of the 2012 Will at this time.
Whilst it will be necessary to return to the substance of the claims made, senior counsel for each of the parties agreed that the only living attesting witness to the deceased's signature on the 2012 Will is Father Onesimus Kamau Kariba, a priest ordained in the Roman Catholic Church. He is the only person who has direct knowledge of the circumstances in which the 2012 Will was prepared, and executed by the deceased, and the only person who could testify to those circumstances. He had written out the 2012 Will, upon instructions from the deceased, whilst the deceased and Maria were living in his Parish in Poggioreale, Trapani, a small town in western Sicily, Italy.
Senior counsel for the Plaintiffs described Father Kariba as an "amanuensis" (a person whose job is to write down what another person says or to copy what another person has written) or a "scribe": Tcpt, 3 May 2022, p 4(4).
At the date of the hearing, Father Kariba was working at a mission in Kenya and was not available to attend the hearing in person. He swore one affidavit in the proceedings that was read, and, without objection, he gave his oral evidence, including in cross-examination, remotely. I shall return to his evidence later in these reasons.
The Plaintiffs accepted that no inference should be drawn from the failure to call evidence from the other attesting witness. There was no dispute that Professor Gaetano Zummo, the second attesting witness to the deceased's signature on the 2012 Will, had predeceased the deceased, and that he had not sworn, or affirmed, any affidavit as to the circumstances in which the 2012 Will was prepared and executed.
Father Kariba gave evidence, orally, about Professor Zummo's role in the preparation, and execution, of the 2012 Will.
To digress, briefly, it should be mentioned that Maria made a Will, also, on 19 December 2012, her signature on which was also witnessed by Father Kariba and Professor Zummo. Probate of that Will was granted, but her estate has not been administered.
The parties agreed that it would be necessary to determine the Cross-Claim first, and that was the way that the hearing proceeded. Potentially, there were difficulties, to which I shall refer, caused as a result of matters raised by the Plaintiffs' legal representatives, which meant, depending upon the result of the case, that the case would need to be adjourned part heard.
Following the delivery of these reasons, it will not be necessary to adjourn the proceedings, other than to determine how the costs of the proceedings should be borne if the parties are unable to reach agreement.
In the probate part of the proceedings, the central questions that needed to be determined, and my conclusions, are:
1. Was the execution of the 2012 Will in conformity with the internal law in New South Wales at the time of the deceased's death? I am satisfied that the 2012 Will was so executed.
2. Did the deceased have testamentary capacity when he made the 2012 Will? I conclude that he did.
3. Did the deceased know and approve the contents of the 2012 Will? I conclude that he did.
4. Are there suspicious circumstances, and, if so, do they displace any presumption of knowledge and approval? I conclude that there are not.
5. How should the costs of the probate proceedings be determined? It is not possible to determine that question as part of these reasons.
There is no property that could be designated as notional estate of the deceased. It follows that it is only necessary to refer to the estate of the deceased.
Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order in respect of the estate of a deceased person. It is the precondition of eligibility that must be satisfied for the making of a family provision order.
The only category of eligibility relied upon by the Plaintiffs is s 57(1)(e) of the Act, namely, that each Plaintiff is a person who was, at any particular time, wholly or partly dependent on the deceased, and who is a grandchild of the deceased.
Whilst there was no dispute that each Plaintiff is a grandchild of the deceased, there was a substantial dispute that each was wholly, or partly, dependent on him.
In the case of a person who is, relevantly, an eligible person by reason only of sub-paragraph (e) of the definition of "eligible person" in s 57, the Court must also be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application: s 59(1)(b) of the Act.
The Act does not specify the "factors which warrant the making of the application" and as Pembroke J noted, in Wilcox v Wilcox [2012] NSWSC 1138 at [16], "[n]o legislative assistance is given as to the intended scope or meaning of this enigmatic requirement".
However, it is clear that the provision requires the eligible person to be someone who would be a natural object of the deceased's testamentary recognition: Re Fulop deceased; Fulop v Public Trustee; Bide v Public Trustee (1987) 8 NSWLR 679 at 681 (McLelland J); Lodin v Lodin (2017) 16 ASTLR 576; [2017] NSWCA 327 at [8]-[10] (White JA), [106]-[107], [114]-[117] (Sackville AJA); Khadarou v Antarakis [2022] NSWCA 99 at [9] (White JA, with whom Kirk JA and Basten AJA agreed).
Counsel for the Defendants did not make any submissions, in writing, dealing with the question whether there were any such factors. However, during the hearing, in answer to a question from the Bench, senior counsel for the Defendants said that submissions would be made that there were no such factors: Tcpt, 1 June 2022, p 100(22-29).
Subsequently, during final submissions, the Defendants accepted that there were factors warranting the making of the application by each Plaintiff: Tcpt, 2 June 2022, p 289(16-29). The concession was aptly made. I shall refer to these factors later in these reasons.
Assuming that the Court is satisfied that each Plaintiff is an eligible person and that there are factors warranting the making of her, and his, application, the Court must then be satisfied that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of each Plaintiff has not been made by the Will of the deceased.
Again, counsel for the Defendants did not deal with this issue in their written submissions, but, later, in answer to another question from the Bench, senior counsel stated that, in the event that each of the necessary findings were made, the Defendants accepted that adequate provision for the proper maintenance, education or advancement in life of each Plaintiff had not been made by the Will of the deceased.
What would then have to be determined is what order for provision, if any, out of the estate of the deceased, did the Court think ought to be made for the maintenance, education or advancement in life of each of them, having regard to the facts known to the Court at the time the order is made: Tcpt, 1 June 2022, p 100(31-49).
The Act specifically provides that the interests of a beneficiary cannot be disregarded, even though she, or he, has not made a claim: s 61(1) of the Act. A beneficiary is entitled to rely upon the terms of the deceased's Will and her, or his, competing claim, respectively, as a chosen object of the deceased's testamentary bounty. In the family provision proceedings, it will be necessary to refer to the provision made for each Defendant.
Neither of the Defendants gave evidence of her financial and material circumstances. In those circumstances, the Court may assume that each does not wish her financial resources and financial needs, both present and future, to be taken into account: Matthews v Wear [2011] NSWSC 1145 at [45] (Macready AsJ). The Court is also entitled to infer that as a beneficiary, she, respectively, has adequate resources upon which to live and that she does not wish to advance a competing financial claim upon the bounty of the deceased: Anderson v Teboneras [1990] VicRp 47; [1990] VR 527 at 535-536 (Ormiston J); Sammut v Kleemann [2012] NSWSC 1030 at [135]-[139]; Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [94] (Meagher JA); Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107 at [23] (Basten JA). See also Blendell v Byrne [2019] NSWSC 583 at [113]-[118] and on appeal, Blendell v Blendell [2020] NSWCA 154 at [17] and [42] (Meagher JA, Gleeson JA agreeing).
Yet, neither of the Defendants, as a beneficiary, has to prove an entitlement to the provision made for her, or justify, otherwise, such provision. Nor does each have to explain the decision by the deceased to make the provision that he did for each in the Will: Sun v Chapman [2022] NSWCA 132 at [169] (White JA). His Honour referred to what I had written in Page v Hull-Moody [2020] NSWSC 411 at [171].
As will be read, the question of how the costs of the proceedings should be borne was not the subject of agreement between the parties.
In the family provision part of the proceedings, if each of the Plaintiffs is not an eligible person, none of the other questions earlier referred to, other than costs, need to be determined. Thus, the question that needs to be determined, and my conclusion, is:
1. Is each of the Plaintiffs an eligible person within the meaning of that term in s 57(1)(e) of the Act? I conclude that each is not.
The amount, ultimately, repaid by the deceased and Maria, pursuant to the guarantee, was not the subject of evidence. Thereafter, there was disharmony between the Plaintiffs' father and the deceased. Indeed, the deceased did not wish the Plaintiffs to continue her, and his, relationship with Mario.
The deceased and Maria retired from paid work in about 1989. Between about August 1989 and March 2010, they travelled, extensively, together, spending less than 6 months of the year in Sydney; when they were in Sydney, Carmelina would see them almost daily; when they were not in Sydney, she would call them at least twice per week.
During this period, the deceased had some limited contact with the Plaintiffs. He did not attend any of the school events in which any of them was involved; there were no "sleep overs" by the Plaintiffs at the home of the deceased and Maria; and the Plaintiffs did not attend social events, shop with the deceased, or go on holidays, or otherwise travel with, the deceased and Maria.
There was no evidence that any of the Plaintiffs came, ordinarily, to rely upon the deceased for her, or his, financial, or emotional, needs during their childhood.
In about August 1990, the deceased and Maria purchased an investment property in Craig Avenue, Moorebank (the Moorebank Property). The Plaintiffs and their parents moved there shortly thereafter. They paid rent to the deceased and Maria whilst the family lived there.
Following the separation of their parents in about 2001 or 2002, the deceased and Maria permitted Vincenza and the Plaintiffs to continue to live in the Moorebank property. However, the deceased and Maria leased the Moorebank property to what was described as the Hume Community Housing Association, which, in turn, sub-leased it to Vincenza. The Plaintiffs lived in the Moorebank property, with Vincenza, until about September 2002.
Perhaps, because they were living with, and were dependent upon, their own parents, and then with, and upon, Vincenza, it was not submitted that the Plaintiffs were dependent, wholly, or partly, upon the deceased during the period between 1990 and 2002.
On 13 February 1997, the deceased and Maria appointed Carmelina as the Attorney pursuant to a General Enduring Power of Attorney, which was registered in the Office of the Registrar General in New South Wales. On 21 February 2017, it was also registered pursuant to the Land Title Act 1994 (Qld) and the Land Act 1994 (Qld) at the Queensland Titles Registry. Carmelina gave evidence that she acted in accordance with their directions and instructions when she executed documents as their Attorney.
Vincenza, Maree-Marcelle and Claudia, moved to another property (No 57) owned by the deceased and Maria, in September 2002. The deceased insisted that Vincenza pay rent, at the then market rate, which she did, until her death in 2003.
When they first moved into No 57, it consisted of three apartments, with one apartment, on the ground floor, with two bedrooms, known as Unit 1 (which was otherwise leased), and two apartments, on the second floor, each with one bedroom, known as Units 2 and 3, respectively. Units 2 and 3, together, were equivalent, in size, to Unit 1.
Shortly after they moved to No 57, Benjamin moved in, and, at this time, the wall between Unit 2 and Unit 3 was knocked down, in order to accommodate him.
On 15 November 2002, Vincenza and Maree-Marcelle signed a residential tenancy agreement for Units 2 and 3 of No 57. In the tenancy agreement, the deceased and Maria were described as the landlords, and the rent to be paid was $300 per week, or $150 per tenant. Thus, notwithstanding the family relationship, the deceased and Maria, from the outset, were putting the occupation of No 57 on a formal footing. The formal, commercial, nature of the relationship was also demonstrated by the fact that the residential tenancy agreement was managed by a real estate agency.
There was no evidence of any subsequent leases entered into by the Plaintiffs, although there was evidence that Benjamin had received a notice to terminate tenancy agreement in January 2014, an issue to which I shall return. Despite the lack of evidence, there was no dispute that they, or whichever one, or other, of them occupied No 57, paid rent to the deceased and Maria, except for a short period to which I shall refer.
The deceased and Maria planned a trip to Italy, and then to the USA, in 2010. After a few months in Italy, they decided to abandon their trip to the USA, and they remained living in Italy. They purchased a property in Triscina, Sicily, in 2011. At her parents' request, Carmelina lent them $40,000 towards the purchase of the Triscina property.
Carmelina travelled to Sicily in early 2012 to visit her parents. She had planned to stay for three months as she was turning 50, and the deceased had turned 80.
The deceased and Maria were invited to the wedding of Maree-Marcelle to, her now ex-husband, James, in England in February 2012. Carmelina, initially, was not invited, a matter that made the deceased extremely angry. He stated that he would not attend the wedding if she was not invited. That decision prompted Maree-Marcelle to invite Carmelina to the wedding, and, ultimately, the three of them attended.
Pursuant to the General Enduring Power of Attorney, Carmelina sold four of the deceased's and Maria's properties in February or May 2017. Three of these properties were located in Coolangatta, a coastal suburb on the Gold Coast, Queensland; two were situated at Coolangatta Road, Coolangatta (to which I shall refer to as No 5 and No 6), and one was a property situated at Tweed Street, Coolangatta (the Tweed Street property).
In May 2017, No 57 was sold for $2,200,000. There was some dispute about how the net proceeds of approximately $1,985,000 were applied, and whether any part thereof was used to purchase residential premises in Drummoyne and in Chiswick, which are owned, and occupied, by Carmelina and by Daniela, respectively. Other than the assertion itself, there was no evidence, from the Plaintiffs, to establish the assertion made by them.
In cross-examination, Carmelina, was asked, and she denied that the sale proceeds of No 57 were applied to the purchase of her property in Drummoyne: Tcpt, 2 June 2022, p 236(3-44). Daniela was not asked any questions about using the proceeds of sale to purchase her property.
I shall return to the nature and value of the deceased's estate at the date of the Schedule later in these reasons.
The 2012 Will then provided:
1. The deceased "being of sound mind and disposing memory and not acting under duress or undue influence, fully understanding the nature and extent of all my property and of this disposition there of [sic] I hereby appoint [Father Kariba] to record and write my instructions".
2. The deceased revoked "all former wills and testamentary dispositions and codicils" that he had made and declared "this to be my last will and testament".
3. Maria was to be the executrix and subject to the payment of debts, funeral, and testamentary expenses, and all probate, and other, duties payable in respect of the estate, in consequence of the deceased's death, he left "everything that I own to my wife … for life…"
4. In the event that Maria did not survive the deceased, or if she died within 28 days of the deceased's death, the Defendants were appointed as the executors and the following dispositions were then made.
1. The Annandale property was devised to Carmelina.
2. The Canada Bay property was devised to Daniela.
3. 60% of No 57 (which the deceased did not own at the date of his death) was left to Daniela, and the remaining 40% thereof was left to Carmelina.
4. 50% of the deceased's share in the Terrigal property was left to Daniela, with the remaining 50% to be held on trust for Katia Grazia Cantale "to assist her in life for her disability." (Katia is the daughter of Daniela. She was born 27 weeks premature and developed meningitis whilst in the intensive care unit at hospital. This later developed into cerebral palsy.)
5. The Punchbowl property was left to Carmelina and Daniela in equal shares.
6. 40% of No 5 (which, as will have been read, the deceased did not own at the date of his death) was left to Benjamin, the third Plaintiff; 20% was left to Claudia, the second Plaintiff; and the remaining 40% was left to Maree-Marcelle, the first Plaintiff.
7. No 6 (which, as will have been read, the deceased did not own at the date of his death) was left to Daniela.
8. The deceased's property at Tweed Street, Coolangatta (which, as will have been read, the deceased did not own at the date of his death) was left to Carmelina.
9. The Moree property was left to Carmelina and Daniela in equal shares.
10. The deceased's property situated at Thomson Street, Kiama (which the deceased did not own at the date of his death) was left to Carmelina and Daniela in equal shares.
11. One third of the Poggioreale property was left to Carmelina, one third was left to Daniela, and the remaining one third was left to the Plaintiffs, in equal shares.
12. The Triscina property was left to Carmelina and Daniela in equal shares.
1. The Will also contained the following provision:
"I APPOINT MY DAUGHTERS CARMELINA … AND DANIELA … AS TRUSTEES TO GO AND SEE ABOUT THE TRUST AND SEEK THE ADVICE OF QUALIFIED PROFESSIONALS IN REGARD TO THE TESTAMENTARY DISCRETIONARY TRUST AND MAKE DECISION [sic] ON THE SUITABILITY AND BENEFITS FOR THE ESTATE."
The source of this Clause of the Will was explained by Father Kariba in his evidence. I shall refer to it later in these reasons.
The nature of the liabilities remained the same, although the total amount of the liabilities had increased to $720,638. (The parties did not provide any estimates for the costs of the sale of any of the properties.)
Using the above range of estimates as a guide, the value of the deceased's estate, excluding the costs of the proceedings, based upon the Plaintiffs' estimates, is $6,346,862 and based upon the Defendants' estimates, is $4,108,363. On either value, it is a reasonably large estate.
Regrettably, the parties were unable to reach agreement on the value of the estate at the date of the hearing.
In relation to the family provision proceedings, s 99(1) of the Act provides that the Court may order that the costs of proceedings under Ch 3 of the Act, in relation to the estate or notional estate of a deceased person (including costs in connection with mediation), be paid out of the estate, or notional estate, or both, in such manner as the Court thinks fit. The section confers a discretion in respect of costs that is no more confined than the general costs discretion.
Usually, in calculating the value of the deceased's estate available from which a family provision order may be made, the costs of the proceedings should be considered with circumspection. Unless the overall justice of the case requires some different order to be made, the applicant for a family provision order, if successful, normally would be entitled to an order that her, or his, costs and disbursements, calculated on the ordinary basis, should be paid out of the estate of the deceased, while the defendant, as the person representing the estate of the deceased, irrespective of the outcome of the family provision proceedings, normally will be entitled to an order that her, or his, costs, calculated on the indemnity basis, should be paid out of the estate. The size of the deceased's estate, and the conduct of a party, may justify a departure from what is said to be the usual rule.
As Basten JA (Simpson and Payne JJA agreeing) put it in Chan v Chan (2016) 15 ASTLR 317 at 330; [2016] NSWCA 222 at [54]:
"In considering an amount by way of provision, it is appropriate also to have regard to the diminution of the estate on account of legal costs."
As his Honour had also written, a few years earlier, in Foley v Ellis [2008] NSWCA 288 at [10]:
"... To exclude from consideration the diminution in the estate and hence [the applicant's] expectation of provision, flowing from legal expenses incurred in the proceedings, is arguably inconsistent with the statutory mandate to consider the applicant's position at the time the Court 'is determining whether or not to make such an order'."
It has been said, many times, in the context of a claim for a family provision order, that parties should not assume, in all cases, that this type of litigation can be pursued, safe in the belief that all costs will be paid out of the estate: Carey v Robson; Nicholls v Robson (No 2) [2009] NSWSC 1199 at [21] (Palmer J); Forsyth v Sinclair (No 2) (2010) 28 VR 635; [2010] VSCA 195 at [27] (Neave and Redlich JJA and Habersberger AJA); Harkness v Harkness (No 2) [2012] NSWSC 35 at [18].
Senior counsel agreed, and both submitted, that the Court should not determine as part of these written reasons, how the costs of the Probate and family provision proceedings should be borne. They submitted that there were documents that might be relevant to how the burden of the costs of the proceedings should be calculated and how they should be borne.
Noting, without deciding, that the estimates for the costs and disbursements are accurate, and assuming that all of the costs will be payable out of the estate, the total amount of the estate out of which an order for provision could be made, is in the order of between $3,877,362 and $6,115,862.
Following argument, and in order to permit the legal representatives of the Plaintiffs to consider the merits of the written submissions made on behalf of the Defendants, I considered that the Plaintiffs should not be prevented from filing, and serving, the proposed Statement of Claim in separate proceedings, and that the Defendants should be permitted to file and serve any notice of motion to summarily dismiss those proceedings if they chose to do so. In this way, the hearing dates would not be lost.
The Court then made the following notations and directions:
"1. Notes that the Plaintiff's [sic] present intention is to file and serve a Statement of Claim in NSW seeking relief as set out in the first prayer in a proposed Statement of Claim attached to a notice of motion filed 20 May 2022.
2. Directs the Plaintiff [sic] to inform the Defendant [sic] and the Court when that Statement of Claim has been filed.
3. Notes that any Statement of Claim that is filed in NSW is to be filed and served no later than 10:00 a.m. on Wednesday, 25 May 2022.
4. Directs that the Defendants file and serve any notice of motion to summarily dismiss the Statement of Claim by 10:00 a.m. on Thursday, 26 May 2022.
5. Notes that the Court's present intention is to deal only with the Cross-Claim filed by the Defendants on 7 November 2021 and any notice of motion to summarily dismiss the Statement of Claim at the hearing commencing on 31 May 2022.
6. Reserves the question of costs of today's appearance."
I shall refer to the proceedings that were then commenced by the Plaintiffs, bearing file number 2022/150470, as "the separate proceedings".
The Plaintiffs did not disclose whether they intended to adduce further evidence in support of the claims made in the separate proceedings. However, as submitted by counsel for the Defendants in their written submissions, "at the very least, there would have to be evidence of the property (or properties, depending on whether the 2012 Will or the 2005 Will was admitted to probate) at the time of death".
As also submitted by their counsel, the Defendants "would certainly need time to marshal evidence concerning the sale of the property(s). Preliminary instructions indicate that the property(s) were jointly owned by the deceased and his wife at the time of sale and were heavily mortgaged…".
There was no dispute, then, that the separate proceedings could not be heard during the 3 days allocated for the hearing of these proceedings. The suggestion was made that any notice of motion, filed by the Defendants, seeking summary dismissal, might be determined, first, at the hearing. If the application were successful, then the Cross-Claim and the family provision claim would be dealt with at the hearing. If it were unsuccessful, then there would need to be a bifurcated hearing, with the Cross-Claim being determined at the hearing, and the family provision claim and the separate proceedings being dealt with at a subsequent hearing, with the costs of the additional hearing being reserved.
Whilst somewhat dispirited about the course taken by the legal representatives of the Plaintiffs in making the claims raised in the separate proceedings so late, there was little choice, bearing in mind s 56 of the Civil Procedure Act, but to follow this course.
In the event that the 2012 Will were admitted to Probate, the Plaintiffs' claim for compensation was limited to the sale of No 5, which property they were to receive under that Will. In the event that the 2005 Will were admitted to Probate, the Plaintiffs' claim for compensation was in relation to the sale of all three properties, to one-third of the proceeds of sale of which the Plaintiffs were entitled under the 2005 Will.
Initially, in support of the Defendants' notice of motion for summary dismissal, counsel for the Defendants challenged the jurisdiction of this court. They submitted, amongst other things, that the application for compensation is one that should have been brought in the Supreme Court of Queensland (Powers of Attorney Act s 107(2)).
At the commencement of the hearing, senior counsel for the Defendants accepted that this Court had jurisdiction to hear the matter and stated that bearing in mind the costs and expenses of requiring the Plaintiffs to commence fresh proceedings in Queensland, it would be more expeditious, in time, and cost, to deal with the claims made in the separate proceedings as part of these proceedings.
It was submitted that whilst the Defendants resisted a bifurcated hearing, being one where the Court would determine the Cross-Claim, and go so far as it could, in relation to the Plaintiffs' Summons, to enable the separate proceedings to be properly prepared, it would be necessary to adjourn part heard, to allow each of the parties to serve any further evidence upon which it was intended to rely, and then continue with the hearing and deal with the separate proceedings.
Naturally, as there would be costs and expenses incurred, the Court asked senior counsel for the Plaintiffs whether they were prepared to pay the costs thrown away by adopting this course. Ultimately, senior counsel for the Plaintiffs responded that the costs should be reserved.
Following the conclusion of the evidence, including documents tendered at the commencement of the hearing (Ex D2 and Ex D3), senior counsel for the Plaintiffs accepted that, in the event that the 2012 Will was the last valid Will of the deceased, there would be no compensation payable, as the whole of the proceeds of sale of No 5 had been used to repay a loan secured on that property, with the result that there was no loss for which the Plaintiffs should be compensated: Tcpt, 2 June 2022, p 253(18-44).
It appeared, then, that if the 2005 Will was found to be the last valid Will of the deceased, the approach of the legal representatives of the Plaintiffs would add to the length of the bifurcated hearing caused by the separate proceedings.
In the circumstances, having heard the submissions of counsel, the Court made the following orders:
" …
2. Notes that the Defendants consent to the admission made by the Plaintiffs on 3 May 2022 that in the event that probate of the Will made on 7 February 2005 is granted, they would not pursue the claim for family provision relief as sought in the Summons being withdrawn.
3. Grants leave to the Plaintiffs to withdraw the admission made upon condition that any further costs that are incurred as a result of the withdrawal of the admissions will be paid either by the Plaintiffs or by their legal representatives, as may be determined by the Court."
Nothing more needs to be done, as I have concluded that the 2012 Will is the last valid Will of the deceased. An order dismissing the separate proceedings will be made.
He said that when conversing with the deceased, little was said in the English language, their conversations being in Italian and Sicilian. He said that Maria was fluent in English. He was able to understand each of the deceased and Maria well: Tcpt, 31 May 2022, p 68(11-31).
He stated that, a few days before 19 December 2012, the deceased had attended the parish office and had asked him to set a date to attend the deceased's home, in Poggioreale, to sign a Will of the deceased. He said that the deceased had said to him:
"I know how to save money, but not how to write well. I need my priest to assist me, I just want to leave my family in peace when I die".
Father Kariba stated that this was the first time he had ever been asked to do this by a parishioner. However, he did not refuse the request, and, on 19 December 2012, he attended the home in which the deceased and Maria lived. He arrived at about 9:00 a.m. and remained there until after lunch, about noon or 1:00 p.m.: Tcpt, 31 May 2022, p 64(3-11); 70(21-33). (The writing of the 2012 Will was completed by about noon and then they had lunch.)
The only persons present, during the whole of the time that Father Kariba was there, were the deceased, Maria, and a neighbour, Professor Gaetano Zummo (a local teacher and poetry writer).
He stated that the deceased dictated "the content of what he wanted" in the 2012 Will and had "called his priest and his professor to help draft the will".
With the leave of the Court, and without opposition from senior counsel for the Plaintiffs, Father Kariba supplemented his affidavit evidence with some oral evidence in chief. He described, in more detail, how the deceased had dictated his wishes and intentions in Italian, and Sicilian dialect, and how the instructions had been written down in English. He added that the deceased had prepared for the meeting as he had the various pieces of paper on which the details of the different properties to be devised were written in English. He did not know who had written the details on the paper, but he maintained that it was only the deceased who had identified the beneficiary, or beneficiaries, who was, or who were, to receive the relevant property.
In cross-examination, Father Kariba maintained that it was the deceased who had dictated the dispositions that he wished to make in his Will, although he added that, occasionally, Maria would assist, by providing a house number.
He stated that he had written down what the deceased had dictated to him (which included the percentages of the properties and the names of the beneficiaries), on paper, in English, and that he had then copied the addresses of each of the different properties identified in the 2012 Will from "pieces of paper" which were provided to him by the deceased. He gave evidence that "almost every property had its paper, piece of paper". He had not retained these pieces of paper. The names of the family members were not written on the piece of paper but were dictated by the deceased.
He stated that the deceased had made himself understood with ease; that the deceased made sense, that the deceased told humorous stories of how he came to acquire each property, and other stories involving Maria, when he was listing the various properties that he wished to devise. On occasions, Maria would confirm the spelling of names.
Father Kariba explained that certain phrases, or sentences, that appeared in the 2012 Will, had been provided by Professor Zummo, who, recently, had finished drafting his own Will. His evidence was that Professor Zummo would assist him with the drafting when he needed "an introductory or a conclusive remark". It had been Professor Zummo who had dictated parts of the introduction, and the part of the Will that referred to the testamentary discretionary trust: Tcpt, 31 May 2022, p 72(11-44). He had done so from memory, using the Italian language.
In his oral evidence, Father Kariba stated that he, Professor Zummo and the deceased would discuss, in the Sicilian dialect, what the deceased wanted to include in his Will. Father Kariba would then write this down on another piece of paper and, once satisfied with the wording, Father Kariba then wrote it out again on the document which was the original 2012 Will: Tcpt, 31 May 2022, p 71(29-32). He explained the process (Tcpt, 31 May 2022, p 71(25-27)):
"I had to… I construct the, the sentence. Then I put it on the page, the will page."
Father Kariba explained that he adopted this process because (Tcpt, 31 May 2022, p 71(19-20)):
"I knew it was a will. So, so I had to get it correct… on another piece of paper before putting it here."
Father Kariba stated that the deceased appeared to understand him when he repeated in the Italian language and in the Sicilian dialect, what he had written down in English in the Will. He said that he had repeated exactly what he had written, "and as it was, it was not done in a hurry, as I was reading each part of, of the will he could give his comments how he obtained this property, how much he suffered before having it, and then we could continue, so I read everything that I had written as his will": Tcpt, 31 May 2022, p 65(12-18).
He said that he explained the contents of the 2012 Will to the deceased, including that his children could obtain legal advice, stating "I explained the will and where it was necessary for us to understand what we are saying Professor Zummo could chip in": Tcpt, 31 May 2022, p 79(50)-80(1).
He admitted that he did not read the 2012 Will out to the deceased in the English language, although when he was reading the names of the properties, he had to read them in English. He said that it took "a lot of time" to read the 2012 Will to the deceased in Italian: Tcpt, 31 May 2022, p 75(4).
The deceased had not asked what a testamentary trust was, and that term was not the subject of discussion with Professor Zummo.
When Father Kariba left the deceased and Maria that day, he left the original Will, and the pieces of paper to which reference had been made with them: Tcpt, 31 May 2022, p 71(34)-72(5).
Father Kariba confirmed, in answers to questions from the Bench, that the 2012 Will was signed by the deceased in his presence and in the presence of Professor Zummo, who then each signed the Will in the deceased's presence. After this, the deceased said he was happy he had now made his final Will and that he was 'satisfied' and 'ready to go', and saying 'bring it on': Affidavit, Father Onesimus Kamau Kariba, 3 February 2022 at pars 12-13; Tcpt, 31 May 2022, p 77(1-23).
Father Kariba was asked questions about the deceased's capacity. He stated that the deceased did not require assistance from him, or from Maria, to remind him of what he wanted in his Will: Tcpt, 31 May 2022, p 76(39-50). When asked whether the deceased had said, or done, anything to demonstrate that he understood what was in the Will, Father Kariba stated the deceased said to him "now I have put my things in order" and "then he invited me to bring it on … to sign" in Sicilian: Tcpt, 31 May 2022, p 65(25-27); p 77(1-23).
Father Kariba was asked whether the deceased had any difficulty signing the 2012 Will to which he responded (Tcpt, 31 May 2022, p 75(25-28):
"All that I know that he was not used in writing, so not because he was frail, but it's because he, he was not a writer, he was not used to writing. Let us say illiterate from, from that point of view."
It was not suggested to Father Kariba that the deceased had not signed the 2012 Will freely and voluntarily. He believed that the deceased could understand what he was doing: Affidavit, Father Onesimus Kamau Kariba, 3 February 2022 at par 14.
In cross-examination, he stated that the deceased did not need help from Maria "in remembering things" and that "he didn't need that assistance unless we, we wanted to intervene and talk with what he was doing": Tcpt, 31 May 2022, p 76(43-46). He said it was unnecessary to explain what he had written "because it was his will and I was repeating what he had told me to write down": Tcpt, 31 May 2022, p 77(31-34). There was no doubt in his mind that the deceased knew what he was doing. He had demonstrated to Father Kariba that he had the capacity to formulate his thoughts, to express them in coherent order, and to understand the effect of what he was doing.
When Father Kariba saw the deceased again, by which time he was at another parish, it was in 2014 or 2015. It was the deceased's and Maria's wedding anniversary. He described the deceased as having changed. He said that "I could see that he was transformed, that he was sickening … He was, he was not holding the discussions the way he used to hold the discussions with me. He had - he didn't have that sense of humour that he had before, so about that time Maria told me that his [sic] husband has started having problem with remembering things, forgetting things, and - but we could remember, but we could chat, but I could see he's not the same old Rosario": Tcpt, 31 May 2022, p 76(19-29).
In answer to the question, "Had you seen any of these problems before this time or was this the first time you'd seen any problems with him?", he answered "This was the first time": Tcpt, 31 May 2022, p 76(31-33).
Father Kariba was the only person available with the opportunity to observe the deceased. From the whole of his evidence, I am satisfied that:
1. He had known the deceased and Maria reasonably well by December 2012.
2. He had direct contact with the deceased, at his and Maria's home, for about 3 to 4 hours on the day the 2012 Will was executed.
3. He had taken instructions about the contents of the 2012 Will from the deceased directly. It had been the deceased who had dictated what he wanted to do.
4. The deceased had prepared for the meeting with Father Kariba, and, at the meeting, demonstrated that he had formed his testamentary intentions.
5. Father Kariba did not find the deceased's instructions for the 2012 Will to be unusual.
6. Although Maria was present in the home, she did not, and there was nobody else there to, prompt the deceased as to the dispositions that he wished to make. Other than Father Kariba and Professor Zummo, there was no one else in the house.
7. Father Kariba was satisfied that the deceased had capacity. The Will was in writing and signed by the deceased; the signature was made by the deceased, in the presence of two witnesses, Father Kariba and Professor Zummo and the two witnesses, both of whom attested and signed the Will in the presence of the deceased. The requirements of s 6 of the Act have been met and that the Will was duly executed.
Whilst I do not suggest that the evidence of Father Kariba is definitive, it is of considerable importance, as it is the evidence of the only person available who was able to describe the deceased and the events that had occurred on the day he gave instructions for, and executed, the 2012 Will. Whilst not a legal practitioner, his evidence should be given due weight, although, obviously, the Court must evaluate all of the relevant evidence in relation to capacity.
Another witness, with no interest in the outcome of the proceedings, relied upon by the Defendants, was Peter Maniscalco OAM, who had known the deceased and Maria from about 1985. Although he had not seen the deceased since March 2010, he had travelled to Poggioreale, Sicily, in February 2013, for other reasons, and had met the deceased there. (By sheer coincidence, it would seem, he was related, by marriage, to Professor Zummo.)
Mr Maniscalco's affidavit was made on 24 May 2022.
I found him to be a truthful witness who had a clear recollection of the events that had occurred, on the occasions he had met with the deceased in 2013. He stayed in Poggioreale for about five days. In addition, at least some of his evidence is corroborated by contemporaneous documents which formed part of the evidence: Ex D1. I have no hesitation in accepting Mr Maniscalco's evidence.
Mr Maniscalco said that he had been asked, by the deceased, to bring the original of the 2012 Will, and the original of Maria's Will (made on the same day), back to Sydney, and to give them to Carmelina. With the leave of the Court, he identified the original envelope (Ex D1), which had been sealed when the deceased had handed it to him and which he had brought back to Sydney and which he gave to Carmelina as he had been asked to do.
(I interpolate that the original of the 2012 Will made by the deceased, and the Will made, on the same day, by Maria, with copies, were included in the original sealed envelope with a letter dated 21 December 2012, that is to say a letter dated 2 days after each Will was signed.)
He gave evidence of the conversations that he had with the deceased in February 2013, and in September 2014.
In February 2013, he had met with the deceased for about 90 minutes. He described it as a nice social occasion, during which they shared biscuits and coffee, and spoke about the St Antonio Foundation, with which they both had an association. He recalled that, upon his arrival at the deceased's home, the deceased greeted him in a warm, bubbly, manner, saying to him words to the effect of, "Peter, how lovely to see you. Please sit down, and we will get you some coffee and sweets. Maria, can you please make the coffee". It was mostly a social visit in which the deceased asked him about the Association, how it was going, and he told the deceased various things about the Association. They spoke to each other mostly in Italian and Sicilian, although every now and again there was a word that the deceased would mention in English and Mr Maniscalco replied accordingly. There had been no talk about financial matters or about what property the deceased might own in Sicily or Sydney.
Mr Maniscalco stated that, towards the end of the visit, the deceased handed him an envelope and said words to the effect of:
"Peter, I need you to take this envelope back to Sydney for me and give it to my daughter, Lina. It has my will in it and Maria's will in it. I also have a statue that I'd like you to take back. It's not ready yet, so I'll bring it to you in the next few days".
(Mr Maniscalco gave evidence that he knew both of the Defendants who had attended various functions that were held by the Association. In addition, Carmelina was, and continued to be, a director of the Association, so he had worked closely with her, although they had no recent contact.)
Mr Maniscalco gave similar evidence about his observations of the deceased in relation to his next visit when he visited with the deceased in September 2014, stating that the deceased "embraced me" on that occasion, and that they had an hour-long social visit. Again, the main topic of conversation was the Association with which they both had an interest, although there was other general conversation.
When asked in cross-examination whether, in September 2014, the deceased appeared to be resembling poor health, Mr Maniscalco answered as follows: "[a]ccording to what I saw he was healthy. There was nothing wrong with him": Tcpt, 31 May 2022, p 48(39-43).
Mr Maniscalco saw the deceased again in 2017 or 2018. He stated that on this occasion, it was obvious that the deceased had deteriorated quite substantially. He was in a wheelchair and there was not a lot of communication. He was not like he had known him. The deceased had, by this time, clearly, appeared to have physically and mentally deteriorated.
From the whole of Mr Maniscalco's evidence, I am satisfied that:
1. He had known the deceased and Maria reasonably well by December 2012.
2. He had direct contact with the deceased, at their home, in Italy, a few weeks after the day on which the 2012 Will was executed.
3. When he saw the deceased in early 2013, the deceased was able to remember that he, and Maria, had each made a Will.
4. The deceased wanted the original Wills to be taken to Sydney and to be delivered to his solicitor.
5. From other evidence, the envelope which the deceased handed to him, contained the original and copies of the 2012 Will, which demonstrates a careful planning of the steps necessary to enable the solicitor, and the Defendants, to receive the documents.
The Plaintiffs relied on the evidence of the first Plaintiff's ex-husband, James Ballam. He swore one affidavit, filed shortly before the commencement of the hearing, which was made on 27 May 2022, comprising 30 paragraphs and spanning five pages. Maree-Marcelle had asked him to do so "and remember as much as I could from the time I got married in 2012".
Mr Ballam gave evidence about his wedding with the first Plaintiff in early 2012 in London. He stated that, when he saw the deceased in London, he noticed that he looked "a lot more frail than what he had done the last time I saw him": Tcpt, 1 June 2022, p 104(5-7). He also recalled that, when the deceased met his mother, it was within 10 to 15 minutes that he appeared to have forgotten that the woman to whom he had been speaking was Mr Ballam's mother.
However, in cross-examination, Mr Ballam agreed that the deceased had not met his mother previously and what the deceased had done was to seek clarification, in a conversation, in Italian, with the first Plaintiff, as to the mother's name: Tcpt, 1 June 2022, p 108(41)-109(19). He admitted that forgetting someone's name when introduced to a number of people is a reasonably common thing to occur, particularly with a man that is 80 years of age: Tcpt, 1 June 2022, p 105(37-43).
Mr Ballam agreed that the deceased did not say anything that caused him to think the deceased did not know that his granddaughter, Maree-Marcelle, was getting married; or that he did not know that he was at a wedding; and that, from what Mr Bellam had observed, the deceased was engaging in the occasion of a marriage ceremony and the celebrations that followed that ceremony in the ordinary sort of way that one would expect a grandfather to engage and enjoy himself.
In response to questions from the Bench, Mr Ballam agreed that the deceased was the closest male relative to the first Plaintiff who was present at the reception, although he was unable to recall whether the deceased had made a speech: Tcpt, 1 June 2022, p 111(39)-112(1).
Whilst I have considered it, I do not place very much weight on Mr Ballam's evidence as evidence of incapacity, particularly in light of the clear evidence of Father Kariba and Mr Maniscalco. I found his evidence about the topic unconvincing.
She also stated that, when her grandparents would travel to their holiday houses around Australia, she would speak to them on the phone every day, or every second day. During these trips, she would feed her grandparents' dogs every day and open their mail. She also stated that, when they were not at their holiday houses, her grandparents would visit No 57, where they would check in on the Plaintiffs, and visit the tenants who were living downstairs: Tcpt, 1 June 2022, p 144(1-26), 147(28-33). Precisely when all of this occurred was not clear.
During cross-examination, Maree-Marcelle was asked about a photograph she had posted on Facebook of her and the deceased, at her wedding, with the caption "I love my nonno in this photo … He has absolutely no idea what is going on lol". She stated that she was not making fun of him, and that she made it "in lightheartedness for him": Tcpt, 2 June 2022, p 156(30)-158(19). In response to a question from senior counsel, she agreed that, if she had honestly thought that he had no idea what was going on, the positing of that comment would be disrespectful of him, and that she had intended the photograph for the purposes of humour: Tcpt, 2 June 2022, p 158(21-30).
Whilst I accept that the family had gathered together following the death of Vincenza, I did not form the impression, having read, and heard, her evidence, that, as an adult, Maree-Marcelle had a particularly close relationship with the deceased. This is not to say that she did not love him, or that he did not love her. Nor is it implausible that the deceased would have said that he "would always be there for us".
Nor do I suggest any estrangement between them, but from her evidence, overall, I am satisfied that the relationship was not one that would have been regarded by the deceased as a particularly close grandchild/grandparent relationship, especially after 2003. I accept that she telephoned her grandparents to inform them of the birth of her son, their first great-grandchild, late in 2012, and that on this occasion, the deceased spoke "fondly" to her.
The simple fact is that, like the other Plaintiffs, as she grew into adulthood, she left home to make her way in life. Indeed, not long after the death of Vincenza, Maree-Marcelle left Sydney to go on a working holiday in the United Kingdom in January 2004; she had met James there, in 2005; she had remained living in the United Kingdom until 2007; she came back for a short period, then, but returned to the United Kingdom and stayed there in 2008 and 2009; she had then returned to live in No 57 then, with James. Whilst living there, they shared the rent. Then, of course, the deceased and Maria, left Sydney and went to Italy in 2010 and remained there until 2016.
Maree-Marcelle summarised her current financial circumstances in her updating affidavit dated 14 May 2022. She stated that she had no savings, a 2016 Nissan Pathfinder worth approximately $19,000 and superannuation of $45,000. She stated that she also has an outstanding debt of $2,500 on her Commonwealth Bank credit card.
Maree-Marcelle is currently employed by Qantas and earns $74,480 yearly. In addition to her salary, she receives $823 per month in payment of the family tax benefit from Centrelink and $520 per month in child support payments from her ex-partner. Accordingly, her total monthly income is $7,550 gross and $6,918 net.
Maree-Marcelle is a single parent, living with her two dependent children. Her monthly expenses, as at 14 May 2022, totalled $5,960. It was not suggested that the expenses were extravagant or overestimated. In any event, it would appear that she has a surplus of monthly income of about $1,000.
Maree-Marcelle gave evidence in her affidavit dated 12 February 2021 that she suffers from depression and anxiety, for which she takes the medication Lexapro. She also stated that her dentist advised her that she requires dental work which will cost approximately $10,000.
She stated that her needs include being able to support her children as they grow up, including their schooling. (There was no evidence that either of her children had any relationship with the deceased.)
Maree-Marcelle gave evidence that she had paid $33,598 on account of the Plaintiffs' costs, which amount she had borrowed from one of her sons.
At paragraph 81 of her affidavit made on 12 February 2022, she stated that she had spent $30,000 renovating No 57. Other than her statement, she did not provide any direct evidence corroborating the expenditure or that she had spent the amount on No 57.
In cross-examination, Claudia stated that Maria was aware of the money she had spent on the renovations, but when she approached her grandmother for financial assistance, Maria did not agree to provide it: Tcpt, 1 June 2022, p 196(27-31), 198(11-33).
I find Claudia's evidence on this topic to be unconvincing and also implausible. One might have expected the costs of the renovations to be an expense which was recoverable from the deceased and Maria, had the renovations, and the costs thereof, been made, and approved, by them. Furthermore, she did not give any evidence in her affidavits about having spoken to Maria, although she said, in cross-examination, that she did so. She also said that she did not speak to the deceased about the expenditure, which she acknowledged was "peculiar" bearing in mind that part of the debt which founded the debtor's petition was said to have been used for renovations to No 57: Tcpt, 1 June 2022, p 196(47)-197(33).
Nor did Claudia give any evidence of raising with the Defendants, or either of her grandparents, the money said to have been saved for her and her siblings from the rent paid for occupying No 57. She explained stating that to do so would "have been rude".
In 2008, Claudia was diagnosed with a benign brain tumour. She gave evidence that, at this time, her grandparents would visit her at her home in Belfield, and that Maria had stayed in her spare room for a few nights to look after her: Tcpt, 1 June 2022, p 187(28-36). (She did not mention the deceased having done so.)
At paragraph 91 of her affidavit made on 12 February 2021, Claudia stated that there were times when the Plaintiffs were unable to feed themselves. She stated that if they did not pay rent, they were told by her grandparents "We'll throw you all out if you don't pay the rent. It doesn't matter that your mother died."
In cross-examination, Claudia stated that in about 2004 or 2005, she had asked the deceased for leniency on the rent, to which he responded, in Sicilian, "I'll throw you out in the streets" and "I don't care. You need to pay rent on time": Tcpt, 1 June 2022, p 201(8-16). She said that in this regard, "my grandfather was not an approachable person" and that "in a nutshell, no, there wasn't any leniency".
The evidence given by Claudia on these topics does not suggest dependency, whole, or partial, upon the deceased.
Claudia attended the wedding of Maree-Marcelle in 2012. She gave no evidence of observing any signs that suggested a lack of testamentary capacity. One might have thought that she would have done so had she observed any such signs.
Between 2008 and 2016, Claudia did not live at No 57. During this period, she lived with her then partner, Cathy. She commenced a relationship with her current partner, Linda Tateossian, in late 2016 and moved into her home in early 2017. She did not give very much evidence of having continued contact with the deceased after 2008.
Claudia gave evidence of her financial circumstances in her affidavit dated 12 February 2021. She stated that her assets include savings of $1,000 and superannuation of $130,000. Her liabilities include a car lease from BMW Finance for which she pays $870 per month, a loan in the amount of $40,000 and a Hilton time share with the amount of $7,000 outstanding. In her updating affidavit dated 13 May 2022, she stated that in January 2022, she had purchased a new car and that her lease repayments had increased to $980 per month.
In her affidavit dated 12 February 2021, Claudia stated her gross monthly income was $9,486 and her net monthly income was $6,825. However, in her affidavit dated 13 May 2022, she stated that her annual salary had increased to $89,780 and that she has the potential to earn commission quarterly. The amount of quarterly commission that might be earned was not estimated or disclosed.
Claudia lives with Linda, and their twin children who are three years old. In an affidavit dated 31 May 2022, Linda gave evidence that her gross annual salary is $125,000. They live in a home with Linda's sister Lisa. The mortgage repayments are $3,400 monthly and are paid by Linda and Lisa.
Claudia's daughter was born with many complications. She is currently approved under the NDIS scheme, and she requires speech pathology, physical therapy, and occupational therapy. Collectively, the cost of therapy is $2,500 monthly. Currently, her daughter does not walk and the cost of a walking aid frame is $4,000.
Claudia also suffers from a number of medical conditions. In 2008 she had a benign brain tumour. In 2014, she fell ill with Idiopathic intracranial hypertension, and as a result, lost her eyesight in her left eye and she suffers from severe headaches. She has two stents in her arteries in the back of her neck to drain fluid and a tumour in her pituitary gland. In 2021, she began having non-epileptic seizures, which is managed by medication for epilepsy. She has fibromyalgia and has been told by her doctors that she has a functional neurological disorder, in which her brain does not compute with her body.
She stated that her family's monthly expenses, as at 13 May 2022, total $6,021. It was not suggested that the expenses were extravagant or overestimated. In any event, it would appear that there is a surplus of her monthly income of about $700. It would be much more if one adds Linda's net income.
The evidence concerning the contact between him and the deceased could only be partially true because the deceased and Maria went to Italy in March 2010 and did not return until 2016. As will be read, Benjamin did not see, or communicate with, the deceased at all after the beginning of 2014 (about 6 years before the deceased's death).
Benjamin said that he was told by the deceased, Maria, and also by the Defendants, (although in cross-examination, he said by Maria and Daniela) that the rent that was paid for No 57 was going into an account for the Plaintiffs' benefit: Affidavit, Benjamin Daniel Rosario Puglia, 11 May 2021 at par 46. However, he admitted that over the years he had never seen anything, be it a document, or some record of the rent being saved, and that he had not been given any information that would indicate that such an account had been established.
At paragraph 40 of his affidavit dated 11 May 2021, Benjamin stated that he suffered a workplace injury in 2012 and was subsequently unemployed for a period. During this time, he accumulated a credit card debt of approximately $10,000, which, as a result of his unemployment, he was unable to repay. As a result, he filed for bankruptcy, a decision that he made "without any consideration of" the deceased and "after a lot of thought and consideration".
In response to questions from the Bench about why he did not ask the deceased for access to $10,000 from the bank account into which the Plaintiffs' rent was said to be being saved, in order to avoid bankruptcy, he stated that he was ashamed to be in debt and that he did not know how to handle it. He also said he was a "very sheltered person": Tcpt, 1 June 2022, p 140(32)-141(6).
Bearing in mind how seriously he had understood going into bankruptcy was, I do not accept his evidence. It seems implausible, bearing in mind the circumstances in which the debt was incurred, that he would not do so. I also found his evidence unconvincing.
It is equally implausible, bearing in mind the allegation of dependency, and what was said to be a close relationship with the deceased, that he would not have asked the deceased for some financial assistance on so serious a matter as him being made bankrupt. It seems more likely that Benjamin appreciated that any request for financial assistance from the deceased would be refused.
That this is not mere speculation is the fact that the deceased and Maria signed, and, subsequently caused to be served, a Notice of Termination of Tenancy in January 2014, following which Benjamin vacated No 57. Benjamin agreed that he and the deceased had no communication, thereafter (a period of six years before the deceased's death): Tcpt, 1 June 2022, p 120(12-24). In this regard, it is to be remembered that the deceased and Maria returned to Sydney in 2016 and that Maria died in 2018.
He accepted that the lack of contact was caused by the fact that he had received a notice to terminate the tenancy agreement with respect to No 57 in January 2014, which had been signed by his grandparents: Tcpt, 1 June 2022, p 121(6-22). Despite the Notice referring to an international telephone number, which he knew was his grandparents' telephone number in Sicily, he did not contact the deceased, or Maria, following the receipt of the notice, but said they contacted him, following which telephone contact he vacated No 57.
It is to be noted that Benjamin had asserted in his affidavit that the Notice of Termination was actually given by Carmelina, pursuant to the Power of Attorney, an assertion that he admitted, in cross-examination was incorrect. Tcpt, 1 June 2022, p 121(24-33).
Benjamin also agreed that, after he was evicted, the deceased did not ever ask after his health and wellbeing: Tcpt, 1 June 2022, p 126(10-16).
During the hearing, the Defendants tendered a Facebook post (Ex D4) which was made by Benjamin, in about April 2014, on the day he received the Notice to Terminate Tenancy Agreement: Tcpt, 2 June 2022, p 124(19-45). The Facebook post included a photograph of the front page of the Notice to Terminate Tenancy Agreement, a photograph of Benjamin with Maria, and was accompanied with the words:
"I wake up to find this in my letter box. Good work maioranas [sic] for kicking out your grandson !! Makes me sick!!!!"
It is to be remembered that Benjamin, like his siblings, was an adult at the time of Vincenza's death. He had lived with his parents, and then with Vincenza, as a minor, then after her death, with Daniela, for about two months. Thereafter, he lived elsewhere, or with one or both of his siblings, at No 57, or otherwise lived alone there.
I do not accept Benjamin's assertion that the deceased and Maria were like parents to him. Nor do I find his evidence suggestive of dependency, whole or partial, upon the deceased.
(I note that each of the Defendants denied having any such conversation about rent being saved. It also seems inconsistent with other aspects of the deceased's conduct that he would demand market rent from the Plaintiffs and save that rent for them.)
Benjamin's financial circumstances are modest. In his affidavit dated 11 May 2021, he stated that he has $2,000 in savings and $15,000 in superannuation. His liabilities include a $300 credit card debt to ANZ Bank.
Benjamin is employed full-time by McDonalds as a Café Supervisor. Whilst his weekly income changes from week to week, he estimates his net weekly income to be between $850 to $950.
He lives with his father in rented accommodation, and they share the expenses roughly equally. (There was no evidence about his father's financial circumstances.)
He stated that his monthly expenses total $3,870. It was not suggested that the expenses were extravagant or overestimated. In any event, it would appear that there is little, if any, surplus of monthly income.
Overall, in relation to each of the Plaintiffs, I am of the view that, with respect to some of the events, she, or he, is mistaken, either because of inaccurate recollection over the substantial passage of time since the events in question, or because her, or his, memory has been influenced, to some degree, by the content of the dispute between the parties.
As will be read, I find the evidence of each of the Defendants far more plausible and consistent with the events that occurred.
Carmelina confirmed that when Vincenza had died, the deceased had not asked the Plaintiffs to come to stay at his home, and that they had gone to Daniela's home to stay for a few months.
I have earlier referred to the loan from Carmelina to the deceased and Maria to purchase the property in Triscina, Italy. She stated that Maria recorded the loan on 27 June 2016 in a handwritten note:
"… our daughter Carmelina Giacomina Maiorana Ferro lent us forty thousand dollars in June Two Thousand and Eleven and I have not been able to give it back as yet I will give it back as soon as I am able to, if not given back, before we die it must be given back to our daughter … out of our estate"
The first Defendant gave evidence about her trip to Sicily and the events that had occurred concerning Maree-Marcelle's wedding. She asserted that, as far as she was aware, the deceased did not speak to either of the first or second Plaintiffs again after the wedding. She also stated that during the trip, and for the remainder of 2012, she did not observe the deceased to have any issues with mental capacity. Nor did she have any reason to believe that the deceased had any diminished mental capacity.
In December 2012, Maria telephoned the first Defendant and told her that she and the deceased had decided to make new wills, and that a friend would bring the wills back to the Defendants in Sydney. She was not made aware of the terms of either will during the conversation.
I have referred to Mr Maniscalco's evidence regarding the deceased asking him to bring the Wills to Sydney. In early 2013, the Defendants both collected the Wills, which were then in a sealed envelope. They delivered the envelope to the deceased's solicitors, who then opened the envelope and told the Defendants that it contained the deceased's Will, and Maria's Will, each in triplicate. She said she did not discuss the 2012 Will with the deceased. Nor was she aware of the 2005 Will, which she saw, for the first time, in the context of the proceedings.
(I mention, in passing, that in Maria's Will, she had appointed the deceased as her executor. It seems unlikely that she would do so if she was concerned about his capacity or that he was then suffering dementia and cognitive dysfunction.)
Carmelina gave evidence that she had travelled to Italy in 2015 for her daughter's wedding. She had decided to remain, as a live-in carer with her parents, as Maria had become unwell, suffering from diabetes and had problems with her eyes caused by macular degeneration. She, the deceased and Maria then returned to Sydney in April 2016: Tcpt, 2 June 2022, p 209(46)-210(13).
She also gave evidence of a conversation she had with Maria in which Maria had disclosed to her that, on one occasion in early 2015, the deceased became confused on the way home from Mass, and went home to the wrong house: Tcpt, 2 June 2022, p 227(40-43). She accepted that when she was in Sicily, in the second half of 2015, that the deceased's word thinking, his ability to express himself, was failing, but added that he was still able to express himself. She was asked whether she had made those observations in early 2012, to which she replied that she had not. Nor had she observed it in August 2013. She said that in 2012 and then 2013, whilst he was older, he was not confused. She gave by way of example, that he had driven to and from the airport to pick her up, a round trip of about 120 to 140 kilometres, they had chatted along the way and they sang songs.
Shortly after returning to Australia, the deceased became quite unwell, and he was hospitalised and had a pacemaker inserted. He also had what Carmelina described as "iron infusions", following which he became stronger and a bit more alert.
She gave evidence that, when he returned, he certainly was not as sharp as he had been and that she observed a lack of clarity, but he could still perform a lot of the activities of daily living by himself. She accepted that she observed that in April 2016, his mind was failing, something she had started to notice whilst in Sicily, in 2015, before their return.
Upon their return to Sydney, Carmelina, the deceased and Maria lived in the Canada Bay Property until mid-2017, when they moved to a property in Drummoyne: Tcpt, 2 June 2022, p 213(26-37). During this period, the deceased's and Maria's health problems continued to deteriorate. She said that the deceased's mental state deteriorated "slowly".
Carmelina was the primary carer for the deceased and Maria, until their deaths: Affidavit, Carmelina Giacomina Ferro, 6 December 2021 at pars 48-49.
In her oral evidence, Carmelina agreed that, in 2017, she had sold three of her parents' Queensland properties pursuant to a power of attorney. She stated that her parents had a loan, of approximately $1,000,000, with the Commonwealth Bank, which Maria wanted to have discharged so that she could consolidate her affairs: Tcpt, 2 June 2022, p 239(11-40).
Naturally, senior counsel put to the first Defendant that she had said, and had heard her parents say, that one day No 57 would be the property of the Plaintiffs, but she denied this.
(I tend to think that this denial is based upon what she had been told. In my view, there is likely to have been some consideration, by the deceased, to leaving No 57 to the Plaintiffs. That is what the 2005 Will had provided. Of course, that was many years before the deceased's death.)
She also denied that she had said that money in a bank account would become available to each of them when she, or he, married. I accept her evidence.
Carmelina denied having discussed "leniency" being shown to any of the Plaintiffs if the rent was not paid. She said that this was not a matter for her but for her parents. She also said that "they knew what would happen if the rent wasn't paid, I suppose": Tcpt, 2 June 2022, p 232(15-17). She also said that on one occasion, in 2010, Maria had asked her to speak to one, or other, of the Plaintiffs about the rent being unpaid, and that she had done so.
In cross-examination, Daniela stated that when the deceased returned to Sydney in April 2016, she did not notice any change in his physical, or mental, condition from when she visited him in 2015. She described his physical condition as "just aged, old age" stated that he moved a "little bit slower like an older person would": Tcpt, 2 June 2022, p 245(35-49).
She denied that she had ever heard the words "Alzheimer's" or "dementia" applied to the deceased's mental condition: Tcpt, 2 June 2022, p 246(13-22). However, her denial of a change in his mental state, following the return from Italy, in 2016, is difficult to accept bearing in mind the first Defendant's evidence and the medical records that were tendered. Even so, any such change in the deceased's mental condition was some few years after the 2012 Will had been made.
Daniela accepted that there were problems between her parents and Mario. Indeed, before Vincenza's death, the deceased "was very upset that [the Plaintiffs] were speaking to Mario". She later described the emotion expressed as the deceased being "saddened" because of this. (He did not speak to her directly about this, but she overheard a conversation between the deceased and Maria.)
The deceased was also upset when he found out that the Plaintiffs were again in contact with Mario. Whilst he did not discuss that with her, she had heard discussions between him and Maria about this, but the discussions had been before Vincenza's death.
She also agreed that there had been discussions about the distribution of properties upon death, including that "the kids were going to get No 57", but she said it was never spoken of again. She maintained that it was not spoken of after Vincenza's death, which she agreed "shattered" the deceased.
She denied that she had told any of the Plaintiffs that the rent being paid for No 57 was going into an account and that it would be for their benefit, or that it would be for them. I accept her evidence, and Carmelina's evidence, on this topic. I also I reject any suggestion that I should not accept her evidence (apart from the topic of the deceased's state of health following his return to Sydney in 2016).
(There was no challenge to the accuracy of the translation of either document.)
In order to support the allegation of a lack of testamentary capacity, the Plaintiffs tendered, without objection, a bundle of medical documents (Ex P1). None of these medical records are contemporaneous with the date the deceased executed the 2012 Will.
The earliest record, in time, produced, and relied upon, is a summary report dated 19 May 2016 of the deceased's admission to Concord Hospital on 28 April 2016. That date was about 3.5 years after the date of execution of the 2012 Will.
Reliance was placed upon a health summary of the deceased completed by Dr Joanne Williams dated 4 January 2019. In that summary, under the heading 'Past History', Dr Williams states "Dementia Concord geriatrics p 14, onset prob 2010". The source of the statement, or the factual basis upon which the conclusion stated was reached, is not made clear in the summary and Dr Williams did not provide evidence, otherwise, in the proceedings.
The other medical records forming part of the exhibit are even later in time.
Leaving aside the date of these medical records, it is necessary to remember the caution with which notations made in medical records, or like consultations, must be treated, and also that they should not be elevated to a higher status, factually, than other evidence given in the proceedings: Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] (Basten JA); Afoa v McBride [2017] NSWCA 323 at [65] (Macfarlan JA), and at [70] (Payne JA); Simoes v Kel Campbell Pty Ltd; Simoes v Moon [2018] NSWCA 284 at [15] (Basten JA), particularly insofar as they are dependent on not only the accuracy of the person who has provided the information that is recorded, but also upon the accuracy of the note-taker as to the history that is then being given.
As written, the medical records tendered by the Plaintiffs do not speak, directly, to the deceased's medical condition, or mental state, in December 2012. What is also striking is that the notes relied upon appear to be inconsistent with the lay evidence of observations made of the deceased by Father Kariba, Mr Maniscalco and Carmelina and the evidence of Dr Drago.
Senior counsel for the Plaintiffs submitted that the Court should, itself, work backwards from the medical records in order to determine the deceased's mental condition at the time of the execution of the 2012 Will. He acknowledged that no medical expert had been retained by the Plaintiffs to provide evidence to demonstrate that was so: Tcpt, 2 June 2022, p 214(32)-216(24).
I do not consider that the Court is able to, and should, adopt the course proposed by senior counsel for the Plaintiffs. The medical evidence tendered by the Plaintiffs does not speak to the deceased's medical condition, or mental state, at the relevant time and I am unable to draw any inferences about the deceased's medical condition and mental state over three years earlier when he signed the 2012 Will.
As it formed part of the evidence, naturally, I have carefully read the medical records that form Ex P1. What must be determined is whether the deceased, at the time the 2012 Will was made, suffered from any medical, including mental, conditions, that affected his testamentary capacity.
I prefer the evidence of the witnesses, at least two of whom have no interest in the result of the case, who had observed the deceased at, or shortly after, the time he made the 2012 Will, and, to a lesser extent, although importantly, upon the written statement of Dr Drago who was, at the relevant time, the treating medical practitioner of the deceased, to which reference has been made. The evidence of the personal observations of, and the interactions between Father Kariba, and of Mr Maniscalco, respectively, with the deceased, is consistent in depicting that the deceased's medical, including mental, state was not the same in and around December 2012 as it was in 2016 and thereafter.
I dealt with knowledge and approval at [361]-[371]:
"In addition to showing that the deceased had testamentary capacity, the Defendant, as the propounder of the 2019 Will, must also show that she knew and approved its contents. This means no more than that the deceased "truly knew the terms of a will and intended to give effect to them": Estate Rofe [2021] NSWSC 257 at [129(b)] (Lindsay J).
The requirement of knowledge and approval is conceptually distinct, and separate, from testamentary capacity, and must not be conflated with it: Hoff v Atherton at 108 (Peter Gibson LJ) and 117 (per Chadwick LJ); Perrins v Holland [2009] EWHC 1945 at [45] (Lewison J).
I have previously outlined the principles related to knowledge and approval in Starr v Miller at [466]-[485], Chant v Curcuruto at [719]-[725], and most recently in Robertson v Barker at [494]-[500]. It is not necessary to repeat those principles in full. However, I have extracted some applicable points below.
The relevant principles were stated authoritatively, for relevant purposes, by the High Court in Nock v Austin.
More recently, these principles were stated in Tobin v Ezekiel. Meagher JA, with whom Basten and Campbell JJA agreed, wrote, at [46]-[48]:
"Upon proof of testamentary capacity and due execution there is also a presumption of knowledge and approval of the contents of the will at the time of execution. That presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator. ... Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved of the contents of the document.
Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be "the most satisfactory evidence" of actual knowledge of the contents of the will. What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case ... Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction. That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator.
… prescribing 'vigilance' and 'careful scrutiny' and referring to the court being 'affirmatively satisfied' as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof... What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters… They also recognise that deciding whether a document is indeed a person's last will is a serious matter, so any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw … or, now, s 140(2) of the Evidence Act 1995".
In Starr v Miller, at [472]-[474], I discussed the development in the law's approach in situations where knowledge and approval is in issue. At [474] I concluded:
"In New South Wales, the analysis of a two-stage approach, involving presumptions, has been considered to be artificial and the better approach is for the Court to consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material, reach a conclusion as to whether the propounder of the disputed Will, has discharged the burden of establishing that the will-maker knew and approved the contents of the disputed Will: Mekhail v Hana; Mekail v Hana, at [165] (Leeming JA)."
Suspicion engendered by extraneous circumstances arising subsequent to the execution of the propounded will is not a reason for rebutting the presumption arising from the due execution of a will regular on its face: In re R (dec'd) [1950] 2 All ER 117 at 121. The relevant circumstances are those surrounding the preparation and execution of the will: Ng v Lau; In the Estate of Ken Kui Yuen Lau [2020] NSWSC 713 at [81] (Kunc J).
It is the will-maker's understanding that is decisive. The sufficiency of evidence going to whether she, or he, knew and approved the contents of the Will depends upon the circumstances of the case: Estate Rofe at [152]-[154] (Lindsay J); Paraskov v Paraskos [2002] WASC 109 at [50] (Pullin J).
Where any such suspicious circumstances exist, the proponent has the burden of removing the suspicion by proving affirmatively, by clear and satisfactory proof, that the deceased knew and approved of the contents of the document.
If in such a case the conscience of the tribunal, whose function it is to determine the fact upon a careful and accurate consideration of all the evidence of both sides, is not judicially satisfied that the document does contain the real intention of the will-maker, the court is bound to pronounce its opinion that the instrument is not entitled to probate.
Finally, in relation to the matter generally, I emphasise that the ultimate question before the court, when assessing the validity of a will, is not whether the will is a fair one in all the circumstances of the case. A will, the provisions of which are unfair, vindictive or perverse, may still be a valid will."
In Power v Smart [2018] WASC 168 at [663], upheld on appeal in Smart v Power [2019] WASCA 106, Derrick J had summarised the principles in relation to the doctrine of suspicious circumstances at [663]:
"When considering if there are circumstances that give rise to a suspicion that the testator might not have known and approved the contents of the will, the court looks at a number of factors including the circumstances surrounding the preparation of the will, whether a beneficiary was too involved in the preparation of the will, the extent of the physical and mental impairment, if any, of the deceased, whether the will in question constitutes a significant change from a prior will, whether the lawyer or person who prepared the will takes a benefit, and whether the propounded will generally seems to make testamentary sense: Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81 [96] ‑ [111]; Veall v Veall [2015] VSCA 60 [173]; The Estate of Juliana Voros; Cooney & Ors v Cherry [2016] NSWSC 1603 [135]."
Thus, the presumption generated by due execution may be displaced by circumstances that relate to the preparation, or execution, of the disputed Will or its intrinsic terms, which create a well-grounded suspicion or doubt as to whether that Will expressed the mind of the deceased. If the presumption is displaced, the proponents of the disputed Will must prove, affirmatively, that the deceased knew and approved of the contents of the Will: Battenberg v Phillips [2020] NSWCA 249 at [28].
However, circumstances can only raise a suspicion of want of knowledge and approval if they are "circumstances attending, or at least relevant to, the preparation and execution of the will itself": Re R [1950] 2 All ER 117 at 121; [1951] P 10 at 17 (Willmer J) and In the Estate of Musgrove; Davis v Mayhew [1927] P 264 at 280 (Lord Hanworth MR).
Finally, I refer to Phillips v Phillips; Phillips bht NSW Trustee & Guardian v Phillips [2017] NSWSC 280, in which at [131], Kunc J relied on my summary of the law in Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275, in which case I had held that an appreciation of the legal effect of every clause in a Will is unnecessary; rather, what must be shown is that the deceased understood that he, or she, was executing a Will and the practical effect of the central clauses in the document. This comment was also referred to, with apparent approval, by Ward CJ in Eq in Estate of the late Genevieve Bryan [2022] NSWSC 965 at [434].
There was really no dispute about these principles.
In his written submissions, senior counsel for the Plaintiffs submitted that the Plaintiffs had raised a doubt as to the deceased's testamentary capacity and that the evidentiary onus, therefore, shifted to the Defendants to affirmatively prove capacity, and to demonstrate that the deceased knew and approved of the 2012 Will.
Counsel for the Defendants relied on the presumption outlined in Tobin v Ezekiel at [45], namely that if a will is rational on its face and proved to have been duly executed, there is a presumption that the testator was mentally competent and had testamentary capacity.
It was submitted that, in this case, both of those preconditions were met. Counsel for the Defendants submitted that the 2012 Will is a six-page document which is not overly complex and that there was no suggestion that it is anything but rational on its face. Regarding due execution, it was submitted that, as supported by Father Kariba's evidence, the 2012 Will was in writing and signed by the deceased in the presence of two witness, each of whom attested to and signed the will in the presence of the deceased. Accordingly, the requirements in s 6 of the Act were met.
Counsel for the Defendants also submitted that the Plaintiffs had failed to martial any probative evidence to "throw a doubt" on the deceased's testamentary capacity at the time the 2012 Will was executed: The Estate of Milan Zlatevski; Geroksa v Zlatevski [2020] NSWSC 250 at [72] (Henry J). It was submitted that the medical evidence relied upon by the Plaintiffs, from which the earliest record is May 2016, have no bearing on the deceased's testamentary capacity in 2012.
Further, the Defendants relied on the evidence of the deceased's only known physician in Italy over the period of March 2010 to December 2012, who stated in a letter dated 27 April 2022 that he has "no recollection and no documents to confirm a diagnosis of Alzheimer's dementia or other cognitive impairment."
Counsel for the Defendants pointed to Veall v Veall (2015) 13 ASTLR 462; [2015] VSCA 60, in which Santamaria JA (with whom Beach and Kyrou JJA agreed) stated at [171]:
"[a] mere assertion by a contradictor that the testator either lacked testamentary capacity or knowledge and approval will not displace the presumption raised by the due execution of a will that is rational on its face. The party impeaching the will must establish circumstances supporting a well-grounded suspicion that the instrument might not express the will of the testator."
In the event that the Court determined that the Plaintiffs' evidence was sufficient to raise a doubt as to the deceased's testamentary capacity, counsel accepted that the onus shifted to the Defendants to dispel the doubt. They submitted that there were two reasons why the Court should be satisfied that the deceased had testamentary capacity.
The first reason was that, on the evidence, it could not be established that the deceased was suffering from a cognitive disease at the relevant time, being December 2012. The second reason was that, if it were accepted that the deceased had some form of cognitive impairment at the relevant time, the evidence of Father Kariba and Mr Maniscalco clearly demonstrated that the deceased had sufficient intelligence to prepare and execute his will.
The Plaintiffs' submissions with respect to suspicious circumstances were somewhat limited. In his oral submissions, counsel for the Plaintiffs submitted that there can be suspicious circumstances in the context of the Court still harbouring a doubt which is such that the propounder of the Will cannot discharge. He referred to Burnside v Mulgrew; Re the Estate of Doris Grabrovaz [2007] NSWSC 550, in which Brereton J had stated, albeit in another context, at [26] that:
"it does not follow that the absence of sufficient evidence to make a finding, to the "comfortable satisfaction" standard referred to in Briginshaw v Briginshaw, that there has been fraud or forgery or other serious misconduct, has as its necessary corollary that the opposing case must succeed."
Brereton J had refused to admit to probate a document which was alleged to be forged because he was not satisfied that the signature was that of the deceased, although the evidence did not warrant an affirmative finding of forgery.
I gather that what senior counsel was submitting was that, relevantly, even if the Plaintiffs had not proved an affirmative case of lack of capacity, lack of knowledge and approval, and suspicious circumstances, the Defendants were still required to prove their case concerning the validity of the 2012 Will to the requisite standard.
Of course, at [30], Brereton J had also referred to:
"the second proposition in Re Eger, [that] the issue must be determined upon the balance of the whole of the evidence in the case. The evaluation of the evidence in a case of this type involves an assessment of what happened more probably than not. It is a mistake to think that in evaluating the probabilities, one commences with one apparently clear matter of fact and then deduces from that single matter what should be accepted or rejected as being consistent or inconsistent with it. Rather, the Court must look at all of the evidence that bears on the events in issue and, examining all of that evidence, evaluate which version is the more probable."
Counsel for the Defendants submitted that:
1. There was, and could be, no suggestion of any involvement by either of the first or second Defendants during the execution, or the making, of the 2012 Will. Neither was present at the time the 2012 Will was made.
2. Even if the Court's suspicion had been aroused, the suspicion would be dispelled by the fact that the deceased was not suffering from a cognitive impairment at the time he made the 2012 Will, a fact established by the evidence.
3. Even if the deceased did have a cognitive impairment at the time he made the 2012 Will, the evidence of Father Kariba established that the deceased dictated to him each of the dispositive terms of the 2012 Will, which, after being recorded, was then read back to the deceased, who had confirmed its correctness before he executed it.
They relied on the comments of Meagher JA in Tobin v Ezekiel at [47], that evidence that the deceased gave instructions for the will, or that the will was read over by, or to, him, or her, is the "most satisfactory evidence" of actual knowledge and contents of the Will.
The manner in which the deceased gave his instructions, the content of those instructions and the setting in which the instructions were given, all make clear that the deceased exercised his own judgment in deciding how to dispose of his assets. That the whole of the will was read out to him, in a language with which he was most familiar, and before he indicated his approval of it, and that neither of the Defendants was present at the time when the 2012 Will was written, read out, and signed, by the deceased are also important. The instructions that the deceased gave Father Kariba were clear and unequivocal and there is no evidence to conclude that those instructions did not represent the testamentary intentions of the deceased. Nor is there any evidentiary support that either of the Defendants participated, in any way, in its preparation or execution.
There was only one particular aspect of the 2012 Will that was relied upon by the Plaintiffs - the aspect of the testamentary discretionary trust. This aspect needs to be considered in light of an earlier Clause in the 2012 Will relating to property held on trust for a grandchild of the deceased who was a person under a legal incapacity.
However, as submitted by counsel for the Defendants (Tcpt, 2 June 2022, p 278(14-19)):
"Father Kariba made it clear that in dealing with that he said, "Your daughters can obtain legal advice about it". Of course, they could. Then he says, "I explained the will and where it was necessary for us to understand what we are saying Professor Zummo would chip in." So, your Honour, as I say, the evidence is now crystal clear. We would submit that your Honour would find Father Kariba's evidence compelling."
Having conducted a vigilant examination of the whole of the evidence, I am satisfied that the Defendants have discharged the burden of showing that the deceased had testamentary capacity, and that he knew and approved of the terms of the 2012 Will. Whilst it may be accepted that there was a change in the 2012 Will from the 2005 Will, the change is explicable bearing in mind the relationship of each of the Plaintiffs with the deceased by 2012.
The Plaintiffs' defence of the Cross-Claim for the grant of Probate of the 2012 Will does not provide any basis for concluding that the Defendants' case for making a grant of Probate, in solemn form, of the 2012 Will to them, has not been established. Even if doubt were felt, which it is not, any doubt is not substantial enough to preclude a belief that the 2012 Will is the Will of a testator who possessed sound mind, memory and understanding at the time of its execution.
There should be an order pronouncing the validity of the 2012 Will. I shall make that order and make consequential orders remitting the matter to the Senior Deputy Registrar in Probate.
Recently, the Court of Appeal, decided the appeal in Chisak v Presot [2022] NSWCA 100, a claim brought by a grandchild, whilst a minor and living with her father, who had stayed with her grandmother for two or three relatively short periods of time many years before the grandmother's death. The reasons were not published prior to the Court reserving the decision in this case. Although that case may be distinguished on the facts, it is necessary to say something about the case.
White JA (with whom Macfarlan and Gleeson JJA agreed) wrote at [42]-[44]:
"Ivy deposed that in about 2000 when she was five years old she stayed with her grandmother in the deceased's Lidcombe home for about a month. She deposed that she stayed with the deceased on three or four occasions between 2000 and 2003 for about three weeks up to about a month. As noted above, the primary judge accepted that on two or three occasions between 2000 and 2003 Ivy stayed with her grandmother for short periods of time… His Honour found that these periods of stay when Ivy was a young child did not make her an eligible applicant. His Honour said:
"The Act contains no definition of the words "dependent on". In general, the word "dependent" connotes a person who relies upon the support of another, financial and/or emotional. 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 and support."
After citing authorities addressed below, his Honour continued:
The Defendants submitted that regardless of the "elasticity" in the definition of "partly dependent" for eligible persons, infrequent and short stays with the deceased does not make her dependent on her grandmother in the ordinary sense of the word. They also submitted that if the Court finds there was some dependency on the deceased, she was not at the level of "partly dependent", merely minimally dependent, if at all.
The indirectness of any assistance provided by the deceased to Ivy, such as is evident here, must be viewed in the context of Ivy having remained in the care of her father, her ordinary primary care-giver, and upon whom, she was dependent for her maintenance and education. Indeed, as Ivy herself stated, she did not want to jeopardize her relationship with her father, by contacting the deceased against his wishes.
As a matter of fact, on any version given by her, Ivy cannot be said to have been wholly or partly dependent upon the deceased. Furthermore, that the deceased occasionally, or even frequently, made gifts to, or for, the benefit of Ivy, does not, in itself, make Ivy wholly, or partially, dependent on the deceased. Furthermore, that the deceased went to Brisbane in order to assist Ivy's father whilst he was unwell, it is hardly the case that he abrogated his parental responsibility to the deceased.
To qualify a grandchild as a dependant, the gifts or benefits provided by the will-maker, must be of such regularity and significance that one can say that the will-maker had clearly assumed a continuing responsibility for the grandchild's maintenance education, or advancement in life: see Leahey & Trescowthick [1999] VSC 409; MacEwan Shaw v Shaw (2003) 11 VR 95; [2003] VSC 318; Pearson v Jones (supra) and Simons v Permanent Trustee Co Ltd [2005] NSWSC 223. Also see, Sherborne Estate: Vanvalen v Neaves [2005] NSWSC 593.
On the basis of the evidence, I am not satisfied that Ivy is an eligible person within the meaning of s 57(1)(e) of the Act. In my view, Ivy's needs to be fed, cared for, and accommodated, were all provided by her father, and not by the deceased."
With respect, the primary judge's observations at J [329] conflate the question of whether a grandchild is an eligible applicant because he or she was, at any particular time, wholly or partly dependent on the deceased, with the questions as to whether there are factors which warrant a grandchild making the application for a family provision order (s 59(1)(b)), and whether the grandparent owed a moral obligation to make provision for the grandchild for his or her proper maintenance, education or advancement in life (s 59(1)(c)). On the question of whether the grandchild is an eligible applicant under s 57(1)(e)(i) the question is not whether the grandparent assumed a continuing responsibility for the grandchild's maintenance, education or advancement in life, but whether, for a particular time, the grandchild was wholly or partly dependent on his or her grandparent. The Victorian cases cited (Leahey v Trescowthick [1999] VSC 409, and MacEwan Shaw v Shaw (2003) 11 VR 95; [2003] VSC 318) concern the interpretation of s 91(1) of the Administration and Probate Act 1958 (Vic), as it then stood, which did not specify any particular class or classes of applicants, but authorised the making of provision out of the deceased's estate for the proper maintenance and support of a person for whom the deceased had responsibility to make provision."
His Honour's words seem to echo what was written by Sackville AJA, in Spata v Tumino (2018) 95 NSWLR 706 at 732; [2018] NSWCA 17 at [139], that:
"A claimant who establishes that he or she is an eligible person by reason of dependency on the deceased (and membership of the same household) may or may not be a person to whom the deceased owed an obligation to make provision by way of testamentary disposition. The concept of dependency in s 57(1)(e)(i) of the Succession Act is not to be limited by incorporating criteria that are only to be considered once the claimant establishes that he or she is entitled to apply for a family provision order."
In Chisak v Presot, White JA went on at [57]:
"I respectfully doubt that it is legitimate to read into s 59(1)(e) [sic] a requirement that partial dependency be "significant" rather than "more than minimal". Section 57(1)(e) is merely a gateway for the court to consider whether there are factors that warrant the making of an application for provision by a grandchild out of his or her grandparent's estate (s 59(1)(b)), and if so, whether provision ought to be ordered (s 59(1)(c)). The degree of dependence for a particular period of time will no doubt be relevant to those issues. With due deference to the reasons of Palmer J in Simons v Permanent Trustee and Re: Sherborne Estate and Basten JA in Page v Page, I do not think it appropriate to conflate questions relevant to those issues, such as whether the degree of dependence was such that the grandparent assumed parental responsibility for the grandchild, with the factual question of whether the grandchild did depend on the deceased for particular periods of time. I do not accept the primary judge's reasons on this issue at J [329] quoted above."
Whilst, of course, the decisions of the Court of Appeal, where not distinguished, are binding upon this Court, it is necessary to note that none of the members of the Court of Appeal specifically referred to s 60(1)(a) of the Act, which sub-section provides that the Court may have regard to the matters set out in s 60(2) "for the purpose of determining whether the person in whose favour the order is sought to be made is an eligible person".
White JA had acknowledged the sub-section in Sun v Chapman, at [28], although he did not refer, specifically, in that case, to any of the sub-sections in s 60 to which regard might be had in relation to eligibility.
In this regard, it is also important to recognise that in most cases, eligibility is not the subject of dispute because many claims that are brought are by a spouse, a child, or a former spouse, of the deceased person. Eligibility in these cases is established by dint of the relationship. In such cases, it is not necessary for the Court to have regard to s 60(1)(a) of the Act for determining eligibility. As I wrote, in Jones v Jones [2014] NSWSC 960 at [94]:
"For example, when considering eligibility under s 60(1)(a), many of the matters in s 60(2) will be largely, if not wholly, irrelevant."
A similar view was expressed by the Court of Appeal in Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [7] by Basten JA, when he wrote that "[m]ost of the factors listed in s 60(2) will be irrelevant in relation to whether the applicant is an eligible person, a matter largely dependent upon the language of s 57."
In Lodin v Lodin, Sackville AJA wrote, at [69], that "[I]t is not clear that any of the matters identified in s 60(2) of the Succession Act are relevant to determining whether a particular applicant satisfies the definition of "eligible person" in s 57(1)".
However, as was recently written in Sun v Chapman, by Leeming JA at [3]:
"The question whether there was at the time of the deceased's death a de facto relationship is one that may be more contestable than some of the other categories of eligible persons defined in s 57(1) of the Succession Act 2006 (NSW). However, contestable factual questions may in principle arise even if an applicant claims to be, say, a child or a former spouse. A person may be a child without a birth certificate and there may be competing evidence (including expert evidence) as well as testimonial evidence on this issue. A former spouse may claim to have been married in an informal ceremony in another country which is recognised under Australian law. In short, the factual conclusion that a person is a child or a former spouse may be contestable in the same way as the questions posed under s 57(1)(b), (e) and (f). But all the criteria for eligibility are binary, in the sense that they admit of only one correct answer."
Thus, where eligibility is in issue, s 60(1)(a) enables the Court to have regard to the matters in s 60(2) for the purpose of resolving that disputed issue of fact. It has been repeated that the factual question regarding dependency can be complex and involve consideration of many elements. It is, therefore, necessary, in the assessment of the nature of the relationship between an applicant and the deceased to consider it, not on theoretical considerations, but rather in the context of the totality of the circumstances. Accordingly, if it is disputed, the concept of eligibility in s 57(1)(e)(i) may be considered by having regard to matters that would, otherwise, only be considered once the applicant establishes that she, or he, is entitled to apply for a family provision order.
In Chisak v Presot, the matters to which reference were made, and identified, by White JA in the passage quoted above, in the reasons for judgment at first instance, were matters that are referred to in s 60(2) including (a) (nature and duration of the relationship), (e) (cohabitation with another person), (g) (the age of the applicant), (k) (whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased's death and the extent to which, and the basis on which, the deceased did so), (l) (whether any other person is liable to support the applicant) and (m) (the conduct of the applicant), and all were matters to which the Court may have had regard for the purpose of determining whether the applicant is an eligible person.
Before leaving this topic, a number of the cases to which reference has been made refer to the Act being remedial legislation. For example, in Spata v Tumino, Payne JA at [71] (with whom Macfarlan JA and Sackville AJA both agreed) referred to the judgment in Barns v Barns (2003) 214 CLR 169; [2003] HCA 9 at [44] (per Gummow and Hayne JJ) and [124] (per Kirby J), observing at [71] that their Honours:
"...held that the correct approach to construction of a provision such as s 57(1)(e) of the Succession Act is that the court should be astute not to place a restricted construction upon the terms of such a law."
That is also undoubtedly true, but the purpose of Chapter 3 of the Act should not be forgotten. Its "evident purpose" is to place the assets of the deceased at the "disposal of the court" to provide for "the nominated dependants of the deceased": Easterbrook v Young (1977) 136 CLR 308 at 315; [1977] HCA 16. The legislation has also been described as having been "enacted in order to subject freedom of testamentary disposition to discretionary curial intervention in certain classes of case, where moral rights and obligations of support were disregarded": Barns v Barns at [2] (Gleeson CJ).
In describing eligibility as "the gateway", White JA recognised that its purpose was as a prerequisite to obtaining an order for provision, and, thereby, was limiting, or restricting, the persons who have the right to access the remedy created in the Act. (In relation to certain categories of eligibility, including applicants who fall within s 57(1)(e), there is the further limiting matter of factors warranting the making of the application.)
As was written in Re Burt [1988] 1 Qd R 23 at 32:
"The fact that the legislation is remedial in character and therefore to be construed beneficially does not call for artificial extensions of the category of persons who are prescribed as eligible for the benefit. The task is to ascertain who has been given the right to apply."
Then, assuming eligibility, in the case of applicants who fall within s 57(1)(d), (e) or (f) of the Act, the Court must next consider and be satisfied, having regard to all the circumstances of the case (whether past or present), that there are factors which warrant the making of the application (s 59(1)(b)).
As stated in Spata v Tumino, by Payne JA, at [72]:
"A finding of being 'wholly or partly dependent' does not itself give rise to a statutory obligation to make provision from the deceased person's estate for the proper maintenance, education or advancement in life of the dependent; it is merely the first step."
In requiring a person who falls within, relevantly, s 57(1)(e) to satisfy the Court that there are such factors, the Act distinguishes between two classes of eligible person. As was written by McColl JA (with whom Gleeson and Simpson JJA agreed) in Yee v Yee [2017] NSWCA 305 at [111]-[112]:
"…Within the first category (s 57(1)(a) - (c)) are persons generally 'regarded as natural objects of testamentary recognition', such as lawful and de facto spouses and children. This class is so regarded because it consists of those to whom it has been said a testator owes a moral duty of support.
Those falling within the second category (s 57(1)(d) - (f)) are not generally regarded as natural objects of testamentary recognition by a deceased. Rather, they are 'potentially appropriate objects of testamentary recognition, depending upon their circumstances'. In order to qualify as such objects in fact, they must establish there are factors warranting their application. That is a jurisdictional question." (Footnotes omitted)
The Act does not specify the "factors which warrant the making of the application". In considering the meaning of what he described as "this poorly conceived and clumsily expressed subsection" in the former Act (which did not form part of the Draft Bill produced by the Law Reform Commission), M McLelland J said, in Re Fulop deceased; Fulop v Public Trustee; Bide v Public Trustee at 681 (approved in substance by the Court of Appeal in Churton v Christian (1988) 13 NSWLR 241; [1988] NSWCA 23) that the factors are factors which, when added to facts which render the applicant an eligible person, give him, or her, the status of a person who would be generally regarded as a natural object of testamentary recognition by the deceased.
I turn next to the principles relating to the issue of the provision made for each of the Plaintiffs in the 2012 Will. I have set out the relevant general principles on this aspect most recently in Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 at [416]-[456]. I do not propose to repeat the principles. However, I shall repeat some principles regarding a claim by a grandchild.
I wrote in Bowditch v NSW Trustee and Guardian [2012] NSWSC 275 at [113]:
"In relation to a claim by a grandchild, the following general principles are, in my view, relevant and should be remembered:
(a) As a general rule, a grandparent does not have a responsibility to make provision for a grandchild; that obligation rests on the parent of the grandchild. Nor is a grandchild, normally, regarded as a natural object of the deceased's testamentary recognition.
(b) Where a grandchild has lost his, or her, parents at an early age, or when he, or she, has been taken in by the grandparent in circumstances where the grandparent becomes in loco parentis, these factors would, prima facie, give rise to a claim by a grandchild to be provided for out of the estate of the deceased grandparent. The fact that the grandchild resided with one, or more, of his, or her, grandparents is a significant factor. Even then, it should be demonstrated that the deceased had come to assume, for some significant time in the grandchild's life, a position more akin to that of a parent than a grandparent, with direct responsibility for the grandchild's support and welfare, or else that the deceased has undertaken a continuing and substantial responsibility to support the applicant grandchild financially or emotionally.
(c) The mere fact of a family relationship between grandparent and grandchild does not, of itself, establish any obligation to provide for the grandchild upon the death of the grandparent. A moral obligation may be created in a particular case by reason, for example, of the care and affection provided by a grandchild to his, or her, grandparent.
(d) Generosity by the grandparent to the grandchild, including contribution to the education of the child, does not convert the grandparental relationship into one of obligation to provide for the grandchild upon the death of the grandparent. It has been said that a pattern of significant generosity by a grandparent, including contributions to education, does not convert the grandparental relationship into one of obligation to the recipients, as distinct from one of voluntary support, generosity and indulgence.
(e) The fact that the deceased occasionally, or even frequently, made gifts to, or for, the benefit of the grandchild does not, in itself, make the grandchild wholly, or partially, dependent on the deceased for the purposes of the Act.
(f) It is relevant to consider what inheritance, or financial support, a grandchild might fairly expect from his, or her, parents."
I made clear that the general principles cannot be elevated to inflexible rules and are subject always to the consideration of the particular circumstances of each case, including the size of the estate, any competing claims, the applicant's conduct and the applicant's relationship with the deceased.
My reasons in Bowditch v NSW Trustee and Guardian, attracted the approval of the Court of Appeal in Chapple v Wilcox at [21] (Basten JA); see also at [65]-[67] (Barrett JA) and in other cases.
It was also submitted that factors warranting the making of the Plaintiffs' applications were made out as the deceased himself identified the Plaintiffs as objects of his testamentary bounty by including them as beneficiaries in his Will.
Counsel for the Plaintiffs submitted that the first Plaintiff is a single parent with two dependent children below the age of 10. She has a car, no savings, and superannuation of approximately $45,000. She estimates her net monthly income in the immediate future to be approximately $4,855 and her monthly expenditure to be approximately $5,960. Her eldest son is on medication for ADHD and sees a child psychologist and paediatric specialist. She is on medication for anxiety and depression.
The second Plaintiff has two dependent children aged 3 years. It was submitted that her net income is $6,500 per month (occasionally she receives commission of $1,000 per month). She lives with her partner in a house owned by her partner's family. Her partner's monthly income is $6,800 and together they have a monthly expenditure of approximately $6,000. It was submitted that the second Plaintiff suffers from depression and anxiety and has physical ailments affecting her nervous system.
It was submitted that the third Plaintiff has nominal savings and superannuation of approximately $15,000. His earnings fluctuate, but are in the vicinity of $900 net per week. His weekly expenditure is in the vicinity of $777.
Senior counsel for the Plaintiffs submitted that each of them should receive a legacy charged on the deceased's realty in New South Wales. It was submitted that this should be in lieu of their modest entitlement to an interest in the deceased's land in Sicily.
Counsel for the Defendants submitted that the Plaintiffs are not eligible persons pursuant to s 57(1)(e) of the Act as each was not "dependent" on the deceased. It was submitted that the Plaintiffs' examples of support given by the deceased depict the ordinary grandfather/grandchild relationship and that they did not make each or any of the Plaintiffs dependent on the deceased.
It was also submitted that the generosity of a grandparent to a grandchild does not convert the grandparental relationship into one of dependency. Nor does it create an obligation or responsibility to provide for the grandchild upon the death of the grandparent.
Further, with respect to the second and third Plaintiffs' bankruptcy status, counsel for the Defendants submitted that her, and his, choice, respectively, to file for bankruptcy, without first seeking assistance from the deceased, is fundamentally inconsistent with the conclusion that there was dependency between either of them and the deceased.
It was submitted it is also relevant that, when the second Plaintiff told Maria she was in debt due to expenses she had incurred renovating the property at No 57, Maria did not offer financial help.
It was submitted that dependency had not been established by the Plaintiffs and, accordingly, that the claim of each must fail.
In written submissions, counsel for the Defendants submitted that there were no factors warranting the making of the Plaintiffs' application for family provision. However, in oral submissions, senior counsel stated that, if the Court was satisfied that the Plaintiffs had demonstrated dependency on the deceased, it was accepted that there are factors warranting the making of provision: Tcpt, 2 June 2022, p 289(22-29).
Counsel for the Defendants submitted that, if the Court finds dependency is established, the Defendants accept that adequate provision was not made for the Plaintiffs.
As I have stated above, counsel for the Defendants provided further written submissions on the reasons of the Court of Appeal in Chisak v Presot. Relevantly, counsel submitted the following:
1. The Defendants' citation of the primary decision in their closing written submissions dated 2 June 2022 was not relevantly undermined by the reasons of the Court of Appeal. Specifically, the closing submissions did not rely on [329] of the primary decision, or the citations referred to in that paragraph.
2. The Defendants' written submissions, at [36] and following, had properly separated the questions of fact as to eligibility of each Plaintiff, from the questions whether there are factors which warranted a grandchild making the application and whether the grandparent owed a moral obligation to make provision for the grandchild, consistent with the observations of White JA.
3. The evidence did not establish that any of the Plaintiffs stayed with the deceased, even for relatively short periods as children (apart from sleepovers), or as adults, after the death of Vincenza, and so the type of inference drawn in the decision, at [55], about assuming parental responsibility was not available in this case. It followed that the reasons and decision on eligibility were clearly distinguishable on the facts.
Accepting what White JA, with whom other members of the Court of Appeal agreed, had written in Chisak v Presot, that it is not legitimate to read into s 57(1)(e) a requirement that partial dependency be "significant", rather than "more than minimal", and that s 57(1)(e) is merely a gateway for the court to consider whether there are factors warranting the making of the application, before turning to the question of provision, each of the Plaintiffs has failed to persuade me that there was whole, or partial, dependency upon the deceased, by her, or him, respectively, at any particular time. Even, if there were some dependency, I am satisfied that it was no more than minimal.
In the circumstances, as none of the Plaintiffs has established that she, or he, respectively, is an eligible person, it is not necessary to reach a conclusion with respect to any other aspect of their claim for a family provision order.
Since the 2012 Will is to be admitted to probate, the associated proceedings are to be dismissed.
I shall allow the legal representatives of the parties 7 days to provide short minutes of order, in each of the two matters, that reflect these reasons. I shall also allow them an opportunity to discuss the question of costs (in both proceedings). If agreement is unable to be reached on the question of costs, I shall list the matters so that a date for the costs argument, and any other argument, may be dealt with.
I adjourn the proceedings to 2:00 p.m. Wednesday, 14 September 2022 or such other date as is agreed at the date of these reasons being delivered.