Brady v Mikan

Brady v Mikan - [2022] NSWSC 956 - NSWSC 2021 case summary — Zoe

Summary

This judgment resolves proceedings about the estate of the late Kata Grguric (the Estate). Without intending any disrespect, in these reasons I will refer to the parties and some others by their given names.
Kata died on 20 March 2019. Kata had no children and was not married when she died. Kata's family members included: 1. The Ilijanics: Barka Ilijanic was Kata's half-sister. Barka died before Kata, on 9 February 2003. Barka was married to Vladimir (Vlado) Ilijanic. They had three children, Tony Ilijanic, Vesna Crnjak and Belinda Brady, who are the Plaintiffs and cross defendants in these proceedings (together, the Plaintiffs). 2. The Mikans: Josip Mikan was Kata's brother. Josip died before Kata, on 1 June 2016. Josip was married to Katy Mikan. They had three children, John Mikan, Robert Mikan and Paul Mikan. John is the defendant and cross claimant in these proceedings.
Kata made at least eight wills between 1998 and 2014, including on: 1. 31 March 1998; 2. 22 October 2003; 3. 24 November 2009; 4. 16 March 2010; 5. 27 October 2011; 6. 10 January 2012; 7. 12 February 2013; and 8. 18 August 2014.
As will become apparent in what follows, those wills demonstrate an overall pattern of Kata moving the focus of her testamentary bounty from the Ilijanics to both families and finally to John Mikan alone.
The Plaintiffs' Further Amended Statement of Claim filed on 24 August 2020 sought: "1 An order that probate of the Will dated 12 February 2013 of the late Kata Grguric who died on 20 March 2019, late of Chatswood ("the deceased") be granted to the Defendant in solemn form, the other instituted executor Josip Mikan having predeceased on 1 June 2016. 2 Order, that in the alternative, the Defendant is estopped from denying the Plaintiffs' claims that they are entitled to the net proceeds of the sale of the deceased's interest in each of the properties the deceased co-owned with them. 2 [sic] Order that the Defendant file and verify his accounts in respect of his 'inter vivos' administration and management of the estate of the deceased. …"
By an Amended Cross Claim filed on 25 September 2020, John sought: "1 Order that probate in solemn form of the will dated 18 August 2014 of the late Kata Grguric (the "deceased") be granted to the Cross-Claimant, John Mikan. 2 In the alternative, order that probate in solemn form of the will dated 12 February 2013 of the deceased be granted to the Cross-Claimant, John Mikan. …"
It was common ground between the parties that if the will of 18 August 2014 (the 2014 Will) is not admitted to probate, the Court should admit the will of 12 February 2013 (the 2013 Will). The 2014 Will leaves everything to John. The 2013 Will leave 60% of her estate to be divided between her 6 nephews and nieces (i.e. both the Ilijanic and Mikan sides of the family) with the balance to her brothers (5% to each of Juraj and Iva in Croatia and the residue to Josip).
The Plaintiffs impugn the 2014 Will on the basis of: 1. Lack of capacity; 2. Lack of knowledge and approval; 3. Undue influence (in both the probate and equitable senses); and 4. Proprietary estoppel.
For the reasons set out below the 2014 Will should be admitted to probate. The Court's reasons can be summarised as: 1. Primarily by reference to the attesting solicitor's contemporaneous file note, but fortified by his and his paralegal's other evidence, Kata had testamentary capacity when she made the 2014 Will. 2. Although some suspicious circumstances were present, the evidence referred to in the preceding paragraph satisfies the Court that Kata knew and approved the contents of the 2014 Will and that she had not been the subject of undue influence. 3. The Plaintiffs have not made out any proprietary estoppel. If any relevant representation was made, there was no relevant reliance or detriment. The Plaintiffs accepted in their evidence that Kata was always free to sell the relevant properties and to change her will.
Mr G Smith of Counsel appeared for the Plaintiffs. Dr S Chapple of Counsel appeared for John.

[4]

Kata's properties

Kata did not spend much money on herself. Kata saved and liked to invest her savings in real estate. She avidly followed the real estate section of the local paper each week. During the time that Kata was living with the Ilijanics, she purchased and sold various properties with them, including: 1. Eddystone Road, Bexley. This property was purchased in 1979. In 1988, Barka and Vlado purchased Kata's share for $61,000. 2. Inverness Avenue, Penshurst. This property was purchased in 1980 and sold in 1994. 3. Milsop Street, Bexley. This property was purchased in 1987 and sold in 1998.
Each of these properties was purchased in partnership between Vlado, Barka, and Kata and there were no restrictions on Kata's ability to deal with those properties. Vlado's evidence was that Kata was entitled absolutely to her share of the proceeds of sale of each property, and was free to use that money as she wished.
Kata purchased other properties as the sole owner, including at Tasman Road, St Georges Basin.
While Kata lived in the Ilijanic home, Vlado had a degree of oversight over Kata and her finances. Vlado managed each of the properties that Kata purchased and collected the rent. He kept the books of the partnership, and was responsible for filing the partnership return each year. He assisted Kata with the preparation of her tax returns, but insisted he was not qualified to give her tax advice. He would pay Kata's bills from money she gave him.
In addition, Vlado was responsible for safeguarding Kata's important documents, including her wills, her passport and Certificates of Title, which he kept in a secure metal box in a locked cellar. When Kata wished to access a document, she would generally ask Vlado to get it for her. Similarly when she wished to deposit a document, she would provide it to Vlado to store.
In the early-mid 1990s, Kata purchased three properties in partnership with the Plaintiffs (the Three Properties).
In 1991, Kata and Tony purchased Iliffe Street, Bexley (Kata and Tony's Property) for approximately $161,000. Tony was then about 20 years old. Kata and Tony were registered proprietors as tenants in common in equal shares. Vlado and Tony shared the collection of rent from Kata and Tony's Property. When Tony qualified as a Chartered Accountant, he took over the management of the property from Vlado. Tony's evidence was that while he could not recall any specific conversations, there had always been a "family understanding" that Kata's interest in any co-owned property would pass to the co-owner.
In 1995, Kata and Vesna purchased St Vincents Road, Bexley (Kata and Vesna's Property) for $230,000. Vesna was then about 21 years old. Her evidence was that Kata had said "I will leave my share of the property to you when I pass". Kata and Vesna were registered proprietors as tenants in common in equal shares. From 1995 to around 2008, Vlado collected all the rent from Kata and Vesna's Property on behalf of Kata and Vesna. When Vlado was on holidays, Vesna collected the rent. Vesna (also a Chartered Accountant) prepared the partnership tax return each year, and provided the relevant figures to Vlado, who prepared Kata's tax return. From 2009, an agent collected the rent.
Tony and Vesna's evidence was that they paid their share of the purchase price for the properties they owned with Kata. Dara Ilijanic's evidence was that from the time of purchase, Kata complained that she had contributed more than her share. Dara is Vlado's sister-in-law and was the only member of the Ilijanic family to give evidence in John's case (i.e. on the Mikan side of the dispute).
In 1995, Kata, Vlado, Barka and Belinda purchased the property at Gloucester Street, Bexley (Kata and Belinda's Property) for $212,000. Belinda's evidence was that Kata had said "I'll leave my shares of the properties to each of you after I die". Kata, Belinda, and Vlado and Barka were registered proprietors as tenants in common as to 50 per cent, 30 per cent and 20 per cent, respectively. At the time, Belinda was 15 years old. Belinda's $60,000 portion of the purchase price was paid by her parents. Belinda later acquired her parents' 20 per cent interest.
In May 1993, Kata also purchased a villa located at Eddystone Road, Bexley (the Villa). Kata was the sole registered proprietor of the Villa.

[9]

The 2010 Will

By 2009 or early 2010, Kata began speaking to the Mikans about her desire to sell the Three Properties.
A medical record for Kata from Dr Verma's practice as at 11 March 2013 records under "past medical history" that an active condition of Kata's in 2010 was: "Cognitive impairment - Likely Vascular". For 2011 it records "osteoporosis".
On 16 March 2010, Josip drove Kata to meet with a new solicitor, David Alexander, a partner in Goldrick Farrell Mullan. Kata and Mr Alexander met alone. Kata made a new will at the meeting which was witnessed by Mr Alexander (the 2010 Will). Kata appointed Josip alone as her executor, and divided the Estate: 1. 10 per cent to each of the three Ilijanic children (the Plaintiffs), Iva and Juraj. 2. 50 per cent to Josip.
Kata also executed a Power of Attorney appointing Josip as her attorney. Josip signed his acceptance on the same date.
In February 2011, Kata and Belinda attended the offices of John Orford, solicitor. Mr Orford was Vlado's solicitor. Kata executed a Power of Attorney in favour of Belinda and appointing her as an Enduring Guardian. There was a suggestion that she may also have executed a will, but no copy of any such will was found. John's evidence was that Kata complained to him that she had been "forced" to sign those documents.
In early April 2011, Kata met again with Mr Orford and gave instructions that she wished to revoke the appointments that she had previously made. Kata ultimately withdrew those instructions after a lengthy meeting on 12 April 2011. A letter from Mr Orford to Kata of that day confirms that Kata took with her that day the signed Power of Attorney and appointment of Enduring Guardian.
While Belinda and Vlado were on holidays overseas, Kata attempted to visit Mr Orford again on 29 April 2011. On her way there, she was involved in a car accident as a pedestrian. She suffered serious injuries, including a fractured tibia and fibula. These injuries led to long-lasting leg pain. Kata was in hospital (including for rehabilitation) until 18 July 2011. A report from St George Hospital printed on 3 August 2011 records "dementia" as part of her background history without further comment. It recommends she have "a period of rehab to get back to her usual self … mental health review in rehab for her temporary low mood".

[10]

The family meeting of 29 September 2011 and proposed sale of Kata's joint properties with the Plaintiffs

On 12 August 2011, Kata underwent a Calvary Rehabilitation and Geriatric Services (CRAGS) ACAT assessment. The CRAGS assessment records that Kata had been diagnosed with anxiety, short term memory problems, hearing loss, heart disease, high cholesterol and leg pain. No diagnosis of dementia is referred to and the possibility of a dementia care package has not been checked on the form. The options that were approved were for low level residential and respite care and for a community aged care package at home. Checked boxes in the cognitive behaviour section indicate that Kata "regularly" has short term memory problems, "never" has long term memory problems, and "occasionally" has disturbed sleep or insomnia and confusion. The assessment notes that Kata is "alert and responsive".
On 31 August 2011, Kata underwent a rehabilitation review. The doctor wrote a letter to Dr Verma on 5 September 2011, which included: "… She has Meals on Wheels seven days a week. Her niece helps her with housework, e.g. cleaning and laundry. She is not able to remember what medications she takes, but apparently there has not been any significant change since discharge from hospital. On examination, the MMSE score is 18/29. She is not able to write a sentence in English due to her Croatian background. She has significant impairment in orientation to time and place, as well as short-term memory. … [the doctor then summarises Kata's leg injury and mobility issues] … Impression: Cognitive impairment, # L tibia and fibula as well as degloving injury of R ankle. Management Plan: 1. Continue Transitional Aged Care Service; 2. Could you kindly refer her to the Cognition Clinic at Calvary Hospital for cognitive assessment and she may benefit treatment [sic] for dementia? 3. I shall arrange for her to have a neuropsychology assessment at CRAGS; 4. She will require community service and Meals on Wheels after TACS finishes; 5. I would like to review her in November 2011."
Following her accident, Kata asked John to help her to negotiate with the Plaintiffs to sell the Three Properties. She told John she wanted her money in the bank.
John raised this issue with Belinda and Vesna after a carer's meeting at Kata's Villa on 29 September 2011. Belinda and Vesna were opposed to the sale of the Three Properties. Both Belinda and John's evidence was that during the discussion, Kata nodded at John to continue. The conversation ended when John said: "If you don't do what Teta Kata wants I will end up selling her half for her and you will be stuck with a strange owner after that."
After that meeting, on the same day, Belinda called Needs, Chan & Monahan and made an appointment for Kata to attend the following day. The appointment was cancelled after Kata told Belinda she did not want to go because she felt unwell. These facts are corroborated by brief notes in the Needs, Chan & Monahan file
Belinda had a conversation with Kata the following day (30 September 2011). Belinda stated that it was not clear to her from that conversation whether or not Kata actually wished to sell the properties.
Shortly after that meeting, Belinda contacted Tony. He then had a telephone conversation with Kata about her intention to sell the Three Properties. Kata explained that she wanted to sell the Three Properties because she needed "cash for the nursing home". Tony's evidence is that he tried to explain to her that she did not need to sell the Three Properties.
On 1 October 2011, Tony sent an email to Belinda and Vesna, which enclosed a draft email to John. Tony's email to his sisters read: "Dear sisters Based on the recent discussions I think it is necessary for me to send the below email directly to John Mikan to clarify my position. I think you should also approach him individually to clarify your position, and make it clear that if he wants to get involved, he is not dealing collectively as one with us, but there are three different people that he has to deal with and spend time on, separately, if at all. Please review, discuss between ourselves and Teta before I send to him. I will send a separate email on how I think proceeds should be handled if there is an eventual sale of property to you (not John)"
The draft email to John was never sent, on advice from Vesna and Belinda that it would only inflame the situation. The draft email included: "… as I believe you are aware of, I own a property with Teta Kata. I understand that you have initiated and entered into discussions on the transfer in ownership of this property. As an owner in this property, I am not aware of any immediate intention to transfer this property, nor have I received any communication or agreed as such. I also do not quite understand in what capacity you are acting in initiating and involvement in this discussion on my property. I believe it is necessary to clarify the situation. This property was acquired some time ago with Teta Kata. A mutual agreement at the time of purchase and which is still enforce [sic] is that in the case of any unforeseen event related to Teta Kata, her share of the property or proceeds from the sale of property would revert to me. I believe, Teta Kata, if she is still of sound mind, will also be able to confirm this arrangement and agreement. …"
After his telephone conversation with Kata, Tony drafted a document (Tony's Document). His evidence was that he did not discuss it specifically with Kata. Vesna's evidence was she also did not discuss it with Kata. Tony's affidavit evidence was he drafted the document "to try and understand and confirm what had been the family understanding all along, and my understanding of that and as to what should be done if the properties were going to be sold contrary to that agreement and understanding".
The document was written in parallel columns in English and Croatian and provided (the text appears as translated with grammatical and other errors included): "My statement related to my property with shared ownership. 1. I, Kata Grguric, wish below is clear to all who may question me. I allow my nieces; Belinda Brady (maiden name Ilijanic), Vesna Crnjak (Maiden name Ilijanic) or nephew Tony Ilijanic, to show this document to anyone whom they believe needs to be explained my decision. 2. I Kata Grguric, immediately want documents and contracts made or changed by a solicitor to complete my wishes below and for my signing. 3. If possible, the documents and contracts should be made so nothing can be changed in the future or complained against by any other third persons. 4. My wish is that upon my death, my whole share in each of the three properties that I jointly own with Belinda Brady (Maiden name Ilijanic), Vesna Crnjak (maiden name Ilijanic) and Tony Ilijanic, is given totally to them. 5. Belinda, Vesna and Tony would get my whole share of the property I jointly own with each of them. Belinda gets my share in … Gloucestser St Bexley, NSW, Australia; Vesna gets my share in … St. Vincent St. Bexley, NSW, Australia; Tony gets my share in … Iliffe st Bexley NSW, Australia. 6. Before going into the partnership for purchase of each of these three properties, I promised and made a commitment to Belinda, Vesna, and Tony, and their parents, that when I die, my share of each property would be left to Belinda, Vesna, and Tony. 7. I have on many times repeated this promise and wish, to each of Belinda, Vesna, and Tony, their parents and especially to their mother (my sister, Barka) while she was alive. 8. I wish for this paper to make sure that this promise of long time standing is clear to anyone that may question it now or in the future. 9. This is a promise I have made to each of them and I do not plan to break this promise for any reason. 10. Should my share in any of the above properties be sold at any point during my life, I want the net proceeds from my share of the sale to be save and to be given proportionately to Belinda, Vesna and Tony upon my death. 11. During my life, I want the net proceeds from any sale of my share in the above property to be put into a special separate account for Belinda, Vesna and Tony. 12. I want the account to be made to ensure Belinda, Vesna and Tony are protected from anyone else. 13. I want the net interest earned (after taxes, fees and all other costs related to the operation of this account) on this special separate account, to be given to me, Kata Grguric, during my lifetime. 14. I want to be able to withdraw and borrow cash from this account, if I need to pay for medical costs and nursing home costs, and only if I do not have enough other cash and assets to pay for these costs. a. I would take money out of the account and return it back to the account when able to. b. At the end of my life, all amounts taken out of the account and not returned during my lifetime would be returned to the account from my remaining estate assets and cash upon my death. 15. During my lifetime, no other amounts can be withdrawn, by anyone including me, except for my share of net interest (after taxes, costs, and fees related to the operation of this account), and my borrowing of monies which I will and want to return during my life or upon my death. 16. Upon my death all remaining amounts in this account and including rights to amounts borrowed out of the account by me, are to become only the ownership of Belinda, Vesna and Tony, shared proportionately among them, and will be immediately freely available to Belinda, Vesna and Tony, to access their proportional share of the amounts and rights."
The document also contained an execution clause for Kata to sign.
Belinda's evidence was that she went through the document with Kata, but that (Tcpt, 16 August 2021, p 99(4-7): "… I thought this document was far too complicated for her. Like, it was so much detail, and while it was professional and probably well put together, I don't actually - I think it was just far too detailed and complicated for what she was actually intending."
Following that discussion, Belinda made an appointment for Kata to attend Needs, Chan & Monahan on 5 October 2011. Notwithstanding her evidence in the preceding paragraph, Belinda took Tony's Document to that appointment.
An undated handwritten note was tendered by Dr Chapple during his cross-examination of Vlado. Vlado identified it as being in Kata's handwriting. I include the English translation of it at this point in the narrative because it appears to deal with her wish to sell the Three Properties. It was written in Croatian with phonetic references to the Villa and the Three Properties: "Kata Grguric Vila 1/11/15 Ediston Rod Bekslt/ [phonetic spelling for Eddystone Road, Bexley] I arrived in Australia on 17/7/1970 came to my brother Joza and was living at his place and working from dawn until 7 days a week from early in the morning until late in the evening I always thought better to have so that no-one has difficulties with me and now the end is near and death needs to be fixed too while still able to make it easier for myself and my brothers and Family. Kata I would like to sell the houses and put in the bank in my account to keep everything in bank' have everything ready when I need when I need to go to hospital or a nursing home= 2 Vlado says where are you going to put the money from the houses I said in the bank in my account he says that the house money needs now' to be made out to Vesna Belinda Tony and Tony and me to spend the money that I have from before ken please rent from Ajlef glosta sanvinces [phonetic references to Ilife St, Gloucester St and St Vincents Rd] half in my account in my bank / and Vesna's half to Tony Ajlef half to Vesna sanvices / half to Belina glosta ken please my money in my name and address please my please ken"

[11]

The 2011 Will

On 5 October 2011, Belinda and Kata attended a meeting with Mr Chan and Paul Lee, another solicitor at Needs, Chan & Monahan who was preparing to take over Mr Chan's clients.
Mr Lee recorded in a file note: "- Mrs Kata Grguric & niece Belinda Brady came to office - produced a document in English & Croatian language which Belinda said was prepared according to wishes of Mrs Grguric. Doc. was to confirm her wishes re will and 3 properties that Grguric had promised to give - we need to consider the document (the part in English), then to arrange another meeting with client. Also to re-draft will (previous 24 Nov 2009) for client approval."
Following that meeting, either Mr Lee or Mr Chan prepared a draft will. On 14 October 2011, Mr Lee emailed to Belinda a letter to Kata enclosing the draft will. On 16 October 2011, Belinda responded: "Hi Paul, I have printed and highlighted the changes made to points 3, 4 and 5. I gave a copy to Kata and explained the changes to her and she said she is happy with it. Her concern is that if the properties are sold she wants to be able to access the money if she needs it in her lifetime. I have reassured her that nothing in this will prevents her from doing so but I think she may need further reassurance before she signs it. Something which I noticed is that it says "amount equal to the price or value they are sold or disposed". I think it may be worth stating that it should be the net value of proceeds i.e. after selling costs and associated taxes. I don't think that this is implied by what is written. I anticipate that there will be agent commissions and capital gains taxes relating to these properties so it does not seem right that they can be taken from the other part of her estate left to other beneficiaries. I explained this to Kata and she also agreed. Regards, Belinda"
Kata had a further meeting with Mr Chan and Mr Lee on 27 October 2011. Mr Lee's file note indicates the meeting went from 12.10pm to 1.05pm and records: "- Attend meeting K. Grguric & niece Belinda - Read draft Will and Document of ppty share & payment - Kata can read Croatian/some English Document prepared by Belinda's brother - O.K. - Will, [Cyril Chan] explained amended draft again v. long discussion - Signed Will Witness Cyril Chan & Paul Lee N.B. Document of explanation NOT signed - We kept Will Copy to client + Belinda"
Mr Lee's evidence in cross-examination was that Belinda would have been present for the entire meeting, because she was required to interpret. Belinda's evidence was that she drove Kata to the meeting, but that she had her young daughter with her that day and did not recall sitting in on a lengthy meeting.
The will Kata signed during the meeting on 27 October 2011 (the 2011 Will) was in similar terms to the 2009 Will. It appointed Josip and Belinda as executors, gave Kata's share in the properties she owned with each of the Plaintiffs to the co-owner, and left the residue to Josip, Iva and Juraj. Unlike the 2009 Will, the 2011 Will provided that if the properties Kata owned with the Plaintiffs had been sold, the co-owner would receive a cash legacy equivalent to her share of the properties.
Kata did not execute Tony's Document, which was in both English and Croatian. Mr Lee's evidence was that he and Mr Chan did not ask Kata to sign the document because they had not explained it to her.
Kata was seen by a specialist in geriatric medicine on 31 October 2011, who wrote a letter to Dr Verma which included: "Kata was complaining of persisting mild right ankle pain however she mobilised with four wheel frame independently and without significant distress or discomfort. It was unclear what analgesics she is taking as she did not bring her medications with her today. The second issue was cognitive impairment. Her MMSE was 20/30. I noted that she had a diagnosis of dementia in 2010. It was unclear whether she had seen a specialist, had any investigation to her memory impairment and progression. Today Kata displayed lack of insight to her memory impairment, was unable to tell me her medical background apart from her car accident and was unable to tell me what medications she takes. She reported being independent with her ADLs [Activities of Daily Living] and reported managing "without" the assistance of community services. She reported managing her bills, cooks and shops on her own. … Plans: 1. I would like to contact her niece to obtain history regarding her cognition. 2. I would like to review Kata in the clinic in January with her medications and her niece 3. Await neuropsychiatric assessment."
The Court was not taken to any evidence to show whether or not any of the "plans" were acted upon.
Kata had a further appointment to see Mr Chan and Mr Lee on 3 November 2011. On 1 November 2011, Vlado called the offices of Needs, Chan & Monahan and left a message that Kata would be unable to attend the appointment. He also stated that he had a question that he needed to ask. Mr Lee returned Vlado's call. Mr Lee made a note of the call and agreed in cross-examination that the conversation was, in substance, that Vlado had a question about whether Kata had a Power of Attorney, how to find out if she had a Power of Attorney and, if she did, how that Power of Attorney could be cancelled or revoked. Following that call, Mr Lee arranged for the relevant searches to be performed.
On 15 December 2011, Kata attended the offices of Needs, Chan & Monahan without an appointment. Kata told Mr Chan that she wanted to talk to him about changing her will but Mr Chan was unavailable to meet with her. Mr Chan asked her to come back at 12.00pm the following day. Mr Chan's handwritten file note records that Kata did not attend on 16 December 2011.
On 3 January 2012 Kata called Needs, Chan & Monahan and made an appointment with Mr Chan for 11 January 2012.
In December 2011 or early 2012, Kata and Tony's Property was sold and Kata received half of the net proceeds of sale.

[14]

The 2013 Will

On 12 February 2013, Kata again met with Mr Alexander. Josip and Katy took Kata to the appointment, but Mr Alexander took instructions from Kata in their absence. Mr Alexander recorded in a file note: "Attending on client in consultation with her brother and her sister-in-law. Discussed the Will. She said she had sold the properties mentioned in her old Will and had invested all the money. She said she wanted to change the Will to make provision for all her nephews and nieces and to leave the residue of her estate to her brother. She said she still wanted to leave 5% to her two half brothers who live in Croatia and Serbia Discussed and read the Will with her. Will prepared and signed. She informed me that she was now looking at some retirement villages in Willoughby and Chatswood to enable her to be closer to her brother who is helping her with her every day affairs. She also informed me that she had a Power of Attorney with her niece Belinda and that she may want to cancel that when she eventually moves into the retirement village."
In addition to his file note, Mr Alexander's independent recollection was that Kata told him that she had sold the properties mentioned in her previous will and invested the money. She also said that Josip was helping her with whatever she needed, so she wanted to move into aged care closer to him and cancel Belinda's power of attorney.
The will Kata executed on 12 February 2013 (the 2013 Will) appointed Josip as her executor with John in substitution and divided the Estate: 1. 10 per cent to each of the three Ilijanic children (the Plaintiffs) and the three Mikan children (John, Robert, and Paul); 2. 5 per cent each to Iva and Juraj; and 3. Residue to Josip.
Around March 2013, Kata underwent a medical assessment for a personal injury claim relating to her accident in 2011. The letter written by the assessing physician to the insurer dated 12 March 2013 includes: "I note a letter from Dr Verma dated 20 April 2013 noting that CT scan of the head on 8 February 2013 demonstrated chronic small vessel diseased."
The letter records that the physician saw Kata in the presence of Josip, Katy and an interpreter. It sets out her history and states "the following history is as related to me by Ms Grguric unless otherwise stated". It also states "Ms Grguric was cooperative with the examination. There was no embellishment of complaints". While it may be assumed Kata recounted her medical history through the interpreter, the letter gives no suggestion that Kata was inhibited by any mental impairment, notwithstanding that the author lists "cognitive impairment - likely vascular" under her past medical history.

[15]

Kata's move to St Paul's

In about mid-2013, Kata was finding it difficult living by herself. On 10 September 2013, Kata moved to St Paul's in Northbridge, a low care residential aged care facility. Belinda, John and other family members visited Kata regularly at St Paul's.
Progress notes from St Paul's record: 13 September 2013, 2.30pm: "Resident was showered buy [sic] herself at 6am, assiste[d] her with bed making and changing towels." 14 September 2013, 6.20am: "Alert but bit confused. Awake since 5.10am. Wandering in room. Room temperature adjusted with the air con. Refused having any tea or coffee but had a banana. Overall nil issues." 21 September 2013, 6.30am: "Awake early @ 4.30 in the morning and trying to organise her room as well as take shower. Resident seems quite confused." 21 September 2013, 10.00pm: "Resident was supervised and prompted this evening when required 27 September 2013: "Kata was showered in the evening. Only assistance given is [support]."
On 19 September 2013, John emailed Belinda to say: "I think Teta Kata is apparently trying to contact you to tell you that she doesn't have enough clothes with her." Belinda replied: "How frustrating, I speak to her every day and she's never mentioned it, said everything is fine. I just got back from spending the afternoon with her so I'll pick some up when I'm in the area next."
An ACAT assessment was completed on 1 October 2013, which identified Kata as "an alert and communicative lady". It records that Kata had been diagnosed with leg pain, heart disease, high cholesterol, anxiety and hearing loss, but does not include short term memory loss or dementia on her list of diagnosed disorders. Checked boxes record that Kata "regularly" had short term memory problems and "occasionally" had disturbed sleep, depressive symptoms, confusion and disorientation about places and other people. The accompanying comments state: "Mrs Grguric has difficulty with recall when anxious. She has disturbed sleep when in pain. Pain medication is required. She may have low mood when socially isolated. Her pain level and level of tiredness impacts on her potential for confusion. She responds to encouragement to reduce anxiety."
The assessment also records that Kata requires "standby assistance" for personal care but that she attends to her personal hygiene herself. She requires encouragement "to reduce the potential for anxiety" and would benefit from mobilisation assistance when away from home. Kata was recommended for entry to low level residential respite care and low level residential permanent care.
On 4 October 2013, Belinda emailed John about Kata's ACAT assessment. She included: "I will ask for your help and suggest that we both be there with Teta [Kata] to finalise the paperwork and funds. She seems to give a different story to each member of the family and it creates unnecessary stress on us all when we are trying to help her."
Subsequent progress notes from St Paul's record: 9 October 2013, 12.15pm: ""Resident was supervised for her ADLs this morning. Went to dining for her breakfast. Resident seemed confused most of the time. Difficulty in finding her way back to her room, needs to be assisted every time to the dining + then back to her room. Reassurance given most of the time." 13 October 2013, 2.45pm: "Resident was supervised this morning for the shower and dressing. Very confused and forgetful all the time. Reminded her all the time what need to do next after breakfast. Reassurance given most of the time. Need assistant [sic] to dining room and walk back to her room."
An Aged Care Funding Instrument (ACFI) cognitive skills checklist from 15 November 2013 records Kata's level of impairment as "mild", defined as "may appear normal but on investigation has some problems in every day activities". Her Catholic Healthcare assessment and care plan from November 2013 states that Kata requires supervision due to her "unsteady gait and history of falls". It also notes that she may get confused when she is anxious and that she sometimes wanders.
Kata's care plan dated 21 November 2013 includes: "Kata requires the assistance of care staff to manage behaviours including: Misunderstanding conversations. Often nods and smiles inappropriately when staff ask her questions. Physical agitation: Kata doesn't want to be a trouble to anyone. When staff attend to her she does not sit still and gets up and down from her chair whilst they are in the room. She gets confused easily. Kata has heart disease and right foot pain. Due to this she has been assessed as requiring supervision with undressing, dressing, washing, drying and grooming. She, however, verbally refuses to accept necessary supervision and will often wear the same clothes. The behaviours usually occur: Daily"
The care plan also lists the intervention for misunderstanding conversations to be "ask her family to act as translators if Kata doesn't understand". It also states that Kata requires assistance with taking medication, mobility, and maintaining eating and drinking due to short term memory loss, anxiety and confusion. It states that Kata's communication and comprehension is impaired by short term memory loss and English as a second language. It records that Kata experiences pain from her leg injury which she displays verbally and by becoming restless and agitated.
Entries from November 2013 to April 2014 record that Kata regularly refused assistance with showering and aspects of personal hygiene, but that she was checked regularly or supervised by staff to ensure all was well. Entries on 13 September 2013 and 22 November 2013 state that she refused a shower because she had already showered herself. An entry on 4 December 2013 notes that she was already dressed when the staff went to check on her.
Over the same period, Kata was often agitated about her leg pain and her level of English when trying to explain to staff what she wanted.
On several occasions, the records note that Kata was found walking around the corridors of St Paul's, including in the early hours of the morning. She explained to staff that walking helped to relieve her leg pain. On one occasion she was found wandering in other residents' rooms. She said that she had gone to meet friends.
On 4 March 2014, John notified Kata's treating GP, Dr Lawrence Chan, that he was concerned Kata may have depression. Dr Chan's handwritten notes record that Kata felt well, was energised, talkative, motivated and doing exercises twice daily by herself, and that she said that she was happy at St Paul's. However, she reported a low mood due to her leg injury limiting her abilities. Dr Chan noted his impression: "Not major depression".
Two incidents are recorded in progress notes in early March 2014: 6 March 2014, 2.10pm: "Staff found the resident hiding 20 facewashers, 20 bath towels (40 towels), 10 unused toilet rolls in her wardrobe & cupboard. Her two drawers were found full of paper towels from the facility. …" 7 March 2014, 2:30pm: "Resident was seen wrapping the fish from the lunch & keeping it in her frame to take to her room. Explained to her its [sic] not hygienic to take the leftover fish and ask with the staff for food if she feels hungry. But, resident did not agree & took the fish to her room …"
A further Catholic Healthcare assessment for Kata was undertaken on 30 April 2014. The pain inventory records that Kata's leg pain was interfering significantly with her general activity, mood, sleep, enjoyment of life and ability to concentrate.

[16]

Sale of Kata's Villa

Following her move to St Paul's, Kata asked John to arrange for the sale of her villa in Bexley. John contacted a Croatian speaking solicitor, Robert Djundja, to assist with the sale. John provided Mr Djundja with a copy of Kata's ACAT Assessment and Mr Djundja requested a certificate of capacity from Kata's treating doctor.
In accordance with this request, John made an appointment for Kata with Dr Chan on 2 May 2014. The consultation went for almost an hour. Dr Chan recorded in his notes: "Subjective: Reason for visit: Assessing testamentary capacity Her brother's wife and brother's son (John) present. Bothered by constant burning pain at right foot (surgical site from 3 yrs ago). Sleep affected - difficult to sleep after 0100. She said that she was previously forced to sign documents by Belinda (niece) to make her the power of attorney and do a will that she does not agree with. She said she didn't know what she was reading since she could not read and was pressured to sign the documents. She now strongly regrets this after finding out what the documents were and wants to change it. We discussed today at length about her plan to sell her current property (villa), change her will and change her power of attorney and enduring guardianship. She understands the role of will, what she wants to happen to her property and who she can give her property to. She expressed that she wants her brother and John (nephew) to be in charge of her finances and her medical care as enduring guardians. She does not have a disorder of mind that would influence her decisions. Objective: Has some hearing difficulty (going to audiologist next week), however understands questions and able to give coherent and sensible answers. She is clear on what she wants and able to express them. There was not evidence of confusion. Relatives present helped explain questions in plain English and occasional interpretation of questions into Croatian. Kata was able to give full sentence answers in English showing full understanding of her own wishes without needing interpretation from Croatian. Assessment: Has testamentary capacity ? neuropathic pain at right ankle"
Following the consultation, Dr Chan provided a letter which read: "This is to certify that I am the general practitioner looking after Kata Grguric. I have assessed her today and find that she is competent with testamentary capacity. She has expressed her wishes to change the will, sell her property and change her powers of attorney and enduring guardianship. She has expressed understanding of these and does not have a disorder of mind that would influence her decisions."
Mr Djundja subsequently met with Kata in early May 2014. He spoke with her alone, in a mixture of Croatian and English. Mr Djundja was satisfied from their conversation that Kata had capacity to give instructions, and he proceeded to take instructions from her for the sale of her Villa.
A progress note from St Paul's records on 25 May 2014: 6.10am: "Multiple times i.e. @ 1.30hrs, 2.20hrs; 4.30hrs found walking in the corridor and trying to open all the windows. Was suggested to try to sleep. Nil any issues identified by resident for reason to open windows. Alert, but quite confused."
On 13 June 2014, Kata was taken to hospital due to bleeding from her ankle. She was discharged shortly thereafter.
In late June 2014, after Kata had signed the contract of sale but before contracts had been exchanged, Mr Djundja spoke with Kata on the telephone. Mr Djundja explained the basic terms of the sale and was satisfied that Kata understood and was willing to proceed.

[17]

The 2014 Will

Progress notes on 16 July 2014 record that Kata was agitated when St Paul's staff were fixing her bed, but settled afterwards. She told the staff she had a headache.
On two occasions in late July 2014, staff saw Kata taking towels from the linen trolley.
On 2 August 2014, nursing staff at St Paul's tried to take Kata to hospital as her ankle was bleeding again. Kata was unwilling to go. Progress notes record that Kata was conscious, alert and not in pain. Kata rang her family and John came to assist. Kata was eventually taken to hospital and returned later that day, with instructions to keep her leg elevated.
Progress notes on 3 August 2014 record that Kata was alert and oriented, but quite anxious and worried about her leg. The bleeding from her ankle had stopped but she was worried that it would happen again, and so requested breakfast in her room.
On 4 August 2014, the progress notes record: "Kata has 'an episode' in the dining room at lunch time. The other residents said they were talking to her and noticed her left hand was shaking. She then repeatedly went stiff and blacked out for a few seconds. She soon regained consciousness. Dr [L] Chan was notified and he directed us to send her to hospital for assessment. …"
Kata was taken to hospital. She returned to St Paul's later that day. The hospital discharge note records: "… Feels well now Can't r[e]member events Time Y Place Y Year N, Month N, Age Y, DOB Y, Residencey [sic] Y, Person Y …"
On 18 August 2014, Kata met with Mr Alexander. Josip, Katy and John accompanied her. Mr Alexander had an initial discussion with the family in the reception area, and then spoke with Kata in his office, without Josip, Katy or John present. He asked his bilingual paralegal, Ms Fran Music, to sit in on the meeting to assist with any translation that might be required.
Mr Alexander's file note of the meeting records: "Attending on Kata Grguric in consultation with her brother Josip Mikan, his wife and his son John Mikan. I was informed that there had been many family discussions and that she had made a decision to make some changes. I was informed that the property that she owned with [words were plainly omitted here when the file note was typed from Mr Alexander's dictation] her nephew John as her Attorney as he had been attending to her affairs for approximately the past two years whilst she had been living at Eastern Valley Way. I said I thought it was normal for this to be to her brother and failing her brother to the son. I said I would see her alone. Met with Kata and Fran Music who helped with the translation when these matters were all discussed again and when she confirmed that she wanted to revoke the Power of Attorney in favour of her niece with whom she previously owned the property which was now sold and wished to appoint her nephew John Mikan under the Power of Attorney and Enduring Guardian and make him the sole beneficiary under his [sic] Will. Also discussed with client Family Provisions and the right of the nephews and nieces to bring a claim. I said I did not think that they had good grounds if they were never dependent members of her household and as in any event there had been financial arrangements between them. Client also informed me that her other brother had attended to maintenance work for her for twenty five years approximately over a number of properties that she owned with her nephews and nieces and her nephew John Mikan informed me that as far as they were aware the brother was getting paid through the estate agents and also cash from Kata Grguric. I said this was not really a matter for the Will and that that would need to be a claim. I pointed out however that any claim be time barred after six years and that there would need to be some evidence of work. He said the properties had already been sold two years ago and in any event did not appear to be a problem."
I accept that Mr Alexander asked her to explain why she wanted to remove the other beneficiaries. His evidence was that (Tcpt, 17 August 2021, p 178(1-3)): "… there's no way I would not have raised this with her and to the best of my recollection, she felt that they are the ones who are caring and looking after her and that she felt that that is what she wanted to do."
Kata did not tell Mr Alexander that the Plaintiffs had been part of her household for many years (Tcpt, 17 August 2021, p 180(17-20)): "Q. Did she tell you that the two nieces in Australia and one of the nephews were a member of her household for very many years? A. No, she didn't, because I would have made a note or been conscious of that. But she - she would have told me that they weren't, and hence my view."
Mr Alexander then prepared the draft documents and had a further meeting with Kata later that day. Again, only Mr Alexander and Ms Music were present. Mr Alexander read and explained the operative clauses to Kata, and she confirmed that was what she wanted. Ms Music then read parts of the document to Kata in Croatian. Kata confirmed to Ms Music in Croatian that she understood and was happy with it. Kata then executed the 2014 Will in the presence of Mr Alexander and Ms Music.
John and Katy's evidence was that Kata did not tell them John would be the beneficiary under the 2014 Will. She told them they would "find out when I am dead" (Tcpt, 20 August 2021, p 333(47)-334(6)).
As at 18 August 2014, the Estate comprised cash (in bank accounts and invested), Kata's accommodation bond at St Paul's, and the funds Kata was waiting to receive upon settlement of the sale of the Villa.
After the meeting, Mr Alexander's firm sent a letter to Belinda informing her that Kata had revoked the power of attorney in her favour. Belinda's evidence was that she visited Kata shortly afterwards and showed her the revocation. Belinda explained to Kata that the revocation "means that you can no longer ask me to do anything for you that involves forms or banking." Kata responded: "oh yeah, you're busy with the kids and Josip and John have the time to help me now".
The Catholic Healthcare social profile for Kata from September 2014 lists Kata's arrival in Australia as "approx. 2003" and records only "Joseph Mikan" under Kata's siblings. For "Family and/or friends likely to be involved with resident" it states "Not many. Some infrequently". Some sections appear to have been left blank. There is no indication of who completed the form or the source of the information.
On 7 November 2014, Kata has a sudden onset of dizziness, unsteadiness and a headache, which rendered her unable to walk. She was taken to hospital, by which time her symptoms appear to have resolved and she reported feeling very well. Dr Chan referred Kata to a stroke specialist. The specialist wrote a letter dated 12 November 2014 which included: "Neurologic Examination: On examination, Ms Grguric was fully oriented with no aphasia, no dysarthria, normal cranial nerve function, no sensory deficit and normal coordination … Conclusion & Recommendation: The MRI did not show an acute ischaemia. Therefore we can exclude a neurovascular event as a cause for her symptoms. Multiple small micro-bleeds were seen as well as chronic microvascular changes and general brain atrophy …"

[18]

Kata's move to Willowood Nursing Home

On 5 June 2015 Kata was again taken to hospital with syncope. On 24 June 2015, an updated ACFI cognitive skills checklist records Kata's level of impairment as "moderate", in contrast to the same assessment in November 2013 which rated her level of impairment as "mild" (see [89] above).
In late June 2015, Kata had a major fall and hit her head. Kata spent approximately two months in hospital and was discharged to Willowood Nursing Home in high care. Discharge notes record: "1. Falls … A previous MRI on 11/11/14 at RNSH showed multiple areas representative of chronic small vessel disease and hence it is likely that Kata has vascular dementia. Her ventricles and CSF spaces were markedly prominent in keeping with age related cortical volume loss and also is likely to account for her poor cognition and decline over the last few months with decreased mobility. 3. Mixed alzheimers and vascular dementia Kata was assessed by the aged care department (Dr Ogle) and based on her clinical history and picture of gradual deterioration with a subsequent acute deterioration requiring hospitalisation plus radiologic changes of vascular dementia, she was diagnosed with a mixed alzheimers/vascular dementia picture. This is likely to explain her change in cognition and increased falls requiring likely increased level of care on discharge. However Kata was reviewed by the rehabilitation service and accepted by Dr Haram for a trial of rehab at Greenwich hospital in the event this is a persisting delirium superimposed on her dementia. Kata received daily physiotherapy whilst an inpatient however was not seen to markedly improve throughout her admission. Her Rudas with interpreter was 15/30 showing significant cognitive impairment. … 7. Discharge destination Kata's cognition markedly deteriorated whilst in hospital and her low level care facility refused her return with her worsening cognition and behavioural issues and hence she required high level permanent care. …"
Kata died on 20 March 2019 from a sudden onset of pneumonia.

[20]

Documentary evidence

Key parts of the documentary evidence are summarised or reproduced in the preceding section. Voluminous medical records and related documents were in evidence and were also considered in Professor Peisah's report, to which I return below. However, while those documents are potentially important evidence, they have limitations which the Court takes into account.
Aged care assessments and care plans: A number of aged care assessments and care plans for Kata were in evidence. The difficulty with this evidence is that it largely consisted of checked boxes, with limited or no further detail about why a particular option may have been selected.
For example, the Catholic Healthcare personal hygiene assessment dated 30 April 2014 is partially incomplete, and at times contradictory boxes have been checked. It indicates that Kata does not require supervision for showering, but also that staff cannot leave Kata during showering. A checked box also indicates that Kata does not suffer from disturbed sleep, although progress notes from the preceding months record instances where Kata was found awake and walking around during the night.
While the assessments and care plans are undoubtedly an indication of Kata's condition at the date of completion, caution is needed in relying on such evidence in this case. This is particularly so where the qualifications of the person completing the documents are unknown.
St Paul's progress notes: Staff notes about Kata's progress and daily care over her time at St Paul's were in evidence. The notes were handwritten and generally very brief.
There is again a need for caution in interpreting what is recorded in the progress notes. For example, several entries record that Kata verbally refused assistance with showering and personal hygiene. However, it appears from other entries and Kata's care plan at that time that she undertook personal hygiene tasks herself, with supervision rather than assistance from staff. She obviously wanted to maintain some measure of independence to the extent she could.
Entries which record Kata to be "confused" are of limited assistance without further detail. For example, language barriers may have been a factor which caused Kata to appear confused at times. There are several entries which make reference to Kata becoming agitated about her level of English when interacting with staff. It appears from the way the progress notes are written that English may also have been a second language for some of the staff, which could further exacerbate Kata's communication difficulties. Many of the notes do not contain sufficient detail to shed light on the extent to which her confusion was due to cognitive impairment, physical pain or language difficulties.
Medical records: As with the assessments and progress notes, the brevity of many of the medical records in evidence means they must be interpreted with caution. Medical records from Kata's former GP, Dr Verma, include only very brief references to Kata's cognitive condition. As I have noted above, a record from 2008 mentions Kata being "very forgetful". A record from 10 July 2009 states "dementia". Subsequent entries on 15 and 17 July 2009 record that "Brain Scan shows age related changes" and that Kata was "[w]orried about the Brain, explained to her." A record from 2010 states: "Cognitive impairment - Likely Vascular". None of these records describe the symptoms or observations of Kata on which the notes were based or give any insight into the nature or degree of any impairment.
Kata underwent Mini-Mental State Examinations (MMSEs) in September and October 2011, in which she scored 18/29 and 20/30 respectively. Records of Kata's responses to the questions were not evidence.

[21]

The witnesses of fact

The witnesses of fact in this case fall into three broad groups: the Ilijanics, the Mikans, and the independent legal and medical professionals who interacted with Kata between 2010 and 2014.
The evidence of the Ilijanics and the Mikans told two different stories of Kata's life in Australia and her cognitive decline. Despite their conflicting testimony, the witnesses presented as forthright individuals who after their cross-examination I concluded were doing their best to describe honestly the events as they now recalled them. The conflicting testimony is not necessarily an indication of a witness's unreliability in this case. For example, it may be a product of Kata telling different family members different things (as Belinda acknowledged in her email of 19 September 2013 set out in [84] above), perhaps what she thought her interlocutor wanted to hear.
The evidence of the Ilijanics (with the exception of Dara Ilijanic, Vlado's sister-in-law) was that Kata was a valued member of their family, that she was happy living with them, and that she often complained about Josip and Katy Mikan and asked the Ilijanics not to tell the Mikans about the properties they owned with her. The Ilijanics' evidence was that signs of Kata's cognitive decline appeared as early as 2011, and had worsened considerably by 2013.
The evidence of the Mikans and Dara Ilijanic was that Kata was unhappy living with the Ilijanics, that she said she was treated like a servant, and that she said they pressured her in her property purchases and financial arrangements. Their evidence was that Kata's cognitive decline began after her fall in mid-2015 and her move to Willowood.
The legal and medical professionals who interacted with Kata over 2013 and 2014 found her to be competent and engaged. After meeting with and speaking to Kata, each was satisfied that she had testamentary capacity at the time.
What follows is a summary of the pertinent aspects of these witness' evidence.
Belinda's evidence: Kata and Belinda were very close. Kata moved into the Ilijanic home shortly after Belinda's birth, and they shared a bedroom when Belinda was young. After they each moved out of the Ilijanic home, they continued to see and speak to each other often. Belinda visited Kata regularly at St Paul's and Kata called Belinda frequently.
From around October 2011, it appeared to Belinda that Kata's anxiety was worsening. Kata kept cash hidden in her clothes, put reminders on sticky notes in her wardrobe, and made more and more phone calls to family members each day. The day after the family meeting at the Villa, Kata seemed to have forgotten what occurred.
To Belinda's observation, from 2012 Kata was becoming "emotionally unstable". She would regularly become distressed and angry, particularly about family members wanting her money. Around this time, Belinda went to see Mr Lee about Kata (see [75] above). Belinda explained: Tcpt, 16 August 2021, p 106(12-14): "… I wanted [Mr Lee] to be informed, because she can present well on one particular day and be falling apart the next day, which is what I was witnessing …" Tcpt, 16 August 2021, p106(22-23): "… having observed her, I don't think she was in a good state of mind on some days and she could act irrationally …"
Belinda's evidence was that by June 2013, Kata was mismanaging her medication and becoming increasingly forgetful. Kata's leg pain often made her confused and disoriented, and she struggled to sleep.
Vesna's evidence: Vesna gave little evidence about Kata's capacity, other than that she observed some cognitive decline from 2011, which continued after Kata's move to St Paul's in 2013. Vesna observed that Kata sometimes could not recognise her voice when she rang.
Vesna agreed in cross-examination that until 2015, the times when she observed Kata to be confused were also times when Kata was experiencing leg pain, although Vesna did not accept that the two were necessarily related (Tcpt, 16 August 2021, p 24(11-31)).
Vesna recalled that when Kata was living with the Ilijanics, Kata would often bring home free stationery from her employer and take serviettes when they went to restaurants (Tcpt, 16 August 2021, p 9(36-10(5)).
Tony's evidence: Tony moved to Croatia in 1996 and has lived there ever since. His evidence was that after Kata's move to St Paul's in 2013, she often seemed confused on their telephone calls. She would call him "John" and ask after his mother Barka, who had died in 2003.
Vlado's evidence: Vlado observed that Kata was becoming anxious and forgetful from 2010, and that her cognitive ability appeared to deteriorate significantly after her accident in 2011. His evidence was that after Kata's move to St Paul's, he was only able to have very simple conversations with her.
Dara Ilijanic's evidence: She and Kata became friends after Kata moved to Australia. Dara was never a beneficiary under any of Kata's wills. Dara's evidence was that she did not observe problems with Kata's memory or ability to express her wishes during 2014. However, it appeared that much of her evidence was derived from what other people had told her.
John's evidence: Kata and John were very close. Kata lived with the Mikans for a decade, while John was growing up. Over at least 2011 to 2015, they saw each other regularly and Kata called him frequently.
John's evidence was that Kata said some of the medication she took for her leg pain after her accident in 2011 made her feel dizzy and foggy.
John did not observe Kata to be forgetful, confused or unable to care for herself after her move to St Paul's. He said in cross-examination (Tcpt, 17 August 2021, p 153(31-38)): "… probably the less familiar you are with her, you would not understand some of her actions, I guess because it's just Kata's character. Q. And no doubt, a broken English. A. Broken English or some of the habits that she had where just that's what who she was but, you know, it's not to be construed as anything else like dementia. That was just what she what it was just her character. A lot of those things where just how she acted anyway."
In November 2014, Kata began taking pain medication that she said made her feel dizzy again. However, John's evidence was that until her fall in mid-2015, he observed Kata to be aware, capable of reasoning and expressing her wishes, and able to remember events accurately. They conversed as they always had. Kata spoke about what was happening at the nursing home, her friends, and stories about her childhood. The assistance Kata required was for mobility, not decision-making.
Paul Mikan's evidence: Paul is John's brother. He is married to Erin Mikan. He can generally understand Croatian but does not speak it fluently. Paul's evidence was that until her fall in mid-2015, Kata appeared as she always had. She conversed easily in English and Croatian, seemed aware of her surroundings, and was clear and consistent in recalling people, places and events, both recent and past.
Erin Mikan's evidence: Erin is John's sister-in-law. She is married to Paul Mikan. Erin does not speak Croatian. Erin first met Kata in 1990. Erin saw Kata at family gatherings for Easter, Christmas, christenings and birthdays, and she visited Kata every few months during her time at St Paul's. Like Paul, Erin's evidence was that she did not observe any deterioration in Kata's cognitive ability, short-term memory or behaviour until her fall in mid-2015. Kata seemed to be her "normal self" until then, although it was clear to Erin that Kata was in a lot of physical pain after her accident in 2011.
Katy Mikan's evidence: Katy's evidence was that for around two years after her accident in 2011, Kata was in a lot of pain and at times did not seem like her normal self. Kata complained that her medication made her feel foggy. At times she appeared to be anxious, angry and unsettled.
To Katy's observation, Kata improved significantly after entering St Paul's. She appeared to be more relaxed, in less pain and happier overall. She was able to converse freely about people and events. She had no difficulty remembering her surroundings, the time or the date before mid-215.
Mr Lee's evidence: Mr Lee is a solicitor who was involved with a number of Kata's wills up until 2011. Belinda was present during several of Kata's meetings with Mr Lee, and Mr Lee also liaised with Belinda and, on one occasion, Vlado, about Kata's affairs.
Mr Lee's affidavit included: "From my review of the file notes, my recollection of the meeting [on 27 February 2012] is that Mrs Grguric was emotionally unstable and weeping. I thought she was upset because of the dealings with or plans to sell her properties. Belinda was concerned that Mrs Grguric may act out of emotion, or give away her money or assets (if influenced to do so)."
The body of the file note to which Mr Lee refers is set out at [75] above. The header of the file note contains a table in which Mr Lee recorded both the matter and the attendance as "Belinda Brady". The first line of the body of the file note states: "Meeting with Belinda Brady". The second line of the file note states: "Kata seems unstable emotionally".
Mr Lee accepted in cross-examination that he had no independent recollection of the meeting. He also accepted that on further reviewing the file note, it appears that Kata was not at the meeting. Mr Lee suggested that he may have confused this with one of the meetings with Kata in October 2011. However, he also accepted that his file notes of the October meetings made no mention of Kata being "emotionally unstable and weeping".
Mr Lee did not appear to have any independent recollection of the events to which his evidence related. That is not a criticism. He almost exclusively answered questions by referring to his file notes. In some instances where he gave evidence which went beyond his notes, his evidence contradicted documents produced from Needs, Chan & Monahan's file. For those reasons, I accept Mr Lee's evidence only where it is reflected in contemporaneous documents or corroborated by others who were present.
I conclude that Mr Lee did not observe Kata to be emotionally unstable or weeping during any of his meetings with her. He ultimately accepted that Kata was not present during the meeting on 27 February 2021. I accept that during that meeting, Belinda told Mr Lee that she was concerned about Kata's mental state as set out at [75] above, which Mr Lee recorded in his file note as "Kata seems emotionally unstable".
Dr Chan's evidence: Dr Chan had a limited recollection of his consultation with Kata on 2 May 2014. His contemporaneous consultation note is set out at [99] above. In summary, Dr Chan's note records that he observed Kata to be clear and capable in expressing her wishes, that she did not have a "disorder of mind that would influence her decisions", and that he saw no evidence of confusion.
Mr Djundja's evidence: Mr Djundja is a solicitor. He acted for Kata in the sale of her Villa. Mr Djundja understands and can speak Croatian, although not fluently. He gave his evidence in a clear and forthright manner and I accept his testimony.
Mr Djundja's usual practice when acting for clients in aged care is to request a medical report and to speak to the client directly to satisfy himself of their capacity. He did so in this case.
Having received Dr Chan's medical report, Mr Djundja met with Kata in person in May 2014. John brought Kata to the meeting but Mr Djundja met with Kata alone. They spoke in a mix of Croatian and English. Mr Djundja was satisfied that Kata understood English and did not require an interpreter, although she was more comfortable in Croatian. Mr Djundja observed that Kata was easy to talk to, spoke without hesitation, responded to questions quickly, and appeared to be alert and engaged.
In late June 2014, Mr Djundja spoke to Kata on the phone and explained the terms of the contract for the sale of the Villa to her. He was satisfied that she understood and wanted to proceed. Nothing in his interactions with Kata caused Mr Djundja to be concerned about her capacity.
Mr Alexander's evidence: Mr Alexander was the solicitor who prepared and witnessed the 2014 Will. He was an experienced solicitor, who prepared four wills for Kata between 2010 and 2014. He is now retired. Mr Alexander was an impressive witness whose evidence I have no hesitation in accepting.
Mr Alexander had a clear independent recollection of Kata, who stood out from his usual clients. He recalled that (Tcpt, 17 August 2021, p 174(10)-(15)): "… I was very impressed that as a cleaner, she had acquired a - a small portfolio of - of property, she was obviously a very independent person. Yes. Not - not over the top but, yes, she was a - she was a character, in my view."
Mr Alexander spent time speaking with Kata and understanding her circumstances over the course of their meetings. He recalled that (Tcpt, 17 August 2021, p 172(4)-(9)): "… I asked her about her family and when she had come to Croatia. I learned that she was a widow, that she had no children, like - like her brothers. And I found out what she did for a living. I then - I found out what property she had and was quite that she had a small portfolio of properties which she had acquired. She wasn't an educated woman, but she was far from stupid."
It was Mr Alexander's usual and invariable practice to take instructions for a will from a client in Kata's position alone, or with only another employee of his firm present. Before executing a will, he would explain its effect to the client and ask whether the client would like him to read the will to them. He followed his usual practice in this case.
Mr Alexander did not observe any cognitive decline over the four years he acted for Kata. He was clear that (Tcpt, 17 August 2021, p 174(27-36)): "… She was able to draw up legal instructions, she clearly understood it. She wasn't confused or - or vague about what she wanted. And I was satisfied that there was capacity. … she was smart and I think she was careful."
It was Mr Alexander's practice to obtain a medical report if he had concerns about a client's testamentary capacity. He did not request a medical report for Kata because he did not have any concerns about her capacity, although his recollection was that Dr Chan's report was provided during one of their meetings.
Ms Music's evidence: Ms Music was a paralegal or legal secretary at Mr Alexander's practice who spoke Croatian. She saw Kata on multiple occasions between 2010 and 2014 when Kata came to meet with Mr Alexander. As with Mr Alexander, Kata made an impression on Ms Music. They chatted about her life and her properties. Kata always appeared to Ms Music to be "switched on", forthright, and certain about what she wanted.
Ms Music sat in on the meetings of 18 August 2014 about the 2014 Will, power of attorney and enduring guardianship appointing John. To Ms Music's recollection, Kata did most of the talking. Kata explained that she had helped various family members over the years, and wanted to change her will because John was now the family member helping her. Kata said "the Ilijanics have had enough from me". Ms Music interpreted the 2014 Will into Croatian for Kata and then said to her in Croatian "are you happy, is that what you want?" to which Kata replied "yes, it is, I am very happy thank you".

[22]

Expert opinion evidence

Professor Carmelle Peisah was appointed by the Court to prepare a report as the parties' agreed joint expert. Professor Peisah is a Conjoint Professor of Medicine and Clinical Associate Professor and an old age psychiatrist. Professor Peisah did not examine Kata during her lifetime. Her report was completed on the papers, using substantially the same material as was in evidence before the Court.
Professor Peisah was asked, in summary, to provide her opinion about Kata's cognitive impairment and capacity at the time of the 2013 Will and the 2014 Will.
Professor Peisah reached these conclusions: 1. It was "highly probable" that Kata had vascular or mixed dementia of mild severity in February 2013. 2. In February 2013, Kata's cognitive impairment did not compromise her awareness of: 1. The significance of the act of making a will; 2. The nature of her estate; and 3. Those who might have a claim on her estate; or 4. Her ability to identify, evaluate and discriminate between the strengths of those claims. 1. It was "more probable than not" that Kata's dementia was of mild to moderate severity in August 2014. 2. In August 2014, Kata's cognitive impairment did not compromise her awareness of: 1. The significance of the act of making a will; and 2. Those who might have a claim on her Estate. 1. In August 2014, Kata's cognitive impairment rendered her incapable of: 1. Understanding the nature of her Estate; and 2. Identifying, evaluating and discriminating between the strength of claims on her Estate. 1. In August 2014, several known risk factors for undue influence were present. 2. There was no evidence demonstrating knowledge and approval of the 2014 Will.
I will next set out more about each of these conclusions.
Conclusion 1: Professor Peisah's report records (1021): "[Kata] had evidence of cognitive impairment manifested by deficits in memory, orientation and insight, involving test performance below appropriate norms (ie MMSE 18-20/29) sufficient to interfere with independence, necessitating assistance with activities of daily living, consistent with a diagnosis of Major Neurocognitive Disorder (i.e. Dementia). … Her cognitive impairment was a manifestation of … Dementia, and not due to or linked with underlying physical health difficulties, although these difficulties (e.g. pain and deafness) would have exacerbated her cognitive impairment."
No list of Kata's medications for February 2013 could be identified, but Professor Peisah noted that none of the medications Kata was taking in September 2013 would have affected her cognition.
Conclusion 2: In reaching the conclusion that Kata had testamentary capacity for the 2013 Will, Professor Peisah's report identifies that she relied on: 1. Kata's discussion with Mr Alexander when giving instructions for the 2013 Will, evidencing the matters referred to in [179(2)(a)-(d)]; 2. The 2013 Will being consistent with the pattern of Kata's previous wills (in that it provided for her extended family); and 3. The fact that the 2013 Will was not inofficious.
Conclusion 3: Professor Peisah's report records: "[Kata] suffered from Major Cognitive Disorder (Dementia) probably of mixed Alzheimer's and Vascular type complicated by changed behaviours ("BPSD"), probable seizures, pain, fatigue and a recurrent bleeding leg. … By August 2014, she had cognitive decline manifested by memory impairment, disorientation, impairment in judgment (manifested by her hoarding, refusal of care) and language (i.e. comprehension, over and above that attributed to her non-English speaking background). This cognitive impairment was complication by BPSD (ie. changed behaviours secondary to unmet needs as well as psychological symptoms of anxiety and depression."
Conclusions 4 and 5: Professor Peisah's reasoning in reaching conclusions 4 and 5 rested on a common presumption. Professor Peisah's opinion was that by August 2014, Kata's cognitive impairment was such that it should be presumed that she lacked each of the necessary elements of testamentary capacity unless evidence to the contrary could be identified.
Professor Peisah considered that Kata's discussions with Mr Alexander established that she understood the significance of making a will and was aware of those who could have a claim on her Estate, because Kata made reference to her various family members.
Professor Peisah opined that Kata did not understand the nature and extent of her Estate because the evidence of her discussions with Mr Alexander contained no specific reference by Kata to having sold her Villa, and Kata's comments that she had sold the properties she owned with the Plaintiffs were "in the context of her severe fixed animosity towards the Ilijanics, rather than in the context of discussions around the nature and extent of her estate for considered disposition". Professor Peisah also expressed an opinion in cross-examination that the Estate was "quite a complex estate" at the time (Tcpt, 19 August 2021, p 245(50)). I interpose, with respect, that by the time of the 2014 Will, her estate was not complex at all, being essentially cash (either in possession or to be received from the sale of the Villa) and an accommodation bond.
Professor Peisah's opinion was that Kata was unable to evaluate and discriminate between the strength of claims on her Estate because: 1. The 2014 Will deviated from the pattern of Kata's previous wills, in that it provided only for one member of her family; 2. The 2014 Will was relatively inofficious; and 3. In Professor Peisah's opinion (emphases added): "Her reasons for disposition were solely based on an extreme animosity towards [the Ilijanics] based on grievances around various carer and financial arrangements she had in place over some 25 years, which are currently contested and the details of which she was unlikely to have recalled due to her dementia, and none of which had previously impacted on her testamentary dispositions. This single-minded perseverative thinking (i.e. repetitive, fixed stereotypic, often a manifestation of frontal deficits) (Bayles et al, 1985) was at the expense of all other reasoning and deliberation including consideration of the claims of other family members. Empirical research has shown that poisoning of affectations towards and intensification of conflict with family members is frequently seen with dementia due to impairments in memory, judgment and reasoning (Peisah et al, 2006)."
Conclusion 6: Professor Peisah identified these risk factors for undue influence as present for the 2014 Will: 1. Relationship risk factors: the sole beneficiary of the 2014 Will (John) was in a position of trust, and Kata was dependent on him for assistance. 2. Social or environmental risk factors: "family conflict, shifted trust and alliance between family members coincident with the onset and period of cognitive decline". 3. Psychological and physical risk factors: Kata had dementia, was dependent on assistance for daily activities, had symptoms of depression and anxiety, and was frail, regularly in pain and suffering recurrent leg bleeds. 4. Legal risk factors: John was involved in making and taking Kata to the appointment, was present for discussions before the meeting began, and Kata executed multiple documents favouring John at the same time (the 2014 Will and a power of attorney).
Conclusion 7: Professor Peisah's conclusion that there was no evidence of Kata's knowledge and approval of the 2014 Will rested on the following: 1. John, the sole beneficiary of the 2014 Will, was involved in making and bringing Kata to the appointment, and was present during initial general discussions. 2. Kata had "considerable mental and physical impairment." 3. The 2014 Will was a "significant change" from Kata's previous wills. 4. Kata approved the 2014 Will, but "passively so, with no evidence that [Kata] knew the extent of her property relevant to the disposition nor comprehended and appreciated the claims on her bounty to which she ought to give effect."
Cross-examination of Professor Peisah: Professor Peisah gave this evidence in cross-examination: 1. There is a need for caution in relying on progress notes that record Kata to be "confused" or "alert and oriented" without a description of the underlying observations (Tcpt, 19 August 2021, p 256). 2. MMSE results need to be interpreted with caution where the patient speaks English as a second language or has had limited formal education (Tcpt, 19 August 2021, p 258-9). 3. Pain often exacerbates cognitive impairment (Tcpt, 19 August 2021, p 257). Kata may have experienced increased confusion at times she was in pain (Tcpt, 19 August 2021, p 263). 4. Diagnosing dementia is about both memory and changed behaviours (Tcpt, 19 August 2021, p 258). Changed behaviours include pre-existing behaviours which become influenced by the agitation and lack of judgement associated with dementia (Tcpt, 19 August 2021, p 263). 5. Professor Peisah reached her conclusions about Kata's dementia and extent of cognitive impairment by looking for patterns and symptoms of dementia. She focused less on times where there was an absence of symptoms (Tcpt, 19 August 2021, p 261-2). 6. If Kata's longstanding way of dealing with leg pain at night was by walking, that would change the weight Professor Peisah would put on the instances of Kata being found walking in the corridors at night in reaching a conclusion about the state of her dementia at the time (Tcpt, 19 August 2021, p 262). 7. The will-making pattern which Professor Peisah relied on focused on the content of Kata's previous wills, and did not take into account all the background circumstances of the various wills (Tcpt, 19 August 2021, p 279-80).

[24]

Testamentary capacity

In Banks v Goodfellow (1870) LR 5 QB 549 ("Banks v Goodfellow"), Cockburn CJ set out the classic statement of the law of testamentary capacity. His Lordship stated at 565: "It is essential to the exercise of such a [testamentary] power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made."
The statement in Banks v Goodfellow should not be adhered to as though it were a legislative text: Mekhail v Hana [2019] NSWCA 197 at [164]. It can also be expressed as a requirement that a testator be capable of remembering, reflecting and reasoning: King v Hudson [2009] NSWSC 1013 at [51]; Romascu v Manolache [2011] NSWSC 1362 at [197].
Nevertheless, the question of testamentary capacity is generally approached by reference to four elements: 1. The testator must have understood the nature and significance of the act of making a will. This requires the testator to "be able to understand the general nature and effect of the testamentary act", that is, "a disposition of the estate upon his or her death": The Public Trustee v Stretch [2002] WASC 147 at [9]. 2. The testator must have understood the extent of their estate. That requires the ability to recall at least in general terms the nature, extent and value of the estate, but "does not necessarily mean knowledge of each particular asset or knowledge of the value of that asset": Kerr v Badran [2004] NSWSC 735 at [49]. 3. The testator must be capable of comprehending and appreciating any claims on his estate. In King v Hudson at [58], Ward J (as her Honour then was) treated this element of the Banks v Goodfellow test as requiring that the testator be "able to call to mind the persons who may have claims" on the estate and be "able to weigh the relative claims of those persons". 4. The deceased must not have suffered from a delusion that influenced the terms of the will at the time it was made. A false belief, by itself, is not sufficient to warrant a conclusion that the testator lacked testamentary capacity: Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [14]. Rather, a delusion is a fixed and permanent belief in facts which do not exist, not capable of rational explanation, and which the plaintiff cannot be reasoned out of: Bull v Fulton (1942) 66 CLR 295 at 339; [1942] HCA 13. As Dixon CJ, Webb and Kitto JJ said in Worth v Clasohm (1952) 86 CLR 439 at 449; [1952] HCA 67, a delusion is "a belief which is not true to fact, which cannot be corrected by an appeal to reason, and which is out of harmony with the individual's education and surroundings".
Age and illness are not of themselves sufficient to conclude that a testator lacked testamentary capacity: Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 707. As Kirby P (as his Honour then was) stated in Estate of Griffith; Easter v Griffith (1995) 217 ALR 284 at 295: "In judging the question of testamentary capacity the courts do not overlook the fact that many wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent - more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will ... Were the rule to be otherwise, so many wills would be liable to be set aside for want of testamentary capacity that the fundamental principle of our law would be undermined and the expectations of testators unreasonably destroyed."
Finally, it is not the task of the Court to inquire as to the righteousness of a testator's reasons. In Boughton v Knight (1873) LR 3 P&D 64 at 66, Hannen J stated that the requirement that the deceased be of "sound mind": "… do[es] not mean a perfectly balanced mind. If so, which of us would be competent to make a will? Such a mind would be free from all influence of prejudice, passion, and pride. But the law does not say that a man is incapacitated from making a will if he proposes to make a disposition of his property moved by capricious, frivolous, mean, or even bad motives. We do not sit here to correct injustice in that respect. Our duty is limited to this, to take care that that, and that only, which is the true expression of a man's real mind shall have effect given to it as his will."

[25]

Knowledge and approval

Where a will was properly executed and witnessed, as the 2014 Will was, there is a presumption that the deceased knew and approved of the contents of the Will. However, the circumstances surrounding the giving of instructions for a will and its subsequent execution may excite suspicion that the provisions of the will may not have been fully known to, and approved by, the testator. Where such circumstances exist, the person seeking to propound the will has the burden of removing the suspicion.
Lindley LJ observed in Tyrrell v Painton [1894] P 151 at 157 that the principle: "… extends to all cases in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document …"
When considering whether circumstances that excite suspicion exist, the Court looks at a number of factors including (see Romascu v Manolache at [205]; Estate of Voros; Cooney v Cherry [2016] NSWSC 1603 at [135]): 1. The circumstances surrounding the preparation of the will; 2. Whether a beneficiary was instrumental in the preparation of the will; 3. The extent of the physical and mental impairment, if any, of the deceased; 4. Whether the will in question constitutes a significant change from a prior will; and 5. Whether the will, generally, seems to make testamentary sense.
In setting out these principles, I have also borne in mind this observation of Lindsay J in Estate Rofe [2021] NSWSC 257 at [121]: "In some cases probate "presumptions" can serve as helpful aids to analysis of evidence bearing upon "testamentary capacity" and "knowledge and approval"; but in other cases they may serve as a formalistic distraction from a proper consideration of the larger issues of "testamentary capacity" and "knowledge and approval" and the still larger, ultimate question of whether an instrument was the (last) will of a free and capable testator."

[28]

The Plaintiffs' submissions

Testamentary capacity: The Plaintiffs submitted that the Court should find that at the time of the 2014 Will, Kata was incapable of identifying, evaluating and discriminating between claims on her Estate, and of understanding the nature and extent of the Estate. The Plaintiffs adopted the reasoning in Professor Peisah's report and further submitted: 1. Kata told John she wanted to sell her Villa to ensure she had enough money to continue living at St Paul's and afford care. In the Plaintiffs' submission, this is evidence that Kata did not understand the nature and extent of her Estate, because at the time of her death the Estate was worth more than in early 2014. 2. There is no evidence from Kata's conversation with Mr Alexander or elsewhere of her explaining the nature and extent of her Estate.
Knowledge and approval: The doctrine of suspicious circumstances applies because John and his parents arranged and brought Kata to the appointment with Mr Alexander, and were present at least during preliminary discussions in which it appears from Mr Alexander's file note that Kata first said she wanted to make John the sole beneficiary. The doctrine also arises because the 2014 Will departed from Kata's prior will-making pattern.
John must therefore prove that Kata knew and approved the contents of the 2014 Will. The evidence does not establish this.
Undue influence: Kata was dependent on John, Josip and Katy, who exercised control over her and pressured her "to the point where the influence was such that the execution of the purported Will was not of her own volition and not the result of the deceased's own free judgment discretion or wishes".
Proprietary estoppel: The Plaintiffs' case was that Kata represented to them that if they each purchased a property with her, her half share of the property or the net proceeds of sale would be left to them. Because of their reliance on Kata's representation, the Plaintiffs acted to their detriment by: 1. Foregoing the opportunity to purchase a principal place of residence without capital gains tax. 2. Together with Vlado, carrying out renovations, maintenance and rent collection for the properties, which exceeded Kata's contributions. 3. Not charging Kata board or bills between 1991 and 1999 while she was residing in the Ilijanic home.

[29]

John's submissions

Testamentary capacity: It was submitted for John that Kata had capacity to make the 2014 Will.
In John's submission, Professor Peisah's opinion about the severity Kata's dementia should be treated with caution because: 1. The report focuses on evidence favourable to the conclusion and does not address the whole of the evidence; and 2. The report relies on documentary evidence which suffers from the limitations which I have outlined above, without adequately addressing those limitations.
The most important evidence is that of the four independent witnesses who observed Kata around the time of the 2014 Will: Dr Chan, Mr Djundja, Mr Alexander and Ms Music.
Kata understood the nature and significance of making a will, demonstrated by evidence of Mr Alexander's invariable practice, her conversations with Mr Alexander and Ms Music about the 2014 Will, and Dr Chan's observation in May 2014 that Kata "…understands the role of will, what she wants to happen to her property and who she can give her property to".
Kata understood the nature and value of the Estate: 1. In August 2014, Kata's assets were simple and consisted primarily of cash. Kata had explained to Mr Alexander on 12 February 2013 that she had sold her properties and invested the funds. 2. In May 2014, Kata told Dr Chan that she owned the Villa and intended to sell it. In June 2014, she explained to Mr Djundja that she wished to sell the Villa because she had moved into aged care and had no need for it anymore. 3. Mr Alexander's file note about the meeting on 18 August 2014 records that Kata told him she had sold the property she owned with her niece and that she previously owned a number of properties with her nieces and nephews. 4. There is no basis to infer that simply because Mr Alexander's file note does not make specific reference to it, Kata no longer understood that she had money invested or that she had recently sold her Villa.
Kata could recall and weigh competing claims on her Estate: 1. Kata referred to her brother, half-brothers, nieces and nephews in her discussion with Mr Alexander on 18 August 2014. 2. Kata explained to Mr Alexander and Ms Music that she wanted to change her will because John was helping her, and she felt the Ilijanics had had enough from her over the years. 3. The will-making pattern relied on by Professor Peisah did not take into account: 1. That Kata's previous wills had two different schemes. The 1998 Will, 2003 Will, 2009 Will and 2011 Will devised her half-interest in the Three Properties to the Plaintiffs and divided the residue among the older generation. The 2010 Will, 2012 Will and 2013 Will divided the Estate proportionally, with Josip receiving the largest share. 2. That Kata had previously reduced the Ilijanics' interest in her Estate. In the 2003 Will she removed Vlado and Barka as beneficiaries and in the 2012 Will she removed the devises of half-shares in the Three Properties of the Plaintiffs. 1. Professor Peisah's conclusion that the 2014 Will was "solely" based on "extreme" animosity towards the Ilijanics does not take into account Kata's explanation that John was helping her significantly. There was also no evidence of long-term memory loss that would affect Kata's ability to recall grievances against the Ilijanics.
Kata was not suffering any delusion that influenced the disposition of her property. To the extent Kata made the 2014 Will based on mistaken beliefs, those beliefs were capable of rational explanation.
Knowledge and approval: Any suspicion is dispelled by: 1. Mr Alexander's evidence of his usual and invariable practice, including taking instructions from a testator alone. 2. Mr Alexander's and Ms Music's evidence that Kata gave and explained her instructions, and confirmed that the 2014 Will reflected her wishes. 3. Dara Ilijanic's evidence that in 2014 or 2015, Kata told her she was giving her Estate to the one person she could trust, who cared for and looked after her.
Undue influence: There is no evidence of actual coercion by John. To the extent that John exercised any influence, the way Mr Alexander took instructions from Kata would satisfy the Court that the 2014 Will was a product of Kata's free will for the purposes of either probate or equitable undue influence.
Proprietary estoppel: Even if the Court was to accept that Kata made the pleaded representation, the estoppel claim should be dismissed because: 1. There is no evidence that the Plaintiffs relied upon that representation in purchasing the Three Properties. 2. The Plaintiffs suffered no detriment from purchasing the Three Properties. 3. There was no link between any benefits conferred upon Kata, such as accommodation in the Ilijanic home, and any representation said to have been made by Kata. Those benefits were provided because Kata was family, and because she provided substantial assistance to the Ilijanic household. 4. Any assistance that Vlado provided with the Three Properties was of his own volition and was not tied to any promise said to have been made to Kata. 5. The Plaintiffs and Vlado each recognised that Kata was free to change her will and sell her properties.

[30]

Consideration - testamentary capacity

The Court is actually satisfied on the balance of probabilities that Kata had testamentary capacity when she made the 2014 Will and that will is her last will as a free and capable testator. In explaining how that conclusion has been reached, it is convenient to begin by setting out how I have approached the evidence generally.
I have given little weight to the evidence of the parties and other members of the Ilijanic and Mikan families. Consistently with what I have said in [135] above, that is not because of the view that any of them were seeking to mislead the Court deliberately.
However, the evidence of the various Ilijanics and Mikans was often generalised and necessarily subjective. They were seeking to recall events that took place no earlier than 9 years ago, and in some cases much longer, and to draw conclusions from those recollections about Kata's capacity. With no disrespect, I am certain that those recollections and conclusions are subject to a degree of fallibility which has increased "with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by a perception of self interest": Watson v Foxman (2000) 49 NSWLR 315 at 319 per McClelland CJ in Eq. In this case, both self-interest and family allegiance are integral factors to the litigation.
I am therefore satisfied that the evidence of independent contemporaneous witnesses and their contemporaneous documents are a surer basis upon which the Court can rely for its findings. It is their evidence that the Court accepts and I shall return to these further below.
It is then necessary to consider Professor Peisah's evidence. Having regard to the factors in Banks v Goodfellow, her essential conclusions about the 2014 Will adverse to John's case were both narrow and nuanced, quoting from the executive summary of her report: "However, [Kata] was incapable of identifying, evaluating and discriminating between the respective strengths of the claims of those persons; and I could not find evidence that her cognitive impairment did not compromise her capacity with respect to an awareness in general terms of the nature and extent of her estate."
It will be noted there are two findings. Before turning to Professor Peisah's report generally, it is convenient to deal with the second finding. In my respectful view, it is not a finding which assists the Court in determining whether or not Kata had capacity with respect to being aware in general terms of the nature and extent of her estate. It is a rolled up finding that Professor Peisah could not find evidence to establish a negative. Insofar as the Plaintiffs sought to rely on Professor Peisah's second conclusion in support of a finding that Kata did not have awareness in general terms of the nature and extent of her estate, I do not accept that it is logically open to the Court to do so. The absence of evidence of a negative is not, in my respectful view, a proper basis to make a finding of a positive. To put it another way, an absence of evidence of [not X] does not prove [X] to have been the case.
Professor Peisah was undoubtedly a highly qualified and impressive witness. To her credit, she readily accepted the methodological challenges and consequent difficulties of a completely retrospective analysis of the kind she had been instructed to undertake which did not have the benefit of actually seeing Kata.
Nevertheless, those difficulties are real. For example, in [184] above, I have recorded two of Professor Peisah's conclusions. The first suggests that Kata had "probable seizures". However, the doctors who saw Kata immediately after her syncopal episodes did not record them as being seizures and therefore I infer did not diagnose them as such. Why Professor Peisah has characterised them as "probable seizures" is not clear from her report.
The second conclusion was that by August 2014 Kata had difficulties in language "(i.e. comprehension, over and above that attributed to her non-English speaking background)". Again, and with respect to Professor Peisah, I have difficulty understanding how that conclusion is available solely on a review of documents which nowhere, for example, actually set out what Kata was heard to say.
Taking into account the concessions made by Professor Peisah set out in [191] above and the concerns about many of the documents upon which Professor Peisah relied that I have recorded in [125] - [133] above, I accept Dr Chapple's submissions set out in [212] and [216(3) and (4)] above as to why Professor Peisah's conclusions should not be preferred to the direct evidence and inferences available from the contemporaneous independent witnesses and their notes made at and around the time the 2014 Will was executed.
In particular, I respectfully record my real reservations about Professor Peisah's preferred methodology of looking for patterns and symptoms of dementia without considering the totality of the medical and observational evidence, including the times when those symptoms were not recorded as being present. In the many pages of medical and other records about Kata that were in evidence, reports going to her mental state are not as frequent as might be thought to have been the case if her level of impairment was as significant as the Plaintiffs' case suggested.
Mr Alexander was an experienced solicitor. He had practised in South Africa from 1972 to 1984 and then in Australia from 1984 until his retirement in 2019. He had met Kata over a period of years. As sometimes happens with clients, she had made an impression on him that caused him to have an actual recollection of his encounters with her. Based on his file note, but fortified by his other evidence, and that of Ms Music, as to what occurred on 18 August 2014, the Court finds that Kata had testamentary capacity in the Banks v Goodfellow sense, including that she was capable of identifying, evaluating and discriminating between the respective strengths of the claims of those persons who might have a claim upon her testamentary bounty.
Mr Alexander's file note itself demonstrates that he prompted her to explain why she was leaving everything to John. He records "I said I thought it was normal for this to be her brother and failing her brother to the son." It was therefore necessary for her to explain why her estate was being left to John rather than Josip. Furthermore, the file note discloses that there was discussion about the position of all the nephews and nieces. She was also clearly able to give a general description of having owned properties with her nephews and nieces.
The file note, and Mr Alexander's and Ms Music's other evidence about what occurred on 18 August 2014 also satisfies the Court on the balance of probabilities that Kata had an awareness in general terms of the nature and extent of her estate, given that her estate was very simple. It had been converted into cash and invested or applied to her accommodation bond. The Court finds that, whatever level of dementia Kata may have been suffering from on 18 August 2014, it was not so severe that she could not comprehend what was in her estate.
While Mr Alexander's file note is a sufficient basis for the Court to have reached the conclusions which it has, in addition to Mr Alexander's and Ms Music's evidence the Court is further fortified in its conclusions by Mr Djundja's and Dr Chan's evidence of what had occurred in May and June 2014.
Mr Djundja was a straightforward witness of Croatian background who was experienced in dealing with culturally and linguistically diverse clients and could communicate with Kata in English and in basic conversational Croatian. He was obviously alive to the need to be satisfied of Kata's capacity.
The Plaintiffs criticised Dr Chan's evidence because, at the relevant time, he had been in general practice for less than two years and had no previous experience assessing testamentary capacity. However, Dr Chan presented in the witness box as an intelligent and careful physician. That was also apparent from his file note, and the fact that the consultation with Kata went for almost an hour, which the Court therefore finds was a thorough assessment of Kata.
Dr Chan's and Mr Djundja's assessments are sufficiently close in time to August 2014 for the Court to rely on them in reaching its conclusions about Kata's testamentary capacity on 18 August 2014. In doing so, I have not overlooked either the incident recorded on 25 May 2014 (see [102] above) or Kata's "episode" on 4 August 2014 (see [109] and [110] above). There is nothing in the various records to suggest that there was any particular continuing negative impact upon Kata or diminution in her capacity attributable to either of those events.

[33]

Consideration - proprietary estoppel

The Court accepts Dr Chapple's submissions set out in [220] above as to why the Plaintiffs' proprietary estoppel claim must fail. This must be the case, even if the representations they allege were made, because as Vlado and each of the Plaintiffs acknowledged in cross examination, they understood that Kata was free to change her will and realise her interest in the Three Properties.
However, I am not persuaded that representations of the kind alleged by the Plaintiffs were ever made or that there was ever any specific reliance on any such representations. The Plaintiffs' case in estoppel is, in my respectful view, artificial and unrealistic. The Plaintiffs were all students at the times the Three Properties were bought (and in Belinda's case, a minor for whom her share in her property was purchased). The notion of them relying on representations to enter into the transactions or foregoing other opportunities is unpersuasive and not supported by their evidence. Neither reliance nor detriment has been demonstrated. On the contrary, they each did well out of their investments in the Three Properties.
To the extent it is necessary, the Court finds that what the evidence does demonstrate is that the Three Properties were held, to use Tony's words, as a "family arrangement". The purchase of the Three Properties was something undertaken for the benefit of the participants by a contribution of family members' resources. The Three Properties were not homes in which family members resided but were the source of income and long term capital benefit. That was realised by the sale of each of the Three Properties and the distribution of the proceeds to each relevant family member. The Three Properties were ultimately sold without assertion of ongoing rights in relation to the proceeds. That is consistent with them being held "under a family arrangement" and nothing more.
What that "family arrangement" did not contemplate was what was to occur if Kata wanted to have access to her interest in the Three Properties during her lifetime. It is unsurprising that was something the parties would not have contemplated at the time. It was not in prospect, given that Kata was in employment and living with the Ilijanics.
It seems to me that Tony's evidence casts useful light on this. In the draft email to John that Tony sent to his sisters on 1 October 2011 (see [53] above) he wrote that "A mutual agreement at the time of purchase and which is still enforce [sic] is that in the case of any unforeseen event related to Teta Kata, her share of the property or proceeds from the sale of property would revert to me" (emphasis added). It is entirely probable that there had been discussion at the time the properties were purchased about what would occur in the event of Kata's unexpected death.
However, that there was no representation about, or consideration of, what would happen if she needed to realise her investment is also consistent with Tony's description of his document (see [55] above) as being in part directed to "what should be done if the properties were going to be sold contrary to that agreement and understanding". Tony's Document, which was so onerous on Kata, was an attempt to set out the terms on which the Plaintiffs would agree to Kata having access to the proceeds of her investments because that topic had not been the subject of any prior representation or agreement. Its very onerousness in relation to Kata and its complexity demonstrate the unlikelihood that Kata, not "an educated woman, but she was far from stupid" (to use Mr Alexander's words set out in [171] above), would ever have made representations that could reasonably have been taken to give rise to the consequences which Tony sought to impose in his document.

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