Chalik v Chalik

Hall v Hall (1868) LR1P&D 481 Heyward v Fisher (Court of Appeal (NSW), Kirby P, 26 April 1985, unrep) Hoff v Atherton [2003] EWCA Civ 1554 Kalaf v Grimanes [2013] WASC 327 Lewis v Condon [2013] NSWCA 204 Lim v Lim [2022] NSWSC 454 Lim v Lim [2023] NSWCA 84 Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 Ling v Beyond Development Group Pty Ltd [2022] NSWSC 685 Megerditchian v Khatchadourian [2020] NSWCA 229 Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 Mendonca v Legal Services Commissioner [2020] NSWCA 84 Meres v Meres [2017] NSWSC 285 Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 Nicholson v Knaggs [2009] VSC 64 Nock v Austin (1918) 25 CLR 519; [1918] HCA 73 Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 Page v Page [2017] NSWCA 141; (2017) 16 ASTLR 331 Plunkett v Bull (1915) 19 CLR 544; [1915] HCA 14 Quek v Beggs (1990) 5 BPR 11,761 Re Estate Rofe [2021] NSWSC 257 Re the Estate of Hodges Deceased: Shorter v Hodges (1988) 14 NSWLR 698 Romascu v Manolache [2011] NSWSC 1362 Roscorla v Thomas (1842) 114 ER 496 Salvation Army v Becker [2007] NSWCA 136 Schrader v Schrader [2013] All ER (D) 89 (Mar) Schrader v Schrader [2013] All ER (D) 89 (Mar); [2013] EWHC 466 Sgro v Thompson [2017] NSWCA 326 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 Squire v Squire [2019] NSWCA 90 Steinmetz v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Stone v Stone [2019] NSWSC 233 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Underwood v Gaudron [2015] NSWCA 269 Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 Vigolo v Bostin (2005) 221 CLR 191 Walker v Walker [1996] NSWSC 188 Watson v Foxman (1995) 49 NSWLR 315 Wingrove v Wingrove (1885) 11 PB 81 Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116 Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 Texts Cited: Nicholas Seddon, Seddon on Deeds (2nd ed, 2022, Federation Press) at [1.6] and [2.9] Category: Principal judgment Parties: Proceedings 2021/296823

Gregory Roman Chalik (Plaintiff/Cross-Defendant) Igor Chalik (First Defendant/Cross-Claimant) NSW Trustee & Guardian (Second Defendant/Cross-Defendant)

Gregory Roman Chalik (Plaintiff) Igor Chalik (First Defendant) NSW Trustee & Guardian (Second Defendant) Representation: Counsel:

Chris Adamson, Solicitor (Plaintiff/Cross-Defendant until 19 May 2023) Ziman & Ziman Solicitors (First Defendant/Cross-Claimant)

Gregory Roman Chalik, self-represented (from 19 May 2023) File Number(s): 2021/296823 2021/326779 Publication restriction: Nil

JUDGMENT

1. These two proceedings concern the estate of the late Margaret Chalik, who died on 20 July 2021, aged 85.
2. Margaret Chalik was survived by her two adult sons, Gregory Roman Chalik and Igor (now known as Isaac) Chalik, the protagonists in these proceedings, her husband Roman Chalik having predeceased her in 1995.
3. Without any disrespect intended, in these reasons, I refer to the parties and other members of the Chalik family by their first names and to Margaret Chalik as the deceased.
4. At the time of her death, the deceased had dementia, was residing in a nursing home and her estate was managed by the NSW Trustee and Guardian (NSW Trustee). The deceased's estate is now valued at $1,652,231.89, consisting entirely of cash.
5. The deceased made a series of wills over her life. The deceased's penultimate will, made on 29 October 1998 (1998 Will), left her estate equally to Gregory and Isaac and appointed the NSW Public Trustee (now known as the NSW Trustee and Guardian) as the executor and trustee of her estate.
6. The deceased's last will, made on 23 April 2013 (2013 Will), leaves everything to Gregory and appoints him as sole executor. It was prepared by Mr Mourice Wermut, a solicitor, who Gregory had arranged for the deceased to meet with.
7. In these proceedings, Isaac challenges the validity of the 2013 Will on various grounds, including lack of testamentary capacity, and Gregory seeks further provision in the event the 2013 Will is held to be invalid. In addition, they each make claims that the other owes money to the deceased's estate.

The proceedings

1. Gregory is the plaintiff in both sets of proceedings. He commenced proceedings (2021/296823) (Probate Proceedings) by statement of claim filed on 13 October 2021 seeking probate in solemn form of the 2013 Will and revocation of a caveat lodged by Isaac.
2. Gregory commenced the other proceedings (2021/326779) (Succession Proceedings) by summons filed on 15 November 2021 seeking an order for interim provision pursuant to s 59 of the Succession Act 2006 (NSW) (Succession Act) and liberty to apply for a final order under that section.
3. Gregory has amended his claims on a number of occasions.
4. The primary relief Gregory seeks in the Probate Proceedings by his third further amended statement of claim filed 27 April 2023 (TFASC) is a declaration that the 2013 Will is the last valid will of the deceased, an order that probate in solemn form of the 2013 Will be granted to him or such as person as the Court appoints, and a declaration and order that Isaac is indebted and should pay to the deceased's estate the sum of $150,000 (plus interest) pursuant to a Deed of Loan entered into between Isaac and the deceased in August 1996 about a loan made in August 1991.
5. In the Succession Proceedings, Gregory was granted the initial relief he sought by way of an interim distribution of $250,000 from the deceased's estate pursuant to orders made by Hallen J on 24 February 2022, the parties having agreed that Gregory would be entitled to at least that sum whichever is the last valid will.
6. The relief Gregory now seeks in the Succession Proceedings is a final order pursuant to s 59 of the Succession Act for further provision from the deceased's estate in the event that the 2013 Will is not found to be the deceased's last valid will. This claim was included in Gregory's amended summons which was filed on 25 November 2022 pursuant to leave granted on 15 November 2022.
7. By his defence and further amended statement of cross-claim in the Probate Proceedings (both filed on 9 November 2022), Isaac challenges the validity of the 2013 Will on the grounds that the deceased lacked testamentary capacity, lack of knowledge and approval and/or undue influence on the part of Gregory. Isaac seeks probate in solemn form of the 1998 Will to be granted to him or such person as the Court appoints. Isaac also denies that the Deed of Loan is enforceable or that he has any liability to the estate in the amount claimed of $150,000.

The hearing and submissions

1. The two proceedings were heard concurrently with evidence in one proceeding being evidence in the other.
2. The hearing was listed for three days in April 2023 but did not finish within that time. The evidence was completed, a timetable was set for written closing submissions and the hearing was adjourned to 24 May for oral closing submissions.
3. Prior to and during the April hearing, Mr Adamson, solicitor, appeared for Gregory. Mr Allan, instructed by Ziman & Ziman, solicitors, appeared for Isaac.
4. Prior to the resumed hearing on 24 May, Gregory terminated Mr Adamson's retainer and commenced acting for himself.
5. On 19 May, Gregory filed a notice of motion seeking to adjourn and vacate the timetable and hearing for final submissions for at least three months, to strike out the expert report from Dr Jane Lonie (an expert jointly appointed by the parties and whose report was adduced into evidence without objection at the hearing) and other orders in relation to costs and Mr Adamson.
6. At the hearing on 24 May, I dismissed Gregory's notice of motion, with ex tempore reasons given that day. Gregory was directed to file and serve any further written submissions he sought to rely on by 28 June, with the Court noting that it had already received from him partial written submissions on 23 May 2023 and a document at Annexure B to his affidavit dated 10 May 2023 as part of his closing written submissions.
7. On 28 June, the Court received further written submissions and a chronology from Gregory.
8. Gregory's further written submissions attached a document (referred to as the notation by a Commonwealth Bank clerk) that had not been adduced into evidence, to which objection was taken by Isaac. On 6 July 2023, Gregory notified the Court that he withdrew the CBA document from being admitted into evidence and sought to rely on another document, described as a bank clerk's handwritten note about a term deposit held by the Commonwealth bank. On 11 July, the Court made directions for Gregory to file and serve a notice of motion seeking leave to re-open, an affidavit in support and short submissions in relation to the handwritten note and listed the proceedings on 26 July 2023 to determine that application.
9. Gregory did not appear on at the hearing on 26 July, despite dial in details having been provided to him so he could appear by telephone. A notice of motion and other documents had not been filed by Gregory in accordance with the Court's directions and no explanation was provided by him for not appearing on 26 July. Accordingly, the Court proceeded in Gregory's absence, noted that there was nothing before the Court to determine and confirmed that the status of the proceedings was that judgment was reserved. Gregory was informed of the outcome by email sent from my chambers that day. No further application was made by Gregory to re-open. Thus, the Court has not had regard to the handwritten document.

Evidence and witnesses

1. The evidence comprised affidavit and oral evidence from the parties and non-party witnesses and a range of documents produced on subpoena, including medical records and doctors' notes in relation to the deceased's medical condition from 2011 and her bank accounts.
2. Gregory relied on six of his own affidavits and an affidavit from Mr Adamson that attached an English translation (by a translator, Benjamin Perkis) of a typed document written in Russian and dated 17 September 2013 that is signed by the deceased. Gregory says that the document was prepared by the deceased and represents her reasons for excluding Isaac from the 2013 Will. Isaac disputes this.
3. Gregory also relied on two affidavits from Mr Wermut, the first of which was filed pursuant to an order by Hallen J on 24 February 2022 that Mr Wermut serve an affidavit deposing to the circumstances in which the 2013 Will was prepared and executed.
4. Isaac relied on six of his own affidavits and affidavits from each of his sons, Richard and Nathan. He also relied on an affidavit from his solicitor, Mr Derek Ziman, and Mr Achilles Paffas, a solicitor, who did legal work for Isaac in the 1990s and gave evidence that he did not prepare the Deed of Loan.
5. Isaac also read an affidavit of attesting witness in relation to the 1998 Will from Ms Lidia Zin, solicitor, that had been filed by the NSW Trustee in the Probate Proceedings on 27 January 2022, and subpoenaed Ms Zin to give oral evidence. Ms Zin was employed at the NSW Trustee and prepared and witnessed the 1998 Will.
6. As already noted, there was also expert evidence from Dr Jane Lonie, a clinical neuropsychologist, whose report dated 14 March 2023 was tendered (Exhibit A). The parties jointly engaged and instructed Dr Lonie to report on the deceased's testamentary capacity in 2013 and her vulnerability to undue influence.
7. The parties also read two affidavits from Ms Ross-Maranik that set out her estimates of the value of the deceased's estate as at 4 November 2022 and 14 April 2023.
8. Gregory, Mr Wermut, Isaac, Richard, Nathan, Ms Zin and Dr Lonie were cross-examined.

Approach and assessment of witnesses

1. I have considered all of the evidence and the facts and arguments contended for in the parties' submissions.
2. However, I should record that aspects of Gregory's written submissions were not easy to follow. They raised matters that had no apparent relevance to the issues in dispute (for example, referring to Aristotle's discussion of "equity", the principles of contempt of court and details of the recent history of income tax in Australia) and made assertions that were not the subject of evidence (for example, that Isaac operated a company and a superannuation fund in the deceased's name, Isaac purchased a two-bedroom unit in North Bondi in September 1991 and the $10,000 term deposit). They also included complaints about the conduct of his solicitor, Mr Adamson, such as that he included matters in Gregory's affidavit against instruction, colluded with Isaac's legal team and filed a chronology that Gregory did not consent to and which contained false and misleading information. It is not, in my view, necessary or appropriate for this Court to consider and deal with those complaints.
3. I am mindful that Gregory was unrepresented when he prepared the submissions. Nevertheless, the Court is not required to undertake an analysis of and deal with every aspect of lengthy submissions that contain unstructured and unsupported assertions and misconceptions with a view to ensuring that a self-represented litigant has not missed some arguable point: Mendonca v Legal Services Commissioner [2020] NSWCA 84 at [21]; Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [42].
4. Accordingly, these reasons do not address every matter raised by Gregory's submissions. Rather, they focus on the matters and evidence referred to by both parties at the hearing and in their oral and written submissions which I consider are relevant to the issues and necessary to understand the parties' respective positions and why I have made my factual findings and reached my conclusions on the issues for determination.
5. In assessing the evidence and making my findings, I have had regard to the parties' apparent self-interest and the frailty of human memory and placed more weight on the contemporaneous documents (to the extent they are available), the objective surrounding facts and the inherent probabilities and improbabilities of events: Watson v Foxman (1995) 49 NSWLR 315 at 319; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [30]-[31].

Factual background and summary of evidence

1. Unless otherwise indicated, I am satisfied of the following matters.

Early background

1. The deceased was born on 11 January 1936 in Odessa, Ukraine where she married Roman. Gregory and Isaac were born in Odessa on 31 May 1963 and 1 August 1970 respectively.
2. While in Odessa, the deceased worked as a bookkeeper.
3. On 11 January 1978, after spending a short period of time living in a refugee transit facility in Italy, the deceased, Roman, Gregory and Isaac and the deceased's mother, Ethel Leibovich (Ethel), migrated to Australia. The deceased's sister had migrated to Sydney about two years prior.
4. When the family arrived in Australia, none of them could speak, read or write in English, apart from a "smattering" they had learnt from fellow refugees.
5. After arriving in Australia, the Chalik family initially lived in rented accommodation in Bondi.
6. In the 1980s, the deceased completed a TAFE cooking certification and commenced work as a cook at St Vincent's Hospital. Roman worked as a carpenter and as a designer/machinist at a furniture factory.
7. The family spoke Russian at home, although the deceased had sufficient English for everyday communication by the 1980s. There is a dispute on the evidence about whether the deceased also spoke Yiddish.
8. Gregory recalls the deceased speaking Yiddish with her mother, sister, aunt and best friend when they lived in Odessa and also says that Yiddish was a commonly used language in Odessa when they left in 1978. Isaac says he never knew his mother to speak Yiddish, apart from a few well-used exclamatory or expletive words which were not uncommon among Ukrainian Jews. Gregory says that Isaac was never present when their mother spoke in Yiddish and that the family did not speak it at home because his grandfather and father did not speak it.
9. Gregory also gave evidence that while living in the Bondi Unit in 1997 or 1998, the deceased spoke Yiddish with one of their neighbours, Mrs Werthiemer. Mr Ziman, Isaac's solicitor, deposed that a historical electoral roll search of the name "Werthiemer" conducted at the State Library of New South Wales for the period between 1996 and 2008 produced no results for that, or any similar, name in Bondi.
10. On 4 October 1980, the deceased made a will that appears to have been prepared by the Public Trustee. Under the 1980 will, the deceased left her estate to Roman and, if he did not survive her, to Gregory and Isaac and appointed the Public Trustee as executor and trustee.

Gregory and Isaac: schooling, work, help to buy units

1. Isaac and Gregory both attended Randwick Boys High School. Isaac had previously attended Bondi Beach Primary School.
2. Gregory left school in 1980 when he was in Year 11. He says that he struggled at school and with fitting into the Australian culture. After Gregory left school, he worked as a storeman in a book warehouse. He gave evidence that from the time he left school until he was 21, he banked all monies earned into his parent's account and the funds were used to repay the mortgages on the Waverley and Bondi Units. Isaac recalls Gregory being asked to contribute towards the cost of groceries for the family once he started working.
3. Isaac left school in 1988, having completed Year 12 in 1988. He subsequently obtained a Bachelor of Economics at Macquarie University in 1993. Whilst studying, Isaac lived at home at the Bondi Unit and worked as a carpark supervisor at Bondi Beach. After he left university, Isaac was employed as an investment portfolio manager for Westpac and later for Chase Bank.
4. The deceased and Roman assisted both Gregory and Isaac financially to purchase properties.
5. Isaac deposes that the deceased and Roman gave him $50,000 in 1993 towards the purchase of an investment unit in Dutruc St, Randwick. Isaac says that the money was a gift for being the first Chalik to graduate university, he borrowed the remainder to cover the purchase and rented out the unit to cover mortgage repayments, which he later sold in 1997. In 1995, Isaac purchased another unit in Frances St, Randwick using the equity from the Dutruc property, which he says he sold in 1999. I refer to these units as the Randwick Units.
6. Gregory says that on 9 January 1994, the deceased and Roman gave him $46,432.71 towards the purchase of a unit to live in Coogee. Gregory says that this sum included about $38,000 of his own share from his parents' bank account and recalled that his parents owed him a further sum of money which was repaid to him, although he could not recall how much.
7. Gregory moved into and lived at the Coogee unit in 1994, at which time he was working as a taxi driver.
8. It appears that Gregory's relationship with the deceased may have been tumultuous at this time, as evidenced by a letter he wrote to the deceased on 27 April 1995, while Roman was hospitalised, in which he referred to himself as, "your loving but unloved son". Isaac gives evidence that prior to Roman's death, Gregory frequently argued with his parents about his lifestyle, particularly his increasing involvement with his orthodox Jewish faith and elaborate tabletop war-gaming.

Isaac's first marriage and the Deed of Loan

1. On 1 September 1996, Isaac married his first wife, Marina, and moved out of the Bondi Unit. The wedding was paid for by Marina's family. Isaac says that, at his mother's request, he asked Gregory to be his best man at the wedding.
2. On 31 August 1996, the day before Isaac was due to be married to Marina, he and the deceased signed a document styled "Deed of Loan".
3. The Deed of Loan is a nine-page typed document between Igor Chalik as Borrower and Margaret Chalik as Lender dated in 1996 (the actual date is unclear) for the Principal Sium of $150,000 and is signed by Isaac and the deceased in the execution clauses. There are no other signatures on the Deed of Loan.
4. The Deed of Loan relevantly provides that: 1. the Borrower requests the Lender to advance the Principal Sum on the conditions stated in the Deed: Recital D; 2. in consideration of the Principal Sum "this day paid" by the Lender to the Borrower, the Borrower will repay the Principal Sum on the terms and in the manner set out in the Deed and Schedule: cl 1; 3. the Principal Repayment date is 30 August 2016: Schedule; 4. notwithstanding the date of the Deed, the Principal Sum was advanced by the Lender to the Borrower on 29 August 1991: cl 4; 5. on default of any payment, interest will be payable at 5% per annum: cls 2.1, 3 and Schedule; and 6. the Borrower will provide security for the obligations under the deed by granting a second mortgage on both of Isaac's Randwick Units: cl 5 and Schedule.
5. Gregory's claim that Isaac owes $150,000 to the deceased's estate is based on the Deed of Loan. Further evidence and my findings in relation to the Deed of Loan are set out later in these reasons. At this point, I simply note that Isaac does not deny he signed the document and says that he did not receive a loan from the deceased for $150,000 on 29 August 1995 or at any other time.
6. Following the wedding, Isaac and Marina went on a honeymoon which was paid for by Marina's family. Upon their return, Isaac commenced working for his father-in-law as an investment manager for a medical clinics business. In 1998, Isaac ceased working for his father-in-law and commenced work as a mortgage broker for his own business.
7. By all accounts, Marina and the deceased did not have a close and amicable relationship. However, Isaac gave evidence that the deceased regularly visited him at work if she was doing shopping nearby. Gregory's recollection was that he and the deceased had very limited contact with Isaac after the wedding.

1997 and 1998: new wills

1. On 17 January 1997, Isaac's eldest son, Nathan, was born.
2. On 2 April 1997, the deceased made a new will (1997 Will), which appears to have been prepared by the NSW Trustee. Under the 1997 Will, the deceased made Gregory the sole beneficiary of her estate and appointed the NSW Trustee as executor.
3. Gregory gave evidence that the deceased had told him she intended to exclude Isaac from her will but he was not aware that she had actually done so. His belief was that the deceased went to the NSW Trustee and made the 1997 Will on the basis that Isaac had "abandoned her and would not give access to her grandchildren".
4. Isaac gave evidence that following Nathan's birth, Marina experienced a difficult period of post-natal depression which contributed to her conflict with the deceased, but that the deceased was never barred from their home or from seeing her grandchildren.
5. On 29 October 1998, the deceased went to the NSW Trustee and made the 1998 Will. Under the 1998 Will, the deceased gave all her property after payment of estate liabilities to Gregory and Isaac (cl 1), appointed the NSW Trustee as executor and trustee of the will (cl 3) and cancelled all earlier wills and codicils (cl 4).
6. Gregory and Isaac were not aware that the deceased made the 1998 Will at the time. Isaac believed that it may have reflected some stabilisation of relations with Marina in 1998.

Evidence and findings in relation to the 1998 Will

1. Ms Zin's affidavit confirms that the 1998 Will was signed by the deceased in her presence and the presence of the other witness, Tuaine Taoro (a secretary at the NSW Trustee) at the same time and that, at the deceased's request, they attested and subscribed to the 1998 Will in her presence.
2. Ms Zin was cross-examined. Unsurprisingly, given the time that had passed, Ms Zin did not remember the deceased, taking instructions from her or whether anyone accompanied her to the appointment. She gave evidence about the usual practice of NSW Trustee employees at that time, as follows: they would generally see clients on their own unless they became distressed and wanted another person in the appointment; they would ask various questions regarding their name, ID, assets, who they wanted to give their estate to and whether they were excluding anyone from the will; if someone appeared to speak more than one language, they would talk to them in English and if they could respond to questions they would proceed; there were others within the office who could assist if needed; clients could come in and make a will without the need to make an appointment.
3. Ms Zin also gave evidence that: neither she nor the secretary who was also present at the execution of the 1998 Will spoke either Russian or Yiddish; if a translator had been required in relation to the preparation of a will, that would typically have been a matter recorded in a memo attached to the will; she would have read the will out to the deceased in English; if she had had any concerns about the deceased's understanding of the will when she read it out, she would not have proceeded.
4. In evidence is a Will Information Form in relation to the deceased's 1998 Will that has Ms Zin's signature on it. The Will Information Form (Exhibit B) was admitted into evidence over Mr Adamson's objection. (The document was not included in the Court Book but was produced by Ms Zin in response to Isaac's 30 October 2022 subpoena (to which all parties were granted access) and was provided to Mr Adamson in advance of the hearing).
5. The notes on the Will Information Form record that: the deceased was a pensioner; her address was the Bondi Unit; she had two sons, Gregory who lived with her, and Igor who lived in Bronte; she wanted "All to her sons" with "no substitution at this stage"; the public trustee was to be appointed executor and trustee; her husband had died in 1995. On the third page, in the section headed "Family Provision Act", Gregory, who is described as "lives with mother - eldest son", is identified as a possible claimant and under the heading "reason for exclusion" (although Gregory was not "excluded" from the 1998 Will) states: Gregory is very dominant and has been very difficult with t/trix. Does not want her to go on with her life and meet another man for fear of losing out on his mother's estate. T/trix wants Igor to share

2001-2001: Gregory moves to the USA and the 2001 "repay" document

1. On 30 March 2000, Isaac's second son, Richard, was born.
2. Gregory gave evidence that there continued to be substantial conflict between the deceased and Isaac because Marina denied the deceased access to Richard and Nathan. Isaac disputes this.
3. In May 2000, Gregory sold the Coogee unit and relocated to the United States to pursue education in relation to his Jewish faith. He gave evidence that he informed the deceased of his plans to relocate overseas in 1998 but that it took some time to organise.
4. Isaac gave evidence that in the period when Gregory was in the US, he was in more frequent contact with the deceased and visited her frequently, who told him that she thought Gregory was wasting his time in the US and the money that she and Roman had given him to purchase a home.
5. Gregory gave evidence was that while he was overseas, he spoke to the deceased over the phone frequently and that she told him that she had not seen or spoken to Isaac in weeks.
6. In 2001, Isaac sold a further investment unit which he had substantially renovated for $610,000.
7. In evidence is a document dated "7.7.01" (2001 Repay Document) which Isaac signed under a statement that he accepts he wrote, which says: I Igor Chalik will repay Margaret Chalik the sum of $130,000 by November 2001
8. On the same document below the statement written by Isaac are a series of handwritten dates, descriptions and amounts listed (partially in Russian). The translation of the document identifies five entries described as "debt" with payments of amounts of $3000, $5000 and $82,[x] [1] 00, the latter with a date of 1/1/2003.
9. The 2001 document was the basis for Gregory's other money claim which alleged Isaac owed the deceased's estate a further sum of $75,507.22. That claim was deleted from the TFASC. I say more about the 2001 document when considering the Deed of Loan.

2002- 2010: Gregory returns to Sydney, moves to Melbourne and returns to live with the deceased

1. On 16 April 2002, Gregory wrote to the deceased from Seattle indicating his intention to return to Australia on the basis of the breakdown of a relationship in the U.S, which stated as follows: It is very hard for me to write you about it, but I feel that two years of my life have been wasted and, of course, about the loss of such an amount of money … On the other hand, I keep believing that I had no other choice, and these years would be wasted in Australia anyway. Furthermore, I recall my life with you, and I want to cry because you would drive me nuts with your rebukes and I would have no life either.
2. In late 2002, Gregory returned to Sydney and lived with the deceased in the Bondi Unit. He soon relocated to Melbourne and was married there in November 2002. Not long afterwards, he separated from his wife.
3. In July of 2003, Gregory returned to Sydney and again lived with the deceased in the Bondi Unit. He says he did so to care for the deceased who had separated from a de facto partner.
4. Isaac disputes this. He says the deceased did not have a de facto partner with whom she cohabited but described her as having become close friends with a man named Volodya, and that she ended her friendship with him on account of his drinking.
5. In May 2003, Isaac separated from Marina and moved to live alone in Bondi Junction. They formally divorced in 2006. Isaac received about $120,000 and a unit in Botany (which he says he had paid for from his savings) and he used the proceeds of the settlement, in addition to bank loans, to fund the purchase of a house in Matraville in 2007. Nathan and Richard continued to live with Marina but stayed with Isaac on the weekends. Isaac and his children had contact with the deceased most weekends. Following his divorce from Marina, Isaac purchased two takeaway food shops in the Sydney CBD with his fiancée, Hanh Dao (Hannah). In 2010, Isaac renovated the Matraville house into a duplex and sold half. He also sold both takeaway shops in 2012.
6. Between 2004 and 2005, Gregory was employed in a call centre administrative role by Isaac's former father-in-law.
7. In 2007, Ethel passed away.
8. In October 2009, Gregory returned to Melbourne.
9. On 14 February 2010, Isaac married Hannah. He did not invite Gregory to the wedding. The deceased was invited but did not attend because, according to Isaac, she told him that Gregory had threatened to renounce her if she did. Gregory denies having made any such threats.

2010: potential sale of Bondi Unit

1. In May 2010, Gregory visited Sydney from Melbourne. Gregory says that the deceased was at that time hoping to sell the Bondi Unit so that she could move to Melbourne to live with him. Gregory gave evidence that upon his return to Sydney, the deceased told him she had entered into a contract to sell the Bondi Unit. He deposed that an accountant, Mr Michael Meyer, recommended that she speak to Mr Wermut (a Yiddish speaking solicitor) and recalled he and his mother attending a meeting with Mr Wermut in relation to the prospective sale and Mr Wermut recommended that the unit not be sold.
2. Gregory says that he engaged Mr Wermut because it was not the right time for the deceased to relocate on account of their lack of funds and he sought Mr Wermut's advice in order to confirm that the contract was not enforceable.
3. Mr Wermut 's recollection is different to Gregory's and I prefer his account. He gave evidence that Gregory (not with the deceased) came to see him with a suggestion of selling the Bondi Unit which his mother owned. Mr Wermut recalls that when he asked Gregory why he wanted to sell, Gregory said, "I want to free up a little bit of money" and told Mr Wermut the rough figure he hoped to realise (a figure Mr Wermut could not remember). Mr Wermut said that he raised the issue of stamp duty and agents' commission, and queried what was going to be achieved if the Unit was sold. That, according to Mr Wermut, was the end of it and the sale did not proceed.
4. Isaac says that by early 2010, he observed that the deceased was experiencing memory issues. He referred to an agreement that she had signed with a real estate agent to sell her unit, her overdue bills and that she was missing arrangements to meet.
5. In relation to the sale of the Bondi Unit, Isaac says that on an occasion when he visited, the deceased told him she had found a piece of paper with her signature on it but did not recall signing it, thought it might have something to do with Gregory's friend and when he told her it was a sales agent agreement to sell the unit, she said that she never wanted to sell it. Isaac says he called the sales agency, told them his mother had memory issues and the agreement was unenforceable and they never heard from the agency again.
6. Isaac also gave evidence that, from around this time, he and Hannah repeatedly invited the deceased to move in with them due to their concern about her ability to live independently. Isaac says the deceased refused on account of Gregory wanting to relocate back to Sydney, at which point he would require accommodation in the Bondi Unit and financial support.

2011: noticeable decline in deceased's health and Gregory moves back to Sydney

1. On 30 August 2011, the deceased was taken to St Vincent's Hospital by paramedics.
2. The St Vincent's hospital admissions form and progress notes from 30 August 2011 record that Isaac was listed as the emergency contact. They record a diagnosis of "confusion" and the presenting problem as "headache/trouble urinating" and also state: Pt confused at time of interview. Cannot remember why she was brought to hospital or how. Very distressing - paranoid re friend + son colluding to harm her/take her home away. They want to kill me.' Denying any symptoms however states she feels awful and is sick.
3. The notes record that the hospital spoke to her son who stated that the deceased went to her GP that day and spoke to another son in Melbourne, who was concerned and then called an ambulance. They also refer to the following: "deteriorating cognition (?dementia) over last 12-18 months", the family was considering placement or home services but the patient was resisting; the deceased was "alert, orientated to place/person/time" but "confused re event of today"; "impression/UTI + ? acute confusion - worsening dementia"; patient "rambling + pacing and wants to talk to son".
4. The notes also state: at 11.30 pm "..refusing Cxr…PVC + treatment…any intervention…her family have done this to her + she wants to give up. Refusing tablets…"; at 2 am, she now remembered her son called an ambulance and "no longer paranoid", "1 son in Sydney married to Vietnamese woman who she does not get on with and other son in Melbourne who she does not see regularly anymore", "able to talk in sentences…alert - surprisingly oriented to time and place…. does display some tangentialism [sic]…often returns to previous topics which she has forgotten - paranoid delusions expressed….not allowing further examination". The notes also include a list of "issues" which include the following: ? Acute deterioration in mental state. Do not have a grasp of baseline", Acute exacerbation of asthma, likely related to viral UTI, long term deterioration in cognition? Dementia, depending on baseline ? this lady is safe to live at home by self; and she will require more rigorous investigation and treatment but not appropriate to escalate at 0300 in the morning.
5. The deceased left the hospital without waiting to be discharged or picked up by Isaac. The hospital completed an "Absconded Patient Report to Police" that records her mental state as "confused".

2012: Gregory becomes deceased's carer, medical issues and visits by Isaac and his sons

1. On or about 16 March 2012, Dr Opacic completed a Centrelink Carer Payment and/or Carer Allowance Medical Report for Gregory to receive a carer allowance for the deceased. That report ticks the box indicating the deceased was "cognitively impaired" and, under the section entitled "Abbreviated Mental Test (AMT), ticks four boxes as correct and three boxes as incorrect (incorrect as being not recognise two people in the room, name the Prime Minister or recall and address minutes later). The report identifies the deceased's disability and health conditions as asthma, hypertension and "poor short term memory" (see AMT) and ticked the box that the conditions started more than 12 weeks ago.
2. Dr Opacic's notes from 2012 record that the deceased was regularly non-compliant with her medications and was advised repeatedly to take them and Dr Opacic told Gregory that he would have to ensure that they were.
3. On 1 May 2012, $10,000 in cash was withdrawn from the deceased's CBA Account. Gregory says that he did not know why the deceased withdrew $10,000 or what she had done with it and said that he had noticed her in possession of large sums of cash previously. There are other transactions on the deceased's CBA Account around this time which were facilitated by Gregory: on 27 June 2012, a transfer of $864 for "Ulpan Tuition fees", which Gregory says was for a course he was taking and that the money was withdrawn with his mother's permission and repaid in instalments over the "next couple of years"; and on 5 July 2012, a transfer of $147.40 was made for "Melbourne kosher", which Gregory gave evidence was done with his mother's permission in order to purchase kosher meat.
4. Gregory gave evidence that following his relocation to Sydney from Melbourne in September 2011, Isaac and his children were largely estranged from the deceased, although he accepted that Isaac visited her usually once a month.
5. Isaac disputes this. He says that during the period when Gregory was living with the deceased from 2011, he visited his mother sometimes weekly and sometimes fortnightly and described picked his mother up on several occasions to take her to a park to spend time together. He says that Gregory made his visits very unpleasant and he believed that Gregory tried to influence the deceased against him and tried to keep Isaac and his boys away from the deceased, which Gregory denies.

17 - 23 April 2013: preparation and making of 2013 Will

1. On 23 April 2013, the deceased made the 2013 Will, which was prepared by Mr Wermut. The 2013 Will is three pages long (including a back page). Under the 2013 Will, the deceased: 1. revoked all previous wills and testamentary dispositions: cl 1; 2. appointed Gregory as sole executor of her estate and gave him the whole of her estate both real and personal: cl 2; and 3. if Gregory did not survive the deceased for one month, appointed Isaac as sole executor and gave him the whole of her estate: cl 3.
2. Clauses 4, 5 and 6 are boilerplate provisions regarding the powers of the executor.
3. The 2013 Will is witnessed by Mr Wermut and Anette Craig, a secretary.
4. Gregory deposed that, at some point after he moved in with the deceased in 2011, he found two wills, one made in 1996 or 1997 (Gregory gave different years in different affidavits) and one in 1999. It is unclear whether the first of the two wills Gregory says he found was the 1997 Will or a different document. Gregory never produced the 1999 will to the Court. In cross-examination, Gregory was less precise about the years of the two wills, saying they dated to the 1990s, were made with the NSW Public Guardian and were "identical". He gave evidence that both wills he found were missing from the deceased's papers after she went into the nursing home.
5. In his written evidence, Gregory deposed that both of the wills he found named him as the sole beneficiary. In cross-examination, he gave inconsistent evidence, stating that he had not read either will.
6. Gregory deposed that he showed the "last" of the two wills to his mother and they had a conversation to the following effect: Me: Are you happy with the last Will? Mum: No. I want you to have my property. Igor has deserted me and you have taken care of me. Me: Do you want me to arrange for you to make a new will? Mum: Yes. Me: How about Mr Wermut the solicitor who acted for you when you wanted to sell the unit and talked you out of it? Mum: Yes, I liked him as he spoke Yiddish.
7. In cross-examination, Gregory denied knowing that Mr Wermut spoke Yiddish, denied that his mother spoke Yiddish with Mr Wermut when executing the power of attorney and guardianship in 2011, and denied deliberately selecting a Yiddish speaking solicitor for the making of the 2013 Will.

30 April to July 2013 - deceased's hospital admissions and health assessments

1. On 30 April 2013, following her fall, the deceased was admitted to St Vincent's hospital and discharged later that day.
2. The hospital records of the admission record that: the deceased had a mechanical trip and fall from a gutter and a "recollection of events"; she was unsure if left or right-handed; she became teary and emotional, increasingly agitated, refused plaster initially and X-ray and threatened to discharge. They also record the following: previous medical history of asthma, UTI and deterioration in cognition; deceased was not taking any medications since late 2021 (sic, sc. 2012) and not seeing GP at all (this was incorrect as she had seen Dr Opacic throughout 2011 and 2012); she was unlikely to manage personal care, already unkempt; she claimed to have never fallen before but records showed she had; she said she did all the cooking, housework, shopping and was independent with finances and bills; "Action plan: MMSE = 8/10 but pt increasingly agitated re pain and previous medical notes + decline cognition, poor judgment"; the deceased could not give her date of birth or an address minutes later; cognitive status marked as mildly impaired on an AMTS score of 8; cooperation/insight or judgement is noted as severely impacted; very vague historian and difficult to assess; "son does not help with care (?? She cares of him)"; and long history of refusing services.
3. A CT brain scan was performed at the hospital, which found an "8mm calcified lesion arising from the anterior flax" thought likely to represent a calcified meningioma.
4. On 1 May 2013, Ms Amanda Klahr from the Geriatric Flying Squad conducted a home visit at the Bondi Unit, having been referred by the St Vincent's emergency department. Ms Klahr's Initial Assessment report records that: Son has stopped BP meds and cholesterol as he states BP is always high and that all she needs is diet and exercise not tablets to manage medications… Carer son is on a disability pension Showering/dressing/grooming: Son reports independent with prompting. However, she was unkempt and unwashed. Will not be able to shower now. She was repetitive in particular in regards to her husband and her son … Nutrition: Very poor nutrition. Eats a lot of junk food, Sounds like she wilt eat too much and not know when to stop. Kosher diet. Cognition: She was repetitive in particular to her husband and her son and difficulties of the relationship with her son. Deferred to her son to answer questions for her. Behavioural issues: Paces, moves objects around the apartment, constant need to keep moving General inspection: Patient was unwashed and unkempt, her PJs were filthy and she was not wearing any pants. Grazes on her nose, chin, fingers and the palms of her hands … Fingers swollen with bruising present … Plan: Rehab admissions would be best option but client unsure…. Review of cognition and give dementia diagnosis….Son declined geriatrician review at home feels it is unnecessary.

17 September 2013: statement of reasons

1. As noted above, there is a document in Russian dated 17 September 2013 which Gregory says sets out the deceased's reasons for making the 2013 Will (which I have earlier referred to as the Sept 2013 Statement). The Sept 2013 Statement is typed, signed by the deceased and as translated from Russian into English, states as follows: My son Greg, or Grisha as he likes to call himself now, keeps insisting that I should write a letter to explain why I left the apartment to him rather than dividing it equally between him and Igor. I was thinking about it for some time because I don't require an explanation. Nonetheless, here it is below if it may help Grisha later. Grisha has been helping me with home loan repayments for the Belgrave Street apartment that helped us to buy this Wellington Street apartment. Igor never helped with home loan repayments. Ever since we bought it, Grisha lived in that apartment most of our lifetime in Australia. He helped to look after the apartment after his father passed away, despite the fact that he lived in his own apartment at the time. Even after living in America and Melbourne, he would always return here. Grisha lives her now and takes care of me and helps me run the apartment in my old age. We hardly ever see Igor or his children and when I see them, they behave toward me as if we are strangers. Now that I am writing this letter, I haven't seen or heard from Igor for more than a month. I don't understand the animosity that Igor has toward Grisha. When Igor comes to visit me, he never enters my apartment, instead, he waits for me to come out to his car. On what ground does he base his claims for any part of this apartment which he has not seen inside for many years? For me, he stopped being a real son a long time ago, and I do not consider his claims to the Will for any part of the apartment to be justified based on his relations toward me. (signature) Margaret Chalik [name was typed in English]
2. Gregory deposed that he was concerned that the deceased should give a statement as to why she was changing her will and told her she had better make one as Isaac would dispute the will. He says that she agreed, saying that she would write it all down but she hated writing and gave up after 15 minutes. He said that she used typewriters in the USSR, he had a computer and he purchased a set of Russian (Cyrillic) letters for his computer keyboard to allow the deceased to type her statement in Russian. He gave evidence that it took her two weeks to type it out and the Russian letters were removed at the end of the process so her name could be typed in English. He says that when she was finished he printed it out, had the deceased sign it and posted it to Mr Wermut to be kept with the 2013 Will.

Late 2013- 2014: Further observations about deceased's mental state and visits with Isaac and his family

1. Gregory gave evidence that in late October 2013, Dr Opacic formally diagnosed the deceased with dementia after administering a Mini-Mental State Examination (MMSE), giving an MMSE score of 22/30. Gregory said the diagnosis and MMSE score were in a report which he could not locate. Dr Opacic's notes do not include an entry for October 2013 (they refer to 26 September 2013 and then 14 April 2014).
2. Gregory says that by later in 2013, he was aware that his mother had dementia and noticed that she had problems with her short term memory but said that she was still able to function independently, her rationality and long term memory was good and he did not observe any serious loss of memory or disorientation as to the date or time, who her family were and where she came from or lived.
3. Isaac gave evidence that, by 2012 and 2013, his mother said very little, mostly in Russian, and only spoke of events long past. He said she no longer remembered family occasions, did not write birthday cards and could not remember the rules for card or board games she used to play. Isaac says that in 2013, Gregory continued to make it difficult for him and his sons to visit the deceased, and that when he would attempt to call his mother to speak with her or to organise weekend visits, Gregory would answer and say words to the effect of "she's sleeping", "she's not available" or "she's eating". He could only recall a few times when he was able to speak to her.
4. Nathan and Richard say that from 2013 onwards (at which point Richard was 13 years old and Nathan was 16 years old), they saw deceased every couple of Saturdays when Isaac would collect her from the Bondi Unit to come and watch their tennis games and they would occasionally also visit a café or spend time at Isaac's home, which was by then in Matraville. They also recalled occasions when Gregory would ring at short notice and say that the deceased would be unable to attend a tennis game.
5. Gregory says that he never prevented Isaac and his sons from seeing the deceased but said that that sometimes they would arrive at the Bondi Unit without notice when she needed rest. The only occasions he could recall cancelling their visits was when the deceased was unwell or had medical appointments.

2015 - 2016: queries about will and NCAT proceedings

1. On 4 February 2015, Gregory called JewishCare and said he was struggling with the deceased, particularly with showering, and referred to his mother having dementia and caring for her full-time.
2. On 19 May 2015, Isaac emailed Gregory to ask about the existence of any will, power of attorney or guardianship documents. Gregory replied in the following terms: The short answer is that I don't have an enduring guardianship because I need this in Russian for mum to understand and there isn't one so I had to have on [sic] translated, etc. It got bogged down last year and I hadn't had time to attend to it.
3. Later that day, Gregory informed Isaac that a copy of the deceased's will was held by Mr Wermut.
4. In late May or June 2015, Isaac attended Mr Wermut's office with the deceased in order to obtain copies of the relevant documents. Mr Wermut informed Isaac that the deceased had not given instructions to provide him with copies of the documents requested and that Mr Wermut did not give the documents to Isaac.
5. In cross-examination, Mr Wermut gave evidence that Isaac showed up at the office unannounced and was strident about demanding a copy of her will. He said that the deceased was quiet and didn't say anything, and that he told Isaac he could not give him the will without the deceased giving permission, which she did not do when he took her into his office and spoke to her. He also said that Gregory showed up about halfway through the meeting, and it was "pretty obvious from the friction between them" that Gregory did not want Isaac to see the will, which was not a relevant consideration for Mr Wermut.
6. On 25 September 2015, Isaac commenced proceedings in NCAT seeking the appointment of a financial manager and guardian in relation to the deceased (NCAT Proceedings).
7. On 21 December 2015, Dr Opacic completed a Health Professional Report Form for use in the NCAT Proceedings which states that she had been the deceased's GP since 2011, she saw her 2-3 times per year and over the past 3-4 years, the deceased had mild to moderate dementia that was progressing slowly. It records a MMSE of 21/30 and states that the deceased appears to be able to clearly state what she feels about situations and her preferences but her "capacity" to make informed decisions needs assessment by a geriatrician. It also notes that the deceased can speak English and Russian and should be able to contribute at the hearing.

2017 - 2019: Guardianship and financial management orders, more dogs in unit. Supreme Court proceedings and deceased moves to a nursing home

1. On 9 March 2017, a Health Assessment of the deceased was undertaken by the practice nurse, Ms Perkin, and provided to Dr Opacic which records that the deceased appeared more confused that day and her MMS score was 13/30, significantly less than the previous year's score.
2. In mid-2017, Isaac and Hannah relocated to live in Tacoma on the Central Coast. He says he continued to visit the deceased in Bondi.
3. On 11 November 2017, NCAT reappointed the Public Guardian as the deceased's guardian for 12 months and also made a financial management order committing the management of the deceased's estate to the NSW Trustee (2017 NCAT Orders).
4. The deceased remained living with Gregory in the Bondi Unit notwithstanding the 2017 NCAT Orders.
5. Gregory lodged an appeal from the 2017 NCAT Orders which he withdrew in March 2018. On 16 April 2018, he lodged a summons in the Supreme Court seeking to appeal from the 2017 NCAT Orders, which proceedings were dismissed as an abuse of process in April 2019.
6. On 17 December 2017, Gregory opened a joint bank account with the Credit Union of Australia (Credit Union Account) in his and the deceased's name. This was at a time when the deceased's affairs were being managed by the NSW Trustee. Between 18 and 27 December 2017, Gregory transferred a total of $98,000 from the deceased's CBA Account to the Credit Union Account, with the description given as "contingency funds". Between 3 and 25 February 2018, Gregory made periodic transfers from the Credit Union Account totalling $90,000 (in $5,000 increments). A further $8,000 was debited from Credit Union Account on 1 and 2 April 2019 by Gregory.
7. By December 2017, Gregory had six dogs living with him and his mother at the Bondi Unit. Isaac recalled that there was a strong odour and that the dogs frequently barked.
8. Mr Wermut gave evidence under cross-examination about an incident in 2017 where Gregory sought to obtain a copy of the title deeds to the Bondi Unit. According to Mr Wermut's evidence, which I accept, he was in hospital and he received a call from his secretary who told him that Gregory wanted them. Mr Wermut gave evidence that Gregory had previously instructed him to make an application to replace a lost title deed. When Mr Wermut mentioned this to an NCAT employee, she was concerned that he may want to sell the unit. Mr Wermut told his secretary not to give the deeds to Gregory. However, Mr Wermut said that Gregory took the title deeds out of his secretary's hands and left with them. Mr Wermut wrote to NCAT to inform them of the incident.

2020 - 2021: Gregory moves out of Bondi Unit and it is sold

1. After the deceased moved to the nursing home, Gregory remained living in the Bondi Unit with his dogs. In August 2020, NCAT made orders requiring him to vacate. He did so in September 2020 and has since been living in a van with his dogs.
2. In November 2020, the NSW Trustee as financial manager invited Isaac to inspect the Bondi Unit and remove any of Margaret's belongings. Photographs were taken of the Unit around this time and depict the Bondi Unit as extremely cluttered and dirty.
3. On 25 February 2021, Isaac wrote to Gregory and sought his agreement to move the deceased to a nursing home that had Russian speaking staff. By this time, the Public Guardian no longer had the accommodation function for the deceased. Gregory did not agree (or respond) and on 30 March 2021, Isaac lodged an application with NCAT for the accommodation function to be regranted to the Public Guardian so that it could make a relocation decision in relation to deceased if required. On 18 May 2021, NCAT made orders restoring the accommodation function to the Public Guardian.
4. In June 2021, the Bondi Unit sold for $1,620,000.00. According to Isaac, a similar unit located above the deceased's sold for $1,890,000.00 in March 2021 and the damage to the ceiling adversely impacted the Bondi Unit's sale price.
5. On 20 July 2021, the deceased died whilst at the William Cape Gardens nursing home. Her death certificate records the duration of her last illness as Alzheimer's disease for 5 years and 6 months, hypertension for 2 years and asthma.

Validity of the 2013 Will

1. The Court must determine whether the 2013 Will is the deceased's last valid will. Broadly, the issues raised are: 1. whether the deceased had testamentary capacity; 2. whether the 2013 Will was made with the deceased's knowledge and approval; and 3. whether the 2013 Will was made by reason of undue influence on the part of Gregory.

Legal principles

1. In order for a will to be a valid testamentary instrument, the testator must have had testamentary capacity at the time the will was made and must also have known and approved the contents of the will at that time.
2. The general principles in relation to testamentary capacity and knowledge and approval were summarised by Kirk JA (with whom Bell CJ and Griffiths AJA agreed) in Lim v Lim [2023] NSWCA 84 at [7]-[12], as follows: [7] It is a precondition of a valid will that the testator had testamentary capacity at the time the will was made, that is, the ability to understand the nature and significance of making a will. The judgment of Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 is regarded as the locus classicus on the issue. Reflecting Banks, the requirement has been understood as encompassing the following elements (see eg Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [5]- [6] per Basten JA): (a) the capacity to understand the nature of the act of making a will and its effects; (b) the capacity to understand the extent of the property the subject of the will; (c) the capacity to comprehend moral claims of potential beneficiaries; and (d) the absence of mental disorders or delusions which affect the testator's "mental faculties [so as] to make them unequal to the task of disposing of [their] property" (to quote Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558 at 571-572 per Isaacs J). [8] Although authoritative, the discussion of testamentary capacity in Banks ought not be read like a statute: Mekhail v Hana [2019] NSWCA 197 at [164] per Leeming JA. Further, these are matters of capacity, that is the ability to understand. It need not be shown that the testator in fact turned their mind to, for example, the extent of their property: King v Hudson [2009] NSWSC 1013 at [51] per Ward J; Dickman v Holley [2013] NSWSC 18 at [159] per White J; Simon v Byford [2014] WTLR 1097; [2014] EWCA Civ 280 at [40]- [41]. Because the issue is capacity there commonly will be substantial overlap when considering these factors. Capacity to understand (say) the extent of one's property will commonly substantially overlap with capacity to comprehend the claims of potential beneficiaries. [9] Whilst the test of capacity is a generic one, what is required in practice depends upon the particular will. The simpler the will and the less surprising its contents (eg in terms of providing for those who might have been expected to be provided for) the easier it may be to establish the requisite capacity: note Croft v Sanders [2019] NSWCA 303 at [126] per White JA. Knowledge and approval [10] A further, obvious precondition of a valid will is that the testator knew and approved of the contents of the will. In some cases that may also require showing that they appreciated the effect of what they were doing, so that it can be said that the will contains the real intention and reflects the true will of the testator: Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [47] per Meagher JA; Lewis v Lewis [2021] NSWCA 168; (2021) 105 NSWLR 487 at [166]-[187] per Leeming JA. Again, the simpler the will the more easily it might be established that a testator knew and approved of its contents. Onus [11] It has long been established that the legal onus of proof with respect to testamentary capacity and knowledge and approval, if those issues are raised on the evidence, is on the party propounding the validity of the will. Talk of shifting burdens and of presumptions has been common in this area of the law. The way in which the question of onus is often dealt with in respect of testamentary capacity was summarised by Meagher JA in Tobin v Ezekiel at [45]: If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity. Those circumstances shift the evidential burden to the party propounding the will to show that the testator was of "sound disposing mind": Waring v Waring [1848] EngR 693; (1848) 6 Moo PC 341 at 17 355; [1848] EngR 693; 13 ER 715 at 720; Sutton v Sadler [1857] EngR 738; (1857) 3 CB NS 87 at 97-98; [1857] EngR 738; 140 ER 671 at 675-676; Smith v Tebbitt (1867) LR 1 P & D 398 at 436; Bull v Fulton [1942] HCA 13; 66 CLR 295 at 343; Kantor v Vosahlo [2004] VSCA 235 at [49], [50]. That doubt, unless resolved on a consideration of the evidence as a whole, may be sufficient to preclude the court being affirmatively satisfied as to testamentary capacity: Bull v Fulton at 299, 341; Worth v Clasohm [1952] HCA 67; 86 CLR 439 at 453. [12] In respect of knowledge and approval, the language of "suspicious circumstances" has often been used. In Nock v Austin (1918) 25 CLR 519; [1918] HCA 73, for example, Isaacs J explained (at 528): (1) In general, where there appears no circumstance exciting suspicion that the provisions of [a testamentary instrument] may not have been fully known to and approved by the testator, the mere proof of his capacity and of the fact of due execution of the instrument creates an assumption that he knew of and assented to its contents: Barry v Butlin 2 Moo PCC at p 484; Fulton v Andrew [1875] UKLawRpHL 3; LR 7 HL 448. (2) Where any such suspicious circumstances exist, the assumption does not arise, and the proponents have the burden of removing the suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved of the contents of the document: Baker v Batt [1838] EngR 643; 2 Moo PCC 317 at 321; Tyrrell v Painton [1893] UKLawRpPro 56; [1894] P 151; Shama Churn Kundu v Khettromoni Dasi LR 27 Ind App 10 at 16.

Expert evidence

1. Dr Jane Lonie is a Clinical Neuropsychologist with a PhD in Clinical Neuropsychology. She has over 24 years post-graduate clinical experience in neuropsychological assessment and cognitive evaluation of pre-clinical, early and moderate stage neurodegenerative disorders within both clinical and medico-legal contexts.
2. Dr Lonie was jointly engaged by Gregory and Isaac pursuant to consent orders made on 14 December 2022 and instructed to provide a report and her opinion on the primary issues of: a) whether the deceased had testamentary capacity to make the alleged will dated 24 April 2013; and b) the extent to which the deceased was vulnerable to undue influence upon her to make the 2013 will.
3. In the joint instructions, Dr Lonie was asked to address six specific questions (set out below) and provided with copies of the affidavits and documents consisting, in the main, of the deceased's medical records (which are also included in the Court Book).
4. In her report dated 14 March 2023 (Report), Dr Lonie notes that from September 2011 - October 2019, the medical and hospital notes, together with the lay evidence, document a pattern of progressive decline in the deceased's cognition, mobility, and levels of functional independence that were accompanied by the emergence of a range of psychological and behaviour symptoms of dementia. She notes that the question of dementia was first raised on 30 August 2011 and the undiagnosed status of dementia (presumed to be of an Alzheimer type) was addressed within the hospital notes arising from the deceased's May 2013 admission.
5. In the Report, Dr Lonie provided an opinion in relation to the six questions as follows:

1.Whether the deceased at the time of the 2013 will understood the nature of the act of will-making and its effects

1. There is no reason to believe, Dr Lonie wrote, based upon what is known of the typical course of deterioration in language and semantic memory, that the deceased would not have retained an understanding of the nature and purpose of a will at and around April 2013. This was on the basis that the deceased was noted as having remained capable of engaging in conversation about "general matters" when she gave instructions in relation to the 2013 Will and hospital records that indicate the deceased's language and comprehension abilities were sufficient to allow her to communicate her wishes with medical staff in April and May of 2013.

Whether the deceased at the time of the 2013 will understood the extent of the property of which she was disposing;

1. Although the deceased more than likely retained an understanding and knowledge of her primary asset (the Bondi Unit), it appears unlikely that she would have retained knowledge of the approximate value of the Bondi apartment at the time of making the will. Based on the evidence documenting impairment of short-term memory from August 2011 onwards, Dr Lonie considered that the deceased is most unlikely to have had the cognitive ability to remember discussions pertaining to the value of the Unit that may have occurred in 2010.

Whether the deceased at the time of the 2013 will was able to comprehend and appreciate the claims to which she ought to have given effect (i.e., natural beneficiaries)

1. The deceased remained capable of identifying her two primary beneficiaries as her sons, Gregory and Isaac. However, she would not have been mentally capable of comprehending and appreciating the relative claims each of her sons held over her estate. Dr Lonie reached this conclusion on the basis of medical evidence indicating that, at the time, the deceased was displaying substantial impairments of memory and other areas of cognitive function, namely, judgment, insight and self-monitoring ability, independent decision-making, memory and appraisal. In Dr Lonie's opinion: 1. the deceased's loss of insight into her own condition and care needs, inability to reliably retain and later bring to mind events and conversations from the recent past years, poor judgement and impulsivity would have left her ill-equipped, cognitively speaking to make sense of and formulate an independent, reality-based and reasoned view around the nature of and basis for the strained relationship that existed between her two sons, and her own existing and past relationships with her two sons; and 2. her testamentary decision making at and around the time of the 2013 Will was likely a product of at the very least incomplete and likely inaccurate recollection of facts together with a lack of understanding and appreciation of the circumstances, both in a medical and family relational sense.
2. Dr Lonie opined that at the time the 2013 Will was executed, the deceased was suffering a disorder of the mind, namely Major Neurocognitive Disorder, which would have resulted in impaired executive and memory function, in particular, an inability to formulate an accurate appraisal of her own limitations and of her relationship with her sons and their respective claims to her estate, which also left her testamentary wishes vulnerable to the significant influence of others.

Whether the deceased at the time of the 2013 Will knew and approved of the 2013 Will's contents at the time it was executed, so that it can be said that the testator comprehended the effect of what she was doing

1. While there are hospital notes that suggest the deceased experienced delusions during her May 2013 admissions, there is no indication that any of them bore any relation to the formulation of her testamentary wishes.

Whether the deceased at the time of the 2013 Will not only could understand the nature and effect of will making at that time but could weigh the claims of respective actual and potential beneficiaries, such as her two sons;

1. The deceased is likely to have retained the requisite mental capacity to understand the nature and purpose of will-writing and the ability to comprehend the concept of leaving everything to one son. However, it was highly unlikely that she would have retained the mental capabilities required for her to appreciate, from an emotional or financial perspective, the act of leaving her estate in its entirety to one son to the exclusion of the other.

Whether the deceased was affected by '8mm calcified lesion arising from the anterior falx though likely to represent a calcified meningioma, found in the course of the CT scan of 30 April 2013.

1. It was difficult, if not impossible, to predict the extent to which the deceased's neuropsychological presentation was associated with the calcified lesion thought to represent a calcified meningioma identified on 30 April 2013. In any event, Dr Lonie considered that it was not necessary to assess the relative contributions of meningioma and neurodegenerative disease to the deceased's cognitive presentation in order to assess her testamentary capacity at the time she executed the 2013 Will.
2. Dr Lonie also gave her opinion on the deceased's susceptibility to undue influence. She listed various risk factors for undue influence by reference to three academic papers. Dr Lonie considered that the deceased fulfilled the majority of the risk factors, namely: advanced age; gender (a woman); vulnerability of the testator caused by cognitive limitations, mental illness or physical impairment; relative isolation of the testator that allows another to control access to information and distort the true state of affairs; the influencer's apparent authority, including their gender (a man); the existence of a confidential relationship with the testator; the individual accused of undue influence played an active role in procuring the will; dependence of the testator on the influencer; and the "equity" of the distribution contemplated by the impugned will .
3. The factors that Dr Lonie considered that the deceased may not have fulfilled were: the provisions of the will are inconsistent with prior or subsequent expressions of the testator's wishes; significant change in will and a subsequent disowning of the will.
4. In the Report, Dr Lonie emphasised that the presence of any significant cognitive impairment which impacts upon a testator's capacity for independent recollection, appraisal, reasoning and decision-making will place the testator at a heightened risk of undue influence.
5. In cross-examination, Dr Lonie: 1. said there was ample evidence within the medical notes to clearly show that the deceased's cognition was impaired to the extent that she was no longer in a position to be able to judge and appraise the actions of a significant other. Dr Lonie said she believed that the deceased's affections were likely to have been poisoned as a result of that cognitive impairment; 2. considered that the bulk of the evidence points to the deceased not being able to weigh-up the relative claims to her estate and also led Dr Lonie to doubt the deceased's understanding of the approximate value of the estate, and that those two aspects of testamentary capacity would have been impaired as a consequence of her neurological illness; 3. opined the deceased was liable to have her mind poisoned because she was no longer, cognitively speaking, in a position to make independent and fully-informed decisions of her own accord; and 4. did not agree that the 17 Sept Statement represented a simple matter that the deceased felt deserted. She explained that the deceased was not capable of retaining information and, as such, it was difficult to envisage the deceased being in a position to make an informed judgment based on recent events, even from two years prior and be able to apprise her sons in that context.

Testamentary capacity

1. As the propounder of the 2013 Will, Gregory bears the onus of proving that the deceased had testamentary capacity when she made the 2013 Will.
2. Testamentary capacity is presumed if a will is duly executed and it is rational on its face: Tobin v Ezekiel at [45] per Meagher JA.
3. There is no dispute that the 2013 Will was duly executed and I consider that it is regular and rational on its face, despite the change from the 50/50 split in the 1998 Will and any debate about the appropriateness of the change and how it came about. Thus, there is a presumption that the deceased was mentally competent at the time she signed then 2013 Will.
4. In my view, there is sufficient evidence to cast doubt about the deceased's capacity to displace the presumption in this case. The doubt about the deceased's capacity in April 2013 is raised by Mr Wermut's evidence that the deceased did not know why she was seeing him on 17 April, the evidence of the loss of her memory and her inability to look after herself in terms of personal care and taking medications prior to 2013 (as recorded by Dr Opacic, JewishCare and by Isaac, his sons and Gregory) and the contents of the hospital notes of her admissions in April and May 2013 referring to, amongst other things, her confusion and likely dementia.
5. Accordingly, the question whether the deceased had testamentary capacity in relation to the 2013 Will is to be determined upon a consideration of the whole of the relevant evidence, without resort to presumptions, noting here that there is a question as to whether it is appropriate in cases such as this, where testamentary capacity and undue influence have been raised, to proceed by reference to presumptions and shifting onuses: Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 (Mekhail v Hana) at [164]-[173].
6. In support of his contention that the deceased had testamentary capacity, Gregory relies, in particular, upon his evidence and that of Mr Wermut. Isaac relies on his and his sons' evidence of what they observed about the deceased prior to and in 2013, Dr Lonie's Report and the documentary evidence, particularly the medical records relating to the deceased.
7. Gregory's outline submissions (prepared by Mr Adamson) contended that Mr Wermut was an experienced solicitor who had a good recollection of what was discussed and remained of the opinion that the deceased had testamentary capacity and that Dr Lonie was also of the opinion that the deceased had testamentary capacity. I do not accept that last submission. As outlined above, Dr Lonie's opinion was that the deceased lacked testamentary capacity.

Knowledge and approval

1. Assuming that testamentary capacity had been established and given there was due execution, the presumption arises that the deceased knew and approved of the contents of the 2013 Will at the time she signed it. Isaac says the presumption is displaced by reason of circumstances that exist which raise a real suspicion or doubt as to whether the 2013 Will expressed the mind of the deceased.
2. Isaac in closing submitted that the case "bristles with suspicious circumstances" that the deceased did not know or understand the contents of the 2013 Will even though Gregory did not wholly conduct the 2013 will transaction, in the sense he did not draft the document.
3. The circumstances Isaac referred to as giving rise to a suspicion are: the absence of a contemporaneous statement of reasons; the fact the will was read out to the deceased by a "rusty" Yiddish speaker; the deceased's "perfunctory response"; her hospitalisation a week after the will was made; her growing disorder of the mind; Gregory's suppression of the 2013 Will; and Gregory's reluctance to take the deceased to a geriatrician or neurologist.
4. Isaac submits that it was not enough for Gregory to rely on the presence of a solicitor when the will was signed, since a solicitor may miss signs of diminished capacity: referring to Chant v Curcuruto at [726], per Hallen J and Hoff v Atherton [2003] EWCA Civ 1554 at [64], per Chadwick LJ.
5. In response, Gregory denied that he was under any onus and took issue with each of the "circumstances" Isaac referred to as giving rise to a suspicion the deceased did not understand the 2013 Will. He said that, given her age, it was understandable his mother had taken time to compose the September 2013 Statement. He also submitted that the "onus of proof" was on Mr Wermut to show he understood Yiddish; contended that his mother was not "hospitalised" but admitted for a case application and there was no diagnosis of a disordered mind. He also said that Isaac had only alleged, rather than proven, that Gregory suppressed the 2013 Will.
6. Gregory submitted that far from suspicions that the deceased did not understand the will, her "adamant and inflexible" testamentary instructions left little doubt the will reflected the deceased's resolve to disinherit Isaac. Further, Gregory submitted that Mr Wermut's presence, as an experienced solicitor, during the signing allowed the Court to infer steps were taken to ensure the deceased knew what she was signing.

Undue influence

1. Isaac has the burden of establishing undue influence.
2. Isaac submitted that undue influence, in this case, emerged from the same body of evidence as incapacity, which he said was a permissible approach, citing Estate of Janakievska [2011] NSWSC 1275 [299] - [315]; Estate of Simpson [2013] NSWSC 18 [160], [173]; Mekhail v Hanna at [128].
3. He submits that the Court could infer actual undue influence on Gregory's part, of the kind traditionally required for the law of probate to intervene. Isaac relied on Dr Lonie's report, which found that the deceased exhibited the bulk of indicia for undue influence. It was submitted that Gregory's insistent and controlling behaviour along with the deceased's cognitive decline would allow the Court to conclude that Gregory asserted a "moral command" over the deceased and used his proximity to press home the idea he alone should benefit from her will. For this inference, Isaac pointed to Gregory's control of the deceased's diet, her movements, her social life and her privacy in the Bondi Unit. He also pointed to Gregory's withdrawal of funds from the deceased's accounts, particularly the $25,000 for the "Odessa trip".
4. Isaac submitted that it did not matter that Gregory was not in the room when the deceased gave instructions to Mr Wermut in relation to the 2013 Will as he was close by and, on Mr Wermut's evidence, she kept looking to her son for reassurance.
5. Isaac also relied on Gregory's possessiveness over the Bondi Unit, evident in his cluttering of the space and his pursuit of the title documents in 2017.
6. Alternatively, if the Court was not satisfied that undue influence within probate principles was made out, Isaac submitted that equity would intervene and apply in this case principles drawn from the law of undue influence inter vivos. In particular, he said equity would analogise the present situation to that where an immature child makes a gift to its parents, which is a category of presumed undue influence: Quek v Beggs (1990) 5 BPR 11,761 at 11,764. If that approach were adopted, it would be for Gregory to disprove that he procured the will with undue influence.
7. Gregory responded by challenging each of the factors said to ground an inference of undue influence. He denied that the deceased was a "submissive individual" who could be controlled by anyone, saying that in 2013 the extent of her dependence on him was that they lived together, he cooked and provided food, and sometimes gave her lifts. He denied that there was evidence he controlled the deceased's diet, other than providing kosher food.

Deed of Loan

1. As already noted, Gregory claims that Isaac owes the deceased's estate the sum of $150,000 based on the Deed of Loan.
2. Isaac does no dispute that he signed the Deed of Loan but denies any liability pursuant to it.
3. He gave evidence that the deceased (and Gregory) asked him to sign the Deed of Loan document before his marriage to Marina to protect the "family equity" in the event of divorce (by which Isaac understood his mother to mean the equity he had in the Randwick units) and threatened their non-attendance at his wedding should he not sign it.
4. Isaac says that he never received a loan for $150,000 from his parents in 1995 or in 1991. His evidence is that he received a gift of $50,000 in 1995. He says he signed the document because he did not want to destroy relations with his future in laws (which he thought would occur if his mother and brother did not come to the wedding) and he did not believe the Deed of Loan had any real legal effect because no funds had been loaned to him. He said that he protested signing because he did not believe it would do anything to protect the family equity, he did not think his mother would try to enforce it and he did not speak to his wife about the Deed of Loan or seek any legal advice in relation to it.
5. As to the 2001 Repay Document, Isaac gave evidence that he wrote the sentence that he would repay the deceased $130,000 and signed the document in circumstances where at that time, he first discussed with his mother the possibility that he might be divorcing Marina. He says that the deceased became frantic because she could not locate the Deed of Loan and as she was getting upset, he agreed to write the words (which were dictated to him by his mother), although telling her that he still believed it was a nonsense document that he was not going to use. Isaac described his mother getting the idea to do a new version of the Deed, grabbing a piece of paper and being in such a state (he described her as starting to hyperventilate and cough) that he said he would write what she wanted.
6. Isaac says that the list of handwritten descriptions and amounts under his statement that he would repay does not show repayments made by him in relation to a $130,000 loan but rather, represents a list of various expenses incurred by his mother between 2002 and 2004 unrelated to him, such as funeral expenses for her uncle, his grandmother's nursing home expenses, a loan of $3000 to Gregory to purchase a car and in relation to a group tour to Europe and the U.S.A. on 13 May 2003.

Is $15,000 owed to the deceased's estate by Gregory?

1. This issue concerns Isaac's claim that Gregory owes the deceased's estate the sum of $15,000.
2. Isaac's claim is based on the evidence of withdrawals from the deceased's CBA Account to Gregory for his benefit which Isaac asserts have not been repaid.
3. The evidence shows that between 5 and 11 September 2014, Gregory transferred $25,000 from the deceased's CBA account to his NetBank account.
4. Gregory gave evidence that this amount was to fund a trip that the deceased and he were going to take to Odessa. He said that after withdrawing the funds, Dr Opacic told him that he and deceased should not take this trip due to her health and he realised by the end of 2014 that the trip would certainly not take place. He says that on 16 February 2016, he paid $10,000 into the deceased's CBA account for the "unused travel" and the balance of the funds was given to him by the deceased as a loan in order to repay his visa account in 2017 and the money was kept in an account until that time..
5. In cross-examination, Gregory accepted that by 2016, the deceased had dementia.
6. I am satisfied that Gregory is liable to the deceased's estate for the amount of $15,000. This is because, even if I were to accept Gregory's evidence that the amount was a loan, given the absence of any term setting a date for repayment, the loan is repayable on demand to the deceased's estate.
7. That said, I consider it more likely that, by 2016, the deceased's dementia had progressed to a stage where she was incapable of entering into a loan transaction of that type and Gregory retained the funds for his personal benefit without her authority or in accordance with his power of attorney, and he is thus liable to repay the money to her estate.
8. The recovery of that sum plus interest will be a matter for the executor of the deceased's estate.

Family Provision Claim

1. As I have concluded that the 2013 Will is not valid, it is necessary to determine Gregory's claim for further provision on the basis that the 1998 Will provides for the deceased's estate to be shared equally between Gregory and Isaac.

Legal principles

1. Before making an order for provision out of the deceased's estate, the Court must be satisfied, at the time when the Court is considering the application, that adequate provision for the proper maintenance, education or advancement in life of Gregory has not been made by the deceased's Will: Succession Act s 59(1)(c). If the Court is so satisfied, it may make such order as the Court thinks ought to be made for Gregory's maintenance, education or advancement in life, having regard to the facts known to the Court at the time the order is made: Succession Act s 59(2).
2. In this case, having regard to Gregory's age and circumstances, the relevant objects of any order for provision are for his maintenance and advancement in life.
3. Pursuant to s 60(1)(b) of the Succession Act, the Court may have regard to the matters set out in s 60(2) for the purpose of determining whether to make a family provision order and the nature of any such order. Those matters may be relevant both to the question of any inadequacy of provision and, if the provision is found to be inadequate, whether an order for provision should be made and if so to what amount: Chapple v Wilcox (2014) 87 NSWLR 646; [2014] NSWCA 392 at [7]; Chan v Chan [2016] NSWCA 222 (Chan v Chan) at [21].
4. The Succession Act does not prescribe the circumstances that constitute adequate provision for the proper maintenance, education or advancement in life of a person, nor does it allocate relative weight to any of the various matters set out in s 60(2) to which the Court may have regard.
5. While adequacy is concerned with quantum and the word "proper" prescribes the standard of the maintenance and advancement in life, these are relative concepts with no fixed standards. The Court is left to form opinions on those matters on the basis of its own general knowledge and experience of current social conditions: Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 (Viglo v Bostin at [74] (Gummow and Hayne JJ), [114] (Callinan and Heydon JJ); Limberger v Limberger; Oakman v Limberger [2021] NSWSC 474 (Limberger v Limberger) at [423].
6. A multifaceted evaluative approach that takes account of all the factual circumstances relevant to the application is required in order to determine whether adequate provision was made for the claimant's proper maintenance, education or advancement in life: Sgro v Thompson [2017] NSWCA 326 (Sgro v Thompson) at [6] (Payne JA), [86] (White JA, McColl JA agreeing). The relevant circumstances will include a claimant's needs, although there is a distinction between needs and adequate provision. Whether or not adequate provision has been made is not to be determined simply by a calculation of financial needs. Any assessment of a claimant's needs also requires consideration of the size of the estate and others' claims on it: Chan v Chan at [22].

Additional facts and matters: s 60(2) of the Succession Act

The relationship between Gregory and the deceased: s 60(2)(a)

1. Gregory was the deceased's eldest son.
2. There is evidence, which I accept, that they had a close mother son relationship. That said, their relationship was strained at times, as evidenced by letters that Gregory wrote, such as the one at [74] above, that described himself as the "unloved son". It is unclear what caused these tensions. Isaac's evidence suggests that it may have been related to Gregory's observant faith and controlling nature.
3. The closeness of their relationship is apparent from the fact that Gregory lived with the deceased for most of his life. In general, the deceased seems to have been socially isolated and looked to Gregory for companionship at times, such as after Roman's death.
4. Gregory moved back home in 1995, after Roman's death, and lived with the deceased until about 2000, when he moved to the United States, a move them seemed to put some strain on their relationship. Gregory lived with deceased from about 2003 to 2009 and then moved to Melbourne for a couple of years, before returning to live with the deceased from September 2011 until she left for the nursing home in October 2019.
5. In addition to a mother son relationship, Gregory took on the role of the deceased's carer, attorney and guardian from about 2011. It is apparent that the deceased's relationship with Gregory developed into one of dependence as her cognitive capacity declined, with the deceased becoming reliant on Gregory to manage her day-to-day activities. I would characterise Gregory's relationship with the deceased in these later years, from 2012 onwards, as controlling and dominant.
6. Gregory had little contact with the deceased after her move to the nursing home.

The nature and extent of any obligations or responsibilities owed by the deceased to Gregory and to any beneficiaries: s 60(2)(b)

1. The 1998 Will recognises Gregory and Isaac as the natural object of the deceased's testamentary bounty, with them recognised as equal beneficiaries.
2. There is no presumptive testamentary entitlement of an adult offspring: Underwood v Gaudron [2015] NSWCA 269 at [73]. The question of the extent, if any, of a continuing moral obligation or responsibility owed by the deceased to Gregory and to Isaac as the other beneficiary can only be considered in the context of all the circumstances in this case.
3. Gregory's submissions suggest that his mother owed him some kind of obligation because he "uprooted" his life in Melbourne to care for her.
4. Isaac's submissions emphasised the care he provided to the deceased, particularly in the years Gregory was living in the United States and in Melbourne. His evidence was that he also gave her moral support and added to her social life.

The deceased's estate: s 60(2)(c)

1. As noted above, the Bondi Unit was sold in June 2021 for $1,620,000, when the NSW Trustee was managing the deceased's estate, and on 24 February 2022, Ms Ross-Maranik was appointed interim administrator for the purposes of collecting and preserving the deceased's assets, paying any of her or her estate's liabilities, establishing and operating bank accounts for the estate, otherwise managing certain estate business and paying the interim distribution to Gregory.
2. On 15 March 2022, Ms Ross-Maranik received the amount of $1,642,405.12 from the NSW Trustee, representing the total funds of the deceased's estate, which by that time consisted solely of cash.
3. As already noted, on 24 February 2022, Hallen J ordered interim distribution of $250,000 from the deceased's estate to Gregory. After her appointment as administrator, Ms Ross-Maranik paid that amount into a trust account operated by Gregory's then-solicitor, Mr Adamson.
4. After taking into account the interim distribution, funds received from CBA from the closure of accounts (of $176.21), Ms Ross-Maranik's fees (of $7,700) and estimated net interest (of $17,350), Ms Ross-Maranik estimates the value of the deceased's estate that she currently holds to be $1,402,231.89.
5. When the $250,000 interim distribution is added back in, the value of the deceased's estate is estimated to be $1,652,231.89 [2] . There are no identified estate liabilities.
6. As I have found, Gregory also owes the deceased's estate the amount of $15,000.
7. Based on the above (and excluding legal costs), Gregory's and Isaac's entitlements under the 1998 Will are $826,115.95 each. As Gregory has already received $250,000, he would be entitled to receive the amount of $576,115.95 which, less the $15,000 he owes the estate, is $561,115.95.
8. Gregory deposed that Mr Adamson estimated his legal costs to 15 April 2023 to be $150,000 (excluding GST) and his estimated costs and expenses for completion would likely exceed $200,000 (excluding GST). No effort was made to distinguish between the two sets of proceedings, costs and disbursements or what the costs would be on an ordinary basis, as distinct from an indemnity basis (which I assume is the basis reflected by the figures provided).
9. Isaac's legal costs and disbursements for both proceedings, including costs paid to counsel and Dr Lonie, were estimated to be $132,220 (including GST) to the conclusion of the hearing, on the basis of a three-day hearing. Like Gregory, Isaac did not estimate his costs on an ordinary basis and I have assumed that his costs were estimated on an indemnity basis.

Gregory's personal and financial circumstances (including earning capacity) and needs and the financial circumstances of any person with whom he is cohabitating: ss 60(2)(d), (e), (f) and (g)

1. Gregory is presently 60 years old. He is unemployed and lives by himself in a van with a number of dogs on a property that he leases outside of Tamworth. He is unmarried, has no partner and no children.
2. Gregory says that he has an elbow prosthesis, which means he cannot lift more than 10 kgs with one arm, suffers from hypertension and temporary vision impairment. He says this limits him to remote work only.
3. Isaac contends that Gregory's evidence about the disability in his arm should be rejected as it was not mentioned in his affidavits and is uncorroborated.
4. I place little weight on Gregory's contention about his elbow given he did not adduce any evidence, by way of a medical report from a GP or otherwise, that supports his claim of a disability in his arm which restricts his ability to work.
5. As noted earlier, Gregory did not complete year 12 and says that he struggled with school. According to Gregory's LinkedIn profile, his early jobs were as a taxi driver, a baker, a bank clerk and he studied at the University of Sydney between about 1996 and 2000.
6. Gregory gave evidence that in order to return to Sydney, he was forced to end his part time employment doing "database/sales". That employment or role is not listed on Gregory's LinkedIn profile and there is no documentary evidence corroborating he was employed in that role or how much he was paid.
7. On his LinkedIn profile, Gregory's present roles are listed as "concept designer" and "enterprise solutions analyst/professional military concepts designer". Neither role appears to be associated with an employer or paid work. The profile also lists Gregory's activities as including "military research" generally.
8. Gregory says that between 2011 and 2014, he attempted to start a consultancy business in the defence industry which required research of his own initiative for which he was not paid. In 2012, he received a government allowance, similar to Newstart, and received a carer's allowance in relation to the deceased from 2014.
9. Gregory says that due to his limited connections in Sydney and age, he believes that there are few prospects for him to restart his career in Tamworth or anywhere. Gregory's evidence about his limited job prospects was disputed by Isaac who produced evidence of a search of "Seek.com.au" on 11 April 2023 which indicated the availability of 448 jobs within 10km of Tamworth which he said may be suitable for Gregory.

The personal and financial circumstances and needs (if in issue) of Isaac, as the other beneficiary: ss 60(2)(d) and (f)

1. Isaac is presently 53 years old. He has two adult children, Richard and Nathan, from his first marriage to Marina who are not dependent on him. He has been married to his second wife, Hannah, since 2010. Isaac works as a mortgage broker and lives in a home he owns in Tacoma, New South Wales.
2. Gregory's submissions assert that Isaac is quite wealthy, alleges that he owns at least three properties in addition to his personal home, valued in excess of $6 million. Gregory's assertions were not supported by evidence.
3. Isaac did not raise his financial circumstances as a competing financial claimant or make any specific disclosure of his financial circumstances. Nevertheless, the Court cannot disregard Isaac's interests as a beneficiary of the deceased's estate. He is entitled to rely upon the terms of the deceased's 1998 Will and the fact that he is a chosen object of the deceased's bounty. In the absence of evidence from Isaac, the Court may draw an inference that he has sufficient income and resources to meet his needs: Succession Act s 61(1); Blendell v Byrne at [113]-[118], citing Tobin v Ezekiel at [94]; Page v Page [2017] NSWCA 141; (2017) 16 ASTLR 331 at [68] per Sackville AJA.

Gregory's contributions to the deceased's estate or welfare: s 60(2)(h)

1. As set out above, Gregory says that he deposited all the money he earned when he left school for about four years (from age 17 to 21) into his parent's account and the funds were used towards the mortgages on the Waverley and Bondi Units. I am unable to determine the value of that contribution but accept Gregory's evidence that he made a financial contribution that benefited the deceased and her estate.
2. Gregory also provided ongoing companionship to the deceased and undertook all her care needs from late 2011, for which he received a carer's allowance from 2014. Notwithstanding the debate about the quality of care and Gregory's controlling nature, the ongoing care that Gregory provided to the deceased from 2011 involved a substantial contribution to her welfare over a number of years.
3. Gregory says that due to his obligation to care for his mother full-time, by 2011, he had put his whole life on hold, exhausted any savings and became dependent on her for accommodation.

Any provision made by the deceased for Gregory during the deceased's lifetime or made from the deceased's estate: s 60(2)(i)

1. I have already referred to the provision made for Gregory under the 1998 Will and financial assistance when he bought the Coogee unit in 1994. According to Gregory, his parents gave him $46,432.71 towards this purchase, a figure that included $38,000 of Gregory's own money which he had banked into his parents' account. Isaac says that their parents gifted Gregory an amount that allowed him to purchase the Coogee unit. Whatever the amount of the gift was, it was common ground that it enabled Gregory to purchase the unit.
2. In about 2002, the deceased lent Gregory $3000 to buy a car. He says he repaid that amount in 2012, although no documentary evidence supporting repayment was provided.
3. During his adult life, the deceased also provided Gregory with rent free accommodation. He also did not pay for utilities, rates and levies.
4. To this I would add the provision made for Gregory by way of the money withdrawn from the deceased's account after 2012, some of which has been repaid and some of which he described as loans.

The deceased's testamentary intentions, including evidence of statements made by the deceased: s 60(2)(j)

1. The deceased's testamentary intentions are made clear by the 1998 Will.
2. The deceased had made a previous will in 1997 which left everything to Gregory. There are no documents in evidence at that time which set out the reasons for this although Isaac and Gregory's evidence suggest that it may have had to do with the fact that the deceased and Isaac's first wife did not get on and the deceased may have felt cut out from seeing her first grandson, Nathan.
3. The creation of the 1998 Will, only one year later, points to an improved relationship between Isaac and the deceased, a recognition by the deceased of her moral obligation to him, as well as concerns about the nature of her relationship with Gregory, as evidenced by the contents of the Will Information Form, which refer to Gregory as dominant and difficult and having a fear of losing her estate.
4. I have already dealt with and explained why I do not accept that the Sept 2013 Statement accurately sets out a statement of the deceased's testamentary intentions in 2013.
5. Gregory also gave evidence that the deceased thought Isaac could take care of himself and expressed that view up until the day she died. I am unable to place much weight on that evidence given it is uncorroborated, inconsistent with the wishes expressed in the 1998 Will and my findings about the deceased's cognitive capacity and inability to reason.

Whether Gregory was being maintained, either wholly or partly, by the deceased before her death: s 60(2)(k)

1. Gregory was maintained to a significant degree by the deceased before her death by the provision of rent-free accommodation until he had to vacate the Bondi Unit in September 2020.
2. Gregory was also partially maintained in the sense that he had access to and used money form the deceased's CAB Account for his personal items, such as kosher food, payment of Mr Wermut's invoice to Gregory, tuition fees and other loans.

Whether there is anyone else liable to support Gregory: s 60(2)(l)

1. No other person is liable to support Gregory. As already noted, he receives unemployment benefits.

Gregory's character and conduct: s 60(2)(m)

1. I have already referred to and dealt with aspects of Gregory's conduct and character. As I have found, he accessed and used money from the deceased's bank accounts for his benefit, including transferring large sums when the deceased's estate was under the management of the NSW Trustee.
2. I have also found that Gregory placed pressure on and unduly influenced the deceased into making the 2013 Will and sought to rely on the Sept 2013 Statement, which I do not accept as the deceased's document. Isaac submits that Gregory's misconduct in that regard is notable and a significant factor that weighs against the grant of any family provision relief in favour of Gregory.
3. Isaac also says that the standard of Gregory's care for the deceased is a facet of his character and conduct, referring to the state of the unit and his mother and Gregory saying little about the actual care he provided at a daily level.

Conduct of the other beneficiaries: s 60(2)(n)

1. Gregory contends that Isaac was unsupportive of the deceased across her life. He says that, after Roman died in 1995, Isaac seldom visited the deceased and participated little in her care. He referred to Isaac and Marina restricting the deceased from seeing her grandchildren and he and the deceased not being invited to Isaac's second wedding in 2010. Gregory says that Isaac's limited support for the deceased continued into her period of declining health, after 2010 and referred to a conversation in late 2010, during which the deceased complained Isaac rarely visited her or helped her.
2. Isaac disputed many of Gregory's contentions. He denied that he kept the deceased from her grandchildren, explaining that while married to Marina, he preferred to meet the deceased in public places with his children rather than visit her in the deceased's apartment, so that he could spend time with her without Gregory.
3. Isaac admitted that there was conflict between Marina and the deceased but denied the deceased was not invited to his second wedding. According to Isaac, the deceased did not attend because of a threat from Gregory who was not invited to the second wedding.
4. Isaac says that he visited the deceased frequently when Gregory was in America and Melbourne, took her to medical or social engagements and otherwise looked after her. He says he took on greater caring responsibilities during those periods, had a good relationship with her and that he and his sons continued to visit and see her, despite the difficulties they encountered from Gregory.
5. It is neither possible nor necessary to resolve all of the factual disputes raised by the parties' submissions. Whether or not Isaac invited Gregory to his second wedding is not significant in my view. Isaac's evidence that he invited his mother and she declined to come seems plausible as it was possibly due to Gregory's absence although I also note the hospital records suggested that the deceased did not get on with Hannah.
6. In general, I am satisfied that Isaac maintained a familial relationship with the deceased throughout her life and accept that he provided her with care and assistance, such as taking her to medical appointments and the like, more often when Gregory was not around. I also accept his evidence that he spent time with her later in life, when she was a resident at the nursing home closer to where he lived.

Any other matter considered relevant: s 60(2)(p)

1. In his further written submissions, Gregory alleges that his parents miscalculated in deciding to immigrate during his early teenage years (a decision Gregory says was dominated by the deceased) and this led to his failure to adjust in Australia and to pursue a normal education and career paths as Isaac did. He submits that his attempts to rectify his failure to integrate into the community and commence a family of his own were interspersed by the need to support the deceased in her time of grief after Roman died and he was finally impacted by her self-imposed health issues from 2009 to 2014, which required him to ultimately commit nearly a decade of his life to her care.
2. I accept that the move to Australia was likely challenging for Gregory. However, the facts in this case do not, in my view, demonstrate that the deceased's conduct in that regard was somehow to blame for Gregory's current circumstances or that his role as carer was thrust upon him by the deceased, such that he had no choice to undertake it. That is not to say that Gregory's role as carer is unimportant in this case. Rather, it is to explain why I am not persuaded by the thrust of Gregory's contention outlined above.

Consideration and determination

1. There is no dispute that Gregory is an eligible person to make an application for further provision from the deceased's estate: Succession Act s 57(1)(c).
2. There is, however, a threshold issue concerning the time Gregory commenced the proceedings.
3. An application for a family provision order must be made not later than 12 months after the date of the death of the deceased person unless the Court otherwise orders, on sufficient cause being shown or the parties to the proceedings consent to the application being made out of time: Succession Act s 58(2).
4. The Court may decide to extend time under s 58(2), which is a discretionary decision. Sufficient cause must be shown for bringing a late claim. The Court will look to factors such as whether the beneficiaries' interests would or might be affected by the making of an order to extend the time or prejudiced because of the delay; whether there has been conduct on the part of parties which might justify the grant or refusal of the application to extend time; and the strength of applicant's case: Verzar v Verzar [2014] NSWCA 45 at [23], [24] and [25] (Meagher JA).
5. Gregory commenced the Succession Proceedings on 15 November 2021 which, as noted above, sought an interim distribution from the deceased's estate. His claim for an order for final further provision was included in his amended summons filed on 25 November 2022. Prior to this, Gregory's summons had only sought liberty to apply for final provision, upon giving seven days' notice.
6. Isaac contends that this means that Gregory's application has been brought out of time because the application for final relief was made more than 12 months after the deceased's death. He does not consent to an extension of time and says that Gregory has not shown sufficient cause why he should be allowed to say he needs further provisions beyond his expected half share under the 1998 Will.
7. In my view, Isaac's position and submissions on this issue raise a matter of form and fail to take into account the substance of what happened in the case. It may be correct that the prayer for relief seeking final provision was not included in the amended summons until 25 November 2022, but the parties (and the Court) had to that time proceeded on the basis that Gregory's claims included a claim for further provision in the event that the 2013 Will was held to be invalid, as was apparent from the pre-trial directions and affidavits filed before October 2022, the date on which the hearing was originally listed to take place (and which hearing date was vacated). The late amendment to include a prayer for relief seeking final further provision simply regularised what the parties had themselves prepared for and was necessitated by what appears to have been a pleading oversight by Mr Adamson. There was no prejudice to Isaac when the Court allowed the amendment to be made and none when the hearing was conducted and no late change of mind on the part of Gregory to pursue a case which he had delayed commencing.

Conclusion, costs and orders

1. I have concluded that the deceased did not have testamentary capacity when she made the 2013 Will. Accordingly, Gregory's claim for probate in solemn form in respect of that will fails.
2. I have also concluded that the 1998 Will is a valid will. It follows that probate in solemn form of the 1998 Will should be granted in accordance with the orders sought in Isaac's cross-claim.
3. As to whom probate should be granted, I am satisfied that it is appropriate to appoint Ms Ross-Maranik as executor, noting that the NSW Trustee has renounced any right to probate under the 1998 Will. Ms Ross-Maranik has consented to being appointed as executor of the deceased's estate, has some knowledge of the estate from her court appointment as interim administrator and has agreed to charge the legislative scale fees (based on the gross value of the estate).
4. As to the money claims, I have concluded that Gregory has not established that Isaac has an existing liability to pay the deceased's estate the amount of $150,000 based on the Deed of Loan but Gregory is liable to the estate in the amount of $15,000.
5. As to Gregory's claim for further provision under s 59 of the Succession Act, I was satisfied that Gregory should be granted an extension of time to make his claim but concluded that the provision made for Gregory under the 1998 Will was adequate provision for Gregory's proper maintenance and advancement in life and thus, refuse his application for further provision.
6. As for costs, Isaac submits that Gregory should be ordered to pay Isaac's costs without any indemnity from the deceased's estate.
7. Gregory's submissions seek for Isaac to pay his costs on an indemnity basis, including full disbursements to Dr Lonie, referring to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 31.45. Gregory also says that the Court should direct that his costs be paid out of Isaac's disclosed assets and the Court should deny costs payments to Isaac from the deceased's estate in an amount greater than $1.
8. The general rules applicable to the award of costs apply in probate and family provision litigation: Ballam v Ferro (No 2) [2022] NSWSC 1358 at [77]-[80]; Estate of Guamani; Guamani v De Cruzado [2023] NSWSC 502 (Estate of Guamani) at [185]-[190]; Rofe at [652]-[658].

Endnotes

1. This number is indecipherable.
2. Ms Ross-Maranik's 14 April 2023 affidavit (at [7]) includes sums that appear to have treated the $250,000 interim distribution incorrectly, thus giving lower amounts for the value of the estate with and without the interim distribution.

Amendments 16 February 2024 - Formatting fixed. 19 February 2024 - Typographical corrections and other minor clarifications. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 February 2024