Chisak v Presot

Kleinig v Neal (No 2) [1981] 2 NSWLR 532 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 Leahey & Trescowthick [1999] VSC 409 Lodin v Lodin [2017] NSWCA 327 MacEwan Shaw v Shaw (2003) 11 VR 95; [2003] VSC 318 Manly Council v Byrne [2004] NSWCA 123 Mayfield v Lloyd-Williams [2004] NSWSC 419 McKenzie v Baddeley [1991] NSWCA 197 Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 Morley v ASIC [2010] NSWCA 331 Musa v Alzreaiawi [2021] NSWCA 12 Payne v Parker [1976] 1 NSWLR 191 Pearson v Jones (supra) and Simons v Permanent Trustee Co Ltd [2005] NSWSC 223 Petrohilos v Hunter (1991) 25 NSWLR 343 Poletti v Jones (2015) 13 ASTLR 113; [2015] NSWCA 107 Pontifical Society for the Propagation of the Faith v Scales (1962) 107 CLR 9; [1962] HCA 19 Porthouse v Bridge [2007] NSWSC 686 Power v Smart [2018] WASC 168 Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284 Re Estate of Hakim; Simons v Permanent Trustee Co Ltd [2005] NSWSC 223 Re Fulop Dec'd (1987) 8 NSWLR 679 Sammut v Kleemann [2012] NSWSC 1030 Sherborne Estate: Vanvalen & Anor v Neaves & Anor; Gilroy v Neaves & Anor [2005] NSWSC 593 Simonetto v Dick (2014) 10 ASTLR 231; [2014] NTCA 4 Singer v Berghouse (1993) 114 ALR 521; [1993] HCA 35 Skinner v Frappell [2008] NSWCA 296 Smart v Power [2019] WASCA 106 Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 Starr v Miller; Starr v Miller [2021] NSWSC 426 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Tramantana v Harborne; Clarke v Harborne; Midson v Harborne [2011] NSWSC 1129 Tsivinsky v Tsivinsky [1991] NSWCA 269 Vigolo v Bostin (2005) 213 ALR 692; [2005] HCA 11 Wharton v Bancroft [2011] EWHC 3250 Yee v Yee [2017] NSWCA 305 Category: Principal judgment Parties: Ivy Hope Chisak (Plaintiff) Emanuela Presot (first Defendant) Adelina Presot (second Defendant) Representation: Counsel: M W Sneddon (Plaintiff) Dr J Lucy (Defendants)

Solicitors: Fox & Staniland Lawyers (Plaintiff) Berala Law Group (Defendants) File Number(s): 2018/227413 Publication restriction: Nil

Introduction

1. HIS HONOUR: Almost 50 years ago, in In the Estate of Muirhead, Deceased [1971] P 263, Cairns J wrote, at 265: "I approach the matter with the conviction that it is the duty of a Court of Probate to give effect, if it can, to the wishes of the testator as expressed in testamentary documents."
2. More recently, in Wharton v Bancroft [2011] EWHC 3250 (Ch), Norris J wrote at [9]: "The task of the probate court is to ascertain what (if anything) was the last true will of a free and capable testator. The focus of the enquiry is upon the process by which the document which it is sought to admit to proof was produced. Other matters are relevant only insofar as they illuminate some material part of that process. Probate actions become unnecessarily discursive and expensive and absorb disproportionate resources if this focus is lost."
3. Finally, by way of introduction, I repeat what was written in Hawes v Burgess [2013] EWCA Civ 74, by Mummery LJ (with whom Patten LJ and Sir Scott Baker agreed), at [14]: "I should add a statement of the obvious in order to dispel any notion that some mysterious wisdom is at work in this area of the law: the freedom of testation allowed by English Law means that people can make a valid will, even if they are old or infirm or in receipt of help from those whom they wish to benefit, and even if the terms of the will are hurtful, ungrateful or unfair to those whose legitimate expectations of testamentary benefit are disappointed. The basic legal requirements for validity are that people are mentally capable of understanding what they are doing when they make their will and that what is in the will truly reflects what they freely wish to be done with their estate on their death."
4. Lily Savransky ("the deceased") died on 8 September 2017. At the date of her death, she was 87 years old, having been born in January 1930. These are bitterly fought Succession List proceedings brought by the Plaintiff, Ivy Hope Chisak, the only biological grandchild of the deceased. The matter was listed for four days, and was completed, within that time.
5. It is not difficult to appreciate, when one reads what follows, how expensive, and self-destructive, this litigation must be to the financial health of the parties, particularly the Plaintiff. However, every suggestion to resolve the proceedings, made to the legal representatives of the parties, both before, and during, the hearing, appears to have fallen on the deaf ears of the parties. In saying that, I do not doubt that the legal representatives appreciated, and explained to the party or parties represented, the commercial folly of the litigation. The matter, however, was not able to be resolved and continued with oral submissions being made on the last day of the hearing.

The nature of the proceedings

1. Ivy commenced the proceedings by Statement of Claim filed on 24 July 2018. The proceedings concern, amongst other things, a claim by her that the grant of Probate in common form of the 2017 Will should be revoked and that probate of the 2009 Will should be granted to her. She filed an amended Statement of Claim on 11 December 2019. The only amendment was the addition of the following paragraph: "A declaration that the deceased did not have testamentary capacity at the time of her purporting to make a new Will on 26 April 2019 [sic]."
2. At the commencement of the hearing, counsel for the Plaintiff noted the typographical error, and the Court was asked to read "2019" as "2017". Without objection, this was amended in handwriting on the amended Statement of Claim, although it was pointed out that there was no need for the declaration if the Court came to the view that the 2017 Will was not the last valid Will of the deceased as the Court would revoke the grant.
3. It is clear that the Plaintiff is not entitled to the relief she seeks even if successful in her Probate claim as she is not the executrix named in the 2009 Will. There is no evidence that the Defendants, who are the executors named in the 2009 Will, have renounced Probate, or that they intend to renounce Probate of that Will.
4. Ivy's probate claim was based upon allegations that (a) the deceased lacked testamentary capacity; (b) that she did not know and approve the 2017 Will; and (c) that suspicious circumstances existed at the time she made that Will.
5. The basis of the contest referred to in (c) above, relates to what has been described, in probate law, as the doctrine commonly invoked by the use of the expression "suspicious circumstances".
6. In Power v Smart [2018] WASC 168 (not challenged on appeal in Smart v Power [2019] WASCA 106), Derrick J observed at [663]: "When considering if there are circumstances that give rise to a suspicion that the testator might not have known and approved of the contents of a will, the court looks at a number of factors including the circumstances surrounding the preparation of the will, whether a beneficiary was too involved in the preparation of the will, the extent of the physical and mental impairment, if any, of the deceased, whether the will in question constitutes a significant change from a prior will, whether the lawyer or person who prepared the will takes a benefit, and whether the propounded will generally seems to make testamentary sense: Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81 [96] ‑ [111]; Veall v Veall [173]; The Estate of Juliana Voros; Cooney & Ors v Cherry [2016] NSWSC 1603 [135]."

The Wills of the deceased

1. The 2017 Will was a professionally drawn Will comprising one page with only the attestation Clause on the second page. It provided: 1. For the revocation of all former wills and testamentary dispositions, and declared it to be the deceased's last Will: Clause 1; 2. Appointed "my friends", Emanuela Presot and Adelina Presot to be the Executors and Trustees of the Will: Clause 2; 3. Directed the Trustees to pay all debts, funeral and testamentary expenses: Clause 3; 4. Gave directions for her funeral service and burial: Clause 4; 5. Directed the Trustees to sell her property at Lidcombe: Clause 5; 6. Gave "the whole of my estate both real and personal of whatsoever kind and nature and wheresoever the same may be situate to EMANUELA PRESOT, ADELINA PRESOT, my friend LINDA PRESOT, my friend ANNA SAVATEEV…and my granddaughter IVY HOPE CHISAK for their own use and benefit absolutely in equal shares as tenants in common": Clause 6; and 7. Empowered the Trustees in their absolute discretion to do certain things: Clause 7.
2. The 2009 Will was a professionally drawn Will comprising several pages with only the attestation Clause on the third page. It provided: 1. For the revocation of all former Wills and Testamentary dispositions, and declared it to be the deceased's last Will: Clause 1; 2. Appointed "my friends" Emanuela Presot and Adelina Presot to be the Executors and Trustees of the Will: Clause 2; 3. Directed the Trustees to pay all debts funeral and testamentary expenses: Clause 3; 4. Directed the Trustees that there was to be "a simple funeral" and burial at Rookwood Cemetery: Clause 4; 5. Directed the Trustees to sell her property at Lidcombe: Clause 5; 6. Gave a pecuniary legacy of $7,500 to "my friend", Emanuela Presot: Clause 6; 7. Gave a pecuniary legacy of $7,500 to "my friend", Adelina Presot: Clause 7; 8. Gave a pecuniary legacy of $5,000 to "my friend", Irene Onis: Clause 8; 9. Gave a pecuniary legacy of $5,000 to "my friend", Anna Savateev: Clause 9; and 10. Left the residue of her estate to the Plaintiff upon attaining the age of 25: Clause 10.
3. It can be seen that each of the 2017 Will and the 2009 Will is in relatively simple terms.

Some formal matters not in dispute

1. The 2009 Will was prepared by a solicitor, Jihad Shahrouk, who gave evidence and who was cross-examined.
2. I am satisfied, that the 2009 Will had been duly executed in accordance with s 6 of the Act, and that it appeared, at the time it was made, to be a rational Will. In addition, the affidavit of one of the attesting witnesses to prove due execution, in relation to the signature of the deceased, was read, in order to obtain a grant of Probate in solemn form of that Will: Blendell v Byrne & Ors; The Estate of Noeline Joan Blendell [2019] NSWSC 583 at [422]. The requirements of testamentary capacity, and of knowledge and approval, had also been satisfied in relation to that Will.
3. There was no dispute that the 2017 Will satisfied the statutory requirements of s 6 of the Act, relating to how a will should be executed, namely that (a) it was in writing and signed by the deceased respectively, in the presence of, and at the direction, of her; (b) the signature was made by the deceased, in the presence of two or more witnesses present at the same time; and (c) two of those witnesses attested and signed the 2017 Will in the presence of the deceased. In other words, the 2017 Will was duly executed.
4. There was an affidavit of one attesting witness of the 2017 Will. It was also prepared by Mr Shahrouk and sworn on 22 August 2018.
5. The proceedings, so far as they relate to Ivy's claim for a family provision order, were filed within the time prescribed by the Act (not later than 12 months after the date of the death of the deceased).
6. Section 57(1) of the Act provides that "eligible persons" may apply to the Court for a family provision order in respect of the estate of a deceased person. One category of eligible persons is "a person who was, at any particular time, wholly or partly dependent on the deceased person, and who is a grandchild of the deceased person" (s 57(1)(e) of the Act). There is no age limit prescribed by the Act in the case of a claim by a grandchild.
7. In the case of an applicant who, relevantly, falls within s 57(1)(e) of the Act, the Court must be satisfied, having regard to all the circumstances of the case (whether past or present) that there are factors which warrant the making of the application (s 59(1)(b)).
8. Whilst there was no dispute that the Plaintiff is a grandchild of the deceased, the Defendants denied that she was, at any particular time, wholly, or partly, dependent upon the deceased. They also asserted that, even if the Plaintiff were an eligible person, there were no factors warranting the making of her application. Finally, they submitted that even if she is an eligible person, and there were factors warranting the making of the application, the provision made for her in the 2017 Will was adequate and proper in the circumstances of the case. They submitted that the proceedings should be dismissed in their entirety.

A summary of the issues and the Court's conclusions

1. The issues formally before the Court for consideration, and the conclusions reached, are: 1. Did the deceased have testamentary capacity at the time she made the 2017 Will? I conclude that she did. 2. Did the deceased know and approve the contents of the 2017 Will? I conclude that she did. 3. Having found that the 2017 Will is a valid Will, is Ivy an eligible person within the meaning of s 57(1)(e) of the Act? Whilst I am satisfied that she is a grandchild of the deceased, I am not satisfied that she was, at any particular time, wholly, or partly, dependent on the deceased.
2. Although having reached the above conclusions, it is unnecessary to decide the additional issues, for completeness, I record, in case I am wrong about the conclusion in (c) above: 1. If Ivy is an eligible person within s 57(1)(e) of the Act, having regard to all the circumstances of the case (whether past or present), are there factors which warrant the making of the application? I am satisfied that there are factors which would warrant the making of the application. 2. If Ivy is an eligible person, and if there are factors that warrant the making of the application, should a family provision order be made for her out of the deceased's estate? I conclude that an order for additional provision out of the estate of the deceased, should not be made, upon the basis that, at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has been made by the 2017 Will of the deceased.

The nature and value of the deceased's estate

1. On 17 November 2020, the Court directed the parties to provide, in hard and soft copy, an agreed schedule that contains: "a) The assets and liabilities of the estate at the date of death; b) The assets and liabilities of the estate at the date of the schedule; c) The estimated costs and expenses of any property that is to be sold; d) The estimated costs of each party calculated on the ordinary and on the indemnity basis inclusive of GST; e) Any costs of any party that have been paid, and in relation to either party, whether those costs have been paid out of the estate of the deceased."
2. During the hearing the parties tendered the Agreed Schedule as Ex JS1. I have taken what follows from the Agreed Schedule and from discussions with counsel during the course of the hearing. (I have omitted, and shall continue to omit, any reference to cents. This will explain any apparent arithmetical miscalculation.)
3. The gross value of the deceased's estate, at the date of death, was $1,267,038. After paying some liabilities ($6,181) the gross value of the estate was $1,260,857.
4. At the time of the hearing, the gross value of the deceased's estate was agreed to be $921,128.
5. At the date of the hearing the deceased's estate consisted of: 1. One parcel of real estate on Beatrice St, Lidcombe ($850,000); and 2. Cash held in a trust account by the deceased's solicitors ($71,128).
6. (Mr Joseph Daidone, a licensed real estate agent, was requested by the Defendants to provide his opinion on the market value of the property at XX Beatrice St, Berala. A copy of his written report is found at Ex JB2/847. In view of the location of the property and past sales in the area, he estimated the Berala property to be worth between $750,000 to $800,000. This estimate remained unchanged at the time of the commencement of the hearing. However, in cross-examination, Mr Daidone explained the reason for the lack of change in his valuation between June 2019 and March 2021 was due to a market downfall when COVID-19 occurred in 2020 and the slow recovery that has occurred towards the start of 2021: Tcpt, 23 March 2021, p 78(05-10). He then highlighted that the increase in demand for properties due to low interest rates did not pick up until the end of 2020 and beginning of 2021, noting that in the month after he had written his updating affidavit in February 2021, the market had picked up further: Tcpt, 23 March 2021, p 78(30-31). Due to this increase, Mr Daidone stated, in cross-examination, that he would value the Berala property at the time of hearing at around $850,000: Tcpt, 23 March 2021, p 79(17).)

The costs of the proceedings

1. In relation to the proceedings, the total costs for Ivy were estimated, on the ordinary basis, including GST, to be $133,000. Calculated on the indemnity basis, including GST, they were $181,605: Affidavit, Andrew Gordon Cameron, 29 March 2021 at par 3-4. Ivy has already paid $20,070 of these costs (presumably from her share of the deceased's estate), leaving a balance of $112,930, of costs calculated on the ordinary basis, to be paid.
2. The total costs of the Defendants, calculated on the indemnity basis, in relation to the proceedings, were estimated to be $183,693. The Defendants have paid $45,884 of these costs from the deceased's estate, leaving a balance of $137,809 yet to be paid.
3. Noting, without deciding, that if the estimates for the costs and disbursements are accurate, and assuming that all of the balance of the costs ($250,739) will be payable out of the estate ($882,752), the total amount of the available estate out of which an order for provision could be made for Ivy is $632,013.
4. At this point, reference must be made to s 60 of the Civil Procedure Act 2005 (NSW) which provides that in any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute. In my view, the total of the estimated costs and disbursements, calculated on the ordinary basis for the Plaintiff and on the indemnity basis for the Defendants, being almost $316,693 (and $365,298 for both calculated on the indemnity basis), or more than one-third of the estate, are disproportionate to the value of the estate. They are even more disproportionate to the value of any order for additional provision, that could have realistically been made in favour of Ivy if she were successful in her claim for a family provision order.
5. Furthermore, if the 2017 Will is the last valid Will, the estate will be divided into five equal parts, one of which parts would be distributed to the Plaintiff (now, using the above estimates, $126,402). Her share would have been more ($176,550), had the costs of the proceedings not been incurred.
6. I should note that the Defendants seek an order for costs against Ivy. However, I was informed that it would not be possible to determine the issue of costs as part of these reasons, as there may be a document, or documents, that may be relevant. Regrettably, this is likely to involve further costs being incurred, unless the parties agree on the costs orders, and if possible, the quantum of any costs ordered to be paid.

The Witnesses

1. Ivy, is the only grandchild of the deceased. Ivy was born in 1994 and is currently 26 years old.
2. Emanuela Presot is the first Defendant in these proceedings. She is the daughter of Adelina Presot and has known the deceased for over 40 years. Emanuela works full time as a teacher and lives with her parents in Lidcombe to assist in taking care of her father.
3. Adelina Presot is the second Defendant in these proceedings. Adelina and her husband, Luciano, purchased a home on the same street as the deceased in Lidcombe in 1965. Adelina knew the deceased from that time and they became good friends, and even better friends, after Adelina retired in 1990. For the last 15 years of the deceased's life, Adelina had been assisting the deceased with shopping and other errands. In Court, Adelina gave evidence with the assistance of an interpreter.
4. Linda Presot is the daughter of Adelina and the sister of Emanuela. She is one of the named beneficiaries in the 2017 Will. Linda works as an administration clerk for a pharmaceutical company. She had known the deceased for almost 40 years and along with her mother and sister, would assist the deceased with general tasks over the last 15 years. Linda resides with her parents in Lidcombe and also assists in the care of her parents.
5. Anna Savateev is one of the beneficiaries named in the 2017 Will. Anna has been widowed for 40 years and, at the date of hearing, lived in Auburn. She first met the deceased in around 1977. Anna and the deceased's children grew up, and went to school, together. During this time, she and the deceased would meet about once a week and would often meet for coffee and other social activities. They also spoke on the telephone frequently. In Court, Anna gave evidence with the assistance of an interpreter.
6. Jihad Shahrouk has been a solicitor at Berala Law Group since 2008. He drafted both the 2009 Will and 2017 Will for the deceased. Mr Shahrouk lived across the road from the deceased's property and has known her since 1992. Whilst living with his parents he would often see the deceased outside her house or around the neighbourhood. Mr Shahrouk has also sworn an affidavit of attesting witness.
7. Dr Chanaka Wijeratne is a consultant psychiatrist and an Associate Professor (Adjunct) at the School of Medicine Sydney, Notre Dame University. Dr Wijeratne was engaged by the Plaintiff to provide an expert opinion on the testamentary capacity of the deceased at the time of the 2017 Will. Dr Wijeratne provided two reports dated 8 October 2019 and 12 March 2020.

Background

1. I am satisfied that the following matters have been established.
2. The deceased was born in January 1930, in China, and grew up in the Ukraine.
3. The deceased was married to Boris Savransky. Boris and the deceased were divorced when he died on 30 September 2008.
4. The deceased had one child, Lana Cross, who was Ivy's mother. Sadly, Lana took her own life in September 1996, following unsuccessful neurosurgery for a congenital condition known as Arnold Chiari Syndrome.
5. Ivy lived with her mother and father in Brisbane after her birth. Ivy was about 18 months old at the time of her mother's death. She continued to live, at all times thereafter, with her father (in various locations in Brisbane and regional New South Wales), although there were two or three occasions, between 2000 and 2003, when she visited the deceased and stayed with her for short periods of time. (There was a dispute about the number of occasions that Ivy had visited the deceased.)
6. Ivy did not see the deceased at any time after 2003.
7. In 2009, Mr Shahrouk, the deceased's lawyer, took instructions and drafted the deceased's Will. The Will was executed on 3 June 2009.
8. On 16 March 2017, the deceased was admitted to Westmead Hospital having suffered a stroke. She remained in hospital for a little over two weeks. She was discharged on 4 April 2017.
9. The deceased returned home after she was discharged where she continued to live alone, albeit with some assistance from Meals on Wheels, her friends and a community service to assist her with showering twice a week.
10. On 26 April 2017, the deceased attended the offices of Berala Law Group, without an appointment, on her own, and told Mr Shahrouk that she wished to change her Will. She instructed him to prepare a Power of Attorney and an Appointment of Enduring Guardianship in favour of Emanuela and Adelina.
11. Later, on the same day, the deceased returned to the offices of Berala Law Group with Adelina and Emanuela. The deceased executed the 2017 Will. Afterwards, the Defendants agreed and signed the Power of Attorney and Appointment of Enduring Guardianship.
12. On 28 April 2017, the deceased collapsed at home and was taken to Concord Hospital. Records from that Hospital reveal that, on this occasion, the deceased had suffered a cardiac arrest.

Ivy's claim

1. Ivy stated that she was partially dependant on the deceased at various times in her lifetime.
2. Between 2000 and 2003, Ivy travelled to Sydney on three or four occasions to stay with the deceased. Ivy would fly to Sydney and the deceased would meet her at the airport. Each visit would be of between three weeks to a month duration. During these visits, the deceased, naturally, would look after Ivy. They would garden, play music, go the park, cook together, and go to the shops. During this time the deceased bought Ivy a pet rabbit and several goldfish on different visits. Photographs from this period are found in Exhibit IHC-1.
3. Ivy recalled at least three visits to Sydney and possibly a fourth, all of which occurred before 2003: Tcpt, 24 March 2021, p 138(39) - 139(07).
4. The Defendants submitted that Ivy's evidence about her visits to the deceased between 2000 and 2003 should be viewed with caution given her age at the time and that she had relied upon her father, who did not give evidence, for information. Ivy acknowledged difficulties in remembering specific aspects of her visits.
5. The Defendants submitted that the Court should conclude, having regard to the entirety of the evidence, that Ivy only stayed with the deceased twice. Ultimately, I do not think it matters whether the visits were two, three or four in number. She did not have very much contact with the deceased.
6. Ivy stated that during her visits to the deceased's house, the deceased would start calling her Lana. Ivy also noticed the deceased would cry frequently. Ivy stated the deceased would replicate memories and experiences of Ivy's mother with her. For example, she dressed Ivy in her mother's old clothes and completed the same bed time routine that Ivy's mother had completed. Whilst Ivy stated that this sometimes confused her, overall, the deceased was very loving and Ivy enjoyed spending time with her.
7. Ivy remembered meeting neighbours during these visits but could not recall who they were. She admitted that it was possible that she had met the Defendants during one of her visits: Tcpt, 24 March 2021, p 134(18-19).
8. In around 2001, Ivy's father caught chicken pox and the deceased came to Brisbane to take care of Ivy. Ivy's father had told her the deceased stayed for a period of three weeks.

The Beneficiaries

1. I turn next to the beneficiaries named in the 2017 Will. Whilst counsel for Ivy did not invite any adverse credit findings against the Defendants, or other witnesses who were close to the deceased, she submitted that the evidence of the Defendants and other lay witnesses regarding the deceased's "quick" recovery after the stroke should be viewed with caution in light of the speech pathologist's report and their fiscal interests in the 2017 Will.
2. The evidence of all of the witnesses who were close to the deceased and who had close contact with the deceased, both before, and after, she suffered her stroke, was consistent. I was very impressed with each of them, even remembering that she is a beneficiary named in the 2017 Will. I am satisfied that each of them gave a truthful account of her interaction, respectively, with the deceased, and that each gave accurate evidence about her observations of, and conversations with, the deceased, both before and after she suffered her stroke. None of the evidence was seriously challenged in cross-examination. In any event, it had the ring of truth to it. I accept the evidence of each of the beneficiaries.
3. Over the years, the deceased would come over to the Presot home regularly and join the Presot family for special occasions such as Christmas, Easter and Mother's Day.
4. For the last 15 years of her life, the deceased was assisted by Emanuela with general tasks. Emanuela would also take the deceased shopping and to medical appointments.
5. Emanuela stated that over the years the deceased spoke to her about Ivy, usually saying that she was disappointed that Ivy did not contact, or visit, her.
6. Emanuela met Ivy once, when Ivy was about four or five years old. The deceased and Ivy were walking past the Presot home and stopped in when they saw Adelina.
7. In March 2017, Emanuela visited the deceased in hospital on the afternoon she had her stroke. She noticed the deceased's mouth was slightly drooped to the side and her speech was slurred: Tcpt, 23 March 2021, p 99(03-04); Affidavit, Emanuela Presot, 1 July 2019 at par 2.
8. Emanuela stated that the deceased recognised her and smiled. She also noted that the deceased appeared to understand her questions and would respond by nodding her head.
9. Emanuela visited the deceased in hospital nearly every day after work.

The execution of the 2009 Will

1. In around May 2009, the deceased came to Berala Law Group office to change her Will. The deceased had been an existing client of Berala Law Group but was unaware that Mr Shahrouk was working for the firm. Mr Shahrouk took instructions from the deceased on drafting her Will.
2. Mr Shahrouk did not produce a file note for the 2009 meeting. He explained: "There is a file but the file would have been destroyed because we don't hold files that are over seven years old. So most likely there's a file note that no longer exists": Tcpt, 23 March 2021, p 45(39-41).
3. Whilst taking instructions from the deceased, Mr Shahrouk stated she said words to the effect: "Upon my death I want my house to be sold. I want to leave my estate to my granddaughter as she is my only relative. I am very upset with her as I have not seen her for so long and she does not contact me. But she is my blood and she should have it, I also want to leave something to my friends who have helped me": Affidavit, Jihad Shahrouk,12 March 2019 at par 8.
4. Mr Shahrouk stated in cross-examination that he "just remember[s] she [the deceased] was very upset with her (granddaughter)": Tcpt, 23 March 2021, p 45(03)-(05).
5. Mr Shahrouk then drafted the 2009 Will in accordance with those instructions.
6. In cross-examination, Mr Shahrouk could not recall, in relation to the 2009 Will, whether he discussed with the deceased her property or other potential bounty: Tcpt, 23 March 2021, p 46(27-38).
7. On 3 June 2009, the deceased attended Mr Shahrouk's office and signed the Will, which was witnessed by Mr Shahrouk and Narelle Kinsey, an employee of Berala Law Group.
8. As stated, there was no dispute about the validity of the 2009 Will, other than it was revoked by the 2017 Will.

The 2017 Will

1. On 26 April 2017, the deceased attended on the office of the Breala Law Group, without an appointment, to give instructions for a new will, power of attorney and appointment of an enduring guardian.
2. Mr Shahrouk took the deceased into his office where, first, he confirmed the deceased's name and address and went through "what she actually wanted": Tcpt, 23 March 2021, p 70(40-48).
3. Mr Shahrouk said the deceased told him that she had been in hospital and that she was upset that her granddaughter had not contacted, or visited, her. She said she wanted to change her Will and wanted him to prepare a Power of Attorney and Appointment of Enduring Guardianship, appointing her friends: Affidavit, Jihad Shahrouk, 12 March 2019 at par 12.
4. After 5 to 10 minutes of discussions with the deceased, Mr Shahrouk printed out a copy of the deceased's 2009 Will and went through it with the deceased, who then provided instructions as to what she wanted to retain, to omit and to add to her new Will.
5. Mr Shahrouk stated, in cross-examination, that he could not recall whether, at this meeting, he had specifically discussed with the deceased what property she owned - including if she possessed any bank accounts or other assets: Tcpt, 23 March 2021, p 49(47) and p 52(23-32).
6. Mr Shahrouk stated in cross-examination he already "knew she [the deceased] owned XX Beatrice Street, Lidcombe": Tcpt, 23 March 2021, p 49(24-25) as "she told me herself nothing had changed so I assumed she, she still owned XX Beatrice, and that was all she owned": Tcpt, 23 March 2021, p 50(18-19).
7. When asked why he did not include the statement that "nothing had changed" in his affidavit or in his file note, he said that the deceased was not referring here to the disposition of property but to the address details, which he did not think there was a need to include: Tcpt, 23 March 2021, p 51(05) and (09-10).
8. Mr Shahrouk reiterated that he "took instructions according to what was in the 2009 [W]ill and we just ticked off what was the remain [sic] [and] … crossed off what was to come out and left what was to remain": Tcpt, 23 March 2021, p 50(26-30).
9. Mr Shahrouk stated the deceased said words to the following effect: "I would like to give a share to my close friends as they have helped me. They have always been around to assist me in what I need. They take me to my appointments, help around the house and help with the shopping": Affidavit, Jihad Shahrouk, 12 March 2019 at par 13. "I do not want to leave Ivy totally out of the will as she is my granddaughter": Affidavit, Jihad Shahrouk,12 March 2019 at par 14.

Medical Evidence

1. The medical evidence relied upon consisted of a copy of the medical notes from Spring Life Medical & Health Clinic of Dr Nirmala Chrishanthan, the deceased's treating general practitioner; the contemporaneous and other medical reports; and the expert affidavit and oral evidence, of Dr Wijeratne and Associate Professor Rosenfeld (neither of whom treated, or saw, the deceased). Only the latter two medical experts was called. None of the note takers was called to give evidence and each of the experts gave evidence based on the documents tendered and affidavits read and observations of others.
2. The deceased's patient history (Ex JB2/8) shows she suffered from: "Vitamin D deficiency Hyperlipidaemia Moderate aortic stenosis Depression Hypertension 07/10/2008 Excision of right breast lesion 14/09/2011 Thyroidectomy"
3. Dr Wijeratne stated that the deceased's diagnosed conditions include "vascular risk factors", which increase the risk of underlying cognitive impairment: Tcpt, 24 March 2021, p 175(40-48). Whilst he acknowledged the deceased received no contemporaneous diagnosis of dementia or mild cognitive impairment, he said that there are numerous reasons why this could be the case, including the lack of expertise in the general practitioner, and other medical, practitioners, in the detection of dementia and mild cognitive impairment: Tcpt, 24 March 2021, p 176-177.
4. On 16 March 2017, the deceased was admitted to Westmead Hospital after suffering a stroke.
5. The speech pathologist reports, a copy of some of which is in evidence, include amongst other things: 1. For 16 March 2017 (Ex JB2/111): "…Sudden onset aphasia; R sided facial droop… OIE: Pt alert, Suib, cooperative, consent, doctor present. Communication: not consistently following commands, unable to count, fluent spontaneous speech, [illegible] no meaningful content, unable to state name, unable to name objects, unable to copy SP (vowels as single words)." 1. For 21 March 2017 (Ex JB2/170-171): "commenced informal language screen this am - will cont same this pm - improving but cognitive and language issues persist…" "Nil overt signs of dysphagia ATOR" 1. For 29 March 2017 (Ex JB2/227-229): "Impression: Pt's communication is improving n/e moderate word finding difficulties persist. Pt has good insight into this." 1. For 28 April 2017 (visit occurred on 27 April 2017)(Ex JB2/332-335): "Pt alert, orientated, consented, Pt reporting managing well since home generally. Also noted adequate speech for needs although when questioned more pt reporting not at baseline c [sic] communication. … • Pt able to name 23/30 objects/activities when visually presented (76%). • Noted ↑ time to find word at times • Noted occasionally pt able to describe I however predominently [sic] relied on SP to prompt some when unable to name. • Noted semantically related responses at times; pt aware incorrect but unable to correct I …. Pt appeared to understand concept c SP explanation (verbal) and visual cue card. SP provided picture cues as able. Pt able to describe location, appearance SP Cont: - Function and category for common objects & clinician prompting. Pt had ↑ difficulty describing appearance accurately particularly in regards to material. … Pt able to retain and repeat 2 word phrases - 6/10 3 word phrases - 7/10 4 word phrases - 2/5 Pt producing word substitutions and adding extra words particularly for longer phrases. Noted hesitations and repetition of which pt aware but not always able to self- correct accurately. Benefited from repetition of target. … Note: towards end of hour long session Pt reporting fatigue throughout session also note vague C ↓ content. Pt using semantically related but incorrect words substitutions at times. Pt also disclosing less desire for Rx now at home, noted too busy to have visit too often. Also noted difficulty c English reading and no family or friends to practice tasks… … Impression: Pt cont to present c an aphasia c aspects of cognition also impacting communication … pt functional for needs at home, feels communication c medical staff and friends adequate. Also has been speaking via phone (mainly in Russian). …"

The decision on capacity and knowledge and approval

1. I have recently set out the principles of law relating to the grant of Probate in Starr v Miller; Starr v Miller [2021] NSWSC 426 at [378] - [485]. It is unnecessary to repeat the principles because of the recency of that decision.
2. I should only refer to a passage in Croft v Sanders [2019] NSWCA 303, at [126], where White JA (with whom Bathurst CJ and Gleeson JA agreed) wrote: "I do not accept the appellants' submission that the primary judge diverted himself from the question of Mr Croft's capacity by finding that the will was rational from Mr Croft's perspective. The will was inofficious. Capacity to make a will is to be assessed having regard to the particular will made. While the test of capacity remains the same, the application of that test will vary according to the complexity and the officiousness or inofficiousness of the will (Bailey v Bailey (1924) 34 CLR 558 at 570-571; [1924] HCA 21; Brown v McEnroe (1890) 11 NSWR Eq 134 at 138; In the Estate of Park [1954] P 112 at 122; Ridge v Rowden; Estate of Dowling (Supreme Court of New South Wales, Santow J, 10 April 1996, unreported, BC9601342 at 42-43; Mason and Handler, Succession Law and Practice NSW, LexisNexis [13,045] at 100,029, (8)). As the High Court said in Gibbons v Wright (1954) 91 CLR 423 at 438; [1954] HCA 17; the mental capacity required in respect of any instrument is relevant to the particular transaction which is being effected by means of the instrument."
3. ("Inofficiousness" is a term used to describe the degree to which the bequests made in the Will diverge from what, ordinarily, would be expected of the will-maker given her, or his, relationship with the persons who had a call on her, or his, bounty, particularly where a beneficiary who has received an improbable gift was instrumental in the preparation of the will: Bracher v Jones [2020] NSWSC 1024 at [415] (Robb J)).
4. There is no suggestion that anyone other than the deceased was involved in her decision in April 2017, to approach Mr Shahrouk for the purpose of giving instructions for a new Will. Indeed, even after they attended with the deceased upon the solicitor, to sign the acceptance of the appointment as attorneys and enduring guardians, neither of the Defendants knew that she was a beneficiary named in the Will of the deceased that had been made by her on the same day.

The claim for a family provision order

1. Next, I shall discuss the statutory scheme that is relevant to the facts of the present case. Although I have set out much of what I state hereunder in other cases, in view of the importance of this case to the parties, I shall repeat the principles. It is important that they be able to follow the reasoning, understand the principles, and for each to be satisfied that I have considered the evidence and the submissions in their application.
2. The key provision is s 59 of the Act. The Court must be satisfied, first, that the applicant is an eligible person within the meaning of s 57(1). In New South Wales, it is a multi-category based eligibility system, rather than one with a general category of eligibility (as it is, for example, in Victoria). There are six categories of persons by, or on whose behalf, an application may be made. Relevantly, one category is "a person who was, at any particular time, wholly or partly dependent on the deceased person, and who is a grandchild of the deceased person" (s 57(1)(e) of the Act). There is no age limit prescribed by the Act in the case of a claim by a grandchild.
3. In relation to s 57(1)(e), the test is twofold. Relevantly, the first is a relationship of dependence, whether wholly or partial, upon the deceased and the second is being "a grandchild of the deceased". It is only necessary to deal with the first test as there is no issue that Ivy is a grandchild of the deceased.
4. The Act contains no definition of the words "dependent on". In general, the word "dependent" connotes a person who relies upon the support of another, financial and/or emotional. Dependency is not limited only to the class of persons actually in receipt of financial assistance from the deceased. The authorities reveal that the words are wide enough to cover any person who would naturally rely upon, or look to, the deceased, rather than to others, for anything necessary, or desirable, for his, or her, maintenance and support.
5. In Amaca Pty Ltd v Novek [2009] NSWCA 50, Campbell JA, with whom other members of the Court of Appeal agreed, said (in the context of a claim under section 15B of the Civil Liability Act 2002 (NSW)) at [44]: "In my view, the law remains accurately stated by the joint judgment of Sugerman P, Jacobs and Mason JJA in Middleton v Kiama District Hospital [1970] 3 NSWR 136. Their Honours said, at 138: 'Dependency is, moreover, a complex question of fact, which may involve the consideration of many elements, including both past events and future probabilities. It is not necessarily correlative with a legal duty to maintain. A person may in fact be dependent upon another who is under no legal duty to maintain him; and may be so dependent even though there is also in existence one who has legal duty to maintain, eg a husband his wife. On the other hand there may be no dependency in fact upon a person who is under a legal duty to maintain. The existence of the legal duty is, however, one of the many elements to be taken into account in deciding upon a question of dependency in fact. Dependency and actual support are not necessarily correlative. There may be dependency although for the time being there is no actual support. And it seems to us to be possible to figure cases in which there may have been a provision of support, or of some measure of support, at least for a short time or for some special purpose, which did not amount to dependency. The definition of 'dependants' does not merely refer to one who was in fact supported by the deceased worker at the time of his death; a 'dependant' is a member of the workers' family who was 'wholly or partly dependent for support upon the worker at the time of his death'. Dependency refers to a state or condition of being dependent, to having been in this relationship to the deceased. As to all the above matters see Hodges v Scotts' Provision (Wholesale) Pty Ltd [1963] WCR 161 and cases there cited.'"

Additional Principles

1. The Court's discretion in making an order is not untrammelled, or to be exercised according to idiosyncratic notions of what is thought to be fair, or in such a way as to transgress, unnecessarily, upon the deceased's freedom of testation: Pontifical Society for the Propagation of the Faith v Scales at [19] (Dixon CJ); McKenzie v Topp [2004] VSC 90 at [63] (Nettle J).
2. Bryson J noted in Gorton v Parks (1989) 17 NSWLR 1 , at 6, that it is not appropriate to endeavour to achieve "an overall fair" division of the deceased's estate. It is not part of the Court's function to achieve some kind of equity between the various claimants.
3. In Vigolo v Bostin (2005) 213 ALR 692; [2005] HCA 11, at [10], Gleeson CJ pointed out that the relevant legislation did not confer new rights of succession and did not create legal rights of inheritance. Rather, his Honour explained: "It preserved freedom of testamentary disposition, but subjected that freedom to a new qualification."
4. I have discussed the nature of the relationship between Ivy and the deceased earlier in these reasons.
5. Ivy stated that the deceased owed her an obligation because: 1. When they were together the deceased treated Ivy as if she was her daughter; 2. The deceased made Ivy a major beneficiary under her 1999 and 2009 Wills; 3. Ivy is the closest living relative of the deceased and only child of the deceased's only child, who predeceased the deceased; 4. Whilst the deceased and Ivy did not see each other in person they "love(d) each other very much and had a strong common bond with each other". Ivy believed her and the deceased to have a "close and loving relationship with each other up until the time of her death". In oral submissions, counsel for Ivy admits that the deceased was not acting as a "loco parentis" in the typical sense but submitted that to the Plaintiff the love and affection given by the deceased makes her the closest thing to the Plaintiff's mother or a "mother figure": Tcpt, 30 March 2021, p 238(27-38) and p 239(06-07); 5. Under the 1999 and 2009 Wills, Ivy was entitled to receive all of the deceased's personal property, including items owned by Ivy's late mother which remain the "last connection I have to my late mother"; and 6. Between 2000-2003, when Ivy would visit the Lidcombe property the deceased would say words to the effect "one day all of this will be yours. With your mother gone, you are all I have": Affidavit, Ivy Hope Chisak, 21 December 2018 at par 96.

1. Ivy attended a total of 11 schools from preschool to the end of year 11. From mid-2007, she began home schooling and completed her education until the end of year 11 through the Brisbane School of Distance Education. She is proposing to study her HSC through TAFE NSW.
2. Ivy is currently enrolled in a Certificate 3 in Travel at TAFE through the online campus. She stated that she is hoping to use this as a stepping stone to complete an architecture, or engineering, degree at university.
3. Ivy has not resided in any stable long-term accommodation during her lifetime. Ivy and her father have lived in a large number of short term housing, including with family members, emergency accommodation and periods of homelessness.
4. At the time of her updating affidavit dated 23 February 2021, Ivy and her father had moved into a granny flat in Pullenvale, Queensland. She stated that this is temporary accommodation. She is hoping to secure more permanent accommodation as a result of additional provision that is made for her by way of an order of the Court.
5. Ivy has had previous negative experiences with neighbours including receiving death threats from neighbours and witnessing a domestic violence incident. In her 21 December 2018 affidavit, she stated that due to these experiences and her agoraphobia, she is seeking to have the Lidcombe property transferred to her to act as a principle form of residence or additional funds from the deceased's estate to purchase a two bedroom property in Jindabyne or some other semi-rural area. (There was no medical evidence to substantiate her claims, except for Exhibit P2 which appear to contain a medical request form and a referral letter for Ivy).
6. Ivy estimated that she will require between $575,000 and $650,000 to purchase a two bedroom house in the Jindabyne area or surrounding localities (Ex IHC-1/17-20). Based on an estimate of receiving interest of 2.5% per annum on funds deposited in a fixed term deposit account, she estimated that she would require a further $275,000 to provide sufficient net income to cover estimated expenses such for stamp duty, bills, council rates and other outgoings in respect of a two bedroom house in the Jindabyne area. In addition she is seeking a lump sum of $75,000 to cover her living expenses whilst she attends university. Of course, the total of these alleged needs exceeds the value of the estate, after the payment of costs.

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: 28 May 2021