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Catchwords: SUCCESSION — Contested probate — Lack of knowledge and approval — Suspicious circumstances — Italian family — Claim by eldest daughter of the deceased — Where estate was left entirely to youngest daughter — Where will states “I wish to treat my two daughters equally” — Where deceased provided multiple properties to each daughter throughout his lifetime — Where defendant provided a lot of care and assistance to the deceased — Where statutory declaration two years after will executed affirms intentions — Whether terms of will are internally inconsistent — Whether terms of statutory declaration are internally inconsistent — Whether will is a substantial change from previous wills — Whether changing solicitors is a suspicious circumstance — Whether age of deceased without physical or mental frailty is a suspicious circumstance — Whether will being in English not Italian is a suspicious circumstance — Whether using anglicised legal name of daughter in will is a suspicious circumstance — Whether deceased knew and approved of will
SUCCESSION — Family provision — Claim by eldest daughter of the deceased — Plaintiff received no provision in the will — Where plaintiff has significant property holdings, including investment properties and holiday homes — Where plaintiff received several properties from the deceased during his lifetime — Where defendant provided greater care and assistance to deceased — No issue of principle

Legislation Cited: Civil Procedure Act 2005 (NSW) ss 70(1)(a), 98
Evidence Act 1995 (NSW) s 190(3)
Oaths Act 1900 (NSW) ss 25-25A
Succession Act 2006 (NSW) ss 9, 57, 58, 59, 60(2), 65
Uniform Civil Procedure Rules 2005 (NSW) r 42.1

Cases Cited: Amaca Pty Limited (Under NSW Administered Winding Up) v Cleary [2022] NSWCA 151
Baker v Baker [2024] NSWSC 559
Blendell v Blendell [2020] NSWCA 154
Clayton v Clayton [2023] NSWSC 399
Collings v Vakas [2006] NSWSC 393
D’Apice v Passas [2026] NSWSC 146
Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373
Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gardiner v Wong [2026] NSWSC 421
In the matter of Hoju Jobs Pty Ltd [2021] NSWSC 302
Lam v Liu [2025] NSWCA 254
Lim v Lim [2023] NSWCA 84
Mekhail v Hana [2019] NSWCA 197
Mills v Dodds [2025] NSWSC 396
Netdeen Pty Ltd t/as GJ Gardner Homes v Lindfield NSW Pty Ltd (No 2) [2025] NSWCA 218
Pilatos v Whillier [2025] NSWSC 1221
Slack v Rogan [2013] NSWSC 522
Srekovic v Srekovic [2018] NSWSC 1597
State of New South Wales v Stanley [2007] NSWCA 330
Stone v Stone [2019] NSWSC 233
The Estate of Susan Elisabeth Mangoulias [2025] NSWSC 430
Thompson v Bella-Lewis [1997] 1 Qd R 429
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Toppi v Toppi (No 3) [2025] NSWSC 733
Yu v Cao (2015) 91 NSWLR 190; [2015] NSWCA 276

Category: Principal judgment

Parties: Maria D’Apice (Plaintiff)
Josephine Puopolo Passas (Defendant)

Representation: Counsel:
KP Tang (Plaintiff)
T Catanzariti / H Wilcox (Defendant)
Solicitors:
Stephen Noss Lawyers (Plaintiff)
One Group Legal (Defendant)

File Number(s): 2023/00314494

Publication restriction: Nil

JUDGMENT

Introduction

Background and procedural history

1. The late Alessio Puopolo (Alessio or the deceased) died on 22 October 2022, aged 93 years old. His wife, Domenica Puopolo, had predeceased Alessio on 3 September 2014, aged 85 years old. Alessio was survived by two daughters, the plaintiff, Maria D’Apice (Maria) and the defendant, Josephine, who is (or was) also known as Giuseppina or Pina (Josephine).

2. As is usual in proceedings of this nature and without intending to the any disrespect or overfamiliarity, I will refer various family members in this proceeding by their first names.

3. The last two putative wills made by Alessio were executed on 10 February 2003 (the 2003 Will) and 21 June 2012 (the 2012 Will). The 2012 Will named Josephine as executor. Probate of the 2012 Will was granted to Josephine on 28 July 2023.

4. On 4 October 2023, Maria filed a Summons seeking a family provision order pursuant to s 59 of the Succession Act 2006 (NSW) (Succession Act) from Alessio’s estate. Josephine is the defendant.

5. Over a year later, on 21 November 2024, Maria filed a Statement of Claim (SOC). The new relief principally sought in this more recent pleading was orders revoking the grant of probate of the 2012 Will and granting letters of administration with the 2003 Will annexed to “such fit and proper person as the Court may determine” (prayers for relief 1 and 4). The basis for this relief was that the 2012 Will was made in “suspicious circumstances” and thus the defendant has the burden of removing the suspicion and proving affirmatively the deceased knew and approved its contents (SOC [21]). In the alternative, if Josephine’s grant of probate under the 2012 Will was not revoked as sought, Maria sought a family provision order as sought in her Summons (prayer for relief 5). Josephine filed her defence on 13 February 2025.

6. On 13 February 2025, Josephine also filed a Statement of Cross-Claim, seeking by way of cross-claim an order that probate in solemn form of the 2012 Will be grated to Josephine.

7. In accordance with Order 1 on 11 February 2026, and as discussed during the hearing, the plaintiff filed an Amended Statement of Claim on 13 February 2026 to correct the name of the defendant in the proceedings. There are no substantive changes contained in the Amended Statement of Claim and, because the Amended Statement of Claim was filed after the hearing, I will refer throughout this judgment to the pleadings and particulars as set out in the Statement of Claim, noting they are identical.

The hearing

8. The hearing of the proceedings was listed for three days commencing 9 February 2026. Mr K Tang of counsel appeared for the plaintiff. Ms T Catanzariti of counsel appeared with Ms H Wilcox of counsel for the defendant.

9. I had the benefit of a written outline of submissions from Maria (PWS) and Josephine (DWS), provided to my Chambers in advance of the hearing. Both parties also made oral submissions in closing.

10. The hearing ultimately finished within the three hearing days allocated to the matter. However, before moving on, I wish to comment on three procedural aspects of this matter.

The Court Book

11. The first issue concerns the Court Book. On 29 July 2025, the Registrar in Equity made the usual order for hearing under Practice Note SC Eq 1. The terms of those directions are found in Annexure A to that Practice Note. Paragraphs 2-4 of the usual order for hearing provide the following directions:

“2. By no later than five (5) working days before the trial date, the parties are to provide to the Associate to the Trial Judge, two copies of a Court Book which is to contain, in separate sections:

(a) latest process and pleadings;

(b) affidavits (excluding annexures and exhibits which consist of primary documentation);

(c) documentary evidence – which is to be placed in chronological sequence so far as is practicable and consecutively numbered (without tabs unless the Court otherwise directs). If there are a significant number of emails, the chains should be dismembered and placed in chronological sequence; and

(d) expert evidence.

3. A physical Court Book must be in working ring-binder folders, none of which is to be filled beyond its reasonable working capacity, and the documents are to be accurately hole-punched.

4. The affidavits are to be annotated to the Court Book so that documents referred to, annexed or exhibited to an affidavit must be referenced to the place where the document is in the chronological section of the Court Book.”

12. A two-volume Court Book was initially delivered to my Chambers in a timely manner on Friday, 30 January 2026. However, the Court Books initially provided did not comply with the usual order for hearing in three respects. First, the documents were not accurately hole punched, as required by paragraph 3 of the usual order for hearing. Second, there was no pagination within the Court Book, as paragraph 2(c) contemplates (and which would be necessary in any event for efficient navigation of the Court Book). Finally, the affidavits were not annotated to the Court Book so that documents referred to, annexed or exhibited were in the “documentary evidence” of the Court Book, as required by paragraph 4 of the usual order for hearing. Additionally, while not strictly a default in compliance with the usual order for hearing, the tab dividers which had been used to separate out sections and documents within one of the copies of the Court Book were not sturdy and so in fact made navigating the Court Book more difficult, not less.

13. On Wednesday, 4 February 2026, at 2:33pm, my Chambers received an email on behalf of the solicitor for Maria indicating that he intended to “deliver tomorrow a substitute Volume 1 and 2” of the Court Book, along with an amended index. Later that afternoon, I caused my Associate to email the legal representatives for the parties in relation to the Court Books. In that email, sent at 3:24pm, I had my Associate convey my concerns with the quality of the Court Book, referring to the issues described in the previous paragraph. The terms of the email from my Associate made clear that my pre-trial preparation was being hampered by the deficient quality of the Court Books.

14. Later in the day on 4 February 2026, at 5:12pm, the solicitor for the plaintiff emailed my Chambers to inform my Associate that a revised version of the Court Book would be delivered “tomorrow morning” to replace the Court Book delivered on Friday, 30 January. Only one physical copy of the Court Book was delivered on the afternoon of 5 February 2026. My Associate informed the person who delivered the Court Book that a second physical copy was required, in accordance with paragraph 2 of the usual order for hearing.

15. By the afternoon of 6 February 2026, the last working day before the hearing, my Chambers still had not received the second physical copy of the updated Court Book. I again caused my Associate to send an email to the legal representatives for the parties, which was sent at 3:19pm, following up as to when the second physical copy of the Court Book (as well as an electronic copy, which I had separately requested) would be delivered. I received a response on behalf of the plaintiff that the second copy of the updated Court Book would be provided “forthwith”. The second physical copy of the Court Book was ultimately delivered in the afternoon on 6 February 2026.

16. While the final version of the Court Book ultimately fixed some of the problems identified earlier, I observe that even still, contrary to paragraph 2(b) of the usual order for hearing, the annexures and exhibits to affidavits consisting of primary documentation were still attached to those affidavits. However, the documents were also reproduced in the “documentary evidence” section, with the consequence that there was duplication and thus elongation of the Court Book.

17. It is appropriate to set out what Bell CJ said, with the agreement of Payne JA, in Lam v Liu [2025] NSWCA 254 (Lam) at [1]:

“… Procedural directions, whether made, as in the present case, as part of case management, or made in applicable Practice Notes or rules of court, such as, for example, prescribing page limits for written submissions on appeal or the preparation of a chronology, are not optional and must be strictly adhered to. If a party seeks to depart from such directions, leave may be sought timeously and will be considered on the merits of the application. Otherwise, the Court expects compliance with its directions, procedural rules and the requirements of its Practice Notes. So much is necessary for the efficient and expeditious disposition of litigation in this Court. Compliance with procedural directions, court rules and Practice Notes is not only part of a practitioner’s professional obligations but also his or her statutory duty. Section 56 of the Civil Procedure Act 2005 (NSW) relevantly provides (with emphasis added):

(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.

(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.

(4) Each of the following persons must not, by their conduct, cause a party to civil proceedings to be put in breach of a duty identified in subsection (3)—

(a) any solicitor or barrister representing the party in the proceedings,

(b) any person with a relevant interest in the proceedings commenced by the party.

(5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.”

18. It is unsatisfactory that the Court Book arrived in the state that it originally did and that satisfactory versions of the Court Book did not arrive until days after they were originally due. The parties would have been aware of the need to prepare the Court Book in advance of the hearing when the usual order for hearing was made approximately 6 months before the hearing was to commence. The parties had not communicated with my Chambers to inform me of any need to modify the usual order for hearing. The parties had not even informed my Chambers that they may need more time to prepare the Court Book. My Associate informed me he was given reasons by those who had delivered the Court Books as to why the Court Book was initially in an unsatisfactory state and why there were delays in providing fresh copies. However, if there were likely to be issues in complying with the orders preparing the matter for hearing, those should have been brought to my attention before the Court Books needed to be provided to my Chambers.

19. A well-prepared and timeously delivered Court Book is essential to the efficient conduct of a trial and the efficient use of public resources more generally. The timely delivery of Court Books prepared in accordance with procedural orders prevents time being wastefully spent by a judge’s staff on either following up parties as to where the Court Book is or asking parties to fix issues with the Court Book. If a Court Book is physically hard to navigate, because of inaccurate hole punching or a lack of page numbers, that is inevitably going to slow down a hearing as counsel, witnesses and a trial judge all need to labour more than they should need to in order to find documents. Additionally, where a judge has time available before a hearing, having a well-prepared Court Book before them prior to the hearing, to be read alongside an outline of submissions (which is also hopefully delivered on time and with references to appropriate parts of the Court Book), gives them the opportunity to assimilate at least some of the material they will need to consider, and go into a hearing with some understanding of what needs to be decided. Such preparation, facilitated by compliance with the timetable set by the Court, enables a judge to hear and decide a matter more efficiently, as it means a judge can spend less effort during a hearing “getting up to speed” and more effort engaging with and understanding the evidence and submissions.

Lists of Objections

20. The second issue meriting comment relates to the lists of objections. In accordance with the usual order for hearing, the parties each provided to my Chambers a list of the objections each was taking to their opponent’s affidavit evidence. Josephine, by her counsel, sent her list of objections to the affidavits on which Maria was going to rely by email to my Chambers on 4 February 2026 at 3:54pm. Maria, by her counsel, sent her list of objections by email to my Chambers on 4 February 2026 at 4:05pm.

21. I note that both parties drafted their list of objections using a document template I had provided to them and requested them to use. The template document asked for objections to be provided in the form of a multi-column landscape table in relation to each affidavit to which objections were being taken, with columns left for:

22. the party whose affidavits were being objected to provide a response to the objections; and

23. the final ruling on the objection to be recorded.

The page numbers for the lists of the objections should be understood with that in mind.

22. Josephine’s list of objections initially totalled 19 pages. Maria’s list of objections initially totalled 20 pages.

23. Counsel for Josephine sent an updated version of Maria’s list of objections by email late in the evening on 5 February 2026. Her counsel had responded in writing to each of the objections to the affidavits, or specified parts thereof, Josephine intended to rely upon. The document containing both Maria’s list of objections and Josephine’s responses to those objections totalled 73 pages, excluding the table of contents on the first page. In pointing out the growth in the page count here, I am not intending to be critical of Josephine’s counsel merely for putting on detailed responses to objections. There were often multiple bases for objections, and there were also occasions where multiple fallback arguments were, understandably, thought necessary.

24. Counsel for Maria sent an updated version of Josephine’s list of objections by email on 9 February 2026 at 8:23am, i.e. about an hour and a half before the hearing was to commence. Her counsel had similarly responded to the objections made by Josephine to the affidavits, or specified parts thereof, Maria intended to rely upon. The document containing both Josephine’s list of objections and Maria’s responses to those objections totalled 26 pages.

25. There were thus a total of 99 pages of objections and responses to them before the Court. While some sentences or paragraphs of affidavits were not pressed once they were objected to, for the most part I was required to rule on each of the objections made.

26. Dealing with and ruling on the parties’ objections took most of the first day of the hearing. The plaintiff was not put in the witness box until approximately 20 minutes before the day was to end.

27. Using the transcript as a rough proxy for time spent further illustrates just how much of the first day was spent on objections. The parties began reading their affidavits, and I began ruling on the objections to evidence, at page 8 of the Transcript. The reading of affidavits and ruling on objections (and further comments made about the tender of documents and reading of affidavits) ended on page 54. In the middle of that, one of the witnesses, Mr Valenti (see below) was sworn in and briefly cross-examined – this only took up approximately two pages of transcript. In sum, 41 pages out of 63 pages of transcript for the first day for the hearing are dedicated to dealing with the evidentiary issues. A separate judgment was necessary in relation to the objection taken by Maria to one of the affidavits Josephine intended to rely on (discussed further below).

28. Parties are entitled to make the forensic decisions they wish to make. However, it must not be forgotten that those forensic decisions necessarily impact how time is spent during a hearing. Given the demands on a trial judge’s time, there should be no expectation that objections will be considered in Chambers before the hearing, and parties (and their legal representatives) should expect that for objections to evidence that parties cannot consensually be dealt with, hearing time will be taken up to rule on those objections as necessary. When estimating hearing length when seeking hearing dates, and when providing a trial plan at the commencement of a hearing, parties need to have realistic regard to this issue.

29. In civil proceedings in this State, the Evidence Act 1995 (NSW) and the Civil Procedure Act 2005 (NSW) provide for flexibility in how the rules of evidence might be applied. Section 190(3) of the Evidence Act 1995 (NSW) empowers the court to order that any one or more of the provisions of divisions 3-5 of Part 2.1, Parts 2.2-2.3 or Parts 3.2-3.8 of that Act do not apply in relation to evidence where the matter to which the evidence relates is not genuinely in dispute or where the application of the relevant rules of evidence would cause or involve unnecessary expense or delay. Section 70(1)(a) of the Civil Procedure Act 2005 (NSW) makes similar provision. The usual order for hearing in Practice Note SC Eq 1 also appears to direct consideration as to the necessity of objections, given parties are directed to provide objections “that are essential” (paragraph 6 of the usual order for hearing).

30. In this case, almost one-third of the estimated hearing time was spent in dealing with objections to evidence. While the hearing of this matter was ultimately able to finish within its allocated three days, this does not strike me as the most efficient use of court time in circumstances where it was not readily apparent to me that much of the evidence being objected to would significantly sway matters one way or another. There is the opportunity cost of time being spent on objections that might have been spent by the parties in cross-examination, or in assisting the Court with further closing submissions. That is without even considering what costs might have been incurred in dealing with so many objections.

31. In saying what I am, I am not intending to dissuade parties from objecting to objectionable evidence. Rather, I make these observations to underscore the need for practitioners to have regard to the impact of their taking of objections on the progression of a hearing.

Updating affidavits

32. In addition to the usual order for hearing, the Registrar in Equity also made an order that updating affidavits should be provided 28 days prior to the trial. That order was no doubt made because of Maria’s family provision claim. It is pertinent to draw attention to paragraph 35 of Practice Note SC Eq 7, which reads as follows (emphasis added):

“If the matter does not settle, there will be a timetable to prepare the matter for final hearing, which may include provision for the filing and service of a costs affidavit and an updating affidavit by any party or beneficiary. Irrespective of whether provision is made for an updating affidavit, practitioners are reminded of the obligation on an applicant to place the relevant facts before the Court.”

33. Neither party complied with the order to provide updating affidavits no later than 28 days before the trial. Compliance with this order would require the updating affidavits to be provided by 12 January 2026. Josephine and her husband did not swear and file updating affidavits until 3 February 2026. Assuming the affidavits were served on the same day, that meant they were only provided to Maria and her legal representatives 3 clear working days before the hearing. Maria and her husband did not swear updating affidavits until 6 February 2026, the last working day before the hearing. I was informed in Court by counsel for Josephine that those had been served on the same afternoon (TR P19 L1-6).

34. Again, to reiterate the point made by Bell CJ in Lam which I quoted above, the procedural directions of the Court are not optional. There is also the additional point to be made that when dealing with a family provision claim, as contemplated by the paragraph of Practice Note SC Eq 7, the Court must have regard to the facts known to the Court at the time of the application being considered (see ss 59(1)(c), 59(2) of the Succession Act).

35. While this is probably true of the late service of evidence in any case, in a jurisdiction where there is an expectation that the relevant facts as they stand at the time of the hearing are put before the Court (Baker v Baker [2024] NSWSC 559 at [22] (Hammerschlag CJ in Eq); Stone v Stone [2019] NSWSC 233 at [151]-[152] (Hammerschlag J); Srekovic v Srekovic [2018] NSWSC 1597 at [228] (Hallen J)), the late service of updating affidavits in a family provision claim may prejudice one’s opponent as further investigations, or even just preparation for cross-examination, may need to be taken. That prejudice may be so severe that hearing dates need to be vacated in an appropriate case (see, eg, The Estate of Susan Elisabeth Mangoulias [2025] NSWSC 430 (Brereton J)). Fortunately, that did not happen in this case. That does not take away from the unsatisfactory nature of the fact the updating affidavits were provided as late as they were, in a context where the time by which those affidavits were due would have been known for many months.

Summary of conclusions

36. For the reasons which follow, the Court will dismiss the plaintiff’s claims and make an order that probate in solemn form of the 2012 Will be granted to Josephine.

Evidence and credit / reliability

Legal principles – fact finding and witness credibility

37. Like many matters before the Court, the evidence in these proceedings involve different versions of events provided by witnesses, and competing testimonial evidence given often years after events took place, often not supported by contemporaneous documents. I again reproduce and gratefully adopt McGrath J’s summary in Toppi v Toppi (No 3) [2025] NSWSC 733 at [18]-[19] of the relevant principles to be applied and borne in mind by a trial judge in evaluating witness and other evidence and making factual findings. I reproduce those paragraphs below:

“[18] In every instance, I have endeavoured to evaluate each witness’ evidence, not only in the light of their responses during cross-examination, but also in light of the contemporaneous documents, the objectively established facts, the apparent logic of events and probabilities of human behaviour, the existence and nature of corroborative evidence, and the effect and impression given by the evidence as a whole.

[19] This is in line with the appropriate approach to be taken by a trial judge in assessing the reliability of evidence given by witnesses in the course of trial proceedings. Among the salient principles that guide this undertaking are the following:

(1) In circumstances where events have taken place long ago, the orthodox and sensible approach for a trial judge to take in assessing the credibility and reliability of the evidence of a witness about those events is to place primary emphasis on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence: Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15, Gleeson CJ, Gaudron, Kirby and Hayne JJ at [15]–[16].

(2) A proper understanding of the chronology of events is critical and contemporaneous documents generally furnish the most reliable source of evidence as to what occurred or, at the very least, provide a generally reliable reference point from which to assess the reliability of witness testimony: ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24, Bell P (with whom Bathurst CJ and Leeming JA agreed) at [25].

(3) Judicial notice has been taken of scientific research which casts doubt on the ability of a trial judge to tell truth from falsehood accurately based on the appearance of witnesses such that trial judges should limit their reliance on the appearances of witnesses and develop their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, Gleeson CJ, Gummow and Kirby JJ at [30]–[31].

(4) There are multiple problems with a trial judge making demeanour findings, ranging from systematic error or bias, memory malfunctions, the possibility that witnesses may be dishonest about only parts of their evidence, that a truthful witness may give accurate or inaccurate testimony and that a dishonest witness may appear to be truthful. A trial judge should keep in mind the guidance provided in Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187, by Ipp JA (with whom Mason P and Tobias JA agreed) at [26]:

These problems and doubts about demeanour findings explain why trial judges are expected to weigh their impressions as to demeanour carefully against the probabilities and to examine whether the disputed evidence is consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence in the case. Of course, demeanour may trump the probabilities, but it should be apparent from the judge’s reasons that the probabilities and consistency with other relevant evidence have properly been taken into account.

(5) A trial judge should exercise restraint when forming a view about the credibility of a witness based on demeanour in giving evidence because it is a stressful and unfamiliar experience for most people, and particular care must be exercised in making demeanour findings where a witness is from a different cultural and ethnic background to that with which the trial judge is familiar: Goodrich, Ipp JA at [21], citing Sir Thomas Bingham in ‘The Judge as Juror: the Judicial Determination of Factual Issues’ (1985) 38 Current Legal Problems 1 at 10–11. As was observed in Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants*’* Marine Insurance Co (The Palitana*)* (1924) 20 Ll L Rep 140; [1924] 11 WLUK 83, by Atkin LJ at 152:

… an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.

This passage was quoted with apparent approval by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy, at [30].

(6) The assessment of the credibility of a witness is a larger concept than demeanour and the latter is not to be overemphasised: White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277, Bell P (with whom White JA agreed generally at [154]–[156]) at [106], citing Goodrich at [16]–[27]. See also Admiral International Pty Ltd v Insurance Australia Ltd [2022] NSWCA 277, Bell CJ (with whom Ward P and Macfarlan JA agreed) at [102]–[103], citing White Constructions, at [106] and [138] and Goodrich, at [16]–[27].

(7) It is important to bear in mind that the ordinary human experience of a witness makes their memory of conversations fallible, as eloquently stated in the following oft-cited passage in Watson v Foxman (1995) 49 NSWLR 315, by McLelland CJ in Eq at 319 (recently approved in Touma v Highfields Australia Pty Ltd [2024] NSWCA 160, Basten AJA at [18] (with whom White and Adamson JJA agreed)):

… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

(8) Oral recollection of conversations still plays an important role as evidence in a case, as explained in ET-China.com, by Bell P (with whom Bathurst CJ and Leeming JA agreed) at [27]–[29] in the following terms (emphasis in original):

[27] Whilst the quality and accuracy of oral recollection of actual conversations should be treated with care and caution given the fallibility of human memory (of which there has been a growing appreciation within the judiciary in recent decades), oral testimony may still be of value and importance, as was recognised in the nuanced observations of Leggatt J (as his Lordship then was) in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC (Comm) 3560 at [22] (Gestmin):

the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth. (emphasis added)

[28] Documents and events have to be understood in their context, and evidence of context will often be furnished by witnesses in their oral evidence. Documents, moreover, will not always present a complete picture of events. Indeed it would be rare that they do. Nor do contemporaneous documents necessarily or invariably convey or record the background or context in which events took place. That background or context will be familiar to the actors at the time of those events but may not always emerge from documents.

[29] Context is critical for at least two reasons. Documents and events take their meaning from their context. The context in which events occurred may not necessarily be apparent to a court many years later when hearing a case. A clear understanding of context, both commercial and cultural, is also important where, as in the present case, some or all of the events under consideration occurred overseas and in settings that may differ from those usually dealt with in domestic litigation.”

38. More broadly on the issue of fact finding, to the extent there is evidence that may be considered “unchallenged” or “uncontradicted”, such as where a deponent of an affidavit was not required for cross-examination or where an issue was not the subject of cross-examination, I note there is no rule of law that in all cases, or even “ordinarily”, that that evidence must be accepted: see Mills v Dodds [2025] NSWSC 396 (Mills) at [113]-[119] (Meek J), citing Amaca Pty Limited (Under NSW Administered Winding Up) v Cleary [2022] NSWCA 151 at [36] (Beech-Jones JA, Brereton and Mitchelmore JJA agreeing); see also Clayton v Clayton [2023] NSWSC 399 at [84]-[92] (Meek J).

39. On the issue of the assessment of evidence and human nature, Meek J stated the following in Mills at [120]:

“Experience tends to suggest that sometimes people say different things about a particular subject matter or topic to different people [See e.g. Coss v Norman [2021] NSWSC 1464 per Parker J at [99] fn6] depending on what effect they wish to achieve, [Norris v Pendino (Estate of Louise Edith Fernandez) (Supreme Court (NSW), Master Macready, 21 September 1995, unrep, BC9505523) at [12]] or want people to believe, [Finlay v Mack [2001] NSWSC 443 per Master Macready at [10]] or depending upon the position that they occupy in their lives [Weston v Hourn [2000] NSWSC 543 per Master Macready at [18]]. There might well be inconsistency in what a deceased person has disclosed to different people and the nature of disclosure. Commonly, a deceased’s motive for saying different things about the same subject matter or topic to different people, especially children, is in the interests of maintaining harmonious relationship with each of them [See e.g. Rathswohl v Court [2021] NSWSC 356 per Rees J at [116]].”

40. I respectfully adopt and apply the principles summarised and set out above. I also make more general remarks about witness credibility below, bearing in mind the forgoing principles.

Affidavits and other evidence

41. Maria read and relied on the following affidavits:

42. four affidavits by her sworn on 4 October 2023. 8 July 2024, 12 February 2025 and 6 February 2026;

43. two affidavits by Tarquinio D’Apice, Maria’s husband (referred to as Nino), sworn on 12 February 2025 and 6 February 2026;

44. two affidavits of her solicitor, Stephen Noss, sworn on 19 October 2023 and 11 February 2026 (relating to costs); and

45. an affidavit of Peter McBride (the solicitor who prepared the 2003 Will an a witness to its execution) sworn on 10 June 2026.

46. Maria and her husband, Nino, were required for cross-examination and duly cross-examined.

47. Josephine read and relied on the following affidavits:

48. four affidavits by her sworn on 27 November 2023, 8 February 2024, 15 May 2025, and 3 February 2026;

49. an affidavit of her husband, John Passas, sworn 3 February 2026;

50. an affidavit of Angelo Valenti (the solicitor who drafted the 2012 Will and a witness to its execution) sworn on 30 June 2025;

51. an affidavit of Dimitrios Kikiras (a family friend) dated 15 May 2025;

52. an affidavit of Yvonne Kikiras (another family friend, and Mr Kikiras’ wife) dated 15 May 2025;

53. an affidavit of Emilia Arena (a family friend, particularly of Alessio and Domenica) dated 16 May 2025;

54. an affidavit of Rosa Belinha (a friend of Josephine’s and a broader family friend) dated 20 May 2025;

55. an affidavit of Huseyin Dervis (Alessio’s next-door neighbour for many years) dated 21 May 2025;

56. part of an affidavit of Eddy Zhang, one of the solicitors acting for Josephine, sworn on 3 February 2026;

57. an affidavit of Michael Ayache, Josephine’s solicitor on the record, dated 4 February 2026 (relating to costs); and

58. an affidavit of Timothy Daley (the solicitor involved in the preparation of the 2014 Statutory Declaration as defined below) dated 19 May 2025.

59. Aside from John Passas, Mr Zhang, and Mr Ayache, Josephine and all other deponents of affidavits in support of Josephine’s case were required for cross-examination and, subject to one exception, were duly cross-examined.

60. Mr Daley was required for cross-examination but was not cross-examined. Maria took a wholesale objection to Mr Daley’s affidavit being received into evidence given he was not made available for cross-examination. The circumstances of Mr Daley’s non-availability, and the Court’s reasons for why Mr Daley’s affidavit was ultimately received into evidence, are discussed in a separate published judgment: D*’*Apice v Passas [2026] NSWSC 146.

61. There were no substantial credit issues in the proceedings. No party made submissions as to any witness’ credibility, and no adverse credibility findings were sought by any party.

62. The Court generally accepts that each of the witnesses who were cross-examined were generally reliable witnesses who were striving to tell the truth. I formed the view that each of the witnesses was doing their best to assist the Court and give evidence in an honest way. I accept all witnesses in this case were their best to recall historical facts, many of them from the distant past. I am cognisant of the fact that there are not many contemporaneous documents against which much of the evidence could be tested.

63. I note Maria, Nino and Josephine were extensively cross-examined. At times, I did observe each of them to be combative with their cross-examiners. They would at times push-back against questions which were asked or react adversely to being challenged in cross-examination. However, I do not think that, to the extent those witnesses were combative, that ought to bear on their credibility. For Maria and Josephine in particular, the proceedings generally and the topics of their respective cross-examination touched on subject matter of great personal significance. It is clear both of them loved their father very much, and there was still much grief from having lost their father which came out in the witness box when, quite fairly and properly, cross-examiners had to ask questions concerning their relationship and interactions with Alessio and Domenica. As for Nino, he would occasionally respond in what might be described as a combative manner or not answer the question asked of him. However, ultimately, I did not view these as issues that should bear adversely on him and was satisfied that he was ultimately seeking to give honest evidence.

64. One comment needs to be made about Mr Daley’s affidavit evidence. Maria submitted, in essence, that little weight should be given to Mr Daley’s affidavit because his evidence was unable to be tested (TR P264 L27-P265 L8). I can accept that Maria has not had the opportunity to test Mr Daley’s evidence. However, I do not accept that I should simply give his affidavit little to no weight simply by reason of his non-absence. There is no suggestion that Mr Daley is in Josephine’s “camp” such that the Court ought to view his evidence with inherent scepticism. There is also no reason that Mr Daley would generally be less than a credible witness. In his affidavit, Mr Daley deposes to being an admitted and currently practising solicitor. Additionally, Mr Daley deposes to reviewing his file notes – I infer that, given Mr Daley deposes to not recalling the specific occasions he met the deceased, his file notes have informed, at least indirectly, the contents of his affidavit. In the absence of some suggestion Mr Daley would have taken inaccurate file notes, there is much to be said that Mr Daley’s evidence on matters which are less impressionistic, such as when Alessio gave instructions, what happened at the conferences between Alessio and Mr Daley, and evidence as to the drafting of the 2014 Statutory Declaration, ought to be accepted. Taking these competing considerations into account, I consider the more appropriate course in this case will be to consider what use can be made of Mr Daley’s affidavit on an issue-by-issue basis.

The Facts

Fact finding

50. In assessing the evidence in the proceedings (see legal principles above), I have approached the evidence having regard to objective surrounding facts which are either not in dispute or established by contemporaneous documents and the inherent probabilities of life as they bear upon the events (see In the matter of Hoju Jobs Pty Ltd [2021] NSWSC 302 at [77] (Williams J) citing, inter alia, Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [31] (Gleeson CJ, Gummow and Kirby JJ); Clayton v Clayton [2023] NSWSC 399 at [152] (Meek J)).

51. The following section is a narrative of the relevant history. This narrative represents the Court’s findings on the matters covered, unless qualified or otherwise indicated. For reasons of economy, this narrative does not always include reference to versions of the facts that have been rejected.

52. I have not in this section canvassed every factual issue that might be relevant to resolving the issues in dispute in this case. Beyond what is set out in this section of the judgment, I will also make reference to further evidence and deal with further factual issues where needed to resolve the substantive issues in dispute as needed when I come to consider Maria’s claims in greater detail later in these reasons.

53. Much of the chronology of events did not appear to be seriously in dispute. When dealing with certain of the contested issues, I will separately address these issues as they arise as indicated in the course of the narrative, and having regard to issues of credit and reliability when relevant. What is set out below can be taken as findings of the Court.

Family history up to the 2003 Will

54. Alessio was born on X July 1929.

55. Alessio married Domenica sometime when he was 22 years old (i.e., in or about 1951 or 1952).

56. Maria was born to Domenica and Alessio on XX August 1956.

57. At some point, Alessio and Domenica migrate to Australia. In the evidence, there are multiple years where this might have happened. Maria says her parents came to Australia, with her, when she was four years old, so 1960 or 1961. On Alessio’s death certificate, it indicated he had been resident in Australia for 67 years, meaning he would have arrived in Australia in approximately 1955. This figure is unlikely to be correct seeing as Maria’s birth certificate, which was in evidence, clearly indicates she was born in Italy in 1956. Domenica’s death certificate indicates she had been resident in Australia for 55 years, meaning she would have arrived in approximately 1959. It suffices to say that by about 1960 or 1961, Alessio, Domenica and Maria had taken up residency in Australia.

58. Josephine was born on XX October 1964.

59. By 10 February 1971, Alessio and Domenica had become the registered proprietors of a residential property they had purchased at XX Francis Street, Carlton in New South Wales (the Francis Street Property).

60. Maria married Nino on 8 June 1974, when Maria would have been 17 years old, (but just about to turn 18). Once Maria was married, she moved out of home. Maria gave evidence that she moved out of home at 18 years old (when Josephine would have been about 10 years old), once she got married. Josephine gave similar evidence under cross-examination (TR P220 L41-46).

61. On 19 December 1974, Maria and Nino borrowed a sum of $20,000 from the Commonwealth Savings Bank of Australia. That loan was secured by a registered mortgage over the Francis Street Property, which had been granted by Alessio and Domenica. Maria says her parents had given the Francis Street Property as security as Maria and her husband could not secure a housing loan to purchase their first home.

62. Using the money borrowed on the security of the Francis Street Property, Maria and Nino purchased their first home at XX Hampton Court Road, Carlton in New South Wales (the Hampton Court Road Property) for $23,000. Maria says the Hampton Court Road Property was initially leased out to tenants for additional income and she and her husband moved into “her father’s home” for “several years”. Josephine gave evidence that Maria and her husband lived in a property owned by Alessio at O’Meara Street, Carlton in New South Wales for a period of 5 years after they married.

63. Maria and Nino’s first child, Adam, was born in 1975, and she ceased working as a legal secretary that year.

64. On 7 July 1977, Maria and Nino purchased a property at 107 Rxxx Street, Oatley, in New South Wales (107 Rxxx Street) (the transfer was registered on 4 August 1977). Maria and Nino remained living at the Hampton Court Road Property until 107 Rxxx Street was built and then moved into that property in 1984. 107 Rxxx Street is the home at which Maria and Nino still live.

65. In or around 1978 (no precise birth date was in the evidence), Maria and Nino’s second child, Matthew, was born.

66. On 13 October 1978, Alessio and Domenica sold the Francis Street Property. There is no evidence before the Court about when the mortgage over the property which was securing the loan to Maria and Nino was discharged. In light of the issue raised by Maria as to cl 5(i) of the 2012 Will, in that the deceased claims he gave Maria the proceeds of the sale of the Francis Street Property, I note there is no evidence before the Court, one way or the other, of any proceeds of the sale of the Francis Street Property being paid to Maria and Nino, and no evidence that the loan to Mario and Nino was discharged from the proceeds of this sale.

67. On 28 May 1979, Alessio and Domenica purchased a residential property at 55 Axxx Street, Oatley in New South Wales (55 Axxx Street) for $42,000. It is convenient at this point to make a comment about 55 Axxx Street. In both the 2003 Will and 2012 Will, 55 Axxx Street is given by the deceased to Josephine (or Giuseppina, as she is called in the 2003 Will). By cl 3 of the 2003 Will, Josephine is simply given the whole of the deceased’s right, title and interest in that property. By contrast, in cl 6 of the 2012 Will provides as follows (formatting as per original):

“6. I ACKNOWLEDGE THAT I hold my interest in the property of 55 Axxx Street Oatley in trust for my daughter JOSEPHINE PUOPOLO PASSAS and I direct that interest if any pass to JOSEPHINE PUOPOLO PASSAS to perfect the trust.”

68. While the deceased was the registered proprietor of 55 Axxx Street, Maria accepted that this property is Josephine’s home (PWS [19]). However, because it is relevant to understanding the nature of the provision made by Alessio to his two daughters, it is useful to briefly discuss the legal treatment of 55 Axxx Street.

69. Josephine says 55 Axxx Street was purchased by her parents as the trustees of a trust, the deed for which was executed on 25 August 1978 (the 1978 Trust). In cross-examination, Josephine said she was the beneficiary of a trust over 55 Axxx Street (TR P209 L32-36). Maria said she believed 55 Axxx Street may have been subject to a trust, without positively conceding as much. In evidence there was a “Deed of Trust” naming Nino as the settlor, and Alessio and Domenica as the trustees. The beneficiaries of the 1978 Trust are the children of Alessio and Domenica, as well as the children and grandchildren of Alessio and Domenica’s children. The initial trust fund was only $50 though more property could be added to the defined “Trust Fund”. The trustees of the 1978 Trust are given what appear on first glance to be wide discretions as to how property may be distributed between beneficiaries and to vary the trust. While there is not much evidence on this, 55 Axxx Street appears to have been treated by Alessio and Domenica, as trustees, as property of the 1978 Trust. Neither party suggested otherwise.

70. The evidence is not exactly clear on how it came to be that only Josephine would be the beneficiary of the 1978 Trust. However, noting Maria accepts that 55 Axxx Street is Josephine’s home (PWS [19]), and acknowledging it is not necessary to definitively determine the point I am about to make, the terms of the 1978 Trust do not seem to stand in the way of Josephine being given 55 Axxx Street even if that property is trust property.

71. There is no other evidence as to whether there was other property of the 1978 Trust, and whether other distributions of capital or income were made to Josephine, Maria or their children during the lifetime of both Alessio and Domenica.

72. Returning then to the main chronology, in about 1981, Josephine began working as a full-time hairdresser, when she would have been about 17. She worked as a hairdresser for approximately 15 to 20 years until just before she married her husband (TR P177 L42-P178 L16). In cross-examination, Josephine says that while she could not remember what she earned in total while she was a hairdresser, she did say she earned “about $500 a week”, cash in hand, of which $100 she would keep and the remainder would be contributed to her parents (who “had [her] bank account”) (TR P178 L48-P179 L26). This is consistent with Josephine’s affidavit evidence that she would give about 80% of her weekly wage to her father. Josephine said, and I accept, she would give that money to Alessio to enable him to purchase property and make repayments on properties, and that her father had promised to repay her in the end.

73. On 14 November 1983, when Josephine was about 19, Josephine became the registered proprietor of a residential property at 13 Axxx Street, Oatley in New South Wales (13 Axxx Street), for consideration of $102,500. I was not given a specific reference to how the purchase of this property was funded. However:

74. Maria said the property was gifted to Josephine; and

75. In her cross-examination, Josephine said she “received” 13 Axxx Street, in response to a question from Maria’s counsel as to whether Alessio had given Josephine any houses during his lifetime (TR P209 L25-30).

I therefore consider it safe to proceed on the basis that the purchase of 13 Axxx Street was funded by Alessio. This property is still owned by Josephine.

74. In or around 1984 (no precise birth date was in the evidence), Maria and Nino’s third and youngest child, Steven, was born.

75. In 1986, two major events happened. On 12 June 1986, Alessio and Domenica purchased the main property in dispute in these proceedings, 79 Rxxx Street in Oatley, New South Wales (79 Rxxx Street). On the same day, a mortgage was granted by Alessio and Domenica in favour of the Commonwealth Savings Bank of Australia to secure a loan of $80,000 from the bank to them. The total purchase price of the property was not in evidence but this does not really matter. Though she was the registered proprietor of 13 Axxx Street, Josephine still lived with her parents at 79 Rxxx Street until just before she married.

76. On 15 December 1986, a trust known as the “Puopolo Family Trust” was declared. The trustee was a company known as Lymjac Pty Ltd (Lymjac). The “primary beneficiaries” of that trust were defined to be Alessio’s children. Other defined beneficiaries include the children and grandchildren of the primary beneficiaries, as well as Alessio’s spouse. The original settlement comprised only a sum of $20, but the defined “Trust Fund” contemplated additions to the property held on trust under the Puopolo Family Trust.

77. No company records of Lymjac were in evidence to show who the directors and shareholders of the company were from time to time. The only evidence of changes in the directors and shareholders of the company is that provided by the witnesses’ recollections of such changes. While this means I do not have a complete picture of who started in control of Lymjac, that probably does not matter. There was evidence of the most important change in ownership of Lymjac, which I refer to below.

78. Maria gave evidence that it was Alessio who funded Lymjac to purchase the three properties which Lymjac purchased in the late 1980s and early 1990s. As recorded above, Josephine gave evidence she helped fund Alessio’s property purchases, which included properties purchased through Lymjac. Aside from the competing testimony, there is no other evidence as to how Lymjac was funded to acquire properties.

79. On 16 December 1986, Lymjac purchased a property at 91 Rxxx Street in Oatley, New South Wales (91 Rxxx Street) for the price of $160,000. Both parties accepted that this property formed part of the property covered by the Puopolo Family Trust. This property is still held pursuant to the trust.

80. On 21 July 1987, Lymjac purchased a property at 8/9 Rxxx Street in Oatley, New South Wales (8/9 Rxxx Street), for the price of $65,000. Both parties accepted that this property also formed part of the property covered by the Puopolo Family Trust. I note that Josephine gave evidence she paid the deposit for this property. This property was sold on 13 December 2012 for $467,500.

81. On 20 December 1988, Alessio made a will (the 1988 Will). It is unnecessary to set out in full the terms of what is a short will. The key terms are these. Alessio first gives his whole estate to Domenica. If Domenica failed to survive the deceased by 28 days, then he gives his estate to his children, i.e. Maria and Josephine, as tenants in common in equal shares. The will also expresses a wish that Maria, as the executrix of the will, employ the firm “McBride, Harle & Company” or its successor firm as her solicitors in connection with the execution and provisions of that will.

82. On 20 March 1991, Lymjac purchased a property at XX/XX-XX Hardy Street, Fairfield in New South Wales (the Hardy Street Property). The purchase price was $105,000. Both parties accepted that this property formed part of the property covered by the Puopolo Family Trust. This property is still held pursuant to the trust.

83. On 11 February 1994, Josephine became the registered proprietor of a property at XX Churchill Street, Fairfield in New South Wales (the Churchill Street Property). The purchase price was $154,000. While Josephine was the registered proprietor of this property, I do not think Josephine seriously disputed that it was Alessio who paid at least the bulk of the purchase price (though Josephine did say she contributed to the deposit), and that the deceased controlled this property. This was also the case with the other properties that Josephine was initially on the title for (TR P212 L17-P213 L12).

84. On 20 October 1994, Josephine became the registered proprietor of a property at XX Nelson Street, Fairfield in New South Wales (the Nelson Street Property). The purchase price was $171,000. As with 13 Axxx Street, Josephine said she “received” the Nelson Street Property, in response to a question from Maria’s counsel as to whether Alessio had given Josephine any houses during his lifetime (TR P209 L25-30). Again, it appears Alessio funded much of the purchase of the property.

85. Josephine married her husband, John Passas, in August 1996. After marrying John, Josephine and her husband moved to New Zealand in 1996 for John’s employment, where they stayed until 1999. Between 1999 and 2002, Josephine and John then resided at 13 Axxx Street. From 2002 to 2005, Josephine and John moved to Queensland, again for John’s employment. In about 2005, Josephine and John then moved back to Sydney and resided once again in 13 Axxx Street.

86. In 2001, there was a change of control in Lymjac. The substance of the change was to put Maria in charge of Lymjac. Maria says that on 23 April 2001, she became the director and secretary of Lymjac, and that Alessio, Domenica and Josephine were resigned as directors of Lymjac. It was not in evidence when each of Alessio, Domenica and Josephine had become directors of Lymjac. Both Josephine and Maria gave evidence that it was Alessio who directed that control of Lymjac (and so, the properties it held) be given over to Maria. I am satisfied it was Alessio who directed the transfer of Lymjac to Maria, though his exact reasons for doing so are not clear.

87. Also in 2001, Josephine says her husband, John, became the trustee of the 1978 Trust, which holds 55 Axxx Street. I note that 55 Axxx Street appears to never have been transferred out of Alessio’s name, despite the supposed change in trustee.

88. Josephine’s evidence is that in 2001, Alessio told Maria and Josephine that he would be giving Lymjac and its properties to Maria and 55 Axxx Street to Josephine. It was this instruction that prompted the changes to both Lymjac and the 1978 Trust.

89. In 2002, the Churchill Street Property was transferred to Maria’s son Steven. Maria’s evidence was that Alessio wanted to split his two properties in Fairfield between her and Josephine equally, and so he wanted to give the Churchill Street Property to Maria. Maria, in consultation with her husband, requested that the property be transferred directly to her son rather than her, which she says her father agreed with. Josephine’s evidence was also that the property was transferred at her father’s request (TR P211 L31-35). I am satisfied that it was Alessio who was the driving force behind the transfer of the Churchill Street Property from Josephine to Maria’s family. Both Maria’s and Josephine’s evidence is to the effect that Alessio wanted to have the Churchill Street Property transferred out of Josephine’s name, albeit Maria’s evidence imputes a specific motive to Alessio. I note that Josephine additionally says that in exchange for transferring the Churchill Street Property, her father had promised to leave 79 Rxxx Street to her to make things equal in the end.

2003 Will, 2012 Will and events in between

90. As mentioned earlier, on 10 February 2003, the 2003 Will was executed. This will was drafted and witnessed by Peter McBride. Given its importance to this dispute, I will set out below the key terms of the will, keeping the formatting as per the original:

“1. I HEREBY REVOKE all former Wills and Testamentary dispositions at any time heretofore made by me AND I DECLARE this to be my list Will and Testament.

2. I APPOINT my wife DOMENICA PUOPOLO to Executrix and Trustee of this my Will but if she is unable or unwilling to act in that capacity THEN I APPOINT my daughters GIUSEPPINA AND MARIA as Executrices and Trustees of this my Will and the following provisions shall apply.”

3. I GIVE, DEVISE AND BEQUEATH my right title and interest, if any, in property 55 Axxx Street, Oatley to my daughter GIUSEPPINA PUOPOLO.

4. I GIVE, DEVISE AND BEQUEATH the rest and residue of my estate of whatsoever kind and nature and wheresoever situation unto my wife DOMENICA PUOPOLO PROVIDED that she survives and if she does not so survive me then in accordance with the following Trusts.

5. I GIVE, DEVISE AND BEQUEATH the rest and residue of my estate unto such of my daughters GIUSEPPINA and MARIA as shall survive me and if more than one as tenants in common in equal shares.

…

7. IT IS MY WISH that my daughter GIUSEPPINA has the option to buy my residential home now at 79 Rxxx Street, Oatley but wherever it may be situate.

…

9. I WISH the firm of McBride, Harle & Martin to be employed by my Executrix as her Solicitors in connection with the execution and provisions of this Will and any Codicil to it. If at my death the firm of McBride, Harle & Martin no longer exists I wish the firm which carries on its practice to be employed by my Executrix as her Solicitors.”

91. In 2008, Josephine formally changed her name from “Giuseppina Puopolo” to “Josephine Puopolo Passas”. There was in evidence a “Change of Name Certificate”, whereby this name change was formally registered with the Registry of Births Deaths and Marriages on 8 October 2008.

92. In 2009, Domenica was diagnosed with dementia. Josephine says that from this point onwards, she began caring for her parents. She says she would attend her parents’ residence on a daily basis to assist Domenica with her daily needs, as well as to clean and cook. She says she also went with her mother to appointments and purchased food and household supplies. On Josephine’s evidence, in broad terms, that care became more intense as her mother’s condition worsened. In cross-examination, Josephine’s evidence was that in the years leading up to moving in with the deceased in 2015, she “did a lot” for both her parents including doing the washing, changing sheets, cleaning, bathing and dressing her mother, and feeding her mother.

93. There is no dispute that Josephine provided Domenica care – Maria accepted as much in cross-examination (TR P92 L1-7). There is a dispute as to exactly how much Maria was involved in the care of Domenica. It is not necessary for now to deal with that dispute in any detail. However, Maria nonetheless accepted she “didn’t do as much as [her] sister”, which she explained was due to her working hours and caring for her own children and grandchildren at the time (TR P92 L5-26). In what was a genuinely moving way, Maria expressed her appreciation for her sister’s work in the witness box. In general terms, it can be accepted that Josephine provided quite a lot of care for Domenica and by extension Alessio.

94. The next major event is the execution of the 2012 Will on 21 June 2012. As already mentioned, this will was prepared and witnessed by a different solicitor than the 2003 Will, namely, Mr Valenti. Like with the 2003 Will, I will set out below the key terms of the 2012 will (acknowledging cl 6 was already reproduced earlier in these reasons), keeping the formatting as per the original:

“1. I REVOKE all former testamentary dispositions made by me.

…

3. IF MY WIFE, DOMENICA PUOPOLO survives me by 30 days, then:

A. I GIVE the whole of my estate to her.

B. I APPOINT my daughter JOSEPHINE PUOPOLO PASSAS as my executrix and trustee of this my will.”

4. IF my wife, the said DOMENICA PUOPOLO failed to so survive me by 30 days, then the following provisions shall apply:

A. I APPOINT my daughter JOSEPHINE PUOPOLO PASSAS as my executrix and trustee.

B. I GIVE the whole of my estate to my daughter JOSEPHINE PUOPOLO PASSAS.

5. IN THIS WILL I have not given anything to my other daughter MARIA D’APICE as I have previously provided for her at my request. I wish to treat my two daughters equally. At the request of my daughter MARIA D’APICE I have provided for her as follows:

i. I have sold the property of 30 Francis Street Carlton and given her the proceeds of the sale.

ii. I have transferred to her the company known as LYMJAC PTY LIMITED which was the registered owner of various real properties of considerable worth.

iii. I have transferred to Maria’s son Steven the property know [sic] as 6 Churchhill [sic] Street Fairfield.

6. I ACKNOWLEDGE THAT I hold my interest in the property of 55 Axxx Street Oatley in trust for my daughter JOSEPHINE PUOPOLO PASSAS and I direct that my interest if any pass to JOSEPHINE PUOPOLO PASSAS to perfect the trust.

…”

95. For clarity, I will set out and summarise the state of the ownership of the properties purchased by Alessio as at the date of the execution of the 2012 Will (noting that there is nuance as to how the purchase of the properties was funded and how the ownership of that property was designated, which is unnecessary to traverse again here):

| Property | Registered o****wner | | Francis Street Property | Third party (sold on 13 October 1978) | | 55 Axxx Street | Alessio (with Josephine to receive in either will) | | 13 Axxx Street | Josephine | | 79 Rxxx Street | Alessio | | 91 Rxxx Street | Maria (through Lymjac) | | 8/9 Rxxx Street | Maria (through Lymjac) (later sold to a third party) | | Hardy Street Property | Maria (through Lymjac) | | Churchill Street Property | Steven (Maria’s son) | | Nelson Street Property | Josephine |

For completeness with respect to the other properties mentioned, I note that Maria and Nino remain the registered owners of 107 Rxxx Street, as purchased in their own right. The Hampton Court Road Property has also been sold by Maria and Nino.

Events after the 2012 Will

96. On 11 August 2014, Alessio met with Mr Daley, the solicitor who prepared a document which I will call the 2014 Statutory Declaration. Mr Daley says that Alessio recited the contents of the 2012 Will and “confirmed his testamentary intentions during the meeting”. Mr Daley recommended that Alessio prepare a statutory declaration setting out the reasons for the 2012 Will, and Alessio gave Mr Daley instructions to prepare a statutory declaration, which became the 2014 Statutory Declaration. Mr Daley, in his affidavit, annexed two earlier drafts of the 2014 Statutory Declaration which were prepared based on notes Mr Daley took from the meeting.

97. Two paragraphs from the draft statutory declaration were not ultimately reflected in the final version. Mr Daley says this was because they were not correct. However, one paragraph, paragraph 8 of the drafts, contained information which was provided by Alessio to Mr Daley but was considered “unnecessarily inflammatory” for the final product. I consider it useful to set out draft paragraph 8. Using the version which appears on page 348 of the Court Book, that paragraph read (incorporating the handwritten amendments):

“I have made the provision to Josephine to compensate her for the loss to her as a result of Maria failing to abide by my directions to her concerning the division of certain properties. This includes the failure by Maria to transfer to Josephine one of the apartments with the company trust, and the failure of Maria to compensate Josephine with respect to the capital gains taxation (about $15,000.000) paid by Josephine upon transfer of a property to Maria.”

98. Domenica died on 3 September 2014, aged 85 years old.

99. The 2014 Statutory Declaration was made by Alessio on 3 December 2014. The final version of the 2014 Statutory Declaration read as follows:

“I, ALESSIO PUOPOLO of 79 RXXX STREET, OATLEY, in the State of New South Wales, do solemnly declare as follows:

1. I am making this statutory declaration to make known my reasons for writing my last will and testament dated 21 June 2012 (“my Will”)

2. I have two daughters, Maria d’Apice (“Maria”) and Josephine Puopolo Passas (“Josephine”).

3. In my Will I have provided that my daughter Josephine is to receive the property situate at and known as 79 Rxxx Street, Oatley and the rest and residue of any estate.

4. I have made that provision for Josephine in appreciation of the financial assistance that she has provided to me during my lifetime which included assisting me with raising the deposits for 2 apartments and one house which were ultimately given to Maria (through a company trust).

5. I have made the additional provision for Josephine in recognition that I have provided my daughter Maria with substantial financial assistance during my lifetime, including the money for the purchase of 3 houses and 2 apartments, as well as the deposit for the first property she purchased with her husband about 40 years ago.

6. I have satisfied myself that Maria has substantial wealth and with the provision that I have already made for Maria, it is my opinion that Maria will not be in need of any additional provision in my Will.”

100. In 2015, Josephine and her husband moved out of 13 Axxx Street and in with Alessio at 79 Rxxx Street. Josephine’s (TR P172 L32-P174 L38) and John’s evidence was that this was at the request of Alessio. Josephine’s evidence was that in fact Josephine and John were planning to relocate to Queensland as her husband had received a job there. Alessio had originally agreed to take up Josephine’s suggestion to move with her and her family to Queensland. However, Alessio then changed his mind and did not want to move to Queensland and did not want to be left alone. Josephine says Alessio asked her and her family to move in, and she (and her husband and young children) agreed to do so.

101. Josephine’s evidence was that while living with Alessio, she cared for him by carrying out home duties and organising social outings and day trips for the deceased. In cross-examination, she elaborated to say that Alessio did not know how to cook for himself, use a washing machine or do “any of that”, so Josephine did it instead. She also agreed that she was effectively managing the house once she moved in (TR P196 L23-30, see also P198 L9-17). Josephine was effectively continuing to provide the sort of care she was providing to Alessio and Domenica prior to Domenica’s death. Josephine helped care for Alessio all the way up to his death. I accept Josephine’s evidence as to what she did for her father once she moved in.

102. It should be noted here that even though Josephine appeared to be doing a lot for Alessio inside the home, Alessio was still managing his own affairs and doing things outside of the home. For example, there was evidence he would leave the house on his own and go out with friends (TR P242 L1-7). Josephine said Alessio would not necessarily ask her to assist with things and he was capable of doing things like making appointments (TR P204 L29-P205 L14).

103. In 2020, Alessio was diagnosed with stomach cancer.

104. In September 2022, Alessio’s cancer returned (I infer that at some point Alessio was in remission after his initial diagnosis in 2020). From this point, physically, Alessio rapidly deteriorated and was in and out of hospital. Josephine says she accompanied her father to hospital, stayed by his bedside, and otherwise took care of him when he was home.

105. Alessio ultimately died on 22 October 2022.

Issues

106. Having regard to the pleadings, the procedural and factual background set out above, and the submissions made by the parties (see below), the following questions arise for consideration.

107. The principal question the Court must answer is did Alessio know and approve of the contents of the 2012 Will? However, wrapped within this larger question are the following sub-questions:

108. On the facts of this case, is there a presumption that Alessio had knowledge of and approved of the contents of the 2012 Will?

109. If yes to (1), has Maria shown there to be “suspicious circumstances” in relation to the preparation or execution of the 2012 Will such as to displace any presumption that Alessio had knowledge of and approved of that testamentary document?

110. If yes to (3), has Josephine discharged her burden to affirmatively prove Allesio knew and approved of the contents of the 2012 Will?

111. If the 2012 Will survives Maria’s challenge, then the Court must also consider her family provision claim under the Succession Act. It is admitted on the pleadings that Maria, as Alessio’s daughter, is an eligible person who may apply for a family provision order in respect of Alessio’s estate (by reason of s 57(1)(c) of the Succession Act). The following questions in relation to the Maria’s family provision claim require determination:

112. Has adequate provision for the proper maintenance, education or advancement in life of Maria not been made by the 2012 Will (s 59(1)(c) of the Act)?

113. If the answer to (1) is yes, what, if any, order does the Court think ought to be made for the maintenance, education or advancement in life of Maria, having regard to the facts known to the Court at the time the order is made (ss 59(2), 65 of the Act)?

114. In summary, and for the reasons set out below, I have determined:

115. Alessio did know and approve of the contents of the 2012 Will; and

116. no order for family provision should be made for Maria.

117. The Statement of Claim must be dismissed.

Issue 1: the validity of the 2012 Will

Legal Principles

111. In her SOC, Maria alleges that the 2012 Will was made in “suspicious circumstances” and thus the defendant has the burden of removing the suspicion and proving affirmatively the deceased knew and approved its contents (SOC [21]).

112. There does not appear to be any dispute as to the legal principles to be applied in relation to the Court’s consideration of the issue of “suspicious circumstances” and any determination of whether a testator knew and approved the contents of a will.

113. In Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 (Tobin v Ezekiel), Meagher JA (with whom Basten and Campbell JJA agreed) at [44]-[48] set out the legal principles to be applied in relation to both testamentary capacity and knowledge and approval. For convenience, I will set out the whole of those paragraphs, noting however that the focus in these proceedings will be on what his Honour said at paragraphs [46] to [48]:

“[44] The starting point is that the onus of proof lies upon the proponent of the will to satisfy the court that it is the last will of a “free and capable” testator: Barry v Butlin at 482; 1092; Fulton v Andrew [1875] LR 7 HL 448 at 461; Tyrrell v Painton [1894] P 151 at 157; Bailey v Bailey [1924] HCA 21; 34 CLR 558 at 570; Timbury v Coffee [1941] HCA 22; 66 CLR 277 at 283. To establish that a document is the last will, it must be proved that the testator knew and approved its contents at the time it was executed so that it can be said that the testator comprehended the effect of what he or she was doing: Barry v Butlin at 484; 1091; Cleare v Cleare (1869) LR 1 P & D 655 at 657-658; Atter v Atkinson (1869) LR 1 P & D 665 at 668, 670; Nock v Austin [1918] HCA 73; 25 CLR 519 at 522, 528.

[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) 6 Moo PC 341 at 355; 13 ER 715 at 720; Sutton v Sadler (1857) 3 CB NS 87 at 97-98; 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.

[46] Upon proof of testamentary capacity and due execution there is also a presumption of knowledge and approval of the contents of the Will at the time of execution. That presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator. In Thompson v Bella-Lewis [1997] 1 Qd R 429 McPherson JA (dissenting in the result) said (at 451) of the circumstances able to raise a suspicion concerning knowledge and approval that, except perhaps where the will is retained by someone who participated in its preparation or execution or who benefits under it, “a circumstance must, to be accounted ‘suspicious’, be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator’s death”. See also McKinnon v Voigt [1998] 3 VR 543 at 562-563; Robertson v Smith [1998] 4 VR 165 at 173-174. Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved of the contents of the document: Barry v Butlin at 484-485; 1091; Cleare v Cleare at 658; Tyrrell v Painton at 157, 159; Nock v Austin at 528.

[47] Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be “the most satisfactory evidence” of actual knowledge of the contents of the will: Barry v Butlin at 484; 1091; Gregson v Taylor [1917] P 256 at 261; Re Fenwick [1972] VR 646 at 652. What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example in Wintle v Nye [1959] 1 WLR 284 the relevant circumstances were described (at 291) as being such as to impose “as heavy a burden as can be imagined”. Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction: Fulton v Andrew at 472; Tyrrell v Painton at 160. That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator: Tyrrell v Painton at 157, 160; Nock v Austin at 523-524, 528; Fuller v Strum [2001] EWCA Civ 1879; [2002] 1 WLR 1097 at [33]; Dore v Billinghurst [2006] QCA 494 at [32], [42].

[48] In this context the statements prescribing “vigilance” and “careful scrutiny” and referring to the court being “affirmatively satisfied” as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof: see Worth v Clasohm at 453. What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters: Kantor v Vosahlo at [22], [58]; Dore v Billinghurst at [44]. They also recognise that deciding whether a document is indeed a person’s last will is a serious matter, so any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 or, now, s 140(2) of the Evidence Act 1995.”

114. The legal principles set out in Tobin v Ezekiel have been subsequently cited and applied often, including by the Court of Appeal in Mekhail v Hana [2019] NSWCA 197 (Mekhail v Hana) at [132] (Leeming JA, Basten JA and Emmett AJA agreeing) and Lim v Lim [2023] NSWCA 84 at [10] (Kirk JA, Bell CJ and Griffiths AJA agreeing).

Consideration

115. The 2012 Will was duly executed in accordance with the requirements of s 6 of the Succession Act (particularly ss 6(1)-(2)). The last page of the Will is signed by Alessio, and has been attested by two witnesses, being Mr Valenti and a Ms Helen Marcetic (who appears to be a legal secretary who worked at Mr Valenti’s law firm). The foot of the Will says it was signed by Alessio in the presence of the two witnesses and attested by those witnesses in Alessio’s presence and in each other’s presence. There is no suggestion that the witnesses were disqualified from witnessing the 2012 Will by reason of s 9 of the Succession Act.

116. There is no suggestion that Alessio lacked testamentary capacity at the time of the execution of the 2012 Will. In fact, as counsel for Josephine put it, the evidence (including Maria’s) was that Alessio “was sharp as a tack until close to the end”. As the 2012 Will was duly executed and Alessio did have testamentary capacity at the time of the execution of that will, there is a presumption that Alessio knew and approved of the contents of the 2012 Will: Tobin v Ezekiel at [46].

117. To successfully impugn the 2012 Will, Maria must raise a “well-grounded suspicion or doubt as to whether the will expresses the mind of the testator”. That is, the question I must answer is whether there are suspicious circumstances attending the execution of the 2012 Will which might suggest Alessio did not know and approve of the contents of this will. In my opinion, Maria has not shown such circumstances.

118. As Meagher JA observed at [46] of Tobin v Ezekiel, quoting the reasons of McPherson JA in Thompson v Bella-Lewis [1997] 1 Qd R 429 at 451, except in a case where the will is retained by someone who participated in its preparation or execution or who benefits under it, the relevant suspicious circumstances which may raise a doubt as to whether Alessio knew and approved of the 2012 Will must be related to the preparation or execution of that document, or its intrinsic terms.

119. I am satisfied Josephine was not involved in the preparation of that will. There is no evidence that Josephine was involved directly in the preparation or execution of the 2012 Will. As pointed out in closing submissions (TR P271 L34-36), Josephine was not living with Alessio in 2012 when the 2012 Will was drafted – she only moved in with Alessio in 2015. Josephine denied knowing Mr Valenti, or even ever having seen him until he arrived in Court on the first day of the hearing (TR P214 L35-36). In her oral evidence given under cross-examination, Josephine repeatedly intimated that the first she had even heard of the 2012 Will and the fact that Alessio had given all of his estate to her was around the time she had moved in with Alessio, which was about two years after the 2012 Will had been executed (TR P194 L 31-34; P205 L16-33; P214 L38-48). Josephine also directly denied talking about 79 Rxxx Street with Alessio in 2012 or before Alessio executed the 2012 Will (TR P219 L29-39). I accept Josephine’s evidence. I find Josephine did not know about the 2012 Will or its preparation until around the time she and her family moved in with Alessio. It also follows that this is not a case where someone who was involved in the preparation or execution of the impugned will took a substantial benefit under it, which might have required particularly cogent evidence from Josephine to dispel any suspicious circumstances (cf Tobin v Ezekiel at [47]-[48]).

120. Maria in her oral closing submissions made a submission that Josephine’s evidence showed she knew about the 2012 Will in advance of 2012, and that she was told by her father she was going to be given 79 Rxxx Street (TR P263 L13-19). Counsel for Josephine did interject to say that was not her recollection of the evidence (TR P263 L27) but counsel for Maria said, in response, “that’s the written evidence” and that such evidence was “certainly” in the oral evidence as well (TR P263 L21-47). I was not taken to any evidentiary references supporting the contention Josephine knew in advance about the 2012 Will. That contention appears to be directly inconsistent with her oral evidence given under cross-examination, which I have accepted. Some of Josephine’s affidavit evidence does make reference to her recollection that Alessio had said at various times that 79 Rxxx Street would be hers. However, that Josephine heard her father say he wanted to give her 79 Rxxx Street at points prior to the 2012 Will does not mean she was involved in the preparation or execution of the 2012 Will to give effect to that wish.

121. This is also not a case where Josephine, the major beneficiary under the 2012 Will after Domenica’s death, retained the 2012 Will. Beyond the evidence canvassed already which suggested Josephine did not even know of the 2012 Will at the time of its execution, there is also further evidence that Josephine did not know where that will was retained. Josephine gave evidence she did not know around the time she moved into 79 Rxxx Street where Alessio kept the 2012 Will (save for the fact that it was not in his safe) (TR P214 L42-44). She said in her affidavit sworn 15 May 2025 that she did not locate a copy of the 2012 Will until a few months after her father’s passing as she was mourning her father. In response to a question about why it took her eight months after Alessio’s death to produce the 2012 Will to Maria, amongst other reasons, Josephine said she “had to go looking through papers” and that her father “had stuff everywhere” (TR P215 L1-2), which seems to further suggest Josephine did not know where the 2012 Will was retained, be it at the time of its execution or any time thereafter. This impression is strengthened when considering Josephine’s evidence suggesting she “never saw the physical will” (TR P213 L36-41). Given I accept Josephine’s evidence she did not conceal the 2012 Will, I reject what Maria submitted at PWS [57] and [59] that there is a suspicious circumstance in her failing to disclose the 2012 Will. There was no concealment and I accept the delay in producing the will was ultimately one that was explained.

122. In the SOC and PWS, Maria alleged there were numerous suspicious circumstances which “individually and severally” ought to cast doubt on whether Alessio knew and approved of the 2012 Will (PWS [29]). As the magnitude of the burden which might be placed on Josephine to rebut any suspicious circumstances will depend on which of the many alleged circumstances are in fact made out (Mekhail v Hana at [134]-[136]), I will need to engage with each of Maria’s allegations. This being said, Maria gave most attention both in her oral and written submissions to an intrinsic issue with the terms of the 2012 Will itself, as well as those of the 2014 Statutory Declaration (see TR P267-269, PWS [31]-[38]). I will therefore deal with these two alleged sources of suspicious circumstances first.

123. However, before doing so, I wish to comment on Maria’s use of the 2014 Statutory Declaration. The 2014 Statutory Declaration is not a will. The use of “suspicious circumstances” in a testamentary context is principally used in relation to determining whether a testator knew and approved of a will. The focus of an inquiry in relation to suspicious circumstances in this case is whether there were such circumstances surrounding the 2012 Will.

124. Absent Josephine being involved in the preparation or keeping of the 2012 Will, I am not sure that it is proper to proceed on the basis that potentially suspicious circumstances surrounding the preparation and execution of the 2014 Statutory Declaration ought to lead to the conclusion that the 2012 Will was executed in suspicious circumstances, given the gap in time between those two documents being prepared and executed. I was not taken to any authority indicating it was proper to look at events and documents significantly post-dating the preparation or execution of a challenged will, though I am certainly not to be taken as necessarily intending to suggest such an approach is wrong in principle.

125. That is not to say the 2014 Statutory Declaration or instruments of a similar character in other cases are unimportant documents. In this case, Josephine relies on the statutory declaration as evidence Alessio did in fact know and approve of the 2012 Will, which he evidenced by affirming what was expressed in the will. If Maria was able to impugn the Statutory Declaration in some way, then its evidentiary value for Josephine as evidence Alessio knew and approved of the will would obviously be diminished.

126. In this case, however, Josephine submitted that Maria failed to attack the statutory declaration itself in any meaningful way. She submitted (TR P278 L15-L45):

127. the statutory declaration was sworn (inferentially, I take it the emphasis on the declaration being sworn is that this means it is a true statement, noting the penalties for a false declaration (see Oaths Act 1900 (NSW) (Oaths Act) ss 25-25A));

128. there is no question that it was Alessio who swore it;

129. there was no issue raised about Alessio not having capacity to make the statutory declaration, nor any issue raised about him being coerced or pressured into signing the declaration; and

130. there was never a direct challenge to any aspect of the statutory declaration, and no questions were put to any witnesses about any matter that would enable the Court to call into question any aspect of the statutory declaration.

131. I accept those submissions. It follows that the 2014 Statutory Declaration has value in this case, particularly as evidence the deceased knew and approved of the 2012 Will, to the extent what is contained in the statutory declaration does reflect what is expressed in the will (which I find it does: see [158] below).

132. This being said, Josephine did not specifically submit that any matter affecting the execution of the 2014 Statutory Declaration could not constitute a suspicious circumstance in relation to the 2012 Will. She also dealt with Maria’s case on its merits, as a whole. Against the possibility I am wrong and, in any event, given Josephine and Maria proceeded on the basis that matters pertaining to the 2014 Statutory Declaration could affect whether the Court’s conclusion there were suspicious circumstances surrounding the 2012 Will, I will deal with Maria’s alleged suspicious circumstances on their merits.

133. I will first consider the suspicious circumstances surrounding the 2012 Will as alleged by Maria, starting with her “primary” allegations.

Alleged inconsistencies in the terms of the 2012 Will

130. Maria submits the terms of the 2012 Will are internally inconsistent. She specifically focuses on the terms of cls 4 and 5. The material terms of the 2012 Will are set out at [94] above.

131. At SOC [13], Maria pleaded that the effect of the 2012 Will is “to make substantially greater provision for [Josephine] than [Maria]”, thus rendering the statement that Alessio wished to treat his two daughters equally incorrect.

132. In her written submissions, Maria submits that cls 4 and 5 are internally inconsistent and illogical. The contradiction on which Maria focuses is on the “equality statement” in cl 5, being the sentence “I wish to treat my two daughters equally”, and what happens in cl 4, namely the whole of Alessio’s estate is given to Josephine. At [33]-[34] of PWS, Maria submitted the following (footnotes omitted):

“33. The Deceased always wished to treat his daughters equally as heirs to his estate and this is reflected in all of his wills. That the first Will of the Deceased to exclude the Plaintiff features an internal inconsistency must give rise to suspicion and doubt.

34. Considerable suspicion and doubt arise by the illogicality of Mr Valenti’s drafting of the will - in one breath stating the Defendant receives everything, and in the next stating both daughters are to be treated equally - or the Deceased inadequately expressing his testamentary intent to Mr Valenti. The deceased cannot have be taken to have understood the contradiction in the two clauses of the 2012 Will and executed same. On the face of it, the 2012 Will does not work. The equality statement is rendered nugatory. Any testamentary intention of the Deceased on the 2012 Will is indiscernible.”

133. In her oral closing submissions, Maria effectively repeated this submission at length. The 2012 Will was characterised repeatedly as saying one thing in cl 5, namely that the daughters were to be treated equally, and then immediately contradicting itself by giving the whole of Alessio’s estate to only one daughter cl 4(b), which was also said to generate confusion and to be suggestive of the fact that perhaps Alessio did not understand what he was doing by the 2012 Will (TR P267 L21-27, P267 L45-50, P268 L18-29, P269 L8-10, P269 L28-31, P269 L37-43).

134. I reject Maria’s submission that there is some contradiction between cl 5 and cl 4 in the manner she submits. Maria’s submissions have as their focal point the sentence “I wish to treat my two daughters equally” in cl 5. Her submissions wholly ignore the balance of cl 5. The very first sentence of cl 5 has Alessio expressly acknowledging, in plain English, that he is not providing for Maria in the 2012 Will because he had done so at other points in his life. Following the sentence on which Maria focuses, Alessio then states what he has provided for Maria during up to 2012.

135. In both her written and oral submissions, Maria did not submit that cl 5 inaccurately described the provision which had been made to her by Alessio. Certainly, what is described in sub-cls 5(ii) and (iii) is corroborated by the evidence and set out in the “Facts” section of these reasons. I have also expressed my satisfaction that Alessio was the driving force behind the transfer of the control of Lymjac to Maria, and of the Churchill Street Property to Maria’s son, such that cl 5 is also accurate in Alessio ascribing responsibility for those transactions to himself.

136. Maria pleaded at SOC [14] that cl 5(i) is inaccurate, which forms part of the facts pleaded as comprising the suspicious circumstances surrounding the execution of the 2012 Will. Josephine made submissions responding to this pleading. This being so, I will address whether cl 5(i) poses some issue to which Josephine must respond.

137. Josephine acknowledged that strictly, cl 5(i) is not correct as no sale proceeds from the sale of the Francis Street Property were given to Maria (and her husband) (TR P276 L19-32). As recorded earlier in these reasons, what had actually happened was that Alessio and Domenica had granted a mortgage over the Francis Street Property as security for a loan to Maria and Nino to purchase their first home, the Hampton Court Road Property, which was then rented out to help to provide Maria and Nino more income to repay the loan they received from the Commonwealth Savings Bank of Australia. The Francis Street Property was sold in 1978 but there is no evidence as to what happened with the sale proceeds.

138. I accept Josephine’s submission that whilst cl 5(i) does not describe “exactly what happened”, on Maria’s own evidence (TR P276 L34-35), Alessio did use the Francis Street Property to assist Maria and her husband financially. Further, as Josephine also highlighted, these transactions were many years prior to the 2012 Will. Josephine refers to the time between the sale of the Francis Street Property in 1978 and the 2012 Will, about 34 years. The mortgage was entered into in 1974, about 38 years before the 2012 Will. Either way, it can be accepted there was a long time between Alessio’s dealings with the Francis Street Property and the 2012 Will. That length of time provides an obvious explanation for the inaccuracy in cl 5(i) in describing how Maria was provided for as far as the Francis Street Property is concerned.

139. In her oral closing submissions, Josephine says the fact cl 5(i) is “not completely correct” is “a very slight suspicious circumstance” (TR P276 L34-36). I do not think it grounds a suspicious circumstance at all. Clause 5(i) itself, while not precisely accurate, is still accurate in that, read in its context, the subclause records that some provision was given to Maria in relation to the Francis Street Property. Thus, I do not consider that the inaccuracy of cl 5(i) is a suspicious circumstance. Even if it is a suspicious circumstance, I accept Josephine’s submission that any suspicion raised by this subclause is “slight”, given it is clear Alessio did own the Francis Street Property with his wife and the evidence decisively shows that the Francis Street Property was in fact used for Maria’s benefit many years ago.

140. For the reasons just stated, cl 5(i), while not strictly accurate, still averts to one instance in which Alessio provided for Maria during his lifetime up to the 2012 Will. As observed earlier, sub-cls 5(ii) and (iii) record two further instances of such provision. I accept Josephine’s submission that there is no confusion in cl 5. It is clear what Alessio is doing.

141. I accept Josephine’s submissions as to what I could make of cl 5 (see TR P276 L4-12), namely that it is Alessio explaining why he has ultimately made no provision for Maria under the will. Counsel for Josephine succinctly summarised, in my view, correctly, what cl 5 is doing (TR P276 L8-12):

“CATANZARITI: … I’ve already done this for Maria. That’s why I’m giving these properties to Josephine. He’s saying I haven’t given anything to Maria. I want to treat them equally. I’ve already given Maria all these things. So that’s why that’s so important because the whole of that clause needs to be read together.”

Perhaps the one technical correction that might be made to counsel’s summary is that it is more correct to say that the Francis Street Property was not given to Maria but rather used for her benefit, but that slight correction makes no difference to the accuracy of counsel’s summary of cl 5.

142. As Josephine submitted, it is important that the whole of the clause is read together, and a reading of the whole of the clause makes it plain that the reference to treating Maria and Josephine “equally” was not necessarily confined to how property would be disposed of in the 2012 Will, but to their overall treatment by Alessio.

143. Maria’s reading of the 2012 Will focuses only on the sentence “I wish to treat my two daughters equally,” and totally ignores the surrounding text even within that clause. Such a reading is unsound and must be rejected. There is no inconsistency within the 2012 Will itself.

144. I note that in response to my questioning that the work of the “equality statement” is to explain that the “function of the [2012 Will] is to make things equal in a bigger picture” (TR 268 L2-3), Maria submitted that “one construes these things through the lens of whatever the clauses are in the four corners of the will.” I have reached my conclusion that there is no confusion in cl 5 simply by reading its text.

145. Josephine’s submissions went further and sought to demonstrate there was in fact, by the end, some equality between what had been given to Maria and what was ultimately given to Josephine under the 2012 Will. These further submissions were in response to what was contained in SOC [13], namely that the effect of the 2012 Will was to make substantially more provision for Josephine as compared to Maria.

146. At TR P274-275, Josephine made the following submissions:

147. The issue is not whether the will made equal provision but whether the deceased thought he had made equal provision.

148. It is wrong to look at the property values of the current day to say the property provided to each daughter was unequal in value. But even if one does look at the values of the properties owned by the sisters in today’s terms, the property values are “not that dissimilar”, and there is not “millions of dollars of difference”.

149. On a macro level, Maria and Josephine each have four properties once the distribution under the 2012 Will is complete, and Alessio may have reasonably thought that was equal.

150. If one looks at the property values of the properties provided to Maria and Josephine around the time of their purchase (noting the properties were purchased across three separate decades), the prices of the properties were not “vastly different”. Thus, while not “exactly equal”, what was given to the daughters could be thought of as “roughly comparable” or “roughly equivalent”. This is equivalent with the notion that Alessio was looking to “make square” in the end.

151. Even if Maria’s properties now might be worth less than what Josephine now has, Maria has had the properties provided to her since 2001 (noting that 8/9 Rxxx Street has been sold since Maria took over control of Lymjac) and had the economic benefit of the properties given to her from being able to rent them out. By contrast, Josephine did not get 55 Axxx Street or 79 Rxxx Street until much later.

152. The focus should not be on whether there was complete equality today, but rather the focus is on what Alessio was thinking in 2012. Taking into account the relatively similar purchase prices of the properties, the macro-level equality of Maria and Josephine eventually having four properties each (once the dispositions effected by the 2012 Will took effect), and the extra benefits that Maria had from controlling properties since 2001, one can see how Alessio was effectively squaring the ledger and treating his daughters equally in the main.

153. Maria’s pleaded case, around which Josephine centred her submissions, refers to the effect of the 2012 Will. Maria’s submissions focus was on the terms of the 2012 Will rather than overall effect of the disposition of property made under that will in relation to what properties Maria and Josephine would each have. If Maria’s case on the “effect” of the 2012 Will is properly understood as being that what is suspicious about the 2012 Will itself is only its terms, I am not sure I need to address the substantive effect of the will on the overall distribution of property between Josephine and Maria.

154. If I am wrong to conclude there is no inconsistency in the terms of the 2012 Will, then to the extent there is a suspicious circumstance, I still consider that Josephine has explained that circumstance because I accept Josephine’s submissions that the practical effect of the 2012 Will is to ultimately bring about a rough equality between Alessio’s daughters, such that in fact Maria and Josephine have been treated equally as the will contemplates. Given sub-cls 5(i)-(iii) refer to particular properties, I think it is likely that “equality” in Alessio’s mind probably rose no higher than equality at what Josephine called the “macro level”, i.e. that in the end, Alessio gave each of his daughters four properties each. There is no evidence before me that would suggest Alessio would have had in mind the current values of the properties given to his daughters, or their initial purchase prices from many years before the 2012 Will.

155. But even if one was to look at the purchase prices of the properties or the values of the properties given to Maria and Josephine (noting that the best information I have as to values is today’s values, which perhaps can serve as a proxy for what the worth of the properties relative to each other), I accept Josephine’s submission that there is a rough equality, overall, caused by the will.

156. Additionally, if the pleaded case about the “effect” of the 2012 Will is properly understood as also including a claim that there is a suspicious circumstance in the practical effect of the 2012 Will (beyond just focusing on the will’s terms), I again consider there is no suspicious circumstance because I consider the practical outcome brought about by the 2012 Will is a rough, overall equality between Josephine and Maria, for the reasons just stated.

Alleged inconsistencies in the 2014 Statutory Declaration

151. The terms of the 2014 Statutory Declaration are set out at [99] above.

152. At SOC [19]-[20], Maria pleads the following:

“[19] Subsequently, on 3 December 2014, the Deceased allegedly made a statutory declaration which contains further reasons for making the [2012 Will]. The reasons represent a significant and unexplained change in the attitude which the deceased had hitherto held as to how his estate should be distributed, in that he had always expressed the intention that his daughters should be treated equally, whereas the statutory declaration purports to express an intention that the defendant should receive greater provision than the plaintiff.

[20] The statutory declaration, [sic] purports to give reasons why the Deceased was making additional provision for the defendant but those reasons are factually inaccurate in that:

a. The Statutory Declaration says that the provision was given in appreciation for financial assistance that the Defendant had provided to the Deceased whereas in truth and in fact, she had provided no financial assistance to him;

b. The Statutory Declaration says that the Deceased provided the Plaintiff with financial assistance which included money for the purchase of 3 houses, 2 apartments and payment of a deposit for the plaintiff’s first property whereas, he had provided her a gift of 2 houses”

153. In PWS, Maria made the following submissions on the 2014 Statutory Declaration, which are concise enough that they can be conveniently set out below (emphasis in original, footnote omitted):

“35. Further to the above, the drafting of the 2014 Statutory Declaration by Mr Daley also contains internal inconsistencies which demonstrate the Deceased could not have known and approved of the contents of his Will. This is the second of the two the key circumstances that excite doubt and suspicion which found the Plaintiffs cause of action.

36. Cl 4 in both drafts state ‘the rest and residue of my estate is to be distributed equally to my daughters Maria and Josephine.’ This is contrary to the following Cls 5-8 in each will-draft that proceeding to outline the unequal distribution of the Deceased’s assets.

37. The illogicality and internal inconsistencies in the drafting excites considerable doubt and suspicion on whether the Deceased knew and approved of the contents of the 2012 Will and the 2014 Statutory Declaration which attempts to crystalise testamentary intention.

38. This illogicality and contradiction in the 2012 Will, also raises doubt as to whether the Deceased could have adequately explained his reasons (contemporaneously or 30 months later) for creating the Statutory Declaration to Mr Daley.”

Maria’s submissions on the 2014 Statutory Declaration did not address the supposed inaccuracies in that document as she pleaded in SOC [20], and for that reason it does not seem necessary to address in detail whether the 2014 Statutory Declaration is inaccurate, though as will be seen below, some brief comments will be made.

154. I reject Maria’s submissions there is any suspicious circumstance that is raised by the contents of the 2014 Statutory Declaration.

155. The premise underlying what is pleaded was that Alessio had changed his attitude from wanting to treat his daughters equally to instead wanting to make more provision for Josephine. That premise can be rejected immediately. There was no change in attitude from Alessio. Alessio expressed in the 2012 Will itself, in a statement I accept reflects his intentions consistently with what he expressed to his daughters, that he did have a desire to treat his daughters equally. However, as already explained, whether one has regard solely to what is in cl 5 in the 2012 Will or also to the substantive result of how the properties were ultimately divided between the daughters once the will gave the whole of what was left of Alessio’s estate to Josephine, equal treatment overall between Josephine and Maria came about from an unequal distribution of Alessio’s estate under the 2012 Will, which, roughly speaking balanced the unequal distribution of properties between Alessio’s daughters at that point, particularly in light of the giving of Lymjac to Maria, and the Churchill Street Property to Maria’s son.

156. All of that thinking is plainly reflected in paragraphs 4-5, and arguably even paragraph 6, of the 2014 Statutory Declaration. Those paragraphs also refer to Alessio correcting an extra unfairness, namely in somewhat compensating (in a loose sense) Josephine for her contributions to the purchase of properties that ended up going to Maria. Given I accepted Josephine’s evidence as to the contributions she made to Alessio’s property purchases, I also do not accept there was an inaccuracy in the 2014 Statutory Declaration as pleaded at SOC [20(a)]. What is contained in the 2014 Statutory Declaration corroborates Josephine’s evidence (which I accepted as truthful anyway) that she contributed her wages to Alessio to help with property purchases.

157. To briefly interpose here, Maria pleads that paragraph 5 of the statutory declaration is not accurate because Maria only received a gift of 2 houses, not “3 houses and 2 apartments” as the paragraph states. Maria, in substance, received 3 properties, being those which Lymjac owned once Maria took over control of that property. Additionally, one of Maria’s sons received a property which had been purchased for Josephine by Alessio and transferred to the son at Alessio’s request, being the Churchill Street Property. That takes the tally up to 4. While I was not addressed on which particular properties were apartments or standalone houses, 3 or 4 (counting the one given to her son) properties is still fairly characterised as “substantial financial assistance”. Additionally, the remainder of the paragraph also refers to Alessio assisting Maria with the deposit for the first property she purchased with Alessio, which seems to be another reference to what was done with the Francis Street Property when Maria and Nino bought the Hampton Court Road Property. What is set out in paragraph 5 of the 2014 Statutory Declaration is substantially accurate – there is at best one mistake. To address SOC [20(b)] for completeness, I do not accept the inaccuracy pleaded is a suspicious circumstance. As with cl 5(i) of the 2012 Will, I consider that the inaccuracy does not detract from the overall accuracy of the paragraph in describing the fact Maria was provided for by Alessio. Even if I am wrong about that, then I would only consider the inaccuracy pleaded at SOC [20(b)] to be a “slight” suspicious circumstance at best.

158. Understood even without recourse to the drafting context provided by Mr Daley’s affidavit, about which more will be said shortly, there is nothing in the terms of the 2014 Statutory Declaration itself that raise any suspicion. The terms of the document are clear and in plain English. The testamentary intentions as elicited by the statutory declaration are consistent with what is contained in the 2012 Will, namely an intention that Maria is not to receive any of Alessio’s estate under the will. I already have not accepted Maria’s contention the 2012 Will contained any inconsistencies and so I reject what is submitted at PWS [38].

159. The apparent inconsistencies in the 2014 Statutory Declaration referred to in PWS [36]-[37] are references to draft forms of the statutory declaration which Mr Daley had annexed to his affidavit. Draft paragraph 4, to which Maria made reference in her written submissions, read “The rest and residue of my estate is to be distributed equally to my daughters Maria and Josephine”. That paragraph evidently did not make the final version of the statutory declaration. Mr Daley explains that what was said in that draft paragraph (and another which was removed) was drafted in error, contrary to Alessio’s instructions (as I already recounted at [97] above). Given Mr Daley’s evidence was that this paragraph was drafted in error, and the evidence shows the final version of the statutory declaration removed that paragraph, I do not consider that draft paragraph 4 could permissibly be used to impugn the 2014 Statutory Declaration. Mr Daley’s evidence was that it was Alessio’s instructions “immediately before declaring the Statutory Declaration before [Mr Daley]” that resulted in the amendments to the draft. That seems to provide further evidence Alessio knew and understood what the 2012 Will in fact reflected.

160. Even without recourse to Mr Daley’s evidence, I do not think the fact a draft statutory declaration may have been drafted inconsistently is of any significance in this case. Draft documents may have errors. Common experience tells that even if there are no errors, drafts of documents may have inconsistencies which may be ultimately ironed out by redrafting or editing the document in question. While Mr Daley’s document explains the errors were mistakes, there is nothing in any event to suggest that the changes between the drafts of the 2014 Statutory Declaration and its final form were themselves influenced in any suspicious or problematic way. Just on the face of the drafts, the changes appear to be corrections. I have no reason to doubt that, and even less reason to do so once Mr Daley’s affidavit evidence is considered. I therefore reject the submissions at PWS [36]-[37].

161. What Alessio ultimately signed was the 2014 Statutory Declaration. It was by virtue of that document, once signed and declared pursuant to the Oaths Act, that Alessio put himself at risk of penalty for a false declaration. That document contained no inconsistency. The terms of the 2014 Statutory Declaration do not assist Maria’s case.

Other alleged suspicious circumstances

162. I have concluded that the terms of both the 2012 Will and the 2014 Statutory Declaration do not of themselves constitute a suspicious circumstance capable of calling into question whether Alessio knew and approved of the 2012 Will.

163. Maria raised a series of other suspicious circumstances. In her oral closing submissions, they appear to have been categorised as “secondary ones” (see TR P267 L29-34). I will now address the other circumstances which Maria says should excite suspicion that Alessio did not know and approve of the 2012 Will. Less attention was devoted these circumstances by Maria in her submissions.

A substantial change in the prior wills

164. Maria submits that the 2012 Will was the first to exclude her from Alessio’s testamentary bounty, contrary to the 1988 Will and the 2003 Will (PWS [39]). The pleaded suspicious circumstance is that there was a “significant and unexplained change in the manner in which the Deceased had disposed of his testamentary bounty” as compared to Alessio’s two prior wills (SOC [12]). Focusing on the entitlements of the Maria and Josephine under each will:

165. the 1988 Will gave Alessio’s estate to his children as tenants in common in equal shares; and

166. subject to the specific gift of 55 Axxx Street to Josephine, the 2003 Will gave the rest and residue of Alessio’s estate his children as tenants in common in equal shares.

167. Recalling that Lymjac had been transferred out of Alessio’s (and, apparently, Josephine and Domenica’s) control in 2001, the only other property that was still in Alessio’s name by the time of the 2003 Will appears to have been 79 Rxxx Street. There is no evidence that Alessio had purchased any further properties between 2003 and 2012. Thus, in 2012, like in 2003, all Alessio had to give away as far as real property is concerned was 55 Axxx Street and 79 Rxxx Street.

168. Between the 2003 Will and the 2012 Will, Alessio is consistent in giving 55 Axxx Street to Josephine. The difference between the wills concerns 79 Rxxx Street: no one has contended there were other valuable assets that formed part of Alessio’s estate. The practical effect of the 2003 Will was to split 79 Rxxx Street between Maria and Josephine. The only change between the wills, practically speaking, was to now give the whole of 79 Rxxx Street to Josephine. The net change in Maria’s position between the 2003 Will and the 2012 Will is her losing a half share of 79 Rxxx Street.

169. As stated earlier, these proceedings principally affect 79 Rxxx Street. Keeping this in mind, it is significant that even in the 2003 Will, in cl 7, Alessio expresses his wish that Josephine is given the option to buy Alessio’s residential home, which was and remained 79 Rxxx Street. Even when otherwise splitting his estate up between his daughters in 2003, Alessio still wanted Josephine to be given the chance to keep 79 Rxxx Street to the exclusion of Maria. While the 2012 Will goes further than the 2003 Will by giving 79 Rxxx Street to Josephine outright rather than just giving her an option to buy, I do not think the Court can just ignore that even in 2003, it was contemplated that Josephine could receive 79 Rxxx Street for herself to the exclusion of Maria (albeit, with some expense incurred).

170. Remarkably, no party appears to have addressed cl 7 of the 2003 Will. Maria acknowledges the fact that the 2003 Will grants Josephine the option to purchase 79 Rxxx Street but made no further submissions on it (TR P262 L19-24). Josephine did not refer to it.

171. In my view, what I have said in the paragraphs above makes me sceptical about whether it is right to say there was a “substantial” change between Alessio’s final two wills, so as to constitute a suspicious circumstance.

172. Even between the 1988 Will and the 2003 Will, there are material differences in how Alessio’s estate was to be divided between Maria and Josephine (again, ignoring Domenica’s entitlements), which additionally makes it difficult to accept that the 1988 Will can be appropriately compared with the 2012 Will, as Maria sought to do. The 1988 Will simply gives the rest and residue of Alessio’s estate to his daughters. While the 2003 Will also does that, that clause is subject to both the giving of 55 Axxx Street to Josephine and the clause giving Josephine the option to purchase 79 Rxxx Street. Focusing on 55 Axxx Street, that property was purchased prior to even the 1988 Will. The existence of the 1978 Trust complicates the picture because it is not clear whether, by the time of the 1988 Will, that property had been promised to Josephine or not or was otherwise within Alessio’s estate as opposed to a trust estate. What is clear enough is that by 2003, there was now a manifest intention on Alessio’s part that this particular property would be Josephine’s. If it is correct to say that even in the 1988 Will, 55 Axxx Street was within Alessio’s power to give away, then it is even easier to conclude that the 2003 Will introduces an inequality between Maria and Josephine as to what of Alessio’s estate they would be entitled to overall, even if the rest and residue is to be split equally. All of this analysis is done without considering all that happened between 1988 and 2003, let alone between 1988 and 2012, and how those changes in circumstance might affect how the 1988 Will and the 2003 Will could be understood.

173. In any event, even if it is correct to say there was a “substantial” change in how Alessio’s estate was to be distributed between the 2003 Will and the 1988 Will on the one hand, and the 2012 Will on the other, I accept Josephine’s submissions that this change was not “unexplained”. I accept Josephine’s submissions that Alessio’s relationship with Maria and Josephine seems to have changed after the 2003 Will was executed (DWS [13]-[16]), such that I do not think the change in terms raises a doubt as to whether Alessio knew and approved of his later will.

174. As recorded in the chronology set out above, Domenica was diagnosed with dementia in 2009 and died in 2014. During that period, which was also the period in which the 2012 Will was executed, Josephine was engaging in significant caring responsibilities for Domenica (see [93] above). As Josephine put in her closing oral submissions, “[i]t’s the deceased who’s going out in his car and going out to see his friends while Josephine is helping to look after the mother”.

175. In cross-examination, Maria denied that she did not visit her parents once her mother was diagnosed. She said she went to 79 Rxxx Street, which was only a few doors up the road, two or three times a week, every week on the way to work, which provided an explanation for why she may not have been seen at her parent’s house by others who came (TR P90 L10-44, P92 L13-24, P93 L15-30).

176. In her closing submissions, Josephine eschewed a contention that Maria was “completely absent” (TR P274 L28-39). However, she did point to evidence from other persons who suggested Maria was not present often. That evidence includes the following:

177. Mr Dervis saying he could only recall seeing Maria visit Alessio and Domenica “about once a year” or “once in a blue moon”, and that he did not observe Maria to visit her parents regularly (TR P230 L49-50).

178. Ms Belinha recounting that despite being over at Alessio and Domenica’s home regularly, particularly once Domenica’s condition worsened, she could not recall Maria being present much.

179. Mrs Kikiras’ evidence that shortly after Domenica’s death in 2014, Alessio had said to her that Maria did not visit him (I infer that Alessio was largely referring to the time before Domenica’s death) (TR P238 L12-20).

180. Ms Arena’s evidence she did not see much of Maria, either in the past or around the time of Domenica’s death (TR P255 L40-P256 L7).

181. More generally, the other witnesses who were called by Josephine consistently painted a picture of the way Maria and Alessio’s relationship developed, which does not appear to have been challenged by Maria in cross-examination nor the subject of submissions to the contrary. Beyond their evidence of not seeing Maria much, those witnesses consistently gave evidence that Alessio expressed to them his view that Maria did not care about him, or him and Domenica. They also gave evidence that Alessio expressed to them his view Maria had enough or had her share of properties. However, in both cases the witnesses, save for Ms Belinha, were not entirely specific as to whether Alessio expressed these views prior to the 2012 Will being executed.

182. Ms Belinha gave evidence of her recollection that even around the time that Josephine and her husband had moved to New Zealand (in the late 1990s) and to Queensland (in the early 2000s), Alessio and Domenica had expressed feeling lonely, and had expressed their disappointment that Maria would not visit them despite living only a few doors down the road. Ms Belinha was not challenged on her evidence and, given I am inclined to accept her evidence, I accept that by the time of the 2012 Will being executed, Alessio had been expressing to others his disappointment that Maria did not visit often enough.

183. Josephine also gave evidence that her father expressed similarly negative sentiments about Maria not being sufficiently involved in Alessio’s life, though her evidence on this front also seems to include evidence of sentiments expressed after Domenica’s death. She also gave much evidence of her own observations that from about 2009, Maria was not particularly involved in Alessio’s life and was not involved in Domenica’s care.

184. Maria’s evidence to the contrary is perhaps summarised in her oral evidence given under cross-examination that “[her] parents still had no problem with [her]” (TR P98 L2). She denied that her relationship with her parents changed, and said that her parents were “very happy” that she made the effort to visit them when she did (TR P98 L43-47). Maria gave evidence that Alessio did come to Maria’s house for family celebrations or for lunch (TR P99 L35-P100 L41), and that Maria herself went over to 79 Rxxx Street on a “regular basis” from 2009 onwards, albeit not every week (TR P107 L5-16, P111 L35-37).

185. Nino gave similar evidence (TR P161 L27-43):

“Q. Now you say in your affidavit that he came over for - and I can give you the exact citation - that he came over for your grandchildren’s birthdays, Easter and Christmas to your house?

A. Yes.

Q. So he didn’t come over every week or every fortnight - he came over for specific occasions?

A. And in between to bring us vegetables. He lived up the road and if Marie wasn’t home he’d drop them by the front door.

Q. But other than that that was pretty much it?

A. How do you mean, “pretty much it”?

Q. That he used to come over for special occasions, and occasionally he would drop off vegetables?

A. Not occasionally. More than occasionally, and he would visit my son more often as well, and he lived in Revesby.”

I note however that very soon after the exchange just quoted above, Nino and counsel for Josephine had this further exchange (TR P161 L50-P162 L6):

“Q. From 2009 you would say that he would come over for special occasions - the grandchildren’s birthdays, your birthday’s, Father’s Day - but otherwise he would just drop off vegetables. That’s correct, isn’t it?

A. I didn’t say that.

Q. That was your evidence?

A. There are other times. I could list any - it just--

Q. Well, you didn’t put those in your affidavit, did you?

A. As in that he came over?”

I wish to record my view that counsel’s summary of Nino’s evidence is an accurate summation.

180. Josephine did not submit that I should disbelieve Maria or Nino. She also did not positively submit that I should reject Maria’s case and find that she did not visit 79 Rxxx Street with the frequency Maria says she did, particularly when Domenica was still alive. In closing submissions, Josephine also said her case was not that Maria was a bad daughter (TR P274 L33). That being said, the evidence before the Court does show, as Josephine submitted, that Josephine was doing quite a lot more. While Maria and Nino say they visited Alessio and Domenica with some frequency, noting that there is no other corroborative evidence of this, it is still the case that relatively speaking Josephine was doing significantly more. Some of the evidence Josephine gave as to the significant amount of care and assistance she gave to her parents has been mentioned at [92] above. Additional evidence as to the magnitude of care given by Josephine includes:

181. John’s evidence that Josephine was attending 79 Rxxx Street “multiple times per day” to care for Domenica;

182. Ms Arena’s evidence that when her and her husband would visit Alessio and Domenica once or twice a week, she “often saw” Josephine was visiting her parents, and that when Domenica became sick, she saw Josephine “always at her [Domenica’s] house caring for her”;

183. Ms Belinha’s evidence that, in the context of her seeing Josephine nearly every weekend, she would visit Josephine either at her house or at Alessio and Domenica’s house as Josephine was “caring for her mother and could not leave for long periods of time”, and that Ms Belinha and Josephine did not leave the house as Josephine was looking after her mother. Ms Belinha also gave evidence that she would observe Josephine make sure her mother was showered and fed, and would check up on Domenica’s medication; and

184. Mr Dervis’ evidence that when he was out the front of his house, he would often see Domenica out the front who would tell him that her daughter was taking her shopping or to the doctor, and that he would see Josephine pick up her parents and return them home. Mr Dervis also gave evidence of saying to Alessio “you are a lucky man, your daughter is looking after you” to which Alessio would respond Josephine is “doing everything for us”.

185. Whatever might be said of the relationship between Maria, Josephine and their father in 2003, I think the evidence is clear that by 2012 circumstances had changed. Without necessarily rejecting Maria’s evidence, I am satisfied that particularly after Domenica’s diagnosis in 2009 and as her condition deteriorated, Josephine was significantly more present in Alessio’s life in the context of caring for Domenica. Maria may have had entirely valid reasons for being less involved, which was acknowledged by Josephine. But the fact is that by the time of the 2012 Will, Maria was, comparatively speaking, less involved in Alessio’s life. I accept Josephine’s submissions to this effect (DWS [16]).

186. I acknowledge Maria’s evidence that no negative sentiments were expressed by Alessio to her, and that her father did occasionally attend her home, 107 Rxxx Street. But it can be simultaneously true that Alessio did not wish to express negativity towards Maria while expressing disappointment of her to others. Similarly, visiting Maria’s home sometimes for limited periods of time can still be consistent with a general view that Maria’s efforts to involve herself in Alessio’s life were, in his eyes, insufficient.

187. For those reasons, I accept Josephine’s submission that to the extent there was a material change in how Alessio’s estate was to be distributed, that circumstance is not suspicious because it is explained by the changed relationships between Alessio, Maria and Josephine.

A new solicitor for the 2012 Will

184. The 2012 Will was drafted by Mr Valenti. Alessio’s two earlier wills, the 1988 Will and the 2003 Will, were both prepared by Peter McBride, who Josephine accepted was Alessio’s primary legal adviser “back in time” (TR P225 L42-44).

185. Maria submits that there is a suspicious circumstance arising from the change in solicitor who drafted the 2012 Will compared to the 1988 Will and the 2003 Will. Maria’s pleaded case is that the 2012 Will was prepared by a solicitor but not one that Alessio “knew” (SOC [9]).

186. There appear to be two limbs to the suspicious circumstance alleged by Maria, as can be parsed from her pleadings and her submissions. The first is simply that there is something suspicious in Alessio changing solicitors from his long-time legal advisers to someone else (PWS [40]-[42]).

187. The second limb of Maria’s alleged suspicious circumstance is that it was suspicious that Mr Valenti specifically was used. On the pleadings, the suspicion arises from Mr Valenti not being known to Alessio. There is a related but conceptually distinct suspicion said to arise from Alessio using a solicitor in Fairfield, some 20 kilometres away from 79 Rxxx Street. Maria submitted it is “inexplicable” for Alessio to have driven to Fairfield to visit a new solicitor, especially given he was 82 years old at the time of the 2012 Will and given that Peter McBride’s practice was much closer to home (PWS [45]-[46]).

188. I am not satisfied there is a suspicious circumstance in Alessio using a new solicitor, Mr Valenti, in Fairfield for the 2012 Will.

189. I have an immediate difficulty accepting what I have described as “the first limb” of Maria’s case on this issue. It is accurate to describe Mr McBride as Alessio’s “long-time solicitor” up to 2003. Beyond Josephine’s concession recounted above and what I have set out below at [212], Alessio expresses his wish in both the 1988 Will and the 2003 Will that his executor should use a retain a law firm which appears to be Peter McBride’s firm (noting the name changes), or the successors of that firm. However, the evidence does not disclose whether Alessio retained Mr McBride for legal work at any point after 2003. No properties were purchased by Alessio after 2003 and there does not appear to be any other legal work that Alessio needed done prior to the 2012 Will. As such, it is difficult to conclude that Alessio stopped using his long-standing solicitor only in or about 2012. It is at least possible that Alessio’s relationship with Mr McBride may have concluded many years before. While it is difficult to draw any firm conclusion, I consider what I have outlined in this paragraph militates against finding that the use of someone other than Mr McBride for the 2012 Will constitutes a suspicious circumstance.

190. As to whether Mr Valenti was known to Alessio, Josephine makes the point that it was never actually put to Mr Valenti whether he knew Alessio. Mr Valenti gave evidence that he had no recollection of Alessio at the time he first was contacted by Josephine’s solicitors, and at best he could potentially “put a face” to Alessio though even then, Mr Valenti was “not even sure” the face he had mind was Alessio’s (TR P33 L19-26). Mr Valenti also had no recollection of the matter (TR P33 L24-37). This evidence is entirely understandable in the context of Mr Valenti’s very long practice – he gave evidence of having practised for “40 or more years” and that he thinks he must have prepared thousands of wills for clients in that time (TR P33 L38-44).

191. I am not sure that it matters Mr Valenti was not asked whether he knew or could recognise Alessio because Mr Valenti’s knowledge cannot wholly explain what Alessio knew. Of course, if Mr Valenti gave evidence that he knew Alessio outside the context of preparing the 2012 Will, that would militate strongly against concluding Mr Valenti was unknown to Alessio. However, even if Mr Valenti positively gave evidence that he did not know Alessio before preparing the 2012 Will, that does not explain what Alessio might have known of Mr Valenti before the preparation of the 2012 Will. Maria’s case focuses on what Alessio knew of Mr Valenti, and I have no evidence before me of how it came to be that Alessio came to use Mr Valenti’s services to prepare and execute the 2012 Will.

192. When it comes to the issue of the distance between Alessio’s home, 79 Rxxx Street, and the office of Mr Valenti’s firm, I was not taken to any evidence to establish how far these two places were from each other, though Maria’s written submissions suggested they were 22 kilometres apart (PWS [46]). I also did not have any evidence of how far 79 Rxxx Street was from Mr McBride’s office, to provide a frame of reference, though Maria’s submissions suggested Alessio lived 4 kilometres away from Mr McBride’s office (PWS [46]). I do not consider I can take judicial notice of such matters and that being the case, there is an evidentiary problem in being able to satisfy the Court that Alessio had to travel suspiciously substantial distance to prepare his new will – I do not know, as a fact proved in these proceedings, what distance Alessio needed to have travelled.

193. Additionally, the evidence weighs in favour of a conclusion Alessio was capable of driving to Fairfield. Maria gave evidence that her father could drive and “went out on excursions” (TR P122 L29-33), and additional evidence that he would drive to the cemetery to see Domenica or to Hurstville to go shopping (TR P134 L8-10). Nino accepted Alessio was able to drive out to Fairfield, and that he did go out, but qualified the answer by saying Alessio was not a good driver (TR P159 L11-22). Josephine gave evidence her father was “a capable driver” (TR P220 L5-6). Ms Kikiras recalled observing that Alessio would drive out to Hurstville as well (TR P242 L1-7). To the extent that evidence is being given about what Alessio was able to do after Domenica’s death, I consider that also must be applicable to be what he could have done in the years before then, including around the time of the 2012 Will, as it is unlikely Alessio’s driving got better with age. I am satisfied that Alessio could drive out to Fairfield, whatever distance that may have been, as a matter of physical capability.

194. Even accepting that Alessio was physically capable of driving, Maria gave evidence that her father was on a “restricted driving licence”, though did not give evidence of when any restrictions were applied (TR P133 L41-42). Josephine said she did not think that her father had a restricted licence, and she thought he had a full licence in 2012 (TR P197 L12-30). She later appeared to say that he might have had a restricted licence in his 90s (TR P202 L21-26) There is no evidentiary basis to conclude Alessio had a restricted drivers’ licence around the time the 2012 Will was entered into, and I am not satisfied I can determine what any restrictions may have been anyway, and so I am satisfied Alessio was capable of driving to Fairfield lawfully.

195. I also do not think Fairfield would have been an unfamiliar place to Alessio, such that there is suspicion in driving to Fairfield specifically (as compared perhaps to other surrounding suburbs). Alessio had been involved in multiple purchases of property in Fairfield. That alone suggests to me that Alessio would have at some familiarity with the suburb, such that there is not something inherently suspicious about driving out to Fairfield and seeing a solicitor in that suburb.

196. There is also evidence from Josephine that Alessio would “regularly” go to Fairfield. She gave evidence that Alessio had friends in Fairfield (inferentially, this would have been why he might have driven out there previously) (TR P203 L10). She also gave evidence that he would grow fresh greens and vegetables and do gardening out in Fairfield (TR P203 L10-16). Ms Arena gave evidence recalling that Alessio had a vegetable garden out in Fairfield (TR P256 L21-22). Maria and Nino both conceded in cross-examination that Alessio did go out to tend to a garden at the Nelson Street Property (TR P82 L33-44, P156 L14-23). Maria also appears to have conceded that in the 1990s, Alessio would have gone out to do maintenance on his properties in Fairfield and would have gone “on occasions” to Fairfield (TR P82 L5-20, P83 L21-23).

197. The evidence is not especially clear on the frequency with which Alessio might have visited Fairfield, especially closer to the time of the 2012 Will. There was no specific evidence as to whether Alessio visited the Nelson Street Property in the 21st century. However, the evidence still leads me to accept that Fairfield would have been a familiar location for Alessio. I am satisfied that Alessio had regularly visited that suburb at some point, at least in or around the 1990s. The fact Alessio regularly visited Fairfield gives the Court further comfort that Fairfield would have been a familiar enough location, such that it would not be a suspicious circumstance to have a will made there in 2012, by a solicitor practising in that suburb at the time.

198. Josephine referred to the evidence of Alessio’s regular visits to Fairfield in her closing submissions, which I infer to have been in support of a contention that it is not suspicious Alessio chose a solicitor in and drove to Fairfield in relation to the 2012 Will. To the extent that is a correct inference, I evidently accept that submission.

199. She also submitted that given Alessio’s regular visits to Fairfield, “there is a chance, a possibility, that he did know Mr Valenti” (TR P273 L14-15). I accept this point, in that I accept Maria has not discharged her onus in proving Mr Valenti was unknown to Alessio.

200. Maria accepted in cross-examination that there is now an Italian community in Fairfield. While Maria did not accept she knew of such a community when she was younger, she did say that when Alessio brought “the house” in Fairfield, he “said there were Italians there” (TR P81 L4-6, P83 L44-49). Nino also accepted there is an Italian community in Fairfield (TR P155 L46-47). Josephine referred to Nino’s concessions in her closing submissions, but I do not think the fact there was an Italian community in Fairfield necessarily makes it likely or even plausible that Alessio went out to Fairfield to engage with that community, absent further evidence of engagement with the wider Italian community.

201. For those reasons, I reject Maria’s contention that the use of Mr Valenti, rather than Mr McBride, for the 2012 Will constitutes a suspicious circumstance.

Age of the deceased at the time of the 2012 Will

202. Maria says the age at which Alessio executed the 2012 Will constituted a suspicious circumstance. She pleads Alessio was “nearly 83 years old” when the 2012 Will was made (SOC [8]) and submitted that the execution of testamentary instruments in 2012 and 2014 (in reference to the 2014 Statutory Declaration) would have been “physically and mentally burdensome endeavours” (PWS [49]). I will deal separately below with respect to the circumstances in which the 2014 Statutory Declaration was executed.

203. I do not accept Alessio’s age at the time of the 2012 Will being executed constitutes a suspicious circumstance.

204. This issue can be dealt with shortly. I accept Josephine’s submissions that there was no evidence to suggest that Alessio was mentally frail or even physically frail around the time of the 2012 Will (TR P272 L24-31). The evidence firmly establishes that even when he was 82, Alessio was not a physically or mentally frail man around the time when the 2012 Will would have been prepared and executed. As I have already recounted, the evidence shows Alessio was driving himself around, including to Hurstville, seeing friends, and otherwise leaving the house to do things. Nothing in the evidence could lead the Court to conclude that at the time of the 2012 Will, Alessio would have had significant mental or physical difficulty impacting his ability to give instructions for, understand or execute a new will.

Lack of English proficiency

205. Maria says there is a suspicious circumstance arising from the 2012 Will being in English not Italian. At SOC [10]-[11], Maria pleads that Alessio’s native tongue was Italian (which was admitted), that he could speak “limited English reasonably well but not perfect”, and that the 2012 Will “does not contain a clause that certifies that it was translated to or explained to the Deceased in Italian before he executed it”.

206. At PWS [51], which comprises the sum-total submissions on this topic, Maria submitted the following (footnotes in round brackets):

“The Deceased supposedly gave legal instructions in English despite his poor grasp of the language. English was his second language and exclusively spoke Italian at home with his family. (See medical [sic]) Those who spoke to the Deceased in English provide evidence intimate his limited English proficiency. (Affidavit of Huseyin Dervis)”

207. I accept Josephine’s submissions that there is no suspicious circumstance arising from the language of the will and reject Maria’s submissions to the contrary.

208. It can be accepted (and Josephine has already admitted in her pleadings) that Alessio’s first language was Italian.

209. However, the evidentiary basis for the submission in PWS [51] has not been established. Maria put on no evidence Alessio gave instructions in English, rather than Italian.

210. Josephine submitted that I could take judicial notice that Mr Valenti both has an Italian name and gave evidence with a slight Italian accent. Josephine also submitted that Maria did not cross-examine Mr Valenti on whether he took instructions from Italian clients in English or Italian, or whether Mr Valenti spoke Italian, which was evidence Mr Valenti could give even if he did not remember much of Alessio. I infer the purpose of these submissions was to say that it was at least possible, if not likely, instructions were in fact given in Italian given this was a solicitor who might have been able to receive instructions in Italian. However, I do not need to address these submissions when there is simply no evidence to address what language the instructions were given in. As Josephine submitted, Alessio may have spoken Italian or he may have spoken English, and Maria had the onus (TR P274 L1-5).

211. Additionally, the very will which Maria seeks to propound, the 2003 Will, as well as the 1988 Will on which Maria relied for other arguments, both suffer from the same shortcomings that Maria says affects the 2012 Will. There is no clause in either of the earlier wills saying they were translated. I accept Josephine’s submissions that this means it is not a suspicious circumstance the 2012 Will is missing a clause certifying it was translated (TR P274 L7-10). And as Josephine pointed out, there is no evidence from Mr McBride that he spoke Italian or needed to use an Italian translator with Alessio, noting he did swear an affidavit in support of Maria’s case.

212. The 1988 Will and the 2003 Will were both drafted by Mr McBride and were drafted in English. The trust deeds for the 1978 Trust (prepared by “McBride & Company”, which I infer included Peter McBride) and the Puopolo Family Trust (prepared by McBride, Harle & Company**,** the firm also named in the 1988 Will) were also in English. In relation to the latter trust deed, Alessio’s signature was witnessed by Peter McBride. The transfer forms for 55 Axxx Street, 13 Axxx Street, 91 Rxxx Street, which were in evidence were signed by “P McBride” as solicitor for the transferee on each occasion (noting that Alessio was the driving force behind these property transfers even when the transferee was not him personally). It is sensible to conclude that “P McBride” is a reference to Peter McBride. Those forms were in English.

213. The evidence firmly establishes that over a long period of time Mr McBride was Alessio’s solicitor, a fact Maria also relies on. Mr McBride also either prepared legal documents for Alessio in English, or would have advised on or sought instructions in relation to documents in English (the property transfer forms), and no issues have been raised as to Alessio’s understanding. Given there is no evidence Mr McBride needed to either engage a translator for Alessio nor spoke a language other than English to Alessio, I am prepared to draw the inference that Alessio primarily dealt with Mr McBride in English. That being the case, it is then not clear why in 2012, suddenly, Alessio would be unable to engage with a new solicitor in English.

214. There is of course also the other evidence to which Josephine pointed me which shows Alessio spoke English well enough such that the Court need not be suspicious of the fact the 2012 Will is in English. Josephine herself gave evidence under cross-examination that she would speak both Italian and English with her father, noting English was Josephine’s predominant language, and that he understood both languages (TR P201 L24-P202 L3). Josephine also wished to highlight that Mr and Mrs Kikiras as well as Mr Dervis were not Italians and spoke in English. I am not sure I can be satisfied as a matter of judicial notice that these people are not Italians, nor that they did not speak Italian, though Mr Kikiras gave evidence that his “formal name” was Greek (TR P240 L9). Mr Dervis gave direct evidence that he spoke to Alessio in English. Considering how frequently Mr Dervis and Alessio spoke, this evidence at least satisfies me Alessio could speak and understand English.

215. I also note that even the mortgages for 8/9 Rxxx Street and 79 Rxxx Street were signed personally by Alessio, and those documents were also in English, and there is no suggestion Alessio did not understand these documents, though Josephine conversely did not make a point out of this.

216. Maria’s affidavit evidence was that while her father could communicate effectively in English, he would often ask her sister or her for help in “complicated things like legal matters, tax/accountancy issues and technical matters”. She also says that as Alessio became older, she noticed that more time had to be taken to explain things to him, for example he might request help in reading and explaining in Italian the contents and meaning of letters from a government department or other correspondence which was in English. The only evidence that the sisters provided assistance to Alessio in relation to legal or other matters are Maria’s assertions to this effect. While Maria was not challenged on it, I am doubtful this evidence is accurate given the lengthy history of dealings undertaken by Alessio in which he had a legal adviser who did not apparently speak Italian.

217. But additionally, that very evidence is undercut by other evidence. Maria says that she was unaware of the wills made in 1988 and 2003. There is no contention that the earlier two wills were made in suspicious circumstances and, as mentioned earlier, there is no indication that those wills were translated for Alessio. If those earlier wills could be prepared without Maria’s or Josephine’s assistance (Josephine also said she was not aware of either of the earlier two wills: TR P213 L42-47), I am not satisfied he would have needed assistance from his daughters for the 2012 Will.

218. Furthermore, it is not clear how Maria had the knowledge to support the evidence she gave. On her own evidence, she had moved out of home since she was 17, and she was not necessarily able to visit as often due to her own commitments to her household. It seems unlikely that Maria would consistently have had the opportunity to help Alessio with his legal and accounting matters as she says, nor that she would have been there to witness Josephine being asked. Meanwhile, Josephine lived with Alessio and Domenica until 1996 and was in the home for significant periods of time from about 2009 onwards. Josephine’s evidence in reply was that her father attended to his own tax, accounting and legal matters with little to no assistance from Maria and herself. That evidence appears to be more congruent with the history of Alessio’s dealings recounted earlier, including the preparation of the 1988 Will and the 2003 Will. In this instance, I prefer Josephine’s evidence that Alessio did not ask his daughters for help in legal affairs, which appear to have principally concerned documents prepared in English. This provides a further warrant for rejecting Maria’s contention that there is a suspicious circumstance in the 2012 Will being prepared in English.

219. For those reasons, there is no suspicious circumstance in the 2012 Will being in English and lacking a translation clause. I also am not satisfied that Alessio gave his instructions in English, to the extent that was relied on as a suspicious circumstance.

Inconsistency of names

220. Maria submits there is a suspicious circumstance in the 2012 Will using “Josephine” (PWS [56]). At SOC [16], Maria pleads that Alessio and his wife always called Josephine “Giuseppina” or “Pina”.

221. The evidence firmly establishes that “Pina” was a common nickname used by Alessio. So much can be accepted.

222. In written submissions, Maria points to Ms Belinha’s affidavit evidence of her recollections that Alessio and Domenica would refer to Josephine as “Josephine” rather than “Pina” or “Giuseppina” prior to her change of name, and says that such evidence “makes no sense and is impossible” and should excite suspicion (PWS [55]). I accept it is unlikely Josephine would have been called Josephine by her parents, but I suspect that references to “Josephine” in Ms Belinha’s affidavit evidence might have been an error. In cross-examination, Ms Belinha without prompting referred to Josephine as “Pina” and did not dissent from Maria’s counsel using that name (see, for instance, TR P243 L29-39, P243 L48-50, P244-245). She also readily gave evidence that she “always called” Josephine “Pina” and that Domenica and Alessio would use “Giuseppina” or “Pina” in the home (TR P248 L8-28). Absent some suggestion Ms Belinha has sought to deliberately mislead the Court, and I certainly do not think she was doing anything other than answering questions honestly, I think the erroneous references to “Josephine” when recounting her recollections of what Alessio and Domenica said are probably referable to errors.

223. As to the substance of the contention, I do not accept Maria’s contention the use of Josephine in a testamentary context was suspicious. Josephine had legally changed her name and had that name change formally registered. The name in the 2012 Will is Josephine’s legal name.

224. In her closing submissions, Josephine submitted that while there was no evidence Alessio was told about the name change, it was never put to Josephine that she might not have told her father about her name change (TR P277 L2-15). She also submitted that Alessio may have known that when one does a formal document, you call someone by their proper name and not by their nickname (TR P277 L21-26).

225. I accept that absent it being put to her, I think it would be unsafe to draw an inference adverse to Josephine that she did not tell her father that her name was changed, though there is no evidence of when she might have told him this. However, in circumstances where the 2012 Will was prepared by a solicitor, it is not inconceivable that that solicitor may have been able to procure information confirming a change of name, but that is speculation.

226. The onus was on Maria to show why the use of Josephine in the 2012 Will was a suspicious circumstance. I am not satisfied she has discharged her onus in respect of this circumstance.

Other circumstances relating to the execution of the 2014 Statutory Declaration

227. The remaining suspicious circumstances alleged by Maria which remain to be addressed all relate to the preparation of the 2014 Statutory Declaration. I reject Maria’s case that the circumstances alleged are suspicious.

228. I start by observing that none of these suspicious circumstances were pleaded by Maria in the SOC.

229. Some of the alleged suspicious circumstances can be dealt with quickly, as few submissions were made on them or because they overlap substantially with a similar issue raised in relation to the 2012 Will.

230. Maria submits it was suspicious that a new solicitor, Mr Daley of Colin Daley Quinn was engaged in relation to the 2014 Statutory Declaration (PWS [44]). Maria gave no reasons why this switch in solicitors should be viewed as suspicious. In the context of my earlier finding that it was not suspicious to not have used Mr McBride’s services to prepare the 2012 Will, it could not be any more suspicious to not use him again to prepare the 2014 Statutory Declaration. I also do not consider it suspicious that Alessio did not retain Mr Valenti in relation to the 2014 Statutory Declaration. There is nothing inherently suspicious about changing solicitors and Maria did not make submissions suggesting that is the case. And unlike Alessio’s relationship with Mr McBride, Alessio did not on the evidence before me appear to have a particularly long relationship with Mr Valenti. I reject that this is a suspicious circumstance.

231. She also appears to submit that it is suspicious the firm Colin Daley Quinn was retained when that practice, located in Kogarah, was in a less convenient location compared to Mr McBride’s practice (PWS [45]-[47]). I again do not accept this is a suspicious circumstance. This second submission of Maria’s is slightly confusing: at PWS [45] Maria says the offices of Colin Daley Quinn were 22 kilometres away from Alessio’s home, but at PWS [46] Maria then submits it was suspicious for Alessio to drive 22 kilometres to Fairfield. I have no evidence to find as a fact what the distance was between 79 Rxxx Street and the office of Colin Daley Quinn and, already mentioned, I do not know how far Mr McBride’s office was from 79 Rxxx Street, such that I cannot engage in the comparative exercise Maria asks the Court to undertake. Given I cannot be satisfied of the facts underlying the alleged suspicious circumstance here, I am already inclined to reject Maria’s submission that using Colin Daley Quinn for the 2014 Statutory Declaration was suspicious.

232. To the extent Maria’s case is that it was suspicious for Alessio to use a solicitor in Kogarah rather than Mr McBride, I am satisfied that even around the time of the 2014 Statutory Declaration, Alessio was capable of taking himself to the firm’s offices, such that it is not suspicious a firm other than Mr McBride’s was used in relation to the 2014 Statutory Declaration. At least some of the evidence on this point has already been referred to at [193] above. I again acknowledge that witnesses did not always specify what time period their comments about Alessio’s driving were related to, though Maria’s evidence about driving to the cemetery to see Domenica is at least evidence of Alessio’s driving post-dating Domenica’s death in 2014. I again consider that to the extent the witnesses are giving evidence of Alessio’s driving ability after the time of the 2014 Statutory Declaration (around August 2014 when instructions were first given, and December 2014 when the document was finalised), then that evidence also goes to show Alessio was capable of driving to Colin Daley Quinn’s offices in Kogarah in the period of about August to December 2014 for the same reasons I gave in [193] above. I also am not satisfied that Alessio had a restricted driving licence in 2014, and nor is it clear, if I am wrong, what those restrictions might have been. The evidence on this issue has already been set out at [194] above: none of the evidence differentiated between 2012 and 2014 and so no further comment needs to made, except to repeat the point that Maria has not put before the Court sufficient evidence to prove Alessio had a restricted drivers licence such that he could not have lawfully driven to the office of Colin Daley Quinn.

233. Maria then submits that it was suspicious Josephine’s husband, John, was present at the office of Colin Daley Quinn when the 2014 Statutory Declaration was executed, given Josephine was to become the sole beneficiary of Alessio’s estate under the 2012 Will (PWS [52]-[53]). No evidence is cited in Maria’s submissions to substantiate that John ever accompanied Alessio when Alessio went to the office of Colin Daley Quinn. Mr Daley’s evidence was that he only would have met Alessio, and that his usual practice was that appointments relating to wills or documents recording testamentary intentions would take place with the client only, and that no other person besides Mr Daley or a solicitor of his office would be present during a client conference. Even if I should disregard or give little weight to Mr Daley’s affidavit, as Maria submitted I should, she took me to no evidence to substantiate a reasonably serious allegation in the circumstances. In closing submissions, when I asked counsel for Maria for evidence to substantiate this submission, the response I received was that it was “contained in the affidavit of Tarquinio”, followed by “[i]t’s contained in one of the affidavits”, followed by an indication that a reference to the Court Book would be given to the Court (TR P266 L9-20). No further reference was given.

234. Josephine was asked whether she knew her husband was at the office of Colin Daley Quinn when the 2014 Statutory Declaration was executed. All Josephine said she knew was that her father had told her he “was fixing up papers for 55 Axxx Street”, though it seems she accepted it was possible John was with Alessio when the statutory declaration was executed (TR P225 L14-36). The fact Josephine said it may have been “possible” John was with Alessio when the 2014 Statutory Declaration was signed takes the matter no further in Maria’s favour. John was not cross-examined, which also makes me cautious in finding adversely to him as no questions were put to him for his comment in relation to this allegation.

235. There is no evidence before the Court to enable it to conclude John was with Alessio when the 2014 Statutory Declaration was executed. The factual basis for the alleged suspicious circumstance has not been made out.

236. The final category of suspicious circumstances which arise from the 2014 Statutory Declaration relate to Alessio’s age and disposition at the time the document was executed, as well as the time it was executed. Maria points to several factors which suggest the document was executed in suspicious circumstances, including that:

237. the document was executed 30 months after the 2012 Will (PWS [48]);

238. the document was executed when Alessio was 85 years old (I note Maria’s submissions said he was “84”) (PWS [49]), which exacerbates the suspicious circumstance of the delay in executing the 2014 Statutory Declaration (TR P26 L20-25); and

239. the 2014 Statutory Declaration was executed soon after Domenica’s death, following which Alessio was “grief-stricken” and very depressed such that he was in no condition to explain the reasons for making his will (PWS [50], TR P269 L45-50).

240. The first two facts, Alessio’s age at the time of the execution of the 2014 Statutory Declaration and the time between the execution of the 2014 Statutory Declaration and the 2012 Will, are accurate. It is also fair to say Alessio was grieving and significantly so following Domenica’s death: Josephine herself gave evidence that Alessio had “lost his zest” after Domenica’s death (TR P196 L15, P224 L42-45), and that he was suffering “extreme depression” due to Domenica’s passing. Ms Kikiras also gave evidence Alessio would confide in her about his sadness following Domenica’s death.

241. Josephine points out, however, that notwithstanding the grief Alessio may have been experiencing after Domenica’s death, the initial instructions to Mr Daley were given in August 2014 which was before Domenica’s death (TR P278 L15-23). There is nothing on the evidence before me to suggest Alessio’s great sadness commenced prior to the time Domenica had died. Given the instructions which underlay the 2014 Statutory Declaration were given prior to Domenica’s death, and those instructions were reflected in the final form of the document, I am not satisfied that the grief-stricken disposition of Alessio materially affected the 2014 Statutory Declaration.

242. Additionally, and perhaps more importantly, I am not satisfied that just because Alessio may have been grief-stricken when he executed the 2014 Statutory Declaration (or even perhaps when he first gave instructions, noting the lack of evidence to support this latter possibility), that the document does not reflect the genuine intentions and views of Alessio. Maria did not contend Alessio had no capacity to execute the 2014 Statutory Declaration, as mentioned earlier in these reasons. Absent evidence that the grief he was experiencing may have caused him to sign a document that declared something other than his genuine views at the time of execution, there is nothing inherently suspicious about signing a document when grieving.

243. If one adds Mr Daley’s evidence to the picture, then his evidence further militates against the contention that Alessio’s grief affected the 2014 Statutory Declaration. Mr Daley’s evidence is that in his file notes, he did not record any concerns about Alessio’s capacity or understanding and he recalled Alessio was a “proper dynamo”, in that he was energetic and demonstrative. Mr Daley also said that Alessio recited the contents of the 2012 Will to him, and confirmed his testamentary intentions, and it was Mr Daley who recommended Alessio prepare a statutory declaration setting out the reasons for his will. That evidence in its totality suggests Alessio understood the purpose of the document and what it contained when he gave instructions for its drafting and when he executed it.

244. Nothing about the circumstances surrounding the execution of the 2014 Statutory Declaration raises a suspicion that the 2012 Will was prepared or executed in suspicious circumstances.

Evidence of knowledge and approval

242. I have concluded that there are no suspicious circumstances surrounding the preparation and execution of the 2012 Will. To the extent certain circumstances may be apt to raise a suspicion, in particular the minor inaccuracy in cl 5(i) of the 2012 Will and paragraph 5 of the 2014 Statutory Declaration, those raise a minor suspicion at most.

243. Even if I am wrong in my conclusion there are no suspicious circumstances in relation to the 2012 Will, and to the extent it is necessary given there may be some slightly suspicious circumstances, I also consider that Josephine has discharged her onus to prove that Alessio knew and approved of the 2012 Will. There is some difficulty in engaging in this exercise in the alternative given the strength of the evidence Josephine is required to put before the Court to prove knowledge and approval is dependent on what suspicious circumstances are made out. However, for the reasons below, I consider that Josephine has convincingly proven knowledge and approval.

244. Josephine has put before the Court evidence to show that Alessio repeatedly affirmed what the 2012 Will carries out, namely the giving of 79 Rxxx Street to Josephine alone. I agree with her submission that there is “very clear evidence that [Alessio] knew and approved of the will (TR P279 L3-4).

245. The first is the 2014 Statutory Declaration itself. I have accepted that document stands as a true declaration by Alessio, and that document reflects the substantive effect of the 2012 Will and, at paragraph 3, includes an express statement of Alessio’s intention that 79 Rxxx Street go to Josephine upon his death. I also have regard to Josephine’s point that the statutory declaration is also evidence that “two years later” Alessio was “able to recall the will, recall what its contents were, and recall what his reasons were” (TR P279 L9-10).

246. The second piece of evidence is that he told Josephine of his intention to give 79 Rxxx Street to her in 2014. In cross-examination, Josephine said that Alessio had mentioned that he was going to give Josephine 79 Rxxx Street “not long before” she and her family moved into that property (TR P194 L31-38, TR P205 L16-18). She said that Alessio did not show her the 2012 Will, but had mentioned that Josephine would inherit his estate or what was left of it (TR P205 L29-33, P206 L6-8). Josephine gave further evidence that when she asked Alessio why he had done that, Alessio was “adamant this house [79 Rxxx Street] was to go, really, to my [Josephine’s] children, to stay in the family”, and that he had mentioned that he had “asked Maria to do a few things, which she didn’t do” (TR P206 L42-49). I accept Josephine’s evidence that Alessio told her what Josephine says he told her. This provides a further example of Alessio affirming his testamentary intentions as carried out by the 2012 Will, as well as his reasons for distributing his estate (principally, 79 Rxxx Street) to Josephine.

247. Finally, Josephine pointed me to the evidence from persons other than those in the family:

248. Mr Kikiras gave oral evidence that he was told by Alessio that he was giving “Axxx Street” to Josephine, to “square it all up” (TR P242 L17-22). In his affidavit evidence, he gave evidence of numerous instances that Alessio had said to him he wanted to leave “this house” (79 Rxxx Street) to Josephine, and of one time Alessio had mentioned having a will in place.

249. Ms Kikiras gave evidence of her recollection of a conversation where Alessio said that Josephine would “get this house”, in the context of visits to Josephine and her family that were occurring at 79 Rxxx Street given Josephine’s regular attendance at that property. In cross-examination, Ms Kikiras gave further evidence that Alessio had said he would give “the Axxx Street house” to Josephine (TR P238 L25-32).

250. Ms Belinha gave evidence that Alessio had said to her, across many conversations, that he wanted “this house” to stay with Josephine, as well as evidence of specific occasions where Alessio said he wanted to update his will. In cross-examination, Ms Belinha gave evidence of Alessio talking to her about his will on one occasion, after Domenica had died saying that he would “fix everything up”, which she understood to be in reference to 79 Rxxx Street (TR P246 L9-28).

251. Mr Dervis gave evidence that he asked Alessio “frequently” whether he would sell 79 Rxxx Street. He gave evidence of conversations he had with Alessio where, in response to questions about whether Alessio would sell 79 Rxxx Street, Alessio would say the house is for Josephine. Mr Dervis gave further evidence in cross-examination that Alessio had said “this house” (being an evident reference to 79 Rxxx Street) belonged to Josephine “lots of time[s]” (TR P232 L21-21).

252. Ms Arena gave evidence that when she visited Alessio in Oatley (and so, at 79 Rxxx Street) after Domenica had passed away, he would say across many conversations that he wanted “this house” to go to Josephine, and that “this house” would go to Josephine when he dies.

I note that while in my summary of the evidence, I have said the witnesses said the house would be given to Josephine, the actual recollections of the witnesses contained in the evidence consistently recollect Alessio using “Pina”, which is, of course, consistent with the name he used for Josephine.

248. That unchallenged evidence, which I accept, shows Alessio repeatedly affirming to numerous people across numerous occasions his desire to give Josephine 79 Rxxx Street, which accurately reflects what is carried out by the 2012 Will. The repeated affirmations to others of his testamentary intentions across what appears to be many occasions, particularly well after the 2012 Will was executed would seem to be strong enough evidence by itself to prove Alessio knew and approved of the 2012 Will. Once that evidence is considered together with the 2014 Statutory Declaration and what Alessio said to Josephine about his testamentary intentions, I am satisfied that Alessio did know and approve of the 2012 Will. Josephine has discharged her onus of proof.

Conclusion on Issue 1

249. Maria alleged there were a series of suspicious circumstances surrounding the preparation and execution of the 2012 Will. I have found that none of the circumstances adverted to by Maria were suspicious. At worst, the minor inaccuracies in the 2012 Will and the 2014 Statutory Declaration were slightly suspicious. I have also accepted that Josephine was able to prove that Alessio did know and approve of the contents of the 2012 Will given he consistently reaffirmed the principal disposition of property in that will which was changed from the 2003 Will, namely that Josephine was to receive 79 Rxxx Street, as well as the residual estate, outright and for herself.

250. Maria’s challenge to the 2012 Will fails.

251. Josephine put on a cross-claim seeking a grant of probate in solemn form. I was not addressed by either party on this but I note that Josephine did submit in writing that a grant of probate in solemn form ought to follow from the Court being able to satisfy itself Alessio knew and approved of his will (DWS [30]). In this case, there has been a full contest as to the validity of the 2012 Will. I am satisfied, for the reasons stated above, Alessio knew and approved of the 2012 Will. Maria and Josephine, the only beneficiaries under the 2012 and the 2003 Will, given Domenica has died, participated in the proceedings. There appears to be no one else who would be affected by an order to grant Josephine probate in solemn form who the Court needs to hear but has not heard from. Further, Josephine’s evidence is that Josephine and Maria are the only persons eligible in relation to s 57 of the Succession Act (that is, eligible to make a family provision claim), which is evidence that was not challenged by Maria, which further confirms there is no one else who may be affected by a grant of probate in solemn form. I am therefore satisfied that all persons who may be affected by a grant have been heard. I consider it is appropriate to grant Josephine probate in Alessio’s estate in solemn form (having regard to what was said by Lindsay J in Estate Kouvakas*; Lucas v* Konakas [2014] NSWSC 786 at [239]-[240], [248]-[249]).

Issue 2: Maria’s family provision claim

252. In the alternative to her claims in relation to impugning the 2012 Will, Maria seeks a family provision order under the Succession Act.

253. The entirety of the submissions made by Maria in support of her family provision claim are contained at PWS [72]-[79]. It is convenient to set them out, in full, below (ellipsis as per original):

“72. In the alternative, the Plaintiff makes application under the Succession Act. She seeks provision in the amount of what she would have received under the 2003 Will, i.e. a half-share of the value of 79 Rxxx St, Oatley.

73. The grant of provision is based upon essentially the promises made by the Deceased to provide for the Applicant and her sisters.

74. The Applicant is the eldest daughter of the Deceased and so no issue arises in relation to eligibility.

75. There were inter vivos gifts of realty to the Applicant during the lifetime of the deceased, as outlined in Annexure A. Apart from her spouse, there is little or no property in the Applicant’s name.

76. And full disclosure of the Applicant’s retired status and expenses and assets are known amongst the parties.

77. The Applicant is 69 years old and retired from the workforce and has a life expectancy of at least 25 years.

78. It is submitted that the claim is made on the basis of ‘[…] adequate provision for proper maintenance [...]’,as the words of section 60 [sic] of the Succession Act provide.

79. It should be noted that the moral duty of a parent like the Deceased may extend beyond just covering current financial needs as disclosed, to providing a ‘buffer’ for life contingencies, as the Deceased was accustomed to do in the decades he before death.”

I note there was no Annexure A to Maria’s submissions as PWS [75] would suggest.

254. No further oral submissions were made by Maria in closing, nor was any opportunity sought to put on further submissions concerning the family provision claim. When I asked counsel for Maria about his submissions on the family provision claim, her counsel simply responded that those submissions were “at the very end of the bundle” (TR 281 L26).

255. The family provision claim was maintained by Maria in the alternative and so I will determine it. However, given that not many submissions were made on it by Maria, I consider I am required to deal with the issue in more of a summary fashion than I might otherwise have. In this, I am not intending to do injustice to the detailed submissions and extensive cross-examination undertaken on behalf of Josephine in relation to the family provision claim.

256. In Pilatos v Whillier [2025] NSWSC 1221 at [92]-[99], I summarised the principles governing family provision applications generally. At [100], I also summarised the principles regarding family provision and adult children. I will apply those same principles here without reproducing those paragraphs in this judgment.

257. I have determined Maria’s claim for a family a provision order should be dismissed.

258. Maria is an eligible person, being a child of Alessio (s 57(1)(c) of the Succession Act) and the application was made within the time specified in s 58(2) of the Succession Act.

259. The only property in Alessio’s estate, excluding 55 Axxx Street which is accepted to be going to Josephine and is subject to a trust, is 79 Rxxx Street which according to a valuation put on by Josephine is valued between $3 million and $3.2 million.

260. Maria did not receive any provision under the 2012 Will. Despite that, I am not satisfied there has not been adequate provision for the proper maintenance, education or advancement in Maria’s life by Alessio under the 2012 Will, per s 59(1)(c) of the Succession Act.

261. It will immediately be noted that Maria made no submissions justifying why inadequate provision was made for her under the 2012 Will.

262. I accept Josephine’s submission that Maria has no financial need for the provision sought. Maria herself in cross-examination admitted she did not want more money out of the estate, but that she wanted what she believed her father said (see TR P66 L35-P67 L21).

263. Maria submitted that apart from her spouse, there is little or no property in her name. I confess I do not completely understand this submission. Maria’s updating affidavit shows that the real property she personally owns are properties she owns with Nino as joint tenants. Those properties are still in Maria’s name, albeit with another person.

264. In any event, Maria and Nino disclose in their updating affidavits that her and Nino jointly own four properties valued at a total of $7.315 million (each therefore having a collective share of the properties of $3.657 million) which includes 107 Rxxx Street, two other homes self-described as an investment property and a holiday home, and a property in Italy, albeit one that adds little to the value of the couple’s property holdings. Additionally, Maria also has the properties that remain held pursuant to the Puopolo Family Trust, of which Maria retains control, being 91 Rxxx Street and the Hardy Street Property, which are collectively valued at $4.020 million. Nino additionally discloses owning another investment property worth $2.5 million. There is more than $13.8 million in assets owned by Maria and Nino. Maria’s own property holdings, being her half-share in the properties owned jointly with Nino and those held under the Puopolo Family Trust, are currently valued at $7.785 million. On any view, Maria and Nino are wealthy. Josephine also put on her own valuations for some of Maria and Nino’s properties, but I do not think reference needs to be made to those valuations given even Maria and Nino’s own evidence discloses considerable wealth.

265. There are also other assets of both Maria and Nino, including motor vehicles, shares, and money held in superannuation accounts. The value of some of those assets were mentioned in Maria’s first affidavit sworn 4 October 2023 as follows:

266. Funds in a joint bank account of $180,000;

267. Funds in a bank account solely owned by Maria of $50,000;

268. Funds in a bank account solely owned by Nino of $50,000;

269. Funds in a superannuation account solely owned by Maria of $100,000;

270. Funds in a superannuation account solely owned by Nino of $400,000 (I note Josephine put before the Court evidence that the value of this superannuation account has gone up to approximately $447,000, as at 30 June 2025); and

271. Shares valued at a total of $20,000 owned by Nino.

272. Maria and Nino’s updating affidavits did not update the value with current figures for those assets. Much time was spent in cross-examination on the failure by Maria and Nino to further disclose and update their asset position. Maria and Nino both explained that any failures to disclose were not intentional or deliberate but were referable to innocent mistakes or, at worst, negligence. I do accept that Maria and Nino were not trying to deliberately hide their financial position – their candid concessions in cross-examination demonstrated as much.

273. Josephine went as far as submitting that the inadequate disclosure, which also includes failures to properly comply with two notices to produce, provided a basis for the Court to dismiss the claim because the Court would have no idea about the financial circumstances of Maria and Nino including their cash, shares, cars and income (TR P280 L11-24). I do not think I need to go that far. As I recently observed in Gardiner v Wong [2026] NSWSC 421, with reference to the observations of Campbell J in Collings v Vakas [2006] NSWSC 393 at [67] and of Meagher JA (Gleeson and Leeming JJA agreeing) in Blendell v Blendell [2020] NSWCA 154 at [28]-[29]:

274. the Court needs at least a broad outline of a plaintiff’s financial situation, which I do have in this case; but

275. the Court is entitled to draw unfavourable inferences against Maria where there is uncertainty left by imprecise or inaccurate evidence presented to the Court, in that such uncertainty is not ordinarily to be resolved in Maria’s favour given she could have given satisfactory evidence.

276. Taking the value of the other assets to which Maria and Nino have access, as disclosed in Maria’s first affidavit sworn in these proceedings, that is another $800,000 in assets within the couple. This strengthens the conclusion I am already able to reach, namely that Maria and Nino have a significant pool of assets, including liquid assets, from which they can draw and receive income from (be it rental income from their properties, income interest from the funds in the bank accounts, dividends from shares, or payments out from the superannuation accounts).

277. There is also no evidence Maria and Nino have insufficient income. Both Maria and Nino are retired, and both described themselves as a “self-funded retiree” in their updating affidavits. Nino gave further evidence that since as long ago as 2009, Maria and Nino have supported themselves with rental income from the properties they own, as well as payments from Nino’s superannuation account. Their net rental income might be described as modest but there is no suggestion it is more than their expenses. I have no evidence as to the quantum of any payments from Nino’s superannuation accounts.

278. I also accept Josephine’s submissions (TR P280 L26-P281 L4) that, Josephine has a competing moral claim on the estate. I consider it is arguably one that is superior to Maria’s. As recorded earlier in these reasons, and in the evidence, Josephine provided a lot of care and assistance to both Alessio and Domenica, for what appears to be a continuous period starting in about 2009 until Alessio’s death in 2022. This includes both fulfilling home duties, as recorded at various points in these reasons, and helping Alessio socially both in organising outings for him and having her family and children engage with Alessio (TR P220 L9-20). As I said earlier at [181] above, Maria was, comparatively speaking, less involved in Alessio’s life. Josephine also pointed to her financial contributions to Alessio, particularly when she was younger, and needing to give up her directorship of Lymjac in favour of Maria.

279. This is a case where the testator, Alessio, has clearly expressed his testamentary intentions. He has done so in two different documents. In both the 2012 Will and 2014 Statutory Declaration, I consider Alessio has shown he has given express and due consideration as to who should benefit from his estate, and I consider the evidence supports a finding that he was clearly capable of doing so. That reasoning, namely that he should give his estate to Josephine given that, in his estimation, Maria had already been provided for and has sufficient wealth, and Josephine needed to be recognised for her contributions to Alessio’s property portfolio, was consistent with the sentiment he expressed to others. I consider that considerable weight should be given to Alessio’s testamentary intentions as a result (Slack v Rogan [2013] NSWSC 522 at [127]), especially in this case where those testamentary intentions were affirmed many times subsequently.

280. Maria’s moral claim on Alessio’s is largely founded on her assertions that Alessio expressed an intention to treat his daughters equally, rather than on the circumstance of financial need, for example. I accept Alessio did want to treat his daughters equally, but that equality was not simply splitting 79 Rxxx Street, his remaining asset, equally between his daughters. Rather, I consider, based on the statements contained in the 2012 Will and the 2014 Statutory Declaration, as well as his expressed desire to “fix” or “square” things up between Josephine and Maria, Alessio was focused on what might be described as a “global” or “overall” equality between Josephine and Maria in terms of the provision he gave to them both during his entire life.

281. If I am wrong in reaching the conclusion that adequate provision for the proper maintenance, education or advancement in Maria’s life has been given, then I would still not exercise my discretion under s 59(2) of the Succession Act and make an order for family provision in favour of Maria for the same reasons I have just stated. In making my decisions under each of s 59(1)(c) and s 59(2), I have had regard to the evidence therein cited, together with the evidence cited and facts found more broadly in relation to Issue 1 to the extent it is relevant to these determinations pursuant to s 60(2) of the Succession Act. I have particularly had regard to the following matters listed in s 60(2):

282. obligations and responsibilities owed by Alessio to both Maria and Josephine (s 60(2)(a)-(b));

283. the nature and extent of Alessio’s estate (s 60(2)(c));

284. Maria’s own financial circumstances (s 60(2)(d));

285. Nino’s financial circumstances (s 60(2)(e));

286. Maria’s contribution to Alessio’s estate and welfare (s 60(2)(h));

287. the provision made by Alessio to Maria in his life (s 60(2)(i));

288. Alessio’s testamentary intentions (s 60(2)(j));

289. Maria’s conduct (s 60(2)(j)); and

290. Josephine’s conduct (s 60(2)(n)).

291. As Maria’s alternative claim has also failed, the Amended Statement of Claim must be dismissed.

Costs

275. As is uncontroversial, s 98(1) of the Civil Procedure Act 2005 (NSW) gives the Court a broad discretion with respect to costs, though that discretion is to be exercised judicially: Netdeen Pty Ltd t/as GJ Gardner Homes v Lindfield NSW Pty Ltd (No 2) [2025] NSWCA 218 (Stern and Ball JJA, Griffiths AJA); Yu v Cao (2015) 91 NSWLR 190; [2015] NSWCA 276 at [136] (McColl JA, Sackville AJA and Adamson J agreeing).

276. The general rule is that costs follow the event unless it appears to the Court that some other order should be made as to the whole or any part of the costs: Uniform Civil Procedure Rules 2005 (NSW) r 42.1. Whether a costs order departing from the general rule should be made will depend on the circumstances of the case viewed against the wide discretionary powers of the court, which powers should be liberally construed: Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 373 at [8] (Beazley, McColl and Basten JJA); State of New South Wales v Stanley [2007] NSWCA 330 at [18] (Hislop J, Beazley and Tobias JJA agreeing).

277. Josephine has been wholly successful in the proceedings. My preliminary view is that costs should follow the event and Maria should be ordered to pay Josephine’s costs on the ordinary basis.

278. However, I observe that only Josephine made submissions as to costs. Given this, I will not make any costs orders for the moment and I will instead give the parties the opportunity to either agree on the appropriate orders or to otherwise make submissions on costs.

Orders

279. For the reasons set out above, I make the following orders:

280. The Amended Statement of Claim is dismissed.

281. Grant probate with will annexed in the estate of Alessio Puopolo to Josephine Puopolo Passas, in solemn form.

282. Refer the matter to the Registry to complete the grant.

283. Subject to order 5 below, the parties are to provide by email to the Chambers of Bennett J agreed short minutes of order to resolve the issue of costs by 4:00pm on 1 June 2026.

284. If agreement as to costs is unable to be reached:

(a) Any party wishing to make a submission as to the appropriate costs order is to provide brief written submissions not exceeding 5 pages by email to the Chambers of Bennett J and serve them on the opposing side by 4:00pm on 1 June 2026. (b) Any written submissions in reply not exceeding 5 pages on the issue of costs are to be provided by email to the Chambers of Bennett J and served on the opposing side by 4:00pm on 8 June 2026.

6. The issue of costs will be dealt with on the papers.
7. The exhibits are to be returned, and they are to be retained intact by the producing party until the expiry of the time to file an appeal or until any appeal is determined.

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