Dellios v Dellios

Judgment 1HIS HONOUR: These proceedings concern the estate of Paula Dellios who died on 8 May 2008 aged somewhere between 80 and 84. She was born in Macedonia. In these reasons I will call the relevant persons by their first name meaning no disrespect, but to assist with an understanding of the reasons. 2The plaintiff, Chris Dellios, was Paula's brother. He seeks a grant of probate of a will made by her on 6 February 2006. Under that will he would inherit the whole of her estate. The defendant, John Dellios, is a nephew of Paula's. He contends that she lacked testamentary capacity to make the will of 6 February 2006. He seeks a grant of letters of administration on the basis that Paula died intestate. 3Paula made an earlier will on 24 January 2006. Probate is not sought on that document. It is common ground that if Paula lacked capacity to make the will of 6 February 2006, she also did not have capacity to make the earlier will of 24 January 2006. The same issues would arise in relation to both documents. 4Paula was the second child of Zissis and Estonia Dellios. Zissis died in 1964. Estonia died in 1995. They had four children. Paula was the second child. The eldest child was a son called Dimitrios. He died on 15 December 2005. 5Dimitrios had four children living at Paula's death in 2008. They are Marie Kulakovski; Anne Dafo; the defendant John Dellios; and Kathy Gadzev. 6The third child of Zissis and Estonia Dellios was a son referred to in the evidence as both Paul or Peter. He died in 1992 and is survived by two children. If Paula died intestate the persons entitled to her estate on intestacy will be: Chris as to a one-third share; the children of Dimitrios, in equal shares as to another one-third share; and the children of Paul or Peter in equal shares to a one-third share. 7An issue in these proceedings concerns the terms of consent orders made in earlier litigation between Dimitrios and Chris Dellios concerning their mother's estate. John contends that even if the will of 6 February 2006 is valid, nonetheless pursuant to the terms of those consent orders, Chris is required to hold a one-half interest in a property known as Little Ducker Farm, being the interest that Paula is said to have had in that property, on trust for him, I assume, for himself and his siblings. 8John also contends that by reason of those consent orders, if Paula died intestate, he and his siblings are entitled to the share of her estate that would otherwise pass to Chris. I will return to those issues later. 9The estate is a modest one. It was estimated for probate purposes by Chris to be worth approximately $364,000, although John says that it is somewhat more valuable. 10Paula Dellios had a history of mental illness. She emigrated with her mother and Chris to Australia in 1948. They joined Zissis, who had established a farm in the Agnes Banks area, where the family has continued to live. On 27 February 1950, Paula was admitted to a mental hospital. According to the records, she was admitted to Callan Park Mental Institution at Rozelle. 11At some point, she moved to a hospital in Parramatta. She was diagnosed with schizophrenia. Initially, the prognosis was said to be poor. 12It is not entirely clear how long she remained at either institution after her initial admission in 1950. There is some evidence that she was readmitted in 1954. The evidence is unclear as to whether she resided in total for a period of 13 or 17 years in such a facility. What is clear is that she was not discharged until 1967. She was discharged into the care of her mother, her father having died in 1964. 13All of the family members relevant to the present proceedings were engaged in farming businesses in close proximity to each other, and for periods, in farming business carried on jointly. Paula lived with her mother in a house known as Little Ducker. At different times, other family members had also lived in that house. Chris and his wife Athena lived in that house with Paula until they moved in about 1975 into a house of their own. Paula and Estonia continued to life there until Estonia died in 1995. 14After Estonia's death, Paula remained in occupation of the property until she died in 2008. Athena and Chris were frequent visitors of Paula. It is at least clear that they assisted her with her shopping. Chris looked after the finances of the property. 15I am satisfied that Paula needed assistance for cooking, washing and personal hygiene. In an affidavit sworn on 12 April 2000, Chris deposed that Paula was in poor health, and that Athena looked after her most of the time, bought food for her, did her washing, and cleaned the house for her. He deposed that Paula was quite disabled and could not do much for herself, and that she received a social security benefit which was spent on caring for her. 16From July 1980 Paula's general practitioner was a Dr Kaung Y Wu. He said that Paula was mentally retarded, to use his words. 17A few months after Paula's death, on 4 August 2008 Dr Wu provided a letter addressed "To whom it may concern". I infer that it was provided at the request of one of the relatives, although Dr Wu could not recall who had made the request. 18In that letter, Dr Wu said that Paula "suffered from hypertension, O/A [osteo-arthritis] knees and mentally retarded", then continued: "She was treated with Aldomet tablet 25mg tds, Panamax tablet 2prn, and Stelazine tablet 2mg nocte. ... In my opinion her mental retardation had a great affect on her dealing with any documentation or to execute any legal matters which could not be understandable by communication or writing." 19I infer Dr Wu's first language is not English. What he intended to convey, I think, was that in his opinion, due to mental retardation, Paula would not be able to understand legal communications, particularly communications in writing. 20In a later report of 5 August 2010, he said she was: "mentally retarded with poor communicability and poor understanding of the English language. ... From my opinion, I do not think [she] could understand the nature of the will and to extent [sic] of the property as her knowledge and english language was [sic] so poor to understand any documentation by communication or writing." 21Dr Wu does not speak Macedonian, and although Chris said that Paula spoke reasonable English, there is other evidence, which I prefer, that her English was poor. When asked to identify what observations led him to conclude that Paula was mentally retarded, Dr Wu referred in particular to what he said was her inability to make a sentence. He said that she could not give a history and could not remember anything. 22He was asked whether he was saying that she could not speak Macedonian to other members of her family who could, and said "Maybe a little, but not much. A lot of stuttering, and couldn't make any sentence properly." 23He said that when he dealt with her, she was monosyllabic, although she would ring to make a call so that he would make a home visit. She confined herself to saying "Paula, Paula," from which he understood that he was to make such a visit. 24He also based his opinion upon his observations as to her living conditions and living skills, including personal hygiene, the cleanliness of the house in which she lived, and food preparation, although I do not think the evidence about the latter matter took the conclusion to which he came any further. 25The fact that Dr Wu could not speak Macedonian is a reason for being cautious before accepting his opinion of mental retardation which was largely, although not wholly, based upon his perception of Paula's inability to communicate with him. However, there is corroboration of those difficulties. 26One of Paula's nieces, Marie Kulakovski, gave evidence that she could never have a proper conversation with her aunt, and that the conversation would not go beyond Paula saying to her, words to the effect "How are you?", or "How is your mum? How is Jim?" (Dimitrios was also called Jim.) 27I accept that evidence. Where there is a conflict between the evidence of Marie Kulakovski and either Chris or Athena Dellios, I prefer Marie Kulakovski's evidence. I will give reasons later as to why I do not find either Athena or Chris Dellios' evidence to be reliable. 28A single expert was appointed to give evidence as to testamentary capacity. Professor Frederick Ehrlich provided a report to the court. He had not seen Paula, but expressed opinions as to her capacity on the basis of the documents provided to him, including the medical notes of Dr Wu, Dr Wu's reports, affidavits in these proceedings, and notes of a community nurse from the Hawkesbury District Health Service prepared in July 2000. 29Professor Ehrlich accepted that the mere fact that Paula suffered from schizophrenia was not itself a sufficient reason to conclude that she lacked capacity to make a will. She was treated for that condition by using the drug Stelazine. Dr Wu and Professor Ehrlich said that that drug should not itself have affected her cognitive capacity. 30Professor Ehrlich concluded that, at the time of executing her will, Paula was suffering a mental illness or disease that affected her mental state. After referring to her condition of schizophrenia, he observed that there had been evidence in a number of the documents that showed that her behaviour continued to be inappropriate, at times grossly so, and he said that the diagnosis should be schizophrenia "possibly with a superimposed cognitive decline". 31He noted that when Paula lived alone, she was clearly unable to care for herself, and inferred from the documents with which he was provided that she was living in what he called squalor, and had been referred to what he called protective institutionalisation. This was a reference to the report provided by the community nurse in 2000, where the nurse was of the opinion that Paula was suffering from neglect and possible elder abuse. Arrangements were considered for her to move. It is clear Paula would have resisted any such move. From the time her mother died in 1995, Paula refused to have other members of the family visit, save for Chris and Athena, and on occasion, Marie. 32Professor Ehrlich concluded that it was more likely than not that when she executed her will, Paula was not able to comprehend and appreciate the claims to which she ought to give effect. He said that she might not have had the capacity to deal with any influences or pressures that might have been applied at that time, and said it was unlikely that she had such capacity at any time in her life. I think this evidence is of some weight, although not as of much assistance as the evidence of Paula's treating doctor, or indeed that of lay witnesses who observed her behaviour. 33Professor Ehrlich also said that in the 1950s and 1960s a patient would be more readily admitted to a psychiatric or mental health institution than would be the case today. Nonetheless, there is no doubt that Paula did suffer from mental illness and there is no doubt that she suffered from schizophrenia. I say that notwithstanding the evidence of Chris and Athena Dellios that Paula did not suffer from that condition, although was depressed from time to time. That evidence is clearly incorrect. 34The report of the community nurse upon which Professor Ehrlich placed some reliance in reaching his conclusion was prepared in July 2000. This was at a time when Athena had travelled overseas. The Hawkesbury District Health Service was contacted by Marie who expressed concern about Paula's living conditions and nutrition. The contemporaneous report of the community nurse supports Professor Ehrlich's description that Paula was then living in conditions that could be described as "squalor". It is unnecessary to elaborate on the detail. 35The nurse also observed that Paula's clothes were unclean and extremely shabby and gave reasons for concern about her nutrition. Her visit was cut short by the arrival of Chris who ordered Marie and the nurse to leave the house and threatened them. 36The nurse's report records that she rang Dr Wu who stated that Paula had not been seen by him for two to three months (a fact which is consistent with his notes) and that he himself suspected neglect or abuse of some sort. I think this evidence does substantially corroborate Dr Wu and Professor Ehrlich's views as to the inability of Paula properly to care for herself which they regard as relevant to an assessment of her cognitive capacity. 37John Dellios, Anne Dafo and Marie Kulakovski also give evidence that corroborates that conclusion, that is to say, that Paula was not able properly to care for herself. By way of example, Anne Dafo and Marie Kulakovski give evidence about her inability properly to do simple chores such as washing clothes and her inability to maintain reasonable standards of personal hygiene. 38These witnesses also give evidence of aspects of schizophrenia concerning Paula's facial expressions, but as there is no real doubt that she suffered from that condition, I need not dwell on that evidence. 39John Dellios gave evidence, which is not challenged, that when his grandmother, Paula's mother, became ill in 1995 she had to be taken to hospital. He called an ambulance and she was taken to hospital where she died the following day or thereabouts. Some time after this, Paula said to John that he had sent her there to die and if he had not sent her she would not have died. Paula said that to John repeatedly and became aggressive. I am satisfied that this reaction was delusional. However, this occurred in 1995 and John had no further contact with Paula after that time. 40Further evidence as to Paula's lack of capacity is found in another affidavit that Chris Dellios swore in earlier proceedings. On 12 April 2000 he swore that "in my opinion Paula Dellios is a disabled person because she is mentally retarded". 41Chris Dellios was cross-examined, so far as he could be, on the affidavits he had sworn in 2000 concerning Paula's condition. He gave numerous unresponsive or plainly wrong answers. For example, he denied that he had been the executor of his mother's estate, and whilst initially accepting that the signature on one of the affidavits was his, when the cross-examination moved to a point where he could see he could be in difficulty, he denied making the affidavits. I am satisfied that his avoidance of answering questions was deliberate and not due either to difficulties of language or a lack of sophistication. I infer no truthful and responsive answer to a question which sought to elicit what he was referring to when, in 2000, he described his sister as being mentally retarded, would have assisted his case. 42Athena Dellios gave evidence as to Paula's ability to care for herself which suggested that Paula was able to function better than I would otherwise infer from the evidence of Paula's nephews or nieces, or Dr Wu or the notes of the community nurse. However, for reasons which follow, I do not consider her to be a reliable witness either. 43Against this background the evidence as to the instructions given for the will in 2006 becomes highly important in an assessment of Paula's testamentary capacity. Both wills, prepared in 2006, were prepared by a solicitor, Mr John Colin Bennett, who is a solicitor now of almost 40 years' standing. 44The duties of a solicitor, when asked to prepare a will for a person in circumstances similar to those of Paula, are not in doubt. In Pates v Craig and Anor; In the Estate of Cole (Supreme Court of New South Wales, Santow J, 28 August 1995, unreported BC9505250) Santow J referred to the potential for there being a conflict of interest between the interests of an intended principal beneficiary seeking to procure a will in his or her favour and the interests of the testator. His Honour said that: "The legal practitioner should take such steps as are reasonably practicable to enable that practitioner to give proper consideration to any matters going to the validity of the proposed will and then should advise and act in conformity with that consideration. Such a conflict will especially arise where there is reason to fear lack of testamentary capacity on the part of the testator by reasons such as fragility, illness or advanced age... ... There is an additional consideration, not dependent of the question of conflict of interest. That is, the duty of the solicitor taking instructions from an obviously enfeebled testator, where capacity is potentially in doubt, to take particular care to gain reasonable assurance as to the testamentary capacity of the testator ... What should be done in each case will depend on the apparent state of the testator at the time and other relevant surrounding circumstances. Any suggestion that someone, potentially interested, has instigated the will, whether or not a client of the will draftsperson, should particularly place the solicitor concerned on the alert. At the least, a solicitor should ask the kind of questions designed to probe the testator's understanding of the basic matters which connote testamentary capacity ..." 45(See also Petrovski v Nasev (No. 2); The Estate of Janakievska [2011] NSWSC 1275 at [87]-[90]; and Hutley's Australian Will Precedents, 7th ed, 2009 LexisNexis Butterworths at [1.14]). 46Mr Bennett was contacted by Athena Dellios. He had acted for Chris and Athena's son in a family law matter. On 23 January 2006 Athena told Mr Bennett that her sister-in-law, Paula, would like him to come to her house to make a will for her. When he asked why Athena was calling and not Paula, she replied that it was because Paula could not speak English very well and was very shy. Mr Bennett deposed that Athena gave instructions as to what she said Paula wanted the will to provide. Athena denied giving those instructions. I do not accept that denial. It is clear that Mr Bennett received instructions for the will before he saw Paula. He took a draft of the will to the house the following day. He did not prepare the will after having obtained Paula's instructions. In my view, Athenas denied having given those instructions to Mr Bennett because she considered that it might in some way be harmful to Chris's case if she had given those instructions. Indeed, it is a relevant consideration that the initial instructions came from the wife of the sole beneficiary and a contingent beneficiary herself. But the fact that the initial instructions came from Athena is clear beyond any doubt. Her denial reflects adversely on her credit. 47Athena told Mr Bennett that Paula wanted to leave her property to Chris. Mr Bennett asked what would happen if Chris died before Paula and whether in that case the property should go to Athena. She replied "I suppose so". On the basis of those instructions Mr Bennett prepared the draft will which he took with him the next day when he visited Paula at her home. When he arrived four people other than Paula were present, namely Chris, Athena and also a Mr Victor Kulakovski and Mr Peter Gosis. Mr Bennett said that it was not normal to have so many people and family at a time when signing a will, but Victor Kulakovski said to him words to the effect that "We're Macedonian and we all know everything about each other. It's always like this for us". 48In cross-examination Mr Bennett said that the other family members had refused to leave. He was introduced to Paula. She was sitting in a chair near the door and separate from the others who were sitting around a table. The room was small. Mr Bennett asked Athena whether Paula spoke any English. Athena replied "Only a little". Mr Bennett did not attempt to ascertain, by speaking to Paula herself, the extent to which she understood English. Thereafter, the conversation proceeded by Mr Bennett asking questions, many of them leading questions, of Victor Kulakovski, and his apparently translating those questions to Paula and then conveying Paula's responses. Other questions were answered directly by other persons present and not by Paula. Mr Bennett deposed: "I said to Victor 'Does Paula know we are here today about a Will for her, what to do with her property when she had died [sic]?' Victor then had a conversation with Paula in Macedonian. Victor then replied 'Yes, she knows that' I said to Victor 'Can you ask her what property she owns' Victor then had a further conversation with Paula in Macedonian. Victor replied 'She only owns a half share in this house and a little money in a bank account' Athena said 'As well as all you can see here in the house - no value at all' I said to Victor 'Ask Paula who owns the other half share' Victor then had a conversation with Paula in Macedonian. Athena said 'Chris Dellios. There has been a big court case' I replied 'What was the court case about?' Peter Gosis then said 'There were 2 brothers who died. One 12 years ago in Canada. He had 2 daughters. The other died in December, 2005. He had 4 children, all married except for John'. I said to Peter Gosis 'How old is John?' Peter replied 'About 45 years old' I said to Athena Dellios 'Whose name is the property in for the Council records?' Athena replied 'Rates still come here in the name of the dead brother. Chris pays the rates. Paula's share comes from her Mother's Will which has not yet been finished. The problem is all caused by John. The matter has been going on for years. He is fighting the Will of Paula Dellios' parents for a larger share of the properties. Her brother refused to transfer Paula's share of the Will to Paula' I said to the group 'Was Paula a party to the court case?' Athena said 'No she was not. It was mainly between John and Chris.['] I said to Victor 'Ask Paula if that is all her property' Victor had a conversation with Paula in Macedonian. Victor said 'Yes, that is all her property'. I said to Athena 'Where are the deeds to the property?' Athena and Victor had a conversation between them. Athena replied 'With John's, the nephew's, solicitor'. I said to Victor 'I will summarise a Will which Athena asked me to bring. Can you please translate to Paula when I speak?' Victor replied 'Yes'. I then said to Victor 'Please tell Paula that a Will is the document which sets out what you want to do with your property when you are dead' Victor had a conversation in Macedonian with Paula Dellios. Victor then said 'Yes she understands' I said to Victor 'She has made Chris Dellios her Executor. This means he is the person who will look after her affairs when she is gone. Please ask Paula if this is correct' Victor had a conversation with Paula Dellios in Macedonian. Victor replied 'Yes, she understands' I said to Victor 'Tell her that the Will provides for all her property to go to Chris Dellios when she dies. Please ask if this is so' Victor had a conversation with Paula Dellios in Macedonian. I observed Paula Dellios look at Chris Dellios. Victor said 'Yes that is correct' I said to Victor 'The Will then says if Chris dies before Paula, all her property goes to Athena. Is that what she wants?' Victor had a conversation with Paula in Macedonian. I observed Paula looking at Athena ... Victor said 'Yes that is correct' The Will is then signed and Peter Gosis is one of the witnesses and I am the other". 49These discussions do not provide a basis for me to be satisfied that Paula then understood the nature of the act of making a will and its effect, nor that she understood the extent of the property which she was disposing, nor that she was able to comprehend and appreciate the claims on her estate to which she ought to give effect. The first reason is that I do not know, and Mr Bennett did not know, whether his questions were accurately translated to Paula and whether her responses were accurately conveyed to him. Neither Victor Kulakovski, nor Peter Gosis was called. Although Chris and Athena Dellios were present, they both denied being present. I do not accept that denial. But it means that they gave no evidence as to what was said in Macedonian to and by the plaintiff and Paula. 50If the accuracy of the translation were accepted, the discussion does not provide an adequate basis for drawing a conclusion in favour of Paula having testamentary capacity. The only non-leading question that was apparently asked of Paula to which she gave a response indicative of capacity was when she was asked what property she owned, and Victor replied after a conversation with her that she owned a half-share in the house and a little money in a bank account. 51There was no non-leading question to elicit her understanding about what a will was. Rather, the statement was framed by Mr Bennett that a will was what would be done with her property when she had died. 52I do not think that any conclusion can be made of Paula's understanding of those propositions from Victor's reply that she knew that. 53It is of some importance that, although Mr Bennett asked Victor to ask Paula who owned the other half-share of the house, it does not appear that Paula responded to that enquiry. Rather, there was a discussion by other persons present about the prior litigation. 54In that context, Athena stated incorrectly that the problem was all caused by John, and that John had been "fighting the Will of Paula Dellios' parents for a larger share of the properties". 55Although it is not directly relevant to any of the four criteria for testamentary capacity in Banks v Goodfellow (1870) LR 5 QB 549 and 565, it is some evidence of Paula's lack of cognitive capacity that she apparently did not answer the question as to who owned the other half-share of the house. 56Mr Bennett then said what was the effect of the will he had prepared. Whilst Victor stated that Paula understood what was said, no attempt was made to ask Paula, unprompted, as to how she wished her property to be left. 57Moreover, this conversation took place in the presence of the other family members, a matter which Mr Bennett appreciated was undesirable, and in the presence of the proposed beneficiaries. 58In his affidavit, Mr Bennett deposed that: "Following the signing of the Will and in the presence of all the above people we all stayed in the room and chatted generally." 59Some time in or after 2008, Mr Bennett prepared notes from his then recollection of the events of this day, parts of which formed the basis to his affidavit. Omitted from his affidavit was the following, which was recorded in the notes he prepared. "Following the signing of the will, in the presence of all others, I asked these questions: to AD - who looks after PD AD - CD and I, one of us come here every day. JCB - to group - do the other nieces and nephews come to see PD. AD no-one. JD Does PD go to a doctor regularly. AD - We take her to Dr Wu (in Richmond). JCB - Why does she see him? Does she have any serious illness. AD She gets medicine for her nerves. She worked very hard on the farm with her parents and now they are both dead, she gets very stressful and misses them. JCB - Has PD any history of a mental illness. AD - no not at all. She is extremely quiet, but does need her medication. JCB - Did PD go out or read papers. AD - No she just watched TV." 60Mr Bennett denied that the reasons he asked these questions was because he had concerns with Paula's capacity. He said that he could see that Paula was a little elderly lady, and on a five-acre property in a fairly large house, and so might need some care. He denied suspecting that Paula had a history of mental illness. He said that she was an elderly lady, and he just wanted to make sure in his own mind that there was no issue of mental illness. 61However, the question whether or not Paula had any history of a mental illness is a somewhat surprising question to have asked, in the context of the conversation that preceded it, unless there was something about her demeanour that had caused him some concern. 62Mr Bennett says, and I accept, that had he been told that Paula had been institutionalised in psychiatric institutions from 1950 to 1967, and had been prescribed anti-psychotic medication, that he would have acted entirely differently. 63However, having received the assurance from Athena, uncontradicted by others, as to the nature of the medication that Paula was taking, in the absence of any history of mental illness, Mr Bennett's then concern was that the will had better be redone with an independent person in case someone made a claim. He had in mind obtaining an independent person who could speak and translate Macedonian. That is an understandable caution, given that he had no way of knowing how accurately the discussion had been translated. 64Mr Bennett arranged for a Ms Natalie Yanevski to accompany him on a second visit. She was employed in a firm of real estate agents as a receptionist and was fluent in Macedonian and English. 65The second visit took place on 6 February 2006. Mr Bennett had prepared a new will that was in the same terms as the will of 24 January. Mr Bennett deposed that on 6 February, the persons present as well as himself and Ms Yanevski were again Paula, Chris, Athena, Victor Kulakovski and Peter Gosis. He deposed that the following discussion took place. "On 6 February, 2006, I collected Natalie from my brother's office and arrived at Agnes Banks at 4:00pm. We went into the lounge room and there were present Chris Dellios, Athena Dellios, Victor Koulakovski [sic] and Peter Gosis. I introduced them all to Natalie. I said to Natalie 'Speak to her about the weather and see if you can understand each other'. I then observed Natalie having an animated conversation in Macedonian ... I said to Natalie 'Please tell Paula that we are here to make her Will again and to make sure she understands and that you have come along to interpret' Natalie then had a conversation with Paula in Macedonian. Natalie said 'Yes she understands' I said 'Ask Paula if she owns any property and if so, what does she own?' Natalie spoke to Paula in Macedonian. Natalie said 'Yes she owns one half of this house and a bank account with the Commonwealth Bank' I said 'Ask Paula whether she knew we were there today to make a Will for her which concerned her property to take effect after Paula dies' Natalie spoke to Paula in Macedonian. Natalie said 'Yes she understands' I said 'Ask Paula whether her mother and father are['] [sic] Natalie spoke to Paula in Macedonian. Natalie said 'Her mother and father are both dead' I said 'Ask Paula whether she has any brothers and sisters alive other than Chris' Natalie spoke to Paula in Macedonian. Natalie said 'She has Chris alive and two brothers had died and they both have children still alive' I said 'Please show the Will to Paula and ask her to confirm her name and address and that she has appointed Chris Dellios as the executor. Chris Dellios was to carry out her wishes in the Will after she dies' Natalie spoke to Paula in Macedonian. I said 'Please explain that the Will provides that Paula wants to leave all her property to Chris Dellios. Ask her "Is this correct?" Natalie spoke to Paula in Macedonian. Natalie said 'Yes that is correct' I said 'Please explain that Clause 3 of the Will then provides that if Chris Dellios dies before Paula, then all her property goes to Athena Dellios' Ask her 'Is this correct' Natalie spoke to Paula in Macedonian. Natalie said 'Yes that is correct' I did not ask Natalie to read the rest of the Will. I said 'Tell Paula that it is time to sign the Will' Natalie spoke to Paula in Macedonian. Paula got up from her seat and came to the table. I directed Natalie how Paula was to sign and how Natalie was to sign the Will. Natalie spoke to Paula in Macedonian Natalie said 'Paula asks if she is to sign in English or Macedonian?' I said 'Tell Paula to sign in English please' After the Will was signed, the previous Will and one copy dated 24 January, 2006 was produced and a line was drawn across it by someone. I do not know the whereabouts of the original Will." 66A contemporaneous statement was prepared on the afternoon of 6 February. Both Mr Bennett and Ms Yanevski claimed credit for the preparation of the statement. It was signed by Ms Yanevski on the day. She stated the following: "1. I am one of the attesting witnesses to the signature of the Will of Paula Dellios. The other attesting witness was Mr John Bennett, Solicitor. Present for part of the time were Mr Chris Dellios, Athena Dellios and Mr Victor Kulakovski. 2. I speak both English and Macedonian fluently. 3. On meeting the Testatrix, I spoke generally to her about the weather and her family. I questioned her whether her mother and father were still alive and her knowledge of her siblings. She advised me that her mother and father were both deceased and that she had two brothers, one brother, Chris Dellios, is still alive and her other brother, David (Demetriou) Dellios, had recently died and left a wife and two children surviving. 4. The Testatrix mentioned to me that she lived alone and had little or no contact with any other members of the family other than her brother Chris, his wife Athena and their children. Chris and Athena visit her every day, take her shopping and to doctor appointments, and generally care for her. Her house appeared clean and tidy. She appeared to be very clean and respectful. 5. I explained to her that the purpose of me being there was to translate and read to her entirely the Will and to make my assessment as to whether I believed she understood the nature of the Will and whether her wishes were properly contained in the Will. 6. I believe that Paula Dellios had full knowledge that she was making a Will and I believe that the Will was signed by her freely." 67On that day, Mr Bennett added some words in handwriting against paragraph three, namely, "very very hot", then against the statement "I questioned her whether her mother and father were still alive" he wrote "They're dead!", and against the reference to "David (Demetriou) [sic] Dellios" Mr Bennett wrote "Peter died in Canada 2 daughters." 68Ms Yanevski is a witness whose evidence I accept. I do not accept the whole of Mr Bennett's evidence as to the discussion that took place on 6 February. He deposed that in response to his question "Ask Paula whether she has any brothers and sisters alive other than Chris", Natalie (Yanevski), after speaking to Paula, said "She has Chris alive and two brothers had died and they both have children still alive." 69I do not accept that that was the statement made. I think the statement that was made was as recorded in paragraph three of Ms Yanevski's statement, namely, that Paula said that "her mother and father were both deceased, and that she had two brothers: Chris, who was still alive; and another, David (Dimitriou), who had recently died, and had left a wife and two children surviving". 70This was not correct. Although Dimitrios had recently died, he had left four children surviving, and she had another brother, Peter, who had died, and who had two children surviving. 71I accept Mr Bennett's evidence that Paula gave a responsive answer to the non-leading question as to what property she owned, namely, that she owned half of this house and a bank account with the Commonwealth Bank. That answer was substantially accurate. 72I would be satisfied that this requirement for testamentary capacity, namely, that the testatrix know or appreciate the general extent of her estate was satisfied. However, when there was discussion about the contents of the will, it occurred, as had the earlier discussion, in a way in which did not elicit Paula's understanding in any meaningful way. 73Again, it was stated to Paula that Chris Dellios, being the executor, was to carry out her wishes after she died. The dispositive contents of the will were explained at least in part, but again there was no unprompted enquiry of Paula as to how she wished her property to be left. 74It was also again undesirable that the confirmation of instructions was obtained in the presence of the other family members, including the proposed beneficiaries. Paula did make statements which I infer were unprompted that she lived alone and had little or no contact with other members of the family, other than Chris and Athena and their children. I infer that she did tell Natalie Yanevski that Chris and Athena visited every day and took her to shopping and doctor appointments. These would all be sound reasons for her making the will in the terms she did. 75Thus the evidence about testamentary capacity is not all one way. Parts of Ms Yanevski's statement support the plaintiff's case that Paula had capacity. Moreover, her statement suggests that Paula had an ability to construct sentences which went beyond that which had been observed by Dr Wu and by Marie Kulakovski. 76The important consideration is whether or not Paula was able to comprehend and appreciate the claims on her estate to which she ought to give effect. It appears that she was not able to bring to mind all of the nieces and nephews that would inherit part of her estate on intestacy. 77On the other hand, they were not obvious natural objects of her bounty and I would not conclude merely from the wrong statements that she made about her relatives that for that reason she lacked testamentary capacity. But I think there is more involved in assessing the claims of other people on her estate than merely remembering who her nieces and nephews were. 78I have said that there had been earlier litigation between Chris and Dimitrios concerning their mother's estate. Their mother, Estonia, had left a will appointing Chris as her executor and giving five and a quarter acres of land that is known as Little Ducker partly to Chris (as to one acre) and partly to Chris and Paula in equal shares (as to four acres). She had made a gift of what she called "my farm property" known as Timmons Farm to Chris absolutely. 79Dimitrios had bought proceedings under the Family Provision Act 1982 claiming greater provision out of his mother's estate. He had been left with no provision: Estonia having declared that he, along with his brother, Peter, had been adequately provided for. Peter had by this time died. 80Dimitrios' claim for provision was compromised. Consent orders were made that in substance provided for Estonia's will to be changed to provide that the whole of the five and a quarter acres of the property known as Little Ducker be given to Paula and Chris equally, and that Timmons Farm be given to Chris and to Dimitrios in unequal shares. It was a term of the agreement that settled those proceedings that "[Chris] assigns to 'Dimitrios' such benefits as [Chris] may have under the Wills Probate and Administration Act 1898 part 2 division 2A in the estate of his sister, Paula Dellios, should she died intestate". 81Paula was not a party to that agreement. By the time she came to make the will of 6 February 2006, Dimitrios had died. The clause could not preclude Paula, if she had capacity, from dealing with her estate as she saw fit. That would have been the position even if Dimitrios had been alive. For reasons which I will give later, that clause was spent by 6 February 2006. 82Nonetheless, in assessing the claims of others on her estate, it would have been material, and necessary in my view, for Paula to have been capable of considering whether Dimitrios' children might have had a legitimate expectation of inheriting part of her estate through their father. Had Dimitrios been still alive and had Paula not made a will, then they could expect in due course to inherit a part of the estates with their father in the usual way, unless there were other reasons to leave his estate elsewhere. 83Even though Paula was free to leave her estate as she saw fit, and a will leaving all of her estate to Chris is entirely rational, for her to have capacity to weigh the claims of at least certain of her nephews and nieces, I think she would have to have had capacity to assess the reasonableness of any such expectation that Dimitrios' children had of inheriting part of her estate following the settlement. I think it clear that Paula's capacity would not extend so far. It appears that she was not able to say who owned the other half of the house. Statements made by Athena on the first occasion about the settlement were wrong. 84Having regard to the unsatisfactory way in which instructions for the will were obtained, to the closed questions that were asked of Paula, to the undesirable presence of the other family members when the will was discussed with Paula, to the errors made by Paula referred to previously, and to matters I think Paula needed to take into account in order to comprehend the claims on her estate, the evidence concerning the execution of the will does not displace the concerns arising from the evidence of Dr Wu, confirmed in material respects by Marie Kulakovski, John Dellios and Anne Dafo, and confirmed by Chris Dellios' 2000 affidavits, that suggest a lack of capacity. 85The onus is on Chris to establish that Paula had testamentary capacity. In my view that onus has not been discharged. 86Accordingly I will refuse the claim for the admission of the will of 6 February 2006 to probate and will find that the deceased, Paula Dellios, died intestate. 87In these circumstances John's claim that if the will were valid, nonetheless Chris would hold a half of the Little Ducker property on trust for him (and I infer his siblings) does not arise. I should say however that had that question arisen, I would not have accepted that contention. That is for the reasons with which I will now deal which concerns who is entitled to the estate on intestacy, and in what shares. That is not raised directly by any of the pleadings, but it is raised by the question of who should be appointed as administrator. It was a live issue in the proceedings and one with which I should deal. 88John asserts that because of the clause of the settlement dealing with assignment which I have quoted, the one-third share which Chris would obtain on intestacy is to be held for Dimitrios' children. I do not agree. Under s 61B(6)(a) and 61C of the former Probate and Administration Act 1898 the intestate estate is to be held for the brother who survived her and for the issue living at her death of her brothers who did not survive her. As Dimitrios did not survive Paula he never became entitled to a share of her estate. His children are entitled to a share because they are his issue, but they do not take their share through his estate. Dimitrios' chose in action against Chris was not property that became part of his estate to be dealt with under his will. Thus, if Dimitrios owed debts, or had left his estate to persons other than his children, neither his creditors nor such beneficiaries would be entitled to any part of Paula's estate on intestacy. 89John's contention requires reading the clause as if Chris had agreed to assign to Dimitrios or to his successors, or perhaps to his children, such benefit as he would have in the estate of Paula should she die intestate. There are no such words and there is no sufficient reason for reading those words into clause 6(c) of the settlement agreement. 90Accordingly, Paula's estate is to be held as to a one-third share for Chris, as to a one-third share for the children of Dimitrios in equal shares, and as to a one-third share for the children of Paul (also called Peter) in equal shares. 91The question then is who should be appointed as administrator. Chris did not seek appointment as administrator if Paula died intestate. Whilst he has the greatest interest on intestacy, the remaining two-thirds of those entitled on intestacy seek the appointment of John as administrator. The question is who should be appointed having regard to the best interests of the estate as a whole. 92Having regard to Chris's evidence I am not satisfied that he would be a fit and proper person to be appointed as administrator of Paula's estate who would be required to act evenly and fairly in the interests of all of those entitled. I will order that letters of administration be granted to John. 93There remains one outstanding question on which I have not heard submissions. In his cross-claim John seeks an order for the grant of administration of Paula's estate to him in solemn form and for the dispensation of an administration bond. I will not make that order without hearing argument from the parties. This case is characterised by years of feuding between different members of the family. [Parties addressed.] 94I do not think that I should order that the administration bond be dispensed with. What bond is appropriate will be a matter for the Registrar when he completes the grant. 95Accordingly, the orders I propose, subject to hearing from counsel as to the precise form of the orders, are as follows: