Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw

The Testator's Testamentary Instruments and Estate

1. A little over a year after the death of her husband in July 2004, Apolonia made a will on 1 November 2005. She made a codicil to that will on 21 September 2009.
2. After revoking prior wills, Apolonia's 2005 will appointed Zina as her executrix, and Basil as her executor in the event that Zina predeceased her. She gave the whole of her real and personal estate to be held on trust as to a one-half share for Zina and Zina's four children, and as to the remaining half share to her son Basil and his two children.
3. Apolonia's 2009 codicil repeated the equal division of her estate between Zina and Basil but amended the 2005 will by deleting all her grandchildren from the gift, so that each half of her estate was gifted solely to Zina and Basil respectively. Under the revised gift in the codicil Zina's children would only take if Zina did not survive Apolonia, and Basil's children would only take if he did not survive Apolonia. The 2005 will was in other respects confirmed in the 2009 codicil.
4. Apolonia created another testamentary document nine years later. On 14 January 2018 she wrote in the Ukrainian language and script, in her own hand a document which she gave a title in Ukrainian that translates into English as "My Will". She signed it but it was not witnessed and therefore it did not meet the requirements for formal validity. It repeated Apolonia's wish, formally expressed most recently in the 2009 codicil, to divide her estate equally between her two children, Zina and Basil. The internal evidence of the My Will document suggests that Apolonia wrote it partly because she was becoming worried that she lacked the funds to pay for her funeral. An agreed translation of the My Will document into English is as follows: "I am Mrs Apolonia Czerwaniw. I have two children, a daughter named the Zina Dybach and a son named Basil Czerwaniw. When I die, I do not have the money for the funeral. They will have to borrow the money for the funeral. I do not owe any money to anybody. After they have buried me and paid the money for the funeral, for the church, to the priest and for the cup of tea, if they choose to do it, then they will have to divide the remaining money between the two of them in equal parts. Such was the will of their father Very Rev Basil Czerwaniw and I want them to stick to it. A Czerwaniw"
5. The 2018 My Will document does not refer to either of the 2005 will or the 2009 codicil and is not expressed to revoke any previous testamentary instruments. The somewhat peremptory words of the concluding sentence, "I want them to stick to it" imply a degree of anxiety on Apolonia's part that Zina and Basil may be disinclined to adhere to her and her late husband's wishes that Zina and Basil share her estate equally.
6. As earlier indicated, in the evening of 9 January 2020, Apolonia executed the Change of Will document before surgery. One of the deceased's doctors, Dr Kalpa Perera, dictated Change of Will document to a second doctor, Dr Krystal Dinh, who handwrote it. Apolonia then executed it in their presence and the presence of a third doctor, Dr Thirimadura Diwan Mendis. All three doctors then signed the Change of Will document.
7. The Change of Will document is written in English and is brief. Its text appears below with the testatrix's handwriting in italics and the doctor's handwriting in ordinary script. "CHANGE OF WILL. In the case of any unforeseen circumstances, I Adolonin Czerwaniw (Ukrainian script) would like to bequethe [sic] my home/house entirely to my son Basil. A Czerwaniw"
8. Dr Dinh when drawing up the Change of Will document left the place for Apolonia's name after the word "I" and before the word "would" blank in the text but with a line for Apolonia to print her name. Apolonia handprinted her name into the document in Ukrainian script, where the italics appear above. Apolonia signed the Change will document below this text and at an angle to it. The controversy concerning the way that she wrote her name and formed her signature are discussed later in these reasons. The signatures of the three medical witnesses, Dr Dinh, Dr Perera, and Dr Mendis appear below Apolonia's signature, against their printed names, together with the date recorded in handwriting as "9/1/2020".
9. The testator's name in the text more appears to resemble "Adolonin" than "Apolonia", although the printed script could well represent an imperfect attempt to write "Apolonia". The Court accepts Zina's, evidence that she had never this seen her mother write her name as "Adolonin". And Adolonin does not appear to be a recognised Ukrainian form of Apolonia.
10. After the printed name "Adolonin Czerwaniw" in the text of the Change of Will document, some Ukrainian script also appears in parentheses, as is shown above in these reasons. This script translates from Ukrainian script to read "Paula", the name by which Apolonia was known in Ukrainian. But "Paula" as written here has been spelt incorrectly in Ukrainian. Apolonia spoke and wrote both Ukrainian and her second language, English.
11. If the Change of Will document were to be admitted to probate, Basil would receive Apolonia's entire estate after payment of testamentary expenses, as the testamentary expenses incurred by the estate exceed the value of estate residue. But if the Court were to conclude either that the change of Will document is not a valid testamentary document of Apolonia or, if it is a valid testamentary document of Apolonia but the gift to Basil was contingent upon the deceased dying during her surgery on 9 January 2020, then Zina and Basil will be entitled, after the payment of testamentary expenses, to share equally in the Apolonia's estate.
12. Zina estimated that at the time of Apolonia's death her estate had an estimated gross value of $993,175.17 and was comprised of the following assets at the following estimated values: Asset Plaintiff's Estimated Value House Property at Schofields $975,000.00 NAB Retirement Account $1,287.65 522 shares in IAG $3,737.52 2 Rights of Interment at Liverpool Cemetery and Crematorium $13,500.00 Personal effects No commercial value TOTAL $993,175.17

1. Apolonia had no liabilities at the time of her death. Her major asset was her residence in Schofields. The Zina arranged for a recent market appraisal which put the value of Apolonia's residence at between $1.25 million and $1.3 million. The other liquid assets in the estate, the NAB retirement account and the IAG shares, are insufficient to cover the significant testamentary expenses that Zina has already incurred acting in the role of executor of this estate.
2. As at January 2022, the total value of the NAB bank account was $2,024.11 and the IAG shares was $2,333.34. The other assets of the estate are two burial plots at Liverpool Cemetery and Crematorium. Apolonia and her husband acquired these lots for use by the family. Four of the lots have now been used and two lots that were intended for Zina and Basil are unused. The family members do not wish to retain them then these burial lots can be re-purchased by the cemetery or sold privately.

The Credibility of Parties and Witnesses

1. Zina Dybac. The plaintiff, Zina Dybac was a reliable witness who attempted to give an honest account of her own recollection of family history with the testatrix and with Basil. She was able to give evidence in a manner that drew upon detailed recollections of family events and interactions with her mother and Basil. Her evidence was generally consistent with the objectively verifiable contemporaneous events. She acknowledged the limits of her memory and was prepared to make concessions where her recollections were imperfect. Where their recollections were in conflict the Court generally preferred Zina's recollection over Basil's.
2. Basil Czerwaniw. The defendant, Basil, was a single-minded witness who was determined to propound his own version of family history and to show why he was more deserving of Apolonia's testamentary bounty than was his sister. His recollections were closely focused upon events that showed his sister in a poor light. He was cross-examined on the pleadings but that did not itself greatly damage his credibility. But his own conduct towards his sister showed an overt disdain for her that pervaded his whole outlook and undermined the Court's confidence in him as a witness. This was most evident in January 2020 when the testatrix was in hospital, Basil then treated his sister on a 'need to know' basis that showed no respect to the independent relationship that his mother had with his sister. His dislike of his sister clouded and impaired all his communications with her and the quality of his testimony. He was less willing than his sister to make concessions that his recollections could be imperfect, and he was unwilling to give his sister credit for assisting their mother or having a good relationship with her, when the evidence was to the contrary. *--'-4
3. All the doctors who were involved in the creation and execution of the Change of Will document in Westmead Hospital in January 2020 were honestly trying to do their best to remember the events in question. Their conduct in taking up the Apolonia's request to change her will was not criticised. Indeed, it was a creative attempt on their part to give effect to Apolonia's wishes so that she could undergo urgently required surgery. Each of them had seen many patients since January 2020 during the unusual years of the Covid-19 pandemic. But some features of Apolonia's situation clearly stood out for them. Their evidence is almost entirely accepted. Although they could not always remember events recorded in their affidavits, this is a case in which the court could be confident that their affidavits were generally accurate and that their memories had declined since the affidavits were deposed.
4. Dr Dinh had a reasonable recollection of her encounter with the deceased and of writing out the Change of Will document. But her recollection was not detailed. She confessed that much detail had been lost from memory due to the passage of time and the number of patients she had seen since January 2020. Her evidence is mostly accepted.
5. Dr Perera had a much better recollection of the events of 9 January 2020 when he signed his affidavits that he did in oral evidence. He frankly conceded a lack of recollection of certain events in the operating theatre that day and had memory gaps in his account of events by the time he gave evidence. His evidence is mostly accepted.
6. Dr Mendis was the most junior doctor of those involved in the events of 9 January 2020. This incident, being earlier in his career than the other doctors was perhaps more memorable for him for that reason. But like the other doctors his affidavit evidence turned out to be better and more detailed than his oral evidence. His evidence is mostly accepted.
7. Dr Tejas Chikkerur, the anaesthetist for Apolonia's operation was not directly involved in the creation of the Change of Will document, but he a had a reasonable recall of events that day and could picture them for the Court. But like the other doctors he had had lost some of the details due to the passage of time.

Apolonia Czerwaniw, Her Family and Her Will

1. The following is a narrative of the relevant history. This narrative represents the Court's findings on the matters covered, except to the extent that the context indicates that only the parties' allegations are being recorded in these reasons. For reasons of economy this narrative does not include reference to versions of the facts that have been rejected.
2. The parties' cases fielded multiple factual disputes, not only about the events of January 2020 but relating to their relationships with Apolonia and with one another. It is not necessary for the Court to determine all these disputes to decide the issues in the proceedings.

The Early Years: from Migration to Rev. Basil Czerwaniw's Death - 1950 to 2004

1. Basil and Apolonia Czerwaniw and their daughter Walentyna migrated to Australia by ship from Germany in 1949. They initially lived in migration camps in Bathurst and Cowra where they learned English. They moved to the Sydney suburb of Cabramatta in the early 1950s, where Zina was born in 1953.
2. In 1959 the family was struck by tragedy when Walentyna died suddenly of an acute golden staph infection at the age of 13. Basil was born two years later in 1961. In 1970 Apolonia and Basil had another baby who died at birth.
3. Basil became a priest of the Ukrainian Orthodox Church. He ministered to the Blacktown parish for over 50 years from the early 1950s to the early 2000s. Apolonia became affectionately known within the Ukrainian Orthodox community in north-western Sydney as "Matushka", a Ukrainian term of endearment which literally means "the priest's wife" in the Ukrainian language. She was well respected for her role and good works among the parishioners of her husband's church.
4. Zina married Peter Dybac in 1972. He practised as a dentist. They acquired a house in the suburb of Schofields in about 1975. Zina qualified as a primary school teacher by 1973 - 1974 and since then has worked as a teacher for the NSW Department of Education. Zina is a specialist teacher of English as a second language. She often works with migrant children from kindergarten to year 6. She speaks fluent Ukrainian, as does her brother, Basil.
5. Basil senior and Apolonia purchased a holiday house in Noraville on the Central Coast in about 1978. Thereafter it was used for family holidays until about the early 2000's, when it was sold.
6. In about 1978, Basil and Apolonia sold their Cabramatta home and purchased vacant land in Schofields with a view to building a house close to Zina and Peter's home in Schofields. Basil claims that he undertook a substantial amount of the building work for the house on the property his parents acquired at Schofields. The Court accepts that he voluntarily laboured on the house and was involved in supervising some of the labourers and undertaking emergency repairs from time to time. Both Basil and his father Basil senior painted this house.
7. Basil's labour on the Schofields property was the kind of family contribution that might be expected of able-bodied children. Zina was not readily able to contribute in this way in the late 1970s. She had her first child in 1979. Her husband Peter was working full-time as a dentist. Zina and Peter now have four children, the other three being born in 1982 and 1983 and 1985 respectively. Despite the increasing demands of a growing family Zina managed to study part-time for her Bachelor of Arts degree and work part-time as a teacher during the 1980s.
8. Basil married his wife Sophie in 1999. They had a son in 2001 and a daughter in 2004. Basil commenced work as an Environmental Health Officer in 2000 with the Central Coast Area Health Service. But working full-time during the day to meet the commitments of his own employment, as well as at night to assist Sophie's businesses, took a substantial psychological toll on Basil and he suffered a breakdown and ultimately left full-time employment in in 2009.
9. Basil says that Zina's parents helped Zina with her four children and assisted them with financial contributions over many years. This can be accepted. Apolonia frequently looked after Zina's children when they were young, as Zina was not only juggling four children but working part-time and studying. To show their gratitude, Zina and her husband, Peter, would take Apolonia and Basil to dinner and sometimes with them on family holidays.
10. But a strong theme of Apolonia's and Basil's family life as parents was their efforts to treat their two surviving children, Zina and Basil, fairly and equally. This is clear from the terms of the 2018 My Will document. Basil and Apolonia also gave their time and made significant financial contributions to assist Basil in bringing up his children, although he does not emphasise that much.
11. There is conflicting evidence about the relative financial contributions that Zina and Basil each made to their parents' estates. This is not a family provision claim and the Court does not have to resolve these conflicts, although findings on some of these issues are useful to inform an appreciation of Basil's moral claim upon his mother's estate and her perception of that claim in January 2020 will.
12. The Court accepts that the relationship between Zina and Apolonia and their respective families was strong during the 1980s and 1990s. Apolonia's and Basil's property in Schofields was smaller than Zina's nearby property in the same suburb, so Apolonia and Basil would spend much time at Zina's house tending to a small holding of livestock and vegetables. The families regularly visited one another during these years.
13. Basil complains that the financial assistance that their parents gave to Zina and Peter was greater than that given to him. He cites several examples of this, including gifts of money and the proceeds of sale of the investment property at Noraville, which he claims helped Zina and Peter pay off their mortgage and were not shared with him. It can be accepted that Zina did receive financial assistance of this kind from their parents. Apolonia must have been conscious that she and her husband had supported Zina in this way.
14. But it is also evident that Apolonia and her husband Basil also gave substantial support to their son Basil, as he faced an accumulation of challenges in the late 1990s and early 2000s. He had to cope with business and employment problems, severe depression requiring hospitalisation and ultimately a marriage breakdown in 2009.
15. Whatever the precise mix of benefits Apolonia and her husband Basil gave to their children, the evidence of the handwritten 2018 My Will document is clear: when Apolonia turned her mind to the issue of her testamentary intentions, she wanted to treat Zina and Basil equally in her will, partly because that was also the wish of her late husband. This tends to suggest that when not under pressure in 2018, she was ready to reaffirm the sentiments of her 2005 will and the 2009 codicil.

Family Relationships Begin to Change - 2004 until 2019

1. After Basil senior died in 2004 family relationships began to change, partly in response to the changed family circumstances and in part because of an increase in the financial and personal stresses on Basil.
2. Apolonia and Zina spoke often up until the early 2000s. Zina would speak with Apolonia most mornings during her commute to work. Zina says and the Court accepts that on a number of these occasions Apolonia (not Zina) raised the subject of inheritance, saying to Zina, "you and Basil will each receive half of my estate when I die".
3. In the late 1990s and early 2000s, when Basil senior was still alive, Zina and her daughter Tamara would routinely take Apolonia and Basil senior to different beaches in Sydney early on a Saturday morning. Basil would swim, Apolonia would sit on the beach, Zina and Tamara would go for a walk, and then they would all have breakfast together before driving back to Schofields.
4. Following Basil's death in July of 2004, Zina and Apolonia's routines changed but the frequency of their contact remained. Apolonia did not wish to continue with the weekly beach trips, as they reminded her of her late husband.
5. Zina says, and the Court accepts, that after Basil's death Apolonia became quite independent. Apolonia was quite content to use public transport, to go shopping, to pay bills, to go to church and to meet up with her friends herself.
6. After Basil's death, Zina frequently visited her mother at her Schofields home before and after work and on weekends. She assisted her with food, with outings, with appointments, and with her mother's Church commitments.
7. From 2004, Zina and Apolonia would also visit Basil's and Walentyna's graves at the Liverpool cemetery, about fortnightly. Afterwards they would go out for coffee or dinner together, or at times they would take coffee and cake to the cemetery. This tradition persisted until about 2018, when Apolonia said to Zina that Basil could take her on these visits. Zina was somewhat put out by this but accepted Apolonia's decision.
8. In 2009 Zina and her husband Peter moved away from Schofields, to live in an apartment they owned in Manly. Zina says and the Court accepts that she continued to visit her mother frequently after the move to Manly. Basil is critical of Zina's and Peter's move to Manly and says that Zina's visits to Apolonia tapered off. He is partly right about this. It is difficult to accept that Zina could have visited her mother as often as she did from within the same suburb, Schofields, when after 2009 she was living over 50 km away by road in Manly, although they still worked near Schofields. But the photographic evidence after 2012 shows Zina and her family regularly taking Apolonia out and seeing her on special occasions.
9. Basil's marriage broke down in 2009. This was the culmination of years of difficulties for him. He had been bullied at work with the Central Coast Area Health Service and he took voluntary redundancy in 2009 after suffering a serious breakdown requiring medical treatment. Adding to his troubles, his wife decided to end their marriage at the same time. He temporarily moved into the Schofields property with Apolonia from October to December 2009. He moved out to West Gosford in a rental property to be closer to his two children until November 2012, when he moved back in with Apolonia. He says and the Court accepts he spoke to his mother almost every evening by telephone when he was living in West Gosford.
10. The Court accepts Basil's account that he moved back in with Apolonia in 2012 to provide her with assistance and company. His move was undoubtedly for Apolonia's benefit. But the move also fitted Basil's immediate needs, due to his marriage breakdown. He was alone in West Gosford, when his children were not staying with him, and he could live rent-free with Apolonia. He used spare bedrooms at Apolonia's place to satisfy custody orders in his divorce that he have adequate overnight sleeping arrangements for his children when he had access to them.
11. At around this time, Basil received poor financial regarding his regular income replacement payments which he received due to his work incapacity. He says that an accountant advised him he did not have to pay tax on these payments. When he found out otherwise, he had a very substantial tax debt which could only be cleared by him going into bankruptcy in 2016.
12. In 2012 Apolonia was 85. Basil could and did assist her daily needs at her Schofields home in multiple ways. Apolonia suffered episodic chronic pain which affected her mobility. She was being treated for a range of debilitating medical conditions, although these worsened over the next seven years until 2019. By then she was suffering from diabetes, cardiac problems, fluid on the lungs possibly associated with lung cancer, vascular obstruction, and bladder incontinence.
13. It was sensible and convenient for Basil to begin to take on some of the tasks that Zina had committed to over the years, including driving Apolonia to Church and helping with some household domestic chores. From 2012 but more rapidly after 2018 Apolonia became less mobile and more and more dependent on Basil for assistance with her daily routine and for transportation to see her doctors, friends, to go to church and to go shopping. By 2019 Apolonia was seeing some seven medical specialists for the range of medical issues that she was suffering.
14. After 2012 Zina did not visit her mother as frequently as she previously had. Zina continued to speak with Apolonia regularly by telephone. From about 2000 until Apolonia's death in 2020, Zina paid for Apolonia's mobile phone to ensure that Zina could easily contact her. Zina expected from 2012 that due to their living arrangements, Basil would provide greater assistance to Apolonia, and indeed this is what happened. Zina thought at the time that because Basil was not paying rent and was unemployed, he would be well placed and motivated to help Apolonia. Zina accepts that Basil took a greater burden of Apolonia's daily care from then on.
15. But Zina was critical of Basil's care and maintenance of their mother's property. The photographic evidence from her visits to the Schofields property between 2013 and 2020 well supports Zina's criticisms, which are accepted also because her evidence is preferred. Apolonia's Schofields property was untidy. This was not just in the garage area, about which Basil and Zina had a dispute regarding the storage of goods, but also the living areas of the house which were disordered and grossly untidy. The photographic evidence tends to support an inference that Apolonia took as much care of her appearances as she could at her age and appears from the photographs on special occasions to be very well groomed. She is unlikely to have been very happy with the state of her property under Basil's care.
16. But Basil had good reason to be distracted from housework at the Schofields property. From December 2013 until early 2019, he worked lengthy shifts as a bus driver. He seems to have shaken off his depression sufficiently that in 2013 he started as a trainee bus driver with the State Transit Authority. He says that he went from being "in bed for 12 hours a day" (with depression) to "being at work for over 12 hours a day" (as a bus driver). Basil undoubtedly contributed to chores such as washing and cooking. But the Court does not accept that he maintained the interior and the structure of the Schofields property to a high standard.
17. Basil contended that the relationship between Zina and Apolonia gradually deteriorated after 2015. But the context for his conclusion about this is important. Basil explained: "I noticed that the relationship between my mother and Zina gradually deteriorated after 2015. My mother became less mobile and more dependent on me for assistance in her daily routine and transportation to see her doctors, friends, church attendance and shopping and up to her death."
18. This evidence tends to confuse the quality of Zina's relationship with her mother with her availability to give her mother day-to-day support. It can be accepted that after about 2015 when Apolonia became less mobile her dependence on Basil for day-to-day support became greater. But that does not mean that Zina's relationship with her mother declined. Indeed, in February 2015 upon legal advice from her usual solicitors Apolonia appointed Zina and Basil jointly as her attorneys and enduring guardians, affirming her trust and confidence in both of them.
19. The Court accepts Zina's evidence that there was a wide range of continuing contact between her and her children and Apolonia after 2015. The Court not only accepts Zina's oral evidence of this; the conclusion is well supported by the photographic record which shows Zina's family members with Apolonia at many family functions.
20. By Zina's account, which the Court accepts, the level of Apolonia's dependence on Basil only rose sharply towards the end of 2018. Apolonia remained largely independent until then. Up until 2018 she was able to use public and community transport as well as taxis to attend church and various appointments. Apolonia's Opal card statements verify she was using public transport in 2018. Basil was working 12 hour shifts as a bus driver until early 2019, from when his employment changed, and he had more time at home with Apolonia. Moreover, Zina continued to accompany her mother to medical appointments, throughout these years and she provided financial assistance to her for taxis, her walking frame, and medical supplies.
21. Basil contends that there was a falling out between Apolonia and Zina after 2015. She denies any major rift between them. The Court does not accept Basil's evidence that Zina was deliberately ignoring her mother on occasions after 2015. Basil contends that Zina did not ask her mother to memorial services for the father during the last five years of her life. The Court accepts Zina's evidence that she consulted with her mother about whether the services should be held at the cemetery or the church and accepts that it was Basil that did not attend some of these ceremonies.
22. But there were tensions from time to time between mother and daughter, as might be expected when Basil was living with Apolonia at Schofields and Zina was living some distance away and managing a busy family. As Basil said, Apolonia would complain to him about Zina from time to time. But this is understandable as he was with Apolonia far more often than Zina.
23. These occasional tensions and the fact that Basil was nearby meant that Zina was not seeing or contacting her mother quite as often as she had before. For example, by late 2019 - early 2020 she was not telephoning her mother every day or even several times a week. This can be inferred from the fact that when Basil failed to tell Zina that his mother had been admitted to hospital on 2 January 2020, Zina did not find out she was in hospital for a week. Had she telephoned on a regular basis she is likely to have discovered this. This is indicative that at least some tension had developed in the relationship or that other family demands were so distracting for Zina that she could not always give priority to her mother.
24. The 2018 My Will document is confirmation that Apolonia and Zina's relationship had not fundamentally changed as late as January 2018. Apolonia's 2005 will and 2009 codicil were organised through the solicitor that she regularly consulted, Mr Tihomir Stoikovich. He threw some light upon the circumstances in which Apolonia created the 2018 My Will document. After Apolonia died, Mr Stoikovich explained to Zina that in 2018 Apolonia had telephoned him and requested a meeting to update her Will because "she wanted to divide her estate equally between you and Basil". Mr Stoikovich set Apolonia's mind at rest, advising her that her codicil already provided for this and that there was therefore no need for her to update her will. This explains why the handwritten 2018 My Will document was not associated with any more formal testamentary instrument.
25. Basil says that Apolonia never communicated to him the substance of the 2018 My Will document. But the Court does not accept this. First, the Court does not accept Basil's denial. Second, the very strong terms of the 2018 My Will document - "such was the will of their father Very Rev. Basil Czerwaniw and I want them to stick to it" is a basis to infer that she is likely to have communicated such strong feelings. Third, Zina says she did so constantly, and Apolonia is likely to have treated both children the same way on this subject. Fourth, in November 2019 Apolonia said much the same thing to Zina's son, Michael Dybac. She reaffirmed that she was treating her children equally in her will. He telephoned her about an unrelated matter and during the conversation he said to her of her estate that "everything [is] to be split 50/50" between Zina and Basil when she died.
26. There are disagreements between Zina and Basil about aspects of Apolonia's medical conditions up until 2019, including whether she was suffering incontinence and as to her precise cancer diagnosis. But the Court does not have to decide these disputes.
27. But in summary by early 2019 Apolonia had a good relationship with both the children, a relationship which suffered the occasional tensions that arise within families due to conflicting needs and circumstances. It changed again in 2019. Some analysis of these changes is required to understand Apolonia's attitudes to her children as she entered hospital in early 2020.

From Early 2019 until Apolonia is Hospitalised in Early 2020

1. In 2019 Basil's personal circumstances began improving, "a little bit" as he explained. In early 2019, Basil ceased working for the State Transit Authority and commenced in a temporary part-time position in the Sydney Area Health Service. His part-time work remunerated him with a professional rate of pay, which was higher overall than he had been earning as a bus driver. In this new role Basil could alternate between a 2-day and a 4-day work week. As a result, he could spend more time looking after his mother at home. Early 2019 brought him other good news: he was discharged from bankruptcy. And by the time Apolonia was admitted to hospital in January 2020 Basil could say of his financial situation "things had actually started improving a little bit", a description which the Court accepts as accurate.
2. But 2019 was a hard year for Zina. She said and the Court accepts, that she was dealing with difficult personal issues of her own that year. As a result, although she spoke to her mother on the phone, she did not see her mother as often in 2019. Zina did not want to burden her mother with her own issues as her mother "had enough problems". This naturally led to greater distance between mother and daughter and probably some complaints by Apolonia to Basil about less attention coming from Zina.
3. Basil's movement to part-time employment and his greater availability at home explains Zina's evidence that in early 2019 Apolonia no longer required her to assist with tasks such as visiting the cemetery or going to church. Apolonia naturally turned more to Basil for these immediate tasks. Zina found that her mother no longer needed her for these tasks "very upsetting".
4. Despite Basil taking over some of the routine engagements which Zina had historically assumed, Zina continued to visit and telephone Apolonia through 2019. She continued to pay for her mother's mobile phone, allowing her mother to contact her whenever she needed. The Court accepts Zina's evidence that she stayed in touch with her mother throughout 2019, although less frequently than before. On Basil's own evidence, Zina visited Apolonia at home at least three times in October and November 2019.
5. Apolonia must have been aware of the long-standing tension between Zina and Basil. Apolonia's comments to Zina's son Michael that her "only wish is that Basil and Zina get on" show she was aware of this conflict. Now that Basil was home more often it made sense for Apolonia to have contact with Zina by telephone rather than in person, to avoid conflict between the two. And Zina did not want to see Basil. She tended to visit when he was not at home. His greater presence at the Schofields property in 2019 limited her opportunities to see her mother.
6. In summary, the year 2019 was unusual for the Czerwaniw family. But the fundamentals had not really changed. It can be inferred that Apolonia must have been aware of the decades of support she had from Zina and the affectionate relationship that they shared. The nature and frequency of Zina's contact with her mother changed in 2019 but their fundamental relationship did not deteriorate. It could not be inferred that by the end of 2019 Basil had displaced Zina in his mother's affections or sense of moral obligation towards her children.

Events Over Christmas 2019 and New Year 2020

1. Apolonia's health continued to decline in late 2019. On 18 December 2019 she was admitted to Westmead Hospital for the treatment of a chronic ulcer in her right leg, which was secondary to peripheral vascular disease. She underwent angiography arterial imaging on 23 December which indicated chronic occlusion of the arteries in her right leg and angiography of the left leg could not be completed due to the patient's pain. Using an arterial balloon technique, some of her arteries were recanalized through angioplasty. Her treatment was effective in the short term, and she was discharged on 24 December.
2. In the Ukrainian Orthodox tradition Christmas is not celebrated on 25 December 2019 but on 7 January. Family gatherings on Ukrainian Christmas Eve, or Sviat Vechir, are celebrated on 6 January with the cooking of 12 dishes. Apolonia was very accomplished in preparing these dishes and did so until about 2018 when the family gathered for Sviat Vechir at Schofields.
3. Zina telephoned her mother on about 30 December to invite her to celebrate Christmas Eve at Zina's property in Manly. But Apolonia said to her "I have spent many Christmases with your family. I will be spending this Christmas with Basil and his family." The Court accepts that during this conversation Apolonia and her mother wished one another a happy New Year and concluded the conversation on mutually good terms.
4. Basil says that in the last week of December 2019 Apolonia was having difficulty walking and could not attend the Zina's home at Manly. This was probably another factor behind Apolonia's decision to stay at the Schofields property for Christmas Eve. Ultimately Apolonia and Zina spent Ukrainian Christmas Eve apart. But the Court does not accept that this indicates that their relationship was broken. The Czerwaniw family are hardly unique in experiencing tension over deciding where to gather for Christmas.
5. Apolonia was re-admitted to Westmead Hospital on 2 January 2020, after experiencing increased persistent pain in her lower right leg. The Court accepts Zina's evidence that she had not contacted her mother between 30 December 2019 and 10 January 2020 because she wanted her mother "to be with Basil and his kids". Given the good relationship that Zina claims with her mother, not contacting her for 10 days is perhaps surprising at such a time of year. But the Court accepts that their relationship had not fractured, and that Zina's evidence is to be accepted that she was not put out about her mother spending Christmas with Basil because "we had spent so many Christmases together."
6. Zina was not made aware that her mother was hospitalised either on 18 December 2019 or 2 January 2020. Her conversation with her mother on 30 December had not alerted her to the earlier admission. Apolonia's 2 January 2020 admission was serious. Basil's account of his conduct when Apolonia was admitted to hospital on 2 January 2020 was some of his least satisfactory evidence. He said that it did not occur to him to ring his sister between 2 and 9 January 2020: "I just did not think of it. I did not think of it at all." And the reason he gave for this was, "we had no relationship". Basil said that he and Zina were never close. That can be accepted. But Basil's failure to inform Zina immediately of his mother's hospitalisation reveals a lack of care and respect for both his mother and his sister. It demonstrates his willingness to keep his sister in the dark about their mother's health, to undermine the relationship between his sister and his mother, and his lack of insight into the paramount importance of his mother's well-being at a time of crisis.
7. Basil finally rang Zina at Apolonia's prompting at about 6:20 pm on 9 January 2020, shortly before Apolonia was due to go into surgery. The Court accepts Zina's evidence that Basil started this communication by saying to Zina with incongruous bluntness, "Don't you know Mum might lose her leg?", eliciting the understandable response from Zina, "Oh is Mum in hospital, is she at home? Where is she?". Yet even then Basil did not tell Zina that their mother was about to undergo potentially life-threatening surgery.
8. Zina visited Apolonia in Westmead Hospital the very next day. Had Basil told her that the surgery was imminent she would undoubtedly have gone to Westmead Hospital that night. The proper conclusion from these conversations is that Basil was content to leave Zina under a misapprehension about the seriousness of their mother's condition. Had Basil told Zina on 2 January 2020 that Apolonia had been admitted to Westmead Hospital, Zina would have visited her there.
9. Basil had long closed his sister out of his life. His description that he had "no relationship" with her is reasonably accurate. It accounts in part for this litigation. He repeated it with conviction again and again in his evidence. His conduct is wholly consistent with that conclusion.
10. Zina was also asked about her and Basil's relationship. To a question whether it could be said that she and Basil had never been close, she tended to play down their differences stating: "Basil and I have our differences. We have an eight-year age gap between us, so we have - we have our differences". On the best view of their relationship, there was an absence of affection and communication from early in their lives. During their formative years in Schofields, Basil did not mix informally with Zina's family. Zina's and Basil's families did attend significant occasions together, such as weddings or the celebration of Ukrainian Christmas or Easter, although even this declined after Basil moved into his mother's house in Schofields.
11. Basil stoutly denied in cross-examination that not long before 9 January 2020 he had a conversation with his mother about changing her will to benefit him. It was suggested to Basil that such a conversation was the probable trigger for Apolonia deciding just before the operation to change her will to give her house to him. But the Court does not accept that Basil was promoting his cause in this way either on the evening of 9 January 2020 or in the days leading up to it.
12. These reasons now deal with the overall course of Apolonia's readmission to Westmead Hospital on 2 January 2020.

Rehospitalisation - 9 January 2020 up to 7.00 pm

1. Apolonia represented to the Emergency Department of Westmead Hospital on 2 January 2020, reporting ongoing pain, an inability to mobilise due to pain, together with oedema. There she came under the overall care and supervision of the senior vascular surgeon at the hospital, Associate Professor Mauro Vicaretti. After her re-admission, an angiography was scheduled for 6 January, and re-scheduled for 9 January. The aim was to investigate the impaired blood circulation that was thought to be the source of an ulcer on Apolonia's lower right leg.
2. The procedure ultimately commenced at 9.12 am on 9 January. It resulted in a further balloon angioplasty being performed, to open the blood vessels in Apolonia's right leg. A thrombolysis was also performed to chemically reduce a blood clot within these blood vessels. The medical objective of these procedures was to restore blood flow into the arteries of the of Apolonia's right leg to prevent further disease processes arising in the leg due to poor circulation. But both procedures were unsuccessful in restoring adequate blood flow to the leg.
3. At about 1 pm, shortly after the lower leg angioplasty and thrombolysis had been completed without success, Apolonia developed 'rapid atrial fibrillation'. Hospital staff called for advanced life support, called a 'code blue' request. The type of medical emergency that she suffered was in the category of either a cardiac arrest, a collapse, or a sudden change in the level of Apolonia's consciousness. Among these possibilities the precise reason for the call for the medical emergency team that day is uncertain but that it was required is well established. About an hour after the code blue incident, at approximately 2.00 pm Apolonia received several anaesthetic agents and more in the 3 ½ hours thereafter.
4. It is useful first to describe the medical procedures Apolonia underwent that afternoon followed by the medications that she received from about 2.00 pm. At 2:18 pm following her "code blue" Apolonia was described in the medical notes as experiencing "significant anxiety". At 2.30 pm, she was transferred to Ward A3C, the high-dependency surgical unit, for monitoring. She was stabilised there. At approximately 3.10 pm, the vascular team's review of Apolonia's condition resulted in their decision that her lower limb angiography should be redone. At 3:47 pm she was transferred to radiology for her second lower limb angiography to be performed. At 4.25 pm, the procedure was redone and was completed at 5.10 pm.
5. At 6.20 pm, Apolonia was transferred from radiology back to her ward. Throughout the transfer, Apolonia experienced "short episodes of tachycardia". Dr Perera assessed her at this time as "struggling" and "in significant pain".
6. At 6.26 pm, Apolonia was informed by the two members of the vascular team involved with her immediate care, Dr Perera and Dr Dinh, that she required an emergency open thrombectomy as her vascular blockages had not been cleared and there had been no identifiable improvement after the two attempts at thrombolysis. The doctors advised her that without a thrombectomy her leg may have to be amputated to avoid the life-threatening progress of gangrene from the limb. Basil was with Apolonia throughout the giving of this advice. Apolonia and Basil together consented to the thrombectomy.
7. Apolonia signed a consent to thrombectomy form at this time. Her signature on the consent document appears to be reasonably well formed. It is probable that she had her glasses with her at this time, although the evidence about that is uncertain. Preparations were made to conduct the emergency surgery that same evening. It was at about this time that Basil telephoned Zina about her mother's situation. Shortly after 7 pm Apolonia was transferred into the operating theatre anaesthetic bay for the preliminary procedures before the thrombectomy.
8. The medications administered to Apolonia that afternoon can now be usefully described in their treatment context. The anaesthetic experts who gave evidence agreed that the only medications administered to Apolonia on 9 January 2020 that may have had central nervous system effects upon her between 7:30 pm and 8.00 pm, were those administered in the 3½ hour period from shortly before 2.00 pm until shortly after 5:30 pm. These covered the aftermath of her code blue incident and her second angiography. She had been administered other medications shortly before 6.00 am that day but these did not have central nervous system effects and have been ignored.
9. The medications administered to Apolonia were accurately recorded in her Westmead Hospital patient health record. In this 3½ hour period the medications of relevance administered to her were buprenorphine, midazolam, fentanyl, and oxycodone. It was agreed that these medications were administered at the following times and in the following amounts: 1. 1.57pm onwards: buprenorphine - 20mcg per hour; 2. 1.57pm: midazolam - 2mg; 3. 1.58pm: midazolam - 1.5mg; 4. 2.02pm: fentanyl - 100mcg; 5. 2.05pm: fentanyl - 50mcg; 6. 3.19pm: fentanyl - 25mcg; and 7. 5.32pm: oxycodone (Endone) - 5mg.
10. These four medications were administered by different means. The midazolam and fentanyl were administered intravenously. The oxycodone was administered orally. The buprenorphine was administered to her continuously by means of what is known as "a Norspan patch", a transdermal modified release patch, which the experts accepted delivers 20mcg per hour of buprenorphine, a figure which the Court adopts. Although some of the Westmead Hospital Medication Administration records appeared to indicate that the rate may only be 10mcg per hour. The expert evidence was that reliable quantities of buprenorphine are delivered by a Norspan patch throughout its 7-day life. Apolonia had received a buprenorphine patch on 3 January which was due to be replaced on 10 January.
11. In summary in the 3½ hour period on the afternoon of 9 January, Apolonia received: midazolam - 3.5mg, fentanyl - 175mcg, oxycodone - 5mg and buprenorphine - 70mcg. The anaesthetic experts agreed that each of these drugs had been administered to Apolonia within acceptable ranges, given the characteristics of the patient and the procedures she was undergoing.
12. Although Apolonia underwent her first angioplasty after approximately 9 am no medications having central nervous system effects were noted as having been given to her during this procedure.
13. The experts agreed that the only medications administered to Apolonia on 9 January 2020 that may have had central nervous system effects upon her between 7:30 pm and 8.00 pm, were those administered in the 3½ hour period from shortly before 2.00 pm until shortly after 5:30 pm. She had been administered other medications shortly before 6.00 am that day but these did not have central nervous system effects and have been ignored.

Apolonia's Surgery - The Evening of 9 January

1. The Court heard from four hospital staff who were involved in the emergency surgery, Dr Tejas Chikkerur, the primary anaesthetist and three members of the vascular team: Dr Kalpa Perera, a vascular surgeon trainee, Dr Krystal Dinh, a vascular registrar and Dr Thirimadura Diwan Mendis, a resident medical officer working with the geriatrics team at Westmead Hospital. Their accounts of the course of Apolonia's surgery and her request to change her will were largely consistent, differing only in details that might be expected in such a high-pressure environment and consistent with the extensive medical records. The findings below are based on their evidence.
2. All the doctors agreed that the situation was critical for Apolonia. If the medical team did not act quickly, she was likely to lose her right leg as it would have become gangrenous. Dr Perera explained to his patient and to Basil that the surgery was high risk given that Apolonia was in her 90s.
3. Apolonia was transferred from her room in the high-dependency surgical unit to the operating theatre at around 7.34 pm. Basil did not accompany his mother to the operating theatre and from this point she was under the complete care of hospital staff. Basil recalls that just before she left, Apolonia said to him "how did it get to this?" which he understood as referring to her happy to have an operation in which she could die. He responded, "Mum I do not know".
4. Apolonia was wheeled into the anaesthetic bay adjacent to the operating theatre. Dr Chikkerur and an anaesthetic nurse initially attended to her and began preparing her for anaesthesia. Dr Chikkerur was clear that Basil was not present in the anaesthetic bay. That was neither good practice, nor he said what happened.
5. Dr Chikkerur spoke with the patient about the placement of anaesthetic lines. He could not recall the specifics of the conversation. Dr Chikkerur, having completed his preparation of the patient, handed her over to the vascular team. He does not recall Apolonia raising the issue of changing her will until she was taken from the anaesthetic bay to the operating theatre, about 20-30 minutes after he first met her. He does recall her responding "grossly appropriately" to the conversations he held with her about anaesthesia and there was nothing to indicate to him that she did not have the ability to converse properly with him. But he did not attempt to assess her mental capacity and could not give "any specifics" about that subject.
6. But Apolonia did raise the subject of changing her will in the anaesthetic bay, probably when Dr Chikkerur had completed his preparations with her and was attending to other duties. Prior to Apolonia being taken into the operating theatre, in accordance with standard protocols, Dr Perera and Dr Dinh spoke to her in the anaesthetic bay to obtain her consent to undergo the surgery. Dr Chikkerur was not present when this conversation took place. Dr Mendis was not there either. He went directly to the operating theatre for the operation. As he had previously treated Apolonia, he wished to join the surgery out of interest in her welfare. Dr Dinh recalls Dr Mendis being present in the anaesthetic bay but she is probably mistaken about this detail.
7. Dr Dinh and Dr Perera each recall Apolonia first asking to change her will in the anaesthetic bay, prior to her being moved into the operating theatre. They recall her request in slightly different words but to the same effect. Dr Dinh recalls her saying "I have not updated my will for a long time. Basil has been living with me and caring for me for months. I want the entirety of my estate to go to Basil." Dr Perera was initially reluctant to act on this request. He was concerned about the operation being delayed.
8. But when he and the nurses tried to transfer Apolonia from her hospital bed onto the operating bed, she refused unless her will was changed. Eventually, Apolonia agreed to be transferred and she was transported into the operating theatre to commence surgery. Once she was in the in the operating theatre, a "time out" period commenced; this being a protocol allowing medical staff to conduct final checks, such as identifying the patient and confirming the procedure before any anaesthetics are administered.
9. During the time out period Apolonia continued to insist that her will be changed. Dr Chikkerur, Dr Perera, Dr Dinh and Dr Mendis all heard her repeated request. Dr Perera recalls Apolonia insisting, "I want to change my Will. I want my son to have the house if anything were to happen to me". Dr Mendis recalls her saying, "I want to change my will. I want to leave my house to my son Basil."
10. Recognising the surgery was urgent and in Apolonia's best interests, the doctors discussed the situation and decided to accede to her request by preparing a document for her to sign expressing her wishes. Dr Perera said he and Dr Dinh agreed to prepare a document changing Apolonia's will, "so that we could operate on [her] and save her leg". He did not know, "what else to do to convince [her] to proceed with her surgery." He thought "time was of the essence" and that "every moment we lost made her leg less likely to be salvaged in the surgery."
11. The evidence from Dr Chikkerur, Dr Perera, Dr Dinh and Dr Mendis of the writing of the Change of Will document that followed largely converges, with one exception. Dr Dinh thought the document was written in the anaesthetic bay. But the Court accepts the evidence of the other doctors that it was written either in the operating theatre itself or a nearby control room.
12. Dr Dinh retrieved a nearby piece of paper and wrote on it "Change of Will". Dr Perera dictated the contents of the document to capture Apolonia's wishes. Apolonia did not dictate the document. Dr Dinh transcribed Dr Perera's words. She left a space for Apolonia to write her name. Apolonia was lying on the operating table and could not write the document herself. Dr Dinh read out the words of the document to Apolonia and asked her, "is this what you wanted?" The doctors do not recall Apolonia responding. But it was undoubtedly in the affirmative because she wrote her name in the blank space that Dr Dinh had left and she signed the document. Dr Mendis, Dr Perera and Dr Dinh were present. They signed the document as witnesses.
13. As might be expected in these circumstances, the doctors did not raise with Apollonia any questions about the extent of her estate or her family or anyone who might have a claim upon her testamentary bounty. The doctors did not know that Apollonia had two children, a daughter as well as her son Basil. This is not a criticism of the doctors. Their focus was elsewhere.
14. The operation then proceeded. Dr Chikkerur administered a general anaesthetic at 8.02 pm. Dr Chikkerur had not given Apolonia any preoperative anaesthetic medications when she was in the operating theatre for her thrombectomy surgery before she executed the Change of Will document.
15. The surgery commenced at 8.07 pm and was successfully completed at 11.15 pm. The patient was moved to the recovery bay at 11:21 pm. At 1.15 am on 10 January she was transferred to the ward. The progress notes record that she awoke "slightly disoriented" but soon became alert and oriented as to time place and person. The medical notes do not refer to Apolonia signing the Change of Will document in the operating theatre.

From Apolonia's surgery until her death on 28 January 2020

1. Basil and Zina each visited Apolonia on the morning after the surgery. Basil says that he spoke with his mother and with Dr Perera about the emergency surgery. He gave an account of the exchange with them in his oral evidence, saying that his mother was "quite proud" of having held up a surgery until she changed her will. He said: "So, what happened as I went into - I visited her - it was about - I came in at about 8.30. I think it was Dr Kalpa walked into the room. He said, "How - how did" - I walked up to him I said, "How did things go?" And he said, "Well, apart from an issue with a will at the beginning, it went okay after that," so I didn't know what he meant by that, so then I turned around and I walked across to my mum, and as I've said in my affidavits, I said "What - he just said something about a will. What happened there?", and then my mum explained to me what happened, how she told the doctors to stop. She wasn't going to have anything done until she had changed - she wanted to change her will, and she was actually quite proud that she - for some reason, that she told all four of them, because Dr Vicaretti was there, as well, to stop."
2. Basil claimed that Apolonia was insistent that Dr Vicaretti, one of her treating doctors, was in the operating theatre. When asked whether he was curious to see what was in the document that his mother had mentioned, Basil said, "I was more concerned about my mother."
3. The Court cannot accept this account for several reasons. Basil claimed that Apolonia was insistent that Dr Vicaretti was in the operating theatre. None of the hospital staff placed Dr Vicaretti there, when the Apolonia asked to change her will, and the Court finds that he was not. This might not be to Basil's discredit; it may simply show Apolonia was confused. But other matters make Basil's account improbable.
4. Dr Perera disagrees with Basil's version. He was "fairly certain" that he never discussed the document with Basil. Moreover, each of Dr Perera, Dr Dinh and Dr Mendis, deny speaking with either Apolonia or Basil about the will following the surgery.
5. Basil's account of his reaction to what he claims was the very good news he received that morning cannot be believed. If Apolonia did tell him that morning that she had left the house to him, it would have revealed to him for the first time that he would have future financial security.
6. But he did not react like a man who had received such good news. He agreed that "it came as a shock" but "I did not really give it a great deal of thought" and when asked whether the fact that he was getting the house came as a relief to him he said "no, I had no emotional response to it whatsoever". None of these claimed reactions is credible.
7. Nor is his conduct at the time. Had he been told by Apolonia or the doctors that she had made a will giving him the house, given his financial situation he is likely to have wanted at least to see a copy of the document both to verify what he was being told and to ensure that it did not go astray. But he showed a surprising lack of interest in the document. He did not go looking for it or seek to ensure that it was not misplaced, explaining unconvincingly, "I did not feel it was right to do so". It is difficult to understand how he could have thought that it was not "right" to seek to secure and preserve a document that he thought reflected Apolonia's last wishes. Perhaps even more remarkably, on Basil's account Apolonia showed no interest in seeing the document, she had apparently remembered signing but had not seen it since.
8. Between 10 January and Apolonia's death Basil says he discussed the Change of Will document with Apolonia "several times" in hospital. He says that Apolonia said to him "what are you worried about? I've left you the house" to which he says he responded, "mum, I am not thinking about that." If he was aware of the Change of Will document, he did not tell Zina about it. But the Court does not accept that these discussions took place. The probabilities are that he was unaware of it before her death.
9. Apolonia remained in Westmead Hospital and survived until 28 January 2020. She exhibited occasional signs of confusion and delirium during January. But these were after the administration of the general anaesthetic for Apolonia's thrombectomy operation. They are not covered in any detail in these reasons as they are likely to be the result of the general anaesthetic given to her at about 8.00 pm on 9 January rather than anything given to her that same afternoon. The parties pointed to evidence in the Westmead Hospital medical records both before and after 9 January 2020 of the Glasgow Coma Scale results for Apollonia. But the experts agreed that these were of little assistance to them in the contest about her testamentary capacity at the relevant time.
10. Basil and Zina and members of the Dybac family continued to visit Apolonia. On 20 January 2020, Apolonia's doctors held a meeting with Basil and Zina and other family members to discuss her health and the condition of her right leg. Amputating Apolonia's right leg was discussed but Zina explained that her mother "was not going to have her leg cut off or amputated" and Apolonia did not consent to the procedure.
11. Apolonia had spent all her life seeking to have her children get on with one another. The long-term tension between Zina and Basil clearly distressed her. Even in mid-January 2020 when she was in hospital discussing her medical options including potential amputation of her leg, one of the doctors asked her, "what do you want?" Somewhat avoiding the difficult medical question, Apolonia replied to the doctor, "all I want is for my children to get on". Indeed, she did.
12. Neither Zina nor Basil expected Apolonia to die as early as 28 January 2020. Basil is critical that Zina was away on a pre-booked holiday the time. But Zina claims that her mother wanted her to go, as no one was expecting any short-term deterioration in her condition.

The Change of Will Document Emerges - March April 2020.

1. It is customary for Ukrainian families to wait 40 days after a death to discuss testamentary matters. On 2 March 2020 Zina contacted Basil and then again on 19 March, enquiring about "our next steps". On 20 March Basil sent her a text message back which included the following: "As I have been grieving Mum's death, money and assets are the last things I have been thinking of. However, as you are keen to proceed as quickly as possible, I must let you know that I have been told that Mum independently made a final will. I do not know it's [sic] contents as I did not ask, nor have I seen it. As a result of your messages, I have given instructions for it to be retrieved. This may take up to three weeks. So until the final Will is determined, there are no next steps to discuss."
2. Basil's statement, "I do not know its contents, as I did not ask" is not consistent with his testimony to the Court. He now says that he was aware of its contents from as early as 10 January and that he did not need to ask because his mother had told him. But this contemporaneous text message is more likely to reflect the true situation. He was not misleading his sister in this text message. He said much the same to a solicitor shortly afterwards. By then someone had alerted him to the existence of the Change of Will document.
3. In March Basil went to Westmead Hospital and applied for a copy of the Change of Will document. Westmead Hospital Medical Records located the document. Westmead Hospital insisted it be collected by the executor of Apolonia's will. Zina applied and collected it on 8 April. The same day Zina authorised the release of the document to Basil.
4. With this background, the Court now examines what drugs and anaesthetic agents Apolonia was given on 9 April and their likely effect upon her when she executed the Change of Will document.

Medications Administered to Apolonia on the Afternoon of 9 January 2020

1. The effects that medications - both individually and in combination - had on Apolonia's cognition, and ultimately her testamentary capacity, shortly before 8pm on 9 January 2020 is a central issue in these proceedings. The Court's focus was upon medications that may have central nervous system effects that might affect thinking, cognition and decision making, as opposed to other side-effects such as on the gastrointestinal or respiratory systems. These included analgesics, anaesthetics and sedatives. This section examines Apolonia's pre-existing medical conditions and the expert evidence as to the likely effects of these medications on her. The relevant medications administered to her have been identified earlier in these reasons.

The Expert Anaesthetists

1. Three expert witnesses addressed the effect of these medications. Their expertise was not in issue. Dr Gregory Deacon was appointed by the Court as a single expert. But leave was granted before the hearing for the parties to call additional experts. Professor Ross MacPherson was called in Zina's case and Professor Robert Sanders was called in Basil's case. There was a contest about whether additional experts should be called beyond the Court's single expert. A question may arise after this judgment as to how the costs of the parties' additional experts should be borne. Despite their slightly differing titles these experts were content to be referred to as "Dr" and these reasons adopt that course.
2. The Court-appointed expert, Dr Deacon is a Consultant Anaesthetist with over 40 years of practical experience in anaesthesiology. Dr Deacon is a Fellow of the Australian and New Zealand College of Anaesthetists (FANZCA), holds the Diplomate of the American Board of Anaesthesiology (Dip ABA) and is a Fellow of the Faculty of Anaesthetists, Royal Australian College of Surgeons (FFARACS). Dr Deacon was awarded Life Membership of the Australian Society of Anaesthetists in 2009. He commenced as a Visiting Specialist Anaesthetist at St. Vincent's Hospital Sydney and Prince of Wales Hospital Sydney in 1986. He continued his appointment at St. Vincent's Hospital until 2021 and continued at the time of trial to be a Visiting Specialist Anaesthetist at Prince of Wales Hospital. Prior to these appointments he briefly lectured in anaesthesia at Harvard University and from 2004 to 2006 was the President of the Australian Society of Anaesthetists.
3. The expert called in Zina's case, Professor Ross MacPherson is a Consultant Anaesthetist with over 40 years of pharmacological experience including over 25 years of practical experience in anaesthesiology. Professor MacPherson is a Fellow of the Australian and New Zealand College of Anaesthetists (FANZCA), a Fellow of the Society of Hospital Pharmacists of Australia (FSHP) and a Fellow of the Royal Society of Medicine - London (FRSM). Since 2016, Professor MacPherson has held the position of Senior Staff Specialist at the Royal North Shore Hospital Sydney and Clinical Professor at the Sydney Medical School, University of Sydney. He is also currently a Visiting Medical Officer (Anaesthesia) at the Northshore Private Hospital and the Northside Private Hospital. Professor MacPherson has extensive research experience, is widely published on the subjects of anaesthesia and analgesia, and is a reviewer for several journals, including the international journal "Anesthesia and Analgesia".
4. The expert called in Basil's case, Professor Robert Sanders is a Consultant Anaesthetist and is currently a clinical academic at the Royal Prince Alfred Hospital Sydney and the University of Sydney. Professor Sanders is a Fellow of the Royal College of Anaesthetists (UK), holds the Diplomate of the American Board of Anaesthesiology (Dip ABA), and is a Fellow of the Australian and New Zealand College of Anaesthetists (FANZCA). Prior to Professor Sanders' current appointment, he served as an Assistant Professor in the Department of Anaesthesiology at the University of Wisconsin. Professor Sanders undertook postdoctoral research at the Institute of Cognitive Neuroscience, University College London. Professor Sanders has extensively researched, and is widely published in, the cognitive effects of anaesthetic and sedative agents. Professor Sanders is also the author of the European Society of Anaesthesiologists guideline of postoperative delirium and has researched the mechanisms and prevention of delirium.
5. The experts advanced individual reports, Dr Deacon's as the Court-appointed expert. Once Dr MacPherson and Dr Sanders had reported, the Court directed that a conclave of experts occur. It took place on 21 January 2022 and a joint report was produced identifying areas of agreement among the experts. They gave evidence in a joint expert session during the hearing.

Apolonia's Health on 9 January 2020.

1. Prior to her admission to hospital Apolonia suffered several debilitating pre-existing medical conditions. The most significant of these were ischemic heart disease, atrial fibrillation, type 2 diabetes mellitus, hypertension, hyponatraemia (low serum sodium) peripheral vascular disease, and chronic pain.
2. In the longer term past she had suffered from breast cancer and had undergone a resected gastric tumour. Some evidence suggests that by January 2020 she had been diagnosed with lung cancer and had fluid on the lungs.
3. After her admission to Westmead Hospital on 2 January 2020, Apolonia also exhibited the acute medical conditions for which she had been admitted, including impaired blood supply to the right lower limb and associated pain and disability. This worsened during the first few days in hospital to the point that she was at risk of having to have her right lower limb amputated.
4. The Court accepts the evidence of Dr MacPherson that two of Apolonia's pre-existing conditions are likely to have had some effect upon her mental capacity. Her hyponatraemia was evident in a serum sodium blood level consistently in the range of 128 - 130 mEq/L after admission. The measure of mEq/L represents milliequivalents per litre, an indication of the amount of the substance which will react with a given number of hydrogen ions, which is a measure of concentration. The normal range in a healthy individual is 135 - 145 mEq/L. Low sodium ion levels in hyponatraemia can manifest in lethargy, fatigue and confusion. Apolonia's levels were mildly low, but according to Dr MacPherson such levels are often associated with changes in mental function and possibly confusion.
5. Type II diabetes can have significant effects on a patient's cognitive function, especially in older patients. The extent that Apolonia's type II diabetes may have had on her cognitive functions is uncertain.

Characteristics of the Medications Administered to Apolonia

1. Each of these four drugs administered to Apolonia on the afternoon of 9 January 2020 has well-recognised specific effects. Buprenorphine is a long-acting opioid used for long term pain management. Midazolam is a potent amnesic drug designed to have specific effects on the central nervous system, reducing anxiety and having both sedative and amnesic effects. Although the sedating effects of midazolam are limited, the effects on cognition can be long lasting. Fentanyl is a potent synthetic opioid used for pain relief. Oxycodone is also a synthetic opioid also used for pain relief.
2. The experts first gave evidence about two fundamental characteristics of these and related medications, their half-life and their pharmacokinetic and pharmacodynamic effects, which are relevant to the Court's wider analysis.
3. The half-life (the time it takes for blood concentrations of the medication to reduce by one half) of midazolam can be significantly extended in elderly patients. Dr MacPherson and Dr Sanders gave slightly differing half-lives for Midazolam, 1 to 4 hours and 1.8 to 6.4 hours, respectively. They ultimately agreed that these ranges were of the same order of magnitude and the differences between the experts were explicable, because they had been sourced from different references. Dr MacPherson indicated that the half-life of midazolam could double in elderly individuals with reduced renal function and may be prolonged by the presence of other drugs, such as fentanyl, which share the same metabolic pathways as midazolam. Dr Sanders regarded these opinions as reasonable, and the Court accepts them.
4. The experts explained that it was important to appreciate the difference between the pharmacokinetic and the pharmacodynamic effects of these medications. The pharmacokinetic effect of a medication is the effect that the body has on the levels of medication in the bloodstream: how the drug is handled by the body, which can be chemically measured. The pharmacodynamic effect is the effect that the medication has on the body.
5. Dr Deacon said and the Court accepts that in the elderly a very small dose of midazolam can have a profound and prolonged pharmacodynamic effect, which does not necessarily fit with the speed at which the medication is being eliminated. Dr Sanders said, and the other doctors agreed, and the Court accepts, that there is "quite a lot of variability in pharmacodynamics and pharmacokinetics and that makes it harder for us to have certainty about how an individual will react [to a medication]".

The Experts Conclusions before the Conclave

1. The experts expressed contrasting opinions before the Court directed conclave, which resulted in their joint report on 21 January 2022. The primary reports of the experts offered opinions on the ultimate issue of Apolonia's capacity to make a valid will. But this question is a matter for the Court, based on all the evidence including the expert evidence and is not determined by the expert evidence alone.
2. Dr Deacon and Dr MacPherson said that given Apolonia's age, pre-existing medical conditions, and the medications administered to her on 9 January 2020, it is unlikely Apolonia had the requisite mental capacity to make the Handwritten Document. Dr Deacon opined: "It is my expert opinion that it is highly unlikely that at her age of 92 with all the morbidities already mentioned and with prolonged ischaemia of her leg combined with the abovementioned opiates and benzodiazepine that her cerebration could be considered adequate to write a will. Consent for surgery and anaesthesia is not considered possible nor acceptable once sedatives such as midazolam and fentanyl are administered. I would consider writing a will would be subject to the same constraints."
3. Dr MacPherson expressed the view as follows: "I am of the opinion that it is highly likely that the combined effect of the drugs administered to Apolonia would have adversely affected her mental state and diminished her capacity on 9 January 2020 to remember the claims of her children and more particularly affected her ability to assess and reason as to the relative strength of those claims."
4. Professor Sanders initially agreed it was "plausible" that the combination of Apolonia's advanced age, acute pathophysiological processes, and the combination of psychoactive medications administered to Apolonia on 9 January 2020 "could induce a state of reduced cognitive ability". He further opined that "with respect to the capacity of a hypothetical patient, I think the circumstances presented could produce a state of testamentary incapacity". But he said his opinion should be qualified depending upon the available evidence qualified impairment, stating: "An episode of disorientation was noted prior to the change of will event, with more episodes noted after the event. This description, in combination with the clinical and medication history, is consistent with the potential state of delirium. In delirium, subjects judgment is typically impaired. However lucid intervals can intervene between episodes of disorientation and hence it is impossible to be certain the deceased's judgment was impaired at the time the deceased [gave] instructions for and then signed the handwritten document prior to 7:53 pm on 9 January 2020. Hence in the supplied materials, I am unable to identify any objective evidence that the deceased's judgment was impaired at the time she gave instructions for and then signed the handwritten document prior to 7:53 pm on 9 January 2020."
5. After these written reports were filed the experts met in a conclave under the Court's direction.

Areas of Agreement and Disagreement Among the Experts after their Conclave

1. There were substantial areas of agreement among the experts, as was recorded in their joint report resulting from their conclave, although some areas of disagreement remained. The conclave agreed that: 1. As an opening statement all three experts agreed that it is impossible to say with certainty what was the testamentary capacity of Apolonia when the written document was signed as no formal testing had been performed. … 3. All three experts agree that the combination of various medications given on the day of surgery, combined with the patient's pre-existing health problems would more likely than not have affected Apolonia's cognitive ability. 4. To paraphrase a statement from one of the experts [Dr Sanders]: a. 'It is plausible that the combination of advanced age (90 years) (2) several acute pathophysiological processes including acute limb ischemia… Myocardial injury … Electrolyte disturbance and (3) the combination of psychoactive medications notably midazolam, fentanyl and oxycodone would likely induce a state of reduced cognitive ability.' The italics highlight a minor change to the statement from [Dr Sanders] original submission that represent the conclave shared belief that , on a population level, more patients than not would incur some impairment of cognitive ability when faced with the stressors.' 5. All three experts agree that it is accepted that consent for surgery is not considered valid if the patient has received sedation prior to being asked to sign consent. … 6. All three experts agree that the general advice given to patients following either anaesthesia or sedation is that they should not "drive, operate machinery or complete legal documents" within 24 hours following the procedure. These statements are advisory only. … 7. All three experts agree that the NSW Department of Health's guidelines recommend junior medical staff do not witness legal documents for patients. [emphasis in original]
2. The central contest among the experts was the probable effect of the identified quantities of the medications upon Apolonia's cognitive ability, a term which includes her memory function, judgment, and her ability to reason. The experts were all agreed, as they indicated in the joint report, that the combination of these medications in the quantities in which they were administered to Apolonia would more likely than not have affected her cognitive ability, given her age and pre-existing health problems. The dispute between them was the extent to which the medications had that effect.
3. It should be noted at this point that after the oral evidence Dr Sanders provided some additional research material, but the Court did not find that it bore closely upon the issues for determination.
4. The experts disagreed on two main issues and debated their disagreement. They also gave evidence expanding upon their slightly different perspectives on the issues upon which they agreed, largely reaffirming the positions they had originally held, that have been described above. The issues of disagreement are dealt with first followed by a discussion of the broad areas of agreement.
5. Disagreement - Consent to Surgery. The experts debated the relevance of Apolonia signing a consent to surgery. They had different views on the relationship between the capacity to consent to surgery and testamentary capacity.
6. On this issue, Dr Sanders expressed the opinion that: … if the surgical team felt that Apolonia was capable of consenting to her own surgery, then it would reasonably follow that the team would also estimate her to have testamentary capacity to complete the "written document". [Dr Sanders] also suggested that there was insufficient evidence presented to refute this.
7. Dr Deacon expressed the opinion that: … although the time of completion of the consent for the surgical procedure is unknown, the patient may still have been under the influence of medication given earlier in the day, thus raising the question as to the validity of the consent, and also of any testamentary capacity.
8. And Dr MacPherson took a neutral stance, expressing the opinion that: … it is too complex a matter to try and correlate whether provision of surgical consent would necessarily imply that testamentary capacity was intact. Hence, he also cannot support the proposition that if in the opinion of the surgical team, Apolonia had cognitive capacity to understand and sign her own surgical consent form, then this implies she would also have testamentary capacity.
9. This issue can be put to one side. The Court does not have to decide whether a valid consent to surgery was taken from Apolonia when at about 6:26 pm, Dr Perera and Dr Dinh discussed the contemplated thrombectomy with Apolonia and Basil and obtained Apolonia's written consent to proceed.
10. The Court must look directly at the question of testamentary capacity. Conclusions about testamentary capacity do not depend on whether proper procedures were followed in relation to Apolonia's consent to surgery. Apolonia may have had testamentary capacity at between 7:30 pm and 8 pm even though her consent to surgery was of doubtful validity. Equally she may have lacked testamentary capacity after giving a valid consent to surgery. The tasks are quite different. It is not a profitable exercise to reason to the validity of the consent to surgery and then draw inferences about testamentary capacity when the Court can reason directly. This issue need not be considered further in this section of these reasons but is considered further below in the application of legal principle.
11. Disagreement - Evidence of Impaired Cognition. The experts debated whether Apolonia showed signs of impaired cognition and the significance of any findings on that question. The debate on this issue exposed a major difference in approach between Dr Sanders on the one hand and Dr MacPherson and Dr Deacon on the other hand. This regarded the central issue of the inferences to be drawn about whether Apolonia suffered from impaired cognition between 7:30 pm and 8 pm just before her thrombectomy.
12. On this issue, Dr Sanders said that if the surgical team did not observe signs of cognitive impairment that it could be reasonably assumed that it was not present. He said: … if there was nothing recorded [in the medical notes] that implied Apolonia was exhibiting signs of impaired cognition (largely based on the observations from surgical team) and the surgical team went through the process of informed consent with the patient immediately prior to signing the "written document", then it could be reasonably assumed, based on the presented evidence, that the patient was not cognitively impaired at the time of signing the "written document".
13. Dr Sanders was acting on good factual foundations here. The medical notes between 7:00 pm and 8.00 pm do not record that Apolonia showed any signs of cognitive impairment and the doctors involved in making the Change of Will document did not observe any obvious signs of cognitive impairment in her. Although none of these doctors undertook formal cognitive capacity testing of Apolonia before the execution of the Change of Will document.
14. Dr Deacon and Dr MacPherson agreed with Dr Sanders that "there was nothing in the notes to suggest that Apolonia was exhibiting any signs of diminished cognitive capacity between 7.00 pm and 7.53 pm". But they did not support Dr Sanders' view that a lack of positive behavioural evidence that pointed to Apolonia having impaired cognitive capacity was the right starting point for reasoning.
15. Dr Deacon answered Dr Sanders on this question with Dr MacPherson in support. They said it could be inferred that Apolonia had impaired cognition without positive evidence of her behaviour that pointed to that conclusion. The Court finds their opinions persuasive. Dr Deacon said the following: WITNESS DEACON: Yes. Thank you. I - I - I think this - one of the points here is that proving the patient was cognitively impaired, to me, is not the issue. It's - it's being - it's ascertaining that the patient was not cognitively impaired that - and was capable in this circumstance. Now, that is - I don't think there was any assessment done. The residents there are not in any way - there was no evidence that they made any assessment of this patient formally of the - the - the lady's ability to function and - at a - at a level capable of signing a will. You - there's many a case you meet a person who might be significantly impaired, have significant Alzheimer's, for instance, and when you first meet them, they seem absolutely fine, until you ask them what day it is or where they are, and suddenly you realise they have no idea. It can be quite - it can be quite - certainly, superficially, they can appear very - quite normal. Now, this woman, I don't think there was - as far - as far as I can see, any formal assessment. And the key is, was she in a fit state to make such a - an - a - a very important decision, that is to change her will, and rather than what she cognitively impaired? I think it's the other way we should be looking at it. With all the drugs that she'd had and all those things we've written, many of which are quite long acting in - this woman was - never had any opiates before she was admitted to hospital. She didn't have a - she was quite opiate naive in that way. She had no tolerance to these drugs before she was admitted on the 2nd. And - and then she had these drugs commenced, plus, she had all those other things of sleep deprivation during all those - all the monitoring throughout there, and - and getting sicker and sicker with her toxic in leg, and all the other comorbidities. It's - it's just - and then she had narcotics and benzodiazepines in the hours before, and the benzodiazepines particularly make you often amnesic. It's just, to me, hard to believe that this woman was not impaired, but the key thing is to prove that she was not impaired, that she was in a fit state. I don't think there was any appropriate assessment of that done, and I can't imagine in the real world you'd find - you know, you certainly would normally agree to a consent for surgery, as we said - as you were talking about, that's not exactly pertain - not exactly on the subject, but in that circumstance, that - a normal patient, you'd say, well, I spoke to her three weeks ago, she agreed to the surgery, or you get a relative to agree to it, but you don't get her to sign a consent when she's got all those drugs onboard. And to - to sign a will, I - I think is just - I just could not be confident that that woman was able to know what she was doing and even remember what she was doing, and by 7 o'clock the next morning, when you read the notes which I'm happy to refer to, the nurse was saying she'd been confused all night, and the son said, "Well, she's been getting progressively more confused throughout her admission." Anyway‑‑
16. Dr Deacon had said in his initial pre-trial report that in elderly frail patients such as Apollonia midazolam is far more potent and that it is likely that she would have had no memory of anything that occurred in the 24 hours following her receiving it, including the writing of a new will. He said that fentanyl has a reasonably short action but when combined with midazolam both drugs have a greater sedative effect, and that oxycodone would almost certainly be having sedative effect at about 7:30pm.
17. Dr MacPherson agreed with Dr Deacon's oral evidence here and noted that the medical records make no mention of the patient's mental state. He said that this indicates is that no specific questions were asked about that subject, so it remains "hidden". But he explained that one cannot assume there was no cognitive impairment merely from the fact there was nothing recorded for the patient.
18. Dr Sanders disagreed and contrasted his experience. He said he was trained in dementia research at the Wisconsin Alzheimer's Disease Research Centre where capacity assessment was based upon the principle that individuals have capacity until proven otherwise, and that is the viewpoint on which he based his reports. He also said that elderly patients such as Apolonia do not exhibit florid delirium from which the clinician can say that the patient really is confused. He said that such elderly patients, "exhibit much more subtle effect" and "they are harder to assess" and therefore proper screening tools are advised for the elderly. He then went on: "And that's somewhat consistent with what Dr Deacon said, and it really is dependent on how much the doctors actually inquired about orientation to time, place, and person for us to get some indication of what the cognitive [ability] of an elderly individual in that situation would be"
19. With this evidence Dr Sanders really moved towards the position held by Dr Deacon and Dr MacPherson on this issue. He acknowledged that his position was "somewhat consistent" with their evidence, which it was.
20. The doctors in the operating theatre involved with the Change of Will document did not make positive enquiries about Apolonia's mental state, the Court concludes that they were not well-equipped to infer from the absence of negative behavioural evidence that her cognitive abilities were not impaired. Thus, an inference of impaired cognitive abilities remains open.

Some Broad Conclusions from the Expert Evidence

1. This returned the Court to Dr Deacon's opinion: that he would find it hard to believe that Apolonia was not impaired and that he would be "surprised if she was not seriously impaired" by these medications given all the circumstances, her age, her toxic comorbidities and stresses, that she was opiate naïve, the complexity of the will-making task facing her, and that there was some evidence later of confusion on her part.
2. The Court accepts Dr Deacon's opinion that it would be surprising if Apolonia was not seriously impaired at the relevant time for this task. The lack of a formal cognitive assessment means it cannot be assumed that she was not impaired because an elderly patient may not exhibit obvious signs of cognitive deficit. Here, as the Court analyses below, there was considerable evidence from the content of the Change of Will document itself and the wider circumstances that Apolonia was likely to be suffering from serious cognitive impairment.
3. The expert panel also considered the effects that the amount of midazolam administered to Apolonia was likely to have on her compared to a younger and fitter person. Dr Deacon and Dr MacPherson were of the view that it was likely to be "a big dose" for her. The evidence was the following: EVANS: Looking at the specific medications that were administered to Apolonia, 3.5 milligrams of midazolam, what would that level of that medication normally be administered to a person. WITNESS DEACON: I'm happy to take the question. That's - midazolam is incredibly variable in its - in the doses and the effects. And I would think a - a reasonably healthy person in their 50s, you could give them 5 milligrams of midazolam and they would nod off to sleep, and - and then they would be reasonably awake in half an hour. Reasonably awake. A 90-year-old, 1 milligram of midazolam and they might be unrousable for 12 to 18 hours. I've had them - you know, the next day, they're still practically unrousable. 3 in the morning, they're finally waking up. In other words, it's incredibly variable, and a - and a - and I - you know, a frail, sick 90-year-old, I think 3.5 milligrams is a lot. And I would be giving her half a milligram and just see, and then maybe another half. So, it depends. A fit person, you give them 10 milligrams of it - I've given 10 milligrams of midazolam and there's no effect at all. They're sitting and talking to you. So, it's quite variable. But for her, I think that's a big dose. EVANS: Dr MacPherson. WITNESS MACPHERSON: Yes, I agree. Variability is the name of the game here, and the age, the relationship of - of age and sensitivity is, as Dr Deacon says, I would agree with that statement.…
4. The evidence continued, with Dr Sanders saying that "it is very hard to know what a dose is in this situation" and that you "basically give larger doses to people who can take larger doses, so you end up saying "well she had a large dose". But he went on to say "It could be an indication of her resilience to the pharmacology rather than an indication to her sensitivity of the pharmacology because the anaesthetists present felt that she needed more medication not less medication. So, it is very hard to opine for an individual whether too much was given, because there are people there who are actually giving drugs who have decided that's the dose that's required."
5. And Dr Deacon agreed with Dr Sanders about assessing the right dose, "you have got to be there to know".
6. Finally, the evidence turned to how the clinician can assess whether the effects of midazolam have worn off some hours after it was given. It is to be noted that the Change of Will document was made a little under 6 hours after the midazolam was administered. Dr Sanders pointed out that there are obvious investigations that can be made for such an assessment: seeing whether the patient is sedated, sleepy or rousable. Inquiries could be made about what the patient remembered and whether amnesia is present to see whether "their cerebration is now at a stage where they can write a new will. That is much more complex than being able to be roused and verbalise and respond to a question".
7. But Dr Sanders explained that because of that uncertainty that good anaesthetic practice is that you "should not be signing legal documents for 24 hours after such sedation, should not drive a car, and should not operate machinery." He explained these are "blunt instruments" but it has been the standard advice "throughout my career that for 24 hours after anaesthesia that you do not make decisions that are important, you do not sign legal documents and you do not drive a car". And in this case "we cannot be sure". The other experts agreed this was the applicable general standard.
8. Some broad conclusions can be drawn from the expert evidence. First, due to Apolonia's age and frailty, her comorbidities and the combination of opiates and other drugs administered to her, the half-life of midazolam in her system on the afternoon of 9 January 2020 is likely to have been closer to 6 hours and potentially longer. Thus, at close to 8.00 pm Apolonia is likely to still have had very substantial quantities of midazolam present in her bloodstream approximating half the dose administered to her at 2.00 pm.
9. Second, the psychodynamic effects of the amount of midazolam and all the other medications administered to Apolonia in the six hours up until the time she made the Change of Will document, combined with her opiate naïveté, her co-morbidities particularly her ischaemic right leg and the stresses she had endured on 9 January 2020, make it unlikely that her cerebration was not interfered with to some degree at that time. Moreover, it is open to infer that it was seriously interfered with at the time, and it would be surprising if it was not seriously interfered with at the time.
10. Third, there is considerable uncertainty in now ascertaining whether Apolonia was free of interference to her cerebration from the medications she was administered in her circumstances. Although Apolonia's presentation did not raise concerns about her interference with her cerebration for the doctors present, because no memory or other cognition test was administered to Apolonia before she made the Change of Will document, such interference cannot be excluded.
11. Fourth, long-standing, widely accepted, safe but blunt precautionary advice to persons taking anaesthetics agents of the kind administered to Apolonia in the six hours before 8.00 pm on 9 January 2020 is that for 24 hours the patient should not make decisions that are important and should not sign legal documents.

Midazolam and the Disputed 10 January 2020 Morning Conversation

1. The parties contested whether early in the morning of 10 January 2020 Apolonia could give an unprompted account to Basil of making the Change of Will document. The Court has already found for several reasons that it does not accept Basil's account of this conversation.
2. But the expert evidence provides another reason for rejecting Basil's evidence on the subject: the amnesic effect of midazolam makes Basil's evidence improbable. Dr Deacon said in his report that it is quite likely that Apolonia would have had no memory of anything that occurred on the 24-hour period following receiving midazolam, including the writing of a new will. The Court took that issue up with the experts resulting in the following exchange: HIS HONOUR: … one of the issues before the Court is that whether or not Apolonia, after she came to after the operation and in subsequent days, remembered the making of the will document. There [are] competing inferences that the counsel may ask me to draw about that. I am interested therefore in the amnesic effect midazolam. Upon in effect, [the] laying down of memories about the events we are talking about. Doctor Deacon, you say on page 178 that midazolam is a potent amnesic drug. You say at the foot of that page, "it's quite likely that she would have no memory of anything that occurred in the 24-hours following received midazolam, including the writing of a new will". It is pretty clear what you are saying Doctor. Apparently, to you there would no great surprise after the operation she didn't remember if I read that correctly. I am really asking Dr McPherson and Dr Sanders; do you agree with that? It is one of the matters in contest before me. WITNESS DEACON: Just to add to that, I mean I base that on very much on my clinical experience. Over forty years. It is a potent amnesic. You will see patients the next day who have had not much apart from midazolam, or you talk to them after their anaesthetic. You will explain things to them and then you see them the next day, they have got no recollection you spoke to them at all. The amnesia. Although other drugs, propofal is another great amnesic, not so well recognised but midazolam and benzodiazepine, have a potent amnesic effect in my opinion. Clinically. HIS HONOUR: Dr McPherson and Dr Sanders? WITNESS MCPHERSON: Yes, this is so. The prime reason that midazolam is used because of its amnesic properties, so that a person goes in to have surgery midazolam is usually giving prior to entering the anaesthetic room. Most people don't have any memories of being put on the table, and actually going off to sleep. That is the primary purpose of midazolam. Dr Deacon is right. The objective variant that certainly can exist for a long time. HIS HONOUR: Thank you, Doctor. Dr Sanders do you agree with that? WITNESS SANDERS: Yes, so in the main I do I agree with Dr McPherson and Dr Deacon that midazolam is a profound amnesic drug. I am not sure that three and a half milligrams of midazolam alone would introduce 24 hours of amnesia. I think that I am sure, I am very confident it would introduce a few hours of amnesia. But 24 hours a very long period. Certainly, if it was combined with a general anaesthetic though, it is reasonable that, that would occur. I think in combination of many drugs it is certainly possible that a patient could have 24 hours of amnesia associated with midazolam exposure and general anaesthesia. A fact in issue is whether, having been administered analgesic and sedative agents, Apolonia would have had memory of making the 9 January will the next day.
3. Dr Sanders was less certain of the amnesic effect of midazolam operating for a full 24 hours. But when midazolam is combined with a general anaesthetic Dr Sanders is open to that conclusion. Based on this evidence the Court infers that it is quite unlikely that on the morning of 10 January (about 18 hours after being given the midazolam) Apolonia remembered executing the Change of Will document (about 6 hours after being given the midazolam).
4. The three experts also addressed the subject of retrograde and anterograde amnesic effects of midazolam. Dr Sanderson was of the view that it was a profound agent for inducing anterograde amnesia, which is the formation of new memories, but it also has limited effect on retrograde amnesia, on recalling memories which are already laid down.
5. Leaving aside the possibility of retrograde amnesia from the general anaesthetic given at about 8.00 pm the Court concludes that impairment due to anterograde amnesia from the midazolam given at about 2.00 pm was likely to impair Apolonia's memory of executing the Change of Will document, so that Basil's account of his conversation with his mother on the following morning is unlikely to be correct.

Arguments Advanced in Basil's Case about the Expert Evidence

1. Several arguments were advanced in Basil's case about aspects of the expert evidence. The reasons why they are not persuasive are explained in this section.
2. Mr Evans argued that Dr Sanders' evidence should be preferred over the evidence of Drs Deacon and MacPherson, in part because Dr Sanders curriculum vitae shows he has done specific study on the impact of anaesthetic agents on cognitive function. That Dr Sanders has done such studies is beyond question. But Mr Evans' supplementary written submissions on 7 March stated that the Court had indicated during oral submissions that it "was inclined to place greater weight on the clinical experience of Drs Deacon and MacPherson over the academic (or theoretical) experience of Dr Sanders". This is not a correct summary of the exchange that took place in final oral submissions on this issue. When Mr Evans put submissions that Dr Sanders' evidence should be preferred because of his research, the Court said, "this is a debate I am very cautious about getting into Mr Evans". The Court described Drs Deacon and MacPherson as having a "very rich clinical experience" which they do. But the Court then said: "I don't think I can say to both of you I am going to be deciding this case in relation to the experts of the balance between clinical and academic experience. I am not sure that is something I should be coming down on either side on, because I am not sure its clear enough to the Court to do so".
3. The Court does not prefer the evidence of Drs Deacon and MacPherson on some a priori basis that clinical experience is always more compelling than academic experience. Rather the Court relies on the combination of the expert and lay evidence to conclude that the reasoning path chosen by Drs Deacon and MacPherson better reflects the correct judgments about Apolonia's degree of impairment based on all the medical and lay evidence.
4. Mr Evans next argued that the "clinical" experience of an anaesthetist is limited to administering anaesthetic agents to a patient after engaging in pre-surgical assessment to determine if the patient understands the risks in their administration and accepts that risk. But Mr Evans' submitted that once an anaesthetic had been administered to the patient that "clinical" experience did not extend to assessing the cognitive functioning of the patient after the surgery.
5. This is an excessively narrow view of the clinical experience of anaesthetists. The issue was not fully debated but it is not at all difficult to infer that the full suite of clinical experience of anaesthetists must as a matter of common sense include assessing the after effects of anaesthetic medications at various times after surgery, as the anaesthetist remains responsible for the patient's welfare until the patient emerges from anaesthesia and is stabilised. This argument is not persuasive.
6. In support of his argument in a supplementary written submission filed on 7 March 2022 Mr Evans sought to tender (and the Court has now admitted into evidence) the supplementary report of Dr Sanders on this issue. It is unfortunate that the report was not debated with the joint expert evidence, but the Court will do the best it can with the additional material. Dr Sanders' evidence is "not only do trained anaesthetists have limited training in cognitive assessments, but they also have limited opportunity to follow up patients hours after a case has been completed". Dr Sanders claims in the supplementary report that he is in a superior position to give an opinion because of his research: "My research cohort [including > 200 patients], includes deep phenotyping of the cognitive changes in the patient post operatively, with extensive cognitive assessments including test of memory, visuospatial ability, attention as well as delirium assessments, occurring from hours to years after surgery. Hence, I have unique insights into these matters due to this extensive experience in both clinical and cognitive matters."
7. Regrettably because of the time at which this report came into evidence the correctness of the statement of Dr Sanders "unique insights" was not able to be subjected to the same rigorous testing that was applied to the joint expert evidence. But the Court does not accept the view that Dr Sanders' research necessarily puts him in a unique or superior position to make the judgments required in these proceedings.
8. This is so for several reasons. Drs Deacon and MacPherson very clearly spoke from actual experience from treating and conversing with patients post-surgery and assessing the effects of anaesthetic agents upon them. Much of their evidence was concerned with the subtle effects of anaesthetic agents on judgment and executive functions and they exhibited a demonstrable familiarity with those effects in a wide variety of situations. The Court cannot accept that specialist academic study is necessarily superior to their decades of clinical experience.
9. Mr Evans then asks the Court to choose between Dr Deacon and Dr MacPherson on the one side and Dr Sanders on the other on the basis that Dr Sanders was provided with a copy of Dr Chikkerur's report, and the others were not and that the Court should have very close regard to Dr Chikkerur's oral evidence. Mr Evans submitted that none of the expert evidence had the benefit of Dr Chikkerur's oral evidence.
10. This argument is not persuasive for several reasons. First, it is difficult to act on the criticism because Dr Deacon and Dr MacPherson were not confronted in cross-examination with the material from Dr Chikkerur that was shown to Dr Sanders but which they had not had an opportunity to examine, namely the later affidavit of Dr Chikkerur. But Dr Deacon and Dr MacPherson were aware that Dr Chikkerur was the anaesthetist for the Apollonius thrombectomy and they had his principal statement.
11. Second, it is not clear from the submission made how it is suggested that the additional statement of Dr Chikkerur should have altered their evidence to align it more with Dr Sanders' evidence. Third, when it comes to the expert witnesses not having the benefit of Dr Chikkerur's oral evidence there is something of a contradiction in Mr Evan's position. On the one hand he is relying upon Dr Sanders' evidence to say that practising anaesthetists have limited training in cognitive assessments. On the other hand, he also says that the experts should have had regard to Dr Chikkerur's oral evidence of his assessment of Apolonia. He is a practising anaesthetist who presumably had little training with cognitive assessments.
12. Leaving that conundrum aside, the oral evidence of Dr Chikkerur does little to shift the reasoning away from Dr Deacon and Dr MacPherson's conclusions towards the position of Dr Sanders. It is undoubted that Dr Chikkerur confirmed that he performed an informal assessment of Apollonia in the anaesthetic bay prior to her surgery and that she responded "grossly appropriately" to his questions and that she signed consent to administration of the anaesthetic to her and did not appear to him to be affected by medications administered to her earlier in the day. But Dr Chikkerur was clear that different patients, especially elderly patients, will respond differently to midazolam, fentynyl and oxycodone and that there is no certainty about the changes in cognition which will result from a combination of these drugs. His opinion on the variable effect of these anaesthetic agents is similar to that of Dr Deacon and Dr MacPherson.
13. Mr Evans argues that because Dr Chikkerur obtained the patient consent to anaesthesia from Apollonia after informally assessing her in the anaesthetic bay, that his evidence should satisfy the Court of Apollonia's general cognitive competence and testamentary capacity.
14. There are several difficulties with this conclusion. First, Dr Chikkerur only undertook an informal assessment of Apollonia, not full cognitive testing. He really took away an impression of her cognitive capacity sufficient for him to be satisfied that she could sign consent. Although he was a specialist anaesthetist who was present at the time, he did not commit to having undertaken any series of tests which were specifically aimed at ascertaining her testamentary capacity.
15. Second, the Court accepts the evidence of Dr Deacon that the effects of midazolam in the elderly can be "incredibly variable". And that superficial mental competence can mask deeper disturbances of function.
16. Moreover, assessing consent to surgery involves quite a different range of judgments, both in scope and quality from making a will to dispose of one's estate. It can be accepted that Dr Chikkerur was satisfied that Apollonia qualified on his examination sufficiently to consent to the surgery. Accepting that consent was unchallenged, there is still no easy path from there to infer that could make all the judgments necessary for testamentary capacity.
17. Mr Evans also argues that the inference that Apollonia was of sound mind when she signed her consent to surgery is strengthened because she ultimately showed she had considered the matter and refused the surgery until she had made a change to her will and that she did so on rational grounds.
18. This argument is not persuasive. To the extent the argument depends on her change her will being rational, the Court's analysis later in these reasons shows that is incorrect. But the rapid change from consenting to surgery and 6:26 pm and later consenting to anaesthesia and then within a short period of time going on to refuse surgery founds the opposite conclusion: it is some evidence of instability in Apollonia's thinking.
19. Mr Evans also criticises the expert evidence on the basis that to the extent that Dr Deacon talks of the pharmacodynamic effects of drugs like midazolam that he is saying that different patients, particularly patients with co-morbidities can suffer quite different sedation results from the same doses. Mr Evans says that Dr Deacon merely talks about sedation effects here and there is no evidence that Apollonia was sedated at about 7.30pm on 9 January 2020. But this is too narrow a reading of Dr Deacon's evidence. His evidence speaks to the broader pharmacodynamic effects of these drugs on elderly patients and the differential sedation effects are just obvious example of those differentials. He is not limiting his opinion to sedation.
20. Mr Evans next argues that Dr Deacon's opinion that Apollonia would have been sensitive to midazolam and fentanyl because she was a non-drinker and was "opioid naive" is wrong, because she had previously been administered opioid medications, for example during her stay at Westmead Hospital in December. But by describing Apollonia as "opioid naïve" Dr Deacon is not excluding the possibility of her having had some prior limited opioid medication. All he was saying was that she was not a regular consumer of opioid based medications or alcohol. She was not a regular taker of pain medications with opioid ingredients.
21. Mr Evans also suggests that special priority should be given to the evidence of the doctors that saw Apollonia on the evening of 9 January 2020. His argument is based on cases such as Croft v Sanders [2019] NSWCA 303 in which trial judges (upheld on appeal) treated forensic evidence as inconclusive and placed reliance upon the direct evidence of lay witnesses, who dealt with the testator. But there is no rule of law that expert medical evidence is always to be downgraded in the face of direct evidence of dealings with the testator. In Zorbas v Sidiropoulous (No. 2) [2009] NSWCA 197 at [165] Hodgson JA emphasised that applying the Banks Goodfellow criteria "are matters for common sense and judicial judgment on the basis of the whole of the evidence" and that medical evidence as to the medical condition of the deceased may be highly relevant but may at times be displaced in importance by direct lay evidence. The direct evidence here was in fact by medical expert evidence but the Court has explained its limitations.
22. Finally, Mr Evans suggested at one point that Dr Deacon's evidence should be doubted because he misapprehended that Basil was in the anaesthetic bay with Apolonia shortly before the operation. It is not clear to the court that Dr Deacon really thought this but if he did it was not an important part of his reasoning and it does not affect the Court's assessment of his evidence.

Applicable Principles

1. The applicable legal principles may be shortly stated. The test of testamentary capacity is whether the testator was of sound disposing mind when the will was made. In Banks v Goodfellow (1870) LR 5 QB 549 at 565, Cockburn CJ states the test for testamentary capacity, being "the degree of mental power which should be insisted upon", in the following terms: "…It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made."
2. The test has been long approved in high authority in Australia. In Timbury v Coffee (1941) 66 CLR 277 at 280 Rich ACJ, stated the relevant factors of a testator's competency as follows: "…The factors of competency are that the party must know what he is about, have sense and knowledge of what he is doing, and the effect his disposition will have, knowledge of what his property was, and who those persons were that then were the objects of his bounty (Frere v. Peacocke (1846) 1 Rob. Eccl. 442, at pp. 452-454;[163 ER 1095, at p. 1099])."
3. The party propounding the instrument carries the onus to establish testamentary capacity. In the event that substantial doubt is cast on the testator's competency, the Court must find the will is invalid unless it can be satisfied that the testator was of sound mind, memory and understanding at the time of execution: Bailey v Bailey (1924) 34 CLR 558 ('Bailey').
4. In Bailey, Isaacs J outlined several propositions which arose from the authorities, and stated at 570: "(1) The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument (Baker v. Batt (I838) 2 Moo. P.C.C. 317, at. pp. 319-320; Bremer v. Freeman (1857) 10 Moo. P.C.C. 306, at p. 357; Durnell v. Garfield (1844) 1 Rob. E. 5)"
5. In respect of the onus of proof, in Bull v Fulton (1942) 66 CLR 295 at 343, Williams J stated: "Usually the evidence is such that the question upon whom the onus of proof lies is immaterial, but it is clear to my mind that, although proof that the will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator's competency, then the court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it."
6. The party propounding the will must satisfy the Court of capacity to the civil standard of proof. Mere residual doubt as to capacity is not sufficient to defeat a plaintiff's claim to probate. The doubt cast as to capacity must be substantial enough to preclude a belief that the document propounded is the will of a testator of sound mind, memory and understanding. The joint judgment of Dixon CJ, Webb and Kitto JJ in Worth v Clasohm (1952) 86 CLR 439 at 453, states: "A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propended is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution."
7. When considering the question of validity of a will, the Court must distinguish between testamentary capacity and a testator's wisdom or fairness. Hodgson JA in Romano v Romano & Anor [2004] NSWCA 37 at [48] cited the following statement on this subject that Gleeson CJ (as his Honour then was) made in in Re Estate of Griffith: Easter v Griffith (1995) 217 ALR 284 at 291 ("Griffith"): "Where an alleged delusion concerns a fact, or state of affairs, bearing upon a judgment as to the moral claim one person has upon another's bounty, and the question of its falsity is capable of objective determination, the task of the court is relatively straightforward. However, there may be cases in which one person's estimation of another's claims may seem harsh and unwarranted, and perhaps even unnatural, but it is impossible to assign a reason for that, or to point to any false belief. Testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of most ordinary members of the community, but that does not make the will invalid."
8. This is not a case in which a solicitor drafted or was present when the Change of Will document was executed but it is useful to contrast a solicitor's duties in superintending the execution of a will with what occurred before the operation on the evening of 9 January 2020. A solicitor's duties for the taking of instructions for preparing or witnessing the execution of a will are well-established. Hallen AsJ (as his Honour then was) in Romascu v Manolache [2011] NSWSC 1362 at [169] helpfully isolated relevant statements on solicitor's practice from Santow J's judgment in Pates v Craig; The Estate of Cole (28 August 1995, unreported) ("Pates"). In summary, where testamentary capacity is in doubt, at the very least, a solicitor should ask the testator questions to ascertain the testator's basic understanding, to gain reasonable assurance regarding testamentary capacity. Santow J outlined three propositions to guide the solicitor's participation in the process, citing Mason and Handler's Wills, Probate and Administration Service NSW (Butterworths) at [10,019] (now (Mason and Handler's Succession Law and Practice NSW) (Butterworths)). Santow J said in Pates of the solicitor's duty: 1. The solicitor should attend on the testator personally and fully question them to determine capacity - where the questions should go to whether the testator understands that he or she is making a will and the effects of the will, the extent of the property to be disposed, and the claims which he or she should give effect to; 2. One or more persons should be present, as chosen by the solicitor with regard to their calibre as a witness should testamentary capacity be challenged. Where possible, this witness should be a medical practitioner, preferably the treating doctor of the testator, and who is familiar with the testator; 3. A detailed written record should be made by the solicitor, which includes the results of the examination recorded by the medical practitioner and the notes made by those present. 4. Once the above processes are followed, upon careful consideration of the circumstances, should the solicitor not be satisfied that the testator does not have capacity, he or she should proceed and prepare the will. As good practice, the solicitor who took instructions should prepare the will and be present upon its execution. Detailed notes should be taken at every stage of the process.
9. Santow J suggested in Pates that if real doubt remains, following the solicitor's consideration of the above factors, further steps may be desirable, including a more thorough medical appraisal.
10. If testamentary capacity is established, the question whether the deceased knew and approved the contents of the testamentary document in question must be considered.
11. Generally, the due execution of a will by a capable testator creates a presumption of knowledge and approval of the will's contents: Nock v Austin (1918) 25 CLR 519 at 528 ("Nock"); Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [46] ("Tobin"). But this presumption may be displaced where there are circumstances exciting suspicion that the provisions of the will may not have been known and approved by the testator: Nock at 528.
12. Where there is a challenge to a will's validity on the grounds of a want of knowledge and approval, the person making that allegation bears an evidential burden of putting the relevant ground of challenge in issue: The Estate of Juliana Voros; Cooney & Ors v Cherry [2016] NSWSC 1603 at [122] ("Estate of Juliana Voros"). The opposing party does not need to prove anything but must adduce sufficient evidence to raise the issue. The legal onus is always on the propounder of the will to satisfy the Court that the testator knew and approved of the will.
13. A Court will not allow a grant unless it is positively persuaded that it is the conscious act of a free and capable testator. In The Estate of Juliana Voros; Cooney & Ors v Cherry [2016] NSWSC 1603 at [125] Hallen J stated the principles in the following way: "Unless the suspicion is removed, and the Court is judicially satisfied that the paper propounded does express the true Will of the deceased, the Court ought not to pronounce in favour of its validity. The suspicion may be roused in varying degrees depending on the circumstances and what is needed to dispel those suspicions will vary accordingly. In other words, the extent of the proof required is proportionate to the gravity of the suspicion and the degree of suspicion varies with the circumstances of each case. [citations omitted]"
14. A recent case in the Court of Appeal establishes that the Court should not take a staged approach to determining knowledge and approval but it should consider all the relevant evidence available and then, drawing such inferences as it can from the totality of that material to come to a conclusion as to whether or not those propounding the will have discharged the burden of establishing that the testatrix knew and approved the contents of the document: Mekhail v Hana; Mekail v Hana [2019] NSWCA 197 per Leeming JA at [164]-[173], citing from Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430 per Lord Neuberger MR at [21]-[22].
15. Based on these authorities, when considering whether there are circumstances which excite suspicion that the deceased did not know and approve the contents of a testamentary document, the Court looks at several factors, including: 1. the mental acuity and sophistication of the testator; 2. whether the will in question constitutes a significant change from a prior will; 3. the circumstances surrounding the preparation of the propounded will; 4. the complexity of the will and the estate being disposed of; 5. the exclusion or non-inclusion of persons naturally having a claim upon the testator; 6. whether the propounded will, generally, seems to make testamentary sense; and 7. whether the testator has had an opportunity in the preparation and execution of the will for reflection and independent advice.
16. In Hoff v Atherton [2004] EWCA Civ 1554; [2005] WTLR 99 at [62]-[64], Chadwick LJ said: "A testator cannot be said to know and approve the contents of his will unless he is able to, and does, understand what he is doing and its effect. It is not enough that he knows what is written in the document which he signs. But if testamentary capacity - the ability to understand what is being done and its effect - is established, then it is open to the court to infer that a testator who does know what is written in the document which he signs does, in fact, understand what he is doing. And, where there is nothing to excite suspicion, the court may infer (without more) that a testator who signs a document as his will does know its contents. It would be surprising if he did not. … Further, it may well be that where there is evidence of a failing mind - and, a fortiori, where evidence of a failing mind is coupled with the fact that the beneficiary has been concerned in the instructions for the will - the court will require more than proof that the testator knew the contents of the document which he signed. If the court is to be satisfied that the testator did know and approve the contents of his will - that is to say, that he did understand what he was doing and its effect - it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator's capacity to make a will. It is because the court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents - in the wider sense to which I have referred."
17. In this case the evidence establishes that one of the doctors present read the will to Apolonia before she signed it. But this does not on its own establish knowledge and approval of the will. No presumption arises from the reading out of a testamentary instrument to a testatrix who then executes it, that she knew and approved of it and had knowledge and approval of it: Lewis v Lewis [2021] NSWCA 168 at [130] per Leeming JA; Meagher JA at [1] and Payne JA at [218] agreeing. It is of course one of the circumstances to be considered.
18. Meagher JA also comprehensively stated these principles in Tobin at 770 ([43] - [54]) as follows: "43. The appellants' first argument, as the primary judge observed, raises for consideration the relationship between knowledge and approval of the contents of the will, which the proponent must establish, and undue influence which is a defence to be made out by the opponent. More broadly it raises the inter-relation of suspicious circumstances, undue influence and testamentary capacity which, as Sopinka J observed in Vout v Hay [1995] 2 SCR 876 at 885, has perplexed both courts and litigants since Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089. 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."
19. These statements of legal principle can now be applied to the facts found by the Court.

Testamentary Capacity and Knowledge and Approval

1. Testamentary Capacity. The Change of Will document satisfies the formal requirements for a valid will. It is therefore capable of grounding a prima facie inference that Apolonia had testamentary capacity. But the whole of the evidence here is sufficient to throw doubt upon Apolonia's competency. The Court must therefore be satisfied affirmatively that she was of sound mind, memory and understanding when she executed it.
2. The Court is not so satisfied. Several features persist in undermining any conclusion that Apolonia had the requisite testamentary capacity when she executed the Change of Will document.
3. First, the absence of legal advice in Apolonia's case is significant indicator of imbalance in Apolonia's decision-making in the early evening of 9 January 2020. The relevant matter of concern is less the mere absence of the legal advice itself, but more the fact that Apolonia had not anticipated her need to change her will until anaesthetic medications had been administered to her earlier that day. The idea of changing her will began to dominate her thinking when it was too late for her to arrange to take legal advice before executing the Change of Will document.
4. Lack of preplanning in testamentary matters was most unusual for Apolonia. She had a long history of taking careful steps and always seeking the assistance of a solicitor in relation to her estate planning. A personal bias towards security and certainty in such important life decisions is hardly surprising in one who had witnessed such destructive chaos early in her life.
5. Between 2005 and 2015, she executed several estate planning documents with the assistance of solicitors, first Mr Michael Kencalo and later Mr Tihomir Stoikovich, both solicitors at the same law firm that Apolonia regularly consulted. And then in 2018, she contacted Mr Stoikovich, who confirmed that her 2005 will and the 2009 codicil continued to reflect her testamentary wishes. This history shows that when it came to important decisions about her testamentary wishes, she made appointments and consulted her regular solicitors. Until 9 January 2020 Apolonia was not an informal will maker. Her suddenly initiating the idea of altering her will and proceeding to immediate execution of it is a very significant departure from her established behaviour in times when she was not dealing with major health challenges.
6. The Change of Will document shows legal anomalies in two respects that signpost its rushed origins and lack of legal advice. It does not effectively dispose of the entirety of Apolonia's estate such that, if valid, it would fully replace Apolonia's 2005 will and the 2009 codicil. Moreover, the practical effect of the Change of Will document is to give virtually all of Apolonia's estate to Basil. It would have made sense with that new disposition for her to revoke Zina's appointment as her executor and appoint Basil in her place. But she did not do that, due to the fast pace of events in the operating theatre and in her want of supporting legal advice.
7. Second, the speed and force of Apolonia's decision to change her will is remarkable. Basil firmly denied having any conversation with his mother about the subject of changing her will in his favour before he farewelled her into the anaesthetic bay about 7.00 pm. The Court accepts his denial. But absent any prior conversation about the subject with Basil or anyone else, Apolonia's idea of altering her will seems to spring into being for the first time after 7.00 pm and immediately to become so powerful that she was prepared to veto life-saving surgery unless she could make it happen. Apolonia had not perhaps confided to Basil in the days or weeks leading up to 9 January 2020 that she wanted to change her will. This indicates a disturbance in her normal patterns of behaviour and thinking about important life decisions.
8. A countervailing consideration is that she was here being presented with unexpected and potentially risky surgery in which she would be placed under a general anaesthetic at an advanced age, after the failure of two other procedures. These circumstances perhaps forced the subject of her will into her thinking. But it is still remarkable that the idea had not arisen earlier and been acted upon in some form, especially as the circumstances that may have prompted the idea had been in existence for a long time, as the Court explains below.
9. Third, the evidence of the expert anaesthetists accepted by the Court in the full analysis of their evidence earlier in these reasons is a sound basis to conclude that the quantity of medications administered to Apolonia would be likely have had a substantial effect upon her reasoning and judgment when she executed the change of Will document. The Court accepts the opinion of Dr MacPherson and Dr Deacon on this subject. The quantity of medications administered to her means that a substantial effect upon her reasoning and judgment at the relevant time cannot be excluded on the balance of probabilities. Even that negative inference is sufficient to leave the Court not affirmatively satisfied that she was of sound mind, memory and understanding when she executed the Change of Will document.
10. In answer to this third inference, Basil's case is that the Court here is in the exceptional position of having direct evidence from four medical practitioners, Dr Perera, Dr Dinh, Dr Chikkera and Dr Mendis, none of whom discerned any impairment in her cognition at the very time that she executed the Change of Will document.
11. But there are two answers to this point. The evidence of the expert anaesthetists, Dr MacPherson and Dr Deacon, neutralises this inference. They are not prepared to exclude the likelihood of substantial effects on Apolonia's reasoning and judgment from the quantities of the combined medications she had been given before she made the Change of Will document. Moreover, none of Dr Perera, Dr Dinh, Dr Chikkera or Dr Mendis undertook any kind of cognitive testing of Apolonia. They understandably had other priorities. And the Court accepts the expert evidence that without cognitive testing an impaired person can present without signs of impairment.
12. Fourth, the Change of Will document is at odds with Apolonia's existing affectionate and close relationships with each of her two children and it significantly changed her long-standing and oft-repeated testamentary wishes. Those wishes were to divide her estate equally between her children (and at one stage between their respective families) upon her death. Some identifiable change in circumstances would be expected to explain a change such as this to long-standing testamentary preferences. But no change in Apolonia's circumstances rationally explains the alteration in her testamentary intentions.
13. Basil's submissions on this issue posit several altered circumstances that might explain the Change of Will document: Basil's divorce and separation, his financial need to move in with his mother, his bankruptcy, and the alteration in Zina's relationship with her mother in the last years of Apolonia's life.
14. None of these posited changes is adequate to explain the Change of Will document being made in January 2020. Basil's divorce and separation had occurred before the 2009 codicil and long before the 2018 My Will document, both of which reaffirm the equal division of Apolonia's property. Basil moved in to live with Apolonia in 2012, three years before Apolonia appointed Basil and Zina jointly as her attorneys and enduring guardians and six years before she reaffirmed her testamentary preferences in the My Will document. Although Basil moving in with his mother in Schofields in November 2012 would have demonstrated to her his pressing financial needs, her acceptance of him into her household rent-free immediately satisfied much of her parental obligation to him during her lifetime and is unlikely to have added strongly to her sense of moral obligation to provide for Basil after her death.
15. Moreover, Basil's bankruptcy in 2016 precedes Apolonia's 2018 My Will document and statements that she made in April 2019 to Michael Dybac reaffirming the equal division of her property in her will.
16. Deterioration in personal relationships between Apolonia and Zina is also a poor explanation of the Change of Will document. Apolonia's personal history is important here. Her earliest memories must have been of the violent disruption of fundamental family relationships by forces beyond her control. Stability in family relationships was important to her. Later in life she repeated her desire to maintain good relationships within her family. She had given effect to this by conspicuously treating her children equally until the Change of Will document. This was reaffirmed by her repeated statements to Zina that she and Basil would each receive half of Apolonia's estate when she died.
17. Apolonia had stable, well-established relationships of warmth and affection with each of her two children. It can be accepted that some distance had grown into her relationship with her daughter, Zina, compared with Basil. But this was inevitable when Basil was living with her, and that Zina was not. But Apolonia appeared to consciously maintain a close affectionate relationship with both her children. She was not estranged from Zina and Zina had done nothing to warrant her mother's major or permanent displeasure at the time of her death.
18. Fifth, even if it is assumed in Basil's favour that Apolonia did decide at the last minute to favour him and not to treat Zina with complete equality, the Change of Will document is still not rational. It might be expected in those circumstances that Apolonia would have given some thought to how much of her estate she would give to Zina, either from the small balance of her estate or as a condition of Basil receiving the house. Apolonia's failure to provide any balancing factor in her will or to recognise her relationship with Zina shows that she was not able to properly evaluate her daughter's compelling and legitimate claims upon her testamentary bounty.
19. Sixth, Apolonia did not remember making the Change of Will document after she executed it and before her death. She did not mention it to her solicitor or her daughter. The Court does not accept that she discussed it with Basil. Nor did she make inquiries with hospital staff as to the location of the Change of Will document to ensure its safe storage. Her failure to follow up the document is at odds with her urgent wish to execute it on the evening of 9 January 2020. Her subsequent conduct is consistent with her not remembering executing the document due to some memory impairment at the time she executed it.
20. One argument put on behalf of Zina on the question of testamentary capacity is not persuasive. Zina argues that the mistakes that Apolonia made in the spelling of her name in the Change of Will document indicates a degree of enfeeblement that points to her lack of testamentary capacity.
21. But the difficulty with this argument, as it relates to both the mistakes she made, the misspelling of "Apolonia" and the misspelling in Ukrainian of "Paula", is that there is no clear evidence to show that she was physically well supported, in a comfortable position, with a firm writing surface when she executed the change of Will document. All the doctors present at the time were asked about these matters and none of them could give clear or reliable account of her position at the time. She was in the operating theatre, on the table or bed of some kind, lying horizontally. It is not suggested that she was able to sit up to sign the document or get into a chair and write on a firm surface. She therefore was in a difficult posture for writing firmly and clearly. Moreover, she struggled to read documents without her prescription glasses, and she did not have them with her in the operating theatre at the time of execution. She could neither see what she was writing nor check what she had written on the Change of Will document.
22. The Court cannot reliably draw any inferences about her degree of impairment from her writing in such circumstances and the Court declines to do so. There was considerable evidence about the formation of her writing in the Change of Will document, but this has only been referred to only sparingly in the narrative of findings above.
23. Knowledge and Approval. The Court is also not satisfied that Basil has discharged the onus that he bears of demonstrating that Apolonia knew and approved the contents of the Change of Will document when she executed it. This is so for several reasons. The reasons discussed above that create doubts about her testamentary capacity also bear upon the issue of knowledge and approval. In addition to those the following matters should be mentioned.
24. First, the speed with which the idea for the Change of Will document arose and Apolonia's determination to execute it before she went into surgery meant that medical imperatives drove the fast pace of all the events that followed. This left virtually no time for Apolonia either to reflect on what she was doing or for her to take in fully comprehend the text of the will being read back to her, quite apart from her lack of time to discuss and take in evaluate the judgments that she was making about the competing claims on her estate. The situation is to be contrasted with the more measured approach that would have applied if she had been consulting a solicitor in a non-medical environment and taken through the will in some detail.
25. It is significant for example that Dr Perera said that it was unlikely that Apollonia would have used words such as "unforeseen circumstances" in explaining to the doctors what she wanted. These words are the doctors' linguistic gloss on situation that faced them. The doctors did not claim to have explained the term to Apollonia, or even what they meant by using that language. It is quite improbable that Apollonia had any idea whether the Change of Will document was intended to operate in the short-term if she survived the operation, or in the long-term.
26. Second, Apolonia did not have the benefit of legal advice before or after the execution of the Change of Will document, advice which could have reminded her of the extent of her estate and the various competing claims upon her testamentary bounty, and her historical recognition of those claims and that she had appointed Zina as her executor under her 2005 will. As well as leaving enduring doubts about her capacity, this feature also reinforces the Court's doubts that she knew and approved the contents of the Change of Will document.
27. Finally, none of the deceased doctors could recall what Apollonia said when the Change of Will document was read out to her prior to her signing. They all had a general sense that she assented to it but the fact that their memory on that subject is so poor is the unsurprising result of their understandable perspective: just then, they were looking ahead to what would happen as soon as Apollonia's assent was given. The evidence of Dr Mendis amply illustrated the nature of this problem. He could not recall Apollonia agreeing to what was read out to her to be her will, rather than just that she did "acknowledge" the reading of the document. The evidence at this critical point of assent is unsatisfactory.
28. Some other factors relevant to knowledge and approval were debated in the proceedings. But they ultimately proved to be of little significance. The first of these was Zina's submission that Apolonia did not read the Change of Will document herself. Dr Dinh did read Dr Perera's words over to her. But the real difficulty was the overall pace and stress of Apolonia's medical situation, which precluded the Court drawing a confident inference that she comprehended what was being said to her.
29. The second matter of less significance for the issue of knowledge and approval is that English was Apolonia's second language. But Apolonia's life history cautions against discounting her comprehension on this basis. At times she found it difficult to read documents in English and Zina would assist her. She did not have a good grasp of a more technical English vocabulary. But she had been an important centre of the life of her husband's Ukrainian Orthodox parish, which would not have been possible without a reasonable gunman facility with spoken English.

Construction of the Change of Will Document

1. Zina submits that the Change of Will document is to be construed by reference to the words used in that document. It begins with the words "in the case of any unforeseen circumstances…". She points out that the role of a Court when construing a testamentary document is to ascertain the intention of the testator as expressed in the testamentary document when it is read as a whole: see for example Serwin v Dolso [2020] NSWSC 370 at [51].
2. She submits that these words beg the question "What was the unforeseen circumstances"? She submits that whilst the wording is not entirely apt, the reality is that in context the natural, or at least more likely, construction of those words was the exigency of the imminent surgery, and in particular the risk of death during the surgery.
3. Whilst the risk of death was foreseeable and not technically an "unforeseen" circumstance, Zina submits that the words were intended to convey that the document was addressing a concern of risk of death. She says that conclusion is reinforced by the fact that if it were not addressing the risk of death during surgery, there was no immediate purpose of the document. She signed the document lying on the operating table in the operating theatre about to undergo emergency surgery.
4. Zina submits that if the Change of Will document is a valid testamentary instrument, then on its true construction based upon the plain meaning of the words used, the gift was to take effect only if Apolonia died during her emergency surgery on 9 January 2020.
5. Apolonia survived her emergency surgery and did not subsequently update her estate planning documents with her solicitor, in accordance with her usual practice, Zina submits that it has no legal effect.
6. The Court has not upheld the validity of the change will document. Therefore, it is not necessary for the Court to decide this question.

Conclusion and Orders

1. The Court makes the following orders and directions: 1. Order that probate of the will of the late Apolonia Czerwaniw ("the deceased") dated 1 November 2005 and the codicil to that will dated 21 September 2009 be granted in solemn form to the plaintiff; 2. Declare that the handwritten document entitled "Change of Will" executed by the deceased on 9 January 2020 at Westmead Hospital is not a valid testamentary instrument of the deceased and has no force and effect; 3. Order that the file in these proceedings be remitted to the Registrar to complete the grant; 4. Dismiss the cross-claim; 5. Order that in the event the parties cannot agree upon an appropriate order for costs between themselves that each party shall file submissions 1. in relation to costs (of no more than three pages) by 26 September 2022; 2. in reply as to costs (of no more than two pages) by 4 October 2022; 1. List the proceedings for the making of final costs orders and any other ancillary orders at a date in October 2022 to be arranged between the parties and my associate; and 2. Grant liberty to apply.

Amendments 21 September 2022 - Deletion of three paragraphs, duplicated in error. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 September 2022