Erem v Moussa

v Shannon (2019) 99 NSWLR 687; [2019] NSWCA 114 Sutton v Sutton [2009] EWHC 2576 Tarbes v Taleb [2023] NSWSC 565 Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 Watson v Foxman (1995) 49 NSWLR 315 Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 Texts Cited: B Edgeworth, Butt's Land Law (7th ed, 2017, Lawbook Co) J D Heydon, Cross on Evidence (13th ed, 2021, LexisNexis), Category: Principal judgment Parties: Ali Erem (Plaintiff/Cross-defendant) Marcel Aziz Moussa (also known as Marcel Aziz Alnabulsi) (First Defendant/Cross-claimant) NSW Trustee and Guardian (Second Defendant) Representation: Counsel: K Morrissey / M Short (Plaintiff) P Bates (First Defendant)

Solicitors: Turner Freeman (Plaintiff) City Lawyers and Consultants (First Defendant) File Number(s): 2016/00313069 Publication restriction: Nil

JUDGMENT

1. These proceedings concern a dispute between the plaintiff, Mr Ali Erem (the plaintiff or Ali) the de facto spouse of the late Ms Mary Moussa (the deceased or Mary), who died on 23 October 2015, and the first defendant, Ms Marcel Aziz Moussa (Marcel), a sister of the deceased and a beneficiary under each of the deceased's wills made in 1993, 2014 and 2015. Ali challenges the validity of the wills made in 2014 and 2015, on the basis that the deceased did not have testamentary capacity. He initially challenged the 1993 will but abandoned that claim during the hearing.
2. Ali also contends that the deceased did not have the mental capacity as at 30 October 2014 to sever the joint tenancy of a property at 6 McPherson Street, Carlton, New South Wales (McPherson St property), which she jointly owned with him, and brings a claim that if the severance was effective the deceased, and her estate, are precluded under the principles of equitable estoppel from severing it. Ali also brings, in the alternative, claims for a resulting trust in respect of the property and a claim under s 59 of the Succession Act 2006 (NSW) that whichever will is admitted to probate, it does not make adequate provision for him.
3. On 13 December 2017, the Court appointed the plaintiff as administrator pendente lite of the personal estate and receiver of the real estate of the deceased until a grant of administration is made or further order of the Court, with limited powers.
4. The NSW Trustee and Guardian, which is named as the executor and trustee under the 1993 will, has filed a submitting appearance and took no part in the proceedings. It has indicated its willingness to act as executor if the 1993 will is the only valid will.
5. During the hearing the parties referred to the plaintiff, the deceased and members of her family by their first names, and I will mostly do so in these reasons, without meaning any disrespect or overfamiliarity.

Issues

1. The issues for determination are as follows: 1. Whether Mary had the requisite testamentary capacity at the time she signed the 2015 will or the 2014 will; 2. Whether Mary lacked the requisite mental capacity to sever the joint tenancy with Ali of the McPherson St property; 3. If the joint tenancy was severed, whether the defendants are estopped by the conduct of Mary from denying that Ali is the legal owner of the McPherson St property; 4. If the defendants are not estopped, whether Ali has a resulting trust over Mary's share of the McPherson St property; 5. If the 2014 will is held to be valid, should it be rectified pursuant to s 27(1) of the Succession Act; 6. In the alternative, whether an order for provision pursuant to s 59 of the Succession Act should be made in favour of Ali.

Plaintiff's witnesses

1. Ali, the plaintiff, made eight affidavits and was cross-examined for a little over two days. No challenge was made to his credit. I formed the view that Ali had a good recollection of the key events, and sought to give truthful and accurate evidence. While I recognise that he has a degree of self-interest, particularly in relation to his evidence of his conversations with Mary, I regard him as a reliable and honest witness.
2. Ali called the following lay witnesses who had been friends of the deceased who each made one affidavit: (a) Dule Baturan and his wife, Velenka Vanovac, each of whom had known Mary since around 2008; (b) Birsen Erem, the sister of Ali, who had known Mary since 1987; (c) Laurette Refalo who knew Mary in the period from around 1993 to late 2013; (d) Julie Knox (Ms Knox), who had known Ali and Mary since the early stages of their relationship being a close friend of Ali's family and was the manager of the nursing home where Mary resided at the end of her life. Of these witnesses, only Birsen Erem and Laurette Refalo were cross-examined and then only briefly. They gave uncontroversial evidence regarding their relationship with Mary. I accept them as reliable and honest witnesses.
3. Ms Knox had passed away on 18 October 2020 and therefore was unavailable to give evidence. As a notice was given under s 67 of the Evidence Act 1995 (NSW), it was not in dispute that Ms Knox's affidavit was admissible hearsay evidence pursuant to s 63 of the Evidence Act.
4. In addition, the following medical practitioners were called by Ali, each of whom was cross-examined: 1. Dr Elizabeth Hovey (Dr Hovey), Senior Staff Specialist in the Department of Medical Oncology at the Prince of Wales Hospital, who was Mary's treating oncologist from July 2014 to August 2015, 2. Dr Brindha Shivalingam (Dr Shivalingam), neurosurgeon, who treated Mary from March to July 2015.
5. They each gave careful and truthful evidence.

First defendant's witnesses

1. Marcel gave evidence by her two affidavits. She was not cross-examined.
2. Marcel has three children, Sandra Alnabulsi, Anmar Nabolsy and Nawras Alnabulsi. They each gave evidence by affidavit, but none was cross-examined.
3. These witnesses gave evidence about their relationship with Mary over many years. None of them has visited Australia and all had limited dealings with Mary in the critical period from May 2014 to her death. While I have carefully considered their evidence, I have found it to be of limited assistance in determining the issues in this case.
4. Mr Timothy Young (Mr Young), the solicitor who prepared Mary's 2014 will and Mr Robert Windeyer (Mr Windeyer), the solicitor who prepared Mary's 2015 will, each gave evidence by affidavit and was cross-examined. Also, the two other attesting witnesses for these wills made affidavits, one of whom, Ms Scholtz, was cross-examined. They each gave careful and truthful evidence.

Jointly appointed experts

1. Pursuant to orders of the Court made on 24 February 2022, the following experts were jointly engaged by the parties (neither of whom had met Mary): 1. Dr Noel Saines, a consultant neurologist; and 2. Dr Robert Fisher, a consultant psychiatrist.
2. Each of them provided an expert report and was cross-examined.

Approach to evidence

1. Much of the evidence in this case comprised the recollection of the plaintiff and other witnesses of conversations and dealings which occurred many years ago, including with Mary who obviously is not available to give her version of those events. I have borne in mind the well-known observations of McLelland CJ in Eq regarding the fallibility of human memory in Watson v Foxman (1995) 49 NSWLR 315 at 318: … human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consider­ation of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
2. The fallibility of human memory and the risk of reconstruction rather than recollection of past conversations, is particularly acute in circumstances where the relevant witnesses have been in litigation on the matters about which they give evidence. In Crouch v Hooper (1852) 16 Beav 182 at 184-185; 51 ER 747 at 748, Sir John Romilly MR said: It is matter of frequent observation that persons dwelling for a long time on facts, which they believe must have occurred, and trying to remember whether they did so or not, come at last to persuade themselves that they do actually recollect the occurrence of circumstances of which, at first, they only begin by believing must have happened. What was originally the result of imagination becomes in time the result of recollection…
3. Black J referred to the need to bear in mind a witness' motives and the overall probabilities in Re Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7] as follows: I have had regard, in assessing the evidence, to the fact that witnesses were giving evidence (and in the case of Mr Conomos, a director of Gestion, setting out lengthy conversations in direct speech) of discussions in late 2010 and 2011. It is important in this context to have regard to the fallibility of human memory which increases with the passage of time, particularly where disputes or litigation intervene: Watson v Foxman (1995) 49 NSWLR 315 at 318-319 per McLelland CJ in Eq; Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) [2008] FCA 810 at [41] per Rares J; Varma v Varma [2010] NSWSC 786 at [424]-[425] per Ward J. To the extent that credit issues need to be determined in respect of particular conversations, I have also had regard to the fact that objective evidence is likely to be the most reliable basis for determining them. I summarised the relevant principles in Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 at [10], where I noted that the credibility of a witness and his or her veracity may be tested by reference to the objective facts proved independently of the testimony given, in particular by reference to the documents in the case, by paying particular regard to the witness's motives and the overall probabilities: Armagas Ltd v Mundogas SA [1985] 1 Ll R 1 at 57; Camden v McKenzie [2007] QCA 136 ; [2008] 1 Qd R 39 at [34]; Craig v Silverbrook [2013] NSWSC 1687 at [141]; State of New South Wales v Hunt [2014] NSWCA 47 at [56].

Factual Chronology

1. The deceased was born in Cairo, Egypt on 15 December 1948 (as recorded on her Australian passport). She had two sisters, Marcel (the first defendant, who is also known as Marcel Aziz Alnabulsi) and Ms Madeline Moussa (Madeline). Each was named as a beneficiary under Mary's 1993, 2014 and 2015 wills. At all relevant times, Marcel has lived in Damascus, Syria, which is her place of residence. Madeline emigrated to Australia in 1973 and lives in Sydney.
2. The deceased emigrated to Australia in 1970 with her then husband, Mr Tadros Helmi. The deceased and Mr Helmi were divorced by the time she met Ali in 1986. Ali was born in Cyprus on 14 August 1950 and emigrated to Australia in April 1970. He had a previous marriage that commenced in 1982 and ended in divorce in 1987 following a separation in 1985. In 1986, he obtained accreditation as a Turkish/English language interpreter. He has in the past been employed in a number of positions with the Department of Social Security and the Department of Immigration, and at the time of the hearing was working part-time as an interpreter.
3. Ali and the deceased commenced living together in around May or June 1990 partly at his home at 47 Veron Street, Wentworthville and partly at her unit located at 14/22-26 Garfield Street, Carlton NSW, where he still resides (Garfield St property). They commenced living full time together at the Garfield St property in 1998. There is no dispute that the plaintiff and the deceased were living together in a de facto relationship from around 1990 until her death in October 2015 with the Garfield St property as their home since 1998. In around 1991 Mary became pregnant but she suffered a miscarriage. Ali was the father.
4. Ali's evidence is that he lived with the deceased for the majority of their relationship in the Garfield St property and for most of their relationship, he paid most of their living expenses. Mary had difficulties with English, and could not read or write English well, especially when the language was technical. She did not complete any tertiary education in Egypt or Australia and the roles she had in the workforce were unskilled (initially at Kodak as an operator packing prints of photographs for around 10 years, and later as a sales assistant in retail, including latterly at Target). Ali's evidence is that throughout their relationship he dealt with anything complex that needed writing on her behalf.

Mary's delusions

1. The evidence regarding Mary's delusions needs to be considered in the context of the background of the evidence regarding her mental health.
2. Mary had a long history of clinical depression and anxiety which is recorded in various medical reports prepared in connection with claims she made for workplace injuries. She worked for Kodak for around 10 years until 1984 and suffered a repetitive strain injury in her arms, shoulders and neck. In relation to her treatment for that injury, Dr Monir Younan, Consultant Psychiatrist, expressed the opinion in a psychiatric report dated 14 April 1989 that Mary was 'suffering from severe anxiety state complicated by depressive symptoms' and noted that she had frequent uncontrollable crying spells during the interviews he had with her. Dr Younan saw her on nine occasions over the period from July 1985 to April 1989.
3. In a report made on 12 July 1989, Associate Professor Richard Jones, Director, Rehabilitation Medicine at Prince Henry Hospital, said that his physical examination of Mary confirmed 'a very intense woman apparently overwhelmed by her multiple disabilities' and that while he accepted she had muscular and ligamentous abnormalities which are perceived by her as being disabling, she had 'apparent signs which are not organically based and are due to psychological reaction to her perceived disabilities'.
4. In a report dated 26 March 1990, Dr James Bodell, an Orthopaedic Surgeon, issued a report in which he opined that Mary 'undoubtedly has a very serious psychological problem, but there is no clinical evidence of any organic muscular-skeletal disorder which could account for her claimed level of disability'.
5. In a report dated 29 May 1990, Dr Susan Spence, a Psychologist with the Badham Clinic, University of Sydney, opined that Mary 'remains severely depressed and anxious' and that treatment had been offered to her to deal with 'depression and high levels of anxiety'.
6. Ali gave evidence that when he first met Mary in around 1986, he found her to be attractive, highly sociable and to have a zest for life. Later, as he got to know her better, he found that while she appeared jovial, she had a lot of nervous energy, issues with pain and discomfort related to her workplace injury and she was very nervous. He gives examples in his evidence of occasions where she showed an inability to make any decision about even minor matters, such as purchasing furniture for her apartment which was almost bare when they first started their relationship, and would often become hysterical when she became agitated by something which disturbed her.

Assets and liabilities of the estate

1. The parties provided to the Court an agreed schedule setting out the assets and liabilities of the estate at the date of death, and at the date of the hearing.
2. At death, Mary owned: 1. Bank deposits and term deposits totalling $762,402.95; 2. The Garfield St property with an estimated value of $660,000; 3. A half share in the McPherson St property (subject to the plaintiff's claim in this proceeding) with an estimated value of $650,000; 4. Personal effects with an estimated value of $2,230.
3. In addition, jointly held assets of Ali and the deceased, and any asset that might be considered to be notional estate, comprised an account with St George Bank with a balance of $3,384.79, shares in Telstra with a value of approximately $3,000.00 the deceased's account with a superannuation fund with a value $107,114.00.
4. The liabilities of the deceased at death totalled $21,947.25.
5. Accordingly, the net value of the estate at the date of Mary's death was $2,166,184.49.
6. At the date of the hearing, assets of the estate comprised a term deposit and an account with St George Bank in a total amount of $264,314.84, the Garfield St property with an estimated value of $660,000.00, the deceased's half share in the McPherson St property (subject to the plaintiff's claim in this proceeding) with an estimated value of $825,000.00, and personal effects with an estimated value of $2,230.00. After taking into account the actual and estimated liabilities of the estate, the net distributable estate at the date of the hearing (excluding legal costs not yet paid from the estate) is $1,559,826.02 (Ex K).
7. In addition, the estate has potential liabilities for costs and expenses on the sale of the Garfield St property and the McPherson St property, the costs of the NSW Trustee and Guardian and for costs in relation to these proceedings.
8. The following settlement sums have been paid out of the estate pursuant to orders made by the Court on 21 December 2021: (a) $125,000 to Steven (the third defendant); and (b) $150,000 to Madeline (fourth defendant).

Ali's financial position

1. The plaintiff's financial position is relevant to the first defendant's case on Ali's exclusion from the 2014 and 2015 wills that Mary had made an assessment that Ali 'had enough' money and therefore did not need provision, and to the quantum of the plaintiff's claim for provision under the Succession Act.
2. Ali was cross-examined on his property portfolio. He gave evidence that he had owned the following properties: (a) 45 Veron St, Wentworthville which he purchased in 1997 and sold in 2009 to enable him to repay the loan from Citibank taken out to fund the purchase of the McPherson St property; (b) 47 Veron St, Wentworthville (which was next door to 45 Veron St and was his home before he moved into the Garfield St property with Mary) which was purchased with his former wife in 1984 and sold in 2014; (c) 7/22-26 Garfield St which he purchased in August 2015 (Unit 7); and (d) a half share in the McPherson St property (subject to his claim in these proceedings).
3. Ali did not have a will, and viewed this as protecting Mary as he understood that she would inherit his property if he was to die under the laws of intestacy (Ali having no other family or dependents to make a claim on his estate).
4. Ali's total assets at the date of the hearing had a value of between $2,360,065 and $2,430,065, comprising: 1. his half share of the McPherson St property (in which he claims a 100% interest in these proceedings) of between $800,000 to $850,000; 2. Unit 7 with a value estimated at between $630,000 to $650,000; 3. cash at bank of $796,928; 4. a motor vehicle with a value estimated at $7,500; 5. superannuation (as at 30 June 2023) of $125,637.90.
5. The figures for the value of Ali's real property interests are estimates. The one for his interest in the McPherson St property is based on an opinion provided by a real estate agent dated 8 February 2024 that the McPherson St property would obtain a price of between $1.6m and $1.7m at that time. The same agent gave an opinion that the Garfield St property would sell for $640,000 to $680,000 at that time and it appears that this has been used as the basis for Ali's estimate of the value of Unit 7 which is also a two-bedroom unit in the same building.
6. Ali's sources of income at the date of the hearing were as follows: 1. monthly income as an interpreter of around $995 per month (but this will cease this year as he will be retiring from that role); 2. a monthly superannuation pension of $2,492.12 from the Commonwealth Superannuation Corporation; 3. rental income from the lease of Unit 7 of approximately $1,700 per month; 4. 50% of the net rent from leasing the McPherson St property of $720 per week (approximately $2,880 per month); and 5. interest on his bank deposits.

The legal costs of the estate and the parties

1. The parties' costs of these proceedings (including the estimated cost of the 10 day hearing) are as follows: 1. Ali's costs on the ordinary basis are $724,009 ($809,716.99 on the indemnity basis); 2. Marcel's costs on the ordinary basis (and the indemnity basis) are $804,634.67.
2. Ali has paid the amount of $571,388.99 in respect of his costs of the proceedings from his own resources. In addition, a total amount of $121,776.31 has been paid to Ali pursuant to cost orders made by the Court prior to 2022. Marcel has not paid any of her costs.
3. In addition, pursuant to cost orders made by the Court prior to 2022, the following amounts have been paid out of the estate to parties to the proceedings in respect of their costs: (a) NSW Trustee and Guardian, $18,340.58; (b) the tutor for Madeline, $115,000; and (c) the tutor for Steven, $75,000.

Evidence on Mary's capacity

1. The date for the assessment of testamentary capacity and mental capacity is the date at which the documents were executed.

General evidence of Mary's capacity

1. Ali gave extensive evidence of his general observations of Mary at various times, including in the period from May 2014 to her death. There is extensive evidence on her physical condition in the medical reports summarised earlier. I note also that Mr Baturan gave evidence for Ali and was cross-examined by Mr Bates. His evidence was that he saw Mary for a short time after her operations in 2014 in the hospital. Mary was having difficulties with her speech at the hospital. After her discharge, Mr Baturan saw Mary again at her home in late 2014, but probably before October 2014. On this occasion Mary was 'visibly physically impaired'. By this, Mr Baturan meant that he saw her hands shaking badly enough that she could not pour coffee and she appeared to have mobility issues. Mr Baturan also stated that Mary's speech difficulties continued '[a]ll the way until the end. It was a different Mary after she was discharged from the hospital. It was not the same person intellectually, emotionally…'.

The 2014 will and the Severance

1. The two principal witnesses relating to the 2014 will and Severance are Ali and Mr Young.

Ali

1. Ali recalled taking Mary to see Mr Young approximately a dozen times prior to the 10 October 2014 meeting. Ali had also seen Mr Young separately when he dealt with a matter involving his sister. Mr Young never used an Arabic interpreter during the conferences relating to Mary's workplace injury claim. Ali helped to simplify things for Mary at these meetings by explaining concepts to her.

Mr Young

1. Mr Young's evidence is that he had acted in three related compensation claims on behalf of Mary in relation to a work injury suffered in 2010. In the course of those proceedings, he estimated that he would have seen her on approximately 25 to 30 occasions. Mr Young is aware of the requirements for testamentary capacity. By the time of his consultation with Mary and Ali on 3 October 2014, he knew that Mary had a brain illness requiring surgery and chemotherapy, and that Ali was her de facto partner.
2. On 3 October 2014, Mr Young had a conference with Mary and Ali. He deposes that: Mary arrived at the office, she was well dressed and well-groomed with makeup. She had always to my observation taken a lot of pride in her appearance. We made polite conversation. Mary appeared to me to be lucid and clear in her speech and communication with me. She may said words to the effect "I have Bank accounts with the Commonwealth Bank, Westpac Bank and St George Bank. I have superannuation with REST. I own a property at 14/22-26 Garfield Street, Carlton by myself and I own a house at 6 McPherson Street, Carlton with Ali. … She provided instructions about how her assets were to be distributed. We spoke about the property at 6 McPherson Street, Carlton. It was held as joint tenants. I explained to her the difference between joint tenants and tenants in common. She clearly stated that she wanted the tenancy split and that her share of this property at 6 McPherson Street Carlton was to be left to her nephew Steven. At this stage, Ali was in the room with Mary and I said to Mary words to the effect: "If you want to sever the joint tenancy, a Land Title form needs to be completed, signed by both of you and lodged with the Land Titles Office with the original title deed. A new title deed would be issued stating the property is held as by you both as tenants in common in equal shares" Mary said "Yes, I want the tenancy changed. I will sign the form" Ali said words to the effect "if that is what Mary wants then please get the forms completed so we can sign them".
3. This evidence that Mary said at the meeting on 3 October 2014 that she wanted the joint tenancy 'split' and her share to be left to her nephew Stephen is difficult to reconcile with his evidence (recorded at [64] above) about the instructions she gave as to her will at that meeting (under which the half share would pass to Ali as residuary beneficiary). This was not explored in his cross-examination and ultimately nothing turns on it, as the instruction was given in the next meeting on 10 October 2014. Mr Young did not make detailed contemporaneous notes of his interactions with Mary. He accepted that he did not have a great memory of the two appointments, but said there was nothing in her appearance that led him to be concerned about her capacity.

The 2015 will

1. The principal evidence relating to the circumstances in which Mary executed the 2015 will was from Ali and Mr Windeyer.

Ali

1. Ali did not take Mary to the 6 July 2015 meeting; she went independently. Ali's affidavit evidence is that he observed Mary to be 'visibly sick' when attending the meeting on 13 July 2015. He stated that he was only present for part of the meeting. Ali stated that Mary handed a piece of paper to Mr Windeyer, but he did not know the contents, and he heard them discussing the names of Mary's family members. Ali recalled her having difficulties in recalling how much she would like to leave to different family members. At one point, Ali raised his hand and began counting and pointing at each finger $100,000, $200,000, $300,000, $400,000 and so on.
2. Ali left the meeting after Mary began to recount why she did not want to leave him anything, namely that he had 'plenty of money' or words to that effect. Ali heard Mary say to Mr Windeyer that he had sufficient money and property available to him and that she did not want to leave more to him.
3. At one point, Ali was called back in as Mary had forgotten her address details. When Mary and Mr Windeyer emerged from the meeting, Mr Windeyer stated to Ali that Mary would also need to make a power of attorney and health directive. This was despite Mary having executed these documents with Mr Young.

Mr Windeyer

1. Mr Windeyer saw Mary on 6, 13 and 14 July 2015. At the first meeting she arrived alone and said that she had arrived by train. Mary did not have an appointment, and Mr Windeyer's impression was that Mary was slow and deliberate in her speech and appeared nervous. Mr Windeyer's evidence was that Mary told him about the assets that she owned, including the McPherson St property. Mr Windeyer recalled discussing the difference between a tenancy in common and joint tenancy with Mary at this meeting. There was no note made of this discussion, but he had an actual recollection of discussing this with Mary. At either the conference on 6 or 13 July 2015 Mary handed him a typed, unexecuted version of her will (which was not the 2014 will). Mr Windeyer thought it was more likely at the first meeting on the basis of his contemporaneous notes which refer to a 'clause 3'. During the conference, he annotated this document.
2. At the first meeting, Mr Windeyer said he was 'quite confident as to her ability and understanding'. Mary spoke slowly and firmly. Mary did not tell Mr Windeyer that she had been diagnosed with brain cancer or that she was under treatment.
3. Mr Windeyer made a handwritten file note of the 13 July 2015 meeting. A transcribed version of that file note was also in evidence. That file note recorded relevantly: I said that I understand that she does not want Ali to get more but I stressed I believed I have a duty to warn her of the possibility of him making a claim. Mary said I have given Ali $1m already, over that, and he still has it. All of what I have is mine and it's not much - that's for my family. It's not fair if Ali could get it. I give him everything. I said to Ali "I give it to you, I don't want it." She was referring to the $1m plus she said she had given him. Madlen is mother of Steven Ibrahim and she has a daughter. Mary does not want dtr (daughter) to get anything. Marcell has 4 children all are adults. Mary began to tell me their ages but I didn't write down. Re Garfield Street - Mary said, "I have paid everything and I still pay all outgoings etc on it". … She will let me know her address later on after she gets home. Wrote out temporary will read through it with Mary and she signed - Carmel Scholtz & I witnessed it. Mary had difficulty in signing her name she was quite anxious. She managed and signed after some practice.

Dr Elizabeth Hovey

1. Dr Hovey was Mary's treating oncologist and saw her on 16 occasions over the period from 11 July 2014 to 17 August 2015 for consultations at the Prince of Wales Hospital. Dr Hovey also prepared a report on 10 November 2016 at the request of the plaintiff's representatives addressing the issue of testamentary capacity. Dr Hovey was cross-examined.
2. In her report dated 10 November 2016, Dr Hovey expressed the opinion that at the time Mary made the 2014 will and the 2015 will she suffered from a 'disease of the mind', namely an incurable infiltrative glioma called gliobastoma, which has different effects on different patients but in Mary's case it was associated with poor concentration and poor decision making. Either her underlying disease or her steroids were associated with emotional lability and poor anger management. In October 2014 Mary had lack of insight, impaired judgment, disinhibited behaviour, impaired memory, impaired cognition, problems with reading and understanding, problems with writing and problems with expressing herself with a mixture of both expressive and receptive dysphasia. This continued to be the case in July 2015, by which time she had significantly progressive disease and no insight at all. The disease impacted Mary on a day-to-day basis in terms of her speech, attention, focus, insight and ability to make complex decisions. She also observed that from August 2014 onwards Mary was noted to be paranoid when it came to her partner Ali, and was abusive and aggressive to him. She said that 'on the many occasions I reviewed them as a couple Ali appeared patient, considerate, thoughtful and caring'.
3. Dr Hovey explained that Mary's tumour was in the parietal lobe of her brain, which governs speech, calculation and integrating sensory inputs, and that swelling in that part of the brain can also cause behavioural issues.
4. Dr Hovey described the testing she undertook in her appointments with Mary. Dr Hovey was taken to parts of her reports where she described Mary as being unable to perform 'serial seven calculations' or list more than three months of the year in reverse sequentially' on 13 August 2014. A serial seven calculation is when a patient is asked to start at a number and then subtract seven from that number until they cannot do so anymore, ie. 100, 93, 86, 79. Dr Hovey described this as a form of abbreviated mental assessment, because full assessments could take up to an hour. Mary could list the months of the year going forward, which is a less sophisticated task. Mary could also do one 'serial three' calculation, meaning that Mary could go from 20 to 17 after making one mistake and self-correcting, but not beyond that. Dr Hovey stated that this result was not surprising as Mary 'had a parietal lobe tumour and that's the seat of calculation'.

Dr Shivalingam

1. Dr Shivalingam was the deceased's treating neurosurgeon in 2015. Dr Shivalingam examined the deceased on five occasions from 16 March 2015 to 8 July 2015. Dr Shivalingam performed a craniotomy and resection of Mary's recurrent glioblastoma in April 2015. Dr Shivalingam was cross-examined at the hearing, and the notes of her meetings were tendered as evidence. Dr Shivalingam also prepared a report at the request of the plaintiff's representatives on 16 November 2016 that was tendered as evidence.
2. In a report dated 16 November 2016, Dr Shivalingam stated the following: 1. When she reviewed Mary on 18 May 2015, Mary had a significant problem with word finding and also with expression of thought in an appropriate manner and, at this stage, Dr Shivalingam felt that she was significantly impaired in terms of speech and cognition. In her last appointment with Mary on 8 July 2015, Dr Shivalingam observed that Mary's condition had deteriorated, her speech was much worse and her capacity to understand and rationalise was gone. She observed that Mary was quite labile in terms of her emotions and was tending to be very irritable and snappy with Ali. Mary's labile emotions were a significant problem at that stage which lead her to suggest that Mary see a psychiatrist to obtain stronger anti-depressant medication. 2. At the time Mary made the 2015 will she was suffering from progressive glioblastoma multiforme involving the left side of her brain and gradually destroying functions of speech, cognition and personality, which manifested itself on a day-to-day basis and had a major impact on her ability to make any complex decision making. She also expressed the view that Mary did not have testamentary capacity in terms of the Banks v Goodfellow test as at 13 July 2015.
3. The bulk of cross-examination of Dr Shivalingam focussed on the paragraphs from her report of 8 July 2015 set out at [98] above.
4. The plaintiff relies in particular on the emphasised sentences in the extract as indicative of Mary's waning capacity. The date is notable because it was only five days before the deceased attended the offices of Mr Windeyer to swear the 2015 will.
5. At Dr Shivalingam's appointment with Mary on 8 July 2015, she recalled having to have a 'very blunt' conversation with Mary regarding the inoperability of her tumour and the likelihood that she would die soon. Dr Shivalingam did not have a recollection other than that prompted by the letter.

Expert evidence

1. Two independent experts gave evidence, Dr Saines and Dr Fisher.

Dr Saines

1. Dr Saines is a consultant neurologist with over 40 years' experience. He expressed the following opinions in his expert report after a review of all the medical reports: 1. That, on balance, Mary had testamentary capacity in 1993 when she made her first will. 2. That at the time Mary made her second will on 10 October 2014, Mary had a progressive disease of the brain impairing cognitive and behavioural function and he could not be confident that she fully understand the nature or the effect of the undertaking or could even engage appropriately at the time of making that will. He reached a similar conclusion in relation to the severance of the joint tenancy on 10 October 2014 for the same reasons. 3. At the time Mary made her third will on 13 July 2015, her neurological condition had deteriorated further as is the nature of the progressive brain malignancy. The associated cerebral oedema was managed to some extent with dexamethasone, and this medication may have exacerbated her emotional dyscontrol. By mid-July she manifested a significant speech disorder (dysphasia), being unable to express or comprehend fully, appeared to have cognitive impairment and was at times irrational with emotional dyscontrol. In his opinion, Mary's deteriorating neurological condition had further impaired her mental capacity and in his opinion, she did not have testamentary capacity at the time the 2015 will was made.
2. None of the evidence given by Dr Saines in cross-examination involved any departure from these opinions. In cross-examination Dr Saines expressed the view that the medical evidence, including the MRI imaging showing a large tumour in her brain, her inability to follow simple two- and three-step instructions with Dr Hovey, and her inability to perform serial three and serial seven calculations, supports the conclusion that Mary's complex decision-making and cognition skills were impaired. Dr Saines' view was that Mary was failing simple tests of cognition, demonstrated difficulties with language and communication skills, and this had an 'emotional component'.
3. Dr Saines stated that it would have been difficult for Mary in October 2014 to instruct a solicitor on the basis of her word-finding difficulties. Dr Saines would not have drawn the conclusion that Mary had the capacity to understand the difference between a joint tenancy and a tenancy-in-common on the basis of her ability to accurately provide a list of assets to Mr Young.

Dr Fisher

1. Dr Fisher is a consultant psychiatrist with over 40 years' experience, including as head of the Department of Psychiatry at St Vincent's Private Hospital from 1994 to June 2020. Dr Fisher provided an expert report in which he opined after a review of all the medical reports that: 1. Mary had testamentary capacity at the time she made the 1993 will. 2. With respect to the 2014 will, it was likely that as at 10 October 2014 Mary was suffering from a cognitive impairment and also a delusion regarding Ali, which would manifest itself on a daily basis and likely adversely affect her capacity for complex decision making. He noted that Mary was reported to have had symptoms of expressive and receptive dysphasia, short term memory problems, problems with concentration and attention and this will be manifested on a day-to-day basis and able to be observed by Ali and other people with whom she came into contact and especially by her treating practitioners. Dr Fisher expressed the opinion that she was suffering from a disease of the mind including a delusional disorder and cognitive impairment on a day by day basis with regard to complex decision making, was not fully able to understand the effect of the will in terms of the rightful beneficiaries. 3. With respect to the 2015 will, his opinion was that Mary was suffering from a disease of the mind and cognitive impairment at the time she made that will, noting that she was reported by her treating oncologist and neurosurgeon to be suffering from expressive and receptive dysphasia, problems with short term memory, problems with comprehension, emotionally labile and paranoid with respect to Ali in the context of having an expanding and infiltrating glioblastoma multiforme. She had also undergone debulking surgery and had been treated with chemotherapy and dexamethasone all of which may have contributed to her cognitive impairment. He considered that the reports of her treating doctors at that time (in particular Dr Shivalingam's report referred to at [98] above that 'rational conversation and thought' was not possible and she was very depressed) indicated that the condition manifested itself on a day-to-day basis and affected her complex decision making. For these reasons he was of the opinion that Mary suffered from a disease of the mind and/or other cognitive impairment such that she was not able to fully comprehend and appreciate the claims of potential beneficiaries under her will.

Issue 1: Mary's testamentary capacity at the time of the 2014 and 2015 wills

Principles

1. The established test for testamentary capacity is found in Banks v Goodfellow (1870) LR 5 QB 549 at 565 where Cockburn CJ stated: 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. As explained by Basten JA in Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [5]-[6] (and see Macfarlan JA at [102]), this test of testamentary capacity is to be understood as comprising three affirmative elements followed by negative elements. The affirmative elements are (i) the capacity to understand the nature of the act of making a will and its effects; (ii) understanding the extent of the property the subject of the will; and (iii) the capacity to comprehend moral claims of potential beneficiaries. The negative elements which follow, including disorders of the mind and insane delusions, are examples of matters relevant to the third affirmative element, to the extent they interfere with the testator's ability to recognise and weigh the claims of potential beneficiaries to the testator's bounty.
3. Where a will is rational on its face and is proved to have been duly executed, there is a presumption that the testator had testamentary capacity. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity, which shifts the evidential burden to the party propounding the will to show that the testator did have testamentary capacity and where the doubt is not resolved on a consideration of the evidence as a whole, may be sufficient to preclude the Court being affirmatively satisfied as to testamentary capacity: Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [45] per Meagher JA (Basten and Campbell JJA agreeing).
4. It follows that where a delusion is established which raises a doubt as to the testator's ability to recognise and weigh the claims of potential beneficiaries, the burden of proof shifts to the person propounding the will to show that the testator had testamentary capacity: Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13 at 299; Carr at [98].

Plaintiff's submissions

1. The plaintiff submits that Marcel has failed to prove on balance of probabilities that Mary had the capacity to execute the 2014 or 2015 wills and therefore the Court should not admit either will to probate. The plaintiff further submits that Mary must prove testamentary capacity by reference to the principles laid down in Briginshaw: Tobin at [48]
2. Both Mr Young and Mr Windeyer failed to test Mary's capacity against the criteria outlined in Banks v Goodfellow and the Court can have no confidence in their assessment of Mary's testamentary capacity. The extant contemporaneous documents, the progress notes of Mary's treating doctors, tend against a conclusion of capacity. Both Mr Young and Mr Windeyer accepted in cross-examination that they would have altered their approach to obtaining instructions and assessing capacity, had they been aware of the extent of Mary's medical condition.
3. The plaintiff submits that the Court should place considerable weight on the medical evidence in this case, in line with the observations of Sackar J in Gooley v Gooley [2021] NSWSC 56 at [1147]-[1154].
4. The plaintiff further submits that the evidence supports the proposition that Mary was labouring under a series of delusions that prejudiced her mind against Ali referred to earlier, which is the reason that Ali was not included in either will.

First defendant's submissions

1. Marcel submits that none of the so called 'delusions' on which Ali relies meets the requirement for a delusion that it be a 'fixed and incorrigible false belief which the victim could not be reasoned out of': Bull at 339. It was submitted that the high point of Ali's case on this aspect was a note made by Dr Hovey in her report of the consultation on 13 August 2014 that Ali had 'caused her cancer' (see [53] above). Dr Hovey does not record in any of her reports that she told Mary that Ali could not have caused the brain cancer and there is no evidence that Dr Hovey ever explained to Mary that such a belief was mistaken. I note that this submission is incorrect as there is evidence in Ali's first affidavit that both Dr Hovey and Dr Smee explained to Mary that this was not possible. There was no cross-examination on this evidence.
2. Marcel also submitted that Dr Hovey's reports do not record that Mary repeated the allegation after 13 August 2014 nor is there evidence that she gave such a belief as her explanation to Mr Young or Mr Windeyer for why she did not give more to Ali in her 2014 or 2015 wills. Dr Hovey recorded in her report of the consultation on 22 August 2014 that Mary had been embarrassed and apologetic for her actions, agreeing that her behaviour was out of character, and Dr Hovey had recorded that there was 'no evidence of disordered thoughts or psychosis on mental state examination'. This indicated that Mary was able to process appropriately upsetting information about her cancer and refutes the plaintiff's contention that there was a delusional belief that she could not be reasoned out of.
3. Marcel submits that the Court should accept the accuracy and the reliability of the evidence of Mr Young and Mr Windeyer and their assessment of the capacity of Mary at the conferences during which she made her 2014 and 2015 wills as they were experienced probate solicitors. The conferences she had with each of them were not short and she told each of them the reason for not leaving more to Ali was that he already had enough property of his own which was a rational and reasonable explanation for her testamentary choice. The Banks v Goodfellow criteria permit a testator to make a decision as to the disposition of her testamentary bounty based upon her view about her financial need: see Carr at [29], [51] and [145]. The structure and disposition of Mary's bounty in each of the 1993, 2014 and 2015 wills record Mary's unwavering wish to leave inheritances to her blood relatives in preference to Ali. In the case of the 1993 will this was explained because her relationship with Ali was at a very early stage. In the case of the 2014 and 2015 wills, it is to be explained on the basis that Ali had enough money and property of his own and did not need the deceased's inheritance. This is consistent with Ali's admission that by 2014 he had over $2.6 million of his own, including ongoing revenue streams from his investments and superannuation and interpreting income in the vicinity of $6,000 per month. Marcel submits that the Court should accept the evidence of the experienced solicitors who conferred with the deceased in preference to the medical experts: Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218.

Consideration

1. I am satisfied on the evidence that throughout the period from shortly after her diagnosis of a brain tumour until her death, Mary suffered from a number of delusions that poisoned her mind against Ali, which I have listed at [114] above. The most significant is her belief expressed at various times from mid-2014 until her death, that Ali had 'put the cancer in my head'. Marcel's submission that there is no evidence that anyone explained to Mary that this could not be true, as already noted, is not correct.
2. The conclusion that Mary was suffering from a fixed belief that Ali had caused her cancer is supported by a number of matters. First, the tumour adversely affected the part of her brain affecting her cognitive capacity and emotional behaviour. Second, the evidence indicates that Mary was having difficulty coping with the devastating diagnosis that she had received and responded to it by blaming Ali. Third, there is clear evidence of a consistent decline in her cognitive capacity over the period from May 2014 to her death indicated by her consistent failure to perform serial three or serial seven calculations and following simple instructions. Fourth, she had a depressive personality, which was compounded in the period from May 2014 to her death by her poor compliance in following the requirements for taking her medications (particularly for depression).
3. The conclusion that Mary was suffering from a delusion that Ali had caused her cancer shifts the burden of proof to Marcel because the delusion is clearly relevant to her ability to consider and weigh all the moral claims on her testamentary bounty. In my view, Marcel has not discharged that burden due to the evidence the treating doctors (Dr Hovey and Dr Shivalingam) and the two medical experts (Dr Saines and Dr Fisher) which is all to the effect that she did not have the ability to weigh the moral claims of potential beneficiaries, particular Ali, at the time she made either the 2014 will or the 2015 will.
4. In relation to the 2015 will, Marcel relies on Mr Windeyer's assessment of Mary at the meetings on 6 and 13 July 2015 that she had testamentary capacity. The first meeting lasted about 84 minutes and the second meeting about 102 minutes. It is clear from Mr Windeyer's file notes he is a highly competent and careful probate lawyer, and he attempted to assess her testamentary capacity by observing her in those conferences. However, he did not know at that time that she had an incurable brain tumour and had undergone surgeries to remove it. Nor did he have knowledge of the assessment of the treating doctors of her cognitive capacity at that time. He recognised in cross-examination that had he been aware of it, he would have acted differently, by seeking a medical opinion to confirm that Mary had testamentary capacity.

Issue 2: Mary's capacity to sever the joint tenancy

Principles

1. Each joint tenant has a right unilaterally to sever a joint tenancy and convert the interest held as joint tenant into one held as tenants in common which the other joint tenant cannot prevent, unless they can invoke a contractual or equitable obligation: B Edgeworth, Butt's Land Law (7th ed, 2017, Lawbook Co) at [6.490]; Real Property Act 1900 (NSW), s 97.
2. In Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17 the question of the capacity of an individual to enter into a binding transaction was considered, in the context of the execution of two mortgages and a transfer to sever a joint tenancy. Dixon CJ, Kitto and Taylor JJ stated the applicable test at 437 as follows: The law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation…. the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained… Ordinarily the nature of the transaction means in this connection the broad operation, the "general purport" of the instrument; but in some cases it may mean the effect of a wider transaction which the instrument is a means of carrying out …
3. In the above statement of the test it is recognised that where the relevant instrument is part of a wider transaction, the question of capacity may need to be tested by reference to that wider transaction which the instrument is a means of carrying out. It has been recognised that where a person purports to sever a joint tenancy in connection with the making of a new will, it is necessary to apply, with appropriate adjustments, the test in Banks v Goodfellow because the effect of the severance, by revoking the right of survivorship, is to benefit one or more beneficiaries under the will: see Hamill v Wright [2018] QSC 197 at [158]-[161]. A similar approach has been taken to voluntary gifts made during the lifetime of the deceased: Crago v McIntyre [1976] 1 NSWLR 729 at 740-741; Perochinsky v Kirschner [2013] NSWSC 400 at [96].
4. Whether the purported severance of a joint tenancy where the person seeking to do so lacks mental capacity is void or voidable was considered in Gibbons v Wright. In that case, two sisters held land in Hobart as joint tenants with the appellant, who was the widow of the brother. In relation to land under the Real Property Act, each sister executed a memorandum of transfer (which was subsequently registered) whereby she transferred to the other her one-third share of the joint tenancy in consideration for a similar transfer by the other to her. The two sisters having died, the appellant brought proceedings to challenge each transfer to sever the joint tenancy, which turned on whether the sisters had mental capacity when they signed each transfer. Dixon CJ, Kitto and Taylor JJ at 438-439 stated the relevant test for this question as follows: In the present case, it was necessary, we think, that the two sisters should have been capable of understanding, if the matter had been explained to them, that by executing the mortgages and the memorandum of transfer they would be altering the character of their interests in the properties concerned, so that instead of the last survivor of the three joint tenants becoming entitled to the whole, each of them would be entitled to a one-third share which would pass to her estate if she still owned it at her death.

Plaintiff's submissions

1. Ali submitted that the applicable test for determining Mary's mental capacity at the time of severance of the joint tenancy was the test in Banks v Goodfellow and that, for the same reasons that Mary lacked testamentary capacity at the time of making the 2014 will, she did not have the mental capacity to sign the transfer to effect the severance of the joint tenancy.

First defendant's submissions

1. Marcel submitted that the relevant test determining Mary's mental capacity at the time of the severance is that stated in Gibbons v Wright at 438, set out at [224] above, which is whether she was capable of understanding, if the matter had been explained to her, that by executing the transfer she would be altering the character of her interest in the McPherson St property so that instead of the last survivor of Ali and herself becoming entitled to the whole of the interest in that property, each of them would be entitled to a one-half interest which would pass to her estate if she owned it at her death. She satisfies this test.

Consideration

1. If the appropriate test to be applied to determine Mary's capacity to sever the joint tenancy is the one stated in Gibbons v Wright set out at [224] above, then I would be of the view that Mary had mental capacity to make the Severance on 10 October 2014. Mr Young's evidence is that he explained the effect of the Severance to Mary at the meeting on 3 October. It seems clear that on the evidence that she fully understood the effect of the Severance because she wished to enable her half share to pass on her death to Stephen under the will which she signed on the same day.
2. However, it was recognised in Gibbons v Wright that where the relevant instrument is being entered into to carry out a wider transaction the question of capacity needs to be tested by reference to that wider transaction. Here, it is clear that Mary's purpose in severing the joint tenancy was to enable her to deal with her share of the McPherson St property by a new will to be made on the same day. In these circumstances, the question of her mental capacity should be determined on the test stated in Banks v Goodfellow. In my view, applying that test, she did not have the required mental capacity to effect the Severance for the same reason that she did not have testamentary capacity at that time, being her delusions regarding Ali which prevented her from properly weighing his claim on her testamentary bounty.
3. Ultimately, nothing turns on which test should be applied in the present case. If Mary lacked mental capacity at the time of the Severance, the Severance would be voidable not void. It could only be avoided by Mary or her representative. It was not avoided by Mary during her lifetime. While Ali is acting in the role of administrator pendente lite and receiver, he does not have power to avoid the Severance. The limited powers conferred on him at the time of his appointment do not extend to avoiding Severance. In any event, an administrator pendente lite is required to manage and preserve the estate for the benefit of those persons who may ultimately be found in the proceedings to be entitled to it: Henderson v Executor Trustee Australia Ltd (2005) 93 SASR 337; [2005] SASC 477 at [45], [53] and [124]; Gooley v Gooley [2020] NSWSC 798 at [126], [138]. Similarly, a receiver acts in a caretaker role until the persons entitled are ascertained: Henderson at [43]. It would clearly not be in the interest of the beneficiaries for Ali to avoid the Severance.

Issue 3: The plaintiff's estoppel claim

1. In the alternative to his argument that the purported severance of the joint tenancy was ineffective, Ali's pleaded case is that the defendants are estopped by the conduct of Mary from denying that he is the legal owner of the McPherson St property, relying on representations made by Mary at the time she and Ali purchased the McPherson St property in November 2007, that she would assist with the contribution towards the purchase price up to no more than $290,000, and that the property would be his if she predeceased him.

Principles

1. Ali contends for an estoppel by encouragement. A proprietary estoppel of this kind was explained by Handley JA in Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84 at [21] (Allsop P and Gyles JA agreeing) as follows: The proprietary estoppel upheld by the Judge was an estoppel by encouragement. Such an estoppel comes into existence when an owner of property has encouraged another to alter his or her position in the expectation of obtaining a proprietary interest and that other, in reliance on the expectation created or encouraged by the property owner, has changed his or her position to their detriment. If these matters are established equity may compel the owner to give effect to that expectation in whole or in part…
2. In Goyal v Chandra [2006] NSWSC 239; (2006) 68 NSWLR 313, Brereton J considered that there was no reason in principle why the principles of equitable estoppel could not be applied to defeat an attempt by a joint tenant to sever the joint tenancy. His Honour said at [29]: … on the principles of equitable estoppel, where one joint tenant has an expectation that he or she will acquire by survivorship the interest of the other and acts on that expectation to his or her detriment, then the other is implicated in the creation of the expectation and encourages the reliant activities of the first, then, at least ordinarily, it will be unconscionable for the second to act contrary to the expectation or assumption, and equity may preclude the second from severing the joint tenancy, either by equitable estoppel or by imposing a constructive trust, the underlying elements of which in this field are substantially the same.
3. Whether any, and if so what, representation has been made is to be judged objectively according to the impact that whatever is said or done may be expected to have on a reasonable representee in the position and with the known characteristics of the actual representee: Q (a pseudonym) v E Co (a pseudonym) [2020] NSWCA 220 at [15] per Meagher JA (Leeming and Payne JJA agreeing).
4. In relation to reliance, it is necessary for the party relying on equitable estoppel (in this case Ali) to establish that he would have acted differently in the absence of the relevant encouragement: Q v E Co at [88]. It is a question of fact on which Ali bears the onus: Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 at [58]-[61]. Hence, the relevant inquiry is what would Ali have done if, the promise by Mary having been made, he had been told that it would not be kept: Q v E Co at [89].

Plaintiff's submissions

1. Ali submits that at the time of the purchase of the McPherson St property, Mary represented to him that the McPherson St property would pass to the survivor on the death of Mary or Ali. This representation was not conditional or dependent on Ali and Mary actually living in the McPherson St property. Ali relied on the representation by managing the property (including spending time and effort to repair and maintain it) and expending his own funds on the property, including paying $378,761.40 to repay the Citibank loan.
2. It is not in dispute that of the overall amount expended on the acquisition of the McPherson St property, including interest on the Citibank loan and the maintenance and repair of the property, which totals $814,280, Ali's proportion was $527,280 (65%) and Mary's proportion was $287,000 (35%).
3. While Ali did not challenge Mary's decision to sever the joint tenancy in the meetings on 3 and 10 October 2014, this is explained by the fact that Mary threatened Ali that she would leave him if he challenged her decision. Further, he did raise with Mr Young whether he could oppose the severance and was informed by Mr Young either that it did not matter or that the Court would make an order severing the joint tenancy regardless.

First defendant's submissions

1. Marcel submitted that the evidence establishes that Mary and Ali only had a common expectation that the McPherson St property would become the place where they lived at the time it was purchased. The property was in fact leased to tenants within a short time of completion of the purchase and from that time onwards, until the severance on 10 October 2014, was operated as an investment property and there was no intention or plan that Mary and Ali would inherit each other's investments. The severance of the joint tenancy into a tenancy in common in equal shares on 10 October 2014 reflected the basis on which Mary and Ali had in fact mutually agreed to conduct and operate their ownership of the McPherson St property as from shortly after the completion of the purchase in March 2008 until the severance.
2. Marcel submitted that because the initial intention or expectation of acquiring the McPherson St property as a house in which to live was replaced by a mutual understanding or decision to put in tenants to operate the property as an equal investment precluded the application of the principles of equitable estoppel.

Consideration

1. I will now deal with the three elements which Ali must prove in order to establish his estoppel claim: a representation or promise, reliance and detriment.
2. I have referred at [35]-[38] above to Ali's evidence regarding his conversations with Mary leading up to the purchase of the McPherson St property in November 2007, in which she told him that she would assist with a contribution towards the purchase price up to $290,000, and that the property would be his if she predeceased him. In addition Ali, deposed to a representation in a conversation, which occurred at the time the nature of a joint tenancy was explained to them by Ms Edwards at the meeting referred to at [41] above, that the McPherson St property would pass to the successor on the death of Mary or Ali. The conversation relied on is as follows: Ali: I've just suffered a heart attack. If I have another heart attack and die, I want you to be looked after. The joint tenancy is almost as good as a will. Mary: I will call this Ali's house because you like it so much and we will be together until we die, so yours or mine it does not matter, one of us will live in it. Ali: Whether we have wills or not, this is almost as secure. Mary: It protects the survivor. It makes very good sense. … Ali: Yes, we'll be joint tenants. You'll end up with the property.
3. Ali's evidence of the conversations referred to above was not directly challenged in cross-examination. Ali also gave unchallenged evidence that Mary told him after the contract was signed that the only amount she would contribute to the purchase was $290,000 (being the proceeds from the sale of her Kogarah unit).
4. The cross-examination of Ali focused instead on when he and Mary reached the understanding that the McPherson St property would no longer be the place where they would live. Based on this cross-examination, it was submitted on behalf of Marcel that the severance of the joint tenancy into a tenancy in common in equal shares on 10 October 2014 reflected the basis on which Ali and Mary had in fact mutually agreed to conduct and operate their ownership of the McPherson St property from shortly after the completion of the purchase in March 2008 until the severance.
5. I reject this submission. I am satisfied the McPherson St property was initially rented out to tenants to cover the interest repayments on the mortgage. However, while it has been rented to tenants almost continuously since it was purchased, the original intention of both Ali and Mary was that they would renovate it and then move into it as their permanent home. This is supported by the evidence referred to at [45] above. Ali deposed that he and the deceased had many discussions about renovations to it, but Mary prevaricated on the decision to move into the McPherson St property, in particular the renovations which should be made, and after about 9 to 12 months from the time it was first rented out, she told him 'I don't want to move in there. I can't make up my mind about fixing it up or what to do'. It was put to Ali in cross-examination that Mary never intended to live in the property, and really the agreement between her and Ali was always that it was an investment, which Ali denied. I accept Ali's evidence that at the time of settlement of the contract to purchase the McPherson St property, he and Mary had an understanding that after making renovations to the property, they would make it their home, but from about late 2009 they had effectively decided to keep it as an investment property and continued living in the Garfield St property.

Issue 4: The plaintiff's resulting trust claim

1. Ali relied in the alternative on a resulting trust on the principles stated in Calverley v Green (1984) 155 CLR 242; [1984] HCA 81. In that case, Deane J said (at 266-267) that: Where two or more persons advance the purchase price of property in different shares, it is presumed that the person or persons to whom the legal title is transferred holds or hold the property upon resulting trust in favour of those who provided the purchase price in the shares in which they provided it. See also Gibbs CJ at 246-247 and Mason and Brennan JJ at 258.
2. The relevant contributions must have the character of purchase price (including incidental costs of the purchase such as legal expenses, stamp duty and registration fees). Incurring a liability under a mortgage will constitute a contribution to the purchase price, but if the parties borrow jointly in order to make the acquisition they will be treated as having borrowed in equal shares, and no account will be taken of the parties' different contributions to repayment of the loan unless the evidence establishes that the parties intended to acquire 'not the title to land subject to mortgage, but the land freed of the mortgage', in which case contributions to the discharge of the mortgage will be taken into account: Calverley v Green at 262-263.
3. The presumption of a resulting trust may be rebutted by evidence showing that the common intention of the parties at the time of the acquisition was for equality of interests despite inequality of contributions to the purchase price. It can also be rebutted if they are in a relationship which gives rise to a presumption of advancement, although I note there is some uncertainty whether the presumption of advancement applies to de facto relationships.
4. In the present case, had the issue arisen, I would have concluded that Mary and Ali had the common intention at the time of the purchase that they would hold the McPherson St property in equal shares despite their unequal contributions to the purchase price because they each signed the 'Instructions on Tenancy' document stating that as joint tenants they would hold the property 'jointly and equally'. They did so after being advised about what it meant. In addition, it is relevant that at the time of the purchase they had been in a committed and loving de facto relationship for some 17 years and intended to live together for the foreseeable future as a couple in the property. It is also significant that the rental income from the property was shared by them equally throughout their joint ownership.

Issue 5: Rectification of the 2014 will

1. In light of my conclusion that Marcel has not established that Mary had testamentary capacity at the time she signed the 2014 will, this issue does not arise. However, in case the matter goes further I will deal with it briefly.
2. The rectification claim is made pursuant to s 27(1) of the Succession Act which provides: The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied the will does not carry out the testator's intentions because - (a) a clerical error was made, or (b) the will does not give effect to the testator's instructions
3. The application for an order under s 27(1) must be made within 12 months after the date of the testator's death, or such longer period as the Court allows for such an application: s 27(2) and s 27(3). In the present case, the application was made in Marcel's cross-claim filed after 12 months from the date of Mary's death. In all the circumstances, in my view it is appropriate to grant an extension of time and I would, if needed, have done so.
4. I have had regard to the summary of the authorities on s 27(1) set out by Meek J in Reeves v Reeves [2024] NSWSC 134 at [419]-[436].
5. I am satisfied that the reference to 'my husband' in cl 6 is a typographical error, resulting from the fact that the change of name of the residuary beneficiary required a consequential change of 'my husband' to 'my sister'. The making of the error is explained by Mr Young's evidence that after the various changes were made by his secretary, he did not read the 2014 will to Mary before she signed it, and I infer that he did not read it thoroughly himself and for that reason did not pick up the error.
6. It follows that had the 2014 will been valid, cl 6 did not carry out Mary's intentions because a clerical error was made by Mr Young, and it would have been appropriate to rectify that clause by replacing 'my husband' with 'my sister'.

Issue 6: The plaintiff's family provision claim

1. Ali brought as an alternative to each of his other claims for relief, a family provision claim under s 59 of the Succession Act. As I have found in his favour on his estoppel claim, this alternative claim does not strictly arise, but it can be dealt with relatively briefly.
2. It is not in dispute that Ali was living in a de facto relationship with Mary at the time of her death. Accordingly, he is an eligible person who may apply for a family provision order under Ch 3 of the Succession Act: s 57(1)(b). His application was made within 12 months of Mary's death.
3. Under s 59(1)(c) of the Succession Act, the Court may make a family provision order in favour of Ali if at the time when the Court is considering the application, the Court is satisfied that adequate provision for the proper maintenance, education or advancement in life of Ali has not been made by the will of the deceased. If that requirement is met, the Court may make such order for provision out of estate as it thinks ought to be made for the maintenance, education or advancement in life of Ali, having regard to the facts known to the Court at the time the order is made: s 59(2). Each of these questions requires an evaluative judgment taking into account the matters identified in s 60(2).
4. In Spata v Tumino (2018) 95 NSWLR 706; [2018] NSWCA 17 at [112]-[115], Payne JA (Macfarlan JA and Sackville AJA agreeing) said: In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 at [74] Gummow and Hayne JJ cited the plurality in Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40, for the proposition that: [T]he words 'adequate' and 'proper' are always relative. There are no fixed standards, and the Court is left to form opinions upon the basis of its own general knowledge and experience of current social conditions and standards. What is "proper" requires an evaluative judgment that has regard to all relevant circumstances, not merely the parties' financial circumstances. The Court's assessment of what is proper maintenance, education and advancement in life must be made at the time when the Court is considering the application. This does not, however, mean that considerable weight should not be given to the assessment of a capable testator or testatrix who has given due consideration to the claims on his or her estate. In Andrew v Andrew (2012) 81 NSWLR 656; [2012] NSWCA 308 at [12] Allsop P stated: Accepted and acceptable social and community values permeate or underpin many, if not most, of the individual factors in s 60(2) and are embedded in the words of s 59, in particular 'proper' and 'ought'. That such values may be contestable from time to time in the assessment of an individual circumstance, or that they may change over time as society changes and grows can be readily accepted. Allsop P acknowledged that orders made by reference to "perceived prevailing community standards of what is right and appropriate" referred to an imprecise, variable and contestable standard. See also White J in Slack v Rogan; Palffy v Rogan (2013) 85 NSWLR 253; [2013] NSWSC 522 at [125] - [127].

Conclusion

1. For the above reasons, I have concluded that: 1. The first defendant has succeeded in propounding the 1993 will which is the deceased's only valid will, and probate of that will should be granted to the NSW Trustee and Guardian. 2. The plaintiff has succeeded in his claim that the defendants are estopped by the conduct of the deceased from denying that the plaintiff is entitled to the deceased's half share in the McPherson St property. The appropriate relief is a declaration that the plaintiff is the legal owner of the whole of the McPherson St property and an order that the interest registered in the name of the deceased in that property be transferred to the plaintiff. 3. The plaintiff has failed on the resulting trust and the family provision claims.
2. Subject to anything which the parties wish to say regarding the form of the orders, the orders I propose to make to deal with the substantive issues are as follows: 1. Order that probate of the deceased's will dated 30 June 1993 in solemn form be granted to the NSW Trustee and Guardian. 2. Order that the proceedings be remitted to the Registrar to complete the grant. 3. A declaration that the defendants are estopped by the conduct of the late Mary Moussa from denying that the plaintiff is the legal and beneficial owner of the real property known as 6 McPherson Street, Carlton, New South Wales (McPherson St property). 4. A declaration that the NSW Trustee and Guardian, as executor, holds any title and interest in the McPherson St property in trust for the plaintiff. 5. Order that the interest registered in the name of the late Mary Moussa, or the NSW Trustee and Guardian as executor, in the McPherson St property be transferred to the plaintiff.
3. This leaves an outstanding issue of costs. The parties have requested the opportunity to make submissions on costs after these reasons are published. I will make orders for submissions on costs, and note that the parties will need to address the extent to which it is appropriate for the deceased's estate to bear costs in circumstances where the costs incurred by the plaintiff and the first defendant appear to be out of proportion to the amount which each could have expected to recover if successful.
4. I direct the parties, within 14 days of these reasons being delivered, to provide to my associate short minutes of order which reflect these reasons, which should allow the parties sufficient time to agree on orders to reflect these reasons and a timetable for submissions on costs.

Amendments 19 November 2024 - [232] and [253] minor typographical corrections. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 November 2024