Estate of Janakievska [2011] NSWSC 1275
Re Griffith
Source
Original judgment source is linked above.
Catchwords
Estate of Janakievska [2011] NSWSC 1275
Re Griffith
Judgment (4 paragraphs)
[1]
Solicitors:
Plaintiff: CK Lawyers
First Defendants: Young and Muggleton
Second Defendant: Submitting appearance
File Number(s): 2014/00105590
[2]
Judgment
Elias Yacoub El Chami ("the deceased") died on 23 February 2014, aged 92 years, leaving an estate with a value of about $917,000 (principally representing the value of a home unit, the deceased's residence, at or near Guildford in the state of New South Wales) and two competing wills (respectively dated 15 April 1992 and 13 February 2014), the validity of the latter of which is challenged.
The deceased never married. He had no children.
His closest surviving relatives were his younger brother Salim Yacoub El Chami ("Salim") and Salim's children, including daughters Sonya El Chami ("Sonya") and Samia Barbara Rozman ("Samia").
The only challenge to the validity of the 1992 will arises from its purported revocation by the 2014 will. In the event that the 2014 will is held invalid, that challenge falls away.
The plaintiff (Elias Habib, a friend and neighbour of the deceased in his final days) is, in the events as they have happened, the only executor and beneficiary named in the 2014 will. He seeks to propound that will.
His contradictor, at the time his statement of claim was filed in these proceedings on 15 December 2014, was Salim, the brother of the deceased.
During the course of the proceedings, on 17 October 2015, Salim died, aged 81 years.
On 22 December 2015 two of Salim's children, Sonya and Samia, obtained a grant of probate authorising them to administer his estate.
At the commencement of the final hearing of the current proceedings, on 9 February 2016, procedural orders were made having the effect of joining Sonya and Samia in the proceedings (in their capacity as legal personal representatives of Salim) as defendants, together designated "the first defendants", in lieu of Salim.
At the same time Deeb Aquabani was joined in the proceedings, designated the second defendant, and formally recorded as submitting to the orders of the Court, save as to costs. He is administrator of the estate of the deceased pursuant to special letters of administration granted on 10 August 2015 pending the determination of the proceedings.
In the proceedings as reconstituted, the plaintiff's contradictors are Salim's daughters, the first defendants.
Via an amended defence filed on 5 June 2015, the first defendants contend that the 2014 will was invalid because: (a) the deceased lacked testamentary capacity at the time the will was made; and (b) the deceased did not know or approve of the contents of the will. A further ground of invalidity, that the will's execution was procured by an exercise of undue influence, was abandoned at a directions hearing held, on 31 August 2015, in advance of the final hearing.
Via an amended cross claim filed on 18 March 2015, the first defendants propound the 1992 will. A claim nominally made by Salim in the cross claim, for family provision relief under chapter 3 of the Succession Act 2006 NSW, fell away with Salim's death. The only claim for relief actively pursued by reference to the cross claim is a claim for an order that a grant of administration of the deceased's estate, with the 1992 will annexed, be made to the first defendants in solemn form.
In the events that have happened, the 1992 will named the deceased's brother, Salim, as the only executor and beneficiary of his estate. Incidentally, as evidence of the deceased's closest family ties, Sonya and Samia were named as substitute executors and beneficiaries of the deceased in the event that Salim did not (although, in the event, he did) survive the deceased for at least three months.
Salim's death before the commencement of the final hearing meant that affidavit evidence sworn by him in anticipation of the hearing was read (subject to particular evidentiary objections, but otherwise without objection) without him being available for cross examination.
Salim's unavailability as a witness affected the course of the final hearing but not, I apprehend, the outcome of the proceedings. That is because: (a) the plaintiff bears the ultimate onus of proving that the 2014 will was the last will of a free and capable testator (Re Griffith; Easter v Griffith (1995) 217 ALR 284 at 289-290; Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 704E-707G; Bailey v Bailey (1924) 34 CLR 558 at 570-572); and (b) the first defendants' challenge to the evidence relied upon by the plaintiff to propound the will demonstrates sufficient doubt about both the deceased's testamentary capacity and his knowledge and approval of the will to require that it not be admitted to probate (Petrovski v Maser; Estate of Janakievska [2011] NSWSC 1275 at [242]-[262]). On the whole of the evidence, I am not satisfied that it was the last will of a free and capable testator; I apprehend that the contrary is the case: Woodley-Page v Symons (1987) 217 ALR 25 at 35; Worth v Clasohm (1952) 86 CLR 439 at 453; Re Griffith (1995) 217 ALR 284 at 289-290.
The plaintiff relies principally upon the evidence of:
1. Raymond Mawad, an Arabic speaking solicitor who drafted and witnessed the will;
2. Rodney Carroll, the manager of the nursing home in which the deceased resided, and a witness to the will;
3. Dr Razia Dehsabzi, a general medical practitioner who attended upon the deceased, inter alia, at his nursing home;
4. Mr Anthony Stanton, the son of a co-resident of the deceased's nursing home; and
5. the plaintiff himself.
That evidence, taken at high tide, unchallenged, could have supported a finding that the 2014 will was valid.
However, invoking the "suspicious circumstances rule" (derived from Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089, confirmed in Nock v Austin (1918) 25 CLR 519 at 528 et seq and recently elaborated in Tobin v Ezekiel (2012) 83 NSWLR 757), the first defendants have methodically cast doubt upon the available evidence.
This is not a case in which the parties fought their respective cases through competing forensic psychiatrists acting as proxies. No such evidence was adduced on either side of the record.
The conclusion to which I have come (namely, that the 2014 will cannot be admitted to probate) does not reflect adversely upon the credit of any of the witnesses from whom evidence was adduced in support of the will. It depends, rather, on an aggregation of objective factors which, in the aggregate, tell decisively against the will's validity.
The deceased migrated to Australia from Lebanon in 1966, about 10 years after Salim.
The brothers had a close relationship (borne of adversity in the land of their birth), and regular contact in Australia, until 1990 or thereabouts. At that time the deceased began to manifest mental illness (paranoid schizophrenia) and for the next 10 years or so he experienced life, from time to time, under the protection of the Protective Commissioner and institutionalised living. A financial management order made by the Guardianship Tribunal in May 1997 was revoked by the Tribunal in September 2001.
During the last 10 years or so of his life, contact between the brothers fell away largely (Salim said, the first defendants say, and I accept) because of irrational behaviour on the part of the deceased.
The deceased lived a solitary life, with no apparent family, until, in the last few months of his life, a friendship developed between him and the plaintiff.
The deceased's advanced age at the time he signed the 2014 will was accompanied by frailty, physical and mental. He had been bed-bound for about two months. He had recently had a fall, suffering a head injury that precipitated his demise; it adversely affected his cognitive abilities. His vision and his hearing were impaired. The day before he signed the will he was unable to sign his name. The will, when signed, can fairly be characterised as a "deathbed will".
Mr Mawad prepared and witnessed the will at the invitation of the plaintiff.
He took instructions from the deceased, independently of the plaintiff but with the plaintiff in close proximity, on 18 January 2014, three weeks or so before the will was executed.
At the time the will was executed, on 13 February 2014, the plaintiff was in close proximity. Mr Masad's evidence is that, at that time, he read and explained the will to the deceased in the Arabic language; the deceased lacked the capacity to read, and spoke only limited, English. Mr Carroll, who, with Mr Mawad, witnessed the deceased's execution of the will, was present only for the physical act of execution. He did not witness any preliminary process. Nor was he familiar with the Arabic language.
No medical professional was present when Mr Mawad took instructions for the will on 18 January 2014, or when the will was read and explained to, and signed by, the deceased on 13 February 2014.
Mr Mawad did obtain a medical certificate from Dr Dehsabzi, in support of the deceased's testamentary capacity, on 22 January 2014. In that certificate she recorded: "It is my view that [the deceased] is physically unable but mentally able to make any informed life decisions".
However, her mind was not specifically focused upon whether, at a particular time, the deceased had the requisite mental capacity to give instructions for the making of a will, or to execute, a will.
In giving oral evidence, she was less than confident that the deceased had testamentary capacity either at the time he is said to have given instructions for a will on 18 January 2014 or on 13 February 2014, when the will was executed. In any event, she lacked capacity to communicate with the deceased in his native tongue; she was not an Arabic speaker.
Mr Stanton, a person with an unrefined capacity to understand Arabic (spoken by his father), gave evidence of hearing the deceased engage in general discussions about Lebanon, but I am not satisfied that his engagement with the deceased descended to the detail associated with will-making, or will-making capacity, or that it extended temporally to the time of execution of the disputed will. He lost touch with the deceased at an indeterminate time in late January 2014.
The first defendants' criticism of the 2014 will includes several observations about its form. They point out that, despite Mr Mawad's evidence that he read the will to the deceased in Arabic, not English, the will's attestation clause includes no acknowledgement that the document was signed "in translation". They note that a power of advancement found in clause 5 of the document was singularly out of place because predicated upon a false assumption that there was an infant beneficiary to whom it might be applied. They point out that, had the will been carefully read and explained to the deceased, such a clause (based upon an inapplicable template) would have been discovered and deleted from the document before execution. They criticise alternative spellings of the deceased's name in the will, and what they describe as an incorrect description of the suburb in which the deceased's residence was located. They criticise, also, a provision (clause 7) in which the deceased is said to have recorded a "desire and direction" that Mr Mawad's firm act as solicitors for his estate.
Each of these criticisms, particularly that relating to clause 5, plays a part in casting doubt upon the essential validity of the will. However, three other points of criticism have a more substantive flavour. First, the will manifests no appreciation (because Mr Mawad had none) that the deceased had property interests in Lebanon as well as in New South Wales. Secondly, the will not only identifies the plaintiff as the deceased's sole beneficiary, but also identifies the plaintiff's wife as a substitute beneficiary against the possibility that the plaintiff might predecease the deceased; she was a person, personally, unknown to the deceased. Thirdly, clause 6 of the will manifested a state of mind, vis-a-vis Salim and his family, that is said to have been delusional; cf, Re Griffith (1995) 217 ALR 284 at 289-290.
Clause 6 was in the following terms:
"IT IS MY STRICT DIRECTION that my brother Salim Yacoub El Chami and his family including his five daughters, and all my relatives both in Australia and in Lebanon be excluded from this will and any inheritances pursuant to this will due to the fact that they did not take care of me, and mistreated me."
The delusional flavour of this direction is not dependent for its exposure only upon evidence of Salim and the first defendants about closer family ties to the deceased than the deceased disclosed to Mr Mawad. It is reinforced by a statement made to Mr Mawad at the time Mr Mawad took instructions from the deceased on 18 January 2014. The deceased told him that he had not seen his brother Salim since the 1960s. That statement, accompanied by a derogatory reference to Salim as a "scorpion", finds reflection in a contemporaneous diary note taken by Mr Mawad.
The falsity of the statement is established, inter alia, by public records that demonstrate that Salim was actively involved in the examination of the deceased's mental health by the Mental Health Review Tribunal in the 1990s and by the Guardianship Tribunal in September 2001.
Salim's evidence is that his last contact with the deceased occurred in October 2013 (when he offered the deceased assistance, which was declined); but, on any view of the evidence, it is not correct to say that that the deceased had last seen Salim in the 1960s, or that the deceased's contrary belief was no more than a mistake (Wechsler v Du Maurier [2002] NSWCA 13).
Nor can that statement be explained away as a misunderstanding by Mr Mawad of his instructions. The contemporaneous file note and Mr Mawad's oral evidence exclude that possibility.
I leave to one side evidence that the deceased referred to the plaintiff as a "cousin", which, on any literal meaning of the term, the plaintiff was not. I do not exclude the possibility that the deceased used the term figuratively, as a term of endearment. I place no weight upon it.
Nor do I place any substantial weight upon the deceased's death-bed yearnings to return to his home, and to live with the plaintiff. They can be discounted as wishful thinking, possibly but not necessarily delusional in character.
On the other hand, the deceased's state of mind vis-à-vis his family, those closest to him but rejected by him, is not capable of rational explanation; nor does it appear to have been amenable to reason, or to be explicable by reference to the deceased's education or culture: Re Hodges (1988) 14 NSWLR 698 at 706D. He appears to have suffered a disorder of the mind that poisoned his affections, perverted his sense of right and prevented the exercise of his natural faculties: Banks v Goodfellow (1870) LR 5 QB 549 at 565.
On the facts of the case, there is no distinction to be drawn between the deceased's capacity at the time instructions were given for the will and his capacity at the time the will was executed, despite the days that intervened between those two events: cf, Bailey v Bailey (1924) 34 CLR 558 at 572. On both occasions, the deceased lacked a sound mind, memory and understanding. On both occasions, he suffered from a delusional belief about the character and constancy of his brother that directly, and fundamentally, affected the nature of the will.
On the objective evidence, at the time he gave instructions for the 2014 will and at the time he executed it, the deceased suffered from a delusion so closely connected with identification of those who might have a claim on his bounty as to render the will invalid: Tipper v Moore (1911) 13 CLR 248 at 250; Bull v Fulton (1942) 66 CLR 295 at 299 and 343; Woodhead v Perpetual Trustee Co Limited (1987) 11 NSWLR 267 at 275.
This finding is reinforced by an apprehension (confirmed by Mr Mawad in cross examination) that, in taking instructions for the will and in explaining it at the time of execution, Mr Mawad did not methodically turn his mind, or that of the deceased, to each of the elements of testamentary capacity traditionally identified by reference to Banks v Goodfellow (1870) LR 5 QB 549 at 565.
In all the circumstances, I am not satisfied that the deceased had the testamentary capacity required to make the 2014 will, or (if he did) that he knew and approved of its terms. I am not satisfied that the deceased had the capacity to remember, to reflect and to reason; or that he in fact did so in a rational way: King v Hudson [2009] NSWSC 1013 at [50]-[51].
Accordingly, subject to allowing the parties an opportunity to be heard as to the form of orders, I propose to make orders to the following effect:
1. ORDER that the will of the deceased dated 15 April 1992 be admitted to probate in solemn form.
2. ORDER that letters of administration with the will annexed be granted to the first defendants.
3. ORDER that the proceedings be referred to the Registrar to complete the grant.
4. ORDER that any requirement for an administration bond or sureties be dispensed with.
5. ORDER that that any requirement for further compliance with the Probate Rules be dispensed with.
I will allow the parties an opportunity to be heard as to the costs of the proceedings, mindful as I am of the principles as to costs discussed in G.E. Dal Pont and KF Mackie, The Law of Succession (LexisNexis, Australia, 2013) paragraphs [23.5] and [23.8]; Re Hodges (1988) 14 NSWLR 698 at 709E-710B; and the need to ensure that that the Court's costs orders are appropriate to the particular circumstances of the case (Williamson v Spelleken [1977] Qd R 152).
[3]
SUPPLEMENTARY REASONS AFTER HEARING SUBMISSIONS AS TO COSTS
The appropriate order for costs, in the circumstances of this case, is that (without disturbing an interlocutory costs order made against the plaintiff on 31 August 2015) the costs of all parties, on the ordinary basis, be paid out of the estate of the deceased. The plaintiff's unsuccessful support for the 2014 will, and his consequent opposition to the 1992 will, can, and should, fairly be laid at the feet of the deceased. The economic burden of the proceedings can, and should, be borne by his estate.
The plaintiff believed, on reasonable (if mistaken) grounds, that, in facilitating the making of the 2014 will, he was acting in accordance with the deceased's wishes. He caused a suitably qualified, experienced solicitor to be retained for the purpose of ascertaining, and acting upon, the deceased's instructions. Albeit, perhaps, imperfectly, that solicitor did nothing in haste or secrecy. He consulted the deceased's doctor, and the manager of the nursing home in which the deceased resided. Critically, he kept a contemporaneous record of the instructions orally given to him by the deceased, and he ensured that the deceased's disclaimer of family was made manifest. In due course, this permitted exposure of the deceased's delusional pattern of thought.
The plaintiff's participation in the proceedings was not unaccompanied by personal interest. However, that personal interest did not divert the proceedings from the course that they might reasonably have taken had somebody other than the plaintiff been named as the executor of the 2014 will or taken up the task of propounding it. The plaintiff's conduct of the proceedings was measured, and proportionate to the questions to be determined. So too was that of the defendants.
This is not a case in which the parties, or any of them, should be required to bear substantial costs of proceedings necessary to identify the last will of a free and capable testator.
[4]
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: 31 August 2016