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[2008] NSWSC 39
Supreme Court of NSW
2007-12-07
Windeyer J, Powell J
Original judgment source is linked above.
CITATION : Kozak v Berwecki [2008] NSWSC 39
JURISDICTION : Equity Division Probate List
DECISION : Claim for revocation of probate dismissed.
CATCHWORDS : WILLS PROBATE AND ADMINISTRATION - probate - application for revocation of common form grant of probate - whether deceased lacked testamentary capacity - soundness of mind, memory and understanding - insane delusion - evaluation and discrimination requirement - officiousness - consideration of relevance - WILLS PROBATE AND ADMINISTRATION - practice and procedure - caveats - by administrative error caveat not cross-referenced to summons and grant made in error - consideration of proper action
Banks v Goodfellow [1870] LR 5 QB 549 Boughton v Knight [1873] LR 3 P&D 64 CASES CITED : Bull v Fulton (1942) 66 CLR 295 Estate of Griffiths (deceased) Easter v Griffiths (NSW Court of Appeal, 7 June 1995, unreported) Read v Carmody (NSW Court of Appeal, 23 July 1998, unreported) Worth v Clasohm (1952) 86 CLR 439
Peter Tony Kozak (Plaintiff) PARTIES : Ireneusz Berwecki (First Defendant) Barbar Chszanowska (Second Defendant)
COUNSEL : J J Loofs (Plaintiff) V R Grey (Defendants)
SOLICITORS : Teece Hodgson & Ward (Plaintiff) Horowitz & Bilinsky (Defendants)
117709/05 PETER TONY KOZAK V IRENEUSZ BERWECKI AND ANOR IN THE ESTATE OF STEFAN KOZAK JUDGMENT Issue 1 This is a probate revocation suit, the question being whether a grant of probate in common form of a will of Stefan Kozak (the deceased) dated 5 July 2004 should be revoked on the ground that at the date of the will the deceased lacked testamentary capacity. Preliminary matters 2 The deceased died on 3 August 2004 aged 90. By the will dated 4 July 2004 he appointed his carer Ireneusz Berwecki and his stepdaughter Barbara Chszanowska as executors and gave them his whole estate in equal shares. Probate of this will was granted on 6 December 2004. The assets of the deceased at death as disclosed for probate purposes were his house at 7 Mona Street Auburn with an estimated value of $435,000 and about $29,000 in a savings account. 3 Probate should not have been granted because the plaintiff, Peter Kozak, had lodged a general caveat on 29 September 2004 which, through administrative error, was not cross-referenced to the summons for probate. In an affidavit of Alexandra Jane Munday, solicitor, employed at Messrs Teece Hodgson and Ward, the solicitors for the plaintiff, she said that she learned about this on 24 January 2005. She said she was told that the court could do nothing although it was the court's mistake and that it would be necessary to file a statement of claim for revocation. In my view that is not the correct position. The Registrar in Probate could, as a first step, request the person obtaining the grant in face of the caveat to return it for cancellation and if this were refused, then following a memorandum of Powell J issued in 1992, could himself have brought a motion seeking revocation. In the long run little except inconvenience has resulted from the advice said to have been given. I say, "said to have been given" because the Registrar has had no opportunity to comment on what was said. It is perfectly clear that had the caveat been noticed then either the present defendants would have proceeded by statement of claim or would have filed a motion for an order that the caveat cease to be in force. Had this latter course been taken it is, I think, clear that the motion would have been dismissed and an order made that the matter proceed on pleadings as a contested suit with the parties reversed. Under the proceedings as now constituted, while the caveator is plaintiff, the onus of establishing that the 2004 will is a valid will remains on the executors of that will. 4 The interest the plaintiff, Peter Kozak, claimed in the caveat was as beneficiary under a will dated 2 December 2002. In fact he is the sole executor named in that will as well as a beneficiary. He seeks revocation of the grant of probate of the 2004 will and a grant of probate in solemn form of the will dated 2 December 2002. If the revocation claim succeeds then it is not disputed that a solemn form grant of the 2002 will should be made. 5 The normal and, I consider, the proper course where claim for revocation is made is for the executor obtaining the disputed common form grant to seek, by cross-claim, probate of the disputed will in solemn form. Although I stated this at least twice during the trial, no such claim was made. While I do not consider I could require this to be done, such a course is obviously desirable to ensure through service of citations that all interested persons are bound. Family facts 6 Stefan Kozak was born in Poland. He came to Australian in 1950 with a brother, Stanislaw. His mother and two other brothers (Michael and Wladyslaw) had come to Australia a year earlier and another brother arrived latter. The deceased and his brother Wladyslaw purchased the property, 6 Mona Street, Auburn in 1953. In 1968 Wladyslaw married and moved out and the deceased purchased his interest. Thus the deceased lived in the same house for over 50 years. He had a sister, Genowefa Palikot, who remained in Poland and who died in 2005. 7 The deceased was married to Cecelia in 1977. She died in 1987. There were no children of the marriage. 8 Wladyslaw has two children, Irene and Peter. Irene married and became Irene Bator. The deceased had a nephew, Jan Palikot and a niece Barbara Ruta in Poland. They were the children of Genowefa. The evidence does not indicate when the brothers of the deceased, other than Wladyslaw, died, but they pre-deceased him. Wladyslaw and his children maintained contact with the deceased, particularly before his marriage to Cecilia and after she died, but the contact was irregular. 9 The first defendant (Berwecki) is also Polish. He and the deceased met at the Polish Catholic Church at Ashfield and also at the Polish Club at Ashfield, usually after church. The second defendant, Barbara Chszanowska (Barbara), is the stepdaughter of the deceased, being a child of his wife, Cecilia. She lives in Poland, but she had visited Australia on a few occasions during the lifetime of the deceased and once shortly after his death. The deceased and the second defendant maintained contact by letter or card at Easter and Christmas and through some telephone calls. Wills 10 The deceased made a number of wills. Those in evidence, apart from the last will are the following: 9 July 1996 - executors Peter Kozak and Christopher Nadolski (solicitor): beneficiaries in equal shares - Peter Kozak, Irene Bator, Jan Palikot and Barbara Ruta.
15 July 1996 - codicil to will of 9 July 1996. Legacy of $10,000 to sister Genowefa - otherwise will confirmed.
6 May 1997 - same executors and same beneficiaries as under previous will and codicil.
2 December 2002 - executor Peter Kozak and in default Wladyslaw - same beneficiaries as the will dated 6 May 1997. Power of Attorney and enduring guardianship appointment 11 On the same date as he made the will dated 2 December 2002, the deceased executed an enduring power of attorney and a separate appointment of enduring guardian, which latter instrument would operate if he became partially or totally incapable of managing his person. These were both in favour of his brother Wladyslaw Kozak. Further facts 12 The deceased became a patient of Dr Lukaszewicz in 1988. She had qualified in Poland and requalified in New South Wales. Her practice grew and it became difficult for her to make the home calls required by the deceased and from 1996 until early 2003 the deceased went to another general practitioner. However, in early 2003 the deceased asked Dr Lukaszewicz to take him back as a patient and she agreed. By this time the deceased and Berwecki had become better acquainted. Berwecki was a painter and had heard at the Polish Club that the deceased needed some work done on his house. He agreed to do so for what may have been $1,200 or perhaps $300 as a good turn and later he gave some help with other minor repairs around the house. 13 It seems that by 2002 the deceased was becoming withdrawn. Wladyslaw visited him from time to time, spoke to him by phone and also helped him with correspondence as he handled the English language better than the deceased. It seems that the deceased's contact with his sister in Poland ceased and in fact in 2003 he stated that she had died, which was not correct. According to the plaintiff and his father the deceased began to forget things and events which he had spoken of often before and talked often of his years in Poland, rather than of recent happenings. Medical events 14 The deceased was admitted to Auburn Hospital on 20 April 2003. He had called the ambulance as he thought his blood pressure was high. He had been treated at that hospital on other occasions. There is in evidence a somewhat confused bundle of medical records. In any event, the deceased telephoned Wladyslaw to tell him he was in hospital and he visited him on 21 April 2003 when the deceased gave him the keys to his house and asked him to bring him his clothes, his bank book and title deeds and to take care of them. Some time during this admission the deceased signed some withdrawal forms which he gave to Wladyslaw, who withdrew some funds to pay bills. He said that the deceased was confused and talked of police and a court case and he was concerned about this. The deceased was transferred from Auburn District Hospital to St Joseph's Hospital at Auburn into the Psychiatric and Neuropsychology ward on 30 April 2003 with a preliminary diagnosis of possible dementia or possible age consistent cognitive impairment. He remained there until 23 June 2003 and underwent various tests including a Mini Mental State Examination (MMSE) on which he scored only 18 out of 30. 15 After his move to St Joseph's Hospital, Wladyslaw and perhaps Peter, had instructed the staff at St Joseph's not to let the deceased have visitors and apparently the staff complied with this assuming the enduring guardianship appointment gave such authority. 16 At an early stage while in St Joseph's the deceased was expressing a wish to go to a hostel facility for aged persons run by a Brother Albert at Marayong, but later expressed a desire to go to his own home. He had asked his brother and sister-in-law whether he could go to live with them but they had said it was not possible. Berwecki was prevented from visiting him for some days, but was subsequently telephoned by the deceased and told to come to visit him. The deceased also telephoned Dr Lukaszewicz on 20 May and told her that he was in hospital and asked her to visit him, which she did. He was very anxious to go back to his own home and he asked Berwecki if he would care for him on the basis that he could live in the house. Berwecki eventually agreed to do this upon making enquiries about a carer's pension. By the time he was discharged from St Joseph's Hospital, the nursing discharge summary stated him to be oriented in time, place and person with short term memory impairment and with normal ideation. In the hospital nursing notes there are various references to confusion and in the social worker notes references to conflict between the deceased and Wladyslaw regarding control attempts by Wladyslaw, and of his wish to get his bank book back and Wladyslaw's resistance to this. 17 The St Joseph's Hospital discharge summary signed by Dr Chian states under a heading "Mental State Examination on Admission", inter alia, "no formal thought disorders; no hallucinations; persecution ideation that people may attack him in home as he lives alone". Under the heading "Progress in Hospital" the following appears: His brother Wladyslaw Kozak expressed concern about Stefan's ability to self care. Neuropsychiatrist testing however showed he has intact testamentary capacity; following family conference he was given conduct of his financial affairs (his brother had been keeping his bank book for him).
Under the heading "Mental State on Discharge" appears: Pleasant, reactive, euthymic mood; no psychotic symptoms. 18 While at St Joseph's the deceased was seen on six occasions by Dr Karen Wallace, a clinical neuropsychologist, whose report dated 30 June 2003 forms party of the hospital records and is in evidence. The deceased was referred to her for "assessment of his cognitive capabilities and decline in his mental state and concern about his ability to make informed decisions about his finances and accommodation". The report included the following: Ms Bator said she has visited her Uncle several times since his current admission. She said that during a recent visit her Uncle was not happy about seeing her and told her not to visit anymore. She believed the only explanation for this was perhaps that he was suspicious and upset by her talking to the Nursing staff. Ms Bator expressed concern about what she considered her Uncle's poor hygiene. She said that since his admission to hospital she has been to tidy his house and has found soiled linen and clothes. She also described food in his fridge post-expiry date. Ms Bator was concerned that her Uncle was not managing to cook, clean and shop.
Ms Bator said that her family had instructed St. Joseph's Hospital to place limitations on her Uncle's visitors because they believe "people are out to get his money" and "may trick him into selling his house". Ms Bator identified several relatives who have in the past asked Mr Kozak for money and he has apparently met their requests. Ms Bator also said that her Uncle gives freely to charities. She said her family was concerned that in his position, - being elderly, alone and at times vague, - that people and/or charities might "prey on him".
Ms Bator was present when her father Mr Wladyslaw Kozak attended a face-to-face interview later that day (03.06.03). Mr Wladyslaw Kozak provided the following information regarding his brother Mr Stefan Kozak. He said that Stefan's memory has deteriorated over the last five years (e.g., repeating himself and saying what happened long ago but not remembering what happened recently). In addition, Wladyslaw said that sometimes his brother doesn't want to hear and he refuses to register the new information. Wladyslaw said that during this period of time "Stefan's general health has declined and he has complained about one thing or another". Wladyslaw said his brother has been sick on and off during the last five years. He said his brother calls the ambulance, he is then taken to Auburn Hospital, but once he gets there he wants to go home and complains that he is not getting any treatment despite the doctors attending to him. Wladyslaw said Stefan has recently been to see various Chinese doctors which has cost him $120.00 plus the medications. He said Stefan takes one or two tablets only and then tries another doctor and another medication.
Wladyslaw said he has tried to help his brother but he feels as if he is the enemy. He said Stefan gets angry with him if he sees him talking to staff and doesn't seem to understand that he has his best interests at heart. Wladyslaw said that during the current admission his wife had tried to explain details to Stefan about his hospitalisation but Stefan was verbally rude and threatened to "hit you in the mouth if you don't shut up".
Wladyslaw said Stefan lived with their mother until she died. Wladyslaw said his brother has been very independent and private all his life and has never been one to share his emotions. He said that his brother went back to Poland on three occasions but never told him of this. Wladyslaw also said that Stefan did not inform him that he and his wife were returning to Poland at the time she was very sick and he did not tell them that she had died until well after his return to Australia. Wladyslaw said that contact between them was irregular. He said that Stefan had spent Easter and Christmas celebrations with them, and otherwise he dropped into see them sometimes and vice versa.
Wladyslaw said that Stefan has managed to communicate in Polish and English adequately. Apparently in spite of his limited education, he has written and mailed basic letters in Polish and can comprehend basic written English (e.g., parts of newspapers, letters, bills).
Overall, Wladyslaw was concerned about his brother's well-being and felt that his brother would be better supported and have his needs monitored in an aged care facility.
For the purpose of neuropsychological assessment a Polish Interpreter was present. Mr Kozak's interview and assessment was spread across several days. Mr Kozak presented as alert and polite. He was an easy conversationalist but appeared somewhat paranoid at times about "so many questions" and that I was "writing too much". His answers were frequently tangential and long-winded. On two occasions Mr Kozak tried to terminate the session because he was agitated about "the circumstances". He appeared highly anxious and he explained that his brother has his "things" (i.e., bankbook, deeds of house, clothes etc.) and is controlling them while he is "locked up" and is unable to have his say. He was also "worried" that he might miss any visitors who came to see him if he were not on the ward. Mr Kozak was responsive to explanations regarding the purpose of this assessment and, with encouragement, he agreed to stay and applied himself to the tasks presented. Mr Kozak denied auditory and visual hallucinations. The results are considered to be a valid indication of his current level of cognitive functioning. Assessment Results: Premorbid level of intellectual functioning was estimated to be within the Low Average to Average range. Mr Kozak was appropriately oriented. He was unable to recite the Polish or English alphabets. While basic (Polish) counting was intact he had some difficulty doing a serial 3's addition task; self-monitoring was patchy. Immediate attention span and working memory capacity was variable. Thinking speed and hand-eye-co-ordination were slowed.
Mr Kozak demonstrated an adequate ability to learn information (words and pictures presented together) following repeated practice trials. In addition, he was able to improve his performance with semantic cues and there was no intrusion of false positive material. Recall after a period of delay was well preserved. Forced choice recognition was intact. In contrast, immediate recall of more complex designs was poor and he was easily overwhelmed.
Visuoperceptual and spatial skills were adequate. Clock-face was poorly planned and timeset was impaired. There was no evidence of apraxia.
Concept generation was deficient. Verbal abstraction was poor and his thinking was concrete. Planning and organisational skills were patchy and piecemeal. Judgement of practical visual information was good. Routine writing (English) was legible. Number recognition was intact.
Formal inventory of recent mood revealed symptoms indicative of "mild stress", "moderate depression" and "severe anxiety". At the time of this assessment Mr Kozak denied symptoms of suicidal ideation and intention. In spite of this, Ms Bator telephoned me to say that her father would not take her Uncle out on a day trip because he had said "I wish I were dead" to her father when he last visited.
Mr Kozak demonstrated clear evidence of registration and reflection of information pertaining to questions about where he intends to live. Although at times Mr Kozak had some difficulty with spontaneous generation of information (recalling specific names of places and people), he consistently provided unequivocal responses to open-ended questions regarding his choice of where he wishes to live. In addition, Mr Kozak demonstrated generation of alternative options and a basic appreciation of the consequences. Testamentary Capacity: Mr Kozak demonstrated a clear understanding about the nature and effects of making a Will, the nature and extent of his assets, and the identity and relationship of his beneficiary. In addition, across several occasions Mr Kozak consistently provided rational reasons for why he wanted to change his Will.
Conclusions: Mr Kozak is an 89 year-old man of Polish origin who was admitted to this Unit following a decline in his mental state. Mr Kozak has a background of almost no formal education, the trauma of being a prisoner of war (WWII), he has lived in Australia since 1950 and has been employed in manual labour, and he married later in life and has no children of his own. Mr Kozak has a premorbid tendency to privacy and independence. Mr Kozak has had numerous admissions to Auburn Hospital over the past eight years including episodes where he has felt unwell and has called an ambulance. During the last two months Mr Kozak's brother has attempted to make decisions on his behalf, Mr Kozak is resentful that he has had little or no control over his personal and financial affairs. The purpose of neuropsychological assessment was to delineate Mr Kozak's cognitive profile and to assess his ability to make informed decisions regarding his finances and accommodation.
Mr Kozak's neuropsychological profile is difficult to interpret given his limited amount of formal education and his cultural background. Broadly speaking however, there is clear evidence that aspects of Mr Kozak's cognitive functioning are intact including his ability to encode and remember basic old and new information. In addition, visual reasoning and visuospatial functioning are adequate.
In contrast, attentional skills (immediate and sustained) are reduced and variable, thinking capacity (speed and content) is reduced and problem solving is deficient. In addition, Mr Kozak's recall of autobiographical events is patchy. Further, formal inventory of recent mood revealed significant levels of emotional distress (i.e., severe anxiety, moderate depression and mild stress). In addition, at a Ward level Mr Kozak is also highly anxious and pre-occupied about his current circumstances (lack of control over his affairs and worried about his physical symptoms and medical status). It is likely the case that his level of distress exacerbated his cognitive difficulties and served to lower his optimal performance.
Mr Kozak demonstrates what appears to be a decline in overall cognitive functioning. These results however, do not meet the criteria for a dementing condition and at this stage there is no clear indication of a neurodegenerative process.
From a cognitive standpoint, it is unclear as to whether Mr Kozak will be able to manage independently at home given his recent history together with family concerns about his safety. Certainly he has the ability to cope with a routine and predictable environment. The influence of anxiety over his physical complaints on day-to-day activities however, may make it less likely for him to use his cognitive skills effectively. Despite the fact that Mr Kozak is showing signs of cognitive inefficiency, he is currently capable of making decisions regarding his living arrangements and currently capable of making decisions concerning his Will and allocation of Power of Attorney. I am aware that the results of a Home-Visit Assessment indicate that Mr Kozak "demonstrated satisfactory elements of daily activities of living that would not restrict his return home".
Finally, Mr Kozak has difficulty understanding (new) complex situations and anything out of the ordinary. Thus, new ideas with which Mr Kozak is unfamiliar should be explained to him at a simple level and repeated if necessary. It may also be useful to ask Mr Kozak to summarise what has been conveyed to him to ensure that he has encoded it correctly. It is recommended that an independent (i.e., unrelated) Polish Interpreter be present if Mr Kozak decides to make any decisions regarding legal matters, financial matters and if he pursues changes to his Will.
19 By the time Dr Wallace had concluded her final report the deceased had, in fact, moved home to be cared for by Berwecki. It is not suggested that Berwecki did not carry out this task in a proper manner and visits by social workers confirmed the place was in good order. 20 There are references in the hospital records to complaints by the deceased as to his brother's actions in refusing to allow him to have visitors he wished to have in the hospital and attempts to control his life.
21 On 24 June 2003 the plaintiff, Peter Kozak, visited the deceased to return his title deeds and papers. There was no real conversation. The plaintiff says that the deceased asked for his money back and told him to tell his father to visit. There is a dispute as to whether Peter made a gesture indicating mental deficiency which I cannot really decide and I do not think is necessary for decision. Wladyslaw and his wife visited the deceased on 14 July 2003, but the deceased refused to talk to them and told them to leave indicating he would see them "up there" meaning heaven. Wladyslaw did not see the deceased after that and the plaintiff did not see him after his visit when he returned the deeds. Dr Lukaszewicz visited the deceased regularly in 2004. On 21 January 2004 she administered a MMSE test and the deceased scored 28 out of 30. The score of 20 out of 30 given in her affidavit was corrected in oral evidence. She was not cross-examined about this change. During this time the deceased had several admissions to hospital but was always discharged home. 22 In paragraphs 25, 26, 31 and 32 of his affidavit sworn 20 July 2006, Berwecki said: 25. After I had moved to Stefan's house, Stefan said to me words to the effect:- Stefan: "Whilst I was in hospital, Wladek and his son and daughter were always asking me about my money and the house. It got so bad that I told my niece to get out of my sight. Wladek and his son and daughter were not interested in my health. All that they were interested in was my house and my money." Stefan further said to me on another occasion after I had moved into his house words to the effect:- Stefan: "Whilst I was at St Joseph's Hospital, there was some kind of Court hearing where the social workers were present. The social worker said it was my decision as to what I want to do with my money and property. They said I've got a right to do what I like with my property and that there was no problem with me making a Will."
23 Berwecki arranged for a solicitor from Messrs Shanahan Tudehope to attend on 2 June 2004. That solicitor wrote a letter on 7 June 2004 confirming instructions: (a) to make a will appointing the defendants executors and beneficiaries; (b) to transfer the "the title (ownership) of your property at 7 Mona Street Auburn to Ireneusz and Barbara Chszanowska, but to keep a life estate in the property". A draft will was enclosed. The letter went on to say that a report from a doctor as to testamentary capacity should be obtained; a statement for the reasons to omit his brother should be written and it would be necessary to obtain a valuation of the property.
24 Berwecki's evidence was that the deceased told him about the requirement for a medical certificate and asked him to get Dr Lukaszewicz to call, which he did. Dr Lukaszewicz gave a certificate stating the deceased had been her patient for 17 years, that he had never suffered mental disorder and was mentally healthy and able to make a will and had no sign of dementia.
25 In affidavit evidence Dr Lukaszewicz said that it was the deceased who rang her and asked her to go to see him because his lawyer had told him that he needed a doctor's report as to his capacity to make a will. She went to see him on 18 June 2004. In paragraph 13 of her affidavit of 1 March 2007 she said: 13. I called to see Stefan at his home on 18 June 2004. I had a lengthy discussion with Stefan and from my observations, he appeared to be his usual self. He was polite, well dressed and alert, had a good memory and demonstrated a clear understanding about the nature and effects of making a Will and provided rational reasons for wanting to make a new Will. He also seemed to be aware of the nature of his assets. He was clear about who he wished to benefit under his Will. He was also clear about not wanting his brother or his brother's family to benefit under his Will. From my observations on 18 June 2004, Stefan conducted himself in his normal way, which was consistent with his conduct over the period that I had known him. In my lengthy discussion with him, he did not exhibit any signs of cognitive impairment and appeared to have no difficulty with his memory. During our discussions, there was a conversation to the following effect:- STEFAN: "I want to change my Will. I want to leave my house to people who can help me by looking after me. I also want to make sure that my brother and his children do not benefit from my Will. I saw a solicitor and he told me that because of my age and what I wanted to do, I needed to have a report from a doctor saying that I was mentally capable of making a Will and that I know what I am doing. The solicitor wants to be satisfied that I know what I'm doing." ME: "Why do you not want your brother and his children to get anything?" STEFAN: "Last year when I was in hospital, I realised that he and his children wanted to put me into a home and take control of my assets. When I was in hospital, he stopped my friends from coming to visit me. This was against my wishes. He has also caused me other difficulties." ME: "Is that sufficient reason for you not to provide for him and his family?" STEFAN: "My brother and his family have not taken much interest in me and have given me little assistance. I want to stay living in this house and to do this I need people to help me. Because of my age and physical condition, I need help. Ireneusz looks after me very well and so long as he is here, I can continue living in the house. I want to provide for him. I also want to provide also for my step-daughter, Barbara, because I have asked her to migrate to Australia and come and live with me. She can help Ireneusz look after me." ME: "Are you sure that this is what you want to do?" STEFAN: "Yes, I have given it a lot of thought and I have been meaning for some months to see a lawyer to change my Will. I know what I want to do."
26 In cross-examination the doctor said that she accepted what the deceased told her as being true but nevertheless reiterated that he was not suffering from dementia.
27 The deceased had told Berwecki in December 2003 that he wanted his step-daughter to come to Australia and that together they could live in the house and both look after him. The deceased said: "I don't want to leave anything to my brother and his family, they have never tried to help me". Berwecki then said that the deceased asked him to take him to Magna Carta Travel Agency to see Mrs Szoda so that he could make arrangements for his step-daugther to come as he needed to send an invitation. They went together to the travel agency on 15 June 2004 where the deceased completed the necessary document in the Polish language and he then wrote out two documents in Polish. Those documents, translated into English, are as follows: (1) Sydney 15/06/04 I, Stefan Kozak born on 29/11/1913 Residing in 7 Mona St Auburn NSW 2144
I revoke my earlier Will, which left my estate and all my possessions to my brother Wladyslaw and his kids, because he did not ensure minimum help and care towards me as we agreed prior to the preparation of the last Will.
When I was sick and hospitalised I pleaded with my brother to take me to his house, but he refused. Instead he took me to St Josef's Hospital and made arrangements to place me in the psychiatric ward. The hospital staff were instructed by my brother not to allow visitors unless prior permission was granted by him.
I stayed at this hospital for two months and as a result by the end of my stay I lost my hearing, the ability to speak and walk unaided.
I was able to leave the hospital on the 22/06/03 after Trek Berwecki agreed to become my carer and agreed to live with me at my house. I informed Centre Link that I appointed Trek as my carer until the day I die. (2) I, Stefan Kozak, born 29/11/1913, residing in 7 Mona St, Auburn NSW 2144. This is My Will My house and all my personal possessions I am leaving for the two persons mentioned below.
30 Mr Pasternacki is proficient in the Polish language and his conversations with the deceased were conducted in Polish. In an affidavit sworn on 18 July 2006 he said that the following conversation took place: Kozak: "I want to transfer my house to my daughter in Poland and to Ireneusz who is here with me and is my friend."
Kozak: "I was in a nursing home and my family in Australia tried to stop other people visiting me in the nursing home. I was not allowed to see anyone else but them. The doctors told me that it was alright to leave the nursing home but my family were against it. My family took the title deeds to my house and took control of the money that I had. They thought that they should have all my money sewed up and I should be locked away."
Ireneusz here got me out of the situation. He was the only one who cared about my wishes.
My daughter in Poland is coming to Australia and she and Ireneusz have agreed to look after me until I die. I have decided to transfer my house to them whilst I am alive.
Pasternacki: "I won't do that for you and I will tell you why. If you insist on giving your property away you will have to find another solicitor. I don't think it is wise or prudent for you to give away the roof over your head whilst you're alive. If you give it away it will be irreversible and a situation may arise later on where you may regret doing this. Promises are cheap and once people have got your house, they may not keep their word. You can end up back in a nursing home. Also you might change your mind about your family here and if you signed over the property to someone else, that is irreversible." Kozak: "I know what I'm doing. I went to a doctor and I have a certificate from the doctor stating that I am competent to do what I am doing. I don't think that I will forgive my family for what they did."
Pasternacki: " Seeing that Ireneusz is in the room and has a stake in it, I think he should leave and I should talk to you alone."
Kozak: "No, Ireneusz is my friend and I trust him. I trust him enough to give him my home now. I want him to stay."
Berwecki: "Stefan, maybe you should listen to what your solicitor is saying."
Pasternacki: "What I am saying is that it is not wise or prudent to give away your property. This property is the roof over your head whilst you are alive. Have you heard of King Lear?"
Kozak: "But I might need someone to look after my affairs if I can't look after them. I want someone to look after me and I don't trust my family anymore."
Pasternacki: "What I am saying is that you can achieve what you want without giving away your home. I can do a Will for you and do a Power of Attorney giving Ireneusz and your daughter the capacity to sign for you and control your assets once you become incapable of doing things yourself. At least that is reversible. If they break your trust and you reconcile with your family in Australia, you can change your mind and make a new Will. While you are still capable of making decisions for yourself, you can revoke your Power of Attorney and you can revoke, amend or make a new Will. It leaves you in control of your affairs whilst you are competent to do so." Kozak: "I suppose you're right and that is a better way to do it." 31 Mr Pasternacki said that after this conversation he had taken instructions from the deceased about executors and beneficiaries and suggested that there should be alternate beneficiaries if both the step-daughter and Berwecki died. The deceased had said that because of his age there was nothing to worry about. The will was not signed on that day but was prepared and then signed on 5 July 2004. Mr Pasternacki said that the deceased had his glasses with him and immediately read through the documents and noticed that Barbara was referred to in the will as daughter rather than step-daughter and said that the mistake would have to be corrected. He gave Mr Pasternacki the correct name and address for this beneficiary. He said that he read the will and the power of attorney to the deceased in Polish. He was not cross-examined.
32 It is important to remember that neither the plaintiff, Peter Kozak, nor his father, saw the deceased for a period of about 12 months before the last will was made. Thus neither of them can give any evidence of capacity at the date the will was made. Nor can they give any evidence of any conversations with the deceased around that time. Their evidence is therefore limited to the conversations which took place between 2002 and 2003 to the time that the deceased returned home from St Joseph's.
33 Mr Joseph Koslowski in an affidavit probably sworn on 5 December 2006, for the defendant, said that he had known the deceased for many years as he assisted the parish priest at Ashfield. He saw him regularly and last spoke to him in July 2004. They always spoke in Polish. He had first been personally introduced to him in 1999 by Berwecki rather than just seeing him at church. He said that after church they went and spoke together at the Polish Club. He said that the deceased conversations were "always interesting and related to matters of everyday life" and that up to his death the deceased was "able to talk intelligently about political and international affairs" and "disclosed a sense of humour". He said that he never saw the deceased appear confused in recognizing people or to speak or behave inappropriately. Paragraph 7 of his affidavit is as follows: 7. In the year prior to his death, Stefan spoke to me on a number of occasions about his brother, Wladyslaw, and he said to me words to the effect:-
Stefan: "I can't forgive my brother for not letting me out of hospital and forbidding my friends from visiting me in hospital. He and his family were only interested in what was in my Will. I'm going to change my Will and I'm leaving everything to Barbara and Ireneusz equally. Barbara is a very good woman and without Ireneusz I couldn't be living at home. I want Barbara to come out and look after me. Maybe she will marry Ireneusz." He was not cross-examined Evidence of Dr Carmel Peisah
34 Dr Peisah was the principal witness for the plaintiff. She is a consultant psychiatrist who has made a particular study of the deceased and has written on his testamentary capacity. She gave two reports and she had considered the affidavit evidence filed in this matter, together with the material which appears in the hospital records. There were a number of matters which she considered to be of particular significance in coming to her opinion as to testamentary capacity. Including the following:
36 In her oral evidence the doctor placed particular emphasis on the change of beneficiaries in the last will comparing this with the history of previous dispositions under earlier wills and in paragraph 4.5 of her first report she said: 4.5. Is it likely that as at 5 July 2004 that any disorder of mind such as delusions and hallucinations which would influence the deceased's awareness of facts or reasoning and decision making ability specifically with regard to the above four capacities Yes, there were multiple, intermittent reports in the nursing and medical entries noting paranoid ideation - involving both family members and others- over an extended period: · patient confused and thinks that nurses are bringing him to gas chamber in WWII (Referral to Dr Gan, 23/4/03) · told RN people trying to kill him (nursing entry 30/4/03) · pleasant but suspicious, especially about medications (nursing entry 2/5/03) · says he has nothing to say to me ? paranoia (medical entry 1/5/03) · very suspicious this morning with medications (nursing entry 8/5/03) · he appeared somewhat paranoid at times (neuropsychological report Dr Wallace, 3 0/6/03) · Alleges some money taken from his home (?) Bank account (?) by family (?) others (Dr Thomas, outpatient progress notes 22/7/03):
She came to the following conclusion: 5. Conclusion
In conclusion, on or around July 2004, Mr Kozak was suffering from a disorder of mind manifesting as cognitive impairment (which probably reached criteria for dementia) complicated by paranoid ideation and frank delusions at times. It is more probable than not that at that time he made his will of July 2004 this disorder of mind influenced his decisions regarding the disposal of his property . By virtue of his disorder of mind, he made an inofficious will, which differed markedly from the will-making pattern established prior to the onset of the disorder. It is likely that he was not fully aware of those who may reasonably be thought to have a claim upon his bounty , and it is unlikely that he could recall and comprehend the basis for, and nature of these claims nor evaluate, and discriminate between, the respective strengths of these claims.
37 In her second report dated 13 July 2007, Dr Peisah commented on the MMSE score of 28 out of 30 achieved in the test by Dr Lukaszewicz on 18 June 2007. She said however that she regarded this as strange because she had read the affidavit of that doctor who said that an MMSE score in January 2004 was 20 out of 30 and did not know that this was corrected in oral evidence. Neither did she know that when she was cross-examined, presumably because counsel for the defendant did not know it either. She remained of the opinion that by July 2004 the deceased had a disorder of the mind based on a vascular dementia. Once again in this report the doctor gave particular attention to the will making pattern stating that she considered that the will of 2004 was "relatively inofficious in its exclusion of several family members for whom he previously felt morally bound to provide". Having considered the evidence in the defendants' affidavits to which I have generally referred, particularly the statements made as to why the deceased was not making provision for his brother or nephews or nieces, the doctor said: This new evidence confirmed Mr Kozak's antipathy towards his brother and his fixed paranoid preoccupation with a perception of his brother's malevolent intent towards him. These beliefs appeared to be based on a concrete and paranoid misinterpretation of his brother's behaviour. It is important to note that the observations by professional staff (noted in my previous report) that his brother's behaviour was over-controlling and probably exacerbated Mr Kozak's paranoid beliefs, do not negate the pathological nature of Mr Kozak's reasoning and beliefs, as evidenced by: · His failure to recall his earlier appointment of his brother to make decisions for him and his anxiety about his affairs prompting his brother's intervention (see Affidavit of Wladyslaw Kozak sworn 17 August 2006, paragraph 10); · His lack of insight regarding his need for hospitalisation and investigation in April 2003 and his paranoid projection onto his brother that he had imprisoned him in a psychiatric hospital or erroneously, a nursing home (see Affidavit of Wladyslaw Kozak sworn 17 August 2006, paragraphs 3, 4, 9); · His perception of the harm resulting from hospitalisation (see Affidavit of Wladyslaw Kozak sworn 17 August 2006, paragraph 4); · His primitive, dichotomous splitting between the "all-bad" group (i.e. his brother and his family who he believed didn't care about him and wanted his house) and the "all-good" group (i.e. his carer and step-daughter) to whom he wished to give his house; · The multiple observations of his misinterpretation and non-specific paranoid ideation related to being kidnapped, robbed, killed, photographed, imprisoned or taken to a gas chamber.
As a result of his memory loss and single-minded, paranoid focus on his "brother and family", he failed to recall the contents of his previous wills and therefore weigh and evaluate other potential beneficiaries such as his sister and her children, who had been consistent beneficiaries in the past. In fact, as stated by Wladyslaw Kozak (Affidavit sworn 17 August 2006, paragraph 4) and contrary to Mr Kozak's statements around July 2004, Wladyslaw had never previously been a beneficiary. Several papers from the recent scientific literature have emphasised the fundamental importance of the will-maker being aware of the contents of the previous will and the differences between the old will and the new will.
38 The doctor considered that the deceased suffered from paranoid ideation which from time to time involved family members.
39 On page 12 she said: In summary, there clearly was some uncertainty in mid 2003 about the extent of his cognitive decline due to the confounding effects of language and low education. He was also probably anxious and/or depressed at times. Not withstanding this, the neuropsychologist concluded there was cognitive decline and noted some memory problems and frontal deficits, and there were references in the notes to memory loss for events as well as some functional decline. Further, his treatment team clearly felt sufficiently convinced about the presence of dementia to prescribe Reminyl. By 2004 he required a lot of assistance from his carer (probably attributable to both physical and cognitive decline) and he suffered significant confusion associated with an admission for a possible stroke or TIA, the cognitive recovery from which is uncertain. In conclusion, on the basis of the evidence presented to me, there was evidence that by July 2004 Mr Kozak was suffering from cognitive impairment, which probably reached criteria for dementia at that stage. Using DSM-IV criteria,' dementia is characterised by the development of cognitive deficits in at least two areas (including memory) associated with functional impairment. On the basis of his history of hypertension, ischaemic heart disease, possible cerebrovascular events such as stroke/TIA, his depression, the pattern of his cognitive deficits and his CT changes suggest either a Vascular or mixed Alzheimer's/Vascular dementia, as suggested by the treatment team. I cannot, on the evidence presented to me, draw any conclusions as to the severity of this dementia in July 2004.
40 Her final conclusion in that report is set out as follows: It is unlikely than Mr Kozak disposed of his assets with "understanding and reason" in July 2004. It is unlikely that he could recall and comprehend the basis for, and nature of these claims nor evaluate, and discriminate between, the respective strengths of these claims.
The latter task, to recall, comprehend and consider or weigh the claims to which one ought to give effect, is perhaps the most complex task for the testator. Accordingly, my assessment of this crucial part of capacity is usually based on the examination of the following pieces of evidence: (i) the history of disposal or the will-making pattern. Previous wills, which may demonstrate an enduring and stable pattern of bequests, reflect views held by the testator prior to any significant deterioration of mental state. Suspicion as to incapacity is aroused when a testator revokes prior wills and executes entirely different dispositions during a period of mental enfeeblement (Bailey v Bailey [1924] 34 CLR 558 at 571).
(ii) the terms of the will (as inference of capacity may be derived from the will itself). Where the will is inofficious, where no provision, or an apparently inadequate or unfair provision, is made for those who ought to be the objects of the testator's bounty then fuller and clearer evidence of capacity is required (Brown v McEnroe (1890) 11 NSWR Eq 134 at 138) (iii) the testator's appraisal of his potential heirs.
41 The plaintiff's case was based upon what his counsel described as the fourth ingredient of Banks v Goodfellow namely that the deceased suffered from what was then called an insane delusion which it seems is the same condition as that which Dr Peisah identified as a paranoid ideation which bore upon the provisions of the will.
42 Dr Peisah placed considerable emphasis on what in the instructions given to her for her first report, was said to be the fourth requirement for a valid will, namely the ability to evaluate and to discriminate between the respective claims of such persons - the said requirement comes from Read v Carmody (NSW Court of Appeal, 23 July 1998, unreported). It is in some sense just an amplification or restatement of the third requirement in Banks v Goodfellow namely that the deceased "shall be able to comprehend and appreciate the claims to which he ought to give effect." Such appreciation must involve, evaluation and discrimination. This is accepted in Banks v Goodfellow at page 564. I consider it clear on the evidence that the deceased was aware of the persons to whose claims he should attend and of their claims. It is only if a delusion influenced his will in disposing of his property, which in the absence of delusion would not have been made, this will would be held invalid. Counsel for the plaintiff put the case on that basis alone in opening, although he may have widened it a little in final submissions to encompass inability to satisfy the so-called evaluation and discrimination requirement.
43 Before discussing the question further, there are two matters referred to by Dr Peisah which she considered significant which I should discuss. The first is the change in beneficiaries. In cross-examination it became clear that it was cognitive impairment combined with changes in will making patterns which was suggestive of incapacity and required careful scrutiny and probing to assess the rationale and to exclude the presence of any frontal lobe impairments in decision making or paranoid ideation (T68). While it would be a reason for concern had the wills been made close together, here the difference in time was a period of about two years. During the year preceding the will the deceased had not seen his brother or nephew. The evidence does not disclose whether he saw Mrs Bator although if he had and her evidence would have assisted the revocation claim, one would have expected to see it. The more important fact is that in the last year circumstances had changed. The deceased wanted to live in his house and it was Berwecki who made that possible; his wish to have his step-daughter there as well may have turned to nothing, but it could not have been said to have been an unreasonable wish or an impossible future event. It had been mentioned at St Joseph's. She had, after all, been to Australia on two previous occasions during one of which she stayed six months and saw a great deal of the deceased. There was a good reason for the change. Dr Peisah acknowledged this in cross-examination. The only way the deceased could stay in his house was if Berwecki or somebody like him was prepared to give the assistance which he did gave. He had good reason to be grateful.
44 The second expression of opinion of Dr Peisah which requires discussion is her view that the will is "inofficious". Such considerations emanating from Roman law need to be treated with considerable care where freedom of testation is the law. Many brothers, sisters, nieces and nephews of a deceased bachelor brother or uncle, who have a close an affectionate relationship with the deceased person may well be disappointed where such a person leaves his whole estate to charity, but that does not bear upon capacity. Of course the closeness of the relationship may give rise to some doubt as to capacity, for instance, if a child in bad circumstances with a close relationship to the deceased is left out. In the present case a more distant relationship, lack of contact and the claims of at least of one of the beneficiaries would be contrary to some conclusion based on inofficiousness.
45 I turn to dementia and delusions. I consider that the evidence does establish that the deceased suffered some cognitive impairment which could be expected at his age. The prescription of the drug Reminyl would indicate some degree of dementia at least up to October 2003, but against this is the evidence of Dr Wallace and Dr Lukaszewicz, who had the considerable advantage of seeing the deceased. If there was dementia it was not at an advanced stage so as to prevent valid will making. Other matters such as statements about police and prison camps would at least indicate confusion, but occurred at a time when the deceased had been recently admitted to hospital and was quite ill. Past experiences could be recalled in such circumstances. It is fair to say that Dr Wallace and the social worker at St Joseph's Hospital, a Mr Burn, were aware of these matters yet it seems neither considered an application to the Guardianship Tribunal was necessary or for that matter would succeed. Mr Burn reported that the deceased's brother and sisters "seemed very controlling really thinking that because of Stefan's literacy he could be tricked eg selling his house." Other statements support the controlling conduct. The deceased was admitted to the Auburn Hospital on a number of occasions after the 2003 admission, but the hospital records contain little relevant to the question here except that in May 2004 he was admitted in an acute confusional state.
(a) that his brother had arranged his transfer from Auburn District Hospital to St Joseph's Hospital into the Psychiatric and Neurological ward: he resented this.
The deceased also thought: (b) his brother and his family were trying to obtain and control his money and that his brother had taken his title deeds. There was some basis for this - apart from the deeds - on the basis of the notes of the social worker of 6 June 2003.
(c) that his brother wanted him to be transferred to aged care rather than to return home. Again there may have been a basis for this as seen from some notes of the social worker.
(d) that his brother or one of his brother's children had taken a substantial sum of money from his home in Auburn. This was denied but the suspicion was not necessarily unfounded on the basis that the money may well have been there and that no one else had the keys.
Finally the deceased was very angry that his brother had prevented persons from seeing him at the hospital, which action may well have led to some of his conclusions as to control and wishing to get hold of his money.
47 The deceased's actions in going to the travel agent to make arrangements for his step-daughter to come to Australia, the testamentary documents which he wrote out in Polish there, the arrangements for Dr Lukaszewicz to come to visit him and in obtaining the valuation of the property which he was told would be required, all indicate somebody well in control of his actions. I do not think that it could be said the dispositions made were necessarily unfair or misguided or wrong and even if they were that would not determine the matter. What would determine the matter would be whether the deceased was under some delusion or false belief out of which he could not be reasoned which bore on the dispositions: Bull v Fulton (1942) 66 CLR 295 at 339. Most of the relevant people who gave evidence of course heard what he said and did not attempt to reason with him. In other words they accepted that what they were told was true. There is no evidence of anybody trying to talk the deceased around to a different view if his view was incorrect. There is no doubt that his view about his brother transferring him from one hospital to another was incorrect and his view about his brother taking his passbook and title deeds, rather than having been requested by the deceased to do so was I consider also a false view. The first of these matters however was something which I think could well be explained by his brother preventing friends having contact with him at St Joseph's Hospital. On considering the whole of the evidence I have come to the conclusion that the deceased had a basis for believing that his brother and his brother's family were trying to control his life; and accepting his uncontested statement of loss of money, he could well have believed those persons responsible for the loss. In the language of the charge to the jury of Sir James Hannen in Boughton v Knight [1873] LR 3 P&D 64, it is understandable that the deceased may have believed what he did believe. As I have said there was a sound reason for the deceased to make the will he did. That was to benefit the persons he did, on one of whom he relied and on the other of whom he hoped to rely. Had the deceased given no reasons other than to explain the people he wanted to benefit and why, then I consider the will would have had to be upheld; and false reasons - which a testator may not believe to be true - are sometimes given to justify dispositions a testator wishes to make. The first of these circumstances bears only on ordinary claimants on bounty; the second does not bear on this decision. I should add that apart from being niece and nephew, Jan Palikot and Barbara Ruta, were not shown to have any claim on the deceased. It follows I do not accept Dr Peisah's opinion which I did not find persuasive in that it tended to concentrate on facts supporting one conclusion and to overlook some which went the other way. It also gave what I consider unfounded weight to changes in beneficiaries without giving attention to the reasons for change and unfounded weight to dispositions she thought inofficious, which in fact were not. In addition while Dr Peisah is no doubt more highly qualified than Dr Wallace in this area, Dr Wallace had the advantage of many meetings with the deceased, which leads me to discount the matters referred to by Dr Peisah in paragraph 4.5 of her first report (set out in paragraph 36) apart from the last which is explicable in any event 48 As Gleeson CJ said in Estate of Griffiths (deceased) Easter v Griffiths (NSW Court of Appeal, 7 June 1995 unreported) ("Easter") the onus of proof is not in doubt but must be treated with caution. I have, however, concluded that here there was antipathy which was not altogether unreasonable "but that there was not a judgment affected by disorder of the mind". In a case such as this there will always be some doubt but here it is not sufficient to preclude a belief that the will is valid: Worth v Clasohm (1952) 86 CLR 439. 49 I would not like it to be thought that my remarks in some previous cases to the effect that evidence of well qualified psychiatrists and geriatricians who have never seen the deceased is of less assistance in capacity cases than the evidence of treating general practitioners and lay people well acquainted with the deceased means that it should never carry the day. It is likely to be of more value in delusion type cases where lay witnesses accept what they are told than in other capacity cases. However, as Kirby P explained in Easter, albeit in dissent, it is for the court, not the medical expert, to determine the ultimate question whether the deceased was under a delusion which prevented him being able to evaluate the claims upon his estate. I conclude he was not. Conclusion 50 The claim for revocation fails. The statement of claim should be dismissed. Costs 54 The deceased was not the cause of this litigation. The plaintiff is not entitled to costs from the estate. The question remains whether the circumstances justified an investigation concerning the will. After some hesitation I conclude that they did. It follows that the plaintiff should bear his own costs and the costs of the defendants should come out of the estate. There is probably no need for the last order as the defendants are entitled to the whole estate but it is, I think, usual to make it. Orders
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Kozak
Berwecki
(1942) 66 CLR 295
(1952) 86 CLR 439