Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail

Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail - [2018] NSWSC 1452 - NSWSC 2017 case summary — Zoe

[7]

Judgment

Two teenage girls, Nadia Mekhail ("Nadia") and Mary Candotti ("Mary"), met in Suez City, Egypt in about 1950 and became close friends. In the 1960s they each migrated to Australia separately along with their families. Nadia had no children of her own but became the godmother of one of Mary's grandchildren. They chose to live near one another in the Sydney suburb of South Strathfield.
Nadia was diagnosed with terminal cancer in 2014. She died on 2 April 2015. In the last two months of Nadia's life, Mary was prevented from visiting Nadia. Mary did not know where Nadia was and was falsely informed that Nadia did not want to see her. As a result, Mary could not comfort Nadia in her final weeks of life. Mary was not told that Nadia had died. She missed Nadia's funeral. Mary's anguish at these events was still evident when she gave testimony in May 2017.
One event explains Nadia's isolation from Mary. On 12 December 2014, Nadia made a form of will giving the whole of her estate to a family friend, the defendant, Georgette Hana ("Georgette"), and appointing her executor. Thereafter, from early February 2015 Georgette and her son Bishoy sequestered Nadia from Mary and other family members. Neither Mary nor Nadia's other family members had any further contact with Nadia throughout February and March 2015, or at any time before her death in early April.
Two of Nadia's nephews, who live in Australia, the plaintiffs in related proceedings, now challenge Nadia's December 2014 will. They claim Nadia lacked testamentary capacity, was suffering from delusions and that Georgette exercised undue influence over Nadia when the December 2014 will was made. Instead, they propound a 2001 will that Nadia made in favour of Nadia's five nephews, including both of them. Georgette cross-claims for probate of the December 2014 will.
Georgette keeping Nadia incommunicado for this period is one controversial integer in the Court's wider analysis whether or not Nadia had testamentary capacity at the time of the December 2014 will and whether that will was a valid testamentary act.
The parties and witnesses who were family members of parties, often referred to another by their first names during the hearing of the proceedings. The Court has generally taken the same course for convenience in these reasons, but does so without intending disrespect to any party.

[8]

Overview of the Proceedings

Nadia was born in November 1935 in Egypt and was 79 at the time of her death. In 1951, at the age of 16, she married Raghib Wardakahn Mekhail ("Raghib"), a man 18 years her senior.
Raghib worked as an industrial chemist in the Suez region of Egypt. He was dislocated from his place of employment during the 1967 Arab-Israeli war. Raghib and Nadia migrated to Australia in about 1969 or 1970. They did not have children. But they developed many friends here. One of their friends had a daughter, Georgette, who became close to them. In these proceedings, Georgette claims that Nadia even recognised her as Nadia's de facto daughter.
Raghib left several siblings and five nephews behind in Egypt. Two of those nephews, Youssef Mekail ("Youssef") and Magdy Mekhail ("Magdy") migrated to Australia, with their respective wives and children, in 2008 and 2012. They each lived with Raghib and Nadia with their families for brief periods after their arrival. Youssef is married to Nermeen Poles. They have one child. Magdy and his wife Gihan also have one child. Their reasons for moving out of Raghib's and Nadia's home were in controversy in the proceedings.
Nadia and Raghib made mutual wills in 2001. In these matching 2001 wills, they each made gifts to the Coptic Orthodox Church and gave the residue of their estates to the other; but should the other not survive, their wills provided that Raghib's five nephews would take the estate in equal shares. In 2001, all five nephews were then still residing in Egypt. But two years after Raghib's death in 2012, Nadia made a new will on 12 December 2014, which changed this structure and gave the whole of her estate to Georgette, with a gift over to Georgette's husband, Adel. The five nephews were entirely excluded.
Georgette seeks probate of Nadia's December 2014 will. In separate proceedings, Magdy and Youssef contest Nadia's testamentary capacity at the time of the December 2014 will. Magdy does so by proceedings numbered 2015/186751 ("Magdy's proceedings"). Youssef also brings proceedings numbered 2015/310332 ("Youssef's proceedings").
Magdy and Youssef allege that suspicion attaches to the December 2014 will. It was drafted in a solicitors' office and its two witnesses were both solicitors. But despite this, they allege that, in substance, Georgette's son Bishoy, not Nadia, gave all the instructions for drafting this will. They allege that the solicitor retained to draft the will, Mr Thomas Liondos, was misled by Georgette and Bishoy into thinking Georgette was Nadia's biological daughter and they allege that he otherwise failed to adhere to proper professional standards to verify that Nadia had testamentary capacity. They further allege that Mr Liondos was unaware that Nadia was suffering from operative delusions about Georgette being her daughter and that Nadia was suffering under undue influence from Georgette at the time of its execution. Georgette contests all these allegations.
There is a second group of issues. In addition to the will, Nadia executed an enduring power of attorney on 12 December 2014. Mr Liondos also witnessed this enduring power of attorney. Despite the fact the enduring power of attorney did not authorise the making of gifts, in March 2015, just before Nadia's death, Georgette purported to use it to transfer to herself for nominal consideration (of $1.00) Nadia's principal asset, her house in South Strathfield ("the March 2015 Transfer").
Georgette claims that Nadia gave her the house. And Georgette says that she was entitled to use the power of attorney to effect the gift to herself through the March 2015 Transfer before Nadia's death. Magdy and Youssef challenge this transaction as improvident and unconscionable, contending that at the time of the transfer, Georgette was holding Nadia incommunicado, preventing her friends and relatives from seeing her and denying her access to independent legal or other advice.
If Magdy and Youssef are successful in their challenge to the December 2014 will, and the Court upholds Nadia's 2001 will, the principal asset in Nadia's estate is now registered in Georgette's name. In those circumstances, both plaintiffs seek, on behalf of Nadia's estate, to set the March 2015 Transfer aside and restore the South Strathfield property to Nadia's estate.
To protect the estate pending the outcome of these proceedings, on 26 July 2017 the Court granted an interim injunction restraining Georgette from further dealing as registered proprietor with the South Strathfield property. That injunction was necessary because there was evidence Georgette was attempting to sell the South Strathfield property before the Court gave judgment.
In yet a third group of issues, Magdy and Youssef each claim relief, in the alternative, seeking orders for family provision out of Nadia's estate under Succession Act 2006. If they are unsuccessful in their challenge to the December 2014 will, they claim they are nevertheless eligible persons who can make a claim for provision out of Nadia's estate under Succession Act 2006 on the basis of their residence with Nadia after their respective migrations from Egypt to Australia. As the South Strathfield property has been transferred to Georgette, they claim that it should be treated as notional estate on those family provision claims and is available for the making of a family provision order should they be entitled to one.
The proceedings were heard over a number of days on 11, 20, 27 April; 10, 15-19, 22-26 May; 16 June; 26 July; and 4-5 September 2017. In Madgy's proceedings, Mr J. Thomson and Ms M. Hall, instructed by Australy Milo of P.K. Simpson & Co, appeared for Magdy. Youssef appeared in person in his proceedings. In both proceedings, Mr D. Allen, instructed by Richard Mitry of Mitry Lawyers, appeared for the defendant until 8 August 2017. Mr Dante Aspite of Anderson Lawyers filed a notice of appearance for the defendant on 2 October 2018.
This is my third judgment in these proceedings. Events, matters and persons are referred to in this judgment in the same way that they are in my previous two judgments. The first judgment, Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail [2017] NSWSC 575, concerned a procedural aspect of Youssef's proceedings: the Court made orders for the hearing to be conducted using Court Reporters rather than Court Recorders. Youssef, who was self-represented throughout the whole hearing, was very difficult to understand due to his heavily accented English.
The second judgment, Mekhail v Hana; Mekail v Hana; In the Estate of Nadia Mekhail (No 2) [2017] NSWSC 1175, concerned an application brought by Georgette to vary the interim injunction granted against her on 26 July 2017, that restrained her from dealing with the Strathfield South Property before the delivery of judgment following the main hearing. The Court declined her application. The injunction remains in place. This third judgment is the Court's principal judgment following the main hearing.

[9]

Credibility of the Parties

This section of these reasons deals with the Court's assessment of the credibility of the major witnesses in the proceedings. The credibility of other witnesses is dealt with as findings are made and the evidence of those witnesses is dealt with in the narrative of facts. The case involved serious allegations by the parties against one another. The Court was mindful of the requirements of Evidence Act 1995, s 140 in determining whether those allegations were made out.
Magdy Mekhail. Magdy gave evidence in Arabic, with the assistance of an interpreter. He was a generally credible witness who was genuinely trying to tell the truth. Cross-examination did not substantially damage his credibility, although there are places in which the Court does not accept his evidence or prefers other evidence as more reliable. But he has his own strong views of his past dealings with Georgette and Bishoy. These views were tinged with antipathy to Georgette and Bishoy because of the way they had treated him.
Youssef Mekail. Youssef has a strong accent as his first language is Arabic, not English. His English is reasonably good but his inflections and the speed at which he speaks at times made him extremely difficult to understand.
Youssef Mekail spells his surname differently from Magdy Mekhail. The spelling of Youssef's surname is missing an "H" after the "K". He explained in evidence this is because the aspiration sound after the "K" in Arabic can be spelt by different people in English in different ways.
On the whole, Youssef was a reliable witness. He professed not to be a greedy person when such motives were attributed to him in cross-examination. I accept that his own self-characterisation is correct. He said "that is not my behaviour" in answer to many questions about his alleged greed to inherit Nadia's house. But that was Georgette's perspective on him.
Youssef painted a vivid picture of being harassed by Bishoy and of Bishoy and Georgette applying pressure to Nadia. The Court mostly accepts his evidence on these matters, although not all the details are correct. He had a tendency to overlook defects in his own care for Nadia, after he came out from Egypt to stay with her.
There was one feature of Youssef's evidence which was disconcerting. With some witnesses it might be regarded as a badge of untruthfulness. But in his case, I do not think that it is. When asked a direct question, it was very difficult for Youssef to simply answer "yes" or "no". He has a storytelling style of answering questions, in which in order to answer even a simple question, he liked to give background to why the question even arose. The Court needed to cut him off on many occasions to bring him to the point. But when brought to the issue he was generally prepared to answer the questions "yes" or "no", and was reasonably clear in his answers, which were consistent with his affidavit evidence. I regard his storytelling style of responding as not designed to avoiding answering questions but as showing a propensity to see facts only in their historical context.
Youssef gave an account of Bishoy and Georgette as creators of conflict, particularly with him. The impression he gave was that they were highly territorial about Nadia and her house and that anyone who got close to occupying the house or occupying Nadia's affections was treated with strong hostility, both directly and by applying pressure to Nadia to remove them from her life. The Court mostly accepts Youssef's evidence about this, in part because it coincides with Mary Candotti's evidence.
Georgette Hana. Georgette was generally an unreliable witness and at times was prepared to invent evidence to improve her case. She often was unable to give consistent contextual detail about important disputed conversations, context one would have expected her to be able to give if she had an actual recollection of the matters of which she was giving evidence. She had a tendency to give answers that jumped between the matter in hand and other conversations. So it was hard to follow the response she was giving to a question about a particular conversation. The Court often had to bring her back to the question that she was being asked about a particular conversation, so that she did not stray into several others. This, in my view, was an attempt on her part to distract attention from her lack of contextual knowledge about particular conversations. She also had a propensity to generalise in her answers rather than be specific. In certain critical areas, she was unable to give satisfactory explanations for her own conduct consistent with the course of events that she was propounding. This lack of capacity to explain her own motivation and actions came at critical times in the narrative.
Another feature of Georgette's evidence was lengthy pauses in some of her answers. This was evident, for example, in relation to the questions asked of her regarding the funeral booklet prepared for Nadia. She was asked who drafted or approved it. It took her approximately a minute to give an answer to the effect that it was copied from Raghib's funeral booklet. This was also typical of another common response from her: denying responsibility or involvement in certain matters in which she thought that admitting involvement may be to her disadvantage. An example of this was the giving of initial instructions for Nadia's December 2014 will. There is certainly evidence that Bishoy was principally involved in this. But somewhat surprisingly, Georgette says that she knew almost nothing of what was going on. She was the principal beneficiary and, in my view, her relationship with Bishoy was such that I infer she was well aware of what Bishoy was communicating to Mr Liondos on her behalf.
Georgette was invited in evidence to call the deceased using whatever name she felt comfortable to use. She was initially being formal and was calling her "Mrs Nadia Mekhail, the deceased" in evidence. When she was invited to call Nadia what she wished, she called her, "Mama Nadia". But later in her evidence, she largely abandoned this and went back to calling the deceased by the formal title, "Mrs Mekhail". She seemed more comfortable with this.
Bishoy Hana. Bishoy was a guarded and perplexing witness. He gave short, closely considered answers which contained the minimum of detail necessary to answer the question asked. Whilst, in one sense, this added to the efficiency of his evidence and made him seem to be a direct witness, it masked another problem with his evidence. When he was pressed for detail about conversations, he was often not able to say anything more than what was in his affidavit, and like his mother, was often unable to explain or reason through the sequence of events he was describing or his motivation for acting the way he did. When he was pressed about the consistency of his evidence, he became extremely guarded. Examples of the difficulties of his evidence appear in the narrative below.
Georgette and Bishoy's approach to giving evidence is to be contrasted with that of Gihan, Nareen, Magdy and Youssef who were generally more expressive. They spoke quickly and added detail to their evidence. The contrast between the two sides was clear. One side was ready to keep giving factual detail. The other side provided guarded information on a "need-to-know" basis.
Mary Candotti. Mary was Nadia's oldest friend in Australia. She had obvious, genuine and strong empathy for Nadia. She felt great regret in not being able to farewell Nadia at her funeral. She spoke firmly and accurately from her recollection. She was a reliable witness on almost all details.
Renato Candotti. Mr Candotti was under stress because of his wife's treatment for cancer. He was a clearly helpful and good-hearted person like his wife. Mr Candotti reacted with antipathy to Georgette and Bishoy. But his reactions were based on genuine experiences of them which he accurately recalls and explains.
Thomas Liondos. Mr Liondos was a difficult witness to assess. He had a reasonable recollection of relevant events, especially those at the will-making conference with Nadia on 12 December 2014. Some important parts of that recollection were quite firm. Some of his account from memory was compelling. But the Court does not regard him as a reliable witness in all respects, for several reasons. He re-wrote his notes of the conference of 12 December 2014 and disposed of the original notes for no clearly explicable reason. He could not remember some important conversations without reference to his notes. His final notes of 12 December 2014 could not be compared with the notes he disposed of. He had a poor capacity to remember some of the significant events and meetings the subject of the proceeding without notes. But he was entirely honest and tried to be as helpful as he could in giving his account.

[13]

Raghib and Nadia Engage a Migration Agent - 2007 to 2015

To help bring Youssef and then Magdy into the country, Raghib and Nadia engaged a migration agent, Mr Raefat Soryal. They first engaged Mr Soryal in 2007 for Youssef's proposed migration on a carer's visa. Mr Soryal did all the paperwork to facilitate this and for Magdy's subsequent visa application and for another application in 2013.
Mr Raefat Soryal was a reliable witness. His contact with Raghib, Nadia and Georgette was limited to his professional engagements. He came across to the Court as having a sound, professional and thorough approach to his work as a migration agent. He was interested in his clients and had well-formed observations about them. Despite its professional limits, he formed a "warm" relationship with Raghib, Nadia and Georgette and dealt with Nadia on a relatively informal basis. He had little or nothing to do with Georgette's husband, Adel, or with Bishoy.
The Court scrutinised Mr Soryal's evidence closely for the possibility of bias because of his friendship with Georgette, but he did not show a tendency to favour Georgette's side of the case.
Mr Soryal spoke of Georgette and Nadia having a mother-daughter relationship. Mr Soryal was aware that Nadia did not have children of her own. But he did notice that Nadia was very close to Georgette. In fact, Nadia first introduced him to Georgette saying, "This is my Georgette, I raised her since young, she is the daughter I never have." To Mr Soryal's observations, Georgette played an important role in organising documents and posting letters for Nadia.
Mr Soryal's oral evidence reaffirmed that Nadia described Georgette as being "like a daughter", rather than as "a daughter". Mr Soryal inferred in the later years that Nadia and Georgette had something like a biological mother-daughter relationship, in part because he saw that there were "no secrets" between them and also because he understood that Nadia allowed Georgette to shower her as she became more infirm. I also accept Mr Soryal's evidence that Nadia mentioned to him "a few times that she loved Georgette very, very much as if it's (sic) her daughter and she considers Georgette's husband as her son-in-law". Mr Soryal remembered these statements in part because, as he said himself, "It doesn't happen very often" that his clients say things like this to him.
Mr Soryal also observed Nadia place a great deal of trust in Georgette. To help prepare the immigration applications that Nadia wished to advance, Georgette was the one who obtained letters of support from members of Parliament and would often telephone Mr Soryal from Nadia's home to follow up on progress with particular applications.
Mr Soryal's evidence also showed that Nadia had signed a number of immigration forms to advance immigration applications that she was promoting. One that she signed on 7 May 2013 for a further application after Magdy's migration shows that her signature was quite poorly constructed and infirm, not unlike the infirmities that appeared in her signature on the December 2014 will. But Mr Soryal's evidence, which the Court generally accepts, shows that despite the poor quality of Nadia's signatures, she was readily able to give him clear instructions which did not cause him to doubt her rationality. Mr Soryal's evidence suggests that the Court should not doubt Nadia's testamentary capacity merely from the form of her signature on the December 2014 will.
Mr Soryal's evidence is important in showing that Nadia had called Georgette her "daughter" for many years before 2014. The Court's acceptance of his evidence rebuts the plaintiffs' case that this was only a more recent habit of Nadia's under Georgette's influence.
Other parts of Mr Soryal's evidence in early 2015 are important in gaining a picture of Nadia's mental state and competence shortly after making the December 2014 will. Those observations of Mr Soryal are dealt with later in these reasons.

[14]

Nadia and Raghib Make their 2001 Wills

Nadia and Raghib executed mutual wills on 27 March 2001. Georgette does not dispute the validity of Nadia's 2001 will. If Magdy and Youssef's challenge to the December 2014 will were to succeed, the parties do not contest that Nadia's 2001 will should be admitted to probate.
The plaintiffs do not contend in these proceedings that Nadia and Raghib agreed that each would not revoke his or her will after the other died.
Nadia's 2001 will made gifts towards several Coptic Orthodox churches in Sydney. The text of her 2001 will follows: "WILL_________________________________________________________ MADE BY: NADIA MEKHAIL 17 BARTON STREET SOUTH STRATHFIELD 2136 PENSIONER DATED: 27th MARCH 2001 GIFTS 1.00 I give the following to ST MARK COPTIC CATHOLIC CHURCH, 533 Reservoir Road Prospect, if it still exists when I die. - ten thousand dollars ($10 000) - my Picture of the Sacred Heart of Jesus - my Ceramic Vase with a Picture of Two Fish on it - my Small Holy Statue of St Mary. 2.00 I give ten thousand dollars ($10 000) to ST MARY AND ST MINA COPTIC ORTHODOX CHURCH, 339 Forest Road Bexley, if it still exits when I die. 3.00 These Churches may use these gifts as they see fit in carrying on their charitable activities. I direct the Public Trustee to pay them to the persons authorised to receive money on their behalf. The responsibility to see that these gifts are properly applied will then belong to these Churches and not to the Public Trustee. RESIDUE 4.00 I direct the rest of my estate be used first to pay my estate liabilities. This includes: - my funeral - all debts I owe when I die - all expenses my Trustee incurs in administering my estate - all charges my Trustees makes for doing the work. 5.00 After payment of my estate liabilities, I give the remainder of my property to by husband RAGHIB WARDAKHAN MEKHAIL if he survives me. 5.01 If the gift to my husband Raghib does not take effect, I give the remainder of my property after payment of my estate liabilities to those of the following people who survive me: - my nephew SAMIR SALEH WARDAKHAN MEKHAIL - my nephew MAGDY SALEH WARDAKHAN MEKHAIL - my nephew YOUSIF SHOUKRY WARDAKHAN MEKHAIL - my nephew NADIR GERGE WARDAKHAN MEKHAIL - my nephew SAMIH GEORGE WARDAKHAN MEKHAIL EXECUTOR AND TRUSTEE 6.00 I appoint the Public Trustee of New South Wales the executor and trustee of this Will. THIS IS MY ONLY WILL 7.00 This Will sets out completely how I want to leave my property after my death. I cancel any earlier Wills and Codicils."
A curious feature of the will Nadia made on 12 December 2014 is that it not only omitted Raghib's nephews entirely but it also omitted any reference to the Coptic Orthodox Church in Australia, to which she remained devoted.

[15]

Raghib's Health Declines and Youssef Migrates to Australia - 2007 to 2010

Raghib's health started to decline from 2007. As he deteriorated, Nadia thought Raghib required a supportive family member to keep him company. Youssef, one of Raghib's nephews living in Egypt, was first offered this role. This task required Youssef and his wife, Nermeen Poles, to leave their respective jobs and their house in Egypt to come and live in Australia.
Youssef had tertiary education qualifications, including a Bachelor's degree in engineering and an Advanced Diploma in engineering from Suez University, Egypt. In February - March 2008, Youssef and Nermeen arrived in Australia from Egypt. They commenced living with Nadia and Raghib in the two-storey house in South Strathfield. They stayed with Nadia and Raghib for approximately five to six months. But by July - August of that year, they had moved out of the South Strathfield house and had relocated to Melbourne.
The parties' accounts differ markedly as to why Youssef and Nermeen moved out of Nadia and Raghib's home to go and live in Melbourne. Youssef's account was that Bishoy harassed him forcing them to move out. He says that when he and Nermeen moved out, they decided to go to Melbourne, rather than stay in Sydney, because he believed he had better employment prospects there. Youssef said that their reasons for moving out were connected with their disagreements with Georgette and Bishoy and that Nadia well understood this. I accept Youssef's evidence that "the advice from Nadia [was that] I go away from Sydney because maybe I get hurt from Georgette or Bishoy".
Georgette and Bishoy strongly contest this version of events. They say both Raghib and Nadia were unimpressed with the quality of the assistance Youssef gave them at home and wanted Youssef and Nermeen to leave.
Other evidence I accept supports the conclusion that Nadia and Raghib were not wholly satisfied with Youssef's and Nermeen's commitment to Raghib's care. Mr Taylor, for example, gave evidence that, after Raghib died, Nadia said she was disappointed that Youssef and his wife seemed more interested in their new lives in Australia rather than in looking after their family. Although the Court does not accept Mr Taylor's later evidence that Nadia told him she was giving the house to Georgette not Magdy and Youssef.
It is not in dispute that Youssef ceased contact with Nadia for a period from the time of his move to Melbourne in March 2008 until about June 2009. But they re-established contact after Nadia had been diagnosed with cancer.
By 2010, Raghib's health was declining. He had progressive memory loss that had led to advanced dementia, and by then had acquired a shuffling gait and was often disorientated as to time and place. But Nadia did not want Raghib to go into a nursing home. In June 2010, Dr James Burrell, Raghib's neurologist, noted Nadia's determination to care for Raghib, "at home by herself", and that she had not accepted in-home supports for his care.

[16]

Magdy Migrates to Australia Followed by Raghib's Death - 2012

Despite the 2008 conflict over Youssef and Nermeen, Nadia in 2012 requested that Magdy, his wife Gihan, and their immediate family come to Australia. They arrived in February 2012 and moved in with Raghib and Nadia. But in circumstances that are controversial, within a month, they too moved out of the house. In my view, conflict with Georgette and Bishoy was one of the reasons they left.
Raghib's health continued to decline. In August 2012, Nadia consulted Mr Liondos of Shad Partners about their financial affairs. On 31 August 2012, Nadia was appointed Raghib's attorney under an enduring power of attorney prepared by Shad Partners. This instrument was witnessed by Mr Liondos, who later came to prepare Nadia's December 2014 will. But he did not actually himself prepare the August 2012 power of attorney.
Mr Patrick Sattout of Sattouts, a suburban practice in Liverpool Road, Starthfield South, also recalls that he met once with Nadia Mekhail in October or November 2012. His record of those instructions is contained in a file note which he describes as "a very short attempt at taking instructions" about preparing a will. But Mr Sattout says that the instructions that Nadia was providing to him were confusing, so he undertook a title search of the South Strathfield property and discovered that the title was in the joint names of Nadia and her husband. The confusion on his part arose because she was instructing Mr Sattout on the basis that she owned the property outright, when in fact she did not. He apparently raised the inconsistency with her and that prompted her to go away and think about her instructions.
Nadia did not allow Raghib to go into a nursing home. She looked after him herself at the South Strathfield house. Nadia's neighbour, Mr Taylor, accurately observed Nadia's determination to look after Raghib at home. I accept Nadia said words to him to the effect, "he is my baby, I must look after him, it is my duty". Nadia never wavered in her commitment to do everything she could for Raghib in his last days.
Raghib died on 23 December 2012. A period of 40 days of official mourning followed his death. Nadia's own period of unofficial mourning lasted substantially longer.

[17]

Bishoy and Georgette Borrow from Nadia - 2013 and 2014

The Court had little direct evidence of Bishoy and Georgette's financial dealings with Nadia in the period after Raghib's death during 2013 and 2014. But there is some indirect evidence of such matters from one highly reliable source - Mary Candotti. Her evidence corroborates other evidence from Magdy and Youssef on the same subject. Her evidence also contains disturbing indications that Georgette was placing financial pressure on Nadia to lend her money. The absence of any evidence concerning actual financial transactions between Georgette and Nadia makes the Court cautious about drawing inferences in this area. But the Court accepts what Mary Candotti says about what Nadia said to her on this subject in early 2014: "Bishoy and Georgette ask me so many times for money, I give it to them, but they don't give it back for me. I want favour, can you please say that you lend me the money, because Georgette has to pay some taxes, can I say you lend me the money so that she pays back, because it is your money, I told Georgette I haven't got any more money."
The Court infers from this conversation: that Georgette had been asking Nadia for money and had not been repaying it; and that Nadia judged herself to be defenceless against these requests and that she wanted be able to cite her obligation to repay Mary Candotti to strengthen her case to have her money back from Georgette.
The Court's acceptance of this conversation has importance at several levels. It does not just provide a basis to infer that Georgette was borrowing money from Nadia. It also shows that Nadia was vulnerable to Georgette's requests for money and that Nadia perceived she needed to and could use Mary as a counter-weight to the financial pressure Georgette was placing on her. Mary never in fact lent money to Nadia.
The 2014 financial pressure came from both Bishoy and Georgette. I accept Mary's evidence that, in early 2014, Nadia said to her, "I pay the fees for Bishoy to go for college to be a builder, I don't know." This does not depend on whether Bishoy actually did, or did not, go to college to be a builder. I infer that Bishoy or Georgette used this as a pretext to borrow money. And again, Nadia would often comment to Mary Candotti about Bishoy's presence about the home saying, "You see he here because he want money from me." I accept that Nadia said this to Mary in about 2013 and 2014.
But this conduct must also be seen in its proper context. Throughout these reasons, the Court accepts the evidence of a number of reliable witnesses that Nadia did present Georgette as a "daughter" to various third parties. It can be inferred from this evidence of public recognition of Georgette as a "daughter", that Nadia was quite happy to have other people believe that her relationship with Georgette was very close and of a quasi-maternal nature; otherwise she is unlikely to have described Georgette in such terms to a number of these third parties.
Close or family relationships often generate informal financial arrangements. Sometimes these arrangements are accompanied by a degree of financial pressure but usually, they are underpinned by the assumed financial reliability of the borrower who claims to be so close to the lender and that the borrower will always look after the lender's interests. It would be too simplistic to draw an inference from the Court's findings on this subject that Georgette and Bishoy were exploiting Nadia after Raghib's death.
This evidence actually assists Georgette's case. Nadia perceived that Georgette was sufficiently close to her that she allowed Georgia to borrow money from her in this way. There is no evidence of this kind of deep financial interaction between Nadia and either Magdy or Youssef. What Magdy and Youssef's case presents as potential financial exploitation, in my view, is some comparative evidence in Georgette's favour of her closeness to Nadia.

[19]

Dr Toohey Treats Nadia - 28 November to 5 December 2014

Dr Toohey first encountered Nadia on Friday, 28 November 2014, when she was admitted to the Chris O'Brien Lifehouse ("Lifehouse"), a division of Royal Prince Alfred Hospital ("RPA") in Camperdown. Dr Anabelle Goodwin, who practised from Concord, had been Nadia's treating radiation oncologist for some time, on referral from Dr Guirgis. But Nadia's symptoms had worsened by about 18 November. In discussion, Dr Guirgis and Dr Goodwin had suggested that Nadia present at Concord Hospital Emergency department. She did so on 21 November. Closer investigations of Nadia's immediate condition then commenced.
Dr Toohey did not normally see patients over the weekend. Her first consultation with Nadia was on Friday, 28 November 2014. She would not have seen Nadia on Saturday and Sunday, but saw her each day of the following week through to her discharge on Friday, 5 December 2014.
Dr Toohey had been called in to treat Nadia at short notice, when Dr Goodwin was unavailable. She said, that "sadly and devastatingly" the investigations had led to Nadia having a scan, which revealed that she had symptoms of spinal cord compression in her upper cervical spine spreading down to her thoracic spine, indicating associated leptomeningeal disease. Dr Toohey outlined that leptomeningeal disease is the penetration of cancer cells into the lining of the spinal cord. It is extremely difficult to treat, either by chemotherapy or by radiation, and its prognosis is poor; usually only a matter of months.
Dr Toohey remembered Nadia "very well", even though she was one of many patients. She explained this is because leptomeningeal disease is "actually very rare, so you remember your cases". But Dr Toohey also remembered Nadia for another reason. She described Nadia's personality as "quite stubborn, but she appeared to be sort of like a matriarch of her family" and Nadia "certainly…had a lot of family members around her, looking after her".
On Nadia's admission on the afternoon of 28 November, Dr Toohey had a "long and involved" conversation for about an hour with Nadia and other family members. Magdy, Gihan and Bishoy were present. Speaking in English and using diagrams to explain her message, Dr Toohey communicated the confronting news to Nadia that the course of this disease meant that she would probably become a paraplegic or quadriplegic and lose bodily functions, and that she only had months to live.
Dr Toohey directed her words to Nadia. Although English was Nadia's second language, Dr Toohey had no trouble communicating with her. I accept Mr Liondos' evidence (discussed later) to the same effect. Dr Toohey's consultation practice is to inquire with whom her patient lives and to try and pick up who is present with the patient at the consultation. Dr Toohey was clear that Bishoy, who she says Nadia referred to as her "grandson", was present and that Georgette was not present at this first meeting. This accords with other evidence about this consultation. Nadia, not Bishoy, was the main person with whom Dr Toohey spoke. Dr Toohey said that Bishoy and Nadia appeared to have "a good relationship" and that he later supported her, bringing her in for subsequent appointments. Dr Toohey had several conversations with Georgette afterwards.
But in identifying the people present on this first occasion, Dr Toohey erroneously thought that Nadia said to her that Nadia lived with "her husband". That could not, of course, be correct in 2014. But this was not a matter on which Dr Toohey was particularly concentrating, and she thought that in some cultural environments, it can be difficult to get all the relationships correct. But that minor error apart, Dr Toohey's evidence was striking for her sharp memory of Nadia. The Court accepts Dr Toohey's evidence as a highly reliable description of Nadia's contemporaneous cognition and memory.
Dr Toohey was given a history that Nadia had presented within the previous week to the Emergency Department at Concord Hospital. By the time Dr Toohey saw her, Nadia had identifiable weakness of her right leg, more than her left lower leg, and was in a wheelchair. Dr Toohey explains she was "pretty adamant" that Nadia should stay in hospital because spinal cord compression is regarded as a medical emergency.
Part of Dr Toohey's craft is to assess the ability of a patient, like Nadia, to listen and comprehend what he or she is being told. Dr Toohey formed the judgment that Nadia "was understanding everything" and "she certainly understood the gravity of the situation and the fact that her prognosis was limited".
Dr Toohey's account was that her first consultation with Nadia on 28 November involved a detailed discussion with her about her consent to future treatment. Dr Toohey raised with Nadia the possibility of localised radiation treatment. Nadia was resistant to this but finally consented to the treatment on Monday, 1 December. Nadia said she was concerned about possible "memory impairment" from such treatment. There are references to Nadia's concern about memory loss in medical notes made in RPA on 1 December 2014. Dr Toohey was convinced that this was merely a pre-emptive concern on Nadia's part about what memory loss might happen if Nadia had radiation. This, in itself, is some indication that Nadia regarded preservation of her memory and cognitive functioning as most important to her. Over the course of the weekdays from 1 December until her discharge on 5 December 2014, Nadia underwent the radiation therapy. Dr Toohey believes, and the Court accepts, that she saw Nadia each day of the five further days that she was in hospital.
Dr Toohey had no doubt about Nadia's capacity to give informed consent to her own radiation treatment. Dr Toohey noted that Nadia was resistant to taking strong drugs like opioids because they made her dizzy and sleepy. Dr Toohey agreed with the hospital notes about Nadia that, throughout her stay in hospital, Nadia was "alert and orientated at all times".
The nursing notes of 1 December 2014 bear closer examination. They make clear that when Nadia was seen by Dr Toohey at 9.15am on Monday, 1 December, she consented to radiation therapy but that she wished to go home. It can be inferred from the notes that Dr Toohey was concerned about whether Nadia would be supported at home. The notes record that Dr Toohey "will talk to daughter".
Georgette was not present for this 1 December morning discussion. Dr Toohey telephoned her shortly afterwards. Although Georgette was not present either on 28 November or 1 December, Dr Toohey had been told that Georgette was her daughter. This was not something that Georgette imposed directly upon the communications between Nadia and Dr Toohey. The strong inference from the nursing notes and from Dr Toohey's evidence is that Nadia had told Dr Toohey that Georgette was her daughter. Alternatively, Bishoy may have said this and then Nadia acquiesced in and continued to acquiesce in the description.
The medical notes proceed to show that Dr Toohey and Georgette had a discussion commencing at 0938. The notes provide as follows [emphasis original]: "JO TOOHEY Long discussion with daughter Georgette on telephone - outlined her mum has now consented for XRT BUT family are adamant that they wish to take her home against my advice. Will arrange for XRT tomorrow. I have outlined that her weakness could worsen over the next few days."
There is a further entry a short while later at 0940, implying Dr Toohey had another telephone conversation with Georgette: "*Further discussion with Georgette (daughter). Now wishes for mum to be treated today and will take her home tomorrow."
Dr Toohey agreed that this was consistent with Georgette still being anxious to take Nadia home. But Georgette and the family ultimately changed their minds. Nadia remained at the Lifehouse until Friday, 5 December 2014.
Nadia's acquiescence to Georgette being called her "daughter" with Dr Toohey is important in understanding her similar acquiescence in front of Mr Liondos a week after she left hospital. Dr Toohey never found out that Georgette was not Nadia's daughter when treating her over a full week, and dealing with some of the most profound decisions of Nadia's life. It is not surprising, therefore, that a week later Nadia should acquiesce in the same way with Mr Liondos.
What is the explanation for this? Despite the Court's criticism, at times, of Georgette's behaviour towards Nadia and towards other members of her family, the inference that arises from Nadia's description (or repeated acquiescence in the description by others) of Georgette as her daughter to professional persons is a sign that that is what Nadia wanted.
Her decision to do this probably sprang from a complex of motivations. She clearly felt genuine affection for Georgette, given their long relationship. Regrettably, Nadia's affection for Georgette was supported by Georgette's conscious bad mouthing of Youssef, Magdy and Mary. But I infer Nadia did not want to face the daily burden of saying to professional and other people she encountered, "well she is not really my daughter; but we are very close; and she is just like a daughter to me". Particularly as Dr Toohey was talking to Nadia about matters of life and death, explanations about Nadia's precise relationship with Georgette probably hardly seemed front and centre to Nadia. In my view, Nadia probably ultimately applied the same logic when it came to Mr Liondos. But the implications of Mr Liondos not knowing their true relationship were more legally hazardous.
There was nothing wrong with Nadia's memory or cognition in mid-December 2014. Mary's evidence is to be accepted that Nadia was talking about her nephews and/or had seen her nephews in the fortnight before she went to make her will. The Court does not accept that she was not conscious of who Youssef and Magdy were, their presence in her life, and what they, and their spouses, were and had been doing for her. She would have remembered them. Nadia's nephews and Mary were an integral part of Nadia's family that Dr Toohey had observed giving her support in hospital.
Dr Toohey also examined the drugs that had been prescribed for Nadia in RPA under her care and also later on Nadia's admission to Canterbury Hospital. Dr Toohey had available during her evidence the hospital notes preceding that later admission. Only a few of these drugs have direct effects or side effects that are potentially relevant to a patient's memory or cognitive capacity.
One of Nadia's medications was dexamethasone. This has the effect that if a patient has brain metastases, as Nadia did, and if the patient presents with confusion, then an increased alertness response to synthetic steroids, such as dexamethasone, can be used by a treating doctor to determine whether the patient is likely to respond to other treatments like radiation or surgery.
This was not an issue for Nadia. Dr Toohey was quite firm that she did not see any signs of confusion in Nadia at any stage whilst she was in hospital. Dr Toohey unequivocally said, "I didn't think she was confused". Dr Toohey made her observations on this subject right through until 5 December, only a week before the December 2014 will was made.
Upon discharge, Nadia was prescribed drugs for pain relief. The principal one that came under attention was an opioid, fentanyl, which was administered to Nadia in the form of a patch that slowly released the drug over a 72 hour period. Dr Toohey, in fact, increased Nadia's fentanyl patch prescription when she was in hospital. The next increment to the patch dosage was to double it. But that doubling occurred under conditions that medical staff and pharmacists could monitor in hospital and had been decided upon before Nadia left hospital. In addition, she was prescribed fentanyl lozenges of 200 micrograms, a very short-acting dose, to assist her in dealing with more acute episodes of pain over and above those that were being managed through the patch. Dr Toohey's opinion is that the Fentanyl patch does not usually affect a person's ability to make decisions.
Fentanyl can cause drowsiness but upon waking, in Dr Toohey's opinion, it has little effect upon a person's understanding of what is going on in their immediate environment. Another drug Nadia was given was Lyrica, a neuropathic agent used to treat nerve pain. But Dr Toohey said it acted in much the same way as Fentanyl and was not seen as a threat to Nadia's cognitive ability.
Nadia was taking this medication in hospital. I accept Dr Toohey's evidence that Dr Toohey noticed no decrease in Nadia's level of cognition or memory in interactions with her. Dr Toohey had an opportunity to assess the dosages of these drugs in a structured hospital environment with the advice of pharmacists and to see, over the course of a week, their effect on Nadia, so they could be adjusted to the right levels. Dr Toohey was well across the range of drugs Nadia was being given and was confident that doses had been properly calibrated to Nadia's needs before she left hospital. The overall aim of the hospital treatment is to improve a patient's quality of life in their last months of life. Cognitive functioning and access to memory are a central part of that quality of life.
The plaintiffs' case was that these drugs were still being "road tested" after Nadia left hospital, especially in the week after she left hospital, leading up to the making of the will. It is true that Nadia was self-administering these drugs after 5 December. But several matters militate against the conclusion that these drugs adversely affected Nadia at the time she saw Mr Liondos a week later. First, Dr Toohey had seen no confusion or other adverse cognitive effects in Nadia after taking the drugs for a whole week. Second, Dr Toohey made clear and the Court accepts that adequate trials of the drugs had taken place before Nadia left hospital, so Dr Toohey could be sure that the dosages were apt for the less structured post-hospital environment. Third, Nadia was by nature reluctant to take opioids such as the additional fentanyl top up lozenges, and had rejected Endone medication. Fourth, there is no other medical evidence of a drug-related crisis involving Nadia's cognition in the week between Nadia's discharge on 5 December 2014 and the making of the will on 12 December 2014. And finally, Mr Liondos' own observations are not consistent with Nadia suffering any drug-related confusion on the afternoon of 12 December 2014.
Brain scans were available when Nadia came under Dr Toohey's care. These scans showed that she had metastases in the brain from her original breast cancer. The brain metastases were clearly identified on 8 January 2015 but Dr Toohey accepted that both they, and the leptomeningeal disease, had probably been present for quite some time. Dr Toohey said that depending on where brain metastases are located, they could cause changes in a person's personality or memory impairment. But equally, she said they may have no impact upon a person's cognitive functioning. The MRI evidence was not sufficiently specific to indicate where Nadia's brain metastases were located. But ultimately, Dr Toohey offered a holistic view, which the Court accepts as the best reliable evidence on this subject, that the best way to determine whether brain metastases are having any affect on a person's cognitive functions is to observe how the person is behaving. And Dr Toohey saw no cognitive impairment in Nadia.
Dr Toohey believes she saw Nadia on another occasion at Lifehouse in January or February 2015 for a follow up. But the Lifehouse medical notes from this later period were not available for Dr Toohey to use in her testimony. Dr Toohey did not identify that Nadia had any major cognition issues, even then.
Although Nadia did not wish to take Endone, she ultimately took some, albeit on a PRN, or as required basis, some time after her discharge from RPA.
Just prior to her discharge on 5 December 2014, Nadia was given a document on RPA letterhead dated 3 December 2014 and signed by Dr Toohey's oncology resident, to assist Nadia in pursuing a migration application on compassionate grounds for another relative. The 3 December 2014 document described Nadia as having "a terminal condition with poor prognosis" and seeking to expedite the immigration application in question "prior to any demise" of Nadia.
In summary, I accept the overall effect of Dr Toohey's evidence that, until 5 December, Nadia was showing no mental confusion or memory probelms, she was alert and orientated at all times and indeed was behaving like something of a matriarch and could, in her interactions with family members and professional advsiers, be quite stubborn. A number of these same characteristics were observed by other witnesses and indeed emerged again when Mr Liondos saw Nadia.

[20]

Dr Wassem Guirguis - November 2014 to March 2015

Dr Waseem Guirguis had been Nadia's general practitioner from about 1998. Dr Guirguis is also the general practitioner for two parties to the proceedings, Magdy and Georgette. Dr Guirguis has notes covering his consultations with Nadia in November and December 2014 through to March 2015. Dr Guirguis appeared to the Court to be a very thorough and competent medical practitioner. He had a good memory of Nadia.
Dr Guirguis always spoke to Nadia in Arabic. He says, and I accept, that she was always able to report her symptoms and complaints to him and answered his questions and asked questions of him. This was true in particular of the occasions he saw her from November 2014 through to March 2015.
Dr Guirguis' notes show that he saw Nadia, or had contact with others in relation to her, on 4, 5, 21, 25 and 26 November 2014, and 8, 19 and 21 December 2014 and 19 and 21 January 2015. His last face-to-face consultation with her was on 21 January 2015. But he had telephone contact about her on 2 March 2015 and a telephone conversation with her on 3 March 2015 after her discharge from Canterbury Hospital.
I accept Dr Guirguis' evidence that if he had noticed any significant cognitive change in Nadia during this period, he would have made a note of that fact in his medical notes. There is no such note about his consultations with her in November or December 2014. Given how long she had been his patient, he was in an excellent position to observe such changes. I also accept his recollection that Nadia did not complain to him of any cognitive changes or memory loss in November or December 2014.
I accept that Dr Guiguis conversing with Nadia in Arabic allowed them to well understand each other. Had she any difficulty in understanding him, I accept that his usual practice would have been to make a note of that fact. But he made no such note from November 2014 to March 2015.
Nadia presented to Dr Guirguis personally on 18 and (probably also on) 21 November 2014, suffering from right arm pain. Dr Guirguis' next two consultations about Nadia were not with her personally. His notes for 24 and 25 November are consistent with him speaking to Dr Goodwin, or others, about Nadia. On 24 November, Dr Guirguis discussed with Dr Goodwin referring Nadia to the accident and emergency department at Concord Hospital. That referral that ultimately led her to RPA.
Dr Guirguis believes he then saw Nadia personally on Wednesday, 26 November, when she complained of right leg pain. He is confident that after she left RPA, Bishoy came on Nadia's behalf on 8 and 19 December 2014. On the first occasion, Bishoy was obtaining a referral for Dr Toohey. No doubt this had been requested for as soon as Nadia was discharged from RPA because Dr Toohey was not Nadia's usual radiation oncologist.
Dr Guirguis regarded Bishoy presenting on behalf of Nadia as normal. Dr Guirguis appreciated that Nadia's condition was worsening and she would need family members to pick up prescriptions for her.
Dr Guirguis is sure he made a home visit to Nadia on 22 December. He noted on that occasion, and the Court accepts, that she was not in any distress. She still had weakness in her right arm and right chest and leg and reduced mobility in the left leg. She was again referred to Dr Toohey.
In summary, Dr Guirguis saw Nadia face-to-face on 21 November before her admission to hospital and then on 22 December, a month afterwards. Dr Toohey was therefore the doctor who made observations of Nadia closest in time to her making the will. But Dr Guirguis' observations of Nadia on 21 November and 22 December were also important. Dr Guirguis' says, and the Court accepts, that Nadia did not complain about memory loss or other impairment of her cognitive ability at either of those closest consultations before and after 12 December.

[21]

Nadia Talks to Mary About Her Will - 2014

Nadia opened up to Mary in 2014 about her testamentary intentions. Mary's account of what Nadia said on this subject is almost the polar opposite of the account given by Georgette and Bishoy, and others from Georgette's family. I accept Mary's account of Nadia's testamentary wishes in 2014 and I prefer it to the account which Georgette and her family members gave in their testimony about this period.
Mary says that, prior to her undergoing chemotherapy in 2014, Nadia did not discuss her testamentary intentions with her. But in late 2014, when the chemotherapy was well underway, she did confide in Mary about this subject. Nadia said to Mary on one occasion, "I'll leave all my money and my house to my nephews, Raghibs nephews." On several other occasions, in a more abbreviated form, Nadia simply said to Mary, "I leave money to my nephews." I infer from such statements that Nadia was explaining to Mary her testamentary intentions based on her existing 2001 will.
But after Nadia's last time in hospital, Mary also noticed a general decline in Nadia's capacities. Mary recalls that, after Nadia was given a prognosis of only having months to live, Nadia became forgetful and changeable. Nadia acknowledged this herself and said to her friend Mary, "I can't think straight, Mary". I accept Mary's account of this to the extent that it shows Mary was becoming drowsy at times. But in my view it does not mean that Nadia had lost capacity for clear and consistent thought. Mary recalls that Nadia was saying this kind of thing to her late in 2014 and through to early in 2015.
Mary's evidence was that Nadia's forgetfulness extended to Nadia's medication. Nadia said to Mary, "I don't think I remember if I take medicine or not". But Nadia's focus on the subject is some evidence she was keen to get the dosages right. And again, after Nadia was released from hospital in December 2014, she confessed to Mary, "I feel dizzy and feeling unwell." Mary has recurrent memories of Nadia then declaring, "I start to forget". This is not surprising given the fentanyl and other drugs that Nadia was taking. But these statements also show that Nadia was conscious of her declining capacities and the effect the drugs were actually having on her. The statements Mary recalls are often made after 12 December 2014 and are certainly not proof that any of these drugs had overwhelmed Nadia's powers of reasoning.
Mary did not see Nadia after early February 2015. But I accept much of Mary's description of her friend in the critical period between the December 2014 will and Nadia's disappearance in early February 2015. The quality and depth of their friendship, and Mary's selfless and disinterested care for her friend makes her a generally reliable witness of these matters. I accept her testimony that, from December 2014, Nadia became couch-bound and at times could hardly move, would regularly fall asleep during the day, and would only move for essential reasons, was sleeping for much of the time, and often appeared to be mentally weak, less talkative than her past habit, and tired and quite unlike "the person I knew from since I was 13 years old who had been full of energy". But again this does not mean that when Nadia had to focus on what she wanted within a week of leaving RPA that she was not able to do so.

[22]

Bishoy's Instructions to Sattouts - Early December 2014

Shortly after Nadia left hospital, she attended on Mr Liondos, at Shad Partners, for the making of the December 2014 will. Bishoy and Georgette arranged this attendance. Mr Liondos was not the only solicitor Bishoy had approached for this purpose.
Earlier in December 2014, Bishoy also approached Mr Sattout. As at December 2014, Sattouts had never acted previously on instructions from Nadia or Raghib and they did not know, or act for, Georgette.
Mr Sattout gave evidence about this contact with Bishoy, as did his daughter, Ms Julia Sattout, who works as a solicitor in the Sattouts practice. They were both excellent witnesses and I accept their evidence about their interaction with Bishoy. The Court's findings about that interaction are largely based on their evidence.
At their meeting in December Bishoy instructed Mr Sattout to prepare a will and a power of attorney for Nadia: the same general instructions that he later gave to Mr Liondos.
But Mr Sattout made clear to Bishoy that he could not take instructions about a will unless the proposed testator came and met with him personally. He said he was able to do the will but, "only on the basis that he [Bishoy] would bring the lady back with him so that she could give us final instructions, executed the necessary documents and give us the instructions about the will". That did not occur. Mr Sattout explained "we never prepared a will because we could not get definite instructions of what she wanted". But the firm did prepare a power of attorney which was never executed, because Nadia never came in to see them.
After the meeting with Bishoy, Mr Sattout instructed his daughter, Julia, to prepare a draft power of attorney and to arrange a meeting with Nadia, so Mr Sattout could discuss both the will and the power of attorney personally with Nadia. Mr Sattout's evidence of his meeting with Bishoy did not quite contain the overtone of urgency from Bishoy that were evident in Bishoy's later instructions to Mr Liondos. Nor was there any demand from Bishoy to control the amount of contact, as solicitor, Mr Sattout should have with Nadia.
On 9 December 2014, Ms Julia Sattout prepared the draft power of attorney as requested and contacted Bishoy by email, requesting him to make an appointment to come and see Mr Sattout with Nadia. But no appointment was ever made. The power of attorney Julia Sattout had drafted was never executed either by Nadia or Bishoy.
So far as Mr Patrick Sattout is concerned, that is where the matter ended. He says he heard nothing more from either Bishoy or Nadia. Julia Sattout's evidence was to a similar effect.
A side issue arose out of Bishoy's December 2014 instructions to Sattouts. Youssef and Magdy visited Sattouts in April 2015, after Nadia's death. The extent to which Sattouts had executed any instructions on Nadia's behalf in early December 2014 became a point of contention about events during Youssef and Magdy's April 2015 visit. The Court prefers the Sattouts' evidence on this subject.

[23]

Preliminary Instructions to Mr Liondos - 25 November to 11 December 2014

Bishoy arranged for Mr Thomas Liondos to meet with Bishoy, Nadia and Georgette on 12 December 2014 at the office of Shad Partners. Nadia executed the December 2014 will and an enduring power of attorney on this occasion. Much of what happened during the meeting at Shad Partners is in contest.
Mr Liondos already knew Georgette. He had handled several matters for her previously, including a lease transaction for a property in Bexley, and a dispute arising out of that lease. Bishoy also had prior dealings with Mr David Shad, a senior solicitor at Shad Partners. But Georgette did not then have current instructions to Shad Partners to do legal work on her behalf. She was not a current client to whom he owed duties in other matters.
Bishoy's contact with Shad Partners about Nadia's will had started about 25 November 2014 when Bishoy left a message with Shad Partners. To give Mr Liondos some point of reference, Bishoy explained to Mr Liondos that he was Georgette's son.
Acting upon Bishoy's contact, Mr Liondos asked the solicitor in the firm who handled wills and estates matters, Ms Katherine Shad, to call Bishoy, as the subject matter of Bishoy's inquiry to the firm seemed more relevant to her expertise. But the inquiry was referred back to Mr Liondos, who telephoned Bishoy back the same day.
Mr Liondos says, and I accept, that Bishoy explained to him on 25 November what Bishoy wanted Shad Partners to do, saying: "I am Georgette Hana's son. My grandmother is ill and she has limited time to live. She wants to make a will urgently. We cannot attend on multiple occasions because of her illness, and we want the matter finalised on one occasion."
I accept this evidence as an accurate account of what Bishoy first said to Mr Liondos. Bishoy refers to Nadia as "my grandmother", which, Bishoy knew she was not. This was the beginning of a range of conduct that misled Mr Liondos into believing Nadia and Georgette were mother and daughter. Bishoy specified just how he wanted the solicitor to discharge his professional duty: by holding just one single conference with Nadia. Bishoy's opening "we" in "we cannot attend" includes Georgette and himself and appears to include Nadia. Bishoy was the source of the push for just one conference. Nadia did want to make a new will but never expressed a desire not to attend upon Mr Liondos on more than one occasion.
Mr Liondos acted quickly. Alert that he might have only one occasion to see someone who he could anticipate was very ill, he asked Bishoy for additional information, so that he could have a draft will and power of attorney ready when Nadia came into the office.
At 6:40pm on 25 November, Mr Liondos emailed Bishoy with a set of questions to give him information to help get him started with the drafting: "Bishoy, Further to our telephone conversation today, in relation to the Power of Attorney: 1 I require the full name and address of the principal; 2 The full name and address of the attorney or attorneys 3 If more than one attorney, will they have to act jointly or can they act separately 4 Are there to be any limitations on the power. In relation to the will: 5 The full name and address of the person making the will; 6 The full name and address of any executors and any alternative executors; 7. To whom is the estate to be distributed (names, addresses and relationship); 8. If anyone dies before, who is to get their share. This is a starting point. Following your reply I will contact you as regards my further requirements. Regards, Tom Liondos"
Bishoy responded on 3 December 2014, supplying information in answer to all Mr Liondos' emailed questions of 25 November 2014: "Thomas, Here is the information that will help you with the draft, can you please do the draft asap because she is in hospital. Power of Attorney: 1. Nadia Mehail at [address not published] Strathfield South NSW 2136. DOB [not published] 2. No. 1 Attorney; Georgette Hana DOB: [not published] (Daughter and Next of Kin) 3. N/A 4. Georgette Hana has no limitations. 100% power. In relation to the will: 5. Nadia Mehail at [address not published], Strathfield South NSW 2136. DOB [not published] 6. No. 1 executor; Georgette Hana DOB [not published] (Daughter and Next of Kin) at [address not published], Blakehurst NSW 2221 No. 2 alternative executor; Magdy Mehail DOB: [not published] (Second in charge after Georgette Hana) at [address not published], Belmore NSW 2207 7. Georgette Hana DOB [not published] at [address not published] Blakehurst, NSW 2221. Relationship: Daughter. 8. Georgette Hana share goes to Bishoy Adel Hana DOB: [not published] at [address not published], Blakehurst NSW 2221 (Georgette Hana's son) and Magdy Mehail's share goes to Bishoy Adel Hana. Can you please register the will and the power of attorney and can not be contested [sic]. Thank you, Bishoy Hana."
This email continues to maintain the false assertion that Georgette was Nadia's daughter, going so far as to describe her as "daughter and next of kin". Curiously, with the words "and cannot be contested", the email seems alive to the prospect of a future contest about the validity of the will and power of attorney.
When he wrote this email, Bishoy well knew he was not Nadia's grandson. He was aware that Nadia sometimes referred to Georgette as her daughter. But this was a manner of speech in which Nadia engaged from time to time but which had never led to formal adoption.
Before the meeting on 12 December 2014, Mr Liondos had a further telephone conversation with Bishoy. The day before, on 11 December, Bishoy said to him on the phone, "I will be appointed as the attorney in Nadia's power of attorney. In the will, leave the whole of the estate to Georgette Hana."
Although the subject of a gift over to Mr Adel Hana had been dealt with in the 25 November - 3 December email exchange, in this conversation, when Mr Liondos returned to the subject, he received different instructions: "Mr Liondos What if Georgette predeceases Nadia? Bishoy: If Georgette predeceases, then leave the whole of the estate to her grandson." Bishoy then gave his full name to Mr Liondos as "Bishoy Adel Hana". Mr Liondos agreed to proceed to prepare a will and power of attorney in accordance with those instructions.
Mr Liondos made a file note of this 11 December conversation with Bishoy.

[24]

The Friday 12 December 2014 Conference

Bishoy, Georgette and Mr Liondos gave evidence about what happened at the conference with Nadia on the afternoon of 12 December 2014. Their evidence diverged in important respects.
The principal contests were: (1) whether Georgette and Bishoy were in the room with Mr Liondos and Nadia when the will was discussed; and (2) whether Mr Liondos was ever told that Georgette was not Nadia's biological daughter. On the first issue, Mr Liondos said, but Georgette denied, that they were in the room. On the second issue, Georgette said, and Mr Liondos denied, he was told Georgette was not Nadia's biological daughter.
Georgette's affidavit evidence covers these issues together. She says that she was in the room at the beginning of the conference but once the discussion moved to the will, she left the room and went to the bathroom. She says she did not feel comfortable being present for that discussion. Georgette also said that Bishoy left the room with her. But she says that just before she left, she reminded Mr Liondos she was not Nadia's actual daughter. Georgette gives the following affidavit account of what she says happened: "We then came to do the will: Me: I should not be here Nadia: Stay, I don't want you to leave Me: I have to go to the toilet. I left and Bishoy came with me. When I came back in I heard: Nadia: I don't have long to go, I want to finalise everything Liondos: Is there another will Nadia: Yes, but I want to leave everything to my daughter Georgette Me: Thomas, I am like her daughter Nadia: Shut up Liondos: Daughter, Daughter. I did not take the matter any further. I did not occur to me that Mr Liondos could have believed that I was Nadia's biological daughter. I had previously said to Mr Liondos in 2007, 'My mother has died'. I did this at the time I was renewing my lease for my childcare business. Nadia had also told me that she had met Mr Liondos previously. Liondos: What property do you have? Nadia: My home, [the South Strathfield property] Liondos: If Georgette dies Nadia: Her husband Adel. David Shad then came into the room Nadia: Your George's son, David. David: Yes, it's been a while, good that you remember me. The will was then signed."
Was Georgette in the Room? Bishoy's own evidence contradicts that of his mother on this first issue. He says they were both present in the room with the deceased as her will was discussed, and they did not leave. Bishoy is right on this. The Court accepts his version on this matter but only because Mr Liondos says the same.
The Court accepts Mr Liondos on the question of whether Georgette was in the room for several reasons. His recollection is generally clearer and more reliable than Georgette's. Her strange account upon her alleged return of Mr Liondos asking about a prior will, getting an affirmative answer, and then proceeding no further on the subject makes little sense for the generally competent legal practitioner that Mr Liondos was. Mr Liondos' memory that Nadia and Bishoy were in the room amounted to an admission against interest of less than ideal practice by a solicitor taking instructions for a will where the principal beneficiary was permitted to be present. Moreover, given what the Court elsewhere finds about Georgette's determination a few weeks later to take control of all communications with Nadia, Georgette's continued presence in the room is inherently likely.
Did Mr Liondos Believe Nadia was Georgette's Mother? The Court finds that Mr Liondos believed Georgette was Nadia's biological daughter. Nadia had introduced her to Mr Liondos as "my daughter" without explaining the true relationship any further. In my view, this was for much the same reason that she had acquiesced in Georgette being called her "daughter" with Dr Toohey. She did not want to have to explain the family history. Mr Liondos did not ask. And it reflected more or less how she saw Georgette.
Mr Liondos says, and the Court accepts, that he had no notion that the two women were not biologically or legally related in a mother-daughter relationship at the time of the drafting and the execution of the will. He prepared the will upon the understanding that Georgette was Nadia's daughter. I accept Mr Liondos' evidence that Nadia advised him that her husband had died. He recalled that she told him that she "had no other children". This implies that Nadia (or Georgette in her presence) had represented to Mr Liondos that Georgette was her only daughter.
In her own account of these events, Georgette claims she sought to press upon Mr Liondos that "I am like her daughter" but that Nadia told her to "Shut up" in Mr Liondos' presence. Mr Liondos presented to the Court as an individual of more than average alertness. Had this conversation, hinting that Nadia was not really Georgette's biological mother, or anything like it, occurred, Mr Liondos is the kind of person who the Court infers would have followed it up, as he later explained. In the Court's view, it is inconceivable that a professional like Mr Liondos would not have explored the real relationship between Georgette and Nadia had he been given any inkling that it was not a biological or adoptive mother/daughter relationship.
Georgette claims she did not take the matter further than this because "It did not occur to me that Mr Liondos could have believed that I was Nadia's biological daughter". I do not accept this evidence. It is implausible that Georgette would have expected Mr Liondos to remember an incidental conversation in 2007, some seven years earlier, about Georgette's mother dying. Moreover, Georgette was fully cognisant of the text of the will Nadia was about to sign. She was in the room when Mr Liondos went through it with Nadia. The will cannot be read any other way than as assuming that Georgette was no less than Nadia's biological or adopted daughter. Georgette was well aware that was the incorrect basis on which Mr Liondos was proceeding. But she was prepared to allow the conference to proceed on this basis because it suited her.
The will and an enduring power of attorney were signed at the conference with Mr Liondos on 12 December 2014. The full text of the will that Nadia executed is set out below: "THIS IS THE LAST WILL AND TESTAMENT of me Nadia Mekhail of [address not published] Strathfield South in the state of New South Wales. I. I REVOKE all former Wills and Testamentary Dispositions heretofore made by me and declare this to be my last Will and Testament. II. IN THE EVENT OF my daughter Georgette Hana surviving me for a period of not less than thirty (30) days and in such case I GIVE the whole of my real and personal estate of whatsoever kind and nature and wheresoever situate to my said daughter AND I APPOINT my said daughter sole Executrix hereof. III. IN THE EVENT OF my said daughter failing and IN THE EVENT OF my son in law Adel Hana surviving me for a period of not less than thirty (30) days and in such case I GIVE the whole of my real and person estate of whatsoever kind and nature and wheresoever situate to my said son in law AND I APPOINT my said son in law sole Executor hereof."
Mr Liondos and Mr David Shad witnessed Nadia's signature. Her signature appears to be that of an infirm person. But the will describes Georgette in several places as "my daughter" and her husband as "my son in law, Adel Hana". The text of the will confirms that Mr Liondos was, as he says, never made aware that Georgette was not Nadia's biological daughter or adopted daughter.
Mr Liondos says, and I accept, that he would not have described her in this way in the will if he had been alerted to the fact that she was neither a biological nor adopted daughter.
I accept Mr Liondos' evidence that if he had been told before or during the conference on 12 December 2014 that Georgette was neither the biological nor the adopted daughter of Nadia, and that Bishoy was not Nadia's grandson, that he would not have allowed the conference to proceed in the manner that it did or the will to be executed in the form in which he prepared it. He says, and the Court accepts, that he would have asked Nadia to clarify her instructions and would have inquired what Georgette's relationship with Nadia really was. He would have reframed the will to be into the more conventional form for such a situation, "I give it to my neighbour, [or] my friend…Georgette Hana". And he says, and the Court accepts, that he would not have described Adel Hana in the will as "my son-in-law".
The Counterfactual - What if Mr Liondos Had Known the Truth? Mr Liondos says, and the Court accepts, that if he had realised that Nadia was not the daughter and not even a blood relationship it would have "triggered a completely different scenario". He would not have had the comfort that he had with the will as it was. As he said, in his mind, the situation "changes drastically". He says, and the Court accepts, he would have appreciated that the "rationality of the will is less obvious".
On that "completely different scenario", an obvious line of inquiry was whether Nadia had any other blood relations who should be considered objects of her testamentary bounty. Nothing would ordinarily displace the testamentary claims of an only daughter. But in the absence of a close blood relation such as a son or daughter, the potential claims on Nadia's testamentary bounty of other relatives such as siblings, nieces or nephews would at least need to be explored and considered.
An inquiry by Mr Liondos of Nadia in this direction that was conducted in the absence of Georgette and Bishoy was likely, in my view, to have revealed the truth about a number of related matters: the existence of Raghib's and Nadia's mutual 2001 wills; the benefits they had conferred on Raghib's five nephews (Nadia's nephews by marriage) by agreement between Nadia and Raghib; Nadia's abiding respect for Raghib's wishes; the gifts in the 2001 wills to the Coptic Orthodox churches in Sydney; and that Nadia's relationships with her nephews were still affectionate. But because Mr Liondos was not told by Georgette and Bishoy, apparently with Nadia's acquiescence, that Georgette was not actually her daughter, those lines of inquiry, advice and consideration were not pursued.
But this does not automatically mean that Nadia was therefore incapable of appreciating the various claims upon her testamentary bounty, from, for example her nephews. In my view, she is hardly likely to have forgotten her nephews as she had recently seen them and had the benefit of their support. And, as will be shortly seen, Mr Liondos did direct her attention, at least in general terms, to the possibility of someone else, other than Georgette being entitled to her estate and whether they should be excluded.
The silence on the lack of an actual mother-daughter relationship also changed the way the conference was conducted. Mr Liondos' decision to leave Georgette and Bishoy in the room was influenced by his belief that this was a straightforward will, where the testator was leaving her whole estate to her only daughter. In those circumstances, there appeared to him to be no issue with allowing Georgette and Bishoy to be present in the room because what was happening "appeared rational". But once it was put to him that Georgette was not Nadia's daughter he accepted that the logic of his decision to leave Georgette in the room had been "undermined". Mr Liondos says he would have asked Bishoy and Georgette to leave the room had he found out the truth.
The first time Mr Liondos found out that Georgette was not Nadia's daughter was on 8 April 2015, after Nadia's death. Georgette rang Mr Liondos in the context of an emerging dispute with Magdy and Youssef and revealed to him that Nadia in fact had no children. Mr Liondos then realised he had been misled on this point. This became an important factor in Shad Partners no longer acting for Georgette.
Nadia's Participation in and Alertness During the Conference. Bishoy wished to set the scene for a single meeting between Mr Liondos and Nadia. Before the meeting, Bishoy had advised Mr Liondos that Nadia had no mental deficiencies and understood what she was doing, despite the fact she had a terminal condition. Although it was in Bishoy's interest to say this, it happened to be correct. Mr Liondos gives an account of the instruction giving being "generally rushed". But Nadia had a terminal illness so, for him, this was quite understandable. Mr Liondos concluded, from his pe-conference communications with Bishoy, that both Bishoy and Nadia wanted to have the will and power of attorney dealt with quickly.
Mr Liondos had a good memory of Nadia's participation in this meeting. He was satisfied during the meeting, and I accept, that Nadia was clear on what she wanted, indeed "positive and strident". Moreover, he thought that "she did not look particularly frail for her apparent age and certainly not as frail as I was expecting, given what I had been told about her". Mr Liondos observed that "she walked without requiring assistance and seemed reasonably agile". He also described her as "being very positive and strident about what she wanted". The Court accepts this evidence that Nadia was firm about what she wanted. It is consistent with the strength of the views she had expressed to Dr Toohey. And Mr Liondos had a clear recollection of it. In Georgette's presence she did give instructions for the December 2014 will as Mr Liondos drafted it.
Mr Liondos communicated with Nadia in English. He is to be accepted when he says he judged her English as sufficient for adequate communication. He indicated that he was confident she understood him, and that he understood her.
Mr Liondos said, and the Court accepts, it was clear: that Nadia did want to make a new will; what she wanted in it; and the nature and extent of her estate that she was disposing of by will. I accept his evidence that Nadia wanted to make the will before it was "too late" so that she could "rest easy" knowing that it had been done.
Even though Georgette was in the room, the strong picture that emerges from the evidence of Mr Liondos was of a strong-willed Nadia who did want to a make a will and knew what she wanted. The Court accepts that picture as a true description of what happened.
Mr Liondos explained the will to Nadia. She understood it and accepted it corresponded with her wishes. She then signed it in front of Mr Liondos and Mr David Shad.
Mr David Shad was a licenced conveyancer and paralegal at Shad Partners. He often witnessed wills of Shad Partners clients. The Court accepts his account of being called in to witness Nadia's will late on 12 December 2014 at Mr Liondos' request. He too recalls Georgette being present, when Nadia signed, and he and Mr Liondos witnessed her signature on the will.
The Court accepts that Mr Shad carried away with him an impression from his short period in the room that "everyone appeared relaxed and Nadia appeared to quite freely sign the will".
Mr Shad had acted for Georgette in a prior conveyancing matter. But he did not recognise her when he was in the room. He was not there when instructions were taken or the will explained. He was not affected by this prior conveyancing relationship. But this was understandable as he was in the room less than 5 minutes.
The Enduring Power of Attorney. The enduring power of attorney was signed at the same time as the will. It was registered soon afterwards, on 17 December 2014. In the power of attorney, Nadia appoints Georgette as her enduring attorney. The enduring power of attorney declares in accordance with the Powers of Attorney Act 2003 ("PA Act"), that it will be effective even if Nadia lacks capacity after its execution. But it did not confer on Georgette the additional optional powers that may be conferred on attorneys under the PA Act: to give reasonable gifts (s 11(2)); to confer benefits on the Attorney to meet Nadia's reasonable living and medical expenses (s 12(2)); and to confer benefits on other identified persons (s 19(2)).
Mr Liondos witnessed Nadia's signature on the enduring power of attorney. Her signature was similar to that written on the will. Mr Liondos certified as a solicitor that he had explained the effect of the enduring power of attorney to her, and that she appeared to understand it. Finally, Georgette is recorded as accepting the conferral of the enduring power of attorney upon her. Her signature of acceptance is also dated 12 December 2014. She was present throughout the conference and also signed the enduring power of attorney in the course of it.

[25]

Mr Liondos' File Notes of the 12 December 2014 Meeting

Mr Liondos' account of the 12 December 2014 meeting is based both on his recollection and on a file note of the meeting that he drafted a few days later.
He says, and the Court accepts, that he did not make contemporaneous notes of the meeting. But the following Monday, 15 December 2014, he made some notes in retrospect detailing his account of the meeting held the previous Friday.
But he later discarded his original 15 December 2014 notes. He re-wrote them and disposed of the originals. He did not give very satisfactory evidence as to why he had done this.
He could not remember some important conversations without reference to his notes. The Court was cautious about placing much reliance on Mr Liondos' final notes of the Friday 12 December 2014 meeting. They had first been written three days after the event they describe, then they were rewritten in a way that did not allow the rewrite to be compared with the first set of notes, which had been disposed of without explanation.
Mr Liondos' rewrite of these notes was challenged in various ways. But despite the unsatisfactory way that these notes were rewritten without retaining the originals the Court is confident that Mr Liondos' final rewritten version of the notes was an honest undistorted account of his actual recollection of what passed at the 12 December 2014 meeting with Nadia. The Court infers this not only because Mr Liondos was genuinely trying to give his best account of the meeting. But some features of the notes show Nadia's personality in much the same way as it had revealed itself to Dr Toohey.
The final re-written notes were in evidence and generally support Mr Liondos' account of the meeting. They were as follows: "File Note Date: Monday 15/12/2014 Re: appointment on Friday, 12/12/2014 Appointment this afternoon with Nadia Mekhail. Also present were Georgette & Bishoy Hana. I had some concerns noting: - I had not previously met or had contact with Nadia Mekhail - My only contact was primarily through Bishoy, who sent me email and whom I spoke to on the telephone. - Mrs Mekhail apparently has a terminal illness and not long to live (her ailment is physical) and I was advised that mentally she is ok and understand what she is doing. - The matter in general was rushed. Some pushing from Bishoy to deal with matter quickly as Mrs Mekhail may pass away soon and his mother (Georgette) also wanting to have the Will signed as soon as possible. (In this case I noted I should also consider whether Mrs M was also keen to sign the new Will or whether she was being pushed into it. - I went through the pre-prepared Power of Att and Will with Mrs Mekhail. - In relation to the POA, Mrs M confirmed she was happy with it. - We also went through the Will. - My general impression was that although apparently physically ill, Mrs Mekhail was very sprightly and forthright as to what she wanted. - Her English was sufficient for us to communicate and I understood her and felt confident that she understood me. - I asked if she made a previous Will. She said yes but didn't have it with her but in any event, wanted to make this new Will. - She confirmed the details of the Will including that she wanted to leave the whole of her estate to her daughter, Georgette Hana. - Our general conversation was that she was aware that she did not have long to live and she wanted to do this Will so she could rest easy. She said her main asset was the ppty at 17 Barton Street, Strathfield South, she didn't have much else. - Georgette had looked after her and done everything for her and it was important that she made this Will before she passes to give everything to Georgette. - She affirmed the alternate clause to Adel Hana if Georgette didn't survive her. - I noted that in Will, if there is someone else who may be entitled, they should be mentioned in the Will and why they should be excluded - especially close relatives such as husband or children. - She said her husband had died and she had no other children. Didn't want to mention anything else in the Will. She said there is no one one [sic] else entitled. - During the course of the appointment Mrs M was clear on what she wanted. Essentially to give the whole of her estate (main asset being the property) to Georgette. - She said that, emphasised it and thanked me for seeing her. - Georgette and Bishoy had little to say. Georgette gave some background details but left it up to Mrs Mekhail to discuss the Will with me. - A couple of times when Georgette and especially Bishoy tried to intervene and say something, she told them to be quiet and stay out of it. - In my opinion Mrs Mekhail was clear that she wanted to make a new Will, what she wanted it state [sic] and the extent of the ppty she was giving (whole estate). - She was clear on what she wanted to do and in my opinion the matter was dealt with in haste as Mrs M knew herself that her time was limited and she wanted to make the Will before it was too late (ie. Before she died). "
In my view, this notes is the most accurate available record of what passed between Mr Liondos, Nadia, Georgette and Bishoy at this consultation and in what order. It is a faithful account of the meeting despite being a transcription of other earlier notes. Mr Liondos' oral evidence was consistent with it.
I accept from it that Mr Liondos covered the subjects of a previous will with Nadia and that the possibility of other claims on Nadia's estate was raised for her consideration.
The note also makes clear: that Nadia herself (not Georgette) was describing Georgette as her daughter; and that Nadia considered her estate and appreciated her real property was its main component. The note is of special interest too because it echoes Nadia's strong and stubborn character: when Bishoy or Georgette tried to intervene Nadia, "told them to be quiet and stay out of it". I accept that is what happened and is not consistent with Nadia being coerced by Georgette on Bishoy into making his will.
Moreover, the note is a contemporaneous record of Mr Liondos' thoughts and concerns. It shows that he was actually conscious that Bishoy and Georgette may be rushing Nadia into this and that he focused on "whether she was being pushed into it". He proceeded because he concluded that she was not being pushed.
The note contains no evidence of Nadia losing concentration or showing any delusional or strange behavior that might be consistent with her being affected by the drugs she was taking.

[26]

Nadia's Meetings and Consultation After Hospital - December 2014 to January 2015

A week after the December 2014 will was signed, Nadia saw Dr Goodwin, at Strathfield. This consultation revealed that Nadia's cancer was progressing. Nadia decided at this consultation, on advice from Dr Goodwin, that she would not continue the use of Herceptin, a drug which reduces the risk of recurrence of breast cancer in some patients after surgery.
Dr Goodwin's medical report of the consultation contains within it indications of Nadia's continuing assertiveness and conviction about how her medical care should continue to be managed. Dr Goodwin explained that Nadia had been linked to the local palliative care service, which had already made frequent contact with her. But Dr Goodwin observed that Nadia, "[was] adamant not to have any other additional services at home", apparently because she had what Dr Goodwin described as, "family support with her 24 hours and no new problems have arisen since her discharge". This is consistent with the generally independent minded person that the Court judges Nadia still was at that time. Dr Goodwin's statement echoes Mr Liondos' observations about Nadia's strong opinions.
And Dr Goodwin reported after her 19 December consultation with Nadia, "I have not recommended any further chemotherapy, as it is likely to worsen her lethargy in addition to causing additional side effects such as nausea and alopecia".
Dr Goodwin concluded that Nadia was "happy with this approach" and discussed other strategies to improve Nadia's lethargy. Nadia told Dr Goodwin that, although she was aware the option of a palliative care admission at Concord Hospital was available if her health deteriorated, Nadia intended "to stay at home as long as possible". This was consistent with the approach Nadia had taken to Raghib's care, as his condition worsened.
Other non-medical witnesses give helpful perspectives on Nadia's mental alertness within about a month of the making of the will. Mr Harry Fagan was a plumber who did plumbing work at Nadia's property from time to time from about 2013. He also did some plumbing work for Nadia in early 2015. On that latter occasion, he remembers that he was called to fix Nadia's shower and vanity unit. He says that Nadia spoke to him in much the same way she had during the previous two years that he had known her, and that he did not find her mental capacity or instructions to him to be hindered in any way. He said she greeted him normally, although she certainly appeared unwell to him. The Court accepts his evidence. He did work for Georgette as a plumber but, in my view, he had on that account no reason to distort his evidence in Georgette's favour.
Mr Fagan is also an example of another person to whom Nadia introduced Georgette as her daughter, stating to him when they first met in 2013, "this is my daughter Georgette". For the sake of brevity of communication in Nadia's less complicated relationships, such as with tradesmen, it is understandable that she did not go into the greater detail that she had with Mr Soryal and explain that Georgette was not her actual biological daughter. She did not owe everyone an explanation about the precise nature of the relationship.
Nadia also had further contact with Mr Soryal during this early 2015 period. Georgette was often the main point of contact for giving Mr Soryal instructions about immigration applications, at the time that Nadia was readmitted to hospital in early February 2015. But Mr Soryal took instructions on the telephone about a student visa for another relative of Nadia's. I accept his evidence that, during this process, Nadia demonstrated a sharp memory and recalled information from previous phone calls, and had an active mind. He says, and the Court accepts, that "it never occurred to me that Nadia may not have been capable of giving me instructions". This was over six weeks often Nadia had made the December 2014 will. The Court infers that it was unlikely that Nadia's memory and general functioning capacity for business affairs were any worse in mid-December 2014 than they were in early February 2015, when indeed they were quite acceptable for the conduct of Nadia's general business affairs.

[27]

Mary, Youssef and the School Enrolment - Late January 2015

Mary Candotti provides the key to a particular event that prevented Youssef from assisting Georgette in her final weeks of life and ultimately allowed Georgette to keep Nadia isolated from family and friends. Youssef indicated he was prepared to come back from Melbourne and look after Nadia after she left hospital in December 2014. And Nadia, at least initially, wanted that to happen. I infer this from Youssef's evidence on the subject and from a statement Mary recalls Nadia made to her in early 2015, apparently with approval, "Youssef want to come here to look after me".
Mary took this as an indication, rightly in my view, that, at that time, Nadia wanted Youssef to fulfil this role for her. This is inconsistent with the idea that Georgette's case generally propounds: that Youssef's prior stay with Nadia in 2008 had ended badly and Nadia had fallen out with Youssef then or later. By January 2015, Mary had decided that she should try and smooth Youssef's passage back from Melbourne, so he and Nermeen could live locally somewhere in, or near, South Strathfield to help look after Nadia.
But Mary's and Youssef's joint action toward this objective brought them into direct conflict with Bishoy and, to a lesser extent, Georgette. This conflict flared somewhat unusually as the result of a simple request.
Mary's evidence is that Nadia accompanied Youssef to pick up forms from the local school, so that Youssef and Nermeen could enrol their daughter there. The school required someone to declare that Youssef's daughter would be living in the local area. After the visit to the school, and back at Nadia's house, Mary (and perhaps Nadia as well) asked Bishoy to provide a letter for the school to assist with Youssef's daughter's enrolment.
But Bishoy resisted. He responded to the request, with a question and without any commitment to co-operate, saying, "what do you need a form for?" He strongly challenged the whole idea of whether Youssef needed to come to Sydney at all. But the relationship between Nadia and Youssef was then a good one and this arrangement was obviously for Nadia's benefit.
So why did Bishoy resist the arrangement? He and Georgette had convinced themselves that Nadia did not want Youssef with her. Their conviction was without foundation. The reality was Georgette and Bishoy were anxious that Nadia not have too much exposure to her nephews, because they saw a risk that Nadia might revise the will that she had made on 12 December 2014 in Georgette's favour.
Georgette's overtly stated reasons for joining Bishoy and refusing to co-operate was that it would have been misleading for Nadia to sign a school enrolment form which declared that Youssef and Nermeen's daughter, would be living in Nadia's place, because that was not going to happen and the form itself would therefore be misleading.
Youssef's case was that Georgette persuaded Nadia that the form could not be signed, simply because she did not want Youssef, Nermeen and Maria staying in the house.
The Court prefers Youssef's evidence on this subject. Youssef's motivation was, in fact, far simpler. He was simply responding to his aunt's request to come and live with her, when she was sick. He and his wife had a house in Melbourne, limited job prospects in Sydney, and a poor previous experience with Bishoy in Sydney. It is difficult to understand why he would attempt to move his family back to Sydney from Melbourne to once again face Bishoy's harassment, unless he was doing so in response to his aunt's request for him to be there. Sydney was not a particularly attractive prospect for him. Indeed, at the time of the hearing he still lived in Melbourne. Moreover, Youssef was not aware of the December 2014 will favouring Georgette.
Neither Mary nor Youssef had any visibility of what happened behind the scenes with Nadia subsequent to this conversation. But the next time the matter was broached between Nadia and Mary, Nadia appeared to Mary to have changed her mind about the wisdom of Youssef and his wife coming to Sydney, saying "I do not want them to come".
Youssef did have a continuing warm relationship with Nadia. Youssef annexed his phone records showing the number of phone calls that he made to Raghib and Nadia and then later to Nadia after Raghib's death. Against Raghib and Nadia's number there are some very lengthy phone calls of 2, 3 and 4 hours. These show considerable closeness between Youssef and Nadia. Many of these are in 2014. They are consistent with Nadia wanting to speak to Youssef for lengthy periods and wholly consistent with Nadia later inviting Youssef and his family up to Sydney to live with her.
She could converse with him for hours on the phone. I infer she wanted to see more of him and his family. Her house was indeed spacious enough to accommodate them all.
Youssef was an extra pair of hands to help Nadia, unless one accepts Georgette's and her family's evidence that, by then, Nadia disliked Youssef. The Court does not accept this. Mary was genuinely puzzled by Nadia's change of attitude in the face of such an innocuous offer for her benefit. She said that she emphasised to Nadia that what was being asked for from Bishoy was hardly difficult, a letter for the school, "this is nothing, only to sign for girl to go to school".
But Mary's evidence also reveals the intense pressure to keep Youssef away from Nadia. She says that Bishoy then screamed his opposition to his executing the letter, "I don't need to do that". Bishoy could use aggression and calculated truculence to get his way. At times his demeanour in Court radiated a troubling sense that if pushed too far he would become very difficult.
But in this last period of January and early February 2015, Mary thought Nadia changed when she was with Bishoy and Georgette. She contrasted Nadia's behaviour in Magdy and Youssef's presence with that in Bishoy and Georgette's presence. In the presence of her nephews, Mary remembers that Nadia was "the Nadia that I had known since I was 13". But in the period covering December 2014 and January 2015, Mary remembers Nadia being "different" when Georgette and Bishoy were around, as they were almost all the time. She recalls Nadia being confused and unable to understand the simplest of statements. I do not accept that is correct. It is not consistent with the medical opinions about Nadia through this period, which the Court prefers. Mary was right at least to the extent that Bishoy and Georgette were a source of some tension for Nadia.

[28]

Nadia Enters Hospital Again and Goes to Georgette's - Early February 2015

On 3 February 2015, Nadia was admitted to Canterbury Hospital with pain in her right leg. She had briefly had an overnight admission at RPA on 8 and 9 Januat 2015. But this was her last hospital admission.
Mary says, and I accept, that the last time she saw Nadia was at Canterbury Hospital about two months before she died. Mary did not see Nadia after she left hospital and did not know where she went. Although Mary's last memory of seeing Nadia in February 2015 was that Nadia was becoming forgetful, she was nevertheless asking in the hospital to see Youssef. This is almost impossible to reconcile with Georgette's evidence. Georgette says that almost as soon as Nadia left hospital, she declared to Georgette that she did not want to see Youssef. The Court prefers Mary's evidence on this subject. The Court does not accept Georgette's evidence that Nadia did not want to see Youssef at this time.
These findings are significant not just for the Court to decide what happened at the hospital. But they help answer the more directly relevant question of whether or not Nadia appreciated in the 12 December 2014 conference two months earlier that her nephews may have claims on her testamentary bounty.
On what appears to have been her second last night in Canterbury Hospital, Mary told Nadia she had just been speaking to Youssef. She was then able to reassure Nadia in answer to Nadia's requests to see Youssef, "nephew is coming tomorrow and will see you". Mary understood that Youssef would be coming the following day. Mary recalls Nadia repeating back to her, her desire to see Youssef, "I want to see [Youssef]". Mary's response was, "He will be here, don't worry."
But Mary had to leave. She had arrived that night near the end of visiting hours and could only stay about 10 minutes. So Mary kissed Nadia and said, "See you tomorrow Nadia". This is the last time that Mary Candotti ever saw her life-long friend.
Bishoy was also at the hospital that night. So was Georgette. As Mary left, she recalled Bishoy going back into Nadia's hospital room. So far as Mary was concerned, the following day Youssef would visit Nadia in response to Nadia's wish to see him.
Expecting this had occurred, Mary rang Youssef the next day. They soon realised something had gone wrong. Youssef enquired of Mary about the previous evening. Mary reaffirmed to Youssef that when she left the hospital, that Nadia was expecting Youssef to arrive. Youssef then explained to Mary, "I went to hospital, she didn't want to see him, do you know why?" Indeed, I accept Youssef's evidence that what happened when he arrived at the hospital was that Bishoy turned him away. Confused, Youssef accepted Bishoy's direction not to attempt to see Nadia. But Mary reassured Youssef, "she wanted to see you, she asking for you, last thing I saw Bishoy go into the room."
Mary's visit to the hospital led her to believe Nadia would very soon be discharged home. But as Mary left, Georgette explained to Mary that Georgette would be giving Nadia her palliative care injections. Georgette also indicated, "maybe I take Nadia home."
Mary concluded from this that Georgette would take Nadia back to Nadia's own house in South Strathfield, within the next day or so. The following day she rang Bishoy, to see whether Nadia was still at the hospital. He told Mary that "yes, she left, she is at home."
So Mary went to Mary's South Strathfield property. Nadia was not there. Mary rang Bishoy. Mary's telephone conversation with Bishoy first revealed to her an alleged startling change in Nadia's disposition towards her: Mary: "There is no one home." Bishoy: "She doesn't want nobody to know where she is." Mary: "I don't believe you. That's not the word of Nadia's mouth. How come?" Bishoy: "She doesn't want."
Mary says, and the Court accepts, that at no stage did Nadia ever say directly to her that Nadia did not want to see her. The last night in the hospital that Mary had seen Nadia, Nadia was pleased that Mary would be seeing her the following day. And this is not surprising. I accept Mary's account that her relationship with Nadia was an extremely close one. As Mary says, "Nadia will tell me everything, where she kept her money, everything. I was like a sister."
Mary's challenge to Bishoy - "I don't believe you" - was well-grounded. Mary did not believe Bishoy. Neither does the Court. Bishoy's statements did not accord with Mary's knowledge of Nadia. The Court does not accept that Nadia ever told Bishoy or Georgette that Nadia did not want to see Mary, Youssef, Magdy or any of their families. Such a statement is inconsistent with Nadia's relationships with all these people.
Georgette's and Bishoy's explanations for Nadia's change of heart about further contact with her relatives and her oldest friend are shallow and implausible. One explanation given was that Nadia allegedly said to Georgette that she did not want them to get her money. But this is nonsensical once the true facts are examined. This explanation assumes that Nadia thought that Youssef and Magdy had somehow become aware she had changed her will. There is no evidence Nadia suspected that. Nadia had not told Mary of the change. Nadia had not seen Youssef.
Nadia's alleged change of heart is also too quick to be credible. Nadia and Mary kissed one another goodbye and promised to meet the next day. Forty-eight hours later Nadia allegedly never wanted to see her lifelong friend Mary again.
Moreover, the change was not accompanied by the slightest genuine evidence on Georgette's part, evidence that one might expect from a person who was truly solicitous for Nadia's welfare, to try to persuade her that she should still see her oldest friend Mary, Youssef and Magdy. Georgette gave such evidence, but it was a false and stilted attempt to fill an obvious gap in her account.
I do not accept that Nadia ever told Bishoy or Georgette she did not want to see Mary, Youssef or Magdy ever again such that she didn't want them to know where she was. Bishoy's declaration that Nadia "doesn't want nobody to know where she is" was a false statement made to keep Mary, Youssef and Magdy away from Nadia.
Why would he engage in such active dishonesty? The best explanation is that Bishoy or Georgette thought that Mary and Youssef might find out that Nadia had made the December 2014 will and might then persuade Nadia to change back to something like her 2001 will before she died. In my view, they harboured a fear that, Nadia might not adhere to the December 2014 will that she had made with Mr Liondos.
Mary almost saw Nadia a few days later. Mary happened to run into Bishoy at a pharmacy. Distressed at not being able see Nadia, Mary seized the moment and confronted Bishoy directly, saying to him, "How's Nadia, she not at hospital or home." In his attempt to put Mary off, Bishoy then inadvertently gave away Nadia's whereabouts, "[I] can't tell you… she is in the car."
Concerned at Nadia being concealed from her, Mary reacted quickly. She started to run towards Bishoy's car. She wanted to see Mary. But Bishoy intervened. He said, "stop, I must ask if she want to see you." In my view, this was an artifice designed to keep Mary away from Nadia in the car. I do not accept that Nadia did not want to see Mary.
But Mary fell for Bishoy's trick. Bishoy went back to his car. Mary waited. But Bishoy never came back. After waiting a while, Mary rang Bishoy and Georgette to ask where Nadia was. She left messages on their mobile phones. She made it very clear she still wanted to see Nadia. Bishoy and Georgette could not have misunderstood the purpose of Mary's calls to them or her desire to visit Nadia.
Georgette and Bishoy were cross-examined about Mary's calls to them. They admitted receiving them. But they did not ring Mary back. They could not give any satisfactory explanation as to why they did not return her calls, other than the one that Georgette advances and that the Court does not accept: that Nadia did not want to see Mary, Youssef or Magdy.
Georgette invented a story to patch up this embarrassing gap in her case. She says that Mary got through to her and spoke to her on the phone. Georgette invented a conversation in which Mary said, "Where is Nadia?" Georgette says that she said back to Mary, "You know Mary, she is over my place, my son Bishoy told you when you were at the chemist". Georgette's account was that everyone knew that Nadia was over at Georgette's place and Georgette rhetorically said, "Why didn't they come?"
None of this occurred. This evidence can only be explained as a convenient invention on Georgette's part. I accept Mary's evidence that she never got through on the telephone to Georgette after Nadia left Canterbury Hospital.
Georgette then added yet another variation to her story of speaking on the telephone to Mary. Georgette said that after she told Mary on the phone that Nadia was at her place that Mary asked, "Why she doesn't want to see me? We have been friends for a long time". Georgette says that she responded to Mary "She doesn't want to see anybody". Georgette then made up the remarkable story that she went and spoke with Nadia and "I pleaded with her to let them come and see her. She refused". Georgette explains that after Nadia came out of hospital, she said to Georgette, "All the time they're talking about the will and the house and there was a lot of arguing with Nadia and she was getting stressed from them and all they can is they only want the property, her money, her things, and she didn't feel loved. Since Youssef and Magdy came, she didn't feel it from them". Georgette went on to say that she was most upset with Mary because she had taken sides with Magdy and Youssef and that Mary should "respect her wishes and respect her when she wants something".
This evidence should be rejected not only because Georgette is not a credible witness, but also because it does not fit the facts. The Court accepts Mary's account that she continued to have an harmonious relationship with Nadia between her early December 2014 hospitalisation and her early February 2015 hospitalisation. And it is difficult to understand why there was argument about money and property with Nadia because Mary, Magdy and Youssef were unaware throughout this period that Nadia had made a new will.
The Court finds it improbable that Nadia could have made a decision not to see her old friend Mary before her death. Mary gave very empathetic evidence about her deep regrets at not being able to farewell her dearest friend. Given the length of their relationship, that is not at all surprising. From what the evidence says about Nadia, it is difficult to understand how she could not have wanted to see Mary. Nothing in Mary's behaviour in the last months of Nadia's life would have warranted a breach in a 65 year long friendship.
But Mary did ultimately allow herself to be sequestered by Georgette. Youssef gives an account of Georgette taking Nadia aside and having private conversations with her behind closed doors, to which other people were not privy. I accept this occurred. On Georgette's side she saw herself as being in a special position in relation to Nadia as being like a daughter; so, such conduct was justified in her own mind. This pattern of behaviour developed little by little to the point that Georgette felt ultimately entitled to exclude other people from Nadia's life entirely. She did so, in my view, largely from self-interest. But the important observation here is that the strong-minded Nadia accepted this. And despite Nadia's independent personality, she ultimately allowed Georgette to sequester her.
In my view, the real dynamic during this period was that Mary remained sympathetic to Magdy and Youssef; Georgette was concerned about them finding out about and pursuing the subject of the December 2014 will and tried to keep them at a distance from Nadia; this led to Georgette turning against Mary and feeding anti-Mary sentiment to Nadia. The only part of Georgette's evidence about these relationships that rings true is her statement that she was upset with Mary for siding with Magdy and Youssef.
Mary heard nothing of Nadia for about seven weeks. The most likely explanation for Mary's calls going unanswered in this period is that Georgette and Bishoy had no credible response to Mary's request to see her lifelong friend, Nadia. Bishoy and Georgette knew that they had no adequate answer to Mary's entreaties for access. So they found it easier just to ignore them. This conduct disregarded Nadia's welfare and best interests and caused Mary deep distress.
Georgette was genuinely suspicious of Mary's continuing attempts to contact Nadia. Georgette suspected, wrongly, as it turned out, that by early February 2015, Mary had become aware that Nadia had recently made a new will changing her 2001 will. Georgette was convinced that Mary had found out about the new will through Mr Liondos. Mary and her husband, Renato, were clients of Sattouts. Georgette thought that Mr Sattout had told Mary that Bishoy had given him instructions in December 2014 for Nadia to make a new will.
Mary denied this. I accept her denial. Neither Mr Sattout nor Julia Sattout ever discussed Nadia with Mary. I accept the Sattouts evidence to that effect. Mary did not find out from anyone during Nadia's lifetime that Nadia had made a new will. The Court rejects Georgette's, Mr Taylor's and other similar evidence that Youssef, Magdy or Mary were badgering Nadia about her will. Georgette's fears were groundless. But they were, in my view, one of the forces that drove Georgette to sequester Nadia between early 2015 and her death.
Georgette's suspicions wholly misread Mary. Mary was not trying to stay in touch with Nadia to influence her testamentary intentions. Rather, Mary was trying to contact her and to be close with her to give her solace.
One part of Mary's evidence needs footnoting here. Mary conceded that after Raghib's death, Nadia discussed with her whether Mary could perhaps refer her to a solicitor so she could discuss her will. But even if Nadia wanted to consult a solicitor after Raghib's death, Mary did not have any sense beyond that simple fact as to what Nadia wished to discuss with a solicitor.

[29]

Nadia Lives at Georgette's Place - February/March 2015

Several witnesses gave evidence about Nadia during the period that she spent at Georgette's home in February and March 2015. Although this period stretches to a time some three months after the December 2014 will was made, evidence about Nadia during the period is at least indirectly relevant to the extent that it shows that she had retained her mental faculties fairly well. It is possible to infer back from this period that if she was still reasonably mentally alert in February - March 2015, then she probably had not declined in mental alertness in December 2014.
Georgette's and Bishoy's evidence that applies to this period, on the other hand, is not reliable. But a number of basic inferences can be drawn in Georgette's favour about the period and they do her considerable credit. There is no doubt that Georgette looked after Nadia personally and attended to all her personal needs as she became weaker before her death on 2 April 2015. Nadia was adamant that she did not want to go into a nursing home. Georgette allowed Nadia to fulfil that objective. The evidence certainly does not suggest that Georgette substantially contracted out her personal care obligations to Nadia in those final months. Rather, it suggests that she attended to all the difficult and challenging personal-care demands of an elderly person such as Nadia in her home.
The evidence does not much dwell upon the subject, but if Nadia was looking forward at the time of making her will to what would happen in the period before her death, given Nadia's strong aversion to nursing homes, Nadia's will was logical as an inducement to Georgette to care for her at home.
There is some evidence that this issue was often on Nadia's mind. I accept Mr Soryal's evidence that earlier, Nadia had said to him, "Georgette's family care for me and Raghib" and that Nadia was conscious of her physical dependence on Georgette. Whether that actually played any part in Nadia's testamentary reasoning was not teased out by Mr Liondos when the December 2014 will was made.
Apart from Georgette and Bishoy, a number of other witnesses gave evidence about Nadia's general health and state of mind during this final period of her life. Three of these witnesses should be mentioned as adding something to the Court's overall knowledge about Nadia when she was with Georgette: Ms Angy Antonios (Georgette's eldest child), Mr Robert Antonios (Angy's husband), Mr Adel Hana (Georgette's husband).
The Court is cautious about the evidence of Angy Antonios. Many of the witnesses in this case appear to be aligned in camps, driven by family loyalties. As Georgette's daughter, her evidence was treated cautiously. She spoke in part about the period of just before Nadia's death.
Ms Antonios recalls that, shortly before her death, Nadia made clear in her presence at Georgette's home that she did not want at her funeral, "Youssef and his wife, Nermeen, Magdy, Ghin, Christine, Mary Ronalto and her family." She gives an account of a conversation in which Georgette asked her [Ms Antonios] about Nadia's funeral instructions, "what do you think I should do?" To which she replied, "you need to do as Teta Nadia requested, no matter what, it is Teta Nadia's choice."
I do not accept this evidence that such a conversation took place. If anything like it was said, it is explicable on the basis that Georgette had said things to Nadia to place, or keep, Mary, Youssef and Magdy in a bad light with Nadia. Georgette did not want to inform any of these people about Nadia's state of health or the rate of her decline towards death.
Ms Antonios' also claims her recollection also covered Nadia's expression of her testamentary intentions. She says she witnessed Georgette making clear that she did not want "those people [Nermeen, Youssef and Magdy and their families] to have anything I spent my life working for". Rather, she says, Nadia looked at Georgette and said, "I want you to have the property so you can look after your children". Once again, on this issue, Ms Antonios says that Georgette asked her, "what should I do?" to which she claims she said, "I don't think you should do anything". She says that Nadia brought this up regularly. I do not accept this evidence. It is somewhat strange because Nadia had already made a will favouring Georgette. But if anything like it was said, it is also to be explained by Georgette putting Mary and the others in a bad light with Nadia.
Ms Antonios saw Nadia in the last few months and weeks of her life, after she made the December 2014 will. She says she judged Nadia's speech to be "clear and concise" and "she did not appear to have issues with her memory" and that "she knew every medication she was taking, what time to take them, what she was doing and where she was going". This is perhaps a little exaggerated, for the period when Nadia was at Georgette's and would undoubtedly have been very weak, but in my view, is otherwise correct.
The Court accepts Ms Antonios' evidence describing her and her mother's early relationship with Nadia.
Mr Robert Antonios is Ms Angy Antonios' husband. Much of his evidence from this late period can be accepted. He talks about Nadia smiling and interacting with him, his wife and his children and of Nadia asking after his mother. He explains that a hospital bed was set up in her room at Georgette's place and how accommodation arrangements were made for her there and she was moved during one of his visits. His Arabic is poor but he could interact quite well with Nadia, whose Arabic was better than her English.
Mr Adel Hana also gave evidence about this last period. The Court accepts some of his evidence, but not other parts of it. He says that Nadia expressed the view when she was in Canterbury Hospital that she wanted to "come and stay" with him (and Georgette) as "I do not want to be at a nursing home or hospital". She said, "I feel more comfortable around my daughter and you". I accept that Georgette said this. As a practical matter, Georgette and Bishoy had by then caused enough difficulty for Youssef and his wife coming back from Melbourne to look after Nadia that there was no practical alternative to Nadia moving in with Georgette if Nadia was to be kept out of a nursing home, which was her wish.
Mr Adel Hana explains that Georgette emptied their daughter's small bed room to accommodate Nadia, and Bishoy and Georgette organised a hospital bed at the house and nurses were rostered to come and visit Nadia on a regular basis. I also accept that Nadia spoke in affectionate terms to him about her situation.
But he also gives evidence to justify what became the March 2015 transfer. Mr Adel Hana says, like Georgette does, that it was Nadia that pressed upon Georgette and him the idea of Nadia transferring the South Strathfield house to Georgette before she died. I do not accept this part of his evidence nor Georgette's evidence to similar effect. This transaction is discussed in the next section of these reasons.

[30]

The March 2015 Transfer

As early as 9 and 10 February 2015, Bishoy began to act in anticipation of the enduring power of attorney soon being used. He contacted Mr Liondos to ask for a formal letter from Mr Liondos enclosing the enduring power of attorney. Mr Liondos made clear to Bishoy, what I accept to be the fact, that Bishoy already had a copy of the enduring power of attorney. But Mr Liondos indicated that he would send a further copy to Bishoy with a covering letter, explaining how the attorney should sign whenever the power was used. Mr Liondos sent this letter on 10 February 2015.
Georgette's case is that Nadia pressed upon Georgette and her family the need to transfer the property to keep it out of Magdy, Youssef and Mary's hands. The Court does not accept Georgette's case or any of the evidence in support of it to the effect that Nadia pressed this gift upon her. Her evidence, Adel's evidence and Bishoy's evidence all fit into a scenario in which Youssef, Magdy and Mary had been badgering Nadia about making her will in order to give her property to them and that Nadia wanted to keep it out of their hands. But the Court do not accept that scenario. So the logic of Georgette's version of the 2016 conversations falls away.
Moreover, Nadia had wanted to see Mr Liondos to make a will and had done so. In my view, it is unrealistic and implausible to infer that Nadia would then worry about getting the house out of her estate before she died.
In mid-March 2015, Georgette took steps to use the enduring power of attorney to transfer Nadia's South Strathfield property to herself by lodging Transfer AJ354651 with the LPI, with her name as transferee. At some time before 24 March 2014 she executed an undated transfer on behalf of Nadia as transferor using the power of attorney. But the LPI's correspondence to Georgette on 25 March 2015 noted that the enduring power of attorney did not authorise her to confer benefits on herself, and noted the fact that Georgette had only paid nominal consideration of $1.00 on dutiable properly valued at $725,000. This then led to correspondence with LPI. She eventually paid ad valorem stamp duty on the transfer of $28,115.00.
The LPI correspondence led to Georgette and Bishoy contacting Mr Liondos. I accept Mr Liondos' account that, on 30 March 2015, Bishoy telephoned him and they conversed thus: Bishoy: "We want to finalise everything before she goes. I want you to write a letter to the Land Titles Office as it would be in Nadia's best interest." Mr Liondos: "Georgette should in the first instance rely on the Power of Attorney as that sets out her rights and entitlements in respect of acting for Nadia."
Mr Liondos made a file note of this conversation. Mr Liondos says that he interpreted Bishoy's statement "we want to finalise everything before she goes" to mean that both Georgette and Bishoy wanted to transfer the title to Nadia's property before she died. That is what they meant. The undoubted emphasis in Mr Liondos recollection of these events is that Bishoy and Georgette were asking for this for themselves, rather than saying to him first and foremost that it was what Nadia herself wanted. Apart from Bishoy and Georgette's poor credibility, this evidence from Mr Liondos is another reason to doubt that Nadia really insisted on this happening before her death.
Mr Liondos' file note of 30 March 2014 says, "Bishoy wants to finalise everything before she goes", which justifies Mr Liondos' recollection of the first sentence of what Bishoy said to him. But Mr Liondos' file note then goes on to say, "A letter that the action is in Nadia's best interest". I infer from the file note that what Bishoy really seems to have wanted was a letter that would satisfy the LPI that the transfer of Nadia's property was in Nadia's best interests.
On the morning of 31 March 2015, Bishoy forwarded his own draft letter to the LPI from his mother, Georgette, referring to discussions on 30 March 2015. Bishoy's early drafting of it for Mr Liondos showed his keenness to progress this communication with the LPI. The letter contained numerous spelling mistakes and it is not necessary to reproduce the original. Mr Liondos corrected Bishoy's errors and sent it back to Bishoy with a covering email at 1pm saying to Bishoy, "This is in the form of a letter from Georgette directly to LPI. It is not in its present format, the type of letter that would be on our letterhead as the letter is from Georgette, not our firm. In the circumstances, this may be the best approach."
Mr Liondos' hesitation about attaching the firm's name to the letter was understandable given its contents, which contained assertions about Nadia's intentions that he was in no position to verify. The amended letter is set out below: "To: Land & Property Information Level 3, Prince Albert Road Queens Square Sydney NSW 2000 Ref: AJ354651 GS Leg22 Tel: 02- 92286726 Dear Greg Stilianou As we discussed in your office on Monday 30 of March 2015, I needed to write a letter to justify why we are transferring the house under my name. I Georgette Hana am the next of kin to Nadia Mekhail, and her appointed attorney under registered power of attorney Book 4697 Number 642. I was instructed by Nadia Mekhail to finalise the transfer of her property (Folio C/309294) before she passed away. She was diagnosed with breast cancer in 2010 and her doctors have said that she does not have a long time to live. Nadia Mekhail has told me it would give her great comfort to know that the property is in my name prior to her passing. Nadia Mekhail is living with me until her last days and she said she has no need of her house anymore and she wishes to do every thing while she is alive to transfer the house under my name. She has already made a will leaving everything to me and there I attach a copy of her will with this letter. If there is any more information about this matter please do not hesitate to call me at the above number."
Georgette attended Mr Liondos' offices on 31 March 2015, so she could collect the letter. I accept Mr Liondos' evidence that he gave her the corrected letter. Georgette sent this letter on 1 April 2015 to Mr Stilianou at the LPI.
The letter to Mr Stilianou had the desired effect. Georgette was obliged to pay stamp duty at ad valorem rates on the transfer but the dealing was processed and resulted in her becoming the registered proprietor of the South Strathfield property. A new Certificate of Title issued in her name on 10 April 2015.
But, in my view, Nadia did not expressly gift this property to Georgette. It was Georgette who initiated the transfer in her own interests without any request or express authorisation from Nadia.

[31]

Nadia's Funeral - 4 April 2015

Nadia died on 2 April 2015. Bishoy and Georgette organised and conducted her funeral without giving any notice to Mary, Youssef or Magdy. It might be thought that their efforts to keep Mary, Youssef and Magdy away from Nadia could be relaxed after Nadia's death. But Georgette and Bishoy told no-one on the other side of the family that Nadia had died.
Neither Georgette nor Bishoy told Magdy, Youssef or Mary the details for Nadia's funeral. They lost the opportunity to attend. Adel Hana's explanation for their failure to do was instructive. He said that before she passed away, Nadia had expressed her wish that she wanted a "nice and quiet" funeral "just me, my family and the neighbour". When pressed further, Adel said that Nadia had said of Mary, Youssef and Magdy "I don't' want any one of them". The Court does not accept his evidence on this point. It is far too inconsistent with the established relationships that the Court has found existed between Nadia and each of Mary, Magdy and Youssef.
But Adel's evidence was partly right. Nadia probably did say to Georgette and Adel that she wanted a quiet family funeral. But Georgette conveniently interpreted this to exclude family and close friends like Mary that she did not want to deal with. Georgette seemed oblivious to, or unmoved by, the pain this decision caused to those she excluded.
Nadia's funeral card was simple and wrong. It contained very little information about Nadia and one basic error. The inside of the card read in full: "Nadia Mekhail Born in Egypt On the 6th November, 1935. At age 20 she married Raghib Mekhail in Cairo, Egypt & In 1970 migrated to Australia. Nadia will be sadly missed by her Family and many dear friends. Nadia sadly passed away On the 2nd April, 2015 Aged 79 years "She will be forever cherished in our Hearts" - Her Family- "
But Nadia had married Raghib not at 20 but at 16 years of age, a fact that Mary knew well.
Mary had a bad dream about Nadia one night in April 2015. This caused her to ask her son, Jean-Paul, to find out from Bishoy how Nadia was going. Only then did Bishoy convey the news to Jean-Paul, also Nadia's godson, that she had not only died, but that her funeral had already taken place. Hearing this news had a devastating effect on Mary. Her evidence in 2017 in the courtroom showed the visible distress she felt as she explained her inability to farewell Nadia.
The effect of this non-disclosure founded a failed attack on Mary's credit. It was put to Mary in cross-examination whether she felt "very upset with Georgette Hana for not telling you [Mary Candotti] about Nadia's funeral?" Mary said, "Yes, I was very upset because she was my best friend and I still love her, but that was a big, big thing for me to - not see her on her funeral". But despite her disappointment and some continuing resentment towards Georgette, this did not colour the reliability of Mary's evidence about Georgette. She managed to put all that to one side.
Nadia's burial itself indirectly affirmed Nadia's close relationship with Mary. In 2012, Nadia and Mary had gone together to the cemetery where Mary and her husband had purchased a grave site. Nadia purchased a burial plot next to the one in which Mary and her husband propose to be buried.

[32]

Youssef and Magdy Approach Sattouts - 7 April 2015

Youssef says that, after Nadia's death, he and Magdy went to Sattouts to obtain a copy of Nadia and Raghib's 2001 wills, which he says they did. Youssef also says that, in April 2015, Mr Sattout showed him a draft will that Sattouts had prepared on 10 December 2014. Youssef says that the draft will gave a right of residency in Nadia's property to Nermeen after which the property was to be given to the Church and that the balance of Nadia's estate could then go to Bishoy. Youssef says that Mr Sattout told him Bishoy had come into Sattouts and wanted to change the draft will but that he said that he would only obtain instructions about this from Nadia directly.
Youssef also says that, on this occasion, Sattouts gave Magdy and him a copy of Nadia and Raghib's 2001 wills. But this is unlikely. Sattouts did not draft these wills.
In this confusing episode, the Court accepts the evidence of Mr Sattout, not that of Youssef. Mr Sattout does not recall the alleged meeting with Youssef. One would expect there to be a file note of the conversation but Mr Sattout has no file note recording it. Moreover, Sattouts never held a draft will of Nadia. And there is no other credible evidence that Bishoy came into the office to try and change a non-existent will. Moreover, Youssef's recollection of a unexecuted draft will with a date of 10 December is inherently odd. Youssef seems to have imagined this evidence. He had an unfortunate occasional tendency to embellish his otherwise credible evidence with material like this.
Julia Sattout had a clear recollection that Magdy and Youssef came into meet her with the impression that Sattouts had prepared a will in December 2014 for Nadia. But Julia Sattout was sure that Sattouts did not have such a will. Julia Sattout explained that the firm did in fact have a copy of the first page of Nadia's 2001 will and the first page of Raghib's 2001 will. She was not sure how the firm had obtained that material. She believes that either Nadia or Bishoy must have given them to Mr Sattout in 2012. But she is sure that the firm did not have the December 2014 will. All Sattouts had was a title search and a few notes from the brief instructions that had been given to them in 2012. In my view, it is probable that the first page of the will was given to Sattouts when Nadia and Bishoy gave instructions to that firm in 2012.
Mr Sattout does not recall how he came into possession of the first pages of the 2001 will of Raghib and Nadia. And he does not recall giving these pages from the 2001 wills to Youssef or Magdy on 7 April 2015.
Mr Sattout did not show Magdy or Youssef a copy of Nadia's draft December 2014 will. His firm did not draft such a will. Youssef and Magdy say to the contrary. I do not accept their evidence on this. It is improbable.
After Youssef and Magdy came in on 7 April, David Sattout, Julia Sattout's brother, rang Matthew Shad of Shad Partners enquiring whether Shad Partners held a will of Nadia. The two of them had previously worked together. Matthew Shad confirmed by email that Shad Partners did, in fact, have a will. The need to make these enquiries and the disclosure of the information through Matthew Shad tends to confirm that the information was not widely known before Nadia's death.
Later in the day, after the appointment with Magdy and Youssef, Julia Sattout emailed them following up with a costs disclosure and reporting to them about the Sattouts enquiries of Shad Partners, about filing a caveat with the Supreme Court against a grant of against probate of the December 2014 will and about the freezing of Nadia's bank accounts.

[33]

A Contest About the December 2014 Will Emerges - Mid April 2015

Shortly afterwards, Magdy and Youssef instructed Simpson Freed Lawyers with the 2001 will, identifying them both as beneficiaries. On 15 April 2015, Mr Corbett-Jones of Simpson Freed Lawyers wrote to Shad Partners, providing them with a copy of that will and asking whether Shad Partners held any later wills.
On 17 April, Bishoy telephoned Mr Liondos, who told Bishoy that Mr Liondos had been provided with a copy of Nadia's 2001 will and that he therefore had felt obliged to provide Simpson Freed Lawyers with a copy of Nadia's 2014 will. Bishoy had been hard to contact. Mr Liondos had already sent a copy of the will to Simpson Freed Lawyers, because Bishoy had not returned his calls.
But on 20 April 2015, Bishoy initiated some instructions that surprised Mr Liondos. Bishoy asked Mr Liondos to prepare a contract for sale of Nadia's property "as soon as possible". Bishoy said that he had found a purchaser for the property and stressed the need "to act urgently". Mr Liondos hesitated and decided to discuss the matter with Mr David Shad before calling back. Mr Liondos' hesitated partly because probate of Nadia's will had not yet been granted. They foresaw a possible challenge to the 2014 will, whilst Georgette was attempting to have the South Strathfield property liquidated and the proceeds distributed to her.
Mr Shad and Mr Liondos discussed what to do next. They decided it would be best, in the circumstances, if Shad Partners did not act on the sale of Nadia's property. Mr Liondos communicated this decision back to Bishoy by telephone. This provoked the following hostile response from Bishoy: Mr Liondos: "We would prefer not to act on the sale in the circumstances." Bishoy: "After 27 years you do this?" Mr Liondos: "This matter I am sure is very different from other matters in which we acted. As I had prepared the will at there was a potential dispute regarding the will, there may now be a conflict of interest and other issues arising from our acting."
After this 20 April 2015 meeting, Georgette and Bishoy elevated the dispute about Shad Partners acting. They had a meeting with Mr George Shad, the firm's principal, on 29 April 2015. Mr Liondos was called into that meeting. He says, and I accept, that Georgette and Bishoy assured him in Mr George Shad's presence that they did not have "any problem" with anything that he had done in execution of their recent instructions.
But that was not the end of Mr Liondos' contact with Bishoy and Georgette. On 30 April 2015, Bishoy telephoned Mr Liondos and sought to reinforce his version of recent events with Nadia. He said to Mr Liondos, "Nadia was not forced to sign the power of attorney or the will. She said to cross out the parts that were deleted in the power of attorney, there was no limitation and she was alert." In response, Mr Liondos was non-committal. He said he would have to check with Mr George Shad before acting upon this conversation. He did not take any immediate action.
A little over six weeks after this last contact with Bishoy, Mr Liondos decided to open a file in relation to the instructions that had resulted in Nadia's execution of the will and power of attorney. Mr Liondos accepted that opening a file so long after the event, and when in substance the firm's actions upon the instructions given were complete, was irregular. He was cross-examined about it and gave his explanation for taking this course. He explained that the firm did not have a practice of opening files for one-off small matters, like Powers of Attorney and wills, which were usually just kept by the firm in a "miscellaneous file". But as happened with such miscellaneous matters from time to time, this matter had later escalated through correspondence and meetings. For that reason, he made a decision to create a separate file.
Mr Liondos' assistant, Pauline, completed an instructions checklist to open the file on the firm's electronic database. Those instructions are not remarkable, and are generally consistent with what Mr Liondos appreciated of the instructions given to him. The instructions checklist is headed "Instructions Checklist - Will, Power of Attorney and Enduring Guardian". The client was identified as "Nadia Mekhail" at her home property. The executor was described as "Georgette Hana", the beneficiary as "Georgette Hana", and the alternative beneficiary, as indeed the will provided, as "son in law - Adel Hana".

[34]

Applicable Legal Principles

The applicable legal principles may be shortly stated. The test of testamentary capacity is whether the testator was of sound disposing mind when the will was made. In Banks v Goodfellow (1870) LR 5 QB 549 at 565, Cockburn CJ states the test for testamentary capacity, being "the degree of mental power which should be insisted upon", in the following terms: "…It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made."
The test has been long approved in high authority in Australia. In Timbury v Coffee (1941) 66 CLR 227, Rich ACJ, at 280, stated the relevant factors of a testator's competency as follows: "…The factors of competency are that the party must know what he is about, have sense and knowledge of what he is doing, and the effect his disposition will have, knowledge of what his property was, and who those persons were that then were the objects of his bounty (Frere v. Peacocke (1846) 1 Rob. Eccl. 442, at pp. 452-454;[163 ER 1095, at p. 1099])."
The party propounding the instrument carries the onus to establish testamentary capacity. In the event that substantial doubt is cast on the testator's competency, the Court must find the will is invalid unless it can be satisfied that the testator was of sound mind, memory and understanding at the time of execution: Bailey v Bailey (1942) 34 CLR 558.
In Bailey v Bailey (1924) 34 CLR 558, his Honour Justice Isaacs outlined a number of propositions which arose from the authorities, and stated at 570: "(1) The onus of proving that an instrument is the will of the alleged testator lies on the party propounding it; if this is not discharged the Court is bound to pronounce against the instrument (Baker v. Batt (I838) 2 Moo. P.C.C. 317, at. pp. 319-320; Bremer v. Freeman (1857) 10 Moo. P.C.C. 306, at p. 357; Durnell v. Garfield (1844) 1 Rob. E. 5)"
In respect of the onus of proof, in Bull v Fulton (1942) 66 CLR 295, Williams J stated, at 343: "Usually the evidence is such that the question upon whom the onus of proof lies is immaterial, but it is clear to my mind that, although proof that the will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator's competency, then the court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it."
The party propounding the will must satisfy the Court of capacity to the civil standard of proof. Mere residual doubt as to capacity is not sufficient to defeat a plaintiff's claim to probate. The doubt cast as to capacity must be substantial enough to preclude a belief that the document propounded is the will of a testator of sound mind, memory and understanding. The joint judgment of Dixon CJ, Webb and Kitto JJ in Worth v Clasohm (1952) 86 CLR 439 at 453, states: "A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propended is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution."
When considering the question of validity of a will, the Court must distinguish between testamentary capacity and a testator's wisdom or fairness. Hodgson JA in Romano v Romano & Anor [2004] NSWCA 37 at [48] cited the following statement on this subject that Gleeson CJ (as his Honour then was) made in in Re Estate of Griffith: Easter v Griffith (1995) 217 ALR 284 at 291 ("Griffith"): "Where an alleged delusion concerns a fact, or state of affairs, bearing upon a judgment as to the moral claim one person has upon another's bounty, and the question of its falsity is capable of objective determination, the task of the court is relatively straightforward. However, there may be cases in which one person's estimation of another's claims may seem harsh and unwarranted, and perhaps even unnatural, but it is impossible to assign a reason for that, or to point to any false belief. Testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of most ordinary members of the community, but that does not make the will invalid."
A solicitor's duties for the taking of instructions for preparing or witnessing the execution of a will are well-established. Hallen AsJ (as his Honour then was) in Romascu v Manolache [2011] NSWSC 1362 at [169] helpfully isolated relevant statements on solicitor's practice from Santow J's judgment in Pates v Craig; The Estate of Cole (28 August, 1995, unreported). In summary, where testamentary capacity is in doubt, at the very least, a solicitor should ask the testator questions to ascertain the testator's basic understanding, to gain reasonable assurance regarding testamentary capacity. Santow J outlined three propositions to guide the solicitor's process, citing Mason and Handler's Wills, Probate and Administration Service NSW (Butterworths) at [10,019] (now (Mason and Handler's Succession Law and Practice NSW) (Butterworths)). In summary, Santow J said the following in Pates v Craig; The Estate of Cole (NSWSC, 28 August, 1995, unreported) (Pates) about the solicitor's duty: 1. The solicitor should attend on the testator personally and fully question them to determine capacity - where the questions should go to whether the testator understands that he or she is making a will and the effects of the will, the extent of the property to be disposed, and the claims which he or she should give effect to; 2. One or more persons should be present, as chosen by the solicitor with regard to their calibre as a witness should testamentary capacity be challenged. Where possible, this witness should be a medical practitioner, preferably the treating doctor of the testator, and who is familiar with the testator; 3. A detailed written record should be made by the solicitor, which includes the results of the examination recorded by the medical practitioner and the notes made by those present. 4. Once the above processes are followed, upon careful consideration of the circumstances, should the solicitor not be satisfied that the testator does not have capacity, he or she should proceed and prepare the will. As good practice, the solicitor who took instructions should prepare the will and be present upon its execution. Detailed notes should be taken at every stage of the process.
Santow J suggested in Pates that if real doubt remains, following the solicitor's consideration of the above factors, further steps may be desirable, including a more thorough medical appraisal.
As allegations of undue influence and insane delusions are made in this case, two recent restatements of authority in this area should be noted. The first, in relation to the relationship between suspicious circumstances, undue influence and testamentary capacity, is Meagher JA's comprehensive discussion in Tobin & Anor v Ezekiel & Anor (2012) 83 NSWLR 757 at 770 ([43] - [54]) ("Tobin v Ezekiel") as follows: "43. The appellants' first argument, as the primary judge observed, raises for consideration the relationship between knowledge and approval of the contents of the will, which the proponent must establish, and undue influence which is a defence to be made out by the opponent. More broadly it raises the inter-relation of suspicious circumstances, undue influence and testamentary capacity which, as Sopinka J observed in Vout v Hay [1995] 2 SCR 876 at 885, has perplexed both courts and litigants since Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089. 44. The starting point is that the onus of proof lies upon the proponent of the will to satisfy the court that it is the last will of a "free and capable" testator: Barry v Butlin at 482; 1092; Fulton v Andrew [1875] LR 7 HL 448 at 461; Tyrrell v Painton [1894] P 151 at 157; Bailey v Bailey [1924] HCA 21; 34 CLR 558 at 570;Timbury v Coffee [1941] HCA 22; 66 CLR 277 at 283. To establish that a document is the last will, it must be proved that the testator knew and approved its contents at the time it was executed so that it can be said that the testator comprehended the effect of what he or she was doing: Barry v Butlin at 484; 1091; Cleare v Cleare (1869) LR 1 P & D 655 at 657-658; Atter v Atkinson (1869) LR 1 P & D 665 at 668, 670; Nock v Austin [1918] HCA 73; 25 CLR 519 at 522, 528. 45. If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity. Those circumstances shift the evidential burden to the party propounding the will to show that the testator was of "sound disposing mind": Waring v Waring (1848) 6 Moo PC 341 at 355; 13 ER 715 at 720; Sutton v Sadler (1857) 3 CB NS 87 at 97-98; 140 ER 671 at 675-676; Smith v Tebbitt (1867) LR 1 P & D 398 at 436; Bull v Fulton [1942] HCA 13; 66 CLR 295 at 343; Kantor v Vosahlo [2004] VSCA 235 at [49], [50]. That doubt, unless resolved on a consideration of the evidence as a whole, may be sufficient to preclude the court being affirmatively satisfied as to testamentary capacity: Bull v Fulton at 299, 341; Worth v Clasohm [1952] HCA 67; 86 CLR 439 at 453. 46. Upon proof of testamentary capacity and due execution there is also a presumption of knowledge and approval of the contents of the Will at the time of execution. That presumption may be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the will expresses the mind of the testator. In Thompson v Bella-Lewis [1997] 1 Qd R 429 McPherson JA (dissenting in the result) said (at 451) of the circumstances able to raise a suspicion concerning knowledge and approval that, except perhaps where the will is retained by someone who participated in its preparation or execution or who benefits under it, "a circumstance must, to be accounted 'suspicious', be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator's death". See also McKinnon v Voigt [1998] 3 VR 543 at 562-563; Robertson v Smith [1998] 4 VR 165 at 173-174. Once the presumption is displaced, the proponent must prove affirmatively that the testator knew and approved of the contents of the document: Barry v Butlin at 484-485; 1091; Cleare v Cleare at 658; Tyrrell v Painton at 157, 159; Nock v Austin at 528. 47. Evidence that the testator gave instructions for the will or that it was read over by or to the testator is said to be "the most satisfactory evidence" of actual knowledge of the contents of the will: Barry v Butlin at 484; 1091; Gregson v Taylor [1917] P 256 at 261; Re Fenwick [1972] VR 646 at 652. What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example in Wintle v Nye [1959] 1 WLR 284 the relevant circumstances were described (at 291) as being such as to impose "as heavy a burden as can be imagined". Those circumstances may include the mental acuity and sophistication of the testator, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the testator, and whether there has been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction: Fulton v Andrew at 472; Tyrrell v Painton at 160. That requires that it be affirmatively established that the testator knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator: Tyrrell v Painton at 157, 160; Nock v Austin at 523-524, 528; Fuller v Strum [2001] EWCA Civ 1879; [2002] 1 WLR 1097 at [33]; Dore v Billinghurst [2006] QCA 494 at [32], [42]. 48. In this context the statements prescribing "vigilance" and "careful scrutiny" and referring to the court being "affirmatively satisfied" as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof: see Worth v Clasohm at 453. What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters: Kantor v Vosahlo at [22], [58]; Dore v Billinghurst at [44]. They also recognise that deciding whether a document is indeed a person's last will is a serious matter, so any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 or, now, s 140(2) of the Evidence Act 1995. 49. It is then necessary to consider the relationship between the requirement that the will be that of a "free" as well as "capable" testator and the principles relating to the proof of undue influence. In this context undue influence means that the testator has been coerced into doing what he or she did not desire to do. What must be established is that execution was obtained by the exercise of "the power unduly to overbear the will of the testator": Wingrove v Wingrove (1885) LR 11 PD 81 at 82-83; Baudains v Richardson [1906] AC 169 at 184-185; Craig v Lamoureux [1920] AC 349 at 357; Bailey v Bailey at 571-572; Bridgewater v Leahy [1998] HCA 66; 194 CLR 457 at [62] fn 55; Trustee for the Salvation Army (NSW) Property Trust v Becker [2007] NSWCA 136; 14 BPR 26,867 at [60]-[64]. Where the will has been executed by a person of competent understanding and, judged by the circumstances of execution, "apparently a free agent", the burden of proving that the will was executed under undue influence is on the party who alleges it: Boyse v Rossborough (1857) 6 HL Cas 2 at 49; 10 ER 1192 at 1211; Parfitt v Lawless (1872) LR 2 P & D 462 at 469; Craig v Lamoureux at 356-357; Bailey v Bailey at 571-572; Trustee for the Salvation Army (NSW) Property Trust v Becker at [76]. 50. In Boyse v Rossborough it was alleged that the will of the testator, Mr Colclough, had been obtained by undue influence or fraud of his wife. Mr Colcough had sent for his solicitor, in the absence of his wife given instructions for the preparation of the will and later executed it in the presence only of his solicitor and another disinterested witness. In those circumstances Lord Cranworth said (at 50; 1212) that the burden was on those challenging the will to show "that though what was done bore the semblance of being the voluntary act of Mr Colclough, yet it was an act which he was induced to perform under the influence of terror or fraud". 51. Circumstances which may suggest undue influence or fraud will often also give rise to a suspicion or doubt as to the testator's knowledge and approval of the contents of the will. Tyrrell v Painton was such a case. There it was said by each of the members of the Court (at 157, 159) that those propounding the will must prove affirmatively knowledge and approval before the onus is cast on those who oppose the will to prove undue influence or fraud. For that reason it is appropriate, in the absence of good reason, to consider any issue as to suspicious circumstances and proof of knowledge and approval or testamentary capacity before addressing any ground of objection on which the opponent bears the onus: see the discussion in McKinnon v Voigt at 551,557, 561-562. However, the principle which requires that the suspicion or doubt be cleared away is directed only to requiring that affirmative proof. It does not also require that any remaining suggestion of undue influence be disproved: Low v Guthrie [1909] AC 278 at 281-282; Nock v Austin at 528; Vout v Hay at[29]-[30]. At the same time, the absence of any allegation of undue influence or fraud does not prevent the opponent putting knowledge and approval in issue and vigorously challenging the veracity of those propounding the will: Wintle v Nye at 294. 52. In Boyse v Rossborough Lord Cranworth (at 44-45; 1209) distinguished between a testator who knows and approves the contents of the will and executes it of his or her own volition and a testator who knows and approves the contents of the will but executes it as a result of coercion or fraud. To illustrate the difference he gave this example (at 44-45; 1209): "If I meet a man in the street, and he puts a pistol to my breast, and threatens to shoot me if I do not give him my purse, and to save my life I yield to his demand; or if a neighbour, meaning to steal my horse, asks for the loan of it, stating that he wants it in order to go to market, and trusting to this representation I deliver it to him, and then he rides off and sells it,-in both these cases it was my will to hand over the purse and the horse; but the law deals with the case as if they had been obtained against my will, my will having been the result in one case of fear, and in the other of fraud. The same principles must guide us in determining whether an instrument duly executed in point of form, so far as legal solemnities are concerned, is or is not a valid will." 53. That analysis will not apply to all instances involving the exercise of undue influence or fraud. For example, coercion may result in the testator signing an instrument whose contents are to some extent unknown. Or the testator may be mistaken as to the contents of the will as a result of fraud. In such cases the circumstances may also give rise to a suspicion or doubt as to knowledge and approval and the satisfaction of the requirement of affirmative proof would likely disprove the suspected undue influence or fraud. In the remaining cases, notwithstanding that the court may be satisfied that the testator appreciated what he or she was doing, there will still be a live issue as to whether what was done was as a result of coercion or fraud. 54. In the several provinces of Canada, other than Quebec, the law in regard to testamentary capacity, undue influence, fraud, coercion and the formalities attendant on the execution of wills is governed by English statutes re-enacted with slight changes and by English usage and decisions: Rodney Hull et al,Macdonell, Sheard and Hull on Probate Practice, 3rd ed (1981) Carswell at 14. In a passage cited with approval by Sopinka J in Vout v Hay at [29], Crocket J, writing for the Court in Riach v Ferris [1934] SCR 725 at 736 [16] described the inter-relation between suspicious circumstances, knowledge and approval and undue influence as follows: "Assuming that in the case in behalf of a plaintiff seeking to establish the validity of a will, there may be such circumstances of apparent coercion or fraud disclosed as, coupled with the testator's physical and mental debility, raise a well-grounded suspicion in the mind of the court that the testator did not really comprehend what he was doing when he executed the will, and that in such a case it is for the plaintiff to remove that suspicion by affirmatively proving that the testator did in truth appreciate the effect of what he was doing, there is no question that, once this latter fact is proved, the onus entirely lies upon those impugning the will to affirmatively prove that its execution was procured by the practice of some undue influence or fraud upon the testator. This, it seems to me, is the real effect of the three cases upon which the learned trial judge relied, and is precisely the principle stated by Lord Chancellor Cranworth in Boyse v Rossborough and distinctly approved by the Judicial Committee of the Privy Council in Craig v Lamoureux ... in which Barry v Butlin, Fulton v Andrew and Tyrrell v Painton were all considered ..."."
The relevant law relating to mistaken beliefs and delusions is summarised by Macfarlan JA after a comprehensive analysis of the authorities in Carr v Homersham [2018] NSWCA 65, as follows: "113. I consider that these authorities support the following propositions: (1) It is insufficient to demonstrate the absence of testamentary capacity to prove that the deceased acted on a material mistaken belief in making his or her will. (2) For a mistaken belief to rise to the level of a "delusion" which affects the validity of the will, there must at least be a high degree of irrationality in the belief and ordinarily evidence will be required that there has been an attempt to reason the deceased out of the belief, such that the deceased's adherence to it suggests that the deceased has a mental disorder or deficiency precluding the deceased from comprehending and appreciating "the claims to which he [or she] ought to give effect" (Banks v Goodfellow at 565). (3) Whether or not there is such evidence, generally the circumstances must be such that it can be inferred that the deceased was wedded to the belief irrespective of its truth. If that is not the case, the belief is likely to be no more than a mistaken view, the holding of which cannot be inferred to reflect on the deceased's mental competence."
With this statement of legal principle the Court can now analyse the plaintiffs' claims.

[35]

Consideration

The plaintiffs have made out a case that suspicious circumstances attended the making of Nadia's will of 12 December 2014. Although the will appears rational on its face and the Court accepts that it has been proved to be duly executed and there is therefore presumption that Nadia was mentally competent, circumstances have been identified which raise a doubt as to the existence of testamentary capacity. In the Court's view the evidential burden has shifted in this case to the defendant/cross-claimant, Georgette.
Principal among the suspicious circumstances is the fact that Nadia, Georgette and Bishoy led Mr Liondos to believe that they had a relationship of mother, daughter and grandson and did not disabuse him of those relationships in a way that would allow him to give the complete advice to Nadia that he would otherwise have given.
Another suspicious circumstances is said to be that this conduct misleading Mr Liondos led to the will falsely describing Georgette as Nadia's daughter and Adel Hana as her son-in-law.
Although the will is rational on its face, and has been proved to be duly executed, the presumption of mental competence is displaced because of these suspicious circumstances. Other suspicious circumstances were identified. But in my view these two are quite sufficient to require Georgette to take up the burden of proving that Nadia's will of 12 December 2014 was that of a free and capable testator. In my view, the Court's findings in the narrative of facts are sufficient to comfortably establish that Nadia knew and approved the contents of that will and comprehended the effect of what she was doing.
The plaintiffs also put in issue that Nadia's knowledge and approval of the contents of the will at the time of execution by suggesting that she did not really appreciate that this document was a will or was different from the many documents she had signed in a hospital context in times just before mid-December.
But Georgette's case has rebutted the doubts that have been raised in my view. Here, Nadia did give instructions for the will. Although they were conveyed through Bishoy, which itself raised a doubt as to whether he or Georgette were their author, the instructions were clearly adopted by Nadia in the meeting with Mr Liondos, a matter about which he did not make any mistake in my view. Questions have been raised about the change of instruction about the gift over but the will is consistent with what is in Mr Liondos' notes of what passed at the meeting.
But when vigilance and careful scrutiny are applied many other circumstances show that Nadia had testamentary capacity and knew and approved the contents of the will.
Nadia was informed about what was in the will and that Georgette was being described in it as her daughter. She knew and approved this. She did so, in my view, because she regarded that as a practical description of the relationship. She had acquiesced in such descriptions before as Mr Taylor, Dr Toohey and others have described. It ultimately was not that remarkable that she did so in front of Mr Liondos. Her doing so was not inherently suspicious because, in my view, she was comfortable with the description.
Although Georgette did not go out of her way to disabuse Mr Liondos about the true relationship, in my view, Nadia was quite comfortable to have Georgette described that way. And because of Nadia's assent to that description, the will, in substance, becomes rational. This testator was giving her property to someone that she regarded as a person in the role of a daughter.
Even discounting any evidence from Bishoy and Georgette, there is nothing in what Mr Liondos says that gives the slightest basis for believing that Nadia was effected by the drugs that she was on or that she had no appreciation of the kind of document she was signing. Even the fact that Nadia had described other people in hospital documents as her daughter do not detract from this conclusion in my view.
Even the Court's findings that Mr Liondos would have taken a different path had he been aware of the true facts does not displace the Court's confidence in the will. True at one level it is troubling that the Coptic Orthodox Church and Raghib's nephews are left out of the will entirely. But in my view this is not evidence of lack of rationality or Nadia's lack of comprehension. Mr Liondos drew the potential for other claims on her bounty to Nadia's attention. He drew prior wills to her attention and there is some evidence that Nadia through personal gifts was trying to provide something for her two nephews in Australia, who she had seen recently and could not, in my view, have forgotten given that her memory was intact.
It now remains to examine potential vitiating factors.

[36]

The Potential Vitiating Factors - Fraud, Delusions and Undue Influence

The plaintiff's bear the onus of establishing vitiating factors of fraud, delusions and undue influence. Neither the fraud case nor the case of delusions is strong.
Fraud. The main problem with the plaintiffs' fraud case is that on the Court's findings Nadia was well aware that Georgette was not actually her daughter and she was not deceived or mistaken about any part of her will. And the fact that Mr Liondos was mistaken does not make out a fraud case.
Delusions. Although Georgette played upon Nadia's superstitious side Nadia did not have a distorted view of reality and was not suffering from delusions that might have impaired her testamentary capacity.
Undue Influence. There is no direct evidence of Georgette coercing the deceased to make her will the way she did. But there are a number of indirect signposts that the plaintiffs say indicate that such coercion may well have taken place. Principal among these is the fact that Nadia knew that the will was wrong in describing Georgette as her daughter. Strong minded a person that Nadia clearly was, she somehow did not feel it necessary to point out this incorrect fact of fundamental importance to Mr Liondos.
Why did she not point it out? It may be, because she wasn't asked by Mr Liondos. The plaintiffs argue an underlying reason why she did not was that Georgette's influence prevented her from doing so. Georgette's presence in the room is said to be more significant for this reason. Nadia may have been freer to speak if Georgette had not been there. Mr Liondos was not alerted to the need to ask Georgette to leave the room because the misdescription of Georgette as the deceased's daughter and this desensitised him to the need to give Nadia more independence and privacy in his communications with her, as he judged would be more appropriate had he known the full picture.
But Nadia did not point out Georgette was not her biological daughter in my view because she was comfortable with the description as a natural summary of their relationship. Nadia's silence is not evidence of coercion.

[37]

A Note in Conclusion on the Probate Issues

In the result, the Court has concluded that Nadia was of sound mind and knew she was executing a will, understood her estate, understood who was benefiting under the will and who could comprehend the claims on her bounty. The Court has concluded that she had testamentary capacity when she executed her will on 12 December 2014 and that she was not suffering delusions at the time nor was she coerced into signing the will, as the law of probate applies those concepts.
But it is important to note that the Court is not making a judgment in these proceedings about whether Nadia properly assessed the relative claims upon her testamentary bounty in conformity with values that reflect accepted community standards. As Gleeson CJ so aptly said in Griffith, "testamentary capacity is not reserved for people who are wise, or fair, or reasonable".
Nadia was undoubtedly influenced to change her will by her close contact with Georgette and Bishoy in late 2014. In my view, they pursued a number of strategies to achieve the result that she would make a new will in Georgette's favour. Georgette in particular persistently misinformed Nadia about Mary and about Magdy and Youssef and their wives, which had the effect of disrupting Nadia's relationship with them. This aided her ultimate objective of having a will made in her favour.
Before the will was made, one of Bishoy's roles was to ensure that Nadia made a new will. He did that efficiently by pushing the idea with Nadia, even at RPA in late November 2014. But after the will was made, his role became one of a blocker. He appreciated that Magdy and Youssef needed to be kept away from Nadia for fear they might persuade her to change her mind.
But this outcome was not without real personal benefit to Nadia, who had a deep antipathy to nursing homes and wanted to be cared for at home. And Georgette thoroughly committed herself to doing this for Nadia's immense benefit. But it is not to be forgotten that history unfolded with Nadia in Georgette's sole care because Georgette had deterred other family aid and assistance to Nadia. In Georgette's eyes, such assistance came at a price to her: it brought with it the risk of Nadia changing her will.
But whether Nadia had capacity to make a will in late January, early February 2015 and what she might have done with that capacity can only be a matter of speculation, in which the Court need not engage. The pleaded issues relate to Nadia's testamentary capacity on 12 December 2014 and related matters. Georgette's wider conduct is not what this case is about.

[38]

The March 2015 Transfer

The Strathfield South property was the deceased's principal asset. She held it as sole registered proprietor after her husband's death in 2012. But in March 2015, only weeks before she died, Nadia is said to have sought to transfer the property to Georgette for nominal consideration. Georgette's case was that Nadia expressly desired to make this gift to her in anticipation of the operation of the provisions of the December 2014 will upon the deceased's death. Magdy and Youssef challenge the gift as improvident and as having been effected by an improper use of the deceased's power of attorney. They claim in the proceedings that the Strathfield South property is now held on constructive trust for the estate and the transfer to Ms Hana should be set aside.
If the plaintiffs' probate case had succeeded then, the Court concludes that the March 2015 Transfer would have been able to be set aside. But the plaintiffs' probate case has not succeeded, so there may now be little point in setting aside the March 2015 Transfer. But some analysis of this part of the case is still useful.
The PA Act does not confer general authority on an attorney to give gifts or confer benefits to himself or herself and a power to confer such benefits must be expressly stipulated in the power of attorney: PA Act, ss 11 and 12. The enduring power of attorney that Nadia signed on 12 December 2014 and accepted by Georgette did not contain such a power of conferring benefits on the attorney. In my view, the power of attorney did not authorise Georgette to use the power to transfer the South Strathfield property to herself as she purported to do in the Real Property Act 1900 transfer lodged on 24 March 2015.
The Court has concluded that Nadia did not expressly authorise this gift to Georgette. Georgette's case is that her evidence that there was a gift is supported by the fact that Nadia authorised her to have access to the safety deposit box where the Certificate of Title to the South Strathfield property was located. But in my view that does not prove a gift. It is quite logical that as Nadia as not able to leave her bed any longer that she would start to give instructions to Georgette as to where her valuables were located so that her estate could be properly administered after her death.
In my view, the transaction was improvident and unconscionable. Simply by reason of Nadia being in Georgette's care and being a person wholly dependent upon her for communication with the outside world a relationship of high dependency and vulnerability was created which bespeaks a fiduciary relationship. There could be no conceivable argument to justify this gift transfer before Nadia's death on the basis it would somehow benefit Nadia. No benefit to Nadia was sought to be identified, because one did not exist. If it is required this transaction would be set aside.
Other claims were made to set aside dealings with smaller amounts of estate property. But these too probably no longer need to be decided.
Finally, inferences can be drawn about what happened behind the scenes between Georgette and Nadia from Georgette's behavior with respect to Nadia's property during March 2015. Georgette seemed quite oblivious to the possibility that executing this transaction before Nadia's death might not be in Nadia's best interests. It shows an attitude of mind that, in my view, did not just suddenly appear in Georgette in March 2015, but an attitude which is likely to be indicative of her own dealings with Nadia in December 2014. The March 2015 Transfer shows that Georgette was prepared to ignore Nadia's interests when they conflicted with Georgette's self-interest. It is not difficult to infer that Georgette could have similarly disregarded Nadia's interests by keeping Youssef, Magdy and Mary away from Nadia.

[39]

The Family Provision Claims

The alternative family provision claims that Magdy and Youssef bring may now be shortly considered. In my view, neither claim is persuasive and both should be dismissed.
The test of whether provision should be made in any case in favour of an eligible person is set out in Succession Act, s 59(1)(c): "(1) The Court may, on application under Division 1, make a family provision order in relation to the estate of a deceased person, if the Court is satisfied that: … (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both."
There are many judicial statements summarising the operation of what is said to be a two-step provision. For example in Singer v Berghouse (1994) 181 CLR 201 at 209, the High Court of Australia said of the test under the previous legislation: "The first question is, was the provision (if any) made for the applicant "inadequate for [his or her] proper maintenance, education and advancement in life"? The difference between "adequate" and "proper" and the interrelationship which exists between "adequate provision" and "proper maintenance" etc. were explained in Bosch v Perpetual Trustee Co8. The determination of the first stage in the twostage process calls for an assessment of whether the provision (if any) made was inadequate for what, in all the circumstances, was the proper level of maintenance etc. appropriate for the applicant having regard, amongst other things, to the applicant's financial position, the size and nature of the deceased's estate, the totality of the relationship between the applicant and the deceased, and the relationship between the deceased and other persons who have legitimate claims upon his or her bounty. The determination of the second stage, should it arise, involves similar considerations. Indeed, in the first stage of the process, the court may need to arrive at an assessment of what is the proper level of maintenance and what is adequate provision, in which event, if it becomes necessary to embark upon the second stage of the process, that assessment will largely determine the order which should be made in favour of the applicant. In saying that, we are mindful that there may be some circumstances in which a court could refuse to make an order notwithstanding that the applicant is found to have been left without adequate provision for proper maintenance. Take, for example, a case like Ellis v Leeder9, where there were no assets from which an order could reasonably be made and making an order could disturb the testator's arrangements to pay creditors."
Whether the two-step test operated with the same full vigour in the current legislation has been recently discussed in the Court of Appeal: Evans v Levy [2011] NSWCA 125. But such considerations are not an issue in this case.
Other authorities have explained in more detail the meaning of the words in the legislation "adequate", "proper", and "advancement in life". Some of these authorities have been conveniently collected in the decision of Hallen AsJ in Drury v Smith [2012] NSWSC 1067 at [153] - [155], [158] and [160].
Magdy and Youssef's family provision claims are founded upon a contention that they are each an "eligible person" within the meaning of Succession Act, s 57(e). They each claim that they were "a person…(i) who was at any particular time wholly or partly dependent on the deceased person…and (ii) who…at that particular time, or any other time, a member of the household at which the deceased person was a member".
Only one of the elements of Succession Act, s 57(e) is seriously in issue. In my view, the Court's previous findings sufficiently establish that both Youssef and Magdy were members of Nadia's household respectively. Youssef and his family lived there with Nadia from about March to August 2008. Magdy and his family lived there with Nadia between February and April 2012. The Court's findings above are sufficient for them to satisfy that element of Succession Act, s 57(e).
But three other issues stand in the way of the family provision claims succeeding. One is whether they were, at the time that they lived in Nadia's household or at any other time, "dependent on" Nadia. A second is, even if Youssef and Magdy establish they are eligible persons, whether there are Succession Act, s 59(1)(b) factors warranting the making of their applications. A third is whether the applications were brought within time. The Court will deal with each of these in turn.
(1) Succession Act, s 57(e)(i) Dependence. Youssef and Magdy's cases are that their residence with Nadia and Raghib shows their financial dependence upon Raghib and Nadia and their dependence is also to be inferred from the efforts that were made to bring them to Australia. There are a number of problems with this argument. First, both Youssef and Magdy and their wives had very warm relationships with Nadia and Raghib and did care for and support Nadia and Raghib when they were living in Raghib and Nadia's household. It is difficult to characterise the relationship as one of "dependence" by Youssef or Magdy on Raghib or Nadia when there was an informal mutual exchange of accommodation for active care and support back by the younger couples to the older couple. Though not a legally binding arrangement, it was nevertheless mutually beneficial with each giving respectfully to the other to a common advantage. That was the purpose of the carer's visas on which Magdy and Youssef came to Australia.
Succession Act, s 57(e)(i) requires that a person be "dependent on the deceased person". Neither Youssef nor Magdy could readily establish that they were dependent upon Nadia, as distinct from Raghib. The inference is equally available that, if dependent on anyone, Youssef and Magdy were dependent upon Raghib. One would have to analyse Raghib and Nadia's relative financial resources, in 2008 and 2012, which has not been done and could not be done at this stage, before inferring that they were dependent upon Nadia, rather than Raghib.
Moreover, it is difficult to make an adequate judgment about dependency for periods as little as one or two months (for Magdy) or five to six months (for Youssef), which are the maximum periods about which dependency can be debated in this case.
Finally, bringing Youssef and Magdy and their families out from Egypt does not, in my view, qualify as dependency. Magdy and Youssef and their families appear to have funded their own passages to Australia. Nadia's assistance to them is better to be explained by Nadia's pride in her new country and desire to assist other members of her extended family in Egypt to join her in Australia as an act of facilitation of Australian Government assistance to them, rather than creating a relationship of dependency.
In my view, neither Youssef nor Magdy qualify as "dependent" on Nadia, even within the broad scope given to those words by the Courts: see Petrohilos v Hunter (1991) 25 NSWLR 343 at 346-347 and Williams v Legg (1993) 29 NSWLR 687.
(2) Do Succession Act, s 59(1)(b) Factors Exist here? The Court has not found either Youssef or Magdy to be an "eligible person" on the basis that they cannot establish that they had been dependent members of Nadia's household: Succession Act, s 57(1)(e).
But had that criterion of eligibility been made out, the requirements of Succession Act, s 59(1)(b) would be engaged in this case. It is useful for the Court briefly to examine whether, having regard to all the circumstances of the case (both past and present), there would, in this case, have been "factors which warrant the making of the application" by Youssef or Magdy. If there are no such factors, then the Court would, in any event, have had to refuse to proceed on this basis of eligibility.
Succession Act, s 59(1)(b) applies only to certain classes of eligible persons who are not generally regarded as natural objects of testamentary recognition of a deceased person. Eligible persons under Succession Act, s 57(e) are one of these classes. This suggests that the "factors" referred to are factors which, when added to facts which render the applicant an "eligible person", also give the applicant the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased person: see Re Fulop (deceased) (1987) 8 NSWLR 679 at 681 per McLelland J and Churton v Christian (1988) 13 NSWLR 241; [1988] NSWCA 23; at 252E. Where persons affected by Succession Act, s 59(1)(b) have the circumstances of their relationship with the deceased set out, it can sometimes immediately be seen that they are persons who would be regarded by most observers as natural objects of testamentary recognition: Churton v Christian (1988) 13 NSWLR 241; [1988] NSWCA 23 at 252E.
Here, in my view, Succession Act, s 59(1)(b) "factors" do not exist to warrant giving Youssef or Magdy the status of a person who would generally be regarded as a natural object of testamentary recognition by the deceased. There are several reasons for this.
First, although the Court prefers their account of the care and attention they and their wives gave to Nadia to the accounts of Georgette and Bishoy, Nadia gave much back to them during her lifetime, from which they benefitted immensely. She made concentrated efforts to have them migrate from Egypt when Raghib was ill. She and Raghib each provided them with accommodation for short periods in Sydney, which, in my view, was the substantial equal of any benefits their care conferred on Raghib and Nadia. And Nadia and Raghib helped them launch new lives in Australia.
Second, Georgette was instrumental in driving both Youssef and Magdy away from Raghib's and Nadia's home. It was not Youssef and Magdy's fault that their direct household relationships with Nadia did not continue for longer. But the Court must assess the facts as they are and those periods of living in the same household with Raghib and Nadia were very brief.
Third, Youssef and Magdy were diligent and affectionate nephews, who tried to offer their assistance as much as possible to Nadia. And they did attend upon her at a number of hospitals and at her home in her last months of life. But that is just what would be expected of nephews in their position. In my view, none of that conduct satisfies the legislative requirement that there be factors warranting an award in their favour.
(3) Timing of the Applications. Succession Act, s 58(2) requires family provision applications to be filed within 12 months of the death of the deceased. Both Youssef's and Magdy's applications were out of time. But the Court has a discretion to extend time on the basis of commonly applied relevant considerations that have recently been restated in Verzar v Verzar [2014] NSWCA 45 at [23] - [25].
Here, the applications were only a few months over time and probate has not been granted. But the applications are so weak, for the reasons already stated, that the timing of the applications may be another reason to dismiss them, were they not otherwise to be dismissed.
Finally, the Court had evidence of Magdy and Youssef's financial positions and that of the other three overseas nephews mentioned in the 2001 will. But in light of the conclusion the Court has reached in relation to the eligible person factors and time issues, it is not necessary to further explore that evidentiary material in these reasons. To do so would unnecessarily lengthen what is an already a substantial judgment.

[40]

Conclusions and Orders

This judgment does not address issues of costs. The Court's findings will probably trigger argument about costs, and if they are to be awarded, how they should be borne.
The Court can perhaps anticipate Magdy and Youssef's potential arguments that, based on the Court's findings, Nadia's (and Georgette's) conduct in not telling Mr Liondos on 12 December 2014 that Georgette was not her biological daughter has helped occasion this litigation. Georgette may well dispute this.
The guiding principles that apply in such circumstances are well established. Where the testator has been the cause of probate litigation, the cost of unsuccessfully opposing a grant of probate as well as the costs of the successful party, may well be paid out of the estate: Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698 at 705 per Powell J, and Zang v Middleton; The estate of Keith Joseph Cook, late of Balgowlah [2011] NSWSC 881. That guiding principle may need to be considered here in the exercise of the Court's costs discretion. Other competing principles may displace it and may need to be considered as well.
Another related issue will be from where any costs that one might be ordered would be paid, given that the principal asset in Nadia's estate, the South Strathfield property, is now in Georgette's name. The existing injunction against the sale of that property will, at some stage, have to be dissolved in other consequential orders.
I will therefore direct that both the plaintiffs and the defendant file submissions on costs and other matters within 28 days and that the issue of costs be argued at 9.30am on 14 November 2018 or such other date as is agreed with my Associate.
Accordingly, the Court makes the following orders and directions: 1. Grant probate of the will of the late Nadia Mekhail dated 12 December 2014 to the defendant/cross-claimant. 2. Remit the proceedings to the Registrar to complete the grant in accordance with the rules of Court. 3. Direct the parties to file submissions in relation to all issues of costs and other matters, including whether any party seeks a special costs order by Friday, 2 November 2018 at 4pm. 4. Direct the parties to file any submissions in reply by 4pm on Friday 9 November 2018. 5. List the proceedings for short argument in relation to costs and other matters at 9.30am on Wednesday, 14 November 2018 or as such other date as is arranged with my Associate. 6. Otherwise dismiss the Statement of Claim and the Cross Claim. 7. Grant liberty to apply until 14 November 2018, including as to the implementation or adjustment of these orders.

[41]

Amendments 08 October 2018 - catchwords, "incorrect" before "representations" [12] "Julian" to "Thomas" [18] last line, add "for the defendant" after "appearance" [30] "which the thought" changed to "which she" [46] first line, after "scrutinised" add "Mr Soryal's" [58] second last line, "three" to "five to six" [82] first line, after "short notice" add, ", when Dr Goodwin was unavailable." [98] last line, "was" to "were" [108] second last line, "," after "issues" [110] "migration compassionate application" changed to "migration on compassionate grounds" [114] "and 21" after "19" [125] "taking" replaced with "conscious of", delete "on" before "taking" [128] second line, delete "for" and replace with "on instructions from" [132] last line, "he" replaced with "Mr Sattout" [144], [152] non publication of details [174] "absconded" replaced to "corresponded" [189] typo "she" [191] delete "to" before continue [202] second last line, delete "being" [266], "and" between "Bishoy" and "Georgette" and comma after "credibility" [271] "destined" to "desired", "issues" to "issued" [286] "They" to "Youssef and Magdy" [291] second last line, "estate" changed to "South Strathfield property" [304] sub-paragraph numbering fixed, (4) added [308] "analysis" to "statement" [311] first line, "is" after "circumstances" [312] second last line, "is" to "are" [315] "are" after "scrutiny" [316] first line, "that" after "and" [319] fifth line, add "lack of" after "Nadia's" [333] third line, "is said to have" after "Nadia" [337] second line, "being" after "and"; replace "attempted" with "gift" [338] longer typo [339] April 2015 transaction to "March 2015 Transfer" [348] first line, add (1) before "Succession Act" [363] second line, delete "how" before "costs" 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: 08 October 2018

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