The Witnesses of Fact
91This case requires the application of established, and undisputed, principles to particular facts. Therefore, I have to assess the reliability of the evidence, which I have read, and heard, before I can make the necessary findings of fact on matters in dispute. I shall, where possible, identify my findings of fact as I proceed. Taken with the findings to which I have earlier referred which were not in dispute, or which I have already found, I shall be able to come to the ultimate conclusions necessary to determine the result of the case.
92It is necessary to say something of the main witnesses who gave evidence. In relation to the principal witnesses called on behalf of the Defendant, there was a sustained attack on his, and her, credit. There was also a thorough attack on the evidence of Ms Zlatevska and her conduct in relation to the 2004 Will.
93In reaching my conclusions, I have borne in mind that Alek is a significant beneficiary in the 2004 Will and that Elli and Gordana are the primary beneficiaries under the 1999 Will. Pavle receives more under the 2004 Will than he does under the 1999 Will, but Elli and Gordana are his daughters. Each, therefore, has a clear interest in the outcome of the proceedings.
94I have also borne in mind, the evidence of Katia, that Alek had been involved in a motor vehicle accident in July 2011, that his memory was "failing him", that as "he is getting older, he begins to mix up events" and, that "although it is getting better, he lost the vision in one of his eyes about a month ago".
95I shall deal separately with the evidence of the solicitors called by each of the parties also. I have already referred to the medical evidence.
96As I shall demonstrate, I find Pavle, Elli and Gordana, each to be a reliable witness, having regard, in particular, to the fact that his, and her, evidence was materially consistent with other evidence. By contrast, I did not find either Alek, or Katia, to be a reliable witness.
97The first witness cross-examined was Alek. Senior counsel for the Plaintiffs asked whether he was able to understand the way in which the case had proceeded until that time; also whether he had understood the questions that he had been asked by his own senior counsel; and whether he had any trouble in answering the questions in the English language. He answered each of the questions and said that he would prefer to give his answers in English.
98Alek did not suggest, and nor did his counsel, that he was under any cultural, or linguistic, disadvantage (other than not knowing "Australian law terminology"). Despite this, it was clear that English is Alek's second language. I gather that his first language is Macedonian.
99Even though I formed the view that he was attempting to answer the questions asked of him in English to the best of his ability and, for the most part, his answer was responsive to the question posed, he seemed to have some difficulty understanding, and answering, some of the questions.
100In relation to a number of topics, I sought the assistance of the accredited NAATI interpreter (National Accreditation Authority for Translators and Interpreters), retained on behalf of the Plaintiffs, to translate the question to, and the answer given by Alek from the English to Macedonian language and vice versa. I only did so where the topic was of particular importance and I thought there was some comprehension difficulty, or when I was requested to do so by senior counsel.
101The first occasion when I sought such assistance was when senior counsel for the Plaintiffs asked questions relating to the date when the deceased was said to have contacted Alek and requested him to do certain things on her behalf. Alek's evidence was:
"... She told me she has signed some documents. She don't know what she signed to the solicitor and she say to me: probably I am going to lose my house because I don't know what I signed and I say to her-"
102Later, he said, about the conversation:
"She does not say she signed a document on the house. She says: 'Probably I am going to lose my house'."
103He then said:
"She say to me: "You go over there and check what I signed" and she say to me: "Check if it is your name it is over there".
Q. "Check if it is your name"?
A. In the will because my will which done my brother."
104I then sought the assistance of the interpreter who stated, after the question had been translated, that Alek responded:
"A. INTERPRETER: Go to the solicitor. The solicitor is above the Commonwealth Bank in Rockdale. There is a Macedonian who speaks Macedonian. And I was there which I have signed something there. I don't know what I have signed. And see if your name it is in the will.
INTERPRETER: Sorry your Honour, see if the name exist in the will."
105Following these answers, when senior counsel for the Plaintiffs returned to the topic, Alek said:
"Q. And it is in these conversations that she raised with you or she mentioned the word "will"?
A. She mention. Most of the time she mention she going to lose her property.
Q. She is going to lose the property?
A. Because she sign something which she don't know what she signed.
Q. You mentioned she said, "Have a look in the will" or something like that?
A. She say she want to do the will.
Q. She wants to do the will?
A. To do the will and I say, 'Already the will has been done by my brother and you don't need to do another will'."
106What Alek had said in his only affidavit, on the topic of the deceased making a new will, was "She kept calling me and saying she wanted to do a will".
107The second occasion on which the interpreter was required was when a passage at paragraph 13 of his own affidavit, was put to him as being inconsistent with his oral evidence. His evidence was:
"Q. You asked somebody at Attapallil's office whether your name was in any will?
A. That's correct.
Q. You wanted to know?
A. No what my sister saying.
Q. You asked about any will, didn't you?
A. Not any will.
Q. Your affidavit at para 13 says "I asked the gentleman whether my name is in any will."
A. Not in any will, in my will.
Q. But you were not making a will?
A. The will which I took of my brother.
Q. That is not your will?
A. The will after they change the typing of that.
Q. You knew what was in your brother's will because you had the paper?
A. That's correct.
Q. You were asking the solicitor at Attapallil's whether your name was in any will?
A. I am not talking any will, I am talking my will. She make another will.
Q. Why did you use the word "any" will?
A. I didn't use "any will"."
108Following the interpreter reading the last sentence of Paragraph 13 to him, in Macedonian, Alek's answer was "So what".
109Even though I have evaluated Alek's evidence, remembering that English is not his first language, and taking into account what is said by Katia to be his present state of health (unsupported by medical evidence), I do not accept most of his evidence.
110I am satisfied that he, alone, had given the initial instructions to Ms Zlatevska, which were used by her to prepare most of the draft Will, and that he had done so prior to 28 October 2004.
111I am not satisfied that he had been asked to do so, then, by the deceased. In fact, it was accepted, during submissions, that there had been no evidence, given by Alek, as to any conversation he had with the deceased, in which she had requested him to give instructions to Ms Zlatevska to prepare a will, whether in the form of the 2004 Will or otherwise.
112I am unaware of any reason why the deceased would need to do so. She seemed to be able to perform the activities of daily living, which included, on 3 December 2004, travelling, with Pavle, to confer with a solicitor. She could use the telephone.
113The letter dated 28 October 2004, forwarded to the deceased, by D Stanefska & Associates, makes clear that instructions for a will had been provided to her, and that a draft had been prepared in accordance with those instructions. Alek could not identify any other person who could have provided instructions to Ms Zlatevska at that time.
114Importantly, Ms Zlatevska, herself, gives evidence (read in the Defendant's case) of such a conversation with Alek. She says:
"...
4. In approximately October 2004 Mr Nasev came to my office. He said words to the effect:
"I am the brother of Petar Janakievski who is now deceased. Petar and his wife Vasilka had the same wills. Vasilka made a new will after Petar died but now wants to go back to what they originally had. She wants to change her will. It is worrying her that she has not left me anything. She told me what she wants in her new will."
5. There then followed some discussion which I cannot particularly recall regarding an earlier will that the deceased had made."
115Ms Zlatevska also states that she "prepared a draft will based upon what Mr Nasev told me". That draft must have been prepared at, or about, the time of the letter dated 28 October 2004, as it is referred to in that letter. There was no submission to the contrary.
116Thus, it is clear that any instructions for the 2004 Will given to Ms Zlatevska (to which topic I shall return), were given by Alek and by nobody else. The deceased did not request him to give any instructions to Ms Zlatevska.
117I also do not accept Alek's evidence that he went, with his wife, to Lexes Lawyers, at Rockdale, prior to the two occasions (once without the deceased and once with her) that he spoke with Ms Zlatevska. I find the sequence of events to have been that Alek first gave instructions for the deceased's Will to Ms Zlatevska in October 2004 (when he went to her office alone). Following those instructions and events that occurred following receipt of the letter dated 28 October 2004, Katia obtained the exemplification of Probate of Petar's Will (on about 9 November 2004). Then, on 6 December 2004, Alek and Katia went to Lexes Lawyers, where they spoke with Mr Attapallil and Ms Bozinovska. It was only when the 2004 Will was signed, on 17 December 2004, which meeting Alek attended with the deceased, that the deceased met Ms Zlatevska in her professional capacity.
118I also do not accept that Alek never raised, with the deceased, the topic of the distribution of her estate, or that, so far as Petar's estate was concerned, he was not interested in any will made by Petar or by the deceased during her husband's lifetime. It cannot be forgotten that Katia went to the trouble, and no doubt, expense, of obtaining the exemplification of probate for Petar's Will. This would have been unnecessary except to ascertain whether what Alek said he had been told by Petar was reflected in the Will the subject of Probate, or whether Alek, otherwise, was a beneficiary named in any Will lodged with the Court.
119Importantly, Alek's evidence on this topic is inconsistent with the evidence of Dr Mihajlov, which I accept, as follows:
"In this period subsequent to her husband's death, Mrs. Janakievska would often discuss with me her personal affairs including a constant and regular reference to her husband's brother pressuring her to give property she owned to him. She would often say to me words to the effect:
"My brother-in-law is pushing me to give him one of my houses. He keeps telling me that because Petar and I didn't have kids one of the houses should go to him and the other one I could do whatever I liked with and give it to my side of the family. He keeps saying that he will take me to Court and will take my property off me"."
120Alek's evidence is also inconsistent with Pavle's evidence, which I also accept, regarding a conversation that he had with Alek about going to a lawyer "to organize for the old lady to transfer the houses, Rockdale to you and Erskineville to me".
121It is also inconsistent with Robert's evidence that he had overheard Alek suggesting to the deceased that she sell the Erskineville property and give him the proceeds of sale, so that she could apply for the pension.
122Whilst there is evidence supporting what Alek said Petar and the deceased had discussed about his, and her, testamentary intentions, the statements that were made by each of them are inconsistent with what each actually did. Petar's Will, made in 1971, did not include a specific devise of one property, or the other, to either Alek or Pavle. The 1999 Will also, made no specific devise of each property to one, or other, of them.
123Another aspect of Alek's evidence that I do not accept relates to his alleged lack of concern about whether the deceased would leave the Erskineville property to him. It seems clear, from all of the evidence, that he was very concerned to receive this property. His efforts to achieve this included repeated requests, to the deceased, a conversation with Pavle about ensuring this result, giving instructions to a solicitor to prepare a Will, and as will be seen, taking the deceased to have that Will executed. In my view, he was determined not to let the matter rest, which he did, only after the execution of the 2004 Will.
124I should also refer to Alek's evidence about the circumstances in which he came to go with the deceased to the office of Ms Zlatevska on 17 December 2004. He said that he was sitting in Rockdale drinking coffee, when John Sturevski approached him and said that the deceased was looking for him. He went to find the deceased, which he did, at the local Chemist shop, and she said that she had come to Rockdale to pick up some medicines and that she would "like him to come with me to see Dobrinka". The clear thrust of his evidence was that this was an unplanned, and a somewhat spontaneous, meeting with the deceased, and that he had accompanied her to the offices of the solicitor, at her request.
125This is inconsistent with Ms Zlatevska's evidence, which is to the effect that an appointment had been made for the deceased to attend the offices of D Stanefska & Associates at 1:00 p.m. on 17 December 2004 (as disclosed on the page of her diary for that date). She thought that Alek had made the appointment. In all the circumstances, I accept that he did so. His version of what immediately preceded the attendance upon Ms Zlatevska on 17 December 2004 should not be accepted.
126Alek's apparent lack of interest about what had occurred at the conference on 17 December 2004, also provides a curious feature of his evidence especially in light of my findings so far. His affidavit evidence, in this regard, was:
"18. I accompanied Vasilka to the offices of D. Stanefska and Associates. I think we arrived sometime mid morning. Dobrinka sat in one chair, the secretary sat or stood next to Dobrinka, Vasilka sat on one chair and I sat on the other. I did not take part in the conversation. I considered it was a matter for Vasilka. I sat silently and did not pay attention to what was being discussed. I do recall that Dobrinka asked a number of questions in Macedonian and I do recall that at one stage a document was produced by either Dobrinka or the secretary."
127The fact that he is unable to give any evidence about what was discussed in the conference on 17 December 2004 does not assist his case.
128I do not accept Alek's evidence where it is in conflict with the evidence of the other witnesses, whose evidence I accept, or unless it is corroborated by an agreed fact. I do not accept that he was well-intentioned or seeking to act in the deceased's best interests, in procuring the creation, and execution, of the 2004 Will.
129This leads me to confirm that I am satisfied:
(a) The deceased did not give instructions to Alek to have a will prepared for her;
(b) The deceased did not give any instructions to Alek about the terms of any Will;
(c) The deceased did not request Alek to convey any instructions to Ms Zlatevska, which instructions were included in the 2004 Will;
(d) Alek's instructions for the preparation of a Will were given without the knowledge or approval of the deceased;
(e) Alek did not give any instructions to the solicitor as to some parts of the 2004 Will, namely the substitute beneficiary clause and the clause relating to the deceased's wish to have D Stanefska & Associates act;
(f) The deceased did not request Alek to accompany her to the office of the solicitors on 17 December 2004;
(g) It was Alek who made the appointment with the solicitor at 1:00 p.m. on 17 December 2004 and he took the deceased to the office of the solicitors on that date;
(h) Alek was very keen to have the deceased leave the Erskineville property to him and to ensure that a Will was prepared that would achieve this;
(i) Alek had many conversations with the deceased in which he requested her to leave the Erskineville property to him and the Rockdale property to Pavle;
(j) Once the 2004 Will was executed by the deceased, Alek and Katia did not ever see her again.
(k) In the will-making process, he consistently put his own interests ahead of the deceased's.
130Katia then gave evidence. She seemed unable to answer the questions asked of her and I formed the impression that she was determined to include in her answers all that she wanted to say whether directly responsive or not to the question that was asked.
131I found her evidence, except on one aspect, to be quite unhelpful. For example, in repeating conversations, it was difficult to know whether she was present at the conversation, evidence about which she gave, or whether she was repeating a conversation that Alek had told to her. More often than not, it was the latter, when she was challenged. She admitted reading a draft of Alek's affidavit but denied reading any final version of it.
132Katia identified Mr Attapallil as "Pavle's solicitor" because the deceased is alleged to have said "Pavle takes me to the solicitor above the Commonwealth Bank". That, on its own, hardly suggests that he was Pavle's solicitor. When she was tested on the conversation, it was not what the deceased had said to her, but what Alek had reported the deceased said to him.
133The suggestion that their attendance on Mr Attapallil and Ms Bozinovska was unplanned (as opposed to them attending without having made an appointment) seemed unrealistic. She had given evidence that she was in full-time employment until 2006, but in December 2004, she attended with Alek on these solicitors. This suggests that their attendance was more than simply that they "dropped in".
134Where Katia's evidence conflicts with that of Mr Attapallil and Ms Bozinovska, I accept their evidence.
135The one aspect of significance in Katia's evidence that I do accept relates to her conversations with Ms Zlatevska following the receipt, by the deceased, of the letter dated 28 October 2004. She said that she had telephoned Ms Zlatevska, on the day after the Police contacted Alek and her. It was Ms Zlatevska who, apparently, suggested that she attempt to obtain a copy of "wills" from the Court. The substance of the conversation with the Police was not explored, but there is no doubt that Ms Zlatevska was informed, prior to 9 November 2004, by Katia, that Pavle, or his daughter, had involved the Police, that the Police had contacted Alek and Katia by telephone and that they were very upset about the telephone call.
136It is unnecessary to say any more about her evidence.
137Ms Zlatevska gave her oral evidence reasonably confidently and clearly. She stated that she considered herself experienced and competent in drafting wills. She also gave evidence that she had drafted many wills for people whose first language was not English. I accept that from the mid to late 1990s, she had commenced to draft wills for clients of her firm, and that she had drafted about 50 wills per year.
138There are a number of aspects of her evidence that satisfy me that I must consider her evidence with considerable care. A difficulty that she faced was to recall events that occurred nearly 7 years ago in what is, and was, a busy solicitors' practice.
139I note that there was no attack on Ms Zlatevska's integrity. The attack related more to what she ought to have done, compared with what she did, as a solicitor, in relation to the deceased, in the circumstances known to her by 17 December 2004. In what follows, I remember that this case is not about the professionalism of Ms Zlatevska, but whether the Court is satisfied of the validity of the 2004 Will.
140Ms Zlatevska did not give any evidence of any usual, or regular, practice in relation to the way in which she took instructions, drafted, or had the wills she had drafted, executed. Nor did she give any evidence of a practice in relation to questioning an elderly person prior to a will being executed, by for example, asking questions that would elicit general, or other, knowledge. She was not asked any questions about her knowledge, in 2004, of Banks v Goodfellow (1870) LR 5 QB 549 and I do not know whether she had "the Banks v Goodfellow tests at the front of her mind" (Hutley's Australian Wills Precedents, 7th ed, (2009) LexisNexis Butterworths at [1.14]) . She gave no evidence of having taken any special precautions when seeing the deceased on 17 December 2004.
141She did refer to discussing "the usual sort of pleasantries" and "common courtesies" with the deceased. How long this lasted is not clear. In any event, other than enquiring about her state of health, Ms Zlatevska did not state, with specificity, what had been discussed, or how the deceased responded to any questions asked. Whilst she may have met the deceased in Church, this is not a case in which instructions for a contested will were taken by a solicitor who was very familiar with the deceased.
142Ms Zlatevska did not say that what she spoke with the deceased about was designed to test the deceased's cognitive powers, or was otherwise for the purpose of ascertaining her testamentary capacity. She did not say that the deceased's responses led her to form the view that she ultimately expressed. One might have expected the evidence of the solicitor relying upon such pleasantries or courtesies, if relied upon to determine capacity, to be more expansive about what had been said.
143Ms Zlatevska gave evidence that when they went into the conference, the deceased and she were sitting side by side, and that the deceased appeared to be looking at the 2004 Will, whilst she was translating its contents for the deceased. She also said:
"I started to read, I said, "This is your last will and testament" and
"that is your address and name""
144Following cross-examination, I showed Ms Zlatevska the original of the 2004 Will. The following evidence was then given by her in answer to my questions:
"Would you have a look at the spelling of the deceased's name?
A. The spelling, no. It's not accurate, your Honour.
Q. She didn't pick that up?
A. I am sorry, whether I should have picked it up.
Q. She did not correct the spelling of her name on the document?
A. No."
145I had in mind, in referring to the spelling of the deceased's name in the Will, that the deceased's name, typewritten at the commencement of the Will, is "Vasilka Janakievski ", when, in fact, her name was "Vasilka Janakievska ". Neither counsel, immediately following these (and other questions asked by me), asked any questions on this topic, despite an opportunity given to each to do so.
146Ms Zlatevska did not explain how the error came to be made, or why it was not corrected. The deceased, herself, did not seek to correct the spelling of her name on the Will, despite apparently looking at the 2004 Will.
147During the cross-examination of Ms Bozinovska, senior counsel for the Defendant sought to establish that the spelling of the deceased's last name was correct if spelt "Janakievski". I rejected the questions sought to be asked, but said that even though there had been no re-examination of Ms Zlatevska following the answers that she gave on this topic, I would consider granting leave to re-examine, even though the questions had not arisen in cross-examination, if there had been an error in Ms Zlatevska's evidence, which evidence would represent a distortion of the truth as she was able to present it, unless supplemented or explained, or because it was capable of being construed unfavourably to the Defendant.
148Later, during the hearing, senior counsel sought that leave, which I granted. Relevantly, Ms Zlatevska gave the following evidence:
"Q. Where on the document did you understand that the deceased's name appeared?
A. It appears on the signature and at the beginning of - in the typed.
...
Q. Well, do you recall you gave an answer to a question, "It's not accurate".
Do you recall that?
A. Yes.
...
Q. You were looking at the will, and a question was put, "Yes, would you have a look at the spelling of the deceased's name?" You say, you said, "The spelling, no, it's not accurate, your Honour." Do you recall that?
A. Yeah, yes.
Q. When you were looking at the deceased's name, what part of the document were you looking at?
A. Well, the first - the first letter, and in the surname, the last two, or they looked like two letters.
Q. But can you just be a bit more specific about that?
A. Sorry. The initial in the first name.
HIS HONOUR
Q. Are you talking about the signature, ma'am?
A. The signature, yeah, sorry. The signature.
Q. Was it that part of the document that you were looking at when you were responding to the question with the spelling of the deceased's name?
A. Yes.
Q. What, if anything, were you intending to convey about the signature not being accurate?
...
A. I didn't mean any more than that."
149The first question asked by me earlier had not been about the deceased's signature, but was, clearly, a reference to the typed spelling of the deceased's name. The question did not refer to a signature. Even if it had, the signature was that of the deceased. It had never been in dispute that the deceased had signed the 2004 Will. It would not have been necessary for the deceased "to pick that up" since it was her signature. I do not accept Ms Zlatevska's evidence on this aspect.
150During the re-examination, she then gave the following evidence:
"Q. Would you please, leaving the signature to one side, and the deceased's name on the document, firstly, can you locate the deceased's name on the document?
A. Yes.
Q. Where do you see it?
A. It's the first sentence.
Q. Now, looking at the spelling of that, is that accurate, to your understanding?
A. Yes.
Q. Why is it accurate?
A. It's quite common for the male ending in a Macedonian surname to be used by women as well as men, so the "i" frequently appears in surnames of women as well as men. It seems to be here in Australia it happens quite frequently. On most of the official documents, we - many women have the "i" on the end of their names. It to be strictly correct, it should have been "Janakievska", but that's being a very, very, very correct grammatically. It immediately denotes to Macedonians the female gender, in the old days. But that's quite different here in Australia. We don't seem to generally concern ourselves too much with whether it's "i" or "a"."
151Whilst I have no reason to doubt the proposition advanced about the general lack of concern in Australia, in the instant case, I am considering the Will of a Macedonian born 83 year old woman who spoke little English and who signed her name "strictly correctly".
152I turn to other matters that cause me concern about Ms Zlatevska's evidence.
153The contemporaneous documents that formed the contents of her will file, which had been the subject of a subpoena to produce, were sparse. The documents produced were a draft Will (in the form that was subsequently signed by the deceased) which had been prepared following the instructions given to her by Alek, a copy of the letter dated 28 October 2004 that she had written, and caused to be sent to the deceased, one file note (consisting of two pages, the contents of which I shall set out in full), a copy of one page of a practice diary that revealed that her conference with the deceased, at which conference the 2004 Will was executed, was to occur at 1:00 p.m. on 17 December 2004, and a letter to the Registrar of this court under cover of which the copy of the diary page was enclosed.
154There is no file note of the instructions given to her by Alek in October 2004. I have earlier referred to her affidavit evidence on this topic, which was brief in the extreme. This is despite Ms Zlatevska acknowledging that it was "good practice" to create a file note in the context of taking instructions for, and the execution of, a will.
155It is clear that Alek must have given her more instructions than are set out in paragraph 4 of her affidavit. It seems likely that when Ms Zlatevska prepared her affidavit, she did not refer to the draft Will that had been prepared, which draft Will became the 2004 Will. It is only in the draft Will that was prepared that one finds the identity of the executors, the identity of Pavle as a beneficiary, the address of each of the properties the subject of the specific devises, who substitute beneficiaries are, and how the residue of the estate is to be disposed of.
156I have no doubt that it was Alek who gave the instructions which found their way into Clause 3(ii) of the 2004 Will (the devise of the Erskineville property to Alek "because he helped me out and it was my husbands wish"). Alek's evidence was redolent with those sentiments. At the time of the preparation of the 2004 Will, in October 2004, there was no other source for that information.
157On this topic, Ms Zlatevska's evidence was that the initial instructions came from Alek to her about what the deceased wanted in her will. And as Ms Zlatevska read the will to the deceased, she did not disagree with its contents.
158There was nothing in Ms Zlatevska's affidavit that fleshed out any enquiries she made of Alek, or the deceased, to demonstrate how Alek had helped the deceased out, or what her husband's wish had been. She said that the deceased said "He helped us initially and then later helped with the purchases. He helped with the paperwork." No investigation of the extent, context, or the time when these matters occurred, appears to have taken place.
159When I raised this matter with her, Ms Zlatevska relied upon part of her affidavit evidence that included the statement that the deceased said "she wasn't feeling right about having changed the will that she had made with her husband". Ms Zlatevska made no enquiry to confirm whether "Petar and his wife, Vasilka, had the same wills". (There was no evidence at the hearing of any will that the deceased had made with her husband, or that the deceased and her husband had ever had mirror wills.)
160In relation to the deceased's "husband's wish", Ms Zlatevska acknowledges having seen the exemplification of Probate of Petar's Will (to which reference has been made) on a date after she prepared the draft of the 2004 Will (and I would infer after 9 November 2004, which is the date the exemplification bears) but before 17 December 2004, the date on which the 2004 Will was executed. Despite Clause 3(ii), which had been inserted on instructions from Alek, she did not pay close attention to the terms of Petar's Will, which, as I have stated previously, did not make a specific devise of the Erskineville property to Alek or of the Rockdale property to Pavle.
161What is said to be the contemporaneous file note of the events that occurred on 17 December 2004, which is in Ms Zlatevska's handwriting, is in the following form:
"FILE NOTE: 1.00PM 17 DECEMBER 2004
Conference Mrs Vasilka Janakievska and Alek.
Confirmed her telephone instructions, showed me her medicare card.
Does not receive pension. Signed Will
Discussed Will want us (sic) place in safe custody
Do not write to her home or give anything to anyone."
162The most curious feature about the file note is that Ms Zlatevska accepted that she had never had any telephone conversation with the deceased, and that the reference "Confirmed her telephone instructions" should not have been written in it.
163Mr Dubedat's evidence was that the words "Confirmed her telephone instructions" were written at a later time than the words "or anything". She admitted that it was probable that the words had not been written on the file note on the date it bears, as she was well aware, then, that she did not have any telephone conversation with the deceased. She was unable to explain when, or the circumstances in which, the words were written on the file note. She could not explain, otherwise, how those words came to be written by her in the file note. She agreed that it would be unsafe to rely on the accuracy at least of that part of the file note.
164Ms Zlatevska also acknowledged that she had known for some time that the file note was inaccurate, at least to the extent that it referred to confirming the deceased's telephone instructions. She was unable to explain why, despite having sworn an affidavit as recently as 29 September 2011, in which affidavit she specifically dealt with aspects of the file note, she had not corrected this error.
165Despite her denial in the witness box, the failure to correct the error suggested that she had not appreciated that the file note contained such a significant error (at least until that time).
166Another curious feature of the file note is that Ms Zlatevska accepted that the words "Signed will" had been written on the file note after she had written the balance, or perhaps the bulk, of the file note. She gave no evidence in her affidavit of the reasons why this was done, when, or in what circumstances. This was not explored in cross-examination.
167It is clear also, that Ms Zlatevska's file note lacks many of the details that one might expect a solicitor of some years experience to include in a contemporaneous file note, especially in circumstances where questions had been raised with her about the state of health of the deceased and where there was likely to be a dispute about the validity of any Will procured at that time.
168Importantly, the file note lacks almost all of the details that Ms Zlatevska was able to include in her affidavit sworn on 11 May 2010, that is almost five and a half years after the event and in her evidence in the witness box, almost seven years after the event. The file note does not even include a statement to the effect that she translated the contents of the 2004 Will to the deceased. (I note also, in this regard, that the 2004 Will does not include any similar statement as appeared in the 1999 Will to the effect that the Will had been translated to the deceased before it had been executed by her.)
169The only reference to the deceased's knowledge of her assets in the file note relates to the deceased not receiving a pension. Yet, Ms Zlatevska's affidavit refers to the deceased informing her that she had two properties, one in Erskineville and one in Rockdale (that she lived in) and money in the bank. I think it is more probable that Alek had provided this information to her.
170Even if I accept that this conversation occurred, there is no evidence, in the affidavit, of any enquiry as to the value of either property or how much money was in the bank. In fact, in her oral evidence, she accepted that she asked no questions about the deceased's understanding of the value of the Erskineville property.
171Finally, as will be obvious, there is nothing about persons who had a claim on the bounty of the deceased in the file note. In her affidavit, however, Ms Zlatevska was able to state that the deceased, in answer to the question "Are there other people whom you might wish to benefit", nominated only Pavle, "... because he has been my life, I want him to have the same share" as Alek. Later, the deceased had said that Alek "deserved something because he is my late husband's brother".
172There is no mention of any of Pavle's daughters, two of whom had been beneficiaries named in the 1999 Will.
173It is most regrettable that Ms Zlatevska did not see fit to record in the file note of her interview with the deceased, more detailed facts of what had occurred. Had she done so, the Court's task might have been a great deal easier. Instead, I am left with having to rely upon the contents of her affidavit, sworn many years after the event, and at a time when litigation was on foot. I must consider the contents of this affidavit with all of the other aspects of Ms Zlatevska's evidence including the instructions previously given to her by Alek.
174The letter dated 28 October 2004 was written in English. Ms Zlatevska took no steps, prior to sending that letter, to ascertain whether the deceased could, in fact, read English. More significantly, it referred to "your instructions" when, clearly, as acknowledged by her, the only instructions that she had received about the contents of the draft Will had been given to her by Alek. It was not until 17 December 2004, that she even spoke with the deceased about a will.
175Ms Zlatevska gave evidence that she was aware that the deceased had made a will with another solicitor. There is no doubt that Elli informed her of this fact shortly after receipt of the letter dated 28 October 2004. As I accept Robert's evidence about his telephone conversation with Ms Zlatevska, he also informed her about the deceased's age and state of health at some time before 17 December 2004. Alek, too, informed Ms Zlatevska that the deceased had a solicitor who could look after her, had not identified the solicitor but had told her where that solicitor's practice was. At the meeting with the deceased, Ms Zlatevska says that she was told by the deceased that she had another will that she had prepared with another solicitor.
176(Although Ms Zlatevska states that her conversation with Elli "did not occur in the wording that is set out", I accept Elli's version of the conversation as it is more likely that she would have remembered it.)
177Ms Zlatevska took no steps to ascertain whether what she had been told was correct prior to, or even at, her meeting with the deceased. She made no attempt to ascertain the identity of the deceased's solicitor or to obtain a copy of any prior will that the deceased had made. She did not even ask when the prior will had been made. She did not seek to ascertain the identity of the executors named in that will. When she asked the deceased to identify the beneficiaries named in that will, the deceased was "sketchy with details". Whether any beneficiary had a continuing claim upon the bounty of the deceased was not explored.
178There is cause for concern regarding Ms Zlatevska's assertion that she would not have proceeded if she had considered that the deceased did not have capacity. That, of course, is not all she had to consider, particularly in the context of her conversations with Elli and with Robert.
179Ms Zlatevska said that the deceased had said that she would like Alek "to come in". She does not say that she provided any explanation to the deceased of the reasons why, in the circumstances, he should not. She also says "I spoke to them in Macedonian".
180Ms Zlatevska said that the deceased had told her that Alek had not been provided for in her prior will. She said that the deceased's "only concern seemed to be that she had left Mr Nasev out of something, his entitlement". Again, at this point, she did not suggest to either the deceased, or to Alek, that even though the deceased might have wanted him with her during the discussions, he should wait outside so that she could confer with the deceased alone.
181Ms Zlatevska did not reasonably investigate the nature of any prior wills of the deceased and/or the reasons why the deceased wished to change her Will. Speaking with Mr Attapallil might have presented a different picture and provided her with more information upon which she could obtain instructions from the deceased.
182In addition, she took no steps to ascertain whether the deceased was suffering from any medical condition that might affect her capacity. Her conversation on this topic appears to have been limited to the enquiry "How are you" as part of the "general pleasantries". Ms Zlatevska did not enquire whether the deceased was under the care of any particular doctor, when she had last seen a doctor, or whether she was taking any medication. She acknowledged that the deceased was "elderly".
183In discussing the contents of the Will with the deceased, Ms Zlatevska appears to have been satisfied with asking the deceased whether that was what she wanted (after reading out the clause) and with the deceased nodding, or indicating affirmatively. She gave oral evidence that the deceased, apart from nodding, only said "that's right" in relation to the remainder clause, if anything happened to Alek or Pavle.
184Ms Zlatevska agreed that the deceased never stated to her expressly that she wished the Erskineville property to go to Alek; or that the deceased had said she wished to appoint executors, or that she wished to appoint Alek and Pavle as the executors and trustees. Yet, she says that the deceased enquired about "trustees" but could not recollect the exact question asked. In any event, the answer Ms Zlatevska provided did not explain the nature of the role of executors or trustees, but simply identified that the person appointed "had no power to change things during your lifetime".
185The answer to this question suggests, that even at her interview with Ms Zlatevska, the deceased had a concern about things being altered during her lifetime.
186Ms Zlatevska gave no evidence of having discussed the Clause in the 2004 Will expressing the wish that her firm be employed by the executors "as their solicitors in connection with the execution of the provisions of the Will or any codicil (sic) to it" with, or indeed having obtained such instructions, from the deceased.
187In relation to the substitute beneficiary Clause, there had been no evidence of instructions by the deceased for such a clause. However Ms Zlatevska says that when it was read to the deceased, the deceased said "That is right, I do not want anyone else to take".
188Ms Zlatevska gives no evidence about making enquiry as to whether either Alek or Pavle had any children who might benefit in the circumstances contemplated by that clause, and if each did, how many children there were.
189Ms Zlatevska could not recollect any conversation that she had with Katia, or with Robert, between October 2004 and December 2004. In relation to her conversation with Elli, she could remember that the tone was not very pleasant, but not the rest of the detail. Each of the topics the subject of the conversation was an important one, and each should have been remembered by her.
190Finally, the reason why the deceased said that the Will should be kept by Ms Zlatevska in safe custody, that "private and confidential" and that phrase should be written on it, and that it should not be sent or given to anybody, was not the subject of her affidavit evidence. When asked, she stated that "many in our community are very secretive".
191I should note that even if all of the clauses of the 2004 Will were translated to the deceased, there is no unyielding rule of law that all other enquiry is to be ignored. All the above aspects are matters in relation to the circumstances under which the 2004 Will was prepared and executed, that assume importance.
192There are many aspects of Ms Zlatevska's conduct in relation to the 2004 Will that are open to criticism. Although she displayed no visible partiality when giving her evidence, she must have appreciated that the claims being made in these proceedings would, if upheld, be likely to reflect upon her firm's professional competence. In my judgment that appreciation may, unconsciously, have caused her to have had a rather more positive recollection of the events that occurred on 17 December 2004 than was truly the case.
193I formed the view that she was attempting to portray a far greater level of care than was demonstrated by the objective facts. Importantly, she took initial instructions from a third party, who was otherwise a client of hers, about the deceased's will; she did not investigate matters that, objectively, required investigation, or at least detailed consideration; she permitted the person from whom she had taken initial instructions and to whom reference had been made by others as someone who was causing a problem for the deceased (to the extent that there had been Police involvement), to remain in the conference whilst she discussed the terms of the 2004 Will with the deceased; she included a Clause in the 2004 Will that does not appear to have been discussed; she relied upon "nodding" by the deceased and does not appear to have asked any questions to establish the deceased's understanding of the terms of the 2004 Will.
194The circumstances should have inspired a more prudent professional approach by the solicitor. She seems to have been completely unaware of the risks that she was running, not only in conferring with the deceased at a meeting attended by a beneficiary who, initially, had given her instructions, but also a beneficiary who had been the subject of a complaint to the Police, and a beneficiary who was also her client.
195In addition, there was no explanation why she forwarded the memorandum of costs (a copy of which was never produced despite service of a subpoena to produce documents, one of which was the memorandum of costs) to Alek, rather than to the deceased, or why Alek paid the amount claimed in it.
196There is no suggestion in the evidence that the deceased asked Ms Zlatevska to take this course, or that she had even discussed such a course with Alek or the deceased.
197Unfortunately, I have not been able to place unquestioning reliance on Ms Zlatevska's evidence as providing a complete and accurate account of what took place in connection with the making of the 2004 Will. To the extent that her affidavit evidence portrays a greater participation by her and by the deceased at the meeting of 17 December 2004, than does her file note, I am satisfied that her affidavit evidence was the product of unconscious reconstruction on her part, based on the 2004 Will as executed, as to the process whereby she had obtained the deceased's instructions.
198Except on one aspect of his evidence, I formed the view that Pavle gave his evidence truthfully and without exaggeration. There can be no doubt that for about 40 years, he had a close and loving relationship with the deceased and, particularly after the death of Petar, he played a significant role in the deceased's life. He saw her almost daily, often more than once. He had an opportunity to observe the deceased closely. I have no doubt that, at all relevant times, he had her best interests at heart.
199I accept that he observed the deceased's anxiety and nervousness, particularly in the last three months of 2004. I am comforted in accepting these observations, which accord with what the deceased told other independent witnesses and their observations of the deceased also. I also accept his and Elli's evidence regarding changes in the deceased, following the 2003 syncope episode, and particularly in 2004.
200In this regard, I am further comforted because of some information recorded in the hospital records of 2005 following the stroke suffered by the deceased. At this time, there was no threat of litigation between the parties and the Plaintiffs were unaware that the 2004 Will had been made by the deceased.
201I refer, particularly, to the records of the St George Hospital, which refer to "poor cognition - progressive decline since December 2003", "deteriorating short-term memory and general functioning in past yr", that she "has been 'stressed' and low in mood for 2-3/12 over a family matter", that she had "lost 5 kg over 2/3 12" and had a loss of appetite.
202I accept Pavle's evidence regarding what the deceased told him about conversations, at different times, the first as early as 1994, that she had with Alek, and Alek's requests to her to make a will in which he would receive the Erskineville property. I also accept his evidence about the telephone conversation in which Alek suggested that the deceased be placed in a nursing home and that they should see a solicitor to ensure that he received the Erskineville property and Pavle received the Rockdale property.
203I am less confident that Alek actually threatened to sue her if she did not make such a will, although I have no doubt that the deceased told Pavle that he had done so, and also that she believed that he would do so.
204There is one aspect of Pavle's evidence in which I do not have great faith. During his cross-examination he gave evidence of an event which had occurred in the deceased's home involving the deceased and Alek. If this event had occurred, I would have expected it to be included in his affidavit. It was not. Nor did senior counsel put the event to Alek in cross-examination. I have ignored this alleged incident in my determination of the issues in the case (other than in considering the credibility of Pavle).
205Even though I reject this part of his evidence, I otherwise accept his evidence, particularly where there is any conflict between that evidence and the evidence given by Alek.
206I have set out, previously, some of the evidence given by Elli that was not the subject of challenge. I also accept her evidence regarding her conversations with the deceased in which the deceased relayed what are said to be threats made by Alek to take the deceased to court if she did not transfer the Erskineville property to him. There was really no successful challenge to this aspect of her evidence.
207There is no dispute that following the receipt of the letter dated 28 October 2004, it was she who first telephoned Ms Zlatevska. I accept that Ms Zlatevska told Elli, incorrectly, and, conveyed perhaps, unintentionally, that she had spoken to the deceased over the telephone to take instructions for the draft Will.
208The tenor of the conversation between Elli and Ms Zlatevska confirms that Elli was, indeed, indignant, about what Ms Zlatevska had done and that her description of the deceased's anguish over conversations with Alek and upon her receipt of the solicitors' letter, accurately reflects the deceased's state of mind at the time. I also accept that Elli told Ms Zlatevska that the deceased had told her Alek had been coming over and otherwise telephoning and threatening to take the deceased to court and to take the house whilst she was alive. She stated also, that the deceased did not understand and thought that if she did not sign the house over to Alek he would take her to Court.
209Elli's concern about these matters is put in even more stark perspective by the fact that she involved the Police, who, subsequently, telephoned Alek. Again, there was really no substantial challenge to her evidence on this topic.
210Pavle's daughter, Gordana, was not cross-examined. She confirmed the close relationship that she, her parents and her sisters, had with the deceased throughout her life. There was really no dispute about this.
211Robert refers to a conversation he overheard between Alek and the deceased relating to the Erskineville property, this time in the context of a sale, so that the deceased could receive a pension. He also refers to a conversation, with the deceased, in October 2004, where she repeated her telephone conversation of that day, with Alek, about taking her to court if she did not leave him that property. (I have earlier referred to Robert's telephone call with Ms Zlatevska.)
212Loza, who was not cross-examined, confirms that the deceased would assist her and Pavle in looking after their children, particularly during the period when she, and he, was working. They would drop the children over to the Rockdale property, where they slept over and would go to school, from there, the next day.
213Loza also identifies the support provided to the deceased by Pavle following the death of Petar including attending upon her once or more than once a day, taking over food and groceries to her and taking her to appointments.
214Loza gives evidence of a conversation with the deceased, in late August 2004, in which the deceased told her that Alek "came over today and told me he wants me to give him my house at Erskineville otherwise he's going to take me to Court". The deceased also said "If he takes me to Court and takes my house, I won't get a pension. I won't have anything to eat". She recalls that similar conversations occurred on at least two other occasions, subsequently. There is simply no reason to disbelieve her evidence.
215I was most impressed with Mr Attapallil. During cross-examination, he appeared careful and concerned to ensure that his evidence was factually, and otherwise, accurate. He did not seem to me to be attempting to favour the Plaintiffs' case, and his evidence, overall, had the air of reality about it. The cross-examination related to what he had explained to, and advised, the deceased, and whether she had understood his explanation and advice. I have no hesitation in accepting his evidence.
216In particular, I found his oral evidence about what had occurred in his conference with the deceased on 3 December 2004 as important and instructive. He gave evidence that he thought, because of the age of the deceased, that he should be careful to ensure that she had mental capacity to instruct him, to know what she was signing, and that she had the ability to understand his advice before he accepted instructions.
217He gave evidence that the deceased had said to him that her brother-in-law wanted her to give one of the houses that she owned to him. He had also given evidence, in his affidavit, that she had told him if she did not give him one of the houses, her brother-in-law was going to have his solicitor take her to Court. Even though she did not identify the brother-in-law by name, it could not be disputed that she was referring to Alek.
218He stated in cross-examination, as he had in his affidavit, that he had asked the deceased for the letter (dated 28 October 2004), which she handed to him, and that he read it. He explained to her the true nature of the letter, that it was not a court document, and that no person was suing her. He also explained to her that no one could push her to make another will and that she could give her assets to anybody she wished to.
219In answer to questions concerning the deceased's understanding of what she had been told, Mr Attapallil stressed that despite his assurances, she remained very apprehensive, anxious, and frightened.
220At the conference with the deceased on 3 December 2004, Mr Attapallil confirmed that she recollected that she had previously made another Will and that she was giving everything to Pavle's family because they were the ones looking after her. This conversation is inconsistent with what Alek said to him about the deceased's intentions when he saw Alek and Katia on about 6 December 2004, namely that the deceased kept ringing them "saying that she wants to do a new Will to give one of her houses to me".
221I found Ms Bozinovska also to be an impressive witness. She, too, gave her evidence clearly and without any apparent bias in favour of one side or the other. Whilst she did not make a file note of the matters stated in her affidavit, she said, and I accept, that she had a clear recollection of the events.
222There was no challenge to her affidavit evidence. She was cross-examined on events that occurred in 2007, when an application to convert the title of the Erskineville property to Torrens title had occurred and a document had, apparently, been signed by the deceased (at a time when she did not have capacity). I accept her explanation about this document.
223In the circumstances, I accept the evidence given in her affidavit, which broadly corroborates the evidence of Mr Attapallil, both as to his conversation with the deceased on 4 December 2004, as well as his conversation with Alek and Katia on about 6 December 2004.
224Ms Mabbutt gave evidence about the care and attention given to the deceased by Pavle. She confirmed his attendance at the Rockdale house once or more than once a day and observed him taking the deceased to appointments.
225Mr Johns was cross-examined. He confirmed that he had been a friend of the deceased and Petar from a young age. He renewed his acquaintance with them following his arrival in Australia in 1968. He and his family also attended the Macedonian Church at Rosebery. On most Sundays, he would collect Petar and the deceased and take them to church. He confirms being present when Petar and the deceased spoke about leaving the Erskineville property to Alek and the Rockdale property to Pavle. He says that following Petar's death, the deceased repeated that she wished to carry out her husband's wish. It appears that any such conversation with the deceased occurred before 2000.
226Mr Krste Crkovski was also cross-examined. He says that Petar assisted him to come to Australia and that upon his arrival, he lived with Petar, the deceased and Alek at the house in Enmore. (Although the period in which he did so is not identified, I infer that it was in the early 1960s.) He confirms being present when Petar spoke about leaving the Erskineville property to Alek and the Rockdale property to Pavle.
227Mrs Crkovska, the wife of Krste Crkovski, gives evidence of the deceased often saying, before and after the death of Petar, that she wanted to leave the Erskineville property to Alek and the Rockdale property to Pavle. It seems probable that the most recent conversation with the deceased about the topic occurred prior to 1999.
228Mr Rade Kocoski was also cross-examined. He gives evidence of a conversation with Petar in which Petar said:
"On one (1) occasion in mid 1992 after the church service my wife and I delivered Petar and Vasilka to their house and they invited us for a cup of coffee. Petar then asked me to go out side and sit at the verandah and he said words to the effect "Because Vasilka and I have no children of our own I regard my Brother Sandre like a son rather than as a brother and because of that and the renovations he helped me with at the Erskineville property, I want to leave this property to him."
229He also said that the deceased often said to him that she "had" to leave the Erskineville property to Alek and the Rockdale property to Pavle. He says the last of the conversations with the deceased was in 2002.
230Mrs Jana Kocoska, who was not cross-examined, corroborates the evidence given by her husband. She also says that the deceased said that she "would like to see [Alek] and Katia more often".
231It was not suggested, even if I accepted the evidence of the witnesses on his, her or their conversations, with the deceased, that there was any contract, agreement, or mutual promises that was, or were, enforceable. There was no suggestion that either the deceased, Petar, or Alek, viewed the conversations as ones that should be attended by legal consequences.
232I also remember, Lord Eldon's observation in Pemberton v Pemberton (1807) 13 Ves 301; (1807) 33 ER 303, to the effect that few declarations "deserve less credit than those of men as to what they have done by their wills. The wish to silence importunity, to elude questions from the persons who take it upon themselves to judge of their own claims must be taken into consideration".