Plaintiff v Applicant

2 On 2 December 2021, Ms Arhontovasilis filed a summons seeking an order that the solicitor retained by Ms Makripoulias in Ms Arhontovasilis' application for revocation, Mr Thomas Koutsoupias, be restrained from acting for Ms Makripoulias on the grounds that he will be a material witness in the case.

3 By agreement between the parties, the summons was listed for hearing on 1 February 2022. For the following reasons, an order will be made restraining Mr Koutsoupias from acting for Ms Makripoulias in the application for revocation.

4 The deceased was 86 years of age when he died on 12 March 2021. The deceased's wife predeceased him. In addition to Ms Makripoulias and Ms Arhontovasilis, he was survived by two infant grandchildren who are the children of Ms Makripoulias.

5 The will appoints Ms Makripoulias as the sole executor of the deceased's estate and bequeaths the deceased's entire residuary estate to the deceased's grandchildren upon them attaining 18 years of age. It was uncontroversial that the will is a significant departure from the terms of the deceased's penultimate will made in March 2013. That will appointed both Ms Makripoulias and Ms Arhontovasilis as executors and beneficiaries of his estate in the event that his wife predeceased him.

6 In her grounds of revocation filed with the Court on 4 October 2021, Ms Arhontovasilis relies on two grounds: (a) 'the deceased may have lacked testamentary capacity during the period before or at the time of execution of the 2020 will'; and (b) 'the Will was made in suspicious circumstances'. Ms Arhontovasilis has provided particulars of these grounds, the adequacy of which had been the subject of criticism by Ms Makripoulias. As a result, on 22 November 2021 the Court made orders giving Ms Arhontovasilis leave to file amended grounds for revocation by 3 December 2021. No amended grounds for revocation have been filed.

7 The will was prepared by Mr Koutsoupias. He, together with his legal secretary, is also one of the attesting witnesses to its execution. As I have noted, Ms Makripoulias has retained him as her solicitor in this proceeding.

8 Mr Koutsoupias has filed an affidavit in which he deposes to various matters including those set out below.

(a) Mr Koutsoupias is the principal of his law firm, Thomas Koutsoupias Pty Ltd, and has practised law for about 20 years. He has a general practice which includes wills and estates. He estimates that he has drafted about 1,400 wills over the period of his practice as a solicitor.

(b) Mr Koutsoupias is of Greek descent and is fluent in both Greek and English.

(c) Before the will was made in late January 2020, the deceased had sought advice from Mr Koutsoupias in February-March 2008 about two unrelated matters.

(d) Mr Koutsoupias deposed as follows about his involvement in the circumstances which led to the making of the will in late January 2020 and relevant communications in the period shortly thereafter:[1]

(9) On 24 January 2020, Peter Arhontovasilis attended my office seeking legal advice about whether he could get his driving licence back after his daughter, Afroditi Arhontovasilis had reported him to the police or threatened to do so. ...

(10) Peter then told me he wanted to draw a new will. I didn't have my secretary working that day, so I told Peter he would need to make an appointment for [sic] and come back to give those instructions. I didn't know then whether Peter would make the appointment, as not all people do come back to make their wills. I did not therefore open a file for a new will on 24 January 2020 and I did not make a record of the conference that day.

...

(12) On 29 January 2020, Peter Arhontovasilis attended my office to provide instructions about the making of a new will. My secretary, Marina Amandatiadis typed up with [sic] the will under my supervision, whilst Peter was present in my office.

(13) I refer to Exhibit ET1 to the affidavit of Emilia Teti sworn 2 December 2021, exhibited as the last will of Peter Arhontovasilis dated 29 January 2020 (Last Will). That is the Will I drafted on 29 January 2020, I witnessed Peter Arhontovasilis sign and which I signed as one of two witnesses.

(14) I caused an attestation clause to be inserted into the Last Will. It records that I read in Greek the Last Will, which is written in English, because Greek was Peter's native and customary language. I read the Last Will to Peter in Greek in the presence of my then secretary, Marina Amandatiadis. I know that Marina speaks Greek from conversations with her and having heard her interactions with other Greek clients of mine. Marina was present when Peter signed the Last Will and whilst I signed my name as having witnessed Peter sign the Last Will. I observed Peter sign the Last Will. I observed Marina sign her name as the second witness. ...

(15) Prior to Peter signing his Last Will, I took time to explain the gifts he wanted to make to his grandchildren and the effect of the making of those gifts to the exclusion of Afroditi, might mean after he passed away. I did so, as that is my usual practice.

(16) I took extra care because one of the assets which Peter wanted to gift to his grandchildren was a house in Bentleigh. He told me that he gifted the house 6-7 years ago to his two daughters and they were the registered proprietors of the house. I explained to Peter that he was no longer the owner of that house, and he had no legal right to bequeath it in his Last Will. Peter told me his previous lawyers, Velos, had not made him understand the consequence of Peter having gifted that property.

(17) I asked Peter for his estimate of the value of the Bentleigh property. Peter told him [sic] he thought it was worth about $2 million. I know from these proceedings that the daughters recently sold the Bentleigh property for over $1.5 million and each of the daughters received net proceeds of sale of $750,000.00.

...

(19) Later in the day of 29 January 2020, I received a call from Peter's daughter, Dimitra. I explained to her the need to have her father medically assessed as having mental capacity to make the Last Will in the next few days. ...

...

(21) On 5 February 2020, I received a phone call from Dimitra Makripoulias to say she had taken Peter to see a doctor for medical assessment as to his capacity to make a will. I was told that Peter had scored quite a low score of 16 out of 30 points and he should consult a geriatrician. I recommended the medical advice be followed. I recommended a Greek geriatrician be consulted so that Peter could converse in his native and customary language, rather than English. ...

(22) On 13 February 2020, I received a telephone call from Dimitra Makripoulias about medical assessment of Peter. My legal advice was for Peter to be medically examined for mental capacity by a Greek doctor to enable him to be assessed using his native and customary Greek language. ...

(23) I did not receive any further instructions from Peter after 29 January 2020. I did not receive any contact or make any contact with Dimitra Makripoulias after 13 February 2020.

Restraining a legal practitioner from acting: legal principles

9 The Court has an overriding jurisdiction to intervene to protect the due administration of justice where a reasonably informed member of the public would conclude that a solicitor should be prevented from acting for a party in a proceeding. The relevant legal principles and authorities were summarised by the Court of Appeal in Miller v Martin as follows:[2]

This Court has jurisdiction to make an order, on the application of a party to a proceeding before it, to restrain a legal practitioner from acting for an opposing party in that proceeding.[3] The circumstance which usually gives rise to such an application is where a party seeks to restrain a legal practitioner who previously acted for that party, from acting for an opposing party on the basis that the new representation will involve use by the legal practitioner of confidential information gained in the previous representation.[4]

However, the Court's jurisdiction is not confined to cases involving allegations of breach of confidence. The Court has a broad, inherent jurisdiction to control its officers and protect its processes. As part of this broad jurisdiction, the Court may restrain a legal practitioner from acting in a proceeding where the integrity of the judicial process would be impaired if the legal practitioner did not cease to act.[5] Instances where this jurisdiction has been exercised include where the legal practitioner is likely to be a material witness,[6] where there is a material conflict between the interests of the client and those of the legal practitioner concerning the litigation in question[7] or where, for any other reason, the independence and objectivity of the legal practitioner would be unacceptably compromised.[8]

10 The Court of Appeal then referred to the following summary of applicable principles set out by Brereton J in Kallinicos v Hunt:[9]

However, the court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice ...

The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice ...

The jurisdiction is to be regarded as exceptional and is to be exercised with caution ...

Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause ...

The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief ...

11 In Kallinicos, Brereton J exercised the discretion and required that a solicitor (Mr Moloney) cease to act for a party in the proceedings before him. It is instructive to note the following aspects of his Honour's reasoning:[10]

Accordingly, in my opinion, Mr Moloney will be a material witness on issues of substance which appear to be controversial and in respect of which questions of credibility and integrity (not necessarily his own) are likely to arise.

Moreover, there is a high degree of probability that Mr Moloney's evidence and/or conduct will come under scrutiny. It seems almost inevitable that Mr Kallinicos would query how being on notice of the interest and claims of Mr Kallinicos, Mr Moloney could accept instructions to distribute the entire balance of proceeds for the benefit of Mr Hunt. There may be a perfectly good explanation, but one can anticipate that it will be the subject of rigorous testing.

Thus, the propriety of Mr Moloney's conduct is likely to be examined in the proceedings, and his evidence is likely to be material. He will be in a position in which his client's interest, his own interest, and his obligation to the Court may well be in conflict. Mr Moloney will owe obligations of loyalty to his present client Mr Hunt, he will have an interest in presenting the facts in a manner which exonerates himself, and he will have a duty to the court to be frank. His evidence may crucially corroborate or refute Mr Hunt's version, and his own position and conduct may come under scrutiny. Yet Mr Moloney would not likely be called in Mr Hunt's case to prove that Mr Hunt had given false instructions. If he continues to act, loyalty to his client would be a disincentive to give evidence if those were the circumstances. Yet failure to give evidence would result in submissions being made that his evidence would not have assisted his own client's case.

It is generally undesirable for a practitioner who is aware that he is likely to be called as a witness, other than in relation to formal or non-contentious issues, to continue to act. If a practitioner's credibility is at stake as a witness, his personal integrity may be put in issue and that may constitute a personal interest inconsistent with the practitioner's duty to the court or to the client. In those circumstances, it is relevant though far from decisive to note that the Revised Professional Conduct and Practice Rules 1995 provide as follows:-

19 A practitioner must not appear as an advocate and, unless there are exceptional circumstances justifying the practitioner's continuing retainer by the practitioner's client, the practitioner must not act, or continue to act, in a case in which it is known, or becomes apparent, that the practitioner will be required to give evidence material to the determination of contested issues before the court.

12 On this basis, Brereton J concluded that 'a fair-minded, reasonably informed member of the public would conclude that the independent objectivity of Mr Moloney as solicitor and/or witness was compromised by conflicts between his obligation of loyalty to his client Mr Hunt, his role and knowledge as a witness of material facts, and his potential personal interest'.[11]

13 Justice Brereton applied and elaborated upon these principles in Mitchell v Burell,[12] which observations were recently referred to with approval by Lyons J in Dugan v Process Holdings Pty Ltd.[13] Having concluded that a solicitor may be a witness about a material matter and that his evidence may be controversial, Brereton J continued:[14]

That said, I do not accept that the mere circumstance that a solicitor will be a material witness, even on a controversial matter, of itself justifies restraining the solicitor from continuing to act. As Windeyer J pointed out in Scallan v Scallan [2001] NSWSC 1078, it is, for example, not unusual for instructing solicitors in contested probate proceedings to give evidence of facts relevant to instructions for and execution of a Will. Similarly, in contested conveyancing proceedings, it is not unusual for solicitors who have acted on the conveyance to continue to act in the proceedings for specific performance or rescission and to give evidence in those proceedings. Accordingly, despite Rule 19 of The Law Society of New South Wales Professional Conduct and Practice Rules, which imposes a professional obligation (as distinct from a private right), I do not accept that in every case where a solicitor acting for a party is a material witness even on a controversial matter, the Court will restrain the solicitor from continuing to act. Although some observations of Campbell CJ in Chapman v Rogers; ex parte Chapman [1984] 1 Qd R 542, 545, may go somewhat further, the cases indicate - as Campbell CJ did in that case itself - that the line is crossed only when the solicitor has a personal stake in the outcome of the proceedings or in their conduct, beyond the recovery of proper fees for acting, albeit that the relevant stake may not necessarily be financial, but involves the personal or reputational interest of the solicitor, as will be the case if his or her conduct and integrity come under attack and review in the proceedings. The presence of such circumstances will be a strong indication that the interests of justice - which in this field involve clients being represented by independent and objective lawyers unfettered by concerns about their own interests - require the lawyer to be restrained from continuing to act.

14 Justice Brereton distinguished between those circumstances where a solicitor was, in effect, 'called on to defend their own actions or advice on the one hand - in which case it was inappropriate that they act - and other cases',[15] and referred to what was said by Thomas J in Kooky Garments Ltd v Charlton:[16]

What I have said, of course, does not apply where the advice given is unrelated to liability or the question in dispute. Advising a client to prosecute or defend a claim does not attract these observations. They are restricted to the situation where the acts or omissions of the solicitors are an integral part of the other party's complaint or the client has been sued in circumstances where he or she was acting on the advice of their solicitors and it is effectively that advice which is in issue. In such cases, apart altogether from the position of the client, the Court is not receiving the assistance of counsel who are observably independent. Independence is a function of counsel. The Court is entitled to assume that solicitors and counsel appearing before it possess that independence.

Applying these principles, Brereton J concluded that there was reason to suppose that the solicitor's conduct may come under 'attack and review' and that there was very likely to be a robust attack on his credit if he gave evidence.[17]

15 More recently in The Queen v Silverstein, the Court of Appeal observed that 'it is unarguable that it is most undesirable that a legal practitioner, who might be called as an important witness in a proceeding, should not act, or appear as counsel, in the proceeding'.[18] The Court stated that this proscription was reflected in r 27.02 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 which states:

In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor, an associate of the solicitor or a law practice of which the solicitor is a member may act or continue to act for the client unless doing so would prejudice the administration of justice.

16 The Court of Appeal also referred with approval to the following statement by the Court of Appeal of New South Wales in Barrak Corporation Pty Ltd v The Kara Group of Companies Pty Ltd:[19]

It is necessary to emphasise the risk posed to the administration of justice in New South Wales by solicitors remaining on the record when they are, or may be, witnesses in proceedings. This risk is heightened when they have a personal interest in the outcome of litigation beyond recovery of their fees. Courts rely on legal practitioners to discharge their duties to remain objective and professional in the preparation and presentation of proceedings. Such duties are susceptible to compromise where a practitioner is also a witness and even more so when he or she has a financial interest in the outcome.

17 Counsel for Ms Makripoulias accepted that Mr Koutsoupias may be called as a witness in the hearing of the application for revocation of probate. In my view, given the grounds for revocation, that scenario is overwhelmingly likely. Before examining the basis of this conclusion and my further conclusion that Mr Koutsoupias will be a material witness about controversial matters in the proceeding, it is necessary to set out what counsel for Ms Arhontovasilis contended was the most significant conflict between Mr Koutsoupias' own interests and those of his client which was said to warrant the exercise of the Court's inherent jurisdiction to restrain Mr Koutsoupias from acting.

18 In early September 2021, Mr Koutsoupias and Ms Arhontovasilis' solicitor exchanged correspondence about the deceased's estate. The latter foreshadowed an application for revocation of the grant of probate and a potential claim under Part IV of the Administration and Probate Act 1958. On 22 September 2021, in response to correspondence from Mr Koutsoupias in which he stated that he had 'full confidence in the legal methodology that we have used and obtained Probate' and that he was satisfied that the deceased was not lacking mental capacity when he made the will, Ms Arhontovasilis' solicitor confirmed that she had instructions to issue an application for revocation. She also stated that:

Given the purported Will was prepared by your office and in particular the assertions made by you regarding the deceased's competency, it is evident that you are likely to be called to give evidence material to the determination of contested issues before the Court which gives rise to a conflict of interest. Accordingly neither you nor your firm is able to act in this matter and you should cease acting forthwith and advise your client that she will need to obtain alternate legal representation. ...

19 Mr Koutsoupias replied by letter dated 28 September 2021. He asserted that he was not conflicted and would continue to act for Ms Makripoulias. He explained his position as follows:

I disagree that I am a material witness in these proceedings, as:

1. It is my experience as a lawyer of some 20 years that where a person or client's native language is not English, it is best practice to have an interpreter present while taking instructions, or in this instance, the person be assessed for their mental competency by a medical practitioner who is fluent in that person's native language.

2. The testator's native language was Greek.

3. The first medical assessment as to competency of the testator was carried by a Chinese doctor who was not fluent in Greek, if he spoke Greek at all.

4. Based on my experience, I foresaw that there was the potential language barrier that could lead to ineffective communication between that doctor and the testator if English, not Greek, was used to carry out the medical assessment.

5. My role as a solicitor was to advice [sic] the testator on the terms of his proposed Will, if he was competent to make a Will, and if not, what consequences flowed from any incompetency.

6. To inform myself about a Greek speaking doctor was more appropriate to assess for competency, I asked questions which I anticipated a medical practitioner might ask of the testator. Any evidence I might give as to competency would be inadmissible as I am not a qualified medical practitioner.

7. I satisfied myself that it was appropriate for the testator to be medically assessed for competency to make a Will by a Greek speaking doctor.

8. The testator consulted a Greek speaking doctor within the time frame that the will was prepared and executed. The assessment as to competency was made. The testator was considered to be competent.

9. The will is admissible, as is the doctor's report as an expert opinion. My personal assessment of the language needs is irrelevant and therefore inadmissible. Accordingly, I am not a material witness in this matter**.**

20 The summons for revocation was then served on about 6 October 2021. In a covering letter, Ms Arhontovasilis' solicitor maintained her position that Mr Koutsoupias was a material witness and was likely to be called to give evidence material to the determination of contested issues before the Court, thereby giving rise to a conflict of interest. She urged Mr Koutsoupias to obtain a ruling from the Ethics Committee of the Law Institute of Victoria.

21 In reply, Mr Koutsoupias relevantly stated as follows in a letter dated 7 October 2021:

You continue to assert that I am a material witness in this case without enunciating the type of evidence you consider I will be called to give. A bald assertion, being summary in form, is an insufficient basis for me to excuse myself or ask for any Ethics Committee ruling. You need to articulate the evidence which you say I would be called to give, the fact in issue such evidence is relevant to and the basis upon which that would be admissible for the purpose of proving or disproving the fact in issue.

I have previously stated, my role in asking questions of the testator was to provide legal advice as to whether he should be medically examined to determine whether he had mental capacity to make his will dated 29 January 2020 (Last Will). The testator was medically examined for competency. The medical evidence is the relevant and expert evidence.

The majority of the High Court, Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, as stated by Isaacs J (Duffy and Rich JJ concurring) at 577, lines 1 to 2 in respect of a lay witness's opinion as to the testator's capacity to make a will:

As pointed out in proposition 11, the opinion of Mr Constable, like all other lay opinions, is only of slight and indeterminate weight; ...

Proposition 11, was stated by Isaacs J on page 572 to be:

While, for instance, the opinions of the attesting witnesses that the testator was competent are not without some weight, the Court must judge from the facts they state and not from their opinions.

I refer also to proposition 10, stated by Isaacs J to be:

The opinion of witnesses as to the testamentary capacity of the alleged testator is usually for various reasons of little weight on the direct issue.

The Applicant's Grounds for Revocation do not put in dispute that I was an attesting witness to the Last Will.

I have previously stated in correspondence and restated again in this letter, that as a lay witness, my opinion as to the testator's capacity is, if relevant, may be inadmissible, and of little weight. For these reasons, it remains unclear to me why you assert I am a material witness which would require me to cease to act for the executor.

22 In subsequent correspondence, Ms Arhontovasilis' solicitor reiterated her view that Mr Koutsoupias was a material witness and likely to be called to give evidence material to contested issues before the Court. She restated her view that Mr Koutsoupias was accordingly conflicted and should withdraw from the proceeding.

23 The subject matter of the above extracts of the correspondence between the solicitors remains the central controversy in relation to Ms Arhontovasilis' application for an order restraining Mr Koutsoupias from acting. Counsel for Ms Arhontovasilis submitted that the most significant of the conflicts between Koutsoupias' own and his client's interests arose because of a fundamental misunderstanding by him about what evidence the Court must have regard to in determining whether the deceased had testamentary capacity. In adopting the view that his opinion about whether the deceased had testamentary capacity was inadmissible and that it was only the medical evidence which would be relevant to the determination of that issue, Mr Koutsoupias was submitted to have fundamentally erred in his approach to determining whether the testator had testamentary capacity. In particular, it was submitted that his evidence about the deceased's presentation on or around the date the will was executed would be of significance and that he would be required to give evidence as to the steps he took to satisfy himself that his client had testamentary capacity. This would involve him having to provide detailed evidence about the questions he put to the deceased, his own professional experience in terms of capacity assessments and any conversations he may have had with treating professionals. Further, Mr Koutsoupias would be required to give evidence about the nature of the instructions that he received which related to the test for testamentary capacity enunciated in Banks v Goodfellow.[20] It was submitted that these matters gave rise to an inherent conflict between Mr Koutsoupias' interest in upholding the advice that he had provided to his client about the approach to the determination of the validity of the will, and his obligations towards his client in representing her in this proceeding

24 In oral submissions, counsel for Ms Makripoulias continued to adopt the position set out by Mr Koutsoupias in his correspondence referred to above. In reliance upon the judgment of Isaacs J in Bailey v Bailey[21] referred to by Mr Koutsoupias in his correspondence, counsel submitted that Mr Koutsoupias cannot give admissible evidence about the testamentary capacity of the deceased at the time the will was made. Although the doctors who made assessments about the deceased's testamentary capacity in February 2020 could be the subject of cross-examination, Mr Koutsoupias could not give such evidence. Counsel submitted that Bailey v Bailey stood for the proposition that a lay person's evidence on the question of competency was not admissible. Further, lay opinion evidence about the capacity of a testator was inadmissible because it offended the opinion rule in s 76 of the Evidence Act and was not within any exceptions in s 78 of the Evidence Act. In the alternative, it was submitted that, if Mr Koutsoupias' opinion about whether the deceased had testamentary capacity was admissible, consistent with the observations by Isaacs J in Bailey v Bailey, it would be evidence of very little weight.

25 In the context of the interlocutory application which is before the Court, it would be inappropriate and it is unnecessary to resolve to finality the central contest between the parties about whether Mr Koutsoupias is able to give admissible evidence about the testamentary capacity of the deceased at the time the will was made. That issue will fall for determination at the hearing of the application for revocation.

26 However, given the nature of the principal conflict asserted by Ms Arhontovasilis, it is necessary to form some view about this issue in order to assess whether the approach adopted by Mr Koutsoupias to the determination of the deceased's testamentary capacity, and inferentially his advice to Ms Makripoulias on that matter, is likely to come under attack at the hearing of the application for revocation. In my assessment that scenario is very likely to come to pass as the position adopted by Mr Koutsoupias appears to be inconsistent with established principle and authority. To put it another way, at trial I consider that there exist strong grounds to challenge the approach adopted by Mr Koutsoupias to the determination of the deceased's testamentary capacity. That conclusion is borne out by the following survey of the authorities.

27 In Veall v Veall, Santamaria JA (with whom Beach and Kyrou JJA agreed) addressed the 'shifting evidentiary burden'[22] in relation to the issue of testamentary capacity (and knowledge and approval). His Honour stated as follows:[23]

Where a will is sought to be admitted to probate, the onus of proving the will lies on the propounder. The propounder must prove that the testator had testamentary capacity and knew and approved the contents of the will at the time of its execution. By contrast, where fraud or undue influence is alleged, the onus of proof lies on the party alleging it.

In Kantor v Vosahlo, Buchanan and Phillips JJA (with whom Ormiston JA agreed) said:

... a propounder must show that at the relevant time a testatrix knows what she is doing and the effect of her dispositions; she must know what estate she has to dispose of and what persons might have a claim upon her bounty.

...

If the propounder proves that a will that is rational on its face has been duly executed, a presumption arises that the testator had testamentary capacity. The evidentiary burden then shifts to the party impeaching the will to point to circumstances that raise a suspicion that the testator was not mentally competent. If suspicious circumstances are established, the evidential onus is then put back upon the propounder to satisfy the Court that the testator had testamentary capacity: that is that the testator was of 'sound and disposing mind'.

His Honour observed that this shifting evidentiary burden was not to be understood as indicating a reversal of the ultimate burden of proof: 'The onus of proving that the instrument sought to be admitted to probate reflects the will of a free and capable testator lies on the propounder'.[24]

28 Santamaria JA also considered the matter of the involvement of solicitors in the preparation of wills. His Honour observed that 'a solicitor who prepares a will comes under professional duties to exercise proper care and attention'.[25] After referring to the authorities in the United Kingdom dealing with the nature of the duty on solicitors, his Honour continued:[26]

... Where it is evident that a will may be controversial and a solicitor does not take elementary precautions, the Court will have to look elsewhere if it is asked to determine capacity and knowledge and approval. In Ashkettle v Gwinnett,[27] Christopher Pymont QC, sitting as a Deputy Judge in the Chancery Division, referred to the judgments of Mummery LJ and Sir Scott Baker in Hawes v Burgess[28] to the effect that 'it is "a very strong thing" for a judge to find lack of testamentary capacity when the will has been prepared by an experienced and independent solicitor following a meeting with the testator, when it had been read through and explained to her and when the solicitor had formed the view that the testator was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational'.[29] Nonetheless, he said:

I accept the wisdom of these comments though I observe that they do not go so far as to suggest that, in every case, the evidence of an experienced and independent solicitor will, without more, be conclusive. Any view the solicitor may have formed as to the testator's capacity must be shown to be based on a proper assessment and accurate information or it is worthless; and (as Mummery LJ acknowledges) the terms of the will may themselves suggest that the solicitor's assessment was not soundly based.[30]

29 The correct approach to evidence relevant to testamentary capacity, including the evidence of solicitors involved in the preparation of a testator's will, was also considered by the Court of Appeal of New South Wales in Zorbas v Sidiropoulous (No 2).[31] In referring to the well-known test set in Banks v Goodfellow, Hodgson JA (with whom Young JA and Bergin CJ agreed) stated that:[32]

The criteria in Banks v Goodfellow are not matters that are directly medical questions, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for common sense judicial judgment on the basis of the whole of the evidence. Medical evidence as to the medical condition of a deceased may of course be highly relevant, and may sometimes directly support or deny a capacity in the deceased to have understanding of the matters in the Banks v Goodfellow criteria. However, evidence of such understanding may come from non-expert witnesses. Indeed, perhaps the most compelling evidence of understanding would be reliable evidence (for example, a tape recording) of a detailed conversation with the deceased at this time of the will displaying understanding of the deceased's assets, the deceased's family and the effect of the will. It is extremely unlikely that medical evidence that the deceased did not understand these things would overcome the effect of evidence of such a conversation.

In the circumstances of that case, Hodgson JA did not identify any difficulty in the trial judge receiving and giving weight to the lay opinion of a social worker 'that the deceased had indicated she understood what was explained, asked appropriate questions, ..., and that the deceased had the mental capacity to make decisions and understand their implications'.[33]

30 In his additional remarks agreeing with Hodgson JA's reasons for judgment, Young JA stated as follows:[34]

In a probate suit, the vital evidence is very often not given by medical experts, but is given by experienced lay observers. I have said more than once in deciding probate cases at first instance, that the most valuable evidence is usually given by the experienced solicitor who witnessed the will as opposed to a very highly qualified psychiatrist whose evidence is based not on any personal observation of the testator, but who has reasoned his or her opinion from medical and hospital notes.

Furthermore, it is not true to say that the evidence of lay people as to another person's condition of health is valueless.

If a matter is of common occurrence and people in their ordinary life are accustomed to make assessments of that fact, then they are able to give evidence of it. Thus, a witness can be asked whether a person is sober or not. In Reg v Whitby (1957) 74 WN (NSW) 441 at 443, the NSW Court of Criminal Appeal, consisting of K W Street CJ, Owen J and Roper CJ in Eq, followed a decision of R v German (1947) 89 Can CC 90 at 98, that:

There are a number of matters in respect of which a person of ordinary intelligence may be permitted to give evidence of his opinion upon a matter of which he has personal knowledge. Such matters as the identity of individuals, the apparent age of a person, the speed of a vehicle are among the matters upon which witnesses have been allowed to express an opinion, notwithstanding that they have no special qualifications, other than the fact that they have personal knowledge of the subject-matter, to enable them to form an opinion. Doubtless there are many other matters of common experience in respect of which persons with no special qualifications are permitted to state what is really a matter of opinion.

31 In Drivas v Jakopovic,[35] the Court of Appeal of New South Wales dismissed an appeal from a finding by a trial judge that a testator had testamentary capacity, which finding was based principally on the evidence of a solicitor who drafted the will and who arranged for the deceased to sign it in his office.[36] The decision is also of significance because the Court of Appeal upheld the primary judge's decision not to give any significant weight to medical evidence said to be relevant to whether the testator had testamentary capacity. Macfarlan JA, with whom the other members of the Court agreed, stated that the trial judge was correct to place significant weight on the solicitor's evidence because he was a solicitor of considerable experience including in dealing with elderly clients and their testamentary wishes; such evidence was 'valuable evidence of testamentary capacity'.[37]

32 In two recent cases, Hallen J referred to the duty on solicitors to take particular care to gain reasonable assurance about a testator's capacity where capacity is potentially in doubt.[38] His Honour also referred with approval to the following statement by the Court of Appeal in New Zealand in Loosley v Powell about the approach to be adopted to evidence given by solicitors about testamentary capacity:[39]

The weight to be given to the solicitor's evidence will depend on her, or his, experience, training, and understanding of the test of testamentary capacity; her or his, ability to make an assessment of capacity, taken with the quality of the assessment made as appears from any contemporaneous notes and records; her or his, knowledge of, and familiarity, with the will-maker, including the age and state of health of the will-maker; and her or his, independence; the will-maker's presentation to the solicitor, and whether there are any "red flags" suggesting a possible challenge to capacity. It will also depend on "the level of enquiry and discussion on the part of the lawyer of, and with, the deceased"

33 Ms Makripoulias' reliance upon Isaacs J's summary of applicable principles in Bailey v Bailey appears to be misplaced. Contrary to her primary submission, in none of the propositions relied upon by Ms Makripoulias does Isaacs J address the question of the admissibility of evidence; all of those propositions are expressed to be about the weight which may be given to evidence. The basal distinction between admissibility and weight of evidence was conflated in the submissions advanced on behalf of Ms Makripoulias.

34 It is also apparent from the terms of the relevant propositions set out by Isaacs J that his Honour was not positing that, in all cases, non-medical opinion evidence about testamentary capacity will be of no or little weight. It is trite to say that the weight which might be given to the opinion of witnesses about testamentary capacity will depend on the circumstances of the case. As expressed by Isaacs J in the sixth proposition formulated in Bailey v Bailey, 'The quantum of evidence sufficient to establish a testamentary paper must always depend upon the circumstances of each case ...'.[40] In more recent times, the expression of this principle in relation to the issue of testamentary is evident in the following statement by Vickery J in Nicholson v Knaggs:[41]

In the end it is for the Court, assessing the evidence as a whole, to make its determination as to testamentary capacity. In the present case, the opinions of expert witnesses as to whether the testator was competent or not competent, while not without weight, cannot be decisive as to testamentary capacity at the relevant times. The Court must judge the issue from the facts disclosed by the entire body of evidence, including the observations of lay and professional witnesses who knew and saw the testatrix at the time of her making the relevant wills and codicils. The manner in which she gave her instructions, the content of those instructions, the setting in which the instructions were given and the outcome of enquiries made by the solicitor acting in the matter, all assume importance.

35 If it be assumed that, by her grounds of revocation, Ms Arhontovasilis has made out circumstances which raise a suspicion that the deceased lacked testamentary capacity, the onus will be on Ms Makripoulias as the propounder of the will to satisfy the Court that the deceased was of sound and disposing mind. In those circumstances and where Mr Koutsoupias drafted the will and attested to its execution, it is difficult to conceive of a scenario where Mr Koutsoupias would not be called as a witness by Ms Makripoulias to discharge the burden upon her, at least in relation to his direct dealings with and observations of the deceased leading up to the execution of the will, as distinct from any matters of express opinion. I am fortified in that view when it is noted that, given that the onus rests on Ms Makripoulias and the significant value which usually attaches to evidence from the legal practitioner who prepared a will, in the event that she did not call Mr Koutsoupias as a witness, Ms Makripoulias may be exposed to an inference that Mr Koutsoupias' evidence would not have assisted her case.

36 Although the evidentiary burden is on Ms Makripoulias, it is also conceivable that, even if she did not call Mr Koutsoupias as a witness, Ms Arhontovasilis might seek to do so. In the circumstances of this case in light of the affidavit sworn by Mr Koutsoupias, it is plausible that Ms Arhontovasilis might elect to conduct her case in this way in order to demonstrate that the test for testamentary capacity in Banks v Goodfellow has not been met in relation to the deceased. Of potential significance is Mr Koutsoupias' evidence that, in his meeting with the deceased on 29 January 2020 when he prepared the will, the deceased told him that one of the assets he wanted to gift to his grandchildren was a house in Bentleigh, even though, according to Mr Koutsoupias, the deceased also told him that he had gifted the house 6-7 years ago to his two daughters and they were the registered proprietors of the house. On its face this raises the question of whether the deceased understood the extent of the property which he sought to dispose of by making his will, being one of the essential elements of the test for testamentary capacity articulated by Cockburn CJ in Banks v Goodfellow.[42]

37 I am therefore satisfied that Mr Koutsoupias is likely to be called as a witness at the trial of this proceeding and that he will be called upon to give evidence relevant to one of the central controversies for determination: whether the deceased had testamentary capacity when he signed the will.

38 Contrary to the premise from which Ms Makripoulias' submissions appeared to proceed, the authorities to which I have referred demonstrate that, in respect of the issue of testamentary capacity, relevant evidence by a legal practitioner who prepared a testator's will is not confined to statements of express opinion about that matter.[43]

39 In relation specifically to lay opinion evidence about testamentary capacity, for example evidence given by a legal practitioner, I am not persuaded such evidence is not capable of engaging the exception in 78 of the Evidence Act which provides:

The opinion rule does not apply to evidence of an opinion expressed by a person if -

(a) the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and

(b) evidence of the opinion is necessary to obtain an adequate account or understanding of the person's perception of the matter or event.

40 The analysis and discussion by Young JA in Zorbas referred to in [30] above may be viewed as one rationale for why it is not unusual in probate proceedings for the court to receive lay opinion evidence about testamentary capacity. Similarly, the learned authors of Cross refer to lay opinion evidence about whether a testatrix was in a fit condition to make a will by reason of physical weakness and debility as being [44]missible.44 The authority cited for that proposition is _McNaugh[45]n v Smith_45 which concerned a testatrix who was alleged to have made a will when she was 'not of sound disposing mind'. Reliance was sought to be placed on statements by laypersons to the effect that the testatrix was not in a fit condition to make a will or comprehend its meaning. On the issue of the admissibility of such lay evidence, Lord Bir[46]m stated:46

It may be that, when insanity in the technical sense is averred, the only witnesses who can be of assistance to the Court are experts in the particular kind of insanity alleged. But where, as here, all that is alleged is that the testatrix, through physical weakness and debility, was not of sound disposing mind at the time when the will was made, it seems to me that the evidence of lay witnesses may be of the utmost value and indeed may be of more importance than that of physicians or medical experts. In practice, the evidence of non-medical witnesses is always admitted in cases of this type, and there are abundant examples in the books which justify the practice and shew conclusively that the Court is in use to place reliance upon such evidence.

41 In addition to being satisfied that it is very likely that Mr Koutsoupias will be called to give evidence about controversial matters, I am also satisfied that Mr Koutsoupias has a personal stake in the outcome of the proceeding beyond the recovery of his legal fees and the ordinary interest a solicitor has in seeing a client's claims being vindicated in court. This is because, analogously to Mitchell v Burell,[47] it is readily apparent from the submissions advanced on behalf of Ms Arhontovasilis that he will be called upon to defend his actions and advice in this matter concerning what evidence is relevant and admissible to determining the deceased's testamentary capacity. In doing so, Mr Koutsoupias' personal and reputational interests as a solicitor of long standing will be enlivened.

42 Mr Koutsoupias has squarely stated in correspondence to Ms Arhontovasilis' solicitor that 'Any evidence I might give as to competency would be inadmissible as I am not a qualified medical practitioner'.[48] Consistent with this view, Mr Koutsoupias' file notes of his telephone conversations with Ms Makripoulias on 5 and 13 February 2020 suggest that he considered that only expert medical expert opinion could determine whether the deceased was competent to make the will. As I have explained, the correctness of these views is clearly contestable. As a result, it is very likely that, at trial, Mr Koutsoupias' advice and approach to the issue of testamentary capacity will itself be the subject of attack and review.

43 This places Mr Koutsoupias in an unacceptable position of conflict between his duty to his client to prosecute her claim as to the validity of the will in accordance with law; his personal interest in defending his advice and the position he has adopted about the evidence which is relevant and admissible on the question of testamentary capacity; and his overriding professional duties as an officer of the Court. For these reasons, I am satisfied that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that Mr Koutsoupias should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice.

44 In light of this conclusion, it is unnecessary for me to consider the various other specific ways in which Ms Arhontovasilis submitted that Mr Koutsoupias was conflicted.

45 I am mindful that the Court's jurisdiction to restrain a practitioner from acting is exceptional and its exercise discretionary. It is a serious thing to interfere with a party's choice of their legal representative. Further, I am cognisant that, in contested probate proceedings, it is not unusual for instructing solicitors to give evidence about matters relevant to the execution of a will and a testator's instructions.[49] However, as I have explained, this case has an additional and special dimension beyond those cases where there is, for example, merely a discrete factual dispute.

46 This is a proper case in which the Court's jurisdiction should be exercised. The conflicts which will be confronted by Mr Koutsoupias at trial are substantial and not minor or peripheral to the central issues for determination. They are such that it can fairly be said that the integrity of the judicial process would be impaired if he continued to act in this proceeding. Given that the application for revocation remains in its initial stages, the timing of this application is such that no substantial prejudice would be suffered by Ms Makripoulias by restraining Mr Koutsoupias from acting for her. She and Mr Koutsoupias have been on notice of this conflict since 1 September 2021. There are many practitioners who could assume conduct of the matter for Ms Makripoulias. It was not submitted that only Mr Koutsoupias, as opposed to another practitioner, was uniquely positioned to act in this matter.

1. Mr Thomas Koutsoupias is restrained from continuing to act for the plaintiff in this proceeding.

2. The parties shall submit any proposed orders in respect of costs within seven days or, in the absence of agreement, short submissions on costs limited to three pages.

[2] [2019] VSCA 86, [17]-[18].

[3] Grimwade v Meagher [1995] VicRp 28; [1995] 1 VR 446, 452 ('Grimwade'); Western Australia v Ward [1997] FCA 585; (1997) 76 FCR 492, 498; Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561, 570-83 [31]-[76] ; Pinnacle Living Pty Ltd v Elusive Image Pty Ltd [2006] VSC 202, [14]; Finch v Heat Group Pty Ltd [No 2] (2016) 353 ALR 193, 197-9 [7]-[11].

[4] Grimwade (n 3) 453; Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561, 570-83 [31]-[76].

[6] Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561, 583 [78].

[7] Grimwade (n 3) 454; Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561, 583 [78].

[8] Grimwade (n 3) 452, 454; Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561, 586 [91].

[9] Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561, 582 [76] (citations omitted).

[12] [2008] NSWSC 772.

[13] [2021] VSC 555, [62].

[14] Mitchell v Burell [2008] NSWSC 772, [20], emphasis added.

[16] (1994) 1 NZLR 587, 589-590.

[17] Mitchell v Burell [2008] NSWSC 772, [22].

[18] [2020] VSCA 233, [118] ('Silverstein').

[19] [2014] NSWCA 395, [47]. Referred to in Silverstein (n 18) [118].

[20] (1870) LR QB 549 ('Banks v Goodfellow').

[21] [1924] HCA 21; (1924) 34 CLR 558 ('Bailey v Bailey').

[22] Veall v Veall [2015] VSCA 60; (2015) 46 VR 123, [170].

[23] Ibid [166]-[168], citations omitted.

[25] Ibid [192], referring to Hill v Van Erp (1997) 188 CLR 159.

[27] [2013] EWHC 2125 (Ch).

[28] [2013] EWCA Civ 74.

[29] [2013] EWHC 2125 (Ch), [43].

[31] [2009] NSWCA 197.

[35] [2019] NSWCA 218; (2019) 100 NSWLR 505.

[36] This was despite the fact that the solicitor had no independent recollection of acting on behalf of the testator. His evidence upon which the Court relied was about his usual practice in relation to the preparation of wills.

[37] Ibid 517 [52]. His Honour referred to the statement by Young J in Re Crooks Estate (Supreme Court of New South Wales, Young J, 14 December 1994) 29, that '[a]n experienced solicitor or solicitor's secretary gets used to dealing with people making wills and are usually attuned to the red lights that flash when a person who is of suspect capacity comes across their paths [sic].'

[38] Chant v Curcuruto [2021] NSWSC 751, [746] ('Chant v Curcuruto'); Robertson v Barker, [2021] NSWSC 1682, [224].

[39] Loosley v Powell [2018] NZCA 3; [2018] 2 NZLR 618, [51] referred to by Hallen J in Chant v Curcuruto (n 38) [749].

[41] [2009] VSC 64, [41].

[43] See for example Vickery J's observations in Nicholson v Knaggs referred to in [34] above and Hodgson JA in Zorbas in [29] above.

[44] JD Heydon AC, 'Non-expert Opinion Evidence' in Cross on Evidence (LexisNexis Australia) [29090].

[45] McNaughton v Smith 1949 SLT (Notes) 53.

[47] [2008] NSWSC 772.

[48] See [19] above (letter from Thomas Koutsoupias to Emelia Teti of 28 September 2021).

[49] As noted by Windeyer J in Scallan v Scallan [2001] NSWSC 1078, [11].