Plaintiff v Applicant

2 The deceased's last will is dated 1 April 2019 ('the 2019 will'). The 2019 will names the plaintiff as the sole executor and beneficiary of the deceased's estate.

3 The deceased's estate is valued at $2,082,806.54, and comprises a property in Richmond, Victoria valued at $2,000,000 ('the Richmond property') and personal assets valued at $82,806.54. For some years prior to the death of the deceased, the plaintiff was the deceased's primary carer and resided with the deceased in the Richmond property. The plaintiff and her family have continued to live in the Richmond property following the death of the deceased.

4 Three applications concerning the estate of the deceased are before the Court. The first is the applicant's summons seeking, inter alia, revocation of the grant of probate of the 2019 will. The second and third are a summons by the plaintiff seeking dismissal of the revocation application and, in the event that the revocation application is not dismissed, security for costs from the applicant, pursuant to r 62.02(1)(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('the Rules').

5 For the reasons set out below, the applicant's summons will be dismissed. In light of that finding, it is unnecessary for the Court to determine the plaintiff's summons seeking dismissal of the revocation application and, in the event that the revocation application is not dismissed, security for costs from the applicant_._

6 On 19 August 2020, four days after the death of the deceased, the applicant filed a caveat against the making of a grant of representation with the Registrar of Probates. The caveat was filed by the applicant's then solicitors, KCL Law ('KCL').

7 On 22 September 2020, the plaintiff's solicitors, Velos & Velos, filed an originating motion seeking a grant of probate of the 2019 will. On 24 September 2020, the Probate Office notified Velos & Velos that the applicant had filed a caveat, and the Registrar of Probates sent a requisition to Velos & Velos for evidence from the deceased's treating medical practitioner to establish that the deceased had testamentary capacity when she executed the 2019 will.

8 The applicant was aware of the Registrar's requisitions, however, KCL filed a withdrawal of the applicant's caveat on 30 September 2020.

9 On 19 November 2020, probate of the 2019 will was granted to the plaintiff.

10 On 30 November 2020, the applicant issued a proceeding seeking provision from the estate of the deceased, pursuant to Part IV of the Administration and Probate Act 1958 (Vic) ('the Part IV proceeding').[2] .

11 On 11 December 2020, the applicant also lodged a caveat with the Registrar of Titles claiming an interest in the Richmond property. This caveat was referred to in the applicant's affidavit sworn 29 January 2021 in support of her claim for provision in the Part IV proceeding, however, the interest claimed in the property caveat was not exhibited to the affidavit.[3]

12 On 1 February 2021, orders were made in the Part IV proceeding for the filing of affidavits and for a mediation to take place by 16 April 2021. In the orders, it was recorded that the applicant sought provision in the amount of 75 per cent of the net estate of the deceased.

13 The mediation of the Part IV proceeding was held on 12 April 2021. The plaintiff attended in person and the applicant attended via Zoom from Canada. Both parties were represented by counsel and their solicitors at the mediation. The mediation did not resolve the applicant's claim, and the proceeding was listed for further directions on 25 May 2021.

14 On or about 16 April 2021, KCL ceased acting for the applicant and she retained the firm of Lewenberg & Lewenberg to act on her behalf. On 23 April 2021, Lewenberg & Lewenberg filed a notice of acting on behalf of the applicant.

15 On 20 May 2021, Velos & Velos forwarded proposed orders for directions for the trial of the Part IV proceeding to Lewenberg & Lewenberg.

16 On 21 May 2021, the applicant filed a summons seeking revocation of the grant of probate of the 2019 will, pursuant to r 11.02 of the Supreme Court (Administration and Probate) Rules 2014. By letter of the same date, Lewenberg & Lewenberg informed Velos & Velos of their instructions in regards to the application for revocation and stated that they considered it inappropriate to file any further timetabling orders in the Part IV proceeding as the determination of the revocation proceeding would have a significant bearing on the status and progress of the Part IV proceeding. Lewenberg & Lewenberg thus suggested that the Part IV proceeding be adjourned.

17 The Part IV proceeding was adjourned and remains adjourned. In her affidavit filed in the Part IV proceeding, the applicant deposed that she has relatively few assets. In an affidavit dated 7 June 2021, John Velos, the plaintiff's solicitor, deposed that the plaintiff's costs in the Part IV proceeding were $68,800 as of May 2021, and were continuing to accumulate.

Applicant's demands and threats of further litigation against the plaintiff

18 One week before the hearing of the revocation application on 6 August 2021, Lewenberg & Lewenberg wrote to Velos & Velos demanding that the plaintiff not dispose of the deceased's chattels and stating that the applicant would otherwise issue proceedings for damages against the plaintiff. The correspondence also noted that the plaintiff had been on notice since at least October 2020 that she was obliged to pay rent to the deceased's estate for residing in the Richmond property, and requested confirmation that rent of not less than $400 per week had been paid from the date of the deceased's death.

19 The letter also noted that, failing confirmation of the payment of rent, Lewenberg & Lewenberg held instructions to make an application to seek the removal of the plaintiff as executor of the estate and to commence appropriate legal proceedings for damages suffered by the estate, and advised that the applicant otherwise reserved her rights absolutely.

20 In her summons filed 21 May 2021, the applicant sought revocation of the grant of probate of the 2019 will, and a grant of probate of the deceased's will dated 21 November 2013 ('the 2013 will'), alternatively, of the deceased's penultimate will dated 19 April 2018 ('the 2018 will'). However, the relevant part of the summons for determination can only be the application for revocation of the 2019 will. The remaining relief is misconceived, as the 2013 will cannot take precedence over the 2018 will unless both the 2019 will and the 2018 will were determined to be invalid. Even if that were to occur, such an application must be commenced separately.

21 The applicant filed grounds for revocation of the 2019 will on 21 June 2021. The applicant's grounds for revocation alleged that at the time of execution of the 2019 will, the deceased lacked testamentary capacity and did not know and approve of the contents of the 2019 will.

22 The applicant alleged that the 2019 will was drawn and executed in circumstances that raised suspicion as to the deceased's mental competency and gave rise to a well-grounded suspicion that the deceased may not have appreciated and approved of the contents of the 2019 will.

23 The particulars to the applicant's grounds for revocation are detailed and lengthy, commencing with events from 2011 and moving through to 2019, as follows:

1. By April 2019, [the deceased] was aged, significantly cognitively impaired and infirm.

PARTICULARS

(i) Prior to 2011, [the deceased] was functionally and mentally independent and was able to live at home, independently.

(ii) Between March 2011 and November 2017, Stamatia's daughter, Theodora Paraskevopoulos ... was [the deceased's] primary carer and assisted [the deceased] with many daily tasks, including grooming, dressing, taking medications, shopping, cooking and providing meals, arranging transport to and from medical appointments, and arranging social activities.

(iii) During this period:

• (A) [the deceased] had several medical procedures, including, in around 2013, cranial surgery in relation to a benign brain tumour (frontal glioma), in around 2016, installation of a pacemaker, and a stroke that paralysed the right side of her body;

• (B) Was prescribed many medications and had many medical appointments, including with neurology and cardiology clinics and specialists, including cardiologist, Dr Justin Mariani.

(iv) From 2014, [the deceased] began to demonstrate a loss of language skills in her second language, English.

(v) From 2016, [the deceased] demonstrated significant decline in memory and mental state, including: not knowing the day, date or year, if asked; not being capable of independently completing simple task (sic) such as filling a kettle, boiling water or cooking; forgetting to take medication; being unable to shop, pay bills, operate bank cards or manage her bank account.

(vi) In around 2016, [the plaintiff] and her family moved into [the deceased's] house.

(vii) By 2017, [the deceased] was frequently confused and disorientated, had trouble remembering recent events, would forget what she was doing while in the middle of a task, could not read English, had little or no comprehension of spoken English, could barely write, was reluctant to get out of bed, and was frequently sad, withdrawn and quiet.

(viii) Between 2 December 2016 and 9 September 2017, [the deceased] received regular home visits from a local general practitioner, Dr Thuy Nguyen.

(ix) In 2017, Dr Mariani and Dr Nguyen recommended that [the deceased] be assessed by a geriatrician and a referral was arranged for [the deceased] to see Dr Stephen Campbell, a specialist geriatrician.

(x) On 31 August 2017, [the deceased] attended a follow-up consultation with Dr Campbell, at which [Stamatia's daughter] acted as translator.

(xi) During the consultation, Dr Campbell:

• (A) recorded that [the deceased] has been receiving Sertraline: a drug used to treat depression, panic attacks and social anxiety disorder.
• (B) recorded a history of: progressive decline in short-term memory function (amnestic in character), starting prior to the benign brain tumour; a loss of many of her language skills; impaired co-ordination (dyspraxia); agitated low mood; physical restlessness, and; extensive pain, particularly in the thoracic and lumber (sic) spine regions.
• (C) diagnosed [the deceased] with Alzheimer's Dementia and prescribed, at progressively increasing doses, Memantine: a medication used to slow the progression of moderate to severe Alzheimer's disease.
• (D) directed that [the deceased] return for a review after two months, to check for a response to the changes in her medications.

(xii) Following the consultation:

• (A) Dr Campbell sent a letter, setting out each of the matters described in particular xii (stet), above, to [the deceased's] regular general practitioner, Dr Bongiorno, and copied to Dr Nguyen. Dr Campbell recorded [the deceased's] contact telephone numbers as being the landline at [the deceased's] house and [the plaintiff's] mobile.
• (B) Dora had the script for Memantine filled and [the deceased] began taking this medication.
• (C) [Stamatia's daughter] notified members of the immediate family, including [the plaintiff], that [the deceased] had been diagnosed with Alzheimer's Dementia.

(xiii) From in or around November 2017, [the plaintiff] took over as [the deceased's] primary carer and considered such task to be "difficult" and involving "high care maintenance", including substantial daily medical care for [the deceased], nursing [the deceased] through acute medical episodes (including Sciatica, Temporal Arteritis, and a stroke), and taking [the deceased] to "all her medical appointments and to the Specialists".

(xiv) As a result of the change in primary carer arrangements, [Stamatia's daughter] was unable to take [the deceased] to her review appointment with Dr Campbell, in late 2017.

(xv) In 2018, [the deceased] was frail, could barely walk and was using a walker when she did walk, was panting, appeared lost and disoriented, could not sustain a conversation, and was hospitalised.

(xvi) During 2018 and 2019 [the deceased] had a series of falls, including a fall in April 2019 that caused significant injury to her left arm.

(xvii) In August 2019, [the deceased] agreed to a suggestion put to her by [Stamatia's daughter] that [Stamatia's daughter] was seeing [the deceased] on a daily basis when, in fact, [the deceased] had only seen [Stamatia's daughter] twice during the previous 18 months. In response to this exchange, [the plaintiff] said that she understood that [the deceased] wasn't "cognitive".

(xviii) In around September 2019, [the deceased] was again hospitalised, in the Alfred Hospital.

(xix) On 3 August 2020, [the deceased] was admitted to St Vincent's Hospital, Melbourne ... and remained there until her death in the evening of 15 August 2020.

(xx) Dr Nupoor Nupoor Tomar, the certifying medical practitioner on [the deceased's] death certificate recorded, as the duration of [the deceased's] last illness, "Dementia 3 Years".

(xxi) On 12 November 2020, [the plaintiff] wrote to St Vincent's, stating inter alia that she had been [the deceased's] Medical Power of Attorney and that she had "no records of Dementia" and asking that the hospital take action to "correct" [the deceased's] death certificate.

(xxii) On 30 November 2020, [the plaintiff] wrote to St Vincent's, asking for an email "confirming the changes on the death certificate as my Mother's Solicitor requires the confirmation of change made".

(xxiii) On 1 December, A/Prof Mark Boughey, Director of Palliative Care Services at St Vincent's, provided [the plaintiff] with a letter addressed to Births, Deaths and Marriages (and dated 26 November 2020), stating inter alia that [the deceased] "might have had a cognitive impairment but there was no formal diagnosis of dementia and this was an error to have had this written on the certificate. There was no indication that her cognitive impairment was a contributing factor or a secondary cause of her death".

1. No medical assessment of [the deceased's] mental competency was undertaken prior to, at, or around the time of the drawing and execution of the 2019 Will.

PARTICULARS

(i) In early April 2018, prior to taking instructions in respect of the 2018 Will, the Plaintiff's solicitor, Mr John Velos, recommended that, in light of [the deceased's] age (then, 82), [the deceased] obtain a letter from her general practitioner to say that she had mental capacity to instruct solicitors.

(ii) Subsequently, Dr Bongiorno signed a medical certificate, dated 9 April 2018, that stated: "This is to certify that I have been treating [the deceased] (DOB 21/1/36) in my capacity as general medical practitioner. In my opinion she has the mental capacity to understand legal documents and can sign these".

(iii) Dr Bongiorno's certificate was subsequently stamped by Mr Velos's (sic) office as "RECEIVED 19 APRIL 2018", being the date on which [the deceased] executed the 2018 Will.

(iv) The instructions for the 2019 Will are said, by the Plaintiff's solicitor, Mr John Velos, to have been provided on 19 March 2019, and [the deceased] is said to have signed the 2019 Will on 1 April 2019.

(v) At no time prior to, or following, the taking of instructions and prior to the signing of the 2019 Will did Mr Velos seek or obtain any letter, report or certificate from [the deceased's] general practitioner, or any other medical practitioner, with respect to her current testamentary capacity.

(vi) Dr Bongiorno retired from practice in 2018, after the making of the 2018 Will, and Dr Gamboni became [the deceased's] treating medical practitioner, in or around August 2018.

(vii) At or around the time of the making of the 2019 Will, neither Dr Bongiorno nor Dr Gamboni provided a letter, report or certificate with respect to [the deceased's] general health, cognitive function or testamentary capacity.

(viii) After [the deceased's] death, and following requests from the Assistant Registrar of Probates on 24 September 2020, 30 September 2020, and 5 November 2020, [an affidavit of Dr Bongiorno] and [an affidavit of Dr Gamboni] were filed, exhibiting recent medical certificates, dated 25 August 2020 (Dr Gamboni) and 16 October 2020 (Dr Bongiorno and Dr Gamboni), that certified that [the deceased] had not suffered from dementia, stating that:

• (A) Dr Bongiorno had, in treating [the deceased] for twenty years, "never known her to suffer from dementia";

• (B) Dr Gamboni, having seen [the deceased] regularly during the period between August 2018 and August 2020, considered that "she was of sound mind" and "showed no signs of dementia".

(ix) In fact, in August 2017, Dr Campbell had diagnosed [the deceased] with Alzheimer's Dementia, and prescribed medications in respect of same, and communicated both facts, in writing, to Dr Bongiorno. Such letter should have been placed on Dr Bongiorno's file and, therefore, should also have been available to Dr Gamboni.

(x) In respect of [the deceased's] multiple admissions at St Vincent's, the hospital file recorded [the deceased] as having cognitive impairment and this would, ordinarily, have been noted in discharge notes and other reports provided to her general practitioners, Dr Bongiorno and Dr Gamboni.

1. As a consequence of her cognitive impairment, [the deceased's] ability to read, write and communicate was significantly compromised.

PARTICULARS

(i) [The deceased] spoke Greek as her first language.

(ii) As set out in the particulars subjoined to paragraph 11, above, at the time of the execution of the 2019 Will, [the deceased] could not read or write in English and, at best, had limited or no ability to converse in English.

(iii) [The deceased's] signature on each of the pages of the 2019 Will is crudely printed and not in the cursive form shown in the 1989 Will and the 2013 Will.

1. As a result of her cognitive and physical impairments, [the deceased] was not capable of arranging, or being taken to, an appointment with the solicitor who made the 2019 Will.

PARTICULARS

(i) By 19 March 2019, when the instructions for the 2019 Will are said to have been taken by the Plaintiff's solicitor, Mr John Velos, [the deceased]:

• (A) As set out in paragraph 11, above, and the particulars subjoined thereto, was significantly cognitively impaired, was frail, could barely walk, required assistance to be taken to all medical appointments, and had had a series of falls in the previous year, including a fall in April 2019 that caused significant injury to her left arm.
• (B) As set out in the particulars subjoined to paragraph 15, below, had, in May 2018, appointed [the plaintiff] as her Attorney in Financial, Personal, and Medical matters.

1. The dispositions and affections in the 2019 Will are inconsistent with, and a radical departure from, testamentary dispositions long adhered to, including in a recently executed Will.

PARTICULARS

(i) As set out in paragraphs 6-9, above, each of [the deceased's] wills prior to the 2019 Will, made provision for [the applicant].

(ii) In August 2017, [the deceased] and [the applicant] discussed [the deceased's] testamentary intentions and [the deceased] stated that she intended to make provision for [the applicant].

(iii) By letter dated 11 May 2018, the Plaintiff's solicitor, John Velos, notified [the applicant] that the 2018 Will had been executed as well as an Enduring Financial Personal Power of Attorney and a Medical Power of Attorney, appointing [the plaintiff] as [the deceased's] Attorney in Financial, Personal and Medical matters.

(iv) Between the execution of the 2018 Will and the preparation of the 2019 Will, there was no change in the circumstances in the relationship between [the applicant] and [the deceased]:

• (A) [the deceased] maintained a good relationship with [the applicant];

• (B) [the deceased] remained in regular contact with [the applicant], by telephone, as had been the case since 2010, when [the applicant] relocated to Canada;

• (C) they had not argued, fallen out, or had any period of estrangement.

(v) The Plaintiff's solicitor, John Velos, did not notify [the applicant] that the 2019 Will had been executed as opposed to the Plaintiff's solicitor notifying [the applicant] that the 2018 Will had been executed.

(vi) [The deceased] made no reference to having changed her will when speaking to [the applicant] after 1 April 2019, when the 2019 Will is said to have been signed, including during the course of a visit to Melbourne by [the applicant], in August 2019.

(vii) The reference in the 2019 Will to provision having been made to [the applicant] was inaccurate in respect of matters known to [the deceased] prior to the onset on [sic] her cognitive impairments, namely:

• (A) The 2019 Will states that [the deceased] and Elias had made provision for [the applicant] by way of "three (3) blocks of land in Frankston Victoria which she sold and obtained the proceeds of same";
• (B) At no time did [the deceased] or Elias gift [the applicant] three blocks of land or, indeed, any land in Frankston;
• (C) In 1982, Elias transferred to [the applicant] a property in Baxter, Victoria, comprising a single, vacant block of land, then worth between $5,000 and $8,000 (Baxter Property).
• (D) Following the breakdown of [the applicant's] marriage, in 1989, the Baxter Property was put up for sale, with Elias' approval, so that [the applicant] could pay the sum of $40,000 to her ex-husband, by way of property settlement.
• (E) The Baxter Property was sold in 1990, for the sum of $58,000, with settlement on 18 September 1990. Of the sale proceeds, $40,000 was paid to [the applicant's] ex-husband and the balance was used to pay out the existing mortgage.

24 The applicant did not file an affidavit sworn by her in the revocation proceeding. Instead, she relied on affidavits of Mr Lewenberg affirmed 19 May 2021 ('the first Lewenberg affidavit') and 25 June 2021 ('the second Lewenberg affidavit') and affidavits of Stamatia's daughter, Theodora Paraskevopoulos ('Dora'), affirmed 21 May 2021 ('the first Paraskevopoulos affidavit') and 25 June 2021 ('the second Paraskevopoulos affidavit').

25 The first Lewenberg affidavit exhibited the 2019 will and the deceased's three prior wills, medical reports filed by the plaintiff in the probate proceeding and further medical reports referred to in an affidavit filed by the applicant in her Part IV proceeding. Mr Lewenberg deposed that after taking instructions from the applicant on 16 April 2021, the contents of the applicant's affidavit in the Part IV proceeding and the exhibited medical reports raised 'serious concerns about [the deceased's] mental and physical state' at the time the 2019 will was executed and that there was 'significant doubt about the accuracy of the matters deposed to' in affidavit evidence filed in the probate proceeding by medical practitioners treating the deceased.

26 Four wills of the deceased are before the Court: the 2019 will, the 2018 will, the 2013 will and a will dated 24 March 1989 ('the 1989 will'). The applicant's particulars alleged that the dispositions and affections of the 2019 will are inconsistent with, and a radical departure from, testamentary dispositions long adhered to, including in a recently executed will. As such, it is appropriate to consider the dispositions made in each of these wills.

27 The 2019 will names the plaintiff as the sole executor and beneficiary of the estate of the deceased. In relation to the applicant and Stamatia, the deceased set out her reasons for making no provision for them as follows:

I make no provision in this my will for my other two (2) daughters [Stamatia] and [the applicant], as [Elias] and I, during the lifetime of me and my husband, we made provision for our two (2) said daughters and gave property to [Stamatia] to build two (2) houses ... and to [the applicant] three (3) blocks of land in Frankston Victoria which she sold and obtained the proceeds of same, and I do not wish to give any more from my estate or Trust Fund to [Stamatia] and [the applicant].

28 The 2018 will was executed on 19 April 2018. It names the plaintiff as the sole executor of the deceased's estate and the plaintiff and the applicant as beneficiaries of the estate, in equal shares. The 2018 will contains the following stipulation in relation to Stamatia:

I make no provision in this my will for [Stamatia] as my husband ILIAS PAPAVASILIOU (sic) and I, during the lifetime of my husband, we made provision for my said daughter and gave property to [Stamatia] to build two (2) houses ... and I do not wish to give any more from my estate or Trust Fund to my said daughter.

29 The 2013 will was executed by the deceased on 21 November 2013, subsequent to the death of Elias. The 2013 will names the applicant and the plaintiff as executors of the deceased's estate, and provides that following the payment of all debts and testamentary expenses, the residue of the deceased's estate is to be left upon separate trusts for the applicant and the plaintiff in equal shares.

30 The 1989 will was made while Elias was still alive. It names Elias as executor and sole beneficiary of the deceased's estate, and in the event that he predeceased her, the applicant was to be executor. In that event, the deceased's real property in Greece was devised in equal shares to the applicant, Stamatia and the plaintiff, and all her real and personal property in Australia was to be left to the plaintiff for her sole use and benefit absolutely. Clause 4 of the 1989 will notes that the deceased has 'specifically excluded' the applicant and Stamatia 'from any benefit in [the deceased's] real and personal property in Australia' on the basis that the deceased had 'made adequate and proper provision for them in the past'.

31 Elias' final will, dated 23 December 1999, contains an identically worded exclusion of the applicant and Stamatia.

The deceased's health and care arrangements between 2011 and 2017

32 In the Part IV proceeding, the applicant deposed that the deceased was diagnosed with a benign brain tumour in 2013, and that she subsequently recovered and returned home with care and support.

33 In the second Lewenberg affidavit, Mr Lewenberg exhibited a document produced by St Vincent's Hospital dated 25 November 2016, containing discharge notes for the deceased for a hospitalisation period from 11 to 21 November 2016. The document records that the deceased was admitted to St Vincent's Hospital for an advanced kidney infection and notes that the deceased presented with a number of associated medical problems, including her existing brain tumour as well as 'cognitive impairment/dementia'.

34 In the first Paraskevopoulos affidavit, Dora deposed that she was the deceased's primary carer from March 2011 to November 2017 and had witnessed the deceased's increased needs for care from 2013 onwards, and her 'significant decline in memory and mental capacity' from 2016 onwards. Dora deposed that by this time the deceased 'could no longer shop and manage her bills/bank account, as she could not remember how to operate her bank cards or what was required in order to pay bills'.

35 Dora deposed that the deceased's mental state declined further in 2017 and the deceased 'no longer appeared to comprehend spoken English' and 'was frequently confused and disoriented'. In the second Paraskevopoulos affidavit, Dora deposed that in mid-2017 she procured a care assessment from a government agency, prompted by her observations and concern for the deceased's mental decline. The report which followed the screening, dated 28 August 2017, recorded that the deceased was 'completely unable' to manage her money, prepare meals or do housework, and that she experienced 'forgetfulness and confusion' and 'will be seeing a Geriatrician shortly'.

36 Dora deposed that she arranged for the deceased to attend an appointment with Dr Stephen Campbell, geriatrician ('Dr Campbell'), in late August 2017. Dora accompanied the deceased to this appointment and acted as interpreter.

37 In his report following this visit, Dr Campbell noted the deceased's various ailments and stated that Dora provided him with a history of progressive decline in the deceased's short-term memory. He noted the deceased had lost many of her language skills, demonstrated dyspraxia,[4] and that her memory loss was 'amnestic in character'.[5] He noted that the deceased had attained a low result in a mini mental state examination conducted that day, however opined that this could not be seen as a reliable measure due to 'language issues'. Dr Campbell diagnosed the deceased with Alzheimer's dementia, prescribed various changes to the deceased's medication regimen, and said that he would review the deceased in two months.

38 A copy of Dr Campbell's report was sent to Dr Thuy A Nguyen, general practitioner ('Dr Nguyen'). However, it appears that the report was not sent to Dr John Bongiorno, the deceased's regular general practitioner ('Dr Bongiorno'), as his name and address is struck through on the exhibited letter.

39 In the Part IV proceeding, the applicant exhibited a letter from Dr Nguyen dated 9 October 2020, together with Dr Campbell's report dated 31 August 2017. In the letter, Dr Nguyen stated that he regularly attended on the deceased at home between 2 December 2016 and 9 September 2017, at the request of Dora, and after that saw the deceased at his clinic on 18 September 2017 and 28 October 2017, with Dora again present on both occasions.

40 Dora deposed that the plaintiff and her family moved into the Richmond property in 2016 and that the plaintiff began telling the deceased in Dora's presence that she should be the deceased's carer. Difficulties arose between the plaintiff and Dora. In about November 2017 Dora voluntarily ceased being the deceased's carer. From November 2017 to the date of her death, Dora had limited access to the deceased, only recalling having seen the deceased on two occasions in 2018 and two occasions in 2019.

41 In her affidavit sworn 25 February 2021 in the Part IV proceeding, the plaintiff deposed that she was the deceased's full time carer in the deceased's last years, and that she took on the task so that the deceased could remain at home as her health declined and her need for care increased. The plaintiff deposed that the deceased's last years of 'high care maintenance' were demanding, with the plaintiff responsible for administering daily injections, monitoring the deceased's sugar levels, providing the deceased with a balanced diet, as well as taking her to her medical and specialist appointments. The plaintiff disputes the description of Dora as the deceased's carer prior to this and claims that while Dora was in and out of the Richmond property, there were times when she was absent for weeks. The plaintiff deposed that when asked, the deceased would tell the plaintiff that she and Dora had argued. The plaintiff stated that Dora did not like being told what to do by the deceased and that there were regular upsets between the deceased and Dora, which would cause Dora to leave the property.

42 In the Part IV proceeding, the applicant deposed that she moved to Canada in 2010 and made two trips to Melbourne, the first in August 2017 and the second in August 2019. Otherwise, the applicant deposed that she kept in touch with the deceased by telephone and was aware of the deceased's significantly higher care and support needs for her daily living activities around the same time. In the plaintiff's affidavit sworn in the Part IV proceeding, the plaintiff deposed that in the seven years between the applicant moving to Canada and her visit to Melbourne in August 2017, the applicant called the deceased only a few times. During the applicant's trip to Melbourne in August 2017, Dora told the applicant that she had taken the deceased to the appointment with Dr Campbell.

43 Reference is made above to discharge notes of St Vincent's Hospital dated 25 November 2016 where, inter alia, 'cognitive impairment/dementia' was noted. Subsequently, in a letter dated 26 November 2020 exhibited to an application by the plaintiff to amend the deceased's death certificate, Associate Professor Mark Boughey, Director of Palliative Care Services at St Vincent's Hospital, noted that the hospital records did not include a formal diagnosis of dementia for the deceased and stated as follows:

...[the deceased] might have had cognitive impairment but there was no formal diagnosis of dementia and this was an error to have this written on the [death] certificate. There was no indication that her cognitive impairment was a contributing factor or secondary cause of her death.

44 In response to requisitions from the Registrar of Probates dated 24 September 2020 and 5 November 2020 regarding the deceased's testamentary capacity, the plaintiff's solicitors filed affidavits of Dr Peter Brian Gamboni, general practitioner ('Dr Gamboni'), sworn 16 October 2020 and Dr Bongiorno sworn 18 November 2020.

45 In his affidavit, Dr Gamboni deposed to having been a treating medical practitioner of the deceased from August 2018 to 3 August 2020, that he 'saw her regularly during this time' and that throughout this period he believed the deceased 'was of sound mind' and 'showed no signs of dementia'. Dr Gamboni's affidavit exhibited two handwritten medical certificates, dated 25 August 2020 and 13 October 2020 respectively.

46 In the certificate dated 25 August 2020, Dr Gamboni wrote:

I treated [the deceased] from August 2018 until 3/8/20. I saw her regularly during this time and she was of sound mind all of this time until I saw her last on 3/8/20.

47 In the certificate dated 13 October 2020, addressed to the plaintiff's solicitors, Dr Gamboni wrote:

I treated [the deceased] from August 2018 until 3/8/20. I saw her regularly during this time and she showed no signs of dementia.

48 Dr Bongiorno deposed that he was a general medical practitioner who treated the deceased for 'more than 20 years', that he saw the deceased regularly during that time, and that he had 'never known her to suffer from dementia'. Dr Bongiorno also stated that the deceased 'on the 16th day of August 2020 did not suffer from dementia' and that the deceased 'had mental and testamentary capacity to make her Will and ... did not suffer from dementia'.

49 Dr Bongiorno also exhibited two handwritten medical certificates to his affidavit. In the first, dated 9 April 2018, Dr Bongiorno stated:

This is to certify that I have been treating [the deceased] in my capacity of general medical practitioner. In my opinion she has the mental capacity to understand legal documents and can sign these.

50 The second medical certificate is dated 15 October 2020, in which Dr Bongiorno stated:

This is to certify that I knew [the deceased] for more than twenty years, in my capacity of general medical practitioner. I have never known her to suffer from dementia. In my opinion she had the mental capacity to understand legal documents and was capable of signing these.

51 Although the 2018 will cannot be challenged in the revocation application,[6] the making of the 2018 will provides important background to the recent will-making of the deceased. Mr Velos filed affidavits setting out the details of the making of both the 2018 will and the 2019 will.

52 The deceased first retained Mr Velos to assist with the 2018 will. Mr Velos deposed that in early April 2018 the deceased contacted him as she wished to instruct his firm to prepare her will. Given the deceased's age, Mr Velos recommended that she obtain a letter from her general practitioner as to her mental capacity to instruct solicitors. Prior to her first attendance with Mr Velos, the deceased obtained the medical certificate from Dr Bongiorno dated 9 April 2018 set out above.

53 Mr Velos first met the deceased at his office on 16 April 2018. The applicant's son, Leigh Eisenberg, brought the deceased to Mr Velos' office. Mr Velos deposed that Mr Eisenberg remained in reception while Mr Velos took instructions from the deceased for the 2018 will and she provided Mr Velos with Dr Bongiorno's medical certificate. Mr Velos described the deceased as well presented, alert, lucid and pleasant, and deposed that she spoke in clear Greek and some English, although provided instructions 'mainly in the Greek language'.

54 The deceased again attended Mr Velos' office on 19 April 2018 to sign the 2018 will. Mr Velos deposed that on the two occasions that he met with the deceased in 2018, he explained the contents of the 2018 will to her, which was read and interpreted by him in the Greek language, and the deceased confirmed that she was happy with its contents. Mr Velos deposed that at all material times the deceased appeared alert, composed and rational in their discussions. Mr Velos deposed that he 'formed the view that she was capable of providing instructions for' the 2018 will and 'had the mental capacity to provide instructions and sign' the 2018 will.

55 On 18 March 2019, Mr Velos deposed to having received a telephone call from the deceased. The deceased told Mr Velos that she wanted to make a new will, and an appointment was arranged on 19 March 2019. Mr Velos did not obtain a further medical assessment of the deceased when he took instructions for the 2019 will.

56 Mr Velos deposed that on 19 March 2019 he spent at least two hours with the deceased, going through the 2018 will with her and making the changes she wished to make. Mr Velos deposed that the deceased was very clear and determined as to what she wanted and appeared to fully understand that she was providing him with instructions to prepare her last will. He deposed that she told him that 'she had given it a lot of thought and wanted to make it final', and that the deceased freely expressed her reasons for amending the 2018 will.

57 On 1 April 2019 the deceased attended at the office of Mr Velos and signed the 2019 will in the presence of Mr Velos and his legal secretary. The details of the making and signing of the 2019 will are set out in detail in Mr Velos' affidavit sworn 19 November 2020, as follows:

... at all material times [the deceased] appeared alert, composed and rational in our discussions and she freely expressed her views and provided instructions in the Greek language for me to prepare her last Will and Testament of her own free will.

At all material times and at the time of providing instructions for the preparation of [the 2019 will] and at the time of signing [the 2019 will] I believe she had considered and understood the nature of the act of making a Will and the effects that the contents of her Will might have upon her three (3) daughters and extended family.

I have no doubt that at all material times [the deceased] fully understood that she was providing me with instructions for me to prepare [the 2019 will], understood the nature, force and effect of providing instructions for the preparation of [the 2019 will] as well as at the time she signed [the 2019 will].

I believe that at all material times in providing instructions to me for the preparation of [the 2019 will] and at the time of executing [the 2019 will] she had insight and was aware of the property arrangements she was making in [the 2019 will] including her largest asset being [the Richmond property] be left to [the plaintiff].

I believe that at all material times including the time of providing instructions to me for [the 2019 will] and at the time of signing [the 2019 will] [the deceased] fully appreciated the various potential claims that might be made by her three (3) daughters and clearly stated that [Stamatia] and [the applicant] had been provided for during the lifetime of herself and [Elias] and that she wanted to leave all her estate to [the plaintiff] which was the express wish of [Elias] and herself.

I believe that at all material times including at the time of providing instructions to me and signing [the 2019 will] [the deceased] had a clear understanding of her own family situation with her three (3) daughters and considered all family members as to whether they should be provided for in [the 2019 will] as well as clearly stating that she wanted to exclude [Stamatia] and [the applicant] as they had been provided for during the lifetime of [Elias] and herself and provided a reasonable reason for their exclusion which was put in [the 2019 will] at paragraph 4.

At all material times that I met in Conference with [the deceased] I clearly communicated with her in the Greek language and interpreted all documents to her from the English language to the Greek language and took clear verbal instructions from her in the Greek language so that she fully understood the nature of the document being a Will and its legal force and effect making sure that she understood that what (sic) she wanted to do in providing instructions for [the 2019 will].

I also checked with her at the time of signing [the 2019 will] that she agreed and again understood that this was consistent with what she had instructed me to prepare [the 2019 will] on her behalf which was again interpreted to her from the English language to the Greek language and she agreed that she was happy with the contents fully appreciating that she was leaving [the Richmond property] to [the plaintiff] and the nature and effect that [the 2019 will] might have on her other family members and the property arrangements that she had put in place by signing [the 2019 will] in my presence and the presence of ... the other Witness to [the 2019 will].

At all material times and in particular at the time of obtaining her instructions for [the 2019 will] and at the time of signing [the 2019 will] I have no doubt that [the deceased] appeared alert, composed, rational and possessed the requisite legal and testamentary capacity to provide instructions and sign [the 2019 will].

If I had any doubt about her clear understanding or have had a doubt about her legal and testamentary capacity I would not have proceeded to take instructions in the preparation of [the 2019 will] or the signing of [the 2019 will].

58 By a further affidavit sworn 7 June 2021, Mr Velos deposed that:

On 19 March 2019 [the deceased] clearly stated to me that she wanted to remove [the applicant] from her Will as she was in Canada and wanted to leave everything to [the plaintiff], she said: "to [the plaintiff] only as she is the one caring for me and looking after me".

She also said "She takes me to the doctors, to the Hospital and cares for me every day".

I asked her as to whether she was sure that this is the only change that she wanted to make and she said yes. "Everything I have to go to [the plaintiff] after my death".

[The deceased] attended at my office on 1st April 2019 and signed [the 2019 will] in the presence of myself and [a witness].

59 In the same affidavit, Mr Velos also deposed as to the four occasions that he attended on the deceased regarding the 2018 will and the 2019 will as follows:

At all material times when [the deceased] attended our office in the preparation of [the 2018 will] on 16th April 2018 and the signing of [the 2018 will] on 19th April 2018 and the preparation of [the 2019 will] on 19th March 2019 and signing of [the 2019 will] on 1st April 2021 she appeared well presented, confident, alert, composed, lucid and freely spoke her mind in Greek with me as to what she wanted to put in each Will and each time she signed it without any hesitation and my assistant ... and I witnessed each Will. At every attendance she displayed excellent communication skills in the Greek language and had partial ability to communicate in English.

On the four (4) occasions I had a Conference with the [deceased] she was aware of the time, the date, her surroundings, being in a solicitors' office, providing instructions for her Will on each occasion as well as during the time of executing each of the Wills. She was fully aware of what she wished to provide in each of her Wills and provided clear instructions to me on each occasion in the preparation and of (sic) signing each Will. She was fully aware of the contents in each Will as well as fully understanding the legal force and effect of the contents of each Will, particularly as to how it would affect the family members that she was including or excluding in her Will on each occasion.

With respect to [the 2019 will] I had no doubt that the provisions contained in [the 2019 will] were fully understood by [the deceased] as she had clearly expressed her final wishes in [the 2019 will] as her absolute and final wishes which she clearly wanted to provide as a final Will and Testament.

60 The power to revoke a grant of probate is discretionary and involves a consideration of all the circumstances of the particular case.[7] The onus rests on the party raising doubt as to the validity of the relevant will. Generally, an applicant who seeks to revoke a grant must persuade the Court that they have standing to make the application; provide a reasonable explanation for the delay in bringing the application to revoke the grant; and show a prima facie case to challenge the grant of probate.[8]

61 Other discretionary considerations may include whether an applicant has acquiesced in a grant already made; whether delay has occasioned prejudice making it inequitable to pursue the claim; whether there is any utility in revoking the grant, and whether, having regard to the procedural history and the purposive character of the probate jurisdiction, it is consistent with the due and proper administration of the estate and the due administration of justice.[9] Generally, estate litigation needs to be kept under a tight rein, such that in some circumstances there may be a summary determination of a revocation application so that an estate is not exposed to expensive and protracted litigation.[10]

62 The applicant is a beneficiary under the deceased's penultimate will, the 2018 will, and accordingly has standing to make an application for revocation.

The applicant's delay and other discretionary considerations

63 The applicant's application was made against the backdrop of the applicant initially filing a caveat with the Registrar of Probates challenging the making of a grant of probate of the 2019 will on 19 August 2020. At that time, the applicant was represented by KCL and was aware that she would seek to challenge the validity of the 2019 will. Six weeks later, on 30 September 2020, KCL withdrew the caveat on behalf of the applicant. At that time, the applicant knew the Registrar of Probates had sent requisitions for evidence to establish the deceased's testamentary capacity when she executed the 2019 will. The applicant also withdrew the caveat in the knowledge of Dr Campbell's medical report dated 31 August 2017.

64 On 19 November 2020, probate of the 2019 will was granted to the plaintiff. In the circumstances, in withdrawing the caveat, the applicant has acquiesced to the grant of probate of the 2019 will. This conclusion is supported by the applicant then commencing the Part IV proceeding only 10 days later. The Part IV proceeding remains on foot and is adjourned pending the determination of the revocation application. The applicant is now in a position of conducting two extant proceedings that are in conflict with each other, that is, the Part IV proceeding accepts that the 2019 will is valid whereas the revocation application alleges that the 2019 will is invalid.

65 As well as these two extant and conflicting proceedings, the applicant has also made unwarranted peremptory challenges that affect the plaintiff seemingly without a proper basis. The first was the lodgement of a caveat with the Registrar of Titles on 11 December 2020 claiming an interest in the Richmond property. This occurred on 30 November 2020, shortly after the applicant commenced the Part IV proceeding. The second was one week before the hearing of the revocation application, when the applicant made threats to the plaintiff regarding certain estate assets, asserted that the plaintiff was obliged to pay rent to the estate and had failed to do so, and threatened to seek removal of the plaintiff as executor of the deceased's estate and to seek damages from the plaintiff. The threat to remove the plaintiff as executor of the estate is again in conflict with the revocation application, as the removal of the plaintiff as executor accepts that the grant of probate is valid.

66 By reason of these circumstances, the applicant's conduct in making contradictory claims against the estate and unwarranted attacks has caused prejudice and delay to the plaintiff. The applicant has also caused the incurring of costs in circumstances where the applicant claims that her financial position is poor, which suggests that the plaintiff may have difficulty in recovering those costs.

67 The applicant's first ground is that the 2019 will was drawn and executed in circumstances that raise suspicion as to the deceased's mental competency. The latter phrase is taken as a reference to the deceased's testamentary capacity.

68 The test for testamentary capacity is a legal test and is stated in Banks v Goodfellow:

It is essential to the exercise of [a testamentary] power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.[11]

69 The usual rule is that a testator must possess testamentary capacity at the time of the execution of a will.[12] Determining testamentary capacity is a question of degree to be solved as a whole on the facts disclosed by the entire body of evidence, which may include medical evidence as well as lay witnesses, and depends on the circumstances of each case.[13] While in some circumstances medical evidence may be probative as to questions of testamentary capacity, it is not essential or determinative. Further, a medical test administered by a doctor that discloses impaired mental functioning is not decisive. A person who has a recognised mental or psychiatric illness is not necessarily to be treated as lacking testamentary capacity.

70 Lay witnesses are usually in a position to provide probative evidence for determining testamentary capacity, including evidence as to the provenance of the document.[14] A person's exposure to a testator that is closely contemporaneous with the making of a will may prove valuable. The weight to be given to a solicitor's evidence will depend on his or her experience, training, and understanding of the test of testamentary capacity; his or her ability to make an assessment of capacity taken with the quality of the assessment made, as appears from any contemporaneous notes and records; his or her knowledge of and familiarity with the will-maker, including the age and state of health of the will-maker; his or her independence; and the will-maker's presentation to the solicitor.[15]

71 The applicant's second ground is that the 2019 will was drawn and executed in circumstances that give rise to a well-grounded suspicion that the deceased may not have appreciated and approved of its contents.

72 An assertion that a will was executed in suspicious circumstances is, in reality, an assertion of lack of knowledge and approval.[16] Ultimately it is a testator's understanding that is decisive in determining whether the testator knew and approved of the contents of their will.[17] The question is whether the deceased actually knew the substantive content of the particular will and approved of that content.

73 The applicant's particulars focused on the health of the deceased from the period from 2011 to the date of her death, and included that 'no medical assessment of the deceased's mental capacity was undertaken prior to, at, or around the time of the drawing and execution of the 2019 will'. The applicant queried the basis for Mr Velos' belief that the deceased 'possessed the requisite legal and testamentary capacity to provide instructions and sign' the 2019 will, in the absence of contemporaneous medical evidence.

74 It is common ground that by April 2019 the deceased was aged 82 years and had a variety of health issues, and that a medical certificate was not obtained when she gave instructions for and executed the 2019 will. Although a medical certificate was not obtained for the deceased at that time, the affidavits of her treating doctors Dr Gamboni and Dr Bongiorno support that the deceased had testamentary capacity when the 2019 will was executed. In addition, Mr Velos was exposed to the deceased for a substantial period of time when he took instructions for and witnessed the deceased's signature on the 2019 will.

75 Mr Velos is an experienced solicitor, with more than 40 years of experience in the area of wills and estates. Mr Velos deposed in detail as to the process of taking instructions for and signing the 2019 will. He deposed to being able to read, write and speak both the English and Greek languages fluently. While the deceased 'was unable to read English' she 'was able to understand and speak the Greek language' at the time of executing the 2019 will, and Mr Velos deposed to having interpreted the 2019 will into Greek for the deceased. He deposed that the deceased 'seemed to perfectly understand' the contents of the 2019 will and expressed approval of such content to Mr Velos and his secretary, the other witness of the 2019 will.

76 From Mr Velos' evidence, it is clear that the deceased understood the nature of the act of making a will and its effects, understood the extent of her property, was able to comprehend and appreciate the claims to which she ought to give effect and provided an explanation for so doing which was included in the 2019 will. Applying the test in Banks v Goodfellow, Mr Velos' evidence supports a conclusion that the deceased had testamentary capacity at the time the 2019 will was made and executed.

77 The applicant also claimed that the dispositions and affections in the 2019 will were inconsistent with, and a radical departure from, the deceased's testamentary dispositions long adhered to, including in a recently executed will.

78 In the 2019 will, the deceased explained her reasons for not making any provision for the applicant, namely, that the deceased and her husband gave the applicant three blocks of land in Frankston which she sold and then retained the proceeds of sale. The applicant accepted that her father transferred a property in Baxter to her in 1982 which was a single block of land. In 1990, she sold the property following the breakdown of her marriage.

79 The applicant claimed that before the deceased's cognitive decline, the deceased was aware that the property was a single block located in Baxter, contrary to what is recorded in the 2019 will. However, the applicant also acknowledged that the certificate of title for the property records that it was located in the Parish of Frankston and comprised three lots. The applicant's particulars alleged that this information might lead a person unfamiliar with the history of the Baxter property to describe it as 'three blocks in Frankston'. While these details may or may not be correct, such distinctions do not establish a lack of testamentary capacity or knowledge and approval. Clearly the deceased remembered that the gift of this property had been made to the applicant 37 years earlier, as her instructions to Mr Velos included reference to it in giving her reasons for not providing for the applicant in the 2019 will.

80 In the 2018 will and the 2013 will, the estate of the deceased is left to the plaintiff and the applicant in equal shares. The difference between the two wills is that in the 2018 will, the plaintiff is the sole executor, and in the 2013 will both the plaintiff and the applicant are named executors. However, in the 1989 will, the deceased left all her real and personal property in Australia to the plaintiff and excluded the applicant and Stamatia. The same provision was found in Elias' will.

81 A review of the deceased's testamentary history does not support the applicant's claims. The disposition to the plaintiff made under the 2019 will bears substantial similarity to that made under the 1989 will, some 30 years earlier. Throughout her lifetime, the deceased provided reasons for not making provision for both the applicant and Stamatia across multiple of her wills. Indeed, the only consistently held testamentary desire on the part of the deceased was a wish to provide for the plaintiff, which desire is reflected in the terms of the 2019 will.

82 For these reasons, the applicant has failed to establish a prima facie case for revocation of the 2019 will, and her application for revocation of the grant of probate of the 2019 will must therefore be dismissed.

83 The applicant challenged the 2019 will within days of the death of the deceased and has since continued to do so in a variety of ways. She made multiple and contradictory claims against the plaintiff, and levelled unwarranted peremptory attacks against the plaintiff in the course of the litigation. As a result, the applicant has caused prejudice to the plaintiff and has delayed the due administration of the estate. In view of the applicant's acquiescence to the grant of the 2019 will by virtue of her contradictory claims, it would be unjust and inequitable for her revocation application to be continued. The applicant has also not established a prima facie case for revocation of the grant of probate of the 2019 will. In light of these conclusions, it is unnecessary to consider the plaintiff's summons seeking dismissal of the revocation application and, in the event that the revocation application is not dismissed, security for costs from the applicant_._

84 The Court orders that the applicant's summons seeking revocation of the grant of probate of the will of Theodora Papavasiliou, deceased, dated 1 April 2019 be dismissed.

85 In the event that the parties are unable to agree on costs, the parties are to file short written submissions by 1 March 2023, with costs to be determined on the papers.

[1] The death certificate of the deceased, as originally registered on 24 August 2020, recorded the date of death as 16 August 2020. The death certificate was amended on 28 May 2021 by application of the plaintiff.

[3] A family provision claim cannot support a caveatable interest in the Richmond property.

[4] Being a difficulty in activities requiring co-ordination and movement.

[5] That is, characterised by a loss of facts, information and experiences.

[6] For the reasons provided at [20] above.

[7] Lana Clarice Photios as Executor of the Estate of Henry Basil Photios v David Peter Photios [2018] NSWSC 1414, [71] (Rees J), referring to Bramston v Morris (Supreme Court of New South Wales, Powell J, 20 August 1993) and Re Kouvakas; Lucas v Konakas [2014] NSWSC 786 ('Re Kouvakas'), [293]-[294] (Lindsay J); Gardiner v Hughes (No 2) [2019] VSCA 198, [43] (Kyrou, McLeish and T Forrest JJA).

[8] See, eg, Offley v Best [1793] EngR 778; (1667) 83 ER 361; Re Gillard [1949] VicLawRp 22; [1949] VLR 378, 381 (Barry J); Edwards v Boyd (1958) 75 WN (NSW) 525; Re Egan [1963] VicRp 46; [1963] VR 318, 320 (Herring CJ); Van Wyk v Albon [2011] VSC 120; Re Kouvakas (n 7) [285]-[288], [309] (Lindsay J), citing Swalwell v Swalwell (Supreme Court of New South Wales, Needham J, 15 July 1988); Cole v Paisley [2016] NSWSC 349, [53] (Lindsay J).

[9] Re Kouvakas (n 7) [284]-[288].

[10] Re Kouvakas (n 7) [319]-[320].

[11] (1870) LR 5 QB 549, 565 (Cockburn CJ for the Court).

[12] Ibid 568 (Cockburn CJ for the Court).

[13] Attwell v Morgan [2019] WASC 182, [425] (Curthoys J); Starr v Miller [2021] NSWSC 426, [488] (Hallen J).

[14] Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197, [65] (Hodgson JA, Young JA and Bergin CJ in Eq agreeing); Re Sue [2016] NSWSC 721.

[15] Loosley v Powell [2018] NZCA 3; [2018] 2 NZLR 618, 632 [51] (Asher J for the Court).

[16] Veall v Veall [2015] VSCA 60; (2015) 46 VR 123, 175-6 [173] (Santamaria JA, Beach and Kyrou JJA agreeing), citing Hoff v Atherton [2005] WTLR 99, [64] (Chadwick LJ).

[17] Ibid 178 [179] (Santamaria JA, Beach and Kyrou JJA agreeing).