Plaintiff v MARIA KARAKOSTA

PRACTICE AND PROCEDURE - Caveator sought retrospective extension of time before expiry of caveat to file and serve grounds of objection - Extension of very short duration - No prejudice claimed - Extension granted - Supreme Court (Administration and Probate) Rules 2014 r 8.03(3)(b).

1 Should Kirche Karakostov (Kirche) be granted probate of George Karakostov's will dated 6 April 2023 (the 2023 will)? Or should I dismiss Kirche's application for probate on the grounds of objection to probate filed by Kliment Karakostov (Kliment)? Kliment contends that George Karakostov lacked testamentary capacity when he made his will on 6 April 2023.

2 George Karakostov (George) died on 26 May 2023, aged 85. He was survived by his wife, Maria Karakosta. They had no children. George had a number of nieces and nephews, the children of his siblings, including Kliment and Kirche.

3 According to Kirche's evidence about the members of George's wider family, which was not challenged and I accept, George had five siblings, Stefan, Chris, Grigor, Spiro and Lube.

4 George first came to live in Australia with Stefan and Grigor in the early 1970s. The family originally came from Macedonia. George bought a house in Cremorne, Melbourne, near Richmond. Its ownership may have been shared with other members of the family for some time. George married Maria Samaris, who took the surname Karakosta. They ceased to live as a married couple many years ago. However, they remained under the same roof, in Cremorne, at times when George was in Australia. George often made visits to Greece and Macedonia without Maria for extended periods.

5 Maria is the first defendant in the proceeding. Maria's niece, Penny Georgiou, was one of the witnesses at the hearing.

6 Stefan and his wife Elka had five children, Kliment (the second defendant), Chris, Nikola, Tanas, and Kate. Stefan predeceased George many years ago.

7 Chris had three children, Steve (Stavro), Susie and Sultana (Dimitroula/Toula). It appears that Chris also predeceased George.

8 Grigor had two children, Kirche (the plaintiff) and Aleksandar. Grigor also predeceased George many years ago.

9 Spiro had three children, Steve (Stavro), Johnny and Lube (Olympia).

10 Lube had two children, Ferda and Sariklea. Ferda Kotevska was one of the witnesses at the hearing. Her daughter, Aneta Kotevski, was another witness at the hearing.

11 In this proceeding, Kirche seeks a grant of probate of the 2023 will. Maria filed a caveat and objected to the 2023 will. Kliment filed a caveat objecting to the 2023 will. Maria and Kliment were added as defendants to the proceeding.

12 The 2023 will appoints Kirche as executor and trustee and it provides for sums of money to be provided to Maria and to George's great niece Aneta Kotevski, provides for Maria to continue to live in George's property in Cremorne during her life, and otherwise bequeaths the rest of the estate to Kirche.

13 In related proceeding S PRB 2024 16926, Kliment seeks a grant of probate of a will dated 20 December 1989. That will was not tendered in this proceeding, but it is uncontroversial that its terms would be favourable to Kliment and his siblings. On 10 June 2025, I ordered that this proceeding be heard and determined before S PRB 2024 16926. I did so because this proceeding relates to a later will. Because of this, if Kirche's application in this proceeding is successful, it will be unnecessary for proceeding S PRB 2024 16926 to be heard and determined.

14 The execution of the 2023 will was witnessed by Sandy Rizkallah (Ms Rizkallah), a solicitor who was retained by George to prepare his will, and Philip Makedon Kocovski (Mr Kocovski), an accredited translator and provisionally accredited interpreter in the Macedonian language, who was retained by Ms Rizkallah to interpret for George. George spoke some English but his native language was Macedonian.

15 Mr Kocovski was a witness at the hearing. He is an experienced translator and interpreter between the Macedonian and English languages, with many years' experience in hospital settings. He verified the evidence set out in an affidavit of due execution he had previously sworn in the proceeding.[1] His evidence was that, on 6 April 2023, he along with Ms Rizkallah visited George, and he translated the 2023 will clause by clause to George, and also interpreted some follow up questions George had for Ms Rizkallah. He deposed that George provided clear instructions to Ms Rizkallah, and Ms Rizkallah made some minor changes to the will on the basis of his instructions. He deposed that George then confirmed to him that his wishes under the 2023 will accorded with his instructions, and that George proceeded to sign the 2023 will.

16 In September 2023, Kirche applied for a grant of probate for the 2023 will.

17 Kliment filed his caveat on 11 October 2023 and his grounds of objection on 13 November 2023. The grounds of objection were filed outside the time provided for in r 8.03(3)(a) of the Supreme Court (Administration and Probate) Rules 2014[2] (Administration and Probate Rules) after notice from the registrar under r 8.03(2). Kliment seeks leave for the grounds to be filed out of time.

18 In opposing a grant of probate of the 2023 will to Kirche, Kliment relies on the ground that George lacked capacity to make the 2023 will. Maria has settled with Kirche and consents to the dismissal of her caveat and grounds of objection.

(a) Should Kliment be granted leave to pursue his grounds of objection out of time?

(b) If so, should probate of the 2023 will be refused on the ground that George lacked the testamentary capacity to make it?

20 That being the only objection, if that is not made out, there will be nothing standing in the way of a grant of probate of the 2023 will.

21 Kliment's caveat was lodged on 11 October 2023. The Registrar gave notice to Kirche and notice to Kliment pursuant to r 8.02(2)(a) and (b) of the Administration and Probate Rules on 11 October 2023. Pursuant to r 8.03(2) of the Administration and Probate Rules the caveat expires 30 days after notice is given, subject to r 8.03(3). Kliment's statement of objections was not filed in time to prevent the expiry of the caveat under r 8.03(3)(a). Kliment's caveat expired on 10 November 2023, subject to any order of the Court to the contrary under r 8.03(3)(b). Kliment filed his grounds of objection three days later, on 13 November 2023.

22 In support for his application to file his grounds out of time, Kliment provided two supporting particulars:

1. That the relevant information from Dr Gamboni, medical practitioner, who provided the certificate of testamentary capacity has been recently received and that the documents were critical in lodging the Grounds for Objection Document.

2. That Brendan Rothschild Legal Group Pty Ltd were appointed as solicitors and filed the Notice of Change of Solicitor on 13 November 2023.

23 I clearly have the power under r 8.03(3)(b) of the Administration and Probate Rules and (if they are needed) rr 2.01, 2.04 and 3.02 of the Supreme Court (General Civil Procedure) Rules 2015, to retrospectively order that the time before expiry of Kliment's caveat extend after 10 November 2023 and so extend the time in which Kliment was able to file and serve his grounds of objection. Whether to exercise this power depends on the circumstances of the case.[3]

24 In this case the required extension is of very short duration. There is no evidence that the extension would cause prejudice to another person. Both Mr Wells and Mr Catlin accepted that there was no prejudice. Kliment has explained why the delay occurred. I grant the extension.

25 I will now turn to the main issue, which is the grounds of objection to George's testamentary capacity. Kliment claims that the 2023 will is invalid as George made the will while he was 'dying and a patient in palliative care' and 'lacked capacity to execute a new will'.

26 Kliment's objections were particularised to the following effect:

(a) George executed the original will on 20 December 1989, in which Kirche was both a joint trustee and beneficiary of the will;

(b) when the 2023 will was executed, George was dying, in palliative care, and was receiving palliative medication, which had the likely effect of being sedating and mind altering;

(c) the 2023 will was executed prior to a medical practitioner certifying that the deceased had mental capacity to execute a new will;

(d) the medical practitioner, Dr Brian Gamboni, signed a letter on 12 April 2023 stating that George had the capacity to make a will in circumstances where the content of the letter is impugned in various ways, in particular because Dr Gamboni did not examine or assess George prior to writing the letter, and Dr Gamboni was unaware that George was dying and in a hospice at the time;

(e) Dr Gamboni made an affidavit of testamentary capacity on 26 September 2023, again not based on any assessment of the deceased at or near the time he made the will;

(f) there were no letters of 'mental capacity' prior to the 2023 will being executed, nor by the medical practitioners treating for the deceased; and

(g) there was no letter of testamentary capacity.

27 The principles concerning the legal test of testamentary capacity are well known. They are drawn from the old case of Banks v Goodfellow[4] and they have been repeated in cases such as McMillan J's decision in Re Matthews.[5]

28 In Re Matthews McMillan J recited the classic test as follows:[6]

1. The classic statement as to the legal test for testamentary capacity was stated in Banks v Goodfellow as follows:

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

29 Her Honour summarised the test in more modern language in 2014 as follows: 'The Court must be satisfied that the deceased understood the nature of the act of making a will, and the effects of that act; understood what it is that she was disposing; and understood properly the claims of those who may be expected to benefit from her will'.[7]

30 Mr Catlin, appearing for Kirche, acknowledged that that lay witness evidence of testamentary capacity might properly be given less weight than expert evidence. However, even if this be so, in this case no medical expert gave any evidence opining on George's testamentary capacity. As Mr Catlin pointed out, none of the witnesses called by Kliment offered any such opinion.

31 In any event, as McMillan J went on to say in Re Matthews (citations omitted):

1. The test for testamentary capacity is a legal test. Although in some circumstances medical evidence may be probative as to questions of capacity, it is not essential or determinative. Lay witnesses, including solicitors, are usually in a position to provide probative evidence for determining testamentary capacity.

32 The bar for testamentary capacity has been described as a fairly low one, as also explained by McMillan J in Re Matthews (citations omitted):

1. The bar for testamentary capacity is "fairly low", so as to allow for testamentary freedom, including into old age where some individuals "will display slowness, illness, feebleness and eccentricity to a greater extent than persons of a younger age". Extreme ill-health of itself, is not enough to establish a lack of testamentary capacity. In Bailey v Bailey, Isaacs J, with whom Gavan Duffy and Rich JJ agreed, remarked:

[t]o displace a prima facie case of capacity and due execution mere proof of serious illness is not sufficient: there must be clear evidence that ... the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of his property.

1. In Re Rushton, the Court found that undergoing cancer treatments, including taking opiate medication, did not necessarily mean that someone lacked testamentary capacity, especially in light of other factors, such as the logical form and execution of the will.
2. Sometimes extreme ill health may require a propounder of a will to provide independent evidence of testamentary capacity of a deceased. For example, in West Australian Trustee Executor and Agency Co Ltd v Holmes, physical illness and pain so transformed the testator's personality and character, in particular, in regard to his spouse, whom he delusionally believed had attempted to poison him to undermine a claim of mental capacity.

33 I have kept squarely in mind that Kliment's objections to a grant to Kirche are limited to the question of George's testamentary capacity. Nevertheless I will briefly mention a related topic - the requirement that a testator must know and approve of the contents of his will.[8] The requirements of testamentary capacity and of knowledge and approval are distinct requirements, but they may in some cases overlap on the facts.

34 Much was said to me about who bears the onus in various issues in the case, that is, who bears the responsibility for persuading the court of a particular proposition. The authorities in this area, going back many years, give rise to potential complications on that matter. In particular, questions of presumptions and shifting onuses appear to have arisen frequently in cases about the requirement of knowledge and approval. For that reason, Mr Catlin as a precautionary measure submitted that I should not adopt any presumption or apply any shifting onus at any point in my analysis of the question of the deceased's testamentary capacity. I took him to mean that he was content to accept that his client had to establish George's testamentary capacity. Ultimately I have taken that approach.

35 The authorities on the proper approach are important, though, and I should say something about three cases to which I was referred. The first of those was the Court of Appeal's decision in Kantor.[9] The plurality judgment was the judgment of Buchanan and Phillips JJA, beginning at paragraph 30.

36 This was a case involving a question about testamentary capacity. There had been a will in 1999 in which the testator, Marie Vosahlo, had left funds to a charitable organisation and the residue to a friend of hers and her late husband's. And in due course, it was contended that the deceased lacked testamentary capacity when making that 1999 will, that a grant of probate of the 1999 will should be revoked, and that an earlier will should apply.

37 There was evidence that Ms Vosahlo had dementia at the time of the 1999 will. At first instance, that argument was successful, and an order revoking probate of that will was granted. But on appeal that outcome was reversed, the appeal was allowed, and the application for revocation of the grant of probate was dismissed. It was said that those defending the grant of probate of the 1999 will from revocation discharged the onus of them in proving capacity. And that was notwithstanding the evidence that had been led that the deceased had dementia.

38 What the case shows is that one starts with the proposition that for the deceased to have acted with testamentary capacity he or she must have acted with sound mind, memory and understanding with reference to the particular will.[10] Then their Honours said at [50]:

... proof of due execution is ordinarily enough and testamentary capacity will not separately be raised for decision. But if "the evidence as a whole is sufficient to throw a doubt upon the testator's competency", then the will cannot be admitted to probate unless at the end of the day, on all the evidence, the Court is 'satisfied affirmatively' of the deceased's testamentary capacity. ...

39 So, out of an abundance of caution, I am going to consider both whether there has been doubt thrown upon the testator's competency and, even if no such doubt arises, I am also going to consider whether I am positively satisfied of the deceased's testamentary capacity.

40 Kantor was referred to quite extensively in another Court of Appeal decision to which I was taken, Veall v Veall.[11] The leading judgment was given by Santamaria JA. And after referring to Kantor at [167] and following, his Honour said at [171] (citations omitted):

In the majority of probate applications, the existence of a duly executed will that is rational on its face will be sufficient for the admission of the will to probate. A mere assertion by a contradictor that the testator either lacked testamentary capacity or knowledge and approval will not displace the presumption raised by the due execution of a will that it is rational on its face. The party impeaching the will must establish circumstances supporting a well-grounded suspicion that the instrument might not express the will of the testator.

41 Santamaria JA then went on to acknowledge that testamentary capacity and knowledge and approval are distinct concepts, but in his analysis he dealt with both. He dealt with both in a way which showed that, at least in the case before his Honour, there was some connection. He said, under the heading 'The suspicious circumstances', at [199]:

In the present case, there were many circumstances giving rise to a suspicion either that [the testator] did not possess testamentary capacity when he executed the will on 10 December 2010 or that, even if he had that capacity, he did not know and approve its contents[.]

42 After introducing those points, one of the further points Santamaria JA mentioned was that the contents of the will that was being challenged departed radically from all the testator's previous wills, including one executed two months previously. His Honour also noted evidence that the testator's GP had written a few weeks earlier that the testator had been declining mentally, evidence that the testator was confused about his assets and plans to distribute them, and his Honour noted that the solicitor who assisted the testator in making it retained no notes of attendances on the testator and only provided an account of the circumstances in which the will was prepared and executed two and a half years after the event. In the end, Santamaria JA found that there were suspicious circumstances, and the Court had to give the evidence vigilant and zealous scrutiny. Applying that test, in all circumstances, his Honour was not affirmatively satisfied that the testator knew and approved the contents of the will.

43 I was taken to a further decision, the quite recent decision of Walker JA sitting in the trial division in Re Klapsas; Klapsas v Muscat.[12] And under the heading 'Relevant legal principles', I was taken to an important passage where her Honour summarises the principles applying to the raising of a suspicion concerning the execution of a will, including on issues such as testamentary capacity and the presumption of knowledge and approval, and on the approach that is to be taken if an applicant establishes suspicious circumstances.

44 After first referring to the presumption arising from due execution, her Honour at [10(b)] then noted (citations omitted):

... if the applicant can establish suspicious circumstances suggesting that the testator lacked knowledge and approval of the contents of the will, the presumption does not arise. The onus is then on the propounder of the will to remove each suspicion by proving affirmatively by clear and satisfactory proof that the testator knew and approved the contents of the document.

45 I return to what I said a minute ago about knowledge and approval being distinct from testamentary capacity. And I return also to what I said about the approach I am going to take, which is simply to assume that Kirche Karakostov bears the onus in this matter. I am not going to apply any particular onus to Kliment Karakostov. Further, I am conscious that Kliment framed his case not as one regarding suspicious circumstances, but as one regarding testamentary capacity.

46 The Court heard evidence during this trial from a number of witnesses. Dr Samuel Finlayson was called by Kliment; Ms Ruby Cashmore was called by Kliment; and Dr Sarah Leung was called by Kliment, although in the end she gave no substantive evidence. Kirche Karakostov called a number of witnesses. He was a witness in his own cause. He also called: Penny Georgiou, Ferda Kotevska, Aneta Kotevski, Sandy Rizkallah, Nick Marcevski, Philip Makedon Kocovski, and Dr Peter Brian Gamboni.

Events leading to the making of the 2023 will

48 I now set out my findings about the circumstances in which the 2023 will was made, by reference to the oral evidence of the witnesses and the documents adduced in evidence before me.

49 In late March 2023, on or about 23 March, after suffering from colorectal cancer for some time, George Karakostov was admitted to St Vincent's Hospital at Victoria Parade in Fitzroy. He remained in hospital until about 5 April 2023, when he was transferred to a hospice for palliative care. He died there in late May. His will was prepared during the period of his final illness, in the following circumstances.

50 Shortly before his admission to St Vincent's in March 2023, George was visited at his home in Cremorne by his niece Ferda Kotevska and great niece Aneta Kotevski. George asked, through Ferda Kotevska, for Kirche Karakostov to call him. Kirche made contact with George by telephone, and made an arrangement to visit George at the house in Cremorne, which was unsuccessful. Then George entered St Vincent's.

51 After George entered hospital, Kirche was a frequent visitor most days after work, and Ferda and Aneta were frequent visitors as well.

52 On at least one occasion, Kliment and a number of his siblings and other close relatives also visited George.

53 Soon after his admission to hospital, George asked Kirche and Aneta for a solicitor who could visit him in hospital to prepare his will, preferably one who was Macedonian.

54 After attempts by Kirche and Aneta to find such a solicitor, eventually Kirche obtained and gave George a number for Ms Rizkallah. He obtained Ms Rizkallah's name through a Macedonian-speaking lawyer, Nick Marcevski.

55 On or about 24 March 2023, George telephoned Ms Rizkallah, and they made an arrangement for Ms Rizkallah to visit George at the hospital on 27 March 2023 with the assistance of Kirche.

56 On 27 March 2023 Ms Rizkallah attended the hospital as arranged with George to take instructions to prepare his will. She met Kirche at St Vincent's and was directed by Kirche to George's room. She then spoke with George at some length in his hospital room. Kirche was not present during that conversation. It was a conversation in English, during which Ms Rizkallah took instructions for the preparation of a will for George. It is the subject of a file note taken by Ms Rizkallah, consisting of handwritten notes during the conference.

57 Ms Rizkallah gave evidence about the meeting on 27 March 2023, which I accept in its entirety, including the following:

He wanted his - the majority of his estate to go to his closes[t] nephew, that's how he described him to me, which was Kirche. He did say to me he was concerned about other members of his family, namely, Maria's side of the family in Greece, and also his other nieces and nephews who he had said to me at the time that they were only checking up on him to find out what was happening with his assets and they weren't really interested in his welfare. And I observed that, when he was relaying that information to me, he was quite sombre in mood and upset. I asked him what it was about Kirche that he wanted to leave his - why he wanted to leave his assets to him, and he said that Kirche cares for him, over the years he's checked up on him with his wife and children, he helps him with certain things and he was his closest living relative. He also did say to me that Kirche's father and him were quite close and Kirche's father had passed away at that point, so he had an affinity to Kirche in particular.

...

He was definitely not drug-affected. There was nothing to indicate that he was slurring speech or that, you know, he wasn't alert. He was very adamant about his instructions and I recall that distinctly because he just kept repeating them over and over again. When I did converse with him I tried to change the subject, go back to his instructions, and he would repeat what he wanted. Physically, he was frail because of the cancer and I observed that, but by way of his instructions mentally he was quite sharp.

58 As the notes prepared by Ms Rizkallah show, Geroge adequately identified all George's known property in Australia: the house in Cremorne, a shop in Prahran, about $200,000 in a Westpac account and about $1.4 million in other holdings at the Bank of Sydney, no superannuation or life insurance, and no debts. Ms Rizkallah recalled, and her notes corroborate, that George instructed that Kirche would be his executor, that Maria should receive a life interest in the Cremorne house, and then it should go to Kirche, that there should be $100,000 bequest to Maria and a $100,000 bequest to Aneta, and that otherwise all the estate including the shop should go to Kirche. Ms Rizkallah advised George about the effect of Part IV of the Administration and Probate Act 1958 and they discussed provision for Maria. He also told her that he had stage 4 cancer. He spoke about assets he owned in Greece (a flat and a bank account), and they discussed how the will would not deal with those assets. Ms Rizkallah was to prepare a will in accordance with those instructions and return for George to execute it.

59 Ms Rizkallah asked a staff member, probably a nurse, for a capacity assessment or doctor's letter for George. The nurse said the request would have to be passed on to the 'OT', occupational therapist. George's medical progress notes contain various notes referring to this request. However, no such capacity assessment or letter was ever prepared by staff of St Vincent's.

60 Ms Rizkallah attended St Vincent's the next day, on 28 March 2023, in the company of Philip Kocovski. They asked to see George Karakostov.

61 The reason Philip Kocovski was present was that he was an accredited NAATI translator and provisionally accredited interpreter of the Macedonian language, with very significant experience in interpreting between English and Macedonian. Ms Rizkallah had retained and arranged for him to attend that day. However, neither of Ms Rizkallah or Mr Kocovski got to meet with George Karakostov on 28 March. It is clear that there was an interaction of some kind between her and a social worker attached to the hospital, Ms Cashmore, on that day. The precise content of the interaction is a controversial issue that I have to resolve, but the outcome of it was that Ms Rizkallah and Mr Kocovski did not meet with George on that day.

62 I was taken to a record of St Vincent's Hospital Melbourne that was written by Ms Cashmore on 28 March 2023. Ms Cashmore gave evidence about this note.

63 The note made on 28 March 2023 notes that there was a 'SW Intervention', that is, a social worker intervention. The note records a discussion with a lawyer, 'Sandy', regarding 'family concerns on the ward' and states as follows:

• Sandy spent 1 hour with [patient] yesterday and seems to have formed the view that [patient] had testamentary capacity, however, this view is not necessarily shared by medical staff.

• Sandy advised that she has been directed by [patient's] nephew Kirche to assist [patient] in creating a new will.

• Sandy is aware that any will drawn up now is likely to be contested and today seemed less certain about [patient] testamentary capacity so has not had him sign the will.

• [Social worker] advised Sandy that signing of will could not take place without ?capacity clearance, Sandy understanding of same.

64 A note written by Dr Finlayson on 28 March 2023 at St Vincent's recorded George's:

Surprise that his cancer is in his lung and his liver - which is incongruent with documented conversations. Given this, current impression is that George is unlikely to have capacity to write a will at this stage.

65 One of the action items in the plan documented that day by Dr Finlayson was 'discuss with pal care regarding capacity for will assessment'.

66 Dr Finlayson was called by Kliment Karakostov under subpoena and he gave evidence over Zoom. He did not have any independent recollection of these events. His evidence was that he did not make an assessment of Mr Karakostov's testamentary capacity.

67 Dr Finlayson was also asked in cross-examination about whether the remarks in the notes were really directed more to whether Mr Karakostov understood his medical condition and its implications, as opposed to the kind of things that are covered by the legal test for testamentary capacity.

68 Those things, as I have already noted, relate to whether the testator has an understanding of the assets in his estate, the claims that might be made upon them, and the effect of making a will disposing of those assets after death in the manner provided for in the will in question.

69 In my view, the question of whether a person, particularly perhaps a gravely ill person, is able to grasp the enormity of the implications of their medical condition is a very, very different thing from whether they understand their assets, the claims that might be made upon those assets, and the way they wish to dispose about them after their death.

70 They are really very different things, and there is no correspondence to be drawn between them. Just because a person might find it difficult to understand the details of a terminal illness and, in the face of information about those clinical details, might not be able to grasp that they are dying and that death is imminent, does not mean that their testamentary capacity is impugned. And my overall impression of all the evidence is that this was such a case.

71 Mr George Karakostov might have had real difficulty grasping the enormity of the fact that he was about to die, but in spite of what appears in Dr Finlayson's note I am in no doubt that George was fully in command of his mental faculties with respect to his assets, the people in his life who might have a legitimate claim to those assets, such as Maria, and what he wished to do with them by way of disposition after his death. The will he made on 6 April accords with the instructions he gave to Ms Rizkallah. Ms Rizkallah was very clear and made contemporaneous notes about those instructions.

72 George wished Maria to have a life interest, to be able to enjoy living for the rest of her life in the Cremorne house; he wished the shop to go to Kirche Karakostov; he wished $100,000 (which he later increased to $200,000) of his cash holdings to go to Maria and the cash gift to Aneta; and he wished the rest to go to Kirche. And this is all well documented, and there is no doubt in my mind that, having heard all the evidence, George Karakostov knew full well what he was doing and intended those dispositions.

73 Dr Finlayson's note does not create any doubt in my mind about that. So if this was a case where I was considering, 'Is there a presumption of capacity from due execution of the will, or has that presumption been shaken by evidence of doubt as to capacity?', I would say, there is no evidence giving rise to any doubt as to capacity. If it is necessary for me to express a view as to whether there are any suspicious circumstances, I find there are no suspicious circumstances either, so that presumption would apply.

74 But, as already noted, out of an abundance of caution, I am not adopting any presumptions. The question I will answer is 'am I affirmatively satisfied by all the evidence, particularly the evidence of Ms Rizkallah and Mr Kocovski, that the deceased had the necessary testamentary capacity to make the will of 6 April?'

75 I put no weight on Dr Finlayson's evidence with relation to the deceased's testamentary capacity at the time.

76 The next relevant event is that sometime on or about 5 April 2023, George Karakostov was transferred from St Vincent's Fitzroy to Caritas Christi Hospice in Kew. And that was for palliative and end of life care.

77 On 5 April, George telephoned Ms Rizkallah from Caritas Christi, seeking to have her finalise the will. He also gave instructions updating the instructions he had previously given her about the contents of the will. In that regard Ms Rizkallah gave evidence, which I accept, that the conversation included the following:

He said he wanted to increase the bequest to Maria from 100,000 to 200,000, and the reasoning for that he had explained to me was, Maria was after the funds that were in the Westpac account and that roughly translated to about $200,000. So he increased the bequest there, and from memory he said that he wanted Ferda, which was his niece, to receive $50,000 and for [Aneta], rather than getting $100,000, to receive $50,000.

78 Ms Rizkallah prepared a draft will in accordance with those instructions. On 6 April, Ms Rizkallah and Mr Kocovski visited George Karakostov, at Caritas Christi, Kew. Ms Rizkallah brought the draft will with her, as well as two other documents she had prepared on George's instructions, an enduring power of attorney and appointment of medical treatment decision maker.

79 On that day there was an important conference in George's room at the hospice between George, Ms Rizkallah and Ms Kocovski, about which Ms Rizkallah and Mr Kocovski gave detailed evidence. It was during this conference or meeting that George executed his will.

80 This was evidence that was heavily relied upon by Mr Catlin on behalf of Kirche. It was heavily relied upon as illustrating that there is really no doubt - on Kirche's case - that George Karakostov was fully in command of his mental faculties at the time of making his will on 6 April. As I have already noted, the witnesses to the execution of the will were Ms Rizkallah and Mr Kocovski. The 2023 will was in evidence before me, and it is itself an important piece of evidence on the matter I have to decide.

The 2023 will and the evidence of Ms Rizkallah and Mr Kocovski

81 The 2023 will states relevantly as follows (handwritten annotations shown in italics):

1. I HEREBY REVOKE all former Wills and Testamentary Dispositions heretofore made by me and declare this to be my last Will and Testament.

2. I APPOINT my nephew KIRCHE KARAKOSTOV of ... Victoria Executor of my Will and Trustee of my Estate and in the event that my said Executor predeceases me or is unable or unwilling to be my Executor then I appoint my nephew ALEKSANDAR KARAKOSTOV of ... Victoria to be the Executor and Trustee of this my Will and I DECLARE that in the interpretation of this my Will the expression "my Trustee" shall (where the context permits) mean the Trustee or Trustee for the time being hereof whether original or substituted.

3. I GIVE the sum of two hundred thousand dollars ($200,000) to my ex-wife MARIA KARAKOSTA of 2 Blanche Street, Cremorne, Victoria, for her absolute sole use, benefit and enjoyment, provided she survives me by thirty (30) days.

one hundred $100,000

4. I GIVE the sum of fifty ^ thousand dollars ($50,000) to my great niece ANETA KOTEVSKI of ... Victoria, for her absolute sole use, benefit and enjoyment, provided she survives me by thirty (30) days.

5. I GIVE the sum of fifty thousand dollars ($50,000) to my niece Freda Kotevska of ... Victoria for her absolute sole use, benefit and enjoyment, provided she survives me by thirty (30) days.

6. I DIRECT that:

a. my ex-wife MARIA KARAKOSTA may continue to live in my property situate at 2 Blanche Street, Cremorne for life, free of charge, provided she continues to pay the rates and other expenses related to the property and keep it in good repair to the reasonable satisfaction of my trustees;

b. upon MARIA ceasing to live permanently in the property or comply with her right to occupy the property, then I GIVE the property to my nephew KIRCHE KARAKOSTOV of 12 Edwards Drive, Altona Meadows in the State of Victoria for his absolute sole use, benefit and enjoyment.

7. I GIVE DEVISE AND BEQUEATH to my Trustee all of my property whatsoever and wheresoever situate (''my residuary estate") UPON TRUST to sell, call in and convert the same into money with power to postpone such sale or calling in and conversion TO PAY all of my just debts, funeral and testamentary expenses and to give the balance of my residuary estate remaining to my nephew KIRCHE KARAKOSTOV of 12 Edwards Drive, Altona Meadows in the State of Victoria provided he surives [sic] me by thirty (30) days. PROVIDED IF my said nephew shall predecease me leaving a child or children then such child or children will take the share to which his, her or their parents would have been entitled and if more than one as tenants in common in equal shares upon attaining the age of eighteen (18) years.

...

11. I DECLARE that the provisions of Part IV of the Administration and Probate Act 1958 (Victoria) have been explained to me. It is my express wish that the majority of my estate be left to my nephew KIRCHE KARAKOSTOV as my closest living relative and in recognition of his love, loyalty, support and care over the years. Further, I consider that the provision left to my ex-wife under

separated

this my Will is more than adequate given that we have been divorced for several years and have had a family law property settlement and in addition I have purchased a home for her previously, which she sold and distributed amongst her family members, against my wishes.

82 George's signature appears at the foot of each page of the 2023 will, alongside those of the two witnesses, Sandy Rizkallah and Philip Makedon Kocovski. George's signature appears in substantially the same form on each page, in a distinctive hand, firmly written, although apparently affected by hand tremor. The initials of all three signatories appear in the margin alongside the line of clause 4 that is amended by hand annotations, the line of clause 11 that is amended by hand annotations, and alongside clause 5, which is entirely stuck out by hand drawn lines.

83 The 2023 will is in itself an important piece of evidence on the question of George's testamentary capacity. That is because it does not simply consist of typed text but contains three sets of hand annotations. As noted above, the first annotation is at clause 4, and it indicates that there was a change to a bequest intended for Aneta Kotevski. And the typed version originally refers to a bequest of $50,000 to Aneta. But it has been hand annotated to be changed to $100,000. The next clause, clause 5, had been a reference to a bequest of $50,000 to Aneta's mother Ferda Kotevska, but that has been struck through entirely.

84 The reason those two sets of hand annotations are important is that, on the evidence of Ms Rizkallah and Mr Kocovski, this was an issue that was discussed during the meeting in George Karakostov's hospice room on 6 April 2023. And that evidence was to the effect that he had learned that Ferda would prefer not to receive a bequest of $50,000 because it would affect her government entitlements, and that therefore he was going to not provide that gift, but in effect he would add the money saved for the estate from the absence of that gift, to the gift he intended to Aneta.

85 Now, that shows detailed consideration being given to the transactions that would follow after George's death. And quite detailed arithmetic consideration being given to the effect of subtraction of one bequest and an overall equalisation of the effect of that subtraction on the dispositions intended by the will as a whole. Those are signs of mental acuity. That is, signs that George retained his mental faculties.

86 The third set of annotations is also something that corroborates evidence given by Ms Rizkallah and Mr Kocovski, and it concerned George Karakostov's own view of his marital status, or the description to be given to his relationship with Maria. Ms Rizkallah had previously been given to understand that the couple was divorced, and she had prepared the draft will on those lines. But a discussion took place about that topic, and George Karakostov gave instructions, and they resulted in the word 'divorced' being struck out and replaced by the word 'separated'. Again, that shows that George was in command of his mental processes.

87 As already noted, all of those sets of annotations are accompanied by initials of each of the three people who were in the room. The testator himself, George, and the two witnesses, the solicitor Ms Rizkallah, and the interpreter Mr Kocovski. And George's signature appears at the foot of each page alongside those of Ms Rizkallah and Mr Kocovski.

88 And in addition to these signatures and the initials of all three signatories appearing in the margins alongside the hand annotations, there are also signatures on the execution page of each of the three: George as testator and the others as witnesses.

89 George's signature on the execution page is accompanied by the following text:

SIGNED AND ACKNOWLEDGED by GEORGE KARAKOSTOV as his last Will and Testament in the presence of me the undersigned PHILIP MAKEDON KOCOVSKI and also in the presence of me the undersigned SANDY RIZKALLAH the same having been first read over to him by the said PHILIP MAKEDON KOCOVSKI in the Macedonian language, when he appeared to thoroughly understand the same and approve the contents thereof (he understanding imperfectly well the English language but understanding well the Macedonian language) we being present at the same time who at his request and in his presence and in the presence of each other have hereto subscribed our names as witnesses

90 The evidence given by both of those witnesses, Ms Rizkallah and Mr Kocovski, is completely consistent with that attestation, and, in all respects, the content of the will - the actual exhibit - supports and corroborates the evidence they have given and the file notes that Ms Rizkallah kept of her interactions with George Karakostov.

91 Mr Kocovski did not have an independent recollection of the other two documents he interpreted on the day, which were an enduring power of attorney and an appointment of medical treatment decision maker. That does not have any material impact on my overall assessment of his evidence. I accept all his evidence without reservation.

92 I likewise accept all of Ms Rizkallah's evidence, without any reservation.

93 As mentioned above, putting aside any presumption arising from the execution of the will in regular form and the absence of any evidence casting doubt on George's testamentary capacity, in any event I have considered whether all of the above evidence of Ms Rizkallah (and her notes), Mr Kocovski, and the annotations on the will itself, positively satisfied me that George Karakostov had testamentary capacity in making his will on 6 April 2023. My conclusion was: yes, I was affirmatively satisfied that George had that testamentary capacity.

94 As noted, a number of members of the extended family of George Karakostov gave evidence: Kirche, Aneta Kotevski, Ferda Kotevska, and Penny Georgiou. They all gave their evidence clearly and to the best of their ability and recollection. I am satisfied that they were all reliable witnesses doing their best to recall the facts and to communicate them accurately to the Court. The impressions I gained from their evidence on matters of relevance were that George was somewhat estranged from Maria, that George was friendly and well-disposed towards Kirche, Ferda and Aneta, that he did not wish to dissipate his estate into small bequests shared amongst his many great nieces and nephews, but rather wished for a meaningful bundle of property and money to be passed on to a person who would carry on the family name, and he chose Kirche for that purpose. It was clear that he was a frugal man and one of high intelligence. It is clear from the family witnesses' evidence that George retained that intelligence throughout his illness, hospitalisation and until the end. There was no change in his mental capacities during his hospitalisation and during end of life care, in spite of the pain and treatments he was experiencing.

95 There was an issue between Kirche and Kliment about the surname Kliment goes by. I did not regard this as relevant to the issues I needed to determine.

96 I have also considered whether the difference between the 1989 will and the 2023 could give rise to any indication that George might not have had testamentary capacity in making the 2023 will. My conclusion was that those differences give rise to nothing of the kind. The differences were perfectly understandable in all the circumstances of the case. The passage of 34 years clearly led George to form the wishes in his 2023 will in preference to the dispositions in the 1989 will.

97 Although what I have set out above probably suffices to explain my reasons for judgment in favour of a grant of probate of the 2023 will to Kirche, it is appropriate that I express my conclusions on a number of further issues that were raised by the evidence and arguments in the proceeding.

98 As already noted, I was also taken to the event that occurred on 28 March 2023 at St Vincent's hospital, and which was recorded by Ms Cashmore in a note that day.

99 Ms Cashmore's note of events preceding her interaction with Ms Rizkallah on 28 March 2023 included the following: 'SW advised from 9E NIC that a ?nephew presented on the ward with a lawyer (28/3), and that the lawyer (Sandy Rizkallah) had represented today (28/3) with a Greek interpreter to sign the will'. Kliment asked Ms Cashmore to read out this entry in the note, but no further questions were directed to Ms Cashmore about it. Ms Rizkallah was, however, questioned about it. It is clear to me from Ms Rizkallah's evidence that this part of Ms Cashmore's note must be mistaken. The most likely way in which the entry is mistaken is that the first reference to '28/3' should be a reference to '27/3'. On that day Ms Rizkallah attended the hospital in the company of Kirche. On 28 March she attended with Ms Kocovski. That is how I interpret this part of Ms Cashmore's note of 28 March.

100 Ms Cashmore then made entries, later on the same page of the note, to the effect that 'Sandy' - that is, Ms Rizkallah - 'is aware that any will drawn up now is likely to be contested, and today seemed less certain about patient testamentary capacity, so has not had him sign the will'. Mr Catlin suggested to Ms Cashmore that this was a note that Ms Cashmore made of her impressions, and that this was not a record of things actually said by Ms Rizkallah on 28 March. Ms Rizkallah, when taken to this, said that she in no way said anything of that nature and disagreed with Ms Cashmore's note.

101 As I mentioned a little earlier when I was referring to some of the key matters, some sort of an interaction had occurred between Ms Rizkallah and Ms Cashmore on 28 March, and the result was that Mr Kocovski and Ms Rizkallah did not see George Karakostov that day. I am satisfied that Ms Rizkallah's account of the interaction is to be preferred. There are a number of reasons for that: one is that Ms Cashmore accepted that she did not have an independent recollection of this event. She was going on her notes. That means that her evidence to the court was, in effect, an interpretation of her notes. When taken to why she had written that passage on the note, Ms Cashmore said that 'I think that's on the basis of the words spoken. I think she would have said "I am aware"', and 'I think she would have said I think "I feel less certain today"'.

102 Her notes do not read to the ordinary reader as if they are recounting the exact words said by Ms Rizkallah. I will repeat them: 'Sandy is aware that any will drawn up now is likely to be contested'. Firstly, even that phrase does not read like an account of things said by Ms Rizkallah but reads more like an impression gained from perhaps a more detailed conversation. But that is not the main point, in any event. The main point is what follows.

103 The note follows, 'and today seemed less certain about patient testamentary capacity'. Ms Rizkallah was very clear in her evidence and that was based not only on her notes but on an independent recollection, as she recounted it to me. She was very clear that she had said nothing of the kind to Ms Cashmore. Ms Cashmore said that she would not have written that unless it had been said. The language adopted by the witness, Ms Cashmore, shows that she was interpreting her notes and putting a particular interpretation on them. But the words used in the note are actually inconsistent with that interpretation.

104 The words used include the word 'seemed'. Ms Cashmore writes, 'and today seemed less certain'. These are words of impression and so, on the face of her own notes, I find that Ms Cashmore simply formed an impression from the interaction with Ms Rizkallah that that was what Ms Rizkallah believed. Impressions can be incorrect and Ms Rizkallah gave evidence to the court that in no way did she doubt George's testamentary capacity. I accept that.

105 My final reason for preferring Ms Rizkallah's account also relates to where the note says, 'Today seemed less certain about patient testamentary capacity'. That can only mean by comparison with what Ms Rizkallah had thought after meeting Mr Karakostov on the previous day, 27 March. However, Ms Rizkallah had not been able to meet Mr Karakostov on 28 March. Therefore she had no opportunity to form a different impression of Mr Karakostov's testamentary capacity on 28 March, and therefore it is inherently unlikely that she said anything of the kind suggesting that she had, for some reason, on 28 March changed her mind about her assessment of Mr Karakostov's testamentary capacity since 27 March.

106 I will not make a concluded finding about the rest of what Ms Cashmore's note says, '... so has not had him sign the will'. Suffice it to say that, if or to the extent that this might imply some sort of voluntary decision made by Ms Rizkallah not to get George to sign the will on that day, I do not accept this as an accurate record of what actually happened. Perhaps Ms Cashmore formed a mistaken impression. I accept Ms Rizkallah's evidence (including her file note), which establishes that she wished to see George Karakostov on that day, and that she was intercepted by Ms Cashmore and prevented from doing so. That is also corroborated, in effect, by Mr Kocovski. He gave evidence that, for what he understood to be some medical reason, he and Ms Rizkallah were not able to see George Karakostov on the day. It is perfectly understandable that Mr Kocovski was not privy to the details of why that had occurred, but what is important is that Mr Kocovski understood that Ms Cashmore for some reason was preventing Mr Kocovski and Ms Rizkallah from seeing George Karakostov on that date, 28 March 2023. It is also corroborated, in effect, by the last part of Ms Cashmore's note, which stated she 'advised Sandy that signing of will could not take place without ?capacity clearance, Sandy understanding of same'.

107 Mr Marcevski gave evidence that he visited George in a hospital at the invitation of Ms Rizkallah and had discussed George's wishes about his will, making a file note at the time. He couldn't remember whether that conversation had taken place at St Vincent's or Caritas Christi or the date of the visit and conversation, and his file note was undated. He was cross-examined by Kliment about being suspended from legal practice by reason of action by AUSTRAC relating to financial matters.

108 I was invited to place no weight on that evidence by Kliment Karakostov and, in closing submissions, Mr Catlin accepted this, if only for the reason that Mr Marcevski's file does not have a date on it and Mr Marcevski was unclear as to the location of the conversation, being whether it was at St Vincent's or the hospice.

109 It is therefore difficult for the Court to place any weight on Mr Marcevski's evidence, and I will not do so. But even without Mr Marcevski's evidence, for the reasons I have already explained, I am affirmatively satisfied that the deceased has testamentary capacity when he made his will of 6 April.

110 The plaintiff called Dr Peter Brian Gamboni, making it clear that he was doing so for completeness and to avoid any inference being drawn from a failure to call him. Mr Catlin emphasised that the plaintiff's case placed no reliance on any evidence of Dr Gamboni. I was taken to various aspects of the conduct of Dr Gamboni by Kliment, which (Dr Gamboni explained) have resulted in educative counselling directed by AHPRA. . Kliment made some very valid points about less than desirable aspects of Dr Gamboni's conduct including the preparation of his letter of 12 April 2023 and its contents, and the affidavit that he made in September of that year. Both these documents contained misleading or false information, as Dr Gamboni did see or speak with George before preparing the letter dated 12 April 2023, or about that time. These criticisms were validly made.

111 It was valid for Kliment to raise these matters in his grounds of objection to grant. But in the end, the plaintiff, even without relying on Dr Gamboni's evidence in any way, has made good a case that persuades me affirmatively that the deceased had testamentary capacity. He has done so by reference to other evidence, and lay evidence, and without relying on any contemporaneous report or letter by a medical practitioner attesting George's testamentary capacity. Nevertheless, he has achieved that outcome.

112 The plaintiff tendered two Rowland Universal Dementia Assessment Scale (RUDAS) tests administered to George in June 2022 and February 2023, and three patient risk assessments for George Karakostov administered in March and April 2023 at St Vincent's. They tend to show that George had high and steady levels of cognitive functioning across that period. Mr Catlin submitted that these tests were not directly determinative of testamentary capacity, referring to Walker JA's statement in Re Klapsas; Klapsas v Muscat[13] that the 'best evidence of the deceased's knowledge and approval of a will is evidence of the testator's instructions or evidence that the will was read by the testator'. Nevertheless, he relied upon them as corroborative of George's continued high level of cognitive function. I agree with Mr Catlin that the medical assessments corroborate the other evidence establishing that George retained his ordinary level of cognitive functioning to the time he made his will.

113 On all the evidence before me I was satisfied that George had testamentary capacity when making his will dated 6 April 2023.

[2] Those rules continue to apply to the proceeding pursuant to r 1.03(4) of the Supreme Court (Administration and Probate) Rules 2023.

[3] Australian Unity Trustees Ltd v Tsatsaronis [2023] VSC 796, [27] (Gobbo AsJ).

[4] Banks v Goodfellow (1870) LR 5 QB 549.

[5] [2022] VSC 15 at [64] and following.

[6] Re Matthews [2022] VSC 15 [64] (McMillan J) (citations omitted) ('Re Matthews').

[7] Brown v Guss [2014] VSC 251, [349] (McMillan J).

[8] Nock v Austin (1918) 25 CLR 519, 528 (Isaacs J); see, eg, Brown v Guss [2014] VSC 251, [370]-[373] (McMillan J).

[9] Kantor v Vosahlo [2004] VSCA 235.

[10] Kantor v Vosahlo [2004] VSCA 235, [49] (Phillips and Buchanan JJA).

[11] (2015) 46 VR 123; [2015] VSCA 60.

[12] [2022] VSC 755.

[13] [2022] VSC 755, [13].