Re Dimitrijevic; Natoli & Anor v Beleslijin-Darabos & Anor [2022] VSC 198

1 Paul Natoli and Olga Dobric (plaintiffs), the probated executors of the deceased estate of Maria Dimitrijevic, ask the Court, pursuant to Order 54 of the Supreme Court (General Civil Procedure) Rules 2015, to determine:

[W]hether, in the events which have happened, MAJA BELESLIGIN-DARABOS [sic] meets the description of being "my carer at or just prior to my death" as set out in Clause 6(b) of the Will of [Maria Dimitrijevic] dated 15 February 2016.

2 Maria Dimitrijevic (Deceased) died on 2 June 2017. She left a will dated 15 February 2016 (Will), probate of which was granted to the plaintiffs on 9 October 2017. There is no issue regarding the Deceased's capacity to make the probated Will.

3 The plaintiffs valued the Deceased's estate in the Inventory of Assets and Liabilities at approximately $605,000. The estate has largely been administered. The Deceased made a number of specific legacies, contained in clause 5 of the Will. These have all been paid other than in one case where the beneficiary predeceased the Deceased. At the time the proceeding was commenced, the plaintiffs held approximately $472,475.45 in trust to be distributed according to the residuary clauses of the Will.

4 At the time of her death, the Deceased was 96 years old, single and had no children. The first defendant Maja Beleslijin-Darabos (Maja) and the second defendant Aleksandra Timarov (Aleksandra) are both great-nieces of the Deceased. Whether and in what amounts each of the defendants will take under the residuary clauses of the Will depends upon the Court's answer to the question posed by the plaintiffs.

5 The residuary clauses of the Will, contained in clause 6, are in the following terms:

MY TRUSTEES are to hold the whole of my real and personal estate of whatsoever nature and wheresoever situate (including any superannuation/life insurance proceeds payable in consequence of my death) not otherwise disposed of -

(a) to pay therefrom all my debts, funeral and other expenses associated with my death and the administration of my estate along with the whole of the duties and taxes of whatever kind payable in consequence of my death or the dispositions in this Will; and

(b) to pay and transfer the rest residue and remainder of my estate to my niece MAJA BELESLIJIN-DARABOS of [address], if she is my carer at or just prior to my death BUT if she should fail to survive me or is no longer my carer then to ALEKSANDRA TIMAROV after the payment of $100,000 to MAJA BELESLIJIN-DARABOS

(where the italicised text indicates the handwritten insertions).

6 For the reasons that follow, I have decided that Maja was the Deceased's carer at the time of her death so as to relevantly fulfil the gift in the Will.

7 The following summary of the Deceased's situation up until the time of her death has been compiled from the parties' evidence.

8 At the request of the Deceased, Maja travelled to Australia from Serbia specifically to stay with and care for the Deceased. The Deceased was actively involved in obtaining a visa for Maja by signing a statutory declaration confirming that she was asking her niece to visit and that she would support her niece during her visit.

9 Maja returned to Serbia as her immigration visa was due to expire.

10 The Deceased was admitted into care at Sapphire Care - The Gables (Sapphire), a nursing home in Camberwell.

11 In August 2015, while again living alone, the Deceased had multiple hospital admissions to the Epworth Hospital (Hospital). A social worker at the Hospital raised concerns about the Deceased's ability to manage independently. The Hospital's neuropsychologist, Dr Sloan, also raised 'alarm bells' about the Deceased's cognitive ability and vulnerability. The Deceased declined to participate in formal cognitive testing.

12 The Hospital's social worker made an application to the Victorian Civil and Administrative Tribunal (VCAT) for the appointment of a guardian to the Deceased.

13 Maja emailed Sapphire noting that the Deceased had been transferred to hospital and seeking information about whether the Deceased was a permanent resident of the nursing home. Maja asked whether the Deceased could be released from the nursing home on Maja's arrival in Australia to live under Maja's care and supervision at the Deceased's home.

14 Maja emailed VCAT indicating her intention to visit the Deceased in Australia and take care of her. Maja requested the Deceased be released from the nursing home on Maja's arrival to live at her home under Maja's supervision and care.

15 Maja emailed the Deceased's solicitors informing the solicitors of the VCAT proceeding and the hearing on 15 September 2015 in respect of the Deceased's care arrangements and guardianship. Maja told the solicitors she had a visa and would attend VCAT on 15 September 2015 and asked whether the Deceased could be released from the nursing home into Maja's care at the Deceased's home.

16 Maja returned to Australia to care for the Deceased.

17 Maja attended the hearing at VCAT on 15 September in respect of the Deceased's care arrangements and guardianship. VCAT requested the Office of the Public Advocate (OPA) investigate the Deceased's financial affairs and living arrangements, including the Deceased's plans for longer term support. VCAT also requested that the OPA arrange a further medical assessment of the Deceased's cognitive capacity.

18 The OPA appointed an investigator to prepare a report as requested by VCAT. The investigator met with the Deceased on 17 November 2015. At the meeting, the Deceased explained that Maja provided her assistance with domestic chores and companionship. The Deceased reported that she and Maja went out once a week or a fortnight to the shops or the casino. The Deceased confirmed that she also received aged care support from the Vasey RSL, with workers visiting twice per week. The investigator spoke to the Vasey RSL case manager who confirmed that they provided the Deceased with a level 1-2 care package. This involved three hours of support each week with a focus on in-home respite care. Maja confirmed with the investigator that she provided supervision and support with the Deceased's medications and managing her general health needs. With the Deceased's agreement, the investigator arranged for a cognitive capacity assessment with neuropsychologist Dr Vowels.

19 Dr Vowels conducted an assessment of the Deceased. Dr Vowels noted that the Deceased was living at home again by that time, having recruited Maja to live with her and provide all care:

[W]hich includes minimal self-care, housekeeping including cooking and shopping and some other chores.

20 Dr Vowels assessed the Deceased as currently demonstrating no significant cognitive limitations or disabilities. In Dr Vowels' opinion, the Deceased was competent to give or revoke an enduring power of attorney. Dr Vowels was not concerned about the Deceased's capacity to make important life decisions. Dr Vowels believed that the Deceased had testamentary capacity to make or amend a will.

21 The OPA investigator provided her report to VCAT (VCAT Report). The VCAT Report referred to the findings of Dr Vowels and noted that if the VCAT accepted Dr Vowels' assessment that the Deceased was not a person with a disability or unable to make judgments in respect of her lifestyle and legal affairs, then 'the matter does not fall within the jurisdiction of the Tribunal'.

[I]t appears [the Deceased's] circumstances have changed considerably since the application for a guardian was made in August 2015. She is now living comfortably and safely at home with 24/7 carer support in place. While this arrangement may change, there is ongoing independent monitoring of her health and welfare via the Vasey RSL case manager who can make another VCAT application in the future if needed.

23 VCAT determined not to appoint an administrator in respect of the Deceased because it was not satisfied the Deceased had a disability which 'affects her capacity to make her own reasonable decisions'.

24 The Deceased executed her Will and an Enduring Power of Attorney for Medical Treatment, under which she appointed Maja as her attorney.

25 Aleksandra's father spoke to the Deceased in September 2016, when the Deceased was about to move into care at Carnsworth nursing home in Kew (Carnsworth). The Deceased was in an unkempt state and crying. The Deceased told Aleksandra's father that she did not want to move into the aged care facility.

26 Maja returned to Serbia as her tourist visa had expired. Maja's visa had already been extended three times and she was advised that she would be denied any further extension. She also said that the Deceased understood the reason why Maja had to leave and had told Maja that she hoped she would come back to Australia as soon as she was able. Maja says that she assured the Deceased that she would. On the same day, the Deceased was placed into care at Carnsworth.

27 Aleksandra's father spoke to the Deceased by telephone. The Deceased was again upset and crying about being away from her home.

28 At the request of her father, Aleksandra spoke to the Deceased from her home in the United Kingdom. Over the course of about two hours, Aleksandra says they talked about family, Aleksandra's piano career and various other things. During this conversation, the Deceased told Aleksandra she was lonely and did not like living at Carnsworth.

29 Upon her return to Serbia, Maja made repeated attempts to reapply for an Australian carer's visa and Australian tourist visa.

30 Maja returned to Australia to care for the Deceased.

31 The Deceased remained living at Carnsworth. Maja repeatedly attempted to have the Deceased released from Carnsworth back into Maja's care at the Deceased's home, however, by this time, the Deceased was almost 97 years of age and her doctors would not approve her release.

32 On the day of Maja's return to Melbourne, she visited the Deceased at Carnsworth nursing home. The following day, Maja attended the office of Mr Natoli (the Deceased's solicitor) and informed him that she intended to take the Deceased home. That same day, Maja attended Carnsworth intending to take the Deceased home but was told that the Deceased's doctor would need to confirm that the Deceased could be moved. The Deceased's doctor advised Maja that the Deceased's health was too frail to allow her to go home with Maja.

33 Approximately 10 days later, Maja again attempted to move the Deceased home and was again told by her doctor that the Deceased could not be released and would have to live out the remainder of her life at Carnsworth.

34 Maja visited the Deceased at Carnsworth on a daily or twice daily basis. She assisted with the Deceased's care by cleaning and ironing her laundry, preparing her coffee or tea, changing and cleaning her, taking her for walks, and bringing the Deceased home‑cooked meals. Maja also says she provided the Deceased with daily companionship and undertook her duties as Power of Attorney of the Deceased's medical and care needs.

35 Insofar as the nurses permitted her, Maja would help with cleaning and ironing the Deceased's laundry and with feeding the Deceased. Maja said she would:

[P]repare her coffee or tea, change her, take her for walks and occasionally [she] would bring her food which [she] prepared at home which [the deceased] liked.

36 Maja estimated that she spent on average about eight hours per day, every day at Carnsworth caring for the Deceased:

I was doing her hair, making her homemade coffee, talked in Serbian, made her laugh, reading books, watching TV together, crying together speaking about family memories, bringing her clean underwear, cooked her homemade food, taking her outside for fresh air, and giving her psychological support when she was sad.

37 The Deceased passed away while living in care at Carnsworth.

38 The plaintiffs also put before the Court the following, gleaned from Mr Natoli's legal file:

(a) the address for Maja in the Will was the Deceased's home address;

(b) the Deceased gave Mr Natoli instructions for the Will on 2 February 2016 at the Deceased's home. Those instructions included a statement by the Deceased in relation to Maja that 'she is looking after me';

(c) the Will was typed and sent to the Deceased; and

(d) on 15 February 2016, Mr Natoli and another solicitor from his firm attended the Deceased at her home. At that time the solicitors were instructed to insert the handwritten words into clause 6(b) of the Will. The Deceased then executed the Will in the presence of two solicitors.

39 Mr Natoli's affidavit filed in the proceeding includes a statement of what the second solicitor present on 2 February 2016 recalls being told by the Deceased and Mr Natoli's interpretation of the Deceased's intentions. This material is inadmissible and I have not taken it into account.

40 Section 36 of the Wills Act 1997, which governs when evidence is admissible to clarify a will, is in the following terms:

(1) In any proceedings to construe a will, if the language used in the will renders the will or any part of the will -

(a) meaningless; or

(b) uncertain or ambiguous on the face of the will; or

(c) uncertain or ambiguous in light of surrounding circumstances -

evidence may be admitted to assist in the interpretation of that language.

(2) Evidence which may be admitted under subsection (1)(c) does not include evidence of the testator's intention.

(3) Nothing in this section prevents the admission of evidence which would otherwise be admissible at law in any proceedings to construe a will.

41 In Re Lapalme; Daley v Leeton,[1] McMillan J set out the common law principles as follows:

In construing a will, the task of the court is to give effect to the intentions of the testator by examination of the words used in the will, having regard to the will as a whole, aided as is necessary by any admissible extrinsic evidence.

In Fell v Fell, Isaacs J set out the common law principles relating to construction of wills, principles that his Honour considered 'incontestable'. Prima facie, the written words in the will must be given their ordinary meaning, with the court making a determination of the issue by reference to the words used by the testator in the will, having regard to any established rules of construction and construing a will 'as trained legal minds would do'. His Honour articulated the second principle as follows:

The instrument ... must receive a construction according to the plain meaning of the words and sentences therein contained. But ... you must look at the whole instrument, and, inasmuch as there may be inaccuracy and inconsistency, you must, if you can, ascertain what is the meaning of the instrument taken as a whole in order to give effect, if it be possible to do so, to the intention of the framer of it.

In addition to the requirement for a will to be construed by giving the plain meaning to words, it is necessary to examine whether the law has established a particular meaning for the words in question. This approach was succinctly stated by Fullagar J in ANZ Executors & Trustee Co Ltd v McNab:

The search for testamentary intention must be a search for intention disclosed by the words used, and in this search words must prima facie be given their ordinary meanings and, if the law has consistently given a particular meaning to some word or phrase, that is the meaning which the word or phrase must prima facie be given. Nevertheless, the intention is to be gathered from a study of the will as a whole, and in the light of any relevant and admissible evidence of surrounding circumstances.

The task of interpreting a will has been said to be analogous to the task of the court when interpreting a contract. In Marley v Rawlings, Lord Neuberger summarised these considerations as follows:

When interpreting a contract, the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a) in the light of (i) the natural and ordinary meaning of those words, (ii) the overall purpose of the document, (iii) any other provisions of the document, (iv) the facts known or assumed by the parties at the time that the document was executed, and (v) common sense, but (b) ignoring subjective evidence of any party's intentions.

His Lordship concluded that the approach taken when interpreting wills should be no different, summarising the modern approach taken by courts in this way:

Whether the document in question is a commercial contract or a will, the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context.

The first task of a court in the analysis of the will is to consider the ordinary meaning of the words in the will. It is then necessary to consider whether, by giving the ordinary meaning to the words, the will makes sense in the circumstances.

If the will does not make sense, the Court is required to consider relevant extrinsic evidence to establish the intention of the testator. In Re Staughton; Grant v McMillan ('Re Staughton'), the Court noted:

If, in the context of the will read as a whole, and of the surrounding circumstances, the ordinary meaning of the words in the will do not make sense, extrinsic evidence is admissible under the 'armchair principle'. In effect, the court is able to consider evidence of the circumstances surrounding the testator at the time of executing the will.

The leading case of Perrin v Morgan demonstrates the danger of interpreting language used in a will with strict rules of construction, and without considering the circumstances in which the will was made, as stated by Lord Romer:

I take it to be a cardinal rule of construction that a will should be so construed as to give effect to the intention of the testator, such intention being gathered from the language of the will read in the light of the circumstances in which the will was made. To understand the language employed the court is entitled, to use a familiar expression, to sit in the testator's armchair. When seated there, however, the court is not entitled to make a fresh will for the testator merely because it strongly suspects that the testator did not mean what he has plainly said ...

In the same case, Lord Atkin commented that the Court is not 'precluded from looking outside the terms of the will' as '[n]o will can be analysed in vacuo'.

In Re Allsop, Lord Denning MR cautioned against the Court giving too literal an interpretation to the language in a will where such an interpretation would cause a result that could not have been the intention of the testator:

The object of the court in construing a will is to discover the intention of the testator. I do not think his intention is to be discovered by looking at the literal meaning of the words alone. That has led, times out of number, to the frustration of his intentions. You must look at the will in the light of the surrounding circumstances. Eschewing technical rules and literal interpretation, you must look to see simply what the testator intended. If you find that a literal interpretation gives rise to a capricious result which you are satisfied the testator can never have intended, then you should reject that interpretation and seek for a sensible interpretation which does accord with his intention.

The starting point is to determine whether, reading the will as a whole and in light of its surrounding circumstances, the language used by the testator results in the will being rendered meaningless, ambiguous or uncertain. If this is established, evidence may be admitted to assist in the interpretation of the language of the will, both where the uncertainty or ambiguity arises on the face of the will or in light of surrounding circumstances, although in the latter situation evidence of the testator's intention may not be given.

Generally, at common law, direct extrinsic evidence of a deceased's testamentary intention or declarations as to the meaning of the words used in a will are inadmissible. An exception arises where an analysis of the evidence surrounding the circumstances of the making of the will fails to resolve an ambiguity present in the ordinary meaning of the words and there is an equivocation. In Re Staughton, an equivocation was defined as 'a term that, upon application to external objects, is found to fit two or more of them equally'.

The circumstances in which extrinsic evidence may be considered, and the purposes for which it may be used in interpreting a will, are also governed by statute. In Victoria, s 36 of the Wills Act 1997 applies where the will was made on or after 20 July 1998 and dictates when evidence may be admitted to assist in interpretation of the language of a will - for example, where the language used in the will renders the will or any part of it uncertain or ambiguous in light of surrounding circumstances. Pursuant to s 36(3), the legislation does not override the common law armchair principle or equivocation exception, but explicitly preserves them. Further, the Wills Act 1997 also provides that evidence of the testator's intention is admissible in certain circumstances.[2]

42 The parties agree that in the circumstances of this case, the definition of 'carer' in the Deceased's Will has been rendered uncertain or ambiguous in light of surrounding circumstances.

43 The plaintiffs submitted that in this case it is the surrounding circumstances of the Deceased entering Carnsworth and being provided with care by the staff of that facility, while being routinely attended to by Maja, that gives rise to uncertainty. They said that extrinsic evidence of the circumstances surrounding the Deceased at the time the Will was executed is admissible to assist the Court to interpret the terms of the Will.

44 According to the plaintiffs, this admissible evidence includes evidence that Maja was caring for the Deceased, in the Deceased's home, at the time the instructions for the Will were given and when the Will was executed, and that the Deceased had a strong desire to remain at home.

45 The plaintiffs submitted that there is nothing in the body of the Will to assist the Court about the destination of the residuary estate. Nothing is available from the words of the Will to indicate what is required to be considered a 'carer'.

46 The plaintiffs submitted the Court must construe the word or sentence in the Will in its plain or usual meaning. Here, on the face of the Will, there is nothing to suggest the Deceased intended for the word 'carer' to mean something beyond its natural meaning or its current accepted usage.

47 The plaintiffs stated that the term 'carer' is a widely used lay term and referred the Court to the following definitions:

a family member or paid helper who regularly looks after a child or a sick, elderly or disabled person.

(b) The Macquarie dictionary defines a 'carer' as:

a person who, in a voluntary or professional capacity, has the care of someone else, as a patient, child etc.

1. the provision of what is necessary for the health, welfare, maintenance and protection of someone or something; the care of the elderly │ the child is in the care of her grandparents │ health care.

- protective custody or guardianship provided by a local authority for children whose parents are dead or unable to look after them properly: she was taken into care │ children in care.

2. (care for) look after and provide for the needs of: he has numerous animals to care for.

48 The plaintiffs referred the Court to the statutory definitions of the term 'carer' considered by the Supreme Court of South Australia in Stevens v Turner.[3] In that case, after considering the dictionary and statutory definitions of the word 'carer', the Court stated that in its ordinary meaning the word 'carer':

[C]arries a broad and liberal definition that goes beyond a person providing personal care. It incorporates other forms of support and assistance that can be offered to the person being cared for, including companionship.[4]

49 The plaintiffs submitted that the Deceased's use of the words 'no longer my carer' contemplates that Maja was the Deceased's carer at the time of making the Will and that the condition fails if Maja was 'no longer' in that role. This fact, the plaintiffs submitted, invites a similar approach to that used in Stevens where the court compared the role of the person asserting to be the 'carer' at the time of the deceased's death to the role that person was playing at the time the will was made.

50 From this starting position, the plaintiffs submitted that:

[B]y virtue of the deceased being a resident at Carnsworth, it is not likely that the support and assistance [Maja] provided to the deceased was 'necessary' (noting the reference to the provision being necessary in the Oxford dictionary definition [of 'care'] above).

51 According to the plaintiffs, this meant that the 'assistance' Maja provided to the Deceased at Carnsworth 'supplemented the 'necessary'' care of the nursing staff. It was the 'icing on the cake' to the care already being provided, but, according to the plaintiffs, Maja was not in fact providing 'care' in the same role as she had done so previously.

52 The plaintiffs submitted that the Court should distinguish Stevens from the present case on the basis that in Stevens the testator, at the time of making his will, was receiving care from both his own carer and from S.A. Family Home Care, i.e. at the time of making his will the testator contemplated a form of shared or hybrid care, not limited to one particular person or provider.

53 The plaintiff submitted that in this case, at the time the Deceased made her Will, Maja was the Deceased's sole carer and was providing care for all of the Deceased's needs at home 'and that was seemingly what the deceased intended to remain the case.' Additionally, the plaintiffs cautioned the Court from referring to authority which refers to another will as if it were a 'canon of construction for all wills'.

54 Ultimately, the plaintiffs summarised their submission as follows:

Whilst [Maja] was no doubt providing assistance and support to the [D]eceased, the role being played by [Maja] at the date of the [D]eceased's death was a role different to that as at the date of the will. [Maja] was no longer providing full care, on her own at home. [Maja] was instead providing supplemental support to the [D]eceased to the extent the 'nurses would permit'. That is not to say that [Maja] was not ready, willing and able to be the [D]eceased's carer, rather, she was not permitted to do so and it was not possible for [Maja] to provide the same level and nature of care to the [D]eceased as she did when the will was made.

55 Maja referred the Court to the following section of the Carer Recognition Act 2010 (Cth):

Section 5

(1) For the purpose of this Act, a carer is an individual who provides personal care, support and assistance to another individual who needs it because that other individual:

(a) has a disability; or

(b) has a medical condition (including a terminal or chronic illness); or

(c) has a mental illness; or

(d) is frail and aged.

56 Maja also referred the Court to the following sections of the Carers Recognition Act 2012 (Vic):

Section 3

"carer" means a person, including a person under the age of 18 years, who provides care to another person with whom he or she is in a care relationship.

Section 4

(1) For the purposes of this Act, a person is in a carer relationship if he or she provides another person, or receives from another person, care because one of the persons in the relationship -

(a) has a disability; or

(b) is older; or

(c) has a mental illness; or

(d) has an ongoing medical condition (including a terminal or chronic illness or dementia).

57 Maja endorsed the definition of 'carer' found by the South Australian Supreme Court in Stevens:

The word 'carer' in its ordinary meaning, carries a broad and liberal definition that goes beyond a person providing personal care. It incorporates other forms of support and assistance that can be offered to the person being cared for, including companionship.[5]

58 Maja submitted that at the time the Deceased made her Will, Maja was providing assistance to the Deceased with:

(a) culturally and linguistically appropriate companionship and support;

(b) housework and shopping;

(c) cooking; and

(d) medication.

59 Maja conceded that after the Deceased was admitted to Carnsworth, the nature and extent of the assistance provided by Maja did change in part, but not so much that Maja no longer fulfilled the condition of being the Deceased's carer. Maja said that from 11 May 2017 until the Deceased's death, she provided the Deceased with assistance with the following:

(a) culturally and linguistically appropriate companionship and support;

(b) daily or twice daily visits at Carnsworth;

(c) assisting with meals and providing some home ‑cooked food;

(d) preparing coffee and tea for the Deceased;

(e) taking the Deceased for walks;

(f) cleaning and ironing and changing the Deceased;

(g) liaising with the Deceased's doctor and lawyer in relation to the care of the Deceased; and

(h) liaising with Carnsworth staff about the care of the Deceased.

60 Maja submitted that when the Deceased put in place the 'caring arrangement', she wanted a family member and a Serbian person to provide that care, a large proportion of which involved providing companionship. According to Maja, the Deceased's use of the word 'carer' also involved being the Deceased's medical power of attorney. The Deceased had given Maja enduring power of attorney for medical treatment on the same day that VCAT decided the Deceased could be released from Sapphire into Maja's care.

61 Maja submitted that the Deceased was not precluded from having more than one carer and that the presence of more than one carer did not prevent Maja from still being characterised as the Deceased's carer if her duties remained similar to those carried out at the time the Deceased made her Will.

62 According to Aleksandra, the Deceased had a very specific concept in mind when she used the words 'my carer' in clause 6(b) of the Will. That concept necessarily involved living at home under Maja's full‑time care. That arrangement, Aleksandra said, was built on the deceased's strong, repeatedly stated desire to remain living in her own home. That is the arrangement the Deceased plainly had in mind when she used the words 'my carer' in clause 6(b) of the Will 'and nothing short of it will satisfy the condition'.

63 Aleksandra submitted that the VCAT Report contained a number of relevant observations, including:

(a) the Deceased 'usually lives alone in her own home in Kew';

(b) Maja is described as the Deceased's 'niece and carer' and 'a live in carer'[sic];

(c) the Deceased told the author of the VCAT Report that 'it is her intention to remain living in her home for as long as she can and expects that she is able to do this with the support of Maja';

(d) the author describes the Deceased as 'living at home with 24/7 carer support'.

64 Aleksandra referred to the following aspects of Dr Vowels' report as relevant:

[W]as able to find her great niece in Serbia and have her come to Australia on a limited Visa to take care of her great aunt in her home.

[R]eturned to live in her own home and has recruited her great niece to live with her and provide all care which includes minimal self-care, housekeeping including cooking and shopping and some other chores.

(c) Dr Vowels reports that the Deceased was aware that the neuropsychological assessment was related to the VCAT hearing and that she reported 'being angry about people thinking she should go to a nursing home'.

(d) the Deceased told Dr Vowels:

[S]he becomes sometimes depressed but that has been better since she has returned home.

65 Aleksandra submitted that the VCAT Report demonstrated the Deceased's desire and intention to continue living at home with the care and support of Maja. According to Aleksandra, the Deceased carefully planned the 'live in' caring arrangements and approached Maja to fulfil that role in late August 2015.

66 Aleksandra argued that the centrality of the 'live in' aspect of the carer role is confirmed in Maja's own evidence. She pointed to statements in Maja's evidence that the Deceased wanted her to come to Australia 'so I could take care of her and she could continue to live in her own home'. Maja knew that the Deceased wanted to avoid being placed in a nursing home. This was the whole reason the Deceased approached Maja to come to Australia and why Maja took on the carer role on a full‑time basis in the Deceased's home.

67 Aleksandra endorsed the approach taken in Stevens where the South Australian Supreme Court looked at the nature of the care being provided to the testator and the various tasks being undertaken by his carer at the time he made his codicil. Applying that task to the facts of this case, Aleksandra submitted, demonstrates that the change in the nature and degree of the care provided by Maja from the date of the Will to the date of the Deceased's death has been dramatic. Critically, the essential 'at home' aspect of the caring, which enabled the Deceased to continue living at home, was lost in September 2016, when Maja had to return to Serbia, and was never restored.

68 Whatever the nature of the care Maja provided to the Deceased from May 2017, Aleksandra submitted it was missing the essential element of in-home care and so it was:

[F]undamentally different to what was contemplated by the Deceased when she used the words 'my carer' in clause 6(b) of her Will.

69 Each of the parties referred me to a number of dictionary definitions of the word 'carer' and to the definition propounded by the South Australian Supreme Court in Stevens as referred to in paragraph 48 above. Having regard to the various definitions put forward by the parties, I accept and adopt the ordinary meaning of the word 'carer' as propounded in Stevens.

70 The parties all conceded, correctly, that the language of clause 6(b) is not meaningless, uncertain or ambiguous on its face. The language of clause 6(b), and in particular the meaning of 'carer', is uncertain or ambiguous in light of the surrounding circumstances. It is the change in the Deceased's caring arrangements from the time the Deceased made her Will to the time of the Deceased's death that gives rise to the uncertainty or ambiguity in the language of clause 6(b). As there is uncertainty and ambiguity, the Court may have recourse to admissible extrinsic evidence, excluding evidence of the Deceased's intention, to construe the meaning of the Will.

71 A necessary inference of the Deceased's use of the phrase 'no longer my carer' in clause 6(b) is that Maja was the Deceased carer at the time the Will was made. The relevant inquiry, correctly identified by all the parties, is whether Maja was 'no longer' in the role of carer at the time of the Deceased's death.

72 There were two aspects of the plaintiffs' submissions about the meaning of the word 'carer' as that term appears in clause 6(b) of the Deceased's Will that I am unable to accept.

73 The first is that the plaintiffs' analysis of the meaning of the word 'carer' is based, at least in part, on a misapprehension that at the time the Deceased made her Will, Maja was the Deceased's sole carer. From this false premise, the plaintiffs contend that as at the date of the Deceased's death, Maja cannot fulfil the condition in clause 6(b) of the Deceased's Will because she was not the Deceased's sole carer at the time of the Deceased's death. At the time the Deceased made her Will, she was receiving care not only from Maja but also from Vasey RSL. There is no basis for imposing the requirement of being a sole carer into the definition of 'carer' in clause 6(b) of the Deceased's Will.

74 The second is that the plaintiffs' analysis of the meaning of the word 'carer' progresses from the plaintiffs' understanding of the word 'care' as defined in the Oxford dictionary. The plaintiffs' submissions appear to place particular emphasis on the word 'necessary' within the Oxford dictionary definition to differentiate between the care provided by the staff at Carnsworth and that provided by Maja at the time of the Deceased's death.

75 The plaintiffs submitted that by virtue of the Deceased being a resident at Carnsworth, it is not likely that the support and assistance Maja provided to the Deceased was 'necessary', noting the use of that word in the dictionary definition of 'care'. According to the plaintiffs, at this time the nurses at Carnsworth were providing the Deceased with 'necessary' care. The plaintiffs, without explaining the criteria they have employed to determine necessity, submit that the former was 'necessary' and the latter was 'icing on the cake'. This, according to the plaintiffs, meant that Maja cannot meet the condition of being the Deceased's carer at the time of her death.

76 The plaintiffs' approach takes the Court away from the very task it says the Court should undertake. Rather than looking at the nature and degree of Maja's role at the two relevant periods, the plaintiffs focus on one particular aspect (namely, necessity) found in one of the definitions, and refer the Court to this as an essential element. In my view, this approach is misconceived. This misconception is highlighted when one considers that the Deceased told the OPA investigator on 17 November 2015, some three months before the Deceased made her Will, that Maja provided her 'assistance with domestic chores and companionship'.

77 A similar approach was adopted by Aleksander, who submitted that Maja was not the Deceased's carer at the time of her death because the 'at home caring arrangement' was at an end. The critical element contended by Aleksander was the continuation of in-home care.

78 I cannot accept this approach for two reasons. First, it asks the Court to have regard to impermissible evidence of the Deceased's intentions at the time of making the Will. It is abundantly clear that the Deceased wished to live at home and wished to continue the in-home care arrangement, however that falls into the prohibited category of evidence of the Deceased's intentions. The existence of the 'at home care arrangement' is a relevant surrounding circumstance, but not so far as it goes to the Deceased's intention as suggested by Aleksander at [38] of her submissions:

The deceased regarded the first defendant as her carer in the context of the 'at home' caring arrangement that was in place when she made her last Will. That arrangement - built on the deceased's strong desire to remain living at home - necessarily informs the Court's task in construing the Will. It was that arrangement that the deceased plainly had in mind when she used the words 'my carer' in clause 6(b) of the Will, and nothing short of it will satisfy the condition.

79 Another matter relied upon by Aleksander is the VCAT Report which was prepared proximate to the making of the Will. Many of the extracts relied upon by Aleksander relate to the 'at home arrangement' and evidence of the Deceased's intentions or wishes for her ongoing care.

80 It is important to remember that VCAT did not decide whether and under what circumstances the Deceased should live at home. The decision of VCAT, reflected in the order it made on 27 January 2016, was that the application for orders in relation to the Enduring Power of Attorney and for the appointment of a guardian and administrator were dismissed because the Tribunal was not satisfied that the proposed represented person had a disability which affected her capacity to make her own reasonable decisions.

81 One of the factors that VCAT took into account, reflected in VCAT's request that the OPA prepare a report, was the wishes of the proposed represented person, so far as they could be ascertained. In my view, evidence of what these wishes were, to the extent they purport to reflect the Deceased's intentions at the time of making her Will are inadmissible. This is not to say that the fact that the Deceased and Maja were involved in the VCAT proceeding and that information about the nature of the Deceased's relationship to Maja and Maja's role in the Deceased's domestic arrangements are not relevant to identifying the Deceased's circumstances at and around the time she made her Will. In that regard, it is significant that Dr Vowels described the care Maja was providing to the Deceased at that time, 'includes minimal self-care, housekeeping including cooking, shopping and some other chores' (my emphasis).

82 Second, Aleksander's approach to construction of 'carer' imports as an essential 'element' a requirement that the care be given at home, without explanation as to why this element is essential to the construction of 'carer'. In distinguishing Stevens, Aleksander suggests that the absence of in-home care was a 'dramatic' change to the nature and degree of the care provided by Maja. Without having regard to the Deceased's intentions, it is unclear how such dramatic change in the provision of care is said to arise. In my view, this approach focuses unnecessarily on the location of where the assistance to the Deceased was provided rather than on the nature and degree of that assistance.

83 All parties agreed that to discern the meaning of the word 'carer' in the Deceased's Will, the Court should adopt a similar approach to that used in Stevens, of comparing the nature and degree of the role of Maja at the time the Deceased made her Will and at the time of her death.

84 At the time the Deceased made her Will, both Maja and Vasey RSL were the Deceased's carers. Having regard to the totality of the admissible evidence, I am satisfied that Maja's role at this time included:

(a) doing the housework and shopping;

(b) cooking for the Deceased and preparing her coffee and tea;

(c) doing the Deceased's laundry;

(d) providing minimal self-care but cleaning and changing the Deceased as her health deteriorated;

(e) providing companionship to the Deceased, including conversing in the Serbian language, watching television together and reminiscing about family;

(f) taking the Deceased out of her home on excursions, including to cafes and the casino;

(g) making sure the Deceased was taking her medication;

(h) taking the Deceased to medical appointments and spending time with her when she was in hospital; and

(i) liaising with the Deceased's lawyers, doctors and VCAT in furtherance of the Deceased's wishes and welfare.

85 At the time of the Deceased's death, she was a resident at Carnsworth. At this time, a large portion of the day-to-day care would have been provided by the Carnsworth nursing staff. Notwithstanding this, the evidence as a whole demonstrates that at this time Maja's role included:

(a) visiting the Deceased for several hours each day;

(b) preparing some meals, tea and coffee for the Deceased and helping to feed her;

(c) cleaning and ironing the Deceased's laundry;

(d) providing companionship to the Deceased, including conversing in the Serbian language, watching television, and reading together and reminiscing about family;

(e) taking the Deceased outside for fresh air;

(f) providing emotional support when the Deceased was sad;

(g) spending time with the Deceased during the periods she was in hospital; and

(h) liaising with the Deceased's lawyers and doctors about the Deceased's wishes and welfare.

86 In my view, the duties being undertaken by Maja at the time the Deceased made her Will, while being undertaken at different locations, remained remarkably similar in nature to those she undertook at the time of the Deceased's death. Between these two points in time, there was clearly a change in the extent to which Maja was carrying out those duties. I am not satisfied that there was such a change in degree as to mean that Maja was no longer fulfilling the role of carer when the Deceased was a resident at Carnsworth. At the time of the Deceased's death, the evidence before the Court demonstrates that Maja was continuing to provide physical and emotional care and companionship to the Deceased.

87 I am satisfied that in the events which have happened, Maja Beleslijin-Darabos meets the description of being 'my carer at or just prior to my death' as set out in clause 6(b) of the Will of Maria Dimitrijevic dated 15 February 2016.

88 I will hear from the parties on the question of costs.

(in their capacity as executors and trustees of the will and estate of Maria Dimitrijevic, deceased)

[1] (2019) 60 VR 71.

[2] Ibid, [22]-[33]. Citations omitted.

[3] [2018] SASC 7 (Stevens).