Re: the Estate of Iris McLaren; Mariconte v Nobarani

Applicable Legal Principles and the Issues

1. Before proceeding to the history of the matter, I will identify the issues by reference to relevant legal principle.
2. The law in cases such as this is readily stated. If a will is rational on its face and attested in the manner prescribed by law it is presumed to have been made by a person of competent understanding. But if circumstances counter balance that presumption the evidence as a whole must be sufficient to establish that the testator was of sound mind. In Timbury v Coffee (1941) 66 CLR 277 ("Timbury") at 283 the High Court stated these principles as follows: "Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realize the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner" (per Hood J, In the Will of Wilson). "If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding. But if there are circumstances in evidence which counterbalance that presumption, the decree of the court must be against its validity, unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it" […] . "In the end the tribunal - the court or jury - must be able, affirmatively, on a review of the whole evidence, to declare itself satisfied of the testator's competence at the time of the execution of the will …" (citations omitted).
3. The Courts limit challenges to wills to persons with a proper interest in doing so. But apart from proof of proper execution the matters a defendant may put in issue are any lack of capacity, lack of testamentary intention, or lack of knowledge or approval. The Court of Appeal explained this in Hughes v Public Trustee (Court of Appeal (NSW), 19 August 1980, unrep) ("Hughes") at 4, per Hutley JA: "The rules are designed to allow what are called interest suits being determined in advance. It is a serious matter where a person with no locus standi is allowed to contest the administration of the estate because the results of such litigation may be utterly futile and it may be necessary for different parties to fight over the same ground. … The real issues which have to be dealt with here are three: has the defendant established, there being no dispute as to the formal correctness of the will, lack of capacity, lack of testamentary intention or lack of knowledge and approval …".
4. Mr Nobarani claimed he had an interest in opposing a grant of probate to Ms Mariconte, because his rights under one or more prior wills would be affected by the grant. In D'Apice v Farrell (Supreme Court (NSW), Powell J, 15 May 1992, unrep) Powell J of the Equity Division of this Court comprehensively stated the relevant principles, thus: "[A]lthough the provisions of s144 of the Wills Probate and Administration Act 1898 would seem to indicate that it is open to any person to lodge a Caveat, it is to be remembered that Probate litigation is what might be called "interest litigation", it following, that a Caveator must show that she, or he, has a relevant interest in the estate of the relevant deceased […]. A Caveator will show a relevant interest if she, or he, is able to show that her, or his, rights will, or may, be affected by the grant which is opposed […] . Thus, the executor of, or a beneficiary under, another Will than that propounded has a relevant interest in the estate of the relevant deceased, as also do the next of kin unless there are other Wills than that sought to be propounded, the validity of which other Will is not impugned" (citations omitted).
5. Mr Nobarani has put everything in issue. He seeks to cast doubt on and if so Ms Mariconte, must prove, the execution of the December 2013 will and that Iris knew it was a testamentary instrument, and had an understanding of her affairs for testamentary purposes and had the capacity to execute the will. Mr Nobarani has put all of these matters in issue. So they must all be decided. I say he has put all these things in issue because, when one looks at all the affidavits he has filed and his defence, although each of those documents does not clearly articulate those individual issues, taken together they include material which makes clear he takes issue with each of those matters. So I will treat his defence as putting each of them in issue.
6. Mr Maconachie QC and Mr Hickey, who appeared for the plaintiff, argued that the defence should be treated as one raising the general issue that should either be struck out or have no notice taken of it. But it seems to me that when dealing with a litigant in person, as Mr Nobarani, the Court should do its best to look at the defence and affidavits to see what is put in issue and to deal with it in substance.
7. I should start by saying something about the deceased, Iris. Her own interests and outlook in life have to a degree, been revealed by what Mr Nobarani has raised. For much of her earlier life Iris seems to have been a hairdresser. She was married for many years until her husband was tragically killed in a motor accident in 1980. She made a will shortly before that, giving everything to him but, should he predecease her, the whole of her estate would go to the Animal Welfare League.
8. Iris had throughout her life a strong interest in the welfare of animals. She was a person who readily made friends and was generous. The evidence demonstrates this right through all her relationships, not only with the parties to these proceedings but also with the tenants she took in, with the stall she ran at the markets and with her long solicitor-client relationship with Mr Bradstreet. She was described at one point in the evidence as "Bohemian". But looking at all the evidence, it is more accurate to say she was someone who chose to lead life generously and in her own way.
9. Some more relevant detail follows. On 18 November 1977 Iris made a will leaving her estate to her then husband, Gordon James McLaren, to be gifted over to the Animal Welfare League in the event he predeceased her. Iris made another will somewhat later in her life, but well before the events with which I am concerned. The important thing to note about this next will made on 12 August 2004 is that it mentions both Ms Mariconte and Mr Nobarani (referred to in this will by the name Iris called him, "Hamid"): "12TH AUGUST, 2004 THIS IS THE LAST WILL AND TESTAMENT OF (MRS.) IRIS MCLAREN (nee JAMES) […] I REQUEST THAT THE N.S.W. ANIMAL WELFARE LEAGUE FIND LOVING HOMES FOR ALL MY ANIMALS, OR PROVIDE CARE FOR THEM, UNTIL THE END OF THEIR NATURAL LIVES. FUNDS FOR THIS PURPOSE TO BE MADE AVAILABLE FROM MY ESTATE. I BEQUEATH SUFFICIENT FUNDS FOR A MEMORIAL WING AT THE LEAGUE'S MAIN CENTRE. THE MEMORIAL PLAQUE TO BEAR THE FOLLOWING INSCRIPTION - IN LOVING MEMORY OF CYRIL STEWART AND IRIS VIVIENNE JAMES, GORDON JAMES AND IRIS McLAREN AND OUR BELOVED PETS. I WISH TO BE CREMATED AT WORONORA, LINDEN ST., SUTHERLAND, N.S.W. […] I BEQUEATH MY TWO SEMIS, 80 AND 82 WENTWORTH AVE., MASCOT N.S.W.2020 TO N.S.W. ANIMAL WELFARE LEAGUE […] I WISH A BRANCH TO BE ESTABLISHED ON THESE PROPERTIES, WITH COUNCIL PERMISSION. MY LEGACY TO THE LEAGUE IS FOR THE PURPOSE OF SAVING THE LIVES OF ANIMALS AND REHOMING SAME. THIS IS A SPECIFIC REQUEST. I AM AGAINST THE DESTRUCTION OF ANY ANIMAL - UNCONDITIONALLY SO. THIS WAS THE REASON FOR THE LEAGUE'S INCEPTION. IT WAS NEVER INTENDED TO BECOME A BRANCH OF R.S.P.C.A., WITH THE DREADED "DEATH ROW" SYNDROME. LET US NOT FORGET OUR ORIGINAL CREDO - TO SAVE AND PROTECT THE LIVES OF ALL ANIMALS - THEY ALL DESERVE OUR LOVE. I BEQUEATH MY TWO BLOCKS OF LAND TO A.W.L. FOR THE SAVING OF ANIMALS. […] TO THERESE MARICONTE, I BEQUEATH MY JADE BUDHA PENDANT AND GOLD CHAIN. BUDHA HAS GOLD BASKET SETTING AT BACK. I ALSO BEQUEATH TO THERESE TEN THOUSAND DOLLARS. HER ADDRESS IS UNIT 89, BLOCK 173 BILGA CRESCENT, MALABAR, N.S.W. 2036. PHONE 0414636820. […] JEWELLERY TO BE SHARED BETWEEN MICHEAL, HAMID, MOLLY, PAT, MARGARET, IDA AND THERESE. MICHEAL TO ADJUDICATE. […] LIST OF MY FRIENDS TO BE NOTIFIED, REGARDING MY FUNERAL, ALSO IN REGARD TO SHARING IN MY PERSONAL POSSESSIONS. HAMID [Personal details removed] […] THERESA MARICONTE [Personal details removed] […]"
10. This will also mentions Iris' father, Cyril Stewart James. I accept that Iris had asked Mr Nobarani to write a history. Mr Nobarani about Iris' father's life.
11. The will Ms Mariconte propounds in these proceedings is alleged to have been made when Iris was in hospital on 5 December 2013. Iris, was by then suffering the final and very painful stages of oesophageal cancer. She had already been hospitalised for some weeks.
12. Mr Nobarani in turn propounds a case that Iris made a will ("the September 2013 Will") in about late August or sometime in September at home before she went into hospital, under which he and the Animal Welfare League benefitted. Various pre-trial applications were made to Hallen J to permit a search to take place at the deceased's home for that will. For various reasons, those searches were not successful. The alleged September 2013 will has never been located. Nor has any copy of it ever been found.
13. There is no direct evidence, other than from what Mr Nobarani says, about the contents of the alleged September 2013 will. But even through the 2004 will Mr Nobarani has standing to contest the December 2013 will. Ms Mariconte, through her lawyers submitted that he did not have standing to do so. But it is not in contest that although only a photocopy of the form of will of 12 August 2004 is in evidence, that it is indeed a true copy of Iris McLaren's will of that date and that it does benefit Mr Nobarani. He does have standing to challenge the December 2013 will.
14. I will shortly come to the detail of what is said to have happened on 5 December 2013. But I will note at this point that Mr Nobarani suggests that the December 2013 will was actually made on 10 December 2013. I will deal with this on the issue of execution, to which I will return.
15. Iris died on 12 December 2013 from the cancer she was suffering. Not long after her death the present contest broke out between these parties. The December 2013 will emerged a few days after Iris's death. The December 2013 will is as follows: "This WILL dated 5 December 2013 is made by me IRIS McLAREN of … Mascot. I REVOKE my former wills and appoint Teresa Anne Mariconte of … Maroubra my executrix. I GIVE DEVISE or BEQUEATH the whole of my estate to the said TERESA ANNE MARICONTE and I express the wish that Michael Bradstreet be engaged as Solicitor for the Estate. Signed by the Testator in the presence of the two witnesses below [Iris McLaren] Signed by the Testator in the presence of both of us and we being present at the signature and signed by us in the presence of the testator and each other. [Rachel Parseghian] [Chen Yuanun]
16. On 23 January 2014 Mr Nobarani filed his first caveat under Supreme Court Rules 1970, Part 78 against the taking out of probate in respect of the December 2013 will. On 14 February 2014 Ms Mariconte filed the present statement of claim and the motion to remove both a caveat lodged by Mr Nobarani and another caveat lodged by the Animal Welfare League. On 15 May 2014 by consent the caveat filed by the Animal Welfare League was dismissed. But under Supreme Court Rules, r 78.69, a caveat expires after six months. Mr Nobarani's first caveat filed on 23 January 2014 must therefore have expired on 23 July 2014.
17. Probably because of the expiry of his first caveat Mr Nobarani filed his second caveat on 15 September 2014. His second caveat is procedurally unusual. It clearly objects to the grant of probate to Ms Mariconte, although without identifying the will under challenge. But the interest Mr Nobarani claims in this caveat is an interest simply described in the one word "justice." This is a perfectly admirable objective. But it is the detail that is important in this case for deciding what is the truly just result according to law.
18. That second caveat seems to me, under the Supreme Court Rules, to have expired on 15 March 2015, when six months had passed and no extension of the caveat had been sought. Notwithstanding that, this matter including the motion, has been set down for hearing before me for two days. At the opening of the hearing Mr Nobarani who had previously only been caveator and a respondent to Ms Mariconte's motion for removal of the second caveat was joined as the second defendant. The most efficient course for the Court was to proceed to hear the matter as listed both the motion for removal of the caveat and the Statement of Claim and Defence. Some pre-trial matters occurred.

Pre-trial procedure

1. The plaintiff sought from late March to mid-April this year, on an application before Hallen J, to obtain access to Iris's property to search for what he claimed was the September 2013 will. Iris had let the property out to tenants, including at one stage to Mr Nobarani himself. At the time the application was first made, Mr Nobarani had a solicitor acting for him. Liberty was given to him to have access to the property to conduct a search on 22 April 2015. What precisely went wrong with the inspection on that date is rather difficult to tell. But this much can be said. Mr Nobarani appears to have claimed on this day that the September 2013 will may have been secreted at the property in a greater number of possible places than he had identified before that day of inspection. He was not represented by a lawyer on that occasion. Disagreements arose as to whether he should be able to search as widely both inside and outside Iris' property as he was then requesting. No agreement was reached. In response he appears to have left the scene. No inspection took place.
2. I do not have to determine the rights and wrongs of what happened on that occasion. This is so for several reasons. The December 2013 will contains a revocation clause. If the December 2013 will is valid it would have revoked any September 2013 will. The validity of the December 2013 will is the primary issue. Moreover on the issue of Mr Nobarani's standing, whatever may have happened in relation to the September 2013 will, if such will exists, Mr Nobarani has an interest under the 2004 will. So he has standing under that earlier will to contest what happens to the December 2013 will. But any further interest that there might be in the September 2013 will depends upon whether a challenge can be made to the December 2013 will. Therefore, the Court will consider that first before concerning itself with what happened on 22 April 2015.

Procedural issues and credit questions

1. Before proceeding to deal with the positive evidence as to execution and various contested matters, I should now make a number of procedural observations about this case.
2. The defence is almost incomprehensible. It attaches documents, it makes general allegations. It attaches things that might be evidence but they were not separately tendered as evidence and were not treated by the Court as evidence. For example, there is attached to the Defence, an affidavit of a Mr Lemesle. But Mr Nobarani did not read that affidavit in his case and did not call Mr Lemesle.
3. I will only treat as the second defendant's evidence those affidavits which Mr Nobarani formally read. They are Mr Nobarani's four affidavits and that of his wife, Ms Maghsoodi.
4. Both Mr Nobarani and his wife gave evidence. His wife, Ms Maghsoodi, was both a reliable and credible witness of substantial truth. I accept her evidence. But it does not bear closely on the validity of the December 2013 will.
5. From the way he gave evidence Mr Nobarani struck me as an intelligent man. He says he has been a doctor in Iran and came to Australia as a refugee in the early 1990s. The presentation of his case certainly showed a degree of self-possession and the capacity to marshal arguments characteristic of a person of intelligence, insight and professional training.
6. But I do not find Mr Nobarani to be a credible witness. He was prepared to speculate about Iris being on drugs and undergoing hypnosis at the time she made the December 2013 will, without any evidence to support these claims. He was prepared to make allegations of dishonesty against Mr Bradstreet, the plaintiff's solicitor, without the slightest basis. He does not show reasonable judgment, on whom the Court can place reliance.
7. Moreover, Mr Nobarani's evidence was full of curious contradictions. At one stage he accounted for his not cross-examining Mr Bradstreet on the basis he could not expect Mr Bradstreet to tell the truth as he was so biased in favour of Ms Mariconte. But on another occasion he said he regarded Mr Bradstreet as a professional who would tell the truth. I do not accept Mr Nobarani's evidence except to the extent that it is corroborated by other objective materials or other uncontested facts.
8. Mr Bradstreet and Ms Mariconte gave evidence in the plaintiff's case. They were both very credible witnesses. Ms Mariconte's credit was not damaged by anything put to her in cross-examination, and I accept her as a witness of truth.
9. I should say something more about Mr Bradstreet. Mr Bradstreet's evidence was attacked on many bases, firstly on the ground that he was biased against Mr Nobarani. But there is absolutely no evidentiary support for this contention. There were variations on Mr Nobarani's bias attack, but they really fell into two general categories.
10. The first category was that Mr Bradstreet is said to have disliked Mr Nobarani because he had acted as Mr Nobarani's solicitor and Mr Bradstreet's retainer had been terminated because of unhappy disagreements between the two of them about Mr Bradstreet's services. Mr Nobarani asked Mr Bradstreet about this. But there is, in my view, no sign of rancour or resentment on Mr Bradstreet's part in relation to Mr Nobarani as a former client. Nor was there any proper basis for an allegation of bias on this ground against him.
11. Mr Nobarani's other attack on Mr Bradstreet was to say that Mr Bradstreet was close to the plaintiff, Ms Mariconte, who is said to have interceded for Mr Bradstreet in various ways. But there is no evidence, in my view, that Ms Mariconte was anything more than a client of Mr Bradstreet nor that he had any reason to prefer her interests over those of Mr Nobarani for any reason. The reality was that Mr Bradstreet had acted for Mr Nobarani, Ms Mariconte and Iris at various times of their lives, and none of the evidence suggested that he had preferred or was likely to prefer the interests of one over any other when they were in conflict. By the time Iris made her will, Mr Bradstreet was not acting for Mr Nobarani on any legal matter.
12. At one point in his submissions, Mr Nobarani sought to challenge the whole of Mr Bradstreet's evidence on the basis that Mr Bradstreet had falsely replied to a question in cross-examination to the effect that he had held Iris's hand in the hospital on the day the December 2013 will was made and that it felt normal and warm to the touch. Mr Nobarani suggested in his submissions that all doctors know that if patients such as Iris are administered a particular kind of medical treatment, the patients' hands would not be warm. Mr Nobarani explained it this way to the Court: "Serum, it's so called everybody can feel it very easily and for a long time she was receiving that serum and it must be cold. I wasn't there but I know".
13. Mr Nobarani appeared to be relying for this opinion upon medical knowledge of some kind. But he is not an independent medical expert. He is not medically qualified in this country. He is not competent to give independent expert evidence in his own case. There was, indeed, no medical evidence before the Court as to what medication was being given to Iris in the last week of her life, nor whether any of her medications even corresponded with what Mr Nobarani described as "serum". There is no proper basis in the evidence for Mr Nobarani's submission to discredit Mr Bradstreet on this point.
14. On various occasions Mr Nobarani has sought an adjournment of these proceedings. The matter had been set down for hearing before me for some time, 20 March 2015, preceded by a number of pre-trial applications before the Registrar and before Hallen J on 30 March 2015 and 20 April 2015. I also held a directions hearing on 14 May 2015, the week before the hearing. Mr Nobarani was warned on that occasion that he needed to have all his evidence ready for this hearing. He and Ms Mariconte were given liberty to apply on 24 hours' notice in case any urgent subpoenas needed to be issued for the purposes of presenting their full evidentiary cases. Two days were set aside by the Court. Apart from the lack of any proper basis being demonstrated for an adjournment, given the vagueness with which Mr Nobarani had presented many of the procedural issues and the disorder in which his case appeared, the Court had no confidence that even if an adjournment were granted any part of the case he was presenting was likely to become more precise.
15. At the end of the day, two principal matters were in play guiding the Court in deciding upon no adjournment. One was the dictates of Civil Procedure Act 2005, s 56 requiring the "just, quick and cheap resolution of the real issues in the proceedings", which in this case in my view strongly suggested an adjournment should not be granted and that the case should be dealt with in the time set aside and that was available. Secondly, learned Senior Counsel for the plaintiff, Mr Maconachie, referred the Court to authorities in relation to the way that the Court should rights of the parties where litigants in person such as Mr Nobarani appear before the Court: Minogue v Human Rights and Equal Opportunity Commission (1999) 166 ALR 129; Malouf v Malouf [2006] NSWCA 83. The essence of those judgments is that the Court must be even-handed between the parties notwithstanding that one of them is a litigant in person. Were Mr Nobarani legally represented in these proceedings he would have had no prospect of an adjournment in the circumstances. I do not see why he should have one, simply because he is unrepresented.

The Plaintiff's Case as to the December 2013 Will's Validity

1. I now wish to turn in more detail to the substance of the matter; that is the evidence that makes out the various elements that are required to be proved under the statement of claim and how each of those elements is contested.
2. The requirements for valid execution of a will in New South Wales as set out in Succession Act 2006, s 6, which states: "(1) A will is not valid unless: (a) it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and (b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and (c) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other). (2) The signature of the testator or of the other person signing in the presence and at the direction of the testator must be made with the intention of executing the will, but it is not essential that the signature be at the foot of the will."
3. Hughes and Timbury make clear that it is necessary for a plaintiff such asMs Mariconte to prove not only the formal correctness and execution of the will in conformity with the legislation but, if put in issue by credible evidence, also relevant capacity, testamentary intention, and knowledge and approval of the will.
4. Because of the way the case was put, I will deal with those issues now for convenience in three main baskets: (1) questions of execution; (2) questions of capacity; and (3), together questions of testamentary intention, and knowledge and approval.
5. It is convenient to deal first with the positive evidence in the plaintiff's case as to execution, as to capacity, as to knowledge and approval of the testamentary act are each relevantly the following.

The Positive Evidence as to Execution, Capacity and Knowledge and Approval

1. Ms Mariconte herself was not present when the December 2013 will was executed. She could add nothing to any account of its execution. The two principal witnesses on whom Ms Mariconte relied were Mr Bradstreet, who gave evidence and was cross-examined, and an affidavit of one of the witnesses to the will, Ms Rachel Parseghian.
2. Ms Parseghian's evidence was deposed on affidavit. Mr Nobarani did not give any notice to Ms Mariconte in advance of the trial that he wished to cross-examine Ms Parseghian. She was not present at the hearing. I did not permit an adjournment to allow cross-examination on her affidavit. I accept her evidence. In short, she says that she was at the Prince of Wales Hospital in Randwick on 5 December 2013 and that she witnessed the execution of Iris's will on that day.
3. Her evidence is important on one incidental issue. Mr Nobarani challenges the date on which the will was executed. He says that it was executed on 10 December 2013. I accept Ms Parseghian's evidence that she remembers that it was on 5 December, quite apart from my acceptance of Mr Bradstreet's evidence to the same effect. Ms Parseghian says that she was visiting her mother who was a patient in the same hospital ward as Iris. Apparently Ms Parseghian's mother had occupied the bed next to Iris for about a week and in the course of visiting her mother there every day she had an opportunity to observe Iris's state of health.
4. Ms Parseghian said she spoke to Iris from time to time during her visits and heard her speaking to others. She says that at no time did she consider Iris was mentally incapacitated in any way and that she would not have agreed to witness Iris' will had she considered from her observations that Iris did not have the mental capacity to sign it.
5. Ms Parseghian had never met Iris prior to about a week before signing the will. Nor had she ever met Ms Mariconte. She adds that since having Ms Mariconte identified to her she recognises her as having visited Iris every day whilst Ms Parseghian's mother's bed was next to Iris's bed. Ms Parseghian says on the day the December 2013 will was signed, she was sitting by the side of her mother's bed when Mr Bradstreet inquired of her whether she would be prepared to witness the will. She agreed to do so, and then did so. She does not herself directly say that she was present at the same time as the other witness, but the will says that and Mr Bradstreet says that.
6. Mr Bradstreet was present when the December 2013 will was executed. I accept all his evidence. He has known Iris for a long time. He first started acting for her in the 1970s when he practiced in the Sydney suburb of Mascot. He says, and I accept, that over the years he attended to numerous legal matters for her and for clients who were referred to him by her. These people were usually friends or tenants in her house.
7. Mr Bradstreet well remembers a Monday in the 1980s when Mrs McLaren attended his office and told him that her husband had been tragically and suddenly run down and killed in a motor vehicle accident over the prior weekend. From that time on he proceeded to act for her in relation to obtaining her late husband's probate and on a compensation to relatives claim for her in the District Court. His dealt with her as a client in relation to many other matters as well. He says, and I accept, that by the time Iris died he knew her very well. It seems to me also from the way he spoke about her in the witness box in this proceeding that this is undoubtedly true. Because of that longstanding knowledge he was, in my view, in an excellent position to be able to assess her alertness and capacity at the time of the making of the December 2013 will.
8. Mr Bradstreet gives an account that in early December 2013 Iris rang him to tell him that she was at the Prince of Wales Hospital and asked him to come and prepare a new will for her. His evidence about this is significant. It was Iris herself who telephoned him and asked him to come in. It was not done on Iris's behalf by anybody. And she rang him some days before he actually came in.
9. He attended at the Prince of Wales Hospital on 5 December. He observed that Iris was in a shared room on this occasion and she had two friends around her bed as he walked in. The conversation that then took place is of significance in assessing Iris' capacity and alertness at the time. Mr Bradstreet's account of what happened, which I accept, follows. One of the people at her bedside said on his approach to the others around her, "Oh, here's the doctor." But Iris responded, "No, that's Michael Bradstreet.", and then turning to him Iris said, "How are you?" It was clear from this that Iris was sufficiently alert to be able to correct her friend to point out that Mr Bradstreet was (1) well-known to her and (2) not her doctor.
10. Mr Bradstreet then conversed informally with Iris for a period of time. Part of his strategy with small talk like this was to ascertain how she was. He and Iris entered into small talk together about matters of mutual interest. He assessed her as a result of this to be alert and interested in the conversation. He then had the following conversation with her: Mr Bradstreet: "Well, Iris, you want to change your will. What do you want to do?" Iris: "Teresa Mariconte is the only one who cares at all about me and I want to leave my property to her. I want you to be the solicitor for the estate." Mr Bradstreet: "Who do you want to be the executor?" Iris: "I want Teresa to be the executor as well." Mr Bradstreet: "Alright Iris. Do you fully understand that this means that any previous Will you have will be finished and this will be your Will which will operate on your death and under it Teresa will get everything?" Iris: "Yes, I understand that, she's the only one who cares at all for me."
11. It is clear from this that Iris herself was the proponent of the testamentary ideas that went into her will and that it was her choice for Teresa Mariconte to be her executrix and principal beneficiary.
12. Mr Bradstreet then very carefully checked with Iris what her instructions were. He turned back to her at the end of this and said: "Do you understand that you have now left everything to Teresa and have made me the solicitor for the estate. That's what the will does?"
13. To which Iris responded: "Yes, I understand that."
14. Mr Bradstreet says that his habit in this situation with a client at this stage of life is to write the will out immediately so that it can be executed immediately rather than take the will away to be typed. He says, and I accept, that this is a habit that he acquired when he was an articled clerk many years ago, that he was taught it by his master solicitor and that he has followed the practice ever since. It is a wise practice. He says Iris signed the will. It bears a signature consistent with that. I accept what he says. Mr Bradstreet also says that, in conformity with the legislation. Iris signed the will in the presence of two witnesses, one of whom is Ms Parseghian.
15. Searches were made to find the other witness to the December 2013 will, Mr Chen Yuanun. No affidavit was obtained from him. But that does not prevent the Court from concluding that the will was properly executed.
16. Iris' capacity is also to be inferred from this evidence quite apart from what might be presumed from the form of the executed December 2013 will. Relevant capacity can be inferred from the way that Mr Bradstreet interacted with Iris, the observations of her by the other witnesses, especially Ms Parseghian, and the conversations between Mr Bradstreet and Iris about the contents of the will.
17. Finally on the question of knowledge and approval of the will: Mr Bradstreet summarised back to Ms McLaren the contents of the will, the text was not complex, and he conveyed back to her the substance of it. It is clear in my view that she intended to engage in a testamentary act and to dispose of her estate that she comprehended in the way indicated.

The defendant's case as to the will's validity

1. That now leads me finally to the three areas of contest that Mr Nobarani raised in relation to the December 2013 will. They can be conveniently organised under those same three subject headings execution, capacity, and testamentary intention and knowledge and approval of the will.

Execution

1. Mr Nobarani challenged the execution of the December 2013 will a number of ways. First he said that the signature on the will is not Ms McLaren's normal signature. Mr Nobarani sought to prove that the will was not executed, even though he was not present at the time of execution, by simply comparing the signatures that had come from earlier wills in 2004 and 1997 with the signature on the questioned December 2013 will. Initially there were difficulties with Mr Nobarani establishing the provenance of the sample signatures. But eventually the wills of 1977 and 2004 were tendered in evidence. They are said to be the source of the sample signatures. Looking at them they could well be, as was a signature on a tenancy agreement, which was attached to one of Mr Nobarani's affidavits.
2. Mr Nobarani's argument is that the questioned signature on the December 2013 will was so different from the others that fact in itself it disproves the possibility of execution as Mr Bradstreet and Ms Parseghian had deposed. In my view it proves nothing of the kind. The questioned signature is certainly different from the other two signatures. But to the lay eye it is consistent with what might be expected of a person only a week away from her death, weakened by cancer, and seeking to sign a document such as this in a hospital bed.
3. Mr Nobarani sought to get expert evidence to assist his case. The Court would not permit an adjournment for that purpose. He had plenty of opportunity to obtain the evidence that he needed before trial.
4. I should add that the December 2013 will appears to the Court to be an obviously rational document. The presumption of regularity of execution may be relied upon where the document does appear to be rational. But the Court here has actual evidence of its execution.
5. Part of Mr Nobarani's issue with the December 2013 will is that he was surprised that Iris did not seek his advice about it. He says that he advised her about many other things in the last few years of her life and I accept that she had taken him into her confidence by requesting him to write a biography of her father's life. He was concerned also, if she really was of full testamentary capacity, about how she could possibly leave the Animal Welfare League out of her will or not make any other particular provision for the interest of animals, as they had been such an important part of her life. But in my view that does not make Iris' will irrational. She also had a strong attachment, as the beginning of this judgment shows, to Ms Mariconte, and she had known Ms Mariconte for a long time. The rest of the reference that Iris wrote for Ms Mariconte's benefit reads as follows: "Therese' mental and emotional stability in the face of adversity is admirable. Caring and kind to all who need a friend, Therese is a delightful and wonderful lady. She emanates a special magic. Therese is a 'giving person' - she has become an important part of my life - also, that of my friends. Therese is a 'bright spark' in so many lives. During perhaps, my worst time - a savage dog attack, with subsequent shock and loss of confidence on my part, an angel of light and hope became my stalwart - Therese. May God bless this sweet lady. She deserved the best of everything. I mean this from the bottom of my heart."
6. Mr Nobarani also alleges the execution of the will took place on 10 December 2013 rather than 5 December. But there are many problems with this contention. It was not put either to Mr Bradstreet or to Ms Mariconte. It is contradicted by the witness Ms Parseghian. Its basis seems to be merely a suggestion by a nurse to Mr Nobarani that Mr Bradstreet was at the hospital on 10 December. He may well have been. But that does not prove the will was not executed on 5 December.
7. Mr Nobarani called for the entries in Mr Bradstreet's diary for 10 and 5 December 2013. He did so at the end of the first day of the trial. The Court ordered the production of the document as upon subpoena under Evidence Act 1995, s 36. Ms Mariconte had the material in answer to the notice in Court on the following day. But it was not until final submissions that Mr Nobarani even adverted to the document. The Court, then reminded of the situation, allowed Mr Nobarani to call for the document. The Court then asked Mr Nobarani what he wished to do with the document. He made no application, so the matter was left there. It was marked for identification and returned to the plaintiff. But Mr Bradstreet and Ms Parseghian both say the will was executed on 5 December and I accept their evidence.

Capacity

1. On the second issue of capacity, Mr Nobarani raised what seems to me to be four separate sub-issues challenging the capacity of Iris to make the December 2013 will. Firstly, that she was excessively sleepy; secondly, that she was drugged; thirdly, that she was hypnotised; and fourthly, that she had very poor eyesight. In my view none of these matters are made out even to throw doubt upon the validity of the December 2013 will.
2. Mr Nobarani says that Iris was sleepy. It can be accepted that when Mr Nobarani saw her later that day that she probably was sleepy, but that is said to be more than two hours after she made the will. This is perhaps to be expected late in the afternoon of someone who had cancer as advanced as she did. But I accept Mr Bradstreet's evidence that she was alert and oriented. I accept that she was able to converse with him normally, as he had known her for about 35 years.
3. Mr Nobarani also suggested that Iris had been drugged at the time she made the will. That allegation is entirely inconsistent with Mr Bradstreet's evidence of the conversation, which I accept. It is also inconsistent with his general assessment of her comprehension. Moreover, there was no medical evidence to support the administration to Iris on 5 December 2013 of any drug as would impair her capacity to make her will. No such drug was identified. There was no evidence of complaint to the medical staff about any non-prescribed drug being administered to her.
4. The third allegation is that Iris was hypnotised. Mr Nobarani said that she was under hypnosis at the time she made the will. But other than Mr Nobarani's own self-professed expertise in the field of hypnotism there is absolutely no basis in the evidence for the Court to infer that Iris had been hypnotised at the time she made the will. Mr Bradstreet, whose evidence I accept, conversed with her normally in the informal conversation. His evidence contains no suggestion that he thought she might have been hypnotised. There was no evidence of anyone in the hospital at the time who was capable of inducing hypnotic trances on Iris. There is no medical record before the Court indicating Iris had a medically-induced hypnosis or that any incident occurred in which unauthorised hypnosis was applied to her that day. Moreover, the will seems to have been made between 2 and 3pm. Mr Nobarani himself arrived later in the afternoon and his own evidence is that the plaintiff was sleepy, not hypnotic. This contention about hypnosis seems to be speculation.
5. The final challenge to capacity concerns the question of Iris McLaren's eyesight. Mr Nobarani suggested that Iris had very poor eyesight and would not have been able to see the will that she was executing. He said that she needed glasses and could not read because she had difficulty with double vision. He thought this case would be supported by results of a subpoena he had issued. But he adduced no evidence apart from his own lay opinion of any special lack of vision on her part. He said her vision defect would not be cured by her wearing the glasses that she did normally wear. I accept Mr Bradstreet said that Iris was wearing her glasses when she made the will. The signature on the December 2013 will, though it shows signs of being somewhat less competent than a signature of a person in the prime of life, certainly looks to be a signature formed by someone who had a sense of proportion between the letters of her name and the proper spacing of those letters and the differences between capital letters and lower case letters. I infer that Iris could see what she was writing. But even if she could not fully read Mr Bradstreet's clear but small handwriting he had fully explained to her what she was signing.
6. Mr Nobarani sought to subpoena Dr Kearns, an opthalmologist who appears to have been Iris' eye specialist. But the subpoena was not called on. The doctor appears to have communicated back to Mr Nobarani that confidential medical records would not be produced without an order of the Court. There was no proper evidentiary basis for the Court to doubt that Iris had the capacity to execute the December 2013 will by reason of poor vision.

Knowledge and approval of the will and a testamentary act

1. The prima facie evidence about knowledge and approval of the December 2013 will and a testamentary act has been detailed above. But Mr Nobarani offered three kinds of challenge on this ground: (1) Iris had been tricked into thinking what she was signing was something other than her will; (2) the parties who were witnessing the will had sent witnesses away; and (3), that Mr Bradstreet and Ms Mariconte had engaged in other conduct which was suggestive of trickery.
2. Mr Nobarani made a number of different suggestions in submissions to the effect that Iris may have been induced into thinking the will was an invoice or cheque or some other document, or perhaps that she had only been shown part of the document. But this is to attribute fraud and malpractice to Mr Bradstreet who wrote the December 2013 will out. Mr Bradstreet struck the Court as thoroughly honest and professional in his approach to this will-making task and who gave very sound and highly credible evidence to the Court. None of these allegations was put in any clear way to Mr Bradstreet. None have any basis in the evidence. These contentions seem to be complete speculation on Mr Nobarani's part, who is seeking in some way to deal with the personally unpalatable conclusion that Iris had actually signed a will which did not include him.
3. Mr Nobarani's next allegation is the sending away of witnesses. Mr Nobarani suggested that Iris had been tricked in executing a will in the presence of strangers rather than friends who might perhaps otherwise have persuaded her not to execute the will to give the whole of her estate to Ms Mariconte. He sought at various times to intimate that a witness, a Mr Lemesle, might be available to give evidence. But he did not subpoena Mr Lemesle. Mr Lemesle was not brought before the Court. His affidavit was not read. Mr Lemesle was someone who was to be called to give evidence on behalf, so it seems, of the Animal Welfare League when this was a contest between the plaintiff and that organisation. There is no basis in this proceeding for me to take any account of his affidavit.
4. The suggestion of sending away witnesses Mr Nobarani obtained from the face of the December 2013 will. It shows above and below the name of Chen Yuanun, one of the witnesses, that the name "Daniel" and the suburb "Coogee" have been crossed out in hand. Instead Chen Yuanun's name appears. Mr Lemesle's name is Daniel and he does live in Coogee. This would seem to indicate that someone did plan for Mr Lemesle to be the witness. But, on its own that does not prove any misconduct by anyone. All that proves is that there had been an apparent change of heart about who was one of the witnesses to the will, or a misunderstanding as to whether Mr Lemesle would be a witness. Evidence suggests Mr Chen Yuanun was a nurse at the hospital. It would certainly be a strange form of "trickery" (as Mr Nobarani alleges) to substitute another professional person who is in a good position to observe the capacity of a person to make a will, such as a nurse would be, as the witness to a will which was to be procured by trickery. Mr Bradstreet, Iris' trusted adviser, was not cross-examined about this.
5. Finally, there was said to be other conduct of Mr Bradstreet and Ms Mariconte allegedly suggestive of "trickery". The allegation of trickery made against Mr Bradstreet, being a professional man as he is, is completely without substance and should never have been made. This allegation was not of trickery in relation to the will itself. Rather Mr Nobarani was contending that Ms Mariconte had been so guilty of other tricky conduct that she would also have tricked the deceased into executing the will. This case is fundamentally misconceived. Even if such trickery were established it would not on its own show that there was any "trickery" by anyone at the time of the will.
6. Leaving all that aside, this conduct fell into two parts. The first conduct involved criticism of what had happened to Iris' property after her death and before probate had been taken out. Mr Nobarani said there had been a substantial interference with Iris' assets within her house and that things had been taken from her safe there. Something does seem to have been done to secure her house after her death, and indeed her house now is tenanted. The precise legal basis on which this was done was not examined before the Court. There can, of course, be a proper basis on which a person who is applying for probate of a will can, with the Court's sanction, take steps to administer the property of a deceased person, which is in the meantime vested in the NSW Trustee: Probate and Administration Act, 1898, s 61. But none of the evidence before the Court provides a basis for the Court to infer there has been any improper dealing by Ms Mariconte with Iris' assets in advance of the proper administration of the estate.
7. The other example of Ms Mariconte's alleged trickery is that she wrongly dated documents which were given to the tenant at Iris' former home for his eviction in January 2014. But whether those documents were wrong or not was not proved. Even if they were wrong that does not show any misconduct by anyone at the time the December 2013 will was signed.

Conclusion

1. No doubt has been thrown on Iris' execution and other mental elements required for validity of the December 2013 will. I am satisfied it is valid. For all these reasons I grant the relief sought in the Amended Statement of Claim.
2. The Court makes the following orders and directions:
3. Probate in Solemn form of the will of Iris McLaren of 5 December 2013 be granted to the plaintiff.
4. The matter be referred to the Registrar to complete the grant.
5. Second defendant to pay the plaintiffs costs of these proceedings.

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