SUCCESSION - Contested probate - Testamentary capacity - Application of test in Banks v Goodfellow - Where deceased suffered from mild cognitive impairment and various physical ailments

Solicitors: Auburn Lawyers (Plaintiff) Danny Eid Lawyers (Defendant) File Number(s): 2019/00373291 Publication restriction: Nil

Judgment

1. HER HONOUR: This matter involves a dispute as to the estate of the late Mrs Genevieve Bryan, a widow with no children who died on 13 November 2019 aged 93. The deceased's estate is worth approximately $4 million, comprised largely of two unencumbered residential properties in Hurlstone Park, New South Wales, together with cash of approximately $190,000 in various bank accounts. One of the residential properties (the Dunstaffenage Street Property) was rented at the time of the deceased's death. The deceased resided in the other property (the Starkey Street Property) for many years prior to her death.
2. The deceased had made a number of Wills. There were in evidence two earlier Wills, made on 7 June 2005 (the 2005 Will) and 6 May 2009 (the 2009 Will) respectively, which neither party here propounds; and two later Wills, one dated 23 December 2014 (the 2014 Will) and one dated 31 October 2019 (the 2019 Will). The present proceeding primarily involves a contest as to whether the last of those Wills should be admitted to probate. There is no challenge to the validity of the 2014 Will.
3. Under the 2014 Will, which was prepared by Mr George Khoury of George Khoury & Co solicitors, and is propounded by the defendant (Mr George Daniel), the deceased appointed her "dear friend" Mr Daniel as her executor and trustee, leaving Mr Daniel the Starkey Street Property (and also the residue of her estate), making bequests to two charities, and dividing the proceeds of sale of the Dunstaffenage Street Property in differing percentages among various named family members and godchildren (one of whom was the plaintiff, her nephew, Mr Elias Chakty - whose name was there misspelt as "Elie Shakty"). If Mr Daniel predeceased the testatrix, then the gifts in his favour passed to his son, Frederick George Daniel, on attaining the age of 25. The 2014 Will was witnessed by two secretaries of Khoury Taxation Services Pty Ltd (a taxation services firm in the adjoining office to that of Mr Khoury's law firm). Relevantly, the gift in favour or Mr Daniel in respect of the Starkey Street Property was on condition that "he has not moved [the deceased] to a nursing home, retirement village or a similar establishment during [her] lifetime" (see cl 3).
4. The 2019 Will was prepared by Mr Hasan Aziz, the principal of Dot Legal Pty Limited, solicitors, (Dot Legal) and is propounded by Mr Chakty. Under the 2019 Will, the deceased appointed Mr Chakty as her executor and trustee, leaving Mr Chakty the Starkey Street Property. Under the 2019 Will, the deceased again left the Dunstaffenage Street Property to a number of named beneficiaries (including Mr Chakty and Mr Daniel) in varying percentages. The 2019 Will does not contain a clause as to the residue of the estate. Nor does it contain any bequests to charities (something that Mr Chakty said the deceased had told him but to which there was no reference in his affidavit evidence - see T 93). The 2019 Will was witnessed by a then newly qualified solicitor at Dot Legal (Mr Namatullah Husseini) and paralegal (Mr Michael Conti) who was employed by Dot Legal (and other firms) at the time. An accredited Arabic interpreter (Mr Mohamad Nahas) was present on that occasion and gave evidence as to his "interpretation" of the Will in Arabic to the deceased (I refer below to Mr Nahas' explanation of the difference between translation and interpretation in this context.) Mr Conti speaks Arabic and English fluently. Mr Husseini does not speak or understand Arabic.
5. On 27 November 2019, Mr Daniel (whose evidence is that he was the carer of the deceased for a number of years before her death, and who had lived at the Starkey Street Property with the deceased since around 2014) filed a caveat against a grant of Probate.
6. Mr Chakty then commenced the present proceeding and, by amended statement of claim filed on 3 December 2021, Mr Chakty seeks a grant of probate in solemn form in his favour of the 2019 Will.
7. By his further amended defence filed in Court on 7 February 2022, Mr Daniel alleges that: the deceased was induced to execute the 2019 Will by undue pressure or influence on the part of Mr Chakty (see at [7]); the deceased was not of sound mind, memory and understanding at the time of making the 2019 Will (see at [8], thus raising a lack of capacity); and the deceased did not know and approve of the contents of the 2019 Will at the time it was made (see at [9], raising the issue of suspicious circumstances calling for the need for Mr Chakty to prove the righteousness of the transaction - see the particular added to [9] of the further amended defence at 9). By cross-claim filed on 3 April 2020 and amended on 27 April 2020, Mr Daniel seeks probate in solemn form in his favour of the 2014 Will. Alternatively, he seeks a family provision order in his favour pursuant to s 59 of the Succession Act 2006 (NSW) (Succession Act).
8. Although in his defence to the cross-claim filed on 6 May 2022, Mr Chakty does not admit the validity of the 2014 Will. On 10 August 2020 when the matter was before Hallen J there was an admission by Mr Chakty's legal representative, on Mr Chakty's behalf, as to the validity of the 2014 Will. Mr Chakty does not resile from that position.

Testamentary instruments

1. Before turning to the relevant chronology of events, it is convenient to summarise the history of the deceased's successive testamentary instruments.

The deceased's earlier Wills

1. I have referred above to the fact that the deceased executed Wills in 2005, 2009, 2014 and 2019, each on its face having been drafted by a solicitor and each on its face having been properly witnessed and executed.
2. The 2005 Will appointed the Public Trustee of New South Wales as executor and trustee (now the NSW Trustee and Guardian) and divided most of the estate between the deceased's siblings, nieces and nephews in eight equal parts (including a share to Mr Chakty) and including one part for a friend, Mr Joseph O'beid. There was some provision for another friend (Mr Georges Haifa) and for the St Charbelis Church, Order of the Lebanese Maronite in Punchbowl (although I note in the 2014 Will the deceased made a bequest to the St Charbel's Church, and thus presumably this is a typographical error). Mr Daniel was not named as a beneficiary in the 2005 Will. There was a notation in this Will as to the deceased's lack of fluency in English and it was there recorded that the Will was read out in the Arabic language and that the deceased had "indicated that she understood it and approved its content".
3. Mr Chakty points out that this notation is inconsistent with Mr Daniel's evidence as to the deceased being "fully fluent" in English (see Mr Daniel's second affidavit sworn 12 May 2020 at [35]; see also Mr Daniel's evidence at T 218.19-28 that the deceased was fluent both in Arabic and English). Mr Daniel's evidence is that he was not aware of the 2005 Will until this proceeding (T 217.31-38).
4. Mr Chakty's evidence (in his affidavit affirmed 27 March 2020 at [2]) is that the deceased understood English and some Greek but that her main language was Arabic and that this was the language in which she communicated with him and his family (see also [28] of Mr Chakty's paragraph 9.3 affidavit affirmed 17 June 2020). Nevertheless, Mr Chakty has also deposed that the deceased and her late husband (who died in 1999) communicated with each other in English and there is other (independent) evidence (to which I refer in due course) that amply confirms the ability of the deceased to speak English. Mr Chakty has also deposed that the deceased was illiterate. Mr Chakty reiterated this in his oral evidence at T 85-86, there saying that the deceased could only read "some alphabet" but could not put the alphabet together to make a word (see T 85.10-16); and could not read either English or Arabic (see T 85.24-31). Again, there is independent evidence to the contrary (which I address in due course and on which I place more reliance).
5. The 2009 Will (drafted by Mr Khoury) appointed Mr Tony Youssef Hayek (one of the deceased's nephews) as executor and trustee. Under the 2009 Will, the deceased gave Mr Hayek a life estate in the Starkey Street Property and thereafter gave the property to Mr Hayek's son, Mr Joseph Hayek. Half of the residual estate was left to Mr Hayek's brother, Habib; and the other half was to be distributed (in unequal shares) among the deceased's siblings and nieces and nephews (including Mr Chakty). There was also provision for various of the deceased's godchildren and named friends. There was a gift of $10,000 to Mr Daniel. (Mr Chakty points out that the 2009 Will appears to favour the children of the deceased's brother, Mr Youssef Hayek (also known as Joseph).)

The 2014 Will

1. As noted above, the 2014 Will (which Mr Daniel propounds in his cross-claim) appointed Mr Daniel as the deceased's executor and trustee, giving him the Starkey Street Property (provided he had not "moved [the deceased] into a nursing home, retirement village or a similar establishment during [her] lifetime") and (after bequests to two charities) divided the residue among named family members (including Mr Chakty) and godchildren. (Mr Chakty says that this marks a shift in testamentary disposition in that a non-relative, Mr Daniel, was the largest beneficiary and named as the executor and trustee.) As noted above, under the 2014 Will, the gifts in favour of Mr Daniel went to his son if Mr Daniel died before the deceased. (As I explain in due course, on one view of the evidence the concern expressed by the deceased as to her 2014 Will was as to the gift over in favour of Mr Daniel's son, as opposed to Mr Daniel, and Mr Chakty himself was unsure as to the meaning of one of his conversations with the deceased in this regard - see T 56.16-28. However, there is other evidence relied upon by Mr Chakty to the effect that the deceased did not want to leave "everything" to Mr Daniel.)
2. In the 2014 Will, there was provision in cl 12 as follows: I have not given my nephews Tony Youssef Hayek and Habib Youssef Hayek or my nieces Marie Hayek and Georgetta Katia (nee Hayek) as they have inherited the whole estate of my late brothers Youssef Hayek and Michele (Michael) Hayek and have abandoned contact with me and never visit me nor do their children. They do not consider me as "Family" and I have reached the conclusion that I must not consider them family as well. They never had the courtesy of showing me or sending me a copy of my late Brothers' Wills.
3. Mr Chakty relies on this clause (see his submissions in due course) as indicating that there was a similar and rational reason for the deceased to change her disposition of the Starkey Street Property in her last Will, suggesting that the deceased's perception may have been that Mr Daniel was working too much and not caring for her at home in the period leading up to her death.
4. On the same day that the 2014 Will was executed, the deceased executed an Enduring Power of Attorney which appointed Mr Daniel as Enduring Attorney and came into force upon execution of the document and an Enduring Guardian document that appointed Mr Daniel as her Enduring Guardian in case of partial or total incapacitation.
5. Mr Chakty points out that the 2014 Will specifically excludes the main beneficiaries of the 2009 Will (Tony and Habib Hayek, and their sisters Marie Hayek and Georgette Katia). As noted above, cl 12 of the 2014 Will set out the deceased's reason for excluding various members of the Hayek family from the Will. However, Mr Chakty notes that one daughter from this part of the family remained included in the 2014 Will (namely, Ms Minerva Sourouni (née Hayek)), who was to receive 6% of the sale proceeds of the Dunstaffenage Street Property (which was the same provision as made for her in the later 2019 Will).

The 2019 Will

1. Under the 2019 Will, again as noted earlier, the deceased appointed Mr Chakty as her executor and trustee; and Mr Chakty was the main beneficiary, being left the Starkey Street Property. The Dunstaffenage Street Property was divided between the deceased's siblings, nieces, nephews and godchildren (including a share for Mr Chakty); as well as a 6% share being left to Mr Daniel). The Hayek family members remained excluded as beneficiaries under the 2019 Will (with the exception of Ms Sourouni, whose share from the 2014 Will was not altered). I explain in more detail below the circumstances surrounding the execution of the 2019 Will.

Chronology of events

1. The deceased emigrated to Sydney from Lebanon in about 1955, then in her late twenties. The deceased's husband was of Scottish extraction (T 47.21-25) (a matter of some relevance when considering the unlikelihood that the deceased was incapable of communicating in English - see below). The deceased's husband died in 1999 and the deceased did not remarry. The couple did not have any children. The deceased's closest relatives were her various nieces and nephews (of whom Mr Chakty was one, as was another of the witnesses in the proceeding, Ms Sonia Tawk).
2. Mr Daniel, though not a biological member of the deceased's family, had been associated with the deceased for many years (and, as noted above, was described in the 2014 Will as the deceased's "dear friend"). Mr Daniel's affidavit evidence was that his parents were close friends of the deceased and that he treated the deceased for the whole of his life as if she were his parent (see at [7] of his affidavit sworn 12 May 2020). Mr Daniel deposed that he was born at the Starkey Street Property in 1970 (though in oral evidence he said that it was at the Dunstaffenage Street Property - see T 188.1-10).
3. Although Mr Chakty, in his submissions, appears to cast some doubt on the evidence that Mr Daniel was born at one of the deceased's properties (as being, as it is, merely Mr Daniel's assertion) and discounts the significance of this on the basis that it was not unusual for the deceased to permit persons, such as Mr Daniel's parents, to occupy her properties from time to time rent-free, there is no doubt that Mr Daniel was sufficiently connected with the deceased for him to have moved into the Starkey Street Property from around 2015 and to have assumed, at least to some extent, the role of the deceased's carer for some time prior to the deceased's death (see below). Mr Chakty suggests that Mr Daniel moved into the Starkey Street Property after his marriage broke up but, whether or not that is the case, there is no doubt that Mr Daniel was living in the property for a number of years before the deceased's death.
4. As adverted to above, there was a suggestion by Mr Chakty (see, for example at [84] of the Plaintiff's Outline Submissions) that the deceased was not fluent in the English language; and Mr Chakty further deposed that the deceased was illiterate. There is no dispute that the deceased's native language was Lebanese (or Arabic Lebanese as it was referred to in the course of the hearing - see T 69.23-24). However, there can also be no doubt that the deceased was able to speak English (and indeed Mr Chakty in his affidavit evidence deposed that the deceased had communicated with her husband in English) and I so find.
5. Relevantly, Mr Khoury, the solicitor who had acted for the deceased from 2009 and who prepared the 2014 Will, deposed in his affidavit sworn 31 July 2020 (on which he was not cross-examined) that the deceased had been a client of his firm since 2009, that during that period he spoke to the deceased on numerous occasions in English and in Lebanese, and that he considered that the deceased was fluent in both languages (see [3] and [12] of Mr Khoury's 31 July 2020 affidavit). Mr Khoury drafted a number of documents for the deceased in 2009 and 2014. As to the 2014 Will, Mr Khoury deposed that he spoke mainly to the deceased in English and that he did not consider that the deceased was in need of the services of an interpreter when making the 2014 Will (see at [12] of his affidavit).
6. The deceased's orthoptist from 2010 to November 2016, Mr Pierre Elmurr, who also was not cross-examined on his affidavit, gave evidence to similar effect. Mr Elmurr's evidence (see his affidavit sworn 15 July 2020 at [3]) was that (although he is fluent in Arabic) his experience with, and observations of, the deceased were that he did not have to explain things to her in Arabic during any of his consultations with her, and it was his habit to speak to her in English. In addition, and significantly insofar as the illiteracy assertion is concerned, Mr Elmurr gave evidence that in June 2016 he tested the deceased's ability to use bifocal lenses prescribed to her (see at [5]) and that the deceased was able to read small fine print and magazines, and that the deceased "read and responded fluently in English". Mr Elmurr said that it was clear to him from this that the deceased was able to read English.
7. Further, Mr Daniel points to the fact that the hospital notes and medical records do not record that the deceased had difficulties in communicating in English with the hospital staff (and, as noted above, the deceased was married for many years to her husband who Mr Chakty confirmed did not speak Arabic or Lebanese). Mr Chakty's own evidence is that the deceased and her husband had communicated in English.
8. I place weight on the uncontested evidence of Mr Khoury and Mr Elmurr, each of whom is an independent witness, and I find that during her lifetime the deceased was able to converse in English and that (contrary to Mr Chakty's assertion) she was not illiterate.

Mr Daniel commences to care for the deceased

1. Mr Daniel's evidence is that in 2013 he commenced to care for the deceased part-time at the Starkey Street Property and that between 2013 and 2015 he would regularly stay overnight at the Starkey Street Property for at least two to three times a week. Mr Daniel's evidence was that he would drive the deceased to various medical appointments and that he would assist the deceased with finances and daily living chores (see his 12 May 2020 affidavit at [8]). Mr Daniel agreed that he did not arrange an assessment of the deceased as to her need for full-time care from any medical professional - T 192.14-22; but maintained that the deceased needed full time care by 2018 or 2019 because she had had some issues with falling.
2. Mr Daniel has deposed that he took the deceased to the solicitor (Mr Khoury) in December 2014 when she signed the 2014 Will but that he did not know the terms of the 2014 Will until after it had been signed by her (see T 189.33-39).
3. Mr Daniel has deposed that in mid-2015 he commenced living full time at the Starkey Street Property as the deceased's full-time carer (see at [13] and [58] of his affidavit sworn 12 May 2020; T 188.37-50). Thus, it may be noted that, on Mr Daniel's evidence, Mr Daniel had commenced to care for the deceased by the time of the 2014 Will (and the execution of the enduring power of attorney and guardianship instruments) but was not caring for the deceased or living full-time at the Starkey Street Property at that stage.
4. Mr Daniel worked during the relevant period for a medical practitioner (as his personal assistant or driver). In cross-examination, Mr Daniel said that he was working full time in 2009 (30-40 hours a week with occasional weekend work) for a limousine company; and by the time of the events in question Mr Daniel was working for a doctor during the weekdays but never on the weekend (T 192.24-43). Mr Daniel's evidence was that he ordinarily left for work early in the morning on weekdays to drive the doctor to his office; that he would often return to the Starkey Street Property during the day; and that he would then drive the doctor home later in the afternoon. Mr Daniel gave evidence that from late 2018 he occasionally assisted a friend who owned a nightclub in Wollongong on weekends (effectively as an unpaid barman) but did that for less than one year (until probably February 2019) (T 193.24-50, 194.1-32, 195.26-28).

Deceased's ill-health

1. In 2017, the deceased was diagnosed with breast cancer; and by June 2018 the cancer had spread to the deceased's lungs.
2. Mr Daniel has deposed that in January 2019 the deceased was prescribed morphine due to the deceased's pain issues and that between that time and the date of the deceased's death he would orally administer a morphine medication and a sedative to the deceased (see at [14] of his 12 May 2020 affidavit).
3. Mr Daniel has deposed that in April 2019 he purchased a Livelife Alarm which the deceased wore around her neck and which she could activate in the event of an emergency (this alarm being equipped with "GPS tracking") (see at [15] of his 12 May 2020 affidavit).
4. On 13 May 2019, the deceased suffered acute myocardial infarction and was admitted to hospital (see Professor Carmelle Peisah's report dated 23 January 2021 at line 205).
5. Pausing here, there was in evidence a video taken of the deceased in May 2019 during the deceased's admission to hospital following the heart attack, the relevance of which is that it provides a useful comparison of the deceased's demeanour or "affect" at that time compared with the appearance and affect of the deceased in videos taken of her later (in September and October 2019) on which Mr Chakty relies (inexplicably) in support of his contention that the deceased had capacity (a sound memory or understanding) at the time of the making of the 2019 Will. I consider this issue in due course below.

May 2019 - gift of moneys to Mr Daniel

1. In May 2019, the deceased had approximately $234,966.35 in an interest-bearing term deposit account that was solely in her name. Mr Daniel's evidence is that on 22 May 2019 he attended the Dulwich Hill branch of the Commonwealth Bank with the deceased as she wanted to set up a new joint term deposit account with him. There was in evidence a copy of the application or account confirmation form in respect of that joint account (to which I refer below). The deceased's signature on that form comprised only her initials and, at least to my lay observation, the handwriting appeared very shaky. (Mr Daniel's evidence was that the deceased had difficulty in signing by 31 October 2019 - see T 214.36-40).
2. Mr Daniel's evidence is that, during this trip to the bank, the deceased confirmed a promise which she had first made in March 2019 to him that he could use her funds to repay $175,000 that he had borrowed from his father in order to purchase a unit in Wollongong. In cross-examination, Mr Daniel said that the property is not rented out as his son goes occasionally to Wollongong and his parents (T 219.10-15). Mr Daniel says that he did not transfer the gifted moneys until 22 October 2019 (see below) because he wanted the deceased to obtain the benefit of an interest-bearing account that was due to mature in October 2019.
3. Mr Chakty relies on the evidence of this "gift" for a number of purposes. First, he contends that if the deceased had capacity to make the gift in May 2019 then on Mr Daniel's case she must have lost capacity some time between May 2019 and October 2019. Second, he says that the making of this gift may provide a rational explanation for the deceased's change of her Will in relation to the disposition of the Starkey Street Property (i.e., that the deceased may rationally have considered that she had already made adequate provision during her lifetime for Mr Daniel). Third, reliance is placed on this in the context of Mr Daniel's alternative family provision claim, the proposition being that even if Mr Daniel is an eligible person (which Mr Chakty disputes) there has been adequate provision made for him both in his lifetime and by the 6% share of the proceeds of sale of the Dunstaffenage Street Property.

The deceased's hospitalisation in August 2019

1. On 2 August 2019, the deceased was admitted to Concord Repatriation General Hospital (Concord Hospital) with chest pain following a fall. The deceased remained in hospital there, under the care of a geriatrician (Professor David LeCouteur) until 14 August 2019. The hospital records note that on the day of admission a trainee specialist from the Geriatrics Aged Care Team, identified that the deceased had a mild cognitive impairment, and that the deceased was agitated and non-compliant with care during the admission. Professor Peisah concluded that this demonstrated that the deceased was at a high risk of delirium and falls on the background of mild cognitive impairment (see Professor Peisah's report of 23 January 2021 at line 267-268).
2. This appears to be the first reference in hospital or medical records to "cognitive impairment" and Mr Chakty says that it appears from the notes that the source of the reference to mild cognitive impairment was information from Mr Daniel (who is referred to variously as "George", "nephew" or "son"). Mr Chakty places emphasis in this regard on the entry in the hospital records on 2 August 2019 that states "Information from George - she is mentally sharp but can be vague when tired". (Mr Daniel accepted at T 225.6-50 that he would have said this to the doctor at the time.)
3. On 2 August 2019, the deceased underwent an emergency department Aged Care Assessment with a registered nurse. The notes record the administration of what is referred to as a "Delirium Risk Assessment Tool" and a "Confusion Assessment Tool"; and that delirium was not found to be present and the deceased scored zero on the Delirium Risk Assessment Tool.
4. Mr Chakty says that, although there are some entries in hospital notes indicating "confusion" the vast majority of the nursing and midwifery notes recorded the assessment of the deceased's cognition as "alert and oriented" as to time and place; and that, on examination, the deceased was responding to questions appropriately. It is relevant in this context to refer to the evidence given by Professor Peisah (the single Court appointed expert) as to the distinction between delirium and dementia; and the difficulty that is commonly experienced in diagnosing delirium. I refer to this in due course below.
5. Following the deceased's discharge from hospital, an occupational therapist visited the deceased and Mr Daniel on 4 September 2019 and recorded the deceased's cognitive status as follows "[s]ome forgetfulness, however nil major issues reported. Mrs Bryan is oriented and alert".

20 October 2019

1. On Sunday, 20 October 2019, Mr Daniel took the deceased to visit her niece, Ms Tawk, and her family (on what turned out to be Ms Tawk's last meeting with the deceased). Ms Tawk in her affidavit sworn on 11 May 2020 deposes to this last meeting with the deceased at Ms Tawk's Punchbowl home. Ms Tawk deposed that the deceased complained that she was unwell and said words to the effect that she was becoming weak and tired and "I'm not going to last". Ms Tawk also deposed that the deceased spoke "fondly" of Mr Daniel; told her to make sure that he was looked after; and said that Mr Daniel was responsible for all of her personal affairs after her death and that "I've given him everything I have after my death".

Transfer of moneys into Mr Daniel's account

1. On 22 October 2019, Mr Daniel transferred the sum of $187,231.68 from the joint term account into his personal account. Mr Daniel says that the additional $12,231.68 (over the amount of what he says was the gifted money sum of $175,000) was used to pay bills and expenses and land tax from his personal account. As noted above, Mr Daniel's evidence is that this was a gift from the deceased.

Deceased's cognitive ability as at October 2019

1. Before turning to the events that occurred between 23 October 2019 and 31 October 2019 in relation to the deceased's final Will, it is relevant to note the position as to the deceased's cognitive ability at this point.
2. Mr Daniel has deposed to his observations of the deceased from October 2019 becoming confused as to whether it was night or day (see at [16] of his affidavit of 12 May 2020) or what day of the week it was (see at [17]) and he has deposed that the deceased became more emotional and irritated in mood (see at [18] of his affidavit of 12 May 2020). See also his cross-examination at T 188ff. While not relevant to the deceased's cognitive ability, nonetheless relevant to her health throughout the relevant period are hospital notes from the deceased's admission to hospital on 4 September 2019 which record that the deceased had lost so much weight, was so fatigued and was spending so much time on the sofa that she was considered at risk of pressure sores.
3. Mr Chakty disputes the suggestion that the deceased was exhibiting signs of confusion at this stage (and adduced in evidence the so-called Arabic videos in support of his contention that the deceased was alert and oriented at that time, as to which I say more in due course). However, Mr Chakty's evidence is that during his visits in 2019 (unspecified as to precise dates) the deceased would often say that she was worried she did not have long to live; and he has deposed that during September and October 2019 the deceased said "I am about to go" and asked him to call everyone to visit her (see his paragraph 9.3 affidavit, affirmed on 17 June 2020 at [22]; see also his evidence at T 66.19-20, and his acceptance that he knew the deceased was not very well). Pressed as to when the deceased had told him she was not going to "stay for long", at T 66.25-26 Mr Chakty thought that the deceased had told him this on the Thursday (24 October 2019) (and then said that it was probably before the deceased met the interpreter at Mr Chakty's house - which was on 26 October 2019). (At T 226.29-31, Mr Daniel gave evidence that in October 2019 the deceased said to him "George I'm very sick. I'm dying".)
4. There is no evidence that Mr Chakty responded to the request that he says the deceased made to call everyone to visit her (say, by arranging any visits from the deceased's relatives). Questioned in cross-examination about the frequency of his visits to the deceased, and noting that in his affidavit Mr Chakty had deposed to saying to the deceased that "we always visit you", Mr Chakty's evidence was that before 23 October 2019 they (he and his wife) were not visiting every day, nor every few days; but that it was every one or two weeks (see at T 39.10-49). Mr Chakty then said that he had seen the deceased once in September 2019 (and that his wife did not see the deceased in September 2019 nor in October 2019 before 23 October 2019) (see at T 39.31-49, T 40.1-20) and agreed that what he meant by saying to the deceased "we always visit you" was as to visiting on occasions such as Easter and Christmas or family birthdays and the like; and that he would sometimes visit her in between those times - say when he was passing by to or from work.

Chronology of events leading up to execution of 2019 Will

1. The chronology of events surrounding the execution of the 2019 Will needs to be set out in some detail.

Wednesday, 23 October 2019

1. Mr Chakty's evidence (see [3] of his 27 March 2020 affidavit) is that on or about 23 October 2019 he received a call on his mobile phone from the deceased, while he was working on renovating what he referred to as his house at Colo Vale (though by this he seems to have been referring to his in-laws' house since Mr Chakty's residence with his wife, Juliette, is at Yagoona). Mr Chakty says that he asked the deceased "Are you okay? Is everything okay?" and the deceased said "I would like to see you. Why I don't [sic] get to see anyone. Where is everyone?". In re-examination he said that the deceased called him from a landline (see at T 94.34-47).
2. Mr Daniel's evidence was that the deceased could not use the landline because she could not dial; that the deceased could only use the Livelife Alarm to call him - see T 207.4-9. Indeed, Mr Daniel says that he would dial the numbers for the deceased and that he was right beside her when the deceased called Mr Chakty on 23 October 2019. Pausing here, there is in Ex E a copy of the deceased's telephone bill that records a telephone call at 10.04am on 23 October 2019 to Mr Chakty.
3. Pausing here, Mr Chakty places no little emphasis in submissions on the fact that it was the deceased who initiated the contact in relation to the change to her Will. However, in this conversation (on Mr Chakty's own account) the deceased does not refer to anything about her Will (nor does she appear to exhibit any sense of urgency about seeing Mr Chakty). Rather, this conversation is consistent with the deceased's apparently constant complaint around this time (at least according to Ms Tawk - see T 236.48-50, T 237.1-4; and supported it would seem by Mr Chakty's own evidence) to the effect that she did not see anybody or that nobody came to visit her. Ms Tawk in her oral evidence said that the deceased complained about this (see at T 236.48-50, where Ms Tawk referred to a message sent to Juliette Chakty conveying that the deceased missed her).
4. Mr Chakty deposed that he went to his house in Yagoona later that morning; and that he and his wife, Juliette, then visited the deceased at her home (the Starkey Street Property) arriving at around midday.
5. Mr Chakty deposed in his first affidavit at [17] to a conversation with the deceased on this occasion about a visit from a Michael Haifa (a neighbour) who the deceased said had asked about her Will; and that he and a person named Frank were asking her if they were in the Will. Mr Chakty deposed that he asked the deceased if she had done her Will, which on one view is inconsistent with Ms Tawk's account of conversations with Mr Chakty which presuppose that he knew there was a Will in existence.
6. In that regard, Ms Tawk deposed to conversations with Mr Chakty (which he denies) over several years before the deceased's death in which she says that Mr Chakty would raise the subject of the deceased's Will and query her (Ms Tawk) as to the identity of the beneficiary of her Will (see Ms Tawk's affidavit sworn 11 May 2020 at [7]). Ms Tawk has deposed to Mr Chakty saying words to the effect that it was not fair for George to take everything and that the family should get it (see at [7]). In cross-examination, Ms Tawk said, with the ring of truth, that most people were trying to find out what was in the deceased's Will (T 239.1-19) and that she (Ms Tawk) felt sorry for the deceased because the deceased thought that everybody was just using her for her money. (That sentiment is readily understandable given the circumstances of this case.)
7. Nevertheless, Mr Chakty was adamant that he did not know that the deceased had at that stage made a Will and said that he had not spoken to her before about this (see at T 42.24-28; T 86.46-50). Mr Chakty also denied (implausibly in my opinion) that he wanted to know what was in the deceased's Will (see at T 87.1-21).
8. Mr Chakty deposed that the deceased did not respond straight away to his question whether she had done her Will but that the deceased then asked him and his wife to follow her to her bedroom (by which time he says that it was around 3.00pm and that it was the deceased's bedtime) (see at [18]).
9. Mr Chakty deposed that in the bedroom the deceased showed him her passport and a bank book, asking him how much was in it (and he thought that there was over $9,000 recorded in it). Mr Chakty annexed to his affidavit some photographs that he said were taken at the time (including photographs of the deceased's dressing table items). In oral evidence, it emerged that Mr Chakty took at least one of those photographs (the one of the deceased taking out her bank book); and that Juliette took others of the photographs (see T 43.41-49). Mr Chakty said that he was taking photographs in general to the bedroom and then when the deceased started showing the bank book and passport he asked his wife to take photographs - see at T 43.25-30).
10. The evidence as to why these photographs were taken is revealing. Questioned on this in cross-examination, Mr Chakty said, variously: "I thought maybe could be the opportunity" (see at T 43.19); he gave an answer about a watch of the deceased's late husband that he said he had been promised and "its opportunity for me" (see at T 44.1-10); he did not know why photographs of perfume bottles were taken (see T 45.19-20); as to why there was a photograph of the bank book he said (see at T 45.30-32) "[i]ts opportunity to see how much inside the book for me and for her as her wish…" and "I don't know maybe for the future. Maybe I don't know" (T 45.34-39). There seems to me to be no obvious reason to take such a miscellany of photographs (including of an elderly woman in her pyjamas in her bedroom holding a bank passbook and then her Will) - and certainly none was proffered by Mr Chakty save that it was an opportunity for him to do so - other than that Mr Chakty wished to have some evidentiary record of the deceased's appearance at the time. If indeed that was the reason for the photographs, then it is telling that they seem to have been taken before (on Mr Chakty's account of events) the deceased had indicated a desire to change her Will.
11. Returning then to the chronology, Mr Chakty deposed that (after showing him the bank book) the deceased then handed him some papers and asked him to read them for her (as noted above, Mr Chakty had earlier in his affidavit deposed that the deceased was illiterate; and see [26]ff of his 17 June 2020 affidavit; see also T 46.8-18). Mr Chakty said that the document in question was a Will (the 2014 Will - see T 56.3-5) and that he read it to the deceased in English from the beginning to the end; that he read it slowly to the deceased; and that the deceased asked him to read it "all over again" as she would interrupt after he read a few sentences in English and ask her to explain it in Arabic.
12. In cross-examination, Mr Chakty said that he read every word of the 2014 Will (see at T 49.3-23) and that he read it twice in English, with explanation and then more explanation in Arabic) (T 49.22-23). Mr Chakty made clear that he explained the Will to the deceased again and again, while they were in the bedroom (see at T 49.28-31). He agreed that there was only one copy of the document, which he had; and he said that the deceased was listening and asking questions (see T 50.20-31).
13. Mr Chakty's evidence is that they then went back again to the lounge room for coffee (see T 49.28-50) (though I note that earlier he had said it was the deceased's bedtime in which case it is not clear why the deceased had not at that stage simply gone to bed). Mr Chakty deposed that he told the deceased that his name was "spelt wrong" (in the Will) and that the deceased had said "[y]es we will change that and I also want to do a couple of changes for Salim and Son[i]a".
14. Mr Chakty deposed that the deceased also asked him "[w]hy did George put himself and his son after him"; and that the deceased further said that she did not ask him to do that and asked why had George done it (presumably the Will) like that. Mr Chakty said that he explained (this seemingly being the second time) that his name was spelt incorrectly and that he also told the deceased that she had left out one of the Kanaan family (Maggie).
15. Mr Chakty's evidence was that he had been talking to the deceased about the 2014 Will by this stage for more than one hour (T 50.39-48).
16. Mr Chakty deposed that the deceased had asked him how much she gave to each of the beneficiaries under the Will and that he then "tried to explain the share of each person in percentages". Mr Chakty deposed that the deceased asked him how much had been given to the Kanaan children and he said that they had each been given 12%; that the deceased asked what the 12% amounted to as a monetary figure and that he gave, as an example, the answer that, if Dunstaffenage Street was worth $1.5 million, then 12% of that figure was roughly $180,000 (in response to which Mr Chakty deposed that the deceased had said that this was too much). Mr Chakty deposed that he said to the deceased that "[s]ome people in the family are missing" and he gave, as an example, her sister (his mother) Warde's other children.
17. In cross-examination, there was some confusion on the part of Mr Chakty as to what he meant when he deposed that he had tried to explain the percentage shares of the named beneficiaries (see T 51) - so, for example, he said that he explained to her the percentage of each one and how much percentage there was for each one but that he did not give an explanation for each of the nine named beneficiaries "probably - maybe because all same percentage" (see at T 52.13-15). The difficulty with that evidence is that there were different percentages specified for various of the beneficiaries. Mr Chakty agreed that in the Will that he read out in the bedroom to the deceased Mr Daniel was not in the list of beneficiaries who obtained a percentage share (see at T 55.39-50, T 56.1-8) and that there was no discussion about Mr Daniel in the explanation of percentages. At T 55.9-10, Mr Chakty agreed that the deceased did not say to him in that conversation what she wanted Mr Daniel to get under the Will and that her concern was in relation to fixing the percentage each of the nine beneficiaries was to receive (see T 55.12-18). However, Mr Chakty then said that the deceased did discuss the provision made for Mr Daniel and that "she did told [sic] me a different story". Mr Chakty gave evidence that the deceased was upset about "why George put himself and special [sic] to his son after him" and that the deceased said she had not asked Mr Daniel to do that (see T 56.16-18). Mr Chakty said that he did not know if the problem was that Mr Daniel was in the Will or that his son was to benefit in the event of Mr Daniel's death (see T 56.26-28). I interpose to note that there is no challenge to the 2014 Will and that Mr Khoury's evidence as to its preparation and execution was not contested.
18. There was some inconsistency between Mr Chakty's affidavit and oral evidence as to the time at which there was a conversation with the deceased in relation to her wanting to reduce the share for Ms Tawk (because they had not visited her for a long time and Ms Tawk had turned her phone off), i.e., whether that occurred before they went into the bedroom (as deposed to in his affidavit) or in the loungeroom before he left (as emerged in the chronology in his oral evidence - T 53.36-44).
19. Mr Chakty deposed that he offered to get the deceased an interpreter to "explain it all" to the deceased and that the deceased asked him "[d]o you know any good solicitor[s]" to which he responded that "I know some but what do you want to do". Mr Chakty deposed that the deceased did not give him an answer to that question straight away but then said that she wanted "to make some changes. I want everyone to be as equal as possible. I do not want George to take the house with his son after him. I want you to take the house as I promised my sister". Mr Chakty deposed that he told the deceased that "I will do a draft for you and come tomorrow and show you".
20. The reference in the above conversation attributing to the deceased a promise made to the deceased's sister is of some relevance because Mr Chakty deposed in a later affidavit to a promise made to him (not in terms to his mother, Warde) over the years (he says from as long ago as 1991 to 1992) that the deceased would give him one of her properties (see [8] of his affidavit affirmed 17 June 2020). Cross-examined about this promise, Mr Chakty gave inconsistent evidence as to the timing of the promise (see below).
21. Mr Chakty said in his oral evidence that by the time he left it was late afternoon and he estimated that he could have spent more than two or three hours with the deceased (see T 53.15-22). On the chronology emerging from his own evidence it must indeed have been a long afternoon for the deceased - Mr Chakty's evidence is that he and his wife arrived around midday; that they went into the bedroom around 3.00pm; that he was talking with the deceased in the bedroom for (at least) around an hour; the conversation continued in the loungeroom; and that it could have been more than two or three hours, with him leaving in the late afternoon. In that time, on Mr Chakty's evidence he had read the 2014 Will out (every word and number) slowly once in English, again in English with explanation, and then with more explanation in Arabic; and he said that there were "a lot of questions and answers" (T 52.40-42).
22. Asked why he had said he would come the following day (to show the deceased the draft he would do for her), Mr Chakty responded that "she asked me to come tomorrow. She don't [sic] have to ask me".
23. Pausing here, it is by no means clear how Mr Chakty thought he had any instructions as to the content of the new Will he was there saying he would draft himself - beyond changing the spelling of his name; making some undisclosed change to Salim's (the deceased's brother) share; perhaps adding the missing member of the Kanaan family (Maggie or Maguy); and making some change in relation to the provision for Mr Daniel (though it seems he was unsure whether that was to change Mr Daniel's bequest or to remove the gift over in favour of Mr Daniel's son).
24. When further pressed as to the timeline of the 23 October 2019 visit, Mr Chakty said that they got to the deceased's home at about midday and that they left about 3.00pm or 4.00pm in the afternoon (see at T 57.43-49).
25. Mr Chakty's evidence as to the 23 October 2019 visit to the deceased is broadly corroborated by his wife, Juliette. Mrs Chakty affirmed an affidavit on 14 July 2021 in which she deposed that, in or around October 2019, she and her husband visited the deceased; that the deceased asked them to come into her room as she wanted to clarify something with them; that the deceased showed them a Will and asked Mr Chakty to explain what was written; and that the deceased then asked Mr Chakty if he knew or could recommend any solicitors as she wished to change a few things in her Will. This must be a reference to the visit on 23 October 2019.
26. After Mr Chakty and his wife left the deceased's house that afternoon they went to their home at Yagoona. Mr Chakty estimated that their house was about half an hour or three-quarters of an hour (depending on the traffic) from the deceased's residence (see at T 58.40-41). Mr Chakty said that they got to Yagoona after 5.00pm (see T 58.46-50).
27. Mr Chakty deposed in his first affidavit that the same afternoon (i.e., 23 October 2019) he called a solicitor (Andrew Stewart) who had acted as conveyancer on the sale of his property; "explained the situation briefly" to him; and that Mr Stewart said that he (Mr Chakty) needed to take the deceased to her usual doctor and also to an interpreter (see at [27]). In his oral evidence Mr Chakty said that he called Mr Stewart on his mobile phone (initially it appeared from his evidence that this was after he arrived back at Yagoona - see at T 58.49-50; but then he said that he called Mr Stewart from a mobile phone in his car - see at T 59.1-6). Mr Chakty says that he told Mr Stewart that the deceased could speak English but not very well (which presumably would explain Mr Stewart's reference to an interpreter). There is no suggestion that Mr Stewart had any previous knowledge or association with the deceased. Mr Chakty did not remember if he told Mr Stewart that the deceased had a Will in English from 2014 (T 57.24-25).
28. At [28] of his affidavit, Mr Chakty deposed that "I had spoken to some other solicitors as well. I recall some of them said that it would be good if she had a neurological assessment done as well because of her age". In the witness box (see at T 60), Mr Chakty said that the only solicitors he spoke to at this time were Mr Stewart and Mr Anthony (Tony) Bazouni of Prominent Lawyers (a solicitor that Mr Chakty had not used before but who was from the same village in Lebanon and who he said he called for a second opinion) (see T 59.18-34). Mr Chakty could not recall if he called Mr Bazouni from home or from his car. Mr Chakty thought that it was Mr Stewart who had said that it would be good if the deceased had a neurological assessment. There is no evidence as to why Mr Chakty did not pursue a retainer with either of Mr Stewart or Mr Bazouni in relation to the matter.
29. Mr Chakty was adamant (see T 61.29-37) that the deceased told him that she did not want Mr Daniel to get the house. At T 62.10-13, Mr Chakty said that the deceased did not explain how the 2014 Will had been done - saying that the deceased "can't read the Will" and that "she don't [sic] know how to read and write".
30. Relevantly, at this stage, on Mr Chakty's own evidence, he was proposing to draft a new Will for the deceased and to bring it to her the following day. (There is no document in evidence to show what, if anything, was drafted by Mr Chakty but the evidence of Mr Conti suggests that Mr Chakty did indeed provide something by way of a draft to the solicitors at some stage - see below.) Pressed as to why he would not involve a solicitor straight away, Mr Chakty asked rhetorically why would he (see T 63.18-19) and said that he told the deceased "I better come next day just to double check she's all right" (see T 63.11-13).

Thursday, 24 October 2019

1. Mr Chakty deposed that on 24 October 2019 he went again to the deceased's house (at around 10.00am); and that he explained to the deceased that if she wanted to continue with the changes to her Will, she would need to see a doctor, an interpreter and a solicitor (see at [30] of Mr Chakty's affidavit of 27 March 2020). (In oral evidence he confirmed that he went by himself to visit the deceased and said that he asked whether the deceased still wanted to change her Will or whether she still wanted to go to see a solicitor (see T 63.39-41)). Mr Chakty deposed that he asked the deceased how she wanted to change her Will and she said "[l]ike I promised your mum. To look after you and your family and the rest in our family". (As noted above, Mr Chakty's affidavit evidence as to this promise was that from around 1991 to 1992 the deceased had promised to leave a house to him - see at [8] of his paragraph 9.3 affidavit affirmed on 17 June 2020.)
2. Mr Chakty says that on the same day (24 October 2019) at around 11.30am he called Dr Victor Tadros (his family doctor, who had also been the deceased's doctor for over ten years). Mr Chakty says that he spoke to Dr Tadros and explained that the deceased wanted to do her Will and he had been told that she had to see her doctor first. According to Mr Chakty, Dr Tadros said that she did not have to come and that she could tell him on the phone what she wanted to do; and Mr Chakty says that Dr Tadros asked Mr Chakty to call back later that afternoon. Mr Chakty says that he called Dr Tadros later that afternoon and he spoke to the deceased. Mr Chakty deposed that he tried to make an appointment that same day, but it was not possible; and that at around 3.30pm he left the deceased's house.
3. Mr Chakty deposed that he then checked on the internet for some interpreters and remembered that he had met an interpreter (Mohamad Nahas) at community events on different occasions; and that he rang Mr Nahas and "explained the situation to him". Mr Chakty deposed that Mr Nahas said he could assist with "explaining the 2014 [W]ill" to the deceased; and that he made an appointment with Mr Nahas for 9.30am on 26 October 2019.
4. Consistently with this, Mr Nahas' evidence is that in around late October 2019 he was contacted by Mr Chakty to see if he could assist with the interpretation of a Will; that he knew Mr Chakty from the community; and that he remembered that Mr Chakty stated that the deceased wanted to change her Will. Mr Nahas remembered saying that he was happy to assist but that Mr Chakty also needed to organise a solicitor. Mr Nahas deposed that a few days after this he had booked a meeting with Mr Chakty and the deceased.
5. Ms Tawk, in her affidavit sworn on 11 May 2020, deposed to a conversation with Mr Chakty one day between 23 and 25 October 2019 at about 4.15pm, in which he called her on her mobile phone. Ms Tawk deposed that she believed it was either Thursday 24 October 2019 or Friday 25 October 2019. Ms Tawk deposed that Mr Chakty said he needed to see her urgently; that initially he did not tell her what about; and then that he said "Look I want to do something to get hold of [the deceased]'s will and change it. Do you want to get involved and help me?". Mr Chakty denies that the conversation was to this effect (see his paragraph 9.3 affidavit affirmed 17 June 2020 at [63]ff).
6. Mr Chakty accepts that he had a conversation with Ms Tawk about the deceased wanting to change her Will (see T 87.30-35) and deposed that he asked her to help find a solicitor and organise to change it according to the deceased's wishes. Of course, on Mr Chakty's version of events he had already contacted two solicitors on the afternoon of 23 October 2019, which makes it somewhat unlikely (though not inconceivable) that he needed assistance from Ms Tawk on that account.

Friday, 25 October 2019

1. Mr Chakty deposed that on 25 October 2019, he rang Dr Tadros' clinic at around 10.30am to make an appointment; and that the receptionist said that the doctor would come at 11.30am. Mr Chakty deposed that they went to the clinic and waited for about two hours before Dr Tadros saw them. It appears that the deceased was wearing her nightgown at the time and that Mrs Chakty was with them (having regard to the photographs annexed to Mr Chakty's affidavit). According to Mr Chakty, Dr Tadros said "Elias told me you want to do the Will" and the deceased nodded her head; and Mr Chakty also said that the doctor made some light jokes with the deceased about her leaving everything in her Will to him and that she and everyone was laughing. Mr Chakty again took photographs on this occasion.
2. Mr Chakty deposed that Dr Tadros said to him that the deceased was fine but that he asked Dr Tadros for a referral to a neurologist; and that the doctor said he could make an appointment with Dr Basel Hassan in Campsie but the earliest appointment was on 23 January 2020 and Mr Chakty asked if an earlier date was available. Mr Chakty deposed that at some later stage he was informed that the earliest date was 21 November 2019. Mr Chakty's affidavit does not make clear whether an appointment was actually made for that date.

Saturday, 26 October 2019

1. Mr Chakty deposed that on 26 October 2019 he called the deceased in the morning to check how she was "and to remind her that [he was] coming to pick her up" so that the interpreter could explain the 2014 Will to her. Mr Chakty deposed that he collected the deceased and took her to his house at Yagoona.
2. Mr Chakty's evidence is that Mr Nahas went to Mr Chakty's house at Yagoona at around 9.30am on 26 October 2019. In his affidavit affirmed 27 March 2020, Mr Chakty deposed that Mr Nahas was there for about an hour (see at [42]) and that Mr Nahas explained the 2014 Will to the deceased in detail. At T 68.23-31, Mr Chakty corrected that to be that Mr Nahas came "maybe one hour after we came home". At T 68-69, Mr Chakty's account was that he took the deceased from Hurlstone Park to Yagoona and the interpreter was not there until about an hour later; that before the interpreter came he (Mr Chakty) spoke to the deceased about the Will; and that the interpreter then came and spoke in Arabic; and that the interpreter was there for about an hour. Mr Chakty did not recall if he told the interpreter that the deceased could speak English.
3. Mr Chakty deposed that the deceased asked Mr Nahas whether he knew any good solicitors; and that Mr Nahas gave a few names, one of which was Dot Legal. Mr Chakty deposed that Mr Nahas then called Mr Michael Conti of Dot Legal and that he observed that Mr Nahas handed the phone to the deceased for a brief period. Mr Chakty says that, during the meeting, the deceased said "I want to change this will Elias. I want to leave this house to you" (which he said meant the Starkey Street Property) and that he responded "Thank you Aunty but that is up to you. I still remember you mentioned this all those years ago when I first came here".
4. As referred to above, Mr Chakty deposed at [8] of his paragraph 9.3 affidavit, affirmed 17 June 2020 that on many occasions throughout the years the deceased would say to him that she wanted to leave one of her properties to him as she had promised his mother (her sister, Warde) before his mother died; and he deposed to a recollection that she first raised this some time in 1991 or 1992. In the witness box, Mr Chakty said that the deceased had talked about leaving him a house for a long time - 40 years ago (even before her husband died) (see T 70.24-37). Mr Chakty was adamant that he never forgot the deceased's promise (see T 71.4-7).
5. Pausing here, Mr Chakty accepted that he came to Australia in 1991 (when he was 30), which was some 29 (not 40) years before the events of 2019. However, Mr Chakty then said that the promise was made to him before he came to Australia and before 1991 (in front of his family in Lebanon) - T 71.36-50. At T 72.1-28, Mr Chakty reverted to his evidence that there was no promise made to him about leaving him the house before he came to Australia. Then at T 84.45-48, Mr Chakty said "Not 40. Forget 40 years ago. Lets start from [1991]". Mr Chakty was adamant, however, that the deceased had "always told him I will leave house for you" (see T 84.41-43).
6. Mr Nahas confirmed in his affidavit affirmed 26 March 2020 (at [7]) that a "few days" after the first contact (by Mr Chakty) he went to Mr Chakty's house in Yagoona. Mr Nahas deposed that he "interpreted" the 2014 Will for the deceased on that day and that at the time "she kept wanting to confirm whether what I was saying was actually in the will" (see at [8]).
7. Mr Nahas says that during that meeting he was asked if he knew any solicitors; and he has deposed that he knew Mr Conti from the community and that he called him to ask if his firm could assist (see at [9]). Mr Nahas deposed that he "introduced" the deceased to Mr Conti (this can only have been over the phone) and that he handed the phone to the deceased to speak with Mr Conti and observed that she spoke with him (see at [10]).
8. Mr Conti's evidence in his affidavit affirmed 27 March 2020 is that in late October 2019 he received a call on his mobile phone from Mr Nahas (who he said is well known in the Arabic speaking community); and that they had a conversation in which Mr Nahas asked the cost of preparing a will; that "these people are saying they have enquired with a few solicitors but [he thought] it would be easier if they went to Dot Legal"; and that Mr Conti asked to speak with the person who wanted to prepare the Will (see at [4]). Mr Conti deposed to a conversation with the deceased in which he says he asked "I am told that you want to change your Will" and she said "Yes I do. I want my nephew Elias to sort it out but you must show me the Will before I sign" and that the deceased asked how much he charged.
9. Mr Conti deposed that Mr Nahas told him that there was a draft that "her nephew can send to you" and that Mr Conti said that he would send it to the solicitor so that he could start drafting the Will (see at [6]). This is consistent with Mr Chakty preparing at least some draft document or notes in relation to the proposed new Will, though these are not in evidence.
10. In the context of the other evidence referred to above, this conversation must have been the 26 October 2019 conversation to which Mr Nahas and Mr Chakty have deposed.
11. Mr Chakty has deposed that, after this meeting with Mr Nahas, he took the deceased to see his in-laws at Colo Vale; and he says that the deceased there spoke about her wishes to change the Will. Mr Chakty deposed that, in the late afternoon he took the deceased back home (to the Starkey Street Property) as she wanted him to take her to Church the next day.
12. Mr Chakty's mother-in-law, Mrs Souhailah Kanaan, affirmed an affidavit on 19 August 2020 in which she corroborated Mr Chakty's evidence that he brought the deceased to her house in Colo Vale on 26 October 2019 (she says, for a barbeque). Mrs Kanaan deposed to a conversation with the deceased on that occasion in which she says the deceased said that she wanted to change her Will and that "the old Will, George done [sic] it the way he wanted. He put whatever he wanted for himself and distributed the rest"; and that the deceased said to her that she was upset.
13. Mrs Kanaan deposed that the deceased said that "he" (in context, meaning George) thought that the deceased was not in her right mind; that George was a good guy and she would like to give him some money but did not want to give him everything; that she did not want to give that much to Sonia because she blocked the deceased's telephone number; and that she wanted "Elias to take care of it all and to see a smart lawyer to change it". Mrs Kanaan then apparently offered the deceased some of her own testamentary advice, saying that "[y]our relations are more deserving than someone who is not family", with which she says that the deceased agreed (see at [5]).
14. Pausing here, an affidavit prepared for Mr Aziz (but not formally attested by him as he was in Pakistan at the time) recounted a conversation that Mr Aziz had had "on or around 23 October 2019" with Mr Conti to the effect that Mr Conti had an Arabic speaking client, an elderly lady, who wanted to do her Will and that she may also need an interpreter. Mr Aziz said that he confirmed that this was fine and asked Mr Conti to send him the details. Logically, this conversation cannot have been before 26 October 2019. Given that 26 October 2019 was a Saturday, it might be more likely that this conversation between Mr Aziz and Mr Conti did not take place until the start of the next business week (28 October 2019) but this is not clear (and the evidence of Mr Conti - see below - suggests that the conversation with Mr Aziz might indeed have been on the Sunday). What is clear, however, is that it cannot have been on 23 October 2019 (and it is of passing interest that this is the date that Mr Aziz ascribed to it based - according to his affidavit - on his review of the files and recollection - see at [5]); particularly since what was in evidence of the content of the solicitors' files was sparse in the extreme, it is not clear from what Mr Aziz' recollection could have been refreshed.
15. Mr Husseini's evidence (in his affidavit affirmed 17 April 2020) was that in around late October 2019 he received instructions from Mr Aziz to assist with a matter that involved an elderly lady who "wished to do her will" and that he understood that her family would be bringing her in to the office within the next few days (see at [4]). Mr Husseini deposed that Mr Aziz asked him to confirm the deceased's instructions regarding her Will and to witness the Will when she came in for the execution. Mr Husseini deposed that his role was "to witness the Will and be satisfied that [the deceased] understood the contents of the Will" (see at [5]). (Mr Husseini also remembered that the Will was corrected a few times (see at [5]).)

Sunday, 27 October 2019

1. Mr Chakty has deposed that on 27 October 2019 he called the deceased to confirm that he was picking her up (to take her to Church as had been arranged) and that Mr Daniel answered the phone and told him that the plans had changed and she would be going to Wollongong with him (see at [46] of Mr Chakty's affidavit affirmed 27 March 2020).
2. Mr Conti has deposed that the day after his conversation with Mr Nahas (in which Mr Nahas told him that there was a draft that the deceased's nephew could send to him), he was provided with a draft Will (see at [7] of Mr Conti's affidavit affirmed 27 March 2020). Thus, on Mr Conti's account what he was given was a draft Will - and this can only have been one prepared by Mr Chakty. Mr Conti has deposed that "shortly after that" he had a conversation with Mr Aziz (see at [8]) who said that Dot Legal could assist with the drafting of the Will; and that he sent that draft Will to Mr Aziz. Thus, it is possible that on Mr Conti's account of events Mr Aziz received a draft Will (that had been prepared by Mr Chakty) on 27 October 2019.
3. Mr Conti has further deposed that "[d]uring this time" (and it is unclear to what period he is there referring but it cannot have been before he received the draft Will on 27 October 2019 on his own account) the Will was sent to him on a number of occasions and he sent it to the "client" for review; that this "back and forth" continued a few times; that on one occasion he received instructions that the Will needed to be changed to add the words "my god child" after certain beneficiaries (and that this was because the deceased insisted that these beneficiaries be described as "my god child") (see at [9]).
4. Mr Conti deposed that after the Will was "fixed up according to the client's instructions" he arranged to have the client and Mr Nahas come in for an appointment at Dot Legal's offices in Merrylands (see at [10]). On that account, the Will was "fixed up" before he arranged for the 31 October 2019 meeting.

Monday, 28 October 2019

1. Mr Chakty has deposed (at [47] of his affidavit affirmed 27 March 2020) that on 28 October 2019 he rang the deceased around 10.30am to see how she was and told her that they had an appointment with the solicitor on 31 October 2019, and that she should come the night before to sleep at his place.
2. At [48], Mr Chakty deposed that "during this time" (again the precise timeframe for this is unclear from his affidavit) he was "explaining" the value of the percentages for each relative and that this happened a few times over those days. Mr Chakty also said that he made some notes which he subsequently sent to the solicitor. It is not clear if these notes are the same as the draft Will that Mr Conti says he received on 27 October 2019 or amounts to some additional material. In any event, there is no copy of any such notes.
3. In his affidavit affirmed 27 April 2020, Mr Husseini has deposed (at [6]) that on or around 28 October 2019 he was contacted by Mr Aziz to arrange for the deceased to come in to confirm her instructions and to execute the Will; and that he understood that an interpreter would be made available to help with this (see at [6]).
4. Pausing here, if these instructions (of which there is no file note or other documentary evidence) came on 28 October 2019 then it is not clear what instructions Mr Aziz thought were to be confirmed because at that stage, at most, Mr Chakty had sent through a draft Will (and perhaps some additional notes) on 27 October 2019. Mr Aziz might have been very speedy in his drafting of the Will but this timeframe leaves little time for the alleged "back and forth" of drafts or the like.
5. Mr Aziz' unexecuted affidavit recorded that after his conversation with Mr Conti (which he put as being on or around 23 October 2019 but which, as discussed above, is not likely to have been before 26 October 2019) he began drafting a basic Will using a template he had used before. Logically, preparation of a basic Will (even using a template that had been used before) would require instructions as to the deceased's testamentary intentions. Therefore, it is unlikely that any substantive draft could have been prepared until after Mr Conti had received the draft Will (or notes) from Mr Chakty and after Mr Conti had sent those to Mr Aziz.
6. Mr Aziz' unexecuted affidavit recounts that he sent a version back to Mr Conti. That suggests that Mr Aziz was working from the draft that Mr Chakty had provided to Mr Conti (and using whatever was on Mr Aziz' previous template). The affidavit then recounts that there "would have been" at least three or four times when the Will was sent "back and forth" with changes being made. (The language of "back and forth" changes mirrors that of Mr Conti's affidavit, which suggests that the wording is that of the draftsperson of the affidavit rather than necessarily that of the deponent.)
7. The affidavit of Mr Aziz also there recounts that, as he was [to be] overseas soon after that, Mr Aziz discussed the matter with his employed solicitor, Mr Husseini; and that he instructed Mr Husseini to read the Will and ensure that he confirmed the testatrix' instructions in person and to explain the Will to the testatrix in the presence of an interpreter. There is no record of these instructions. (It should here be noted that Mr Husseini had by this time only recently been admitted to practice and would have been operating under a qualified practising certificate under the supervision of a solicitor with an unqualified practising certificate. Moreover, Mr Husseini's evidence is that this was the first Will in which he had been involved - see below. Therefore, and I say this without criticism of Mr Husseini, there is much left to be desired in the manner in which Mr Husseini appears to have been left by his supervising solicitor to conduct his role in the matter.)

Wednesday, 30 October 2019

1. Mr Daniel's affidavit evidence is that on 30 October 2019 he left the Starkey Street Property at around 5.40am (see T 203.35-39) (that being around his usual time to leave for work - see T 210.26-27) and at around 8.50am he received a notification from the deceased's Livelife Alarm and he spoke to the deceased for approximately one minute (see Mr Daniel's affidavit sworn 12 May 2020 at [15]).
2. Mr Daniel has deposed that he telephoned the deceased that day at around 9.23am and the deceased told him that Mr Chakty was going to pick her up that day to take her to his place. Mr Daniel has deposed that Mr Chakty called him "soon after" and said that it was his son's birthday, and he would like the deceased to spend the night at his place and he would take her home to the Starkey Street Property the following day. Mr Daniel also deposed that he told Mr Chakty to come to the Starkey Street Property after 2.00pm because professional aged carers were scheduled to attend on the deceased between 11.30am and 1.30pm.
3. Mr Chakty confirms that on 30 October 2019 he told Mr Daniel that the deceased would be spending the day and night at his place. However, in Mr Chakty's 17 June 2020 affidavit he places the telephone call to Mr Daniel as being in the afternoon at around 2.00pm, after which he says that he took the deceased to his place at Yagoona and he says that shortly after he arrived there the interpreter arrived at his place (see at [47]).
4. Mr Daniel has deposed that at 1.56pm on 30 October 2019 he again telephoned the deceased and that she said to him that "Elias is over" (which is broadly consistent with Mr Daniel having told Mr Chakty to come after 2.00pm). Mr Daniel deposes that he briefly spoke with Mr Chakty and told him what medications the deceased required.
5. Thus, it appears that there is consistency in the two men's accounts at least to the extent that both place the deceased as being at the Starkey Street Property at about 2.00pm on 30 October 2019.
6. However, in his first affidavit, Mr Chakty deposed that on 30 October 2019 he went to the office of Dot Legal to pick up the final draft of the 2019 Will; that he had arranged for the interpreter Mr Nahas to arrive and explain the 2019 draft Will to her; and that at around midday that day Mr Nahas came to see the deceased at Mr Chakty's house to explain the 2019 draft Will. The timing of Mr Nahas' arrival at the house to "explain" the Will is therefore inconsistent as between the two affidavits.
7. Meanwhile, Mr Aziz' unexecuted affidavit recounts that on 30 October 2019 he sent a final draft for approval to Mr Conti. There is no evidence as to how that draft was approved or by whom. It may well be that Mr Aziz sent a final draft for approval to Mr Conti (and Mr Conti obtained instructions for its approval) prior to Mr Chakty picking up the final draft from the office of Dot Legal (at some time before 2.00pm - and on one version of Mr Chakty's affidavits before midday on 30 October 2019). However, it is wholly unclear how any final approval was communicated or when.
8. Mr Chakty said in cross-examination that he made some notes (in context, about the Will) and that those notes went to the solicitor; and he said, in that context, that he went to the solicitor's office (see T 751-17). Mr Chakty's evidence was confused as to when he went to the solicitor to give him his notes. Logically, one would think that that must have been before a final draft was sent by Mr Aziz for approval on 30 October 2019. However, initially Mr Chakty said that it was on 30 October 2019 that he visited the solicitor to give him the notes; and he did not remember how may pieces of paper he gave the solicitor (suggesting that it was two or three but then again saying that he did not remember). At T 76, Mr Chakty said that he picked up the final draft of the Will from Dot Legal on 30 October 2019 and that it was ready when he went to the solicitor's office (saying "yes with a few explanation" - an answer that did not make sense to me - see T 76.34-48).
9. Mr Chakty then said that it was not on 30 October 2019 that he went to see Mr Conti with his notes - he said at T 77.39-42 that he gave Mr Conti the draft a couple of days before "maybe" 28 October 2019. Questioned about this, Mr Chakty said that he went to Mr Conti's office only once then amended that to "only once to send the paper and twice" (see T 77.48-50). Confronted with [49] of his affidavit in which he deposed that he went to the office on 30 October to pick up the final draft (which in cross-examination he confirmed was ready when he went there), Mr Chakty was adamant that he had been to the office twice (and then said the third time was when they went to sign the Will). Mr Chakty said at T 77 he had dropped off the notes before; at T 78 that he probably went there twice; and that when he came back from Mr Conti's office on 30 October 2019, he had the draft 2019 Will with him. At T 79.3-5, after initially having said that the draft Will he picked up from Mr Conti was on different paper and that the wording "wasn't mention [sic] the godchild for her" (see at T 78.44-50), Mr Chakty seemed to accept that the draft Will he picked up from Mr Conti's office was in the same words as the Will signed the following day (and said that the reference to the godchild was talking about the draft Will that he, Mr Chakty, had prepared from the internet.
10. Mr Chakty agreed that he did not tell Mr Daniel that he was going to take the deceased to a solicitor (see T 76.1-28; T 80.32-35) but said that "[t]hat was her wish. She didn't want trouble" (see T 76.19-21) (I note there is nothing to this effect in his affidavit evidence).
11. At T 79-80, Mr Chakty seemed to accept that in the period from 23 October 2019 to 31 October 2019, he had talked to the deceased about the 2014 Will; talked to the deceased about the draft Will he had prepared from the internet; talked with the deceased about the draft picked up from Mr Conti; and talked to the deceased about the Will that she ultimately signed. Insofar as his affidavit had provided (see at [48]) that during this time Mr Chakty was explaining the value of the percentages for each relative (and that this happened a few times over these days), Mr Chakty agreed that the deceased did not understand his explanations (see at T 76.29-36) and he said that (although referring in his affidavit to him "explaining") he was not trying to explain the provision made to each relative who was to obtain a percentage of the deceased's estate but rather to confirm those percentages (see at T 77.38-40). At T 74.40-44, Mr Chakty said that "[i]ts not [sic] explain. I try to tell her everything going good, going well, as you wish".
12. As to the process of interpretation or explanation by Mr Nahas of the draft 2019 Will on 30 October 2019, Mr Chakty deposed that Mr Nahas was sitting in the lounge room going through the draft 2019 Will with the deceased. Mr Chakty deposed that the deceased "spoke about each and every person under the 2019 Will and she was explaining why some people were reduced and why others stayed the same" and that the deceased quoted various reasons mainly to do with relatives not visiting her or showing concern about her well-being. In his affidavit (at [55]) Mr Chakty deposed that when the interpreter was explaining the Will to the deceased, the deceased asked him again to check the Will and he "tried to read it". In cross-examination, Mr Chakty did not know if he had read it to the deceased on that occasion (see at T 81.48-50, T 82.1-5).
13. Mr Nahas' account of this was that he deposed that "a few days later" (i.e., a few days after the first occasion that he went to the Yagoona home, that first occasion being 26 October 2019) but in the same week he went again to Mr Chakty's home in Yagoona and was asked to interpret a different document for the deceased (which in his affidavit he identified as the 2019 Will but which in his oral evidence he could not confirm was the same document). Logically, if the document that Mr Nahas there interpreted for the deceased was the same as the one she signed the following day, then there were no amendments made to the document after the final draft was picked up by Mr Chakty some time before 2.00pm on 30 October 2019.
14. Mr Nahas deposed that during this time the deceased would stop him at times and ask for further clarification, giving as an example that she wanted to know in detail how much each beneficiary would get under the Will.
15. Mr Chakty says that the deceased slept over that night at his house "due to seeing the solicitor early the next day". In cross-examination, Mr Chakty could not explain why that was necessary given that the appointment with the solicitor was not until 10.30am the following day. Mr Daniel contends (and the events would certainly support such a conjecture) that this was an attempt to ensure that he did not become aware of the plans to change the 2014 Will.

Mr Chakty's account

1. Mr Chakty has deposed that, on 31 October 2019, he and his wife took the deceased to the solicitor's office in Merrylands; that Mr Nahas was already there; as was Mr Husseini. In cross-examination, Mr Chakty accepted that he could have picked the deceased up from her home at Hurlstone Park to see the solicitor but denied that he had kept the deceased at his home so that Mr Daniel did not find out that they were going to see a solicitor - see at T 81.1-28. Mr Chakty said that if the deceased wanted to go home he would take her home.
2. At the solicitors' office on 31 October 2019, Mr Chakty says that everyone was introduced to one another, and that Mr Husseini asked the deceased "[d]o you know why you are here? You want to do a will?" and the deceased said "yes". (Pausing here, the accounts of how Mr Husseini phrased this enquiry vary as between the various witnesses - a matter of no little significance since an answer to a leading question of the kind that Mr Chakty here recalls having been made would say little as to the deceased's independent memory or understanding of why she was at the solicitor's office.)
3. Mr Chakty said that when the interpreter was explaining the Will the deceased asked him again to check the Will; that he tried to read it; and that the deceased asked how he could read it without his glasses and told him to make sure everything in the Will was okay.
4. Mr Chakty deposed that, after this, the solicitor asked them to leave the office and wait in the waiting room; that the deceased, the solicitor, and the interpreter stayed in the office; and that after about 20 to 25 minutes they called them back in and said everything was done. Mr Chakty said that the solicitor explained that he was also the executor under the Will.
5. Mr Chakty's evidence was that the deceased would have needed "a detailed explanation in Arabic to explain complex documents like a Will or other legal or important document" (see at [29] of his 17 June 2020 affidavit and he asserted that the deceased could not read a Will in English).
6. It should be noted at this point that the 2019 Will misspells the deceased's first name, something one might have thought the deceased would have noticed if (contrary to Mr Chakty's evidence) she was not illiterate; and if at that stage her mental cognition was such that she was capable of reading her name on the document she was there signing.

Mr Husseini's account of events

1. Mr Husseini's first affidavit was missing a paragraph ([7]). In a subsequent affidavit affirmed on 20 August 2020, Mr Husseini deposed that this was a clerical error and that the missing paragraph was that: On or around 31 October 2019 in the morning I arrived at my office in Merrylands. I reviewed Genevieve's file and the Will prepared by Mr Aziz.
2. In his first affidavit Mr Husseini recalled that the deceased came in; and that Mr Chakty and Mr Nahas were there (see at [8]). Mr Husseini said that he was shown the deceased's mobility card and confirmed her identity and that he sighted the interpreter's certificate at this point (see at [9]).
3. Mr Husseini deposed that he had the following conversation with the deceased: Me: Hello my name is Namal and I am a solicitor and I will be explaining and witnessing you signing your will. Do you know why you are here? Mrs Bryan (through interpreter): Yes. I am here to sign the will.
4. Mr Husseini deposed that he went into a room with the deceased and Mr Nahas; and that he told Mr Chakty that he could not come into the room and that he must wait outside, which he did (see at [11]).
5. Mr Husseini's affidavit account is that once in the room he obtained the unexecuted copy of the Will "and went through it" and that he "especially focused and emphasised on the operative parts of the Will being paragraph 8" and explained who the executor was and what share each person would be getting (see at [12]).
6. Mr Husseini deposed that the process he adopted was that he went through each paragraph in English and then waited for Mr Nahas to translate the paragraph in Arabic to the deceased; and that during this time they were having a "back and forth conversation with one another in Arabic" (see at [13]).
7. Mr Husseini deposed to his observation that the deceased appeared to understand what was being explained to her by Mr Nahas; that she appeared a little tired but otherwise alert; and seemed to understand that she was there for the signing of the Will (see at [14] of Mr Husseini's affidavit) from which he concluded that the deceased had the capacity to make her own decisions and appeared alert and rational (see at [15]).
8. Mr Husseini deposed that, after this process, he asked Mr Conti to enter the room; that the deceased asked Mr Nahas for a pen and that he, Mr Husseini, gave his pen to Mr Nahas to give to her; and that he witnessed the deceased sign and each of he and Mr Conti attested the execution of the Will (see at [16]).
9. Mr Husseini said that the whole process took about 45 minutes (see at [17]).
10. Mr Husseini deposed to the error in the spelling of the deceased's name on the Will (at [18]) and that the interpreter's address in the interpreter's certificate is also an error, deposing that Mr Nahas does not operate from the offices of Dot Legal and that their "office has had no previous dealings with him" (see at [19]).

Mr Conti's account of events

1. Mr Conti's evidence is that on 31 October 2019 he was at the offices of Dot Legal at 10.30am; that Mr Husseini was already present; and that he saw the deceased come into the office on a walking frame with Mr Chakty, Mr Nahas and Mr Chakty's wife (see at [12] of Mr Conti's affidavit of 27 March 2020).
2. Mr Conti has deposed that Mr Husseini enquired whether the deceased had any identification with her, to which Mr Chakty replied "yes" (see at [12]) (though he does not there depose that any identification was produced). In his oral evidence, Mr Conti said (at T 114.38-43) that he checked a disability card. When recalled to give evidence (after Mr Husseini had been cross-examined), Mr Conti's evidence was (T 134.22-50) that the "first original mobility card had expired" and that Mr Chakty had been asked to send another.
3. Mr Conti deposed that "everyone introduced everyone" and that Mr Husseini asked the deceased through the interpreter whether she knew why she was there. Mr Conti says that the deceased said "[y]es I am here to sign the will. Show me the will. Can you double check if the name and spellings are all correct. Did you put in my Godchild?". Mr Conti deposed that Mr Nahas showed the deceased the Will and confirmed that her godchild was in the Will; that the deceased asked Mr Chakty if he had brought his glasses; that Mr Husseini said that only himself, Mr Nahas and the deceased needed to go into the office; and that he (Mr Conti) stayed outside with Mr Chakty and his wife (see at [16]). Mr Conti said that the others were in the office for about 25 minutes, after which Mr Husseini asked him to come and witness the signing of the Will. Mr Conti deposed that he went in and saw the deceased sign the Will and that he checked her passport and her signature there and signed as a witness to the Will (see at [17]).
4. Mr Conti deposed that throughout the whole process the deceased appeared to him to be alert and aware of her surroundings and appeared to understand the purpose of her visit to the offices of Dot Legal (see at [18]).

Mr Nahas' account of events

1. Mr Nahas has deposed (in his affidavit affirmed 26 March 2020) that on 31 October 2019 he arrived at the office of Dot Legal in the morning; and that present at the office were Mr Husseini and Mr Conti; that he had to wait a while as Mr Chakty and the deceased were not there (see at [13]); and that he understood that his role was to interpret and "explain a Will formally" to the deceased and to interpret all communications with her in the office (see at [14]).
2. Mr Nahas deposed that he interpreted various conversations between the solicitor and the deceased; and recalled that Mr Husseini had introduced himself and asked the deceased why she was there; and that after a short while he and the deceased and Mr Husseini went into another room (see at [15]).
3. Mr Nahas confirmed that he had "interpreted" the 2019 Will in the Merrylands office on 31 October 2019. Mr Nahas remembered that Mr Husseini went through the Will in English "bit by bit" and that Mr Husseini would wait while Mr Nahas would interpret the provision from English to Arabic and explain it to the deceased. Mr Nahas said that he would interpret the provisions in their proper Arabic terms (see at [17]). Mr Nahas deposed that on some provisions where the deceased needed further explanation he would then interpret that part again in a more simple and colloquial Lebanese dialect to ensure that the deceased properly understood what he was saying. Mr Nahas deposed that during this process the deceased would nod her head, maintain eye contact with him while he was interpreting and say yes (see at [18]). From his observation, Mr Nahas was certain that the deceased understood what was being interpreted to her, and said that "[h]er demeanour and body language and general presentation" indicated to him that the deceased understood everything that he was saying to her (see at [19]).
4. Mr Nahas also said (at [20]) that had he thought that the deceased was not understanding anything he was saying "for any reason, either on this occasion or previously" he would have informed the solicitor immediately and would not have continued with the interpretation. (If, by this, Mr Nahas was referring to the previous occasions when he had performed a similar function in relation to the 2014 Will or the draft 2019 Will, it is not clear how Mr Nahas was suggesting he would immediately have informed the solicitor - since there was no solicitor present on either of those occasions.)
5. In cross-examination, Mr Nahas was adamant that he was not translating the Will, but rather "interpreting" it (see at T 176.30-38), and that he was not necessarily translating the Will as written, but rather using dialect and simple terminology in an effort to ensure that the deceased would understand. Mr Nahas confirmed that the deceased was never asked to repeat her understanding of the terms of the Will, and indeed never did more than nod, say "yes" or "no", or ask for further explanation on occasion (see at T 176.43-50, 177.1-40).
6. Mr Nahas confirmed in his affidavit that he had no previous dealings with Dot Legal; and that the address on the interpreter's certificate that he signed was not his business address.

Mr Aziz' account of events

1. Mr Aziz' affidavit records that Mr Aziz received the funds and paid the interpreter's fees and his professional fees; and that Mr Aziz later realised, after the Will was executed, that there was an error with the spelling of the first name of the deceased.

Mr Daniel's account of events

1. Mr Daniel deposed that on 31 October 2019 he left the Starkey Street Property and went to work some time in the morning; that he contacted the deceased at 11.37am and spoke to her in Arabic; and that the deceased told him that she was tired and would be going home soon. Mr Daniel has deposed that he received a message from the Livelife Alarm at 3.20pm which gave the deceased's location at the Starkey Street Property and that he spoke with the deceased who told him she was very tired; and that he then spoke with Mr Chakty, who told him that he would put the deceased into bed and leave.
2. Mr Daniel has deposed that he returned home at about 5.00pm and that the deceased woke up and appeared distressed. He has deposed to a conversation to the effect that the deceased said that "[t]hey were trying to make me change the will because your son's name was in the will, and that he was going to inherit the [Starkey Street Property]. I said everything is for you only". Mr Daniel said that he told the deceased that was not true and it was only if he died before her that it went to his son and that "They're trying to manipulate you". Mr Daniel deposed that he asked the deceased whether she signed anything and she said "No".

Renewal of disability card - 4 November 2019

1. Mr Daniel's evidence is that on 4 November 2019 he took the deceased to the Roads and Maritime Services office at Botany to renew her mobility permit (which permit he said remained on his person at all times). Mr Daniel has deposed that he paid for the renewal on his credit card.
2. Mr Daniel's evidence is that on about 7 November 2019 when he was at home he noticed that a Service New South Wales envelope had been opened (and deposed that he had not noticed the envelope before that day and that it was his habit to check the mail on a daily basis). Mr Daniel deposed that he asked the deceased who had opened the envelope (which contained the new mobility permit) and she said that it was Mr Chakty. Mr Daniel's evidence was that his belief was that the only time that Mr Chakty would have had access to the mobility card was on that one occasion on about 7 November 2019.
3. Mr Daniel "clarified" the evidence in his 12 May 2020 affidavit as to the renewal of the mobility permit in his 25 January 2022 affidavit. In that later affidavit, Mr Daniel confirmed that the reference to the mobility permit remaining on his person at all times was a reference to the mobility permit used before the issue to her on 4 November 2019 of a new mobility permit by Transport for New South Wales; and that the first date he became aware of the newly issued permit was on 7 November 2019.
4. In Mr Daniel's 25 January 2022 affidavit he deposed to the issue of a subpoena to Roads and Maritime Services and the documents produced in response to that subpoena (a copy of the application form submitted on 4 November 2019; and a copy of a document indicating that a reminder letter was sent on about 30 October 2019 in relation to the renewal of the permit (Annexure C)). The deceased's signature on the application (dated 4 November 2019) was simply comprised of her initials (and to the lay eye in shaky handwriting). The expiry date for the earlier mobility card (Annexure E) was 4 December 2019; and of the renewed card (Annexure D) 5 December 2024. (Also annexed to this affidavit was a copy of a Commonwealth Bank term deposit account in the deceased and Mr Daniel's names commencing 22 May 2019 in the amount of $234,966.35, again bearing the deceased's signature comprising only her initials and again in shaky handwriting.)
5. Mr Chakty's evidence is that he opened the envelope, photographed the mobility card and sent it to the solicitors (T 92.19-44).
6. The evidence as to the renewal of this card is relevant in the context of the evidence given by Mr Husseini and Mr Conti as to the identification provided at the time of the execution of the 2019 Will.
7. The Dot Legal file contained only an image of the card that had been issued following the 4 November 2019 application, which would be consistent with Mr Chakty's evidence that he had photocopied and sent that card to the solicitors - but this could only have been on or around 7 November 2019 after the card had arrived at the Starkey Street Property. Mr Chakty's evidence at T 91.5-10 was that he did not go back to the solicitor's office after the deceased died (and then said he did not remember - at T 91.12-13). Mr Chakty said that he gave a mobility parking card to show 100 points of identification but that the one he gave to the solicitor was expired - and then he took a photograph of a card at the deceased's home and sent it to Mr Conti (T 92.7-20).
8. The difficulty with Mr Conti's evidence (as Mr Daniel's Counsel points out) is that the first card (that which was being renewed on 4 November 2019) had an expiry date of 4 December 2019, so that if that was the card shown to Mr Husseini at the time of execution of the 2019 Will it had not by then expired; and not only would his evidence then be inexplicable that he had seen an expired card but also there would be no reason for a copy of the later renewed card to be requested (and provided) for the file.
9. Moreover, Mr Daniel's evidence (on which he was not cross-examined) in his 12 May 2020 affidavit was that he had always had physical possession of the earlier permit (in which case it could not have been shown by Mr Chakty to Mr Conti on 31 October 2019).
10. Mr Husseini's affidavit evidence was that he was shown the deceased's mobility card and confirmed her identity. In cross-examination, Mr Husseini said (T 127.41-43) that he did not think he could have sighted the card that was in the Dot Legal file (i.e., the renewed permit), because he had been shown a card that had "expired". At T 128.3-33, Mr Husseini accepted that, as at 31 October 2019, the existing mobility card had not expired but adhered to his account that he had been shown an expired card.
11. For Mr Daniel, it is said that the unsatisfactory evidence as to the disability permits (Exhibit 6) does not redound to the credit of Mr Chakty's case. It is said (and the logic of this is irrefutable) that the photocopy of the mobility card in Dot Legal's file is of a card that did not exist on 31 October 2019; noting that the image in Dot Legal's file appears to be of a card that was still affixed to the letter or form that originally accompanied it when posted to the Starkey Street Property.
12. As explained above, as at 31 October 2019 the existing mobility card had not yet expired (and Mr Daniel's evidence that the mobility cards remained with him at all times was not challenged by Mr Chakty, nor was Mr Daniel cross-examined about it). Therefore, it would appear impossible for Mr Conti and Mr Husseini to have been shown an expired mobility card as at 31 October 2019 (unless it was some much earlier card and there was no evidence of that).
13. The evidence that Mr Chakty gave on the question of the mobility card (at T 91-93) makes clear that the mobility card issued in November 2019 was the only card that Mr Chakty had seen (that being the one an image of which he sent to Dot Legal after 31 October 2019). Further, it does not appear that Mr Chakty had any further contact with Dot Legal after 31 October 2019 (so the manner in which the photograph of the new permit that was issued after 31 October 2019 came to be on the solicitors' file is left unclear).

Death of deceased - 13 November 2019

1. On 11 November 2019, the deceased was admitted to Concord Hospital under the Palliative Care team (at around 10.30am). The hospital notes record that the deceased presented with lethargy, poor appetite, shortness of breath and nausea. The notes record that, on examination, shortly after admission, the deceased was found to have "nil" functional neurological disorder, slurred speech or facial droop. The notes record that the deceased experienced a "sudden deterioration" overnight and died in the early hours of 13 November 2019. The hospital notes record that Mr Daniel reported that the deceased was "confused with a possible visual hallucinations x1 yesterday" and that the confusion had been ongoing to the last few weeks.
2. On the very afternoon of the deceased's death, Mr Chakty organised a locksmith to change the locks to the Starkey Street Property. Mr Chakty deposed that he thought this was practical to secure the site (see at [48] of his 17 June 2020 affidavit). Mr Chakty deposed that he came to the premises with his uncle, Salim Hayek (the deceased's brother). There was evidence of a confrontation between Mr Chakty and Mr Daniel. Ms Tawk was present at some stage. There are differing accounts of what occurred on that occasion.
3. Ms Tawk's account is that a few hours after Mr Chakty had dropped by her home (at 4.00pm) after they had begun together to organise the funeral arrangements, she received a telephone call from Mr Daniel and that Mr Daniel told her that he had gone out to buy some groceries and returned to see Mr Chakty and Mr Salim Hayek in the house and a locksmith changing the locks.
4. Ms Tawk's account is that she made various accusations to Mr Chakty at the time (which on her account of the conversation he does not appear to have admitted nor for that matter denied). Mr Chakty in his affidavit denied Ms Tawk's account of the conversation but ultimately, in cross-examination, it became clear that all he denied was the attribution to him of a statement to the effect that "George should not get the house" (see T 88.1-48). Nothing ultimately turns on this (other than it indicates the animosity between the two).
5. Mr Daniel's evidence is that he changed the locks to the Starkey Street Property late in the afternoon of 13 November 2019 because he did not know who had keys to the property and he was worried about a break-in (T 216.17-35).
6. At T 89.21-50, Mr Chakty agreed that he knew that he was the executor under the deceased's Will but said that he did not take charge of the funeral arrangements because he had been told by Ms Tawk that arrangements had already been made by her and Mr Daniel (see at T 90.1-11).

Timeline of relevant events regarding the execution of 2019 Will

1. It is convenient at this stage to set out the relevant timeline of events in relation to the execution of the 2019 Will as emerges from the above. This may be summarised (and my findings in that regard are) as follows.
2. On 23 October 2019, Mr Chakty (in the presence of his wife, Juliette) had a conversation with the deceased about her 2014 Will. I do not accept that the deceased instigated this conversation. I find that it is more probable that Mr Chakty did so, in circumstances where he knew that the deceased was in ill-health (and must have observed her deterioration since May 2019) and wished to confirm the main beneficiary of the deceased's Will.
3. On Mr Chakty's own account, he read the 2014 Will to the deceased a number of times (suggesting that the deceased was having difficulty comprehending what he was saying) and he made at least two suggestions as to changes for the Will (first, to correct the misspelling of his name - which he mentioned twice and must have therefore have had some concern about - and to include some "missing" family members from the Will). Mr Chakty's evidence is that there was no discussion about Mr Daniel in the context of the percentages (and that is not surprising as he was not under that Will to share in the proceeds of sale of the Dunstaffenage Street Property; but, rather, was to inherit outright the Starkey Street Property and to take the residue of the estate).
4. I accept that it is possible that on this occasion the deceased expressed concern at the provision made for Mr Daniel's son in the event that Mr Daniel predeceased her. I cannot accept without corroboration that the deceased indicated that she wished to change her Will such that the Starkey Street Property not be left to Mr Daniel.
5. I consider that the taking of photographs on this occasion is a telling indication that Mr Chakty perceived that there might in the future be a need to establish that the deceased was of capacity - such need to establish capacity could only have arisen if Mr Chakty was contemplating that the deceased might be persuaded to make a new Will (and could only have been of use to him if that new Will were in his favour).
6. On his own account, Mr Chakty told the deceased that he would draft something overnight. At that stage, as he accepts, Mr Chakty did not know what the deceased's testamentary intentions were in relation to Mr Daniel (save that he maintains that she did not wish him to have the Starkey Street Property).
7. Mr Chakty then contacted two solicitors (Mr Stewart and Mr Bazouni). Mr Stewart advised Mr Chakty (without being appraised of the full situation) to obtain the services of a solicitor and interpreter and to have the deceased neurologically assessed. Mr Chakty sought Mr Bazouni's second opinion (presumably this could only have been as to the advice in relation to the steps Mr Stewart had suggested be taken). Neither was called to give evidence of those discussions with Mr Chakty.
8. Mr Chakty also took steps to locate an interpreter on the internet; and recalled having met Mr Nahas. I find that Mr Chakty arranged with Mr Nahas for him to translate (or "interpret") the 2014 Will to the deceased.
9. On 25 October 2019, Mr Chakty and his wife arranged an appointment with Dr Tadros for the purposes of obtaining a referral to a neurologist for the deceased. I accept that there is no note of any assessment by Dr Tadros of the deceased on that date.
10. On 26 October 2019, there was a meeting at Mr Chakty and his wife's house in Yagoona at which Mr Nahas "interpreted" the 2014 Will to the deceased; and Mr Nahas made contact with and introduced Mr Chakty to Mr Conti.
11. Although not in evidence, I accept that it is probable that Mr Chakty sent to Mr Conti on 27 October 2019 either a draft Will or draft notes for a Will; and that Mr Conti then sent those to Mr Aziz (with whom he had already spoken about the retainer). Mr Aziz then began drafting a Will based on a basic template that he had used before. His instructions as to its contents can only have come from whatever was provided by Mr Chakty to Mr Conti. There is no suggestion that he ever met with either Mr Chakty or, more importantly, the deceased.
12. Mr Chakty said that he picked up a draft Will from Dot Legal on 28 October 2019. There is no copy of that draft in evidence. Mr Husseini received instructions on or about 28 November 2019 from Mr Aziz as to the execution of the Will by the deceased.
13. Both Mr Aziz and Mr Husseini refer to "back and forth" instructions about the content of the Will but there is no written (or oral) evidence of these other than some references to the naming of godchildren. It is said that there were three or four drafts of the Will (presumably in the period from 27 or 28 October 2019 to 30 October 2019); however, none of these alleged drafts was in evidence.
14. On 30 October 2019, Mr Nahas "interpreted" a document that he identified as the 2019 Will (although ultimately Mr Nahas was not sure about whether it was a facsimile of the document which ultimately was executed the following day). This document must have been the document approved as the final draft (by Mr Chakty) and picked up by him between midday and 2.00pm that day. The deceased's expressed concerns at that stage seem to have been as to her named godchildren being included in the Will.
15. On 31 October 2019 the final Will was executed. Mr Husseini only recalled printing one draft of the document (which he had seen and reviewed only for the first time that morning); Mr Nahas seemed to recall two copies, one of which was provided to him to facilitate his "interpretation" thereof. Mr Nahas "interpreted" the document again to the deceased.
16. Any instructions as to changes to the draft Will can only have come from Mr Chakty. No solicitor appears ever to have sat down with the deceased to confirm or obtain her instructions before 31 October 2019 (nor did Mr Conti) and the process followed on 31 October 2019 by Mr Husseini does not satisfy me that he properly understood the deceased's instructions.
17. I reject the contention put for Mr Chakty that the change of the deceased's Will was at the deceased's instigation; and I reject the contention that the instructions were from the deceased and then Mr Chakty (see, for example, T 1.47-50). Rather, the agitation for the changes to the Will (even down to the spelling of his name) came from Mr Chakty after a process by which the deceased was subjected to multiple readings of the 2014 Will; no doubt confusing explanations as to percentages (since Mr Chakty was not able even in the witness box to give a coherent explanation of what he told the deceased); and at a time when the deceased was clearly in ill-health (and there is reason to suspect she had deteriorating cognitive ability).

Documentary evidence from Dot Legal file

1. Annexed to Mr Husseini's 20 August 2020 affidavit were documents described by him as various emails, documents and file notes that were in the original file of the deceased. Those were: a colour copy of a mobility parking scheme card in the name of the deceased with an expiry date of 5 December 2024; a Medicare card of the deceased; an RSL Club member card; a number of emails (without attachments but apparently attaching PDF copies of documents - see below) and a file note that Mr Husseini says was in his handwriting.
2. The file note included the following entries: 31/10/19: Saw the client & advised her about the Will. Interpreter was present & explained the will to her. 13/11/19: Emailed George Khoury, notifying him of the new will. 14/11/19: Saw the will, noticed there is a one letter in the name of the client.
3. The emails were as follows. An email from Dot Legal (with Mr Aziz' details at the foot of the email) sent at 5.57pm on Monday, 28 October 2019, addressed to 'Mr Law'; 'michael@dotlegal.com.au'; with the subject: "Bryan - Wills" apparently attaching "Will Final.pdf". An email from Dot Legal with the same details at 6.19pm on 28 October 2019 addressed to michael@dotlegal.com.au and copied to 'Mr Law' with the same subject line, attaching a Dot Legal Tax Invoice. An email with the same details sent on 5.13pm on 30 October 2019 to michael@dotlegal.com.au and copied to 'Mr Law" and to namat@dotlegal.com.au with the same subject line and attaching an interpreter's certificate, with the message "Dear Michael, Please find attached a certificate for the interpreter. Just a few details need to be filled out and signed by the interpreter". An email with the same details sent on 5.29pm on 30 October 2019 to namat@dotlegal.com.au and to 'Mr Law", with attachments "Final Will.pdf; Interpreters certificate" and requesting that "Namat please print both for Michael". Finally, two emails sent on 20 November 2019; the first at 12.05 pm from Mr Aziz to Mr Conti requesting that he forward a letter to Mr Chakty for his approval (being an attached letter to Danny Eid, the solicitor for Mr Daniel) and an email at 12.30pm from Mr Aziz to Mr Eid attaching the letter (presumably by then approved by Mr Chakty).
4. There were no notes produced of any instructions for the drafting of the 2019 Will, nor any copies of draft Wills or communications in relation thereto.

Video evidence

1. A number of videos (referred to in submissions as the Arabic videos) were shown of the deceased in various situations and at various times (although mostly in October and November 2019). An IT expert (Dr Allan Watt of AWDF, an independent expert witness in digital forensics, appointed as single joint expert in the proceeding by the Court on 26 November 2021) was able to examine the metadata for some but not all of the videos. Dr Watt provided two reports: his first report of 3 December 2021 and a supplementary report of 13 December 2021. Dr Watt was unable to examine the mobile device that was used to record the videos, as he had been advised that it was lost. The videos were accessible on Mr Chakty's current device within the "cloud"; however, Mr Chakty's lawyer refused to allow Dr Watt access to those files to facilitate their authentication in his first report. This was rectified in Dr Watt's supplementary report.
2. There were twelve Arabic videos in total, regarding which Dr Watt reached the following conclusions. The first, second, third, fourth and tenth videos were stripped of metadata (due, for example, to being sent through a messaging application, or being created on a different device) and have various other discrepancies which rendered Dr Watt unable to authenticate the date and time at which those videos were created. Dr Watt concluded that these discrepancies were inconsistent with the other seven videos, which were ultimately found to contain valid metadata. The fifth, sixth, seventh, eighth, ninth, eleventh and twelfth videos contained valid metadata and the dates and times at which those videos were taken could therefore be verified. Dr Watt concluded that the content within all the videos appeared to be unaltered.
3. There was a translation of the videos (with which there was some dispute in a few instances but broadly the translations were accepted as accurate). In the course of the hearing, only the second through to the twelfth videos were played to the Court.
4. Put broadly in the order in which it is said the videos were taken (and not the order in which they were shown in Court) the videos depicted the following (with my lay observations added).
5. Arabic video 11 - This video was taken on 18 May 2019 when the deceased was in hospital following a myocardial infarction. It is significant because it provides a baseline of sorts against which the later videos can be compared. (Dr Watt says that the metadata was stripped from the eleventh video, which appeared to have been created on 18 May 2019 at 1.20pm.)
6. Arabic video 2 - Dr Watt could not obtain the metadata for this video and so could not determine the date on which it was taken. Mr Chakty contends that this was taken on 23 October 2019. The deceased was, to my observation, looking very frail and was not very responsive to questions (saying "I don't know" in a weak voice). The transcript of Arabic video 2 records a conversation between Mr Chakty and the deceased as to the beneficiaries under her Will. The deceased's answers to Mr Chakty's questions appear to me to be uncertain, and not entirely responsive to the questions asked.
7. Arabic video 12 - Mr Chakty places this video around 23 October 2019. Mrs Chakty appears in the background to this video. Therefore, it is reasonable to conclude that it was taken during the visit on 23 October 2019 (this being the only occasion in September and October 2019 on which Mr Chakty says his wife visited the deceased at the Starkey Street Property). (Dr Watt's report is that the metadata was stripped from this video which appears to have been created on 23 October 2019 at 12.40pm.)
8. Arabic video 9 - The metadata was stripped from this video - the expert suggests that this video was filmed on 24 October 2019 at 9.58am. It depicts Mr Chakty in the deceased's loungeroom with Mr Chakty, who offers the deceased water.
9. Arabic video 6 - Mr Chakty places this video as being taken on 24 October 2019. Dr Watt's report stated that this video was filmed on 24 October 2019 at 10.23am which would place it before Arabic video 3. It was edited on 27 October 2019 but Dr Watt could not determine the nature of the edits. It depicts a blood test being taken.
10. Arabic video 3 - Mr Chakty places this as being taken around 24 October 2019. Dr Watt concluded that the metadata had been stripped from this video but that the file name suggested it had been recorded on 24 October 2019 at 1.36pm. This is what might colloquially be described as the "mashed potato" video because the deceased is there asked on a number of occasions if she wants mashed potato and gravy for lunch - to which the deceased is either non-responsive, gives an uncouth response, or says no before ultimately agreeing. Mr Chakty relies on this video as showing the deceased counting money in her hand and he is shown there as joking about how much money to take. While Mr Chakty submits that this shows the deceased as able to recognise money, it seemed to me that the deceased looked confused and was fumbling with the coins. The translations of various aspects of this video were in contention, namely whether the deceased said of a pictured relative "are you in my book" or "now you can bequeath for her", and whether in response to Mr Chakty's suggestion that the deceased make provision for all of her nephews and nieces in her Will, after making an offensive gesture, the deceased said "I wrote them" (presumably meaning that they were provided for in the Will) or "I want to kill them".
11. Arabic video 4 - Mr Chakty places this video as being taken around 3 November 2019. The metadata was stripped from this video but the expert says it was likely filmed on 3 November 2019 at 11.41am. The deceased appears very frail; her arms seem little more than skin and bone, with both the deceased and Mr Chakty remarking upon this; and the deceased does not appear to be making much sense in what she is saying. In Arabic video 4 Mr Chakty again offers to get the deceased mashed potato and gravy. Mr Chakty is depicted asking the deceased for six dollars, and the deceased appears to be having difficulty counting the moneys, eventually leading Mr Chakty to intervene. The deceased expresses difficulty speaking, and remarks that she is tired.
12. Arabic video 5 - According to the metadata, this was taken on 9 November 2019. This video depicts the deceased struggling with her clothing and Mr Chakty offering to assist the deceased. The deceased does little more than groan in this video. Dr Watt says that this video was edited on 13 November 2019 (which I note is the date of the deceased's death) which Dr Watt concluded cast doubt on its authenticity.
13. Arabic video 7 - Mr Chakty places this video as being taken on 8 November 2019. The deceased is sitting in her chair, looking very timid. Mr Chakty prompts the deceased to say hello to his wife Juliette, who presumably was the intended recipient of the video. Mr Chakty asks the deceased repeatedly whether there is anyone else she would like to speak to.
14. Arabic video 8 - The expert places this video as being filmed on 8 November 2019 at 2.22pm and edited on 13 November 2019 at 5.53am (i.e., shortly after the deceased's death). It depicts the deceased being massaged. The deceased appears to be somewhat surprised by the massage, and asks Mr Chakty what he is doing.
15. Arabic video 10 - The file name of the tenth video suggests that it was created on 2 November 2021, which, according to the IT expert Dr Watt, demonstrated that this was not an original video, and was likely created on a different device to the other videos. The metadata was stripped from the tenth video, and thus the date and time of its creation could not be verified. Mr Chakty says that it was taken around October or November 2019. It cannot readily be placed in sequence with the other videos. This video depicts the deceased with Mr Chakty in the deceased's loungeroom holding a phone; the person on the phone says to the deceased that they will talk to her later, to which the deceased simply responds "yes". It is unclear what this video is intended to demonstrate.
16. None of the above videos was particularly edifying to watch; nor in my opinion were they appropriately respectful of an elderly woman's dignity. They all depicted an elderly woman who appeared to be physically frail, exhausted and (apart from the May 2019 video) apathetic. It appeared that the deceased had great difficulty speaking; her voice was very hoarse in the various videos and she remarked on one occasion that she "could not talk". In the videos, the deceased often remarked that she felt ill, or tired. In many of the videos, Mr Chakty would ask many questions of the deceased, who did not appear inclined (or able) to engage in repartee.

Mr Chakty

1. At the outset, I note that an issue arose on the first day of the hearing, when Mr Chakty was accused of having spoken to his wife during the luncheon adjournment about his evidence (while he was still in the course of cross-examination; and contrary to the direction I had given in that regard). Mr Chakty denied that he had done so (and his wife subsequently also denied this - see at T 97.13-26). Mr Daniel's solicitor (Danny Eid) swore an affidavit on 8 February 2022 deposing to overhearing such a conversation and that it was about Mr Chakty having been asked questions about the photographs taken in the bedroom (on 23 October 2019).
2. Mr Eid was cross-examined about this evidence (T 183) and was not shaken in cross-examination. I accept Mr Eid's account of events. It would be a serious thing for an officer of the Court to give a false account of such an event; and there is nothing inherently implausible in his account. Moreover, the conversation that he overheard was relatively innocuous in its content. One would think that if Mr Eid had been minded falsely to concoct such a conversation he would have put forward an account far more damaging to the witness' credit. The suggestion that the account was affected by the fact that Mr Eid had stood behind a tree (no doubt so he would not be seen eavesdropping on the conversation) goes nowhere since it is not suggested that there was anyone else who might have had such a conversation in his vicinity at the time. Therefore, I accept Mr Eid's account as the more probable. That said, I do not place any weight in terms of credit on this incident. Mr Chakty is not a legal practitioner and no doubt would have found the process of giving evidence stressful. I am prepared to accept that any such conversation was not intentionally in breach of the direction I had given Mr Chakty not to discuss his evidence with anyone - and the account of what was said did not suggest that there was any forensic advantage likely to have been obtained by Mrs Chakty being told that there were questions about why photographs were taken in the bedroom of the deceased on the occasion in question.
3. In general, however, Mr Chakty's account of events was confused and imprecise in terms of the timing and largely self-serving. There was some inconsistency - for example, his evidence that he had called a number of solicitors on 23 October 2019 (which suggests a few) whereas he had called two (Mr Stewart and Mr Bazouni); the timing of the meeting with Mr Nahas at Yagoona on 30 October 2019; the number of times that he had visited Dot Legal's offices; and, most relevantly, how and when he provided a draft Will and/or notes to Mr Conti or the offices of Dot Legal. For someone who apparently saw an opportunity to photograph and record the deceased for the future, it is perhaps surprising (and maybe telling) that Mr Chakty did not keep or produce the draft Will or and/or notes that he had prepared. If those were sent to Mr Conti by email one would have thought there would be a record of them. Given his obvious self-interest, I treat with considerable caution Mr Chakty's evidence of his conversations with the deceased.
4. Further, I reject the submission (repeatedly made) that Mr Chakty acted at "arm's length" in relation to the execution of the 2019 Will or that this was an arm's length transaction. (There is much force to the observation of Mr Ellison SC for Mr Daniel that the more appropriate anatomical expression is that he was "up to his neck in it".) It was abundantly clear from the chronology of events that Mr Chakty was concerned to ensure that the deceased changed her Will before she died (at the very least that she correct the misspelling of his name) and that he had numerous conversations with her about the Will and the changing of the 2014 Will in the days leading up to the execution of the 2019 Will. The suggestion that Mr Chakty was disinterested in the Will being changed (or that he considered it up to the deceased whether or not to change her Will) is risible.
5. True it is, that Mr Chakty arranged an interpreter (Mr Nahas) to interpret (or, as is said from time to time in the affidavit evidence, to explain) the respective Wills to the deceased; and whether or not that was strictly necessary (given that I have found that the deceased could speak English during her lifetime) there is nothing inherently suspicious about this. (While a decreasing ability to speak English or a reversion to her native language - and hence a perceived need to engage the services of an interpreter - might have indicated increasing cognitive impairment, this was not explored in the evidence and therefore this would be mere speculation.) Mr Chakty's account that Mr Stewart advised him to engage an interpreter makes sense if (as seems to have been the case) Mr Chakty did not tell Mr Stewart that the deceased could speak English.
6. As to the retainer of Dot Legal (rather than the solicitor with whom Mr Chakty had dealt in the past or Mr Bazouni), that too is explicable insofar as Mr Chakty seems to have sought to deal with persons known from the Arabic community and the introduction to Dot Legal was through the translator, Mr Nahas, who knew of Mr Conti. However, the involvement of Mr Conti and Dot Legal hardly assists in demonstrating that this was an arm's length transaction. Other than a brief telephone conversation between Mr Conti and the deceased, no one from Dot Legal took any instructions directly from the deceased; and no one from Dot Legal explained in any substantive way the 2019 Will to the deceased. The proposition that this was a simple estate or a simple Will (albeit that by the same token Mr Chakty's belief was that it was a complex document that required explanation in Arabic) is not to the point. There is simply no evidence that suggests to me that there was any testing by the solicitors of the deceased to ensure that the deceased knew and understood the contents of the Will. Mr Aziz was not involved at all (other than drafting a basic Will from instructions received from Mr Chakty through Mr Conti and giving equally basic instructions to Mr Husseini as to what to do in order to satisfy himself that the deceased knew and approved the contents of the Will); and Mr Husseini's evidence does not satisfy me that he had any real involvement in explaining the contents of the 2019 Will to the deceased. One would have thought that a cursory glance at the 2019 Will would have revealed that there was no clause dealing with the residue of the estate (let alone that the deceased's name was misspelt). Indeed, Mr Husseini expressed only a vague familiarity with the Banks v Goodfellow (1870) LR 5 QB 549 (Banks v Goodfellow) criteria, saying he remembered the case from college of law (see at 131.13-15). Therefore, the suggestion that involvement of Mr Nahas and Dot Legal in some way rendered the process arm's length and independent of Mr Chakty cannot be accepted.
7. The advice that Mr Chakty received to obtain a neurological assessment was simply not followed (apparently once it was appreciated that there would be some delay involved in seeking that assessment); and the "check up" with Dr Tadros seems to have been perfunctory (on Mr Chakty's account there being some jokes as to the deceased leaving everything to Dr Tadros and a statement that the deceased was "fine", without any suggestion that there was a formal assessment undertaken as to the deceased's capacity on that occasion - and there are no notes of the consultation on 25 October 2019 in that regard).
8. For completeness, I note that on the first day of the hearing I refused an application on behalf of Mr Chakty to file an affidavit made on 4 February 2022 by Dr Tadros (which I was told deposed to Dr Tadros not having noticed any confused state or disorientation of the deceased). The reason I refused leave for that evidence was that it had been served very late (the Friday before the commencement of the hearing, which was on 7 February 2022). Complaint was made by Senior Counsel for Mr Daniel that this would cause difficulties in relation to cross-examination and I accepted the force of that complaint. I was concerned also that delay in permitting time for this belated evidence to be addressed would prejudice the hearing dates. There was no explanation as to why this evidence could not have been obtained and served at a much earlier time (there having been directions made by the Succession List judge as to the service of evidence and the matter having been set down for hearing some time previously).

Mr Conti

1. Mr Conti affirmed an affidavit on 27 March 2020, in which he deposed that he is a paralegal and fluent in both English and Arabic (see at [1]), that he has been working with various firms and mainly assists solicitors with explaining matters to clients in Arabic and to facilitate the obtaining of instructions and that a large portion of his work is unpaid (see again at [1]). He deposed that he obtains many legal enquiries from the wider Arabic speaking community and then refers appropriate cases to the solicitor and that he used this "method" with Dot Legal and with the deceased's "wills matter" (see at [2]).
2. In cross-examination, Mr Conti said that he is not working currently as he is not well (see at T 111.8-10). Mr Conti gave evidence that he had studied for a diploma in legal studies in 2015 and 2016 and had worked as a paralegal from 2016 for a number of firms (T 111.26-50, 112.1-4). Mr Conti does not appear to have taken notes of the conversations to which he deposed but said that he communicated most of it to Mr Aziz (T 112.21-24).
3. Mr Conti was unable to give much detail as to the process of the drafting of the Will. He confirmed that the deceased had told him (in the initial conversation) that Mr Chakty was going to "sort it out" and that Mr Nahas had told him that Mr Chakty was going to send a draft of the Will (T 112.26-32). Mr Conti confirmed that the next day (which must have been 27 October 2019) he received the draft Will (which must have been the version Mr Chakty says he prepared from the internet) and that he sent that will to Mr Aziz. Mr Conti does not appear to have had any involvement other than as a conduit for instructions in relation to the Will.
4. Mr Conti readily explained that his references to the "client" in his affidavit were to Mr Chakty and that he had not met face to face with the deceased until she came to sign the Will on 31 October 2019 (see T 113.33-42). Mr Conti confirmed that the instructions in relation to the amendment to refer to godchildren came from Mr Chakty and that his reference to the "client's instructions" in his affidavit at [10] was a reference to instructions from Mr Chakty (specifically to add "godchild" and some names) (T 114.3-10).
5. Mr Conti confirmed in cross-examination that on 31 October 2019 Mr Chakty came into the solicitor's office with the deceased and the interpreter and Mrs Chakty; and that he had checked the deceased's passport and "disability card" and made a copy for the file (T 114.38-43). (It is not possible that the photograph on the file is one taken by Mr Conti at the time, for the reasons already explained. Hence, Mr Conti's evidence cannot be correct in this regard.) Mr Conti said that he was not aware of the misspelling of the deceased's name on the Will at the time (T 115.16-22).
6. After Mr Husseini's evidence as to the mobility card, Mr Conti was recalled. His evidence was (T 134.22-42) that the first original mobility card was expired as well as the passport so that he said "we did request" the deceased and Mr Chakty to see if they could obtain some new mobility card; and he said that Mr Chakty did and he sent it to them. Mr Conti said that this was a few days after the execution of the Will. Mr Conti could not recall if Mr Chakty brought it personally or made a copy. Mr Conti maintained at T 135.3-4 that the card he saw on 31 October had expired. (This is untenable for the reasons explained earlier.) Mr Conti then said (at T 135.6-26) that he could not really recall if it was expired or not but was adamant that they asked for a new one; saying that he could not recall exactly what the issue was.

Mr Husseini

1. Mr Husseini affirmed two affidavits on 27 April 2020 and one (clarifying his earlier affidavit as to the 31 October 2019 events) on 20 August 2020. In his main affidavit affirmed 27 April 2020, Mr Husseini deposed that he was admitted to practice as a solicitor on 12 July 2019, having completed degrees in law and accounting at Macquarie University in 2018; that he has been employed by Dot Legal since his admission; and that the "principle" (evidently a typographical error) solicitor of that law firm is Mr Hasan Aziz.
2. In cross-examination, Mr Husseini confirmed that Mr Aziz is the only principal of the firm, Dot Legal; and that at that time Mr Aziz was in Pakistan. Mr Husseini said that he thought the last time Mr Aziz had been in Sydney was November 2019 (T 118.18-20); that Mr Aziz "comes and goes on and off"; and that the last time he saw Mr Aziz in the office was before the 2020 pandemic but that he spoke to Mr Aziz almost every day. Mr Husseini confirmed that he does not speak or understand Arabic.
3. Somewhat surprisingly (since Mr Husseini had only recently graduated - in July 2019), Mr Husseini was unable to remember what subjects he had studied for his law degree (T 119.1-26) believing there were 11 compulsory subjects and the rest were electives. The only subject he could remember he had studied was copyright law. Therefore, it is unclear whether Mr Husseini had studied or had any familiarity with the law of succession; although Mr Husseini's evidence was that as at October 2019 he remembered Banks v Goodfellow from college of law (T 131.13-15).
4. Mr Husseini met the deceased only once - on 31 October 2019 when she came to sign the Will; and he had nothing to do with the drafting of her Will (T 119.28-34). Mr Husseini in his affidavit had deposed that he obtained "the unexecuted copy of the will". In cross-examination he could not remember if there was one copy or not but then said his usual practice was to make only one copy (see at T 119.48-50). Pausing here, as I subsequently clarified with Mr Husseini (see T 130.23-49), at the time of the execution of the Will on 31 October 2019 he cannot have had any "usual practice" as such - this being the first time he had facilitated the printing of a Will for execution by a client (see T 130.47-49); and I would infer the first time he had witnessed the execution of a Will by a client.
5. Mr Husseini's evidence was that he did not explain the Will, the interpreter did (although that was in Arabic so he could not have known what the interpreter was saying); that there was some conversation in Arabic; and that he saw the deceased nodding (but did not remember her smiling) (see at T 120.11-16). Mr Husseini's assessment that the deceased appeared to understand the Will was because of the way that she looked and responded (T 120.26-38).
6. At T 121.4-15, Mr Husseini said that he had no record of any conversations and he was unable to assist with any detail as to any questions the deceased had or any answers he had given. Mr Husseini was not aware that Mr Chakty had organised for the deceased to see a neurologist; and did not realise that the name had been mistyped (see at T 121.45-50). At T 122.1-20, Mr Husseini said that when Mr Conti came back into the office to witness the signatures, the typographical error was picked up (but this is inconsistent with Mr Husseini's own file note of 14 November 2019 and it makes no sense that there would not have been a correction if the error had been appreciated at the time). Mr Husseini then clarified this by saying that it was not at the moment of signing but that it was when Mr Conti came back into the office to witness the signatures (this is equally problematic since it is Mr Conti's evidence that the deceased signed in his presence) (see T 122.16-44).
7. At T 122 and T 123, Mr Husseini twice said that his memory was quite hazy. Giving him the benefit of the doubt (and assuming that he was attempting to give his honest recollection of events), that is obvious.
8. As to whether the whole file had been produced, Mr Husseini was similarly vague - he denied that he had "cherry-picked" documents from the file to produce in evidence; however, he also said that the file was both digital and physical; that there may have been a few file notes that Mr Conti had in his possession that weren't in the file; and that there may have been files or file notes that had been lost, or to which he did not have access (T 123.32-37).
9. After the 31 October 2019 execution of the Will, Mr Husseini did not recall having anything further to do with the deceased and had nothing to do with Mr Chakty (T 124.4-18); nor any further conversations with them.
10. Mr Husseini then said that he remembered a conversation with Mr Aziz in which he said Mr Aziz told him to fix the spelling but he did not remember when that was and he did not seem to have any appreciation of the difficulty with the proposition that the spelling could be "fixed up" after the Will had been signed (without some further testamentary document) (T 124.20-27).
11. Taken to his handwritten file note of 31 October 2019 (to the effect that Mr Husseini "saw the client and advised her about the will. Interpreter was present and explained the will to her", Mr Husseini corrected this to "I explained the will to her" (see at T 125.25-42). However, there is no evidence as to what explanation, if any, Mr Husseini says he gave to the deceased.
12. As to the sending of the email to Mr Khoury notifying him of the new Will on 13 November 2019 (the date of the deceased's death), Mr Husseini said that Mr Aziz told him to do it and that he only followed Mr Aziz' instructions (see T 125.44-50, T 126.1-9). (An obvious difficulty with this is as to how anyone at Dot Legal knew that Mr Khoury had had anything to do with any earlier testamentary instruments - since there is nothing to suggest that Dot Legal was provided with a copy of the 2014 Will.) Mr Husseini could not remember when he learnt that the deceased had died (T 126.27-46) and said that he thought he was advised by the new solicitor (but if so, this does not explain the coincidence that the communication to Mr Khoury about the 2019 Will was on the day of the deceased's death). At T 126.44-46, Mr Husseini said that at the time of the 13 and 14 November file notes he did not know that the deceased had died; and he said that he did not know who Mr Khoury was (T 127.16-17).
13. Mr Husseini thought that Mr Conti had photocopied the mobility card that was in the file (T 127.35-36). Mr Husseini said that he did not think he had sighted "this particular card" because he remembered that the deceased had provided him with an expired mobility card (see at T.127.41-43). Mr Husseini said that he saw the one that was expiring on 4 December 2019, and he then said that when he was shown the one expiring in 2024 he remembered seeing another that was "now expired". Mr Husseini had no explanation as to how the 2024 card came to be copied and on the file rather than the 2019 card, saying that "you'd have to ask Michael Conti about that" (see at T 128.37-39).
14. Mr Husseini clearly had little involvement in the 2019 Will matter beyond formally witnessing the Will. Mr Husseini admits that he did not draft the Will; he did not take any instructions from the deceased in relation to the Will; and he was unable to shed any light on what it is that he said he explained to the deceased in answer to the questions he says that she had from time to time during the interpretation of the Will to her. I accept that Mr Husseini was only newly qualified as a solicitor at the time but the process by which he seems to have satisfied himself as to the deceased's capacity (and her knowledge and understanding of the Will) is not what is expected of a solicitor practising in this area of the law (and would hardly satisfy the model practice in that regard). I fail to see how Mr Husseini could properly have formed the view to which he has deposed that the deceased appeared to understand the Will. Moreover, Mr Husseini's admittedly "hazy" memory means that I can place no confidence in the reliability of his memory.

Mr Aziz

1. Mr Aziz gave evidence via audio-visual link from Pakistan. Mr Aziz confirmed in chief that the contents of his unexecuted affidavit were true (T 231.29-39).
2. In cross-examination, Mr Aziz said that the last time he had been in Australia was in January or February 2020; and that he had never met or spoken to either the deceased or Mr Chakty (T 232.14-39). Mr Aziz confirmed that at the time he began drafting a basic Will (see at [7] of his unexecuted affidavit) he had no instructions directly from the deceased and said that "I was being given instructions from my paralegal at the time" (see T 233.7-11).
3. Mr Aziz said that he gave instructions to Mr Husseini as to how to explain a Will to somebody. At T 233.30-32 he said that those instructions were: You must take instructions from the client, confirm their property and confirm their instructions and then ID and make sure they understand it.
4. When asked whether Mr Aziz had explained to Mr Husseini how one ensures that a client has understood the contents of a will, Mr Aziz responded "[b]y asking questions… I made it clear" (see at T 233.34-35).
5. With all due respect to Mr Aziz, this was hardly a sufficient (let alone comprehensive) instruction to a newly qualified solicitor who Mr Aziz must have known had little or no experience in such a matter.

Mrs Chakty

1. Mrs Chakty presented as a somewhat wary witness in cross-examination. For example, when asked if she had visited the deceased "countless times", her response was to ask "what does that mean"? (when these were the very words she had used in her own affidavit - see at [9]) (T 97.36-46). In cross-examination Mrs Chakty was unable to remember how often she had visited the deceased with her husband throughout September and October 2019 but said that they visited the deceased most weekends in that period (see at T 99.28-35).
2. Mrs Chakty was present with Mr Chakty and the deceased on both 23 and 25 October 2019 when photographs were taken of the deceased (and may have been involved in the making of the Arbaic videos - given that Mr Chakty featured in them and thus did not film all of the videos himself). It is not clear for what purpose Mrs Chakty thought the videos were being taken but nothing turns on this.
3. I make no adverse credit findings in relation to Mrs Chakty. I simply note that she has a clear personal interest in the outcome of the litigation (through her husband) and I treat her evidence of oral conversations with caution to the extent that they are not corroborated in writing or by independent evidence for that reason.

Mrs Kanaan

1. Mrs Kanaan is Mr Chakty's mother-in-law. Mrs Kanaan gave evidence through an Arabic interpreter (over audio-visual link from her other daughter's home).
2. Mrs Kanaan corroborated the evidence of Mr Chakty as to the deceased's visit to her home at Colo Vale on 26 October 2019 and Mrs Kanaan said (at T 105.13-29) that the deceased told her that the deceased was not happy about the way the Will was done and that he (presumably Mr Daniel) had done it according to his liking; that the deceased had told Mr Chakty that she wanted a "smart lawyer"; and that the deceased told her that she loved Mr Daniel but "can't for him to take everything", that Mr Daniel had "taken whatever he wanted for himself and then he had distributed the rest" (T 105.47-50). Mrs Kanaan also said that the deceased told her that she was scared of dying (T 105.38-39).
3. Mrs Kanaan presented as a truthful witness. I accept that she gave her honest recollection of the conversation on 26 October 2019; albeit perhaps unconsciously influenced by her personal view - to which she deposed - that the deceased should leave her estate to her family. It is significant to my mind that the deceased here affirmed her affection for Mr Daniel. The difficulty I have is that it is likely, in my opinion, that the deceased's comments about her 2014 Will were influenced by the long conversations that had taken place already with Mr Chakty about the 2014 Will (on 23 October 2019 and again on 24 October 2019). Moreover, the suggestion that Mr Daniel had been responsible for the 2014 Will having been done "according to his liking" is not established having regard to the uncontested evidence of Mr Khoury. Therefore, if the deceased had that perception (and the incorrect belief that the effect of the 2014 Will was that Mr Daniel would take everything), that seems likely to me to have been a perception induced or encouraged by Mr Chakty (though I accept that Mr Chakty gives a different account of this).

Mr Nahas

1. Mr Nahas affirmed an affidavit on 26 March 2020, deposing to his accreditation and experience as an interpreter. I accept that he has the appropriate accreditation and experience to have assisted in the translation or interpretation of the respective Wills to the deceased and I have no reason to doubt that he did so to the best of his ability.
2. Mr Nahas' memory of events was at times inconsistent with his affidavit (in that he recalled at T 171.34-50 that the first time he was called he went to Mr Chakty's house on that same day but in his first affidavit he deposed that it was a few days after this that he booked in a meeting - see at [7]). Mr Nahas confirmed that Mr Chakty had asked him (on 26 October 2019) if he knew a solicitor and that he gave Mr Chakty the name of Mr Conti.
3. Mr Nahas confirmed that he read the 2014 Will to the deceased in Arabic and that on that occasion he called Mr Conti and that the deceased had spoken to him. Mr Nahas also confirmed that he had interpreted the document on 30 October 2019 at Yagoona and then on 31 October 2019 at the offices of Dot Legal but was not able to say that the Will on 31 October 2019 was the same document that he had read at Yagoona (see T 174.46-49).
4. At T 175.9-25, Mr Nahas recalled that on 31 October 2019 there were two copies of the Will: Mr Nahas gave evidence that he had been provided with a copy by Mr Husseini, and he said that Mr Husseini had a further copy in his hand.
5. At T 176.15-45, Mr Nahas explained the difference between interpretation and translation. As I understand it, what is meant by this is that it was not necessarily a literal translation; rather, Mr Nahas "interpreted" the Will by expressing it in Arabic in simple or colloquial terms that he believed the deceased could understand. Mr Nahas had a memory of going through the percentages in the Will and the deceased would ask if that was what was written (T 174.20-27). Mr Nahas did not suggest that he gave any explanation of the legal effect of the Will.

Mr Daniel

1. I have referred above to Mr Daniel's evidence of events when going through the chronology of events. I regarded Mr Daniel as a credible witness and one whose account of events was plausible and consistent with the overall timeline of events. Moreover, his credit is not as relevant to the determination of the issues surrounding the deceased's execution of the 2019 Will, as he was not directly involved in those events.

Ms Tawk

1. Ms Sonia Tawk, the alternative executor named in the 2014 Will, is a niece of the deceased (and Mr Chakty's cousin). Ms Tawk swore an affidavit on 11 May 2020.
2. Ms Tawk deposed to conversations with Mr Chakty (which he denies) over several years before the deceased's death in which she says that Mr Chakty would raise the subject of the deceased's Will and query her (Ms Tawk) as to the identity of the beneficiary of the deceased's Will (see at [7] of Ms Tawk's affidavit). Ms Tawk deposed to Mr Chakty saying words to the effect that it was not fair for George to take everything and that the family should get it (see again at [7] of Ms Tawk's affidavit). Ms Tawk deposed to a conversation with Mr Chakty at some time between 23 October 2019 and 25 October 2019, at which time Ms Tawk deposed that Mr Chakty told her that he intended to make changes to the deceased's Will, and asked for her help, which Ms Tawk says she refused (see at [8] of Ms Tawk's affidavit). Ms Tawk was cross-examined about her account of this conversation with Mr Chakty (see at T 240.4-50, T 241.1-4). Mr Daniel submits that Ms Tawk's evidence was not disturbed in cross-examination, and should be accepted on the question of what Mr Chakty said as to Mr Daniel not inheriting the house at Starkey Street and his intentions to obtain a benefit under the Will.
3. I note that, in cross-examination Ms Tawk said, with the ring of truth, that everyone was asking about the deceased's Will. Her account of what Mr Chakty said also rings true (and, I note, is consistent with the views Mr Chakty expressed to the deceased to the effect that her estate should go to her family).
4. Ms Tawk also corroborated Mr Daniel's account that he had looked after the deceased (although, in what seems to me an obvious overstatement on her part, Ms Tawk deposed that this was every day for about 15 years until the deceased's death) (see at [5] of Ms Tawk's affidavit).
5. Ms Tawk also deposed to a feud between the deceased and Mr Chakty and his wife about 12 months before the deceased died (although she said that she was not sure what it was about) (see at [6] of Ms Tawk's affidavit; and see T 237.6-31, where Ms Tawk seems readily to have accepted that by the time of her death the deceased was probably wanting to see them). There were text messages to Mr Chakty's wife that were in evidence that show that Mrs Chakty was assisting from time to time in relation to the deceased's medical appointments and there was a text message from Ms Tawk to Mrs Chakty sent around Christmas in 2018 to the effect that the deceased "feels she upset you but didn't mean to" and that the deceased really missed Mrs Chakty (which Ms Tawk argues probably was because the deceased was not seeing Mr Chakty and his family at the time - see T 237.17-18).
6. I considered Ms Tawk to be an honest and voluble witness, who was genuine in her expression of concern as to the conduct of Mr Chakty (even if her views in that regard may well have been coloured by her obvious support for Mr Daniel and disapproval of Mr Chakty's conduct). Her evidence on particular issues had the ring of truth - such as her wry observation that the deceased used to ask about everybody and wanted everybody to be with her all the time (T 236.48-50); and her ready acceptance of the fact that everyone was wanting to know what was in the deceased's Will (see her evidence at T 239ff). I considered Ms Tawk to be genuine in her evidence that she felt sorry for the deceased because the deceased thought everybody was just using her for her money (T 239.39-43).
7. Ms Tawk had a tendency towards overstatement or exaggeration (such as the evidence that Mr Daniel had been the deceased's carer for about 15 years after her husband had died; and that from mid-2002 to 2003 he was constantly with the deceased "nearly every day" (see T 229.43-45); which even on Mr Daniel's account is not the case). Nevertheless, she spoke with sincerity as to the conversation with Mr Chakty (which she placed as occurring late on 25 October 2019) when she says he wanted her to try to help Mr Chakty to make sure that Mr Daniel did not get anything in the Will (and added that nobody wanted Mr Daniel to get anything) (see T 240.17-19). Ms Tawk was adamant that (although she did not know who was in the deceased's Will (T 240.47-50) and had said earlier that she did not even know if there was a Will - T 239.9-13) the deceased had told her a number of times that the deceased was leaving Mr Daniel the house in her Will and that the deceased would often remark that she had promised Mr Daniel (on Ms Tawk's account, in 2016 - see T 241.19-22) that if he were to look after her she would leave him the house, and Mr Daniel did so (see at T 241.1-22). (This is consistent with the provision to make the gift of the Starkey Street Property in the 2014 Will.)
8. At T 241.30-39, Ms Tawk gave an animated account of a conversation in which she says she told the deceased that "everybody wants to know what's going on - who you're going to leave this to" and that the deceased had said to her that she had asked Ms Tawk's cousins to look after her and they said they would not and so she needed someone to care for her because she was getting old; and that the deceased had said "to George if he looked after her she would leave him the house" (see at T 241.30-39). Ms Tawk candidly said that this was why she did not contest the Will.
9. For Mr Chakty, it is said that, other than the clear exaggerations in Ms Tawk's evidence of the length of Mr Daniel's care of the deceased, there is cogent evidence of the deceased, on video, complaining about Ms Tawk's conduct in the weeks and months leading up to death. Mr Chakty says that the translations of the video taken in October 2019 show that, when given a suggestion to seek Ms Tawk's assistance with changing her Will, the deceased rejected the involvement of Ms Tawk by stating that she had blocked her number (or, on Mr Daniel's account took off the telephone). Mr Chakty says that this is further supported by the reference in subsequent conversations with Mr Chakty (Arabic Video 4) that "she" "shut it down". Mr Chakty says that this was in reference to the deceased believing her number had been blocked by Ms Tawk. Mr Chakty says that this also lends weight to his account of the conversation with Ms Tawk regarding seeking her help with drafting a Will in accordance with the deceased's instructions.
10. I found Ms Tawk to be a genuine and co-operative witness, albeit talkative and prone to exaggeration. I do not consider that the complaints made by the deceased as to Ms Tawk blocking her telephone number are relevant to the issue of Ms Tawk's credit as a witness.

Mr Khoury and Mr Elmurr

1. Neither Mr Khoury nor Mr Elmurr was required for cross-examination and I accept their uncontested evidence.

Professor Peisah

1. Professor Peisah is an Old Age and Consultation-Liaison Psychiatrist and Family Therapist, and also a Conjoint Professor at the University of New South Wales.
2. Pursuant to Practice Note SC Eq 5, Professor Peisah was appointed by Hallen J as the parties' single joint expert. Professor Peisah provided a report dated 23 January 2021 annexed to her affidavit of 4 February 2021 and a supplementary report on 18 June 2021. Professor Peisah was asked to provide her professional opinion as to whether the deceased lacked the capacity to make the 2019 Will.
3. Professor Peisah conducted a review of the deceased's medical records (for the period of 12 months preceding the date of death) and was also provided with the pleadings and lay evidence (as at November 2020). Professor Peisah formed a retrospective diagnosis that: …it is more probable than not that Mrs Bryan suffered from two disorders of the mind, namely neurodegenerative vascular brain disease and delirium, and possibly, a third disorder of the mind, cerebral metastases on or around 31 October 2019.
4. Professor Peisah went on to conclude it was more probable than not that the deceased was: incapable of understanding the nature and extent of her property relevant to the disposition; incapable of evaluating the claims of those who might be expected to benefit from her estate; and unable to appreciate the nature of any significant conflict and or complexity in the context of her life situation and incapable of communicating a clear consistent rationale for the distribution of her property.
5. Mr Chakty unsuccessfully sought leave, in early 2021, by notice of motion, to adduce a competing opinion from Dr Jonathan Phillips AM, consultant psychiatrist (The Estate of Genevieve Bryan [2021] NSWSC 567 per Hallen J).
6. Complaint is made by Mr Chakty that, in her main report dated 23 January 2021, Professor Peisah has applied the case law on testamentary capacity and then determined that certain limbs of a "modified" Banks v Goodfellow test had not been made out due to a lack of evidence. It is noted by Mr Chakty that Professor Peisah prefaced her opinion by acknowledging her limitations as a retrospective expert, never having seen the deceased, whose mental state was not formally assessed.
7. The complaint by Mr Chakty is that Professor Peisah does not answer the question "whether the deceased suffered from any cognitive or mental impairment" rather the Professor phrases her opinion along the lines that there is no evidence of deceased of giving instructions to the standard outlined in Kerr v Badran [2004] NSWSC 735 (Kerr v Badran) per Windeyer J. Complaint is made that Professor Peisah is purporting to provide a legal conclusion. I do not read Professor Peisah's report in this way. I consider that Professor Peisah has set out what she understands to be the test and then is addressing whether on her retrospective view of the materials those matters are satisfied from her perspective as an expert psychiatrist. The parts objected to were largely read subject to relevance and weight.
8. Without any disrespect to Professor Peisah, what I found most useful was Professor Peisah's oral evidence - including her observations of the videos and her explanation of delirium and dementia (matters on which Professor Peisah clearly has expertise and which could not be said in any way to intrude on matters of legal opinion). As noted above, Professor Peisah concluded, based on her retrospective analysis, that the deceased had a neurodegenerative brain disease and that there was a probable episode of delirium on 31 October 2019. Professor Peisah adhered to that opinion (and cogently explained her conclusions) in her oral evidence, by which I was much assisted.
9. In Court, Professor Peisah watched the Arabic videos (albeit without the benefit of the translation) for the first time (as, to state the obvious, did I - but with the benefit of the translation and the criticisms of that translation in particular respects that are not here necessary to recount). As to Arabic video 11, which was around May 2019 (T 142), Professor Peisah considered (and I agree) that the deceased's mental state appeared to be different from the videos filmed, or purportedly filmed, in October and November 2019. Professor Peisah said (at T 142.40-50, 143.1-8): A. The video, the eleventh video on or around May 2019 her mental state does appear to be different from those on or around October/November 2019. It's - I don't want to put too much interpretation about matching the content but the video of May 2019 she appears to be more alert and more attentive, and you can see more variation in her affect. She was smiling and responding. Characterise many of those October/November videos, albeit much variation and constrained by the lack of content, but I do see a very large amount of passivity and a certain amount of perplexity. She - very little spontaneous speech. So she's able to respond to - when questions are specifically directed to her but sometimes she responds in a perplexed "I don't know" or "Aha" or she needs to be brought back. So there seems to be, and again I'm wary of over-interpretation without the translation, but just looking at that there seems to be an element of inability to focus and sustain attention, and a kind of a lethargy, almost depressed, certainly withdrawal characterising the latter. That's all I really can say. I'll leave it at that.
10. Asked whether she could relate anything seen on the videos that related to the retrospective conclusions in her reports as to the deceased's mental state on or about 31 October 2019, Professor Peisah said (at T 143.13-23): A. That appearance would be consistent with what we would describe as a hypoactive delirium possibly. As a psychiatrist assessing elderly people, frequently in this state, part of my clinical examination would be to watch that interaction and her affect, her responsiveness and her ability to sustain[] attention but that would be part of it. The next step would be to do a cognitive screen, which was never done. So I would need to actually confirm my hypothesis that she had a delirium. Based on that alone I would need to further inquire and some limitations on myself as a retrospective experts and normally what we would do is we would test her ability to concentrate, her orientation, her ability to recall a number of items. So there are very confirmed screening tools for delirium that we use in a hospital, I would use one of those.
11. Professor Peisah confirmed that one of the tests that she would have used would have been what is referred to as a mini mental state examination (MMSE). At T 143.31-46, Professor Peisah explained what is meant by "delirium" in the technical sense and, in response to a question from me, said that it is not the same as dementia: A. Delirium is an acute disorder, acute mental disorder of attention and cognition, intellectual function, caused by medical disturbance. Sorry, medical abnormalities, medical conditions. … A. No. No, very important difference. Dementia is a neuro-degenerative disorder, ie degeneration of the brain characterised by decline in intellectual function that just gets worse, and it's caused by a number of different pathologies. You would have heard of Alzheimer's Disease, vascular dementia, Lewy body dementia, alcohol-related dementia. Delirium is a completely different disorder of mind. It's the perturbation, a mental state that one gets as a result of medical conditions. In this state, there would be - there was multiple organ failures and she was in the dying state, and there were 13 - what I counted in this case, 13 what we'd call risk factors for delirium that makes it a highly likely state
12. Professor Peisah confirmed (at T 144.8-10) that: A. Within the limitations of not being there, your Honour, as a retrospective expert, in my opinion there's a high likelihood that she did have a delirium on or around 31 October.
13. As to the fact that this was not identified in the medical or hospital notes, it is relevant to note the evidence that Professor Peisah gave (at T 144.20-24) as to the difficulty of diagnosis of "delirium": A. … in hospitals we've been struggling with the identification of delirium in hospital settings for over ten years, and what we've done internationally is refined a number of very quick screening methods such as the confusion assessment method, but what I would use is the mini-mental state examination
14. Professor Peisah also referred in this context to a Confusion Assessment Method (CAM) test that would also be used (at T 144.20-24).
15. Professor Peisah was questioned as to the reference made in the report to a CT scan taken on 2 August 2019 and another on 11 November 2019 (see at line 259 and line 289 of Professor Peisah's report dated 23 January 2021). Professor Peisah emphasised that she is not a radiologist but that based on the description from the radiology reports, Professor Peisah noted that in November 2018 the brain neuro-imaging showed mild chronic small vessel disease and mild brain shrinkage or atrophy (see the reference at line 231 of her report dated 23 January 2021), that on line 264, there is a reference to chronic microangiopathic disease, white matter, low attenuation; and then in the final CT, moderate chronic small vessel disease and cerebral atrophy. Professor Peisah explained that there may be differences in the manner in which radiologists interpret scans but that, on the face of it, the reports appeared to indicate some progression. More important, Professor Peisah considered, was that the neurodegenerative vascular disease had not gone away ("it's stayed there and, possibly, has progressed").
16. Asked to explain how neurodegenerative vascular disease affects cognition, Professor Peisah said (at T 146.29-37): A. It confers a high likelihood of abnormality of cognition, but, most importantly - and, in fact, in some cases, it is associated with a diagnosis of vascular dementia, your Honour also mentioned before. Now, I have no evidence of vascular dementia here, but the most important relevance in this case is that it's probably one of the leading risk factors for delirium and, certainly, there has been much discussed about this in the medical literature in a recent paper in 2021 by Bugiani, B-U-G-I-A-N-I, in the Journal of Neurological Sciences last year which talked about the risk conferred by such neurovascular disease confirmed here on a CAT scan
17. Professor Peisah said that there were a number of factors ("her opioids, her constipation, her dehydration, her low sodium, or increased calcium, her renal failure, her heart failure, her pain, her dying state, that abnormality of the brain") that made the deceased vulnerable to developing delirium; and Professor Peisah said that such a condition would typically make someone more vulnerable to influence by others, pointing to international academic research in which she had been involved on the risk factors for undue influence, and testamentary capacity (referring to "the death bed state delirium and risk factors for undue influence").
18. Professor Peisah said (at T 147.44-50, 148.1-17): A. It's - cognition doesn't become susceptible to influence. Cognition - cognition is impaired, so cognition means intellect and it includes language, orientation and judgment. So, I suppose, the part of cognition that becomes - makes a person vulnerable to influence is their judgment. So, your judgment, but the other part of mental state or cognition is your apathy and withdrawal. It makes you amenable to influence, that apathy, that avolition, the passivity, kind of resignation, in that withdrawal makes you just amenable to any sort of suggestion. … A. What am I - that perturbation, incognition, as a manifest in delirium, makes you vulnerable to influence, yes. …
19. Professor Peisah accepted that this was a statement as to a general proposition, to which there are of course exceptions (see at T 148.19-21).
20. As to the Arabic videos, Professor Peisah considered that the "mashed potato video" was a perfect example of acquiescence (i.e., passivity and resignation that makes one amenable to suggestion) and contrasted this with the video from May 2019 where there was "much more of a spontaneity and a spontaneous generation of ideas" (see at T 148.36-41). Professor Peisah noted two aspects of the May 2019 video that were of relevance as a psychiatrist.
21. First, as to the deceased's affect. Professor Peisah said that in the May 2019 video the deceased's affect was reactive, whereas in the videos filed in October and November "her affect was kind of blunt. It had very minimal range" (see at T 149.1-2). Professor Peisah said that her affect in those later videos was "depressed and resigned" (demonstrating this in the witness box) and "[a]t times it was perplexed" (see at T 149.3-4). Professor Peisah noted that in the May 2019 video, there was a more of a reactiveness and a smiling, at times.
22. Second, which Professor Peisah said was particularly important to psychiatrists in relation to delirium, is attention "the ability to focus, attend and sustain attention". Professor Peisah observed that in the videos filmed in October and November "there was a much more of a kind of withdrawal, sitting back in the chair, just looking into space and occasionally when the person was asking questions, there was an attention, because the attention was drawn, but, otherwise, it was just this passive staring into space, at times, and sometimes, even that fiddling that went on in one of the tapes with the money, there was kind of a pre-occupation with that" (T 149.5-13). Professor Peisah said that in the May 2019 video "there was much more of an ability to attend to the questions and interact with the person" (see at T 149.13-15). Professor Peisah emphasised that these were subtle indications and this was just her preliminary impression.
23. As to the conclusion at line 792 of Professor Peisah's report that the deceased was "free of a mental disorder including delusions that influence the distribution of her estate", Professor Peisah explained in the witness box that she was there referred to a mental disorder as defined by reference to what she referred to as a modified Banks v Goodfellow test, i.e., not that there was no mental disorder that she could identify that interfered or influenced the distribution of the deceased's estate but rather that there was no evidence of delusions and hallucinations that influenced the distribution of her estate. Professor Peisah emphasised that her report did not mean that the deceased was free of a mental disorder that influenced her estate. In that context, Professor Peisah referred to line 756 where she had referred to disorders of mind "in the John Banks and the original Cockburn conceptualisation", noting that this "was disorders of mind were predominantly psychosis - schizophrenia, delusions and hallucinations" and that in contemporary times, the "conceptualisation of the most common challenges to testamentary capacity, the causes are more likely disorders of cognition because people live longer and so the disorders of cognition are the chronic, degenerative dementias or the acute deliriums" (see at T 150.35-44).
24. Professor Pesiah said (at T 151.34-50, 152.1-26) that for an assessment of testamentary capacity, what she does is: … an extensive examination that involves a global mental status that includes assessment of mood, affect, thought disorder, psychosis, delusions, hallucinations, and the[n] I supplement that with an extensive cognitive examination. The mini-mental state is not sufficient and not enough to assess testamentary capacity. I would usually use - it's a screen for finding out if people are cognitively impaired. I would use a more extensive comprehensive screen, particularly because a mini-mental state doesn't test frontal lobe function, so I would use something like the Addenbrooke's Cognitive Examination which has extensive frontal lobe judgment specifically because mini-mental state misses. You can have a very high mini-mental state and have quite impaired frontal lobe function because it doesn't test that. And then I would proceed with the functional part of the test which I go though each limb of the Banks v Goodfellow criteria and address and ask the actual questions: Can you tell me in your own words what a will is? Can you tell me what the general nature and extent of your asset[s], in your own words? Who are your beneficiaries? Why do you want to do dispose of the will in the way that you're choosing? And because of our developments in the field and some of our methodology that we've developed internationally, I would also ask: Are you aware of your previous will and why are you changing it? Now, all of these questions also need to - the person needs to be given an opportunity to be supported in this decision-making as per the United Nation Convention of the Rights of Persons with Disabilities. So if they don't - it's not a guessing game. I would have a list of their assets, and I might help them with that because as long as they are sort of supported in that decision-making, and they know - I might have the previous will with me. If they can't answer spontaneously, I might say to them, "Well, you did this last time; why are you changing it?" So very much I like the person to be able to spontaneously identify the limbs but I certainly think it's certainly worthwhile supporting this role, and indeed we talk about this in that specific death bed will paper where we say people have the right to make the wills that they're capable of making or to be supported to do so even in the delirious dying state. Sorry, it's a very long answer but it's - I actually think it's rocket - I do think it's rocket science and I think it's far more comprehensive than it's often made out.
25. Professor Peisah accepted that it is not possible to conclude anything about severity or the presence of clinical or cognitive impairment on the basis of a CT scan alone (see at T 155.15-27).
26. As to the reference in one of the CT scans to the parietal lobe, Professor Peisah accepted that this part of the brain deals with or processes sensory information (such as touch, taste, temperature) and said that the parietal lobe can be responsible for calculation. So, Professor Peisah said that it could affect aspects of cognition relevant to testamentary capacity (though she said she would defer to a neuropsychologist with more refined mapping of cognition with brain location).
27. As to the conclusion at line 330 of Professor Peisah's report, that it is more probable than not that the deceased suffered from two disorders of mind, neurodegenerative vascular brain disease and delirium and possibly a third disorder of the mind (cerebral metastasis) on or around 31 October 2019 (see T 156.16-28), Professor Peisah said that the neurodegenerative vascular brain disease is clearly established on three consecutive neuro-imaging CAT scans in November 201 and subsequently in August and November 2019 but emphasised that delirium has nothing to do with neurovascular brain disease.
28. As to the reference at line 355 of Professor Peisah's report to descriptions of the deceased's behaviour (such as throwing a shampoo bottle), Professor Peisah said that this was in reference to the possibility of having a minor neurocognitive disorder or mild cognitive impairment (i.e., a vascular-type dementia) and these were possible examples of disinhibition and aggression but she accepted that they were simple possible examples (and that it was possible that events might have been misinterpreted by others).
29. As to the disorientation reported in June 2019, Professor Peisah opined that it was unclear whether such disorientation was a manifestation of an early vascular dementia or whether, in fact, it was due to a delirium but she said that this was a very clear episode and a very typical example of disorientation (whereas other examples could be very weak - see T 157.15-23). Professor Peisah said that there were other subsequent examples that were more florid in August 2019, such as the deceased's "non-compliance, disinhibited and disorientation in August 2019 when she had a delirium when she was admitted" (see T 157.33-41). Professor Peisah said that as a retrospective expert it was difficult to disentangle whether it was delirium or a manifestation of a mild cognitive impairment. However, Professor Peisah was confident in her conclusion that the deceased was at risk of delirium based on the probability factors that (at T 158.35-38): A. Up to 83 per cent of people who are dying suffer from delirium, so there's that probability conferred by - and plus the risk of delirium conferred by the 12 risk factors plus documented delirium in the notes in August and November 2019.
30. Professor Peisah noted in this context that there were multiple references to the deceased as agitated, alert and confused, on multiple occasions, particularly on 2 August 2019, the day she was admitted to hospital (see at T 159.44-50).
31. Questioned as to the discussion in the offices of Dot Legal on 31 October 2019, Professor Peisah said (at T 161.14-25): A. Yes, with the solicitor, "I'm here to change my will." I'm here - on 31 October Ms Bryan's in the office of Dot Legal with Elias Chakty and his wife. When asked why she was there, she replied, "I'm here to sign the will. Show me the will. Can you double-check if the name and spelling is correct? Did you put in my godchild?" To me that suggests that she understood what a will was, and the other inference that's also backed on is - that substantiates that is that in - it is invariably retained even in severe cognitive or mental state perturbation. The understanding of what a will is is usually preserved by most people regardless of how impaired they are. I have never in over 300 cases ever found that somebody - well, perhaps one case I think somebody thought they were doing a power of attorney, but it's so rare that somebody doesn't understand what a will is.
32. Professor Peisah considered (at T 164.3-4) that a statement "I'm here to sign the will" is something that "attests to the specific memory of knowing why [the deceased] is there and that it confirms the first limb of the Banks v Goodfellow criteria. However, Professor Peisah did not accept that a statement that "can you double-check the name and spellings of my - did you put in my God child? Can you double-check the name and spelling?" demonstrates some capacity to recall potential beneficiaries because (at T 164.15-18): A. No, because I don't know who the God child is and whoever the God child is, there is - that is one person of - in previous patterns of disposition of many, many potential beneficiaries. So, not at all. To be fixated on one, unnamed, nebulous God child does not indicate, at all, au contraire.
33. As to whether the deceased saying something similar a few days before about her godchildren being in the Will or to ensure that her godchildren are in the Will, and then something very similar a few days later at the solicitor's office, demonstrated some capacity to recall potential beneficiaries, Professor Peisah said (at T 164.30-34): A. So, on the one hand, I'd be concerned if we're talking about God children versus God child and unnamed. On the other hand, the consistency - consistency is a hallmark of capacity. So, favouring, understanding is consistency, so, yes, but, to the extent that we're talking about God children, unnamed, versus God child, unnamed, no, that doesn't.
34. Asked as to the evidence of the conversation that evening (31 October 2009) which Mr Daniel recounts (see at T 162.35-50): Q. --she says, "They were trying to make me change the will, because your son's name was in the will and he was going to inherit the house at Starkey Street. I said, 'Everything is for you only'", then in response to a question, "Did you sign anything?"-- A. Yes. Q. --she replies, "No", when, clearly, she had signed something that day, does that show a person who, perhaps, does not want to disappoint a beneficiary-- A. No, not at all. In fact, au contraire, and, again, in my experience, that shows somebody who have [sic: has] actually forgotten what they did that day and may not even know and approve of the act of making the contents of the will. I've often seen that, where people have actually forgotten what they did. I'm just speaking from expertise for many years. Q. So, you're-- A. It doesn't show that
35. Professor Peisah accepted (at T 163.4-33) that the conversation recounted by Mrs Kanaan (that occurred on 26 October 2019) might show some knowledge of the previous Will (although she commented that this was not the extent of the previous Will).
36. As to the attendance at the solicitor's office on 31 October 2019, Professor Peisah accepted that if the deceased was asked "[d]o you know why you're here?", and she responded, "[y]es, I'm here to sign the will", "[s]how me the will", this would demonstrate some memory and retention that the deceased was going to see a solicitor about signing a will. However, Professor Peisah also accepted that this might just reflect how recently that fact was put into her brain; i.e., that it might be a five-minute memory, not a short, medium or long-term memory (see T 167.4-7).
37. Professor Peisah considered that the evidence of explanation as to the percentage bequests translating into monetary sums (as Mr Chakty says he gave to the deceased) with her response that "that is too much" would be evidence of supported decision-making (i.e., as supporting the deceased's understanding of the previous will). Asked whether a statement that "I want everyone to be as equal as possible" in reference to a property would be some evidence of capacity to weigh up potential claims on her estate, Professor Peisah accepted that if the deceased so instructed the solicitor and the Will actually did distribute it in an equal manner, then it would, but said that "if it's just a comment in the air that doesn't match the actual will and her instructions to the solicitor" then it would not (see at T 165.17-23).
38. Professor Peisah accepted that people with delirium are capable of lucidity; and that delirium is a condition that ebbs and flows such that delirium might affect cognitive ability one morning and not the next (and that this was more so the case with delirium than is the case with dementia). As to what is meant by lucidity in this context, Professor Peisah said that it was "that concept of clearing up. It's like, the sky is clear and the person resumes to normal, complete normal cognitive function" (see at T 166.52-46). Professor Peisah accepted that in delirium a person can be completely clear of cognitive perturbations.
39. Professor Peisah confirmed that the notation that someone is alert and oriented could just mean awake and aware that the person is in, say, hospital.
40. Professor Peisah confirmed that the parietal lobe can affect cognition, including the ability to make mathematical or numerical calculations (and in that sense as I understand her evidence it could be relevant to testamentary capacity insofar as it encompassed the ability to make a mental calculation of competing interests) whereas the frontal lobe affects judgment.
41. I found Professor Peisah to be objective and balanced in her assessment of the evidence that was put to her and in her explanation of the relevant medical concepts. Her assessment of the deceased's affect as revealed in the Arabic videos (which accorded with my lay observation) and her explanation of the condition of delirium was particularly helpful.

IT expert evidence

1. An IT expert was engaged to examine metadata for the Arabic videos. His report was not the subject of challenge. The conclusions of Dr Watt are summarised at [202]ff above.

Plaintiff's submissions

1. Mr Chakty accepts that, as the propounder of the 2019 Will, he bears the onus of proving that this is the last Will of a "free and capable" testator who "knew and approved of its contents at the time it was executed so that it can be said that the testator comprehended the effect of what he was doing" (citing Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 (Tobin v Ezekiel) at [44]ff per Meagher JA (Basten and Campbell JJA agreeing) and the authorities referred to in that case). It is noted that in Tobin v Ezekiel, Meagher JA, stated at [45] that: If the will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity. Those circumstances shift the evidential burden to the party propounding the will to show that the testator was of "sound disposing mind": Waring v Waring (1848) 6 Moo PC 341 at 355; 13 ER 715 at 720; Sutton v Sadler (1857) 3 CB NS 87 at 97-98; 140 ER 671 at 675-676; Smith v Tebbitt (1867) LR 1 P & D 398 at 436; Bull v Fulton [1942] HCA 13; 66 CLR 295 at 343; Kantor v Vosahlo [2004] VSCA 235 at [49], [50]. That doubt, unless resolved on a consideration of the evidence as a whole, may be sufficient to preclude the court being affirmatively satisfied as to testamentary capacity: Bull v Fulton at 299, 341; Worth v Clasohm [1952] HCA 67; 86 CLR 439 at 453.
2. In that regard, Mr Chakty submits that the 2019 Will is rational on its face (noting that it disposes of the deceased's "relatively simple" estate in percentages amongst her relatives and Mr Daniel) and that it was regularly executed (noting that it was formally executed and witnessed by a solicitor (Mr Husseini) and a paralegal (Mr Conti), each of whom has deposed that the 2019 Will was signed in their presence by the deceased). Mr Chakty also says that the 2019 Will was professionally drawn, which is correct in the sense that it was prepared by Mr Aziz, although it must be noted that it was prepared largely on the basis of Mr Chakty's instructions conveyed to Mr Aziz through Mr Conti; not on the basis of any instructions taken by Mr Aziz himself.
3. Thus, Mr Chakty says that there is a presumption that the deceased was mentally competent (citing the passage from Tobin v Ezekiel at [45] extracted above). Mr Chakty nevertheless accepts that the presumption of testamentary capacity is displaced by the evidence of Professor Peisah's retrospective diagnosis of neurocognitive disorders and the lay evidence adduced by Mr Daniel. Turning then to the issues of testamentary capacity and knowledge and approval of the Will, Mr Chakty submits as follows.

Testamentary capacity

1. As to the well-known requirements of the test for testamentary capacity as stated by Cockburn CJ in Banks v Goodfellow at 565 (as I set out later in these reasons), Mr Chakty says as follows.
2. As to the first requirement (that the testator have the capacity to understand the nature of the act of making a Will and its effects), Mr Chakty points to the deceased's previous known Wills.
3. Mr Chakty places reliance on the deceased's history of making Wills as something from which one may more readily be satisfied that the deceased knew and understood that she was making a final testamentary disposition; and argues that this may also point to the existence of testamentary capacity, referring in this context to reasons I gave in Cong v Shen (No 3) [2021] NSWSC 947 at [989] and [1056] for the conclusion that the testator in that case understood that he was executing a Will and making his final testamentary dispositions, namely that: 989. I am comfortably satisfied that Mr Cong understood that he was executing a Will (and, from his history of making Wills and his conferences with Mr Glynn, knew and understood that he was here making his final testamentary dispositions - to which he had obviously devoted considerable thought over the previous year). I am also comfortably satisfied that Mr Cong understood the practical effect of the central clauses in the 2016 Will and Deed, i.e., the structure that he wanted to put in place (namely, that the provision for his elder children was to be made out of the Campsie properties - not, as he had previously intended, the 16 Nicholson Street property or, before that, 9 Ethel Street; that the Campsie properties should be held for a period of time to maximise the prospect of their value increasing through the anticipated high density rezoning; and that Ms Shen (and, through her, his infant children) should be provided for out of the residue of the estate and with the benefit of the Jolly Trading sheepskin business and life insurance payout). That Mr Cong understood the structure of his testamentary dispositions is evident from the instructions he gave, through Ms Lan, on 28 April 2016 for the adding of a particular clause. … 1056. As to whether Mr Cong was able to understand the nature of the act of executing and publishing a Will and the effect of the instrument, the answer in my opinion is indisputably "yes". He had executed Wills before and there is no suggestion that he was not of sufficiently sound mind so as not to understand that that was what he was doing when he gave instructions for his 2016 Will and when he executed the 2016 Will and Deed.
4. Pausing here, I do not consider that those passages assist Mr Chakty in the present case. Relevantly, in Cong v Shen there was no issue as to Mr Cong's cognitive ability at the time of the giving of instructions for the Will that was there impugned nor at the time of its execution. Here, the position is very different; although I bear in mind Professor Peisah's evidence to the effect that understanding as to the nature and effect of a Will is something likely to be retained even when an elderly person has an episode of delirium.
5. In the present case, Mr Chakty says that the deceased initiated contact with him (on 23 October 2019) by inviting him to her house and suggests that this was with a deliberate plan to explain her existing Will and to make changes to it in accordance with her wishes. While I accept that the evidence supports the conclusion that the deceased contacted Mr Chakty on 23 October 2019 (and Mr Daniel does not appear to dispute this - since his evidence is that he was with the deceased at the time and dialled Mr Chakty's number on her behalf), I do not accept that the evidence supports a conclusion that the deceased had a deliberate plan at the time to explain her existing Will to Mr Chakty or to make changes to the Will. Mr Chakty's own account of the conversation with the deceased before she invited him and his wife into the bedroom indicates that it was Mr Chakty who asked the deceased whether she had done her Will (albeit that this followed, on his account of the conversation, the deceased telling him about others who were enquiring about her Will).
6. Moreover, the deceased's request for Mr Chakty to visit is consistent with Ms Tawk's evidence to the effect that the deceased was constantly complaining that people did not visit her; and with Mr Chakty's own evidence that the deceased had asked him to arrange for people to come and see her (see the chronology of events above).
7. Mr Chakty says that the deceased's subsequent exchanges with Mr Conti, Mr Husseini and Mr Nahas further confirm the deceased's capacity to understand the act of making a Will and its effects. I have considered the evidence of those individuals above. I accept that the deceased's response on a number of occasions indicates that the deceased understood the nature and act of making a Will and its testamentary effect. Mr Chakty also notes (and I place weight on this evidence) that Professor Peisah opined that it was more probable than not that the deceased was capable of understanding the act of making a Will and its effects.
8. Thus, it is submitted (and I accept) that the first element of the Banks v Goodfellow test is satisfied.
9. As to the second element of the test (which requires the testator to have an understanding of the extent of the property subject of the Will), Mr Chakty says that in the present case the estate was simple, comprising two houses and cash in various bank accounts (though elsewhere he has deposed that a document such as a Will was too complex for the deceased to understand without interpretation or translation into Arabic).
10. It is said by Mr Chakty that in May 2019 the deceased understood that she had a not insubstantial amount of money in bank accounts and had placed them in interest bearing term deposit accounts; and that the retrieval of the bank book in her meeting with Mr Chakty on 23 October 2019 also shows that the deceased understood that she had cash in various bank accounts as at that date. I accept that the conversation attributed to the deceased in the deceased's bedroom on 23 October 2019 (and the photograph of the deceased holding a bank book) indicates that the deceased was aware that she had at least one bank account (although this seems to be a different account from the joint term deposit account). Moreover, it is not clear to me that the deceased understood how much was deposited in the various bank accounts at the time; though I accept it is not necessary that the deceased have had a precise understanding as to the amount held in her bank accounts at the time.
11. Mr Chakty says that during the initial discussion with him (in the week leading up to 31 October 2019) the deceased indicated a clear preference for the Dunstaffenage Street Property to be divided amongst "everyone … as equal[ly] as possible" and that the deceased expressed on a number of occasions in October 2019 her desire to leave the Starkey Street Property to him. Mr Chakty submits that this demonstrates that the deceased knew of the extent of her assets in a general sense (and, in particular, that the deceased knew that she owned two houses to be disposed of under her Will).
12. Mr Chakty relies on the observation by Windeyer J in Kerr v Badran (at [49]), when discussing the contemporary application of the requirement of knowing the extent of one's estate, that it does not mean "knowledge of each particular asset or knowledge of the value of that asset". It is said that the inability to recall the extent of one's estate does not, of itself, cast doubt on the testamentary capacity or cognitive ability of the testatrix.
13. Reference is also made to Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 (Carr v Homersham), where Macfarlan JA (at [119]) accepted that the evidence indicated a failing memory on the part of the testatrix (in the period leading up to the making of the impugned will, the testatrix needed the assistance of a solicitor to work out what her assets were; appeared to forget who her long time accountant was; and could not remember her own address or her day or year of birth), those being matters that the primary judge considered seriously cast doubt on the testatrix' cognitive ability; but his Honour said that this did not necessarily negate the existence of testamentary capacity, referring to the following passage from Banks v Goodfellow at 568 in this context: [The testator] must have memory; a man in whom the faculty is totally extinguished cannot be said to possess understanding to any degree whatever, or for any purpose. But his memory may be very imperfect; it may be greatly impaired by age or disease; he may not be able at all times to recollect the names, the persons, or the families of those with whom he had been intimately acquainted; may at times ask idle questions, and repeat those which had before been asked and answered, and yet his understanding may be sufficiently sound for many of the ordinary transactions of life.
14. Mr Chakty says that the deceased was aged and sick but that she had insight into her frail state; and he maintains that she took "purposeful steps" and initiated contact with him with a view to determining the contents of the 2014 Will. (As already noted, I reject the submission that the deceased contacted Mr Chakty with a view to determining the contents of the 2014 Will or with the purpose of obtaining his assistance to change the Will. It is at least equally plausible, and in my view more likely, that Mr Chakty himself initiated the steps to change the Will. Mr Chakty certainly had a clear personal interest in so doing - particularly once he had been shown the 2014 Will and knew that Mr Daniel was to inherit the Starkey Street Property under that Will. At the very least, on his own evidence Mr Chakty was concerned about the misspelling of his name and was putting forward to the deceased the name of at least one other potential beneficiary.)
15. Mr Chakty submits in this regard that the deceased's lack of fluency in the English language was to such a degree that she would have required assistance from others properly to understand what was stated in her previous Will; and that it is entirely understandable that she sought the assistance of someone else (i.e., Mr Chakty) to help explain the 2014 Will and then with the drafting and settling of the 2019 Will. I do not accept that the deceased was illiterate or not fluent in English during her lifetime. If she had difficulty reading or speaking English towards the end of her life that would be something pointing to cognitive impairment (of the kind that Mr Chakty here disavows). In any event, I do not cavil with the proposition that it would be natural for the deceased to turn to a relative to assist her with any query she might have had as to her existing Will provisions or to make any changes she desired to her existing Will. However, that does not dispel the suspicious circumstances that then arise when that very relative suddenly becomes the main beneficiary under the new Will (as was the case here).
16. Mr Chakty maintains that after the deceased indicated her intention to change her Will he then took "arm's length" steps in this regard, namely that he called a solicitor (Mr Stewart) to ascertain what to do and followed the solicitor's advice by taking the deceased to her general practitioner to obtain a referral for a neurologist (though not, I note, following through on the advice in relation to an assessment from a neurologist before the 2019 Will was made); and that subsequently he engaged a credentialed interpreter (experienced in court work) and then engaged another solicitor to assist with drafting the 2019 Will. As noted above, I do not accept that the steps Mr Chakty took can be described as "arm's length". Rather, I find that Mr Chakty was an integral part of, and the driving force for, the changes made to the 2019 Will.
17. Mr Chakty, however, says that by 31 October 2019 (and he says in accordance with the deceased's instructions), the terms of the 2019 Will had been jotted down and explained to the deceased on a number of occasions; and that the interpreter had also explained the 2019 Will to the deceased once before its execution. Mr Chakty says that, by 31 October 2019, the deceased was keen to execute the document. Mr Chakty contends that this was "a purposeful woman who had decided to change her Will in October 2019 and had sought the assistance of her family (and the beneficiary she wanted to award) to put in place steps to change her Will"; and he argues that this is also consistent with the manner in which the 2014 Will was drawn.
18. I do not accept that the affect of the woman who appeared in the October and November videos was that of a "purposeful" woman. However, I am prepared to accept that the deceased had at least a general understanding (even if only by this stage derived from the constant reading out and "interpretation" of her 2014 Will and the draft 2019 Will) that her estate comprised at least the two properties in Hurlstone Park; and that she was aware that she had money in at least one bank account. Thus, I proceed on the basis that the second of the Banks v Goodfellow requirements is probably satisfied.
19. As to the third element of the test in Banks v Goodfellow (that the testator must have had the ability to understand and assess relevant claims on his or her bounty), it is said for Mr Chakty that, right up until late 2019, the deceased had insight into her failing health; that the deceased felt that she was not being attended to sufficiently by Mr Daniel; that the deceased increasingly complained to Mr Chakty that she was lonely and her relatives did not visit her; and that the deceased had made up her mind and initiated contact with Mr Chakty with a specific purpose of changing the dispositions in her Will. Mr Chakty emphasises that the deceased first sought detailed confirmation (both from Mr Chakty and the interpreter, Mr Nahas) before confirming her instructions. I have already rejected the submission that the deceased had initiated contact with Mr Chakty with the specific purpose of changing her testamentary dispositions; and I consider it relevant that the process of interpreting and explaining the 2014 and 2019 Wills (which occurred over a series of days leading up to the 31 October 2019 execution of the 2019 Will) had the flavour of Mr Chakty attempting, through his own efforts and those of Mr Nahas, to explain testamentary dispositions that by then the deceased was having trouble understanding (particularly, the percentage shares in relation to the Dunstaffenage Street property); rather, than demonstrating any real understanding on the deceased's part of the claims on her testamentary bounty.
20. Mr Chakty argues that, in the deceased's conversations with Mrs Kanaan, the deceased weighed up Mr Daniel's claim and indicated that she would still like to include him in her Will. Certainly, on Mrs Kanaan's account the deceased said that she loved Mr Daniel but did not want him to get everything. What Mrs Kanaan's account does not reflect is any weighing of the extent of Mr Daniel's claim (or that of other beneficiaries) on the deceased's testamentary bounty (and indeed at that stage, on Mr Chakty's own evidence, there had been no discussion of any percentage share of the Dunstaffenage Street Property in favour of Mr Daniel). Further, Mr Chakty points to the conversations he had with the deceased to the effect that the bequest for Ms Tawk should be reduced (but not removed completely) because Ms Tawk had blocked the deceased's phone number.
21. Mr Chakty says that these factors point strongly to a mind that retained the capacity to comprehend the moral claims of potential beneficiaries. It is noted that it is not any part of Mr Daniel's case that the deceased (at any time) harboured any "fixed and incorrigible false belief" out of which she could not be reasoned. As such, it is submitted that the choice to prefer a nephew over Mr Daniel (who Mr Chakty describes as the "self-styled 'carer'"), in circumstances where there was a self-explained motivation for her actions, cannot be said to be so irrational so as to reveal a mental disorder. Mr Chakty contends instead that it points to a rational mind that was capable of weighing up the claims of potential beneficiaries on her testamentary bounty.
22. It is noted that in Croft v Sanders [2019] NSWCA 303 (Croft v Sanders) (at [126]) White JA stated, with Bathurst CJ and Gleeson JA agreeing, that: … While the test of capacity remains the same, the application of that test will vary according to the complexity and the officiousness or inofficiousness of the will (Bailey v Bailey (1924) 34 CLR 558 at 570-571; [1924] HCA 21; Brown v McEnroe (1890) 11 NSWR Eq 134 at 138; In the Estate of Park [1954] P 112 at 122; Ridge v Rowden; Estate of Dowling (Supreme Court of New South Wales, Santow J, 10 April 1996, unreported, BC9601342 at 42-43; Mason and Handler, Succession Law and Practice NSW, LexisNexis [13,045] at 100,029, (8)). As the High Court said in Gibbons v Wright (1954) 91 CLR 423 at 438; [1954] HCA 17 the mental capacity required in respect of any instrument is relevant to the particular transaction which is being effected by means of the instrument.
23. Mr Chakty points to the consistency between the disposition of the Starkey Street Property under the 2019 Will and that in the deceased's previous Wills; namely that the Starkey Street Property was disposed of as a whole (as opposed to the Dunstaffenage Street Property being left to be divided among relatives and friends). Mr Chakty says that it is understandable that, with the passage of time, the deceased chose to include in her 2019 Will those who she considered had visited or spent time with her; or had otherwise taken an interest in her (noting that this was the basis for the exclusion of most of the Hayek family members in the 2014 and 2019 Wills).
24. Mr Chakty argues that this is the reason for what is said to be the most significant departure in the deceased's testamentary dispositions over the years (that departure being that, under the 2014 Will, a non-relative was left the largest part of her estate, subject to the stated proviso that he had not moved the deceased to a nursing home or retirement village). (Pausing here, this proviso is to my mind consistent with the fact that the deceased was at the same time appointing Mr Daniel as her enduring attorney and guardian; and thus, it may be inferred that there was a recognition that Mr Daniel would then be in a position to make such a decision as to the deceased's accommodation. Whether or not that be the correct inference to be drawn from the proviso, it is also consistent with Mr Daniel having assumed a role as the deceased's carer, at least part time, at that stage. Ms Tawk's evidence of her conversations with the deceased of course goes further than this in that Ms Tawk attributes to the deceased acknowledgements that the deceased made a promise to leave the house to Mr Daniel if he agreed to look after her.)
25. Mr Chakty contends that a rational explanation for the shift in the 2019 Will can be discerned from the evidence that Mr Daniel was working long hours, full time, and was also working during weekends. Mr Chakty suggests that Mr Daniel had ongoing commitments in Wollongong (where, as noted above, he had purchased a unit in March 2019). I note that Mr Daniel disputes that he had regular commitments in Wollongong in this period; his evidence being that for a short period, ending in February 2019, he assisted a friend on an unpaid basis in the friend's nightclub usually on a Saturday night.
26. In any event, Mr Chakty argues that an entirely rational reason that explains the shift in the 2019 Will is that the deceased may have felt that Mr Daniel was not spending enough time with her and so she decided to direct her testamentary bounty to someone whom she considered more deserving. It is said that this is also consistent with the loneliness and feelings of abandonment of which the deceased complained in her later years. In this context, Mr Chakty refers to Drivas v Jakopovic (2019) 100 NSWLR 505; [2019] NSWCA 218 (Drivas v Jakopovic) at [76] per Macfarlan JA, with whom Bell ACJ and McCallum JA (as their Honours then were) agreed, as to there being evidence of circumstances which may have led the deceased to be unhappy with a particular beneficiary and hence of possible reasons for the deceased's changes to her Will. In the present case, this seems to me no more than speculation. Not only does there not appear to be any evidence of complaint by the deceased as to Mr Daniel's care during the period leading up to execution of the 2019 Will, there is also evidence that the deceased made complaint about not seeing other relatives (indeed Mr Chakty's evidence is that the deceased made such a complaint to him - to which Mr Chakty says that he and his wife always visited - though as it transpired the frequency of those visits seems to have been vastly overstated as I have explained above).
27. Nevertheless, the argument for Mr Chakty is that the 2019 Will is not a sudden, unexplained radical departure from previous Wills; and it is submitted that (viewed against the changes in the previous known Wills and the deceased's stated concerns about her loneliness and perceived abandonment by those she considered close to her), the shift in the 2019 Will is not only justifiable, but points strongly to a rational, discerning mind that retained testamentary capacity in October 2019 (Mr Chakty's submissions here adopting the language used in Drivas v Jakopovic (at [47] per Macfarlan JA), insofar as it is submitted that the decision to reduce the extent of the gift made to Mr Daniel under the Will was not so irrational as to bespeak some form of animus against him which amounted to a delusion in the relevant sense).
28. Mr Chakty also submits that the fact the deceased had not entirely excluded Mr Daniel in her 2019 Will provides comfort for the conclusion that the deceased retained testamentary capacity; and says that the substantial gift made to Mr Daniel in 2019 may also have been a factor in the deceased reducing Mr Daniel's share in the 2019 Will. Again, this is no more than speculation as to the deceased's reasoning process in relation to the testamentary dispositions made in the 2019 Will, since there is no note of any instruction given by the deceased to any solicitor about the contents of the 2019 Will and all that the evidence supports is that the deceased had a concern that she expressed to various people as to the naming of some of the beneficiaries as her godchildren (and perhaps as to whether they were all there correctly named); and, according to Mr Chakty, that the deceased said the amount of $180,000 was too much (for one of the 12% beneficiaries) and words to the effect that she did not want Mr Daniel or Mr Daniel's son to inherit the house.
29. Mr Chakty argues that, by October 2019, the deceased had a clear and firm mind to write a new Will favouring the nieces and nephews of a different sibling. For the reasons set out in due course, I cannot accept this.
30. Further, Mr Chakty argues that if Mr Daniel's evidence as to the $175,000 gift from the deceased is accepted then the deceased had sufficient capacity at least until May 2019 to understand a transaction relating to term deposits and interest-bearing accounts (and, Mr Chakty says, knew the extent of her estate). It is submitted that such capacity would "go some way" in answering a significant part of the contention by Mr Daniel that the deceased lacked testamentary capacity on or around 31 October 2019.
31. Mr Chakty says that to a degree the account provided by Mr Daniel of this "gift" contradicts particulars 8, (f) and (g) of the further amended defence (filed in Court on 7 February 2022), on which Mr Daniel relies in support of the case for testamentary incapacity.
32. These particulars allege that: at (e), the deceased had been diagnosed with breast cancer in about early 2017, had a full mastectomy in June 2017, and underwent radiation therapy for about three months after June 2017; at (f) that the deceased had been admitted to the Palliative Care Unit at Concord Repatriation General Hospital for a period of about two weeks in or around January to February 2019; and at (g) that thereafter the deceased had been prescribed medications, including Cyclizine and morphine from about June or July 2019.
33. Mr Chakty submits that the above matters (which precede the gift made to Mr Daniel in May 2019) may readily be discounted since, on Mr Daniel's case, the deceased retained capacity (to enter into the gift transaction) until 22 May 2019.
34. It is well recognised that the question of capacity is issue specific - see Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17 (Gibbons v Wright). In Gibbons v Wright at 438, Dixon CJ, Kitto and Taylor JJ held that "the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained". Their Honours there said that: The law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation… Ordinarily the nature of the transaction means in this connection the broad operation, the 'general purport' of the instrument.
35. In Scott v Scott (2012) 7 ASTLR 299; [2012] NSWSC 1541 Lindsay J said at [205]: What is required, rather, is an appreciation that the concept of 'mental capacity' must be assessed relative to the nature, terms, purpose and context of the particular transaction. Nothing more, or less, is required than a focus on whether the subject of inquiry had the capacity to do, or to refrain from doing, the particular thing under review.
36. In Gibbons v Wright, their Honours went on to quote Estate of Park [1954] P 112; [1953] 3 WLR 1012 in which case Hodson LJ remarked that "one cannot consider soundness of mind in the air, so to speak, but only in relation to the facts and the subject-matter of the particular case".
37. Thus, the capacity to make a gift will not necessarily be the same as capacity to make a Will (insofar as capacity is transaction specific). However, the argument here for Mr Chakty is that, on Mr Daniel's evidence, there was at least capacity to make a gift in May 2019 and therefore Mr Chakty submits that the issue narrows to whether the deceased lost capacity between 22 May 2019 and 31 October 2019. (I would frame the issue as being, not so much a question of when the deceased lost testamentary capacity - if she did - but whether, as at 31 October 2019, the deceased had testamentary capacity.)
38. Mr Chakty says that the deceased "may have had her own reasons for making the [$175,000] gift, which are difficult to speculate on" (though in his submissions Mr Chakty goes on to engage in just such speculation - see below), especially where Mr Chakty says the deceased was careful with money and does not appear to have a history of lavishing others with generous cash gifts.
39. Mr Chakty says that it possible that the deceased (as Mr Daniel deposes) made the gift to Mr Daniel so that he could purchase a property; or the deceased made the promise in March 2019, confirmed it in May 2019 and confirmed it again in October 2019 before Mr Daniel transferred $187,231.68 to his personal account; but Mr Chakty says that it is also possible that the deceased did not make any such promise to Mr Daniel and that, having realised the actions of Mr Daniel, the deceased responded by proceeding to change her Will. (I interpose to note that there is nothing in the evidence to support such speculation.) Mr Chakty argues that such a realisation is consistent with the "purposeful steps" the deceased took in late October 2019 by seeking Mr Chakty's assistance with arranging for a new Will. This submission, as to the taking of "purposeful steps" for the making of a new Will, is premised largely if not wholly on an acceptance of Mr Chakty's evidence as to what occurred on 23 October 2019 and following. There is no evidence to suggest that the deceased had or made any complaint about the sum transferred out of the joint term account in October 2019 (or the earlier transaction in which the account was opened in May 2019). There is certainly nothing in the 2019 Will to suggest that the bequest in relation to the Starkey Street Property had been changed for that reason (unlike the statement in the 2014 Will as to the exclusion from that Will of certain of the Hayek family members).
40. Mr Chakty submits that it is likely that the deceased concluded, by October 2019, that the $175,000 gift and a 6% residual share in the Dunstaffenage Street was sufficient for Mr Daniel in the circumstances. Again, this is no more than speculation. Moreover, Mr Chakty himself accepted that in the conversation on 23 October 2019 there was nothing said as to any percentage share of the proceeds of sale of the Dunstaffenage Street Property in favour of Mr Daniel and he had not received instructions from the deceased as to what she wished to give Mr Daniel (other than that, according to him, the deceased did not want Mr Daniel to inherit the Starkey Street Property).
41. Reliance is placed by Mr Chakty on Croft v Sanders (at [126]-[127] per White JA, Bathurst CJ and Gleeson JA agreeing) for the proposition that rationality from the deceased's perspective is relevant to the assessment of testamentary capacity (that being a case where the impugned Will was said to be inofficious and the testator, though alleged to have been suffering a pattern of delusions and hallucinations, was held to have had testamentary capacity).
42. Mr Chakty further says that the 12 videos taken by him (with translations) depict an alert and purposeful woman who had her own independent thoughts about various members of her family. I have already commented on the Arabic videos. I accept Professor Peisah's assessment of the deterioration in affect of the deceased between the videos taken in May and in October 2019 respectively. To the extent that Mr Chakty argues that Professor Peisah did not have the matching transcript for the videos, my observation was not so hindered.
43. It is noted that the allegation by Mr Daniel that the deceased lacked testamentary capacity at the time of the making of the 2019 Will is based on Mr Daniel's evidence of his lay observations of the deceased from October 2019 and Professor Peisah's evidence (to which I have referred above).
44. Mr Chakty points out that Professor Peisah concluded that on 31 October 2019 the deceased was "free of a mental disorder, including delusions, that influenced the distribution of her estate", basing this opinion on the fact that after a review of the medical and lay evidence there was no evidence that any mental disorder (including delusions) had influenced the deceased's capacity with respect to: an awareness and appreciation of the significance of the act of making a Will; an awareness in general terms of the nature and extent of her estate; an awareness of those who might reasonably have been thought to have a claim on the deceased's testamentary bounty; and the ability to identify, evaluate and discriminate between the respective strengths of the claims of such persons.
45. Mr Chakty emphasises that Professor Peisah opined that it was more probable than not that at the time of giving instructions there was evidence that the deceased had an awareness and appreciation of the significance of the act of making a Will; and opined that on or around 31 October 2019 the deceased was capable of understanding the act of making a Will and its effects.
46. Mr Chakty points out that, during her lifetime, the deceased was never clinically diagnosed as having suffered from any disorder of the mind, despite numerous hospital stays (some of which were overseen by a geriatrician) and assessments conducted by Aged Care Assessment Teams. It is said that the overwhelming majority of hospital progress notes from 2019 and observations describe the testatrix as "alert and oriented" and without neurological or cognitive issues (even shortly before her death). It is further said that the records produced by Dr Tadros do not indicate any neurological or cognitive issues of note.
47. Mr Chakty says that, during her hospital admissions throughout 2019, the deceased underwent numerous testing regimes designed to screen for neurocognitive disorders including delirium; and that the medical records indicate that no such disorders or issues were identified during these (or any other) admissions. Mr Chakty places weight on Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 (Zorbas), where it was held (at [34] and [73] per Hodgson JA with whom Young JA and Bergin CJ in Eq agreed) that the primary judge was correct to prefer contemporaneous hospital records (and to reject the post facto diagnoses of delirium from a psychiatrist) to be affirmatively satisfied on the question of a testatrix' testamentary capacity.
48. Mr Chakty says that, in the present case, on 2 August 2019, the deceased had gone through an extended stay at Concord Hospital under the care of a geriatrician and his team who it is said were (as the records indicate) attuned to be on the lookout for delirium given the deceased's high risk for delirium and background of mild cognitive impairment.
49. Emphasis is placed on the fact that on 25 October 2019, the deceased had consulted Dr Tadros (an appointment arranged by Mr Chakty for the purposes of obtaining a referral for an assessment of her ability to make a Will) and that there is no entry in Dr Tadros' records noting any cognitive or neurological issue during that visit or in the visit a few days prior thereto.
50. As to the notes made on the deceased's final hospitalisation on 11 November 2019, Mr Chakty points out that this was the progression of terminal disease. It is noted that a resident medical officer's impression was that the deceased was in functional decline and there was likely an element of delirium in the context of advanced malignancy but that later during the same evening the records indicate that a registered nurse conducted a Delirium Risk Assessment Tool test, as well as a Confusion Assessment Method Tool and found the deceased to be alert with no delirium.
51. As such, Mr Chakty submits that the contemporaneous medical evidence does not constitute significant evidence of incapacity. It is said that Mr Daniel's case is largely premised upon the deceased's physical and mental state being significantly worse at the time that she made the 2019 Will than is evidenced by the contemporaneous medical records or by the accounts of other persons (such as Dr Tadros, Mr Chakty and other lay witnesses).
52. As to the weight to be given to Professor Peisah's report, Mr Chakty points to the caution that has been exercised by probate Courts about acting on the opinion of an expert who neither met, nor medically examined a testatrix (citing Hawes v Burgess [2013] EWCA Civ 74 at [59] and [60] per Mummery LJ; Simon v Byford [2014] EWCA Civ 280 at [17] per Lewison LJ; Zorbas at [65] and [89] per Hodgson JA; Revie v Druitt [2005] NSWSC 902 at [34] per Windeyer J; Kerr v Badran). Reference is made to Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21 (Bailey v Bailey) at 572 where Isaacs J stated that opinions of witnesses as to testamentary capacity are "usually for various reasons of little weight on the direct issue" and that a "Court must judge from the facts they state and not from their opinions". Reference is also made to Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197 at [133] per the Court (Gleeson, Leeming and Simpson JJA) where the appeal involved a matter in which the primary judge had discounted the evidence of two experts (a specialist geriatrician and a clinical neuropsychologist) as to testamentary capacity on the grounds that they had never seen the testatrix and that their opinions were based on a review of the medical records.
53. Mr Chakty also refers to Drivas v Jakopovic (at [68] per Macfarlan JA - see above) where the primary judge was found to be correct in giving little to no weight to evidence from medical experts (a consultant geriatrician and a neurologist; the latter who had seen the testatrix and conducted a "mini-mental state examination" (MMSE) months before the execution of the impugned Will), noting that doubt was expressed as to whether the opinions were admissible in the first place.
54. Finally, Mr Chakty emphasises that the question of capacity is one to be decided by the Court on a review of the whole of the evidence; and that it is a question of fact for the trial judge in the determination of which lay evidence may be highly relevant (citing Croft v Sanders at [86] and [128]).

Knowledge and approval

1. Turning then to the requirement for knowledge and approval of the Will, reference is made to Hobhouse v Macarthur-Onslow [2016] NSWSC 1831 (Macarthur-Onslow), where there was on its face an otherwise rational and duly executed Will but where it was accepted that the presumption of the testatrix' mental capacity was displaced by evidence that raised doubt as to the existence of testamentary capacity. Mr Chakty argues that the evidence of testamentary incapacity in that case was considerably more cogent than the present case but points out that in Macarthur-Onslow the impugned Will was nevertheless upheld (albeit with the severance of the complex clauses of which Robb J was not affirmatively satisfied that the testatrix had knowledge and approval). It is noted that Robb J found the report of the expert psychiatrist in that case to be of limited use due to the constraints of the expert never having met the testatrix, the expert not having the subsequent evidence, the expert basing his opinion on findings of fact that differed from those made by the primary judge and coming to an opinion without a proper basis.
2. Mr Chakty emphasises, for present purposes, that in Macarthur-Onslow the expert had opined that the testatrix' impairments did not prevent her from understanding the nature of the act of making the Will and its effect; and that Robb J considered this a significant finding concerning the issue of testamentary capacity. It is further noted that, in Macarthur-Onslow, Robb J (having reference to Tobin v Ezekiel) identified the emphasis to be placed on the capacity or ability to understand the effect of a Will and the claims of persons to which he or she should give effect rather than actually doing so (see at [409]-[410]); and considered the position where a document is explained to a person whose capacity is suspect (referring to Gibbons v Wright , which concerned a power of attorney), Robb J concluded at [429] that: 429. These authorities should not be seen as laying down any rule that, where the capacity of a party is in question in any context, an explanation in some form must be given to that party before he or she will be found to have had capacity. Some transactions, including the making of wills, may occur in circumstances where no explanation is given to the participants, while other transactions occur in circumstances where explanation may be available, which may be more or less thorough. As the question of capacity cannot be considered "in the air", the terms of any explanation that is given will in practical terms be part of the context of the particular transaction. As the concept of capacity involves understanding, memory and reasoning, the ability of the person concerned to understand what he or she did by entering into the transaction may naturally be affected by the nature and adequacy of any explanation that is in fact given, as memory and understanding may be enhanced by the explanation, which may also assist the ability of the person to reason to a sound conclusion.
3. Mr Chakty emphasises that, in the present case, both the 2014 and the 2019 Will were read over multiple days to the deceased. Mr Chakty reiterates his submission (on which I have already commented) that after he first explained the 2014 Will to the deceased he took "arm's length steps" to ensure that it was explained again over the subsequent days by the interpreter, culminating in an explanation of the 2019 Will by the interpreter before attending the offices of the solicitor for execution.
4. It is submitted that, given the simple estate in question, and despite the retrospective diagnosis of Professor Peisah (which Mr Chakty says needs to be approached with caution), the deceased retained testamentary capacity at the time she signed the 31 October 2019 Will. It is noted that, upon proof of testamentary capacity and due execution, there is also a presumption of knowledge and approval; and that it has been said that evidence that a testator gave instructions for the Will or that it was read over by or to the testator is "the most satisfactory evidence" of actual knowledge of the contents of the Will. In those circumstances, it is said that the presumption (of knowledge and approval) that arises is a very strong one and can be rebutted only by the clearest evidence.
5. In this context Mr Chakty refers to Battenberg v Phillips [2020] NSWCA 249, arguing that it bears some factual similarity to the present case. There, the ailing testatrix had initiated the process that led to the making of a Will shortly before her death and the two executors (the deceased's niece and nephew) who were beneficiaries under the impugned Will had organised (with some urgency) for a solicitor who had not previously met the deceased to attend upon her and take instructions in the presence of one of them. On appeal, it was held that the evidence before the primary judge justified a firm conclusion that the testatrix knew and approved of the contents of the impugned Will.
6. Reference is also made to Tobin v Ezekiel where (at [46] per Meagher JA) it was said that the presumption of knowledge and approval can be displaced by any circumstance which creates "a well-grounded suspicion or doubt as to whether the will expressed the mind of the testator"; and Mr Chakty accepts that particular vigilance is required where (as here) a person played a part in the preparation of the Will and takes a substantial benefit under it; and that in those circumstances the person has the onus of showing the "righteousness of the transaction" (Tobin v Ezekiel at [47] per Meagher JA; Fulton v Andrew (1875) LR 7 HL 448 at 471 per Lord Hatherley). However, Mr Chakty notes that there is no overriding requirement of morality; rather, the requirement to show the "righteousness of the transaction" has been interpreted to mean that "there was no unrighteousness in the conduct of the person who drew the will and took a benefit under it" (citing Re Nickson, Deceased [1916] VLR 274 at 281 per à Beckett J; Vernon v Watson; Estate Clarice Isabel Quigley Dec'd [2002] NSWSC 600 (Vernon v Watson) at [5] per Burchett AJ).
7. It is noted that in such circumstances the propounder must affirmatively establish that the testator knew the contents of the Will and appreciated the effect of what he or she was doing so that it can be said that the Will contains the real intention and reflects the true Will of the testator (see Tobin v Ezekiel at [47] citing Tyrrell v Painton [1894] 1 P 151 at 157 (Tyrrell v Painton), 160; Nock v Austin (1918) 25 CLR 519; [1918] HCA 73 (Nock v Austin) at 523-524, 528). Mr Chakty points out that in Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284 (Easter v Griffith) at 290, Gleeson CJ stated that the "formulation of the onus of proof", there not in dispute, "invites caution"; and that in Carr v Homersham, Basten JA (at [46]) stated that: There is a ready temptation to reformulate these propositions in the language of presumptions and shifting burdens, and by reference to burdens of adducing evidence and burdens of proof. However, such complexity is unlikely to be helpful and may distract from a determination of what is in substance a purely factual issue, the resolution of which will turn on the nature of the particular matters raised, and by whom.
8. It is noted that in Tobin v Ezekiel (at [57]) suspicious circumstances were found to be present (as the two only beneficiaries were found to have engaged in lies and concealment and were possibly involved in making arrangements and giving instructions for the Will) but that other circumstances (at [69]) led to the finding that the primary judge did not err in admitting the Will they propounded into probate. It is also noted that in Tobin v Ezekiel at [48] Meagher JA (Basten and Campbell JJA agreeing) stated that: In this context the statements prescribing vigilance and "careful scrutiny" and referring to the court being "affirmatively satisfied" as to testamentary capacity and knowledge and approval are not to be understood as requiring any more than the satisfaction of the conventional civil standard of proof: see Worth v Clasohm at 453. What such statements do is emphasise that the cogency of the evidence necessary to discharge that burden will depend on the circumstances of each case and in particular the source and nature of any doubt or suspicion in relation to either of these matters: Kantor v Vosahlo at [22], [58]; Dore v Billinghurst at [44]. They also recognise that deciding whether a document is indeed a person's last will is a serious matter, so any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 or, now, s 140(2) of the Evidence Act 1995.
9. Mr Chakty also refers to Lewis v Lewis (2021) 105 NSWLR 487; [2021] NSWCA 168 (Lewis) where a beneficiary was involved in the preparation of a Will that contained complex and lengthy trust clauses as well as simple clauses; it was found by the primary judge that the Will was read out loud to the testatrix before execution; and the primary judge's decision admitting only the simple clauses into probate was upheld. Mr Chakty notes that in that case, Leeming JA considered whether merely reading the Will to an otherwise capable testator is sufficient, in every case, to prove knowledge and approval, saying that in certain circumstances it is not necessarily conclusive merely to read a Will to a capable testator to prove knowledge and approval. It is noted that (at [179]) Leeming JA stated: … the issue is evidentiary, that it is dependent upon the strength of the suspicious circumstances which had arisen in a particular case, and that in some cases in order to discharge the onus it will be necessary to establish knowledge and approval of the effect of the will.
10. Mr Chakty says that thus in many cases there is no difference between the contents of a testamentary instrument and its effect. It is noted that in Lewis the Court of Appeal was invited to clarify Tobin v Ezekiel (see at [47]) and that Leeming JA (with whom other members of the Court agreed) stated at [186]: Thus a review of the decisions both prior and subsequent to Tobin v Ezekiel discloses no sound basis to depart from the statement that in cases where a person who plays a part in the preparation of a will and takes a substantial benefit to exclude the possibility that it may be necessary, in order to establish knowledge and approval, to show that the testator "knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contains the real intention and reflects the true will of the testator". The only qualification which I would add, and I do so only out of an abundance of caution, is that I do not read Meagher JA's reasons to be stating that that will be necessary in every case; it will depend on the degree to which the circumstances are suspicious, the sophistication of the testator, the complexity of the will and the other facts of the case. But I cannot accept [the] proposition that recitation of the text to a capable testator who then executes the will is invariably sufficient to discharge the onus a propounder bears in such a case.
11. Mr Chakty contends, nevertheless, that the fact of reading a Will to an otherwise capable testator remains cogent evidence of knowledge and approval in certain circumstances. It is submitted that the facts of the present case can be distinguished from Lewis in that, in Lewis, parts of the Will were drafted in such a complex way that there was doubt expressed as to whether legal professionals could understand them; and it was held that the propounder had not affirmatively proven the burden of knowledge and approval that arose in relation to the complex clauses. Mr Chakty emphasises that the Will (absent the complex clauses) was otherwise admitted to probate. It is noted, additionally, that in Lewis there was no challenge to the capacity of the testatrix (as there is in the present case) and that the Court observed that in cases where it is in issue "somewhat different considerations may apply".
12. Mr Chakty maintains that the present Will is much simpler than the Will in Lewis; in that it deals with two houses and cash at the bank. Mr Chakty also emphasises that (on his evidence, which I have already said I do not accept) the deceased had initiated contact with him "so that he could explain the 2014 Will to her".
13. As noted above, Mr Chakty emphasises that, in the week preceding execution of the 2019 Will, it was read and explained to the deceased in a detailed way by Mr Nahas; that each of the provisions was explained to the deceased by Mr Chakty and then later by Mr Nahas; and it is said that, on the day of execution, he (Mr Chakty) also "took pains to ensure" that Mr Nahas attend once more at the solicitor's office so that it could again be "explained" by the solicitor, through Mr Nahas. Mr Chakty says that he had ensured that the interpreter had "explained" both Wills to the deceased in the preceding days (in accordance, he says, with the deceased's instructions) and Mr Chakty argues that this also evinces a mind that wanted carefully to weigh up the claims of potential beneficiaries before making a new Will.
14. Mr Chakty contends that there was nothing unrighteous about his conduct in the days leading up to the execution of the 2019 Will; that he was transparent in the sense that he approached a solicitor and sought to make an appointment with the deceased's long-time general practitioner for the purpose of assessing her ability to make a Will (because this is how he was advised to proceed by a solicitor whom he had previously retained in other matters). It is submitted that, in those circumstances, it was only natural that the deceased, who was 93 years old and largely housebound, would turn to the nephew she wanted to reward so that immediate steps could be taken to prepare and execute a new Will.
15. It is submitted that the suspicious circumstances (to the extent they exist in the present case) are easily dispelled by the "arm's length" and prompt conduct of Mr Chakty once he was contacted by the deceased in October 2019.
16. Mr Chakty refers in this regard to the evidence of Mr Conti, to the effect that the deceased stated that: she wanted to change her Will; she wanted Mr Chakty to "sort it out"; and that Mr Conti was to "show [the deceased] the will before [she] sign[ed]". Reference is made to the process adopted on the day of execution of the 2019 Will (where Mr Chakty says the solicitor and interpreter adopted a method whereby the solicitor would read particular parts of the 2019 Will followed by the interpreter "explaining" it to the deceased in Arabic), and it is noted that Mr Husseini has deposed that he especially focused on clause 8 of the 2019 Will; and has deposed that the deceased appeared alert and rational and that there was nothing to arouse suspicion about her capacity. As already noted, the evidence as to what was in fact explained to the deceased is not satisfactory; nor do I accept that Mr Husseini's lay assessment of the deceased is reliable. Insofar as Mr Chakty makes reference to authorities in which weight is accorded to an experienced solicitor's observations of a testator or testatrix, it is stating the obvious to note that Mr Husseini hardly fell into this category. He had been in practice for a mere four months; and this seems to have been the first time he had been involved as a solicitor in witnessing a Will. It was certainly the first time that he had printed out a copy of a Will for execution by a client. The steps taken by Mr Husseini to satisfy himself that the deceased knew and understood the contents of the 2019 Will were sadly deficient.
17. As to the observations of the interpreter, Mr Nahas, I accept that he has expertise as a professional interpreter with extensive court interpreting experience in New South Wales. I accept his evidence that on the day of execution of the 2019 Will he interpreted the provisions in their "proper Arabic terms" and, where the deceased sought further explanation, he would explain them in a more simple or colloquial Lebanese dialect. Mr Nahas was unable to recall the content of any such explanation, so as to enable me to be satisfied that the deceased in fact understood the contents of the 2019 Will. Insofar as Mr Nahas has deposed that the deceased's demeanour and general presentation made him certain that she understood what was being explained to her, I simply refer to the well-recognised constraints on reliance upon demeanour in making an assessment as to capacity.
18. Mr Chakty emphasises that, by this time, the 2019 Will had been "thoroughly explained" to the deceased in the preceding days by Mr Nahas at Mr Chakty's house. I reject the suggestion that there was any or any sufficient explanation of the terms of the 2019 Will on 30 October 2019.
19. Mr Chakty submits that, in light of the simplicity of the estate, the numerous explanations by him and then Mr Nahas in the deceased's native language, the deceased understood and approved of the content and effect of the 2019 Will.

Undue influence

1. As to the pleading by Mr Daniel that the 2019 Will was procured through undue influence on the part of Mr Chakty (particularised at [7] of the further amended defence), Mr Chakty complains that the particulars of this allegation lack specificity (and he says that some are not supported by evidence called by any party - see below). It is said that the particulars, taken together, amount to a circumstantial case of undue influence, noting that undue influence in probate is to be distinguished from the equitable doctrine of undue influence; that persuasion or moral pressure is not enough; and that there are no presumptions of influence or influential relationships; rather, what is required to be proven is actual and effective coercion.
2. Mr Chakty emphasises that a party alleging undue influence must establish that coercion was exercised and that it was by means of the exercise of coercion that the Will was produced (citing Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116 (Winter v Crichton) at 121-122 per Powell J); and Mr Chakty refers to the summary of principles set out by Lindsay J in Estate of Rofe [2021] NSWSC 257 as to undue influence in probate cases at [158], namely that: … where it is alleged that a will apparently regularly executed and made by a person of competent understanding is challenged on the ground of undue influence: (a) the burden of proving that it was executed under undue influence lies on the party who asserts it; (b) the undue influence which must be shown to avoid the will must amount to force or coercion destroying a free agency; and (c) where what is relied upon is a purely circumstantial case, the person asserting undue influence must go further than merely establishing the circumstances from which it is sought to have the inference drawn; there must be proof that undue influence was exercised and that by means of its exercise the will was produced.
3. In the present case, Mr Chakty complains that none of the particulars relied upon alleges or details the actual coercion that he is said to have exercised over the deceased. Addressing the particulars seriatim, Mr Chakty says as follows.
4. As to particular (a), it is said that, if made out on the evidence, this is nothing more than Mr Chakty voicing his apparent view (over three to four years preceding death) that Mr Daniel should not benefit from the deceased's estate and that it should pass to her family; and Mr Chakty argues that this cannot amount to undue influence. Further, it is said that a number of inferences inconsistent with undue influence are also apparent. Mr Chakty argues that, had he exercised undue influence over the deceased, then it ought to follow that Mr Daniel would not have benefited from the 2019 Will at all (and that, as that is not the case, it is a factor not only demonstrative of the absence of coercion but also of the presence of a sound disposing mind that weighed up the claims of potential beneficiaries). I do not accept the logic of that last submission. It is equally plausible that Mr Chakty may have thought there would be less basis for a challenge to the 2019 Will by Mr Daniel if he received some bequest under the Will.
5. As to particular (b) (that in about the 12 months preceding death the deceased said words to the effect that she did not want to have anything to do with Mr Chakty and was very angry with him and his family) and (c) (being a reference to the conversation on 20 October 2019 to which Ms Tawk has deposed), it is said that these particulars are vague and it is submitted that they do not, either in isolation or collectively, amount to a circumstance where an inference of undue influence can properly be drawn.
6. As to particular (d) (that Mr Chakty determined, in about late October 2019, to induce the deceased to make a new Will by which Mr Daniel would not receive the testamentary bounty provided for by the 2014 Will), Mr Chakty says that this does not allege coercion or an act of Mr Chakty that can amount to coercion. Mr Chakty says that, critically, it does not specify how it is that the alleged inducement was to a degree that overbore the deceased's Will so as to amount to coercion. It is said that it is not enough to infer that the propounder may have made appeals to the testator to make provision.
7. Particular (e) (that the appointment with Dot Legal was made and arranged by Mr Chakty at Mr Chakty's instigation, not the deceased's) is denied. Mr Chakty maintains his contention that the deceased sought Mr Chakty's assistance with making arrangements to see a solicitor.
8. As to particular (f) (the allegation that Mr Chakty said words to the effect that it was his son's birthday and he wanted the deceased to stay overnight), Mr Chakty argues that even if made out on the evidence (and I do not recall there being much, if any, focus on this during the hearing), it is irrelevant to an allegation of undue influence. Mr Chakty's contention is that such an allegation could not, whether in isolation or taken with other particulars, amount to an inference of coercion.
9. Particular (g) (that the deceased on 31 October 2019 said to Mr Daniel that Mr Chakty was trying to make her change her Will) is denied by Mr Chakty. (Pausing here, this is simply Mr Chakty's word against Mr Daniel's word; and while I consider that Mr Daniel is the more credible witness I cannot be comfortably satisfied that the conversation was as Mr Daniel deposes.)
10. As to particular (h) (that Mr Daniel asked the deceased whether she had signed any document and she said no), Mr Chakty says that this appears to be alleging fraud in that on the evening of 31 October 2019 Mr Daniel was told by the deceased that she did not sign any document. It is noted that the deceased's signature appears on multiple locations in that document; and that Mr Daniel does not otherwise make any allegation of fraud in his pleading. (I do not apprehend that any allegation of fraud is here being made. Rather, as I apprehend it, Mr Daniel's contention is either that the deceased had forgotten that she signed anything or that her Will had been overborne such that the deceased did not want to admit that she had signed anything.)
11. Mr Chakty says that an inference that arises from both particulars (g) and (h) is that the deceased was "perhaps being discrete" and was "attuned to the disappointment" that Mr Daniel would feel if he knew she had signed a new Will. Professor Peisah was questioned as to whether this would indicate an awareness of the moral claims of potential beneficiaries and was adamant that it would not. I cannot draw the inference that Mr Chakty here invites. Rather, the more logical explanation seems to me to be that the deceased's memory was failing and she did not remember (or understand) what had occurred that day. That is consistent with Professor Peisah's conclusion that the deceased had an episode of delirium on 31 October 2019.
12. Mr Chakty places emphasis on the lack of any particular (or evidence called) of anything the deceased had said or done in the two weeks following execution of the 2019 Will, that in any way supports the allegation of undue influence.
13. As to particular (i) (Mr Chakty changing the locks on the Starkey Street Property on13 November 2019), Mr Chakty points out that Mr Daniel deposes that he also organised a locksmith on the same day who had changed the locks on the Starkey Street Property. It is said that Mr Chakty's action on 13 November 2019 in procuring a locksmith to change the locks is not evidence of his undue influence upon the deceased (I agree - at most it indicates an awareness that the 2014 Will had been changed in favour of Mr Chakty; and that is not in dispute.)
14. As to the evidence of Ms Tawk, as already noted, it is submitted by Mr Chakty that this should be approached with care.
15. Mr Chakty invokes what was said by Gleeson CJ in Easter v Griffith (at 290) namely that that: The power freely to dispose of one's asset by will is an important right, and a determination that a person lacked (or has not been shown to have possessed) a sound disposing mind, memory and understanding is a grave matter.
16. Mr Chakty argues that the doubt in the present case is not enough to defeat his claim for probate and does not "preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution".

Defendant's submissions

1. Before turning to Mr Daniel's family provision claim, I address the submissions he makes on the testamentary issues.
2. Mr Daniel notes that the present task is to determine whether the 2019 Will is the last Will of a "free and capable" testator (citing Woodley-Page v Simmons (1987) 217 ALR 25 at 35 per Young J (as his Honour then was)); that the legal and evidentiary onus rests on each party in respect of the Will which it propounds; and that the evidentiary onus may change.
3. Mr Daniel submits that there are sufficient factors in the present case raising a doubt such that the evidentiary onus shifts to the propounder of the 2019 Will to prove it is a valid testamentary disposition. Nevertheless, Mr Daniel accepts his obligation with regard to undue influence to prove that allegation absent any presumption (citing Trustee for the Salvation Army (NSW) Property Trust v Becker (2007) 14 BPR 26,867; [2007] NSWCA 136 (Becker) at [63]-[64] per Ipp JA (Mason P and McColl JA agreeing); Winter v Crichton at 121 per Powell J).
4. Reference is made to the observations by Lindsay J in Boyce v Bunce [2015] NSWSC 1924 at [59] as to the need to focus (with vigilant care and circumspection) on the essential question as to whether the instrument propounded as a Will did express the real intentions of the deceased (his Honour there citing Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089 (Barry v Butlin) at 1091); and was the last Will of a free and capable testator (his Honour there citing Tyrrell v Painton at 157 per Lindley LJ).
5. Reference is also made to the summary of the law by Lindsay J as set out in Re Estates Brooker-Pain and Soulos [2019] NSWSC 671 at [62] (his Honour there citing at length from Tobin v Ezekiel at [43]-[49] and [51]-[53] and at [65], [69]-[72]). It is not necessary here to set out those passages. The principles are not here in dispute.
6. On the question of undue influence, Mr Daniel points to the following evidence: that the deceased was frail and impassive - not appearing in the videos produced by Mr Chakty as "an alert and purposeful woman" as Mr Chakty suggests (see Professor Peisah's opinion at T 142.45-T 143.8; except with regard to the May 2019 video); Mr Chakty, not the deceased, gave the instructions for the 2019 Will; Mr Chakty drafted the Will (T 79.24-28; T 112.30-35; 119.32-34) (compare this with the submission for Mr Chakty at [72]) that it was "professionally drawn") (it being here noted that the Will does not contain a residue clause; and that the drafts went back and forth between Mr Chakty and Mr Conti, and perhaps Mr Aziz); that Mr Chakty arranged the Dot Legal appointment; and that the deceased stayed (or, it is said, Mr Chakty "kept" the deceased) at Mr Chakty's Yagoona home on the night of 30 October 2019.
7. It is said that Mr Chakty was unable in cross-examination to explain why the deceased had to spend the night there (T 80.17-50, T 81.1-28) (it being suggested by Mr Daniel that this was so that Mr Daniel would not be alerted to his plans (see at T 94.10-12). Reference is made to the evidence of Mr Chakty at T 80.32-35 in this regard, namely that, when asked whether the "last thing that [Mr Chakty] wanted was for [the deceased] to be at [Starkey Street] and to tell [Mr Daniel] … "I'm going to see a solicitor tomorrow", Mr Chakty replied "correct". Further, it is noted that Mr Chakty brought the deceased to the appointment with the solicitors; and that the deceased failed to notice or perceive her name had twice been misspelt "Generieve". It is said that Mr Chakty probably paid Dot Legal's bill.
8. Mr Daniel says that all of these circumstances point to the fact that the deceased was not "led" but "driven" (adopting the language used by Sir James Wilde in Hall v Hall (1868) LR 1 P & D 481, cited in similar circumstances by Hallen AsJ (as his Honour then was) in Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 at [313]).
9. On the question of knowledge and approval, Mr Daniel submits that the submission that Mr Chakty's conduct was at "arm's length" should be rejected, noting the following matters. First, that Mr Chakty drafted the Will (T 79.28, T 112.30-35, and T 119.34). Second, that while it is said that Mr Chakty made an appointment with Dr Tadros for the purpose of assessing the deceased's capacity, the material produced by Dr Tadros contains no record of such consultation (the last consultation is recorded as taking place on 4 September 2019). Third, that the evidence of what explanations of the Wills were given to the deceased is unsatisfactory. It is said that, commencing on 23 October 2019, many attempts were made to explain percentage entitlements to the deceased; apparently with little success.
10. Insofar as Mr Chakty's evidence was that he read out the 2014 Will to the deceased in English, and then "explained" it in Arabic, Mr Daniel says that the nature of this explanation was not in evidence. It is said that it is clear from his cross-examination (see, for example at T 51.26-28) that each beneficiary's percentage share was not fully explained, and that Mr Chakty gave only one example.
11. Mr Nahas' evidence of translation (at Mr Chakty's Yagoona house on 26 October 2019) was that: he read to the deceased what was written in the 2014 Will in Arabic (see at T 172.37-41); he read the Will, as opposed to explaining to the deceased (see at T 173.4-6); when it was put to him that he read the Will (in Arabic) to the deceased, and did not explain it, he attempted to qualify his evidence by saying he had "at times" explained it (as distinct merely from "reading" it in Arabic) (see at T 173.11-16); he did not make any notes of what he did, nor could he remember what sections he said he had explained (see at T 173.21-29).
12. It is said that Mr Nahas' oral evidence of the translation on 31 October 2019 was in essence that: the deceased did not repeat to Mr Nahas what he had translated to her (see at T 176.50,T 177.1-6); his view that the deceased understood what he was saying to her was premised on his observation of her physical demeanour (see at T 176.36-41); the deceased did not say (or repeat) to Mr Nahas what was in the Will (see at T 177.26-31) (thereby, it is said, failing to evince an independent understanding of its contents); and Mr Nahas could not be sure that the document he read on 31 October 2019 was the same document he had read to the deceased on 30 October 2019 at Mr Chakty's home (see at T 174.46-49).

Determination as to testamentary issues

1. Mr Chakty, as propounder of the 2019 Will, accepts that he bears the onus of proving that the 2019 Will was the last Will of a "free and capable" testator (i.e., a testator who had testamentary capacity) and, separately, that the testator "knew and approved of its contents at the time it was executed so that it can be said that the testator comprehended the effect of what he was doing" (see Tobin v Ezekiel at [44]ff per Meagher JA (Basten and Campbell JJA agreeing)).
2. It is sufficient if a testator knows that the document is his or her Will, and correctly appreciates how it deals with his or her property; the testator does not need to understand the legal terminology employed by the drafter of the Will, nor every effect and consequence of the Will (see GE Dal Pont, Law of Succession (3rd ed, 2021, LexisNexis Butterworths) at [2.27]).
3. Mr Daniel accepts that he bears the onus of establishing that there was actual undue influence that resulted in the 2019 Will (and I turn to that issue in due course).
4. Turning first to the issue of testamentary capacity, as has already been noted, in Tobin v Ezekiel, it was said by Meagher JA (at [45]) that, if the Will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent (which presumption may be displaced by circumstances which raise a doubt as to the existence of testamentary capacity, in which case the evidential burden will shift to the party propounding the Will to show that the testator was of "sound and disposing mind"). Meagher JA there went on to note (at [46]) that, upon proof of testamentary capacity and due execution, there is also a presumption of knowledge and approval of the contents of the Will at the time of execution (which presumption may in turn be displaced by any circumstance which creates a well-grounded suspicion or doubt as to whether the Will expresses the mind of the testator, in which case the proponent must prove affirmatively that the testator knew and approved of the contents of the document). There is a rebuttable presumption, in the absence of proof to the contrary, that the formal requirements of the Succession Act have been complied with (see Weiss v Weiss [2020] NSWSC 1064 at [70] per Hallen J).
5. Testamentary capacity is distinct from the requirement of knowledge and approval, as the former must be proved at an anterior stage to determine whether any presumptions arise which shape the analysis of the latter. In this regard, in Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 (Veall), Santamaria JA made the following observations at [173]: "Knowing and approving of the contents of one's will is traditional language for saying that the will 'represented [one's] testamentary intentions'". "Testamentary capacity" and "knowledge and approval" are distinct concepts. The former is a necessary but not a sufficient condition for the establishment of the latter. In Hoff v Atherton, Chadwick LJ said: [I]t may well be that where there is evidence of a failing mind - and, a fortiori, where evidence of a failing mind is coupled with the fact that the beneficiary has been concerned in the instructions for the will - the court will require more than proof that the testator knew the contents of the document which he signed. If the court is to be satisfied that the testator did know and approve the contents of his will - that is to say, that he did understand what he was doing and its effect - it may require evidence that the effect of the document was explained, that the testator did know the extent of his property and that he did comprehend and appreciate the claims on his bounty to which he ought to give effect. But that is not because the court has doubts as to the testator's capacity to make a will. It is because the court accepts that the testator was able to understand what he was doing and its effect at the time when he signed the document, but needs to be satisfied that he did, in fact, know and approve the contents - in the wider sense to which I have referred.
6. At [128] of Mekhail v Hana [2019] NSWCA 197 (Mekhail v Hana), Leeming JA (with whom Basten and Emmett JJA agreed) cited those remarks of Santamaria JA in Veall with approval, but not without qualification. In particular, his Honour recognised that evidence relevant to testamentary capacity may also be relevant to knowledge and approval: … Of course, "testamentary capacity" and "knowledge and approval" are distinct concepts, as Santamaria JA noted in Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 at [173]. However, they are linked. Much evidence will be relevant to both issues. And testamentary capacity is a necessary but not a sufficient condition for establishing knowledge and approval. Thus Scarman J observed of the issues of testamentary capacity, knowledge and approval, undue influence and fraud that they very often merged into one another: In the Estate of Fuld (dec'd) [1968] P 675 at 722.
7. Notwithstanding the above, it is apposite to note the artificiality of analysing a case in terms of dispositive presumptions (see in this regard Mekhail v Hana at [165]-[168] per Leeming JA, citing with approval Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430 (Gill v Woodall) at [22] per Lord Neuberger MR; see also Chant v Curcuruto [2021] NSWSC 751 at [662]-[663] per Hallen J). Indeed, it has been suggested that the presumption is not a "legal rule" as such but rather a common "inference" drawn from particular types of evidence (see Justice Lindsay, 'The Why and What of Suspicious Circumstances in Probate Litigation', paper delivered to Law Society of South Australia Succession Law Conference, Adelaide, 16 November 2018).
8. The test for determining testamentary capacity as set out by Cockburn CJ in Banks v Goodfellow is as follows: It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
9. As I have noted elsewhere, Myers J, writing extra-judicially in the Australian Bar Gazette (see "Testamentary Capacity" (1967) 2(2) Aust Bar Gaz 3), referred in this context to the three "R's" (i.e., the need for the testator to have the capacity to remember, to reflect and to reason), stating that: He must be able to remember, so that he can call to mind the property at his disposal and those who may have claims upon him, to reflect so that he can consult within himself on the relative weight of their claims, and to reason so that he can judge, having regard to his assets, how far, if at all, he should give effect to them. … It is to be observed that it is not necessary for the testator to do any of those things. All that is required is that he should be able to do them and, if he can, his will will be valid no matter how unreasonable or capricious it may be. Testamentary dispositions are always relevant to the question of testamentary capacity, but I have never known a case in which they have done more than create suspicion on the one hand, or served to confirm capacity on the other.
10. It must also be borne in mind the caution sounded by Gleeson CJ as to the task of determining testamentary capacity in Easter v Griffith at 290 (and see the authorities that have considered the circumstances in which the onus of proof of testamentary capacity is satisfied where there is doubt raised as to the presumption of capacity, namely, Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13 at 343 per Williams J; Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67 (Worth v Clasohm) at 453 per Dixon CJ, Webb and Kitto JJ).
11. In Worth v Clasohm, it was said (at 453) that: … The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff's claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propounded is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution. …
12. I have explained above my reasons for accepting that the first and second of the requirements set out in Banks v Goodfellow are or should be taken to be here satisfied. In summary, I am satisfied that the deceased knew and appreciated the nature of the act of making a Will and its effects; and knew at least that her estate comprised the two properties. Relevantly, Windeyer J in Kerr v Badran (at [49]) stated in effect that knowledge of the extent of the estate does not necessarily mean knowledge of each particular asset or knowledge of the value of that asset.
13. Where I am not satisfied, having examined with vigilance the evidence, is that the third requirement has been satisfied. I find that the deceased, who had neuro-degenerative vascular disease and other disorders, was at high risk of delirium and I accept the evidence of Professor Peisah that it is most probable that the deceased was in an episode of delirium on that date. In that regard, the videos of the deceased in October and November 2019 cause me great concern as to her capacity on 31 October 2019.
14. I have thus concluded that the deceased did not have testamentary capacity as at 31 October 2019. However, even if the deceased had a period of lucidity in which the deceased had capacity at the time that the 2019 Will was executed, I am not satisfied that the deceased knew and approved of the contents of the 2019 Will, as I explain below.
15. The second issue raised in the present context is as to knowledge and approval. It must be determined on the balance of probabilities that the testator knew and approved the terms and effect of the Will; and that it be the testator's true Will (see Tobin v Ezekiel at [48]). The evidence required to satisfy that onus varies with the circumstances (see Tobin v Ezekiel at [48]; Worth v Clasohm at 453; Bailey v Bailey (1924) 34 CLR 558; [1924] HCA 21 at 570 per Isaacs J; and Barry v Butlin at 484). In this regard, as already noted, the authorities speak of the need for "vigilance" and "careful scrutiny". In cases of a failing mind, it may be appropriate to make an assessment of whether the testator actually weighed the claims on his or her bounty (see Hoff v Atherton [2004] EWCA Civ 1554 at [60] per Chadwick LJ).
16. Kunc J in Phillips v Phillips [2017] NSWSC 280 (at [131]) held that an appreciation of the legal effect of every clause in a Will is unnecessary; rather, what must be shown is that the deceased understood that he or she was executing a Will and the practical effect of the central clauses in the document. Reference has already been made in the summary of the parties' submissions above to what was said by Meagher JA in Tobin v Ezekiel at [46]-[48] (and see the passages cited by his Honour from Nock v Austin at 523-524 and 528).
17. I accept that evidence that a testator actually read a Will is not the only way of proving knowledge and approval; and that knowledge and approval may be shown by instructions prior to the execution of the Will (see Astridge v Pepper [1970] 1 NSWR 542 at 548 per Helsham J; Paraskov v Paraskos [2002] WASC 109 at [50] per Pullin J (Paraskov); In the Will of Steward (deceased) [1964] VR 179; and Fincham v Edwards (1842) 163 ER 656). It has been said that it is not necessary that a testator read every word, nor that the testator understand the legal effect of the words used (noting that it has been said that "[i]f the words were selected by a draftsman to whom the testator confided the task of drafting his will … the words must stand, even if the testator was ignorant of the actual words used" (see In Re Horrocks (deceased) [1939] P 198 at 216 per Greene MR, Finlay and Luxmoore LJJ). Indeed, an illiterate person can make a valid Will (see Paraskov at [50]).
18. Insofar as reliance is placed by Mr Chakty on the observation of Macfarlan JA (with whom Bell P and McCallum JA, as their Honours then were, agreed) in Drivas v Jakopovic at [52] that an experienced solicitor's evidence is valuable when considering testamentary capacity, as solicitors become attuned to recognising when the capacity of a client may be suspect, in the present case there was no experienced solicitor present when the 2019 Will was executed; nor was there an experienced solicitor who engaged directly with the deceased to obtain instructions in relation to the 2019 Will. Moreover, the only solicitor present when the 2019 Will was executed was clearly not attuned to recognising not only that capacity might be suspect but also that there were circumstances that should have aroused suspicion having regard to the involvement of the main beneficiary under the new Will in its preparation and execution.
19. It is relevant here to note what has been said in academic commentary as to the standards required of a solicitor retained to prepare and attend on the execution of a Will, see GE Dal Pont, The Law of Succession (3rd ed, 2021, LexisNexis Butterworths) at [24.6]-[24.7]: … lawyers usually lack special expertise or training in assessing testamentary capacity, and may lack authority to inquire of others, such as family members or medical advisors, without the client's instructions. As such, the presence of warning signs - advanced age, ill health, irrational behaviour, disorientation, clear signs of lack of understanding, or plainly defective recollection of assets or family members - should lead a lawyer to ask questions designed to probe the testator's understanding of basic matters germane to capacity. A lawyer cannot, it is said, discharge that duty 'by asking perfunctory questions, getting apparently rational answers, and then simply recording in legal form the words expressed by the client'. The following may, to this end, represent good practice: • The lawyer should ask questions to ascertain whether the testator understands: -that he or she is making a will and its effect; -the extent of the property of which he or she is disposing; and -the claims to which he or she ought to give effect. • A medical practitioner, preferably one who has been treating the testator,15 should be present, and in making a thorough examination of the testator's condition should advise the lawyer as to the testator's capacity and understanding (and ideally supply a written certificate for this purpose). • The lawyer should make a detailed written record, including the results of the examination recorded by the medical practitioner and notes made by those present. A lawyer who, as a result, believes the testator to exhibit sufficient testamentary capacity can prepare the will. It is advisable in this respect for the lawyer to be present on execution of the will, as ideally should the medical practitioner and any others present at the time of instruction. At every stage detailed notes of the events and discussions should be taken. In this context, it has been suggested that 'careful solicitors … will not play God - or even judge - and will supervise the execution of the will while taking, and retaining, comprehensive notes of their observations on the question [of capacity]'. In this respect, the greater and more complex the testator client's estate, the more careful a prudent lawyer will be in documenting his or her instructions and impressions. A lawyer who, on the other hand, is left in real doubt as to the testator's capacity to give instructions should not draw the will. Not only could drawing the will in these circumstances constitute a breach of duty to an incapable client, it could potentially expose the lawyer to a claim in negligence - to third parties - if the will is successfully challenged. Should the retainer be successfully challenged on the basis that the lawyer should have known of the client's incapacity, the lawyer may be exposed to a personal costs order for those proceedings. And disciplinary tribunal determinations reveal multiple instances where lawyers have been found to have committed unsatisfactory professional conduct arising out of wills and/or powers of attorney whose donors lacked capacity.
20. The services provided in the present case regrettably fall well below those standards.
21. The inquiry into suspicious circumstances relates directly to knowledge and approval, and thus is concerned with the circumstances surrounding the execution of the Will (see Thompson v Bella-Lewis [1997] 1 Qd R 429 at 451 per McPherson JA, in dissent but not on this point; see also GE Dal Pont, Law of Succession (3rd ed, 2021, Lexis Nexis Butterworths) at [2.33]). However, as noted by Leeming JA in Mekhail v Hana at [171]-[172], the limits of the concept of "suspicious circumstances" cannot be regarded as settled (see, for example, Vernon v Watson, in which Burchett AJ suggested at [23] that it was sufficient that a suspicious circumstance had a connection with the existence of the Will, and that connection need not be temporal).
22. As to what evidence is sufficient to prove that the testator knew and approved the Will, the degree of suspicion will vary with the circumstances, and will not always arise from suspicion of wrongdoing or improper dealing on the part of anyone (In the Matter of the Estate of Eva Burns (deceased); Burns v Burns [2016] EWCA Civ 37 at [52]-[53] per McCombe LJ, with whom Treacy and Longmore LJJ agreed). The fact that a Will has been prepared by a solicitor and read to the testator has been said to be powerful evidence that it represents the testator's intentions; nevertheless, this fact is not conclusive, nor does it preclude a finding of suspicious circumstances (see Veall per Santamaria JA at [184]-[186]; see also Gill v Woodall at [22] per Lord Neuberger MR).
23. The circumstance that a beneficiary wrote or prepared the Will is one which should generally arouse suspicion and call for the vigilant and anxious examination by the court of the evidence as to the testator's appreciation and approval of the contents of the Will (see Nock v Austin at 528 per Isaacs J). Thus, in Pates v Craig (Supreme Court (NSW), Santow J, as his Honour then was, 28 August 1995, unrep), evidence of circumstances giving rise to a suspicion that the testator did not know or approve of the contents of the Will included that the solicitor responsible for preparing and reading the Will was the solicitor of the sole beneficiary under the Will, and that the Will was prepared at the instigation of the sole beneficiary. Other factors that are relevant are the size of the benefit conferred upon the drafter of the Will, the relative positions of the drafter to the testator and whether the testator received independent advice concerning the Will (see, for example, Re Proud (1922) 18 Tas LR 10; Clocchiatti v Pierobon [2014] NSWSC 488 per White J, as his Honour then was).
24. In the present case, there are clearly suspicious circumstances sufficient to call for the kind of examination of the evidence referred to in the above authorities. The main beneficiary of the change to the deceased's testamentary dispositions was Mr Chakty; the arrangements made for the preparation of the 2019 Will were put in place by Mr Chakty; he drafted the first draft of the Will and was responsible (via Mr Conti) for providing instructions in relation to the Will; the deceased received no legal advice in relation to the provisions of the Will prior to 31 October 2019 when she arrived to execute the Will (having been taken there by Mr Chakty after having spent the night at his home and not her usual place of residence); and the explanation given to the deceased of the 2019 Will at the time of execution was confined to an "interpretation" in Arabic of the provisions of the Will with some (unidentified) answers to (unidentified) questions by the newly qualified solicitor who had only read the Will for the first time that morning and cannot have had any idea of the instructions or background to the Will changes (not least because there seem to have been no notes on the file at all). Furthermore, any experienced solicitor would surely have noted that there was no clause dealing with the residue of the estate - and at least should have asked about this.
25. As to the typographical error in the spelling of the deceased's name, no doubt such errors can occur (and be overlooked in the proofing of documents), although one would have thought that care would have been exercised in this regard. More extraordinary is the suggestion, after the death of the deceased apparently, that this could be "fixed up" in some unexplained fashion. All this bespeaks inexperience in a newly qualified solicitor who (while professing an awareness of Banks v Goodfellow as at October 2019, was not apparently able to recall any legal subject he had studied other than copyright law).
26. I am certainly not satisfied that the deceased had the requisite knowledge and approved the 2019 Will. It should not be admitted to probate.
27. As to the claim of undue influence, here the onus becomes relevant. I am firmly of the view that Mr Chakty influenced the deceased in relation to her testamentary dispositions - the multiple readings (or process of "interpretation") of the Will and the suggestions for correction of the spelling of his name and for the addition of another family member establishes his concern to do so. The question is whether that amounted to actual undue influence resulting in the 2019 Will.
28. I have noted above my findings as to the deceased's mental condition and lack of testamentary capacity at the time; and my conclusion as to the instigation by Mr Chakty of the arrangements for, and the drafting of, the 2019 Will; and control wielded by Mr Chakty over the instructions for the drafting of the 2019 Will). Mr Chakty has undoubtedly failed to act with probity, and I do not doubt that he sought to secure himself an advantage - to the detriment of the deceased, and Mr Daniel. However, unscrupulousness and greed are insufficient in and of themselves to prove actual undue influence, and the onus of so proving lay with Mr Daniel.
29. In Boyse v Rossborough (1857) 6 HLC 2, the Earl of Halsbury LC said (at 48): [I]nfluence, in order to be undue within the meaning of any rule of law which would make it sufficient to vitiate a will, must be an influence exercised either by coercion or by fraud.
30. In Becker (at [63]) Ipp JA (with whom Mason P and McColl JA agreed) opined that undue influence, in a probate context, is constituted by "conduct that overbears the will of the testatrix so that she makes the will without intending and desiring the disposition made thereby". The volition of the testatrix must be overpowered so that her mind does not accompany her act in making the will. His Honour went on to quote Hannen P in Wingrove v Wingrove (1885) 11 PD 81 (at 82): [i]t is only when the will of a person who becomes a testator is coerced into doing that which he or she does not desire to do that it is undue influence.
31. In Becker (at [72]) quoted, with approval, Williams v Goude (1821) 1 Hag Ecc 577 where Sir John Nicholl said (at 581): The influence to vitiate an act must amount to force and coercion destroying free agency - it must not be the influence of affection and attachment - it must not be the mere desire of gratifying the wishes of another; for that would be a very strong ground in support of a testamentary act: further, there must be proof that the act was obtained by this coercion - by importunity which could not be resisted: that it was done merely for the sake of peace, so that the motive was tantamount to force and fear. [emphasis added]
32. At [73], his Honour quoted Hall v Hall (1868) LR 1 P & D 481 where Sir JP Wilde said (at 482): To make a good will, a man must be a free agent; but all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like - these are all legitimate, and may be fairly pressed on a testator.
33. While I am of the opinion that Mr Daniel has certainly proven that Mr Chakty influenced the deceased in relation to her testamentary dispositions, I am left with some hesitation as to whether the evidence as a whole is sufficient to establish actual undue influence. Ultimately, however, nothing turns on this due to my earlier findings as to lack of testamentary capacity and lack of knowledge and approval. It is not necessary therefore to come to a concluded view.

Mr Daniel's submissions as to the family provision claim

1. Mr Daniel makes clear that his family provision claim is only relevant if the 2019 Will is admitted to probate. Therefore, in light of the conclusions I have reached above, it is strictly not necessary to determine this claim. Nevertheless, in the event that I be wrong as to the testamentary issues, I briefly deal with this below.
2. Mr Daniel notes that his family provision claim is brought within time (within 12 months of the deceased's death). It is submitted that Mr Daniel is an eligible person pursuant to s 57(1)(e) of the Succession Act, in that he was at the time of the deceased's death (and since 2015) her full-time carer and resident at the Starkey Street Property and dependent upon her for accommodation. It is submitted that there are "factors warranting" pursuant to s 59(1)(b) of the Succession Act, in circumstances where Mr Daniel was a natural object of her testamentary bounty, he being a beneficiary under the 2014 and 2019 Wills. It is noted that none of the other beneficiaries of the 2019 Will has put forward his or her circumstances as constituting "competing need".
3. It is noted that at the date of hearing, the deceased's estate comprised two parcels of residential realty at Hurlstone Park, each with a probable value of over $2 million together with moneys in bank accounts; probably between $100,000 and $200,000. Mr Daniel's costs up to and including the conclusion of a five-day trial are $383,056 on the ordinary (80%) basis and $426,440 on the solicitor/client basis.
4. Mr Daniel receives a benefit pursuant to cl 8(c) of the 2019 Will. In respect of the Dunstaffenage Street Property, Mr Daniel receives a 6% share of the property, the proceeds of which are divided amongst 15 named persons. If that property is worth $2 million, 6% is $120,000. However, it is submitted that it can reasonably be assumed that the costs of the litigation may consume the estate cash and the two parcels of realty may need to bear some of the costs of the litigation, rateably, pursuant to the Probate and Administration Act 1898 (NSW), Schedule 3, Part 2. It is said that the entitlement can only be worked out with precision at the conclusion of the litigation and that it may well be that the entitlement does not exceed $100,000.
5. It is submitted that in the facts and circumstances of Mr Daniel's financial and personal provision he is entitled to greater provision than that provided under the 2019 Will.
6. In his affidavit sworn 12 May 2020, Mr Daniel deposed to his financial circumstances. At [43] Mr Daniel deposed to his employment as a personal assistant for a doctor in Liverpool. Mr Daniel estimated his annual income to be approximately $36,000 (see at [43] of his affidavit of 12 May 2020). Mr Daniel's assets comprise his vehicle, a unit in Wollongong (with an estimated value of $620,000, encumbered by a mortgage with $450,000 outstanding) and a modest amount of superannuation.

Plaintiff's submissions as to the family provision claim

1. As to Mr Daniel's alternative claim for provision pursuant to s 59(2) of the Succession Act, Mr Chakty submits as follows.
2. First, as to whether Mr Daniel is an eligible person under the definition in s 57(f) of the Succession Act, it is noted that Mr Daniel claims that he was in a close personal relationship with the deceased at the time of her death, that relationship being described by him (and Ms Tawk) as that of a carer. In determining whether Mr Daniel was in a close personal relationship with the deceased, consideration may be given to the matters set out in s 60(2)(a) of the Succession Act.
3. In that regard, insofar as Mr Daniel claims to have had an extended association with the deceased (including that he was born at the Starkey Street Property in 1970), Mr Chakty says that there are gaps in Mr Daniel's evidence. Mr Chakty has deposed that the deceased was generous in offering her home at no or reduced rent for recent overseas arrivals (presumably from the Lebanese community) and says that it is in those circumstances that Mr Daniel's father moved into the Starkey Street Property before subsequently moving out. (As noted above, in oral evidence Mr Daniel corrected this evidence to be a reference to being born at the Dunstaffenage Street Property but in any event nothing to my mind turns on this - it is clear that, wherever Mr Daniel was born, Mr Daniel had a long association with the deceased.)
4. Insofar as Mr Daniel's evidence is that between 2013 and 2015 he would regularly stay, for at least two to three times a week, and care for the deceased by driving her to various medical appointments and assisting her with finances and daily living chores; and that at some point in 2015 he had commenced living full time at the Starkey Street Property, as her full-time carer and attended to the deceased's daily assistance in all facets of her life, Mr Chakty cavils with the proposition that simply by moving in with the deceased in the Starkey Street Property Mr Daniel became her full-time carer. It is said that there is no evidence presented by Mr Daniel that the deceased required full time care from as early as 2015, or at any other time; and that nor is there any objective evidence that the deceased met any sort of criteria (or was ever assessed) to require full-time care.
5. Mr Chakty accepts that, since 2018, palliative care nurses visited the deceased on a weekly basis but says (noting that Mr Daniel arranged for that to occur) that this can hardly be relied upon as an example of care by Mr Daniel to the deceased (and Mr Chakty submits that it invites the contrary inference).
6. Mr Chakty says that the affidavit evidence is "thin on the detail, or level" of the care that Mr Daniel says he provided to the deceased over the years. Insofar as Mr Daniel states that the deceased's medical appointments occurred once a fortnight and that he would primarily attend with the deceased, Mr Chakty said that taking her to various medical appointments and arranging for carers, cannot compare to the taxing and constant demands of a full-time carer.
7. Mr Chakty further argues that it is contradictory for Mr Daniel, on the one hand, to contend that he was the deceased's full-time carer between 2015 and 2019 and at the same to admit in various parts of his main affidavit that he was working full-time (and also on weekends) from at least 2018 onwards. As noted earlier, Mr Chakty refers to the time spent by Mr Daniel in Wollongong in this context.
8. Mr Chakty submits that what is likely is that the nature of the relationship between Mr Daniel and the deceased benefited Mr Daniel a lot more than it did the deceased; noting that Mr Daniel moved in with a promise of caring for the deceased. It is said that, in return, Mr Daniel may have persuaded the deceased to reward him with a substantial part of her testamentary bounty, but that he soon became busy with his work commitments. Mr Chakty also maintains that Mr Daniel appears not to have paid any rent to the deceased and it is noted that Mr Daniel continues to reside in the Starkey Street Property.
9. Mr Chakty points out that the hospital records (though limited to the 12 months preceding death) indicate that the deceased was hospitalised on three separate occasions. It is accepted that it was Mr Daniel who spoke with staff and on occasion liaised with hospital staff on the deceased's behalf but it is said that on most occasions this was not by being constantly by the deceased's side (as Mr Chakty argues one would expect from a full-time carer) but, rather, by giving instructions over the telephone. Additionally, it is said that taking the deceased, whether on routine medical appointments or an urgent hospital visit, was a task shared by various members of the deceased's extended family, including Mr Chakty and his wife.
10. Mr Chakty submits that, having regard to circumstances of the case, there are no "factors warranting" the making of the application.
11. Additionally, it is submitted that adequate provision for the proper maintenance, education or advancement in life of Mr Daniel has been made by the 2019 Will by reference to the 6% residual share in the Dunstaffenage Street Property.
12. It is said that Mr Daniel has not provided any documents (such as bank records or tax assessments) in support of his position, noting that an applicant for provision must make full and frank disclosure of his or her financial and material circumstances, at the time of hearing. Complaint is made that there is no objective evidence of the financial resources or needs of Mr Daniel.
13. If the jurisdictional question in s 59 of the Succession Act is met, Mr Chakty says that the above factors are also relevant to whether a family provision order ought to be made.
14. As to the provision made for Mr Daniel by the deceased in her lifetime and in 2019 Will, it is noted that Mr Daniel has deposed that the deceased in May 2019 had insisted that she would repay a $175,000 loan that he had taken from his father in order to purchase a property in Wollongong. It is said that this gift was, on any view, substantial and ought to be considered more than adequate consideration in the circumstances of this case (noting that it permitted Mr Daniel to purchase a property in Wollongong).
15. Further, as noted above, it is said that there has been significant provision made for Mr Daniel in the 2019 Will by reference to the 6% share of the Dunstaffenage Street Property (which it is said amounts to well over $100,000 based on a conservative estimate of total value and taking into account estate costs).
16. Thus, Mr Chakty submits that a family provision order ought not to be made in the circumstances of this case.

Determination

1. Section 59 of the Succession Act provides that: 59. When family provision order may be made: (1) The Court may, on application of Division 1, make a family provision order in relation of a deceased person, if the Court is satisfied that: (a) the person in whose favour the order is to be made is an eligible person, and (b) in the case of a person who is an eligible person by reason only of paragraph (d), (e) or (f) of the definition of "eligible person" in section 57--having regard to all the circumstances of the case (whether past or present) there are factors which warrant the making of the application, and (c) at the time when the Court is considering the application, adequate provision for the proper maintenance, education or advancement in life of the person in whose favour the order is to be made has not been made by the will of the deceased person, or by the operation of the intestacy rules in relation to the estate of the deceased person, or both. (2) The Court may make such order for provision out of the estate of the deceased person as the Court thinks ought to be made for the maintenance, education or advancement in life of the eligible person, having regard to the facts known to the Court at the time the order is made.
2. Section 57 of the Succession Act defines "eligible person", relevantly, as follows: 57(1) Eligible persons: (definition of "eligible person") … (e) a person: (i) who was, at any particular time, wholly or partly dependent on the deceased person, and (ii) who … was at that particular time or at any other time, a member of the household of which the deceased person was a member.
3. In the present case, I accept that Mr Daniel was at least partly dependent on the deceased for accommodation and was a member of her household from around 2015. That leads to the question whether there are "factors warranting" the bringing of the application by Mr Daniel, He must prove that he is a "natural object of the deceased's testamentary bounty" (see Re Fulop (Deceased) (1987) 8 NSWLR 679 at 681 where McLelland J, as his Honour then was, referred, inter alia, to "factors which when added to the facts which render the applicant an 'eligible person' give him or her the status of a person who would be generally regarded as a natural object of testamentary recognition by a deceased"). In the present case, the fact that Mr Daniel is a natural object of testamentary recognition can be seen by the fact that provision was indeed made for him in both the 2014 and 2019 Wills. In determining whether there are factors warranting, regard may be had to what the community might expect of a testator even if the claimant is an "eligible" person.
4. Section 59 of the Succession Act provides that the Court may make a family provision order if it is satisfied that, in addition to the applicant being an eligible person and there being factors warranting the making of the application, and, at the time when the Court is considering the application, adequate provision for the proper maintenance, education, or advancement in life of the person in whose favour the order is to be made has not been made by the Will of the deceased person.
5. The adequacy of provision has been considered in various decisions (see Sgro v Thompson [2017] NSWCA 326 and those set out below). The requirement of "adequate" provision concerns the quantum or amount of the maintenance, education, and advancement in life (see Devereaux-Warnes v Hall (No 3) (2007) 35 WAR 127; [2007] WASCA 235 at [77] per Buss JA, as the President then was). In Vigolo v Bostin (2005) 221 CLR 191; [2005] HCA 11 (Vigolo) at [122] per Callinan and Heydon JJ, the following was said as to the "adequacy" of provision: Adequacy of the provision that has been made is not to be decided in a vacuum, or by looking simply to the question whether the applicant has enough upon which to survive or live comfortably. Adequacy or otherwise will depend upon all of the relevant circumstances, which include any promise which the testator made to the applicant, the circumstances in which it was made, and … changes in the arrangements between the parties after it was made. These matters however will never be conclusive. The age, capacities, means, and competing claims, of all of the potential beneficiaries must be taken into account and weighed with all of the other relevant factors.
6. In Hunter v Hunter (1987) 8 NSWLR 573, Kirby P said the following (at 575): The adjectives "adequate" and "proper", qualifying respectively the provision that is made and the purposes ("maintenance, education or advancement in life") for which such provision is needed, emphasise the task of evaluation which is before the Court. It is an evaluation which necessarily takes the Court to the provision actually made by the will, on the one hand, and to the needs for maintenance, education and advancement in life of the claimant, at the date of death, on the other. It has conventionally been said that the test applied, to determine whether the provision made is "adequate" requires of the Court not only a scrutiny of the needs of the claimant for maintenance, education or advancement in life such as were reasonably foreseeable to the testator but also a consideration of the relationship between the testator, the claimant and the other relevant persons having similar claims for adequate provision to be made for them: Goodman v Windeyer (1980) 144 CLR 490 at 496 applying Bosch v Perpetual Trustee Co Ltd [1938] AC 463 at 477-479 (PC).
7. In Vigolo, Callinan and Heydon JJ said at [115] that: 'Maintenance' may imply a continuity of a pre-existing state of affairs, or provision over and above a mere sufficiency of means upon which to live. 'Support' similarly may imply provision beyond bare need. The use of the two terms serves to amplify the powers conferred upon the court. And, furthermore, provision to secure or promote 'advancement' would ordinarily be provision beyond the necessities of life. It is not difficult to conceive of a case in which it appears that sufficient provision for support and maintenance has been made, but that in the circumstances, say, of a promise or an expectation reasonably held, further provision would be proper to enable a potential beneficiary to improve his or her prospects in life, or to undertake further education.
8. The statutory enquiry (being whether the deceased made adequate provision for an applicant's proper maintenance) is determined from the perspective of a wise and just testator (aware of all the relevant circumstances) informed by accepted community standards (Bosch v Perpetual Trustee Company [1938] AC 463 at 478-479 per Lord Romer; see also McKenzie v Topp [2004] VSC 90 per Nettle J (his Honour then sitting in the Supreme Court of Victoria) and Stone v Stone [2016] NSWSC 605 per Brereton J, as his Honour then was).
9. Turning to the matters set out in s 60(2) of the Succession Act, I make the following brief observations.

(a) any family or other relationship between the applicant and the deceased person, including the nature and duration of the relationship;

1. There is not a biological relationship in the present case but I accept that there was a close association over a long period of time and that from 2013 onwards Mr Daniel provided assistance to the deceased (whether as a formal carer or simply by way of companionship or the like is not determinative).

(b) the nature and extent of any obligations or responsibilities owed by the deceased person to the applicant, to any other person in respect of whom an application has been made for a family provision order or to any beneficiary of the deceased person's estate

1. The deceased had no immediate family to whom she owed obligations or responsibilities and no other person has sought provision or put his or her circumstances in issue.

(c) the nature and extent of the deceased person's estate (including any property that is, or could be, designated as notional estate of the deceased person) and of any liabilities or charges to which the estate is subject, as in existence when the application is being considered

1. The deceased's estate is in the order of around $4 million in property and cash.

(d) the financial resources (including earning capacity) and financial needs, both present and future, of the applicant, of any other person in respect of whom an application has been made for a family provision order or of any beneficiary of the deceased person's estate

1. In his 12 May 2020 affidavit, Mr Daniel deposes to his assets and liabilities including superannuation. In summary, his current gross monthly income is approximately $3,600 (working as a personal assistance for a doctor in Liverpool) and his current net monthly income was approximately $3,000. Mr Daniel has deposed to the purchase on 21 March 2019 of the Wollongong unit (for the sum of $645,000).
2. The beneficiaries under the deceased's 2019 Will do not put forward their competing needs to be taken into account in considering Mr Daniel's claim.

(e) if the applicant is cohabiting with another person, the financial circumstances of the other person

1. Mr Daniel is not cohabitating with any other person.

(f) any physical, intellectual or mental disability of the applicant, any other person in respect of whom an application has been made for a family provision order or any beneficiary of the deceased person's estate that is in existence when the application is being considered or that may reasonably be anticipated

1. Mr Daniel does not have any physical, intellectual or mental disability, nor could any such disability reasonably be anticipated.

(g) the age of the applicant when the application is being considered

1. At the time of his 12 May 2020 affidavit, Mr Daniel was aged 49 years, so he was nearly 51 years old at the date of the hearing.

(h) any contribution (whether financial or otherwise) by the applicant to the acquisition, conservation and improvement of the estate of the deceased person or to the welfare of the deceased person or the deceased person's family, whether made before or after the deceased person's death, for which adequate consideration (not including any pension or other benefit) was not received, by the applicant

1. Mr Daniel has undoubtedly made a contribution to the well-being of the deceased in relation to his role as carer (whether or not that be properly described as a full-time role) and providing companionship and assistance to the deceased over a number of years - something that was clearly important to the deceased as is implicit in the proviso to the 2014 Will. Mr Daniel has also deposed to the payment of funeral costs of approximately $18,000 for the deceased out of his personal funds.

(i) any provision made for the applicant by the deceased person, either during the deceased person's lifetime or made from the deceased person's estate

1. The deceased made provision for Mr Daniel during her lifetime in terms of accommodation at the Starkey Street Property apparently rent-free and the not insubstantial gift of $179,000 to Mr Daniel in relation to the Wollongong Unit; and made provision for him under the 2019 Will of a 6% share of the proceeds of sale of the Dunstaffenage Street Property.

(j) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person

1. I have referred above to the various Wills made by the deceased in which her testamentary intentions were made clear. I have also referred to the statements attributed by various deponents as to what the deceased said about her Will. Relevantly, even on Mr Chakty's case, the deceased wished to make provision for Mr Daniel in her Will.

(k) whether the applicant was being maintained, either wholly or partly, by the deceased person before the deceased person's death and, if the Court considers it relevant, the extent to which and the basis on which the deceased person did so

1. Mr Daniel received the benefit of accommodation from 2013-2015 on an intermittent basis and full-time from mid-2015 onwards but otherwise was not being maintained in any way by the deceased.

(l) whether any other person is liable to support the applicant

1. There is no evidence of any other person liable to support Mr Daniel although it appears that he has a son who would have filial obligations towards him.

(m) the character and conduct of the applicant before and after the date of the death of the deceased person

1. There were no submissions directly addressed to this factor. Although criticism appears to be made of Mr Daniel's professed role as a carer, there is no reason to doubt that Mr Daniel assisted the deceased in the years before her death. I find that there is compelling evidence that Mr Daniel did provide adequate care for the deceased, and, perhaps more importantly, provided the deceased with companionship, which she so clearly desired. I find that there is compelling evidence that there was a genuine affection shared by the deceased and Mr Daniel for one another.

(n) the conduct of any other person before and after the date of the death of the deceased person

1. Again, there were no submissions directly addressed to this factor. The only person whose conduct would be of relevance in this context is Mr Chakty. On one view (which I hold) the conduct of, in effect, badgering the deceased about her Will in the last weeks of her life when she was clearly deteriorating physically and mentally does not reflect well on Mr Chakty. Nor does the conduct of photographing and videoing an elderly lady in her pyjamas as Mr Chakty did (because he thought this was an opportunity for the future) do him credit. However, the family provision claim arises only on the hypothesis that the 2019 Will is valid and admitted to probate; so that in those circumstances the premise would be that Mr Chakty was assisting (albeit from a self-interested position) the deceased to put into effect her testamentary intentions.
2. The only other conduct that might potentially be relevant in this context is the conduct of Mr Chakty in moving to change the locks on the afternoon of the deceased's death (without apparently taking any role in the arrangements for the funeral). However, that is conduct towards Mr Daniel not the deceased (and Mr Daniel similarly sought to change the locks). I would have attached no weight to this factor.

(o) any relevant Aboriginal or Torres Strait Islander customary law;

1. This factor is not relevant.

(p) any other matter the Court considers relevant, including matters in existence at the time of the deceased person's death or at the time the application is being considered.

1. No other factor is here raised by either party.
2. In conclusion on the family provision claim, had it arisen, I would have found that Mr Daniel was a member of the deceased's household and that Mr Daniel was partly dependent on the deceased for a time; and hence (were I called upon to decide the question) that Mr Daniel would be an eligible person under s 57(1)(e) of the Succession Act.
3. I find that there are "factors warranting" the application, on the basis that Mr Daniel was a natural object of the deceased's testamentary bounty (as is evidenced by the fact that the deceased included him in two of her Wills and spoke to others of her desire to provide for him under her Will).
4. As to the adequacy of provision, this is a finely balanced issue in circumstances where the deceased made a not insubstantial gift to Mr Daniel during her life and has left him a share of the Dunstaffenage Street Property. However, I accept that the costs Mr Daniel has incurred will erode the benefit of that provision significantly. In the circumstances where Mr Daniel lived with the deceased for the last years of her life and gave her assistance and support, I would have concluded that there was not adequate provision made for him and that the proper provision would be an additional bequest (to enable him to discharge the balance of the mortgage over the Wollongong property (Mr Daniel has deposed that he borrowed $470,000 from the National Australia Bank in addition to the loan of $175,000 from his father, which the deceased's gift enabled him to repay). In all the circumstances I would have considered that a legacy in the form of a lump sum of $500,000 would be proper and adequate provision on top of the 6% share of the proceeds of sale of the Dunstaffenage Street Property. In the circumstances, however, this issue does not arise.

Orders

1. For the above reasons I make the following orders: 1. Dismiss the plaintiff's claim with costs. 2. Order that probate in solemn form of the Will dated 23 December 2014 of the late Genevieve Bryan be granted to George Daniel. 3. Order that the costs of the cross-claim be paid out of the estate of the late Genevieve Bryan on an indemnity basis. 4. Order that, subject to compliance with the Uniform Civil Procedure Rules, the matter be remitted to the Registrar for the completion of the grant.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 July 2022