The Estate of Milan Zlatevski; Geroska v Zlatevski

The deceased's family

1. The deceased was born in Macedonia. The deceased and his late wife, Verka Zlatevska, married and had their two children while living there. Nada was born in 1956; Tony in 1959.
2. In 1964, the deceased moved to Australia. Verka and the children joined him in 1970.
3. The deceased and Verka were both factory workers. In 1971, they purchased a property located at 7 Villiers Street, Rockdale (the Rockdale property) and lived there with Nada and Tony as a family.
4. In 1974, Nada married Lazar Geroski. Nada and Lazar have two sons, Dajvid and Robert.
5. After they were married, Nada and Lazar lived at the Rockdale property with the deceased, Verka and Tony until sometime in 1978. While living at the Rockdale property, Nada and Lazar paid board and the occasional utility bill. Nada also assisted with the cooking, cleaning, washing and various household duties.
6. In February 1982, Tony married Lena. After they married, they also lived at the Rockdale property with the deceased and Verka. During that time, Tony and Lena did not pay any board or rent to the deceased and Verka, although they paid for some groceries.
7. Tony and Lena have two children, Bobby and Amanda. Bobby was born in September 1986 while Tony and Lena were living at the Rockdale property. Amanda was born in June 1988, when Tony and his family, together with the deceased and Verka, were all living in a property in Kogarah.

Purchase of the Kogarah property

1. In June 1980, a property at 39 Union Street, Kogarah (the Kogarah property) was purchased in Tony's name.
2. The price of the Kogarah property was $59,950. The deceased and Verka paid $30,000 in cash towards its purchase. The balance was funded by way of a loan and mortgage from the Commonwealth Bank in the amount of $30,000 in the names of the deceased, Verka and Tony.
3. The Kogarah property was rented out after it was purchased. The rental income, of about $150 per week, was put towards the mortgage repayments. The mortgage on the Kogarah property was discharged on 9 June 1982.
4. The circumstances in which the Kogarah property was bought and who paid for it is the subject of dispute in the proceedings. Tony contends that one of the reasons the deceased lacked capacity to make a will is because he suffered from a delusion that he bought and paid for the Kogarah property.
5. Tony's evidence is that the deceased and Verka encouraged him to buy the Kogarah property after he started working full-time and offered to help by giving him $30,000 as a deposit.
6. His evidence is that he paid the shortfall between the rent and the mortgage repayments on the Kogarah property. Tony says he was able to pay off the mortgage within two years because he had been working full-time at Sydney Water, living at home with the deceased and Verka and not paying any rent or other household expenses.
7. Tony's evidence is that the deceased and Verka paid a nominal amount towards the mortgage on the Kogarah property from time to time. In cross-examination, he accepted that the deceased helped him with payments towards the Kogarah mortgage when he was running short of money (T69:32-34). He also accepted that, by 1982, he did not have any savings with which to discharge the mortgage and that the deceased and Verka provided him with the funds to do so (T71:24).
8. Nada's evidence is that the deceased told her he wanted to buy a new house, had paid the deposit on the Kogarah property and put it in Tony's name because they would all be living there one day and it would avoid the need to transfer it to Tony later and pay transfer fees. Nada's evidence is that the deceased and Verka told her that they had paid for the Kogarah property and bought it for Tony.
9. Verka Uncevski (also known as Vicky Uncevski), a friend of the deceased and his late wife, gave evidence that the deceased and Verka told her they had bought a new house in Kogarah, would rent it out and later knock it down and build a house for Tony. She also recalls the deceased telling her that they had put a deposit on the house and were paying it off. In cross-examination, Mrs Uncevski's evidence was that the deceased and his late wife told her they had paid for the Kogarah property (T60:1-2).
10. Nada and Mrs Uncevski's evidence is consistent with the instructions given by the deceased to his solicitor at the time he made the 2013 will that the deceased had purchased the Kogarah property and his son had made no contributions to the mortgage.

Move to the Kogarah property

1. Sometime in 1985, the house on the Kogarah property was knocked down. Over the next three years, a new house was built that could accommodate Tony and his family, as well as the deceased and Verka.
2. Tony's evidence is that he and Lena paid the building costs of the new Kogarah house, which he estimated to be $250,000. His evidence is that he and Lena were able to save that amount as they had both been working full-time, collecting rent from the Kogarah property from 1982 until the house was knocked down and saving what they earned as they lived with the deceased and Verka rent-free.
3. Nada gave evidence that the deceased and Verka contributed to the cost of constructing the new house at the Kogarah property, although that was disputed by Tony. It is not in dispute that the deceased, Lazar, and other relatives provided physical labour and assisted with the build.
4. Sometime in early 1988, Tony, Lena, Bobby, the deceased and Verka moved into the new house at Kogarah. As she had when they were living at the Rockdale house, Verka looked after Bobby and then Amanda when Lena was at work.
5. Tony and Lena paid the outgoings on the new Kogarah house and most of the groceries, with the deceased and Verka contributing from time to time. There is a dispute on the evidence as to whether Verka or Lena did most of the cleaning, cooking, washing and household tasks. Nada contends that Verka did all of it. Tony and Lena's evidence suggests otherwise.
6. After moving into the new Kogarah house, the deceased leased the Rockdale property and paid all of the rent to Tony. When he reached pension age, the deceased arranged for Tony to receive the Rockdale property rent directly from the real estate agent.
7. In 1999, the deceased retired at the age of 69.
8. In 2003, the Kogarah house was renovated. Tony's evidence is that he and Lena paid for all the renovations at a cost of about $80,000.
9. On 18 February 2006, Verka died. From that time, Lena did the household tasks, including most of the cooking and washing for the deceased.
10. Tony's evidence is that, after Verka passed away, he and the deceased had a discussion during which the deceased told him he was considering making a will and intended to leave the Rockdale property 50% each to Tony and Nada. Tony told the deceased that he did not consider that to be fair because Nada had not looked after the deceased and Verka as Lena and he had.

Deceased's cancer diagnosis and medical treatments

1. In 2007, the deceased was diagnosed with prostate cancer. He was admitted to St George Hospital for a period and returned to live at the Kogarah property after he was discharged.
2. There is an issue in the proceedings about whether Tony and his family assisted the deceased with his medical appointments. Tony contends that, at the time the deceased made the 2013 will, he suffered from a delusion that Tony and his family did not provide any such assistance.
3. The evidence shows that Tony, Lena and Nada each took the deceased to medical appointments related to his cancer treatments, and that Lena assisted the deceased with his medications. The evidence does not identify whether Tony and Lena did so during the whole of the period from 2007 to when the deceased made the 2013 will. Nada's evidence suggests that they did not. Her evidence is that she became responsible for taking the deceased to his medical appointments "later on". It is not clear on Nada's evidence when that "later on" period started.
4. The evidence suggests that Nada and the deceased developed a closer relationship after his cancer diagnosis.
5. Nada's evidence is that from August to Christmas 2007, she visited the deceased at the Kogarah property from around 9 am to 2.40 pm on weekdays and also cooked for him. Tony's evidence is that his relationship with Nada was strained at this time and that he did not see her visiting the deceased at the Kogarah property that often. Neither did Lena, although she was working during this period.
6. Nada also gives evidence that from Christmas 2007 to the end of 2008, Tony drove the deceased to her house most weekdays so the deceased could spend the day with Nada and her family.
7. According to Nada, after his health improved and he was in remission, the deceased walked to Nada's house every couple of days to spend time with her.
8. In or around 2012 or 2013, Mile Uncevski, the deceased's grand-nephew and son of Verka Uncevski, accompanied the deceased to some of his medical appointments at Nada's request. Nada also attended some of these appointments. Mr Uncevski's evidence is that, on one of these occasions, the deceased told him that Tony would not take the deceased to any of his medical appointments.

Making of the deceased's will

1. In or around September 2012, the deceased contacted a solicitor, James Roskov, at Hancock, Alldis & Roskov to act in relation to Verka's estate. He instructed Mr Roskov to obtain Verka's death certificate and to arrange for the Rockdale property (which had been held by the deceased and Verka as joint tenants) to be transmitted into the deceased's name.
2. On or about 15 October 2013, the deceased met with Mr Roskov and instructed him to prepare a basic will appointing Nada as his executor and her son, Dajvid Geroski, as the alternate executor. He instructed Mr Roskov that his estate was to go to Nada and that it was to be divided equally between her sons, Dajvid and Robert, should anything happen to her. The deceased also instructed Mr Roskov to prepare an enduring power of attorney and appointment of enduring guardian appointing Nada and Dajvid as joint attorneys and guardians.
3. Mr Roskov's evidence is that the deceased told Mr Roskov he had a son and that he explained why he had not provided for him. The deceased's explanation is set out in a file note prepared by Mr Roskov on the day of the meeting. Given its relevance to the issue of the deceased's testamentary capacity, I have set out the contents of the file note in full: Client requested that we prepare a will appointing his daughter Nada as executor and as alternate his grandson Dajvid. Everything to go to his daughter Nada and if something happens to his daughter at the same time or within 1 calendar month to be divided equally amongst her two sons, Dajvid & Robert. Client advised that he has a son by the name of Tode Zlatevski. Advised that he has not provided for his son as the property at 39 Union Street Kogarah had been purchased by our client in 1980 for approximately $70,000. Client advised that he had $30,000 cash available and that the additional $40,000 was borrowed. This mortgage was discharged by client and his late wife, the son made no contributions to the mortgage. Client advised that when the property was purchased he purchased this property in the name of his son, Tode Zlatevski only. Client advised that the son Tode constructed a new home at 39 Union Street in approximately 1987 where our client and his late wife together with his son and his family resided. Client advised that they vacated their property at 7 Villier Street Rockdale and moved in with the son and his family. The property at Villier Street Rockdale was tenanted thereafter and all rental money from the property commencing 1987 through to present has been paid directly to his son Tode Zlatevski. Client has therefore requested that all his assets go to his daughter as he has not provided for her and believes that the son has received adequate financial assistance over the years. Further that his daughter and her children together with the son-in-law have assisted client by attending all medical appointments and treatment due to his current condition. Client advised that his son Tode and his family have not in any way assisted. Client was advised that there is a possibility that his son may seek a FPA, client advised that he would like to leave his entire estate to his daughter.
4. As referred to in the file note, Mr Roskov advised the deceased of the existence of the Succession Act 2006 (NSW) and how it allows eligible persons, such as Tony, to make a claim for provision from his estate after his death. He advised the deceased to make a statement pursuant to s 100 of the Succession Act. The deceased did not instruct Mr Roskov to do so as he did not want to incur the additional costs.
5. Mr Roskov dictated the instructions he received from the deceased for the will and the file note about the matters they had discussed in the conference. The file note was typed up while the deceased was at Mr Roskov's office.
6. While the deceased waited at Mr Roskov's office, a solicitor at the firm prepared the will. Mr Roskov then explained the will to the deceased. The deceased executed it in the presence of two of Mr Roskov's staff, Jill Talbot and Mona Khoury, both of whom gave evidence that they witnessed the deceased's execution of the 2013 will.
7. After executing the will, the deceased left Mr Roskov's office. He returned later in the afternoon with Nada and her son Dajvid to execute the enduring power of attorney and appointment of enduring guardian documents.
8. Mr Roskov was cross-examined about what he asked the deceased when they met on 15 October 2013. Mr Roskov accepted that he did not ask the deceased about the value and extent of his estate on that day in a "Banks v Goodfellow way". Mr Roskov's explanation was that he had dealt with the deceased in relation to his late wife's estate and they had discussed the value of the estate at that time, such that Mr Roskov was satisfied that the deceased understood it (T52:5-8). He also pointed to the deceased knowing the details of the value of the Rockdale property when it was purchased in 1980 (T51.39-40).
9. Mr Roskov was also cross-examined on whether he asked the deceased questions to test his memory and his ability to recall and reflect on who had a claim on his estate. Mr Roskov accepted that he did not ask specific questions on those matters, nor undertake any mathematical calculations with the deceased. Mr Roskov's evidence was that he did not consider it necessary to do so because he was satisfied of the deceased's memory and his capacity based on his prior dealings with the deceased and the discussions he had with, and instructions he received, from the deceased on 15 October 2013 (T52:44 - T53:19 and T57:39-43).
10. Mr Roskov was also cross-examined about whether he asked if the deceased had compared the values of the Rockdale and Kogarah properties. Mr Roskov accepted that he did not. His evidence was that he did not consider it necessary to do so as the deceased was clear in his instructions regarding the Kogarah property, including in terms of its acquisition, payment and discharge of the mortgage (T57:50 - T58:4).
11. Mr Roskov also accepted that he did not ask the deceased about the past care and assistance that had been provided by Tony and Lena over 25 years, but stated that he "did not see any reason why I needed to delve into the past of any relationship that an 80 year old may have had with his son 25 years ago because he was fit. When he came into see me, he was fit" and he had no concern about the deceased's health (T56:3-20).

Deceased moves to a nursing home

1. On or about 21 November 2013, approximately 5 weeks after executing the 2013 will, the deceased collapsed while at the Kogarah property and was admitted to St George Hospital. Tony accompanied the deceased to the hospital in the ambulance.
2. There are no medical records in evidence relating to the deceased's condition when he collapsed and why he was hospitalised. The lay evidence indicates that the deceased remained in hospital for a month due to an infection. Tony's evidence is that the deceased appeared to be struggling with his short-term memory and was disoriented while they were waiting at the hospital. Tony's evidence does not suggest that the deceased had short-term memory issues at any other times.
3. On 23 December 2013, the deceased was discharged from hospital to a nursing home, St George Aged Care, in Bexley. There are no medical or other records relating to the deceased's condition when he moved into the nursing home. The lay evidence indicates that, at the time he moved there, the deceased could not walk although he later regained the ability to do so. Nada gave evidence that the deceased chose to go into a nursing home.
4. From the time the deceased moved into the nursing home, the rent from the Rockdale property was re-directed away from Tony to help pay for the deceased's nursing home fees.
5. The deceased remained in the nursing home until his death on 11 May 2015.

Other gifts to Nada and Tony

1. Another aspect of the evidence which is relevant to the issues raised by Tony relates to what other gifts or financial benefits the deceased provided to Nada and Tony.
2. It is not in dispute that, in 1995 or 1996, the deceased and Verka paid approximately $15,000 for a new kitchen to be built at Nada and Lazar's house in Carlton.
3. Nada also accepts that the deceased gave her son, Robert, approximately $20,000 towards a new car.
4. In her evidence, Nada asserts that, in addition to the funds for the Kogarah property, the deceased provided money to Tony to buy three other properties; a unit in Rockdale, a commercial property in Newcastle and a property in Riverwood. Objection was taken to that evidence on the basis of relevance and prejudice and it was read as an assertion only as to Nada's belief.
5. Mrs Uncevski also gives evidence that the deceased told her that he had given money to Tony towards a "shop in Newcastle", a "shop in Riverwood" and a "flat in Rockdale". No objection was taken to that evidence and Mrs Unceveski was not challenged on it.
6. Tony's affidavit evidence responds to Nada's assertions. Tony denies that the deceased provided any funds towards two of the three properties he purchased with Lena, being a property in Warners Bay (in the Newcastle region) and a property in Punchbowl (presumably the Riverwood property).
7. As to the Rockdale unit, Tony's evidence is that he and Lena purchased it on 20 December 1991 for $110,000. There is no evidence of any mortgage on that property, although there is evidence that Tony and Lena obtained a mortgage over another property for $20,000 on 2 December 1991.
8. In responding to Nada's assertions, Tony's affidavit evidence does not deny the deceased gave him money towards the Rockdale unit. Nor does Tony's affidavit evidence directly respond to Mrs Uncevski's evidence. Despite this, Tony's counsel submits that the Court should not consider the lay evidence that the deceased provided money to Tony for the Rockdale unit because the issue was not put to Tony in cross-examination, relying on the rule in Browne v Dunn (1893) 6 R 67.
9. As the evidence in this case was by way of affidavits, Tony was on notice of the assertions made by Nada and Mrs Uncevski about funds being provided to him by the deceased for the Rockdale unit. The rule in Browne v Dunn does not require cross-examination where a witness is on notice of the other side's evidence by way of affidavits or prevent a submission being made based on that evidence: Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 at [105]; West v Mead [2003] NSWSC 161 at [95] to [99].
10. I accept Mrs Uncevski's evidence that the deceased told her that he had given money to Tony towards a flat in Rockdale which supports the submission that the deceased believed he had provided funds to Tony for that purchase. I do not consider there is sufficient evidence to find, as a matter of fact, that the deceased did so and the amount of any such funds.

Deceased's estate

1. At the time of his death, the deceased's estate consisted of the Rockdale property worth approximately $1.2 million, and cash in a Commonwealth Bank account in the amount of $23,146.55. As no liabilities are disclosed in Nada's executor affidavit, the total gross value of the deceased's estate was, at that time, $1,223,146.55.
2. There was no evidence of the value of the deceased's estate at the date of the hearing.

Did the deceased have testamentary capacity when he executed the will?

Legal principles

1. There is no dispute that, as executor, Nada has the legal onus to prove that the 2013 will was the last will of the deceased.
2. If a will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent and had testamentary capacity: Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [45]; Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [98].
3. Presumption of mental competence may be displaced where the evidence as a whole is sufficient to throw a doubt as to the existence of a deceased's testamentary capacity. Where the evidence raises such doubt, the burden shifts to the party propounding the will to dispel those doubts and show that the testator was of a sound and disposing mind on the balance of probabilities on a consideration of the evidence as a whole: Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67 at 453; Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 at [45]; Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [98]; Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197 at [114].
4. The effect of an initial doubt about the validity of a will is to require a vigilant examination of the whole of the evidence which the parties place before the Court. That examination having been made, a residual doubt is not enough to defeat a claim for probate unless it is felt by the Court to be substantial enough to preclude a belief that the document propounded is the last will of a free and capable testator: Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67 at 453.
5. The question of doubt and onus was discussed by Basten JA in Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 (Carr v Homersham) where, at [47], his Honour said: To speak of there being a 'doubt' as to testamentary capacity is to say little more than that a real issue has been raised on the evidence, which requires the resolution of the Court. Unless such an issue has been raised, testamentary capacity need not be addressed; its existence will be presumed. Once the issue is raised, the Court must resolve it; that must be done by consideration of all the evidence and the inferences which may be drawn from it. It is true that the Court must be affirmatively satisfied as to testamentary capacity, but in doing so, it should be alert to the fact that to find incapacity and thus invalidate a formally valid will is, in the words of Gleeson CJ, 'a grave matter'. A doubt which does not preclude the probability that the testator enjoyed testamentary capacity cannot warrant a finding of invalidity.
6. The parties are agreed that the test for testamentary capacity is as set out in Banks v Goodfellow (1870) LR 5 QB 549 (Banks v Goodfellow) at 565, where Cockburn CJ stated: It is essential to the exercise of such a [testamentary] power that a testator shall understand the nature of the act, and its effects; shall understand the extent of the property of which he is disposes; 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 which, if the mind had been sound, would not have been made.
7. This test was summarised by Basten JA in Carr v Homersham, at [5], as: (a) the capacity to understand the nature of the act of making a will and its effects; (b) understanding the extent of the property the subject of the will, and (c) the capacity to comprehend moral claims of potential beneficiaries. At [6] his Honour said that "negative elements" are only relevant so far as they "interfere with the testator's normal capacity for decision-making".
8. Put in a more simple way, the Court needs to be satisfied that a testator had the capacity to remember, to reflect and to reason: King v Hudson [2009] NSWSC 1013 at [50] - [51].

Outline of contentions

1. There is no dispute that the 2013 will is duly executed. The debate between the parties is whether the evidence raises sufficient doubts as to the deceased's testamentary capacity when he made the 2013 will on 15 October 2013 and, if so, whether Nada has satisfied her evidentiary onus of proving, on the balance of probabilities, that the deceased had testamentary capacity according to the Banks v Goodfellow test.
2. The matters on which Tony relies as casting doubt on the deceased's testamentary capacity are the deceased's advanced age and illness; the exclusion of Tony from the 2013 will; and two statements made by the deceased to Mr Roskov, as recorded in his file note, that the deceased had not provided for Nada and that Tony and his family had not attended any medical appointments with the deceased, which Tony contends are false beliefs.
3. Tony submits that these doubts mean that Nada must affirmatively satisfy the Court that the deceased had testamentary capacity at the time he made the 2013 will. He submits that Nada has not done so on the evidence.
4. While not disputing that the deceased understood the effect of making a will, Tony claims that the deceased lacked testamentary capacity because the evidence: 1. does not establish that the deceased understood the extent of the property the subject of the will; 2. shows that the deceased lacked capacity to evaluate the competing claims of Tony and Nada; and 3. indicates that the deceased was suffering from insane delusions by reason of three persistent false beliefs (two of which are the false statements referred to at [79]) that interfered with his capacity for decision-making.
5. Nada submits that there is insufficient evidence for the Court to conclude that there is doubt about the deceased's capacity. She points to there being no medical or other lay evidence that casts doubt on the deceased's testamentary capacity and the simple and straightforward nature of the 2013 will.
6. She also submits that, when the evidence is looked at as a whole, the Court should be satisfied that she has discharged her onus that the deceased had capacity because, in summary: 1. the deceased had knowledge of his property; 2. Mr Roskov's file note of the deceased's instructions on 15 October 2013 demonstrates that the deceased could give instructions about his estate and had the capacity to remember, reason and reflect on Tony and Nada's competing claims in a rational way; and 3. the statements asserted to be delusions were rational views held by the deceased even if based on mistaken beliefs.

Does the deceased's age and illness raise doubt about the deceased's testamentary capacity?

1. The deceased was 82 and suffering from prostate cancer at the time that he made the 2013 will.
2. Extreme age and illness are not of themselves sufficient to conclude the deceased lacked testamentary capacity unless it appears that his mental capacities are shown to have been so affected by age and illness as to make him unequal to the task of disposing of his estate: Re the Estate of Hodges Deceased: Shorter v Hodges (1988) 14 NSWLR 698 at 707.
3. As Kirby P (as his Honour then was) stated in Re the Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284, at 295: In judging the question of testamentary capacity, the courts do not overlook the fact that many wills are made by people of advanced years. In such people, slowness, illness, feebleness and eccentricity will sometimes be apparent - more so than in most persons of younger age. But these are not ordinarily sufficient, if proved, to disentitle the testator of the right to dispose of his or her property by will ... Were the rule to be otherwise, so many wills would be liable to be set aside for want of testamentary capacity that the fundamental principle of our law would be undermined and the expectations of testators unreasonably destroyed.
4. There is no medical evidence before the Court that the deceased's age or illness had, or was likely to have, any impact on his cognitive capacity. While medical evidence as to the deceased's medical condition may have been relevant and might have supported or denied his capacity to have understanding of the matters in the Banks v Goodfellow criteria, evidence of such understanding may come from non-expert witnesses. The question of capacity is a legal rather than a medical question, which is to be determined by "commonsense judicial judgment on the basis of the whole of the evidence": Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 at [65] per Hodgson JA.
5. Mr Uncevski's unchallenged evidence is that, despite his physical ailments, the deceased was alert and fully comprehended that he was in hospital in November 2013, why he was there and who was visiting. Mr Uncevski also gave evidence that he did not observe any difference in the deceased's state of mind or ability to recall events in all the years he knew the deceased, which included when he visited him in the nursing home after he made his will.
6. Mrs Uncevski's evidence, which was also unchallenged, is that she always knew the deceased to be alert and "on top of things". She also gave evidence that, after he went to the nursing home, the deceased remained lucid and that she did not have any concerns about his mental state or capacity.
7. There is also the evidence of Mr Roskov.
8. While Mr Roskov accepted in cross-examination that he had not asked the deceased the standard Banks v Goodfellow questions when he met with him on 15 October 2013, his evidence is that he had not considered it necessary to do so because he had no concern about the deceased's health and, to him, there was no capacity issue. Mr Roskov was satisfied of the deceased's memory and his capacity based on the clarity of the deceased's instructions and what they discussed on 15 October 2013, as well as from his prior dealings with the deceased about his late wife's estate. As Mr Roskov put it in re-examination, "When (the deceased) came into see me, he was fit." (T52:44 - T53:19, T56:3-20, 24-25 and T57:9-43).
9. Tony's counsel was critical of Mr Roskov's approach in not asking the deceased questions about his capacity and referred the Court to the decision of Ryan v Dalton [2017] NSWSC 1007 where at [107], Kunc J, as a postscript to his decision that an executor had not established the testator's capacity, proposed a protocol for a solicitor to follow when taking instructions from a client over 70 years of age. That protocol includes asking the client, or their carer or a care manager in the home or facility in which they reside, whether there is any reason to be concerned about capacity, including as a result of any diagnosis, behaviour, medication or the like.
10. The protocol set out by Kunc J in Ryan v Dalton reflects good practice. It was also proposed by His Honour in the context of a case where there was a body of family, medical and other evidence that raised significant doubt about the testator's capacity - he had dementia and was residing in a nursing home - and where the testator proposed to change his previous will in a significant manner.
11. There is no medical evidence which raises doubts about the deceased's cognitive capacity in this case. There are also no doubts raised from the observational evidence of the family and other lay witnesses. While Kunc J's protocol was not followed by Mr Roskov, he was a solicitor who had previously dealt with the deceased and detected no difficulties with the deceased's testamentary capacity when meeting with him to take instructions and execute the 2013 will. The deceased was also not changing a will.
12. While observational only, the non-expert lay witness evidence does not raise any doubts about the deceased's capacity. It also supports the conclusion that the deceased's age and illness did not impact on the deceased's testamentary capacity at the time he made the 2013 will.
13. In my view, while not expert evidence, Mr Roskov's view and the observations of the other lay witnesses is valuable evidence as to the deceased's capacity, and supports a finding upholding the 2013 will: Re Cooks Estate (Supreme Court (NSW), Young J, 14 December 1994, unrep) at 29; Hamilton v Nelson [2012] SASC 219 at [13].

Tony's exclusion from the 2013 will and the deceased's capacity to comprehend and reflect on the claims on his estate

1. Tony submits that his exclusion from the 2013 will also creates doubt as to the deceased's testamentary capacity.
2. He also submits that the deceased lacked capacity to evaluate Tony's and Nada's competing claims on his estate as he did not compare and contrast the value of the gifts he gave to Tony and Nada, did not reflect on his broader relationship with Tony and Lena over 25 years, and focussed on his current needs and financial matters.
3. The exclusion of a person who has a natural claim on a deceased's bounty may be evidence that casts doubt on the presumed competence of a testator: Re the Estate of Hodges Deceased: Shorter v Hodges (1988) 14 NSWLR 698 at 706; Banks v Goodfellow (1870) LR 5 QB 549.
4. The question is not whether a testator knows they are excluding someone who has a claim, but whether a testator was, at the time, capable of recollecting who they were, understanding their respective claims and deliberately forming an intelligent purpose of excluding them from any share of their property: Re the Estate of Hodges Deceased: Shorter v Hodges (1988) 14 NSWLR 698 at 706 citing with approval the speech of Erskine J, when delivering the advice of the Judicial Committee in Harwood v Baker (1840) 3 Moo PC 282; 13 ER 117 at 290-291, 120.
5. In my view, the details contained in Mr Roskov's file note clearly demonstrates that the deceased had the ability to recall the persons who had the natural claims on his testamentary bounty, being his only children, Nada and Tony. It also demonstrates that the deceased understood their respective claims and had formed an intelligent purpose, based on what the deceased considered to be rational grounds, for deliberately excluding Tony from his estate.
6. The file note explains in a detailed and reasoned way why the deceased reached his decision to leave his estate to Nada and exclude Tony. It identifies particular matters which, in the deceased's view, justified that decision. In essence, those matters were that the deceased considered that Tony had "received adequate financial assistance over the years" compared to Nada, and that Nada and her family had provided more assistance to the deceased than Tony and his family.
7. Tony's counsel submits that the evidence shows that the deceased was unable to properly recall, reflect on and weigh up the respective claims of Tony and Nada because the file note and Mr Roskov's evidence demonstrate that the deceased only considered the immediate recent non-financial contributions of Nada, rather than the relative value of the gifts made to Nada and Tony over their lifetimes and Tony and Lena's contributions to the deceased's care over the 25 years that the deceased had lived with them.
8. Tony points to the cross-examination of Mr Roskov where he accepted that he did not ask the deceased to compare the relative comparative values of what the deceased claimed to have given Tony (such as the $30,000 deposit for the Kogarah property and the rent from the Rockdale property) with what he may have given to Nada over the years (such as the $15,000 for a kitchen). He also points to Mr Roskov's acceptance in cross-examination that the deceased had said nothing that could satisfy Mr Roskov that the deceased was able to reflect about the broader relationship with Tony and Lena over 25 years or was able to weigh up and evaluate the relationship he had with them and his relationship with Nada, and that the deceased's statements focussed primarily on his current needs and illness and on financial assistance he had given Tony (T55:1-20; T56:47-57:9; T57:19-27).
9. Irrespective of Mr Roskov's evidence, in my view, the file note evidences that the deceased had the capacity to recall, reflect and weigh up Tony and Nada's competing claims. The explanation set out in the file note demonstrates that the deceased had a good memory and took into account various matters over many years referring, for example, to the purchase of the Kogarah property in 1980 and the amount of the initial cash deposit.
10. The file note also demonstrates that the deceased had the capacity to reflect on his relationship with Tony and his family over the 25 year period during which the deceased and his late wife lived with them at the Kogarah property. It refers to the year when the deceased and his wife moved into the Kogarah property with Tony and his family and the payment of rent to Tony from the Rockdale property from that time. The file note also refers to non-financial matters and assistance given to the deceased, although I accept it does so in a way that focusses on more recent events rather than over the longer period.
11. That the deceased did not identify to Mr Roskov the present day comparative values of what the deceased had given Tony compared to Nada or discuss Tony and Lena's non-financial care and assistance over 25 years does not, in my view, speak of testamentary incapacity. Nor does the deceased's apparent view that the recent care provided by Nada and certain financial contributions to Tony's benefit were more weighty to his decision to exclude Tony than the care and assistance that Tony and Lena may have provided to the deceased and his late wife over 25 years or some gifts made to Nada and her family.
12. The capacity of the deceased to consult within himself on the relative weight of Tony and Nada's claims and to reason so that he could judge how he should give effect to their claims is not assessed by whether the deceased gave equal weighting to all financial and non-financial contributions made by or to the deceased. Nor is his capacity determined by whether he made a fair assessment which might have led to a more equitable outcome in terms of the distribution of his estate between Tony and Nada.
13. The issue relates to capacity rather than the deceased's exercise of it. The question is whether the deceased had the capacity of sound judgment, not whether he, in fact, made the judgment about the disposition of his estate by will soundly, and for reasons which might appear to the observer to be appropriate: The Estate of Stanislaw Budniak; NSW Trustee & Guardian v Budniak [2015] NSWSC 934 at [384].
14. The deceased's decision to exclude Tony might be based on reasoning that others would not adopt or would consider to be irrational and unfair. The decision might also lead to an outcome that others consider to be harsh, unreasonable or do not conform to generally accepted community standards. But, reasoning leading to a harsh outcome is not a sufficient ground to conclude that the testator lacked capacity: Re the Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284 at 289 and 291, per Gleeson CJ.
15. In my opinion, the choice made by the deceased to exclude Tony does not demonstrate a lack of capacity on the part of the deceased to recognise, reflect and weigh up the moral claims against his estate. Rather, it reflected the deceased's belief that he had rational grounds for doing so. Further, the file note evidences that the deceased had the capacity to, and did in fact, comprehend and appreciate the moral claims of his potential beneficiaries and had the capacity to consult within himself on their relative weight.

Was the deceased's capacity to reflect and reason undermined by irrational false beliefs or delusions?

1. I also do not accept Tony's submission that the two statements recorded in the file note about the lack of provision to Nada and assistance by Tony and his family give rise to a real issue or doubt about the deceased's testamentary capacity. Nor do I accept the submission that those statements, and the statement that the deceased purchased the Kogarah property, are false beliefs that amount to insane delusions that interfered with the deceased's capacity for decision making when he made the 2013 will.
2. A delusion is an irrational, fixed and permanent belief out of which a testator cannot be reasoned: Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13 at 339; Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67 at 449; Re the Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284 at 290; Wechsler v Du Maurier [2002] NSWCA 13 at [32].
3. There must be an element of irrationality about the asserted false belief such that an inference can be drawn that the deceased could not have been talked out of it, regardless of evidence demonstrating its falsity: Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [117], per McFarlan JA.
4. The first statement referred to in the file note which is asserted by Tony to give rise to doubt as to the deceased's testamentary capacity and amounts to a delusion is that the deceased had not provided for Nada. Tony submits that this is untrue as the deceased gave Nada $15,000 for a kitchen and gave her son $20,000 towards the purchase of a car. He also points to Nada and her family receiving Christmas and birthday presents from the deceased.
5. In my view, the gifting of Christmas and birthday presents (which were also presumably given to Tony, Lena and their family) does not render a statement that the deceased had not provided for Nada to be a false belief or an irrational delusion. Nor, in this case, does the gift to Nada of $15,000 for a new kitchen or the gift to the deceased's grandson.
6. The statement in the file note that the deceased had not provided for Nada was made in the context where the deceased also stated that Tony had received adequate financial assistance over the years. It was made as part of a comparative assessment or evaluative judgment based on the deceased's view of how things stood between Tony and Nada, rather than some objectively verifiable facts.
7. The deceased's view, as recorded in the file note, is that he had paid the Rockdale property rental to Tony for 25 years, paid $30,000 towards the Kogarah property in 1980 and paid other amounts towards the discharge of the Kogarah mortgage.
8. The evidence also shows that, in contrast to Nada, the deceased and his late wife had supported Tony and Lena when they lived at the Rockdale property by not charging them any board or rent and also provided other services to them, such as looking after their children when Lena went back to work.
9. There is also Mrs Uncevski's evidence that the deceased believed that he had provided funds to Tony to purchase the Rockdale unit in 1991.
10. On any view, the financial assistance given by the deceased to Tony was significant and ongoing for many years. It enabled Tony to purchase at least one property in his name and pay off the mortgage on that property. By contrast, the evidence discloses that Nada received a one-off gift of $15,000 for a new kitchen in 1995 or 1996.
11. In that context, the deceased's assessment that he had not provided for Nada and that Tony had received adequate financial assistance over the years was not irrational.
12. Even if I were to accept that the gift of $15,000 to pay for a new kitchen was some form of provision to Nada, the deceased's view that he had not provided for her in a comparative sense could not, in my opinion, be characterised as some inexplicable delusion suggestive of incapacity. At its highest, it was a mistaken or exaggerated view that may, or may not, have reflected a failure by the deceased to tally up all amounts, including gifts, given to Tony and Nada over the years.
13. The second statement that Tony contends is a delusion is the reference in the file note that "Tode and his family have not in any way assisted" with the deceased's medical appointments and treatment due to his current condition.
14. Tony submits that this is false because the evidence demonstrates that Tony and Lena took the deceased to medical appointments and was there when the deceased collapsed and was taken to hospital. Pausing here, as the deceased collapsed after the 2013 will was made, Tony's assistance on that day cannot be relevant to an assessment of the falsity of the deceased's statements to Mr Roskov.
15. That said, as a general proposition relating to assistance concerning the deceased's medical condition since 2007, the deceased's statement appears to be inaccurate. The undisputed evidence is that Tony and Lena took the deceased to medical appointments when he was receiving treatment for his prostate cancer.
16. But, the evidence also discloses that, from late 2007, Nada was taking a far more active role in the deceased's care. She was visiting him regularly and making him food. From 2009, the deceased was spending a greater amount of time at Nada's house. There is also evidence that Nada took on the responsibility for taking the deceased to his medical appointments and that the deceased believed that Tony would not take him to his medical appointments.
17. Rather than a false and persistent delusion that points to some disorder of his mind and lack of testamentary capacity, the deceased's statement may have reflected his view of the circumstances that existed at the time the will was made. Accepting that the statement likely involved some exaggeration and was stated in absolute terms, given the evidence before the Court, I do not consider the deceased's statement to be completely irrational or reflective of some aberration of the deceased's mind: Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [115]; Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13 at [298].
18. To the extent the deceased formed his view about the lack of assistance given to him by Tony and his family based on inaccurate facts, it was a mistaken belief, possibly arising from the family dynamics at the time, rather than an irrational delusion out of which it might be inferred that the deceased could not be reasoned. In that regard, there is no evidence that Tony or anyone else sought to challenge the deceased on this belief.
19. The third statement relied on by Tony as a false delusion is that the deceased believed that he and his late wife had paid for the Kogarah property.
20. Tony submits that this belief was false, based on his evidence that he paid the mortgage and $10,000 to renovate the property before the tenants moved in. He also submits it was a persistent and incorrigible belief as the deceased repeated the claim to Tony and others over the years despite Tony trying to talk him out of it.
21. There is no dispute that the deceased believed throughout his life and, at the time the 2013 will was made, that he had purchased the Kogarah property for Tony.
22. Nada's counsel submits, and I accept, that this belief was not irrational having regard to the uncontested facts. Those facts include that the deceased (not Tony) made the financial contribution of 50% of the purchase price when it was initially acquired and also paid amounts towards the mortgage, including, as accepted by Tony in cross-examination, the funds to discharge the mortgage in 1982. In that context, it was also not irrational for the deceased to regard the rent received from the Kogarah property as his and his late wife's contribution to the mortgage, rather than Tony's.
23. The deceased's belief is also seemingly consistent with the apparent financial reality that, even living at home and earning $300 per week, Tony was unlikely to have been in a position to discharge a $30,000 mortgage in two years, then save (with Lena) a further $250,000 in the next six years, and purchase another property for $110,000 three years after that.
24. There are also aspects of Tony's evidence which cast doubt about the reliability of his evidence. For example, in his affidavit evidence he asserted that he had borrowed $30,000 from the CBA and the loan was in his sole name. This was not correct, which he later accepted in cross-examination. He also readily acknowledged that there were a number of matters about which he could not recall because it was too long ago to remember. This included why the CBA would not loan the funds just to him (T68:35) and how often he did not have sufficient funds to pay the mortgage (T71:13). In cross-examination, he also changed his evidence in respect of the period in which he worked at the Banksia Pub; which appeared to be for the purpose of supporting his claim that he was working two jobs in 1980 to 1982 and so was able to pay off the mortgage quickly (T70:21-44).
25. In my view, all of these matters raise some doubt about the reliability of Tony's evidence on the issue of who paid the Kogarah property mortgage. Given those doubts, the deceased's statement to Mr Roskov that he purchased the Kogarah property and Tony made no contributions to the mortgage may have been correct. It is not, as Tony's counsel stated in closing submissions, uncontroversial that the deceased did not pay all of the purchase price of the Kogarah property.
26. In the absence of further documentary records and the deceased being unable to give evidence, it is not possible to make any informed finding about what, if any, amounts Tony and the deceased paid towards the Kogarah property mortgage.
27. But, even accepting Tony's evidence that he paid most of the shortfall on the Kogarah property mortgage, the uncontested evidence is that the deceased and his late wife's substantial financial contributions to the Kogarah property enabled it to be purchased and put in Tony's name.
28. In that context, while it may be factually inaccurate for the deceased to have stated that he paid for the Kogarah property and Tony made no contributions to the mortgage, the deceased's belief that he did not need to provide for Tony because he had purchased the Kogarah property and provided Tony with adequate financial assistance over the years is a belief which, in my view, could not be characterised as an irrational one.
29. Tony also submits that there is evidence, in the form of two conversations, that he tried to talk the deceased out of his false belief that the deceased bought and paid for the Kogarah property but the deceased persisted with it.
30. Tony's evidence is based on the following exchange in the first conversation: Deceased: "I have paid for this home for you…." Tony: "No dad, that isn't right. You have not paid for the house. You gave me the deposit when I purchased the property but that's it".
31. The second conversation includes an exchange in the following terms: Deceased: "I am going to give the house to you and your sister. I bought the Kogarah house for you so it's only fair I give it to you and your sister." Tony: "Villiers St is going to be very valuable now. A lot more than what you gave me to buy Kogarah." Deceased: "I bought the Kogarah house for you! Have you forgotten?" Tony: "No you didn't. How many times do I have to tell you that you only gave me $30,000 over 30 years ago. I have paid for everything for that house. Have you forgotten about everything you have given Nada and her family? It is a lot more than you have given me and I have been the one looking after you."
32. The difficulty with Tony's submission is that the facts Tony presented to the deceased to reason him out of the alleged falsity of his beliefs also appear to be inaccurate or based on Tony's own mistaken or exaggerated beliefs.
33. In both conversations, Tony said that the deceased only paid the $30,000 deposit. Yet, Tony accepts that the deceased and his late wife also made some mortgage repayments and that the rent from the Rockdale property was paid to him. In the second conversation, Tony asserts that the deceased had given Nada and her family "a lot more than you have given me". The evidence in this case suggests otherwise.
34. What this evidence highlights is that the deceased and Tony had their own views as to who purchased and paid for the Kogarah property to which they both seem to have been wedded. As Nada's counsel put it, with nearly 40 years distance between the events of 1982 and now, it may be impossible to say with any certainty who was right one way or the other.
35. Whatever the position, the evidence does not demonstrate a high degree of irrationality about the deceased's belief that he purchased the Kogarah property. In my view, Tony has also failed to demonstrate that there is evidence from which it can be inferred that the deceased was wedded to an irrational belief in the face of evidence demonstrating its falsity: Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [113] and [117].
36. In this case, the deceased made a deliberate and, in his view, rational choice as to the disposition of his estate having considered and evaluated the claims of his children. Based on what was said in the file note, that choice may have been based on some mistaken beliefs. But those mistaken beliefs, even if they had some impact on the deceased's exclusion of Tony from his will, were not so irrational to find that the deceased lacked testamentary capacity: Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [143].
37. For these reasons, I do not accept Tony's submission that the three statements were irrational delusions that were indicative of a lack of testamentary capacity on the part of the deceased.

Did the deceased understand the extent of the property the subject of the will?

1. Tony's cross-claim asserts that the deceased lacked capacity to execute a will because he could not appreciate the nature and value of his estate. The particulars in support of that allegation state that the deceased did not appreciate that the value of the Rockdale property was worth significantly more than the present value of the deceased's contribution to the Kogarah property.
2. Pausing here, there was no evidence before the Court as to the comparative values of the Rockdale property and the deceased's contribution to the Kogarah property.
3. Even if there was, the second limb of the Banks v Goodfellow test does not require the deceased to have known the comparative values in respect of two properties, where one of those values relates to the contributions made to a property not owned by the deceased and which did not form part of his estate. The test is whether the deceased had knowledge and an understanding of the property the subject of disposition under his will which, in this case, was the Rockdale property only: Banks v Goodfellow (1870) LR 5 QB 549 at 565; Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [8]; Kerr v Badran [2004] NSWSC 735.
4. It follows that I do not accept the pleaded case that the deceased lacked capacity to appreciate the nature or extent of his estate because he did not appreciate the differing values between the Rockdale property and the contributions the deceased made to the Kogarah property owned by Tony.
5. Knowledge of the extent of an estate does not require knowledge of each asset or their value. No high level of precision is required to be demonstrated in relation to a testator's knowledge of the property as at the date of execution of a will: Kerr v Badran [2004] NSWSC 735 at [49]; Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65 at [8], per Basten JA.
6. Tony submits that there is no evidence that the deceased had any understanding of his assets as Mr Roskov did not ask the deceased anything about the value and nature of his estate at the time he made the 2013 will
7. I accept there is no direct evidence on the day the 2013 will was made of the deceased acknowledging to Mr Roskov that the Rockdale property was his principal and substantial asset and that he knew its value. While that may be a deficiency in some respects, it is not one which, in this case, casts doubt on the inference that I consider open to be made on the evidence that the deceased had knowledge and an understanding of the extent of his estate at the time he made the 2013 will.
8. The evidence discloses that the main asset of the deceased's estate was the Rockdale property. The only other asset was a nominal amount of cash in the bank. The estate was simple and, as Nada's counsel submits, far from complex.
9. Tony's evidence refers to three conversations with the deceased in which the Rockdale property was discussed.
10. The first conversation was sometime in 2006; the last was while the deceased was in the nursing home. During the conversations, there are references to the Rockdale property, the deceased referring to it as "Villiers St", and what would happen to it when the deceased passed away. No other assets of the deceased were discussed. In my view, the content of those conversations indicates that the deceased was aware that the Rockdale property was the main asset of his estate throughout the period 2006 to 2015.
11. Mr Roskov's evidence about his dealings with the deceased in September 2012 regarding his late wife's estate and the transmission of the Rockdale property title into the deceased's name also supports a finding that the deceased was aware of the main asset that would form part of his estate.
12. The terms of the file note also suggest that the deceased was aware, at the time he made his will, that the Rockdale property would form part of his estate. The file note refers to the deceased having advised Mr Roskov that he and his late wife had "vacated their property at … Rockdale" and the rental being paid directly to the deceased's son "through to present". Implicit in those words is the deceased's recognition that the Rockdale property was a significant asset of his estate and it was to go to Nada.
13. This was a simple estate and there is no evidence of the deceased otherwise exhibiting any sign of confusion or a failing mind. In those circumstances, the failure by Mr Roskov to ask the deceased to confirm his assets and their values does not, in my view, demonstrate a lack of capacity: Gray v Taylor [2017] NSWSC 497 at [50] and [203]-[205].
14. Having regard to all the evidence, I am satisfied that the deceased had the capacity to call to mind the property that formed his estate at the time he made the 2013 will, the vast bulk of which was the Rockdale property.

Conclusion on testamentary capacity

1. Having considered the evidence and submissions, there is considerable force to Nada's submission that the question of capacity does not arise in this case and that the Court is entitled to presume from due execution that the deceased had testamentary capacity.
2. The simple form of the will, the measured rationality of the file note explaining the exclusion of Tony and the absence of evidence of any concerns about the deceased's mental state or capacity all support that view.
3. As a number of matters were asserted by Tony to raise doubt, I have also approached the case on the basis that, having been raised, the doubts had to be resolved and I had to be satisfied that the evidence was sufficient to meet Nada's onus that the deceased had the requisite mental competence at the time he executed the 2013 will, based on the Banks v Goodfellow test.
4. Tony does not contend that the deceased did not understand the nature of the act of making the 2013 will. The evidence suggests that the deceased initiated the process and understood the effect of making the 2013 will.
5. As to understanding the extent of the property the subject of the 2013 will, the matters involving Mr Roskov, to which I have referred, might suggest that there were some failures of best practice legal procedures when taking instructions for and then having the 2013 will executed. That said, based on the evidence, I am satisfied that the deceased had knowledge of the nature and extent of his estate, the key and only substantial asset of which was the Rockdale property.
6. I am also satisfied that the deceased was able to comprehend, appreciate and weigh up the claims to which he ought to give effect.
7. The file note evidences that the deceased was able to recall and reflect on the competing claims to his estate. It also demonstrates a capacity to weigh up and assess those claims, setting out cogent reasons for the deceased's belief that it was rational to exclude Tony from his will. Relevantly, many of the matters referred to in the file note which support that belief are not in dispute.
8. As to the three statements relied on by Tony, while they may have been mistaken beliefs, I am not satisfied they are delusions of the type that demonstrates any irrationality on the part of the deceased or doubt about his capacity to understand and reflect on the claims to which he ought to have given effect when making his testamentary dispositions.
9. It follows that I am satisfied that the deceased had testamentary capacity at the time he made the 2013 will. In coming to the conclusion, I bear in mind the comments of Leeming JA in Carr v Homersham at [143], and Gleeson CJ in Re the Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284 at 290 and 291, of the importance of a testator's power to freely dispose of their assets and of respecting their choices. As Gleeson CJ stated, that a testator has disinherited a child for reasons that may be unfair or shock ordinary members of the community, does not make a will invalid.

Is the deceased's will vitiated by a false representation made by Nada?

1. The making of a false representation to a testator which has a direct effect on the making of a will, such as by inducing a testator to make their will in a particular way, may be equivalent to positive fraud and may render invalid the will made: Leslie Handler and Richard Neal, Mason and Handler Succession Law and Practice (NSW) (LexisNexis Butterworths, looseleaf) at [3.6.6]; Re Kelly [1929] SASR 262.
2. Tony pleads that the 2013 will was vitiated by a misrepresentation made by Nada that the deceased had provided Tony with a house. Tony contends that this representation was false and was relied on by the deceased when he executed the 2013 will.
3. Tony's evidence that Nada made the false representation as pleaded is based solely on the evidence given by her during cross-examination (at T26:14-29; T41:49-50:25), as follows: Q. And so, when he said to you "this is my house" or "this is our house" when your mother was there, you didn't say to him "but dad, you only paid for part of it, you didn't pay for the whole house"? A. I don't say nothing to him. Q. You never said to him "that's not true"? A. He bought the house, that's why he say it. Q. And you believed that he bought the house, didn't you? A. Yes. Q. And you said that to him? A. Yes. Q. You said to him a number of times "yes, dad, you paid for the house"? A. I didn't say many time, but I say, "you bought it, you're happy". … Q. No, it's not a question of why he bought the house, but you said to me earlier today when I asked you whether you agreed you said yes you agreed, and then I asked you about whether you'd had a discussion about it and you said you discussed it many times, particularly during the period when he was coming over to your house for five days and you said that you had discussion many times during that period‑‑ A. Yes. Q. ‑‑and I also said to you, and you also said to him that your father and mother bought Tony the house?? A. Yes. Q. And you agreed with me that you did say that to your father? A. I say ‑ yes. Q. And at that time, you hadn't checked with Tony whether that was correct? A. No. Q. And you'd only relied, and you weren't really sure if Tony was working at the time? A. No, I'm not really sure. Q. And so, you were just relying on what your father said when you made that statement? A. I believe it because when ‑ when my dad and my mum bought the house with half of the deposit in these days, in fulltime jobs the bank just give you the money like that. If he work why he don't get on his own name the mortgage.
4. Tony's counsel submits that Nada's statement to the deceased that "he bought the Kogarah house for Tony" was fraudulent because it was made recklessly as to whether or not it was true.
5. While accepting that the representation had initially been made by the deceased, Tony's counsel submits that it was given credibility and dignity by Nada repeating and agreeing with it. Tony's counsel also submits that, based on its unqualified nature, the fact that it was false, made prior to the will being executed and at a time when the relationship between Nada and Tony had soured, it is open for the Court to infer that Nada made the representation with a view to prejudicing Tony's claims. She also submits that the Court can infer the deceased relied on Nada's representation when he signed the 2013 will.
6. Leaving to one side that the allegation was pleaded at a time when there was no evidence that Nada had made such a statement, in my view, Tony's claim that the 2013 will was vitiated by a false representation by Nada must fail. This is for the following reasons.
7. First, the evidence demonstrates that the pleaded representation was a statement of the deceased's own belief which he held for many years. While Nada may have repeated and agreed to that belief in the presence of the deceased, it was not her statements that created or raised any false or misleading impression. Rather, it was the deceased's own views. Merely accepting and repeating the deceased's own long-held views cannot, in my opinion, give rise to a wilfully false or fraudulent statement that was purposefully practised on the deceased in order to gain benefits to herself under the will: Trustee for the Salvation Army (NSW) Property Trust v Becker (No 2) [2007] NSWCA 136 at [66].
8. Second, and for reasons I have explained at [133]-[136], there is a doubt on the evidence as to whether the representation was false or misleading in the sense required. In any event, the view that the deceased bought the Kogarah property house or provided it to Tony was not irrationally held and one to which the deceased was entitled to maintain given the significant financial contributions he and his late wife made that led to its purchase in Tony's name.
9. Third, while Tony's evidence indicates that the deceased may have considered leaving the Rockdale property equally between Nada and Tony, I am not satisfied that Tony has demonstrated some causal link between the making of Nada's statements and the decision taken by the deceased to exclude Tony from his will. As Nada's counsel submits, and as explained in the file note, the deceased's reasons for excluding Tony were more nuanced than simply having bought the Kogarah property for him. Those reasons included that the deceased considered that Tony had "received adequate financial assistance over the years" compared to Nada, and the assistance provided to the deceased by Nada and her family.
10. Fourth, I do not accept that Nada's failure to check whether the deceased's statement was true or not amounts to reckless conduct that could be said to give rise to fraud on her part. To my mind, there is nothing reckless about a daughter accepting and agreeing to statements made by a father about the purchase of a property for which the father paid a significant amount and was named on the mortgage. I reject Tony's submission that Nada acted recklessly because she never saw the deceased or Tony's bank statements, never went to the bank with the deceased, was not living with the deceased or Tony when the house was purchased and had not checked with Tony whether the deceased had bought the house for Tony.
11. Fifth, where the evidence to support the pleaded representation was extracted in cross-examination, the suggestion by Tony's counsel that there is an absence of other evidence to support Nada's submission that she repeating what the deceased said to her cannot be accepted. In my opinion, Nada's evidence in cross-examination (as outlined in [174] above) clearly demonstrates that Nada merely echoed what she had been told by the deceased before.
12. Finally, given that the representation was a statement based on the deceased's own longstanding and repeated belief, I am not persuaded that there is a basis for the Court to infer that it was made by Nada with a design to raise a prejudice in the mind of the deceased against Tony for her benefit or that, it could in fact, do so: Newton v Taylor (Supreme Court (NSW), Powell J, 2 August 199, unrep).

Costs

1. The general rule is that costs follow the event unless it appears to the Court that some other order should be made: Uniform Civil Procedural Rules 2005 (NSW), r 42.1.
2. While exceptions to the usual rule have been recognised in probate litigation, no submissions were made to the Court that this was a case in which the exceptions apply.
3. Nada's statement of claim seeks an order for Tony to pay her costs of and incidental to the proceedings. In the absence of any submissions on the issue of costs, I propose to make an order consistent with the general rule that costs follow the event and order Tony to pay Nada's costs of the proceedings.
4. If either party considers that some other costs order should be made, they are to confer with the other party and, within 14 days, notify my Associate that a variation to the costs order is sought. They should also provide an agreed timetable for the exchange of short written submissions so that the issue of costs can be determined on the papers.

Orders

1. For these reasons, I make the following orders: 1. Probate of the will of Milan Zlatevski dated 15 October 2013 be granted to the plaintiff in solemn form. 2. The proceedings be referred to the Registrar to complete the grant of probate. 3. The cross claim filed by the defendant on 1 March 2017 be dismissed. 4. The defendant/cross-claimant pay the plaintiff's costs of the proceedings on an ordinary basis, in an amount to be agreed or accessed.

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: 19 March 2020